Page: 1 PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL CLINT HARRIS

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1 Page: 1 PROVINCE OF PRINCE EDWARD ISLAND PRINCE EDWARD ISLAND COURT OF APPEAL Citation: Harris v. Beck 2009 PECA 08 Date: Docket: S1-AD-1137 Registry: Charlottetown BETWEEN: AND: CLINT HARRIS SHIRLEY N. BECK, Executrix of the Estate of Dr. Malcolm Beck (Malcolm N. Beck) APPELLANT RESPONDENT Before: Chief Justice D.H. Jenkins Justice J.A. McQuaid Justice M.M. Murphy Appearances: Paul J.D. Mullin, Q.C., counsel for the Appellant James W. Gormley, Q.C., and Thomas P. Laughlin, counsel for the Respondent Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island September 16, 2009 Charlottetown, Prince Edward Island March 18, 2009 Written Reasons by: Justice M.M. Murphy Concurred in by: Chief Justice D.H. Jenkins Justice J.A. McQuaid

2 Page: 2 MEDICINE - Medical malpractice - Negligence - Doctor - Psychiatrist - Informed Consent Appeal by a patient from the dismissal of his claim against a deceased psychiatrist. The trial judge concluded that the doctor had met the standard of care. The trial judge further concluded there was no evidence before him to support the proposition that the treatment regime could cause the appellant a four-year memory loss. The trial judge also determined that the doctor had the informed consent of the patient. HELD: Appeal dismissed. The trial judge correctly analyzed and applied the law respecting general negligence principles. Although the trial judge incorrectly applied the law related to informed consent, the Court of Appeal reached the same conclusion after applying the legal test. Authorities Cited: CASES CONSIDERED: Crits and Crits v. Sylvester et al.(1956), 1 D.L.R. (2d) 502 (Ont. C.A.), aff d [1956] S.C.R. 991 (SCC); ter Neuzen v. Korn, [1995] 3 S.C.R. 674 (SCC); Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.); Haines v. Bellissimo (1977), 82 D.L.R. (3d) 215 (Ont. H.C.J.); Housen v. Nikolaisen (2002), 211 D.L.R. (4 th ) 577, 2002 SCC 33 (SCC); McArdle (Estate of) v. Cox, 2003 ABCA 106, [2003] 327 A.R. 129; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCJ No. 24 (SCC); Rayner v. Knickle, [1991] P.E.I.J. No. 26, 88 Nfld. & P.E.I.R. 214 (P.E.I.S.C.-A.D.); Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (Ont. Sup. Ct); Reibl v. Hughes, [1980] 2 S.C.R. 880 (SCC); Hopp v. Lepp, [1980] 2 S.C.R. 192, 112 D.L.R. (3d) 67 (SCC); Videto et al. v. Kennedy (1981), 33 O.R. (2d) 497 (C.A.), 125 D.L.R (3d) 127 (Ont.C.A.); Nichols v. Young, [2002] O.J. No. 515 (S.C.J.); Smith v. Arndt, [1997] 2 S.C.R. 539 (SCC); Martin v. Findlay, [2008] A.J. No. 462 (ABCA); Haughian v. Paine, [1987] S.J. No. 240, 37 D.L.R. (4 th ) 624; Van Dyke v. Grey Bruce Regional Health Centre, [2005] O.J. No. 2219, 255 D.L.R. (4 th ) 397; Kitchen v. McMullin, 62 D.L.R. (4 th ) 481, 100 NBR (2d) 91 (NBCA); Rawlings v. Lindsay, [1982] B.C.J. No. 209, 20 C.C.L.T. 301; Ciarlariello v. Schacter, [1993] 2 S.C.R. 119 (SCC); TEXTS CONSIDERED: Ellen I. Picard and Gerald B. Robertson: Legal Liability of Doctors and Hospitals in Canada, 4 th ed.; Klar, Lewis N.: Tort Law, 4 th edition (Carswell 2008); Informed Consent - A Proposed Standard for Medical Disclosure, (1973), 48 N.Y.U.L. Rev. 548; Allen M. Linden and Bruce Feldthusen: Canadian Tort Law 8 th Edition (2006 LexisNexis); Rozovsky, Lorne E.: Canadian Law of Consent to Treatment - 3 rd Edition, (Butterworths 2003); Osborne, Phillip: The Law of Torts - 3 rd Edition (2007)

