Rollin v. Baker, 2010 ONCA 569

CITATION: Rollin v. Baker, 2010 ONCA 569

DATE: 20100902

DOCKET: C50041

COURT OF APPEAL FOR ONTARIO

Blair, Juriansz and Epstein JJ.A.

BETWEEN

Carole Margaret Rollin

Plaintiff (Respondent)

and

Darrell Baker, Haldimand War Memorial Hospital and John Doe

Defendant (Appellant)

J. Thomas Curry and Ryan Breedon, for the appellant

James A. Scarfone, for the respondent

Heard: February 23, 2010

On appeal from the judgment of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated January 19, 2009, with reasons reported at [2009] O.J. No. 225.

Epstein J.A.:

A. OVERVIEW

[1] This appeal from a finding of medical negligence involves issues surrounding an emergency room doctor’s duty to ensure optimal recovery for a patient.

[2] On her way to visiting a friend one summer evening in 2002, the respondent, Carole Rollin, fell and broke her wrist. At the local hospital, an x-ray revealed a Colles’ fracture. Ms. Rollin underwent a closed reduction surgery that involved manipulating the wrist back into place without making an incision into the skin.

[3] The appellant, Dr. Darrell Baker, performed the surgery. An x-ray taken after he completed the procedure confirmed that the joint was properly aligned and Dr. Baker proceeded to apply a cast to hold the reset bones in place.

[4] Upon her discharge from the hospital, Ms. Rollin was given instructions that, in a about a week, she should have an x-ray taken and follow up with her family doctor. She was unable to reach her doctor but did manage to have an x-ray taken. Unfortunately, various important follow-up steps were not taken in a timely fashion and Ms. Rollin’s wrist did not heal properly. Even after several corrective surgeries, Ms. Rollin continues to suffer from pain, disfigurement and limitations in the use of her hand.

[5] In 2003, Ms. Rollin commenced this action in negligence against Dr. Baker, the hospital and an unidentified radiologist. The action was discontinued against the hospital and the radiologist and the trial proceeded against Dr. Baker only. Ms. Rollin alleged that Dr. Baker was negligent in not x-raying her wrist after applying the cast to determine if movement had taken place during the application of the cast and in not making provision for her optimal recovery after she left his care.

[6] In lengthy and detailed reasons, the trial judge found that Dr. Baker fell below the standard of care by failing to follow proper x-ray procedures, failing to provide sufficient information about after-care, and failing to ensure either that Ms. Rollin’s family doctor was able to take responsibility for her care or that she was provided with an appropriate back-up.

[7] In this appeal, Dr. Baker does not challenge the trial judge’s finding of negligence arising out of his not having x-rayed Ms. Rollin’s wrist after he put the cast on her arm. He does, however, challenge the trial judge’s assessment of the standard of care in relation to Ms. Rollin’s after-care. He also challenges causation and damages.

[8] For the reasons that follow, I would allow the appeal, in part. In my view, the trial judge erred by apparently awarding general damages as though Dr. Baker was responsible for all of the consequences of the broken wrist rather than just those that Ms. Rollin would not have experienced but for the doctor’s negligence. I would therefore reduce the amount awarded for general damages. I would dismiss the appeal in all other respects.

B. FACTS

1. The break and Dr. Baker’s Treatment

[9] On June 15, 2002, Ms. Rollin, then 50 years old, fell and injured her left wrist. She attended at Haldimand War Memorial Hospital in Dunnville, Ontario, where an x-ray revealed she had suffered a Colles’ fracture.

[10] Dr. Baker, a general surgeon and chief of surgery at the hospital, was the on-call surgeon that evening and came in to attend to Ms. Rollin’s injury.

[11] After being x-rayed, Ms. Rollin was sedated and Dr. Baker performed a closed reduction procedure to correct the position of the bones in her wrist. Dr. Baker then took an x-ray to confirm the proper alignment of the bones before proceeding to apply the cast.

[12] After the surgery, in the early morning hours of June 16, Dr. Baker dictated a Report of Consultation and Surgeon’s History and Physical (“Consultation Report”), which was forwarded to Dr. Lummack, Ms. Rollin’s family physician in Hamilton. The Consultation Report stated that, “I advised her to see her family doctor in the next week or so to arrange follow-up” and that, “if there is any problem with follow-up I would be glad to see her and look after matters.” The Acute Care Unit Report (“ACU Report”), that a nurse gave to Ms. Rollin upon her discharge from the hospital, instructed Ms. Rollin to “repeat x-ray thru cast in 7-10 days” and that the cast was to stay on “for 6 weeks.” A copy of this report was also forwarded to Dr. Lummack.

2. The After-care

[13] Dr. Lummack’s office received the Consultation Report and ACU Report on June 19.

[14] On June 21, Ms. Rollin called Dr. Lummack’s office and was advised that he was on vacation. She was given the first available appointment on his return – July 11.

