Court of Appeal for Ontario

Date: March 20, 2019

Docket: C64032

Judges: Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

Parties

Between

The Estate of Kerry Samms, by the Estate Trustee, Carol Ann Samms, Carol Ann Samms, and Joshua Samms and Kristen Samms

Plaintiffs (Appellants)

and

Dr. Riaz Moolla, Dr. Wilraad Lottering, Dr. Ahmad Belfon, Dr. Debra Jefferson, Dr. Leon Irish, Cheryl Reynolds, J. Doe and Dr. Geoffrey Donsky

Defendants (Respondent)

Counsel

Ronald Manes, Barbara MacFarlane and Nicholas Sampson, for the appellants

Erica J. Baron and Shane C. D'Souza, for the respondent

Hearing and Appeal

Heard: October 17, 2018

On appeal from: The judgment of Justice Guy P. Di Tomaso of the Superior Court of Justice, sitting with a jury, dated June 11, 2017.

Decision

Fairburn J.A.:

OVERVIEW

[1] Kerry Samms died of cancer on September 24, 2011. His Estate, the Estate Trustee, his wife, Mrs. Samms, and his children (the "appellants") brought a medical malpractice action against multiple health professionals who dealt with Mr. Samms in 2009 and 2010. The jury concluded that the plaintiffs had failed to prove on a balance of probabilities that any of the defendants fell below the standard of care.

[2] The appellants only appeal from the verdict relating to Dr. Wilraad Lottering, Mr. Samms' family physician. The appellants maintain that the trial judge erred in his instructions to the jury on two points: (a) standard of care; and (b) error of judgment. For the reasons that follow, I would dismiss the appeal.

THE LEAD-UP TO THE CANCER DIAGNOSIS

[3] On March 15, 2009, Mr. Samms attended at the Bowmanville Urgent Care Clinic (BUCC), a walk-in clinic contained within the same building as Mr. Samms' family physician, Dr. Lottering. Mr. Samms complained to the on-duty physician, Dr. Moolla, a defendant at the trial, that he had a pain in his lower left side. Dr. Moolla thought that Mr. Samms may have a non-cancerous bowel infection known as diverticulitis and so he ordered a CT scan. Dr. Moolla told Mr. Samms that he should obtain the results of the test either from his family physician or from the BUCC.

[4] Dr. Donsky, a defendant at the trial, interpreted the results from the March 23, 2009 CT scan. His report contained a typographical error. Although the body of his report said that there were "[n]o findings of diverticulitis", the "interpretation" portion of the report read as follows:

Sigmoid diverticulosis. Findings of diverticulitis. Potential filling defect within stomach. Again, this may be technical in nature. Confirmation with direct visualization suggested.

[5] The interpretation section of the report should have read: "No findings of diverticulitis." There were a number of potential explanations for the filling defect that the report referred to. One of them was cancer.

[6] Dr. Moolla and Dr. Lottering received Dr. Donsky's report on March 25, 2009. Dr. Moolla advised his staff to tell Mr. Samms to follow-up with his family physician or to attend the BUCC to obtain and discuss the CT scan results. That same day, Dr. Lottering told his staff to schedule an appointment with Mr. Samms within the next three weeks. Having reviewed the report, Dr. Lottering thought that Mr. Samms may have diverticulitis, but he also wanted to speak to Mr. Samms about the potential filling defect that the CT scan detected. Dr. Lottering placed a note in the "current medical problems" field of Mr. Samms' electronic medical records. The note read in all capital letters: "March 2009 need endoscopy filling defect stomach and diverticulitis". Those records were available to anyone working within the BUCC.

[7] Dr. Lottering's staff arranged an appointment for Mr. Samms to see Dr. Lottering on April 7, 2009. Dr. Lottering's office cancelled that appointment because Dr. Lottering was himself hospitalized for a few weeks in that same time period. On March 30, 2009, Dr. Lottering's staff rescheduled the April 7, 2009 appointment for April 20, 2009. On April 17, 2009, someone in Dr. Lottering's office cancelled that appointment for reasons that are not evident from the record. It was never rescheduled and Mr. Samms did not re-attend Dr. Lottering's office until the following year, on April 20, 2010.

[8] The appellants maintained that Dr. Lottering's staff led Mr. Samms to believe that there was no need for a follow-up appointment because he had diverticulitis. The key witnesses on this point were Mrs. Samms and Cheryl Reynolds (one of the administrative assistants at Dr. Lottering's office). Mrs. Samms gave evidence that her husband spoke with Ms. Reynolds on the phone on April 22, 2009 following the cancellation of the April 20, 2009 appointment. After that discussion, Mrs. Samms had the impression that Mr. Samms believed he had diverticulitis and that a follow-up appointment was not necessary.

[9] Ms. Reynolds testified that she could not remember Mr. Samms and thus did not recall the conversation Mrs. Samms described. Even so, she said that whenever a patient pushed her for results, at the very most, she would read the entire interpretation section of the report. In this case, that would have included the reference to the "potential filling defect within the stomach" and the suggestion that confirmation be obtained with "direct visualization". Her evidence was that she never interpreted results. She therefore would neither have told Mr. Samms that he might have cancer nor that he only had diverticulitis.

