Van Dyke v. Grey Bruce Regional Health Centre, 2005 ONCA 18841

DATE: 20050603

DOCKET: C40462-C39615

COURT OF APPEAL FOR ONTARIO

DOHERTY, SHARPE and ARMSTRONG JJ.A.

B E T W E E N :

EDWARD VAN DYKE and DOROTHY VAN DYKE

Hillel David and Paul J. Pape for the respondents/appellants

Plaintiffs

(Appellants in one appeal/

Respondents in the other)

• and -

THE GREY BRUCE REGIONAL HEALTH CENTRE, ALEXANDER MARSH, J. OSTRANDER, JOHN DOE, GREY-BRUCE HOME CARE PROGRAM and VON GREY-BRUCE BRANCH

Donald G. Cormack and Derek V. Abreu for the respondent Victorian Order of Nurses Grey-Bruce Branch

Jonathan C. Lisus and Thomas N.T. Sutton for the appellant Dr. Alexander Marsh

Defendants

(Appellant and

Respondent respectively)

Heard: March 21, 2005

On appeal from the judgment of Justice Francine E. Van Melle of the Superior Court of Justice dated January 26, 2004.

DOHERTY J.A.:

I

Overview

(a) Background

[1] In late May 1995, Edward Van Dyke (“Mr. Van Dyke”) became very ill with what was ultimately diagnosed as a serious sinus infection. Mr. Van Dyke’s condition worsened and he was hospitalized on June 2, 1995. Following his admission to hospital, Mr. Van Dyke’s condition improved initially, but then took a turn for the worse. The infection had spread to soft tissue outside of the sinus and Mr. Van Dyke’s doctors were concerned that it had also spread into the bones around the sinus. If Mr. Van Dyke’s infection was not brought under control, he faced serious permanent disability or even death.

[2] Mr. Van Dyke had been in a car accident in 1979 in which he had suffered significant head and facial injuries. The accident created a small hole in the dura around his brain and also necessitated extensive facial reconstructive surgery. That surgery involved closing one of Mr. Van Dyke’s sinuses with tissue taken from his leg and installing screws and other surgical hardware in his face. The injury to the dura, the surgical reconstruction of one of his sinuses, and the installation of surgical hardware in his face all increased the risk that Mr. Van Dyke’s 1995 infection could spread beyond his sinus to other parts of his face, or even to his brain. Mr. Van Dyke’s earlier injuries and surgery made his medical condition substantially more complex than it otherwise would have been.

[3] Mr. Van Dyke’s infection proved resistant to antibiotic therapy. He was placed on a variety of antibiotics used in different combinations with one another. The antibiotics given to Mr. Van Dyke included Gentamicin, a powerful broad-spectrum antibiotic used for particularly serious infections. Gentamicin can be toxic. Among the known side effects associated with the use of Gentamicin is a condition called vestibular toxicity or ototoxicity. The condition is an uncommon side effect, but can result in a permanent impairment of the balance function of the inner ear. The risk of vestibular toxicity increases the longer a person takes Gentamicin. That risk increases substantially if a person is on Gentamicin for more than 14 days. Mr. Van Dyke was on Gentamicin from June 2 to July 3, 1995.

[4] On June 30, Mr. Van Dyke became dizzy and was unable to maintain his balance. It was subsequently determined that he had vestibular toxicity caused by the Gentamicin. Mr. Van Dyke’s balance has been permanently and significantly impaired. He suffers from dizziness and headaches, cannot work at his old job, and cannot do many of the things that were an integral part of his family and social life prior to May 1995.

[5] Mr. Van Dyke and his wife Dorothy (“Mrs. Van Dyke”) sued Dr. Alexander Marsh (“Dr. Marsh”), his otolaryngologist, and the Grey-Bruce Branch of the Victorian Order of Nurses (“VON”) claiming that they were negligent in the care and treatment of Mr. Van Dyke and that their negligence caused his damages.[^1]

[6] The trial judge granted a non-suit motion brought by VON and dismissed the action against it. She found Dr. Marsh liable and assessed damages and pre-judgment interest at $1,280,601.39. The trial judge also ordered Dr. Marsh to pay the Van Dykes’ costs and the costs of the VON. Those costs amounted to $515,000.00.

[7] Dr. Marsh appeals the finding of liability and the damages as they relate to Mr. Van Dyke’s loss of earning capacity. Dr. Marsh also seeks leave to appeal the order requiring him to pay the costs of the VON.

[8] The Van Dykes appeal the order dismissing the action against VON.

(b) Dr. Marsh’s Appeal

[9] On the appeal from the finding of liability, counsel for Dr. Marsh submits that the Van Dykes failed to lead any evidence capable of establishing a causal link between the negligence of Dr. Marsh as found by the trial judge and the damage suffered by Mr. Van Dyke.

[10] Counsel further contends that the trial judge failed to consider the evidence that the VON nurse alerted Mr. Van Dyke to the need to seek medical assistance should symptoms of vestibular toxicity develop. Counsel contends that even if Dr. Marsh failed to properly alert Mr. Van Dyke to the need to seek immediate medical care if symptoms developed, that the nurses effectively provided that information to Mr. Van Dyke, thereby severing any possible causal link between Dr. Marsh’s failure to provide an adequate warning and the damage ultimately suffered by Mr. Van Dyke.

[11] Counsel for the Van Dykes responds that the trial judge expressly found a causal link between Dr. Marsh’s negligence and Mr. Van Dyke’s injuries. Counsel submits that the evidence supports this finding. He further contends that there was no evidence that the VON nurses alerted Mr. Van Dyke to the need to take immediate action should the symptoms of vestibular toxicity develop.

[12] Counsel for the Van Dykes advances an alternative argument in support of Dr. Marsh’s liability. This argument need be addressed only if Dr. Marsh’s causation argument is accepted. Counsel for the Van Dykes argues that on the facts as found by the trial judge, Dr. Marsh failed to discharge his obligation to inform Mr. Van Dyke of the risks associated with the continued use of Gentamicin. Counsel acknowledges that the trial judge did not make any finding as to whether this failure caused Mr. Van Dyke’s damages, but submits that this court can make that finding. He urges the court to find that a reasonable person in Mr. Van Dyke’s circumstances as of June 20, the day he was discharged from the hospital, would have refused to continue to take Gentamicin had he been properly informed of the risks and medical options.

[13] Counsel submits that the measure of damages arrived at by the trial judge will not change if this court determines that Dr. Marsh’s liability is properly based on his failure to discharge his disclosure obligation.

