CITATION: Chainauskas v. Burnett, 2009 ONCA 572
DATE: 20090717
DOCKET: C48078
COURT OF APPEAL FOR ONTARIO
Gillese, MacFarland and LaForme JJ.A.
BETWEEN
Christine Donna Chainauskas as Executrix for the Estate of Mario Viktor Chainauskas, deceased, Christine Donna Chainauskas, and Erin Veronica Chainauskas, Deanna Victoria Chainauskas, Raymond Andrew Chainauskas, by their litigation guardian, Christine Donna Chainauskas
Plaintiffs (Respondents)
and
Dr. J. Kenneth Reed, Dr. J. Burnett, Dr. James C. Hewak, Dr. Mercer, Dr. J.M. Parekh, St. Joseph’s Hospital and Home, Nurse V. Hunt, Nurse J. Hasler, Nurse B. Brown, and Nurse B. Bahr
Defendant (Appellant)
Earl A. Cherniak, Q.C. and Kirk F. Stevens, for the appellant
Paul J. Pape and John J. Adair, for the respondents
Heard: January 30, 2009
On appeal from the judgment of Justice T. David Little of the Superior Court of Justice dated November 23, 2007.
LaForme J.A.:
I. OVERVIEW
[1] Dr. J. Burnett, an anaesthetist, appeals from a judgment that found her liable for medical negligence causing bodily injury, including hypoxia, myocardial infarction, and brain damage, to Mario Chainauskas shortly after surgery. Mr. Chainauskas was resuscitated but lived in an impaired state until he died approximately four years later.
[2] Before the trial of this action, the respondents agreed to discontinue their claims against the hospital, four other physicians, and four nurses involved in Mr. Chainauskas’s surgery and resuscitation. The parties agreed upon damages in the approximate amount of $3.5 million. The appellant, therefore, appeals on the sole issue of liability.
II. BACKGROUND
[3] Mr. Chainauskas was 5’ 8” and weighed 410 pounds. He had a body mass index (BMI) of 60. Anyone with a BMI of 40 is considered to be morbidly obese, with all the attendant health problems. Mr. Chainauskas suffered from, among other things, high blood pressure and hypertension; in addition, he had a family history of heart problems. He was categorized as four out of six on the American Society of Anesthesia scale, meaning that his obese condition was a constant threat to his life.
[4] On July 16, 1999, Mr. Chainauskas went into St. Joseph’s Hospital and Home for a gastric bypass operation. The surgeon was Dr. Kenneth Reed. Four days before the operation, Mr. Chainauskas underwent an anaesthetic consultation with Dr. Burnett. According to Dr. Burnett’s report, Mr. Chainauskas had a very large face that would make it extremely difficult to hold a mask on to ventilate. She decided to proceed with an “awake intubation” wherein the back of the throat is frozen and the tube is installed while the patient is still breathing on his own.
[5] The surgery proceeded uneventfully. At its conclusion, and at the time of extubation by Dr. Burnett, problems arose resulting in Mr. Chainauskas’s experiencing cerebral hypoxia (a lack of oxygen to the brain), myocardial infarction (a heart attack), and permanent brain damage. Mr. Chainauskas lived in an impaired state in various institutions until his death just over four years later.
[6] This action was commenced by Mr. Chainauskas’s wife on behalf of the estate of her late husband, herself and their three children. It was originally instituted against five doctors, the hospital, and four nurses. By the time the action reached trial, only Dr. Burnett remained as a defendant. The doctors who were previously defendants in the action and represented by counsel for the appellant were called as witnesses by the plaintiffs at trial. Because of this, the plaintiffs raised certain issues with the trial judge in connection with the giving of their testimony, which now relate specifically to this appeal.
[7] At trial, the issues to be determined by the court were: (i) whether Dr. Burnett was negligent in extubating Mr. Chainauskas prematurely; (ii) whether Dr. Burnett was negligent in failing to reintubate Mr. Chainauskas in a timely fashion; and (iii) whether the alleged negligence caused the subsequent damage. The trial judge found that Dr. Burnett negligently extubated Mr. Chainauskas before he was able to maintain his airway and that this was a direct cause of the heart attack he suffered.
