DATE: 20020531
DOCKET: C34723

COURT OF APPEAL FOR ONTARIO

RE: WENDY LOCKE and MICHAEL LOCKE (Plaintiffs/ Appellants) v. DR. MICHAEL SMITH and RUDD CLINIC (Defendants/Respondents)

BEFORE: McMURTRY C.J.O., LASKIN and CHARRON JJ.A.

COUNSEL: Allan D.J. Dick for the appellants Peter H. Griffin and Nina Bombier for the respondents

HEARD: May 9, 2002

On appeal from the judgment of Justice R. Pitt dated March 24, 2000, reported at [2000] O.J. No. 972 (S.C.J.).

E N D O R S E M E N T

[1] The appellant Wendy Locke suffered a perforated bowel after a routine colonoscopy and polypectomy performed by Dr. Michael Smith at the Rudd Clinic. During the polypectomy Dr. Smith discovered a small polyp and removed it by electrocautery. Ms. Locke alleged that Dr. Smith was negligent in failing to verify the power setting on the electrocautery machine before proceeding with the polypectomy and that using the machine at too high a setting caused her injury. The trial judge dismissed the action.

[2] The appellants appeal on the main ground that the trial judge erred in failing to determine what caused Ms. Locke’s perforated bowel. The appellants submit that the trial judge could not determine whether Dr. Smith met the required standard of care until he first decided the question of causation. In making this submission the appellants rely on the decisions of this court in Meringolo (Committee of) v. Oshawa General Hospital (1991), 46 O.A.C. 260 and Grass (Litigation Guardian of) v. Women’s College Hospital (2001), 200 D.L.R. (4th) 242.

[3] In a general sense both sides accept that Ms. Locke’s perforated bowel was caused by the cauterization process. The appellants contend, however, that the trial judge had to determine what it was about the cauterization process that resulted in Ms. Locke’s injury and that he did not do so. They point to para. 19 of the trial judge’s reasons in which he said, “As there is no breach of the standard of care, it is therefore not necessary to make any determination of the issue of causation.”

[4] We do not accept the appellants’ submission. Although the trial judge did not determine precisely how the cauterization process caused Ms. Locke’s perforated bowel, he made findings of fact that were inconsistent with the appellant’s theory of causation. The appellants’ theory was that Dr. Smith did not check the setting on the cauterization machine and that it was set too high – higher than the normal level of six. But the trial judge rejected this theory. He found at paras. 14-15:

Given the expert evidence, the setting of the electrocautery machine cannot be dispositive of the issue. In any event, the only available evidence was that the electrocautery machine was set at the usual level of 6. At least, the best recollection of nurse Young was that the setting was at this normal level. The injury suffered by the plaintiff, while unfortunate, was a known risk of the procedure. The plaintiff gave her informed consent to the surgery. In performing the surgery, Dr. Smith met the required standard of care.

In any event there was no proof that the electrocautery machine was set at a rate that was “too high” as there was no evidence of what level would be categorized as “too high.” That the electrocautery machine may have been set at a higher level than usual is not enough to hold a physician liable for malpractice.

Further, the trial judge concluded, at para. 17, that the injury resulted from a risk inherent in the cauterization process, not from a failure to check the setting on the machine:

Any injury that occurred was as a result of a risk inherent in the procedure itself, not in the risk associated with any failure to check the setting of the electrocautery machine. The injury did not flow from any failure on the part of Dr. Smith to meet the standard of care required of a physician performing the polypectomy procedure.

[5] Having rejected the appellants’ theory of causation by his factual findings, the trial judge was justified in concluding that Dr. Smith had met the required standard of care. He was not required to go further and find how the cauterization caused the perforated bowel. Finding how the cauterization process caused Ms. Locke’s perforated bowel would not have changed the trial judge’s conclusion that Dr. Smith was not negligent. For that reason the principle in cases such as Meringolo and Grass does not apply. See Liuni (Litigation Guardian of) v. Peters (2001), 151 O.A.C. 389.

[6] The appellants, however, make one alternative submission in support of their appeal. They submit that in rejecting their factual theory of causation the trial judge both disregarded and misapprehended material evidence. We do not accept this submission. On our reading of the record the trial judge’s findings referred to earlier were reasonably supported by the evidence and are therefore entitled to deference on appeal. We note especially the following excerpt from the nurse’s evidence that the cauterization machine was at its normal setting of 6 for Ms. Locke’s polypectomy:

Q. And we’ve already had a description, I think, of what each of these bits and pieces are. There’s one component there, if I can be generic in nature, which is marked with the number 6. Do you see that 6 and an arrow?

A. Yes.

Q. What is that?

A. That’s the control setting for the energy.

Q. And is that something that you have to deal with in the course of setting up this equipment?

A. That’s right.

Q. And are you able to tell us how you dealt with it that day?

A. I dealt with it in the same way I deal with it every day which is in the morning when I’m initially setting up the room, I set the cautery machine at six and I don’t touch it again unless I have to increase energy based on doctor’s direction.

Q. Well, when we got to the point of Wendy Locke being dealt with, at what setting did you have it?

A. Six.

Q. And did that setting, to your recollection, at all change that day?

A. No. We never increase energy for a small polyp like that.

[7] We note as well that the appellants did not call any expert evidence either on what might have been an inappropriate setting or on the appropriate standard of care. Moreover, none of the experts called by the defence testified that Dr. Smith fell below the required standard of care.

[8] The appeal is therefore dismissed with costs fixed in the agreed amount of $10,000 inclusive of disbursements and G.S.T.

“R.R. McMurtry CJO”

“John Laskin J.A.”

“Louise Charron J.A.”