COURT OF APPEAL FOR ONTARIO
LaFORME, ROULEAU and WATT JJ.A.
BETWEEN:
CARLOS ALEXANDRO CRUZ, by his Litigation Guardian JOSEFA CRUZ, JOSEFA CRUZ, MARCO CRUZ and JADE ZAPEDA by her Litigation Guardian JOSEFA CRUZ
Plaintiffs/Appellants
and
DR. RONALD N. ROBINS, DR. MICHAEL A. MARUNCIC, DR. G. SIMON, DR. BOULOS GHAZARIAN, DR. B. KENNEDY, LONDON HEALTH SCIENCES CENTRE formerly VICTORIA HOSPITAL CORPORATION, DR. D. BRICKER and DR. G. HALL, JACKIE SPIRES, MARIA LEMKAN, ANGELA HURTADO, TERESA GRIMMINCK, JAYNE BROUGHTON, HEATHER HOUNSELL, SUSAN BROWN and MARY PATE
Defendants/Respondent
Paul J. Pape and Susan M. Chapman for the appellants
Michael E. Royce and Eli S. Lederman for the respondent
Heard: January 21, 2008
On appeal from the judgment of Justice T. D. Little of the Superior Court of Justice dated July 28, 2006.
ENDORSEMENT
1This is a medical malpractice action in which experts were called on both sides to testify as to the appropriate standard of practice of obstetricians in Ontario in 1995. At trial, the appellants were unable to prove that Dr. Robins’ negligent failure to obtain informed consent to a mid-forceps baby delivery legally caused the damages alleged.
2After reviewing the evidence, the trial judge held that the forceps delivery caused the appellants’ son’s brachial plexis injury and brain damage. He found that Mr. and Mrs. Cruz should have been consulted and had disclosed to them the option of a caesarean section and its risks. Further, he found that they should have been advised of the risks involved in proceeding with a mid-forceps delivery. Nevertheless, the trial judge concluded that had the appellants been advised and given the choice, the same result would have occurred. In the trial judge’s words:
81[Dr. Robins’] failure to seek and obtain informed consent is of no consequence to the outcome of this case. The same procedure would have been pursued and the same results would have been experienced.
3The appellants make two basic submissions. First, they submit that the trial judge misapprehended and ignored important evidence, committing palpable and overriding error. They say the trial judge erred in concluding that, had a proper consultation occurred, Dr. Robins would nonetheless have recommended a mid-forceps delivery, and that Mrs. Cruz would have followed his recommendation. Such a conclusion is, according to the appellants, unreasonable and contrary to the evidence.
4Second, they argue that as a result of his factual errors the trial judge reduced the test on causation to one of mere paternalistic assumptions devoid of any evidentiary foundation.
5In our view the two key questions that had to be answered by the trial judge in this case were: (i) whether Dr. Robins would have recommended forceps delivery after consulting with Mrs. Cruz; and (ii) whether Mrs. Cruz would have followed Dr. Robins’ recommendation if she had known all of the risk factors of both forceps delivery and caesarean section.
Question One
6The trial judge found as a fact that Dr. Robins would have recommended vaginal delivery over caesarean section. In support of this, the trial judge first found Dr. Robins to be a credible witness, and accepted his evidence that he would have tried to deliver the baby vaginally using forceps.
7The appellants argue that, had he consulted with Mrs. Cruz, Dr. Robins would have been told by Mrs. Cruz that the baby was very large and was presenting in a very different way than in her previous pregnancies. With the benefit of this information, according to the appellants, Dr. Robins would have likely recommended a caesarean section.
8We disagree. The trial judge found that, at the time of delivery, Dr. Robins knew that the baby was large and that it was in the occiput posterior position. He had been Mrs. Cruz’s obstetrician for the few months preceding delivery and was therefore familiar with the pregnancy and Mrs. Cruz’s circumstances. Nothing Mrs. Cruz would have told him would have changed his recommendation. Dr. Robins’ evidence was clear. His practice in these circumstances would have been to attempt vaginal delivery. Further, the trial judge found, on the evidence, that a mid-forceps delivery was not an unreasonable procedure to use.
9There was sufficient evidence capable of supporting the trial judge’s findings.
