COURT OF APPEAL FOR ONTARIO

DATE: 20000725

DOCKET: C29607

CARTHY, AUSTIN AND MOLDAVER JJ.A.

B E T W E E N :

ESTATE OF JIANSU WEI, by his
personal representative and
administratrix, QIONG LI WEI, QION
LI WEI, XIANG FU WEI, LIU TU LU,
JIAN HUA WEI, LUCY WEI, infant by
her Litigation Guardian, QIONG
LI WEI

Plaintiffs
(Appellants)

-and -

ROBERT DALES

Defendant
(Respondent)

Richard R. Marks
for the appellants

Domenic A. Crolla and
Todd J. Burke
for the respondent

Heard: June 14 and 15, 2000

On appeal from the judgment of Chadwick J. made on April 3, 1998
at Ottawa.

AUSTIN J.A.:

INTRODUCTION

[1] The appellants are the widow, child and other relatives of
the late Jiansu Wei. They appeal from the decision of Chadwick
J. on April 3, 1998, after a trial without a jury, dismissing the
plaintiffs’ action for damages for medical malpractice resulting
in the death of Jiansu Wei.

FACTS

[2] Jiansu Wei (Wei) came to Canada from China in 1989 at about
age 31. He already had a Master’s degree. He obtained another
Master’s degree, in Physics, from the University of Windsor. He
then entered the Medical Physics course at Carleton University in
Ottawa as a Ph.D. candidate, expecting to graduate in the spring
of 1995. As part of the doctoral course he was a teaching
assistant at Carleton and a research assistant at the National
Research Council.

[3] The appellants, his wife Qiong Li Wei and daughter Lucy Wei,
followed him to Canada in 1990. His wife was a lab technician.

[4] In June 1992 Wei was in hospital and was diagnosed with
tuberculosis. He was put on a regimen requiring him to take a
number of drugs over a period of eighteen months. Before he left
hospital he was turned over to the care of Dr. Robert Dales
(Dales). Dales operated a clinic at Ottawa General Hospital. He
explained to Wei the nature and purpose of the drugs. Because
they were toxic and because tuberculosis is contagious, Dales
advised Wei that he must be seen at the clinic every month so
that the effect of the drugs could be monitored.

[5] Wei was discharged from hospital on June 19, 1992 and he
made follow-up visits on June 25, July 9, August 13, September
24, November 13, all in 1992 and on February 18, 1993. By the
latter date it was clear that Wei had suffered extensive damage
to his liver and that he had hepatitis. He was transferred to
London University Hospital on February 20, 1993 for treatment
including a possible liver transplant. He died there on March
15, 1993.

[6] This action was brought by the plaintiffs against both
hospitals and a number of doctors. It went to trial against
Dales alone and was dismissed by Chadwick J. after trial. An
appeal was brought to this court on a number of grounds. After
hearing counsel for the appellants we called upon Dales on three
grounds only, namely, recusal, negligence in monitoring Wei, and
causation.

RECUSAL

[7] The argument respecting recusal requires consideration of
events following the pre-trial at which it was agreed that
liability and damages would be tried separately in that order.
Subsequently, the plaintiffs changed counsel. The new counsel
obtained further reports on Wei’s condition and appearance in the
first half of January, 1993 and consequently decided that
liability and damages should be tried together.

[8] It was not clear to counsel how this was to be achieved and
on November 28, 1997 he wrote to Chadwick J. as Regional Senior
Judge for advice. In his letter counsel stated that:

… the pre-trial judge felt that there was a real question as to whether liability would ever be established and ordered that the trial should be limited to the issue of liability.\

[9] Counsel went on in his letter to outline and discuss the
issue of causation and to enclose copies of letters from two
proposed witnesses on the subject, one an expert on the subject
of causation and the other an acquaintance of Wei who would
testify as to his observations of him in the first half of
January, 1993. Neither of these two letters was produced to this
court.

[10] On December 2, 1997 counsel received the reply of Chadwick
J., which reads in part as follows:

This case is one of the oldest cases in our system. A trial date has been set for December 8, 1997. As I now understand your position is that you want to include damages with the liability issue. This is contrary to the order of the pre-trial judge, Morin J. who felt your case on liability was so tenuous that the liability issue should be tried first.

