[1] On appeal from a judgment of the Superior Court, District of Montreal, (the Honourable Brian Riordan), rendered on July 5, 2010 and corrected on July 22, 2010, which, inter alia, maintained the action of the respondents Marcy White and Andrew Trossman against the appellant Dr. Gordon Watters, and condemned Dr. Watters, solidarily with another physician, to pay the respondents an amount of $6,000,276, with interest, additional indemnity and costs, as specified in paragraphs [430] to [432] of that corrected judgment;
[2] For the reasons of Kasirer, J.A., with which Thibault and Rochette, JJ.A. agree, THE COURT:
[3] ALLOWS the appeal, with costs;
[4] DISMISSES the incidental appeal, without costs;
[5] DISMISSES the respondents' action against Dr. Gordon Watters, with costs.
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REASONS OF KASIRER, J.A. |
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Outline
I Introduction
II Context
a) 1970 to 1974
b) The birth of Yochai Liss in 1988
c) The birth of Jacob Trossman
III Trial Judgment
IV Analysis
a) Extracontractual fault
(i) Obligation of means imposed on physicians
A. Identification of the appropriate standard of conduct
B. Duty of confidentiality owed by Dr. Watters to his patient
(ii) Conduct expected of the reasonable physician in the circumstances
b) Causation
(i) Was a "palpable" error made in respect of the diagnosis?
(ii) Was the error an "overriding" one?
(iii) Frank Carin’s conduct as breaking the chain of causation
c) Losses suffered by the respondents
V Conclusion
***
I Introduction
[6] In 1971, a physician diagnosed his infant patient with a debilitating, neurological disease inherited through a gene carried by the boy’s mother. Other than one of the child’s parents, the doctor did not inform family members - persons with whom he had no therapeutic relationship - of the risk that they or another relative might pass the disease on to their children.
[7] Thirty years later, a second cousin of the sick boy gave birth to a child with a sex-linked neurological disease with similar symptoms. The mother and her husband sued, among others, the physician, alleging that had he taken reasonable steps to ensure that the relatives were informed of the earlier diagnosis, she would have learned of the risk of having a sick child and terminated her pregnancy. The trial judge agreed and awarded them over $6,000,000 for losses connected to the birth of their child in 2002.
[8] The doctor appeals, saying he had committed no fault, that he had no duty to inform the relatives or to see that they were informed and, even if he did, his conduct could not be said to have caused the losses associated with the birth of the sick child so many years later. The mother and her husband have filed a cross-appeal, arguing the judge underestimated the damages required to compensate their loss.
[9] Whether a doctor is bound to take steps to inform relatives of his or her patient of the risks associated with an inherited disease is at the heart of this appeal.
II Context
[10] To understand the relevant events properly, it is useful to refer to the family tree used by the trial judge and reproduced as schedule A to these reasons. The following is a sketch of the salient facts and the principal actors involved.
[11] Plaintiffs, Marcy White and Andrew Trossman are the parents of Jacob Trossman, born in Toronto on [...], 2002 with a neurological disorder called Pelizaeus-Merzbacher Disease (PMD). Children afflicted with this condition generally have respiratory difficulties, are severely handicapped and often die prematurely. The disease is sex-linked in that it is inherited by 50% of male children born of women who carry the gene for PMD.
[12] Corey Carin was born on [...], 1970. He was the first child of Audrey Wener Carin (later Liss) and Frank Carin. At birth, he experienced serious respiratory difficulties. Handicapped and plainly very unwell, the boy was later hospitalized at the Montreal Children’s Hospital where Dr. Gordon Watters examined him. Diagnosed with Plott’s Disease, Corey was institutionalized and died in 1984. Aged three when Corey was born, Marcy White was the boy’s second cousin. Her grandmother Edythe Sacks was Corey's great-aunt.
[13] A co-defendant at trial and sole appellant here, Dr. Gordon Watters was a neurologist on staff at the Montreal Children’s Hospital in the 1970s. Dr. Watters diagnosed Corey with Plott’s Disease, an hereditary neurological condition similar to PMD in its symptoms that is also passed on through a gene carried by the mother. Many years later, after the birth of Jacob, it was ascertained that Corey must have suffered from PMD, not Plott’s Disease as Dr. Watters had initially thought.
[14] Dr. Naomi Fitch was a geneticist associated with the Jewish General Hospital who studied Corey’s case in the 1970s with Dr. Watters. She was a defendant in first instance. Drs. Fitch and Watters collaborated on a scientific article recounting Corey’s diagnosis with Plott’s Disease that was published in 1973. Dr. Fitch’s illness and death meant she did not give her version of the events either on discovery or at trial.
[15] Audrey Carin Liss was a plaintiff and was called as a defendant in warranty by Dr. Watters. She is the daughter of Nathalie Richer Wener, the niece of Edythe Richer Sacks and the first cousin, once removed, of Marcy White. Her first husband was Frank Carin and Corey was born of that union in 1970. Her second husband was Claudio Liss with whom she had four children, including Yochai Liss in 1988, who was handicapped. In 2002, it was ascertained that Ms. Liss is a carrier of the disease for PMD. Her son Yochai Liss, who died in 2006, was likely afflicted with PMD.
[16] Frank Carin, now deceased, was Corey Carin’s father and was married to Audrey Liss at the time of Corey’s birth.
[17] Beverly White is the daughter of Edythe Sacks. She is the mother of Marcy White and of a son, Morty, who is healthy.
[18] Edythe Sacks is the mother of Beverly White, the grandmother of Marcy White and the great-grandmother of Jacob Trossman. She is the aunt of Audrey Liss and great-aunt to Corey Carin. She was also the mother of two sons, referred to here as the Sacks’ boys, who died in infancy in the 1940s of unknown causes. In their study of Corey’s case, Drs. Watters and Fitch speculated that the two boys, who apparently showed symptoms similar to those of Corey, died of Plott’s Disease of which Edythe must be a carrier. Following Jacob's diagnosis with PMD in 2003, experts formed the view that the Sacks’ boys likely died of PMD.
[19] The facts can be divided into three principal periods: first, from 1970 to 1974, during which time Dr. Watters treated Corey as his patient, and Dr. Watters and Dr. Fitch published the academic article describing Corey’s condition and that of the Sacks’ boys as Plott’s Disease; second, events surrounding the birth of Yochai Liss to Audrey Carin Liss in 1988; and, third, from 2002, marking the date of birth of Jacob Trossman.
a) 1970 to 1974
[20] Following Corey’s birth, attending physicians informed parents Audrey and Frank that the boy had respiratory difficulties and stridor - unnatural rasping noises when he breathed. In May of 1970, Corey was admitted to the Montreal Children’s Hospital where he was initially clinically diagnosed as suffering from bilateral abductor paralysis of the vocal chords, stridor, paralysis of the soft palate and an undetermined multiple central neurological deficits. Dr. Watters was asked to provide a neurological consultation. On May 12, 1970, he examined Corey and met with both parents. They provided Dr. Watters with information on their immediate families. At that meeting, Dr. Watters informed both Audrey and Frank that their son Corey’s medical condition might be hereditary. He raised the possibility that Corey could be suffering from Plott’s Disease, a rare sex-linked condition described in 1964 in a medical journal by Dr. Dwight Plott.
[21] At the age of nine months, Corey was institutionalized where he would remain until his death in 1984. During the thirteen years Corey lived at the Anbar Institute, his mother Audrey never visited him, nor did any other member of his extended family. Frank was the sole parent involved in Corey’s care.
[22] In May of 1971, Corey was admitted to the Montreal Children’s Hospital under the care of Dr. Watters. The purpose of this further hospitalization was to verify the earlier clinically-based hypothesis that Corey was suffering from Plott’s Disease.
[23] During Corey’s stay, Frank came to the hospital without the boy’s mother. In fact, Dr. Watters would never meet Audrey again. Dr. Naomi Fitch, accompanied Frank at a meeting with Dr. Watters at the hospital. Dr. Fitch informed Dr. Watters at this meeting that an aunt of Audrey had given birth to two sons with stridor who died in infancy in the 1940s. This information comforted Dr. Watters in the hypothesis that Corey’s condition was hereditary, and specifically sex-linked through the mother.
[24] Dr. Watters never met the mother of the two boys, Audrey’s aunt, Edythe Sacks.
[25] At that admission, Drs. Watters and Fitch informed Frank that if ever Corey was clinically diagnosed with Plott’s Disease, the hereditary implications were such that his wife, Audrey, was at risk of having another boy with the same condition. If Audrey was a carrier of a gene for this sex-linked disorder and she gave birth to a boy, that boy would have a 50% chance of having Plott’s. The doctors also explained to Frank that there were implications for the women in Audrey’s extended family given the sex-linked character of the disease.
[26] Corey underwent a series of tests during that hospitalization, including nerve and muscle biopsies, to determine whether he was suffering from a certain peripheral nerve diseases, including leukodystrophies such as PMD. On the basis of these tests, PMD was eliminated as a possible clinical diagnosis. Dr. Watters thus confirmed his earlier diagnosis that Corey was most likely suffering from hereditary sex-linked laryngeal abductor paralysis or Plott’s Disease. This diagnosis was carried forward from that day onwards until Corey’s death.
[27] Corey’s medical file recorded that his mother’s aunt had two children with stridor who died in infancy.
[28] After receiving the lab results, Dr. Watters conveyed Corey’s final diagnosis to Frank over the telephone in July of 1971, confirming that the boy suffered from Plott’s Disease as he had been told at admission when Dr. Fitch accompanied him. He said to Frank that it was important to speak to his wife Audrey about Corey’s final clinical diagnosis and its implications for her family. He said he was available to meet with Audrey to discuss the matter further. During the same conversation, Frank informed Dr. Watters that Audrey was not able to handle such information and that he would inform his wife at a time that was appropriate.
[29] Dr. Watters never contacted Audrey subsequently to his formal diagnosis. He relied on Frank to convey this information to his wife. Despite his undertaking to Dr. Watters that he would tell her when the time was right, Frank never told Audrey of the final diagnosis. Dr. Watters never contacted Edythe, the mother of the Sacks’ boys, to inform her of his view that she was likely a carrier of Plott’s Disease.
[30] In 1974, Dr. Watters admitted Corey for a neurological re-evaluation. Frank signed consent forms to permit additional testing in respect of the clinical diagnosis of Plott’s Disease. During this hospitalization, Dr. Watters did not discuss with Frank how Audrey and others in her family were contending with the diagnosis. Dr. Watters testified that he could not imagine that Frank had not informed Audrey of the news.
[31] In 1974, Dr. Watters did not know that Frank and Audrey had separated.
[32] The admission in 1974 was the last contact that Dr. Watters had with his patient, Corey, and Corey’s father, Frank.
[33] The article written by Drs. Fitch and Watters in 1973 deserves special mention.
[34] Sometime between 1971 and 1973, Dr. Fitch approached Dr. Watters with the idea of publishing an academic study comparing Corey’s diagnosis and Dr. Plott’s findings in 1964. Dr. Fitch proposed that the deaths of Edythe Sacks’ children in the 1940s be included in the family history. The article would compare the condition of the Sacks’ boys and Corey with the four patients described by Dr. Plott in 1964.
[35] Dr. Fitch obtained summary information on Edythe’s sons for Dr. Watters so that he might review the neurological findings. It appears that Dr. Fitch secured the deceased boys’ medical charts by way of an authorization form signed "Mrs. Jack Sacks". Dr. Watters did not review or even see the medical charts.
[36] Dr. Fitch prepared the anonymous family trees used in the article that included nine women in Audrey’s extended family. Dr. Watters was never informed of the identities of the individuals in the family trees. The article included photographs of Corey but none of the subjects, including Corey, was identified by name. The article was not provided to Frank, Audrey or any other member of their respective families.