[10] Moreover, Ms. Reynolds testified that she would never tell a patient that they did not need to follow up on a test result. Dr. Lottering's evidence was that his only instruction to Ms. Reynolds was to tell Mr. Samms that he should follow up. There was no evidence that Dr. Lottering instructed Ms. Reynolds that the need for an appointment had passed.

[11] Accordingly, the jury heard evidence that would have permitted it to conclude that Dr. Moolla (at the initial BUCC visit), Dr. Moolla's staff (after the CT scan report was received), and Dr. Lottering's staff (at Dr. Lottering's direction) all instructed Mr. Samms to see Dr. Lottering (or the BUCC) to follow-up on the CT scan.

[12] By the fall of 2009, Mr. Samms experienced further health issues and saw a number of doctors. During one of those appointments, Dr. Irish at the BUCC read Mr. Samms' electronic medical record and saw Dr. Lottering's capitalized note. Dr. Irish read Dr. Lottering's note to Mr. Samms and then asked him what the endoscopy had shown. When it became apparent that Mr. Samms had not had the endoscopy, Dr. Irish told Mr. Samms that it was important that he go see Dr. Lottering and have the endoscopy done. Mr. Samms did not heed that advice.

[13] Another physician in the local emergency ward told Mr. Samms on January 30, 2010 to follow-up with his family physician if his pain persisted. It would appear that Mr. Samms did not heed that advice.

[14] Over a nine-day period in March 2010, Mr. Samms attended at the BUCC on three different occasions. On one of those occasions, Dr. Lottering happened to be the doctor on duty in the BUCC. Mr. Samms was complaining of gastric discomfort. As Dr. Lottering was scheduled to work at the emergency department the next day, he could get tests expedited, including scheduling an endoscopy. Accordingly, he told Mr. Samms to go to the emergency department the next day. Mr. Samms did not attend as requested. On a subsequent occasion, another doctor told Mr. Samms to book an appointment with his family physician within a week. Mr. Samms did not do so.

[15] On April 20, 2010, Mr. Samms went to Dr. Lottering's office with abdominal pain and reported that he had felt a mass in his stomach that morning. Dr. Lottering also felt a mass in Mr. Samms' stomach. Dr. Lottering ordered tests and asked Mr. Samms to attend at the emergency room on April 23, 2010. This time Mr. Samms attended. An ultrasound revealed a large mass in his stomach. By May 26, 2010, the pathology was back and Mr. Samms was told that he had cancer. He started chemotherapy in June, but by December it ceased to be effective. Mr. Samms passed away nine months later.

ANALYSIS

(1) Overview

[16] The appellants raise two broad concerns with the charge to the jury.

[17] First, the appellants claim that the instructions on the applicable standard of care were wrong or, at a minimum, so confusing as to leave the jury with no understanding of how to approach the issue. Despite the fact that both parties called expert evidence on the standard of care applicable to Dr. Lottering, there is no dispute between them that, in the circumstances of this case, the jury could have fixed the standard of care through an application of their good common sense: ter Neuzen v. Korn, [1995] 3 S.C.R. 674. The appellants maintain that the trial judge erred by instructing the jury that they could not apply their common sense to that issue and, instead, had to act solely on the basis of the expert evidence. They also submit that the jury would not have understood that it could find Dr. Lottering negligent even if he complied with a standard practice, provided that the jury found the standard practice negligent.

[18] Second, the appellants maintain that the trial judge erred by inviting the jury to deliberate upon whether Dr. Lottering's actions resulted from an error of judgment. Given that this case had nothing to do with the exercise of medical judgment, the appellants contend that an instruction on the principle relating to error of judgment had no proper place in the jury's deliberations.

[19] I will first address the issue relating to the instructions on standard of care.

(2) Standard of Care: The ter Neuzen Principle

(a) The Appellants' Position About the Standard of Care

[20] At its core, the appellants' position at trial was that Dr. Lottering fell below the standard of care when he failed to properly and fully communicate with Mr. Samms in a way that would have brought home to his patient the potential seriousness of the situation and the urgent need to follow-up on the "potential filling defect" noted on the CT scan report. The appellants characterize Dr. Lottering's failings as communication and administrative errors, including the failure to have a system in place to notify Dr. Lottering's office when a patient fails to attend for a follow-up appointment in these types of situations. The appellants contend that Dr. Lottering's failings resulted in a delayed cancer diagnosis, which in turn caused Mr. Samms' cancer to go from curable to incurable.

[21] Accordingly, the appellants say that this case was really about the standard of care applicable to communications by physicians and the administrative management of their offices when it comes to patients who could be facing a serious illness where time is of the essence. As there is nothing complex, highly technical or scientific about determining when and how to contact a patient for a follow-up appointment, the appellants say that this case was ripe for the jury's application of common sense in fixing the standard of care. Even if the jury found that Dr. Lottering complied with a standard practice in the profession, the appellants say that this finding would not be determinative because the jury could still have applied their common sense to the question of whether the standard practice itself was negligent.