[15] Ms. Rollin was aware that she had to have an x-ray and therefore went to Wentworth X-Ray and, using one of the pre-printed forms Dr. Lummack had left at his office, had an x-ray taken that day (the “June 21 x-ray”). The radiologist’s report of this x-ray stated that there was “a comminuted fracture of the distal end of the radius with some shortening but no significant displacement” and “no callus formation”.

[16] On June 25, Dr. Lummack’s office received the radiologist’s report. No one contacted Ms. Rollin about this report. It was not sent to Dr. Baker.

[17] On July 11, Ms. Rollin met with Dr. Lummack for the first time since her accident. While Dr. Lummack did not testify at trial, his evidence became part of the record through an Agreed Statement of Fact. The Statement of Fact indicated that during this consultation, Dr. Lummack did not order another x-ray. Rather, he ordered routine blood work, advised Ms. Rollin to take vitamin D and calcium carbonate to assist with healing and scheduled a follow-up appointment for July 25. There is neither any direct evidence nor a finding by the trial judge that Dr. Lummack read the report of the June 21 x-ray.

[18] On July 24, Ms. Rollin jumped into a swimming pool, causing her cast to become saturated to the point that it began to disintegrate. Ms. Rollin removed the cast and found that her wrist looked like “a claw” and that a “big lump” had formed on her wrist joint.

[19] The following day Ms. Rollin saw Dr. Lummack for the second time. He referred her to Dr. Mandel, an orthopaedic specialist, who immediately saw her and arranged to have an x-ray taken. This x-ray (the “July 25 x-ray”), revealed that Ms. Rollin’s fracture had not healed properly. It showed “an impacted comminuted fracture of the distal radius”, with “features of callus formation around the fracture site”, along with some dislocation.

[20] Dr. Mandel informed Ms. Rollin that she required immediate surgery that would involve a bone graft from her pelvic area.

3. The Corrective Actions and Recovery

[21] On July 27, Dr. Mandel performed an open reduction and internal fixation surgery on Ms. Rollin’s wrist, a surgical procedure that requires the skin to be opened in order to set the fractured bones in the correct position with the use of metal hardware.

[22] Despite his best efforts, Dr. Mandel was unable to get the joint back together perfectly and Ms. Rollin was experiencing difficulty with the plate. Therefore, on April 16, 2003, Dr. Mandel performed another surgery – a left ulnar shortening osteotomy. The plate was removed and replaced with a new one and the long bone in her forearm was shortened.

[23] In August 2003, the outer part of Ms. Rollin’s elbow became sore and tender – a condition commonly referred to as “tennis elbow”. Dr. Mandel stated that this discomfort was exacerbated by the wrist’s not moving properly.

[24] On August 25, 2004, due to her continued discomfort, Ms. Rollin underwent a third surgery to remove the hardware. Ms. Rollin was then cleared to do ordinary tasks.

C. REASONS FOR JUDGMENT

[25] The trial judge’s comprehensive 46-page judgment focuses on the two aspects of Dr. Baker’s allegedly negligent care of Ms. Rollin. Both concern the risk of displacement of the wrist bones after closed reduction surgery in response to a Colles’ fracture. The first involves taking an x-ray after the application of the cast in order to detect slippage that may have taken place when the cast was put on. The second involves post-surgical monitoring so that corrective measures can be taken before the bones set if slippage occurs during the healing process.

1. The Evidence of the Parties

[26] Since there was no issue over the fact that Dr. Baker did not take an x-ray of Ms. Rollin’s wrist after he applied the cast, the trial judge’s review of the parties’ evidence concentrated on after-care.

[27] According to Ms. Rollin, Dr. Baker did not personally provide her with any instructions with respect to the after-care of her injury. And the information she received from the nurse was minimal – nothing more than that she should have an x-ray taken in seven to ten days and see her family doctor. Neither Dr. Baker nor the nurse told her that there was a significant risk of displacement during the first few weeks following the surgery and that it was therefore important that she have regular x-rays taken and that she be monitored by a doctor qualified to oversee recovery from a Colles’ fracture.

[28] Dr. Baker’s evidence was that he had some recollection of treating Ms. Rollin. He recalled taking her history, reviewing her initial x-ray, and indicating to her that she had a bad fracture.

[29] His evidence about after-care was based on his usual practice. Dr. Baker testified that he would have instructed Ms. Rollin that she should go to her family doctor, that she needed to have an x-ray in seven to ten days, and that she probably would need to be referred to an orthopaedic surgeon. He further testified that he would have told her that if she encountered any problems, she should contact him and he would do the follow-up.

[30] Dr. Baker conceded that he did not advise Ms. Rollin about the high risk of displacement during the first three weeks after she left the hospital and for this reason she should have an x-ray taken once a week for three consecutive weeks.

2. The Expert Evidence

[31] Two experts testified at trial as to the standard of care required by a general surgeon in the position of Dr. Baker – Dr. Mandel, on behalf of Ms. Rollin, and Dr. McGoey, on behalf of Dr. Baker.

