Ipsofactoj.com: International Cases [2002] Part 4 Case 12 [NZCA]


SUPREME COURT OF CANADA

Coram

Marcoux

- vs -

Dr. Bouchard

L'HEUREUX-DUBÉ J

GONTHIER J

BASTARACHE J

ARBOUR J

LeBEL J

13 SEPTEMBER 2001


Judgment

LeBel J

IINTRODUCTION

  1. The main issue in this appeal relates to consent to a complex and delicate surgical operation performed by the respondents in Québec in 1982 to relieve the severe and persistent pain suffered by the appellant, Murielle Marcoux. The appellant also questions whether any purpose was served by the operation.

  2. The appellant asks that the appeal and action against the respondents for professional liability, which was dismissed by judgments from which she has appealed, be allowed. Although a case of this type is one that may raise important legal issues, such as protection of the inviolability of an individual's person and the requirements in respect of enlightened consent to surgery, the facts established in this appeal do not support the appellant's arguments and this Court would not be justified in intervening with respect to the assessment of the evidence by the trial judge. Accordingly, the appeal must be dismissed for the reasons that follow.

    IIORIGIN OF THE CASE

  3. The appellant's medical problems have existed for many years. In 1977, the respondent, Dr. Leblanc, a neurosurgeon practising in Québec, assisted by Dr. Bouchard, who was then a neurosurgery resident, performed an operation at the Hôpital de l'Enfant-Jésus in Québec which consisted of sectioning the fibres of the trigeminal nerve, in the hope of relieving pain which had continued since a surgical operation to the maxilla. The purpose of this operation was to stop the pain radiating from the jaw. Unfortunately, the surgery did not solve the problem, but in fact caused Ms. Marcoux to experience analgesia dolorosa in her cheek, in addition to the facial neuralgia from which she was already suffering.

  4. In the spring of 1980, the appellant became a patient of Dr. Bouchard. For some years, the medical teams at the Hôpital de l'Enfant-Jésus tried a variety of treatments and medications to relieve the appellant's pain. Some of these were intended to treat her neurological problems, and others to treat the disorders of her maxillae and maxillary joints. Her hospital file confirms that she was there on many occasions for consultations and a variety of treatments.

  5. In 1981, on the suggestion of some physicians at the Hôpital de l'Enfant-Jésus, the appellant consulted specialists in Montréal, and specifically Dr. Molina-Negro. Like Dr. Bouchard at that time, he advised her against any further surgery.

  6. In 1982, the appellant's pain became more severe. Eventually, Dr. Bouchard recommended to his patient that she undergo a second operation. The purpose of that operation was to section the nerves that had survived the 1977 operation, to relieve the facial neuralgia. However, he did not expect that he could relieve the anaesthesia dolorosa. Ms. Marcoux agreed. The consent form signed before the operation indicated that Dr. Bouchard would be the surgeon. Nevertheless, Dr. Leblanc participated in the operation and it was he who sectioned the nerves. The surgery was unsuccessful and did nothing to relieve the pain. It also had serious sequelae. The cerebellum was damaged, causing balance problems and tremors in Ms. Marcoux's right hand, which she is now unable to use. As a result, she was forced to give up her job as a teacher with the Commission des écoles catholiques de Québec, and most of the outside activities that she had continued despite her health problems.

  7. The operation having been a failure, she brought an action for damages against Dr. Bouchard and Dr. Leblanc. She contended first that the operation had served no purpose. In her opinion, Dr. Bouchard should never have recommended the operation, which he should have known would serve absolutely no purpose. In addition to what was originally the main reason for the action, there were two arguments based on absence of consent.

  8. The appellant began by asserting that art. 19 C.C.L.C., which guarantees the inviolability of the human person, had been infringed :

    19.

    The human person is inviolable

    No one may cause harm to the person of another without his consent or without being authorized by law to do so.

  9. The appellant submits that she learned of Dr. Leblanc's participation only after the operation. She alleges that Dr. Bouchard never informed her that his colleague would perform the most significant part of the surgery, sectioning the nerves, and that as a result Dr. Leblanc performed the surgery without her knowledge or consent, which infringes her right to inviolability of the person, and should be held liable for all the consequences of an operation that served no purpose and even caused harm. It is conceded, however, that the surgical technique itself was beyond reproach.