(b) The Expert Evidence on Standard of Care

[22] Despite their position that the jury could determine the standard of care based purely upon an application of common sense, the appellants chose to lead expert evidence regarding the standard that was applicable to Dr. Lottering. To that end, the appellants called Dr. Howard Rudner, who was qualified in the area of family physicians in the family physician setting, both in relation to walk-in clinics and family physician offices.

[23] Dr. Rudner opined that given the "abnormal" result on the face of the CT scan report, Dr. Lottering had a "duty of care and responsibility to follow up on his concerns". Dr. Rudner testified that having noted that an endoscopy was required, Dr. Lottering "dropped the ball" by failing to take the steps necessary to have it done. He should have had the information about the seriousness of the matter conveyed directly to Mr. Samms, even if it had to be done over the phone. Moreover, Dr. Lottering failed in his duty to Mr. Samms by failing to have a system in place that would signal when a patient, like Mr. Samms, had failed to attend for an important follow-up appointment.

[24] The respondent called Dr. Michael Gilmour, who was qualified to offer expert opinion evidence in the same areas as Dr. Rudner. (Dr. Gilmour also provided expert opinion evidence regarding the other doctor defendants and whether they had fallen below the standard of care.) Dr. Gilmour opined that Dr. Lottering had met the standard of care. He testified that the CT scan results did not reveal an urgent need to follow-up on the filling defect as it could have been an indication of any number of different things, entirely unrelated to cancer. That evidence was consistent with what Dr. Lottering testified to, that although he knew that a filling defect could signal cancer, it could also signal a number of other more benign conditions.

[25] Dr. Gilmour asserted that it was sufficient for Dr. Lottering to instruct his staff to inform Mr. Samms about the need to schedule an appointment within three weeks. Given the indefinite diagnosis that may emerge from an observed filling defect, Dr. Gilmour testified that it would have been inappropriate to tell a patient over the phone that they may have cancer. He also testified that it is difficult to force a patient to come to the doctor's office. Once the patient is told that follow-up has been recommended, "you have to expect the patients will heed that recommendation and will follow up." He testified that it was not standard practice for a physician to have a diary system to pursue patients who do not return for follow-up appointments. Finally, Dr. Gilmour said that it would have been improper to schedule an endoscopy for Mr. Samms without Dr. Lottering having discussed the matter with his patient.

(c) The ter Neuzen v. Korn Principle

[26] In light of the fact that the parties had called expert evidence upon the standard of care applicable to Dr. Lottering, both parties requested that the trial judge provide an instruction in accordance with ter Neuzen.

[27] The courts lack technical expertise in relation to the medical profession. As such, when there is expert evidence that doctors act in "accordance with a recognized and respectable practice of the profession", the doctor will typically not be found negligent: ter Neuzen, at para. 38. Like most rules, though, there is an exception.

[28] While compliance with a recognized and respectable practice will normally serve to exonerate doctors of medical wrongdoing, in some circumstances, those standard practices will themselves be negligent. The fundamental question for consideration is whether the standard of care can be determined on the basis of the jury's ordinary knowledge or whether the matter requires determination strictly on the basis of expert evidence because it is "beyond the ken of the average juror": ter Neuzen, at para. 55.

[29] Where the matter can be easily understood by an ordinary person with no expertise in the medical profession, and where the common practice itself is so "fraught with obvious risks" that the practice can be seen as negligent, it is open to the trier of fact to determine the applicable standard of care, one that might not align with the standard practice within the profession: ter Neuzen, at paras. 41, 43, 51. The Supreme Court summarized this principle in ter Neuzen, at para. 43:

Thus, it is apparent that conformity with standard practice in a profession does not necessarily insulate a doctor from negligence where the standard practice itself is negligent. The question that remains is under what circumstances will a professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger, a judge or a jury may find that the practice is itself negligent.

[30] Accordingly, where it is readily apparent to a non-medically trained person that a standard practice within the medical profession lacks "obvious and reasonable precautions", the practice itself may be found negligent: ter Neuzen, at para. 51. Where the trier of fact finds that the standard practice within the profession is itself negligent, the typical shelter afforded a defendant physician by claiming that he or she simply conformed to the standard practice will evaporate.

[31] There is no dispute that, despite having called expert evidence on the standard of care applicable to Dr. Lottering, the appellants were entitled to a ter Neuzen charge. The appellants say that the charge fell short in adequately conveying those principles to the jury and, in fact, conveyed the opposite.

(d) The Impugned Instructions

[32] The appellants point to several passages in an over 300-page charge, delivered over two days, to suggest that the jury would not have understood, even if they found that the standard practice in the profession accorded with Dr. Gilmour's evidence, that they could apply their common sense to determine whether that standard practice was itself negligent. In support of that proposition, the appellants point to the following three instructions given to the jury:

In many cases common sense dictates the standard of care as reasonable people know what they should or should not do in any situation. In other cases, such as this, expert evidence is required in those engaged in a particular activity, task or calling to assist the court in determining the standard of care. …

In this case I instruct you as a matter of law that the standard of care must be determined on the basis of medical evidence and not your personal untrained views. …

Be guided by the medical evidence that you accept. Neither you nor I have medical expertise. If a doctor is acting in accordance with a recognized and respectable body of thinking within the medical profession in providing care, he is not negligent. He does not fall below the standard of care. (emphasis added)

[33] When it was complete, the appellants objected to the charge on the basis that the trial judge "might have left the jury with the impression that they need[ed] expert evidence" to determine the standard of care. The trial judge disagreed and refused to re-charge the jury on the ter Neuzen point. He expressed the view that he had told the jury that they could apply their common sense in determining the standard of care.