III. ISSUES
[8] The appellant raises two issues on this appeal:
(i) the trial judge was not impartial as between the parties; that is, the conduct of the trial judge and his reasons create a reasonable apprehension of bias; and,
(ii) the trial judge made palpable and overriding errors.
[9] The appeal must be dismissed. In my view, the appellant has failed to establish either an apprehension of bias on the part of the trial judge or that he committed any palpable and overriding errors.
IV. ANALYSIS
1. Reasonable apprehension of bias
[10] In R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 113, Cory J. notes, for the majority in the result, that an allegation of a reasonable apprehension of bias calls into question “the personal integrity of the judge”. Thus, the threshold for an allegation of bias on the part of a judge is high. An absence of bias is described by Cory J., at para. 104, as being “a state of mind in which the adjudicator is disinterested in the outcome, and is open to persuasion by the evidence and submissions.” Bias, in contrast, “denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues”: para. 105.
[11] At para. 111, Cory J. adopts the test applied by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information....[The] test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude….”
[12] And finally, at para. 112, Cory J. holds that the grounds to demonstrate an apprehension of bias must be substantial. Therefore, it is clear that there is a high threshold to be met on an allegation of judicial bias and that there is a presumption of integrity accorded to judges.
[13] The appellant argues that she has met this high threshold in this case and that the trial judge’s apprehension of bias is evidenced in two ways. First, the appellant contends that before hearing any evidence from any physician, the trial judge had already concluded that their previous joint representation by defence trial counsel was improper. She asserts that the following statements made by the trial judge at paras. 19 – 23 of his reasons for judgment reflect this predisposition:
joint representation was “somewhat unsavoury”;
the purpose of joint representation was to “ensure” that the interests of all physician defendants “were aligned”;
because of joint representation, “obviously…no cross claims existed”; and,
an “apprehension” about the “reliability” of the doctors’ evidence existed because the doctors had received legal advice from common counsel.
[14] Second, according to the appellant, the trial judge was predisposed to see significant conflicts in the evidence of the treating doctors. The appellant argues that in making these findings, the trial judge made the following “palpable misapprehensions” of the evidence:
First, the trial judge stated that Dr. Reed “did not see any movement in Mr. Chainauskas at all at [the] time” before being transferred to an ICU bed. Dr. Reed’s evidence, however, was that he could not recall movement and that his operative note was meant to convey the impression that Mr. Chainauskas was “awakening”, as opposed to not moving at all.
Second, Dr. Mercer-Choong, a former anaesthetist, did not testify that Mr. Chainauskas was sitting up on the operating table, as the trial judge stated. Rather, she said that he was trying to sit up.
[15] I disagree that the appellant has satisfied the high onus required for this issue. As I will demonstrate, the appellant has failed to establish that either of the two instances of impugned conduct demonstrates an apprehension of bias on the part of the trial judge.
(i) Trial judge’s predisposition
[16] As noted above, in this case some of the medical professionals called as witnesses by the plaintiffs at trial had been represented by defence counsel before the plaintiffs discontinued their claims against all but one defendant, the appellant. As a result, defence counsel was entitled to cross-examine witnesses at trial who had been his former clients in the same action.
[17] Because of these circumstances, at the commencement of the trial, plaintiffs’ counsel advised the trial judge that they would be bringing a motion concerning the evidence of two of their own witnesses. Both witnesses were the treating physicians of Mr. Chainauskas and they were former named defendants in the action. The plaintiffs sought two forms of relief: (i) the right of plaintiffs’ counsel to cross-examine their own witnesses on the basis of adversity; and, (ii) an order restricting the cross-examination of these witnesses by the appellant’s counsel because he had formerly acted for them in this same proceeding.
[18] All counsel agreed that the first part of the motion was premature and that the trial judge should determine only whether to restrict defence counsel from cross-examining their former clients. The trial judge decided that both requests for relief were premature. He described his approach as follows:
I am very disposed, however, since all doctors have a commonality of representation, to appreciate the problem the plaintiffs find themselves in and I intend to do the following: (a) advise both doctors of the unusual position in which they find themselves prior to them giving evidence, and (b) reserve my decision until such time as cross-examination of each of them arises.
