DATE: 20050204

DOCKET: C40027

COURT OF APPEAL FOR ONTARIO

LASKIN, ROSENBERG and LaFORME JJ.A.

B E T W E E N :

DONNA LURTZ and MARY LURTZ

Marc J. Somerville Q.C. ,

and Eric Lay

Plaintiffs

for the appellants

(Respondent/

Appellant on cross-appeal)

• and -

CATHERINE DUCHESNE, PHYLLIS HIERLIHY, WILLIAM MORRISH and ADNAN HADZIOMEROVIC

Petra G. Hagen and

Donna M. Crabtree

for the respondent

Defendants

(Appellants/

Respondents on cross-appeal

Heard: December 22, 2004

On appeal from the judgment of Justice Paul F. Lalonde of the Superior Court of Justice dated April 16, 2003 and from the judgment on costs dated April 26, 2004.

ROSENBERG J.A.:

[1] The appellants appeal from the judgment of Lalonde J. in a medical malpractice case. At trial, liability and damages were in issue. On appeal, the appellants contest only certain aspects of the damage award. They also seek leave to appeal from that part of the costs order awarding a premium of $150,000. The respondent Donna Lurtz cross-appeals in respect of one aspect of the damages. For the following reasons, I would dismiss the main appeal, allow the cross-appeal, grant leave to appeal the costs and reduce the premium to $75,000.

THE FACTS

[2] The respondent’s claim was based on a failure to diagnose. One of the appellants was the respondent’s family physician. The other appellant is an internist with a special interest in endocrinology to whom the respondent had been referred. In 1998, after many years of suffering from various symptoms, the respondent was diagnosed with a medical condition known as acromegaly. This disease is caused by excessive growth hormone secretion due to the presence of a pituitary tumour. The trial judge found that the appellants were negligent in failing to diagnose this condition in 1993 when the respondent presented with symptoms, especially jaw growth, that are classic signs of this disease.

[3] The respondent’s symptoms gradually worsened. By April 1995, she was having serious mental difficulties, including severe headaches, anxiety and inability to concentrate. She reported numerous cysts, constant swelling in her eyes, hands and feet, very bad pain in her chest and neck, constipation, severe back pain, fatigue, profuse and constant sweating, waking frequently at night, and excruciating pain when she bent over. Because of the missed diagnosis, the respondent was led to believe that her symptoms were psychological and she was referred to a psychiatrist. Despite psychiatric counselling and pharmacological treatment for anxiety and depression, her physical and psychological symptoms continued and worsened. Parts of her body actually began to change. Her hands, feet, tongue, heart and colon were growing. Her face began to undergo changes and her attractive appearance changed into what was referred to as a “horseface”. The changes to the respondent’s appearance are dramatically demonstrated in photographs filed at the trial.

[4] In May 1995, the respondent took sick leave. She never returned to work. In the fall of 1997, the respondent learned that her long-term disability benefits would cease that October. The respondent made an attempt to return to work. She applied for a position with her employer, a cosmetic company, but was turned down for the job because of the unattractive coarsening and premature aging of her appearance. Ultimately, the respondent accepted a termination package and her employment was terminated in May 1998.

[5] In April 1998, the respondent’s son was born. The pregnancy had been very difficult and after the pregnancy her health rapidly deteriorated. She suffered from head pains so severe that they almost distorted her face and buckled her knees. She was unable to care for her son and her mother had to move in with the family to take care of the child.

[6] Finally in the fall of 1998, a physician made the correct diagnosis. The respondent underwent surgery in February 1999 to have the tumour removed. Unfortunately, by this time, the tumour had grown considerably and the surgeon could not remove the entire mass. To control the disease, the respondent must take a medication called Sandostatin LAR. Her treating endocrinologist applied to the Ontario Drug Benefit Program on the respondent’s behalf and coverage was approved. The respondent was virtually penniless by this time and so the cost of the drug (over $2,000 monthly) is paid through the Trillium program. The endocrinologist must apply every six months on behalf of the respondent. The respondent will always have to take this drug, unless it becomes ineffective, in which case she will be switched to another medication that will be equally costly. The Sandostatin LAR is administered by injection on a monthly basis. The respondent also must take another drug, Celexa. Further surgery is not an option because of the location of the residual tumour. The trial judge found that had the accurate diagnosis been made back in 1993 when the tumour was much smaller, the respondent would probably have made a full recovery.