[34] On the second day of deliberations, the jury asked the trial judge to repeat the charge on standard of care. The trial judge obliged by reading back those portions of the charge that dealt with the issue, including the impugned instructions.

[35] The appellants say that together, the passages effectively removed the ter Neuzen principle from the jury's deliberations in three separate ways. The appellants contend that the instructions would have left the jury with the impression that: (a) the standard of care could only be determined on the basis of expert evidence; (b) common sense could not be applied when determining the appropriate standard of care; and, (c) a finding that Dr. Lottering conformed to a standard practice within the profession would necessarily absolve him of negligence, even if common sense suggested that the common practice was itself negligent.

[36] I will now explain five reasons why the appellant cannot succeed on this ground of appeal: (i) the expert evidence instruction was correct in law; (ii) the jury was not directed to only consider expert evidence on the question of standard of care; (iii) a contextual approach allays any residual concerns about the first two impugned instructions; (iv) a contextual approach demonstrates that the jury would have understood that it must consider whether the standard practice was itself negligent; and (v) even if the jury was confused, there was no substantial wrong or miscarriage of justice.

(i) No Error in Expert Evidence Instruction

[37] First, I do not agree that the trial judge was wrong when he said that in some cases common sense alone dictates the standard of care, while in other cases, "such as this" case, expert evidence is required to "assist the court in determining the standard of care". That is an accurate statement of law.

[38] It is non-controversial that, in cases where the ter Neuzen principle applies, the jury may fix the standard of care on the basis of common sense alone: ter Neuzen, at para. 55; Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at para. 31. Indeed, having chosen not to elicit expert evidence in relation to the standard of care applicable to Dr. Moolla and Dr. Donsky, in this very case the appellants were relying solely upon the jury's good common sense to determine the standard of care applicable to those defendants. Unlike the appellants, the respondent and the other defendants called expert evidence relating to the standard of care applicable to Dr. Moolla and Dr. Donsky.

[39] It is equally non-controversial that sometimes "expert evidence is required … to assist the court in determining the standard of care". For instance, where the standard practice within a profession is in issue, a factor informing the standard of care analysis, expert evidence will often be required to assist in determining what that standard practice involves. Where expert evidence on this point has been called and the ter Neuzen principle applies, the jury will be instructed to first consider all of the evidence, including the expert evidence, to determine what the standard practice is. Conflicts in the evidence are for the jury to resolve: ter Neuzen, at para. 52.

[40] The trial judge did not tell the jury that they could only determine the standard of care on the basis of expert evidence, only that expert evidence was required to "assist" in making that determination. As the appellants chose to lead expert evidence on the issue, I see nothing wrong with that instruction.

[41] It is important to recall that expert evidence is presumptively inadmissible. It only becomes admissible where, among other things, it is relevant to an issue for resolution and necessary to assist the trier of fact in understanding matters beyond the ken of the average trier of fact: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 14-15, 19. Inextricably linked to the decision to lead actual expert evidence on the issue relating to the standard of care applicable to Dr. Lottering, was the appellants' implicit acknowledgment that the evidence was necessary to "assist" the jury in determining the standard of care.

[42] Having regard to the appellants' decision to marshal expert opinion evidence in relation to the standard practice issue and whether Dr. Lottering acted in accordance with it, there was nothing wrong with the trial judge instructing the jury in a way that explained to them that in some cases expert evidence is required to "assist" in determining the standard of care. This is particularly true in light of the fact that the appellants did not marshal expert evidence in relation to the other physician defendants.

[43] The real question is whether the jury was told that they could reject the expert evidence or, if they found a standard practice arising from the expert evidence, that they could find that standard practice was itself negligent. As I will shortly explain, the jury was instructed on both of these points.

(ii) Trial Judge Directed the Jury to Consider Non-Expert Evidence

[44] The appellants claim that the impugned instructions above amounted to an instruction that the jury could only determine the standard of care applicable to Dr. Lottering based upon the expert evidence, the corollary being that the jury could not apply their common sense to that question. I disagree.

[45] The appellants appear to equate "medical evidence" with "expert evidence". They are not the same thing. Although the trial judge told the jury that the standard of care had to be determined on the basis of "medical evidence" and not "personal views", and to be "guided by the medical evidence", those instructions were made against the backdrop of a 30-day trial that was largely consumed by medical evidence, only some of which was expert in nature. Before the trial judge instructed the jury to consider the "medical evidence," he specifically referred to not only the expert evidence of Dr. Rudner and Dr. Gilmour but also "all of the other evidence that you have before you."