As we are now only one week from trial, I am not prepared to change the order, this of course is subject to the discretion of the trial judge.

….

It appears to be the problem has developed as a result of you not obtaining a medical opinion until 1997.

[11] Counsel for the appellant responded on December 3, 1997. He
pointed out that the case would not be reached for trial until
late in January or possibly February and suggested that there was
time to prepare to deal with the issue of damages as well as
liability. He went on to say:

As you are aware, I was not involved in the pre- trial since I have only recently been retained to conduct the trial in this matter. However, I am informed that until the pre-trial, the issue between the parties had seemed to be solely a question of whether the doctor had properly provided adequate surveillance of the patient in accordance with the existing protocol. It was at the pre-trial that the issue was raised that even if he had done so, the patient would have succumbed in any event because there had been no symptoms during the month of January. It was as a result of this, of course, that the pre-trial judge formed the conclusion that the matter of liability appeared to be tenuous. I have, for your assistance, enclosed his note from the pre-trial in this regard.

Similarly, of course, this was what triggered the additional medical reports which have been previously provided to you and which make it clear that the issue of liability can no longer be considered as “tenuous”.

[12] The pre-trial judge’s notes that counsel enclosed with his
letter are included in the appeal book. They are reproduced in
such fashion as to be largely illegible. They do, however,
conclude with the statement that: “Accordingly I would dismiss
the action”.

[13] On December 9, counsel for the defendant doctor wrote to
Chadwick J. stating that the order dividing the trial was
appropriate and that if dissatisfied the plaintiff should have
appealed. Counsel went on to argue, however, that waiting to
make the motion at trial was unacceptable and asked that the
matter be addressed sooner so that extra costs preparing for the
damage issue would not be incurred.

[14] Counsel for the plaintiff wrote to Chadwick J. the same day
urging that the matter be dealt with “at this stage”. In the
result, the resolution of the question whether liability and
damages should be tried together was not dealt with before trial.

[15] The action came on for trial on January 12, 1998. At the
outset, counsel for the plaintiff made two motions, one for
recusal and the other for trial of liability and damages
together. Recusal was asserted first, on the basis of a
reasonable apprehension of bias.

[16] Rules 50.03 and 50.04 deal with pre-trial conferences and
provide as follows:

50.03 No communication shall be made to the judge or officer presiding at the hearing of the [trial] … with respect to any statement made at a pre-trial conference, except as disclosed in the memorandum or order under rule 50.02.

50.04 A judge who conducts a pre-trial conference shall not preside at the trial of the action … .

[17] In his reasons dismissing the motion for recusal, Chadwick
J. indicated that having made his decision on the basis set out
in the letter of December 2, the later materials, including the
notes of the pre-trial judge, were not brought to his attention
nor reviewed by him. He went on as follows:

Mr. Marks acknowledges that I was not the pre-trial judge and my only involvement was the correspondence referred to. I do not see how Rule 50.03 and 50.04 and the decision in Bell Canada v. O&Y [(1994), 1994 CanLII 239 (ON CA), 17 O.R. (3d) 135 (C.A.)] has any application to the facts in this case. There is no statutory restriction prohibiting me from hearing the trial. The fact that I have been improperly informed by plaintiffs’ counsel of the pre-trial judge’s views as to liability does not bring into operation Rule 50.04. The question then is whether his clients would have a reasonable apprehension of bias because of my involvement in this administrative procedure and the information provided by their own counsel.

[18] He then went on to apply the test laid down by Laskin, C. J.
in Committee for Justice and Liberty v. National Energy Board
1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 391 and concluded as follows:

Turning to the facts in this case, I cannot see how knowing of the pre-trial judge’s views on liability would preclude me from conducting the trial of this action. I do not see how a reasonably informed person could conclude based upon this conduct that a judge would not be entirely impartial in conducting the trial.