[14] I would allow Dr. Marsh’s appeal, set aside the judgment below, and dismiss the action against him. On the findings of negligence made against Dr. Marsh, Mr. Van Dyke could succeed in establishing liability only if he could show that the delay of two or three days in seeking medical care after he had developed symptoms of vestibular toxicity prevented the reversal, at least in part, of those symptoms. The trial judge did not address this issue in her reasons. I do not think there is any evidence capable of supporting a finding, on the balance of probabilities, that but for the delay in discontinuing Gentamicin between June 30 and July 3, Mr. Van Dyke’s ultimate condition would have been better.

[15] I also cannot accept counsel for Mr. Van Dyke’s alternative argument. I do agree that on the findings of the trial judge, Dr. Marsh failed to disclose material information to Mr. Van Dyke. In my view, however, Mr. Van Dyke cannot establish, on the balance of probabilities, that a reasonable person in his position on June 20 would have declined to continue taking Gentamicin had the material risks and medical options been properly disclosed to him.

(c) The Van Dykes’ Appeal

[16] On the Van Dykes’ appeal from the dismissal of the action against the VON, counsel submits that the trial judge erred in holding that there was no evidence as to the standard of care applicable to nurses providing home care to a patient in the circumstances of Mr. Van Dyke. Counsel contends that the evidence was provided by Erika Walter, the witness called by the VON. Ms. Walter was one of the nurses who provided home care for Mr. Van Dyke after his discharge from the hospital.

[17] Counsel for the VON submits that the trial judge properly held that there was no case for the VON to answer absent expert evidence as to the applicable standard of care.

[18] I would dismiss the Van Dykes’ appeal against the VON. I agree with the trial judge that there was no evidence upon which a finding could be made as to the standard of care required of VON personnel when providing home care to Mr. Van Dyke after his release from the hospital. Absent that evidence, the Van Dykes could not prove a breach of the duty owed to Mr. Van Dyke by the VON.

[19] Even if the VON non-suit should not have been granted, I would dismiss the action against the VON. The Van Dykes’ failure to establish the necessary causal link between the delay in the discontinuation of the administration of Gentamicin and Mr. Van Dyke’s ultimate condition also necessitates the dismissal of the action against the VON.

II

The Relevant Events

[20] In May 1995, Mr. Van Dyke was an employed, active thirty-five year old living with his wife and four children outside of Owen Sound, Ontario. On May 19, Mr. Van Dyke developed a bad headache, nausea and facial pain. On May 22, he went to the local hospital and was given painkillers and an antibiotic. His condition did not improve and on May 25, he went to Dr. Tucker, his family doctor. She prescribed different antibiotics and ordered x-rays. By June 2, Mr. Van Dyke was feeling much worse and he returned to Dr. Tucker. She immediately hospitalized Mr. Van Dyke and arranged a consultation with Dr. Marsh, the local otolaryngologist.

[21] Dr. Tucker decided to put Mr. Van Dyke on Gentamicin on June 2 because his infection had not responded to the two antibiotics that had been administered over the previous ten days. Gentamicin is administered intravenously and, as indicated above, is a powerful antibiotic that can cause vestibular toxicity. Vestibular toxicity occurs when Gentamicin accumulates on the hair cells of the inner ear, killing those cells and destroying or severely impairing the balance function of the body. The risk of vestibular toxicity depends on a number of factors, especially the duration of the use of Gentamicin. Because vestibular toxicity is caused by the accumulation of Gentamicin on the hair cells of the inner ear, the longer a patient takes the drug, the greater the risk.

[22] Vestibular toxicity was well-recognized by the medical profession in 1995 as an uncommon, but potentially serious side effect of the use of Gentamicin. Dr. Marsh placed the risk at around two percent and acknowledged that the risk increased the longer the drug was used. Experts called by Mr. Van Dyke placed the risk somewhat higher and testified that the risk increased substantially if the drug was used for more than fourteen days.

[23] Dr. Marsh saw Mr. Van Dyke on June 3. Dr. Marsh believed that Mr. Van Dyke had a serious sinus infection that had spread into the soft tissues around the sinus. He was concerned that Mr. Van Dyke had or could develop an infection of the bone known as osteomyelitis. Osteomyelitis is an infection that spreads through the blood channels found in the bone marrow. It is difficult to detect, difficult to treat, and can be life-threatening, particularly where the facial bones are involved. Dr. Marsh was also aware of Mr. Van Dyke’s prior medical history. He believed that Mr. Van Dyke’s prior injuries and reconstructive surgery put Mr. Van Dyke at a significantly higher risk that his infection would continue to spread beyond his sinuses and into the bone.

[24] Dr. Marsh’s concern that Mr. Van Dyke had or could develop osteomyelitis led him to agree with and continue Dr. Tucker’s prescription of Gentamicin. As of June 2, Dr. Marsh did not believe that Mr. Van Dyke had any of the risk factors associated with vestibular toxicity. He believed that the risk of osteomyelitis, and the very real danger to Mr. Van Dyke presented by that infection, warranted the use of Gentamicin, even though there was some risk of vestibular toxicity.

[25] Mr. Van Dyke’s condition seemed to improve between June 3 and June 9. Dr. Marsh was considering discontinuing the Gentamicin and discharging Mr. Van Dyke. Unfortunately, Mr. Van Dyke took a dramatic turn for the worse on June 10. The pain increased substantially, as did the swelling in his face. Because of the deterioration in Mr. Van Dyke’s condition, Dr. Marsh continued the Gentamicin and started Mr. Van Dyke on another antibiotic. He also arranged for a consultation with Dr. Ostrander, an internist. Dr. Ostrander agreed with Dr. Marsh’s decision to continue the Gentamicin and start another antibiotic.

[26] A CT scan showed that Mr. Van Dyke had developed a significant abscess near his eye as a result of his infection. Dr. Marsh operated on June 14, drained the abscess, explored the sinus and inserted a drain into the closed space of the sinus to remove the pus caused by the infection. In the course of the surgery, Dr. Marsh made observations of the bony area around the sinus that were suggestive of the early stages of osteomyelitis.

[27] Post-surgery, Dr. Marsh decided to keep Mr. Van Dyke on the same antibiotics, including Gentamicin. Based on his observations during surgery, Dr. Marsh remained concerned that Mr. Van Dyke had or could develop osteomyelitis. He believed that the risk of osteomyelitis warranted the continued use of Gentamicin, even though Dr. Marsh appreciated that the longer Mr. Van Dyke took Gentamicin, the greater the risk of vestibular toxicity.

[28] Mr. Van Dyke’s clinical condition improved significantly between June 14 and June 20, although pus continued to drain from the sinus area. Dr. Marsh decided that Mr. Van Dyke could be sent home with follow-up home care provided by the VON.

