



COURT OF APPEAL FOR ONTARIO

CITATION: Samms v. Moolla, 2019 ONCA 220

DATE: 20190320

DOCKET: C64032

Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

BETWEEN

The Estate of Kerry Samms, by the Estate Trustee,
    Carol Ann Samms, Carol Ann Samms, and Joshua Samms and Kristen Samms

Plaintiffs (Appellants)

and

Dr. Riaz Moolla,
Dr. Wilraad Lottering
,
    Dr. Ahmad Belfon, Dr. Debra Jefferson, Dr. Leon Irish, Cheryl Reynolds, J. Doe
    and Dr. Geoffrey Donsky

Defendants (
Respondent
)

Ronald Manes, Barbara MacFarlane and Nicholas Sampson,
    for the appellants

Erica J. Baron and Shane C. DSouza, for the respondent

Heard: October 17, 2018

On appeal from the judgment of Justice Guy P. Di Tomaso
    of the Superior Court of Justice, sitting with a jury, dated June 11, 2017.

Fairburn J.A.:

OVERVIEW

[1]

Kerry Samms died of cancer on September 24,
    2011. His Estate, the Estate Trustee, his wife, Mrs. Samms, and his children
    (the appellants) brought a medical malpractice action against multiple health
    professionals who dealt with Mr. Samms in 2009 and 2010. The jury concluded
    that the plaintiffs had failed to prove on a balance of probabilities that any of
    the defendants fell below the standard of care.

[2]

The appellants only appeal from the verdict
    relating to Dr. Wilraad Lottering, Mr. Samms family physician. The appellants
    maintain that the trial judge erred in his instructions to the jury on two
    points: (a) standard of care; and (b) error of judgment. For the reasons that
    follow, I would dismiss the appeal.

THE LEAD-UP TO THE CANCER DIAGNOSIS

[3]

On March 15, 2009, Mr. Samms attended at the
    Bowmanville Urgent Care Clinic (BUCC), a walk-in clinic contained within the
    same building as Mr. Samms family physician, Dr. Lottering. Mr. Samms
    complained to the on-duty physician, Dr. Moolla, a defendant at the trial, that
    he had a pain in his lower left side. Dr. Moolla thought that Mr. Samms may
    have a non-cancerous bowel infection known as diverticulitis and so he ordered
    a CT scan. Dr. Moolla told Mr. Samms that he should obtain the results of the
    test either from his family physician or from the BUCC.

[4]

Dr. Donsky, a defendant at the trial,
    interpreted the results from the March 23, 2009 CT scan.  His report contained
    a typographical error. Although the body of his report said that there were
    [n]o findings of diverticulitis, the interpretation portion of the report
    read as follows:

Sigmoid
    diverticulosis. Findings of diverticulitis. Potential filling defect within
    stomach. Again, this may be technical in nature. Confirmation with direct
    visualization suggested.

[5]

The interpretation section of the report should
    have read: No findings of diverticulitis. There were a number of potential
    explanations for the filling defect that the report referred to. One of them
    was cancer.

[6]

Dr. Moolla and Dr. Lottering received Dr.
    Donskys report on March 25, 2009. Dr. Moolla advised his staff to tell Mr. Samms
    to follow-up with his family physician or to attend the BUCC to obtain and
    discuss the CT scan results. That same day, Dr. Lottering told his staff to
    schedule an appointment with Mr. Samms within the next three weeks. Having
    reviewed the report, Dr. Lottering thought that Mr. Samms may have
    diverticulitis, but he also wanted to speak to Mr. Samms about the potential
    filling defect that the CT scan detected. Dr. Lottering placed a note in the
    current medical problems field of Mr. Samms electronic medical records. The
    note read in all capital letters: March 2009 need endoscopy filling defect
    stomach and diverticulitis. Those records were available to anyone working
    within the BUCC.

[7]

Dr. Lotterings staff arranged an appointment
    for Mr. Samms to see Dr. Lottering on April 7, 2009. Dr. Lotterings office
    cancelled that appointment because Dr. Lottering was himself hospitalized for a
    few weeks in that same time period. On March 30, 2009, Dr. Lotterings staff
    rescheduled the April 7, 2009 appointment for April 20, 2009. On April 17,
    2009, someone in Dr. Lotterings office cancelled that appointment for reasons
    that are not evident from the record. It was never rescheduled and Mr. Samms
    did not re-attend Dr. Lotterings office until the following year, on April 20,
    2010.

[8]

The appellants maintained that Dr. Lotterings
    staff led Mr. Samms to believe that there was no need for a follow-up
    appointment because he had diverticulitis. The key witnesses on this point were
    Mrs. Samms and Cheryl Reynolds (one of the administrative assistants at Dr.
    Lotterings office). Mrs. Samms gave evidence that her husband spoke with Ms.
    Reynolds on the phone on April 22, 2009 following the cancellation of the April
    20, 2009 appointment. After that discussion, Mrs. Samms had the impression that
    Mr. Samms believed he had diverticulitis and that a follow-up appointment was
    not necessary.

[9]

Ms. Reynolds testified that she could not
    remember Mr. Samms and thus did not recall the conversation Mrs. Samms
    described. Even so, she said that whenever a patient pushed her for results, at
    the very most, she would read the entire interpretation section of the report.
    In this case, that would have included the reference to the potential filling
    defect within the stomach and the suggestion that confirmation be obtained
    with direct visualization. Her evidence was that she never interpreted
    results. She therefore would neither have told Mr. Samms that he might have
    cancer nor that he only had diverticulitis.

[10]

Moreover, Ms. Reynolds testified that she would
    never tell a patient that they did not need to follow up on a test result. Dr.
    Lotterings evidence was that his only instruction to Ms. Reynolds was to tell
    Mr. Samms that he should follow up. There was no evidence that Dr. Lottering
    instructed Ms. Reynolds that the need for an appointment had passed.