[37] Published jointly by Drs. Watters and Fitch in the journal Clinical Genetics, the article was entitled "Familial Laryngeal Abductor Paralysis and Psychomotor Retardation". Based on a comparison of the clinical descriptions of Dr. Plott’s patients, Corey and the two Sacks’ boys, the authors wrote that all seven male patients suffered from the same syndrome, and that the gene causing it "is either sex-linked recessive or an autosomal dominant with male sex limitation". The article concluded Corey, born in 1970, and the Sacks boys, who died in the 1940s, all had the syndrome described by Dr. Plott in 1964: Plott’s Disease.
b) The birth of Yochai Liss in 1988
[38] In 1977, Audrey moved to Israel. She eventually married Claudio Liss and had four children. The fourth child, Yochai, a boy, was born in 1988 and suffered from symptoms very similar to those that had afflicted Corey. Yochai was diagnosed at age two with leukodystrophy, which is a category of diseases, almost exclusively hereditary, one of which is PMD. Audrey recognized the similarity between Yochai and Corey, but did not want to accept it. Yochai’s medical records contain a note that his mother had a deceased son from a previous marriage who suffered from a neurological disorder.
[39] Yochai died in 2006. Dr. Watters knew nothing of his birth or medical condition.
[40] Marcy White, Edythe Sacks and Beverley Sacks apparently did not make a connection between Corey’s condition and that of Yochai. In the family, it was simply understood that the two boys were "not well".
c) The birth of Jacob Trossman
[41] On [...], 2002, Marcy gave birth to Jacob in Toronto. He was born with breathing problems and other symptoms similar to those of Corey and Yochai, as well as the two Sacks’ boys who died in the 1940s.
[42] The day of Jacob’s birth, his condition prompted his father Andrew to think of the deaths of the Sacks’ boys. He asked Marcy’s grandmother, Edythe, for more information about her sons. Andrew and Marcy eventually obtained the medical chart of one of the Sacks’ boys and discovered that he and Jacob had similar symptoms. Marcy spoke to Audrey about Corey and Yochai. Audrey informed her that Corey had suffered from like symptoms at birth.
[43] Over a year later, after extensive testing, Jacob was diagnosed not with Plott’s Disease but PMD. Marcy, her mother Beverley and grandmother Edythe were also tested and confirmed as carriers of the specific gene point mutation linked to PMD.
[44] Dr. Feigenbaum, the geneticist involved in testing Jacob, undertook a literature search and found the article published in 1973. He gave a copy to Marcy and Andrew. Marcy recognized her family tree in the article.
[45] Subsequent to Jacob’s birth and prior to his death in 2006, Yochai was tested and the leukodystrophy with which he had been diagnosed was identified as PMD.
[46] Audrey, the mother of Corey and Yochai, was tested and confirmed to be a carrier of the same gene mutation.
[47] Retrospectively, it was plain that Dr. Watters had clinically misdiagnosed Corey as suffering from Plott’s Disease rather than PMD, a disorder Dr. Watters had eliminated as a possible diagnosis for Corey in 1971.
[48] A year after Jacob’s birth, Marcy became pregnant again. She had the male fetus tested for the gene mutation and discovered that it was affected by PMD. She decided to have a therapeutic abortion. She subsequently chose to have twin girls by clinical pre-implantation to ensure that they would not be carriers of PMD.
[49] In the period following Jacob’s birth, Marcy White resigned from her lucrative job in the financial services industry in order to provide and coordinate the boy’s care.
[50] Marcy White and Andrew Trossman sued Dr. Watters (later adding Dr. Fitch and the Jewish General Hospital as defendants) to recover losses they incurred as a result of Jacob’s birth. The lawsuit alleged that Dr. Watters committed an extracontractual fault for having failed to take all reasonable measures to inform Edythe of the genetic disorder in her family. It was alleged that had she been so informed, Marcy would have learned of the risk and terminated her pregnancy. Audrey also sued Dr. Watters for losses she suffered. Dr. Watters brought an action in warranty against Audrey for having failed to advise her family of the risks of illness.
III The trial judgment
[51] As a prefatory note, it bears mentioning that two aspects of the 432-paragraph trial judgment are immediately striking to the reader. First, the judge’s reasons display thoughtfulness and compassion in respect of the plight of Corey Carin, Jacob Trossman and their respective families, including the plaintiffs. Second, the judge balanced this account with explicit mention of the fact that "[n]o one questions the high quality of the care and the insightfulness of the diagnostic efforts of Dr. Watters with respect to Corey in the 1970s" (paragraph [43]). He described defendant Gordon Watters as a "truly talented and dedicated physician" (paragraph [77]).
[52] The trial judge nevertheless held Dr. Watters responsible for the harm suffered by Marcy and Andrew arising out of Jacob’s birth in 2002. He decided that when Corey was his patient in the early 1970s, Dr. Watters had an obligation to inform members of his patient’s extended family with whom he had some contact of the risks connected with the sex-linked, hereditary disease that he had diagnosed in the boy. Specifically, the judge named three civil wrongs committed by Dr. Watters: firstly, he failed to inform Edythe and Beverly directly of the implications for the family of his diagnosis; secondly, it was wrong not to secure permission from Frank that would allow Dr. Watters to inform other family members of the risks flowing from his diagnosis; and, thirdly, Dr. Watters was wrong in omitting to ensure that Audrey was adequately informed of and counselled as to the genetic implications associated with Corey’s diagnosis. In the course of his reasons, the judge also criticized Dr. Watters for not following up with Dr. Fitch to ensure that she was communicating with the Sacks’ family. He observed, as well, that Dr. Watters should have encouraged Frank to inform members of the family.
[53] The civil wrongs resulting in the failure to inform Edythe or Beverly - characterized by the judge as faults under article 1053 of the Civil Code of Lower Canada in the key period of 1971 to 1974 - caused the injury suffered thirty-some years later by Marcy and Andrew connected to Jacob’s birth. The judge reasoned that had Dr. Watters informed Edythe or Beverly of the diagnosis in the 1970s, Marcy White would have learned of the risk she ran of having a sick child. Had Marcy known of the genetic implications of Dr. Watters’ diagnosis, she would have terminated her pregnancy in 2002. Jacob would not have been born and his parents would not have suffered the pecuniary and non-pecuniary losses associated with his birth and on-going care.
[54] The judge held that Dr. Fitch’s failure to inform Edythe of the risk she and her family members faced was also a civil fault. This omission also had a share in causing the loss suffered by Marcy and Andrew (paragraphs [115] and [141]).
[55] The judge dismissed the action brought by Audrey against Dr. Watters for harm suffered by her arising out of Yochai’s birth in Israel in 1988. Dr. Watters’ omission to ensure that Audrey was fully informed of Corey’s diagnosis was a fault (paragraph [114]). Yet Audrey’s own conduct in respect of Corey’s diagnosis - the judge characterized it as "denial" - meant that Dr. Watters’ omission was not the cause of the losses that Audrey sustained as a result of Yochai’s birth (paragraph [196]). Moreover, the cause of action arising out of his fault in failing to apprise Audrey properly of the risk was dismissed because her claim was prescribed (paragraph [234]).
[56] The claim by Marcy and Andrew against the hospital where geneticist Naomi Fitch conducted her research failed because of the absence of control and supervision in the working relationship between Dr. Fitch and the hospital (paragraph [157]).
[57] The action in warranty brought by Dr. Watters against Audrey was also dismissed. Audrey neither knew nor should have known that she was a carrier of a sex-linked disease prior to Jacob's birth in 2002. Accordingly, she was not at fault for failing to inform Marcy and Andrew of the risk of having a male child. She did not contribute to their loss, nor did her conduct break the causal chain between Dr. Watters’ fault and the harm arising out of Jacob's birth (paragraphs [212] to [215]).
[58] The judge evaluated the pecuniary and non-pecuniary losses suffered by Marcy and Andrew at $6,000,276. He decided that interest and the additional indemnity should run on $240,000 of that amount from the dates of service of the original actions against Dr. Watters and Dr. Fitch. He held that interest and additional indemnity should only run on the more substantial balance from October 26, 2009, the date at which Marcy and Andrew re-amended their actions to increase the amount of their claim (paragraphs [410] to [423]).
[59] The doctors were solidarily liable. Damages and court costs were apportioned between them, with Dr. Watters assuming a 75% share, based on the greater role he played in Corey's care, and Dr. Fitch assuming 25% (paragraph [263]).
[60] No appeal was brought against the finding that Dr. Fitch was liable. The decision absolving the hospital of liability was not appealed. Audrey did not appeal the dismissal of her action against Dr. Watters. Dr. Watters did not appeal the judge's decision to dismiss his action in warranty against Audrey. Accordingly, these reasons will treat only issues relating to the judge's decision to hold Dr. Watters liable to Marcy and Andrew.
IV Analysis
a) Extracontractual Fault
[61] As noted, the trial judge attributed three faults to Dr. Watters. He wrote that the failure to communicate directly with Edythe and Beverly was a fault (paragraphs [75] to [99]). In the event that Dr. Watters was precluded from passing on information by reason of a duty of confidentiality owed to Corey, the judge held that the doctor's failure to seek permission from Frank to communicate the genetic implications of the boy’s diagnosis to the Sacks’ family directly was a second fault (paragraphs [100] to [104]). Thirdly, the judge held that Dr. Watters’ failure to persist in ensuring that Audrey was adequately warned was a fault (paragraphs [105] to [114]). That latter finding, held not to be causally responsible for Audrey’s loss, was not appealed. It is thus not necessary to determine whether the trial judge was right in holding Dr. Watters to be at fault in this regard and I expressly refrain from so doing.
[62] Finally, the judge also reproached Dr. Watters for insufficiently following up with Dr. Fitch to ensure that she had informed the Sacks’ family of the risk (see notably paragraphs [92] to [94]). He also observed that Dr. Watters should have further encouraged Frank to communicate with the Sacks’ family (see notably paragraphs [69], [73], and [90]). The judge did not describe this conduct as wrongful in the same explicit way as for the three faults named above. The respondents do, however, insist that the lack of encouragement given to Frank and the failure to follow up with Dr. Fitch were civil wrongs. It seems best to treat this conduct as alleged examples of the more general failure by Dr. Watters to take reasonable steps to inform Edythe and Beverly of the risks attendant his diagnosis and which, for the judge, constituted a civil fault.
[63] Broadly speaking, then, the question at hand is whether Dr. Watters committed a fault in failing to take reasonable steps to ensure that Edythe and Beverly were informed of the risk associated with his diagnosis under the law applicable in the early 1970s.
[64] The judge arrived at his conclusion that Dr. Watters committed a fault in failing to inform Edythe and Beverly directly that they may have been carriers of the sex-linked, hereditary disease in two steps (paragraphs [40] to [74]). The appellant says that this two-step test, which the judge applied to both doctors, was wrong in law. For the appellant, the mistake in law applies not just to the analysis of Dr. Watters failure to contact Edythe and Beverly directly, but to the whole of the judge's analysis of Dr. Watters' alleged failure to take reasonable steps to ensure that Edythe and Beverly were informed of the risks associated with the physician's findings.
[65] Step one of the test the judge proposed required the plaintiffs to establish that the doctors’ failure to inform persons who were not his patients but with whom he was in contact violated the reasonable person standard imposed by the general law of extracontractual liability in article 1053 C.C.L.C. (paragraph [51]). Step one was further divided into two sub-tests. First, the judge asked whether the circumstances of the diagnosis and the risk were sufficiently serious that the reasonable person would deem that they ought to be communicated to appropriate persons other than the patient (paragraph [55]). Next, the judge held that the deciding to whom a duty to inform was owed depended on the gravity of the illness and the intensity of the relationship between the defendant doctors and the persons in question. For the judge, the persons within what he called a "radius of contact" with the doctors would be owed such a duty (paragraph [57]). The stronger, or more direct, the radius of contact between the physician and a third party, the more likely it would require the physician to act.
[66] Step two of the analysis was to be undertaken only where the violation of a duty to inform appropriate persons was established under the general rules of civil liability under step one. The second step invited a consideration of whether standard practices or prevailing ethical norms in the medical profession created an exception to the duty to inform otherwise imposed by the application of the general standard of the reasonable person or, in the words of the judge, an "obligation not to inform" (paragraph [52]). It was only at the second step that the judge considered standard practices in the profession, including the confidentiality that a doctor owed to his or her patient, were relevant. Specifically, it was at this stage that he asked whether the confidentiality owed to the patient served to relieve the doctor from the duty to inform appropriate third parties of the patient’s diagnosis and the attendant risks (paragraphs [66] to [73]).