3 Page: 3 Reasons for judgment: MURPHY J.A.: [1] The appellant, Clint Harris, appeals from the trial decision, 2007 PESCTD 10, of Cheverie, J. dismissing his action for medical malpractice against Dr. Malcolm N. Beck (Dr. Beck). Dr. Beck was a practicing psychiatrist in Prince Edward Island for many years. Unfortunately, he passed away in 2002 before this matter went to trial. The proceedings were ordered by the Prothonotary to be continued against his estate. [2] Between the commencement of the action in 1992 and his death, there was no evidence from Dr. Beck, either by way of oral direct examination or other means. The only evidence from Dr. Beck was his notes made at the time of consultation with the appellant and/or his spouse. [3] The trial judge considered the appellant s action against Dr. Beck to be grounded in the tort of negligence. Specifically, he understood the appellant s position to be that Dr. Beck was negligent in two ways: FACTS (1) Dr. Beck did not exercise proper care in treating the appellant; and (2) Dr. Beck failed to disclose to the appellant the material risks associated with taking the medication prescribed, and therefore Dr. Beck was negligent in proceeding to treat the appellant in the absence of the appellant s informed consent. [4] The following is a summary of the background of this case as taken from the findings of the trial judge: [6] Clint Harris testified as to how he came into contact with Dr. Beck and his recollection of the ensuing events. He first met Beck in This was at a time when his wife was being treated by Beck. Harris provided a lot of collateral information to Beck for the purpose treating Betty. However, Harris testified Beck spent a great deal of time inquiring about Harris family and family history. While Harris interpreted the search for this information as assistance for Betty s treatment, it is later suggested by the defendant this is part of the case history taken by Beck which led to his diagnosis and treatment of Harris. [7] Sometime in mid-1985, Harris testified he saw a sudden change in Betty. He says she became robotic. Harris became more

4 Page: 4 concerned for his wife and family and he wanted to know of Beck how long the treatment of Betty was going to last. He testified that after an appointment that she had with Beck, he asked Betty this very question, but got no real answer from her. Then, after her next appointment with Beck, he repeated the question with the same result. So at Betty s next appointment, he asked to speak to Beck personally. From Beck s entire file (also referred to as process or clinical notes) which was entered as exhibit D-1, it appears this meeting between Harris and Beck took place on May 22, This date is not disputed by Harris. [8] What is in dispute is the length of this meeting. According to Harris it was a brief meeting, and when he asked Beck how long Betty s treatment would continue, Beck reportedly said that Betty was a very sick girl and that the treatment he prescribed was appropriate. Beck s notes of May 22, 1986 cover some five pages and suggest the meeting was considerably longer than Harris recalls. In any event, Harris says he felt frustrated when he left this particular meeting, and his relationship with Betty, including his sexual relationship with her, deteriorated. [9] According to Harris, things became more serious in the Fall of 1986, and it was during this time Betty told him that Beck wanted to see him - alone. Again, Beck s notes fix the date of this meeting as November 13, Harris does not dispute that date. As a result of this meeting, Harris testified Beck wanted to see him and Betty separately at alternate future visits. Harris agreed. [10] At the subsequent meetings, Harris says they basically discussed similar things. There was also just some pleasant conversation involved. In some ways, he described it as being like a father and son relationship. But then the conversation would return to the old argument, that being Harris relationship with Betty and their relationship with the children. Harris says sometimes Beck seemed to lose his temper and on occasion use bad language. Harris past sexual history was discussed. During these meetings, Beck referred him to passages from Scripture, like references that husbands are to love their wives, and he would ask Harris if he was loving that beautiful woman, meaning Betty. Or Beck would say are you hustling that woman? Despite these comments, when asked to describe his relationship with Beck, Harris says it was good. [11] After November, 1986, he recalls certain questions put to him by Beck. One such question was: Do you ever cry for no reason? Harris describes these questions as the psychiatric symptoms about which Beck was inquiring. Then in January, 1987, at the end of one of these meetings, Harris reports that Beck said You seem to be a little depressed, then he turned to his prescription pad and prescribed something for Harris. At this point, Harris is quick to point out that he did not consider himself to be a patient of Beck

5 Page: 5 and Beck never told him he was a patient. However, this is when Beck prescribed the antidepressant drug Anafranil. [12] Harris took the prescription and had it filled and proceeded to take the drug. He has no recall of being told about the side effects of this drug and he says he received no warnings from Beck about side effects. When asked why he would take the drugs if he didn t consider himself to be a patient, he responded by saying he had trust in Beck; he had no reason not to take them; Beck had not mistreated Betty. He says he felt pressured by Beck to take the medication and described it as being like someone coming to his house to sell encyclopedias. In the course of the sales pitch at the door, the sales person makes him feel guilty so even though he doesn t really want to buy the encyclopedias, he does so. He says Beck sort of made him feel guilty in this way. He recalled Beck saying Betty was 90% cured but that he was the real problem. [13] From January/February, 1987, Harris says his memory got sketchy but he continued to see Beck. He says he reported to Beck physical symptoms such as his hands trembling and his mouth being quite dry. Beck advised these were normal side effects from the medication. Harris admits that on his own, he stopped taking Anafranil for two or three weeks, sometime in May, but later resumed the medication. [14] When asked to describe his life in 1986, he says it was really good, except for Betty s condition. His business was good; there was growth in his business sales; he had four beautiful children; they were doing well in school; he owned his own home; he even paid cash for a car he bought a couple of years earlier. He had RRSPs; he was comfortable; he was sitting on school committees - he had a good life. After that, he saw Beck for roughly four years until he discontinued on his own. Up until April 18, 1991, he says Beck was still prescribing medication but he stopped taking the medication in late December, 1990 or January, [15] From 1986 to 1991, Harris took the prescribed medication and said he has virtually no memory at all of the period 1988 to In addition to the Anafranil, Harris says Elavil, Parnate and Lithium were all prescribed at different points in time. He took all this medication. In fact, he testified Beck took him off the Anafranil before putting him on Elavil so that he could add Parnate to the mix. Witnesses for the defence would later testify that this was an appropriate order in which to administer these drugs, i.e. you could add Parnate to Elavil, but not add Elavil to Parnate. [16] Harris described the impact of this medication on his life as disastrous. In 1990 when he stopped taking the medication, he says his life was in chaos. He was broke. He couldn t even afford