[29] Mr. Van Dyke was discharged on June 20. Dr. Marsh maintained the same combination of antibiotics, including Gentamicin. He still suspected osteomyelitis and was concerned that the infection had proven very resistant to antibiotic treatment for almost a month. Dr. Marsh believed that it was best to keep Mr. Van Dyke on the same combination of antibiotics that he was taking between June 14 and June 20 when his condition had improved significantly. Dr. Marsh was satisfied that the Gentamicin could be properly monitored by the home care nurses. He also arranged for Mr. Van Dyke to visit him three days after his discharge.

[30] Dr. Marsh testified that he knew that by June 20 Mr. Van Dyke had been taking Gentamicin for eighteen days. He regarded this as a prolonged use of Gentamicin and acknowledged that prolonged use increased the risk of vestibular toxicity. In his opinion, Mr. Van Dyke’s prolonged use of the drug was the only risk factor at play. He concluded that this added risk was worth taking given the disastrous consequences for Mr. Van Dyke should his infection spread to other areas, including the brain. Dr. Marsh planned to reassess the use of Gentamicin in early July, by which time Mr. Van Dyke would have been on the drug for a month.

[31] Following usual procedures, home care arrangements with the VON were made before Mr. Van Dyke was discharged. The plan was that VON nurses would initially attend at Mr. Van Dyke’s home on a daily basis, and subsequently, would reduce those visits as Mr. Van Dyke and his wife became comfortable looking after Mr. Van Dyke’s medical needs on their own. The goal of the VON was to teach Mr. Van Dyke and his wife how to care for his medical needs, particularly the administration of his intravenous medication. By June 30, the VON nurses were no longer visiting the Van Dyke residence on a daily basis, but were still visiting regularly.

[32] Mr. Van Dyke saw Dr. Marsh briefly on June 23. He seemed to be doing well. Dr. Marsh planned to see him again on the morning of July 3, at which time he would reassess the continued use of Gentamicin.

[33] On the trial judge’s factual findings, Mr. Van Dyke first displayed symptoms of vestibular toxicity on the afternoon of June 30. He became dizzy and could not maintain his balance. No one from the VON was scheduled to attend at Mr. Van Dyke’s home on June 30 or during the Canada Day long-weekend. A VON nurse next visited the Van Dyke home on July 3 and advised Dr. Marsh of Mr. Van Dyke’s symptoms. Dr. Marsh ordered the Gentamicin discontinued immediately. Unfortunately, Mr. Van Dyke’s symptoms did not improve.

[34] The trial judge heard extensive evidence about Mr. Van Dyke’s medical condition up to the time of trial and the effect of his medical problems on his life. On the trial judge’s findings, Mr. Van Dyke cannot do the work he did before May 1995, is unemployable, cannot drive, cannot enjoy recreational activities, and cannot participate in many of the family activities that were an important part of his life before May 1995.

III

The Trial Judge’s Findings on Liability

[35] At trial, counsel for the Van Dykes, supported by expert evidence, argued that Dr. Marsh should never have prescribed Gentamicin, and that even if the initial prescription of Gentamicin was reasonable, he should have discontinued the Gentamicin no later than June 20 when Mr. Van Dyke was discharged from the hospital. Counsel further contended that Dr. Marsh had failed to adequately alert Mr. Van Dyke to the risk of vestibular toxicity, the symptoms associated with that condition, the need to seek medical assistance immediately if those symptoms developed, and the availability of other effective and less dangerous antibiotics. Counsel also submitted that Dr. Marsh had failed to properly monitor Mr. Van Dyke’s condition after his release from hospital on June 20.

[36] The trial judge, relying on defence evidence, rejected many of the Van Dykes’ allegations of sub-standard care by Dr. Marsh. She concluded that it was reasonable for Dr. Marsh to initially suspect osteomyelitis and to continue to be concerned about the possibility of osteomyelitis after Mr. Van Dyke’s surgery on June 14. She further held that Dr. Marsh’s suspicion that Mr. Van Dyke may have osteomyelitis justified the initial prescription of Gentamicin and its continued use after Mr. Van Dyke’s discharge on June 20. On the trial judge’s findings, Dr. Marsh acted reasonably and in accordance with the applicable standard of care in continuing the administration of Gentamicin up to June 30.

[37] The essence of the trial judge’s finding of negligence against Dr. Marsh is found in para. 59 of her reasons:

Here, Dr. Marsh, an Otolaryngologist who had been practising in this area of medicine since 1985, was aware of the necessity of ongoing monitoring regarding kidney function but did not monitor appropriately for ototoxicity. By not monitoring appropriately for ototoxicity and by not emphasizing to Mr. Van Dyke the necessity for ongoing vigilance in regard to the symptoms of ototoxicity Dr. Marsh fell below the acceptable standard of care [emphasis added].

[38] The trial judge next found that the Van Dykes were not aware that Mr. Van Dyke’s dizziness was a symptom of ototoxicity. Nor were they aware of the need to immediately report that symptom to medical personnel. The trial judge observed:

I accept that if Mr. and Mrs. Van Dyke had been aware of the necessity to call someone right away, they would have and could have called the VON. However, based on the evidence, I am satisfied that they were not aware of the importance of the symptoms Mr. Van Dyke was experiencing.

[39] The trial judge turned directly from her finding that the Van Dykes would have sought medical assistance had they been aware of the significance of Mr. Van Dyke’s symptoms to her conclusion with respect to causation. She said:

This breach of the standard of care caused Mr. Van Dyke’s injury and Mr. Van Dyke has suffered damages as a result.

[40] In coming to her causation conclusion, the trial judge did not address the question of whether Mr. Van Dyke could have recovered had the Gentamicin been discontinued immediately upon the development of symptoms on June 30, rather than on July 3. This question is central to Dr. Marsh’s appeal.

IV

Dr. Marsh’s Appeal

(a) The Causation Arguments Raised by Dr. Marsh

[41] The medical or factual cause of Mr. Van Dyke’s injury was not in dispute. He suffered from vestibular toxicity brought on by the accumulation of Gentamicin on the hair cells of the inner ear. This accumulation killed those cells and led to Mr. Van Dyke’s loss of balance and other medical problems. The accumulation of Gentamicin occurred over the four weeks that Mr. Van Dyke was receiving Gentamicin intravenously.

[42] It was the primary thrust of the Van Dykes’ case at trial that Dr. Marsh should never have prescribed Gentamicin, or alternatively, that he should have taken Mr. Van Dyke off Gentamicin by June 20 at the very latest. Had the trial judge agreed that the use of Gentamicin, or its continued use after June 20, amounted to negligent conduct by Dr. Marsh, the Van Dykes would not have had any difficulty proving causation. The administration of Gentamicin, and specifically its administration after June 20, caused or materially contributed to the vestibular toxicity which manifested itself on June 30.

