CITATION: French v. Stachejczuk, 2017 ONSC 5490

COURT FILE NO.: CV-12-0138

DATE: 2017-09-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA JEAN FRENCH, COURTNEY MOORE and SHAYLIN MOORE

R. Somerleigh, for the Plaintiffs

Plaintiffs

• and -

BARB ELLEN STACHEJCZUK

M. Smith and D. Mitchell, for the Defendant

Defendant

HEARD: December 1, 5-9, 12-16, 2016, at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Reasons For Judgment

[1] The plaintiff, Lisa Jean French, claims damages for negligence and battery relating to chiropractic treatments provided to her by the defendant, Dr. Barbie-Ellen Stachejczuk. Dr. Stachejczuk treated Ms. French on August 16 and 17, 2010, when Ms. French’s regular chiropractor, Dr. Dana Gleeson, was on vacation.

[2] Ms. French is 48 years of age. Prior to the 2010 treatments in question, she had a long history of chronic neck pain, upper back pain, headaches and degenerative changes in her cervical spine. She began receiving chiropractic treatments when she was in her teens. In 1993, she began seeing Dr. Gleeson at the Gleeson Clinic in Thunder Bay. Over the course of the next 17 years, she was treated by Dr. Gleeson on average 12 to 14 times per year.

[3] In 2006, Ms. French’s family doctor referred her to an anaesthetist, Dr. George Doig, for possible nerve blocks to deal with increasingly severe headaches. Dr. Doig, in turn, referred Ms. French for X-rays and for an MRI of her cervical spine.

[4] An X-ray of Ms. French’s neck, taken on January 26, 2006, showed straightening and a mild kyphotic curve of the cervical spine. A kyphotic curve is a forward bend to the neck area that can relate to degenerative changes to the neck. At trial, there was agreement among the plaintiffs’ and defendant’s medical experts that the degenerative changes shown in the January 26, 2006 X-ray were not recent. They represented a progressive wear and tear of the discs over time. They agreed that it was unusual for someone who was Ms. French’s age of 38 at the time of the 2006 X-rays to have this amount of degeneration evident at this level of her spine.

[5] An MRI of Ms. French’s spine was done on February 27, 2006. It showed minimal bulging of the disc at C4-C5. At C5-C6, there was a small posterior central disc herniation. At C6-C7, there was a small broad-based posterior osteocartilaginous bar. At C7-T1, there was minimal bulging of the disc.

[6] Dr. Rocco Guerriero, a chiropractor on the faculty of the Canadian Memorial Chiropractic College, testified as an expert for the defendant. He was asked to describe the difference between a bulging disc and a herniated disc. He testified that a disc has an inner part – the nucleus pulposus – and an outer part – the annulus fibrosus. The annulus fibrosus is comprised of different layers. If there is a tear in the annulus fibrosus, which usually occurs from compression loading caused by trauma, the tears can begin to open up and result in a fissure or a track for the nucleus pulposus to bulge out. A bulge would indicate a small amount of herniation. A herniation would mean that the nucleus pulposus had protruded from the annulus fibrosus. Dr. Guerriero said that 80 per cent of herniated discs protrude posterolaterally (behind and to one side), close to the nerve root or even close to the spinal cord, depending on the level of the disc. This can cause compression of a nerve or radiculopathy. He testified that a herniation is a larger bulge.

[7] Dr. Albert Yee is an academic orthopaedic surgeon, with a subspecialty in spine surgery. He is on the staff of Sunnybrook Health Sciences Centre in Toronto. He is a Professor of Surgery at the Faculty of Medicine of the University of Toronto. He testified as an expert for the defendant. He likened a disc to a jelly donut, with an inner gelatinous portion and a thick outer lining. He described how the discs are meant to separate the building blocks for movement at that particular level of the spine. He testified that when degeneration of the disc occurs, the height of the “jelly donut” diminishes and becomes more like a flattened pancake. When the height of the disc is lost, it can result in straightening of the spine and kyphosis. Dr. Yee described the general flattening of the disc as a bulge. He said that a disc herniation occurs when part of the inner “jelly” passes through the outer lining of the disc.

[8] Dr. Yee has actively practiced for 16 years, seeing approximately 30 individuals on each of one or two days in an elective clinical sitting per week. The patients he saw presented with issues similar to those of Ms. French. He also participated on a spine call roster providing surgical care for individuals with traumatic injuries. Based on these experiences, Dr. Yee testified that he would expect that the structural changes shown in Ms. French’s 2006 MRI would typically progress so that discs that had mild degeneration would become moderately degenerated and discs that were bulging would become more protruded and herniated. He said that one would expect over time to see more levels of discs being involved and more osteophytes or bone spurs in those areas. Dr. Yee testified that where the disc is very collapsed, there is almost no disc material to herniate. All that one has are bony spurs at that level. It is where discs have mild to moderate degeneration that there is some risk that the disc will herniate over time. He stated that the types of forces that can cause a disc herniation can range from minimal to significant trauma. The minimal force necessary to herniate a disc that has a compromised integrity could be as minor as day-to-day activity, sneezing, coughing, turning over in bed or lifting a cup to do dishes at the sink.

[9] Dr. Gordon Cheung is a neuroradiologist at Sunnybrook Health Sciences Centre and at Joseph Brant Memorial Hospital in Burlington, Ontario. He is an Assistant Professor at the University of Toronto. He testified as an expert for the plaintiffs. He stated that any kind of trauma, ranging from minor, such as sneezing and coughing, to major, such as a car accident, could cause a disc to herniate, depending on the predisposition of the disc and the underlying risk factors.

[10] Dr. W. Mark Erwin is a Doctor of Chiropractic who has practiced in Ontario since 1984. He obtained a Ph.D. in Medical Science in 2004. He is a scientist at the University Health Network, specifically at Toronto Western Hospital and the Krembil Research Institute. He is an Assistant Professor in the Department of Surgery at the University of Toronto. He testified as an expert for the plaintiffs.

[11] Dr. Erwin testified that a degenerative spine can transition to herniation by reason of an acute event, but that it is often difficult to find a specific inciting event. He said that “by far,” herniation occurs “spontaneously”. He testified that it was normal for a patient with a degenerative spine to have symptoms that come and go for years and then, all of a sudden, the patient has full-blown symptoms. He said that where there is a degenerative disc, the annulus gets weaker and weaker until something, which could be a trivial trauma such as sneezing, turning one’s head or coughing, takes the affected area past the tipping point and makes the area abruptly symptomatic.

[12] Dr. Gleeson has been a practicing chiropractor for 25 years. She is the owner of the Gleeson Clinic. She is not a party to this proceeding.

[13] The defendant was licenced as a chiropractor in Ontario in 1998. She joined the Gleeson Clinic in 2000.

[14] As noted above, Dr. Gleeson began to treat Ms. French on a regular, frequent basis in 1993. Dr. Gleeson treated Ms. French for pain in her low back, upper back and neck as well as for headaches and a wrist injury.

[15] In November 2005, Ms. French signed a consent form prepared by the Gleeson Clinic, entitled “Informed Consent to Chiropractic Adjustments and Care.” The written consent provided, in part:

I hereby request and consent to the performance of chiropractic adjustments and other chiropractic procedures and techniques, including various modes of physical therapy and, if necessary, diagnostic X-rays, on me by the Doctor of Chiropractic named below and/or anyone working in this clinic authorized by the Doctor of Chiropractic listed below, including locum Doctors of Chiropractic. ….

[16] Dr. Gleeson was the doctor named in the consent form. Prior to 2005, it was not practice of Gleeson Clinic to have its patients sign a consent form.

[17] The treatments provided by Dr. Gleeson included adjustments to, or manipulation of, Ms. French’s spine, trigger point therapy and massage.