  10. Ms. Marcoux also argues that she did not give enlightened consent to the operation. Dr. Bouchard allegedly did not inform her that Dr. Molina-Negro, a Montréal neurologist, had sent him a report on the consultation which strongly advised against any further surgery. Had she been aware of that opinion, she would never have consented to the surgery. This is the second ground on which she claims that the respondents are liable for professional negligence.

  11. Dr. Bouchard and Dr. Leblanc denied these allegations and strongly contested the claim. Their view is that the operation was medically justified, despite having been a failure. The statement of defence also submits that the plaintiff was informed both that Dr. Leblanc would be present and of Dr. Molina-Negro's conclusions, before the surgery, and alleges that she received all the information that she needed in order to give enlightened and valid consent and protect her right to inviolability of the person, and accordingly that there was no basis for the action in law.

    IIIJUDICIAL HISTORY

    A.  Superior Court

  12. The case was heard by Martin J. of the Superior Court who conducted a detailed review of the evidence and found that the appellant had not established that the surgery had served no purpose. The respondents had good reason to believe that there were some nerve fibres that were continuing to transmit the pain originating in the right side of the appellant's face. In all probability, if other competent surgeons had had to deal with the same clinical case they would have adopted a course of action similar to what was done by the respondents. He held that the respondents had committed no professional fault by proposing the surgery performed in December 1982.

  13. Martin J. considered the parties' contradictory versions of the substance of their discussions before the surgery and found that Dr. Bouchard was generally credible. He preferred his version of those events to the appellant's. The judge added that although it was Dr. Leblanc who sectioned the nerves and the trigeminal at the time in question, Dr. Bouchard had still been responsible for the operation, as the surgeon. It was he who proposed the surgery, made the incision and performed the preparatory work. As even the plaintiff acknowledged, the surgical technique seemed to meet the professional standards. The trial judge was also of the view that the appellant had in any case been adequately informed that Dr. Leblanc would be present and what his role would be. In his opinion, she had consented to the surgery with full knowledge of the risks, the relatively poor chance of success and the reservations that Dr. Bouchard had already expressed. Dr. Bouchard had given his patient all the information a competent neurosurgeon was required to provide her with in the circumstances of the case. Accordingly, the Superior Court dismissed the action.

    B.  Court of Appeal, [1999] R.R.A. 447

  14. The appellant raised three grounds of appeal, including two relating to consent to the operation.

    • First, the chief surgeon, Dr. Leblanc, had never personally obtained her consent to the operation. Dr. Bouchard had never informed her that his colleague would be present or of what his role would be.

    • Second, she had not given enlightened consent to the operation, Dr. Bouchard not having provided her with adequate information, in that he failed to disclose that the neurologist she had consulted, Dr. Molina-Negro, had advised against the operation.

    • And third, she repeated her argument that because she was not informed that Dr. Leblanc would be present and would participate, her right to inviolability of the person had been unlawfully infringed, contrary to art. 19 C.C.L.C.

  15. For the reasons stated by Brossard J.A., the Court of Appeal did not accept these arguments and unanimously dismissed the appeal. On the question of whether any purpose had been served by the operation, the Court of Appeal relied on the assessment of the medical testimony and the expert evidence. Based on that assessment, the appellant had failed to establish that the operation had served no purpose, and the Court of Appeal had to defer to the trial judge's findings of fact. Thus, on the evidence presented by the parties, although the operation may have proved to be completely ineffective, it was medically justified and could not be described as having served no purpose.

  16. In addition, Dr. Leblanc's participation in the surgery did not mean that there had been a breach of art. 19 C.C.L.C. In the opinion of Brossard J.A., Ms. Marcoux had given her consent to an operation performed by a team which, to her knowledge, included Dr. Leblanc.

  17. However, on the question of Dr. Molina-Negro's report, Brossard J.A. stated the opinion that the appellant had not been informed of his recommendations. He found that the trial judge had committed a patent error by disregarding the appellant's assertions that she was unaware of Dr. Molina-Negro's opinion when she consented to the surgery in December 1982. However, he concluded at p. 471 that this error was not fatal, since Ms. Marcoux would have consented to the operation in any case, regardless of the legal standard used to assess her consent [TRANSLATION]:

    I am of the opinion, on the record as a whole. . ., that there is no doubt that [the plaintiff] would have consented, even if she had been aware of the negative opinion of Dr. Molina-Negro in September 1981. I am of the opinion that, both objectively and subjectively, the appellant would inevitably have consented to the surgery performed in December 1982.

