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Tort Law - NEGLIGENCE - Duty and standard of care - Standard of care - Causation - Causal connection - Evidence and proof

Thursday, January 19, 2017 @ 7:00 PM  


Appeal by the defendant, Doctor Joshi, from a finding of professional negligence in favour of the plaintiffs, the Barbers. In 2006, Mark Barber died at age 46 of pneumococcal bacterial meningitis. The plaintiffs, Barber’s surviving wife and children, sued the appellant and another emergency room physician for damages for negligence. They alleged that Barber’s death resulted from the defendants’ failure to properly investigate, diagnose and treat his meningitis. The trial judge found that the appellant’s care and treatment of Barber fell below the applicable standard by failing to consider the possibility of meningitis in a differential diagnosis, failing to conduct procedures to rule out meningitis, and by failing to suspect and diagnose meningitis during a second assessment the following day. The trial judge found causation was established, as it was more likely than not that but for the appellant’s failure to properly diagnose and treat Barber’s illness, he would not have died. The action against the other physician was dismissed for failure to demonstrate a causal link between Barber’s death and the physician’s breaches of the standard of care. Doctor Joshi appealed on the basis the trial judge erred in the analysis of the standard of care and causation. Doctor Joshi also sought leave to appeal the costs award in favour of the other defendant.

HELD: Appeal dismissed. The trial judge’s factual findings regarding Barber’s mental status were based on an appreciation and assessment of the evidence that was entitled to deference. There was no error in the finding that Barber suffered from confusion caused by bacterial meningitis at the time he was assessed by the defendant. The finding did not result from a misapprehension or failure to consider relevant evidence to the contrary. Cogent reasons were given for rejecting the contradictory evidence. The trial judge considered the appellant’s evidence regarding Barber’s mental status and placed little weight on his testimony about his invariable practice. Having considered the appellant’s evidence, the trial judge was not obliged to accept it. In addition, the trial judge did not err in the assessment of the expert evidence regarding the applicable standard of care. The reasons for judgment clearly explained the basis for the decision on the standard of care and did not reflect a failure to consider certain expert evidence. The trial judge’s conclusion on the issue of causation reflected an understanding of the competing theories advanced at trial. She could not be faulted for rejecting the defence actual outcome theory as a relevant point of comparison in favour of the medical studies and statistical outcome evidence proffered by the plaintiffs’ experts. With respect to costs, a Sanderson order was predicated on the unimpeachable conclusion that it would be unfair to require the plaintiffs to pay the successful defendant’s costs when it was reasonable to join him in the action.