CITATION: Cleveland v. Whelan, 2011 ONCA 244

DATE: 20110330

DOCKET: C51555

COURT OF APPEAL FOR ONTARIO

Cronk, Blair and LaForme JJ.A.

BETWEEN

Tyler Cleveland, Emily Cleveland, and Abigail Cleveland minors by their Litigation Guardian, Chris Cleveland, Chris Cleveland, personally, and Kim Cleveland

Plaintiffs (Respondents)

and

Hamilton Health Sciences Corporation ( Henderson General Division), Donald Thomas Whelan, Narsys Punthake, Frederick Eggleton, Penny Thomson, Michael Burger, B. Mark Hildebrand, John Doe, Her Majesty the Queen in Right of Ontario, Helen Demshar, John Thornley, John Doe No. 1 and Jane Doe No. 2

Defendant (Appellant)

Harry C.G. Underwood and Meighan E. Leon, for the appellant

Brian J.E. Brock, Q.C., for the respondents

Heard: October 6, 2010

On appeal from the decision of Justice Joan L. Lax of the Superior Court of Justice dated December 15, 2009, reported at 2009 CanLII 70130 (ON S.C.).

H.S. LaForme J.A.:

INTRODUCTION

[1]              Since 1965, all Ontario newborn infants have been routinely and impersonally screened through the administration of a blood test (the “Guthrie test”) for the presence of phenylketonuria, a congenital disorder also known as PKU.  This case concerns testing for PKU.   

[2]              PKU is caused by a defect in the activity of the phenylalanine hydroxylase enzyme, resulting in the body’s inability to metabolize phenylalanine (“phe”), an amino acid.  If left untreated, PKU can interfere with normal brain development and, among other things, result in permanent brain damage. 

[3]              The Guthrie test is part of the Ontario Newborn Screening Program and aims to identify those infants with treatable forms of PKU as early as possible.  Infants with PKU normally begin treatment around one month of age.

[4]              In 1996, the testing of all newborn blood specimens for PKU in Ontario was done by the Laboratory Services Branch of the Ministry of Health (the “Crown Lab”).  Results from Guthrie tests were reported back to one of five regional consultants under the Ontario Newborn Screening Program.  The regional consultant in the respondent Tyler Cleveland’s case was the appellant, Dr. Thomas Whelan.

FACTUAL BACKGROUND

[5]              Elevated levels of phe, which reflect a condition called “hyperphenylalanemia” (“hyperphe”) may, but need not, be confirmatory of PKU. Considerable variation in phe levels can occur. In summary, levels of phe:

●	ranging between 40-80 μmol/L[1] and usually under 120 μmol/L	) )	generally appear in a healthy patient
●	consistently above 480 or 600 μmol/L, but less than 1200 μmol/L	) )	indicate atypical (mild) PKU
●	below 480 or 600 μmol/L	) )	indicate persistent benign hyperphe
●	below 480 or 600 μmol/L, normalizing within a few weeks to months	) )	indicate transient hyperphe
●	mild levels to levels as high as 1200 μmol/L	) ) )	may be indicative of a rare disorder called “biopterin deficiency”
●	greater than 1200 μmol/L	) )	indicate severe classical PKU

[6]              Tyler and his twin sister were born on September 5, 1996.  Tyler’s initial Guthrie test at two days of age reported a phe value as “elevated, 0.24 mmol/L”[2] (240 μmol/L).  His second Guthrie test at seven days of age was again reported as “elevated, 0.24 mmol/L” (240 μmol/L).  For the purpose of the Ontario Newborn Screening Program, a phe value at or above 240 μmol/L was considered positive for PKU.  Under the Guthrie test, however, the true value of phe concentrations could vary by ³ 100 μmol/L.  Thus, as a semi-quantiative test, it did not provide a precise indication of actual phe levels.

[7]              Dr. Whelan ordered a third Guthrie test to be taken at one month of age.  The third test was reported by the Crown Lab as “not elevated”.  No further clinical or laboratory follow-up was arranged for Tyler at that time.

[8]              In 1998, as a result of developmental concerns, Tyler was referred to a developmental paediatrician for further investigation.  In August 1999, at the age of almost three, Tyler was diagnosed with classical PKU, the most severe form of the disorder.  At that time, his phe level was measured at just above 2400 μmol/L.