  18. In objective terms, according to Brossard J.A., the evidence established that the appellant had been increasingly unable to tolerate her pain. Any reasonable person in her situation would therefore have opted for the destructive surgery, with its inherent risks and chances of success, of which she was aware and of which she had been adequately informed, rather than agree to continue living with that kind of pain.

  19. In addition, in subjective terms, Brossard J.A. found that the appellant had consulted Dr. Molina-Negro in 1983 on the question of whether she should have another operation that had been recommended by a dental surgeon to treat her maxillofacial problem. Despite the strong opinion initially stated by Dr. Molina-Negro, who advised against any type of surgery at that time, the appellant had another operation on her maxilla, which apparently provided her with partial relief.

    IVRELEVANT LEGAL PROVISIONS

  20. Civil Code of Lower Canada

    19.

    The human person is inviolable

    No one may cause harm to the person of another without his consent or without being authorized by law to do so.

    Civil Code of Québec, S.Q. 1991, c. 64

    10.

    Every person is inviolable and is entitled to the integrity of his person. Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.

    VANALYSIS

    A.  Argument of the Parties

  21. The appellant makes the same arguments against the judgments of the Court of Appeal as she had made unsuccessfully in the past. First, she raises the issue of whether any purpose had been served by the operation. In her view, it could not have relieved her pain and should not have been recommended to her. Second, she questioned the adequacy and validity of the consent she gave to the operation.

  22. The arguments on which the appellant focused in this Court related to the issue of consent. The first was that the respondents violated art. 19 C.C.L.C. No one may be operated on without consent which must be given not only for the operation itself, but also in respect of who will perform it. The patient must be informed of who the main actors in an operation will be, thus consent with knowledge that they will be participating. In the case at bar, the appellant asserts that she was informed that Dr. Leblanc would be doing the nerve section, even though that was the most important and critical part of the operation. She therefore submits that Dr. Leblanc's participation was unauthorized act that violated a fundamental obligation to protect the inviolability and autonomy of the person. The surgeon should therefore be liable for all the consequences of this unlawful operation, despite the fact that there was no fault in the surgical technique properly speaking.

  23. The second argument on the issue of consent was that the Court of Appeal erred in its conclusion regarding the information that the appellant was given about Dr. Molina-Negro's opinion, and in concluding that she would have given consent in any event if she had been aware of that opinion at the time. Dr. Molina-Negro's opinion was a key factor in the decision she had to make. His strong negative recommendation would have dissuaded her from having the operation suggested by Dr. Bouchard. Having failed to obtain the enlightened consent of his patient, he is liable, jointly and severally with his colleague Dr. Leblanc, for the injury suffered by the appellant.

  24. The quantum of damages is not in issue. On that point, the evidence clearly establishes that the operation caused the appellant significant harm, in that she became incapable of working and engaging in numerous activities.

  25. The respondents took the same positions on the law as they had argued at trial. They also stressed the importance of the role of the trial judge in respect of findings of fact and in asserting that there was no valid reason to review those findings, particularly with respect to the credibility of the parties.

  26. With all this in mind, I will begin by addressing the various arguments on the question of whether the operation served any purpose. I will then examine the problems raised by the appellant's consent.

    B.  Purpose Served by the Operation

  27. In order to appreciate the argument relating to whether the operation should have been performed, we need to understand the nature of the operation and the of appellant's disorder. Since the operation was performed in 1977, the appellant had suffered from severe and continuing pain, arising from two sources. First, she experienced anaesthesia dolorosa, which first occurred after the 1977 surgery and originated in the brain itself. Moreover, facial neuralgic pain radiated from the maxilla. The operation recommended by Dr. Bouchard in 1982 was not meant for the anaesthesia dolorosa type of phenomenon. It was clearly understood that sectioning the remaining nerves would have no impact on that pain. The operation was intended to relieve another type of pain: the respondents' hypothesis was that the pain was being transmitted by a number of nerves that the 1977 operation had not succeeded in sectioning. There were risks involved in that operation, and it was uncertain whether it would serve any purpose. However, according to the evidence accepted by the Superior Court and the Court of Appeal, this option was a defensible surgical operation by medical practice standards.