[18] Dr. Gleeson testified that, in chiropractic medicine, adjustment and manipulation are congruent terms.

[19] Dr. Guerriero explained manipulation as a high velocity, low amplitude thrust administered by a chiropractor to the joints in the spine. Amplitude is the distance that the adjusting hand of the chiropractor moves to get a joint to “release”. Dr. Guerriero said that the movement of the adjusting hand is only millimetres, while the other hand remains stationary, supporting the patient. He said that the force used is minimal. High velocity means that the thrust is done quickly.

[20] Dr. Gleeson testified that Ms. French brought the February 27, 2006 MRI to the Gleeson Clinic. Dr. Gleeson testified that although it would have been a standard practice for her to put a copy of the MRI into Ms. French’s file, she did not do so. She did not know why the MRI was not in the file. Dr. Gleeson said that the MRI showed a small disc herniation, a bulge pointing backwards. She said that this was not a “big red flag”. However, she decided that putting rotations on this area of Ms. French’s spine was not a good idea because over time rotations could increase the disc herniation. It was her opinion that force to the neck was contraindicated because adjustment could move the neck too much. As a result, on July 26, 2006, Dr. Gleeson put a note, in large handwritten letters, on the inside front file cover of Ms. French’s chart which read “No C/S ADJ”. The note meant “no cervical spine adjustment.”

[21] Dr. Gleeson testified that the purpose of the note was so that if she, herself, was not treating Ms. French, the person treating Ms. French and seeing the note would understand that they were not to adjust Ms. French’s neck. Dr. Gleeson testified that after July 26, 2006 she never adjusted Ms. French’s neck. The only treatment she provided to Ms. French’s neck after that date was trigger point therapy which involved pressure but no manipulation of the cervical spine. Dr. Gleeson continued to adjust Ms. French’s thoracic and lumbar spine after July 26, 2006.

[22] Ms. French testified that she was not aware of the “No C/S ADJ” note until Dr. Gleeson brought it to her attention on August 25, 2010, after the treatments by Dr. Stachejczuk which form the basis of this action.

[23] Dr. Gleeson testified that when she made the “No C/S ADJ” note on July 26, 2006, and placed it on the inside of the file cover, there was nothing on top of the note. However, at some point in time, two green sheets relating to a Worker’s Safety Insurance Board (“W.S.I.B.”) claim of Ms. French, dated in 2007, were stapled on top of the note made by Dr. Gleeson, obscuring the note from view if the file folder were open.

[24] Dr. Gleeson testified that the two green sheets would have been stapled on this file folder by the office manager because the office manager did it for every compensation claim. Dr. Gleeson had no knowledge of when the two sheets had been placed over this notation.

[25] In February 2009, Ms. French went back to school for upgrading. In August 2009 she started university. She testified that while doing her university courses, she suffered from neck pain at the base of her skull, which radiated up into her head resulting in headaches. She saw Dr. Gleeson for her neck pain, her headaches and muscle fatigue. She also saw her family doctor, Dr. Bukovy, for these issues. He described her condition as “study neck”.

[26] On August 16, 2010, Ms. French telephoned Dr. Gleeson’s office to make an appointment with Dr. Gleeson because she had headaches and a very sore neck. She was told that Dr. Gleeson was on vacation and was asked if she wanted to see Dr. Gleeson’s associate, Dr. Stachejczuk. Ms. French agreed and an appointment was made for that same day, in the morning. Ms. French also made an appointment for her 15 year old daughter, Shaylin Moore, for that afternoon. Ms. Moore had been involved in a motor vehicle accident in July 2010 and was complaining of back issues.

[27] Ms. French testified that she attended at the Gleeson Clinic on the morning of August 16, 2010. She said that she checked in with the front desk, her name was called, she was given her chart and she took a seat outside Dr. Stachejczuk’s room. She said that when she came into the room, Dr. Stachejczuk set the chart down, asked Ms. French to sit on an examination table and asked her why she was there. Ms. French said that she told Dr. Stachejczuk that she was having headaches starting from the base of her neck. She told Dr. Stachejczuk about her university courses and how Dr. Bukovy had described her neck and headaches as “study neck”.

[28] Ms. French testified that Dr. Stachejczuk then proceeded to do the following:

• Dr. Stachejczuk felt Ms. French’s neck and said that it and other areas felt tight;
• Dr. Stachejczuk had Ms. French lie down, face up, felt the back of her neck and pushed on it;
• Dr. Stachejczuk asked Ms. French to tilt her head to the side and, with her hand on Ms. French’s head and chin, did an adjustment to her neck, but it would not “release”, by which Ms. French meant that it did not “pop” which would allow the joint to be moved into the place it should be;
• Dr. Stachejczuk then tried it the other way a couple of times, massaged the neck, said it was very stubborn and would not release, and then tried again;
• Dr. Stachejczuk then worked on Ms. French’s upper back while Ms. French lay face down, “like CPR compressions” on her upper shoulder;
• Dr. Stachejczuk then had Ms. French sit up on the table, with her legs straight out on the table, because she wanted to adjust Ms. French from that position;
• Dr. Stachejczuk put a pillow at the side of Ms. French’s head, which was turned into Dr. Stachejczuk’s chest, Dr. Stachejczuk had her left knee up on the table beside Ms. French and rocked Ms. French’s body backwards. Dr. Stachejczuk did it again, switching to the other side of the table, put her knee on the table, turned Ms. French’s head to the other side and put her hand on the back of Ms. French’s head and shoulder. Dr. Stachejczuk’s weight went forward, Ms. French went backward, Dr. Stachejczuk lay on top of Ms. French, and Ms. French’s head was turned 90 degrees over her shoulder. Ms. French went flat on the bed, with her head turned to the side;
• Ms. French said that the whole adjustment was unusual and more forceful compared to that which she had received from Dr. Gleeson. She testified that she told Dr. Stachejczuk right away that something did not feel right after this adjustment when Dr. Stachejczuk rocked her backwards. She said it was not a pain, but rather an odd hollow feeling that was not there before the adjustment;
• Dr. Stachejczuk seemed very concerned. She had Ms. French lie face down on the table, felt her neck, turned it side to side and lifted it up;
• Ms. French stood up. Dr. Stachejczuk placed Ms. French’s arms across Ms. French’s chest, went behind her, put her arms around Ms. French, placed her hands on Ms. French’s elbows, put her leg between her and rocked her backwards;
• Dr. Stachejczuk then adjusted Ms. French’s lower back;
• Dr. Stachejczuk told Ms. French that the muscles across her chest, neck and shoulders were very tight and inflamed. Dr. Stachejczuk gave Ms. French some exercises to stretch the muscles out and showed her how to do a stretch using her arm on a door frame;
• Ms. French told Dr. Stachejczuk that something was not right and pointed to the base of her neck. Dr. Stachejczuk told her to get some rest and put some ice on the area and recommended that she come back for similar adjustments three times per week.

[29] Late in the afternoon, Ms. French returned to the Gleeson Clinic with her daughter. She testified that she said to Dr. Stachejczuk that her neck did not feel right from the morning, that she had a pain in her neck and head. It was not a sharp pain but was uncomfortable. She testified that Dr. Stachejczuk said she would have a look. She testified that Dr. Stachejczuk proceeded to do the following:

• Dr. Stachejczuk felt her neck;
• Dr. Stachejczuk had her lie on her back on the table and did an adjustment although not as forceful as the adjustment in the morning. Dr. Stachejczuk pushed her neck at a point where it was tender, moved her head and chin to the side, and gave a jerk of her chin to her shoulder and then did the same on the other side;
• Dr. Stachejczuk gave her some more exercises.

[30] Dr. Stachejczuk has been a licensed chiropractor in Ontario since 1998. She joined the Gleeson Clinic in 2000.