[9]              In the fall of 1999, after Tyler’s diagnosis of classical PKU, his original newborn specimens were retrieved and retested at the Hospital for Sick Children in Toronto using a quantitative testing method.  The results of these tests indicated that: Tyler’s first blood specimen (taken at two days of age) had a phe level of 273 μmol/L; his second specimen (taken at seven days of age) had a phe level of 407 μmol/L; and, his third specimen (taken at 33 days of age) had a phe level of 85 μmol/L.

[10]         Tyler’s third specimen was also retested by the Ministry of Health in October 1999.  This test yielded a phe value of 160 μmol/L.

[11]         Following Tyler’s diagnosis, the Cleveland family brought an action in negligence against various parties, including the Crown and Dr. Whelan.  Prior to trial, the action was dismissed against all parties but Dr. Whelan.  The quantum of damages was agreed to and approved by the court.

[12]         The action against the Crown was settled on the basis that the Crown would be held severally liable for its apportioned share of liability, to the extent that the Crown Lab caused or contributed to the damages suffered by the Cleveland family.  Accordingly, the trial proceeded against Dr. Whelan on the sole issue of liability.

[13]         The Cleveland family alleged that the negligence of the Crown Lab and of Dr. Whelan caused or contributed to the failure to make a timely diagnosis of PKU, and thereby deprived Tyler of the opportunity to receive appropriate treatment.  They claimed that Dr. Whelan did not meet the standard of care required of him by ordering a third Guthrie test following the two earlier elevated phe results, rather than ordering a diagnostic assessment.

[14]         In 2004, after this litigation was commenced, Tyler’s third blood specimen was tested again, at a laboratory in the United States , utilizing a quantitative testing method that has a positive predictive value approaching 100%.  This test produced abnormally low amino acid values, compared to values in age-matched newborns.  Much of the expert evidence at trial concerned the significance of these low values, and the true phe values of Tyler’s blood specimens in 1996.

TRIAL JUDGE’S FINDINGS

[15]         The trial judge made the following findings concerning Tyler’s phe values in 1996:

1)           the result of the Guthrie test of Tyler’s first specimen (taken at two days of age) was accurately reported as 240 μmol/L;

2)           consistent with what would be expected in a case of classical PKU, it was likely that Tyler’s phe value was rising between his first and second Guthrie tests;

3)           the Crown lab underreported the Guthrie test results on Tyler’s second specimen (taken at seven days of age). Although reported as 240 μmol/L, the true phe value of this specimen was “closer to 480 μmol/L”; and

4)           the true phe value of Tyler’s third specimen (taken at 33 days of age) was “well above the laboratory cut-off of 240 μmol/L and could have been as high or higher than 1200 μmol/L”.

[16]         The trial judge recognized, correctly, that the law required that Dr. Whelan’s conduct be assessed on the basis of “the degree of care and skill which would reasonably be expected of a prudent and careful practitioner of the same experience and standing in the same circumstances”: see Crits v. Sylvester, [1956] O.R. 132 (C.A.), at p. 143, aff’d [1956] 1 S.C.R. 991.  In Dr. Whelan’s case, the degree of skill required was that of a similarly situated and experienced metabolic specialist.

[17]         The trial judge further indicated that, “[t]he honest and intelligent exercise of judgment satisfies [a practitioner’s] professional obligation to take reasonable care in the circumstances, although he may have been wrong” (citations omitted).  This, too, was correct.

[18]         The trial judge’s central findings concerning the standard of care applicable to Dr. Whalen were as follows:

1)           it was reasonable to repeat the Guthrie test after a borderline elevated phe value of 240 μmol/L on Tyler’s first blood specimen test;

2)           two elevated phe values, as occurred in Tyler’s case, “should have raised a level of suspicion that [ Tyler] may have had PKU or a variant”.  Accordingly, diagnostic testing was required after the second test;

3)           in ordering a third Guthrie test rather than a diagnostic test after two elevated phe results, Dr. Whelan focused on whether phe levels requiring treatment had been reported in Tyler’s case.  However, the relevant question was why a newborn like Tyler would have two consecutive abnormal screening test results;

4)           with two positive Guthrie test results just above the screening cut-off, the standard of care required the use of a more accurate test to investigate further; and

5)           the important question that Dr. Whelan had to answer was whether it was safe to discharge Tyler from further follow-up.  He could not answer that question without a diagnostic test.