[67] Applying step one of his analysis to the facts at hand, the judge held that a reasonable person would have taken measures to inform Edythe and Beverly of the risks associated with Corey’s diagnosis for them and other women in the family. Edythe and Beverly were not Dr. Watters’ patients. While he had never met them and likely did not even know their names, he knew of their existence based on the preparation of the article with Dr. Fitch. Based on this relationship, and in light of the seriousness of the risk, the judge wrote that "the radius of contact between Dr. Watters and Edythe and Beverly was such that an obligation to inform was imposed on him with respect to the Sacks’ family" (paragraph [78]).
[68] After determining that this obligation to inform Edythe and Beverly of the risks of his diagnosis existed for Dr. Watters, the judge undertook an evaluation, in the second step of his analysis, of whether the standards of practice in the medical profession in the 1970s created an "obligation to not inform". He rejected the experts' view that Dr. Watters had no obligation to inform Edythe and Beverly of the genetic implications of his diagnosis. The judge concluded that there was no need for Dr. Watters to have breached the obligation of confidentiality he owed to Corey in informing Edythe or Beverly. The women could have been properly apprised of the risk without learning details of Corey’s circumstances if Dr. Watters had exercised discretion in his dealings with them. The judge concluded at paragraph [99] as follows: "Dr Watters had no ethical obstacle to warning Edythe and Beverly of the genetic implications. More critically, he had the obligation to do so. His omission in that regard is a fault under the general rules of civil liability".
[69] The respondents argue that the judge was correct in applying his two-step test to determine that Dr. Watters had a duty to inform Edythe and Beverly and that the judge made no mistake in law in applying the standard of reasonably prudent behaviour pursuant to article 1053 C.C.L.C. Once that standard was identified, his finding of what constituted reasonable behaviour in the circumstances was, for the respondents, a question of fact. The finding that the omissions amounted to a fault in the circumstances would therefore only be subject to review by this Court if Dr. Watters shows that the trial judge made a palpable and overriding error in his appreciation of the evidence.
(i) Obligation of means imposed on physicians
A. Identification of the appropriate standard of conduct
[70] Ascertaining whether Dr. Watters was at fault required an analysis of the extracontractual relationship between Dr. Watters and other family members who were not his patients. "As such", wrote the judge, "the typical gauge of a physician’s actions, the likely conduct of the prudent and diligent doctor placed in the same circumstances [Lapointe v. Hôpital Le Gardeur, [1992], 1 S.C.R. 351 , 361 is cited by the judge], is not the sole or even the principal measure here. [...]" (paragraph [44]). The judge decided to apply the general standard of the reasonable person associated with article 1053 C.C.L.C. in the first step of his test, without adapting it to the circumstances of the defendant Watters as a medical specialist.
[71] With respect for the contrary opinion, I am of the view that the judge applied the wrong test in law to determine whether Dr. Watters committed a fault in not taking the proper steps to ensure that Edythe and Beverly were informed of the risks associated with his diagnosis. The judge mistakenly excluded matters relating to what a reasonable physician would have done in the circumstances in arriving at the preliminary conclusion that Dr. Watters owed Edythe and Beverly, as third parties to the doctor-patient relationship established with Corey, a duty to be informed of those risks. Instead, he imposed a duty to inform based on the reasonable person standard, rather than that of the reasonable physician. He then decided that the gravity of the illness and the radius of contact, without regard to prevailing practices in the profession, mandated a duty to inform. Only after the judge imposed a duty to inform Edythe and Beverly on Dr. Watters did he consider the norms of medical practice of the day.
[72] The effect of the two-step test applied by the judge was to throw the burden on Dr. Watters of disproving the existence of a duty to inform family members who were not his patients of the implication to them of his diagnosis. This led to the judge’s finding of a duty when, considering the applicable rules on confidentiality and the standards of practice prevailing in the profession in the early 1970s, no such duty had been established. Instead, the judge should have placed the burden of proving Dr. Watters’ fault - the failure to act as the reasonable neurologist would have in the circumstances - squarely on the shoulders of the plaintiffs.
[73] The judge was not mistaken in holding that article 1053 C.C.L.C. imported a standard of reasonableness to the relationship between Dr. Watters and Edythe or Beverly, who were not his patients, nor was he wrong in suggesting that article 1053 created a pre-existing duty of care. But the standard cannot be that of the reasonable person without due regard to the defendant’s circumstances. The judge should have applied the test identified by the Supreme Court in Lapointe[1] in which, specifically addressing article 1053 C.C.L.C., L'Heureux-Dubé J. wrote that "[p]rofessional liability imports the principles of ordinary civil liability. Generally, doctors have an obligation of means, and their conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances". This standard informs the intensity of the obligation of means imposed on physicians as part of the general law of civil liability. In the words of three leading scholars, "[l]a faute médicale consiste donc en la violation de la norme de conduite objective du praticien raisonnablement compétent et habile placé dans les mêmes circonstances que le médecin en cause".[2]
[74] This principle of analyzing civil liability of physicians along medical standards that the judge declined to follow in the first leg of his test was reaffirmed with special regard to medical specialists in ter Neuzen.[3] It would thus have been appropriate to compare Dr. Watters’ conduct to that of the reasonable pediatric neurologist in the circumstances. It was against that standard that the judge should have inquired whether the omission to take steps to inform Edythe and Beverly constituted a civil fault.
[75] As a general rule, this standard is no less applicable when a doctor is interacting, as a physician, with a person who is not his or her patient. Obviously, there are cases when a doctor is called to answer for injury caused to a third party in circumstances that have nothing to do with the practice of medicine or his or her status as a physician.[4] That is not what is at issue here: notwithstanding the fact that Dr. Watters had no therapeutic relationship with Edythe or Beverly, it was the omission to impart information he knew and appreciated as a physician that is the alleged source of liability. It is as a physician that - according to the claim made by the respondents - he learned of the existence of Edythe and Beverly. It is alleged that, based on his knowledge as a medical specialist, he should have informed Edythe or Beverly of the implications of that diagnosis for them and others in the family. This indeed was the basis of the motion to institute proceedings brought by Marcy and Andrew: "[…] as a pediatric neurologist, he [Dr. Watters] had an obligation to inform the FAMILY of his genetic findings pertaining to COREY, BABY SACKS and MICHAEL; he failed to meet the applicable standards of care of a physician with his speciality, in not informing the FAMILY of his genetic findings […]". [Emphasis in original.])
[76] It was an error of law for the judge to exclude the reasonable physician standard as he did. A non-physician, however reasonable and prudent, would not have understood the full import, for other members of the family, of the diagnosis of Plott’s Disease. It was as a pediatric neurologist that Dr. Watters seized upon Plott’s as a clinical diagnosis and that expertise allowed him to measure the gravity of the diagnosis as a rare sex-linked condition for which women in the extended family may or may not have been carriers. An ordinary person, however reasonable, would not have any inkling of what was expected by way of proper behaviour of a pediatric neurologist in the circumstances. Moreover, a non-physician would not have been mindful of the duty of confidentiality that should have weighed upon Dr. Watters in the same way that, in the circumstances, a reasonable physician could have been expected to understand.
[77] The judge cites Roberge[5] to recall that a professional cannot always avoid civil liability by the mere fact that he or she has acted in compliance with applicable rules or norms in the profession. With respect, it is mistaken to apply this case in a manner that would relieve a court from considering whether practices in the medical profession are relevant prior to determining if Dr. Watters had a duty to take steps to inform Edythe and Beverly. As the Supreme Court noted in ter Neuzen in reviewing the application of the principles set forth in Roberge to doctors, there are indeed some circumstances where failure to adopt a common sense practice may be the source of negligence even where established medical practice might suggest otherwise. But Sopinka, J. made very plain that this is unusual, and that "[w]here a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent".[6] My colleagues Pelletier and Dufresne, JJ.A. emphasized in Hébert that one must be mindful of the "étroitesse de la brèche"[7] represented by Roberge, a case dealing with the obligations of a notary. In complex circumstances like this one, clinical and diagnostic experience is critical to understanding whether a physician’s conduct is reasonable. Where courts do not have the necessary expertise to assess technical matters relating to medical treatment, due regard must be given to the opinion of experts.
[78] Counsel for the respondents urged that the judge rightly applied Roberge because to do otherwise would mean that a physician, who knows of the consequences of non-disclosure of information, would be held to a lower standard of care than an ordinary person under the general rules of civil liability. With respect, this miscasts the Roberge case. By applying the rule in Lapointe based on the conduct of the reasonable professional in the circumstances, a physician is certainly not held to a lower standard in the circumstances, but rather a standard that is different by reason of its adaptation to the abstract figure of the reasonable physician.[8] In point of fact, the intensity of the obligation is the same - an obligation of means - but the difference comes from a consideration of the professional circumstances of the defendant.
[79] The judge was not unaware that he was proceeding in a way that many might consider to be unorthodox. He noted that an analysis, unlike his own two-step test, that "start[s] by determining if the doctors acted in compliance with the practice of the time and then [asks] if the practice was reasonable/sufficient/compliant with general civil law obligations" was wrong (note to paragraph [52]). "The Court rejects this approach as a general guideline," he wrote, "because it focuses on the particular over the general. In our view, it is critical first to establish the general obligation under the civil law and then see if an exception to it has been created".
[80] The approach in Lapointe is to be preferred for the very reason the judge cited to justify setting it aside: because it focuses on the particular physicians' standard over the general reasonableness test. Civilian methodology of obligations adapts the general to the particular in order to ensure just outcomes i.e. it adapts the in abstracto measure of fault set on a general standard of reasonableness to that of the defendant’s own professional peers. To do otherwise might threaten the commutative orientation of the law of civil liability that ensures that it is fair to hold a professional liable to compensate for a civil wrong. The principle is a guard against holding doctors responsible for misfortunes on a basis foreign to the mission of private law, including the compassion that an ordinary person might understandably feel for a victim’s plight.[9] To impose a "duty to inform" on a doctor, based on the reasonable person standard without averting to the practices and norms of the profession, is a mistake in law.
[81] Instead of considering expert evidence of prevailing practices for deciding whether a duty to inform existed, the judge wrote:
[55] The Court understands that not just any facts would create such a duty. They must be sufficiently important, meaning that they are of serious enough consequence, that a reasonable person would deem that they ought to be communicated to appropriate persons. Where facts of that nature are to a physician's knowledge, then an obligation to inform exists.
[56] The question then arises as to whom this obligation is owed. Who are the "appropriate persons"?
[57] It would be a thorny issue indeed to attempt to delineate specific criteria for every case and one can do no more than suggest general guidelines. That said, it seems inevitable that the focus of any such guidelines must be, on the one hand, the gravity of the illness and, on the other, the intensity of the relationship, either existing or possible, between the doctor and the third persons, what we call the "radius of contact".
[82] The judge's "radius of contact" test to determine the persons to whom Dr. Watters owed a duty to inform Edythe and Beverly of Corey’s diagnosis falls afoul with the reasonable physician standard, explicitly set aside by the judge in paragraph [44] of his reasons. Whatever its possible merits, that test has no grounding in the rules of art of the profession and, in particular, in the reasonably foreseeable consequences of a physician’s conduct in the circumstances. A judge cannot set aside expert opinion in order to establish the existence of a duty to inform a non-patient of genetic risk in the absence of evidence of the standard medical practice. "Faire autrement voudrait dire", wrote Dufresne, J.A. in a comparable context, "qu’un juge peut déterminer la norme de comportement du professionnel prudent et diligent de manière purement subjective, sans autres connaissances d’un domaine spécialisé".[10] The field of specialized practice in question - paediatric neurology, with specific reference to inherited disorders that are clinically diagnosed such as Plott’s Disease - did not lend itself easily to the substitution of common sense to expert opinion.