[19] No objections were made to this decision. The trial judge then gave instructions to the doctors at the commencement of their testimony. The thrust of those instructions is illustrated in the following exchange:
The Court: Dr. Reed, just before you start, you are in somewhat of a unique position in this case because you were sued at one time.
Witness: I understand.
The Court: And the defence counsel were your lawyers. It makes it somewhat difficult because you have received advice already while you were a defendant from the very same lawyers that are acting for the remaining defendant, Dr. Burnett, okay, and you are now being called and asked to give evidence by somebody who was cross-examining you at one time. I want you to discharge that from your mind. I want you to give unbiased, fair evidence, answer the questions that are put to you, and it will save the court a lot of trouble, okay?
Witness: I will do my best.
The Court: Thanks, doctor.
[20] Thereafter, during his exchanges with counsel, and in his subsequent rulings, the trial judge made it clear that he found no evidence of adversity in relation to the plaintiffs’ witnesses despite their having been formerly represented by defence counsel. In addition, he found no basis to restrict cross-examination of the witnesses by defence counsel. Indeed, he found the doctors “to have been very co-operative and open”, and as a result, he allowed defence counsel to cross-examine them.
[21] In the circumstances, the trial judge was put in a somewhat difficult situation by the strategic decision of defence counsel. That is, defence counsel initially decided to act for all of the defendants, during discoveries and until the discontinuance of the action against those defendants, and then decided to cross-examine those same individuals when they became witnesses in the case. The plaintiffs viewed this as problematic and were concerned about potential bias of the witnesses. The trial judge was required to address the issue once it was raised by plaintiffs’ counsel.
[22] The plaintiffs were clearly entitled to a ruling on this issue, given their obvious and legitimate concerns. Nevertheless, the trial judge dismissed the plaintiffs’ motion. At no point in the proceedings did defence counsel take issue with the trial judge’s approach or to his comments.
[23] It is true that the trial judge did comment on the practice of acting for multiple defendants in a single action and its potential for conflict in a particular case. This was a legitimate observation. However, he went on to specifically determine that that potential for conflict was not realized in this case and that the witnesses, who plaintiffs’ counsel was concerned would be inclined to react adversely to questioning from plaintiffs’ counsel, did not demonstrate any such inclination.
[24] There was nothing wrong, in my view, with the trial judge’s comment regarding appellant’s counsel “ensuring that [the] interests [of the doctors originally sued] were aligned”. Indeed, appellant’s counsel was obliged to do this in order to be able to act for the doctors jointly. This statement was an innocuous step in the trial judge’s reasoning process. It does not demonstrate bias.
[25] Furthermore, the trial judge simply notes the fact that many of the witnesses were previously represented by defence counsel. He then combines this issue with the discrepancies in the evidence. He concludes at para. 23: “The above two issues left me with great apprehension as to the reliability of the testimony of the doctors as it was provided after they had learned about the heart attack and after they had received legal advice in preparation for their joint defence in this action.”
[26] In my view, the language used by the trial judge in the impugned paragraphs is not evidence of any predisposition of bias. As the respondents argue, the trial judge was simply addressing an issue which needed to be addressed, namely, the plaintiffs’ concern about bias amongst the doctors. Had the trial judge not addressed this issue, his reasons would, arguably, be susceptible to attack on the basis of insufficiency.
[27] On my reading of the whole of trial judge’s reasons together with a review of the entire trial record, I see nothing that supports the allegation that the trial judge demonstrated a predisposition in favour of the plaintiffs. Indeed, the trial judge was eminently fair throughout.
[28] Finally, to the extent that the reasons of the trial judge could be read as suggesting that there was something improper in the conduct of the lawyers for the defendants, I wish to plainly state that in this case there was no impropriety. I see nothing improper in the lawyers' conduct and it is not necessarily the case that a lawyer is precluded from representing more than one physician defendant, particularly here, where the suit was discontinued against all but one of the doctors.