[46] The instruction to look to the medical evidence to determine the standard of care was nothing more than a reminder to the jury that they had to determine the live issues relating to the standard of care based upon the evidence they had heard. In other words, it was not a direction to the jury to determine the standard of care based exclusively upon the evidence of Dr. Rudner and Dr. Gilmour, but to look to all of the evidence in fulfilling their obligation to determine the applicable standard of care. The trial judge comprehensively reviewed all of the evidence.

(iii) Contextual Analysis Addresses Any Concerns Regarding Expert Evidence Instructions

[47] Even with those qualifications in mind, I agree that when considered in isolation, some of the language in the first two impugned instructions, specifically the language concerning "medical evidence" and expert evidence being "required", is not ideal. Accordingly, I move on to a further reason why the appellants cannot succeed on their first two submissions: a contextual analysis.

[48] It is important to examine alleged errors in a jury charge against the entire charge and the trial as a whole: R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32; Surujdeo v. Melady, 2017 ONCA 41, 410 D.L.R. (4th) 538, at para. 83. The standard of review for jury charges does not hold them to a standard of perfection, but asks whether the words have conveyed to the jury the correct legal test to apply, "whether the jury would have properly understood the law at the end of the charge": Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Company, 267 D.L.R. (4th) 690 (Ont. C.A.), at para. 51.

[49] An approach that parses jury instructions word-by-word and sentence-by-sentence will almost invariably lead to error. Because words, sentences and paragraphs often take their meaning from the words, sentences and paragraphs that surround them, we do not consider the accuracy of jury charges by microscope. Having regard to the entire context for the charge, including the contextual backdrop of the trial, the ultimate question is what the jury would have taken from the impugned instructions. It is the "overall effect of the charge that matters": R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paras. 30-31; Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, at paras. 81-86.

[50] Having considered the portions of the impugned instructions that address expert evidence against the whole of the charge, and the context of the trial, I am satisfied that the jury would have understood how to correctly approach their task in considering the expert evidence. The jury was specifically instructed that:

(a) They must consider the charge "as a whole";

(b) They had to take into account "all of the evidence";

(c) They had to bring to bear on their deliberations their individual and collective "common sense and good judgment";

(d) It was up to them to determine the amount of weight to give to the expert opinion evidence and it was open to them to reject the expert evidence; and,

(e) They could consider both the expert and non-expert evidence in determining the standard of care, including that "[t]here is before you Dr. Rudner's and Dr. Gilmour's expert opinions in this regard as well as all of the other evidence that you have before you."

[51] Although standing on their own the impugned passages concerning the role of expert evidence do not rise to the level of perfection, perfection is not required. Contextually approached, I am satisfied that the jury would have understood that they should exercise their common sense and collective wisdom during the entire deliberative process. They would not have thought that their common sense had to be suspended when it came to determining the standard of care and that they could only rely on the expert evidence.

(iv) The Jury Would Have Correctly Understood the Standard Practice Instructions

[52] Although there is some merit to the appellants' submission that the trial judge failed to clearly explain to the jury that it could find Dr. Lottering negligent even if it found that he complied with a common medical practice, I am not persuaded that the instructions led the jury into error.

[53] The trial judge gave two instructions that, standing on their own, conflict with the ter Neuzen principle that says that conformity with a standard practice will not insulate a doctor from negligence where that standard of practice is itself negligent:

I instruct you as a matter of law that if you find on the evidence that Dr. Lottering… complied with the conduct approved by a respectable body of the medical community, [he] should not be found negligent on the basis that [he] fell below the standard of care. …

If a doctor is acting in accordance with a recognized and respectable body of thinking within the medical profession in providing care, he is not negligent. He does not fall below the standard of care.

[54] When the jury asked for the instructions on the standard of care to be repeated on the second day of deliberations, the trial judge gave those instructions again, including the ones just reviewed.

[55] If the above impugned instructions stood alone, there would be significant force to the appellants' position that the jury was misled into thinking that compliance with the standard practice would be dispositive of the issue involving standard of care. Those instructions, though, must be read in their larger context. There are three contextual factors that satisfy me that the jury would not have misunderstood their task.

[56] I first turn to the surrounding instructions.

[57] Preceding the impugned instructions, both in the charge and repeated charge, the trial judge explained how the jury should approach the issue of standard practice and its impact on their determination of the standard of care. The first thing that the jury heard on this point was as follows:

If [Dr. Lottering] rendered treatment which conforms with the standard and recognized practice followed by other doctors in the field, unless that practice was shown to be unsafe and dangerous, the fact that [he] followed that accepted practice is important evidence that he … exercised the reasonable degree of skill and care. (emphasis added)

[58] Later, still before any of the impugned instructions, the trial judge instructed the jury that:

Where it is established that a doctor departed from the approved practices of his profession that may often be a strong indication that the doctor in question has fallen below the standard of care expected by the law and so he or she may be properly found to be negligent. However, when a doctor acts in accordance with a recognized and respectable practice of the profession at a particular point in time, he or she ought not to be found negligent unless that common practice is obviously fraught with serious and unacceptable risks that are apparent even to persons such as you and I who do not have any medical training. (emphasis added)

[59] When the trial judge repeated his charge on the standard of care, he again repeated these instructions before he repeated the portions of the charge impugned by the appellants.

