Date: Thu, 29 Mar 2007 17:49

From: David Cheifetz

Subject: Factual Causation - Supreme Court of Canada won't spill more ink

The SCC (leave panel: Binnie, Deschamps, Abella JJ) has just dismissed, with costs, the leave to appeal application in

Jennifer Aristorenas v. Comcare Health Services, 2006 CanLII 33850 (ON C.A.)

The SCC site summary of the issues in the case is:

Torts – Negligence – Causation – Evidence – Damages – Physicians – Nurses – Application of "material contribution" test – "Robust and pragmatic" approach – Whether evidence sufficient to establish breach of standard of care by attending doctor and nurses caused patient to develop necrotizing fasciitis – Whether Court of Appeal erred in reducing damages award when quantum of damages not under appeal.

Jennifer Aristorenas delivered a baby by Caesarian section. She was at a high risk for infection after the delivery because of her obesity. After her discharge from hospital, she developed an infection. Over a two-week period she was treated by Dr. Jeffrey Gilmour, an obstetrician and gynaecologist, and several home care nurses employed by Comcare Health Services ("Comcare"). Ms. Aristorenas' condition worsened. Ultimately, she was diagnosed with necrotizing fasciitis (flesh-eating disease). Two emergency surgeries were performed. Following Ms. Aristorenas' recovery, she brought an action in negligence against Dr. Gilmour and Comcare, alleging that the defendants' delay in diagnosing and treating the infection was a breach in the standard of care required of physicians and nurses, which breach caused her to develop necrotizing fasciitis.

The trial judge found that Dr. Gilmour and Comcare had been negligent in their post-natal treatment of Ms. Aristorenas, that their negligence caused Ms. Aristorenas' injury, and that she was entitled to general damages of $55,000. Liability was apportioned to each defendant on a 50 percent basis. The Ontario Court of Appeal allowed the appeal by Dr. Gilmour and Comcare, reducing the damages award to $1000; MacPherson J.A. dissenting.

The defendants admitted fault (the delay in diagnosing and treating) at appeal. Fault was contested at trial. The CA majority held that there was no admissible evidence whatsoever that the delay, in this case, had any relation to the aetiology of necrotizing fasciitis. So this was a classic no positive evidence case. I rather suspect that none of experts said that it was impossible for the delay to have had any connection, even increased the risk of, the plaintiff developing necrotizing fasciitis rather than an "ordinary" infection.

There was evidence that medical science currently doesn't know why some people develop the infection and others don't.

Developing an infection, having an existing infection worsen, is certainly within the ambit of risk of delayed medical treatment. Negligence was admitted. Are we to assume the SCC panel didn't think it there was unreasonable risk? Or that necrotizing fasciitis wasn't in the ambit, even if "ordinary" infections were?

It was certainly impossible, for reasons outside of Ms. Aristorenas' control, to establish causation (conduct contributing to injury) on a but for basis.

Why isn't this a case that fell within paragraph 25 of Hanke (beyond the "because the panel seems to have implied it wasn't, or that it wasn't important enough so we never had to consider that issue at all").

First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

Was it, perhaps, the panel's view that the case was not an exceptional case? That it didn't offended basic notions of fairness and justice to send the plaintiff away?

Or, are we to assume it didn't raise any issues of national importance? It's only private law, personal injury, after all.

Or, - being cynical - was it that the panel didn't want the SCC to have spill more ink, to revisit the issues so soon after Hanke, but this time in the context of the medical malpractice law that says augmented risk isn't enough - the faulty conduct has to be a probable cause of the injury - where it would have to try and rationalize the medical malpractice case law with the contents of Hanke. Is it now correct for those advising health care professionals that they still don't have to be worried about being negligent so long as the patient's condition only could be related to the mistake. They can act as carelessly as the wish so long as they do no more than create a risk less than a 50% risk, or, at least, augment the total risk to no more than 50%.

Aristorenas isn't a health-professions' licence to kill, of course. However, the combination of Hanke and the SCC's refusal to grant leave in Aristorenas could be seen as a licence to be stupid.

Cheers,
David Cheifetz

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