[32] Dr. Mandel, who is both a general and an orthopaedic surgeon with over 20 years of experience, testified on Ms. Rollin’s behalf as both a fact and an expert witness. In his opinion, Ms. Rollin’s break was particularly serious as the fracture line was into the joint. Due to the considerable fragmentation, the alignment of the wrist bones was more likely to slip.

[33] His opinion as to the obligations of a physician in the position of Dr. Baker in ensuring proper after-care of a Colles’ fracture was summarized by the trial judge as follows:

1. The doctor should x-ray the wrist after the cast is put on to see if any slippage took place during the cast application process;

2. The doctor should ensure that the patient clearly understands that an x-ray should be taken once a week for at least three weeks following the surgery; and,

3. The doctor should ensure that the patient has access to a physician who is both competent to care for a Colles’ fracture and available to do so.

[34] With respect to this third obligation, the trial judge described Dr. Mandel’s view as follows. A physician in Dr. Baker’s position had a specific duty to ensure that his patient had access to a doctor equipped to handle the risks associated with a Colles’ fracture and was available to do so. Given that family doctors are generally not familiar with Colles’ fractures and that Dr. Baker had no communication with Dr. Lummack in order to satisfy himself that Dr. Lummack was both able and available to take on the responsibility of Ms. Rollin’s after-care, Dr. Baker fell below the standard of care. The standard of care required more, such as a referral directly to an orthopaedic surgeon or a fracture clinic.

[35] The defence expert, Dr. McGoey, is an orthopaedic surgeon at Credit Valley Hospital in Mississauga, also with over 20 years of experience.

[36] The trial judge summarized his opinion as follows.

[37] While Dr. McGoey’s view was that it was preferable to take an x-ray after the cast is put on, this was the “gold standard”. In his opinion, Dr. Baker’s treatment of Ms. Rollin was “okay” given he took an x-ray after the reduction but before he put the cast on and was satisfied that there had been no slippage during the cast application process.

[38] Dr. McGoey agreed that the after-care of a Colles’ fracture is time-sensitive and needs to be closely monitored. He testified that he would have made sure that the patient understood the need for prompt follow-up care due to complications that may arise from slippage in the cast. He agreed with Dr. Mandel that the wrist should be x-rayed seven to ten days after the reduction and thereafter weekly for three weeks. He explained that the rationale behind repeating the x-ray is that as the swelling in the arm goes down, the cast loosens and displacement may occur. A final x-ray should be taken at the five or six week mark.

[39] His view was that Dr. Baker met the standard of care in terms of follow-up through the instructions contained in the ACU Report and the Consultation Report, both of which were sent to Dr. Lummack. It was appropriate, in Dr. McGoey’s opinion, for Dr. Baker to refer his patient to her family doctor if he did not know a specialist in her area. He did not share Dr. Mandel’s concern about the ability of family doctors to assume responsibility for the after-care of a Colles’ fracture. To his knowledge, most family doctors take courses that would educate them as to the high risk of displacement associated with Colles’ fractures and the importance of close monitoring of the healing of the wrist through regular x-rays.

3. Breach of the Duty of Care

(a) The post-cast x-ray component

[40] Both doctors agreed that the rationale for a post-cast x-ray is to ensure that the bones had not moved during the process of putting the cast on. While acknowledging the subtle difference in their opinions, the trial judge found that both Dr. Mandel and Dr. McGoey essentially agreed that the standard of care in treating a Colles’ fracture after closed reduction surgery requires that an x-ray be taken after the cast is applied to ensure that no slippage had occurred as the cast is applied. Based on this evidence, the trial judge concluded that Dr. Baker fell below the standard of care in not x-raying Ms. Rollin’s wrist after he put the cast on.

(b) The follow-up care instructions component

[41] The trial judge drew upon Dr. Mandel’s evidence and identified critical after-care concerns regarding which Dr. Baker should have instructed Ms. Rollin involving the risk of slippage and the importance of having an x-ray taken once a week for three consecutive weeks so as to be able to respond immediately to any displacement that may have occurred. Since the trial judge found that Ms. Rollin had not been given this important information, she held that Dr. Baker fell below the standard of care in relation to his obligation to ensure that his patient was equipped to attend to the demands of her after-care.

(c) The “capable hands” component

[42] Finally, the trial judge accepted Dr. Mandel’s evidence that “the referring physician must be confident that the person the case is being handed over to is available, competent and able to deal with the problem”. She therefore held that there must be direct communication between the referring physician and the receiving physician to ensure access to a doctor “with the expertise and ability to deal with a serious Colles’ fracture.”

[43] The trial judge identified various options open to Dr. Baker to meet his obligations to his patient under the capable hands component. Aside from directly contacting Dr. Lummack’s office, he could have referred Ms. Rollin to an orthopaedic surgeon in her area or to a fracture clinic. Finally, Dr. Baker could have scheduled a follow-up appointment with him.