[60] On the basis of these instructions, what I will refer to as the "unless" instructions, the jury would have understood that, while a standard practice may be a "strong indicator" or "important evidence" of the standard of care, that would only be the case where the jury was satisfied that the standard practice was not itself "obviously fraught with serious and unacceptable risks" or "shown to be unsafe and dangerous". Although it could have been done more clearly, the jury was instructed that it had to consider whether the standard practice was itself negligent. Only after the "unless" instructions, was the jury told that compliance with "the conduct approved by a respectable body of the medical community" would negate liability.

[61] Considered contextually, I am satisfied that the jury would have understood the impugned instructions as an articulation of the general rule that, conforming to a recognized standard practice within the medical profession would generally result in a finding that the physician has met the standard of care. I am equally satisfied that the jury would have understood that there is an exception to that general rule, triggered by a finding that the standard practice is itself fraught with obvious risk: ter Neuzen, at para. 41. Read contextually, the instructions conveyed these salient aspects of the ter Neuzen principle to the jury.

[62] This conclusion is bolstered by the fact that the context of the entire 30-day trial would have assisted the jurors in their correct understanding of the ter Neuzen principle. This is the second contextual factor satisfying me that the jurors would have understood their task.

[63] As noted previously, unlike all of the defendant doctors who called expert evidence on standard practice, the appellants did not call expert evidence in relation to Dr. Moolla and Dr. Donsky. Despite the appellants' decision not to call expert evidence respecting Dr. Moolla and Dr. Donsky's standard of care, the jury heard abundant lay evidence and argument from the appellants alleging that the practices of Dr. Moolla and Dr. Donsky were negligent. In contrast, the defendants called evidence that stressed the steps that Dr. Moolla and Dr. Donsky took to exhibit care and diligence in their treatment of Mr. Samms.

[64] Against that backdrop, the proposition that the trial judge left the jury with the impression that Dr. Gilmour's evidence on standard practice was necessarily determinative of the result, even if that practice appeared to the jury to be fraught with obvious risks in light of the lay evidence, would not have made sense to the jury.

[65] Moreover, the trial judge explicitly noted that Dr. Rudner's evidence did not apply to Dr. Moolla and Dr. Donsky. However, the trial judge did not follow this comment by telling the jury that a finding that Dr. Moolla and Dr. Donsky complied with what Dr. Gilmour described as standard practice would end the inquiry. Instead, he stated that "it is for you to decide." Prior to this instruction, the trial judge had given the jury an extensive summary of not only the expert evidence but also the lay evidence. The jury would have understood that there would have been little point to summarizing the other evidence had Dr. Gilmour's expert opinion on the standard practice been determinative.

[66] Lastly, I turn to the parties' closing submissions as further evidence of what the jury would have understood, specifically that it was open to them to find that compliance with a standard practice did not immunize Dr. Lottering from liability.

[67] The appellants argued that the jury could find Dr. Donsky and Dr. Moolla liable even though the appellants did not call expert evidence in relation to either of them. Despite the absence of expert evidence, the appellants explicitly told the jury that "you can decide" that Dr. Donsky and Dr. Moolla were negligent. The defendants at trial submitted that the jury should find Dr. Moolla, Dr. Donsky, and Dr. Lottering met the standard of care because they complied with Dr. Gilmour's evidence of the standard of care. However, they did not submit that the jury was required to find that they met the standard of care if they complied with what Dr. Gilmour described as standard practice. Instead, the defendants stressed why Dr. Gilmour's evidence of the standard of care accorded with diligence and common sense. As the Supreme Court stated in R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 50, the fact that "neither counsel invited the jury to follow the impermissible line of reasoning" flowing from a flawed instruction is a "relevant consideration".

(v) Alternatively, No Substantial Wrong or Miscarriage of Justice

[68] Even if the appellants are right that the impugned instructions left the jury confused about the ter Neuzen point, I agree with the respondent that no substantial wrong or miscarriage of justice was occasioned by the instructions on the effect of a standard practice: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). Not all errors require a new trial. It is for the appellants to demonstrate that the alleged error rises to that level: Surujdeo, at para. 95.

[69] Although it can be both difficult and risky to interpret a jury's verdict, express and implied facts are sometimes inextricably linked to that verdict: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17; R. v. Brown, [1991] 2 S.C.R. 518, at p. 523; Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at para. 46. The verdict in this case is one that both expressly and by implication demonstrates that the appellants have failed to establish a substantial wrong or miscarriage of justice.

[70] It is implicit in the jury's express finding that Dr. Lottering had not fallen below the standard of care, that the jury rejected Dr. Rudner's expert opinion evidence about what was required of Dr. Lottering in the circumstances. Said differently, if the jury had accepted Dr. Rudner's opinion on the point, they would have found that Dr. Lottering had fallen below the standard of care.

[71] The jury would have been very familiar with Dr. Rudner's evidence as the trial judge spent more than twenty pages of transcript summarizing it in the charge. That evidence aligned with what the appellants also said was the common sense position regarding the standard of care applicable to Dr. Lottering. The appellants' central point, as reflected in the summary of their position provided to the trial judge for inclusion in the charge, was that the jury should accept Dr. Rudner's evidence on the standard of care. Having rejected Dr. Rudner's opinion on the matter, it is difficult to imagine that, even if the appellants are right about the impugned instructions, the jury would have come to any different conclusion even with a pitch perfect ter Neuzen instruction.

