Décision

Levine c. Mohr				2018 QCCS 1260
JG 2551    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
No:		500-05-055092-991
DATE:	March 23, 2018
______________________________________________________________________
PRESIDING:  THE HONOURABLE LUKASZ GRANOSIK, J.S.C.
______________________________________________________________________
MARK LEVINE -and- MANUEL LEVINE
Plaintiffs
v.
DR. GÉRARD MOHR, DR. MOHAMMED MALEKI, DR. LINE JACQUES -and- DR. JEFFREY ATKINSON
Defendants
______________________________________________________________________
JUDGMENT (Medical Malpractice)
______________________________________________________________________

[1]         On December 10, 1996, around 6 p.m., Mark Levine, 17 years old, was found lying unconscious at home. Urgences-Santé transported promptly the teenager to the Jewish General Hospital (JGH), where it was immediately discovered that Mark had sustained an important brain hemorrhage. He spent the next three years of his life at the JGH. 

[2]         More than 20 years later, this Court has to determine if the treating physicians were negligent or committed faults that caused Mark’s[1] current state. Indeed, Mark is essentially quadriplegic and is dependent on others for all aspects of daily living and hygiene.

[3]         Manuel Levine, Mark’s father, and Mark have brought an action in damages, initially against Drs Gérard Mohr, Mohammed Maleki, Line Jacques and Jeffrey Atkinson, citing not less than 19 professional errors or faults that allegedly occurred in Mark’s treatment at the JGH.

[4]         Mohr and Maleki were staff neurosurgeons at the JGH in 1996. Maleki was Mark’s treating neurosurgeon from the latter’s admission to the hospital until November 21, 1997, when Jacques, who had just joined the JGH as a neurosurgeon, took over. Mohr was the director of the Neurosurgery Service at the JGH. Atkinson was the only resident in neurosurgery at the JHG between September, 1996 and January 12, 1997, and attended Mark during this period. Atkinson’s residency at the JGH was part of his third rotation, consisting of four blocks of four weeks from mid-September until mid-January. He would then leave to pursue his residency at the Montreal Children’s Hospital.

[5]         At the outset of the hearing the case against Jacques was discontinued.

[6]         The Court heard testimony from all the parties, with Mark’s declaration being unfortunately limited to three monosyllables in response to three questions. Plaintiffs presented Dr. Mihai Dimancescu, and Defendants, Drs. Mario Séguin and Michel Wieslaw Bojanowski, all of whom were recognized as experts in neurosurgery.

FACTS

[7]         On December 10, 1996, soon after Mark’s arrival at the JGH, and after a CT scan, the diagnosis of brain hemorrhage, mostly in the left thalamus area, and of acute hydrocephalus were made. Mark was in a deep coma, corresponding to 4 on the Glasgow scale.[2] The emergency physician did not believe anything could be done, but he sought a consultation in neurosurgery at 8 p.m.

[8]         Shortly after, Atkinson examined Mark and met with Mark’s parents.[3] He suggested to proceed with an external ventricular drain (EVD). He also contacted Maleki, who was the neurosurgeon on call that night. JGH had at that time only two neurosurgeons: Mohr, full time, and Maleki, part time.[4]

[9]         Atkinson told the parents that an EVD was the only chance to save Mark’s life. Although he didn’t have access to the radiology report, he discussed the pictures with both the emergency doctor and the radiologist, as well as Maleki over the phone. The film of the CT scan showed an extensive intraventricular hemorrhage with blood in all ventricles of the brain.

[10]        Nothing could be done at that point to fix the original hemorrhage, and the plan was simply to drain the ventricles in the brain so as to resolve the hydrocephalus. Accordingly, the EVD was installed on an urgent basis in the evening of December 10, 1996.

[11]        It is quite a standard procedure whereby a drain is inserted, more often, into the right-hand side ventricle. In Mark’s case, the decision to proceed with the right-hand side was also supported by the fact that the hemorrhage was on the left-hand side. Although this procedure is often done at bedside, internal regulations at the JGH provided that it had to be done in the operating room.

[12]        In 1996, Maleki had already installed a certain number of such drains (he states 50 to 70 procedures in his then 15 years of active neurosurgical practice). He has even developed a sub-specialty in intracranial hemorrhage, as he says that he was more comfortable than most neurosurgeons to proceed with these devices.

[13]        The purpose of the EVD was to address the issue of hydrocephalus, which was caused by the accumulation of cerebrospinal fluid (CSF). CSF is secreted in the brain and circulates in the central nervous system. In order to maintain 150-170 cm³ of CSF at all times in the central nervous system, the body produces around 450 cm³ daily and therefore CSF has to be reabsorbed by the cortex.

[14]        Following the brain hemorrhage suffered by Mark, the blood from the hemorrhage obstructed the normal flow of CSF in the ventricles of the brain, and this obstruction increased the intracranial pressure (ICP). Sudden increase in ICP and the hydrocephalus that result from that situation can lead to devastating damage to the brain, over and above, that caused by the destruction of brain cells by the hemorrhage itself. The EVD allows CSF to drain, thereby maintaining ICP at normal levels and avoiding such further damage.

[15]        The EVD surgery was performed in the evening of December 10, 1996, by Maleki and Atkinson. Maleki came out of the operating room and told the parents that Mark had a 60% chance of survival and a 15% chance of complete recovery. In the same conversation, he asked if the parents wanted to “donate the body”. For Maleki it was obvious from the start that the deep bleed that Mark sustained would leave him severely handicapped for the rest of his life, if he survived.

[16]        On December 11, 1996, one day after the procedure, as there was no bed immediately available in the Intensive Care Unit (ICU), Mark was cared for in the recovery room. He was still unconscious. The EVD enabled the ICP to decrease to normal levels over the following days but it was draining quite a lot of CSF, up to 120 cm³ per 8 hours. Mark was quite febrile, with a temperature of 39 degrees Celsius.

[17]        At that point, the treatment plan was simply to manage the hydrocephalus by draining CSF, control the temperature and monitor neurological improvement. The EVD was to remain in place until such time as it was not necessary anymore. When there would be time and staff available, an angiogram would eventually be performed to find the cause of the hemorrhage.

[18]        On December 12, Mark was moved to the ICU, because he needed constant monitoring, being intubated and supported for breathing. There was not much improvement on the neurological side. A suggestion of pneumonia appeared, and it was immediately treated with antibiotic Ceftriaxone, prophilactically, awaiting the results of tests to be performed by the Infectious Diseases department (ID).

[19]        Until December 31, 1996, the general care for Mark’s medical problems was handled by ICU physicians. Obviously, ICU would consult and take into consideration the neurosurgeons’ opinions, but ICU was deciding Mark’s treatments. Even though a patient was admitted at the JGH under Maleki’s name, the neurosurgeon and neurosurgery residents would only be consulted in their field of expertise.

[20]        Atkinson would see Mark twice a day and would only put one note a day in the charts if there were no differences between the two visits. As the only resident in neurosurgery, he would attend all the neurosurgical patients and would follow-up with Mohr and Maleki if needed. Although Maleki would attend JGH only once or twice a week, he was always available by phone.

[21]        Mark’s neurological examinations in the days following remained stable but very poor. He was showing signs of decerebration, a very serious symptom of disconnect between the brain and the body.

[22]        The EVD was working, but it was also draining a considerable amount of CSF (10 to 15 cm³ per hour). Despite being treated for pneumonia with antibiotics since December 11, Mark remained febrile, so ICU had a suspicion that there were other infections or that the fever was “central”. The latter is probable, especially with a hemorrhage affecting the hypothalamus, which was Mark’s case. On December 14, a short period of drain clamping resulted in an immediate rise in ICP.

[23]        Another CT scan was performed on December 15, and it showed that although the right ventricle appeared smaller, other ventricles were still larger than they should be. At that point in time, Mark’s parents would spend approximately 14 hours a day at the JGH, mostly in the waiting room close to the ICU. Although they were separated, they were not in conflict regarding the care and the treatment of their son. If they were not in the hospital, they were always available on the phone. They both provided the hospital with their personal phone numbers.

[24]        On December 16, at the request of the father, a discussion took place with Maleki. The latter explained that the hemorrhage was a result of a birth defect, added that he had many cases like this in his practice and that patients in these type of situations are left with the “level of a baby”, meaning requiring constant care for the rest of their lives.

[25]        On December 17, Maleki noted a minimal improvement neurologically. On December 18, Mark showed signs of decortication for the first time, which is a better neurological symptom than decerebration, but was still very sick neurologically and remained drain-dependent.

[26]        On December 20, 1996, the third CT scan showed that the blood in the brain resorbed and that the ventricles were smaller, although the EVD was still draining important amounts of CSF. On that same day, ICU decided to proceed with a tracheostomy, which had several advantages over keeping Mark intubated through the mouth. Atkinson was approached by ICU staff asking whether he would like to take advantage of the fact that Mark was already going to the operating room and undergoing general anesthesia, in order to replace the EVD that had been inserted on December 10. Although there were no signs that the EVD was infected, it was a common preventative practice, at that time, to change the drain. After discussion with Maleki, the decision was taken to change EVD from one side of the brain to the other.

[27]        The rationale to change the EVD was that the left ventricle was still bigger and not draining CSF well enough and that Mark presented a fever, which could have perhaps been the result of an infection of the drain. This was explained to the parents and Atkinson obtained verbal consent from Mark’s mother to proceed.

[28]        Whenever Atkinson would seek consent, there wasn’t any specific forms that were used or rules followed; he would simply explain what was planned, why it was planned and what the risks were. Notwithstanding that verbal consent was in fact provided by Mark’s mother, strangely, Maleki personally completed the consent form describing this procedure as an “Emergency”.[5]

[29]        As was, and still is, usual before every surgery that he performed, Maleki personally reviewed the CT scan film, which was also available in the operating room. Unfortunately, this operation was not totally successful. There was no possibility to insert the drain on the left-hand side of the brain because of the blood clot. Maleki reinserted, therefore, a new drain on the right-hand side. In the Operating report, he wrote the following :

Procedure - changing right ventricular drainage. We attempted left ventricular drainage with left frontal burr hole, however, because of the casted solid clot, CSF drainage was not successful, therefore we removed the old right frontal external ventricular drainage tube and we inserted a new one.