[29] All the same, although it is defence counsel’s prerogative to act for multiple defendants, that does not mean that such a strategic decision renders immune from consideration the impact that such a decision might have in a particular case. That is, in fact, what occurred in this case.
(ii) Misapprehension of evidence
[30] The argument the appellant proposes in relation to the trial judge’s palpable misapprehension of evidence is not being advanced as a stand alone ground of appeal in the typical Morrissey sense: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.). That is, it is not alleged that the misapprehensions, by themselves, would result in reversible error. Rather, the misapprehensions are said to be demonstrative of the trial judge’s bias in favour of the respondents.
[31] As already noted, the appellant refers to the trial judge’s treatment of the evidence of Dr. Reed and Dr. Mercer-Choong to support her argument of bias. She contends that when stated accurately, the evidence of both witnesses is consistent with the appellant’s evidence. That is to say, the evidence of these witnesses reflects a patient emerging from anaesthesia on the operating table, exhibiting some movement. As I understand this part of the appellant’s argument, she contends that the trial judge misapprehended the evidence of both Dr. Reed and Dr. Mercer-Choong either to conform to, or because of, his predisposition about the result.
[32] This submission cannot succeed. I say this for two reasons.
[33] First, the suggestion that the trial judge misapprehended Dr. Reed’s testimony is unwarranted. Dr. Reed testified as follows: (i) he did “not recall [the patient] making any movements” when moving the patient to the ICU bed; (ii) the patient was still unconscious from the anaesthetic at that time; and, (iii) he did not talk to the patient during the transfer or when the patient was on the ICU bed because the patient was unconscious. Dr. Reed’s evidence was not that he did not recall whether the patient made any movements. This testimony provides ample support for the trial judge’s finding, at para. 33, that “Dr. Reed did not see any movement in Mr. Chainauskas at all at that time.”
[34] Second, the suggested misstatement or misapprehension of the evidence of Dr. Mercer-Choong that may have been made by the trial judge is, in my view, not an essential element of the trial judge’s reasoning process. It is not, as the appellant asserts, demonstrative of the trial judge’s bias in favour of the respondents. The trial judge did not rely on his perception of Dr. Mercer-Choong’s evidence in assessing the appellant’s credibility. Rather, the trial judge rejected the appellant’s trial testimony, at para. 93, because it was inconsistent with her contemporaneous notes — the record that the appellant created at the time of the incident — and it was inconsistent with Dr. Reed's testimony as to what happened on the day in question, which evidence the trial judge accepted as he was entitled to do. Furthermore, the experts for the plaintiffs make it clear as to what should have been in the records and how the absence of such information is not consistent with the appellant’s record-keeping of other parts of her work that day. In short, the trial judge supported his assessment of the appellant’s credibility with reference to evidence other than that of Dr. Mercer-Choong.
[35] The trial judge rejected the evidence of some of the defence witnesses, including Dr. Mercer-Choong. He did so for reasons that directly related to the nature of the testimony of those witnesses, and not because of any alleged bias on his part. At para. 72 of his reasons, the trial judge had this to say about Dr. Mercer-Choong’s evidence:
This evidence concerns me. The manner in which this evidence was obtained also concerns me. Dr. Mercer-Choong's observations do not coincide with the evidence of Dr. Reed or Dr. Burnett. Dr. Mercer-Choong was also examined for discovery and this evidence was never [proffered]. It was apparently extracted from her by plaintiff’s counsel, only after counsel attended to interview her, just prior to the trial, and after Dr. Mercer-Choong had been released as a defendant in this action.
The appellant submits that these comments by the trial judge were unfair because plaintiff’s counsel failed to identify any question at discovery that required disclosure of Dr. Mercer-Choong’s observations of the patient on the operating table.
[36] In my view, rejecting Dr. Mercer-Choong’s evidence was not due to any bias on the part of the trial judge. Even if Dr. Mercer-Choong was not directly asked at discovery about her observations of the patient on the operating table, it was open to the trial judge to note that she did not volunteer the information. In addition, even if Dr. Mercer-Choong’s evidence was consistent with that of the appellant, the trial judge was entitled to reject it as inconsistent with that of Dr. Reed. As discussed above, the trial judge had sufficient reason to accept Dr. Reed’s testimony over that of the appellant.