[19] Despite the trial judge’s statement to the contrary, R.50.03
does apply to the facts of this case. Rule 50.03 was drafted and
enacted precisely to avoid what occurred here. The fact that it
occurred by reason of the error of counsel for the plaintiff is
irrelevant in the circumstances. What is relevant is the fact
that Chadwick J. received material which, if he were going to be
the trial judge, he should not have seen, namely the pre-trial
judge’s assessment of the question of liability. The fact that
the assessment came to his attention, by whatever means, gave
rise to the questions of whether he could, and whether he should,
act as the trial judge.

[20] In my view, in the best of all worlds, Chadwick J. having
received the information, should not have sat as the trial judge.
It is preferable that a judge in his position not be required to
decide whether he can sit as the trial judge.

[21] That, however, does not end the matter. One of the frequent
reasons given for trying liability separately from damages is
because liability is problematic. Accordingly, Chadwick J., as
an experienced trial judge, might well have suspected that that
was the reason for splitting the trial. The fact that he
received this information in the way he did, therefore, while
offending R.50.03, should not disqualify him from taking the
trial in these circumstances.

[22] Had he received further or other information tending to
influence his view of either the plaintiff or the defendant or to
“poison his mind” in some fashion respecting the trial, then
serious consideration of recusal would have been mandatory.
There is no evidence of any such information or knowledge having
come his way and accordingly, no criticism of his decision not to
withdraw can be made.

FAILURE TO FOLLOW-UP

[23] The allegation that Dales was negligent in failing to follow-
up or to monitor Wei requires some examination of the system
involved.

[24] Dales did not have a private practice but operated a clinic
within the Ottawa General Hospital. Tuberculosis is highly
communicable and accordingly Wei was required to take treatment.
The alternative would have been to be quarantined. The monthly
visits were required not just for Wei’s benefit but for the
protection of the public as well. Because of the danger of
contagion, the Ottawa-Carleton Health Department (the Health
Department) was part of the follow-up system, as was Wei’s family
doctor, Dr. Linehan (Linehan).

[25] The dates of Wei’s follow-up visits were set out earlier.
On the July 9th visit Dales was concerned that Wei might not be
taking one of the prescribed drugs. Dales had his office contact
the Health Department to request that a nurse visit Wei at home
to review his medications and ensure compliance. The records
indicate that such a visit was made, that the prescribed
medications were being taken, and that Wei had indicated his
intention to comply. Dales was advised of these matters. His
note of August 13, 1992 to Linehan reads in part as follows:

I had Public Health nurse visit his home. She felt that he and his wife were very compliant. His wife is a lab technician and her father was a radiologist. They understand the problem with non-compliance and resistance.

[26] The visits to Dales were not perfunctory. In August it was
determined that Wei’s tuberculosis was resistant to one of the
prescribed drugs. The drug was discontinued and another
substituted.

[27] The system involved Dales handing to each of his patients,
on leaving, a slip of paper indicating whether they were to be
seen in a week, a month, or whatever period. It was up to the
patient on leaving to check in with the secretary to get a
specific appointment, which would then be entered in the
computer. This system was run by the hospital, not by Dales.
Each day he would receive from the hospital a list of the
patients who had appointments for that day. If a patient had not
made an appointment, he or she would be “lost” to the system.
Dales had no means of tracking such patients. He testified,
however, that if somehow he had been reminded of Wei, when the
latter did not show up in October, December and January, he would
have had the hospital get in touch with Wei.

[28] The evidence does not reveal the time span between the
request for an appointment and the appointment itself. Wei came
to see Dales on November 13 and February 18. No findings were
made as to when the appointments for these visits were made and
no evidence was referred to from which such findings could be
made with confidence. In this regard reference can be made to
the “progress notes” kept by the Health Department. Under date
of January 26, 1993 a note respecting a telephone call reads “CL
[client] contacted – stated compliant with meds. had stomach
surgery one and one half mos. ago. To call Dales tomorrow re
date of next appointment. Encourage continued compliance.”
(Emphasis added.)

[29] The time spans are important. Dales’ instructions to Wei
were explicit: if he had any untoward symptoms he was to stop
taking the medications and contact Dales immediately. Wei did
have untoward symptoms in early November and again in late
January or early February. On both occasions he stopped taking
his medications. It is not known with any degree of certainty
however, when he made the appointments for November 13 and
February 18.