[43] The trial judge did not, however, accept the Van Dykes’ claims that Dr. Marsh was negligent in prescribing Gentamicin or continuing its use after June 20. On the trial judge’s view, the administration of Gentamicin up to June 30, the factual cause for Mr. Van Dyke’s vestibular toxicity, did not amount to negligent care. Dr. Marsh’s negligence lay in his failure to properly alert Mr. Van Dyke to the risks associated with Gentamicin and the need to seek immediate medical care if the symptoms of vestibular toxicity developed. Dr. Marsh’s negligence did not cause the vestibular toxicity, but rather caused a two to three day delay in the discontinuation of the Gentamicin. Mr. Van Dyke could only recover against Dr. Marsh if he could establish, on the balance of probabilities, that this two to three day delay in discontinuing the administration of Gentamicin caused the harm for which Mr. Van Dyke sought compensation.

[44] Causation in medical malpractice cases where the negligence lies in the failure to diagnose or treat a pre-existing condition requires that the plaintiff show, on the balance of probabilities, that but for the failure to properly diagnose or treat the condition, the plaintiff would have had a better medical outcome. In Cottrelle v. Gerrard (2003), 2003 50091 (ON CA), 67 O.R. (3d) 737 at para. 25 (C.A.), Sharpe J.A. said:

[I]n an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not” [emphasis added].

[45] Dr. Freeman, one of the medical experts called by the Van Dykes, testified that Mr. Van Dyke had already suffered “significant” damage to his balance function by the time his symptoms developed on June 30. None of the other medical experts who testified at trial challenged this part of Dr. Freeman’s evidence. It flows from Dr. Freeman’s evidence that Dr. Marsh’s negligence as found by the trial judge took effect after Mr. Van Dyke had suffered already significant damage to his balance function. The crucial question then became what effect, if any, the two to three day delay in treatment had on Mr. Van Dyke’s condition.

[46] Dr. Freeman and Dr. Mazzulli, who also testified for Mr. Van Dyke, indicated that the symptoms of vestibular toxicity can sometimes be at least partially reversed and that the sooner the administration of Gentamicin is stopped after symptoms first appear, the better the chances of at least some recovery. Their evidence on this issue was brief.

[47] Dr. Freeman’s entire testimony on the issue appears in the following extract from his examination-in-chief:.

Q. By the time the symptoms first manifested itself, had the Gentamicin been discontinued then and there, can you tell us what effect, if any, it would have on Mr. Van Dyke’s ototoxicity.

A. Yes, the literature suggests that by the time symptoms appear in patients who have Gentamicin administration on board there is significant ototoxicity. The chance of – however there is a chance of reversal and patients can assume normal vestibular function in about half the cases, after symptoms first appear and the antibiotic is discontinued.

Q. You mentioned a chance?

A. The literature suggests 50-50 [emphasis added].

[48] Dr. Freeman’s evidence does not establish the necessary causal link between delay in stopping the administration of Gentamicin and Mr. Van Dyke’s damages. Dr. Freeman was not asked what effect, if any, a delay of two or three days would have on a person’s prospects for reversing, at least in part, the adverse consequences of vestibular toxicity. Dr. Freeman testified that the literature suggested a 50-50 chance of reversal if the Gentamicin was stopped when the symptoms appeared. He did not give any evidence as to how those statistics would be affected if the discontinuation of Gentamicin was delayed by two or three days.

[49] Dr. Freeman’s evidence also does not speak specifically to Mr. Van Dyke’s case. Dr. Freeman makes only a brief and general reference to statistical evidence drawn from unspecified medical literature. Statistical evidence can be an important component of the evidence directed at proving causation. Statistical evidence may, however, be of little assistance in determining causation without an evidentiary bridge linking the statistical evidence to the circumstances of the specific plaintiff. A mere “suggestion” in unidentified medical literature that there is a fifty percent chance of reversal of symptoms if the administration of Gentamicin is discontinued when the symptoms first appear, cannot, standing alone, assist in determining the effect on Mr. Van Dyke’s condition of the two to three day delay before Dr. Marsh discontinued the Gentamicin.

[50] Dr. Mazzulli, in his examination-in-chief, touched on the significance of discontinuing Gentamicin when symptoms of ototoxicity appear. He testified that the symptoms can be partially reversed if the administration of Gentamicin is stopped “early enough”. Dr. Mazzulli did not attempt to quantify the phrase “early enough”. In cross-examination by counsel for the VON, the following exchange occurred:

Q. So there are a lot of ifs, maybes and buts as to what may or may not happen when the drug gets stopped?

A. Every patient’s different and there’s no way to predict in any one what might happen.

Q. And whether there’s any reversibility, I guess, is one question that you can’t answer.

A. No. Again, in an individual patient, it may happen. In other patients, it doesn’t happen.

Q. Even if there is to be any reversibility, the extent of it, to what extent the toxicity’s reduced?

A. Again, it’s difficult to predict.

Q. And that’s as good as it can get. It’s just a guess whether it’s going to happen and to what extent?

A. Yes [emphasis added].

[51] Dr. Mazzulli was not asked about the effect, if any, of the two or three day delay in the discontinuation of Gentamicin on Mr. Van Dyke’s potential for recovery. The answers quoted above would suggest that the chances of recovery in all cases where the symptoms have appeared is entirely unpredictable.

[52] Dr. North, an expert called by Dr. Marsh, also gave brief evidence on this issue. Like Dr. Mazzulli, he testified that a patient’s prospect of recovery once the symptoms of vestibular toxicity appeared could not be meaningfully predicted. In his view, estimates as to the likelihood or degree of recovery were no more than uneducated guesses.

[53] I agree with counsel for Dr. Marsh’s submission that the trial judge did not address the crucial causation issue raised by the finding of negligence she made against Dr. Marsh. She did not refer to any of the evidence touching on the issue, or to the legal principles applicable to causation where a doctor’s negligence leads to a delay in treatment rather than to the injury itself. The trial judge’s finding that Mr. Van Dyke would have sought medical assistance immediately had he been properly advised of the need to do so by Dr. Marsh, was a precondition to a finding that Dr. Marsh’s negligence caused Mr. Van Dyke’s loss, but did not, standing alone, establish legal causation. The trial judge should have gone on and determined whether Mr. Van Dyke had established, on the balance of probabilities, that he would not have suffered the outcome he did, but for the failure to discontinue the Gentamicin on June 30.