  28. The assessments of the respondents' decision to recommend and perform this surgery in the judgments under appeal were consistent with the fundamental principles of medical liability. The courts must of course assess expert medical evidence, as they must assess any expert evidence. However, it is not their role to decide which of the therapeutic options presented is the right one; that determination falls within the parameters of good medical or surgical practice. (See, for example, J.-L. Beaudoin and P. Deslauriers, La responsabilité civile (5th ed. 1998), at pp. 851-52; Hôpital général de la région de l'Amiante Inc. v. Perron, [1979] C.A. 567, at pp. 572-73, per Lajoie J.A.; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at pp. 361-64, per L'Heureux-Dubé J.)

  29. The appellant's arguments in support of the contention that the operation served no purpose are based on confusion, particularly on the part of her expert witness, Dr. Molina-Negro. When consulted several months after the failure of the operation, Dr. Molina-Negro seems to have thought that Dr. Bouchard and Dr. Leblanc did the operation to relieve the anaesthesia dolorosa being experienced, and this would have served absolutely no purpose. However, the operation was done for a different purpose: to relieve the neuralgia. At trial, Dr. Molina-Negro admitted, on cross-examination, that he described the operation as ineffective rather than as having served no purpose.

  30. The operation did not produce the intended result. From the medical standpoint, it did not seem, before it was performed, to serve no purpose. Recommending it to a patient was not a professional fault in the circumstances of this case. The appellant's first argument therefore fails.

    C.  Consent to the Surgery

  31. Both art. 19 C.C.L.C., now art. 10 C.C.Q., and s. 1 of the Charter of Human Rights and Freedoms, R.S.Q., c. C-12, guarantee the fundamental right of every individual to inviolability of the person. No matter how necessary a medical treatment may be, any medical treatment, and most especially surgery, is a breach of what is, as a rule, the inviolability of an individual's person. That is why there must be consent, which the courts required to be enlightened consent. (See R. P. Kouri and S. Philips-Nootens, Le Corps Humain, l'inviolabilité de la personne et le consentement aux soins (1999), at pp. 71 et seq. and 213 et seq.; L. Potvin, L'obligation de renseignement du médecin (1984), at p. 10.) Surgery is also based on the principle that the relationship with a physician or surgeon is a deeply personal one. That fact is expressed in the traditional vocabulary of the law, which says that an agreement for medical care must be made intuitu personae, with a specific person in mind. A patient will often wish to see a particular physician or to be handled by a particular, clearly identified surgeon. In the case of surgery, the patient is entitled to know who the main actors in the operation will be. However, that obligation would not extend to the usual secondary players who are present during surgery, including anaesthetists, nurses, and physicians in training, such as residents and interns.

  32. Emergency situations may occur, and team or group medical practices have developed, as we see in this case. However, the principle of enlightened and full consent still applies. If necessary, the information given to patients should be adapted to reflect, where necessary, the specific manner in which health care services are organized in groups of physicians or in hospitals. The patient must still be given that information. According to the appellant, that was not done. Unfortunately for her arguments, an analysis of the evidence does not support that argument, either with respect to the presence of Dr. Leblanc, the surgeon, during the operation or with respect to Dr. Molina-Negro's report.

    D.  Presence of Dr. Leblanc

  33. In his judgment, Martin J. analysed the evidence at length and made findings of fact, in particular with respect to the credibility of the parties. On that point, and with all possible tact in the circumstances, he pointed to the credibility that he gave, generally, to Dr. Bouchard's version of his discussions with Ms. Marcoux before the operation. Dr. Bouchard's statements and explanations coincided to a very large extent with the notes found in the medical records. That factor seems to have played an important role in the judge's assessment of the parties' credibility. Although in the latter part of his judgment, containing his specific findings of fact, he did not specifically find that Dr. Bouchard had informed Ms. Marcoux that Dr. Leblanc would be present, that finding may be inferred from his analysis as a whole. Dr. Bouchard clearly stated during his testimony that he told Ms. Marcoux that Dr. Leblanc, a specialist in this type of operation at the Hôpital de l'Enfant-Jésus, would participate in the operation and would section the nerves. According to Dr. Bouchard, Ms. Marcoux consented to his colleague being present and participating. Given that Martin J. found that Dr. Bouchard was credible overall, there is no reason to question, in this Court, whether that information was given. Indeed, there is circumstantial evidence to support that finding. The appellant had been operated on by Dr. Leblanc in the past. She was familiar with the organization of the health care teams at the Hôpital de l'Enfant-Jésus, particularly in the neurosurgery department. She had been in ongoing contact, over several years, with the specialists in maxillary surgery and the neurologists. She knew that Dr. Bouchard would not be operating alone, and in fact would have an assistant. Unless the trial judge's assessments of credibility are to be questioned, that not being the normal role of this Court as the second level of appeal, we must conclude that there is no basis for this first aspect of the argument regarding the alleged failure to provide information.