Question Two
10The trial judge further found that Mrs. Cruz would have followed Dr. Robin’s recommendation. In reaching his decision, the trial judge relied on expert opinion evidence and the testimony of Mrs. Cruz.
11Dr. Steinberg, an expert for the plaintiffs, testified that, “the patient would ‘probably’ trust her doctor to recommend the right thing”. A defence expert, Dr. Owolabi, testified to the same effect that patients “invariably” follow the recom-mendation. Mrs. Cruz testified as follows:
Q. And you trusted him completely to do whatever was necessary to deliver the baby as safely as possible?
A. No, I, I trust him whatever he really need to do the best for my baby.
Q. Yes.
A. That’s what I trust.
12The appellants submit that the trial judge misunderstood the evidence of Mrs. Cruz and that the evidence quoted above (that was relied on by the trial judge) should be read as Mrs. Cruz testifying that she would not follow Dr. Robins recommendation and would choose a caesarean section where even a slight risk to the baby existed. While such an interpretation may be possible, the trial judge understood this evidence to mean that Mrs. Cruz trusted Dr. Robins and would have followed his recommendations. This is an interpretation that was open to the trial judge and he was in the best position to decide. We note that in another part of the transcript Mrs. Cruz repeated, more clearly, her reliance on Dr. Robins’ recommendations. She said that she did not question Dr. Robins’ advice “because I trust Mr. Robins. I trust the doctor. Whatever he said, I was following his directions because he’s the best person to put the, the best things to deliver my baby.”
13We would not give effect to this submission. In our view the evidence is capable of supporting the trial judge’s findings.
14The appellants then argue that in making this finding the trial judge did not take into account the information that would have been given to Mrs. Cruz if consent had been sought. The appellants urge us to conclude that, had she been given this information, Mrs. Cruz would not have followed Dr. Robins’ recommendation. Again, we disagree. Given the entire situation, including the medical disclosure she would have received at the time from Dr. Robins, it was not unreasonable for the trial judge to conclude that Mrs. Cruz would nonetheless have consented to a vaginal delivery using forceps. Just because the trial judge did not accept Mrs. Cruz’s repeated assertions that she would have chosen a caesarean section if informed of that alternative does not make his finding unreasonable.
15It is important to note that the appellants placed no evidence before the court to show that, in spite of the appellants’ trust in Dr. Robins and their inclination to follow whatever recommendation he might make, the appellants would have rejected his recommendation if consulted on the options available and attendant risks. Indeed, the only evidence on this issue was to the contrary.
16It is clear from the trial judge’s reasons that he was aware of what Dr. Robin’s discussion with Mrs. Cruz should have included, and the options available to Mrs. Cruz. Equally clear are his findings that, in spite of this, Dr. Robin’s recommendation would have been the same, and that Mrs. Cruz would have followed it. In other words, that is “the same procedure would have been pursued and the same results would have been experienced”.
17In respect of both questions, the trial judge made clear findings of fact. These are not subject to appellate reversal unless they amount to palpable and overriding error. As Armstrong J.A. of this court recently wrote in MacDonald v. Huisman (2007), 2007 ONCA 391, 280 D.L.R. (4th) 1 at para. 56:
… The palpable and overriding error standard of review is an extremely high standard for any appellant to establish. Iacobucci and Major JJ. in Housen, at para. 5, observed that the New Oxford Dictionary of English (1998) described the meaning of palpable as “clear to the mind or plain to see”: see also H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at para. 69. A palpable error to be overriding must discredit the result: see H.L. at para. 69.
18The evidence recited above was sufficient for the trial judge to justify his findings on both questions. In our view, no palpable error has been made out.
19Finally, we do not agree that the trial judge erred in his conclusion on legal causation. The trial judge found that, in all of the circumstances of this case, Mrs. Cruz would likely have proceeded with the treatment at issue even if provided with full information. His decision was not unreasonable and no further inquiry was therefore required on his part in respect of the issue of causation.
20For all of these reasons the appeal is dismissed. The respondent is awarded his costs of this appeal in the amount of $58,700 inclusive of GST and disbursements if demanded.
“H.S. LaForme J.A.”
“Paul Rouleau J.A.”
“David Watt J.A.”