[54] On my review of the evidence, Mr. Van Dyke cannot show the necessary causal link. He had a serious medical problem on June 30. On the trial judge’s findings, that problem was not the product of Dr. Marsh’s negligence. Even on the view of the evidence that is most favourable to Mr. Van Dyke, it does not come close to establishing, on the balance of probabilities, that but for the two or three day delay in discontinuing the administration of Gentamicin, Mr. Van Dyke’s condition would have been better than it ultimately turned out to be. The evidence is incapable of forging a causal link between Dr. Marsh’s negligence as found by the trial judge and Mr. Van Dyke’s damages.

[55] Counsel for Dr. Marsh also attacked the causation finding made at trial on the basis that the trial judge failed to determine whether the VON nurses, and in particular Nurse Walter, had adequately alerted Mr. Van Dyke to the symptoms of vestibular toxicity and the need to seek immediate medical care if those symptoms developed. Counsel submits that if Mr. Van Dyke was properly advised of the risks and the need to seek immediate medical care by the nurses, then his failure to seek immediate medical attention when the symptoms developed could not be attributed to Dr. Marsh’s negligent failure to give that same warning to Mr. Van Dyke. As I am satisfied that the first causation advanced on behalf of Dr. Marsh should succeed, it is not necessary for me to address this second argument. I will, however, do so for the sake of completeness.

[56] Counsel for Dr. Marsh correctly observes that the trial judge made no reference to the evidence of Nurse Walter concerning her discussions with Mr. Van Dyke about the risks associated with Gentamicin, and the 24-hour availability of the VON should any medical problems develop. I cannot agree, however, with counsel’s further submission that by granting the VON non-suit, the trial judge implicitly accepted Nurse Walter’s evidence that she fully advised Mr. Van Dyke of the relevant risks and the need to report symptoms immediately. The trial judge granted the non-suit motion because there was no evidence of the standard of care applicable to nurses providing home care like that provided for Mr. Van Dyke. In granting the non-suit, the trial judge made no assessment of the credibility or reliability of the evidence of Nurse Walter and no findings of fact can be implied from her granting of the non-suit.

[57] I have read the evidence of Nurse Walter. She testified that she advised Mr. Van Dyke of the symptoms associated with vestibular toxicity. She did not testify that she specifically told Mr. Van Dyke that if any of those symptoms developed, it was imperative that he seek immediate medical attention. Even if Nurse Walter’s evidence is accepted in total, it does not support the contention that she supplied the crucial information to Mr. Van Dyke that the trial judge found Dr. Marsh had negligently failed to give to him. I would not give effect to this argument.

(b) The Van Dykes’ Informed Consent Argument

[58] As I am satisfied that the Van Dykes did not prove that the negligence as found by the trial judge caused Mr. Van Dyke’s damages, Dr. Marsh’s appeal must succeed unless the Van Dykes can establish liability on the alternative ground advanced on their behalf by counsel. Counsel contends that Mr. Van Dyke did not provide an informed consent to the continued administration of Gentamicin after June 20. He submits that Dr. Marsh failed to meet his disclosure obligations in three ways:

• he failed to tell Mr. Van Dyke at any time of the risk of vestibular toxicity;
• he failed to advise Mr. Van Dyke that the risk of vestibular toxicity had increased substantially by June 20; and
• he failed to advise Mr. Van Dyke that as of June 20, there were other effective antibiotics that could be substituted for Gentamicin that did not carry the risk of vestibular toxicity.

[59] Counsel submits that a reasonable person in the circumstances of Mr. Van Dyke, properly advised of the risks inherent in the continued use of Gentamicin after June 20, and of the availability of other effective antibiotics, would not have agreed to continue to take Gentamicin.

[60] These arguments were advanced at trial and were alluded to by the trial judge. She did not, however, address the absence of informed consent as a discrete basis for liability.

[61] If Dr. Marsh’s liability is based on an absence of informed consent to the continued use of Gentamicin, the failure to show a causal link between the two or three day delay in discontinuing Gentamicin and Mr. Van Dyke’s damages becomes irrelevant. Mr. Van Dyke displayed symptoms of vestibular toxicity on June 30. On the evidence, that condition could have existed for two or three days before the symptoms appeared, but could not have existed as early as June 20. Had Mr. Van Dyke stopped taking the Gentamicin on June 20, as his counsel contends he would have had he been properly advised of the risks and alternatives, Mr. Van Dyke would not have developed vestibular toxicity.

[62] Although the causation argument successfully advanced by Dr. Marsh becomes irrelevant when assessing liability based on an absence of informed consent to the continued use of Gentamicin, that basis of liability raises its own causation issue. To succeed on this basis, the Van Dykes must establish that a reasonable person in Mr. Van Dyke’s position on June 20, properly advised of the risks and alternatives, would not have followed Dr. Marsh’s recommendation and continued to use Gentamicin: see Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539.

[63] In June 1995, there was no statutory definition of informed consent.[^2] It is, however, well established under the common law in Canada that doctors are required to disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person in the patient’s position would want to know about before deciding whether to proceed with the proposed treatment. Risks that are rare will be material if the consequences of those risks are serious. A failure to make full disclosure of material risks constitutes negligence: Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880 at 894; Ciarlariello v. Schacter, 1993 138 (SCC), [1993] 2 S.C.R. 119 at 133.

[64] A doctor’s disclosure obligation also includes the duty to advise the patient of all available reasonable alternative treatments: Zimmer v. Ringrose (1981), 1981 ABCA 60, 124 D.L.R. (3d) 215 at 222 (Alta. C.A.); Haughian v. Paine, 1987 987 (SK CA), [1987] 4 W.W.R. 97 at 111 (Sask. C.A.), leave to appeal to S.C.C. refused, [1987] 6 W.W.R. lix; Van Mol (Guardian ad Litem of) v. Ashmore (1999), 1999 BCCA 6, 168 D.L.R. (4th) 637 at 671-2 (B.C.C.A.), leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 117; Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 3rd ed. (Toronto: Carswell, 1996) at 129-131.

[65] The scope of a doctor’s obligation to inform a patient of alternative treatments is a matter of some controversy. Several trial decisions in Ontario have suggested that the treating physician is only obliged to disclose options that in his or her reasonable medical judgment are appropriate for the patient. In this context, an appropriate option is one that has some advantage to the patient over the treatment preferred by the doctor and the potential of achieving a beneficial result for the patient: Bucknam v. Kostiuk (1983), 1983 1865 (ON SC), 44 O.R. (2d) 102 at 114 (H.C.J.), aff’d (1986), 1986 2686 (ON CA), 55 O.R. (2d) 187 (C.A.); Bonnell v. Moddel, [1987] O.J. No. 97 (H.C.J.); Ferron v. Yadav, [1990] O.J. No. 473 (H.C.J.). This court dismissed an appeal in Bucknam, supra, but did not resolve the scope of the obligation to inform a patient of alternative treatment.

