




CITATION:
Cleveland v. Whelan, 2011
      ONCA 244



DATE: 20110330



DOCKET: C51555



COURT OF APPEAL FOR ONTARIO



Cronk, Blair and LaForme JJ.A.



BETWEEN



Tyler
          Cleveland, Emily Cleveland, and Abigail Cleveland minors by
          their Litigation Guardian, Chris Cleveland, Chris
          Cleveland, personally, and Kim Cleveland




Plaintiffs (Respondents)



and



Hamilton
          Health Sciences Corporation (

Henderson
          General Division),
Donald
          Thomas Whelan
, Narsys Punthake, Frederick Eggleton, Penny Thomson,
          Michael Burger, B. Mark Hildebrand, John Doe, Her Majesty
          the Queen in Right of

Ontario,
          Helen Demshar, John Thornley, John Doe No. 1
          and Jane Doe No. 2




Defendant (Appellant)



Harry C.G. Underwood and Meighan E. Leon, for the appellant



Brian J.E. Brock, Q.C., for the respondents



Heard: October 6, 2010



On appeal from the decision of
          Justice Joan L. Lax of the Superior Court of Justice dated December 15, 2009,
          reported at 2009 CanLII 70130 (ON S.C.).



H.S.
          LaForme J.A.:



INTRODUCTION

[1]

Since 1965, all

Ontario
    newborn infants have been routinely and impersonally screened through the
    administration of a blood test (the Guthrie test) for the presence of phenylketonuria,
    a congenital disorder also known as PKU.  This case concerns testing for PKU.

[2]

PKU is caused by a defect in the activity of the
    phenylalanine hydroxylase enzyme, resulting in the bodys inability to
    metabolize phenylalanine (phe), an amino acid.  If left untreated, PKU can interfere with
    normal brain development and, among other things, result in permanent brain
    damage.

[3]

The Guthrie test is part of the Ontario Newborn
    Screening Program and aims to identify those infants with treatable forms of
    PKU as early as possible.  Infants with
    PKU normally begin treatment around one month of age.

[4]

In 1996, the testing of all newborn blood specimens for
    PKU in

Ontario
    was done by the Laboratory Services Branch of the Ministry of Health (the
    Crown Lab).  Results from Guthrie tests
    were reported back to one of five regional consultants under the Ontario
    Newborn Screening Program.  The regional
    consultant in the respondent Tyler Clevelands case was the appellant, Dr.
    Thomas Whelan.

FACTUAL BACKGROUND

[5]

Elevated levels of phe, which reflect a condition
    called hyperphenylalanemia (hyperphe) may, but need not, be confirmatory of
    PKU. Considerable variation in phe levels can occur. In summary, levels of phe:


●

ranging between 40-80
μ
mol/L
[1]
and usually under 120
μ
mol/L

)

)

generally appear in a
          healthy patient



●

consistently above 480
          or 600
μ
mol/L, but less than
          1200
μ
mol/L

)

)

indicate atypical
          (mild) PKU



●

below 480 or 600
μ
mol/L

)

)

indicate persistent benign
          hyperphe



●

below 480 or 600
μ
mol/L, normalizing within a few
          weeks to months

)

)

indicate transient
          hyperphe



●

mild levels to levels
          as high as 1200
μ
mol/L

)

)

)

may be indicative of a
          rare disorder called biopterin deficiency



●

greater than 1200
μ
mol/L

)

)

indicate severe classical
          PKU



[6]

Tyler and his twin sister were born on September 5,
    1996.

Tylers initial Guthrie test at two days of
    age reported a phe value as elevated, 0.24 mmol/L
[2]
(240
μ
mol/L).  His second Guthrie test at seven days of age
    was again reported as elevated, 0.24 mmol/L (240
μ
mol/L).  For the
    purpose of the

Ontario
    Newborn Screening Program, a phe value at or above 240
μ
mol/L was considered positive for PKU.  Under the Guthrie test, however, the true
    value of phe concentrations could vary by
³
100
μ
mol/L.  Thus, as a
    semi-quantiative test, it did not provide a precise indication of actual phe
    levels.