[30] On November 13, Wei saw Dales and complained of stomach
pain, vomiting and diarrhea. Dales ordered liver function tests
which showed a mild elevation of one liver enzyme. Dales
referred Wei to Dr. Rochon, a gastroenterologist, who diagnosed a
pyloric obstruction due to peptic ulcer disease. Wei was
admitted to hospital and a Dr. Lorimer operated on him on
November 20, 1992.

[31] The surgery involved a partial removal of the stomach. Dr.
Henderson, who had first started Wei on an anti-tuberculosis
regimen in June, re-started him on his anti-tuberculosis
medications on November 23.

[32] Dales had no involvement in Wei’s care during this hospital
admission. According to Dales’ evidence, he was not informed of
the outcome of Wei’s consultation with Dr. Rochon, nor of his
admission to hospital for stomach surgery.

[33] Wei was discharged from hospital on November 27 with
instructions to return for follow-up with his surgeon Dr. Lorimer
in a week. During that week Wei was seen in Emergency,
complaining of stomach pain and cramping for which analgesics
were prescribed. On December 2, Wei returned to Dr. Lorimer who
noted that Wei was gaining weight and “looking good”.

[34] On January 12, 1993 Wei returned again to Dr. Lorimer. He
weighed 120 lbs. – almost 20 lbs. heavier than at the time of his
surgery. Dr. Lorimer noted that Wei was doing very well but had
a little bit of “late dumping syndrome”. “Dumping syndrome” is a
group of symptoms that sometimes occurs after stomach operations,
particularly gastrectomy. During or shortly after a meal,
especially one rich in carbohydrates, the patient feels weak and
may sweat and become pale. The attack lasts up to 30 minutes and
is caused by rapid stomach emptying, leading to falls in blood
sugar and the draining of fluid from the blood into the
intestine. Avoidance of carbohydrate meals may relieve the
syndrome, but further surgery is sometimes required. According
to Dr. Lorimer, in Wei’s case the syndrome manifested itself in
bouts of dizziness which were relieved by eating.

[35] Dr. Lorimer is a general and vascular surgeon; he has a sub-
specialty in hepato-biliary surgery. His evidence indicated a
certainty in his ability to distinguish between the symptoms of
late dumping syndrome and of hepatitis. Dr. Lorimer testified
that on January 12, 1993 Wei showed no sign of hepatitis.

[36] Wei was next seen in Emergency at Ottawa General Hospital on
February 13, 1993 complaining of abdominal pain, nausea, vomiting
and concentrated urine. He said he had discontinued his
medications ten days earlier, having experienced adverse side
effects. Blood work was performed and he was discharged on the
understanding that he would see Dales for a follow-up visit
scheduled for February 18.

[37] On February 17 , Wei called Dales’ office and arrangements
were made for Dales to see him in Emergency. Wei, however, did
not appear on the 17th, but did show up for his appointment at
Dales’ clinic on the 18th. Wei said he had experienced nausea,
vomiting, anorexia and malaise for about two weeks. He had
stopped his medications two weeks earlier. Signs of jaundice
appeared on February 13. His condition was diagnosed as sub-
fulminant to fulminant hepatitis. His condition was serious. He
was suffering from acute liver failure. On February 20, he was
transferred to London University Hospital where he died on March
15, 1993. The death summary prepared on March 23, 1993 at
University Hospital concludes as follows:

In summary, the young Chinese man died of acute liver failure of unknown cause. An adverse reaction to anti-tuberculous medication which was appropriately prescribed remains a possibility. Emergency liver transplantation in the setting of active tuberculosis was strongly contraindicated and unfortunately we were not able to help this young man.

[38] Wei did not see Dales in October. It appears that no
appointment was made. Nothing appears to have come of this
failure. Wei showed up on November 13 and was checked and
referred to Dr. Rochon.

[39] Wei did not see Dales in December, 1992 or January, 1993.
Again, nothing appears to have come of these failures. He was
seen by Dales on November 13, by Dr. Rochon on November 16, by
Dr. Lorimer on November 20 and by Drs. Lorimer and Henderson on
November 23. He was seen in Emergency during the week following
November 27 and by Dr. Lorimer on December 2 and January 12. Dr.
Lorimer testified that when he examined Wei he was well aware he
was being treated for tuberculosis. Dr. Lorimer saw nothing on
January 12 to suggest any problem.