[31] Dr. Stachejczuk testified that when she arrived at the clinic at 8:00 a.m. on August 16, 2010, she was informed by the receptionist that Ms. French, a patient of Dr. Gleeson’s, was scheduled for an urgent appointment at 10:00 a.m.

[32] She said that at a break she reviewed Ms. French’s file for about 15 minutes, looking at Ms. French’s previous injuries and at the treatment notes of Dr. Gleeson in order to review what treatment had been provided and to formulate a treatment plan based on what Ms. French was coming in for. Dr. Stachejczuk said it was the practice of the clinic to staple green W.S.I.B. sheets to the jacket of the file. The green sheets were used by the office manager for accounting purposes. Dr. Stachejczuk said she never looked at the green sheets. She did not see the notation “No C/S ADJ” under the green sheets in the file folder. She testified that if she had seen the notations it would not have affected her impression of the contents of Ms. French’s file because Ms. French had not been receiving any neck adjustments and she was only going to be following along with Dr. Gleeson’s treatment. Those treatments had been adjustments of the thoracic spine, the lumbar spine and the pelvis, together with myofascial work through the neck, upper back, buttock area, hips and ribs. Dr. Gleeson’s treatments were noted in the chart.

[33] When Dr. Stachejczuk met Ms. French on the morning of August 16, 2010, she asked Ms. French why she had come in and why she did not want to wait for her regular chiropractor. Ms. French was complaining of upper back discomfort and neck stiffness, with right and frontal headaches. Dr. Stachejczuk said that she went through a history of Ms. French’s chief complaints and a review of associated signs and symptoms of her condition and elicited that Ms. French was also having chest tightness. Dr. Stachejczuk said that this history was in alignment with what she observed Dr. Gleeson’s treatment to have been. Ms. French told Dr. Stachejczuk that she was taking courses at university and was sitting for long periods of time studying.

[34] Dr. Stachejczuk said that she then performed a physical examination of Ms. French while Ms. French was sitting which consisted of thoracic and cervical range of motion in the active and passive ranges, an orthopaedic manouever for the lumbar spine, and static and motion palpation. Dr. Stachejczuk said that Ms. French had tightness throughout the muscles in her back and neck, trigger points in her front neck muscles, in her jaw muscles and her upper trapezius muscles and restrictions in her thoracic spine in the third, fourth, fifth and sixth segments and in the third, fourth and fifth ribs on the right, and a restriction in the left sacroiliac joint.

[35] Dr. Stachejczuk diagnosed Ms. French with headaches originating from the muscles of the neck, most likely from sitting and studying. Dr. Stachejczuk testified that she told Ms. French that she would release the muscles that were giving her headache and that she would be adjusting her thoracic spine. Ms. French also asked Dr. Stachejczuk to adjust her pelvis.

[36] Dr. Stachejczuk said that she placed Ms. French down on her stomach to do a thoracic adjustment. She testified, however, that Ms. French’s thoracic musculature was too tight and sore to tolerate a thoracic adjustment from that position so she opted to do a thoracic adjustment with Ms. French in a seated position. Dr. Stachejczuk testified that she proceeded to do the following:

• She seated Ms. French on the table with her legs straight on the table;
• She stood on the side of the table to Ms. French’s right side. She only does an adjustment on that one side because she is right handed;
• She explained to Ms. French that she would be taking her backwards and that Ms. French was to keep her chin tucked to her chest and to breathe only when told;
• She told Ms. French that she was going to be adjusting her thoracic spine;
• Ms. French’s arms were crossed across her chest, with her hands on each shoulder, Dr. Stachejczuk’s right forearm was on Ms. French’s right shoulder. A pillow was placed between Dr. Stachejczuk’s chest and Ms. French’s forearms. Dr. Stachejczuk’s left arm was wrapped around Ms. French’s body and her left hand was making contact with the segments on Ms. French’s thoracic spine that she wanted to adjust;
• She told Ms. French to bring her chin to her chest and slump forward and take a deep breath;
• She lowered Ms. French to the table and told her to let the air out;
• At this point, the left hand of Dr. Stachejczuk was between the thoracic spine and the table and she put an impulse through her forearms, using her right hand to hold and stabilize Ms. French;
• She repeated this process for each of the thoracic segments and the ribs which articulate with the thoracic vertebrae;
• To adjust the sacroiliac joint, Dr. Stachejczuk had Ms. French lay on her right side, with her bottom leg straight and the top knee bent, crossing Ms. French’s arms across her chest. She instructed Ms. French to look up at the ceiling. She put her right knee on Ms. French’s bent top knee, with her left hand holding Ms. French’s hands and forearms to stabilize her and with her right hand, made contact on the left sacroiliac joint. Dr. Stachejczuk then rolled Ms. French toward her and applied a low amplitude thrust to the sacroiliac joint;
• Dr. Stachejczuk did trigger point release to Ms. French’s temporomandibular joint (TMJ) area. She had Ms. French lie back, with her head in the head rest and applied pressure from each side of the jaw toward the inside of the mouth;
• Dr. Stachejczuk did muscle work on Ms. French’s sternocleidomastoid muscles – the muscle in front of her neck – by trigger point therapy, by finding the trigger point and pinching that muscle between her thumb and index finger and holding for counts of 20 seconds or until the trigger point releases;
• Dr. Stachejczuk did trigger point release on the upper trapezius (upper shoulder) of Ms. French;
• Dr. Stachejczuk told Ms. French that she needed to do a serious stretching program and she recommended massages. She showed Ms. French some stretches and talked about stress coping mechanisms.

[37] Dr. Stachejczuk recorded in Ms. French’s chart the chiropractic treatment that she rendered. These entries accorded with her testimony as to what treatment she provided to Ms. French.

[38] Dr. Stachejczuk said that the appointment ended by Ms. French thanking her for alleviating her headache, saying that she was pleased with the treatment and advising that she wanted to come back in for more muscle work and that she was going to schedule her daughter to see Dr. Stachejczuk.

[39] Dr. Stachejczuk testified that later at lunch that day she checked her schedule and saw that Ms. French’s daughter, Shaylin Moore, was scheduled for a motor vehicle accident assessment.

[40] Dr. Stachejczuk testified that she never performed a cervical adjustment on Ms. French on the morning of August 16, 2010 or at any other time.

[41] At trial, Dr. Stachejczuk responded to Ms. French’s evidence that Dr. Stachejczuk had treated her with a cervical adjustment. Dr. Stachejczuk testified as follows:

• She had never adjusted Ms. French’s neck;
• If in fact she was going to do both a cervical adjustment and a thoracic adjustment, she would always do the thoracic adjustment first;
• She always started a cervical adjustment with the patient face down, never face up;
• She would never try to adjust a patient’s neck “numerous times”;
• Adjustments are never performed with CPR-like compressions;
• In a thoracic adjustment, she would never turn the patient’s head – the head would always be forward with the chin to the chest;
• She does not put a pillow to a patient’s face;
• She would never do a cervical adjustment in the manner described by Ms. French;
• To her knowledge, no cervical adjustment procedure as described by Ms. French exists in chiropractic treatment;
• If Ms. French was in fact describing a thoracic adjustment, Dr. Stachejczuk would never do it from both sides of the table;
• She would never put her knee on the table in a cervical adjustment;
• Ms. French’s evidence, that after Dr. Stachejczuk performed a cervical adjustment Ms. French said something did not feel right, was not correct. She (Dr. Stachejczuk) did not perform a cervical adjustment and Ms. French did not say that something did not feel right.

[42] With respect to Ms. French’s evidence that after Dr. Stachejczuk did a seated cervical adjustment, she performed an adjustment of Ms. French’s mid upper back, Dr. Stachejczuk said the following:

• She never did a neck adjustment;
• She had never performed a standing thoracic adjustment in her life because she is physically incapable of doing so as a result of having a severely degenerated right knee and having a disc degeneration at the L5-S1 level in her low back. She would therefore be unable to support the patient’s weight in that position.