[19]         In the result, the trial judge concluded that Dr. Whelan’s conduct fell below the standard of care in ordering a third Guthrie test in circumstances where the reasonable and prudent decision was to order a quantitative diagnostic test.  She found that Dr. Whelan committed “a negligent error of clinical judgment”.  However, she held that Dr. Whelan bore a lesser degree of fault than the Crown.  The trial judge apportioned liability 75% to the Crown and 25% to Dr. Whelan.  Dr. Whelan appeals the trial judge’s liability decision.

POSITIONS OF THE PARTIES

[20]         Although Dr. Whelan raises several grounds of appeal, his core argument is that this appeal concerns his discretion to choose between two tests to rule out PKU in Tyler.  He submits that there were no practice protocols in place at the relevant time which expressed the applicable standard of care in the circumstances.  Thus, he says, in the absence of a recognized standard of care, the decision as to which test should be administered was within the exercise of his clinical judgment, based on his clinical experience.

[21]         Dr. Whelan goes on to argue that reasonable physicians could disagree as to which test was the most appropriate test to administer.  Accordingly, there had to be good reasons, grounded in recognized clinical practice, for holding that his exercise of judgment fell below the standard of care.     

[22]         The essence of Dr. Whelan’s argument is that, in arriving at her findings of fact, the trial judge ignored, disregarded, or misapprehended the evidence of his expert witness, Dr. Clarke.  In support of this argument, he submits that the trial judge failed to apply ter Neuzen v. Korn, [1995] 3 S.C.R. 674, and the line of cases associated with it.[3]  In ter Neuzen at para. 38, the Supreme Court held:

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent.… As L’Heureux-Dubé J. stated in [Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351]…(at pp. 363-64):

Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories.  [Emphasis in original.]   

[23]         This court has recognized this principle in numerous cases.  See for example, Connell v. Tanner (2002), 158 O.A.C. 268; Rowlands v. Wright (2009), 250 O.A.C. 394; Brain v. Mador (1985), 9 O.A.C. 87, leave to appeal to S.C.C. refused (1985), 13 O.A.C. 79 (note) (S.C.C.).

[24]         Dr. Whelan’s submissions suggest that if a defendant is able to advance proof that one reputable body in the community of medical professionals in Ontario at the time of the incident would support the conduct and decision making of the defendant, the trial judge is virtually compelled to accept that evidence and find against negligence.  

[25]         This argument proceeds on the premise that by ignoring or misapplying the applicable authorities, the trial judge misdirected herself on the law of negligence, leading her to wrongly disregard the defence expert evidence.  Dr. Whelan also argues that the trial judge’s failure to adequately consider the defence expert evidence resulted in palpable and overriding errors of factual determination on both negligence and causation issues.

[26]         The respondents, on the other hand, submit that in all cases of medical malpractice, the question is whether there was a duty of care between the doctor and patient and, if so, whether the standard of care that applied in all the circumstances was breached, leading to damages.  If Dr. Whelan’s approach were taken to the extreme, they argue, it would unfairly insulate physicians from liability in all cases where conflicting expert evidence as to the standard of care is led.   

[27]         The respondents contend that the overarching theme of Dr. Whelan’s arguments is simply that the trial judge should have accepted the evidence of Dr. Whelan and his expert, Dr. Clarke, over the evidence led by the respondents through their experts, Dr. Vallance and Dr. Chakraborty.  The respondents say that Dr. Whelan’s claim that he was engaged in the exercise of clinical judgment is not supported by the trial judge’s findings of fact or by the evidence.

[28]         I would dismiss the appeal.  First, I disagree with Dr. Whelan’s contention that the principles enunciated in ter Neuzen are engaged in this case.  I conclude that the trial judge’s interpretation and application of the law were correct.  Second, in my view, the trial judge did not ignore, misapprehend or misapply the evidence.  Indeed, I conclude that her findings were based on a fair and proper consideration of all the evidence.

THE EXPERT EVIDENCE

[29]         Given the focus of Dr. Whelan’s appeal, it will be useful to set out, in a brief fashion, the expert evidence that the trial judge considered.  The experts called by the respondents were:

(i)        Dr. Adeli: Head of Clinical Biochemistry at the Department of Paediatric Laboratory Medicine at the Hospital for Sick Children, Professor in the Department of Laboratory Medicine at the University of Toronto, and Fellow of the Academy of Clinical Biochemistry.  Dr. Adeli discussed the storage history of the blood spots from Tyler’s third specimen and the results of the 1999 and 2004 retests.  His evidence concerned the standard of care applicable to a laboratory conducting newborn screening.  In his opinion, there were errors in the testing of Tyler’s blood spots; such errors, he testified, breached the standard of care reasonably expected of a laboratory conducting newborn screening.