    E.  Information Regarding Dr. Molina-Negro's Opinion

  34. The second aspect of the argument concerning the lack of information is based on failure to provide information about the conclusions in the report by Dr. Molina-Negro, a Montréal neurologist and physician, who subsequently became the appellant's expert witness, on the question of whether any purpose would be served by the operation and what the risks were. As I indicated earlier, Ms. Marcoux says that if she had been aware of this expert's negative opinion before the operation she would never have consented to it.

  35. A degree of confusion has made its way into the analysis of the facts concerning this consultation. When the events are put back into their proper sequence, it appears that there is no factual basis for the argument. As the trial judge found, the appellant received complete and sufficient information concerning the nature and risks of the operation.

  36. First, it must be borne in mind that the operation took place in December 1982, following consultations and discussions that went on for several months, because Ms. Marcoux was continuing to experience pain and the pain had worsened. In 1981, at the suggestion of certain physicians at the Hôpital de l'Enfant-Jésus, she went to Montréal for a consultation. She had contacted Dr. Molina-Negro directly. He then prepared a report, and we know that copies of the report were sent to Dr. Bouchard and another physician at the Hôpital de l'Enfant-Jésus, Dr. Goodyer. We still do not know where the original went. Ms. Marcoux did not receive a copy of the report at her interview with Dr. Molina-Negro. However, the trial judgment found that in the fall of 1981 Dr. Bouchard had informed the appellant that like himself, Dr. Molina-Negro did not recommend the operation. Based on that finding, we may say that at that point, Ms. Marcoux was already aware that Dr. Molina-Negro was opposed to a further operation. Even if we were to assume that she had not been informed of the detailed content of the report, she was at least aware that it was negative in terms of the further surgery suggested.

  37. In 1982, as we have seen, discussions regarding the possibility of a further operation resumed. It was clear that at that time, again according to the trial judgment, Dr. Bouchard did not specifically refer to Dr. Molina-Negro's opinion, which related to the previous condition, a disorder that was still unstable. Dr. Bouchard, did, however, remind Ms. Marcoux during that period, in different words, that his Montréal colleagues were still opposed to the operation. In addition, it is conceded that all the risks of this surgery were explained to her. The appellant in fact acknowledges that she was a very curious patient who asked a lot of questions. She further admitted that she was given answers to those questions. Dr. Molina-Negro's report, which the appellant had been informed of a year earlier, was part of the general information was already in the appellant's possession about her own case.

  38. In the fall of 1982, according to the evidence accepted by the judge, the appellant agreed to a risky operation to try to relieve some of the pain that was making her life unbearable. The physicians' obligation to provide her with information had been properly performed.

    VICONCLUSION

  39. None of the arguments submitted by the appellant in this appeal can succeed in law, there being no factual basis for them. The appeal must therefore be dismissed with costs.


Cases

Hôpital général de la région de l'amiante Inc. v. Perron, [1979] C.A. 567; Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351.

Legislations

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 1.

Civil Code of Lower Canada, art. 19.

Civil Code of Québec, S.Q. 1991, c. 64, art. 10.

Authors and other references

Baudouin, Jean-Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville, Qué. : Yvon Blais, 1998.

Kouri, Robert P., et Suzanne Philips-Nootens. Le corps humain, l'inviolabilité de la personne et le consentement aux soins. Sherbrooke, Qué. : Revue de droit de l'Université de Sherbrooke, 1999.

Potvin, Louise. L'obligation de renseignement du médecin. Cowansville, Qué. : Yvon Blais, 1984.

Representations

Gordon M. Kugler, Martine L. Tremblay and Annette Lefebvre, for the appellant (instructed by Kugler Kandestin, Montréal)

Robert-Jean Chénier and Chantal Léonard, for the respondents (instructed by McCarthy Tétrault, Montréal)


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