[44] The trial judge preferred the evidence of Ms. Rollin over Dr. Baker as to the referral options presented to her. She found as a fact that Dr. Baker did not offer to become involved in the follow-up. Ms. Rollin was only told to go and see her family doctor. The trial judge therefore concluded that Dr. Baker fell below the standard of care in advising his patient to see her family doctor without knowing if he was available to over-see Ms. Rollin’s recovery during a time-sensitive period and was sufficiently knowledgeable to do so.

4. Causation

[45] Having found Dr. Baker fell below the standard of care in the three areas outlined above, the trial judge went on to assess whether and to what extent Dr. Baker’s negligence had caused harm to Ms. Rollin.

[46] She accepted Dr. Mandel’s evidence that it was likely that the slippage gradually occurred over time starting around June 16, 2002, the day after Dr. Baker performed the procedure, and that there would have been a better prognosis had Ms. Rollin been properly looked after on June 25 or perhaps July 11. She concluded that Ms. Rollin’s damages were attributable to Dr. Baker’s negligence in all three aspects – his failure to take a post-cast x-ray, his failure to equip her with the necessary information regarding after-care and his failure to ensure that she was placed in capable hands.

5. Quantum of Damages

[47] In addressing the issue of quantum, the trial judge set out the various ways in which the Colles’ fracture had affected Ms. Rollin’s life.

[48] In terms of employment, the trial judge observed that at the time of her accident in 2002, Ms. Rollin, who is left-hand dominant, was considerably over-weight and suffered from a variety of health conditions. Despite these ailments, however, she managed to work full-time for the Hamilton Regional Conservation Authority where she carried out both sedentary clerical duties and physical tasks. The evidence demonstrated that she had a good attendance record. Ms. Rollin missed approximately ten days of work after the first corrective surgery performed by Dr. Mandel on July 27, 2002. She took another seven days off work after the second corrective surgery on April 16, 2003. She did not return to her full duties, after this incident. Ultimately, she applied for and received C.P.P. disability and O.D.S.P. benefits.

[49] The trial judge described various difficulties associated with her wrist fracture that Ms. Rollin continues to experience such as pain in and around her wrist, pain that is exacerbated by the fact that she has to put extra pressure on her wrist as she uses a cane as a result of a left knee injury. She also suffers from damage to her right iliac crest (pelvic bone), due to the bone graft. Ms. Rollin has trouble carrying out basic functions such as dressing, housework and gardening. Her granddaughter regularly assists her with various tasks.

[50] The trial judge also observed that Ms. Rollin’s wrist is visibly deformed.

[51] Against this background, Ms. Rollin was awarded a total of $101,000 in damages, broken down as follows: $90,000 in general damages, $1,000 for past income loss, and $10,000 for future income loss. The trial judge further ordered a payment of $10,078.05 to the Ministry of Health and Long Term Care for its subrogated claim.

D. ISSUES

[52] In this appeal, the following general issues are raised.

1. In respect to liability:

a. Was Dr. Baker negligent in respect of any aspect of his treatment of Ms. Rollin?

b. If so, what damages were caused by Dr. Baker’s negligence?

2. In respect to quantum of damages:

a. If Dr. Baker caused damage to Ms. Rollin due to his negligence, what is the appropriate assessment of quantum of general damages?

E. ANALYSIS

1. Liability

a. Breach of the Duty of Care

1. The post-cast x-ray

[53] Dr. Baker has admitted that he was negligent in failing to take an x-ray of Ms. Rollin’s arm after he put the cast on.

2. The follow-up care

[54] The trial judge properly identified that the obligation of a surgeon to his patient does not stop with the successful completion of the operation: a continuing duty rests upon him or her to provide appropriate post-operative care or advice and direction as to such care. Here, there were two aspects of the surgeon’s duty to his patient in relation to after-care – the information component and the capable hands component.

(i) The information component

[55] It is really not seriously contested that in terms of the information component, the standard of care required that Ms. Rollin be advised in clear terms that there was a high risk that the bones in her wrist would slip inside the cast during the first three or so weeks following the surgery and that it was therefore important that, during that period of time, she ensure her wrist was closely monitored through regular x-rays.

[56] There is no issue over the fact that this information was not provided to Ms. Rollin. She testified that she did not receive any such information. There is no evidence that the nurse provided her with this information. Significantly, Dr. Baker conceded that he did not convey this information to his patient.

[57] It follows that Ms. Rollin left the hospital believing that all she was required to do was have an x-ray taken within a week or so and visit her family doctor. She was not told about the high risk or any risk of slippage. She was not told about the seriousness of slippage. She was not advised to see to it that an x-ray was taken every week for three weeks following the surgery. In short, Ms. Rollin left the hospital ill-equipped to ensure optimal recovery from surgery.

[58] In my view, there is no reason to interfere with the trial judge’s conclusion that Dr. Baker was negligent in failing to provide Ms. Rollin with the information she needed so that she was in a position to pursue a proper course of treatment.