(ii)       Dr. Vallance: Medical doctor with a sub-specialty in biomedical genetics, Director of the Newborn Screening Program of British Columbia, and Director of the Biomedical Genetics Laboratory and Division Head of the Clinical Biochemistry Program at Children and Women’s Health Centre of British Columbia.  She is also a Clinical Professor of Pathology and Laboratory Medicine in the Faculty of Medicine at the University of British Columbia.  Dr. Vallance discussed the positive predictive value for PKU following two positive Guthrie tests.  Her opinion was that after two consecutive abnormal results, the standard of care required quantitative testing for plasma amino acids.  Dr. Vallance confirmed Dr. Adeli’s opinion that Tyler’s third blood specimen likely had a much higher phe value than was reported and that there were errors in testing this specimen.

(iii)     Dr. Chakraborty: Specialist in paediatrics and medical biochemistry, Assistant Professor of Paediatrics and Pathology and Laboratory Medicine at the University of Ottawa and the co-head of the testing laboratory for the Ontario Newborn Screening Program.  Dr. Chakraborty’s opinion was that Dr. Whelan’s decision to order a third Guthrie test, following two borderline positive results, did not meet the standard of practice of clinical or laboratory medicine at the relevant time. 

[30]         The expert evidence called by Dr. Whelan was:

(i)        Dr. Clarke: Specialist in paediatrics and biochemistry, former Head of Genetic Metabolic Diseases Program and Head of Division of Clinic Genetics at the Hospital for Sick Children, and Director of Postgraduate Medical Education in Medical Genetics at the University of Toronto.  Dr. Clarke has also pursued clinical research for over 35 years on PKU and the impact of treatment for children with PKU, as well as serving as member and later Chair of the Ministry of Health’s Advisory Committee on screening newborns for inherited metabolic diseases.  Dr. Clarke disagreed with Dr. Vallance and Dr. Chakraborty on the standard of care.  His opinion was that Dr. Whelan’s management of the case met the standard of care of a metabolic specialist in 1996.

[31]         I intend to first discuss Dr. Whelan’s submission that the trial judge erred by failing to apply ter Neuzen in this case.  I will then examine his argument that the trial judge further erred by committing palpable and overriding errors of factual finding.

ANALYSIS

[32]         Like all medical malpractice cases, the issues in this case are ones of tort and negligence law. In Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, at para. 3, McLachlin C.J., writing for the Supreme Court, explained that a successful action in negligence requires the plaintiff to demonstrate that:

1)     the defendant owed a duty of care;

2)     the defendant’s behaviour breached the standard of care;

3)     the plaintiff sustained damage; and

4)     the damage was caused, in fact and in law, by the defendant’s breach.

[33]         McLachlin C.J. went on to make clear that these steps are sequential and separate.  Thus, the first question for the court to decide in a negligence action is whether the defendant owes the plaintiff a duty of care.  If a duty is owed, the second question is whether the defendant’s behaviour breached the applicable standard of care.

[34]         The concepts of duty of care and standard of care are distinct but closely related.  In Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at paras. 21 and 25, Major J. explained:

[A] discussion of duty centres around its existence, while the standard of care clarifies what the content of the duty is.  Where there is no duty there is no negligence.

...

A duty of care either exists or it does not.… [W]hen the language of “duty” is framed in terms of its degree or content, what is really at issue is not the duty but the applicable standard of care.  While the distinction is obvious, courts from time to time seem to lose sight of that principle. [Citation omitted].

[35]         A standard of care, therefore, is the amount of care required by certain people under certain situations and is a measure of care that satisfies the duty.  In this case, there is no issue that Dr. Whelan owed the respondents a duty of care.  At trial, the contentious issue was whether, on the established facts, Dr. Whelan’s conduct in ordering a third Guthrie test for Tyler met the standard of care. 

[36]         This appeal is thus about how the second of the four elements of negligence – whether the defendant’s behaviour breached the standard of care – is established in a medical malpractice case where there is competing expert evidence.  Specifically, the issues are 1) what standard of care applied to Dr. Whelan in the circumstances; and 2) whether Dr. Whelan breached that standard by ordering a third Guthrie test, rather than a diagnostic test, for Tyler. 