[40] The plaintiff called witnesses Dr. Ross and Dr. Shortt (not
medical doctors) to establish that Wei’s eyes were jaundiced by
January 11, 1993. Mrs. Wei testified that there was another sign
of toxicity by January 11 or 12, namely Wei’s complaint that he
did not wish to eat food prepared in oil. The trial judge heard
all of these witnesses and preferred the evidence of Dr. Lorimer
over that of Mrs. Wei, and Drs. Ross and Shortt. This court is
in no position to find that the trial judge erred in this regard.

[41] According to the evidence, the follow-up system employed
with respect to Wei was the standard observed in the profession.
That, of course, does not end the enquiry. As Sopinka J. said in
ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at 697:

…. where a custom of a profession ignores the elementary dictates of caution, it is open to a court to find the professional person negligent. Thus, even if a doctor practises in accordance with common professional practice, he will be liable if that practice is wanting.

[42] Assuming that the failure to be seen regularly on a monthly
basis caused or contributed to Wei’s death, (an assumption which
cannot be sustained in view of my conclusion on causation) there
cannot be any doubt that the system failed him. It is far from
clear however, that the failure is attributable to Dales.

[43] The system consisted of Dales, the hospital, the Health
Department, Wei himself and to some degree Wei’s family doctor.
There was a good deal of evidence as to Wei’s ability to
communicate and to understand English. Doubtless he was not
perfect, but he was a highly intelligent and educated person and
there cannot be any doubt that he was aware of the danger of the
drugs he was taking and of the necessity of seeing Dales monthly.
Yet he failed to do so, and why he failed remains a mystery.

[44] The plaintiffs called Dr. Dick Eric Zoutman to establish
that the system followed in Ottawa was inadequate and that a
better system was available. The trial judge dealt with Dr.
Zoutman’s evidence as follows:

Dr. Zoutman who practices in Kingston was more critical of Dr. Dales and his follow-up system. He was of the opinion that Mr. Wei should have been placed on directly observed therapy (DOT). It was noted that this DOT was not available in Ottawa in 1992, and was not implemented until 1995. I found the evidence of Dr. Zoutman helpful however when it came to the question of standard of care, his being much higher than the standard recognized by his peers.

In assessing the conduct of Dr. Dales it must be measured against other teaching hospitals with clinical settings.

[45] In the end the trial judge made no express finding in this
regard. A careful review of this evidence provides no basis for
a finding against Dales.

CAUSATION

[46] The issue of causation turns upon the factual issue as to
when there was any indication that the prescribed medications
were causing problems. In this regard the plaintiff Mrs. Wei
relies upon her own evidence and that of Drs. Ross and Shortt.
Their evidence is that there were signs of problems by January 11
or 12, 1993. The plaintiff’s case is that had Dales followed-up
with Wei in January, signs of hepatitis would have been
recognized, the medications would have been stopped and Wei would
have been saved.

[47] As noted earlier, Dr. Lorimer’s evidence was that on January
12, Wei was showing no signs of hepatitis. The trial judge
accepted the evidence of Dr. Lorimer over that of Mrs. Wei and
Drs. Ross and Shortt. It follows that had Dale seen Wei in
January, Dales would not have detected signs of hepatitis and
would not have stopped the medication. In those circumstances,
Wei would have continued to take his medication, as in fact he
did, and he would have experienced difficulty at the end of
January or the beginning of February, as in fact he did.

[48] On this analysis, the trial judge concluded that the lack of
follow-up by Dales did not cause or contribute to Wei’s death.
The analysis depends upon the trial judge’s preference for the
evidence of Dr. Lorimer over that of Mrs. Wei and Drs. Ross and
Shortt. This court has no basis upon which to quarrel with the
trial judge’s finding in that regard.

[49] The appeal must therefore be dismissed with costs.

Released: July 25,2000

“Austin J.A.”

“I agree J.J. Carthy J.A”

“I agree M. Moldaver J.A.”