[37] In his reasons, the trial judge made several comments about the whole of the evidence:
the hospital records, and in particular the cardiac arrest record, and the doctor’s records, all contained inconsistencies and inaccuracies (para. 24);
both Dr. Reed and Dr. Burnett, at trial, gave evidence which conflicted with the dictated notes they made on the day of the operation (para. 25); and,
Dr. Burnett, in spite of her subsequent testimony, felt at the time she dictated her note, that Mario experienced respiratory difficulties (para. 64).
[38] Clearly, the trial judge was not impressed with the totality of the defence evidence. This was not because of any bias; rather, he found that the evidence simply did not hold together.
[39] Viewed as a whole, the record and the trial judge’s reasons reveal that he fairly weighed the evidence and adjudicated the issues in dispute. Simply put, on this record the trial judge did not decide the appellant’s credibility based on a predisposition against the appellants.
[40] I conclude that the appellant has not met the high threshold to support her allegation of bias on the part of the trial judge in this case. In other words, an informed person, viewing the matter realistically and practically – and having thought the matter through – would not conclude there was any apprehension of bias on the part of the trial judge. This ground of appeal should therefore be dismissed.
2. Palpable and overriding errors
[41] It is well established that an appellate court should not interfere with a finding of fact unless the court below has made a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 1. A “palpable” error is one that is “plainly seen”: Housen at para. 6. An error that is “overriding” is one that was sufficiently significant to vitiate the challenged finding of fact: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (Ont. C.A.), at para. 297. By way of example, an inference that is wholly inconsistent with unchallenged credible direct evidence constitutes a palpable and overriding error: Hall v. Cooper Industries, Inc. (2005), 2005 BCCA 290, 40 B.C.L.R. (4th) 257, at paras. 45-48.
[42] Regarding expert opinion evidence, a trial judge is not free to simply ignore the evidence of experts: Marathon Realty Co. v. Ontario (Regional Assessment Commissioner, Region No. 7), [1979] O.J. No. 1090 (Div. Ct.). That being said, the standard of appellate review for a finding on which there was expert evidence is still palpable and overriding error, or in other words, unreasonableness: Kerr v. Danier Leather Inc. (2007), 2007 SCC 44, 286 D.L.R. (4th) 601 (S.C.C.), at para. 53; see also H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55-56.
[43] The appellant in this case argues that the trial judge erred in respect of six findings of fact. With the above principles in mind, I will address each of the trial judge’s impugned findings in order.
(i) There was no unusually high risk for a heart attack
[44] The first impugned factual finding is the trial judge’s conclusion, at para. 110, that the patient did not present an “unusually high risk for a heart attack as he had been found clinically sound in that regard prior to the operation.” The appellant argues that in coming to this conclusion, the trial judge ignored the evidence of Dr. Jablonsky, as well as the concession of the plaintiffs’ expert, Dr. Rakowski, that the patient had some coronary artery disease. I disagree.
[45] When the trial judge’s conclusion is read in its entirety, any appearance of inconsistency vanishes. The actual language used by the trial judge at para. 110 is as follows:
While all experts deemed Mr. Chainauskas to be a high risk patient I accept the plaintiff’s expert evidence that there was no unusually high risk for a heart attack as he had been found clinically sound in that regard prior to the operation.
[46] Here, the trial judge acknowledges that the patient was a “high risk” patient, but finds that there was not an “unusually high risk” of a heart attack (emphasis added). This conclusion is not inconsistent with the patient having some coronary artery disease. It was open to the trial judge to accept the evidence of Dr. Hewak, at para. 11, that the patient did “not have any significant medical problem that would be prohibitive for him proceeding on with surgery.”
(ii) Causation
[47] Next, the appellant argues that the trial judge erred in concluding that the chances of a heart attack occurring without an airway obstruction were unrealistically remote. In making this argument, the appellant assumes that the trial judge relied on the appellant’s evidence, noted at para. 58 of his reasons, that “99.9% of the time, if distress occurs following extubation, it is a respiratory problem.” The appellant’s point is that it does not follow from this proposition that an airway problem caused the heart attack. As the appellant puts it, to assume otherwise is to commit the post hoc, ergo propter hoc fallacy, according to which the first event must be the cause of the second event, merely because the second event followed the first.