[7] While most of the tumour has been removed and the secretion of the growth hormone has been stabilized, the respondent continues to suffer from the disease. Many of the physical changes caused in the years while the disease went undiagnosed are irreversible. The respondent, her mother and her husband gave extensive evidence at trial about the respondent’s daily life. The trial judge accepted their evidence. The respondent’s factum accurately summarizes their evidence:

She suffers joint pain in her knees, legs, feet, and ankles, as well as muscle fatigue. Five to ten days before each injection, her pain predictably recurs. After the injection she is sore and fatigued for about a week. Over the month there are more bad days than good. The timing of both is unpredictable. A side effect of the medication is urogenital polyuria (frequency of urination), which the trial judge noted during trial. On a normal day, [the respondent] is “done” by 2 p.m. She has trouble at all times with focus, concentration and memory. On June 26, 2000, Dr. Keely advised [the respondent’s] family doctor of [the respondent’s] concerns of poor memory, increased anxiety, “mushy brain”, and irritability with those around her. Dr. Keely recommended treatment with Paxil or Zoloft. [The respondent] is currently prescribed Celexa for treatment of anxiety… She can do “bits and pieces” of light housework and laundry. Until October 2002, [the respondent’s mother], did most of the light housework and meal preparation and [the respondent’s husband] did the heavy housework.

APPEAL FROM DAMAGES

Income Loss

[8] The trial judge awarded damages to the respondent on the basis that because of the appellants’ negligence she would never work again. The appellants submit that the trial judge made palpable and overriding errors, particularly in respect of the award for future income loss.

[9] As I have indicated, the trial judge accepted the evidence of the respondent, her husband and her mother. That evidence, together with the medical reports that were filed in accordance with s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, demonstrated that at least prior to the operation the respondent was incapable of returning to work. The opinions of her various physicians in this period that, for example, she was merely suffering from depression, were entirely compromised by the fact that because of the appellants’ negligence they were unaware that the respondent was suffering from a serious physical ailment. The medical evidence from the appellants’ and respondent’s experts about the nature of this disease amply supported the trial judge’s finding that the respondent was unable to work prior to the operation.

[10] Admittedly, the respondent’s condition improved and stabilized after the surgery and after the respondent started receiving the injections of Sandostatin LAR. However, the lay evidence showed that at the time of the trial the respondent continued to experience many of the same symptoms that she suffered before the surgery, including joint pain, fatigue, and difficulty in concentration and memory. There was some, albeit limited, expert evidence associating these symptoms with the acromegaly.

[11] The appellant submits that the respondent could not meet the burden of proof of future income loss without calling evidence from experts that offered an express opinion about the respondent’s future employability. The appellants made the same submission to the trial judge. He rejected the submission and was satisfied on the basis of the expert reports and the evidence from the lay witnesses, that the respondent was entitled to damages for future loss of income. The trial judge accepted the respondent’s position that the expert evidence showed a link between the disease and the symptoms experienced by the respondent even after the operation. He rejected the defence position that the respondent was suffering from nothing more than depression and anxiety from pre-existing psychological problems.

[12] The record supports the trial judge’s finding on future income loss. In addition to the evidence of the lay witnesses, the trial judge expressly relied upon the report of Dr. Ezzat, the respondent’s treating endocrinologist. While the statement from the report of Dr. Ezzat relied upon by the trial judge is cryptic, it can fairly bear the interpretation placed upon it by the trial judge. As was said by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475 at 490, causation is “essentially a practical question of fact which can best be answered by ordinary common sense”. This statement is referred to with approval in Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 16. Given the similarity in symptoms before and after the surgery and the uncontradicted evidence about the nature of the disease ordinary common sense supports the trial judge’s conclusion.

[13] By the time of the trial, the respondent had been on Sandostatin LAR for several years and had not sufficiently improved that she could return to work, despite her desire to do so. There was no evidence to show that her condition would improve in the future. The trial judge was entitled to draw the inference that this condition would not improve.