[30]        Following this procedure, the CSF and the EVD tip were sent for cultures and sensitivity to ID for the first time, in order to investigate further if there was an infection since Mark kept being febrile.

[31]        On December 21, Mark was doing better, and the level of CSF drainage was lower. ID had not yet provided the results of the cultures, and Atkinson left on that day for the Christmas break vacation. He would only be back at the JGH on Saturday, December 28.

[32]        On December 22, Manuel noticed a serious deterioration in his son’s condition. For the first time, he thought that somebody had “screwed things up”, since he was told that Mark was now in a “coma vigil” or an akinetic mutism state.

[33]        Obviously, Atkinson did not partake in the meeting with Mark’s parents on December 24, when it was decided to attempt to clamp the EVD, to see how Mark tolerated cessation of drainage for a 24-hour period and then to perform another CT scan on December 27, 1996. Maleki told Manuel during that meeting: “I wouldn’t try too hard to save Mark”.

[34]        In keeping with this plan decided at that meeting, the EVD was clamped on December 26, but Mark’s neurological state did not change. The ICP was lower, but Mark still needed some drainage. The CT Scan of December 27 showed that following the clamping, the ventricles in his brain had become bigger. Despite that finding, it was decided to remove the EVD on December 28, 1996, and to monitor Mark’s neurological status closely with another CT scan to come. If drainage became indispensable, then they would insert a VP shunt, a quasi-permanent apparatus which drains CSF to the peritoneal cavity. This device provides many advantages compared to an EVD given that it is internal, more stable and permanent, the risks of infection are lower, and the patient does not have to support an external collecting bag and can accordingly move freely.

[35]        On December 28, Manuel spoke with Atkinson upon his return. He understood that the latter was from now on in charge of his son. Atkinson formally denies that he said that; as a resident he could not be in charge of anybody. He was only working in support of other physicians. Moreover, on December 28, Mark was still in the ICU and therefore the ICU was still responsible for this patient. Nonetheless, on that date, Atkinson had said to Manuel that if the ventricles did not go down, then a VP shunt should be performed in about one week. That was the first time Manuel had ever heard of that procedure. He admits that Atkinson had explained it but he did not discuss the therapy to come, the surgery itself or the follow-up.

[36]        That same day, Atkinson removed the EVD. This two-minute standard procedure was done at the patient’s bedside. He then sent a CSF specimen and the tip of the removed EVD to the ID. Also that day, ID provided the results of the cultures taken on December 20. They came back negative for CSF and showed only light staph growth from the drain tip.[6] Because the CSF was clear, the treating team felt that this was most likely a sign that the tip of the drain had otherwise been contaminated without there being an infection.

[37]        On December 29, Atkinson wrote in the chart :

Neurologically no change with drain out X 24 hours

Will repeat CT early in week to assess need for shunt but probably will be elective issue as pt stable unshunted

unclear whether VP shunt would improve neurological outcome

Also: CSF from yest. (yesterday) growing staph. but no sig. (significant WBC in CSF) =>  contaminant

[38]        As for the culture taken on December 28, it showed serratia on the EVD tip[7] and staph epi in the CSF.[8] Both Atkinson and Maleki did not believe that there was an infection because of the low count in white blood cells, which is not compatible with an infection diagnosis. Moreover, Mark was already on antibiotics. Nevertheless, ICU decided to add prophylactically intravenous Vancomycin to better treat any possible infection of CSF, in case such an infection was actually present.

[39]        On December 30, Mark’s mother requested, from Maleki, aggressive treatment, notwithstanding the prognosis which was already very guarded and although her son’s neurological status had not changed. Therefore, the December 24, 1996 plan was to be implemented. There was the possibility of not doing anything and leaving everything as is, given that there was no acute hemorrhage or acute hydrocephalus and neurologically there wasn’t much to expect but, in view of the family’s position, treatments were to take place, as Maleki wrote in the charts on that day:

Neurological status has not changed. He is breathing on his own with tracheostomy. Eyes open and does not follow any commands. Remains with a spastic quadriplegia. I have talked again to the mother. She wants us to continue aggressive treatment even though prognosis for reasonable neurological recovery remains very guarded. Plan: follow-up CT within the next few days. May need shunt if ventricles get bigger. [9]

[40]        On December 31, Mark was moved from ICU. He did not need constant monitoring as he had a PEG feeding tube, did not have to support the EVD and was breathing on his own without any mechanical aid. After a day in another section of the hospital, Mark arrived at the neurosurgical ward.

[41]        At that moment, neurosurgery became in charge of Mark. He was regularly followed-up by the resident (Atkinson until January 13, 1997) and all of the department’s staff, who in turn reported to Maleki, the treating physician, who was ultimately responsible for the care of the patient. Atkinson explained all this to Manuel but the latter understood that Atkinson would from then on be totally in charge of his son. These miscommunications and misunderstandings were partly due to the fact that the interactions with the family were always emotional and difficult, as Mark’s parents were distressed for obvious reasons.

[42]        There was some improvement on the neurological side, either due to the past EVD or the passage of time. The new culture results were not available yet. The central fever was still suspected because despite massive acetaminophen dosage, use of cooling blankets and antibiotics, Mark was still febrile. He was placed in an isolation room[10] for serious infections. This was decided by the nursing department.

[43]        On January 3, a sputum specimen was sent for culture and sensitivity tests because Atkinson was still looking for other sources of infections. Collapse of the left lower lobe of the lung was noticed and the CT scan showed that the ventricles had gotten bigger, prompting the need for a VP shunt. Even though in the CT scan report, received only on January 7, the radiologist wrote that the situation remained unchanged, both Atkinson and Maleki (and even Plaintiffs’ expert Dimancescu) determined that the ventricles had become massive.

[44]        Although Atkinson expressed concerns to Maleki regarding potential infections, and suggested to proceed to a lumbar puncture first and to await the ID results, Maleki took the decision to proceed with a bilateral VP shunt on the next day. He feared that in Mark’s situation a lumbar puncture with an uneven ICP, could cause a subdural hematoma and eventually a cerebral herniation which in turn, can lead to respiratory arrest because of brain collapse. He was also convinced that even if he couldn’t measure it, ICP was dangerously high because the ventricles had become bigger. Finally, as the antibiotics treatment was already in full force (Vancomycin, both orally and intravenously and Ceftriaxone), pneumonia and gastric infections were being treated and did not represent a contraindication to the VP shunt. He thought that the staph bacteria found in CSF was only a contaminant and moreover, there was always the suspicion that the fever was central.[11] As for the CSF, it is true that staph bacteria were found but with low white cell count and with the antibiotics, infection was unlikely. Finally another EVD was not an option anymore because it is only a temporary measure and the end goal of a drain installation is either to remove it or to shunt.

[45]        In conclusion, Maleki judged it to be “safe enough” to proceed with the VP shunt. Whatever the ID results were to be, Maleki testified that “this would not change our plan of treatment”, as that report could only help determine if the prescribed antibiotics were right or if they needed to be changed.

[46]        After this discussion, on January 3, Atkinson presented Mark’s parents with a consent form allowing the treating team to perform a VP shunt. The parents were not convinced at first, but Atkinson insisted and discussed the potential risks, as he noted that day in the clinical record :

VP shunt on emergency list

1-2% of hemorrhage

1-2% of infection

very little chance of recovery with shunt or without, but will shunt to give optimal chance

family understands and consents[12] (sic)

[47]        Because of the enlarged ventricles, this was a relative emergency, category 3, and that was why it was done on Saturday and not on a weekday, which is usually when elective surgeries were performed.

[48]        After the VP shunt, Mark’s situation improved in his father’s view. He could do certain physiotherapy exercises and retrieve a normal sleep/wake cycle which had been absent.

[49]        Then, Mark’s state deteriorated. On January 5, the white blood cell count was higher and the full results came back from ID on January 7. It showed a “gram+” bacteria in the CSF, meaning that the shunt was probably infected. Atkinson explained the situation to Mark’s parents. He also mentioned at that point that maybe it was not doing Mark a favor to keep him alive because of the damage that he sustained at the initial hemorrhage.

[50]        Still, Mark’s imagery status improved, as observed later on the CT scan of January 10, 1997, which showed reduction in size in all ventricles. Although there continued to be a high white blood cell count in the CSF, the VP shunt was obviously working and Mark was afebrile.

[51]        On January 10, 1997, the final meeting between Manuel and Atkinson went badly as the latter informed the father that he was leaving for another hospital and that Manuel will be “abusing someone else” from now on. It seems that with time, and for obvious reasons, Manuel has become unpleasant and even aggressive in his interactions with the treating team.

[52]        On that same day Manuel met with Drs Maleki, Schondorf (an intensivist) and Melmed (a neurologist) to discuss the future course of action. He testified that the physicians did not agree as to whether the VP shunt needed to be removed. Maleki’s then contemporary notes in the clinical record state the following :

We had reunion with the family in the presence of Dr. Melmed and Dr. Schondorf. Decision: plan - CSF culture (from the) valve. Puncture was done. CSF was xanthochromic. If CSF culture again positive we may consider removing the shunt.

[53]        The next CSF culture, taken January 11, showed once again a very high count in white blood cells. The plan was therefore to continue antibiotics and see if the VP shunt could be kept or would need to be removed.

[54]        Mark was at that point afebrile with one exception on January 9, when his temperature raised to 38.5 degrees, which episode was associated with tachypnea, tachycardia and was resolved when he was suctioned for a mucous plug.