[11]

Accordingly, the jury heard evidence that would
    have permitted it to conclude that Dr. Moolla (at the initial BUCC visit), Dr.
    Moollas staff (after the CT scan report was received), and Dr. Lotterings
    staff (at Dr. Lotterings direction) all instructed Mr. Samms to see Dr. Lottering
    (or the BUCC) to follow-up on the CT scan.

[12]

By the fall of 2009, Mr. Samms experienced
    further health issues and saw a number of doctors. During one of those appointments,
    Dr. Irish at the BUCC read Mr. Samms electronic medical record and saw Dr.
    Lotterings capitalized note. Dr. Irish read Dr. Lotterings note to Mr. Samms
    and then asked him what the endoscopy had shown. When it became apparent that
    Mr. Samms had not had the endoscopy, Dr. Irish told Mr. Samms that it was
    important that he go see Dr. Lottering and have the endoscopy done. Mr. Samms
    did not heed that advice.

[13]

Another physician in the local emergency ward
    told Mr. Samms on January 30, 2010 to follow-up with his family physician if
    his pain persisted. It would appear that Mr. Samms did not heed that advice.

[14]

Over a nine-day period in March 2010, Mr. Samms
    attended at the BUCC on three different occasions. On one of those occasions,
    Dr. Lottering happened to be the doctor on duty in the BUCC. Mr. Samms was
    complaining of gastric discomfort. As Dr. Lottering was scheduled to work at
    the emergency department the next day, he could get tests expedited, including
    scheduling an endoscopy. Accordingly, he told Mr. Samms to go to the emergency
    department the next day. Mr. Samms did not attend as requested. On a subsequent
    occasion, another doctor told Mr. Samms to book an appointment with his family
    physician within a week. Mr. Samms did not do so.

[15]

On April 20, 2010, Mr. Samms went to Dr.
    Lotterings office with abdominal pain and reported that he had felt a mass in
    his stomach that morning. Dr. Lottering also felt a mass in Mr. Samms stomach.
    Dr. Lottering ordered tests and asked Mr. Samms to attend at the emergency room
    on April 23, 2010. This time Mr. Samms attended. An ultrasound revealed a large
    mass in his stomach. By May 26, 2010, the pathology was back and Mr. Samms was
    told that he had cancer. He started chemotherapy in June, but by December it
    ceased to be effective. Mr. Samms passed away nine months later.

ANALYSIS

(1)

Overview

[16]

The appellants raise two broad concerns with the
    charge to the jury.

[17]

First, the appellants claim that the instructions
    on the applicable standard of care were wrong or, at a minimum, so confusing as
    to leave the jury with no understanding of how to approach the issue. Despite
    the fact that both parties  called expert evidence on the standard of care
    applicable to Dr. Lottering, there is no dispute between them that, in the
    circumstances of this case, the jury could have fixed the standard of care
    through an application of their good common sense:
ter Neuzen v.
    Korn,
[1995] 3 S.C.R. 674. The appellants maintain that
    the trial judge erred by instructing the jury that they could not apply their
    common sense to that issue and, instead, had to act solely on the basis of the
    expert evidence. They also submit that the jury would not have understood that
    it could find Dr. Lottering negligent even if he complied with a standard
    practice, provided that the jury found the standard practice negligent.

[18]

Second, the appellants maintain that the trial
    judge erred by inviting the jury to deliberate upon whether Dr. Lotterings
    actions resulted from an error of judgment. Given that this case had nothing to
    do with the exercise of medical judgment, the appellants contend that an
    instruction on the principle relating to error of judgment had no proper place
    in the jurys deliberations.

[19]

I will first address the issue relating to the
    instructions on standard of care.

(2)

Standard of Care: The
ter Neuzen
Principle

(a)
The Appellants Position About the Standard of Care

[20]

At its core, the appellants position at trial
    was that Dr. Lottering fell below the standard of care when he failed to
    properly and fully communicate with Mr. Samms in a way that would have brought
    home to his patient the potential seriousness of the situation and the urgent
    need to follow-up on the potential filling defect noted on the CT scan
    report. The appellants characterize Dr. Lotterings failings as communication
    and administrative errors, including the failure to have a system in place to
    notify Dr. Lotterings office when a patient fails to attend for a follow-up
    appointment in these types of situations. The appellants contend that Dr.
    Lotterings failings resulted in a delayed cancer diagnosis, which in turn
    caused Mr. Samms cancer to go from curable to incurable.

[21]

Accordingly, the appellants say that this case was
    really about the standard of care applicable to communications by physicians
    and the administrative management of their offices when it comes to patients
    who could be facing a serious illness where time is of the essence. As there is
    nothing complex, highly technical or scientific about determining when and how
    to contact a patient for a follow-up appointment, the appellants say that this
    case was ripe for the jurys application of common sense in fixing the standard
    of care. Even if the jury found that Dr. Lottering complied with a standard
    practice in the profession, the appellants say that this finding would not be
    determinative because the jury could still have applied their common sense to
    the question of whether the standard practice itself was negligent.

(b)
The Expert Evidence on Standard of Care

[22]

Despite their position that the jury could
    determine the standard of care based purely upon an application of common
    sense, the appellants chose to lead expert evidence regarding the standard that
    was applicable to Dr. Lottering. To that end, the appellants called Dr. Howard
    Rudner, who was qualified in the area of family physicians in the family
    physician setting, both in relation to walk-in clinics and family physician
    offices.