[43] Dr. Stachejczuk stated that Ms. French came to her daughter’s appointment in the afternoon of August 16, 2010. Dr. Stachejczuk said that Ms. French told her that she thought that Dr. Stachejczuk had missed a joint in her upper back and that there was still something out in her upper back. Dr. Stachejczuk said that she reviewed Ms. French’s file to check to see what she had done earlier in the day. She then did a static and motion palpation of Ms. French’s spine. She checked for thoracic range of motion, which was good. She touched Ms. French’s spine along the thoracic region, applying light pressure on the joints that she had adjusted in the morning. She found no restrictions. She reassured Ms. French that there was nothing to do that day and told Ms. French that she needed to engage in a stretching program. She gave Ms. French no treatment that afternoon. She never performed a cervical or a thoracic adjustment on Ms. French that afternoon. She does not do seated cervical adjustments. She said that the entire encounter that afternoon lasted three or four minutes.

[44] Ms. French testified that after she left the Gleeson Clinic on the afternoon of August 16, 2010, she went home, put ice on her neck, prepared and ate supper, went for a walk, returned home, put more ice on her neck, and went to bed between 10:30 and 11:00 p.m. She said that she woke up with an excruciating pain shooting into her neck and shoulder, with a burning sensation from her neck down her hand and arm. She took two Tylenol 3’s and went back to bed. She woke up in the early hours of the morning because of the pain. Her daughter, Courtney Moore, helped her get dressed and drove her to the hospital.

[45] Ms. French was seen in the Emergency Department of the hospital by a resident. She told the Emergency Room nurses and doctor that the pain started after chiropractic treatment that day. X-rays were taken. The range of motion of her neck was noted in the Emergency record as normal. She was told she had a pulled muscle or pinched nerve. She was given a prescription for Tylenol 3.

[46] At trial, Dr. Cheung reviewed the X-rays taken on August 17, 2010. He testified that there was a very mild cervical kyphosis. In addition to the C6-7 degeneration shown in the 2006 X-rays and MRI, there was now obvious degeneration one level above, at C5-6, with significant disc space narrowing and marginal osteophyte formation. There was further degeneration at C7-T1.

[47] Later on August 17, 2010, Ms. French returned to the Gleeson Clinic for another appointment with Dr. Stachejczuk. Ms. French told Dr. Stachejczuk of her pain and that she had gone to the Emergency Department in the early hours of that morning. Ms. French said that Dr. Stachejczuk felt her neck. She believed that Dr. Stachejczuk adjusted her upper back between her shoulder blades. Dr. Stachejczuk did not treat Ms. French after August 17, 2010.

[48] Dr. Stachejczuk testified about her appointment with Ms. French on August 17, 2010. When Ms. French came in she said that she was having left arm pain and numbness, that she had woken in the middle of the night and had gone to the emergency department where X-rays were taken. She said she was told at the hospital that she had arthritis in her neck and that she should avoid chiropractic treatments. Dr. Stachejczuk said she told Ms. French that she had not done a neck adjustment and was not planning on doing a neck adjustment and that the adjustments she had done to her thoracic spine were not connected with the symptoms in her arm. Dr. Stachejczuk testified that she did an evaluation of Ms. French’s cervical and thoracic spine and adjusted the third thoracic vertebra. She did muscle work and trigger point therapy. She said that testing of Ms. French’s cervical range of motion was normal, with no additional pain in her neck or arm. The strength in each of the ranges was normal. There were no findings when Dr. Stachejczuk did a cervical compression test, which is used to test for neurologic compromise. Likewise, there were negative results for a shoulder compression test, a cervical distraction test, a Spurling’s test and a thoracic outlet syndrome test, used to check for neurologic compromise. There were negative results when different muscles were tested to evaluate different neurologic levels of the spine. When Dr. Stachejczuk assessed all the different joints in Ms. French’s neck, the joints did not seem to be giving her any pain. Dr. Stachejczuk found tightness in the front and back of Ms. French’s neck area muscle and thoracic muscles, with a lot of trigger points. There was a trigger point in Ms. French’s latissimus dorsi that recreated her symptoms of pain shooting down her left arm. Dr. Stachejczuk could not find anything with the exception of that trigger point that was causing pain down Ms. French’s left arm.

[49] Dr. Stachejczuk did not see Ms. French after this. She did, however, receive a letter from Ms. French on September 9, 2010, in which Ms. French attributed the chiropractic treatments on August 16, 2010 to severe pain from her neck downward into her shoulder area. Ms. French wrote that she was looking for assistance for treatment because she could not afford chiropractic and massages. Dr. Stachejczuk testified that she was “livid” and “insulted” because she felt she had done her best to help with Ms. French’s pain and was now being blamed. Dr. Stachejczuk showed the letter to Dr. Gleeson.

[50] Ms. French saw Dr. Gleeson on August 25, 27 and 31, 2010. Dr. Gleeson testified that because Ms. French was in a lot of pain and was showing neurological symptoms down her arm, she referred her to a walk-in physician for the purpose of a referral for an MRI. Dr. Gleeson testified that she did not have a suspicion of the cause of the neurological signs.

[51] Dr. Gleeson last saw Ms. French on September 9, 2010, but rendered no treatment.

[52] An MRI of Ms. French’s spine was done on September 10, 2010.

[53] At trial, Dr. Cheung reviewed what was shown on the September 10, 2010 MRI. At the C5-6 level, there was a prominent interior marginal osteophyte, causing some stenosis. At the C6-7 level, the degeneration had become worse. One level below, at C7-T1, the disc had narrowed slightly and there was abnormal soft tissue behind the disc level to the left side that was impinging on the C8 nerve route. In other words, there was a disc herniation at C7-T1, pressing on the nerve.

[54] A further MRI of Ms. French’s spine was done on November 2, 2010.

[55] At trial, Dr. Cheung described what was shown on this MRI. He said that the disc herniation at the C7-T1 level was smaller in size than shown on the September 9, 2010 MRI. In Dr. Cheung’s opinion, the fact that disc herniation had reduced in size would mean that the herniation shown in the September 9, 2010 MRI was relatively recent, within a few weeks of September 9, 2010.

[56] On December 10, 2010, Ms. French underwent surgery with Dr. Graeme Marchuk, a neurosurgeon, who performed an anterior cervical discectomy and fusion at C7-T1 to alleviate the pain and numbness in her neck and left arm arising from the disc herniation and nerve impingement. Dr. Marchuk removed what he described in his operative notes as a “surprising amount of loose, degenerated disc material.” These fragments were compressing the C8 nerve. The surgery resulted in immediate relief of Ms. French’s symptoms.

The Plaintiffs’ Claims

[57] Ms. French and her two daughters commenced this action in 2012. The thrust of the plaintiffs’ pleading is that Dr. Stachejczuk adjusted Ms. French’s cervical spine in direct contravention of the warning in the chart that there was to be no cervical spine adjustment, with the result that Ms. French suffered a disc herniation at the C7-T1 level.

[58] Ms. French pleads that if she had been aware of the “No C/S ADJ” note on her chart, she would not have consented to the treatment of her cervical spine by Dr. Stachejczuk. Ms. French alleges that Dr. Stachejczuk committed a battery upon her in that she performed adjustments to Ms. French’s cervical spine without discussing or advising of the risks involved or seeking informed consent to do so.

[59] The plaintiffs plead that it was chiropractic negligence on the part of Dr. Stachejczuk to ignore the chart restriction on cervical spine adjustment without discussing it with Ms. French and with Dr. Gleeson. The plaintiffs plead that the herniated disc was an injury which was within the ambit of risk of performing a cervical adjustment in the context of the facts of this case and that the injury was caused or materially contributed to by the cervical adjustments performed by Dr. Stachejczuk in contravention of the written instructions in Ms. French’s chart.