(3) The Charge on "Error of Judgment"

[72] For the first time in this court, the appellants take issue with the trial judge's charge relating to the principle involving error of judgment. Their overarching complaint is that the jury was provided an instruction on the principle. Their underlying complaint is that, even if the instruction was properly given, the trial judge erred in how he conveyed the principle. I will start with whether the instruction should have been given at all.

(a) An Error of Judgment Instruction Was Appropriate

[73] The error of judgment principle is rooted in the reality that a great deal of medical treatment depends on the exercise of medical judgment. Although that judgment may be wrong, the fact that it is wrong does not mean that it is necessarily negligent. What the law requires is that reasonable care be taken in the exercise of medical judgment. As noted in Wilson v. Swanson, [1956] S.C.R. 804, at p. 811, what the doctor "undertakes with the patient is that he possesses the skill, knowledge and judgment of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them." In Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 363, the court emphasized that medical professionals should not be held liable for "mere errors of judgment which are distinguishable from professional fault." In other words, an error of judgment is an error made while the doctor is otherwise exercising reasonable care: Gerald B. Robertson & Ellen I. Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2017), at p. 464.

[74] The appellants maintain that there was no proper place for an instruction on error of judgment because this case did not turn on the application of medical expertise. The appellants say that the principle exists to relieve physicians of negligence only in those cases that turn on clinical judgment calls. They argue that it does not apply as a defence in situations relating to the administrative management of patients, none of which requires physicians to make clinical judgment calls.

[75] Even if the appellants were correct about the narrow scope for when a physician can claim error of judgment, I do not agree with the proposition that Dr. Lottering exercised no medical judgment in how he responded to the results shown on the CT scan report.

[76] Dr. Lottering testified that he governed himself in accordance with his understanding and interpretation of Dr. Donsky's CT scan report. Dr. Lottering had regard to the fact that Dr. Donsky had made an incidental finding when he performed the scan and that visualization should be considered. Although Dr. Lottering acknowledged that the "potential filling defect" could be cancer, in Dr. Lottering's view there were numerous other medically neutral possibilities at play. He did not see this situation as urgent because, as he noted in his evidence, when scanning the abdomen and the pelvis areas, there is as much as a 30 percent chance of discovering something that you were not looking for. In this case, Dr. Lottering said that there was no urgency noted in the CT scan report and, in fact, Dr. Donsky had written that "direct visualization" was only "suggested". Accordingly, it would have been open for the jury to conclude that Dr. Lottering applied his judgment and medical experience to the report and came to the decision that, while follow-up was required, it was not urgent.

[77] Moreover, in accordance with Dr. Lottering's evidence, Dr. Gilmour expressed the opinion that the "filling defect" was what he described as a "non-specific finding", one that "may be nothing or it might just be the stomach is kinked on itself." He indicated that the filling defect could be a "food mass in the stomach … pushing up against the bowel – the stomach wall and creating that defect." He testified that the kind of defect noted on Dr. Donsky's report "usually" ends up "being nothing". In light of the differential diagnosis arising from the CT scan report, with cancer being "down in that potential list", Dr. Gilmour said that Mr. Samms should not have been told over the phone that he may have cancer. As Dr. Gilmour said, that would "really alarm a patient to hear that word" from office staff or a physician over the phone and those conversations should be had in person.

[78] Dr. Lottering also testified about why he did not simply order an endoscopy for Mr. Samms, despite not having seen his patient. It was Dr. Lottering's view that he had to do a clinical examination and discuss the endoscopy with his patient. He testified that endoscopies carry inherent risks, including of perforation and bleeding, and that he would want to discuss those risks with his patient so that Mr. Samms could make an informed choice about the matter.

[79] Dr. Lottering's evidence was that his decisions to have Mr. Samms follow-up within three weeks and not to order an endoscopy without first discussing the matter with Mr. Samms, were informed by his understanding of the CT scan report. That understanding was informed by applying his medical judgment and experience to the contents of the report. In these circumstances, it was open to the jury to consider whether Dr. Lottering had erred in the exercise of that judgment in a non-negligent manner in coming to the determination of how to approach Mr. Samms' medical needs.

[80] The appellants' case against Dr. Lottering implicated more than just administrative problems. Indeed, during the post-charge discussions, the appellants did not submit that the case exclusively concerned administrative problems, but merely that such problems were "a significant part" of the case. Accordingly, I do not agree that the trial judge erred in leaving the error of judgment principle for the jury's consideration.

[81] Adding support to this conclusion is the fact that, until now, the appellants did not object to the charge on error of judgment. The parties at trial were in the best position to know whether the instruction was relevant or not. Their failure to object is a strong indicator of what the parties thought were relevant issues at trial and a good window into the "seriousness of the alleged misdirection": R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 38; Araya, at para. 51; Marshall v. Watson Wyatt & Co. c.o.b. as Watson Wyatt Worldwide, 57 O.R. (3d) 813 (C.A.), at para. 15.