[66] Other authorities take the position that the Ontario cases unnecessarily diminish a patient’s right to choose from among reasonable medical alternatives. It is argued that the patient’s right to make an informed decision requires that the doctor advise the patient of all medically reasonable alternatives, even if the treating physician considers the alternative inappropriate in the particular circumstances. On this view of informed consent, it is the doctor’s obligation to make the patient aware of the alternatives and to give the patient the benefit of the doctor’s advice as to merits and demerits of the various alternatives: Seney v. Crooks (1998), 1998 ABCA 316, 166 D.L.R. (4th) 337 at para. 60, 64 (Alta. C.A.); Picard & Robertson, supra, at 131 and 163.

[67] It is impossible to delineate the reach of a doctor’s disclosure obligation without regard to the facts and circumstances of specific cases. The extent to which a doctor must disclose and discuss alternative treatments will depend on a myriad of factual circumstances. The proper approach to the scope of the disclosure obligations can, however, be stated in a generalized way. The ultimate decision whether to proceed with a particular treatment rests with the patient and not the doctor. The doctor must equip the patient with the information necessary to make an informed choice. Where there is more than one medically reasonable treatment and the risk/benefit analysis engaged by the alternatives involves different considerations, a reasonable person would want to know about the alternatives and would want the assistance of the doctor’s risk/benefit analysis of the various possible treatments before deciding whether to proceed with a specific treatment. Put differently, a reasonable person could not make an informed decision to proceed with treatment “A” if that patient was unaware of the risks and benefits associated with treatment “B”, a medically appropriate alternative treatment.

[68] On the findings of fact made by the trial judge, the Van Dykes established two of the three allegations of non-disclosure made against Dr. Marsh at trial. All of the doctors who testified, including Dr. Marsh, agreed that vestibular toxicity was a material risk inherent in the use of Gentamicin that had to be disclosed to a patient. Dr. Marsh testified that he explained this risk to Mr. Van Dyke. The trial judge found that there was nothing in the medical records or in the evidence to support Dr. Marsh’s evidence on this issue (para. 47). I read the reasons of the trial judge as finding that Dr. Marsh did not disclose the risk of vestibular toxicity to Mr. Van Dyke at any time. The failure to make that disclosure amounts to negligence.

[69] The trial judge also found, relying on the experts called by the Van Dykes, that the risk of vestibular toxicity increased substantially, and not just incrementally as Dr. Marsh had testified, when Gentamicin was administered for more than fourteen days (para. 54). The trial judge further held that Dr. Marsh was not aware of this substantial increase in the risk and that he should have been. Clearly, as he was unaware of this added substantial risk, Dr. Marsh did not disclose it to Mr. Van Dyke at any time. The failure to disclose this added risk also constituted negligence.

[70] The third alleged breach by Dr. Marsh of his disclosure obligation, that is the failure to advise Mr. Van Dyke that there were other effective non-toxic antibiotics that could have been used instead of Gentamicin, is more difficult to address on appeal. This allegation was referred to but not analyzed by the trial judge. She made no finding as to whether the suggested alternative antibiotics would have been appropriate for Mr. Van Dyke on June 20, and assuming there were other appropriate antibiotics, she made no finding as to whether Dr. Marsh was under an obligation to disclose those alternative antibiotics to Mr. Van Dyke.

[71] There was a great deal of evidence concerning the suitability of at least three other antibiotics that did not carry the same risk of vestibular toxicity as Gentamicin. The three medical experts called by the Van Dykes agreed that other equally effective antibiotics could have been used in place of Gentamicin. With one exception, none of the alternative antibiotics were known to cause vestibular toxicity. The one alternative that could cause vestibular toxicity carried that risk only if the drug was given in amounts above normal therapeutic dosages.

[72] To some extent, the opinions of the Van Dykes’ experts concerning the use of Gentamicin was premised on their belief that there was no reason to believe that Mr. Van Dyke had or could develop osteomyelitis as of June 20. As outlined above, the trial judge did not accept this evidence and found, based on the defence evidence, that it was reasonable for Dr. Marsh to proceed on the basis that osteomyelitis remained a real risk throughout his treatment of Mr. Van Dyke. Two of the three experts called by the Van Dykes, however, did go as far as to indicate that even if osteomyelitis was a legitimate concern on June 20, Gentamicin was still not appropriate. In their view, Gentamicin should be used only as “a drug of last appeal” and even then only on a short-term basis.

[73] Dr. Marsh testified that while he considered the use of alternative antibiotics, he decided it was best to maintain the administration of Gentamicin upon Mr. Van Dyke’s discharge from hospital on June 20. In reaching this conclusion, Dr. Marsh took several factors into consideration, including the difficulty he had had getting the infection under control and the clinical improvement shown by Mr. Van Dyke between June 14 and June 20. Dr. Marsh thought it was best to stay the course since Mr. Van Dyke was finally improving.

[74] Dr. North agreed with Dr. Marsh’s assessment that the continued use of Gentamicin was the best choice as of June 20. Dr. Wilkins, who testified as an expert for Dr. Ostrander, acknowledged that there were other antibiotics that did not involve the risk of vestibular toxicity that should have been considered as of June 20. He testified, however, that there was some risk in replacing Gentamicin with another antibiotic, given that the infection appeared to be under control as of June 20. In his opinion, there was always a risk that a different antibiotic would not be as effective.

[75] The trial judge did not analyze this conflicting evidence and did not decide whether there were alternative antibiotics that would have been medically appropriate to use instead of Gentamicin after June 20. The findings that she did make suggest conflicting conclusions. On the one hand, the trial judge found that Dr. Marsh did not consider alternatives to Gentamicin (para. 33), and did not conduct the necessary risk/benefit analysis in deciding on the continued use of Gentamicin (para. 39). These findings suggest that the other suggested antibiotics were medically appropriate alternatives. On the other hand, the trial judge found that it was medically reasonable to continue the use of Gentamicin after June 20, despite the substantial increase in the risk of vestibular toxicity. It is implicit in that finding that it was reasonable for Dr. Marsh to conclude that Gentamicin offered the best treatment against Mr. Van Dyke’s infection and that it was not appropriate to switch to another antibiotic, even though using another antibiotic would have eliminated the risk of vestibular toxicity.