[83] Notwithstanding the absence of a doctor-patient relationship, the judge found that the radius of contact between Dr. Watters and Edythe was close indeed, in light of the work Dr. Watters did on the article, thereby justifying a duty to inform her of the risks associated with this very serious disorder. He extended it to Beverly too, because Dr. Watters knew of her existence as well. It mattered little that they had never met, that Edythe and Beverly were not members of the patient’s immediate family or even that their names were unknown to the doctor. The judge expressly stated that the question turned not on whether the third parties are within a "zone of foreseeable risk" but simply on "the degree of contact between the doctor and the third party" (note to paragraph [60]).
[84] The judge relied on a 1996 American case, Safer v. Pack,[11] which provides, in my respectful view, an unsound basis for reasoning by analogy to the present case. Safer concerned the failure of a doctor to inform the daughter of his patient, who had previously died of cancer, that she had a hereditary propensity to the disease. Decided by summary judgment, the court was obliged to accept the plaintiffs' as yet unchallenged evidence, including evidence from medical experts that it was standard practice in the profession to inform family members of the known genetic threat. In Safer, the doctor failed to tell his patient of the hereditary condition. The case speaks of a duty owed to members of the immediate family. The court observed that the risk to the daughter was foreseeable. In the present instance, the experts did not agree that there was a duty; Dr. Watters did not fail to inform Corey's father of the disease; Edythe and Beverly are not members of the immediate family; and the trial judge explicitly preferred the radius of contact to foreseeability of risk identified in Safer as relevant to the standard associated with the professional duty. Whatever its value as precedent elsewhere, Safer is weak authority as the measure of a doctor’s obligation to non-patient relatives on the facts of this case.[12]
[85] On the facts, there is no obvious reason why the radius of contact is limited only to Edythe and Beverly and not other potential carriers of Plott’s Disease in Audrey’s extended family. If Beverly is included, whose status as a carrier was uncertain at the time of Dr. Watters’ diagnosis, what about Nathalie - Audrey’s mother and Edythe’s sister - or Audrey’s other aunts? There are upwards of nine women in the family tree reproduced in the article, and others who were at risk - such as Marcy - who were not on the chart. Where did Dr. Watters’ obligation end?
[86] More generally, the practical effect of the judge’s radius of contact test would appear to decree much of professional practice in Quebec of the period to be civilly wrong. The judge’s standard would render the work of a physician extremely onerous: pushed to its logical limit, a doctor in like circumstances might be obliged to seek out and inform all third persons within a radius of contact, beyond his or her patient, whether or not he or she had met them or knew their names and irrespective of foreseeability of risk on a professional measure, where a reasonable non-physician thought that right. The social costs of such a duty could prove to be prohibitive. It could serve as a disincentive to undertake medical work in fields where genetic risks are present. Moreover, the duty to warn as announced by the judge could transform the doctor-patient relationship as it is currently understood.
B. Duty of confidentiality owed by Dr. Watters to his patient
[87] Did a duty of confidentiality owed to Corey serve as a bar to Dr. Watters taking steps to inform other family members of his diagnosis? If so, it would be a further reason for deciding that Dr. Watters was not at fault for failing to ensure that Edythe and Beverly were informed of the risks they faced.
[88] The judge held there was no such bar. He decided, as I have noted, that the radius of conduct between Dr. Watters and Edythe imposed a duty to inform her of the risks. In the second step of his analysis, he held that Dr. Watters had not shown that the confidentiality he owed to Corey relieved him from his duty to inform Edythe.
[89] The judge did recognize that Dr. Watters owed a duty to the boy, as represented by his parents and, quite correctly, that the duty is not an absolute one (paragraphs [66] and [67]). But he also noted that Dr. Watters’ candid and credible testimony never referred to the obligation of confidentiality; the judge wrote that the doctor never mentioned it as a concern in the way he acted (paragraph [76]) or as an obstacle to his communicating with the Sacks’ family (paragraph [89]). Further, on the imperative of a doctor’s duty to inform, the judge wrote that "[i]n the face of an illness of the gravity of PMD, [...] a physician at any period of time, whether it be in the 1970s or today, must be a leader, not a follower, in the information process. This applies no matter what obligation of confidentiality might bind him" (paragraph [68]).
[90] Finally, and most importantly to his finding of liability, the judge held that it was not necessary for Dr. Watters to divulge confidential medical information pertaining to his patient Corey in order to warn third parties of the genetic risk they faced (paragraphs [71] to [73], and [82] to [99] passim). On this last point, the judge wrote:
[98] What obstacle of any sort - professional, ethical, moral, physical or otherwise - stood in the way of Dr. Watters' advising Edythe and Beverly directly about the genetic implications arising from the Uncles' condition? There was no need to breach the confidentiality of the Carins in doing so. All he had to do was refer to the Uncles and perhaps the Article. If Edythe or Beverly wanted to know if he had any other information, he could then refuse to say more on the grounds of confidentiality. They might not have been satisfied, but they would have been warned.
[91] The judge concluded that Dr. Watters had no ethical obstacle to warning Edythe and Beverly of the genetic implications of his diagnosis. "More critically", wrote the judge at paragraph [99], "he had the obligation to do so". His omission was a fault.
[92] With due respect, the judge needed to address completely the question as to whether prevailing ethical norms indicated that the reasonable physician in the circumstances would feel bound by a duty of confidentiality to Corey and whether that duty precluded Dr. Watters from informing family members other than the boy’s parents. If Dr. Watters was bound by confidentiality, he could not tell Edythe and Beverly of the diagnosis if informing them deprived Corey of the protection of that confidence.
[93] By fixing only on the general obligation that Dr. Watters had as a reasonable person, and by excluding the measure of the standard of the reasonable neurologist in the circumstances, the judge wrongly set to one side a consideration of whether Dr. Watters owed Corey a duty of confidentiality in the first step of his analysis. He concluded that Dr. Watters was bound, in principle, to a duty to inform Edythe and Beverly before any consideration of the duty of confidentiality. This was an error of law that commands a re-evaluation of the matter in light of all the expert evidence.
[94] The error was not corrected by the fact that, in the second stage of his analysis, he considered the duty of confidentiality to see if Dr. Watters could be excused from his otherwise binding obligation to inform the women in Corey’s extended family. The burden was on the respondents, plaintiffs in first instance, to establish the failure to satisfy the duty to inform; it was up to them to show that Dr. Watters owed no confidentiality to Corey that would conflict with that duty to inform Edythe or Beverly.
[95] Dr. Watters was bound up in a therapeutic relationship with Corey commencing with the boy’s first visit to his physician at the Montreal Children’s Hospital in 1971. He owed Corey, represented by his parents, a duty of confidentiality incident to that relationship. That the doctor-patient relationship imposed a duty of confidentiality on a physician for Quebec law in the 1970s is not seriously debated even if, as the judge noted, formal consecration of the duty by enactment or in codes of ethics would be fully established in years to come. The ancient principle of confidentiality was already deeply rooted in Quebec’s legal and medical cultures, as then Professor Baudouin explained in a celebrated paper published in the 1960s.[13] Confidentiality is the cornerstone of the doctor-patient relationship in that it promotes the patient’s trust of the physician that is so essential to both dispensing and receiving care. It was no less part of Quebec law at the time Dr. Watters treated Corey by reason of the fact that the formal texts were not in place. Experts testified in this case that the duty was plainly part of the medical practice of the day. Failure to respect this obligation of confidentiality could have exposed Dr. Watters to an action in civil liability.
[96] As such, the duty of confidentiality would naturally have weighed on Dr. Watters in his dealings with Corey. Confidentiality is especially important in respect of genetic disorders because, as Professor Flanagan has pointed out, they bear on present and future consequences of the patient’s autonomy and private life.[14] There is no reason to think this was not the case for Corey and his parents in 1971. Whether or not others knew of Corey’s malady was, in principle, their private affair.
[97] With respect, the judge erred in paragraphs [76] and [89] where he suggested that Dr. Watters appeared not to have taken the medical secret into account. In dealings with his patient and the boy's parents at the time, Dr. Watters was not unmindful of his duty of confidentiality. When asked whether he had sought out any members of the Sacks family after the publication of the article in 1973, Dr. Watters testified: "I didn’t have the authority except through Audrey to pursue, to engage those people in a discussion about the nature of the problems in their family".[15]
[98] In the end, however, the judge characterized confidentiality as a non-issue. He followed the suggestion of respondents’ expert Martin Letendre that Dr. Watters did not need to violate his duty to Corey in order to inform Edythe that she was a carrier of Plott’s Disease, and specifically that Edythe’s two sons likely died in the 1940s of the sex-linked disease.
[99] Mtre Letendre said that Edythe could have been informed that she was a carrier of Plott’s Disease based only on a reading of the 1940s medical charts, and that this information alone, once conveyed to Marcy, would have prompted her to terminate of the pregnancy in 2002. The expert’s position was that this could be done without breaching confidentiality to Corey.
[100] With great respect, it was wrong to hold that Dr. Watters could have told Edythe convincingly and effectively that she was a carrier of a gene for Plott’s Disease without an account of his first-hand clinical diagnosis of Corey’s illness. It was these clinical observations of Corey that allowed Dr. Watters and Dr. Fitch to deduce the diagnosis of the Sacks’ boys. Given the sex-linked nature of the disorder and, importantly, the fact that its diagnosis was necessarily a clinical one that depended on an intergenerational family history, it would have been necessary to disclose Corey’s condition to Edythe in order to explain to her convincingly why her children had died of that disease rather than from some other cause.
[101] The information that Dr. Watters had gleaned in respect of Edythe status as a carrier of Plott's Disease was a diagnostic inference that he had made within the context of the privileged therapeutic relationship between himself, as physician, and Corey, as his patient. As such, it cannot be readily dissociated from the privileged information bearing on Corey's condition. It is often said that the scope of the medical secret extends beyond that which a patient reveals to a doctor to include observations that a physician makes in treating his or her patient.[16] That is the case here. The diagnostic inference that Corey suffered from a sex-linked disorder was made based on clinical observations and observations made from Corey's family history. This included two observable facts, each without reliable meaning in the absence of the other: Corey's affliction and the affliction of the Sacks' boys. The link between them - a diagnostic inference based on a professional appreciation of the family history - was that both Corey and the Sacks' boys suffered from a sex-linked disorder inherited through their mothers who were themselves related.
[102] As a result, the information as it bears on Edythe was only invested with its full meaning when considered against Corey's situation and vice versa. To speak of Edythe as a carrier, and of her children as afflicted with Plott's, was implicitly to allude to Corey and the privileged information about his condition. Whether that reference was made explicitly or implicitly, had Dr. Watters revealed to Edythe that she suffered from a sex-linked condition it would have amounted to revealing something he had learned in connection with his treatment of Corey and, at the very least indirectly, something privileged about Corey's condition. As part of Corey's medical history, recorded in his medical file, it was confidential. The experts other than Mtre Letendre were right in saying that informing Edythe that she was a carrier brought with it a violation of the duty of confidentiality to Corey.
[103] Stated respectfully, the scenario advanced by Mtre Letendre and accepted by the judge defies reasonable belief. Mtre Letendre suggested that Dr. Watters - who did not know Edythe and whom Edythe had no particular reason to trust - could have spontaneously contacted her to explain to her that she was a carrier of a disease of which she had never heard and that had, some thirty years before, he speculated, killed her two infant children, without any mention of his therapeutic relationship with Corey. The scenario then required Edythe, accepting this information as true, to warn her daughter Beverly - who had already given birth to apparently healthy children, including a boy - of her odds of being a carrier of Plott’s Disease. Without any knowledge of Corey, Edythe or Beverly were then to have told Marcy. This information alone was to have prompted Marcy to undertake genetic counselling and, ultimately, to have an abortion in 2002.
[104] Dr. Watters did not know of Yochai's illness, nor could Edythe have pointed to any other confirmation of the terrible news imparted to her by this heretofore unknown doctor. Beverly had given birth to a healthy son. It is to be recalled that there was no test for Marcy to take for Plott’s Disease upon which she could secure independent confirmation of Dr. Watters’ speculative diagnosis of the disorder of the Sacks’ boys.