Standard of Care

[37]         The standard of care applicable to Dr. Whelan required that his conduct be assessed on the basis of “that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing”: Crits at p. 143.  A specialist, however, is held to a higher standard than is a generalist.  As the Supreme Court elaborated in ter Neuzen at para. 33:

In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field. [Citations omitted.]

[38]         Dr. Whelan argues that the trial judge erred by failing to apply what he terms the “ter Neuzen principle” or the “respectable minority principle”.[4]  This principle holds that where the practice followed by a doctor is adhered to by at least a respectable minority of competent medical practitioners in the same field; it is not for the court to prefer the practice of the majority over that of the respectable minority.  In other words, a doctor who acts in accordance with a respectable minority body of medical opinion will normally be absolved of negligence: see for example, Ellen I. Picard & Gerald R. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson Carswell, 2007) at p. 362.

[39]         Dr. Whelan’s invocation of the respectable minority principle proceeds in this fashion.  First, he relies on Dr. Clarke’s testimony that Dr. Whelan’s decision to order a third Guthrie test following Tyler’s first two borderline elevated phe levels met the applicable standard of care in 1996.  Dr. Whelan submits that, as his decision to order a third Guthrie test, rather than a diagnostic test, involved the exercise of clinical judgment based on his considerable clinical experience, Dr. Clarke’s opinion and Dr. Whelan’s own testimony regarding the appropriate third test in the circumstances deserved great weight.

[40]         Dr. Whelan next emphasizes that, in his testimony, Dr. Chakraborty, one of the respondents’ experts, acknowledged that he would respect and rely on Dr. Clarke’s opinion.  Dr. Whelan therefore contends that Dr. Clarke’s opinion on the applicable standard of care, supported by Dr. Chakraborty’s testimony, constituted evidence of a respectable minority body of medical opinion on the established practice for a third PKU test in Tyler’s circumstances.  As his actions conformed with that body of opinion, Dr. Whelan maintains that the trial judge erred in finding him negligent.

[41]         I would not give effect to this argument on this record.

[42]         This is not a case where the trial judge erred by simply preferring one body of medical opinion over another respectable and competing body of medical opinion concerning the appropriate medical practice.  This is a case where the trial judge considered and weighed the conflicting testimony of the expert witnesses on the operative standard of care.  She concluded that Dr. Clarke’s opinion on the standard of care suffered from a number of frailties and was not sufficiently reliable to establish the existence of a respectable minority opinion.  The trial judge therefore accepted the evidence of Dr. Vallance and that of Dr. Chakraborty that, in Tyler’s case, after two consecutive abnormal phe values on Guthrie tests, the standard of care required quantitative testing for PKU.  In my opinion, the trial judge did not err in doing so.

[43]         In his testimony, Dr. Clarke emphasized that at the time of the original testing of Tyler’s blood specimens, it was common practice to conduct repeat Guthrie tests until it was determined whether hyperphe was treatable.  He said that two successive Guthrie test results of 240 μmol/L were “suspicious” but that this was insufficient to require diagnostic investigation since the second test result indicated that the patient’s phe level had not risen.  In the absence of a rise in the phe level by the time of the second test, Dr. Clarke was of the opinion that it was less likely that treatable hyperphe would develop.

[44]         The trial judge concluded that there were three key difficulties with Dr. Clarke’s evidence on this issue.  First, his opinion rested on the premise that the relevant question at the time of determining the appropriate third test was whether Tyler had developed treatable hyperphe.  However, the trial judge held that “the important question that Dr. Whelan had to answer was whether it was safe to discharge [ Tyler] from further follow-up”, and that this question could not be answered without a diagnostic, rather than a repeat screening, test.  In other words, the necessary inquiry was whether treatment or early intervention was necessary.  The evidence of both Dr. Vallance and Dr. Chakraborty supported this finding.

[45]         For example, Dr. Vallance testified that after a second positive phe result, as occurred in this case, a baby has about a 50% chance of being diagnosed with PKU or a variant.  Although Dr. Clarke disagreed, Dr. Chakraborty criticized Dr. Clarke’s analysis and expressed the opinion that after a second Guthrie test resulting in a borderline positive phe value, a patient is at increased risk of having PKU.  In his view, the available scientific data supported up to a 50% chance of some babies being diagnosed with PKU after a second positive phe result.  Accordingly, in these circumstances, a quantitative test should be conducted to determine if treatment or early intervention is required.  The trial judge accepted this evidence, stating:

Two elevated [phe] results should have raised a level of suspicion that [ Tyler] may have had PKU or a variant and diagnostic testing was required. This is reinforced by the fact that the concentration measured using the semi-quantitative Guthrie test can vary by ≥ 100 μmol/L.