[76] I will assume for the purposes of considering this argument, that the other antibiotics suggested by the Van Dykes’ experts were a reasonable medical alternative treatment as of June 20. Based on the assumption that these antibiotics were a reasonable medical alternative and given that they engaged a different risk/benefit analysis than Gentamicin, Dr. Marsh was under an obligation to tell Mr. Van Dyke about these antibiotics and the risks and benefits inherent in their use.

[77] Dr. Marsh’s obligation to disclose these alternative antibiotics, however, carried with it the further obligation that he give Mr. Van Dyke the benefit of his opinion as to whether the use of those other antibiotics was appropriate in all of the circumstances. On the findings of the trial judge, this disclosure obligation would entail Dr. Marsh telling Mr. Van Dyke that in his medical opinion, which the trial judge found to be reasonable, there was a real risk that if different antibiotics were used, Mr. Van Dyke’s infection could get out of control yet again. Dr. Marsh would have been obliged to explain to Mr. Van Dyke the potentially serious consequences for him should that occur. Finally, Dr. Marsh would have been obliged to tell Mr. Van Dyke that in his judgment, which the trial judge found to be reasonable, the risks associated with a switch to a different antibiotic outweighed the risk of vestibular toxicity associated with the continued use of Gentamicin.

[78] In summary, the findings of fact made by the trial judge establish Dr. Marsh was negligent in his failure to advise Mr. Van Dyke of the risk of vestibular toxicity, and to advise him that the risk had increased substantially by June 20. I am further prepared to assume that Dr. Marsh was also under an obligation to disclose the possibility of using a different antibiotic on June 20. That disclosure, as described above, would, however, have been qualified by Dr. Marsh’s medically reasonable judgment that it was not appropriate to change to a different antibiotic on June 20.

[79] I turn next to the question of whether Dr. Marsh’s negligent non-disclosure caused Mr. Van Dyke’s damages. This issue was not addressed by the trial judge.

[80] In civil appeals, there is a reluctance to order new trials on issues that were fully litigated, but not resolved at trial. As LaForest J. said in Hollis v. Dow Corning Corp., 1995 55 (SCC), [1995] 4 S.C.R. 634 at para. 33:

It is well established that appellate courts have the jurisdiction to make a fresh assessment of the evidence on the record where they deem such an assessment to be in the interests of justice and feasible on a practical level.

[81] In medical malpractice cases where the doctor’s negligence lies in the failure to make proper disclosure, causation depends on what a reasonable person in the circumstances of the plaintiff would have done had he or she been properly informed. This determination depends more on an evaluation of the evidence against a modified objective reasonable person standard than it does on findings of fact that turn on witnesses’s credibility and reliability. As such, the causation issue as it arises in informed consent cases can be more comfortably addressed on appeal than many other factual determinations: Haughian v. Paine, supra, at 117-118.

[82] There is no statutory impediment to this court making a finding as to whether a reasonable person in the position of Mr. Van Dyke on June 20 would have continued to take Gentamicin had he received the information to which he was entitled: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(a). I also do not understand counsel for the Van Dykes or Dr. Marsh to contend that a new trial on this issue is either necessary or desirable. I propose to decide the issue.

[83] Arndt v. Smith, supra, is the leading authority on the issue of causation as applied in medical negligence cases where the negligence consists of a failure by the doctor to meet his or her disclosure obligations. Cory J., for the majority, reaffirmed the modified objective test first described by Laskin C.J. in Reibl, supra. Cory J. said at para. 6:

The test enunciated [in Reibl] relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any “particular concerns” of the patient and any “special considerations affecting the particular patient” in determining whether the patient would have refused treatment if given all the information about the possible risks [italics in original, underline added].

[84] Later, at para. 9, Cory J. offered this explanation of the blending of the objective and subjective components of the modified objective test:

Some of the criticisms directed at the Reibl test may stem from confusion as to what Laskin C.J. intended in his adoption of a modified objective test. The uncertainty surrounds the basic premise that the test depends upon the actions of a reasonable person in the plaintiff’s circumstances. Which aspects of the plaintiff’s personal circumstances should be attributed to the reasonable person? There is no doubt that objectively ascertainable circumstances, such as a plaintiff’s age, income, marital status, and other factors, should be taken into consideration. However, Laskin C.J. didn’t stop there. He went on and stated that “special considerations” affecting the particular patient should be considered, as should any “specific questions” asked of the physician by the patient. In my view this means that the “reasonable person” who sets the standard for the objective test must be taken to possess the patient’s reasonable beliefs, fears, desires and expectations. Further, the patient’s expectations and concerns will usually be revealed by the questions posed [italics in original, underline added].

[85] Cory J. was, however, careful at para. 14 to exclude from consideration idiosyncratic concerns of a patient that did not relate to the material risks of the proposed treatment and were unknown to the physician.

[86] The court was not referred to any evidence suggesting that Mr. Van Dyke had subjective beliefs, fears, desires or expectations that would have played a role in his decision whether to continue to take Gentamicin after June 20 had he been made aware of the risks and alternatives. Mr. Van Dyke’s brief evidence as to what he would have done had he been aware of the risk of vestibular toxicity associated with the use of Gentamicin is not helpful. He was asked what he would have done when he first went into the hospital on June 2 had he been told of the risk of vestibular toxicity. He said he would have refused to take Gentamicin had he been made aware of that risk. This answer has no probative value. It rests on Mr. Van Dyke’s erroneous assumption that the risk of vestibular toxicity, even when he started to take Gentamicin, was “very great”. His answer also does not take into consideration the serious dangers Mr. Van Dyke faced if he did not get his infection under control.

[87] In the course of argument, counsel for the Van Dykes referred to Mr. Van Dyke’s relatively young age, his active lifestyle, the physical nature of his employment, and his family situation, he had a wife and four young children, as factors that would have weighed against Mr. Van Dyke continuing to take Gentamicin had he been given all of the material information to which he was entitled. These factors are properly considered in determining what a reasonable person in Mr. Van Dyke’s position would have done. I cannot agree, however, that they support the inference that he would have declined to continue taking Gentamicin. I think these factors operate both ways in the sense that they would also cause a reasonable person faced with a life-threatening infection to opt for the treatment which afforded the best chance of controlling that infection.

[88] In my view, there is little, if anything, to subjectivize the causation inquiry in this case. It turns on what a reasonable person in Mr. Van Dyke’s situation on June 20 would have done had that person been informed of the material risks and reasonable alternatives.

