The family of a non-smoker who died of lung cancer at the age of 44 was awarded $1.7 million after the Quebec Court of Appeal held that two doctors were negligent in a case that draws on the rarely used notion of “unfavourable inference” of proof of causation, a development applauded by medical malpractice legal experts.
In a ruling that highlights the difficulty of proving the causal link between medical negligence and a patient’s damage in a civil suit, the Quebec Court of Appeal overturned a lower court ruling because it failed to apply negative inference, a “robust and pragmatic approach” that is sometimes wrongly confused with a reversal of burden of proof. Quebec courts have rarely applied unfavourable inference even though it was first described by the Supreme Court of Canada in Snell v. Farrell  2 S.C.R. 311 and confirmed in a Quebec medical malpractice suit in St. Jean v. Mercier  1 S.C.R. That may now change, hope medical malpractice lawyers.
“What this ruling does is rehabilitate Snell because judges did not pay attention to it, did not apply it, and even refused to apply it,” said Marc Boulanger, a medical malpractice lawyer with Tremblay Bois Mignault Lemay Avocats LLP in Quebec City.
Medical malpractice suits are notoriously difficult to win, say lawyers. The case involving Marc Émond was no different. On November 2005, at the request of his family physician Dr. Albert Benhaim, Émond had a chest X-ray taken as part of his annual physical exam even though he was both physically fit and asymptomatic. Dr. Michael O’Donovan, a radiologist, discovered a lesion, and recommended to Dr. Benhaim that another chest X-ray be taken. On January 2006, Émond had another chest X-ray, and Dr. O’Donovan yet again noticed the presence of a lesion and suggested that another X-ray be taken in a couple of months, which was not done. On December 2006, during his annual medical examination, Émond had another chest X-ray. This time, Dr. O’Donovan noticed that the lesion grew from 1.5 – 2.0 centimetres to 2.5 centimetres. Dr. Benhaim ordered a battery of tests, and on January 2007, Émond was diagnosed with Stage IV lung cancer, which is inoperable and incurable. He sued both doctors, but after he died on June 2008, 31 months after the first chest X-ray was taken, his wife took over the lawsuit. The suit alleged, based on the medical opinions provided by their experts, that the physicians’ failure to provide Émond with timely testing for a pathological diagnosis of his condition was the cause of his death.
The trial judge found that, when reviewing the results of Émond’s chest X-rays in November 2005 and January 2006, the physicians had failed to compare the images to his previous medical records and they had failed to take reasonable steps to determine if the lesion on the X-rays was an indication of cancer. But while the trial judge decided that Cathie St-Germain, Émond’s spouse, had established fault, she concluded after reviewing conflicting expert opinions that at the time of the fault in November 2005, Émond’s cancer was already inoperable because he suffered from cancer that was at least at stage III. (According to evidence produced at the trial, the rate of cure by surgery for a stage I cancer is 70%; the prognosis for a stage III cancer is dismal as only 10-to-15% live beyond five years). She ordered the physicians to pay St-Germain and her son $70,000 in damages. St-Germain appealed the decision.
The Quebec Court of Appeal overturned the ruling but rather unusually for different reasons. Relying on guidance provided by the Supreme Court in Laferriére v. Lawson  S.C.R. 541, appeal court Justice Jacques Fournier noted that causation in law is not identical to scientific causation, and must be established on the balance of probabilities, taking into account all the evidence. He points out that according to the unanimous opinion of medical experts, stage III or IV cancer is usually fatal within 12 months. Émond was on the balance of probabilities therefore most likely afflicted with stage I or stage II cancer at the time when the fault by the physicians was committed on November 2005, held Justice Fournier. He concluded that St-Germain satisfied the burden of proof and established causation between the fault and the loss.
“The ruling examines the weight of evidence, and reminds judges that they have to look at all the evidence to appreciate causation, and not just scientific evidence,” said Jean-Pierre Ménard, a medical malpractice lawyer with Ménard, Martin avocats in Montreal. “Scientific causation is not the same as causation in law, but in reality judges always demand for scientific evidence.”
Appeal court Justice Nicholas Kasirer, which Justice Dominique Belanger agreed with, took a different tack. Justice Kasirer held that an unfavourable inference of proof of causation against the doctors should be applied because it was impossible for the appellants to show scientifically that the fault resulted in a delay in the treatment of the disease that ultimately caused Émond’s death. The appellants also filed in evidence authoritative medical evidence that there was a 78% probability that the cancer was at stage I when it was discovered fortuitously, which served to discharge, prime facie, their burden of proving that Émond’s cancer was on the balance of probabilities at stage I at that time. “In the absence of proof to the contrary, the combination of these two facts…gave rise to the adverse inference that the negligence had caused the losses connected to his death,” said Justice Kasirer in St-Germain v. Benhaim 2014 QCCA 2207.
A court, added Justice Kasirer, would be justified in drawing an inference of causation against defendants even if scientific proof of causation is not adduced so long as the plaintiff advances some affirmative evidence that the fault is directly linked to the loss. In this case, the affirmative evidence was the statistical proof presented by the plaintiffs.
“With a decision like this, the notion of unfavourable inference will certainly be raised in arguments,” noted Alexandre Éthier, a Montreal medical malpractice lawyer with Dubé, Latreille Avocats. “It can perhaps even lead defendants to think twice before advancing arguments that rest on the fact that the plaintiff is not capable of demonstrating fault or harm. It will be an important ruling in medical malpractice suits if the courts heed the guidance by the appeal court.”
The ruling is also notable because of the amount in damages awarded to St-Germain and her son, the third largest ever granted by a Quebec court, said Ménard. (That’s not counting out-of-court settlements). He notes that while the chances of a patient winning a medical malpractice lawsuit against a doctor are slim, Quebec courts have been granting substantially greater amounts over the past five years in successful malpractice suits.
In calculating the damages, the Quebec Court of Appeal curiously held that Émond would have likely retired at the age of 62, pointed out Daniel Gardner, a law professor at the Université de Laval whose work on damages awarded in medical malpractice suits was cited in the ruling. Most courts have held the retirement age to be 65 when calculating damages, noted Gardner. Unlike the rest of Canada, Quebecers tend to retire at an earlier age, at 62.5, added Gardner. Émond, however, who testified before passing away, testified that he had no intention of retiring early. “While the courts must take into account that the average Quebecer retires earlier than Canadians so that they are not overcompensated, the courts should also examine each case individually because there can be instances where the evidence demonstrates that people intend to work more than the norm.”
This story was originally published in The Lawyers Weekly.