[55]        On January 12, Mark had a seizure and was provided an antiepileptic drug, Dilantin. This was not significant neurologically, according to Maleki, and although informed of the situation, he did not consider necessary to return to JGH. He was of the opinion that the residents and staff were able to manage this kind of occurrence.

[56]        On January 13, Atkinson left JGH in order to continue his residency at the Montreal Children’s Hospital.

[57]        On January 15, the VP shunt was to be removed but Manuel wanted to keep it in place, so the operation was postponed and, instead, a sample of CSF was taken. The results confirmed active meningitis, and on January 17, the shunt had to be removed. No EVD was installed at that time because the CSF infection had to be eradicated first. Moreover, clinically, Mark’s situation didn’t change. It remained the same with or without the shunt.

[58]        On January 19, Mark suddenly became more responsive. He blinked and seemed to understand. It lasted for a few days, but at the end of January, the situation regressed. Manuel then tried to change hospitals and treating physicians. He contacted the Montreal Neurological Hospital in order to perform another shunt on his son, but the neurosurgeon working there did not accept the transfer and only offered to provide a second opinion.

[59]        On February 6, 1997, Maleki wrote the following note in the clinical record:

Eyes open, gaze to the right, does not follow commands, spastic quadriplegia. Patient is going for PEG today. Neurologically unchanged since removal of the shunt.

[60]        On February 21, 1997, Mohr became involved for the first time. He was asked to provide a second opinion in Mark’s case on request from Dr. Melmed, who was the head of the Neurological Science Department.

[61]        Before drafting his note, Mohr reviewed the file and examined the patient. He acknowledged that there were “small but realistic chances of improvement”, but it remained theoretical and it was difficult to foresee what the possible levels of improvement were. He testified that the age of the patient was the major factor why all the treatments were attempted.

[62]        Following his opinion, another VP shunt was installed on February 28, 1997. Mohr did not ask to participate in this surgery. Not only did he not ask to be involved, but at that point in time, Manuel expressly forbade him to approach both his son and the latter’s file.

[63]        Unfortunately, this VP shunt also became infected, although with another type of bacteria in the same staph family. The VP shunt had to be removed on March 14, 1997 and Maleki chose at that time to insert a new EVD despite the CSF infection. He wrote :

Diagnosis: hydrocephalus. Infected CSF (shunt). Procedure: removal of the right VP shunt. Insertion of the new right external ventricular drain.[13]

[64]        This EVD had also to be removed on March 21, 1997, because of recurring infection. Maleki did not write any notes in Mark’s clinical record from March until May 1997 because the situation was stable and a resident was monitoring the patient. In that same period of time, Manuel wanted to have access to all the charts and the clinical record of his son. He was not immediately provided the information and was under the impression that Mohr tried to block his request. On the contrary, Mohr only wanted Manuel to follow the proper procedure to obtain access, as he was informed that Manuel would sometimes retrieve at will portions of his son’s file without authorization, take it out of the hospital and copy it. After Manuel requested the intervention of the hospital ombudsman of the JGH, he finally obtained in the summer of 1997 all the charts. Mohr had never in his whole career, which started in 1977, encountered such extreme hostility from a patient or a parent the way Manuel interacted with him.

[65]        On May 28, 1997, Maleki’s note in the file confirmed that Mark presented the same condition, with or without a shunt, and that some natural drainage of CSF was obviously taking place:

Patient remains in state of coma vigil. Eyes open. Spastic quadriplegic. Therefore neurologically unchanged in spite of ventricular dilatation and hydrocephalus. I do not think that reoperating and inserting another shunt will make any miraculous recovery in this patient who has suffered severe mesencephalic insults due to initial hemorrhage plus possible diffuse brain ischemic and hypoxic insult when he was found at home comatose having difficulty with respiration. I have asked the opinion of Dr. Mohr and Dr. Villemure about this case.

[66]        In July 1997, Maleki confirmed to Manuel that the shunt insertion of January 4, 1997 could have been postponed, but that with or without that surgery the outcome would not have changed. He opined that a new shunt could cause other complications, infections, a subdural hematoma or the collapse of brain and ventricles, as he wrote in the clinical record on July 22 :

Lumbar puncture has not improved his neurological status. CT of 21^st of July 1997: hydrocephalus comparable with the CT done in April and May of 1997, therefore seems that hydrocephalus has arrested. I do not think that another shunt will improve his handicap and it may even cause further complications.

[67]        Mark still presented decerebration at that time. In the summer of 1997, several neurosurgeons from other hospitals in Montreal were consulted by Manuel, but without any concrete outcome or results. He tried to have them perform another shunt on Mark, and even asked Mohr for it to be done. On August 8, 1997, Mohr refused because he was of the opinion that Mark was in a vegetative state. Also, given his state, it was probably very difficult to have a sterile surgery. He had a tracheostomy, a PEG, a catheter, he was in bed for over eight months, his muscles were atrophied, and he had secretions coming from his lungs. He was very vulnerable.

[68]        Although Mohr was not involved in Mark’s case between February and August 1997, he had many interactions with the father and the family. Unfortunately, the father was not only present all the time, which is quite understandable, but he would sometimes intervene inappropriately and disturb and interrupt care.

[69]        In October 1997, four different doctors saw Mark and different opinions were given on the chances of yet another shunt. They were all pessimistic. 

[70]        Dr. Rasminsky stated on October 7, 1997 :

The question arises as to whether his current neurological status is (1) significantly related to hydrocephalus or (2) whether it can be entirely or almost entirely explained by the damage immediately caused by the SAH and hemorrhage into the thalamus. I incline to the latter view. Although previous decompression of his ventricles was achieved by shunting, this had no impact on his clinical state. I believe that a further attempt at shunting would be at high risk of provoking recurrent CNS [central nervous system] infection (with no) significant prospect of improvement in his neurologic status. In essence I think he is locked-in - with significant damages to brainstem and upper midbrain/thalamus secondary to SAH [sub-arachnoid hemorrhage]. [14]

[71]        Dr. Fyles on October 11, 1997, a personal acquaintance of Mark’s mother, noted with respect to Mark’s parents:

I think that the situation has been very clearly explained to them and they are well-informed laymen. (…) They are aware that the amount of improvement is limited and may not be more than was achieved by the first shunt. But they are clinging to the hope that he will be ‘better’. They are aware that the haemorrhage itself caused irreversible damages and that there remains the chance of another haemorrhage. (…) Whatever happens they seem to understand that Mark will be severally handicapped. [15]

[72]        Despite these opinions, Manuel asked Jacques to take charge of his son. She agreed on November 21, 1997. Prior to her decision, Jacques reviewed the clinical and radiological files, examined the patient and discussed with the family what the options were for Mark. She received a letter from Mohr regarding the state of the file. Mohr did in fact draft a letter to Jacques on November 20, 1997. It was highly unusual, but given the context and the aggressive behaviour of the father, he had to document the file. It was obvious for Mohr that there were going to be legal actions taken.

[73]        The parents insisted to have another shunt installed, but Jacques did not think it would be beneficial because of risks involved with someone like Mark who, for almost a year, was bed-ridden, with a tracheostomy, a PEG and a urine catheter. She therefore decided to proceed initially with a lumbar drain to determine whether a shunt could be successful in Mark’s case. She was never coerced or forced by Mohr to do anything. She had extensive discussions with the parents in November and December 1997.

[74]        The lumbar drain of December 5, 1997, showed that the patient could benefit from a shunt. An appreciable improvement in his neurological state was noticed the first day after the surgery. On December 6, Jacques advised Manuel of the good news that Mark was trying to speak and do some exercises. Unfortunately, once again it lasted only a few days. On December 9, Mark’s state had deteriorated. There was no permanent improvement, and the evolution of the neurological situation was uneven. Nevertheless, given the results of the lumbar drain, the VP shunt was installed on December 15, 1997, despite the prognosis which was once again, guarded. Mark’s situation did not evolve favourably. The shunt was not draining and became infected very quickly. It was finally removed on January 31, 1998. Even Manuel found, at that time, that with or without the shunt, the situation was the same.

[75]        Mohr would cover service during Jacques’ absences, which explains his notes in the charts. He never changed his opinion that Mark had already attained early in 1997 a plateau and that a third shunt was contraindicated. His last note in the file was on September 14, 1998. Mark would have been at the JGH neurosurgical ward for almost two years, which was quite extraordinary. Given his neurological state, he was not a good candidate for a rehabilitation center, although a long term care center would be appropriate.

[76]        Mark left JGH in 2000. He went to Maimonides Centre, which he left in August 2015 in order to be at his father’s home. It is Manuel who has been taking care of Mark ever since that day.

[77]        The angiogram which would help to determine the cause of the initial hemorrhage was never done and the cause of this terrible accident, never found.

ANALYSIS

[78]        In order to succeed, Plaintiffs must demonstrate on the balance of probabilities the fault of the Defendants, the damages they sustained and the causation between the fault and the damages.

Faults

[79]        Plaintiffs base their position on the expert report and testimony of Dimancescu, who identified 19 malpractice errors or faults in the treatment of Mark between his admission at the JGH on December 10, 1996, and January 7, 1998. It is worth mentioning that none of them concern any actual performance of a surgery or a treatment but rather their appropriateness and timing, as well as the lack of treatment and adequate actions.

[80]        Both Séguin and Bojanowski who testified as experts in neurosurgery refute Dimancescu’s position regarding each and every one of those allegations. Regarding some of these, they find that it was a judgment call and, although another course of action was possible, no fault was committed.

[81]        As preliminary remarks, three issues are worth noting.