[89] A reasonable person in the position of Mr. Van Dyke on June 20 had the following factors to consider:

• he had been very ill with a serious infection for almost a month;
• that infection had proved resistant to treatment by antibiotics;
• there was a danger that if uncontrolled, the infection could spread to other areas of the face and brain resulting in serious disability or even death;
• his condition had improved significantly in the week prior to his discharge;
• his treating doctor thought he should continue to take Gentamicin;
• the continued administration of Gentamicin, was a medically reasonable treatment despite the added risk of vestibular toxicity;
• there was a risk that a different antibiotic would not control his infection;
• vestibular toxicity is a relatively rare side effect of the use of Gentamicin, but by June 20, Mr. Van Dyke’s risk of vestibular toxicity had substantially increased;
• vestibular toxicity is a serious condition; and
• by the time the symptoms of the condition appear, the body’s balance function has been significantly damaged and the chances of reversing that damage are unknown.

[90] I do not find it easy to say what a reasonable person in Mr. Van Dyke’s position would have done had he been fully aware of the relevant risks and alternatives available to him on June 20. The factors for and against a decision to discontinue the use of Gentamicin after June 20 are closely balanced. In the end, however, I am influenced by the fact that the continued use of Gentamicin was a medically reasonable treatment favoured by Mr. Van Dyke’s treating physician, Dr. Marsh. Absent any factors particular to the individual patient, I cannot see why a reasonable person in the patient’s position would not take the medically reasonable advice offered by the treating physician. As Professor Klar observed in Tort Law, 3d ed. (Toronto: Thomson Carswell, 2003) at 372:

[T]he causation hurdle has been an extremely difficult one for patients to overcome. There is good reason for this. Where a court has decided that a doctor’s decision to treat a patient in a specific manner, despite inherent risks or adverse effects, was a reasonable decision, it is highly unlikely that this same court will then decide that a reasonable patient, having been properly informed of the risks, would have declined the treatment. In most situations, the factors which led the court to find that the doctor’s decision to pursue a risky treatment was the right and reasonable one will also persuade the court that a reasonable patient would have accepted the treatment. This has been the experience from the cases [emphasis added].

[91] I am not prepared to find that the Van Dykes have met the onus of demonstrating, on the balance of probabilities, that a reasonable person in Mr. Van Dyke’s position on June 20, fixed with knowledge of the material risks in the continued use of Gentamicin and available alternatives, would have disregarded the reasonable medical advice of his treating physician and discontinued the use of Gentamicin. The Van Dykes failed to prove that Dr. Marsh’s negligent non-disclosure of material information caused Mr. Van Dyke’s damages.

VI

The Van Dykes’ Appeal Against the VON

[92] The VON brought a motion for non-suit following Dr. Marsh’s defence. Counsel for the VON elected to call evidence. Erika Walter, the VON nurse who was primarily responsible for Mr. Van Dyke’s homecare between June 21 and July 3, testified.

[93] Mr. Van Dyke alleged that the VON was negligent in that it failed to alert him to the symptoms associated with the side effects of Gentamicin, specifically vestibular toxicity, and failed to tell him that if those symptoms developed, it was essential that he seek immediate medical help.

[94] No one argued that the VON did not owe a duty of care to its homecare patients. Counsel for Mr. Van Dyke (neither Mr. Hillel nor Mr. Pape) did not call any expert evidence as to the standard of care applicable to VON nurses charged with the responsibility of overseeing the administration of antibiotics as part of a homecare program.

[95] The trial judge found that without such evidence, Mr. Van Dyke could not prove that the conduct of the VON fell below the standard of care required to discharge its duty of care. In her reasons granting the non-suit, she said at para. 10:

However, there must be some evidence to establish on the balance of probabilities that there was, in fact, negligence. There would have to be evidence as to the standard of care required for the VON and some expert evidence as to whether or not that standard was met in the circumstances of this case. It is not enough to show that Mr. Van Dyke’s injury was possibly caused by the VON’s negligence.

[96] On appeal, counsel for Mr. Van Dyke argued that the evidence of the applicable standard of care came from the testimony of Ms. Walter. I have read her evidence. She testified at length about her experience, her interactions with the Van Dykes, her knowledge of Gentamicin, and the steps she took to ensure that Mr. and Mrs. Van Dyke were aware of the symptoms associated with the side effects of Gentamicin. Ms. Walter did not purport to describe a standard of care applicable to the conduct of VON nurses administering antibiotics as part of a homecare program.

[97] I agree with the trial judge’s ruling. There was no evidence of the applicable standard of care and the non-suit motion was properly granted.

[98] Even if the VON motion for a non-suit should have been dismissed, the claim against the VON must fail in light of my conclusion that Mr. Van Dyke failed to prove causation. Just as with Dr. Marsh, even if the VON negligently failed to properly advise Mr. Van Dyke of the risks inherent in the use of Gentamicin, and failed to alert him to the need to seek immediate medical care if symptoms developed, there was no evidence capable of establishing, on the balance of probabilities, that Mr. Van Dyke would have been better off had he sought and received immediate medical treatment on June 30.

VII

Conclusion

[99] I would allow Dr. Marsh’s appeal, set aside the judgment and grant judgment dismissing the action against Dr. Marsh. I would not grant Dr. Marsh his costs either at trial or on appeal. On the trial judge’s findings, Dr. Marsh failed to meet his disclosure obligations to Mr. Van Dyke. That negligence, although not proved to be causative of Mr. Van Dyke’s injuries, no doubt precipitated and, to a large extent, justified these proceedings. Given Mr. Van Dyke’s ultimate inability to establish causation, justice is best served by requiring Dr. Marsh and the Van Dykes to pay their own costs.

[100] I would dismiss the appeal against the VON. The trial judge ordered Dr. Marsh to pay the costs of the VON at trial. As I would dismiss the action against Dr. Marsh, it is inappropriate that he be required to pay the costs of the VON. The Van Dykes should pay those costs if demanded in the amount assessed by the trial judge. The VON is also entitled to its costs against the Van Dykes on appeal if demanded. The appeal brought against the VON involved a single straightforward issue. I would fix the costs of the VON on a partial indemnity basis at $8,000.00, inclusive of disbursements and GST.

RELEASED: “DD” “JUN 3 2005”

“Doherty J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree Robert P. Armstrong J.A.”

[^1]: Mr. Van Dyke also sued the hospital, the Grey Bruce Regional Health Centre, and Dr. J. Ostrander, an internist who saw Mr. Van Dyke while he was in the hospital. Those claims were dismissed at trial and there is no appeal from those dismissals.

[^2]: The concept of informed consent to medical treatment is now defined in s. 11(2) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. The Act was proclaimed into force on March 29, 1996. The statutory definition contains many of the same principles found in the common law of informed consent. The extent, if any, to which the statute departs from the common law will have to be addressed if and when that issue arises.