DATE: 20020429 DOCKET: C36201
COURT OF APPEAL FOR ONTARIO
CATZMAN, LASKIN and BORINS JJ.A.
BETWEEN:
BRADLEY ALLEN CONNELL, RAYMOND E. CONNELL, LAUREL E. CONNELL and SCOTT E. CONNELL
Respondents
- and -
DR. RICHARD TANNER
Appellant
Counsel: Kirk F. Stevens for the Appellant John J. Morris for the Respondents
Heard: April 9, 2002
On appeal from the judgment of Justice Maurice Cullity dated March 26, 2001.
LASKIN J.A.:
[1] A doctor who treats a patient in accordance with a respectable body of medical opinion – even if it is a minority opinion – will not normally be held liable in negligence. The rationale for this principle is that courts lack the institutional competence to decide between reasonable medical practices.[^1] The sole question on this appeal is whether the trial judge failed to apply this principle.
[2] On January 30, 1997, the respondent Bradley Connell, then 20 years old, went to see his family doctor, the appellant Dr. Tanner, and told him about a lump on his right testicle. Dr. Tanner found no lump and essentially told Mr. Connell he need not be concerned. Ten months later, in November 1997, the testicle was found to have a large cancerous tumour and was removed. Further examination revealed that the cancer had spread and Mr. Connell underwent additional surgery and chemotherapy. Fortunately, Mr. Connell’s prognosis is good.
[3] Mr. Connell sued Dr. Tanner for medical malpractice. The trial judge, Cullity J., found Dr. Tanner negligent either for failing to detect the lump on Mr. Connell’s right testicle or for failing to impress on his patient the potential seriousness of his condition and failing to recommend further testing.
[4] In concluding that Dr. Tanner was negligent, the trial judge accepted the evidence of the respondents’ expert, Dr. Frank Martino, to establish the appropriate standard of care of a family practitioner. The appellant contends that the trial judge erred in finding him negligent by ignoring a respectable body of medical opinion contrary to Dr. Martino’s opinion. Liability alone is in issue on this appeal as the parties have agreed on the measure of damages.
[5] Liability turns on what occurred on Mr. Connell’s visit to Dr. Tanner’s office on January 30, 1997, on the condition of Mr. Connell’s right testicle on that day, and on what occurred afterwards. The trial judge made findings of fact on all these matters, which are not challenged on this appeal. To put the liability issue in context I will briefly set out these findings of fact.
When he went to see Dr. Tanner on January 30, 1997, Mr. Connell was aware of a small lump on the outside of his right testicle and he asked his doctor to look at it.
Dr. Tanner examined Mr. Connell’s testicle for 10 to 15 seconds but did not detect the lump.
Nonetheless, a lump did exist on January 30, 1997 and that lump was the tumour that developed and grew in size over the next 10 months.
Mr. Connell complained to Dr. Tanner about soreness and pain around his testicle. Although testicular tumours are characteristically painless, they are not always so. Moreover, the lump in Mr. Connell’s right testicle on January 30, 1997 was itself painless.
When Mr. Connell asked for an explanation of his symptoms, Dr. Tanner told him a number of possibilities, including the existence or previous existence of a cyst.
Dr. Tanner also told Mr. Connell to return if his symptoms recurred, persisted, or worsened. But he did not inform Mr. Connell of the potential seriousness of the existence of a lump on the testicle or otherwise bring home to him the urgency of seeking medical attention if the size of the testicle grew noticeably in the following months. In substance, Dr. Tanner told Mr. Connell that he had nothing to worry about.
Consistent with what Dr. Tanner told him, Mr. Connell delayed having his testicle further examined for months after he noticed that it had increased in size.
The tumour was identified as cancerous in November 1997 and Mr. Connell’s testicle was removed.
[6] Testicular cancer is rare. Dr. Tanner had seen only three cases of it in 36 years of practice. It is, however, most commonly found in 15 to 30-year old males. Despite its rarity, Dr. Martino, a family practitioner, gave the following expert opinion on which the trial judge relied to establish the standard of care:
In Dr. Martino’s opinion, if the patient and the physician do not agree that there is no lump, the latter should either recommend ultrasound testing, make a firm follow-up appointment for a reassessment in 2-3 months or, at the very least, impress upon the patient that the existence of a tumor is one of the possible explanations for the symptoms he feels and the seriousness of the situation if it turns out to be cancerous so that the patient is aware of the urgent need for a further re-examination if the symptoms persist or worsen.
[7] On the trial judge’s findings of fact, Dr. Tanner did not give the advice that Dr. Martino says he should have given. Dr. Tanner, however, submits that a respectable competing body of medical opinion suggests Dr. Martino’s proposed advice is inappropriate. In particular, Dr. Tanner contends that many doctors would not advise a young patient of the possibility of a cancerous tumour for fear of needlessly alarming the patient. He relies on the evidence of his own expert, Dr. Hayman, who testified that if he could not feel the lump he would not mention the possibility of a tumour because “the anxiety that one would provoke in that particular individual would far exceed the gains that might be achieved by that patient who has come to you with a concern.” Thus, the appellant submits that the trial judge erred by choosing between two competing medical practices and founding liability on his preferred choice.
[8] There are three answers to this submission. First, the trial judge did not choose between two competing opinions. He had before him only one opinion on the appropriate standard of care of a family practitioner, that of Dr. Martino. Dr. Hayman is a urologist, not a family practitioner, and he testified only about what he would do, not about the standard of care of a family doctor.
[9] Second, and to my mind most important, I do not consider the gravamen of Dr. Martino’s advice to turn on whether the word “tumour” or “cancer” is mentioned. I can appreciate that a compassionate doctor may be reluctant to alarm a patient, perhaps needlessly, by advising of the possibility of testicular cancer. But a prudent and compassionate doctor would nonetheless impress on the patient the importance of doing something more, of at least having the testicle further examined. That is the substance of Dr. Martino’s advice. And it is advice that Dr. Tanner did not follow. Instead, Dr. Tanner left Mr. Connell with the impression that he had nothing to worry about. Thus, although Mr. Connell was concerned enough about the lump to report it to Dr. Tanner in the first place, he was sufficiently assured by Dr. Tanner’s advice to do nothing about it for many months even though it continued to grow in size.
[10] Third, a fair reading of the trial judge’s reasons shows that he found Dr. Tanner negligent either for failing to give the advice suggested by Dr. Martino or for failing to detect the lump when he perfunctorily examined Mr. Connell’s testicle on January 30, 1997. The failure to detect the lump is by itself an adequate basis to support the finding of negligence.
[11] I would dismiss the appeal with costs. I would fix the respondents’ costs on a partial indemnity scale at $7,500.
“John Laskin J.A.”
“I agree: M.A. Catzman J.A.”
“I agree: S. Borins J.A.”
Released: April 29, 2002
[^1]: See Lapointe v. Hopital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351 and ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674.