[82]        Firstly, Dimancescu presented as a standard of practice “what most of neurosurgeons would have done”. Although one could sometimes confuse these two notions, this is not the proper statement of the applicable standard in Québec. The  Supreme Court of Canada in its leading case, Lapointe, stated the standard as follows:

The principles which govern professional liability have a long jurisprudential history, but any review of the law must begin with art. 1053 of the Civil Code of Lower Canada and the notion of fault:

1053.  Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

Professional 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.[16]

(Emphasis added)

[83]        This principle was reiterated by the Supreme Court of Canada in St-Jean c. Mercier[17]:

[53] The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances (J.-L. Baudouin and P. Deslauriers, La responsabilité civile (5th ed. 1998), at p. 850).  To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue.  What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances.  The erroneous approach runs the risk of focussing on the result rather than the means.  Professionals have an obligation of means, not an obligation of result.

(Emphasis added)

[84]        Secondly, Dimancescu was found guilty in 2011, and had to purge a six-month suspension ordered by the American Association of Neurological Surgeons for having testified as an expert in a civil trial « with inadequate subject matter knowledge, misrepresenting his credentials to the court, and failing to testify as to the full range of the standard of care resulting in a misrepresentation of the applicable standard of neurosurgical care. ». While this determination does not disqualify Dimancescu to act as an expert altogether, it certainly attacks his credibility.

[85]        Thirdly, Dimancescu in his report and testimony always refers to a “summary file” prepared for him by the previous lawyer for Plaintiffs. This summary was never filed in the Court docket, and it is uncertain what it contained, what exactly was provided to him and what did he in fact review. Dimancescu did not analyse the actual medical record, while Séguin and Bojanowski both did.

[86]        These preliminary comments having been made, the Court will now analyse all the 19 malpractice issues raised by Dimancescu, in the exact same way as they were drafted and as they were presented in his report.

1)         The assessment of Mr. Levine’s fever as “central”, when he was obviously infected. The adoption of a cavalier attitude toward the patient’s serious infections.

[87]        “Central fever” is a differential diagnosis or a diagnosis of exclusion, meaning that there is no other established cause of high body temperature, including possible infections. Dimancescu opines that central fever can only occur after seven to ten days from the initial insult, while Bojanowski and Séguin are not of that view. No scientific articles or textbooks were provided by Dimancescu to support his theory. Also, these three opinions have only relative value and are not convincing, as these witnesses are experts in neurosurgery rather than in neurology, internal medicine or infectious diseases.

[88]        The fever that Mark presented during the crucial months of December 1996 and January 1997 could have had several causes, as for example aspirational pneumonia (confirmed later on by X-rays and sputum culture), intestinal infection, tubes and catheters in the body. Also, Mark could have presented a central fever because of the hemorrhage that happened in the thalamus, while it is undisputed that hypothalamus is the body’s thermostat.

[89]        Also, the central fever was never an actual and confirmed diagnosis but rather a suspicion, in view of the inconsistencies in culture results and other symptoms. Above all, Mark was treated intensively with antibiotics since his admission to the JGH. On December 11, he was administered Cetriaxone, then Clindamycine. On December 14, Mark started Erythromycine. Later that day, a first suspicion of the central fever was made in the clinical record by an ICU physician. This seems understandable as Mark was febrile and went up to 39 degrees, and this despite not only receiving antibiotics but also massive doses of acetaminophen (up to 1g/4hrs) and the application of cooling blankets. On January 17, an ICU progress note underlined again that the fever was central. From that point on, it is the ICU intensivists who would suggest that diagnosis.

[90]        Nonetheless, the antibiotic treatment continued. On December 23, C-difficile, causing diarrhea, is treated with Flagyl. On December 29, ICU started Vancomycin orally for “possible CSF infection”.[18] On January 3, Mark is being given Vancomycin both orally and IV. Finally, Maleki wrote on 31^st of January 1997[19]:

His last LP does not seem to be infected. His repeated blood culture had been negative. I agree that intermittent fever could be central due to the derangement of the autonomic nervous system (associated with episodes of perspiration and respiratory changes). Therefore I agree to hold off repeated septic work-up.

[91]        In view of all the evidence, the Court comes to the conclusion that a central fever was among the possible explanations. The Court does not see any cavalier attitude vis-à-vis the situation as antibiotics, which is the only treatment, were prescribed and monitored very early on. This is certainly not a fault or medical error.

2)         The apparent failure to send CSF samples for testing during the period of time that the first drain was in place.

[92]        The period in question is December 10, until December 20, 1996. Dimancescu finds that CSF should have been tested as soon as possible. He does not explain in any convincing way why, in this particular instance, this should have been done.

[93]        The Court notes firstly, that there were no indications at all that Mark was infected upon his admission at the JGH. Yet, Ceftriaxone was already started on December 11, and this, because one of the priorities was to keep Mark normothermic, with antibiotics, cooling blankets and acetaminophen. Other antibiotics followed.

[94]        Secondly, Séguin and Bojanowski are of a different view. This Court accepts their opinion that recognized standards of practice did not require the CSF to be tested by ID at that point of time. In addition, Bojanowski testified that taking samples of the CSF requires opening the drain, which itself constitutes an additional risk of infection. Therefore, this was not a fault because there was no indication that the CSF was infected, and even if it was, the antibiotics were already being given to Mark, rendering any additional testing during that period superfluous.

3)         The attempted drain change surgery at 10 days post-injury, despite the fact that the CT scan had shown blood-clotting in the area of the proposed new drain site… and despite the fact that drain discontinuation represented the best course of action.

[95]        The evidence shows and even Dimancescu agrees that, at the time, prophylactic drain changes at relatively short intervals were common and viewed as being a useful step to prevent infection. Also, the timing was appropriate, since the ICU physicians proceeding with tracheostomy, offered to Maleki and Atkinson to remove the EVD.

[96]        The change of sides in the brain was criticized by Dimancescu. He considered it a fault. However, Maleki along with Séguin and Bojanowski presented a reasonable and convincing explanation. First, there was a legitimate concern flowing from the fact that the left ventricle remained dilated, whereas the right ventricle was much smaller. Trying to drain the left ventricle directly was therefore a logical choice. Second, the experts explained clearly that it is expected for blood to become liquefied ten days after the initial hemorrhage, which meant that it was quite proper attempt changing the drain to the left side.

[97]        As for the allegation that the drain should be discontinued altogether, this is just not what the actual situation was. Atkinson’s notes on December 18 demonstrate that drainage was still very much needed:

ICP drain => functions well

continues to drain bloody CSF

under high pressure

totally drain dependent

=> continues to drain large amt. (amount) of CSF with drain being raised to reduce drainage and subsequent increase in ICP[20]

[98]        Accordingly, it is clear that discontinuing the drainage was not an option and obviously could not constitute the “best course of action”. The Court must conclude that neither of the three concerns, either individually or together, constitute medical malpractice.

4)         The apparent failure to send a CSF sample for testing during the period of time that the second drain was in place.

[99]        This reproach is not absolutely correct in fact. The EVD tip and CSF were sent for testing to ID on December 20. It was then reasonable to at least await the results.

[100]     After that date, the neurological situation did not change, antibiotics were given, and the treatment continued. There seems to be no specific reason to test CSF again. This is even more obvious when, on December 24, the treatment plan was to remove the EVD altogether. From that perspective, there was no need whatsoever to verify if there were other infections active in the CSF. Finally, all the reasons provided by Séguin and Bojanowski as regards point number 2 apply here as well. The Court must conclude that this is not a fault on behalf of any of the defendants.

5)         The repeated discussions about performing a shunt on an obviously infected patient.

[101]     The mere fact of having discussions cannot represent medical malpractice. On the contrary, this is quite proper and conforms with the obligation to present the options to Mark parents and obtaining a valid consent. That is why, on December 24, Mark’s parents discussed this situation with the treating team. The clinical record indicates as to parents’ opinion on the proposed plan: “They understand and agree”[21].

[102]     The Court heard that Dimancescu is of the opinion that shunts and infections are incompatible and shunting an infected patient always constitutes a fault. This assertion is contradicted by Séguin and Bojanowski. They agree that in an ideal situation, a patient in whom a VP shunt is placed should be free of infection. However, Mark’s situation was particularly difficult, in that there was little hope that he would be entirely free of infection in the short term. Despite that, the evidence shows that this hydrocephalus needed to be treated, failing which his condition could be aggravated and his long-term prospects could be compromised. In such a case, it is a balance between benefits and risks, preferring a lesser risk and danger to the patient. The priority here was the ICP, even if it meant to shunt on an infected patient.

[103]     Moreover, infections are not all the same. The Court understands from the experts’ reports and testimonies that infections not involving the central nervous system do not represent a contraindication to a VP shunt. At the relevant time, in the beginning of 1997, there was not a confirmed infection and the consensus amongst the treating physicians was that the positive results were most probably due to contaminants.

[104]     Finally, the Court prefers the testimonies of Séguin and Bojanowski who state that the position requiring that an infected patient should never be shunted is not a proper neurosurgical standard, neither in 1997 nor today. Their opinion seems quite more reasonable and likely as well. In conclusion, this is not a fault either on behalf of any Defendant.

6)         The failure to carry out and await negative results of the four standard precautionary tests prior to the January 4, 1997 shunt.

[105]     Firstly, notwithstanding the radiologist report, Maleki, Atkinson and even Dimancescu (who saw the film of the CT Scan of January 3, but which is unfortunately not available anymore) all agree that the ventricles became bigger, if not “massive”. ICP had to be lowered and the CSF evacuated. The drain or the shunt were, therefore, the appropriate course of action.

[106]     However, Dimancescu states that no shunt should ever be applied if even one of the results from the four tests for blood, CSF, lungs and urinary tract, is positive for infection. Both Séguin and Bojanowski state that there is no such rigid, dogmatic rule and that the proper standard would have been an approach which gives proper weight to all relevant factors. Although the risk of infection did transpire, it cannot be concluded that this should have prevented the procedure taken in the case at hand.

[107]     It is true that both Séguin and Bojanowski stated that they would rather proceed in such a situation with another EVD, but this does not mean that shunting constitutes a fault. The Court finds that it is just another course of action, both the EVD and the shunt being valid options. What seems, on the other hand, to be the least beneficial option is the one suggested by Dimancescu: waiting to cure all the infections before proceeding with a VP shunt. This approach could be quite dangerous given that the natural drainage of the CSF was lacking and that the ventricles had become massive in only a few days.

