Supreme Court of Canada
McCormick v. Marcotte, [1972] S.C.R. 18
Date: 1971-04-27
Donald McCormick (Plaintiff) Appellant;
and
Gaston Marcotte (Defendant) Respondent.
1970: October 27, 28; 1971: April 27.
Present: Fauteux C.J. and Abbott, Martland, Judson and Pigeon JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Physicians and surgeons—Malpractice—Negligence—Broken thigh—Specialist recommending insertion of intramedullary nail—Defendant using another method—Permanent partial incapacity—Reasonable care.
The plaintiff suffered a broken thigh and was treated by the defendant who was on the staff of the hospital to which he had been taken. At his request, the defendant called in consultation an orthopedic surgeon who advised skin traction followed by the insertion of an intra medullary nail. The operation which the defendant performed was not the one advised by the specialist. The defendant was not qualified to perform the recommended operation and there is no evidence that he explained to the plaintiff the relative merits of the two procedures. The plaintiff was left with a permanent partial incapacity and sued the defendant, claiming damages for malpractice. The trial judge main-
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tained the action, but his decision was reversed by a majority judgment of the Court of Appeal. The plaintiff appealed to this Court.
Held: The appeal should be allowed.
The plaintiff did not receive medical care of the standard that he had the right to expect. The trial judge has rightly concluded that the plaintiff had discharged the burden of showing that the defendant had been negligent. The test of reasonable care applies in medical malpractice cases as in other cases where fault is alleged.
APPEAL from a majority judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], reversing a judgment of Cannon J. Appeal allowed.
François Lajoie, Q.C., for the plaintiff, appellant.
L.P. de Grandpré, Q.C., and Pierre Sébastien, for the defendant, respondent.
The judgment of the Court was delivered by
ABBOTT J.—The appellant sued the respondent, claiming damages for medical malpractice. The facts are fully set out in the judgments below and generally speaking they are not in dispute. Shortly stated they are as follows.
On August 7, 1960 the appellant, then 29 years of age, suffered a broken thigh as the result of a collision between two automobiles in one of which he was a passenger. He was taken to the Hôpital Cloutier in Cap de la Madeleine and treated by the respondent, Dr. Marcotte who was on the staff of that hospital. At the request of appellant, Dr. Marcotte, who is not a specialist, called in consultation a Dr. Normand, an orthopedic surgeon on the staff of one of the hospitals in the adjoining City of Trois-Rivières.
Dr. Normand advised skin traction followed by the insertion of an intramedullary nail. Appellant was kept in traction until August 22, on which
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date the respondent operated. The operation, however, was not the one advised by Dr. Normand; instead respondent applied a metal plate to both parts of the bone and then put the patient’s leg in a cast. The respondent was not qualified to perform the recommended operation and there is no evidence that he explained to appellant the relative merits of the two procedures.
What happened thereafter is described by Montgomery J.A. in the Court[2] below, in the following terms:
After the operation Plaintiff continued to complain of pain and his temperature began to rise (v. charts, Exhibit P-1, pp. 51 & 52). On the evening of the 31st it reached 101.4°F. This was indicative of infection, though not conclusive. On the 2nd October, Defendant removed the cast and looked at the wound, which appeared to him to be in good condition. He replaced the cast and appears to have dismissed the idea of infection from his mind. Although the Defendant’s temperature was 101.2°F that evening, he permitted him to leave the hospital the following day.
Plaintiff went to his home in Cap de la Madeleine, where his wife took care of him. Defendant does not seem to have attempted to follow his case closely. He was in constant pain and was suffering from profuse sweating spells. No one seemed to have suggested to his wife that she should observe his temperature. When, some days after his return, she called Defendant, he merely prescribed drugs to deaden the pain. (Defendant says he kept no record of the care given to Plaintiff at home). About two weeks after his return home the abscess that had been forming burst. Plaintiff’s wife again called the Defendant, who looked at the wound and seems to have prescribed an antibiotic. About two weeks later, on 4th October, she again called Defendant, and he had Plaintiff brought back to the hospital for further X-rays. These showed that the screws on one side of the break had torn loose from the bone, which was no longer in a satisfactory position. The Defendant put on a new cast and permitted Plaintiff to go home. By this time, Plaintiff had lost all confidence in Defendant and had himself admitted to the Hôpital Ste-Marie, where Dr. Yves Normand took charge.
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Appellant remained under treatment at Trois-Rivières until February 22, 1961, when he was taken to the Montreal General Hospital for further treatment. He was totally incapacitated for a period of nineteen months and it is admitted that he will suffer a permanent partial incapacity of 27.5 per cent.
The test of reasonable care applies in medical malpractice cases as in other cases where fault is alleged. The medical man must possess and use, that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases. Whether or not such test has been met depends, of course, upon the particular circumstances of each case.
The burden was on the appellant to show that the respondent had been negligent. The learned trial judge held that he had discharged that burden and maintained the action in damages to the extent of $41,566.72. That judgment was reversed by a majority judgment of the Court of Appeal[3], Montgomery J.A. dissenting. The appeal to this Court is from that decision and the quantum of damages is no longer in issue.
I am in general agreement with the reasons of Montgomery J.A. in the Court below and there is nothing I can usefully add. After a careful and exhaustive review of the medical evidence, he made these findings which I adopt:
In my opinion, Plaintiff did not receive medical care of the standard that he had a right to expect from a doctor in a hospital in a well-settled part of the Province within easy reach of the largest centers of population. I do not regard it as any defence that Defendant was unable personally to carry out Dr. Normand’s recommendation…. Whether through ignorance or cupidity, he caused his patient to assume a risk of failure that would have been far less had the method recommended by the specialist been employed. The result was in fact a classic example of an unsuccessful plate and screw operation as described by Dr. Favreau, and the danger of just such a result is one of the principal reasons why the plate and screw method has fallen into disfavour.
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Apart from his choice of an obsolescent method, Defendant’s treatment of Plaintiff appears to have been inept and inattentive. How far any particular act or omission contributed to the damage may be a matter of speculation, but I do not find it necessary to decide this. In my opinion the trial judge arrived at the correct conclusion in holding Defendant liable, although I do not fully accept his reasons.
I would allow the appeal with costs here and in the Court below and restore the judgment at trial.
Appeal allowed with costs.
Solicitors for the plaintiff, appellant: Lajoie, Lajoie, Gouin & Vigeant, Trois-Rivières.
Solicitors for the defendant, respondent: Lafleur & Brown, Montreal