[60] In his opening address, counsel for the plaintiffs advised that there was no allegation of negligent manipulation per se. Rather, the allegation was that Dr. Stachejczuk should not have manipulated Ms. French’s neck at all.

[61] In his closing argument, counsel for the plaintiffs expanded on the allegations contained in the amended statement of claim and on the theory of the case presented in his opening address. He submitted that Dr. Stachejczuk:

• Failed to obtain a consent from Ms. French, as a new patient;
• Failed to take a history from Ms. French, as a new patient;
• Failed to review Ms. French’s chart;
• Failed to chart a chiropractic treatment given to Ms. French;
• Applied force to a vulnerable patient’s spine;
• Failed, on August 17, 2010, to recognize a left sided cervical radiculopathy;
• Completed an adjustment at T3 when Dr. Stachejczuk should have been aware that:

i) Adjustment forces are not localized and can extend upwards to involve the cervical vertebrae which were 1½ inches away;

ii) It is not uncommon to be “out” a vertebra or two in terms of a chiropractor locating herself, meaning that Dr. Stachejczuk could have been on top of C7-T1.

[62] Counsel for the plaintiffs submitted that taken singly, perhaps any one of the alleged features could be viewed as innocuous or non-contributory. He submitted, however, that in the aggregate, they fell measurably below any semblance of a reasonable standard of chiropractic care to the point that whether or not a cervical adjustment took place was not key, but rather that other forces were applied to Ms. French’s spine at a level close enough to the cervical area so that transmission of the force or forces of an adjustment at T3 to the C7-T1 was not only foreseeable by an experienced chiropractor but also very likely to occur.

The Law

[63] To succeed in their claim for negligence, the plaintiffs must prove on a balance of probabilities that Dr. Stachejczuk owed a duty of care to Ms. French, that Dr. Stachejczuk breached the standard of care and that the negligent conduct of Dr. Stachejczuk caused the disc herniation at the C7-T1 level of Ms. French’s spine.

[64] The defendant acknowledges that she owed a duty of care to Ms. French.

[65] The standard of care required of Dr. Stachejczuk is set out in Crits and Crits v. Sylvester et al. (1956), 1956 34 (ON CA), 1 D.L.R. (2d) 502 (ON C.A.), at para. 13, affirmed in Sylvester v. Crits et al., 1956 29 (SCC), [1956] S.C.R. 991, 5 D.L.R. (2d) 601:

The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and anility.

[66] In Hassen v. Anvari, 2003 1005 (ON CA), [2003] O.J. No. 3543 (C.A.), at para. 9, the Court of Appeal described the onus of proof that rests upon a plaintiff following the abolition of the res ipsa loquitur maxim by the Supreme Court of Canada in Fontaine v. British Columbia, 1998 814 (SCC), [1998] 1 S.C.R. 424. The onus is on the plaintiff to prove that negligence by the defendant caused the plaintiff’s injury. That onus may be satisfied by circumstantial evidence that allows an inference of negligence to be made, unless the defendant negates the inference with an explanation that is at least as consistent with no negligence as with negligence.

[67] In this case, the issues of standard of care and whether Dr. Stachejczuk breached the standard of care can only be considered after a factual determination has been made on whether or not Dr. Stachejczuk performed a cervical adjustment on Ms. French.

[68] The focus of the plaintiffs’ pleadings and of the opening statement of plaintiffs’ counsel at trial was that Dr. Stachejczuk had adjusted Ms. French’s cervical spine in contravention of the notation, “No C/S ADJ”, made by Dr. Gleeson and that the cervical adjustment or adjustments had caused Ms. French’s disc herniation at C7-T1.

[69] I am satisfied that Dr. Stachejczuk never did a cervical adjustment of Ms. French’s spine.

[70] Dr. Stachejczuk testified that as of August 16, 2010, she had conservatively done over 300,000 cervical adjustments. She testified that she always performed a cervical adjustment on her patients one way and only one way. She would have the patient lie on their back. She would stand at the head of the table. She would lift the patient’s head up, their chin would come towards their chest and she would support their head in her hand. She would use the top of her finger, in the last joint of her index finger and make contact on the vertebra. She would rotate the head slightly, away from the side on which she made contact. She would explain to the patient that she was about to put an impulse into the joint. She would then put a low amplitude thrust into the joint along a specific line of drive. In approximately 1% of her cervical adjustments, Dr. Stachejczuk would use an activator tool instead of her fingertip to put the thrust in. This would be for very vulnerable patients.

[71] The evidence of Dr. Stachejczuk as to how she invariably performed a cervical adjustment did not accord with any of the procedures that Ms. French testified Dr. Stachejczuk performed on her, at any time.

[72] Dr. Stachejczuk testified that she never adjusted a patient’s cervical spine while the patient was seated or on their stomach.

[73] I also accept the evidence of Dr. Stachejczuk as to how she performed a thoracic adjustment on Ms. French. Where the evidence of Dr. Stachejczuk and Ms. French differs as to how Dr. Stachejczuk performed a thoracic adjustment, I accept the evidence of Dr. Stachejczuk. Dr. Stachejczuk testified that as of August 16, 2010, she had performed over 300,000 thoracic adjustments and did so in only two different ways, none of which was as described by Ms. French.

[74] Dr. Erwin, who was called at trial by the plaintiffs to give expert opinion evidence on chiropractic medicine, testified that the evidence of Dr. Stachejczuk, that the only way she adjusted a patient’s neck, by using a cervical rotary technique with the patient lying on her back, was a very commonly accepted method of doing a cervical adjustment. When Dr. Erwin was presented with the details of the description given by Ms. French at trial as to what she said was an adjustment of her neck by Dr. Stachejczuk, Dr. Erwin testified that it did not sound like any cervical adjustment that he had ever heard of in his career. He agreed that if he had been advised that this was how an alleged seated cervical adjustment had been performed that day, he would have been skeptical about whether or not Ms. French was accurately describing a cervical adjustment.

[75] Dr. Steiman, who was called at trial by the plaintiffs to give expert opinion evidence on chiropractic medicine, has been a faculty member of the Canadian Memorial Chiropractic College for 35 years and a clinician for most of those years. His rank at the College is Professor. He testified that Dr. Stachejczuk’s description of how she does a cervical adjustment is a common way to adjust a patient’s cervical spine. He said that the details of the procedure of August 16, 2010 described by Ms. French did not sound like any adjustment he was familiar with.

[76] Dr. Guerriero, who was called at trial by the defendant to give expert opinion on chiropractic medicine, has taught at the Canadian Memorial Chiropractic College for 27 years. Dr. Guerriero was presented with the description that Ms. French gave of the alleged cervical adjustment, while she was in a seated position. Dr. Guerriero was asked his opinion of that description of a cervical spine adjustment in a seated position. He responded, “First of all, I’ve never heard of that kind of adjustment. It sounds bizarre to me. It’s not a typical cervical adjustment. And it’s not how we adjust people’s necks.”

[77] Dr. Stachejczuk’s clinical notes of her treatment of Ms. French on August 16, 2010, prepared contemporaneously with the treatment, do not record any restrictions to Ms. French’s cervical spine. They do record restrictions at T3, 4, 5 and 6 of her thoracic spine.

[78] Dr. Guerriero testified that one of the skills that is taught to chiropractors is how to palpate a joint to see if it is restricted. He said normal joints have an elasticity. If the joint is hard, it is restricted. He said that with manipulation of a joint, a chiropractor is trying to restore mobility. He testified that a chiropractor would not manipulate an area that is not restricted because there would be no purpose to it. I conclude, firstly, that if Dr. Stachejczuk had found a restriction in Ms. French’s cervical spine she would have recorded it, just as she did with the restrictions in Ms. French’s thoracic spine. I conclude, secondly, that because Dr. Stachejczuk did not find a restriction in Ms. French’s cervical spine, there would have been no reason for her to adjust the cervical spine.