[105] The judge was no doubt right that Edythe could have been told that, in the doctor’s view, she was a likely carrier of Plott’s, but he could not provide any demonstration of his diagnosis based on family history and his clinical observation of Corey without violating his duty to his patient. How could Dr. Watters credibly impress upon Edythe - who was not his patient and whom he had never met - that she and perhaps her daughter were carriers of a sex-linked hereditary disease? In themselves, the medical records of the two Sacks’ boys who died in the 1940s were inconclusive as to this diagnosis. The clinical finding of Plott’s Disease was a hypothesis made plausible only by reference to Corey and by tracing backwards up the family tree to Edythe. Dr. Watters could not suggest to Edythe that she be tested as a carrier for Plott’s as there was no such test at the time. There would be no talk of PMD as that disease, mistakenly, had been eliminated by Dr. Watters as a possible diagnosis.
[106] Importantly, Edythe knew of Corey and that he was ill. By revealing the sex-linked character of the disease of which she was a carrier, Dr. Watters would necessarily put Edythe onto the path of discovering the explanation for Audrey's sick child.
[107] The judge observed, at paragraph [98] cited above, that Dr. Watters might have communicated the article to Edythe as a means of discreetly alerting her of the diagnosis as it pertained to only her. After all, it was in conjunction with the preparation of the article that her situation came to the attention of Dr. Watters, through research undertaken by Dr. Fitch. For example, when Beverly White was asked at trial what she would have done had the genetic disorder been disclosed to her family, respondents’ counsel made specific allusion to the article as a way in which she might have found out.
[108] I disagree. Communicating the article to Edythe would have plainly violated Corey’s right to confidentiality. His photograph appears twice in the article.[17] The relative position of Edythe and her sons on the family tree reproduced in the article as against the unnamed Corey would inevitably have revealed to the Sacks' women that their cousin had a boy with the same condition, as it did years later to Marcy when she read the article. The judge was mistaken on this point.
[109] Without breaching confidentiality to Corey, Dr. Watters could provide Edythe, at best, with an empty warning. Without a plainer demonstration to Edythe and Beverly that Plott’s Disease explained the deaths of the Sacks' boys in the 1940s, there is no reason to believe that this incomplete information would have credibly affected, years later, Marcy White’s decision to terminate her pregnancy. With respect, following the expert Letendre on this point, and setting aside the other experts’ view that informing Edythe necessarily implied a violation of confidentiality to Corey, was mistaken.
[110] This is not to say that it was not important for Edythe, and no doubt other members of the family, to have learned of Dr. Watters’ diagnosis. Dr. Watters and several of the experts rightly recognized this at trial. But asserting this is a far cry from saying that Dr. Watters was obliged to see that she was informed, or that she had an entitlement to know of the risks associated with the diagnosis, at the expense of the duty of confidentiality. The judge observed, at paragraph [68], that in the face of a disorder as grave as PMD, the doctor must be a "leader" in the information-sharing process, "no matter what obligation of confidentiality might bind him". This is a misstatement of the law.
[111] Care must be taken not to overstate the exceptions to the fundamental duty of confidentiality a physician owes to his patient. There is a narrow category of exception whereby non-consensual disclosure is justified by considerations of public health, urgency or imminent danger. It may be noted that it was not until 1999 that the Supreme Court of Canada, in a different context, recognized a legal basis for a professional's duty to warn third parties in breach of a duty of confidentiality and only then when the danger faced by the third party was imminent.[18] As grave as matters must seem from today’s perspective, it is far from plain that the imperative to inform Edythe was of that order. Indeed scholars have observed that the imminence of danger criterion is not easily transposable to the genetic risk circumstance where, temporally, the threat faced is generally not one of the moment.[19] Moreover, urgency was not advanced as the basis for disclosure to Edythe in this case and the judge did not hold, notwithstanding the evidence provided by expert Letendre, that Dr. Watters was bound to disclose confidential information on that or another basis.[20]
(ii) Conduct expected of the reasonable physician in the circumstances
[112] As this Court decided recently in Hébert, the failure by a trial judge to apply the standard of the reasonable professional is an error that commands a re-evaluation of whether a fault can be properly attributed to the physician in the circumstances.[21] A proper measure of Dr. Watters’ conduct requires that to be undertaken here.
[113] That the expert evidence suggested that Dr. Watters acted in accordance with standard medical practice in not informing the relatives did not, of course, bind the judge, but it does constitute evidence that the appellant acted in a prudent and diligent manner under the Lapointe and ter Neuzen tests. The weight of expert opinion suggested strongly that Dr. Watters’ conduct was consonant with what his peers in the field would have done in the early 1970s, and specifically that Dr. Watters was not out of step with prevailing practice when he chose not to seek out Edythe or Beverly to inform them of the consequences to them of his diagnosis. In this case, prevailing practice represented evidence that the omission to inform Edythe and Beverly was not a fault based on the conduct expected of the reasonable physician in the circumstances.
[114] The expert evidence pointed plainly to the fact that there was no standard practice by which physicians warned persons other than their patients of the genetic risks associated with a diagnosis such as Plott’s Disease in the early 1970s. Indeed the experts gave evidence that where an infant was afflicted with a genetically-transmitted neurological disease, it was standard at that time for a physician to inform the parents of the genetic implications of the disorder and that it was not unusual to provide this information to only one parent. Thereafter, it was standard practice to leave it to the parents to convey the medical information to extended family members.
[115] Dr. Watters did just that. At their meeting in 1970, he informed Corey’s parents Frank and Audrey that the boy might well be suffering from a genetic disorder and, at the admission in 1971, Dr. Watters and Dr. Fitch informed Frank that Corey was suffering from Plott’s Disease, a sex-linked disorder with implications for Audrey and her extended family. Dr. Watters said explicitly to Frank that he was available to meet with both parents to discuss the diagnosis further with them. Experts confirmed that Dr. Watters acted in accordance with standards of practice in providing Frank, as the sole parent attending the hospitalization, with information on the genetic implications of his son’s condition. Dr. Watters relied on Frank to inform his wife, Audrey, of the child’s diagnosis and its implication for the family. Again, expert evidence suggested that this was not out of step with standard practice.
[116] Not only did all of the experts testify to the fact that Corey was owed a duty of confidentiality, but they were generally of the view - with the exception of Mtre Letendre - that if Dr. Watters informed Edythe that she was a carrier of a sex-linked hereditary disease, he would necessarily traduce the duty owed to his patient. Dr. Rosenblatt, for example, testified specifically that it would have been a breach of confidentiality to approach Edythe without the permission of Frank or Audrey. He also said that to tell Edythe just about the presumptive diagnosis of the Sacks’ boys, based on the research done for the article, would result in a breach of confidentiality to Corey. The experts further explained that, for reasons notably of confidentiality, it was up to the patient - or in this case the parents - to communicate with non-patient family members.
[117] In other words, the better part of evidence on standard practice in the profession, taking into account a physician’s duty of confidentiality that, naturally enough, a reasonable person who was not a doctor would not have in mind, suggested that a physician in Dr. Watters' circumstances should inform an infant patient’s parents and count on them to pass on the news to family members. This is consonant with the generally held view: scholars have noted that the duty of confidentiality owed to a patient, like Corey, who suffers from an inherited disease, very often comes into conflict with a notional imperative to inform other family members of the risks associated with the genetic condition.[22]
[118] The same may be said of Dr. Watters' omission to encourage Dr. Fitch in following up with genetic counselling for Edythe and Beverly. That omission was not a fault insofar as he could not have encouraged Dr. Fitch to reveal confidential information about Corey without violating his duty to the boy. Neither Dr. Watters nor Dr. Fitch could have informed Audrey's extended family, according to the experts, without the parents' prior consent.
[119] Finally, the respondents emphasize one aspect of the expert evidence - that relating to the practice of "encouraging" a patient to share information with family members - as a basis for identifying wrongful behaviour on the part of Dr. Watters. Respondents say that at their various meetings between 1970 and 1974, Dr. Watters failed to encourage Frank sufficiently to share information on the diagnosis with Audrey and members of the Sacks’ family. Initially, Dr. Watters told Frank of the importance of sharing the information, but later he did not. In paragraph [73], the judge refers to expert evidence from Dr. Rosenblatt indicating that, in general, patients are encouraged by physicians to share information with other family members. The judge referred to a physician’s "obligation to encourage the parents to share the genetic implications with the other members of the extended family". At paragraph [90], the judge noted Dr. Watters’ testimony where he says he did not further encourage Frank because he thought Dr. Fitch would take that responsibility. Respondents say this was one of the steps that Dr. Watters failed to take to ensure that Edythe was informed.
[120] It is striking that the judge chose not to designate more explicitly this "failure to encourage Frank" as a fault, notwithstanding his criticism of the doctor's conduct. Moreover, at several instances in his reasons, he observed, quite rightly, that some encouragement was in fact given (paragraphs [28] and [30]). Reading Dr. Rosenblatt’s expert evidence of the practice of encouraging family members to share information - he speaks of a "process" of sharing information - one senses something less than a norm grounding an obligation upon which the liability of a physician to third parties can rest. Indeed expert Bartha Knoppers testified that it was not a standard in the 1970s to encourage the parent of a child-patient to disclose information to at-risk relatives.
[121] To my mind, the encouragement that the doctor might be said to owe to Frank, as the patient's representative, is best analyzed as an aspect of the "duty to inform" the patient of all the relevant aspects of his or her medical condition.[23] This duty is said to reflect the law's concern for patient autonomy and self-determination. It applies not just to allow a patient to arrive at informed consent to treatment, but also to understand how a diagnosis affects his or her life following treatment. By fully informing Frank of Corey's condition, Dr. Watters allowed the father, as the patient's representative, to have the information he needed to acquit whatever duty was his to share information with others that he thought appropriate or felt obliged to share.
[122] Once Frank was given the information, including a sense of the risk that other family members might face as a result of the sex-linked character of the disorder with which Corey had been diagnosed, Dr. Watters had fulfilled his obligation to inform his patient. Assuming the information was properly communicated by the doctor and understood by the patient, that fact in itself constituted an "encouragement" for the patient's representative to act, according to the obligations - moral and otherwise - that may or may not be incumbent on him. The "failure to encourage" is a weak basis upon which a fault of the doctor should rest beyond the failure to inform his or her own patient correctly, especially in the absence of a solid basis for founding the doctor’s duty to inform third-party relatives. To my mind, it cannot, on its own and in the absence of a plain standard of medical practice, be the basis for civil liability of Dr. Watters to Marcy and Andrew in this case.
[123] But even if this failure to encourage Frank were a fault, the outcome of the appeal cannot turn on this point. As I will discuss below, the evidence suggested strongly that whatever encouragement Frank received or should have received - and there is no doubt he received some - he was disinclined to contact the Sacks’ family. There was no causal connection between that failure and Marcy and Andrew’s loss.
[124] Lastly, the judge decided, in the event there was a duty of confidentiality, that Dr. Watters’ omission to seek approval from Corey’s father Frank to inform Edythe and Beverly was a fault under the general rules of civil liability. Certainly Dr. Watters could have asked Frank to be relieved from his duty of confidentiality in order to inform the other relatives. But as the judge himself suggests, the omission to seek such permission is only a civil wrong "[i]n light of his obligation to inform Edythe and Beverly" (paragraph [104]). As noted above, Edythe and Beverly had no such entitlement to be informed by Dr. Watters according to the standards of the profession and, as a result, he cannot be held to account for failing to seek permission to inform them.
b) Causation
[125] About a year after his birth in 2002, Jacob Trossman was diagnosed, by molecular testing, as suffering from PMD. In 1971, Dr. Watters had clinically diagnosed Corey Carin with Plott’s Disease and, by extension, had written with Dr. Fitch in 1973 that it was likely that Edythe’s sons died of the same disorder. Marcy and Andrew claim that the pecuniary and non-pecuniary losses they suffered as a result of Jacob’s birth with PMD were caused by Dr. Watters’ failure to take reasonable steps to ensure that Edythe and Beverly were informed of the risks to them associated with the Plott’s Disease diagnosis in the early 1970s.