[46]         Second, the trial judge, in effect, concluded that Dr. Clarke’s evidence on the significance of Tyler’s first two phe values was internally inconsistent.  Dr. Clarke testified that two elevated phe values at the cut-off point of the Guthrie test were “suspicious”.  However, he also suggested that the second phe level had not risen over the first and, therefore, there was a reduced likelihood of the development of treatable hyperphe.

[47]         The trial judge rejected this inconsistent hypothesis.  She put it this way:

I do not understand how a second positive Guthrie at 240 μmol/L can be both reassuring and suspicious…. On Dr. Clarke’s analysis, a third screen [a third Guthrie test] with no rise in phe would be more rather than less reassuring.

I see no error in this reasoning.  Indeed, I agree with it.

[48]         Moreover, contrary to Dr. Clarke’s contention that Tyler’s second Guthrie test result indicated no rise in his phe level, there was evidence at trial indicating that, properly interpreted and taking account of various specimen storage factors and laboratory errors, it was likely that Tyler’s true phe value was rising between his first and second Guthrie tests.  As I have already indicated, the trial judge accepted this evidence, as she was entitled to do, and found as a fact that the true phe value on Tyler’s second Guthrie test was “closer to 480 μmol/L”.  There was ample evidence at trial to support this finding.

[49]         Third, Dr. Whelan’s evidence of his own practice did not accord with Dr. Clarke’s view that diagnostic testing was not required until evidence of treatable hyperphe had emerged.  Dr. Whelan testified that babies with three successive Guthrie test results at untreatable phe levels of 240 μmol/L were subjected to diagnostic testing.  In other words, Dr. Whelan’s practice at the relevant time did not support the suggestion that diagnostic testing need not be undertaken until an indication of treatable hyperphe, evidenced by a rise in phe levels, existed.

[50]         The trial judge regarded all these factors as cogent reasons for rejecting Dr. Clarke’s opinion on the content of the applicable standard of care.  I agree. 

[51]         The courts have recognized that the respectable minority principle does not absolve a doctor from liability in negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor’s conduct: see Kangas v. Parker and Asquith, [1976] 5 W.W.R. 25 (Sask. Q.B.), at pp. 38-39, aff’d [1978] 5 W.W.R. 667 (Sask. C.A.); Cope v. Layden, [1984] A.J. No. 175 (C.A.); Kehler v. Myles (1988), 64 Alta. L.R. (2d) 97 (C.A.), at p. 106, leave to appeal to S.C.C. refused (1989), 95 A.R. 236; Alakoozi v. Hospital for Sick Children (2004), 187 O.A.C. 187 (C.A.), at paras. 5-7.  As Picard and Robertson point out in Legal Liability of Doctors and Hospitals in Canada at p. 364, “were it otherwise, nearly every medical negligence case would be resolved in favour of the doctor, because they almost always involve a conflict of expert evidence.”

[52]         The decision of the Manitoba Court of Appeal in Anderson v. Chasney, [1949] 4 D.L.R. 71, aff’d [1950] 4 D.L.R. 223 (S.C.C.) is instructive in this regard.  In Anderson, the defence argued that if the defendant surgeon followed what was established by expert evidence to be a general surgical practice, no finding of negligence could be made against the defendant.  In rejecting the proposition that expert evidence of common medical practice was conclusive of the question of negligence, Coyne J.A. commented at p. 81: “[I]f that were correct the expert witnesses would, in effect, be the jury to try the question of negligence.”  He went on to hold at p. 81:

That question, however, must continue to be one for the petit jury empanelled to try the case, if it is a jury case, and for the Court where it is not.  The experts remain witnesses to give their expert opinions in assistance of the jury or the Court to determine whether there was negligence or not.  The opinions of the experts are not conclusive.

See also pp. 88-89.

[53]         Moreover, courts have the discretion to assess liability even in the face of uncontradicted evidence of common professional practice.  As L’Heureux-Dubé J. stated in Roberge v. Bolduc, [1991] 1 S.C.R. 374, at p. 437:

The fact that a professional has followed the practice of his or her peers may be strong evidence of reasonable and diligent conduct, but it is not determinative.  If the practice is not in accordance with the general standards of liability, i.e., that one must act in a reasonable manner, then the professional who adheres to such a practice can be found liable, depending on the facts of each case.  [Emphasis in original.]