(ii) The “capable hands” component

[59] The final issue on appeal regarding standard of care is the extent to which, if at all, Dr. Baker was required to make certain that Ms. Rollin has access to a doctor who was both available and able to respond to her after-care needs.

[60] In respect of this issue, Dr. Baker makes two submissions.

[61] First, he argues that the trial judge erred in finding that Dr. Baker left Ms. Rollin with only one option – to go see her family doctor - in the light of his evidence that he would have told her that she could return to him if there were any difficulties with follow-up. Dr. Baker relies on his unchallenged testimony that, in accordance with his standard practice and as recorded in the Consultation Report, he advised Ms. Rollin that if she experienced any difficulty with follow-up, she could book an appointment with him. The strength of this evidence, he argues, is compelling particularly when compared with that of Ms. Rollin whose credibility was challenged in a number of ways including her having submitted inaccurate tax returns to Canada Revenue Agency and over-stating the effect her wrist difficulties are having on her life.

[62] It goes without saying that the trial judge’s findings of fact are entitled to a high degree of deference. Here, the trial judge explained the basis upon which she accepted Ms. Rollin’s evidence over that of Dr. Baker. She acknowledged Dr. Baker’s evidence about his standard practice. However, she also found Ms. Rollin to be a good historian who had a specific recollection of this major event in her life. She weighed the evidence of each witness and ultimately concluded that, on this point, she preferred that of Ms. Rollin. This task is squarely within the province of the trial judge and I see no reason to interfere.

[63] This takes me to Dr. Baker’s second submission with respect to the capable hands component. Mr. Curry forcefully argues that the trial judge erred in her assessment of the standard of care in holding that “the referring physician must be confident that the person to whom the case is being handed over is available, competent and able to deal with the problem”. He submits that as a matter of policy the law should not place the responsibility on emergency room surgeons to personally ensure that patients have access to doctors properly trained to oversee after-care. Mr. Curry submits that if such were the standard of care emergency room doctors would be fixed with an unrealistic obligation to oversee follow-up to countless patients.

[64] On this issue, I make the following observations.

[65] First, I do not accept that a specific policy can be established that applies to referrals made by emergency room doctors.

[66] This is made clear in Tacknyk v. Lake of the Woods Clinic, [1982] O.J. No. 170, where this court considered the standard of care in relation to after-care as follows in paras. 27 – 29.

Clearly, in some cases, it will be necessary for the surgeon to write or to call and instruct or advise a physician in the community where the patient resides. In the case of very routine or minor surgery, communication may be completely unnecessary as the local physician will be very well aware of the steps he should take. In such circumstances, a simple direction to the patient to attend on his physician will suffice.

What it really comes to is that the standard the court should fix for post-operative care must depend on all the circumstances surrounding the operation and the problems and needs of the particular patient.

The legal responsibility resting upon a medical practitioner in the care and treatment of his patients is rightly heavy and onerous. However, the standards of care imposed by the courts on the medical profession must be realistic and reasonable. The doctor should not be made the insurer of his patients’ health and well-being.

[67] Simply put, the standard of care regarding follow-up treatment requires a consideration not only of the patient’s medical circumstances but also of what is “realistic and reasonable”.

[68] This latter consideration, one of practical reality, is often obtained through evidence as to the accepted practice within the profession. As Sopinka J. stated in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at para. 38:

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent.

[69] It is against this background that I will now proceed to consider the trial judge’s conclusion that Dr. Baker was negligent in referring Ms. Rollin to her family doctor for after-care.

[70] In terms of the circumstances surrounding the medical issue, it is clear that the fracture was serious and that there was a high risk of displacement, a condition that could not be detected without x-ray. For this reason, regular x-rays for several weeks following the surgery were imperative. The evidence also established that there was at least reason to be concerned about whether the patient’s family doctor would be equipped to handle the requirements of the after-care of a Colles’ fracture. These factors support the trial judge’s determination of the standard of care to require more hands-on involvement by Dr. Baker.

[71] However, as previously noted, according to Tacknyk, what is “realistic and reasonable” must also be considered. This takes me to the expert evidence concerning the recognized professional practice.

[72] The trial judge’s finding that the recognized practice was for the emergency room doctor to have direct contact with the family doctor’s office or to pursue one of the other options noted above, was rooted in her preference of the evidence of Dr. Mandel over that of Dr. McGoey on this issue. This preference, as noted earlier, was based on the fact that Dr. Mandel was Ms. Rollin’s treating physician, while Dr. McGoey gave his opinion strictly on the basis of documents.

[73] This, in my view, is where the trial judge erred - by preferring the evidence of Dr. Mandel on this issue based on an irrelevant ground. In respect of this aspect of an emergency room doctor’s obligations to a patient with respect to after-care, I see no reason to prefer the evidence of one expert over that of another, solely on the basis that the former also treated the patient. No evidence was adduced to support such an approach. Common sense does not support it.