[126] Assuming, for the purposes of discussion, that Dr. Watters’ conduct thirty years earlier was indeed a fault, was the respondents’ loss caused by that conduct?
[127] At trial, the respondents had to prove, on the balance of probabilities, that the Dr. Watters’ omissions meant that Marcy White did not take steps to avoid Jacob’s birth.
[128] The respondents argued that Marcy would have terminated the pregnancy in 2002 had she known of the diagnosis made in 1971. Since the failure to inform her of the diagnosis can be imputed to Dr. Watters, the doctor’s conduct was the cause of her loss. The judge agreed.
[129] There are three major links in this causal chain:
(i) Firstly, it must be established that Dr. Watters failed to take reasonable measures to inform Edythe or Beverly of his clinical diagnosis that the women in the family were at risk of being carriers of the gene that is responsible for Plott’s Disease. The judge held that it was so established. As noted, I shall assume this to be correct for the purposes of analyzing whether causation was otherwise proven;
(ii) Secondly, it must be established that had Edythe known of the diagnosis, she would have shared it with her daughter Beverly who, in turn, would have shared the information with her daughter Marcy when she was old enough to understand the gravity of this news. (Alternatively, it could of course be Edythe who, at the appropriate moment, told her granddaughter Marcy directly or Beverly, having been informed by Dr. Watters or someone else, who did the same). The judge held this to be the case, availing himself of the rules on presumptions of fact which I shall discuss below;
(iii) Thirdly, it must be shown that had Marcy been apprised of Dr. Watters’ diagnosis that Corey had Plott’s Disease, or at least that Edythe was a carrier of that disease, she would have terminated the pregnancy by therapeutic abortion such that Jacob would not have been born. If Jacob had not been born, the respondents would not have suffered their losses. This is the contentious link in the causal chain.
[130] Proving causation in this case, based on the hypothetical scenario of what would have happened had Edythe or Beverly learned of Dr. Watters’ diagnosis, is made difficult by the passage of time. Several key persons were not available to testify at trial on causation, including Frank and Dr. Fitch. Edythe herself did not testify at trial, although she was examined on discovery. Proof was made more complicated still by the fact that the judge decided that informing Edythe or Beverly of the risks associated with his diagnosis to members of the family could be done without violating the duty of confidentiality owed to Corey. This meant that the information that Edythe or Beverly had to convey to Marcy was limited to the diagnosis of Plott’s Disease made by Drs. Watters and Fitch in respect of the illness of the Sacks' boys, gleaned from their 1940s medical charts. Accordingly, Edythe would have to convince Marcy that she should terminate her pregnancy without the compelling account of Dr. Watters' direct diagnostic observations of Corey from the early 1970s.
[131] In order to overcome these difficulties, the judge relied in part on presumptions of fact to hold that the respondents had met their burden of establishing causation. He decided to infer certain unknown facts from known facts, as presumptions, where he was on the view that those presumptions might be considered serious, precise and concordant (articles 2846 , 2849 C.C.Q.). He explained his reliance on presumptions in broad terms: "[t]he Court therefore makes whatever presumptions of fact are necessary in order to hold that the faults of Drs. Watters and Fitch were the legal cause of the damages suffered by the Trossmans" (paragraph [182]).
[132] For example, the judge invoked a presumption of fact in respect of the second link in the chain of causation. While it is an unknown fact whether Edythe would have told Beverly about her sons' diagnosis of Plott’s Disease had she alone been told, the judge presumed it to be so, based on the known fact that Edythe and Beverly had a close mother-daughter relationship. He extended that presumption to explain his finding that Marcy would have been informed. The judge accepted evidence that the women in this family were close and continue to be close. He therefore presumed that had Edythe been informed by Dr. Watters of the risk associated with his diagnosis for women of child-bearing years in the family, Edythe would have told Beverly. Had Edythe and Beverly known of the risk, one or another of them would have informed Marcy at the appropriate moment in Marcy’s adult life. I see no error in this presumption because it appears serious, precise and concordant in the circumstances.
[133] The first two steps in the causal connection may thus be taken to be established: first, I am assuming that Dr. Watters did not take steps to ensure that Edythe was informed of his findings and, second, I am following the judge’s presumption of fact that if Edythe had known, Marcy would have learned of the diagnosis.
[134] What about the third link in the chain? Would Marcy have ended the pregnancy had she learned of Dr. Watters’ diagnosis?
[135] The judge wrote that, had the respondents known of the risk, Marcy would not have carried Jacob to term. He noted that her subsequent behaviour provided a compelling indication of this. After Jacob’s birth and following the testing that showed he suffered from PMD, Marcy terminated a pregnancy after the male fetus tested positive for that disease. Later she gave birth to healthy twin girls, but only after taking the precaution of clinically implanting and testing the embryos in order to be sure, in the words of the judge, "that they would be free of PMD" (para. [180]).
[136] The judge explained the basis on which he presumed that Marcy would have terminated the pregnancy with Jacob as follows:
[181] Marcy and Andrew are highly educated, inquisitive and determined and they would have understood the genetic implications, even if they had not yet experienced them. It is inconceivable that they would not have done as Marcy testified, i.e., tested for the illness and terminated the pregnancy. By 2002, in utero testing for PMD was available, as was therapeutic abortion.
[137] After reviewing the evidence and considering what he understood to be the applicable presumptions of fact, the judge thus found in favour of respondents on the third link in the causal chain: Dr. Watters’ failure to ensure that Edythe or Beverly knew of the risk associated with his diagnosis meant that Marcy White decided to have a baby that, had she known, she would not have had. On that basis, the doctor’s conduct was held to be the cause of the loss suffered thirty years after his diagnosis.
[138] Counsel for Dr. Watters argues that paragraph [181] of the judge’s reasons carries within it an error of fact that undermines the finding on causation. He argues that the judge wrote that Marcy’s presumed decision to abort is predicated on her being informed that her family members had been diagnosed as carriers of PMD. In fact, says counsel, Dr. Watters had clinically diagnosed Corey in 1971 with Plott’s Disease, not PMD. In the article published in 1973, he and Dr. Fitch had written that the Sacks’ boys had likely suffered from Plott’s Disease, not PMD. In point of fact, Dr. Watters had wrongly eliminated PMD as a possible explanation for Corey’s condition at the time. Plott’s Disease turned out to be a misdiagnosis, but that would only come to light many years later when Corey's mother Audrey was confirmed to be a carrier of the PMD gene, after Jacob’s molecular testing in 2003. As a result, if Dr. Watters had informed Edythe or Beverly of the risks to them associated with his diagnosis in the 1970s, they would have been told to be on the alert for Plott’s Disease, not PMD. Had Marcy been duly informed by Edythe or Beverly, she would thus have been told that she was at risk for carrying the Plott’s gene, not the PMD gene.
[139] The evidence led at trial shows that both diseases are sex-linked, and that they even overlap in some respects by way of symptoms. Plott’s and PMD are, however, different diseases. Importantly, their means of diagnosis are different. Plott’s is diagnosed clinically; there is no genetic marker for which one may test to determine that a woman is a carrier, nor is there a test that can be conducted in utero to determine whether a fetus will be born with Plott’s. Conversely, a genetic marker was identified for PMD in 1989 and tests were subsequently developed to determine whether a woman is a carrier of the PMD gene and whether a fetus is afflicted with the disorder. When Marcy was pregnant with Jacob in 2002, there was a test to determine whether the fetus had PMD. There was no such test for Plott’s.
[140] For the judge, it was unthinkable that Marcy would not have "tested for the illness and terminated the pregnancy" (paragraph [181]). But she could not have tested for Plott’s Disease, because no such test existed in 2002. While she could have tested for PMD - the judge noted in paragraph [181] that "[b]y 2002, in utero testing for PMD was available" - that is not the risk to which she would have been alerted based on Dr. Watters’ diagnosis of Corey and the speculative diagnosis of the Sacks’ boys in 1971.
[141] Counsel for Dr. Watters says that given the different regimes for diagnosis for the two diseases, the judge made a palpable and overriding error of fact by conflating Plott’s Disease and PMD in his causation analysis. The respondents answer that the judge made no palpable error and certainly made no overriding error that impugned his conclusions on causation.
(i) Was a "palpable" error made in respect of the diagnosis?
[142] The respondents do not dispute the fact that Dr. Watters’ diagnosis in 1971 - Plott’s Disease - is different from the disorder diagnosed in Jacob - PMD - in 2003. They contend, however, that the judge did not confuse the two in his reasons on causation. They say that what the judge meant in paragraph [181] was that had Marcy been informed of the diagnosis of Plott’s Disease, she would have tested for PMD and discovered that her fetus was sick. With that information, she would have terminated the pregnancy and avoided the losses associated with Jacob’s birth. The judgment thus reveals no "palpable" error, i.e. an error that is manifest, or clearly wrong from the face of the judgment or unsupported by the evidence.[24]
[143] The respondents base this reasoning on the theory that had Marcy and Andrew been alerted to the risk of Plott’s prior to Jacob’s birth, they would have consulted a genetic counsellor. They would have been tested for PMD at that time and discovered that Marcy was carrying a sick fetus and terminated the pregnancy. They point specifically to Dr. Rosenblatt’s expert report which indicates that there is some link or overlap between Plott’s and PMD and that the genetic counselling for the two diseases is essentially the same. As a means of confirming this theory, they observe that after Jacob’s birth, Dr. Feigenbaum, the genetic counsellor who was consulted, ordered a wide series of tests, including one for PMD. He also undertook a literature search and found the article published by Drs. Watters and Fitch. The respondents suggest that the same would have occurred had the consultation taken place prior to Jacob’s birth.
[144] Counsel for Dr. Watters points to the absence of expert evidence as to what protocol for testing Marcy would have undergone had she sought out genetic counselling as a possible carrier of Plott’s Disease. He argues that Dr. Rosenblatt’s allusion to counselling being "essentially the same" for both diseases does not establish that Marcy would have been tested for PMD if the consultation was undertaken for risk of Plott’s. Counsel points to evidence from Dr. Dallaire, an expert in pre-natal testing, who explained that a genetic counselling cannot be counted on to turn up disorders for which the experts are not on the look-out. Dr. Rosenblatt made a similar observation when he testified on the importance of accurate labels in the identification of genetic disorders.
[145] With respect for the judge, the appellant is right that the error is a palpable one. It is manifest from the account the judge himself gave of the case that he did not take into account the difference in the manner that Plott’s Disease and PMD are diagnosed in his analysis of causation. It is not disputed that Jacob suffers from PMD and that, in 1971, Dr. Watters diagnosed Corey with Plott’s Disease. In the discussion of causation, specifically in paragraphs [173] to [183], the judge appears to assume that Marcy would have been told by Edythe or Beverly of the risks associated with PMD, not Plott’s Disease. This is especially plain in paragraph [181] quoted above in which the judge expresses the view that had Marcy and Andrew understood the genetic implications of Dr. Watters diagnosis, it is unthinkable that Marcy would not have undergone testing for PMD and, in learning the bad news, that she would not have terminated the pregnancy. His allusions to "PMD" in paragraph [173] and "the disease" in paragraph [177] are suggestive of the same manifest error of confounding Plott’s and PMD.
[146] Dr. Watters misdiagnosed Corey with Plott’s Disease and attributed the same condition to the Sacks' boys in the 1973 article. It was this information that he omitted to convey to Edythe and Beverly and which, by extension, was not communicated to Marcy at the time she fell pregnant with Jacob or before that time. Had she been informed of Dr. Watters’ diagnosis, and of his research conclusions in respect of Edythe’s two sons who died as children in the 1940s, she would have been alerted to the risk to herself and her fetus of Plott’s, not PMD.
[147] In essence, the respondents argue that a genetic counsellor, consulted by Marcy and Andrew prior to Jacob’s birth, would have reasoned as follows: in 1971, and perforce in the 1940s, there was no test for PMD. Dr. Watters’ diagnosis of Plott’s is sufficiently close in its symptoms to have been PMD. Now that a test for PMD is available, it would be prudent to test for that disease.