[7]

Dr. Whelan ordered a third Guthrie test to be taken at
    one month of age.  The third test was
    reported by the Crown Lab as not elevated.  No further clinical or laboratory follow-up was arranged for

Tyler at that time.

[8]

In 1998, as a result of developmental concerns,

Tyler was referred to a
    developmental paediatrician for further investigation.  In August 1999, at the age of almost three,

Tyler was diagnosed with
    classical PKU, the most severe form of the disorder.  At that time, his phe level was measured at
    just above 2400
μ
mol/L.

[9]

In
    the fall of 1999, after
Tylers diagnosis of
    classical PKU, his original newborn specimens were retrieved and retested at
    the Hospital for Sick Children in

Toronto
    using a quantitative testing method.  The
    results of these tests indicated that:

Tylers
    first blood specimen (taken at two days of age) had a phe level of 273

μ
mol/L
; his second specimen (taken at
    seven days of age) had a phe level of 407
μ
mol/L
; and,
    his third specimen (taken at 33 days of age) had a phe level of 85
μ
mol/L
.

[10]




Tyler
s third specimen was also retested
    by the Ministry of Health in October 1999.  This test yielded a phe value of 160

μ
mol/L
.

[11]

Following
Tylers
    diagnosis, the

Cleveland
    family brought an action in negligence against various parties, including the
    Crown and Dr. Whelan.  Prior to trial,
    the action was dismissed against all parties but Dr. Whelan.  The quantum of damages was agreed to and
    approved by the court.

[12]

The action against the Crown was settled on the basis
    that the Crown would be held severally liable for its apportioned share of
    liability, to the extent that the Crown Lab caused or contributed to the
    damages suffered by the

Cleveland
    family.  Accordingly, the trial proceeded
    against Dr. Whelan on the sole issue of liability.

[13]

The
Cleveland family
    alleged that the negligence of the Crown Lab and of Dr. Whelan caused or
    contributed to the failure to make a timely diagnosis of PKU, and thereby
    deprived

Tyler
    of the opportunity to receive appropriate treatment.  They claimed that Dr. Whelan did not meet the
    standard of care required of him by ordering a third Guthrie test following the
    two earlier elevated phe results, rather than ordering a diagnostic assessment.

[14]

In 2004, after this litigation was commenced,
Tylers third blood specimen was tested again, at a laboratory
    in the

United States
,
    utilizing a quantitative testing method that has a positive predictive value
    approaching 100%.  This test produced
    abnormally low amino acid values, compared to values in age-matched newborns.  Much of the expert evidence at trial concerned
    the significance of these low values, and the true phe values of

Tylers blood specimens
    in 1996.

TRIAL JUDGES FINDINGS

[15]

The trial judge made the following findings concerning

Tylers phe values in
    1996:

1)

the result of the Guthrie test of

Tylers first specimen (taken at two days of
    age) was accurately reported as 240
μ
mol/L;

2)

consistent with what would be expected in a case of
    classical PKU, it was likely that

Tylers
    phe value was rising between his first and second Guthrie tests;

3)

the Crown lab underreported the Guthrie test results on

Tylers second
    specimen (taken at seven days of age). Although reported as 240
μ
mol/L, the true phe value of this
    specimen was closer to 480
μ
mol/L;
    and

4)

the true phe value of

Tylers third specimen (taken at 33 days of
    age) was well above the laboratory cut-off of 240
μ
mol/L and could have been as high or higher than 1200
μ
mol/L.

[16]

The trial judge recognized, correctly, that the law
    required that Dr. Whelans conduct be assessed on the basis of the degree of
    care and skill which would reasonably be expected of a prudent and careful
    practitioner of the same experience and standing in the same circumstances:
    see
Crits v. Sylvester
, [1956] O.R.
    132 (C.A.), at p. 143, affd [1956] 1 S.C.R. 991.  In Dr. Whelans case, the degree of skill
    required was that of a similarly situated and experienced metabolic specialist.