[54]         In this case, the trial judge essentially concluded that the expert evidence did not establish that Dr. Whelan’s decision to order a third Guthrie test in the face of two successive borderline elevated phe levels, instead of ordering a diagnostic test, accorded with a practice adopted by a respectable minority of the medical profession. In other words, on the totality of the evidence in this case, the respectable minority principle was simply not engaged.  I see no reversible error in the trial judge’s conclusion on this issue.

Breach of Standard of Care

[55]         Once the trial judge had determined what the standard of care required, the question of breach was rather simple.  Having found that the applicable standard required the ordering of a diagnostic test after the positive screening tests, the factual question was simply whether or not Dr. Whelan had ordered such a diagnostic test.  The answer was that he had not and thus that he had breached the standard of care.  One could imagine a case where the factual determination of whether or not a breach had occurred would be more complicated and perhaps require further expert evidence, but that was not the case here.

Attack on Trial Judge’s Factual Findings

[56]         As I noted above, the overarching theme of Dr. Whelan’s arguments is that the trial judge should have accepted the evidence of Dr. Whelan and his expert over the evidence of the respondents’ experts.  In this context, he attacks the trial judge’s factual findings on several grounds.  I view it as unnecessary to address each of these grounds separately.  Rather, I will discuss those submissions that I believe have relative merit.

(i)        Dr. Whelan’s clinical judgment

[57]         The first argument relates to the trial judge’s finding that Dr. Whelan negligently exercised his clinical judgment in choosing a third Guthrie test because he did not inform himself as to whether Tyler had any condition which would cause benign transient hyperphe.  Dr. Whelan contends that the judge erred in making this finding.  I would reject this submission for several reasons. 

[58]         First, as I have said, Dr. Whalen asserts that there were no practice protocols in place that expressed the standard of care in the circumstances of this case.  That is, at the time of the 1996 testing, no protocol existed to guide the Ontario Newborn Screening Program or any of its five regional centre staff as to the appropriate test to be conducted following two borderline elevated phe values in a newborn on Guthrie tests.  Therefore, he says, the decision was one for the exercise of his clinical judgment, based on his clinical experience. 

[59]         Dr. Whelan’s counsel in oral argument stated that clinical judgment, in this case, means “adopting a protocol or standing order which is informed by the doctor’s clinical experience and consistent with logic and common sense”.  Thus, he argued, the decision in question was a matter about which reasonable physicians could disagree.  Accordingly, there had to be good reasons, grounded in recognized clinical practice, for holding that Dr. Whelan’s exercise of judgment fell below the standard of care. 

[60]         Dr. Whelan, as regional consultant, was responsible for Tyler’s case.  However, he did not actively take part in any decision making regarding his case.   Tyler’s test results were received and managed by a genetic counsellor at Dr. Whelan’s offices, Tim Heshka, pursuant to routine and standing orders provided by Dr. Whelan.

[61]         Thus, in spite of his position, Dr. Whelan does not appear to have made any specific clinical decisions with respect to Tyler.  As found by the trial judge, Tyler’s third repeat Guthrie test arose as a result of Tim Heshka following the routine standing orders of Dr. Whelan.  It was not the result of a conscious decision that was specifically and particularly related to Tyler. 

[62]         The trial judge was very much alive to this issue, noting that “the honest and intelligent exercise of judgment”, even if mistaken, satisfies a doctor’s professional obligation to take reasonable care in the circumstances.  In para. 55 of her reasons, she rejected the argument that what occurred in this case was the exercise of clinical judgment by Dr. Whelan.  After reviewing the relevant evidence, she concluded:

Tyler had none of [the factors that might suggest transient benign hyperphe], but Dr. Whalen did not know this, nor did he seek out this information. This kind of information could have provided some reassurance that Tyler’s elevations were transient, but without it, I find it difficult to accept that the routine third test that Mr. Heshka arranged was based on an exercise of Dr. Whalen’s clinical judgment.

[63]         In light of this finding, Dr. Whelan’s assertion that he exercised clinical judgment is without any factual support.  Dr. Whelan’s evidence as to the reasonableness of a decision that was not made by him, as the respondents note, is no more than historical reconstruction posed in a way that was designed to give it the appearance of immediate direct contemplative thought.  No such contemplation occurred here.  I would reject this argument.