[74] However, the fact that, as a result of this error, this court is left with no clear evidence as to the standard practice with respect to the obligations of an emergency room doctor in terms of ensuring that the patient has access to a doctor, if needed, capable of performing the necessary steps to ensure optimal recovery, has no effect on the finding that Dr. Baker breached the standard of care in relation to after-care. I say this because, as I will explain, I would not interfere with the trial judge’s determination that Dr. Baker failed to give Ms. Rollin adequate information regarding the extent of her injury and her requirements for after-care. This finding is sufficient to fix him with liability.

[75] The essence of a physician’s duty is to ensure that the patient is adequately equipped to obtain her own after-care. How this responsibility is to be met – the standard of care in the circumstances - will involve a mix of factors. The first question that arises in this context is whether it is reasonable, in the circumstances of the particular patient and the particular required after-care procedures, for the doctor to leave the responsibility with the patient by informing the patient of the necessary steps to be taken and impressing upon her the importance of those steps. Where the patient’s ability to follow instructions does not appear compromised and there is no doubt that a reasonable person could be expected to carry out the steps, the burden upon a physician with respect to follow-up, decreases. In other words, the capable hands into which a patient must be placed can be, if the circumstances permit, her own. As this court put it in Tacknyk at para. 26, “A continuing duty rests upon the surgeon to provide adequate post-operative care or to give adequate advice and direction as to such care” (emphasis added).

[76] The second question that arises is whether it is reasonable for the doctor to assume that his or her sufficiently informed and presumably capable patient will be able to access adequate after-care without the doctor’s further involvement. This does not mean that an emergency room surgeon has a responsibility to follow up innumerable patients, Mr. Curry suggests. But where the doctor should reasonably know that the patient cannot obtain care without the doctor’s further involvement, his duty is to put the patient into a position where she can.

[77] It is this issue that, in my view, this court cannot resolve given the conflicting expert opinions.

[78] However, Ms. Rollin has established that Dr. Baker failed to give her rudimentary information regarding the severity of her condition and the important steps to be taken concerning her after-care. This failure deprived her of the tools necessary for her to obtain adequate care for herself. The displacement could only be detected by having an x-ray taken: it was not something Ms. Rollin could detect on her own. Therefore, Dr. Baker’s failure to inform Ms. Rollin as to the seriousness of her fracture and the time-sensitive need for its monitoring makes his failure to ensure she was placed in the care of a competent doctor a breach of any reasonable standard of care. Had he informed Ms. Rollin that it was important that she ensure that regular x-rays were taken over the first three weeks post-surgery due to the significant risk of displacement, perhaps he could have left the matter up to her, absent any indication that Ms. Rollin would have difficulty ensuring that her own health care needs were met. But this he did not do. The responsibility for her sub-optimal healing therefore remains squarely on Dr. Baker’s shoulders so long as this failure can be shown to have caused her harm.

b. Causation

(i) Damages caused by Dr. Baker’s negligence in failing to x-ray Ms. Rollin’s wrist after he put the cast on

[79] The only way in which Ms. Rollin could prove that she suffered harm as a result of Dr. Baker’s not taking a second x-ray is with evidence that the bones in her wrist moved out of alignment during the application of the cast. There is no such evidence. The only evidence regarding when displacement may first have taken place is that of Dr. Mandel who testified that it was likely after Ms. Rollin left the hospital.

[80] It follows that the trial judge erred in concluding that this act of negligence contributed to Ms. Rollin’s damages.

(ii) Injury caused by Dr. Baker’s negligence in failing to provide Ms. Rollin with the necessary tools to ensure that her after-care was properly dealt with

[81] The trial judge accepted Dr. Mandel’s evidence and found that had Ms. Rollin received proper follow-up instructions, it is more likely than not that she would have seen a physician who could have taken an x-ray while the displacement was still fresh and the wrist could have been manipulated back into place with less extreme forms of treatment. Because Ms. Rollin was not properly equipped to deal with her after-care, she had to endure two additional surgeries and has been left with pain, disfigurement and limitations in the use of her dominant hand. I see no basis to challenge the trial judge’s finding of both factual and legal causation.

2. Quantum of Damages

[82] In assessing non-pecuniary damages at $90,000, Dr. Baker submits that the trial judge improperly awarded Ms. Rollin damages for all of the pain and suffering associated with her broken wrist rather than for that resulting from the delayed detection of the displacement during the healing process.

[83] The trial judge’s reasons contain only the following sentence with respect to non-pecuniary damages. “After reviewing all of the evidence, it is my view that the appropriate amount under this head of damages would be $90,000.” While that single sentence does not explain the basis of the amount, the trial judge’s unqualified review of how Ms. Rollin’s injured wrist has affected her life, plus her identification, in para. 14 of her reasons, of one of the issues before her as “the damages that Carole Rollin sustained as a result of the Colles’ fracture of her left wrist”, strongly suggest that the trial judge did assess damages as though Dr. Baker was responsible for all of the injuries his patient suffered as a result of the fall. Furthermore, as I will discuss below, $90,000 is several times the usual quantum awarded for non-pecuniary damages in the case of a defendant fixed with full responsibility for a broken wrist, however severe the after-affects. Given the lack of reasons for assessing the damages at this amount and the strong suggestion of an error, this aspect of the judgment is not entitled to deference.