[148] The scenario they propose is not implausible. But two objections must be noted.
[149] First, there is no concrete evidence from experts that this course of action would have been pursued in 2002. There is no evidence, factual or expert, to show that a geneticist or any other physician would have doubted Dr. Watters’ clinical diagnosis of Plott’s Disease. There is no evidence that in the presence of a clinical diagnosis of Plott’s Disease, PMD would have been suspected as the correct diagnosis of the genetic disorder running in Audrey’s extended family. Second, had the judge’s reasoning proceeded on this basis, he would have explained why, notwithstanding the fact that he understood that Plott’s cannot be tested for because it has no genetic marker, that the test for PMD would have been undertaken. The judge records no direct evidence that Marcy would have been tested for PMD as a possible carrier of Plott's. Even if one were to assume that the judge did not conflate the two diseases, he does not explain why it would be "unthinkable" that Marcy would not be tested for PMD when the operating diagnosis was that she was at risk for Plott’s. Marcy testified that had she known that she was a carrier of a disease like PMD when she was pregnant with Jacob, she would have had pre-natal testing. But based on Dr. Watters’ diagnosis, she would not have "known" that she was the carrier of a disorder like PMD; she would only have known that she had a risk of carrying a gene for a different disease with similar symptoms.
[150] There is evidence to suggest that after Jacob’s birth, doctors tested Marcy and the boy for PMD and discovered the Watters-Fitch article. Moreover, note the respondents, Marcy aborted a male fetus in the period following Jacob’s birth when she knew she was a carrier of PMD. But it is unhelpful to compare the circumstances arising after Jacob’s birth, when the fact of a sick child was established, with those of the period before his birth when, on the basis of the Plott’s diagnosis, the chance of a sick boy being born could only be measured as a statistical probability. Would Marcy have been tested for PMD - a different disease - if her physicians had been told that she had a 25% chance of being a carrier for Plott’s Disease? There was a gap in the evidence that the judge did not recognize because of his error.
[151] The judge cites no genetic protocol or evidence that indicates that patients in 2002 who were suspected to be carriers of Plott’s would have undergone pre-natal testing for PMD. It is not enough to say that this gap in the evidence, given the incomplete and uncertain tenor of the reports in the record including those from Dr. Rosenblatt and Dr. Dallaire, can be bridged by the blanket presumption of fact made by the judge at paragraph [182]. I am of the respectful view that by conflating Plott’s Disease and PMD in this important respect, the judge committed a palpable error.
(ii) Was the error an "overriding" one?
[152] By way of answer, the respondents argue that even if it was a palpable error - which they deny - it was not an overriding error within the meaning of Housen[25] because it does not have the effect of undermining the rationale of the judge’s decision that Dr. Watters’ omissions caused their loss. Specifically, even if the judge had correctly identified the diagnosis and the attendant identification of risk as Plott’s rather than PMD, his reasoning would have been the same. Alerted to the chance that she was a carrier of Plott’s Disease - a similarly tragic condition - Marcy would have undertaken precisely the same course of action. Apprised of the risk, she would have chosen to terminate the pregnancy. The presumption of fact would still obtain in that it would be appropriate to infer that had Marcy learned of Dr. Watters’ diagnosis, she would have had an abortion.
[153] With great respect for the judge, and notwithstanding able argument by the respondents, I am of the view that the error was an overriding one and that causation has not been established, on the balance of probabilities, even with the benefit of presumptions of fact invoked by the judge.
[154] By presumption, the judge held that Marcy would have aborted had she tested for PMD and learned she was a carrier and her fetus was afflicted with PMD. But as I have noted, that presumption of fact cannot properly be established from the diagnosis for Plott’s for which there was no test. It is not a deduction of an unknown fact (i.e. the choice to terminate the pregnancy) from a known fact (i.e. that Corey or the Sacks' boys had PMD) because that latter fact was not known at the time. Article 2849 C.C.Q. has no possible application to establish the third link in the causal chain.
[155] Counsel for the respondents argues that it is fair and proper to presume that Marcy would have terminated her pregnancy had she been only told of the risk that she was a carrier of Plott’s. Even if she could not have undergone a test that would have confirmed whether or not she was a carrier for the Plott’s gene, she would have ended the pregnancy. After all, respondents argue, the two disorders are symptomatically similar and equally grave in their prognoses. The news that there was a mere risk, even without confirmation by molecular test, that Marcy was the carrier of a serious disease "like PMD" would have been sufficiently chastening to have prompted her to have an abortion. The error by the judge is thus, for the respondents, not an overriding one.
[156] Alerted to the risk that she may be a carrier of Plott’s Disease, would Marcy have terminated the pregnancy in the absence of a test? She would have had to decide whether or not to pursue her pregnancy merely on the basis of a calculated probability that she was a carrier of Plott’s and that her fetus had that condition. Would she have decided to abort in that scenario?
[157] Counsel for Dr. Watters argues that the respondents failed to adduce evidence as to what Marcy and Andrew would have decided to do had they been informed of the risk of Plott’s for which no test existed.
[158] Marcy’s testimony is inconclusive on this point. When she was asked at trial what she would do if she had been made aware of a "50% risk that a male child would be born with a genetic disease before Jacob was born", she answered as follows:
It’s not a nice question to answer, but had I known that I had a genetic disorder like PMD or PMD when I was pregnant with Jacob, I would have done exactly what I did when I was pregnant in two thousand and three (2003), I would have had prenatal testing, I would have found out that I was carrying a sick baby and would have terminated it. Jacob would not have been born.
[159] This answer falls short of what is necessary to establish the causal link on the balance of probabilities. First, the question posed was misleading. It overstated the likelihood, based on Dr. Watters’ diagnosis, that she was a carrier of Plott’s Disease; indeed, the question presents the fact that she was a carrier of a sex-linked disorder as a certainty, whereas it was far less than that. Women who are known to be carriers of Plott's have a 50% chance of having a male child with the disease. Based on Dr. Watters’ diagnosis of her grandmother Edythe as a carrier, however, the chance that Marcy was a carrier of Plott’s, measured before Jacob’s birth, was statistically less than a 50% for her male children. Second, Marcy presumes that she would have had prenatal testing because that is what happened after Jacob’s birth. All we can glean from this testimony, on the balance of probabilities, is that had she learned, from prenatal testing, that she was carrying a sick baby, she would have aborted.
[160] Andrew’s testimony is to the same inconclusive effect. Andrew said that had he known what he knew at the time of trial, "we would have done in utero testing". If the fetus had proved to be sick, he testified that they would have terminated the pregnancy. But we do not know, on the balance of probabilities, what they would have done knowing only of the risk of illness before birth, without the benefit of a test.
[161] Repeating his conclusion at paragraph [181], the judge reaffirmed this point in the portion of his judgment dealing with "wrongful birth":
[279] The Court has already held that, had the Trossmans known of the genetic implications when Marcy became pregnant with Jacob, they would have tested for PMD and had an abortion, as she did with a later pregnancy. Medical science was capable of identifying the existence of PMD in an embryo or fetus at the time Jacob was conceived and abortion was easily available.
[162] There is thus a further gap in the evidence as to what Marcy would have done if she had had to evaluate the risk of illness based on probabilities (which is necessarily the case for Plott’s) as opposed to relying on a test for PMD.
[163] Would she have decided to end the pregnancy in the absence of a test, only on the basis of a probability? Stated otherwise, can the evidentiary gap be bridged by presumption to allow that if Marcy had known of the risk, that knowledge alone would have been enough to convince her that she should terminate the pregnancy?
[164] Had Marcy been informed of Dr. Watters’ reading of the family history, at most she would have learned that Audrey, her first cousin once removed, gave birth to Corey in 1970 with Plott’s Disease.[26] At most, she would have been told that Audrey was a carrier of Plott's and that a carrier has a 50% chance of giving birth to a male child with Plott’s. She would have been told that her grandmother Edythe was a carrier and had two sons who died of Plott’s Disease. She would have learned that there is no way of knowing whether her mother Beverly is a carrier of Plott’s, but that her brother Morty did not have the disease. She would have been told there is no test for her or for a fetus to undergo because there is no genetic marker for Plott’s. She would have been told, according to expert evidence of Dr. Rosenblatt at trial, that the statistical probability of her being a carrier of Plott’s Disease is 25% if Dr. Watters' diagnosis was correct: Beverly, her mother, had a 1 in 2 (50%) chance of being a carrier; Marcy herself had a 1 in 2 (50%) chance of inheriting the Plott’s gene as a carrier from Beverly if and only if Beverly was a carrier, leaving Marcy with a 1 in 4 statistical chance (25%) of being a carrier. As a carrier, she would have a 50% chance of passing the gene on to her children. In other words, she would have a 6.25% chance of having an affected male (25% chance of being a carrier x 50% chance of having a male x 50% chance that she pass on the affected gene) and a 6.25% chance that she would have a carrier female (25% that she herself would be a carrier x 50% that she would have a female x 50% chance that she would pass on the affected gene). If she chose to confirm the sex in utero and discovered it to be a male, the chance that the male fetus would be afflicted with Plott’s disease would have been 12.5%: 25% risk that she is a carrier x 50% chance that she would pass on the gene.
[165] Nothing in the record attests directly what Marcy would have decided in these circumstances. Moreover there is no basis from presuming that outcome. The record does not indicate Marcy and Andrew’s tolerance for risk. It is true that after Jacob’s birth, Marcy went to great lengths to ensure that her children would be healthy. But there is no reason to believe that she would have had the same attitude before Jacob was born. There is a gap in the evidence in this regard.
[166] With the benefit of hindsight and with the present knowledge of the tragedy in the lives of Marcy and Andrew, this calculation may no doubt seem heartless. The fact remains, however, that the evidence does not show, in the absence of a pre-natal test for Plott’s, whether the respondents would have decided to end the pregnancy based on a probability, rather than a certainty, that Jacob would be sick. The respondents bear the burden of proof of making out their claim and, in the circumstances, they must face the indignity, after the fact, of a judge asking what would have been decided in light of the available information.
[167] Counsel for Dr. Watters correctly says there is nothing in the record to allow for the inference that Marcy would have decided to abort in the absence of a test. He says this means that the judge could not fill the gap as he did with the blanket allusion, at paragraph [182], that he was making all presumptions of fact necessary to arrive at a conclusion that Dr. Watters’ fault caused the loss. A presumption of fact allows for an inference of an unknown fact to be made where it is serious, precise and concordant. It does not allow for the filling of an evidentiary void.
[168] In defence of the finding that Dr. Watters caused their loss, the respondents argue that it is unthinkable that Marcy would have taken the risk of having a boy: she would have ascertained the sex of the fetus and only proceeded with a female pregnancy. Learning of a male pregnancy and mindful of the probabilities that a boy would be born with Plott’s, Marcy would have terminated the pregnancy rather than running even a small risk of having a sick child. Even a relatively low percentage of risk that a child would be sick with Plott’s would have been too high, given the seriousness of the illness, for Marcy and Andrew to have proceeded with the pregnancy had they been informed of Dr. Watters' diagnosis by Edythe. The judge was not wrong, say the respondents, to conclude that Marcy and Andrew, as "highly educated" people, would not have taken such a risk.
[169] In the absence of a test, would Marcy have aborted based only on a statistical probability that she would give birth to a sick child?
[170] I do not doubt the correctness of the judge’s appreciation of Marcy and Andrew as highly educated, intelligent people. But the invitation by the respondents to compensate for the error of the judge and decide, notwithstanding the absence of a test for Plott’s Disease, that Marcy would have terminated the pregnancy based on the probabilities alone, is an invitation to speculate without any evidentiary foundation. Their intelligence and the gravity of Plott’s Disease, however real both these facts are, cannot in themselves found a presumption of fact having the qualities of seriousness, precision and concordance required by article 2849 C.C.Q. There are many intelligent people who decide to complete pregnancies mindful of the chance they will have a sick child. There was evidence from the experts that some couples do tolerate risk. Marcy and Andrew, as I have said, did not testify about their own tolerance for risk as measured at the time of the first pregnancy. While subsequent events show that the respondents were not averse to terminating pregnancy when they were sure that a sick child would have resulted, there is no indication of what they would have done when faced with the difficult choice of whether to proceed when the statistical probability of a sick child was 12.5% or 6.25%, as described above.