[108]     Finally, the VP shunt inserted on January 4, 1997 was certainly useful. It was bilateral and procured reduction in the size of both the left and the right ventricles. Also, Mark’s neurological state improved for a few days. In sum, the insertion of the shunt cannot constitute a fault. The decision to proceed with a VP shunt as opposed to a drain was a judgment call, and such a finding does not amount to medical malpractice when the treating physician has a choice between different treatments. Even though both Séguin and Bojanowski declared that they would have acted differently, they both admit that another course of action was quite viable. In conclusion, this could at most amount, in hindsight, to a questionable judgment call on behalf of Maleki but still a judgment call only (which in any case did not cause any damages, as explained below). The Supreme Court of Canada has decided on that very issue in Lapointe[22]:

Both doctrine and case law emphasise that medical professionals should not be held liable for mere errors of judgment which are distinguishable from professional fault.  According to Hyde J. in X. v. Mellen, supra, at p. 406:

The surgeon is, certainly, not to be judged by the result, nor is he to be condemned for a mere error in judgment.  That error however must, as Rand J. says in Wilson v. Swanson [[1956] S.C.R. 804, at p. 812], be "distinguished from an act of unskilfulness or carelessness or due to lack of knowledge".

This approach was upheld by this Court in Martel v. Hôtel-Dieu St-Vallier, [1969] S.C.R. 745; see also Cloutier, supra, at p. 721.

Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories.  As expressed more eloquently by André Nadeau in "La responsabilité médicale" (1946), 6 R. du B. 153, at p. 155:

[TRANSLATION]  The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects.  They may only make a finding of fault where a violation of universally accepted rules of medicine has occurred.  The courts should not involve themselves in controversial questions of assessment having to do with diagnosis or the treatment of preference.

Or, as summarized by Brossard J. in Nencioni v. Mailloux, [1988] R.L. 532 (Sup. Ct.), at p. 548:

[TRANSLATION] . . . it is not for the court to choose between two schools of scientific thought which seem to be equally reasonable and are founded on scientific writings and texts....

7)         The failure to await the reply of the Infectious Diseases Dept. to the consult of January 3, 1997.

[109]     The precipitation to proceed on January 4, 1997 without the ID results was justified by the CT scan of January 3. Maleki and Atkinson had no way to measure the ICP, but they knew that the hydrocephalus had become quite important and even dangerous, after the EVD had been removed one week earlier. Once again, it was a judgment call to proceed on the next day as opposed to the day following or even in the following week. It was still a relative emergency.

[110]     It is certainly not proven that this procedure was done on January 4 in order to simply accommodate Atkinson and allow the latter to perform this procedure, as Plaintiffs claim. Atkinson did not need it to do the shunt because, first of all, he was not leaving the day after but instead 10 days later, second, because he had already inserted shunts previously during his residency and, finally, that his next rotation in pediatric surgery at the Montreal’s Children Hospital  would consist of 40% of surgeries being shunts. For all these reasons this allegation must fail.

[111]      This being said, the only specimen sent to ID on January 3 was sputum. This only related to microbiological investigations involving respiratory infections and not with the CSF. Therefore, the only additional information which could have become available from ID would have been to confirm pneumonia for which Mark was already being treated by antibiotics, or to suggest change in antibiotic. The ID response as regards the sputum, would not have confirmed an infection of the central nervous system. In brief, this cannot constitute a medical fault either.

[112]     The real question here pertains to consent. It was clearly not an informed one since Atkinson recognized that the figures he provided to the parents of 1% to 2% were incorrect because those percentages would apply only under perfect conditions. In Mark’s case, at that stage, the risks of infection could have gone up to 10% and perhaps even higher[23] because of the pneumonia, the catheters etc…

[113]     Manuel stated that he would have refused the surgery if the risk of infection had been presented to him as being in the order of 40-50%. Firstly, this is not an accurate assessment of the risk as established by the evidence. Secondly, it is not enough for Manuel to subjectively affirm that he would not have consented if the risks were correctly presented and assessed. This statement of refusal of consent must be considered in keeping with the subjective/objective test set forth in the leading case of Parenteau c. Drolet, in which justice Baudouin stated the following :

La responsabilité civile du médecin n'est toutefois pas automatiquement engagée de la seule constatation d'une faute dans le devoir d'information.  Selon notre jurisprudence, il faut alors appliquer un test qui, à mon avis, est essentiellement un test subjectif et consiste à évaluer si la patiente, dans les circonstances particulières, aurait accepté l'intervention quand même, si elle avait été convenablement informée.  Cette évaluation se fait d'habitude surtout en prenant en compte le témoignage du patient.  Ce témoignage doit cependant, pour des raisons évidentes, être évalué avec prudence et d'autres facteurs doivent être considérés.  C'est pour cette raison que souvent les tribunaux se posent aussi la question de savoir ce qu'une personne normalement prudente et diligente aurait décidé en l'espèce, test dit “objectif” mais qui, à mon avis, s'attache essentiellement à la crédibilité de ce témoignage.  Ce test objectif ne se substitue donc pas au test subjectif.  Il ne fait que le compléter.

Je suis donc loin d'être sûr, comme on nous l'a plaidé, qu'il existe véritablement, au sein de notre Cour, deux écoles distinctes sur la question. Je pense plutôt que le test subjectif est désormais bien reconnu. Toutefois en l'absence d'autre preuve que le témoignage de la victime, venant, après coup, affirmer qu'elle n'aurait jamais consenti, notre Cour se demande, pour évaluer sa crédibilité, quelle aurait été la conduite d'une personne raisonnablement prudente dans les circonstances (test objectif). [24] 

[114]     More recently, the Court of Appeal stated this principle in M.G. c. Pinsonneault, as follows:

[148]     L’intervention ou le traitement médical suit le diagnostic posé. Il a généralement pour but de soigner ou de soulager le patient. L’obligation du médecin, dans le choix et la mise en œuvre de l’intervention ou du traitement, en est une, ici encore, de moyens et non de résultat. La faute peut résulter d’un mauvais choix d’intervention ou de traitement ou du fait que ce dernier n’a pas été administré avec la prudence et l’habileté raisonnable, compte tenu des circonstances.

[149]     La responsabilité civile du médecin découle des principes de la responsabilité civile ordinaire. Elle est engagée si la preuve convainc le tribunal qu’il n’a pas adopté un comportement conforme à celui qu’aurait eu un médecin prudent et diligent placé dans les mêmes circonstances. Le critère permettant de déterminer l’existence d’une faute est donc celui du médecin normalement prudent et compétent, qui agit conformément aux standards généralement reconnus dans la profession et la faute peut en être une d’action ou d’omission.[25]

                                                                                                  (References omitted)

[115]     In applying this test to the case at hand, the Court is of the view that, had the actual risk of over 10% (or even 40%) been presented to Mark’s parents on January 3, 1997, they would nevertheless have consented to proceed with the shunt. Several factors support that conclusion; they expressed a few days earlier that they wanted to continue aggressive treatment, the shunt was the best chance to see any improvement, this benefit outweighed any risks related to potential infection and finally, in December 1997, they consented to the third VP shunt, even when facing much higher risks, including death.[26] In view of all this, the Court must conclude that Defendants did not commit a fault.

8)         The failure to remove the resulting infected shunt upon the suggestion of the Infectious Diseases Dept.

[116]     It became obvious around January 10, 1997, that the VP shunt installed on the 4th was infected and that the antibiotics had not prevented that unfortunate outcome. The treating team was from the outset entertaining the idea of removing the VP shunt for that very reason. Atkinson’s notes clearly contradict this reproach made by Dimancescu. On January 7, Atkinson noted: “Remained concerned about V.P. shunt but pt afebrile”. On January 9, he added:” family (parents) aware that may need to externalize and replace shunt if infection not controllable”, and on January 11:  “cell count suggestive of infection but will await culture => very likely need drain removed” and finally, in his last note in the clinical record on January 12, he concluded: “cultures pending => if +ve then remove shunt”.[27]

[117]     On January 13, the clinical record stated that Mark was on the emergency list for “tomorrow: removal of infected shunt”.[28]

[118]     In fact, it was Manuel who insisted that the VP shunt not be removed. On January 14, the clinical note read that he had affirmed that his son “is not going for OR tomorrow for removal of shunt”[29]. The next day, the Neurosurgery note in the clinical record mentioned the content of the conversation between Maleki and Manuel :

“(…) father mentioned that the patient is improving after insertion of the shunt and decide not to have the shunt removed inspite of infection and prefer to wait on that respect the OR was cancelled” [30] (sic)

[119]     It is Maleki who insisted on having the shunt removed, which ultimately he had done on January 17.

[120]     Finally, there is no evidence that both the infected shunt had caused the seizure on January 12, that this seizure was in fact a symptom of a stroke and that this stroke caused a “crippling” of Mark’s left side. Dimancescu fails to explain in any rational way how he makes the link between the three events: the infection, the seizure and a possible stroke. His conclusion is formally denied by both Séguin and Bojanowski. Moreover, the Court adopts the assertion of Defendants’ experts that, if Mark had sustained a stroke, it would necessarily have shown on the subsequent scans, which it never did.

[121]     In conclusion, there is no fault in regards to this allegation either.

9)         The failure to install an external drain at the time of shunt removal (January 17, 1997).

[122]     Dimancescu opines that the removal of the VP shunt should have immediately been followed by an EVD. Bojanowski disputes that reproach, stating that the ICP was not severe enough, that treatment of the infections would be easier in the absence of an external device and, finally, that putting in an EVD, a simple and quick procedure, could be done any time. There was no change in Mark’s neurological condition that would justify maintaining a drain. Once again, this is a judgment call and Maleki or the treating team are not at fault.