[23]

Dr. Rudner opined that given the abnormal
    result on the face of the CT scan report, Dr. Lottering had a duty of care and
    responsibility to follow up on his concerns. Dr. Rudner testified that having
    noted that an endoscopy was required, Dr. Lottering dropped the ball by
    failing to take the steps necessary to have it done. He should have had the
    information about the seriousness of the matter conveyed directly to Mr. Samms,
    even if it had to be done over the phone. Moreover, Dr. Lottering failed in his
    duty to Mr. Samms by failing to have a system in place that would signal when a
    patient, like Mr. Samms, had failed to attend for an important follow-up appointment.

[24]

The respondent called Dr. Michael Gilmour, who
    was qualified to offer expert opinion evidence in the same areas as Dr. Rudner.
    (Dr. Gilmour also provided expert opinion evidence regarding the other doctor
    defendants and whether they had fallen below the standard of care.) Dr. Gilmour
    opined that Dr. Lottering had met the standard of care. He testified that the
    CT scan results did not reveal an urgent need to follow-up on the filling
    defect as it could have been an indication of any number of different things,
    entirely unrelated to cancer. That evidence was consistent with what Dr.
    Lottering testified to, that although he knew that a filling defect could
    signal cancer, it could also signal a number of other more benign conditions.

[25]

Dr. Gilmour asserted that it was sufficient for
    Dr. Lottering to instruct his staff to inform Mr. Samms about the need to
    schedule an appointment within three weeks. Given the indefinite diagnosis that
    may emerge from an observed filling defect, Dr. Gilmour testified that it would
    have been inappropriate to tell a patient over the phone that they may have
    cancer. He also testified that it is difficult to force a patient to come to
    the doctors office. Once the patient is told that follow-up has been recommended,
    you have to expect the patients will heed that recommendation and will follow
    up. He testified that it was not standard practice for a physician to have a
    diary system to pursue patients who do not return for follow-up appointments.
    Finally, Dr. Gilmour said that it would have been improper to schedule an
    endoscopy for Mr. Samms without Dr. Lottering having discussed the matter with
    his patient.

(c)      The
ter Neuzen v.
    Korn
Principle

[26]

In light of the fact that the parties had called
    expert evidence upon the standard of care applicable to Dr. Lottering, both
    parties requested that the trial judge provide an instruction in accordance
    with
ter Neuzen
.

[27]

The courts lack technical expertise in relation
    to the medical profession. As such, when there is expert evidence that doctors
    act in accordance with a recognized and respectable practice of the profession,
    the doctor will typically not be found negligent:
ter Neuzen,
at para. 38. Like most rules, though, there is an exception.

[28]

While compliance with a recognized and
    respectable practice will normally serve to exonerate doctors of medical
    wrongdoing, in some circumstances, those standard practices will themselves be
    negligent. The fundamental question for consideration is whether the standard
    of care can be determined on the basis of the jurys ordinary knowledge or
    whether the matter requires determination strictly on the basis of expert
    evidence because it is beyond the ken of the average juror:
ter
    Neuzen,
at para. 55.

[29]

Where the matter can be easily understood by an
    ordinary person with no expertise in the medical profession, and where the
    common practice itself is so fraught with obvious risks that the practice can
    be seen as negligent, it is open to the trier of fact to determine the
    applicable standard of care, one that might not align with the standard
    practice within the profession:
ter Neuzen,
at
    paras. 41, 43, 51. The Supreme Court summarized this principle in
ter
    Neuzen,
at para. 43:

Thus, it is
    apparent that conformity with standard practice in a profession does not
    necessarily insulate a doctor from negligence where the standard practice
    itself is negligent. The question that remains is under what circumstances
    will a professional standard practice be judged negligent? It seems that
    it is only where the practice does not conform with basic care which is easily
    understood by the ordinary person who has no particular expertise in the
    practices of the profession. That is, as Professor Fleming suggests, where
    the common practice is fraught with danger, a judge or a jury may find that the
    practice is itself negligent.

[30]

Accordingly, where it is readily apparent to a
    non-medically trained person that a standard practice within the medical
    profession lacks obvious and reasonable precautions, the practice itself may
    be found negligent:
ter Neuzen,
at para. 51.
    Where the trier of fact finds that the standard practice within the profession
    is itself negligent, the typical shelter afforded a defendant physician by
    claiming that he or she simply conformed to the standard practice will
    evaporate.

[31]

There is no dispute that, despite having
    called expert evidence on the standard of care applicable to Dr. Lottering, the
    appellants were entitled to a
ter Neuzen
charge.
    The appellants say that the charge fell short in adequately conveying those
    principles to the jury and, in fact, conveyed the opposite.

(d)
The Impugned Instructions

[32]

The appellants point to several passages in an
    over 300-page charge, delivered over two days, to suggest that the jury would
    not have understood, even if they found that the standard practice in the
    profession accorded with Dr. Gilmours evidence, that they could apply their
    common sense to determine whether that standard practice was itself negligent.
    In support of that proposition, the appellants point to the following three instructions
    given to the jury:

In many cases common sense
    dictates the standard of care as reasonable people know what they should or
    should not do in any situation. In other cases,
such as
    this
, expert evidence is required in those engaged in a particular
    activity, task or calling to assist the court in determining the standard of
    care.

In this case I instruct you as a
    matter of law that the standard of care must be determined on the basis of
medical evidence
and not your personal untrained views.

Be guided by the
medical evidence
that you accept. Neither you nor I have medical expertise.
If a doctor is acting in accordance with a recognized and
    respectable body of thinking within the medical profession in providing care,
    he is not negligent. He does not fall below the standard of care.
(emphasis added)

[33]

When it was complete, the appellants objected to
    the charge on the basis that the trial judge might have left the jury with the
    impression that they need[ed] expert evidence to determine the standard of
    care. The trial judge disagreed and refused to re-charge the jury on the
ter
    Neuzen
point. He expressed the view that he had told the
    jury that they could apply their common sense in determining the standard of
    care.