[79] Dr. Stachejczuk testified that the treatment that she provided to Ms. French was similar to the treatment that Dr. Gleeson had provided. Dr. Gleeson had not done any adjustments of Ms. French’s cervical spine after seeing the MRI of February 2006.

[80] Dr. Guerriero reviewed the clinical notes of Dr. Gleeson from February 2, 2009 to June 22, 2010. He reviewed the notes of Dr. Stachejczuk of August 16, 2010. In his opinion, the treatment provided by Dr. Stachejczuk on August 16, 2010 did not differ from the treatment she had received from Dr. Gleeson. He said the notes showed no restrictions were found in the cervical spine on any of those dates. The restrictions were on the mid-thoracic spine, the costotransverse joint area and the sacroiliac area.

[81] Dr. Stachejczuk did not record that she had adjusted Ms. French’s cervical spine. Her notes showed in some detail what treatments she in fact rendered. There is nothing in the evidence to conclude that Dr. Stachejczuk did a cervical adjustment and then deliberately or inadvertently failed to record such an adjustment in her clinical notes.

[82] Dr. Stachejczuk testified that she did not see the notation made by Dr. Gleeson of “No C/S ADJ”. The most reasonable explanation as to why she did not see the notation is that it was obscured by the two green W.S.I.B. sheets stapled over the notation on the inside file folder containing Ms. French’s chart.

[83] The plaintiffs submit that I should find that because there were a number of staple holes in the W.S.I.B. sheets and because the sheets were dated 2007, the W.S.I.B. sheets had been removed from the cover once the 2007 claim became inactive and that the notation was therefore not obscured as of August 16, 2010. As a corollary to this submission, the plaintiffs ask me to conclude that the W.S.I.B. sheets were stapled to the folder only after examination for discovery of Dr. Stachejczuk.

[84] I do not accept that submission.

[85] Dr. Gleeson testified that it was always the practice of the clinic’s office manager to staple the W.S.I.B. green sheets to the inside of the file. One would therefore expect that the W.S.I.B. green sheets relating to Ms. French’s claim would, in the ordinary course, also be stapled there as well.

[86] The “No C/S ADJ” was put on the inside file cover by Dr. Gleeson in 2006, predating the 2007 W.S.I.B. sheets, which makes it understandable that the W.S.I.B. sheets would be on top of the notation.

[87] Counsel for the defendant pointed out in his closing submissions that the defendant’s affidavit of documents, sworn November 14, 2012, was sworn prior to the defendant’s examination for discovery on November 16, 2012. The affidavit of documents describes the documents in question as follows:

Client file folder (copies of inside and outside) and W.S.I.B. Patient Schedule stapled to the inside of the front folder (and dated October 16, 2007).

[88] This entry in the defendant’s affidavit of documents rebuts the suggestion that the W.S.I.B. sheets were added to the file folder after Dr. Stachejczuk’s discovery.

[89] If the plaintiffs seek to rely on the allegation made in their closing submissions that “…for certain they [the W.S.I.B. sheets] weren’t there at the Defendant’s Examination for Discovery,” they would have to provide me with evidence that that was the case. No evidence was tendered. Counsel for the plaintiffs advised that he, himself, did not intend to be a witness as to the issue.

[90] Dr. Gleeson did not discuss the 2006 MRI report with Ms. French in any detail. Dr. Gleeson did not include the MRI report in the file, nor did she make any entries in Ms. French’s clinical notes and records about the MRI report or that a cervical adjustment was contraindicated.

[91] Ms. French mistakenly believed that even after the 2006 MRI report Dr. Gleeson had continued to do cervical adjustments. Dr. Gleeson did not do adjustments to Ms. French’s cervical spine after she saw the 2006 MRI report. There was therefore no way for Dr. Stachejczuk to know, either by reviewing Ms. French’s chart or by speaking to Ms. French, that Dr. Gleeson had determined that there should be no more cervical adjustments. I say this, of course, having concluded that Dr. Stachejczuk did not in fact do a cervical adjustment of Ms. French’s spine.

[92] The plaintiffs submit that even if Dr. Stachejczuk did not do a cervical adjustment she was negligent because she did an adjustment at T-3 which was close enough to the cervical area that transmission of forces from that adjustment to C7, which was only 1½ inches distant, was not only foreseeable by an experienced chiropractor but, on the evidence of Dr. Cheung, Dr. Erwin and Dr. Steiman, was likely to occur.

[93] There was evidence from Dr. Cheung on the issue of causation that spinal manipulation has a force that can cause or aggravate disc herniation or aggravate a degenerative disc into a disc herniation. He said that it is possible to have damage at one level of the spine, such as C7-T1, even though the force is concentrated at another level, such as T-3. He said that force applied to a single vertebra can extend upward and downward through the spinal column. He was of the opinion that it was more likely than not that the chiropractic manipulation on August 16 and 17 caused or contributed to the C7-T1 disc herniation. He testified that one would attribute the disc herniation to the incident that is closest in temporal relationship to the onset of symptoms in the absence of any other trauma that could have contributed. Dr. Cheung stated that the exact location of the manipulation was irrelevant. Rather, what was relevant was whether there had been force on the spine and if it was memorable to the patient.

[94] Dr. Erwin testified that although, by far, disc herniations happen spontaneously, given that there were two episodes of mechanical treatment and that within hours Ms. French’s symptoms became markedly worse, it was strongly suggestive that something had happened to cause the disc herniation.

[95] Dr. Steiman testified that he could not find anything in the information that he was given to review that indicated that there was something other than the spinal manipulation that could have led to the disc herniation at C7-T1. He said that the thoracic adjustments by Dr. Stachejczuk may or may not have involved movement of Ms. French’s neck. He said that it was difficult to be accurate in numbering the vertebrae that one is localizing in an adjustment.

[96] Dr. Yee disagreed that Dr. Stachejczuk’s treatment was the likely cause of Ms. French’s disc herniation at C7-T1. He was of the opinion that Ms. French most likely suffered the disc herniation within six to nine months prior to August 16, 2010. He said that although chiropractic treatment may aggravate or cause a disc herniation, on the balance of probabilities, if that had happened, Ms. French would have experienced symptoms of the herniation in the immediate timeframe, either during treatment or very shortly thereafter. He said that if a disc was herniated as a result of trauma, one would expect obvious neck pain arising from the trauma or, if there was a disc that was causing a neurological issue, one would expect to have neurological symptoms arising around the immediate time of the episode in question. In the case of Ms. French, he said that it appeared that she came in with neck pain and that the treatment did not materially change the severity of the pain described.

[97] Dr. Guerriero agreed that manipulation of the spine could cause disc herniation or worsen a pre-existing degenerated disc. However, regarding Dr. Cheung’s conclusion that one would focus on the temporal relationship, Dr. Guerriero testified that, if the manipulation of the spine caused the disc herniation, one would have seen a more immediate adverse event, unlike the situation with Ms. French where 12 to 16 hours passed before she began to complain. Dr. Guerriero was of the opinion that Dr. Stachejczuk did not cause the disc herniation. He acknowledged that a chiropractor doing an adjustment could be out by one or two vertebrae, but not by three or four segments, particularly given that C7 is the most protuberant vertebra. At chiropractic college, C7 is taught as a landmark vertebra and is easily found. He was of the view that it was not likely that force applied between T3 and T6 would go as far as C7-T1.

[98] The answer to the question of whether the thoracic adjustment performed by Dr. Stachejczuk caused the disc herniation at C7-T1 of Ms. French’s spine remains unclear to me.