[123]     In fact, the hydrocephalus did not increase and the neurological condition did not deteriorate after the removal of the shunt, notwithstanding the absence of an external drain. On February 6, Maleki noted in the clinical record: “Neurologically unchanged since removal of the shunt.”[31] Therefore, this course of action does not constitute a fault.

10)       The failure to follow-up the patient, culminating with the very severe hydrocephalus that appears on the Feb 16, 1997 CT scan.

[124]     On February 16, Mark sustained a seizure. A CT scan was ordered and showed increased hydrocephalus.[32] Still, the evidence before the Court does not establish the existence of any indications requiring, prior to February 16, 1997, any additional specific treatment. Mark was attended daily by various staff members. The tracheostomy tube, feeding, hygiene, mucus suctioning and occasional fluctuating fever were all cared for in an adequate manner. Mark’s neurological exam was stable, and Manuel even refused to proceed with an EEG test on February 12, 1997.[33]

[125]     Maleki wrote notes in the clinical record on January 31, 1997 and on February 6, 1997, and he testified, and this is not contradicted, that he would not add any notes if there was no change in the patient’s situation. The Court does not have any evidence or opinion that this practice contradicts professional standards or that it constitutes a fault. Since Mark’s neurological condition was stable, nothing else but monitoring the situation and providing comfort were the proper course of action. In brief, there is no evidence of any failure to properly follow-up in this period of time. Nor is there any credible evidence supporting the allegation that the care and treatment provided before February 16 had even partially caused the increased hydrocephalus observed on the scan of that date.

11)       The failure to install an extra-ventricular drain on an emergency basis, so as to immediately treat this very severe hydrocephalus.

[126]     Maleki was immediately informed of the results of the CT scan of February 16, but decided that there would be “no intervention at this point before full discussion with the family”.[34] A VP shunt was initially planned for February 18. But for reasons unknown and not presented to the Court, that procedure was cancelled. The evidence does not provide a valid explanation as to the motive of the cancellation but the clinical record shows that “Mother was upset about this”.[35] A second opinion was then asked from Mohr.

[127]     The latter, after reviewing the file and examining Mark, wrote that there were “small but realistic chances of improvement”.[36] As the CSF specimen taken on February 21, did not show any infection, the VP shunt was then installed on February 28.

[128]     Plaintiffs have not established on the balance of probabilities that this particular delay of a few days constitutes a fault. The CT scan did show enlarged ventricles but there was no neurological emergency requiring that a drain or shunt be immediately installed.

[129]     Even though Bojanowski says that he would have acted earlier, he confirms that it was quite possible for another neurosurgeon, both diligent and competent, to await a second opinion and a clear CSF. In consequence, this does not amount to medical malpractice. In other words, even if a faster response to treat the hydrocephalus was preferable, Maleki’s inaction during a few days does not constitute a fault.

12)       The plan to perform a shunt on a patient who has pneumonia.

[130]     This allegation is in contradiction with the previous one. If there is an urgent need to perform a shunt to avoid a significant threat, which is greater that an infection, this procedure has to be applied to treat the hydrocephalus as soon as possible. As said before at allegations number 5, 6, 7 and 8, it is mostly a matter of performing a risk-benefit analysis. Ideally, the VP shunt would be installed on a patient totally free from any infection. That being said, as was the case here, the Court accepts Séguin and Bojanowski’s opinions as well as Maleki’s explanation, confirming that evacuating the CSF was paramount and had to be done even though Mark was infected.

13)       The performing of a lumbar puncture in the presence of seriously raised intra-cranial pressure (Feb 21, 1997).

[131]     Here, the alleged fault relates to the risks of cerebral herniation. This implies uneven and elevated ICP. Dimancescu considers that ICP was dangerously high because of the hydrocephalus. Bojanowski refutes that position, mainly because of the time that had elapsed since the initial hemorrhage. In the absence of an EVD or a VP shunt, there is no way to quantify the actual ICP. Enlarged ventricles were certainly a symptom, but this does not provide a measurement of ICP. The Court adopts Bojanowski’s opinion and concludes that the decision to perform lumbar puncture was correct and does not constitute a fault. Moreover, the lumbar puncture was useful, if not necessary and did not create any hematoma or herniation.

[132]     It is alas surprising that the contraindication of the lumbar drain in Dimancescu’s report is based mainly on the risks of cerebral herniation in relation with the uneven and high ICP, which is the very same reason used by Maleki for not performing a lumbar puncture on January 3^rd, 1997. Yet, Dimancescu disregarded that as not being material at that time, which the Court finds perplexing. It was well explained by Bojanowski that the herniation risks were much lower in February 1997 because, by then, there was no longer an acute hydrocephalus.

14)       The neglect of Mr. Levine for 8 months (April to November 1997) during which time he is left to lie with enlarged ventricles.

[133]     After the VP shunt was removed because of a new infection of the central nervous system, the situation remained stable. Once again, JGH would care for all of Mark’s needs. Maleki put only 3 notes in the clinical record, on May 28, July 15, and July 22, essentially to confirm that nothing had changed.

[134]     Nonetheless, extensive consultations took place, and another lumbar puncture was performed in July 1997. It neither improved the neurological status nor had any impact on the hydrocephalus which remained the same, as Maleki noted on July 22:

Lumbar puncture has not improved his neurological status. CT of 21^st of July 1997: hydrocephalus comparable with the CT done in April and May of 1997, therefore seems that hydrocephalus has arrested. I do not think that another shunt will improve his handicap and it may even cause further complications.[37]

[135]     All the other neurosurgeons who were consulted (Mohr, Rasminsky, Pokrupa, Fyles, Richardson) opined against another shunt. Bojanowski stated likewise in his expert testimony. The Court finds, therefore, that the lack of active procedures and treatments during this particular period does not constitute a fault.

15)       The failure to take the necessary steps to diagnose the patient, resulting in the erroneous assessment that the patient was in a coma.

[136]     Here Dimancescu is challenging the very diagnosis put forward in this file by all the physicians involved. This proposition is without merit. The Court must rely on the testimony of all four Defendants, physicians who actually examined the patient, as well as on the content of the clinical record. This represents the most probative evidence.

[137]     In the leading case Ares v. Venner, the Supreme Court of Canada confirmed the    important evidentiary weight of a medical record, quoting the following passage of Wigmore:

1707. Hospital Records. The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principle. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy. There is a Necessity (ante, 1421); the calling of all the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a Circumstantial Guarantee of Trustworthiness (ante, 1422); for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the Court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.[38]

[138]     This principle has been confirmed constantly ever since, as observed by the Court of Appeal in Pagé c. Henley (Succession de):

[54]        Au regard de sa force probante, le dossier médical constitue un élément de preuve déterminant. Il fait preuve prima facie de son contenu et des faits qu’il relate ainsi que l’a décidé la Cour suprême dans son arrêt Ares c. Venner. (…) [39]

[139]     Therefore, the Court adopts the Defendant’s position, concluding that there was no error and no fault in the diagnosis. During the relevant time, the diagnosis was never challenged by any health professional. Dimancescu’s opinion in this regard is speculative and inaccurate, and does not reflect the facts of this case.

16)       The suggestions (August 8 and November 22, 1997) that Mr. Levine should not or perhaps should not receive a shunt, when throughout this entire period he obviously requires a shunt.

[140]     This is a repeat of allegation No. 14 and the same analysis applies.

[141]     Moreover, the second event alleged as a fault by Plaintiff’s expert occurred during the time Jacques was the treating physician, and since the action against her was discontinued, this issue is moot with respect to her.

17)       The performing of a contra-indicated lumbar drain on December 5, 1997.

[142]     Mohr and Maleki had nothing to do with this decision. Moreover this particular event occurred during the time Jacques was the treating physician and since the action against her was discontinued, this issue is moot .

[143]     As already mentioned in relation to allegation No. 13, the contraindication of the lumbar drain in Dimancescu’s report is based mainly on the risks of cerebral herniation in relation with the uneven and high ICP, which were the very same reasons used by Maleki for not performing a lumbar puncture on January 3^rd, 1997 and that Dimancescu disregarded as not being material at that time.

18)       The failure to perform a follow-up CT scan on or about December 22, 1997.

19)       The failure to remove the shunt following the January 7, 1998, CT scan, despite the fact that the shunt was malfunctioning and the high likelihood that the shunt was infected.

[144]     Once again, Mohr and Maleki did not have anything to do with these particular decisions. Moreover, this event occurred during the time Jacques was the treating physician, and since the action against her was discontinued, this issue is moot.

 

Conclusion as to the alleged faults

[145]     Plaintiffs contend that all “these malpractices should be considered as a whole and not one by one because it’s their accumulation that led to the damages and not each of them separately”. They base that assertion on paragraphs 109-115 of the Cloutier-Cabana decision.[40] This argument is not founded. In Cloutier-Cabana, medical malpractice was clearly established and the accumulation of faults lead Justice Courville to determine the part of each physician’s responsibility. This particular authority does establish a principle that the accumulation of actions which do not individually constitute a fault can somehow, or under certain conditions, become fault and constitute medical malpractice. Here, 19 non-errors do not amount to professional malpractice.

[146]     Also, Dimancescu contradicts himself on certain occasions; sometimes he would have proceeded with a drain/shunt, sometimes he would have not, always in opposition with what the treating team has decided. The best example is the lumbar puncture/drain procedure. He insists that it should have been done before the VP shunt in January 1997, and yet states that it was contraindicated on December 5, 1997, both seemingly for the same reason, which is the risk of cerebral herniation in case of uneven ICP.

[147]     As regards Atkinson, he was a resident without any decisional power with respect to treatment. Not one of his actions is alleged to constitute a fault as far as their execution or quality are concerned. Maleki and later Jacques, were the only ones in charge of the patient as treating physicians. Therefore, Atkinson has not committed any professional faults.