6 Page: 6 the cost of a refill. He was really sick. His kids were out of control. However, he admitted he took all the medication prescribed, for the most part, during the period of time of which he complains. He says he didn t want to keep taking the pills and that he was angry at Beck at the time, but when asked in direct testimony why he took the Elavil and Parnate, he said it was just part of a continuing process. [17] With respect to Parnate, he says Beck gave him a card because there had been a death involving Parnate somewhere else and Harris believed Beck was required to give him this card. Other than this, he says Beck provided no other warning or caution with respect to the taking Elavil and Parnate together. Harris says if he were told he would lose touch with reality by taking these drugs, he would have refused them. He wouldn t jeopardize his business. [18] With the assistance of telephone records - both personal and for his business - he concludes that in 1988, all is normal until July or August. Then there are a lot of calls to the United States from his residence. He says they were calls with respect to electronics, and although he has no actual memory of it, he is satisfied he made these calls. He says he was calling suppliers all over the United States. In 1989 he was corresponding with companies all over the world. This he offers as evidence of his acting in an irrational way while on the prescribed medication. [19] Harris also recalled a trip to the United States in He says he flew to Cleveland, although he does not remember the flight, and came home with a 1980 Lincoln automobile which he bought there. He says it was packed with white plastic boxes. At the time he thought he could use them in his business, but looking back he sees no sense in it at all. He says he didn t go to the United States to buy a car, but bought one anyway. His recollection of these events is vague. He now says these white boxes had nothing to do with his business or personal life prior to taking the prescribed medications. [20] His meetings with Beck continued into He says he specifically recalls a meeting of February 11, By this time, Harris says he knew something had gone wrong and he was getting back to himself. He went to Beck to tell him what had gone wrong. However, he says the communication with Beck at this time was no better than it was in The meetings were frustrating. He told Beck there was chaos at home and his children were out of control. [21] In April, 1991, Harris says his head was clear and Beck continued to make appointments for him. Beck s notes indicate the last meeting would be April 18 and Harris agrees. Apparently Betty was

7 ISSUES Page: 7 also present at this meeting. It was during this meeting, according to Harris, that Harris told Beck he wanted his medical records. He says Beck adamantly refused to give him the files and would only give them to another approved doctor or by court order. The reference to the medical files and Beck s reluctance to release them to Harris is reflected in Beck s notes at pp. 191, 192, and 194. [22] Harris ultimately did retrieve his medical file in 1996 and on reading the file he thought there was a misunderstanding with Beck. He referred to Beck s notes of the May 22, 1996[sic] meeting. This was the one that occurred at the end of one of Betty s sessions. Harris says the meeting with Beck lasted five to ten minutes and for the most part it was friendly. He says there was only one such meeting and his memory is very clear of that meeting. Beck s notes comprise five pages with respect to his meeting with Harris on May 22 and appears to be in direct contrast to Harris recollection. [23] Harris also referred to the next meeting he had with Beck on November 13,1986. He says his memory of this meeting is very clear as well and, again, he says he was inquiring of Beck as to how long Betty would be in treatment. The meeting became argumentative. It lasted 45 minutes to one hour and Harris described it as confrontational. [24] Harris says between 1986 and January, 1991, he only stopped or reduced his medication on one occasion without Beck s approval. This occurred in the spring of 1987 when, as he mentioned earlier, he experienced the side effects of trembling hands and dry mouth. He was asked specifically if, prior to 1987, he ever sought treatment or received treatment for any mental or emotional disorder and he said no. From January, 1991 to the date of his testimony, Harris was asked if he sought or received treatment for any mental or emotional disorders and again he indicated he did not. [5] The appellant raises seven grounds of appeal: 1. That the Learned Trial Judge made i) Errors of mixed fact and law; ii) iii) Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence;

8 Page: 8 In determining that the Appellant s actions, when taken together with the Respondent s notes, constitute informed consent. 2. That the Learned Trial Judge made i) Errors of law; ii) iii) iv) Errors of mixed fact and law; Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence; In finding the Respondent s notes to be reliable, and consistent with the standard of care expected of a psychiatrist in Prince Edward Island between 1986 and That the Learned Trial Judge made i) Errors of law; ii) iii) iv) Errors of mixed fact and law; Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence; In determining that the Appellant required treatment, specifically, for a depressive illness as diagnosed by the Respondent. 4. That the Learned Trial Judge made i) Errors of law; ii) iii) iv) Errors of mixed fact and law; Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence: In concluding that the Respondent met the requisite standard of care in his treatment of the Appellant with Anafranil, Elavil, Parnate and Lithium.