(ii)       The trial judge’s treatment of expert evidence

[64]         Next, Dr. Whelan submits that the evidence of Dr. Chakraborty should have been given less weight than it was.  This is because, in his testimony, Dr. Chakraborty acknowledged that providing an opinion in this case required him to apply in a retrospective way what he knows now but did not know in 1996.  And, as the trial judge noted at para. 37:

Hindsight has no role to play in evaluating conduct that is said to fall below a reasonable standard of care.  Practices change and standards evolve.  As much as possible, one must try to go back and experience the event as it was then. [Citations omitted.]

[65]         Dr. Whelan’s counsel at trial objected to Dr. Chakraborty’s qualifications to give expert evidence on the standard of care as it existed in 1996.  Dr. Chakraborty, who is the current head of the Ontario Newborn Screening Program, had his qualifications carefully reviewed by the trial judge as a result of this challenge.  The trial judge held that he was qualified to provide the proffered opinion evidence.  That ruling has not been appealed.  The trial judge, therefore, was entitled to consider Dr. Chakraborty’s expert opinion evidence and to assign to it the weight, if any, that she considered appropriate.

[66]         Further, even if the trial judge had given little or no weight to Dr. Chakraborty’s evidence, the evidence of Dr. Vallance still conflicts with that of Dr. Clarke.  Moreover, for the reasons I have outlined above, the trial judge would still have had a firm basis on which to reject the evidence of Dr. Clarke.  There is, therefore, no substance to this argument.

(iii)     The effect of two positive phe results

[67]         Finally, Dr. Whelan argues that because PKU is associated with high concentrations of phe long before one month of age, Tyler’s results were not indicative of PKU.  After the second test, Dr. Whelan thought that the likelihood of PKU had diminished. This was because, in his opinion, the phe concentration did not rise in the five days between Tyler’s first and second Guthrie tests.  Therefore, he felt a third screening test was appropriate. 

[68]         I have already discussed the trial judge’s consideration of this issue.  She found as a fact, on all the expert evidence, that Tyler’s phe level was likely rising between his first and second Guthrie tests.  This finding was open to her on the evidence.

[69]         Moreover, in his own evidence, Dr. Whelan said that he would have sent Tyler for quantitative testing had Tyler’s third screen resulted in a phe value at or above 240 µmol/L.  Thus, in effect, Dr. Whelan testified that two borderline screens plus a third borderline elevated result suggest transient benign hyperphe.  There was no explanation as to why three borderline positive phe values within one month would be significantly more cause for concern than two, given the evidence that transient hyperphe may last longer than a few weeks.  Why would three borderline positive screens call for quantitative testing, while two borderline positive screens would not?  

[70]         The respondents’ experts, Dr. Vallance and Dr. Chakraborty, both testified that in light of Tyler’s two positive phe test results, the standard of care at the time required that Tyler’s condition should be individually and personally investigated clinically.  This direct approach, they said, would absolutely mandate the use of a simple, available and inexpensive amino acid quantitative blood test.   

[71]         All the respondents’ experts agreed that the amino acid quantitative blood test would provide Tyler’s doctors with an accurate reading of his phe plus or minus 10 μmol and would lead to an informed clinical diagnosis.  No such test was suggested by Dr. Whelan’s genetic consultant, Tim Heshka, or by Dr. Whelan himself.  I would dismiss this ground of appeal.

CONCLUSION

[72]         I conclude that Dr. Whelan has not provided any grounds for this court to interfere with the decision of the trial judge.  First, the trial judge’s determination of what constituted the standard of care and her application of that standard of care to Dr. Whelan’s conduct were correct.  Second, the findings of the trial judge were supported by the evidence presented to her.  She was entitled to accept or reject all or part of the evidence of any witness.  And, on my review of her reasons and the record as a whole, I conclude that Dr. Whelan has not established that the trial judge committed any palpable and overriding errors that would support this court’s intervention.

DISPOSITION

[73]         For the reasons herein, I would dismiss the appeal.  Pursuant to the agreement of the parties, I would award the respondents their costs of the appeal, fixed in the amount of $25,000, inclusive of disbursements and taxes.

RELEASED: 

“MAR 30 3011”                                           “H.S. LaForme J.A.”

“EAC”                                                            “I agree E.A. Cronk J.A.”

                                                                        “I agree R.A. Blair J.A.”