[34]

On the second day of deliberations, the jury
    asked the trial judge to repeat the charge on standard of care. The trial judge
    obliged by reading back those portions of the charge that dealt with the issue,
    including the impugned instructions.

[35]

The appellants say that together, the passages effectively removed
    the
ter Neuzen
principle from the jurys
    deliberations in three separate ways. The appellants contend that the
    instructions would have left the jury with the impression that: (a)
the
    standard of care could only be determined on the basis of expert evidence; (b) common
    sense could not be applied when determining the appropriate standard of care; and,
    (c) a finding that Dr. Lottering conformed to a standard practice within the
    profession would necessarily absolve him of negligence, even if common sense
    suggested that the common practice was itself negligent.

[36]

I will now explain five reasons why the
    appellant cannot succeed on this ground of appeal: (i) the expert evidence
    instruction was correct in law; (ii) the jury was not directed to only consider
    expert evidence on the question of standard of care; (iii) a contextual
    approach allays any residual concerns about the first two impugned
    instructions; (iv) a contextual approach demonstrates that the jury would have
    understood that it must consider whether the standard practice was itself negligent;
    and (v) even if the jury was confused, there was no substantial wrong or
    miscarriage of justice.

(i)

No Error in Expert
Evidence
Instruction

[37]

First, I do not agree that the trial judge was
    wrong when he said that in some cases common sense alone dictates the standard
    of care, while in other cases, such as this case, expert evidence is required
    to assist the court in determining the standard of care. That is an accurate
    statement of law.

[38]

It is non-controversial that, in cases where the
ter Neuzen
principle applies, the jury may fix
    the standard of care on the basis of common sense alone:
ter Neuzen,
at para. 55;
Goodwin v. Olupona,
2013 ONCA 259, 305 O.A.C. 245, at para. 31. Indeed, having chosen
    not to elicit expert evidence in relation to the standard of care applicable to
    Dr. Moolla and Dr. Donsky, in this very case the appellants were relying solely
    upon the jurys good common sense to determine the standard of care applicable
    to those defendants.
Unlike the appellants, the
respondent
    and the other defendants called expert evidence relating to the standard of
    care applicable to Dr. Moolla and Dr. Donsky.

[39]

It is equally non-controversial that sometimes expert
    evidence is required  to assist the court in determining the standard of care.
    For instance, where the standard practice within a profession is in issue, a
    factor informing the standard of care analysis, expert evidence will often be required
    to assist in determining what that standard practice involves. Where expert
    evidence on this point has been called and the
ter Neuzen
principle applies, the jury will be instructed to first consider all
    of the evidence, including the expert evidence, to determine what the standard
    practice is. Conflicts in the evidence are for the jury to resolve:
ter
    Neuzen,
at para. 52.

[40]

The trial judge did not tell the jury that they
    could only determine the standard of care on the basis of expert evidence, only
    that expert evidence was required to assist in making that determination. As
    the appellants chose to lead expert evidence on the issue, I see nothing wrong
    with that instruction.

[41]

It is important to recall that expert evidence
    is presumptively inadmissible. It only becomes admissible where, among other
    things, it is relevant to an issue for resolution and necessary to assist the
    trier of fact in understanding matters beyond the ken of the average trier of
    fact:
White Burgess Langille Inman v. Abbott and Haliburton Co.
,

2015 SCC
    23, [2015] 2 S.C.R. 182, at paras. 14-15, 19. Inextricably linked to the
    decision to lead actual expert evidence on the issue relating to the standard
    of care applicable to Dr. Lottering, was the appellants implicit
    acknowledgment that the evidence was necessary to assist the jury in
    determining the standard of care.

[42]

Having regard to the appellants decision to
    marshal expert opinion evidence in relation to the standard practice issue and
    whether Dr. Lottering acted in accordance with it, there was nothing wrong with
    the trial judge instructing the jury in a way that explained to them that in
    some cases expert evidence is required to assist in determining the standard
    of care. This is particularly true in light of the fact that the appellants did
    not marshal expert evidence in relation to the other physician defendants.

[43]

The real question is whether the jury was told
    that they could reject the expert evidence or, if they found a standard
    practice arising from the expert evidence, that they could find that standard
    practice was itself negligent. As I will shortly explain, the jury was
    instructed on both of these points.

(ii)

Trial Judge Directed the Jury to Consider
    Non-Expert Evidence

[44]

The appellants claim that the impugned
    instructions above amounted to an instruction that the jury could only
    determine the standard of care applicable to Dr. Lottering based upon the
    expert evidence, the corollary being that the jury could not apply their common
    sense to that question. I disagree.

[45]

The appellants appear to equate medical
    evidence with expert evidence. They are not the same thing. Although the
    trial judge told the jury that the standard of care had to be determined on the
    basis of medical evidence and not personal views, and to be guided by the
    medical evidence, those instructions were made against the backdrop of a 30-day
    trial that was largely consumed by medical evidence, only some of which was
    expert in nature. Before the trial judge instructed the jury to consider the
    medical evidence, he specifically referred to not only the expert evidence of
    Dr. Rudner and Dr. Gilmour but also all of the other evidence that you have
    before you.

[46]

The instruction to look to the medical evidence
    to determine the standard of care was nothing more than a reminder to the jury
    that they had to determine the live issues relating to the standard of care
    based upon the evidence they had heard. In other words, it was not a direction
    to the jury to determine the standard of care based exclusively upon the
    evidence of Dr. Rudner and Dr. Gilmour, but to look to all of the evidence in
    fulfilling their obligation to determine the applicable standard of care. The
    trial judge comprehensively reviewed all of the evidence.