[48] It is uncontroversial that the assumption that an airway problem was the cause of a heart attack merely because the former preceded the latter would be fallacious. This, however, was not the trial judge’s reasoning. Rather, the trial judge concluded, at para. 107, that when the patient’s airway became blocked, this “difficult, stressful oxygen deprived condition” caused the heart attack, and that there was no other plausible explanation for why a heart attack occurred at that time.
[49] In reaching this conclusion, the trial judge relied, at para. 109, on the evidence of the respondents’ experts, Dr. Mazzai and Dr. Rakowski, that the airway collapse was likely or quite possibly the cause of the heart attack. It was open to him to accept this expert medical opinion.
(iii) The time between extubation and airway collapse
[50] The appellant also argues that the trial judge failed to determine the time between extubation and airway collapse, and to resolve the controversy among the experts as to how long it takes asphyxia to cause cardiac arrest.
[51] The appellant, however, has not established that it was necessary for the trial judge to determine how long it takes asphyxia to cause cardiac arrest, since the respondents’ theory was not that the asphyxia itself caused cardiac arrest, but rather that the asphyxia caused additional stress, and that this stress is what caused the heart attack. Indeed, as noted above, the trial judge accepted this argument, relying on the expert opinions of Dr. Mazzai and Dr. Rakowski, which he was entitled to accept.
[52] The appellant goes on to argue that the trial judge erroneously focused on the time between extubation and reintubation, which was irrelevant since the cardiac problem had manifested itself before reintubation.
[53] The appellant has not established that the trial judge’s focus on the time between extubation and reintubation was unwarranted, given that this was one of the three issues at trial, as the trial judge notes at para. 17 of his reasons. In fact, he was obligated to address this issue, since one of the plaintiff’s allegations, as noted at para. 98, was that Dr. Burnett acted below the standard of care in failing to reintubate in a timely fashion.
[54] Somewhat paradoxically, the appellant argues not only that the time between extubation and reintubation was irrelevant, but also that the trial judge erred in not making a finding regarding the duration of this period. According to the appellant, by concluding, at para. 101, that whatever its duration, it was long enough to result in “a marked period of hypoxia...leading to the subsequent damage”, the trial judge engaged in circular reasoning. Again, I disagree.
[55] Although the trial judge did not make a finding regarding the exact duration between extubation and reintubation, he nevertheless did make a finding on this issue; specifically, he held, at para. 101, that the “time between extubation and reintubation was considerably longer than what Dr. Burnett testified”. More to the point, it is not clear what the appellant seeks to achieve by attacking the trial judge’s reasoning as circular, since the trial judge ultimately held, at para. 100, that he was “not satisfied on the balance of probabilities that there was any delay in reintubation that was below the standard of care or impacted negatively upon the patient’s condition.” Further, as the appellant emphasizes, the period between extubation and reintubation was not relevant to the issue of causation, as the trial judge found, at para. 100, that the “damage” (that is, the heart attack, which caused the brain damage) was already “done” by the time Dr. Reed returned, which was prior to reintubation.
(iv) Steps to ensure paralysis reversal
[56] Next, the appellant contends that the trial judge erred in finding, at para. 97, that Dr. Burnett “failed to take the necessary steps to ensure paralysis reversal prior to extubation.” In support of this position, the appellant submits that since the ventilator was disconnected while the patient was still on the operating table, if his paralysis had not been reversed, his respiratory difficulties would have begun before he was transferred to the ICU bed. In fact, the appellant argues that there was “no dispute” that the ventilator was disconnected while the patient was still on the operating table. Nevertheless, there was evidence led at trial to contradict this argument.
[57] In a portion of the read-ins, counsel for the plaintiffs put an article to Dr. Burnett, according to which, “[i]t is important to remember that adequate ventilation through the tube does not guarantee the muscle strength to maintain the airway.” Dr. Burnett agreed with the accuracy of this statement. In other words, breathing on one’s own while intubated is not a sufficient indication that paralysis has reversed enough for the patient to breathe on his or her own without intubation.