[14] Counsel for the appellants fairly points to some of the trial judge’s reasons where he seemed to rely upon the expert reports as establishing life-time disability. The appellants particularly rely upon this line in para. 442 in the trial judge’s reasons:

Based on the evidence of Dr. Ezzat, Dr. Agbi and Dr. Keely, whose reports were filed, I find that [the respondent] is entitled to future loss of income.

[15] In his careful and helpful submissions, Mr. Somerville demonstrated that these reports did not deal with future loss of income. He submits that this sentence therefore shows a palpable error by the trial judge in his appreciation of the evidence. This line in the reasons, however, must be read in context. The trial judge wrote 523 paragraphs of reasons. In dealing with liability and the various heads of damages, the trial judge made frequent references to the evidence. It is evident that the trial judge did not rely solely upon these reports to find the basis for the future loss of income award. He relied on a number of items, particularly the evidence of the lay witnesses. In the remainder of paragraph 442 the trial judge went on to repeat much of the evidence summarized above in paragraph 7. In the next paragraph, the trial judge provided the basis for finding that the respondent would be unable to return to work:

I find the defendants’ position unrealistic, when they suggest that [the respondent] could find employment in today’s competitive market. Aside from her need to be available for medical appointments, the evidence I heard points to [the respondent’s] low energy level, recurring pain in the joints, sleep problems, and problems with memory and concentration.

[16] He went on to find that the respondent’s condition renders her “incapable of regularly pursuing any gainful occupation, and her condition of acromegaly, with its consequent disability, is long, continued and of indefinite duration”. The trial judge extensively reviewed the respondent’s evidence that shows severe physical limitations rendering her incapable of looking after her son on her own.

[17] The evidence was capable of proving the respondent’s case on a balance of probabilities. The expert and lay evidence showed a link between the acromegaly and the respondent’s current symptoms. This set the basis for a claim for future income loss. The lay evidence showed the profound impact of those symptoms upon the respondent and was capable of establishing that the respondent was not able to return to work.

[18] The appellants submit that as a matter of law, the respondent could not establish a total loss of income claim without calling expert evidence directed expressly to that issue. Mr. Somerville referred us to the following passage from S.M. Waddams, The Law of Damages, looseleaf (Aurora, Ont.: Canada Law Book, 2002) at §13.40:

The claimant must do as much by way of proof as can reasonably be expected in the circumstances but need not do more. Evidence of accountants, while admissible, and useful in many cases cannot be conclusive. Assessment of damages is a task for the court not for accountants.

[19] The appellants submit that to do as much as can reasonably be expected required, as a matter of law, that the respondent call expert medical evidence. I do not accept that submission. There is no proposition of law that a plaintiff is required to call the very best evidence. The plaintiff need only call sufficient evidence to meet the burden of proof. In choosing not to call certain medical evidence the respondent ran the risk that she would not be able to make out her claim. As Professor Waddams points out, however, the assessment of damages is a matter for the court not the experts. The respondent’s claim for damages for future loss of income would inevitably have come down to the credibility and reliability of the evidence of the respondent, and her husband and mother, who had daily contact with her. If the trial judge did not accept their evidence or found that the respondent was lying about or exaggerating her symptoms or malingering, she would not have met the burden of proof. That evidence, together with the other evidence establishing the link between the acromegaly and her condition was a sufficient foundation for the claim.

[20] The appellants submit that the trial judge should have drawn an adverse inference against the respondent in her claim for future loss of income because she did not call any of her treating physicians to give viva voce evidence. Rather, the respondent relied upon their reports filed in accordance with Section 52, which the appellants say did not directly address the issue of future loss of income. I do not agree with this submission. The reports filed, especially those dealing with the respondent’s condition before the surgery, show that the respondent was not capable of resuming employment. Many of the same symptoms that so disabled the respondent before the surgery were still present after the surgery and, as I have said, did not markedly improve. This evidence taken together with the lay evidence supported the respondent’s claim. The trial judge was therefore entitled not to draw an adverse inference. This was really a matter in his discretion based on his appreciation of the case. The trial judge gave lengthy reasons for not drawing the adverse inference and I cannot say that he was in error. As the trial judge pointed out, it was always open to the appellants to have these physicians attend for cross-examination. They did not do so, nor did they require the respondent to attend for a defence medical.