(iii)

Contextual Analysis Addresses Any Concerns
    Regarding Expert Evidence Instructions

[47]

Even with those qualifications in mind, I agree
    that when considered in isolation, some of the language in the first two
    impugned instructions, specifically the language concerning medical evidence
    and expert evidence being required, is not ideal. Accordingly, I move on to a
    further reason why the appellants cannot succeed on their first two
    submissions: a contextual analysis.

[48]

It is important to examine alleged errors in a
    jury charge against the entire charge and the trial as a whole:
R.
    v. Jaw,
2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32;
Surujdeo
    v. Melady,
2017 ONCA 41, 410 D.L.R. (4th) 538, at para.
    83. The standard of review for jury charges does not hold them to a standard of
    perfection, but asks whether the words have conveyed to the jury the correct
    legal test to apply,
whether the jury would have properly understood
    the law at the end of the charge:
Pereira v. Hamilton Township Farmers
    Mutual Fire Insurance Company
(2006), 267 D.L.R. (4th) 690 (Ont. C.A.), at
    para. 51
.

[49]

An approach that parses jury instructions
    word-by-word and sentence-by-sentence will almost invariably lead to error.
    Because words, sentences and paragraphs often take their meaning from the
    words, sentences and paragraphs that surround them, we do not consider the
    accuracy of jury charges by microscope. Having regard to the entire context for
    the charge, including the contextual backdrop of the trial, the ultimate
    question is what the jury would have taken from the impugned instructions. It
    is the overall effect of the charge that matters:
R. v. Daley
, 2007 SCC 53, [2007] 3 S.C.R.
    523
, at paras. 30-31;
Sacks v. Ross
,
    2017 ONCA 773, 417 D.L.R. (4th) 387, at paras. 81-86, leave to appeal refused,
    [2017] S.C.C.A. No. 491.

[50]

Having considered the portions of the impugned instructions
    that address expert evidence against the whole of the charge, and the context
    of the trial, I am satisfied that the jury would have understood how to
    correctly approach their task in considering the expert evidence. The jury was
    specifically instructed that:

(a)

They must consider the charge as a whole;

(b)

They had to take into account all of the evidence;

(c)

They had to bring to bear on their deliberations their individual and
    collective common sense and good judgment;

(d)

It was up to them to determine the amount of weight to give to the
    expert opinion evidence and it was open to them to reject the expert evidence;
    and,

(e)

They could consider both the expert and non-expert evidence in
    determining the standard of care, including that [t]here is before you Dr. Rudners
    and Dr. Gilmours expert opinions in this regard as well as all of the other
    evidence that you have before you.

[51]

Although standing on their own the impugned
    passages concerning the role of expert evidence do not rise to the level of
    perfection, perfection is not required. Contextually approached, I am satisfied
    that the jury would have understood that they should exercise their common
    sense and collective wisdom during the entire deliberative process. They would
    not have thought that their common sense had to be suspended when it came to
    determining the standard of care and that they could only rely on the expert
    evidence.

(iv)

The Jury Would Have Correctly Understood the
    Standard Practice Instructions

[52]

Although there is some merit to the appellants
    submission that the trial judge failed to clearly explain to the jury that it
    could find Dr. Lottering negligent even if it found that he complied with a
    common medical practice, I am not persuaded that the instructions led the jury
    into error.

[53]

The trial judge gave two instructions that,
    standing on their own, conflict with the
ter Neuzen
principle that says that conformity with a standard practice will
    not insulate a doctor from negligence where that standard of practice is itself
    negligent:

I instruct you as a matter of law that if you find on the
    evidence that Dr. Lottering complied with the conduct approved by a
    respectable body of the medical community, [he] should not be found negligent
    on the basis that [he] fell below the standard of care.

If a doctor is acting in
    accordance with a recognized and respectable body of thinking within the
    medical profession in providing care, he is not negligent.  He does not fall
    below the standard of care.

[54]

When
    the jury asked for the instructions on the standard of care to be repeated on
    the second day of deliberations, the trial judge gave those instructions again,
    including the ones just reviewed.

[55]

If
    the above impugned instructions stood alone, there would be significant force
    to the appellants position that the jury was misled into thinking that
    compliance with the standard practice would be dispositive of the issue
    involving standard of care. Those instructions, though, must be read in their
    larger context. There are three contextual factors that satisfy me that the
    jury would not have misunderstood their task.

[56]

I first turn to the surrounding instructions.

[57]

Preceding the impugned instructions, both in the
    charge and repeated charge, the trial judge explained how the jury should
    approach the issue of standard practice and its impact on their determination
    of the standard of care. The first thing that the jury heard on this point was
    as follows:

If

[Dr. Lottering] rendered treatment which conforms with the
    standard and recognized practice followed by other doctors in the field,
unless that practice was shown to be unsafe and dangerous
,
    the fact that [he] followed that accepted practice is important evidence that
    he  exercised the reasonable degree of skill and car
e. (emphasis
    added)

[58]

Later, still before any of the impugned instructions,
    the trial judge instructed the jury that:

Where it is
    established that a doctor departed from the approved practices of his
    profession that may often be a strong indication that the doctor in question
    has fallen below the standard of care expected by the law and so he or she may
    be properly found to be negligent.
However, when a
    doctor acts in accordance with a recognized and respectable practice of the
    profession at a particular point in time, he or she ought not to be found
    negligent unless that common practice is obviously fraught with serious and
    unacceptable risks that are apparent even to persons such as you and I who do
    not have any medical training
. (emphasis added)

[59]

When the trial judge repeated his charge on the
    standard of care, he again repeated these instructions before he repeated the
    portions of the charge impugned by the appellants.