[171] Lastly on this point, respondents point to paragraph 48 of Dr. Watters' amended plea which, they say, amounts to an implicit acknowledgment of the causal connection between his omission and Marcy’s loss. In the amended plea, Dr. Watters reproached Audrey for not having shared information with family members, thereby depriving them of the opportunity to take precautions "concerning future conceptions". I am unconvinced this is an admission that can be set up against Dr. Watters to prove causation in light of the gap in the evidence that I have observed. The appellant has vigorously disputed causation throughout. He initially argued, not without plausible foundation, that Audrey’s conduct absolved him from liability by breaking the chain of causation. In part, the amended plea reflects that, and makes no concession that can fairly be considered an admission that Dr. Watters caused Marcy’s loss.
[172] Respectfully stated, the judge was wrong to say causation was made out on the balance of probabilities and his reliance on presumptions of fact does not bridge the gaps in the evidence.
(iii) Frank Carin’s conduct as breaking the chain of causation
[173] The respondents’ argument on causation is premised on the notion that absent Dr. Watters’ fault, Marcy would have been informed of his diagnosis by her grandmother Edythe or her mother Beverly and ended her pregnancy.
[174] It will be recalled that the respondents blame Dr. Watters not only for his failure to inform Edythe and Beverly directly of his diagnosis, but they also blame Dr. Watters for having failed to take steps that would have encouraged Frank Carin to pass on the information to Edythe, and Beverly. Earlier in these reasons, I noted that the judge stopped short of describing this aspect of the doctor's conduct as a fault and noted my own view that it is not one.
[175] But even if the failure to encourage Frank were characterized as a fault, the judge’s reading of the facts is incompatible with the existence of a causal link between, on the one hand, Dr. Watters’ failure to encourage Frank to inform Edythe and Beverly of the risk and, on the other hand, Marcy’s loss resulting from Jacob’s birth.
[176] The judge found that Frank did not pass on information about Corey’s diagnosis to his wife, Audrey. He said Frank’s omission was "seemingly unconscionable" (paragraph [108]). The judge further described Frank’s conduct as follows:
[109] As for Frank's actions, Audrey states that he said nothing to her about what he learned from his conversations with Dr. Watters in June and July 1971 or about the need to warn others of the genetic implications. Although a pharmacist and an educated man, Frank apparently had serious personal problems, including drug abuse and a violent streak that required Audrey to seek medical treatment for herself on New Year's Eve 1971. The break-up of the couple shortly after that would not have been conducive to harmonious future relations.
[110] The Court is convinced that Frank did not do what common sense and human decency required him to do in this matter. This is supported by the fact that, had he been even mildly concerned for Audrey and the Sacks Family, he would almost certainly have sought further contact with Dr. Watters or, at the very least, spoken to him about the issue when they met in 1974.
[111] Dr. Watters testified that Frank said nothing about it then and the Court believes him. This convinces us of Frank's egregious omission.
[177] To my mind, Frank’s "egregious omission" served to break the chain of causation between Dr. Watters’ failure to encourage him to inform Audrey, Edythe and Beverly and the loss suffered by the respondents as a result of Jacob’s birth.
[178] Dr. Watters was unaware that Frank was a bar to information being passed on as to Corey’s diagnosis to Audrey and to other family members. Moreover, Frank and Audrey had separated by the time of Dr. Watters’ final clinical diagnosis that Corey had Plott’s Disease. Contrary to what the judge wrote at paragraphs [34] and [112], Dr. Watters was not aware of the separation in 1974.
[179] In other words, even if Dr. Watters had further encouraged Frank, at the time of his final diagnosis of Corey, to pass the information on to family members, it is highly unlikely that this would have happened. This follows ineluctably from the judge’s sense, expressed in paragraph [110] quoted above, that Frank "did not do what common sense and human decency required him to do in the matter" and that he was not "even mildly concerned" for the welfare of Audrey and the Sacks' family at the time.
[180] Frank’s conduct, roundly denounced by the judge in terms consonant with that of a fault, broke the chain of causation between Dr. Watters lack of encouragement to him and Marcy’s loss.
c) Losses suffered by the respondents
[181] Having expressed my respectful view that the judge erred in finding that fault and causation were established against Dr. Watters, I find it unnecessary to consider the extent of the respondents’ losses, including arguments in the incidental appeal that the amount awarded by the judge was too low. In the absence of fault and causation, Dr. Watters cannot be held to be liable for the losses they have suffered.
V Conclusion
[182] I would allow the appeal and dismiss the action brought by the respondents against Dr. Watters, with costs in the principal action at trial and on appeal. In his comments on costs, the trial judge observed that Dr. Watters' experts' reports were not helpful to him (paragr. [422]). Those experts' reports proved to be of central importance, however, in disposing of the case on appeal. Accordingly, I propose that the costs borne by the respondents in the principal action include Dr. Watters' experts' fees, notwithstanding the judge's comment.
[183] The incidental appeal should be dismissed. Given the complex nature of this case and my conclusion that it is unnecessary to consider the extent of the respondents' losses in the principal appeal, I propose that parties pay their own costs in the incidental appeal.
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NICHOLAS KASIRER, J.A. |
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Schedule A
[1] Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351 , 361, drawing notably on Paul-André Crépeau, "La responsabilité civile du médecin" (1977) 8 R.D.U.S. 25, 29.
[2] Suzanne Philips-Nootens, Pauline Lesage-Jarjoura and Robert P. Kouri, Éléments de responsabilité civile médicale, 3rd ed. (Cowansville: Ed. Yvon Blais, 2007), nº 66.
[3] ter Neuzen v. Korn, [1995] 3 S.C.R. 674 , para. 33.
[4] Where a doctor is sued extracontractually as an ordinary person, and not as a doctor, his or her status as a physician is of course irrelevant. See Philips-Nootens, Lesage-Jarjoura and Kouri, supra note 2, nº 27: "Outre les obligations communes à tous les citoyens, le médecin a aussi des obligations particulières liées à son statut professionnel, en raison notamment de l'exclusivité des actes médicaux et de la vulnérabilité des personnes qui requièrent ses services". [Emphasis added.]
[5] Roberge v. Bolduc, [1991] 1 S.C.R. 374 , 437.
[6] Supra, note 3, para. 44.
[7] Hébert v. Centre hospitalier affilié universitaire de Québec - Hôpital de l’Enfant-Jésus, [2011] R.J.Q. 1553 , 1566, para. [61].
[8] As Professors Viney and Jourdain have written in respect of French law, "le standard de l’homme raisonnable doit être adapté à la nature de l’activité visée". The authors observe: "Tout d’abord, il est unanimement reconnu aujourd’hui que le standard de ‘l’homme raisonnable’ n’est pas unique, mais qu’il varie en fonction de la difficulté et des caractères propres à l’activité exercée. Pour apprécier, par exemple, les devoirs qui s’imposent à un professionnel dans l’exercice de sa profession, le juge ne se réfère évidemment pas à ce que l’on aurait pu attendre normalement d’un profane, mais à ce qu’il était raisonnable d’exiger d’un ‘bon professionnel de sa spécialité’" - Geneviève Viney and Patrice Jourdain, Traité de droit civil : les conditions de la responsabilité, 3rd ed. (Paris: L.G.D.J., 2006) nº 464 (references in original omitted).
[9] L’Heureux-Dubé, J. explained in Lapointe, supra, note 1, 380, that judges must not decide matters of medical liability based on compassion for victims in place of the in abstracto professional standard: "Guided by sympathy alone, my task here would have been much easier. As a judge, however, I must uphold the law and sympathy is a poor guide in such matters. Justice according to law is the only guide and justice must work for both parties engaged in litigation, plaintiffs as well as defendants".
[10] Leduc v. Soccio, 2007 QCCA 209 , para. [81].
[11] 677 A. 2d 1188 (1996), Superior Court, N.J. - App. Div., cited by the judge at paragraphs [62] et seq.
[12] A recent study observed the "debate" around the existence of a duty to warn and Safer, stopping well short of affirming that the case represents as a statement of positive law in 2009, let alone the 1970s: Gillian Nycum, Bartha Knoppers and Denis Avard, "Intra-familial Obligations to Communicate Genetic Risk Information: What Foundations? What Forms?" (2009) 3 McGill J. Law & Health 21, 37.
[13] J.-L. Baudouin, "Le secret professionnel du médecin - son contenu - ses limites" (1963) 41 Can. Bar Rev. 491.
[14] William F. Flanagan, "Genetic Data and Medical Confidentiality" (1995) 3 Health L. J. 269.
[15] Dr. Watters continued by noting that it was common practice of all doctors he knew that a physician "wouldn’t go out beyond the patient that was directly in your care to give information to other members of the family without the permission of the person you were involved with".
[16] See Jean-Louis Baudouin, supra, note 13, 505-6. Philips-Nootens et al., supra, note 2, nº 408 write: "le secret professionnel s'étend de façon large à tout ce qui vient à la connaissance du médecin dans le cours de la relation thérapeutique, soit par les révélations et faits qui lui sont rapportés, soit par les constatations qu'il peut faire lui-même lors de l'examen physique, de l'investigation ou des examens de laboratoire".
[17] G. Watters and N. Fitch, "Familial Laryngeal Abductor Paralysis and Psychomotor Retardation" Clinical Genetics 1973: 4, 429, fig. 1 (full face view of patient) and fig. 2 (full length view of patient).
[18] Smith v. Jones, [1999] 1 S.C.R. 455 .
[19] Jennifer L. Gold, "To Warn or Not to Warn? Genetic Information, Families, and Physician Liability" (2004) 8 McGill Journal of Medicine 72, 73 et seq.
[20] Mtre Letendre testified: "Certainement, l’intérêt pour la vie et le respect de l’intégrité physique des membres existants et à venir de la famille Sacks étaient certainement plus importants que le respect de l’autonomie de la famille Carin à protéger de l’information qui était confidentielle [...]". No basis was advanced, nor accepted by the judge, as to the compatibility of this statement with the imminent danger principle in Smith, supra, note 18, much less that this was a cogent expression of the law applicable in the 1970s in Quebec. I note that, writing as a legal scholar in 2004, Mtre Letendre himself recognized the uncertain status of this thesis as a statement of the law in force at that time: Martin Letendre, "Le devoir du médecin de prévenir les membres de la famille d’un patient atteint d’une maladie génétique" (2004) 49 McGill L.J. 555, 579 et seq.
[21] Hébert, supra, note 7, 1559, para. [36].
[22] Jean-Louis Baudouin and Patrice Deslauriers, La responsabilité civile: Responsabilité professionnelle, vol. II, 7th ed., (Cowansville: Éd. Yvon Blais, 2007) nº 2-57; Pauline Lesage-Jarjoura et al., supra, note 2, nº 426; Hélène Guay and Bartha M. Knoppers, "Information génétique: qualification et communication en droit québécois" (1990) 21 R.G.D. 545 , 553.
[23] See Baudouin and Deslauriers, supra, note 22, nº 2-46: "En droit civil québécois, le médecin est tenu de fournir à son patient toute l'information qu'un médecin raisonnablement prudent et diligent aurait fourni dans des circonstances […]".
[24] See H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401 , paras. 52-56.
[25] Housen v. Nikolaisen, [2002] 2 S.C.R. 235 .
[26] It bears repeating that, according to the judge’s reasoning in paragraph [98], Dr. Watters did not need to breach his duty of confidentiality to Corey. According to the judge's reasoning, Marcy would have learned much less had Dr. Watters kept Corey’s circumstances confidential and only disclosed information relating to the Sacks’ boys and Edythe’s likely condition as a carrier of Plott’s Disease.
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.