[84] It is therefore up to this court, if the record is sufficient, to determine Ms. Rollin’s general damages on the appropriate basis.

[85] The amount depends on the circumstances of the case, against the backdrop of the cap established in Andrews v. Grand and Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, where the Supreme Court provided that the determination of what is fair and reasonable should be guided, in part, by earlier cases across Canada involving similar injuries. Accordingly, cases that have assessed non-pecuniary damages for broken wrists are a starting point in determining the range within which non-pecuniary damages should fall.

[86] My review of decisions in which general damages have been assessed indicates that in those involving broken wrists (some of which were Colles’ fractures) with an extended recovery period and the injured party continues to experience discomfort, the range falls between $10,000.00 and $25,000.00. See: Dally v. London (City) (2004), 50 M.P.L.R. (3d) 133 (Sup. Ct. J.), Starr v. Ojibway Pic River First Nation, [1997] O.J. No. 3671 (Gen. Div.), Simms v. Conestoga College of Applied Arts & Technology, [1995] O.J. No. 902 (Gen. Div.) and Tomczyk v. British Columbia (Ministry of Environment, Lands & Parks), [1998] B.C.J. No. 1877 (S.C.).

[87] However, in assessing damages for non-pecuniary loss in this case, as I have already said, it is important to bear in mind that Dr. Baker bears no responsibility for the fracture itself. He also bears no responsibility for the slippage, which would have occurred regardless. Furthermore, the evidence indicated that this was a severe wrist fracture that would likely not have healed completely. Dr. Baker is therefore only responsible for the additional surgeries and incremental consequences flowing from his negligence the result of which was a delay in detecting the displacement.

[88] There is no doubt that Ms. Rollin suffered additional pain, discomfort and anxiety in the period during which she underwent two further surgeries to try to address problems she may not have had but for the negligence of Dr. Baker. These surgeries were not minor. They involved putting in and taking out hardware. They involved a bone graft.

[89] There is also evidence of the problems arising from her wrist fracture that have affected Ms. Rollin’s ability to enjoy her life to its fullest. These include her having to wear a brace and to suffer on-going pain and the limitations on her activities summarized above.

[90] Unfortunately, the trial judge made no findings of fact as to the specific incremental consequences of the delay in discovering the slippage. While the evidence provided by Dr. Mandel relating to this issue is vague, it is this court’s responsibility to do its best to establish a fair assessment of non-pecuniary loss on the evidence that is available on the record. See Martin v. Goldfarb (1998), 1998 4150 (ON CA), 41 O.R. (3d) 161 at para. 75; Rosenhek v. Windsor Regional Hospital (2010), 2010 ONCA 13, 257 O.A.C. 283 at paras. 37 - 38.

[91] Having regard to the range of damages awarded in cases involving broken wrists and the particular circumstances of this case, I would assess Ms. Rollin’s non-pecuniary damages as a consequence of Dr. Baker’s negligence in relation to his patient’s after-care, at $30,000.00. Even though this amount is slightly above the range suggested above, it is justified once inflation is taken into consideration. For similar cases concerning problems associated with the after-care of a wrist fracture see: Hebert v. Stanley, [1989] O.J. No. 14; Wilson (Litigation Guardian of) v. Lewis, 1994 CarswellOnt 2835.

[92] Dr. Baker does not appeal any other aspect of the trial judge’s damage award.

F. DISPOSITION

[93] I would allow the appeal in part. I would set aside the general damage award of $90,000 and substitute an award of $30,000. Otherwise, I would dismiss the appeal.

[94] The results on appeal have been mixed. I would therefore make no order as to costs.

RELEASED:

“SEP -2 2010”

“RAB” “Gloria Epstein J.A.”

“I agree R. A. Blair J.A.”

Juriansz J.A. (Dissenting in Part):

[95] I agree with the reasons of Epstein J.A. dismissing the appeal challenging the trial judge’s findings in regard to the breach of the duty of care and factual and legal causation. However, I take a different view of the appeal of the quantum of damages.

[96] I do not agree that the trial judge's characterization of one of the issues before her as “the damages that Carole Rollin sustained as a result of the Colles’ fracture of her left wrist” strongly suggests that she assessed damages as though Dr. Baker was responsible for all of the damage that Ms. Rollin suffered as a result of her initial injury. In my view, the trial judge's reasons read as a whole show that she was alive to her task of assessing the increased damage that resulted from Dr. Baker's negligence. I refer to some of the passages from the trial judge’s reasons.

[97] At paragraph 218 the trial judge concluded, “Had Ms. Rollin been followed up in a timely fashion by a practitioner that was familiar with the treatment of Colles’ fracture her outcome would have been different” (emphasis added). The trial judge went on to indicate that the marked displacement, shortening, and loss of inclination observed by Dr. Mandel on July 25, 2002 were due to “the lack of appropriate follow up care in [a] timely fashion.”