[60]

On the basis of these instructions, what I will refer to as the
    unless instructions, the jury would have understood that, while a standard
    practice may be a strong indicator or important evidence of the standard of
    care, that would only be the case where the jury was satisfied that the
    standard practice was not itself obviously fraught with serious and
    unacceptable risks or shown to be unsafe and dangerous. Although it could
    have been done more clearly, the jury was instructed that it had to consider
    whether the standard practice was itself negligent. Only after the unless
    instructions, was the jury told that compliance with 
the conduct
    approved by a respectable body of the medical community would negate
    liability.

[61]

Considered contextually, I am satisfied that the jury would have
    understood the impugned instructions as an articulation of the general rule
    that, conforming to a recognized standard practice within the medical
    profession would generally result in a finding that the physician has met the standard
    of care. I am equally satisfied that the jury would have understood that there
    is an exception to that general rule, triggered by a finding that the standard
    practice is itself fraught with obvious risk:
ter Neuzen,
at para. 41.
    Read contextually, the instructions conveyed these salient aspects of the
ter
    Neuzen
principle to the jury.

[62]

This
    conclusion is bolstered by the fact that the context of the entire 30-day trial
    would have assisted the jurors in their correct understanding of the
ter
    Neuzen
principle. This is the second contextual factor satisfying me that
    the jurors would have understood their task.

[63]

As
    noted previously, unlike all of the defendant doctors who called expert
    evidence on standard practice, the appellants did not call expert evidence in
    relation to Dr. Moolla and Dr. Donsky. Despite the appellants decision not to
    call expert evidence respecting Dr. Moolla and Dr. Donskys standard of care,
    the jury heard abundant lay evidence and argument from the appellants alleging
    that the practices of Dr. Moolla and Dr. Donsky were negligent. In contrast,
    the defendants called evidence that stressed the steps that Dr. Moolla and Dr. Donsky
    took to exhibit care and diligence in their treatment of Mr. Samms.

[64]

Against
    that backdrop, the proposition that the trial judge left the jury with the
    impression that Dr. Gilmours evidence on standard practice was necessarily
    determinative of the result, even if that practice appeared to the jury to be
    fraught with obvious risks in light of the lay evidence, would not have made
    sense to the jury.

[65]

Moreover,
    the trial judge explicitly noted that Dr. Rudners evidence did not apply to
    Dr. Moolla and Dr. Donsky. However, the trial judge did not follow this comment
    by telling the jury that a finding that Dr. Moolla and Dr. Donsky complied with
    what Dr. Gilmour described as standard practice would end the inquiry. Instead,
    he stated that it is for you to decide. Prior to this instruction, the trial
    judge had given the jury an extensive summary of not only the expert evidence
    but also the lay evidence. The jury would have understood that there would have
    been little point to summarizing the other evidence had Dr. Gilmours expert
    opinion on the standard practice been determinative.

[66]

Lastly,
    I turn to the parties closing submissions as further evidence of what the jury
    would have understood, specifically that it was open to them to find that
    compliance with a standard practice did not immunize Dr. Lottering from
    liability.

[67]

The
    appellants argued that the jury could find Dr. Donsky and Dr. Moolla liable
    even though the appellants did not call expert evidence in relation to either
    of them. Despite the absence of expert evidence, the appellants explicitly told
    the jury that you can decide that Dr. Donsky and Dr. Moolla were negligent. The
    defendants at trial submitted that the jury should find Dr. Moolla, Dr. Donsky,
    and Dr. Lottering met the standard of care because they complied with Dr.
    Gilmours evidence of the standard of care. However, they did not submit that
    the jury was required to find that they met the standard of care if they
    complied with what Dr. Gilmour described as standard practice. Instead, the
    defendants stressed why Dr. Gilmours evidence of the standard of care accorded
    with diligence and common sense. As the Supreme Court stated in
R. v. Araya
,
2015 SCC 11, [2015] 1 S.C.R. 581, at para. 50,
the fact
    that neither counsel invited the jury to follow the impermissible line of
    reasoning flowing from a flawed instruction is a relevant consideration.

(v)

Alternatively, No Substantial Wrong or
    Miscarriage of Justice

[68]

Even if the appellants are right that the
    impugned instructions left the jury confused about the
ter Neuzen
point, I agree with the respondent that no substantial wrong or
    miscarriage of justice was occasioned by the instructions on the effect of a
    standard practice:
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, s. 134(6). Not all errors require a new trial. It is for
    the appellants to demonstrate that the alleged error rises to that level:
Surujdeo
, at para. 95.

[69]

Although it can be both difficult and risky to
    interpret a jurys verdict, express and implied facts are sometimes
    inextricably linked to that verdict:
R. v. Ferguson,
2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17;
R. v. Brown,
[1991] 2 S.C.R. 518, at p. 523;
Stilwell v.
    World Kitchen Inc.
, 2014 ONCA 770, 327 O.A.C. 146, at
    para. 46. The verdict in this case is one that both expressly and by
    implication demonstrates that the appellants have failed to establish a
    substantial wrong or miscarriage of justice.

[70]

It is implicit in the jurys express finding
    that Dr. Lottering had not fallen below the standard of care, that the jury
    rejected Dr. Rudners expert opinion evidence about what was required of Dr.
    Lottering in the circumstances. Said differently, if the jury had accepted Dr.
    Rudners opinion on the point, they would have found that Dr. Lottering had
    fallen below the standard of care.

[71]

The jury would have been very familiar with Dr.
    Rudners evidence as the trial judge spent more than twenty pages of transcript
    summarizing it in the charge. That evidence aligned with what the appellants
    also said was the common sense position regarding the standard of care
    applicable to Dr. Lottering. The appellants central point, as reflected in the
    summary of their position provided to the trial judge for inclusion in the
    charge, was that the jury should accept Dr. Rudners evidence on the standard
    of care. Having rejected Dr. Rudners opinion on the matter, it is difficult to
    imagine that, even if the appellants are right about the impugned instructions,
    the jury would have come to any different conclusion even with a pitch perfect
ter
    Neuzen
instruction.