[99] In my view, the plaintiffs have not established causation on the balance of probabilities. I favour the evidence of Dr. Yee and Dr. Guerriero that, if the chiropractic treatment had caused the herniation, one would expect an immediate onset of neurological symptoms. The onset of neurological symptoms did not occur until many hours later. All experts agreed that the most minor of trauma, such as day-to-day tasks, coughing, sneezing and turning over in bed could cause a susceptible disc to herniate.

[100] However, even if one assumes that the thoracic adjustments did cause or contribute to the disc herniation at C7-T1, it does not follow that Dr. Stachejczuk was negligent.

[101] There was no evidence that a thoracic adjustment of Ms. French’s spine in August 2010 was in breach of the standard of care which could reasonably be expected of a prudent and competent chiropractor.

[102] The plaintiffs called Dr. Erwin and Dr. Steiman to give expert opinion on the standard of care.

[103] On direct examination, Dr. Erwin was asked:

So in this situation and based on the documents, the medical charts that you reviewed, if the patient had her neck manipulated or adjusted by this defendant in the face of this notations in the chart, what is your comment on the standard of care being breached or not?

Dr. Erwin answered:

If – if those – if that “no CS adjustment” was on the chart and visible and the clinician went ahead and adjusted the patient, I would feel that would fall below the standard of care.

[104] Dr. Erwin agreed in cross-examination that his opinion of whether Dr. Stachejczuk met the standard of care was based solely on the fact, as he understood it, that Dr. Stachejczuk had performed cervical adjustments. Dr. Erwin agreed that when he arrived at his initial opinion that Dr. Stachejczuk had breached the standard of care, his opinion was reliant upon the fact that he was told in the retention letters from the plaintiffs’ counsel that Dr. Stachejczuk had performed cervical adjustments on Ms. French in contravention of a note placed in Ms. French’s file by Dr. Gleeson. He agreed that if no cervical adjustments had been performed by Dr. Stachejczuk at any time, he would have no reason to believe that there had been any breach by Dr. Stachejczuk of the requisite standard of care. Dr. Erwin also agreed in cross-examination that if Dr. Stachejczuk had adjusted Ms. French’s thoracic spine on the morning of August 16, 2010, that would not constitute treatment that would breach the requisite standard of care, so long as the patient’s neck was protected appropriately. He said he was not provided with any information to suggest that was not the case.

[105] Dr. Steiman testified that his initial opinion, that Dr. Stachejczuk had not met the standard of care, relied on the assumption that Dr. Stachejczuk performed a cervical adjustment in contravention of Dr. Gleeson’s note and that she had failed to record that she had done a cervical adjustment. Dr. Steiman agreed that the chiropractic treatment as recorded by Dr. Stachejczuk in the clinical notes of August 16, 2010 was a reasonable course of treatment for Ms. French on that day. He said that if Dr. Stachejczuk had treated Ms. French according to her findings, then there was no indication that she did not meet the standard of care. Dr. Steiman said that according to the findings that Dr. Stachejczuk documented, there was nothing to adjust in Ms. French’s neck.

[106] Dr. Guerriero testified that Dr. Stachejczuk met the standard of care of a chiropractor in the management of Ms. French in this particular case on both August 16 and 17, 2010. He said that on August 16, 2010, Dr. Stachejczuk took a history, did an examination, came up with areas of impairment or dysfunction and provided a plan of management that was similar to or the same as that provided by Dr. Gleeson. With respect to August 17, 2010, he said that Dr. Stachejczuk took a history, did an examination, evaluated the differential diagnosis to look at different possible causes of the symptoms, which included a myofascial or dysgenic condition, looked at nerve involvement, which included radicular involvement, reduced the pain and came up with a plan of management.

[107] There was no evidence that it was a breach of the standard of care for Dr. Stachejczuk to perform the thoracic adjustments. There was no evidence that Dr. Stachejczuk knew or should reasonably have known that Ms. French had degenerative disc disease or a herniation in her cervical spine. I accept that Dr. Stachejczuk did not see the notation of “No C/S ADJ” because it was obscured by the W.S.I.B. sheets. There was no copy of the 2006 MRI report in the file. Dr. Gleeson had not made any entries in the clinical notes and records about the MRI report or noted that there were problems with Ms. French’s cervical spine. Ms. French testified that she was unaware of the “No C/S ADJ” note in her file. She mistakenly believed that Dr. Gleeson had continued to perform cervical adjustments after 2006. The treatment provided by Dr. Stachejczuk was consistent with the treatment provided by Dr. Gleeson after 2006, including adjustments of Ms. French’s thoracic spine.

[108] The plaintiffs plead that Dr. Stachejczuk committed a battery in that she performed cervical spine adjustments on Ms. French without discussing the risks involved or without seeking informed consent to do so.

[109] Because I have found that Dr. Stachejczuk did not perform a cervical adjustment, there is no factual basis to support this pleading.

[110] As I have previously noted, the plaintiffs’ closing submissions went beyond what was pleaded in their statement of claim and beyond the theory advanced in their opening statement. I will deal with these submissions.

[111] The plaintiffs submit that Dr. Stachejczuk “failed to consent a new patient” and was guilty of a “failure to explain the risks and benefits of treatment to the new patient and answer any patient questions.”

[112] The consent form signed by Ms. French on November 9, 2005 stated that the patient consented to the performance of chiropractic treatments “…by the Doctor of Chiropractic named below (Dr. Gleeson) and/or anyone working in this clinic authorized by the Doctor of Chiropractic listed below, including locum Doctors of Chiropractic.” The Consent also provided, “I intend this consent form to cover the entire course of treatment for my present condition and for any future condition(s) for which I seek treatment.”

[113] Ms. French testified that:

• She read the consent form before she signed it;
• She consented to chiropractic adjustments by Dr. Gleeson or “anyone”;
• She had the opportunity to discuss the nature and purpose of chiropractic adjustments with Dr. Gleeson;
• She understood there were very slight risks including disc injuries;
• She agreed that the consent form covered future treatment by other chiropractors at the Gleeson clinic.

[114] Dr. Stachejczuk testified that she saw the consent form in the file during her review of the file before she saw Ms. French. She testified that she believed that she was covered by the consent form. She said she asked Ms. French if she was aware of the risks of treatment. She said Ms. French told her that she had been a chiropractic patient for a long time. She believed that Ms. French was aware of the risks and benefits of the treatment that she proposed to administer.

[115] Dr. Steiman testified that in his opinion a patient should be asked again to provide informed consent, even after signing a consent form, under at least three circumstances:

• If there is a change in the patient’s condition or presentation;
• If there is a change in the treatment for ongoing condition or presentation;
• If there is going to be a different treatment provider taking over.

[116] Dr. Erwin testified that if he was treating a patient new to him, it would be prudent to obtain a new consent because the patient might not consent to what he suggested he might want to do. He did not testify that it was a breach of standard of care not to obtain a new consent.

[117] Dr. Guerriero testified that in his opinion Dr. Stachejczuk had informed consent when she performed treatment on Ms. French on August 16, 2010. He said that Ms. French had similar complaints to those that were in the file and that Dr. Stachejczuk, as a locum, was going to treat Dr. Gleeson’s patient in a manner similar to that by which she was treated by Dr. Gleeson. He said there was no reason to do the consent process again. Dr. Guerriero expressly disagreed with Dr. Steiman’s opinion that Dr. Stachejczuk needed to obtain a new written consent form. He said that in a multidisciplinary setting it is just not necessary or practical to get a form signed repeatedly by different treating practitioners when the same treatment is being performed. He said the consent process has already been done and documented. Dr. Guerriero referred to his experience as a chiropractor at the most recent Pan American Games where one form would be used for an athlete, whether there was one chiropractor or two, or a physiotherapist or a physician treating the athlete. He said there would never be multiple consent forms in the file in that situation.