[21] It is not for this court to re-weigh the sufficiency of the evidence. The trial judge accepted the respondent’s evidence that demonstrated that she was disabled and unemployable. It was open to the trial judge to draw the inference that this condition was probably going to continue during her working life. The medical and lay evidence shows that the condition has stabilized with the medication but it has not improved.

[22] It follows that the appellants have not shown that there was any palpable and overriding error. I would not interfere with the trial judge’s decision to award damages for past and future income loss.

Calculation of the Loss of Future Income

[23] The appellants submit that the trial judge erred in his approach to the calculation of damages for future loss of income. They submit that the plaintiff and defence experts both supported a methodology of constructing a table of potential future income, based on available labour market statistics that factored in negative contingencies at 29.8 percent. The trial judge, however, adopted an approach that provides a means of assigning a value to a loss of a particular portion of earning capacity, by valuing lost earnings in $10,000 increments. The appellants submit that the trial judge failed to appreciate that this alternative methodology was intended to apply only where there was a finding of a partial disability. This alternative methodology was suggested by the appellants’ expert. It is not clear to me that the methodology produces inaccurate results even in a claim for total loss of income. The appellants’ real complaint is not so much with the methodology but with the discount for contingencies. In my view, it was also open to the trial judge to apply a relatively modest discount (2.5 percent) for general contingencies given the respondent’s work history and that no allowance was made for performance increases. The evidence supported the inference that the respondent likely would have continued with full-time employment as long as she could. On the other hand, the appellants adduced no evidence of negative contingencies. I would not interfere with the trial judge’s approach to the calculation of damages for future loss of income.

Extended Health Care

[24] The amounts allowed by the trial judge to compensate the respondent because of the loss of her extended health care benefits were relatively modest and well within common experience. The trial judge did not require direct evidence to fix this amount.

The Trillium Plan

(a) The appeal

[25] The appellants submit that the trial judge erred in awarding the respondent the full amount for the future cost of medication, since at the time of the trial the cost of the medication was covered by the Trillium program. The appellants submit that there should be a discount of 25 percent for contingencies. The respondent was entitled to be put back in the position she would have been but for the negligence of the appellants. When she had extended health care benefits through her employment the respondent had an absolute entitlement to have prescription drugs paid for in full. She is now subject to the discretion of the Trillium program administrators. There was some evidence that eligibility for those benefits depends on meeting a means test. It was open to the trial judge to act upon this evidence and thus to award damages on the basis that the respondent would no longer have the drugs paid for after the judgment. The respondent should not be placed in the position of being uncertain whether those drugs will be paid for. See Andrews v. Grand and Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 246-47 and Stein (Litigation Guardian of) v. Sandwich West (Township) (1995), [77 O.A.C. 40 (C.A.)] at paras. 39 and 40. The trial judge was entitled to make the award on the theory that the tortfeasors, rather than the government, should be responsible for paying the cost of the medication. The trial judge was not required to reduce this part of the claim because of contingencies. I point out that the appellants fairly concede that there is an error in the trial judge’s award in that he failed to take into account the cost of the Celexa.

(b) The cross-appeal

[26] The respondent’s cross-appeal is based on the trial judge’s failure to apply the discount rate in Rule 53.09 of the Rules of Civil Procedure to the award for the future cost of medication. In my view, the cross-appeal must be allowed. The respondent was prima facie entitled to the discount rate in Rule 53.09. The appellants adduced no cogent evidence to depart from that rate.

Costs

[27] The appellants challenge only one aspect of the costs order. They submit that the trial judge erred in awarding a premium of $150,000. They make two submissions. First, they make the broad submission that, absent misconduct, a trial court can never award a premium on top of solicitor and client costs. Second, they argue that the trial judge took into account irrelevant considerations. I will deal with this latter submission first.

[28] In my view, the trial judge did err in principle in taking into account irrelevant factors. The trial judge took into account the settlement policy of the appellants’ insurer, the Canadian Medical Protective Association [the CMPA], and in effect penalized the appellants for putting the plaintiffs to proof of their case. In his reasons, the trial judge quoted the following from A Medico-Legal Handbook for Physicians in Canada, 5th edition:

The CMPA’s primary interest and concern has always been, and continues to be, protecting the professional integrity of its member physicians. For this reason, a vigorous defence is always mounted for a member who has not been careless or negligent, and for whom a successful defence is possible. It is a firm principle that no settlement will be reached on the basis of economic expediency.