(3)

The Charge on Error of Judgment

[72]

For the first time in this court, the appellants
    take issue with the trial judges charge relating to the principle involving
    error of judgment. Their overarching complaint is that the jury was provided an
    instruction on the principle. Their underlying complaint is that, even if the
    instruction was properly given, the trial judge erred in how he conveyed the
    principle. I will start with whether the instruction should have been given at
    all.

(a)

An Error of Judgment Instruction Was
    Appropriate

[73]

The error of judgment principle is rooted in the
    reality that a great deal of medical treatment depends on the exercise of
    medical judgment. Although that judgment may be wrong, the fact that it is
    wrong does not mean that it is necessarily negligent. What the law requires is
    that reasonable care be taken in the exercise of medical judgment. As noted in
Wilson
    v. Swanson
, [1956] S.C.R. 804, at p. 811, what the doctor
    undertakes with the patient is that he possesses the skill, knowledge and
    judgment of the generality or average of the special group or class of
    technicians to which he belongs and will faithfully exercise them. In
Lapointe
    v. Hôpital Le Gardeur,
[1992] 1 S.C.R. 351, at p. 363,
    the court emphasized that medical professionals should not be held liable for
    mere errors of judgment which are distinguishable from professional fault. In
    other words, an error of judgment is an error made while the doctor is
    otherwise exercising reasonable care: Gerald B. Robertson & Ellen I.
    Picard,
Legal Liability of Doctors and Hospitals in Canada,
5th ed. (Toronto: Thomson Reuters Canada Limited, 2017),

at p. 464.

[74]

The appellants maintain that there was no proper
    place for an instruction on error of judgment because this case did not turn on
    the application of medical expertise. The appellants say that the principle
    exists to relieve physicians of negligence only in those cases that turn on
    clinical judgment calls. They argue that it does not apply as a defence in situations
    relating to the administrative management of patients, none of which requires
    physicians to make clinical judgment calls.

[75]

Even if the appellants were correct about the
    narrow scope for when a physician can claim error of judgment, I do not agree
    with the proposition that Dr. Lottering exercised no medical judgment in how he
    responded to the results shown on the CT scan report.

[76]

Dr. Lottering testified that he governed himself
    in accordance with his understanding and interpretation of Dr. Donskys CT scan
    report. Dr. Lottering had regard to the fact that Dr. Donsky had made an
    incidental finding when he performed the scan and that visualization should be
    considered. Although Dr. Lottering acknowledged that the potential filling
    defect could be cancer, in Dr. Lotterings view there were numerous other
    medically neutral possibilities at play. He did not see this situation as
    urgent because, as he noted in his evidence, when scanning the abdomen and the
    pelvis areas, there is as much as a 30 percent chance of discovering something
    that you were not looking for. In this case, Dr. Lottering said that there was
    no urgency noted in the CT scan report and, in fact, Dr. Donsky had written
    that direct visualization was only suggested. Accordingly, it would have
    been open for the jury to conclude that Dr. Lottering applied his judgment and
    medical experience to the report and came to the decision that, while follow-up
    was required, it was not urgent.

[77]

Moreover, in accordance with Dr. Lotterings
    evidence, Dr. Gilmour expressed the opinion that the filling defect was what
    he described as a non-specific finding, one that may be nothing or it might
    just be the stomach is kinked on itself. He indicated that the filling defect
    could be a food mass in the stomach  pushing up against the bowel  the
    stomach wall and creating that defect. He testified that the kind of defect
    noted on Dr. Donskys report usually ends up being nothing. In light of the
    differential diagnosis arising from the CT scan report, with cancer being down
    in that potential list, Dr. Gilmour said that Mr. Samms should not have been
    told over the phone that he may have cancer. As Dr. Gilmour said, that would
    really alarm a patient to hear that word from office staff or a physician
    over the phone and those conversations should be had in person.

[78]

Dr. Lottering also testified about why he did
    not simply order an endoscopy for Mr. Samms, despite not having seen his
    patient. It was Dr. Lotterings view that he had to do a clinical examination
    and discuss the endoscopy with his patient. He testified that endoscopies carry
    inherent risks, including of perforation and bleeding, and that he would want
    to discuss those risks with his patient so that Mr. Samms could make an informed
    choice about the matter.

[79]

Dr. Lotterings evidence was that his decisions
    to have Mr. Samms follow-up within three weeks and not to order an endoscopy
    without first discussing the matter with Mr. Samms, were informed by his
    understanding of the CT scan report. That understanding was informed by
    applying his medical judgment and experience to the contents of the report. In
    these circumstances, it was open to the jury to consider whether Dr. Lottering
    had erred in the exercise of that judgment in a non-negligent manner in coming
    to the determination of how to approach Mr. Samms medical needs.

[80]

The appellants case against Dr. Lottering
    implicated more than just administrative problems. Indeed, during the
    post-charge discussions, the appellants did not submit that the case
    exclusively concerned administrative problems, but merely that such problems
    were a significant part of the case. Accordingly, I do not agree that the
    trial judge erred in leaving the error of judgment principle for the jurys
    consideration.

[81]

Adding support to this conclusion is the fact
    that, until now, the appellants did not object to the charge on error of
    judgment. The parties at trial were in the best position to know whether the
    instruction was relevant or not. Their failure to object is a strong indicator
    of what the parties thought were relevant issues at trial and a good window
    into the seriousness of the alleged misdirection:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 38;
Araya
, at para. 51;
Marshall v. Watson Wyatt & Co. c.o.b.
    as Watson Wyatt Worldwide
(2002), 57 O.R. (3d) 813
    (C.A.), at para. 15.

