DATE: 20011003
DOCKET: C28299
COURT OF APPEAL FOR ONTARIO
LASKIN, FELDMAN and SIMMONS JJ.A.
B E T W E E N:
DARLENE BIRON DONOVAN and PAUL DONOVAN and CHRISTOPHER ANTHONY BIRON, JANA CATHERINE BIRON and DANIEL JOSEPH DONOVAN, minors under the age of 18 years by their litigation guardian, PAUL DONOVAN
Paul Donovan (in person)
Plaintiffs (Appellants)
- and -
DR. A. BARCLAY, DR. SHNIER, DR. JOHN DOE and DR. JANE DOE
Harry Underwood and Lisa Constantine for the respondents
Defendants (Respondents)
Heard: September 4, 2001
On appeal from the judgment of Justice T. David Marshall dated September 15, 1997.
BY THE COURT:
[1] The appellants, Mr. and Mrs. Donovan, sued the respondent doctors for damages for medical malpractice in the administration of an epidural anaesthetic and follow-up care to Mrs. Donovan at the birth of her third child in January, 1998. The child was born in excellent condition but Mrs. Donovan claims to have suffered on-going pain since the birth because of the doctors’ negligence. After a 22-day trial, Marshall J. dismissed the action. Mr. and Mrs. Donovan appeal.
[2] At trial, the appellants contended that the respondent Dr. Carla Shnier, a fourth-year resident in anaesthesia, was negligent in her attempts to insert the epidural, thus causing both nerve damage and a tear in Mrs. Donovan’s dural sheath. Mrs. Donovan claimed that, because of the tear, she suffered a low pressure headache, which persisted until the time of trial. Following Dr. Shnier’s failed attempts, the epidural needle was successfully inserted by the staff anaesthetist, the respondent Dr. Barclay. However, the appellants contended that Dr. Barclay and Dr. Shnier were negligent in their follow-up care of Mrs. Donovan at the Toronto General Hospital.
[3] In dismissing the action, the trial judge made credibility findings in favour of Dr. Shnier and Dr. Barclay. He concluded that both doctors met the required standard of care in their administration of the epidural and follow-up care. Importantly, he found that Mrs. Donovan did not have a dural tear and that her nerve roots were not damaged by Dr. Shnier’s needle insertions.
[4] The trial judge also held that Mrs. Donovan was adequately informed of the risks of epidural anaesthesia, that she accepted those risks, and therefore that she gave her informed consent to the epidural. He found no causal connection between Mrs. Donovan’s complaints and the respondents’ care. Although the trial judge recognized the reality of Mrs. Donovan’s symptoms and was sympathetic to her plight, he was not persuaded that the appellants had established medical malpractice. Finally, he concluded that the appellants’ claim was barred by the limitation period in s. 17 of the Health Disciplines Act, R.S.O. 1990, c. H.4.
[5] Mr. Donovan argued the appeal on behalf of his wife and himself and he argued it well. His main point was that the appellants had called a number of medical experts to support their claim, yet the trial judge did not refer specifically to any of their evidence in his reasons. It would have been preferable had the trial judge referred to the expert evidence led by the appellants, but the reasons as a whole show that the trial judge accepted and relied on the defence expert evidence. The failure to refer expressly to the appellants’ expert evidence does not in this case amount to a reversible error.
[6] Therefore the appellants’ appeal turns entirely on over-turning the trial judge’s many findings of fact against their position. A trial judge’s findings of fact are, of course, entitled to deference on appeal. An appellate court is justified in interfering only if a trial judge’s finding is tainted by a palpable and over-riding error.
[7] The trial judge made no such error in finding that the epidural did not cause a dural tear or damage to Mrs. Donovan’s nerve roots. That finding alone is fatal to the appellant’s case and it is amply supported by the following evidence:
• Both Dr. Shnier and Dr. Barclay, whose evidence the trial judge accepted, testified that Mrs. Donovan did not suffer a dural tear.
• A dural tear causes a low pressure headache. However, the signs and symptoms of low pressure headache or nerve damage were not present while Mrs. Donovan was hospitalized. Her chief complaint at the time was neck pain, which is not a symptom of a low pressure headache.
• Both Dr. Edmeads (a world renowned headache expert) and Dr. Mailis testified that Mrs. Donovan did not suffer a low pressure headache. In Dr. Edmead’s opinion she suffered an analgesic rebound headache.
• Mrs. Donovan underwent numerous x-rays, CT scans and MRIs, none of which showed evidence of a dural tear.
• After her discharge from the hospital Mrs. Donovan underwent many neurological examinations by neurologists, a neurosurgeon, a physical medicine specialist and her family doctor, all of which showed that she was neurologically normal.
[8] This finding of no dural tear or nerve damage, which in our view is supported by the evidence, is sufficient to dispose of the appellants’ appeal. Although not necessary to our decision, we also agree with the trial judge’s conclusion that the appellants’ claim was barred by the limitation period in s. 17 of the Health Disciplines Act.
[9] The appeal is therefore dismissed with costs.
“J. Laskin J.A.”
“K. Feldman J.A.”
“J. Simmons J.A.”