[148]     All the alleged faults in relation to Mohr’s actions are not proven by the balance of probabilities either. Manuel’s allegations with respect to his conduct are in fact contradicted by the request he made himself in August, asking that Mohr take charge of Mark, which Mohr never accepted because he could not offer anything more or anything better than Maleki.

[149]     Manuel’s suspicion that Mohr was secretly directing the case as the head of the department is absolutely not supported by the evidence and, moreover, there is no motive for Mohr to have done so. Finally, he had no reason whatsoever, especially given the hostility of the family, to oppose Mark’s transfer to another institution. He qualifies that allegation as “impensable, hors du rationnel” and the Court agrees - Mohr had every reason to allow such a transfer.

[150]     Mohr had no authority over the other neurosurgeons and as far as the training of residents is concerned, he just made sure that the resident was involved with the treatment of the patient, with the evaluations and that their exams are being properly administered. All the physicians heard by the Court, Atkinson, Maleki and Jacques, confirm that Mohr had nothing to do with this case, the choices they made or the actions they took. Manuel’s suspicions are not supported by the evidence.  

[151]     The Court cannot accept the testimony by Manuel that Mohr had influenced the order of surgeries in the operating room. Not only does Mohr deny it categorically, but above all, the surgery list was confidential and there was no way for anyone to know in advance what the order in the operating room would be. The evidence shows that the most difficult and the longest surgeries - which would certainly not include inserting a shunt - were performed at the beginning of the day. Moreover, if there are any emergencies, the order of surgeries might be changed to accommodate procedures that cannot wait.

Consent

[152]     Finally, Plaintiffs allege the absence of consent to perform certain treatments and tests, as well as the presence of a false annotation by Maleki on the consent form.[41]

[153]     The specific consent forms for surgeries were either signed by the parents or the verbal consent was obtained from one of them.

[154]     Mark was clearly unable to consent and so it had to be provided by a third person, including his parents. Also, Mark was 17 years old at the time, so consent could be provided by someone holding paternal authority pursuant to Article 14 of the Civil Code of Québec (C.C.Q.), which reads as follows:

14. Consent to care required by the state of health of a minor is given by the person having parental authority or by his tutor.

A minor 14 years of age or over, however, may give his consent alone to such care. If his state requires that he remain in a health or social services establishment for over 12 hours, the person having parental authority or tutor shall be informed of that fact.

[155]     Both parents exercise parental authority together in accordance with Article 600 C.C.Q. :

600. The father and mother exercise parental authority together.

If either parent dies, is deprived of parental authority or is unable to express his or her will, parental authority is exercised by the other parent.

[156]     Finally, each parent acting alone can be presumed, by third parties in good faith, to be acting with the consent of the other:

603. Where the father or the mother performs alone any act of authority concerning their child, he or she is, with regard to third persons in good faith, presumed to be acting with the consent of the other parent.

[157]     This presumption has not been rebutted in the case at hand. Manuel’s allegations are without merit in these circumstances, as both parents were working hand-in-hand for the well-being of their son. They never advised JGH that they needed to be consulted individually. The evidence does not show any conflict or even discrepancy between parents’ positions. Plaintiffs are not arguing otherwise.

[158]     Finally, it is not true that consent of both parents was required. That is incorrect in law. In that context, the physicians were not asked or told to seek consent from both parents.

[159]     This determination is to be made in accordance with the test established in the leading case Parenteau c. Drolet, discussed above in paragraph 113, and M.G. c. Pinsonneault, where the Court of Appeal stated:

[143]     Le droit à l’autonomie, à l’intégrité et à l’inviolabilité de la personne humaine et son corollaire, le droit de toute personne de ne pas être soumise à des soins sans son consentement, sont notamment consacrés aux articles 10 et 11 C.c.Q. De ce droit découle l’obligation qu’a le médecin d’obtenir le consentement éclairé de son patient avant de poser un acte médical sur sa personne, ce qui implique une obligation de renseignement sur l’intervention ou le traitement médical envisagé. Permettre au patient d’accepter ou de refuser une intervention ou un traitement médical en toute connaissance de cause constitue la finalité du devoir de renseignement.

[144]     Ce devoir de renseignement est une obligation de moyens dont l’intensité varie en fonction de plusieurs paramètres, telles l’urgence de la situation, la nécessité ou non de procéder à l’intervention ou encore la situation particulière du patient et ses questionnements. Les renseignements attendus du médecin portent, notamment, sur le diagnostic, la nature et l’objectif de l’intervention ou du traitement, les effets escomptés, les risques encourus, les choix thérapeutiques et les conséquences d’un défaut d’intervention ou de traitement. Ce sont les risques statistiquement significatifs, probables, prévisibles et connus qui doivent être divulgués, de même que les risques statistiquement peu élevés, mais dont les conséquences sont très importantes.

[145]     Le défaut d’obtenir le consentement éclairé du patient ou de l’informer adéquatement constitue une faute professionnelle. Cependant, la responsabilité du médecin n’est pas nécessairement engagée du seul fait d’une faute au devoir de renseignement. Encore faut-il que le patient démontre l’existence d’un lien de causalité entre le manquement au devoir de renseignement et le préjudice, soit que s’il avait été adéquatement renseigné, il n’aurait pas consenti à l’intervention qui a été pratiquée.

[146]     Cette détermination se fait selon le test de la « subjectivité rationnelle », lequel consiste « à déterminer et à apprécier, en fonction de la nature du risque et de la preuve, quelle aurait été la réponse raisonnablement probable du patient en l’instance, et non de l’homme raisonnable dans l’abstrait […] ». Si le patient démontre qu’il n’aurait probablement pas consenti à l’intervention ou au traitement s’il avait été adéquatement renseigné, alors il importe peu que l’intervention médicale ait été pratiquée dans les règles de l’art, car le médecin répond alors des conséquences de la réalisation des risques non divulgués.

(References omitted)

[160]     In the case at hand, Plaintiffs did not consent to, and sometimes were not even informed of all the CT scans, specimens and sampling and other procedures and examinations that took place. For instance, they were not told about the blood, urine and sputum samples taken on December 28, 1996. These procedures were not explained, the risks and benefits were not declared.

[161]     Defendants believed that there was no need to obtain the patient’s specific consent for such routine and necessary examinations. They allege for instance, that there is an automatic protocol to send CSF specimens and drain tips to the lab upon the removal of an EVD or a shunt, and that they do not have to inform or discuss that with the patient or the parents. Reference was made to the initial/general consent given at the outset of one’s hospitalization that covers all necessary tests and trials (which could include blood and bodily fluids samples, CT Scans etc.). The Court agrees that such a consent may very well apply as long as the risks and benefits of such tests and exams are not material and, therefore, do not require another, more specific consent.

[162]     That said, in the present matter such a general consent does not exist. The clinical record shows that on December 10, 1996, this form indicates “N/A” in the box where the patient is to affirm that “I authorize the professionals of [this] institution to make [all] necessary examination and treatment”.[42] This is quite understandable on the night of Mark’s admission given the gravity of the situation, but the absence of a general consent is far less understandable once the initial emergency has passed. The fact is that all the tests, exams and trials, usually covered by this general consent provided at the admission were, in principle, done without the patient’s or the parents’ consent. It is true that Atkinson testified having talked extensively with and explained everything to the parents, but his involvement ends by January 1997. No evidence was presented on anything done afterwards with respect to what is usually covered by a general consent, except for anecdotal evidence that appears in the file itself, like the EEG exam that Manuel refused, which implies that he was informed and that his consent was sought.

 

[163]     Once the emergency of December 10, 1996 had passed, it was the responsibility of the treating physician to make sure that such a general consent was provided. Here Maleki never did seek it to obtain it during the 11 months he was in charge of Mark. Applying the test of “a prudent and diligent doctor placed in the same circumstances”, it is hard to believe that this consent would never have been sought. The evidence does not show how many patients were under Maleki’s care or how much time he devoted to each one when he attended the JGH once or twice a week. The Court may very well take judicial notice of the very heavy workload a specialist physician may encounter but it seems that there was plenty of time for Maleki to act.[43] He failed to, and this is a fault.

[164]     Defendants argue that, in any case, patients always consent and follow the advice provided by the neurosurgeon. This may very well be, and it is quite understandable. The Court finds nevertheless that this paternalistic approach presented by the Defendants and their experts is a direct affront to the autonomy and the integrity of patients. It is quite plausible that patients would follow whatever these specialists recommend, but in one case out of 100, they may choose not to, and their position must be respected.[44] Their consent must have its intrinsic value. Otherwise, the fundamental rights and freedoms protected by the Charter and the Civil Code of Québec become meaningless. The consent must always be sought and obtained, otherwise the treatments may constitute an invasion of the integrity and the privacy of the patient and even assault.

[165]     Despite this finding, applying the subjective/objective test identified above, the Court concludes that Mark’s parents, had they been explained all the relevant procedures, their benefits, risks and objectives, would have consented to all of the tests, exams and trials, usually covered by a general consent. The evidence shows and especially the experts’ testimony that these tests appear to have been quite reasonable and useful. Moreover, the risks were low, if not inexistent.

[166]     As for the form entitled Consent Form (H.C.),[45] writing “Emergency” in the Section 2. Consent to surgery, as Maleki did on December 20, 1996, when a consent is validly provided, is certainly incorrect because it is just not true. In the case at hand, there was no emergency whatsoever on that date, not even a relative one, and Atkinson had actually obtained a verbal consent from Mark’s mother.

[167]     The Court is somewhat surprised by the view expressed by Maleki, the experts and the defense lawyers to the effect that these consent forms are quite worthless, and that their only objective is to provide access to the operating rooms. It is even more surprising given that these forms certainly provide relevant information, indicate the physicians involved, the procedure about to take place and the space for the patient’s signature. The Court finds that either the forms are worthless and should therefore be abandoned, either they are used and they should be filled out properly and honestly. Writing in these forms whatever the physicians want, even if the note does not conform to reality, as Maleki did, is certainly not appropriate or acceptable. The Court cannot conclude that “a prudent and diligent doctor placed in the same circumstances” would have acted in the same way. This constitutes a fault, albeit administrative, but a fault nevertheless.