[29] The trial judge was highly critical of this policy. He stated that because the insurer defends where a defence is “possible” the appellants failed to assess the probable weaknesses of their case and put the impecunious plaintiffs through a lengthy and expensive trial. It should be noted that the Handbook continues as follows:

However, when a review of the medical facts reveals that shortcomings in a doctor’s work have resulted in harm to a patient, the CMPA will arrange for settlement that is fair to all concerned. When the claim is clearly indefensible, a settlement is negotiated as early as possible.

[30] I do not agree with the trial judge’s approach. As Dubin J.A. said in Foulis v. Robinson (1978), [21 O.R. (2d) 769 (C.A.)] at 776, “Under our system defendants are entitled to put the plaintiff to the proof, and there is no obligation to settle an action.” If defendants do not settle they may suffer the cost consequences of Rule 49, but absent misconduct, the failure to settle does not warrant imposition of a further penalty. On its face, there is nothing improper in the CMPA policy as set out in the Handbook.

[31] The trial judge also erred in taking into account his view of the apparent weakness of the defence case. The defence had the opinions of a number of reputable experts that supported their case on liability and damages. The trial judge fell into the error identified in Foulis at p. 776 of “second-guessing, after the event, how a trial should be conducted”.

[32] The trial judge also seems to have taken into account the appellants’ offer to settle, which he characterized as derisive and put in to intimidate the plaintiffs. The effect of the offer was that the defendants would agree to the dismissal of the action without costs. The evidence does not support the trial judge’s finding. Again, based upon the expert evidence in its possession, the defendants’ offer was not improper and certainly does not amount to the kind of misconduct that would justify a premium on costs.

[33] In awarding the premium the trial judge also took into account a number of other factors including the risk assumed by plaintiffs’ counsel and the result achieved. As indicated, the appellants make the broad submission that no premium should be awarded where, as here, solicitor and client costs have been awarded because the judgment exceeds an offer to settle. They rely upon this court’s decision in Finlayson v. Roberts (2000), [136 O.A.C 271 (C.A.)].

[34] In my view, this states the principle in Finlayson too broadly. Both before and after Finlayson this court has approved the award of substantial premiums on top of solicitor and client costs. See for example Roberts v. Morana (2000), [49 O.R. (3d) 157 (C.A.)] and Jack (Litigation Guradian of) v. Kirkrude, [[2002] O.J. No. 192 (C.A.)]](https://www.canlii.org/en/on/onca/doc/2002/2002canlii9922/2002canlii9922.html). I agree with the analysis of Finlayson by the trial judge (Kurisko J.) in Jack [2000 Carswell Ont. 4969 (S.C.J.)] at paragraphs 74 to 78. As Kurisko J. points out, there is no mention in Finlayson of the degree of risk assumed. To the contrary, in Finlayson, liability was admitted and the only issue was the amount of damages. Further, the only basis for the claim for a premium in Finlayson would seem to have been the private arrangement between the plaintiff and her solicitor. There was no such arrangement in Jack or in this case. This court upheld the decision of Kurisko J.

[35] In my view, it is open to a trial judge to award a premium on solicitor and client costs in a proper case because of the risk assumed and the result achieved. This is such a case. It is the kind of case that counsel undertake at some financial risk to provide impecunious plaintiffs access to the courts. This respondent was impecunious. Her counsel received no fees whatsoever through trial. They carried significant disbursements from the outset of the litigation. The case was complex and counsel achieved an outstanding result. This was, therefore, a proper case to award some premium. In my view, a reasonable premium is $75,000.

DISPOSITION

[36] Accordingly, I would dismiss the appeal from the damage award. I would allow the cross-appeal and apply the discount rate prescribed in Rule 53.09 to the future cost of medication, being the Sandostatin LAR and Celexa. I would grant leave to appeal costs, allow the appeal and reduce the premium to $75,000.

[37] At the conclusion of oral argument counsel filed their bills of costs. The appellants will have ten days from release of these reasons to submit any further written argument in respect of costs of the appeal. The respondent will have ten days to respond.

Signed: “Marc Rosenberg J.A.”

“I agree John I. Laskin J.A.”

“I agree H.S. LaForme J.A.:

RELEASED: February 4, 2005