[58] Given this, it was open to the trial judge to find that Dr. Burnett “failed to take the necessary steps to ensure paralysis reversal prior to extubation”, even if he also accepted Dr. Burnett’s evidence that the patient was breathing on his own after the ventilator was switched off but before extubation.
[59] The appellant goes on to argue that the trial judge’s finding that paralysis was not reversed prior to extubation is also inconsistent with the finding that the patient became combative.
[60] There is no inconsistency in the trial judge’s reasoning on this issue, in my view. The trial judge found, at para. 79, that the patient became combative after extubation and loss of the airway. In contrast, the applicable standard of care required that Dr. Burnett ensure that paralysis had been reversed prior to extubation, as the trial judge notes at para. 84. Further, it is not clear that combativeness is an indication that paralysis has reversed sufficiently to breathe on one’s own. The trial judge found, at para. 84, that the two basic indicia of paralysis reversal are consciousness and muscle strength. At para. 86, he lists the steps one should take in order to identify these indicia; observing combativeness or any analogous state is not among them.
(v) Response to specific commands prior to extubation
[61] The appellant also argues that the trial judge erred in finding that the standard of care requires the anaesthetist to ensure that the patient is able to respond to specific commands before extubation. More specifically, according to the appellant, the trial judge erroneously failed to mention the evidence of Dr. Sullivan and Dr. Sellery that an experienced anaesthetist can assess the patient’s level of consciousness by other means. In doing so, the trial judge is said to have erred by preferring one respectable body of medical opinion to another, contrary to the principle set out in Connell v. Tanner (2002), 2002 CanLII 44921 (ON CA), 158 O.A.C. 268 (Ont. C.A.), at para. 1, where Laskin J.A. stated:
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.
[62] The problem with this argument is that the trial judge did not find that Dr. Burnett’s practice conformed with “a respectable body of medical opinion”, minority or otherwise. Rather, at para. 86 of his reasons, he listed six requirements that make up the “basic” standard for establishing consciousness and muscle strength, and found, at paras. 91 and 97, that Dr. Burnett failed to comply with at least two of them. Further, the trial judge rejected Dr. Burnett’s testimony that the patient did display some indicia of consciousness on the basis that it was inconsistent with both Dr. Reed’s evidence and Dr. Burnett’s contemporaneous notes. Given this, there simply was no issue of competing bodies of respectable medical opinion.
(6) Whether reaching for the endotracheal tube is a reflex or manifests purposive behaviour
[63] Finally, the appellant submits that the trial judge erred in resolving the scientific question of whether reaching for the endotracheal tube is a reflex or manifests purposive behaviour, because the only neurologist who testified on the point characterized it as purposive and was not cross-examined on the issue.
[64] At para. 97, the trial judge chose to accept the evidence of Dr. Mazzai, an anaesthetist, on this point, which was that any pulling on the endotracheal tube was a reflex action. Although Dr. Mazzai was not a neurologist, his training and experience as an anaesthetist was sufficient to qualify him to give an expert opinion on whether reaching for the tube after having been anaesthetized is a reflex. It was therefore open to the trial judge to accept this expert opinion evidence.
[65] In the end, I conclude that the appellant has not demonstrated that the trial judge erred in respect of the six impugned findings of fact. The test to establish any palpable and overriding error has not been met and I would dismiss this ground of appeal.
V. CONCLUSION
[66] On the first ground of appeal, the appellant has not established her allegation of either an appearance of bias or actual bias on the part of the trial judge. This ground of appeal must be dismissed. As for the second ground, I disagree that the trial judge made findings of fact, as described by the appellant, which reach the level of palpable and overriding error. This ground of appeal also cannot succeed.
[67] I would, therefore, dismiss the appeal for the reasons provided. Additionally, I would award costs of the appeal to the respondents in the amount of $36,000, which is inclusive of disbursements and GST.
RELEASED: July 17, 2009 (“J. MacF.”)
“H.S. LaForme J.A.”
“ I agree. E.E. Gillese J.A. “
“I agree J. MacFarland J.A.”