[118] Dr. Gleeson testified that her standard practice was to discuss informed consent with a patient after the consent form was given to the patient at the front desk and signed and witnessed by the staff. Dr. Gleeson said that it was reasonable for Dr. Stachejczuk to assume when she looked at the file that Dr. Gleeson had done the informed consent process. The signed consent form was in the file.

[119] Ms. French had been a patient of the Gleeson Clinic since 1993. When she called the Gleeson Clinic for an appointment on August 16, 2010, she was told that Dr. Gleeson was on vacation. When she was advised that Dr. Stachejczuk could see her, she told the receptionist that she would accept an appointment with Dr. Stachejczuk. The consent form which she had executed in 2005 provided that she consented to treatment by persons at the Clinic in addition to Dr. Gleeson. It is reasonable to find that Ms. French had expressly consented to treatment by Dr. Stachejczuk and that by her conduct she also impliedly consented to treatment by Dr. Stachejczuk that was similar to or the same as the chiropractic treatment that she had been receiving on multiple occasions each year since 2006. In the circumstances of this case, where there was no change in Ms. French’s condition or presentation and where the treatment provided by Dr. Stachejczuk did not differ meaningfully from the treatment provided by Dr. Gleeson, I accept the opinion of Dr. Guerriero that it was not necessary for Ms. French to execute a new consent.

[120] The plaintiffs submit that I should conclude that the defendant failed to review Ms. French’s chart. In support of this allegation, they submit that Dr. Stachejczuk could not have reviewed the chart during the 15 minutes that she testified she spent reviewing it. They also submit that the only explanation for why Dr. Stachejczuk did not see the “No C/S ADJ” note was because she did not review the chart at all.

[121] Dr. Steiman testified that if he had been a chiropractor at a clinic, treating another chiropractor’s patient, he would have made a note that he had reviewed that patient’s history contained in the file. However, Dr. Steiman said he did not believe it was specified as a standard of care to do so. He said it would be presumed that a chiropractor treating a patient whom she had not seen before would have reviewed the patient’s file.

[122] I accept the testimony of Dr. Stachejczuk that she reviewed Ms. French’s file during a break in the morning of August 16, 2010, to look at Ms. French’s history and to see what treatment Dr. Gleeson had provided. There was no evidence that the 15 minutes that Dr. Stachejczuk said she took to review the file of 109 pages of clinical notes was unreasonable. Dr. Stachejczuk was an experienced chiropractor at the time who would be familiar with the standardized form that the Clinic used for recording clinical notes. The plaintiffs submit that I should find that Dr. Stachejczuk did not read the chart at all because she did not see the “No C/S ADJ” notation, which the plaintiffs say was not obscured by the W.S.I.B. sheets. I have previously concluded that the notation was obscured by the W.S.I.B. sheets.

[123] The plaintiffs submit that I should find that Dr. Stachejczuk did not take a history from Ms. French because she did not note in Ms. French’s chart that she did so.

[124] Dr. Stachejczuk testified that she did take a history from Ms. French. She said she asked Ms. French a lot of questions, but did not always get clear answers. Dr. Stachejczuk said it was difficult to get Ms. French to focus, but Dr. Stachejczuk attributed that to the severity of Ms. French’s headache. Dr. Stachejczuk said that she was eventually able to determine from Ms. French that her headaches were an ongoing problem. She said Ms. French talked about her 1990 motor vehicle accident. She asked Ms. French about the severity of her pain on a one to ten scale, but never did get a straight answer because she would go off on tangents. Dr. Stachejczuk said that she recorded the history of Ms. French’s current complaints. Dr. Stachejczuk’s notes for August 16, 2010 show entries about Ms. French’s presenting or chief complaints for that day with associated signs and symptoms of chest tightness. Dr. Stachejczuk said that there were two parts to the history – a brief review of the previous history and then a review of history between the time of Ms. French’s last treatment and the current treatment to see if anything needed to be added to her file. Dr. Stachejczuk said that, based on Ms. French’s complaints and the history in her file of diagnosis and treatment, her opinion as to the treatment that she would be providing that morning was in alignment with Dr. Gleeson’s treatment over the past 1½ years.

[125] Ms. French testified that when she met Dr. Stachejczuk, Dr. Stachejczuk asked her why she was there. Ms. French told Dr. Stachejczuk that she was having headaches from the base of her neck. She told Dr. Stachejczuk about taking university courses. She told Dr. Stachejczuk that Dr. Bukovy, her family doctor, had diagnosed “study neck”. This information would be part of a “history”.

[126] I am satisfied, based on the testimony of Dr. Stachejczuk and her clinical notes which chart Ms. French’s presenting and chief complaints, with associated signs and symptoms, that Dr. Stachejczuk took a history from Ms. French before she began her treatment.

[127] Finally, in my view, the facts of this case do not fall within the criteria of Hassen v. Anvari. In reviewing the principles of Hassen v. Anvari, Himel J., in Wilson v. Byrne, 2004 20532 (ON SC), [2004] O.J. No. 2360 (S.C.J.) stated at para. 24:

In certain cases a court may determine that there is enough circumstantial evidence to make an inference of negligence to conclude that it is probable that the defendant was negligent. These cases involve the following factual elements: (i) the mishap is one that would ordinarily not have occurred without negligence, (ii) the injury – producing event was in the defendant’s control, and (iii) there is an absence of direct evidence, such that the cause of the occurrence is unknown: see Jackson v. Millar (1974), 1975 20 (SCC), [1976] 1 S.C.R. 225, 59 D.L.R. (3d) 246 (S.C.C.); Hellenius v. Lees (1971), 1971 18 (SCC), [1972] S.C.R. 165 (S.C.C.), at 172, (1971), 20 D.L.R. (3d) 369 (S.C.C.).

[128] The experts for both the plaintiffs and the defendants agreed that any kind of trauma, ranging from minor trauma such as sneezing and coughing, day-to-day activities or turning over in bed, to major trauma, such as a car accident, could cause a disc to herniate, depending on the predisposition of the disc. As Dr. Erwin testified, it is often difficult to find a specific inciting event and, by far and away, these things occur spontaneously. He said that it was normal for a patient to have symptoms that come and go for years, then, all of a sudden, the patient has full-blown symptoms.

[129] On the expert evidence presented on behalf of both the plaintiffs and the defendant, one cannot conclude that the disc herniation was one that would ordinarily not have occurred without negligence. The primary burden of proof of negligence remains on the plaintiffs and, in my view, it has not been satisfied.

Conclusion

[130] For the reasons given, the action is dismissed.

Damages

[131] As noted, the parties have agreed on damages. It is therefore unnecessary for me to deal with that issue.

Costs

[132] If the parties are unable to agree on costs, the defendant shall deliver written submissions within 30 days. The plaintiffs shall deliver their responding written submissions within 30 days of service of the defendant’s written submissions.

[133] Submissions, exclusive of bills of costs, shall not exceed five pages. The plaintiffs are not obligated to provide their bill of costs although one would be helpful for purposes of comparison if the plaintiffs dispute the defendant’s quantum of costs.

[134] If the defendant fails to deliver her costs submissions within 30 days, the issue of costs shall be deemed to have been settled.

__“original signed by”

The Honourable Justice D. C. Shaw

Released: September 15, 2017

CITATION: French v. Stachejczuk, 2017 ONSC 5490

COURT FILE NO.: CV-12-0138

DATE: 2017-09-15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA JEAN FRENCH, COURTNEY MOORE and SHAYLIN MOORE

Plaintiffs

• and -

BARB ELLEN STACHEJCZUK

Defendant

REASONS FOR JUDGMENT

Shaw J.

Released: September 15, 2017

/sab