Physicians’ remarks and comments

[168]     Finally, Manuel criticizes Defendants for certain comments they made. He was asked from the outset by Maleki if he wanted to donate his son’s body. Maleki also told parents that Mark will remain at the level of a “baby”.[46] Later he was told that they should not try “too hard” to save Mark and that maybe a disservice was being done to Mark by saving his life.

[169]     Atkinson does not deny that last remark. He explains that this type of statement or discussions were held in the context of weighing the benefits and the risks of the situation. Maleki does not really remember all the alleged comments; he answered most of the questions regarding discussions, consent issues and explanations with the parents, by the expression “most likely”. Manuel’s testimony is preferred in this respect.

[170]     It is obvious that even 20 years after they were spoken, all these words and expressions still resonate very strongly and Manuel is still hurt by them.

[171]     The Court understands that neurosurgeons probably deal with life and death questions on a daily basis. Perhaps these issues have become purely a matter of fact for them, but they obviously are not so for their patients and their families on whom they can leave an indelible mark.  While not a fault or incorrect, the terms used as reported by Manuel demonstrate a certain lack of consideration and empathy towards the patient and his family, and can certainly not be praised or admired.

[172]     That said, this Court is not a judge of politeness or savoir-vivre. While certainly unpleasant, these comments and remarks do not constitute a fault leading to responsibility. The Court adopts the comments of Justice Mandeville which, while made in a defamation case, are applicable to the case at hand :

 

[20]        Les tribunaux ne sont pas les gardiens du savoir-vivre ni du bon goût. Il ne leur appartient pas de déterminer si une autre personne pourrait utiliser les mêmes termes mais bien de voir si les propos sont susceptibles de déconsidérer et de faire perdre l'estime de quelqu'un. [47]

Causation

[173]     Although Defendants’ experts differ somewhat as to when exactly the prognosis became clear, not one of them opines that the recovery was probable or even possible. Séguin indicated that if significant improvement had not occurred within a few days, it would have been apparent that the damage to the brain was from the initial irreversible destruction of neurons at the time of the hemorrhage, rather than due to the hydrocephalus.[48] Bojanowski indicated that he would have been prepared to wait longer, perhaps even two months or so, before making a final pronouncement on the prognosis.

[174]     Maleki admits that somehow the higher functions of the brain could have been improved with all the treatments, and this is why all the drains and shunts were attempted. Yet, no one could state how much and when this potential improvement might occur. On December 16, 1996, Atkinson had already noted in the clinical record:

Now 5 1/2 days post hemorrhage with no improvement => outlook continues poor

[175]     The physicians at the JGH agree. As early as December 22, 1996, a neurologist called in for a consult by the ICU, indicated that consideration should be given to changing the level of care from “active” care to “comfort” care, on the basis that it was his assessment at that point that there was little to be gained from further active treatment.[49] Others were prepared to recommend continuing to attempt active solutions and hope for improvement. Maleki himself was certainly prepared to continue, but told the family, on December 30, 1996, that he would do this despite the fact that the prospects for significant improvement were poor (in his words, “the prognosis was guarded”).[50]

[176]     The ppreponderance of evidence certainly favours the conclusion that Mark’s situation was the result of the initial hemorrhage giving rise immediately to the irreversible damage in a critical area situated at the very centre of the brain. His position of “decerebration”, amply documented over time in the clinical record, was a clear indication of a break in the essential connection with higher brain functions, as explained by Séguin.

[177]     The Court has heard no evidence that any neurosurgical procedure or any other medical treatment could have been undertaken to treat the damage caused to the brain by the initial hemorrhage. There is no evidence that, but for any fault, Mark would have had a functional recovery that would have enabled him to resume a normal, autonomous life and regain the ability to be gainfully employed. The elements that Manuel thought as significant are simply not confirmed by the expert testimonies, like, for instance, the wake/sleep cycle which does not demonstrate any material change in neurological condition. The Court concludes that in the present case, the evolution of Mark’s neurological condition, with ups and downs during all the relevant period, was not the result of infections, shunts, drains or the lack thereof.

[178]     This conclusion is in line with the expert evidence, which demonstrates that brain cells, once dead, do not regrow or regenerate. Damage to them is therefore irreversible and permanent. Clinical improvement can sometimes be hoped for neurones which were only “shaken”[51] by the hemorrhage without being destroyed, by treating the hydrocephalus. This was the case here as the treating team applied EVDs and shunts to remove CSF and decrease ICP.

[179]     Moreover allegations of faults numbers 16 (in part), 17, 18 and 19 refer to events posterior to Jacques taking over the responsibility of Mark and as such, are not relevant, given the fact that the action against her was discontinued.

[180]     As for the consent to certain tests and examinations, either lacking or not properly obtained, not only has the Court found already that applying the objective/subjective test, the parents would have consented, but the issue  of consent certainly did not cause any damages to Mark. The scribbling “Emergency” on the consent form by Maleki, on December 20, 1996, had no impact whatsoever on Mark’s condition. Even Dimancescu does not connect any of these matters to Mark’s neurological state, and the Court cannot conclude differently.

[181]     Finally, Plaintiffs’ own expert stated during his examination-in-chief that he is unable to conclude precisely in what situation Mark would be, had it not been for what he qualifies as malpractice:

“Q.       So would you consider the situation of Mark at that time is directly related to all the… what you qualify as malpractices?

A.         Yes, the position of the hydrocephalus was preventing him from potentially improving. It was preventing the brain from functioning properly. Preventing the brain from potentially healing to some degree. So, how much he would have healed and recovered with proper treatment cannot be determined but it can be clearly ascertained that he would have improved much more than what he had done during that period of time.”

(Emphasis added)

[182]     The Plaintiffs have therefore failed to discharge their burden of proof with respect to causation. The Court comes to the conclusion that in reality Mark’s situation has not changed with or without drains/shunts and that the evidence shows that the subtle improvements in his neurological condition were not caused by, and cannot even be correlated with these medical procedures or the lack thereof.

Damages

[183]     The evidence relates only to the prospective loss of earnings, and the parties admit in that respect damages in the amount of $1,326,140[52] with the caveat that it could only apply if causation was proven. It was not. The Court is not convinced and cannot conclude anything as to the capacity and ability that Mark would possess had other treatments or procedures been applied or not applied.

[184]     Although a gap in the proof had been identified and mentioned by the Court[53]  during the hearing regarding all the other aspects of potential damages (moral damages, punitive damages, future care, standard of care, contingencies etc.), Plaintiffs decided not to remedy it with any additional evidence and declared being satisfied with the proof as presented, and this as regards both Mark and Manuel Levine.

[185]     As for the non-pecuniary loss, no expert reports or evaluations were filed by Plaintiffs. Defendants did not contest that Mark sustained this type of damage but were not ready to admit to anything specific.

[186]     The Court has reviewed the medical record and charts in which Mark’s condition is well-documented and saw Mark in the court room. Mark is quadriplegic and has only minimal contact with the environment, being able to slightly move his head and one limb only and responding by monosyllables. His state has been the same since the plateau he attained sometime in 1997. He needs care 24/7 for the rest of his life.

[187]     His condition amounts to the upper limit established by the trilogy of the Supreme Court of Canada,[54] which was $100,000 in 1978. In current dollars at the time of the introduction of the action, that amount would equal to $265,000.[55] As to interest and additional indemnity, no comments or demands were made by either party, even though this case started in 1999 and the trial took place only in 2018. Therefore, had the damages been awarded, they would bear interest since the date of the initial demand letter.

[188]     In conclusion, had faults and causation been proven, the order for damages would have been for the sum of $1,591,140.

Costs

[189]     Defendants declared that they renounced to claim their experts’ fees, should the action be dismissed. For the other legal costs, there is no reason not to follow the rule that the succumbing party pay them[56] and no argument to the contrary was presented.

CONCLUSION

[190]     Plaintiffs have failed to demonstrate by the balance of probabilities that Defendants have committed any professional faults with respect to the treatments and their timing or opportunity. While certain of Maleki’s decisions were a result of judgment calls when other courses of action were available, this does not amount to medical malpractice. The Supreme Court of Canada stated in Lapointe :

As the judgment from Hôpital général de la région de l'Amiante indicates, courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.[57]

[191]     Certain issues regarding consent and forms, as explained above, do constitute professional faults. However, except for the frustration and confusion on behalf of the patient’s father, this has not caused any damage.

[192]     Had the Plaintiffs proved medical malpractice, they did not establish that any of the alleged actions or omissions caused Mark’s current medical state. On the contrary, the evidence shows overwhelmingly that damages were caused by the brain hemorrhage and that they were irreversible. Plaintiffs did not prove either that, given all the proper information, they would not have consented to any procedure that was performed. Nor did they succeed in establishing to what extent Mark’s condition would have improved, failing therefore to justify any damages for the loss of earnings.

[193]     The situation is certainly tragic, and the Court can only sympathize with both Plaintiffs, but Mark’s state has not been caused by medical faults or errors.

FOR THESE REASONS, THE COURT:

[194]     DISMISSES Plaintiffs’ action;

[195]     WITH legal costs, excluding experts’ fees.

	__________________________________ LUKASZ GRANOSIK, J.S.C.
Mtre WILLIAM KORBATLY Attorney for Plaintiffs
Mtre David Everett Platts and Mtre Simon Chamberland McCARTHY TÉTRAULT Attorneys for Defendants Drs. Mohr, Maleki and Jacques   Mtre Mark Phillips and Mtre Josiane Brault BORDEN LADNER GERVAIS Attorneys for Defendant Dr. Atkinson
Dates of Hearing:                                                                                   January 8 - 25, 2018