9 Page: 9 5. That the Learned Trial Judge made i) Errors of law; ii) iii) iv) Errors of mixed fact and law; Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence: In determining that the Defence experts were more objective than the Plaintiff s expert, Dr. Rosenberg, and should therefore be preferred. 6. That the Learned Trial Judge made i) Errors of law; ii) iii) iv) Errors of mixed fact and law; Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence: In concluding that the overall standard of care required of the Respondent was met. 7. That the Learned Trial Judge made i) Errors of law; ii) iii) iv) Errors of mixed fact and law; Palpable and over-riding errors of fact; Palpable and over-riding errors which affected his assessment of the evidence: In concluding that he would have great difficulty resolving the issue of causation in favor of the Appellant, assuming there had been damages.

10 Page: 10 [6] I summarize the issues as follows: Did the trial judge err by: DISPOSITION (1) Finding that Dr. Beck did not breach the standard of care in his treatment of the appellant? (2) Concluding that Dr. Beck had the informed consent of the appellant for the treatment regime prescribed? [7] I would dismiss the appeal. NEGLIGENCE [8] Whether there has been a breach of a doctor s standard of care requires an analysis of a doctor s duty of care. The duty owed by a doctor has two distinct requirements: (1) the duty to perform the treatment in accordance with the standard of skill expected of a doctor in the same area at the same time; and (2) the duty to inform the patient of the nature and possible risks of the treatment. This is the duty that raises the issue of informed consent. [9] In order to succeed in a negligence action against a defendant doctor, a plaintiff patient must prove on a balance of probabilities, the following four elements: a. the doctor must owe the plaintiff a duty of care; b. the doctor must breach the standard of care which has been established by law; c. the plaintiff must suffer an injury or loss; and d. the doctor s conduct must have been the actual and legal cause of the plaintiff s injury or loss.

11 Page: 11 [10] If the plaintiff fails to prove any one of these requirements, the onus will not be met and the action will be dismissed. See: Ellen I. Picard and Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4 th ed., p I will address each of the elements of negligence. A. Duty of Care [11] A precursor to any analysis of standard of care or any of the other elements of the negligence action is the finding that the doctor owed a duty of care to the plaintiff. If it cannot be shown that there was a duty upon a particular defendant to exercise care with respect to a plaintiff, there can be no finding of liability, regardless of how negligent the defendant s conduct may appear. The duty of a doctor to exercise care with respect to a particular patient springs into being upon the formation of the doctor-patient relationship. See: Picard and Robertson, supra, p [12] In most medical negligence cases the existence of the doctor-patient relationship is not in issue and is usually conceded. The dispute usually centers around the scope of the duty. The duty of care which is placed upon a doctor is to exercise care in all that is done to and for a patient, which includes attendance, diagnosis, referral, treatment, and instruction. See: Picard and Robertson, supra, pp B. Standard of Care [13] The standard of care required of a medical practitioner is set out in the seminal case of Crits and Crits v. Sylvester et al.(1956), 1 D.L.R. (2d) 502, (Ont.C.A.), at para. 13; aff d [1956] S.C.R. 991: Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability. [14] The standard of care expected is based on the state of medical knowledge available at the time of the alleged negligence. The standard of care to which a

12 Page: 12 doctor must adhere is the standard of care at the time the doctor exercised his judgment, as what was good practice several years ago may not be accepted as good practice today. See: ter Neuzen v. Korn, [1995] 3 S.C.R Lord Denning probably put it most aptly when he stated in Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.) at p. 137, We must not look at the 1947 accident with 1954 spectacles. Sopinka J. in ter Neuzen v. Korn, supra, at para.34 further enunciated that... courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge.... [15] In Haines v. Bellissimo (1977), 82 D.L.R. (3d) 215 (Ont. H.C.J.), the court confirmed that the standard of care imposed upon a psychiatrist is the same as required of physicians in all fields of medicine and surgery. In that case, Griffiths, J. went on to state at para.53:... To this it should be added the fundamental principle of law that governs all professionals that the psychiatrist or psychologist who makes a diagnostic mistake or error in judgment does not incur liability whatever the harm, provided he exercised reasonable care and skill and took into consideration all relevant factors in arriving at his diagnosis or judgment.... [16] In summary, the standard of care is not perfection. C. Injury [17] In order to succeed in a negligence action, a plaintiff has to prove that a material injury has been suffered, also called a loss or damage. Even if the plaintiff can prove the other elements of a negligence action (i.e. duty of care, breach of the standard of care, and causation), the plaintiff s action will fail unless the plaintiff also satisfies the court that he or she has suffered an injury which was caused by the doctor s actions. D. Causation [18] In order for a defendant to be liable to the plaintiff, negligence law requires that the plaintiff must prove, on a balance of probabilities, that the defendant s misconduct is causally connected to the plaintiff s injuries. [19] The primary test for causation in negligence actions still remains the but for test. Stated in other words, if the defendant s conduct can be shown to have been a necessary cause of the plaintiff s harm, the but for test is satisfied. (See: Klar, Tort Law, 4 th edition, pp ). In the context of this case, the question is but for the negligence of the doctor, would the patient have suffered an injury for which compensation is sought?