(b)

The Trial Judge Appropriately Crafted the Error
    of Judgment Instruction

[82]

As for the appellants complaint that the charge
    on error of judgment was inappropriately crafted, the appellants point to two
    specific aspects of the charge. First, they emphasize the trial judges
    repeated reference to the fact that physicians should not be found negligent
    for injuries arising out of accidents. For instance, the trial judge said: We
    do not condemn as negligence, something which is the result of an honest error
    in judgment
or accident

if the skill, knowledge and judgment of the average practitioner in
    the field was used. (emphasis added) The appellants emphasize that, even if
    the error of judgment principle was operative, this was not a case about
    accident.

[83]

I agree with the appellants that this case did
    not have anything to do with an accident. Even so, the references to
    accident were superfluous and would not have impacted the jurys deliberations.
    Read contextually, the trial judge accurately conveyed the principle to the
    jury. They were told more than once that: [a] doctor is not negligent at law
    where he or she has made an honest error in judgment; [a] doctor who makes an
    honest and intellectual exercise of judgment that unfortunately turns out to be
    wrong must nevertheless be considered by you to have met the standard of care.
    Considered against the factual context of the trial, and the entire charge, the
    jury would have understood the operative principle they had to apply.

[84]

Finally, the appellants take issue with the
    trial judges comment that:

if we imposed
    liability on doctors for everything that happened to go wrong, doctors would be
    more concerned with their potential liability of facing a lawsuit, than with
    the good of their patients. Initiative would be stifled and confidence shaken.

[85]

The appellants say that this was an
    inexplicable instruction in the context of this case and went too far in
    emphasizing the principle to be applied. I disagree.

[86]

Again, the passage must be contextualized. The
    very next passage after the impugned comment is as follows:

I repeat that a
    doctor is only expected to act reasonably in practicing medicine. He or she
    does not ensure the patients health. You should not find one or more of the
    defendants negligent for a result which was accidental, could not be reasonably
    predicted or was a mere judgment call made after the doctor had met the
    required standards.

[87]

That is an accurate statement of law and one
    that contextualizes the previous comment about initiative being stifled.

[88]

Moreover, the impugned passage finds support in
Roe
    v. Minister of Health and Another; Woolley v. Same,
[1954]
    2 Q.B. 66 (Eng. C.A.), at pp. 86-87, where Lord Denning said:

Doctors would be
    led to think more of their own safety than of the good of their patients.
    Initiative would be stifled and confidence shaken. A proper sense of proportion
    requires us to have regard to the conditions in which hospitals and doctors
    have to work. We must insist on due care for the patient at every point, but we
    must not condemn as negligence that which is only a misadventure.

[89]

That passage has been picked up in multiple
    judgments, including of this court:
Crits v. Sylvester
, [1956] O.R. 132 (C.A.), at p. 144; affd [1956] S.C.R. 991. Numerous
    recent Superior Court medical malpractice decisions have cited the portion of
    this courts decision in
Crits
that adopted
    this Lord Denning passage:
Suwary (Litigation Guardian of) v.
    Librach
, 2015 ONSC 2100, at para. 63;
Rycroft
    v. Gilas
, 2017 ONSC 1397, at para. 60;
Hillis
    v. Meineri
, 2017 ONSC 2845, at para. 58.

[90]

Although it was unnecessary to include the Lord
    Denning comment in the charge to the jury, trial judges are properly granted a
    wide berth in determining how best to structure their jury charges:
R.
    v. Speers,
2017 ONCA 333, 347 C.C.C. (3d) 401, at para.
    30;
Sacks
, at para. 83. Writing a jury charge
    can be a complex and difficult task, one that calls for and requires the
    exercise of discretion. Provided those discretionary calls are in compliance
    with the law and the charge as a whole is balanced and provides the jury with
    the necessary tools to properly decide the live issues before them, deference
    must be shown.

[91]

In this case, the trial judge was best
    positioned to determine how to convey the necessary legal principles for the
    jurys consideration. The trial judge had sat with that jury for over a month.
    He had a front-row seat as he watched and heard the evidence unfold. He knew
    the live issues before the court, he knew the parties positions and he knew
    the needs of the jury. While the instruction regarding initiative and
    confidence was unnecessary, I would defer to the trial judges decision to
    provide the jury with that instruction.

[92]

With that said, the appellants point to the fact
    that the trial judge did not stay true to the standard instruction for error of
    judgment found in Justices Jennifer Power, Ronald Skolrood & Lisa Warren,
CIVJI:
    Civil Jury Instructions
, loose-leaf (2019 update), 2nd ed.
    (Vancouver: The Continuing Legal Education Society of British Columbia, 2009),
    at para. 9.10. That instruction reads:

In this case you
    may conclude on the evidence that
[the defendant]
made an error. However,
[the defendant]
maintains (he/she) was not negligent. A doctor is not liable for an
    honest error of judgment provided he or she exercises his or her judgment
    honestly and intelligently in the patients best interests.
[The
    plaintiff]
must satisfy you that
[the
    defendant]
did not exercise the skill, knowledge, and
    judgment of the average
[doctor of this type]
when
    treating the patient.

[93]

I agree that the charge on error of judgment does
    not conform to the attractive simplicity and accuracy of the
CIVJI
recommended instruction. The legal accuracy of an instruction,
    though, should not be measured by its adherence to a specimen instruction. The
    ultimate question is whether the issue has been accurately conveyed to the jury:
Sacks
, at para. 84. Read contextually, I am
    satisfied that the jury understood their task in this case.

CONCLUSION

[94]

I would dismiss the appeal.

[95]

The parties agree that should the respondent
    prevail, a costs award of $50,000 inclusive of disbursements and H.S.T. should
    follow. I would make that costs order.

Released: AH March 20, 2019

Fairburn J.A.
I agree. Alexandra Hoy A.C.J.O.
I agree. Robert J. Sharpe J.A.