[98] In paragraph 219 the trial judge found that “had Ms. Rollin seen Dr. Mandel earlier the treatment that she required may have been limited to a form of a repeat closed reduction and some form of pinning. Instead, Ms. Rollin had to undergo three significant procedures.” The trial judge set out the three significant procedures which she had in mind:

Dr. Mandel's initial surgery of July 27, 2002 which was an open reduction with internal fixation using a right iliac crest bone graft. Secondly, a further surgery on April 16, 2003 which involved removing the hardware from the left wrist from the initial surgery and also doing an ulnar shortening osteotomy. Thirdly, she went on to have a surgery on August 25, 2004 for the removal of the hardware utilized on the left ulnar shortening osteotomy.

[99] At paragraph 220 the trial judge accepted Dr. Mandel's evidence that had he seen the fracture earlier “it could have been treated much more simply for the patient.” Because this did not take place, the trial judge found that “Ms. Rollin went through the various surgical procedures” set out above, and “had the level of pain and lack of movement that she did.” This passage makes clear that the trial judge differentiated between the pain and lack of movement that may have resulted from a properly treated wrist fracture, and the level of pain and lack of movement suffered as a result of the negligence.

[100] The trial judge also carefully considered other events that might have contributed to the severity and duration of Ms. Rollin's injury. She concluded that the “swimming pool” and “pickle jar” incidents did not exacerbate her injury.

[101] In paragraph 227 the trial judge concluded that Ms. Rollin’s “outcome would have been better” absent Dr. Baker's negligence.

[102] Finally, in paragraph 229, the trial judge specifically rejected the appellant’s argument that Ms. Rollin would have experienced much the same outcome in any event. The trial judge said “[t]his is not a case wherein I can find that there was an unfortunate outcome that was not related to negligence.” The trial judge went on to conclude that “but for the actions and lack of actions on the part of Dr. Baker, the outcome on this specific case would have been different.”

[103] These passages lead me to the view that while the trial judge could have posed the issue before her more clearly, her analysis does squarely focus on the different outcome that Ms. Rollin suffered as a result of the negligence. This was not a case where the damages from negligence were but a component of what damages could be expected from a serious wrist fracture. Rather, the negligence resulted in a different outcome and additional damage that would not have been suffered otherwise.

[104] I would not find that that the trial judge erred in her methodology of assessing damages.

[105] Admittedly, the trial judge did not discuss in detail her assessment of non-pecuniary damages. The brevity of her discussion of damages seems to reflect the way the case was argued at trial and the amount of emphasis the appellant had placed on the quantum of damages. I gather this from the trial judge’s allusion to the submissions on damages made by the appellant’s trial counsel.

[106] In any event the trial judge adequately set out the basis of her assessment of damages in paragraphs 232-237. Ms. Rollin was a vulnerable individual, working full-time in an employment of a primarily physical nature. She was “capable, independent and ambitious”. She is left-hand dominant and the fracture was to the left wrist. She continued to work after being absent for short periods after the first surgery and after the second surgery, but she never returned to her full complement of tasks at her employment. Despite suffering multiple previous ailments, she never missed time away from work prior to this injury. After the injury she was ultimately unable to continue her employment. Her wrist is permanently and visibly deformed. As a result of the bone graft, which the trial judge found would not have been necessary but for the negligence, Ms. Rollin has suffered damage to her right iliac crest. She continues to have difficulties in the movement of her wrist and continues to experience pain, with the result that she can no longer perform basic functions without difficulty. In this regard, the trial judge's earlier discussion indicates that she had in mind the increased “level” of pain and lack of movement Ms. Rollin suffers as a result of the negligence.

[107] Nor would I find that the quantum of damages was unreasonable. I do not accept that general damage awards against defendants whose negligence has caused a plaintiff’s properly treated broken wrist to be the starting point in determining the range of damages due to the negligent treatment of a broken wrist. In medical malpractice cases, intervening physicians’ negligence can cause damage that far exceeds what might ordinarily result from the underlying condition being treated. Here, the trial judge found that the outcome was exacerbated by Dr. Baker’s negligence. Of the cases cited by Epstein J.A. only two involve damages due to a physician’s negligence. The damages that resulted in both Hebert v. Stanley, [1989] O.J. No. 14, and Wilson (Litigation Guardian of) v. Lewis 1994 CarswellOnt 2835, are far less than those that resulted in this case. In Hebert there no further surgery was required. In Wilson there was both a closed and an open reduction were required, but there was no bone graft, no resulting clinical abnormality, no deformity just a small residual scar, and a fairly good recovery. I see no basis to interfere with the quantum of damages awarded by the trial judge.

[108] In conclusion, for the reasons given by Epstein J.A. in regard to liability and these reasons in regard to damages, I would dismiss the appeal entirely.

“R. G. Juriansz J.A.”