13 Page: 13 [20] In this case, the trial of the matter was bifurcated. The portion of the case that was heard and is under appeal was restricted to the issue of liability. ISSUES RAISED BY THE APPELLANT RESPECTING NEGLIGENCE [21] In both oral argument and in the facta filed by the appellant, the appellant argues that the trial judge made errors of mixed fact and law, palpable and overriding errors of fact, errors of law which affected his assessment, interpretation and weighing of the evidence in determining or concluding that: (1) The respondent had the appellant s informed consent, (this will be considered later in these reasons); (2) the respondent s notes were reliable; (3) the appellant required treatment, specifically for a depressive illness; (4) the respondent met the standard of care in prescribing medication; (5) in preferring the experts reports of the respondent over that of the appellant s expert, Dr. Rosenberg; (6) the overall standard of care was met by the respondent; (7) the resolution of the issue of causation. STANDARD OF REVIEW [22] The task of a court of appeal in a civil appeal has been addressed a number of times by the Supreme Court of Canada and was clearly stated by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 211 D.L.R. (4 th ) 577, 2002 SCC 33. [23] An appellate court applies a standard of palpable and overriding error when reviewing fact-finding. When an appellate court is reviewing law, the standard is correctness. When it is reviewing mixed fact and law, the standard is palpable and overriding error, unless it is clear that there has been an extricable error with respect to the characterization of the standard of care or its application; then the error may amount to an error of law. See: McArdle (Estate of) v. Cox, 2003 ABCA 106, [2003] 327 A.R [24] This statement of Fish J. in H.L. v. Canada (Attorney General), [2005] 1 S.C.R.

14 Page: , 2005 SCJ No. 24, at para.9, reaffirmed the standard of appellate review that was arrived at in Housen, supra:...it will suffice to mention that this Court in Housen was unanimous on the issue that concerns us here: All nine Justices agreed that the standard of appellate review on questions of fact...is review for error and not review by rehearing. They agreed as well that findings of fact by the trial judge will be disturbed on appeal only for errors that can properly be characterized as palpable and overriding. [25] As applied to primary fact findings or drawing inferences from those facts, he explained at para. 52: Fact finding in the litigation context involves a series of cerebral operations, some simple, others complex, some sequential, others simultaneous. The entire process is generally reserved in Canada to courts of first instance. In the absence of a clear statutory mandate to the contrary, appellate courts do not rehear or retry cases. They review for error. ISSUE NO. 1: NEGLIGENCE IN PERFORMANCE OF THE TREATMENT [26] I will review, for error, the trial judge s findings respecting negligence in performance of the treatment. This will involve a review of the law and its application relating to negligence principles. (1) Did the trial judge err in finding that Dr. Beck had a duty of care to the appellant? [27] The appellant continues to argue that there was no doctor-patient relationship with Dr. Beck. I see that argument fraught with difficulty as a precondition to any discussion of standard of care, or any of the other elements of the negligence action, is the finding that the defendant owed a duty of care to the plaintiff. If it cannot be shown that there was a duty upon the defendant to exercise care to a plaintiff, there can be no finding of liability, regardless of how negligent the defendant s conduct may appear. See: Picard, supra, pp [28] In most medical malpractice cases, the existence of a doctor-patient relationship is not in issue. The trial judge found that the relationship was conceded by the defendant. Based on this concession, the trial judge found as a fact that a doctor-patient relationship existed. Therefore, the appellant had established Beck owed him a duty of care. (2) Did the trial judge err in wrongly characterizing the applicable standard of care?

15 Page: 15 [29] I have reviewed the trial judge s analysis and find that he correctly characterized the applicable standard of care. The trial judge applied the standard which has been widely applied by courts across the country, including this court, in Rayner v. Knickle, [1991] P.E.I.J. No. 26, 88 Nfld. & P.E.I.R He correctly enunciated what is commonly known as the locality rule. A medical person must possess and use the reasonable degree of skill and knowledge exhibited by a reasonable person in like circumstances. [30] The trial judge also reviewed the law in relation to the standard of care required of specialists. He concluded that a specialist who holds himself out as possessing a special degree of skill and knowledge must exercise the degree of skill of an average person in his field. (3) Did the trial judge err in concluding that Dr. Beck met the standard of care in relation to note taking, diagnosis, treatment, prescribing medications, and overall standard of care in his dealings with the appellant? [31] The caselaw (Housen, supra) directs us that a finding of negligence which involves weighing the underlying facts, making findings of fact, and drawing inferences as to whether or not the defendant met the standard of care is a question of mixed fact and law that requires deference by appellate courts. Therefore, this would be reviewable only for palpable and overriding error; that is, an error which can be plainly seen. [32] In order to assist the trial judge in determining the standard of care that should have been exercised by Dr. Beck, he relied on and accepted the opinion of the expert witnesses (Drs. Cook, Gordon, and Brooks) presented by the respondent. [33] It is necessary for courts to carefully consider the evidence provided by the experts and base their conclusions on opinions, not speculation. In order to determine whether the standard of care has been met, trial judges often resort to the use of expert opinion evidence. In support of this proposition, Callaghan J. stated in Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (Ont. Sup. Ct.): In assessing the performance of skilled professionals, however, courts must be cautious to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards. As it was said by Gould J. of the British Columbia Supreme Court in McLean v. Weir et al., [1977] 5 W.W.R. 609 at 620, 3 C.C.L.T. 87:

16 Page: 16 It is true that the court may accept in whole or in part or reject in whole or in part the evidence of any witness on the respective grounds of credibility or plausibility, or a combination of both. But in technical matters, unlike in lay matters within the traditional intellectual competence of the court, it cannot substitute its own medical opinion for that of qualified experts. The court has no status whatsoever to come to a medical conclusion contrary to unanimous medical evidence before it even if it wanted to, which is not the situation in this case. If the medical evidence is equivocal, the court may elect which of the theories advanced it accepts. If only two medical theories are advanced, the court may elect between the two or reject them both; it cannot adopt a third theory of its own, no matter how plausible such might be to the court. There is an evidentiary bar to opinion evidence on technical subjects from non-qualified witnesses, and an equally rigid bar against judges coming to conclusions on technical matters (other than domestic and constitutional law) founded on their own opinions rather than on evidence from qualified witnesses. [34] The trial judge was correct when he stated at para.52: (i) (ii) (iii) that it was open to him to accept some, all, or none, of what each of the experts told him; that just because one party called more experts than the other, it does not guarantee acceptance of those opinions; that it is the trial judge who must determine whether the standard of care was met, not the experts. [35] The appellant argued that the evidence of the appellant's expert, Dr. Rosenberg, should be "preferred" over the three expert opinions provided by the respondent. The trial judge chose not to accept the expert opinion of Dr. Rosenberg. It is completely within the province of the trial judge to choose to accept one expert opinion over another. [36] As previously stated, the appellant alleges in the Notice of Appeal, in a wide-ranging manner, that the trial judge made errors of mixed fact and law, palpable and overriding errors, and palpable and overriding errors which affect his assessment of the evidence relating to the note taking, diagnosis, treatment, and general standard of care provided by Dr. Beck. I am unable to identify any plainly identifiable errors in the trial judge's assessment of credibility, in his findings or inferences of fact in concluding that Dr. Beck had met the standard of care. In coming to this conclusion,

17 Page: 17 I find there was adequate evidence at trial to support the following findings and inferences made by the trial judge that: 1. A doctor-patient relationship existed between appellant and Dr. Beck. 2. Dr. Beck's notes were reliable and reflect his diagnosis and treatment. 3. The notes, notwithstanding the obvious errors, were consistent with the standard of care expected of a psychiatrist in Prince Edward Island between 1986 and All the defence experts agreed the taking of a history is a necessary first step to a diagnosis. 5. From a review of the notes coupled with the assistance of defence experts that a depressive illness was diagnosed by Beck and then he moved on to treat it. 7. Finding that the drug Anafranil, was effective in the appellant's case. 8. In finding that the prescriptions for Anafranil and then later Elavil and Parnate with Lithium met the requisite standard of care in the treatment of the appellant with these drugs. 9. That Beck's notes are reliable and that the defence experts formulated their opinions, based on the notes, that Beck met the standard of care. 10. The weight of the evidence does not favour Harris' position that the drugs prescribed by Beck caused him to suffer a four year memory loss and to be out of touch with reality. [37] The conclusions reached by the trial judge in relation to general negligence principles are reasonable and are supported by the evidence. He concluded that Dr. Beck owed a duty of care to the appellant and that Dr. Beck met the standard of care required of a practicing psychiatrist at the time. There was ample evidence to support these findings and therefore there is no basis for appellate intervention. Injury [38] The trial judge concluded that there was absolutely no evidence before him to support the proposition that the combination of drugs prescribed by Dr. Beck could cause the appellant a four-year period of memory loss.