(b) The Trial Judge Appropriately Crafted the Error of Judgment Instruction

[82] As for the appellants' complaint that the charge on error of judgment was inappropriately crafted, the appellants point to two specific aspects of the charge. First, they emphasize the trial judge's repeated reference to the fact that physicians should not be found negligent for injuries arising out of accidents. For instance, the trial judge said: "We do not condemn as negligence, something which is the result of an honest error in judgment or accident if the skill, knowledge and judgment of the average practitioner in the field was used." (emphasis added) The appellants emphasize that, even if the error of judgment principle was operative, this was not a case about "accident".

[83] I agree with the appellants that this case did not have anything to do with an "accident". Even so, the references to "accident" were superfluous and would not have impacted the jury's deliberations. Read contextually, the trial judge accurately conveyed the principle to the jury. They were told more than once that: "[a] doctor is not negligent at law where he or she has made an honest error in judgment"; "[a] doctor who makes an honest and intellectual exercise of judgment that unfortunately turns out to be wrong must nevertheless be considered by you to have met the standard of care". Considered against the factual context of the trial, and the entire charge, the jury would have understood the operative principle they had to apply.

[84] Finally, the appellants take issue with the trial judge's comment that:

if we imposed liability on doctors for everything that happened to go wrong, doctors would be more concerned with their potential liability of facing a lawsuit, than with the good of their patients. Initiative would be stifled and confidence shaken.

[85] The appellants say that this was an "inexplicable" instruction in the context of this case and went too far in emphasizing the principle to be applied. I disagree.

[86] Again, the passage must be contextualized. The very next passage after the impugned comment is as follows:

I repeat that a doctor is only expected to act reasonably in practicing medicine. He or she does not ensure the patient's health. You should not find one or more of the defendants negligent for a result which was accidental, could not be reasonably predicted or was a mere judgment call made after the doctor had met the required standards.

[87] That is an accurate statement of law and one that contextualizes the previous comment about initiative being stifled.

[88] Moreover, the impugned passage finds support in Roe v. Minister of Health and Another; Woolley v. Same, [1954] 2 Q.B. 66 (Eng. C.A.), at pp. 86-87, where Lord Denning said:

Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

[89] That passage has been picked up in multiple judgments, including of this court: Crits v. Sylvester, [1956] O.R. 132 (C.A.), at p. 144; aff'd, [1956] S.C.R. 991. Numerous recent Superior Court medical malpractice decisions have cited the portion of this court's decision in Crits that adopted this Lord Denning passage: Suwary (Litigation Guardian of) v. Librach, 2015 ONSC 2100, at para. 63; Rycroft v. Gilas, 2017 ONSC 1397, at para. 60; Hillis v. Meineri, 2017 ONSC 2845, at para. 58.

[90] Although it was unnecessary to include the Lord Denning comment in the charge to the jury, trial judges are properly granted a wide berth in determining how best to structure their jury charges: R. v. Speers, 2017 ONCA 333, 347 C.C.C. (3d) 401, at para. 30; Sacks, at para. 83. Writing a jury charge can be a complex and difficult task, one that calls for and requires the exercise of discretion. Provided those discretionary calls are in compliance with the law and the charge as a whole is balanced and provides the jury with the necessary tools to properly decide the live issues before them, deference must be shown.

[91] In this case, the trial judge was best positioned to determine how to convey the necessary legal principles for the jury's consideration. The trial judge had sat with that jury for over a month. He had a front-row seat as he watched and heard the evidence unfold. He knew the live issues before the court, he knew the parties' positions and he knew the needs of the jury. While the instruction regarding initiative and confidence was unnecessary, I would defer to the trial judge's decision to provide the jury with that instruction.

[92] With that said, the appellants point to the fact that the trial judge did not stay true to the standard instruction for error of judgment found in Justices Jennifer Power, Ronald Skolrood & Lisa Warren, CIVJI: Civil Jury Instructions, loose-leaf (2019 update), 2nd ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 2009), at para. 9.10. That instruction reads:

In this case you may conclude on the evidence that [the defendant] made an error. However, [the defendant] maintains (he/she) was not negligent. A doctor is not liable for an honest error of judgment provided he or she exercises his or her judgment honestly and intelligently in the patient's best interests. [The plaintiff] must satisfy you that [the defendant] did not exercise the skill, knowledge, and judgment of the average [doctor of this type] when treating the patient.

[93] I agree that the charge on error of judgment does not conform to the attractive simplicity and accuracy of the CIVJI recommended instruction. The legal accuracy of an instruction, though, should not be measured by its adherence to a specimen instruction. The ultimate question is whether the issue has been accurately conveyed to the jury: Sacks, at para. 84. Read contextually, I am satisfied that the jury understood their task in this case.

CONCLUSION

[94] I would dismiss the appeal.

[95] The parties agree that should the respondent prevail, a costs award of $50,000 inclusive of disbursements and H.S.T. should follow. I would make that costs order.

Released: "AH" March 20, 2019

"Fairburn J.A." "I agree. Alexandra Hoy A.C.J.O." "I agree. Robert J. Sharpe J.A."