18 Page: 18 [39] The trial judge stated Dr. Brooks opined that the likelihood of experiencing amnesia-like symptoms as a result of the prescription medications that the appellant was on, was summed up in one word: Inconceivable. Similarly, Dr. Gordon responded to the same question by saying that it would be highly unlikely that this prescription regime could cause a lengthy period of amnesia-like symptoms experienced by the appellant. Dr. Cook s response to the same line of questioning was to state: I find that incredible. [40] The trial judge s conclusions respecting the third element required to succeed in a negligence action cannot be disturbed. He based his conclusions on the evidence presented by the respondent s experts. (4) Causation [41] The trial judge concluded that because he had determined that Dr. Beck met the required standard of care and negligence was not proven, it was not necessary to deal with the issue of causation. I would agree that this conclusion is sustainable. [42] The elements of a negligence action are sequential. A plaintiff is required to prove that the defendant owed a duty of care, that the defendant breached a duty of care and that this caused injury to the plaintiff. If no duty is owed (as discussed earlier in these reasons), the question of a breach of duty is redundant. The same analysis applies with respect to causation - if the court finds that there was no breach of duty, the causation issue becomes moot. See: Picard, supra, p (5) Conclusion related to general negligence principles [43] To summarize, it is incumbent upon the appellant to convince this court that the trial judge erred and that his error is a reversible one. Such an error could result from mistakenly determining that a duty of care existed or inaccurately characterizing the applicable standard of care. It could also result from a palpable and overriding error by the trial judge in his assessment of evidence in making findings of facts or in drawing inferences from these facts as to breach of duty of care. I would conclude that the appellant has failed to convince this court that any such errors were made regarding the law and its application in relation to general negligence principles. ISSUE NO. 2: INFORMED CONSENT [44] Having reviewed the law and its application relating to the general principles of negligence, I will now examine the issue of informed consent.

19 Page: 19 The law on informed consent [45] It is important to note that what is under consideration when discussing this issue is the patient s right to know the risks associated with undergoing or foregoing certain treatment. This is a different issue from the previous one which involved the question as to whether Dr. Beck carried out his professional duties in accordance with applicable professional standards. See: Reibl v. Hughes, [1980] 2 S.C.R. 880 (SCC), at para.17. A. Duty of care [46] The Supreme Court of Canada has issued a number of decisions relating to informed consent beginning in 1980 with Hopp v. Lepp, [1980] 2 S.C.R. 192, 112 D.L.R. (3d) 67, where the court stated that a doctor has a duty to disclose all material risks associated with a medical procedure or course of treatment. Laskin, C.J.C indicated: In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case. B. Standard of care [47] In Videto et al. v. Kennedy (1981), 33 O.R. (2d) 497 (C.A.), 125 D.L.R (3d) 127, the Ontario Court of Appeal summarized the following principles for triers of fact to determine what are material risks: 1. The question of whether a risk is material and whether there has been a breach of the duty of disclosure is not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered. 2. The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient s decision whether or not to undergo the operation A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences,

20 Page: 20 such as paralysis or even death, then it should be treated as a material risk and should be disclosed. 4. The patient is entitled to be given an explanation as to the nature of the operation and its gravity. 5. Subject to the above requirements, the dangers inherent in any operation such as the dangers of anesthetic, or the risk of infection, do not have to be disclosed. 6. The scope of the duty to disclosure and whether it has been breached must be decided in relation to the circumstances of each case. 7. The emotional condition of the patient and the patient s apprehension and reluctance to undergo the operation may in certain cases justify a surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific. 8. The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure. (at pp ) [48] In Reibl v. Hughes, supra, Laskin, C.J.C. quoted from Informed Consent - A Proposed Standard for Medical Disclosure, (1973), 48 N.Y.U.L. Rev. 548, at p.550: Since proximate causation exists only if disclosure would have resulted in the patient s foregoing the proposed treatment, a standard must be developed to determine whether the patient would have decided against the treatment had he been informed of its risks. Two possible standards exist: whether, if informed, the particular patient would have foregone treatment (subjective view); or whether the average prudent person in the plaintiff s position, informed of all material risks, would have foregone treatment (objective view). The objective standard is preferable, since the subjective standard has a gross defect; it depends on the plaintiff s testimony as to his state of mind, thereby exposing the physician to the patient s hindsight and bitterness. [49] In Smith v. Arndt, [1997] 2 S.C.R. 539 (SCC), the court expanded the law in Reibl v. Hughes, supra, by stating that the trier of fact must take into consideration any particular concerns of the patient and any special considerations affecting the particular patient. Cory J. further stated at para.9:... In my view this means that the reasonable person who sets the standard for the objective test must be taken to possess the patient's reasonable

21 Page: 21 beliefs, fears, desires and expectations.... [50] In Nichols v. Young, [2002] O.J. No. 515 (S.C.J.), Madam Justice Swinton provided a concise summary of the two step process to determine liability for an alleged failure to obtain informed consent at para.63:...essentially, there are two questions to be determined when it is alleged that there has been a lack of informed consent - first, it must be determined where there has been adequate disclosure of the nature of the procedure or treatment and the risks, and secondly whether the lack of disclosure caused the damage to the patient. Both in Reibl v. Hughes, supra, and later in Smith v. Arndt, [1997] 2 S.C.R. 539, the Court adopted a modified objective test for causation. Specifically, in determining whether the failure to disclose actually caused harm to the plaintiff, the court must ask whether the reasonable person in the circumstances of the Plaintiff would have consented to the procedure if disclosure had been properly made. C. Causation [51] In the Canadian Law of Consent to Treatment, 3 rd Edition (Butterworths 2003) (p. 163), the author, Lorne E. Rozovsky, provides an excellent analysis of the causation issue. The reason that most patients are unsuccessful in medical malpractice cases based on a lack of informed consent, is that while they may be able to prove that they were not advised of the material risks of the procedures or the treatment prescribed, they cannot prove a causal connection between the failure of the doctor to disclose the material risks and the alleged injury. Negligence law requires proof of injury as a result of the wrongful act. It is not enough for the patient to say that, had they known of the risks, they would have refused the care or treatment. [52] What Mr. Rozovsky, the author, calls the rule of causality as established by the Supreme Court of Canada in Reibl v. Hughes, supra, is that of what the reasonable person in the plaintiff s position would have done in the circumstances - if a reasonable person would have consented had they been informed of the material risks, the plaintiff is expected to have acted in the same manner. [53] For the majority of cases, the complaint is that the doctor did not advise the patient of the risks. However, if the court finds that a reasonable person in the patient s circumstances would have accepted the risks and consented, the negligence of the doctor in not informing the patient is of no legal consequence. [54] If, on the other hand, a patient has not been informed of the risks, and a reasonable person in the patient s circumstances would not have given consent, the doctor s failure to inform the patient has resulted in the patient being exposed to the

22 Page: 22 risks and being injured and, therefore, the plaintiff can be compensated. [55] If the doctor has failed to advise the patient of the risks, but the plaintiff has not suffered any adverse consequences, a plaintiff will not succeed as they have not suffered an injury. [56] When one considers risks, attention must not only be paid to the risks of a certain procedure, but to the risks that face a particular patient as a result of not having the procedure. This is where the features of a particular patient s position enter into the picture. The patient s particular concern must be reasonably based. In Reibl v. Hughes, supra, which addressed disclosure regarding a surgery, it was stated that if the risk of foregoing the surgery would be considerably graver to a patient than the risks attendant upon it, the objective standard would favor exoneration of the surgeon who had not made the required disclosure. (Reibl v. Hughes, supra, at page 899; discussed by Rozovsky supra at pp )] [57] A concise conclusion of the law regarding informed consent is stated by the author as follows: The question which is asked is whether a reasonable person would consent if advised of these risks. If the answer is yes, the patient cannot complain of not being advised. If the answer is no, the patient s rights have been denied and compensation can be awarded. ISSUES RAISED BY THE APPELLANT RESPECTING INFORMED CONSENT [58] The appellant raised the following issue regarding the issue of informed consent: ISSUE #1: THAT THE TRIAL JUDGE MADE ERRORS OF MIXED FACT AND LAW, PALPABLE AND OVERRIDING ERRORS OF FACT AND PALPABLE AND OVERRIDING ERRORS WHICH AFFECTED HIS ASSESSMENT OF THE EVIDENCE IN DETERMINING THAT THE APPELLANT S ACTIONS, WHEN TAKEN TOGETHER WITH THE RESPONDENT S NOTES CONSTITUTE INFORMED CONSENT. [59] The requirements of a physician when disclosing risks sets a legal standard which is reviewable on a standard of correctness. See: Housen, at para.8. Whether the standard has been breached is a question of fact which can only be interfered with if the trial judge made a palpable and overriding error. See: Martin v. Findlay, [2008] A.J. No. 462 (ABCA), para.27. [60] The issue of causation (whether a reasonable person in the patient s circumstances would have declined the treatment if properly informed) is also a

23 Page: 23 question of fact and again reviewable only if overriding and palpable error. However, it has been suggested in Haughian v. Paine, [1987] S.J. No. 240, 37 D.L.R. (4 th ) 624, and later in Van Dyke v. Grey Bruce Regional Health Centre, [2005] O.J. No. 2219, 255 D.L.R. (4 th ) 397, leave to appeal to Supreme Court of Canada refused, that the determination of this causation issue depends more on an evaluation of the evidence against a modified objective standard than it does on findings of fact that turn on witnesses credibility and reliability. As such, the issue can be more comfortably addressed on appeal than many other factual determinations. [61] The appellant s ground of appeal regarding informed consent puts the following questions in issue for appellate review: Whether the learned trial judge committed a reversible error or errors by failing to analyze and apply the tripartite test for informed consent, which involves addressing the following questions: 1. Were the risks associated with the prescription regime disclosed to the appellant? 2. If the risks were not disclosed, were they material risks? and 3. If the risks were not disclosed and were material risks, would a reasonable person in the circumstances of the appellant have consented to taking the prescription medication if disclosure had been properly made? [62] Although the trial judge seemed to be apprised of the components of the tripartite test, he failed to apply it. He failed to fully address the questions of what risks were associated with the drugs; if so, whether they were material or special risks, and if they were, whether disclosure was made to the appellant. The trial judge made an error in law when he failed to apply the tripartite test; and a further error of law in failing to address the questions of what risks were associated with the drugs, and whether there were any material or special risks associated with the drugs. He made an error of fact amounting to a palpable and overriding error by finding in the absence of evidence that the risks were disclosed to the appellant. I will address each of these errors. [63] The trial judge had to determine what risks, if any, were associated with the drugs. The risks associated with the various medications can be garnered from the opinions of the experts. He also had to determine if the risks were material risks. The