[17]

The trial judge further indicated that, [t]he honest
    and intelligent exercise of judgment satisfies [a practitioners] professional
    obligation to take reasonable care in the circumstances, although he may have
    been wrong (citations omitted).  This,
    too, was correct.

[18]

The trial judges central findings concerning the
    standard of care applicable to Dr. Whalen were as follows:

1)

it was reasonable to repeat the Guthrie test after a
    borderline elevated phe value of 240
μ
mol/L
    on

Tylers
    first blood specimen test;

2)

two elevated phe values, as occurred in
Tylers case, should have raised a level of suspicion
    that [

Tyler]
    may have had PKU or a variant.  Accordingly,
    diagnostic testing was required after the second test;

3)

in ordering a third Guthrie test rather than a
    diagnostic test after two elevated phe results, Dr. Whelan focused on whether
    phe levels requiring treatment had been reported in

Tylers case.  However, the relevant question was why a
    newborn like

Tyler
    would have two consecutive abnormal screening test results;

4)

with two positive Guthrie test results just above the
    screening cut-off, the standard of care required the use of a more accurate
    test to investigate further; and

5)

the important question that Dr. Whelan had to answer
    was whether it was safe to discharge

Tyler
    from further follow-up.  He could not
    answer that question without a diagnostic test.

[19]

In the result, the trial judge concluded that Dr.
    Whelans conduct fell below the standard of care in ordering a third Guthrie
    test in circumstances where the reasonable and prudent decision was to order a
    quantitative diagnostic test.  She found
    that Dr. Whelan committed a negligent error of clinical judgment.  However, she held that Dr. Whelan bore a
    lesser degree of fault than the Crown.  The trial judge apportioned liability 75% to the Crown and 25% to Dr.
    Whelan.  Dr. Whelan appeals the trial
    judges liability decision.

POSITIONS OF THE PARTIES

[20]

Although Dr. Whelan raises several grounds of
    appeal, his core argument is that this appeal concerns his discretion to choose
    between two tests to rule out PKU in

Tyler.  He submits that there were no practice
    protocols in place at the relevant time which expressed the applicable standard
    of care in the circumstances.  Thus, he says,
    in the absence of a recognized standard of care, the decision as to which test
    should be administered was within the exercise of his clinical judgment, based
    on his clinical experience.

[21]

Dr. Whelan goes on to argue that reasonable
    physicians could disagree as to which test was the most appropriate test to
    administer.  Accordingly, there had to be
    good reasons, grounded in recognized clinical practice, for holding that his
    exercise of judgment fell below the standard of care.


[22]

The essence of Dr. Whelans
    argument is that,
in arriving at her findings of fact, the trial
    judge ignored, disregarded, or misapprehended the evidence of his expert
    witness, Dr. Clarke.  In support of this
    argument, he submits that the trial judge failed to apply
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674, and the line of cases
    associated with it.
[3]
In
ter
    Neuzen
at para. 38, the Supreme Court held:

It is generally accepted that when a doctor acts in
    accordance with a recognized and respectable practice of the profession, he or
    she will not be found to be negligent.
As LHeureux-Dubé J. stated in [
Lapointe
    v. Hôpital Le Gardeur
, [1992] 1 S.C.R. 351](at pp. 363-64):

Given the number of available methods of
    treatment from which medical professionals must at times choose, and the
    distinction between error and fault,
a
    doctor will not be found liable if the diagnosis and treatment given to a
    patient correspond to those recognized by medical science at the time, even in
    the face of competing theories
.  [Emphasis in original.]

[23]

This court has recognized this principle in numerous
    cases.  See for example,
Connell v. Tanner
(2002), 158 O.A.C.
    268;
Rowlands v. Wright
(2009), 250
    O.A.C. 394;
Brain v. Mador
(1985), 9
    O.A.C. 87, leave to appeal to S.C.C. refused (1985), 13 O.A.C. 79 (note)
    (S.C.C.).

[24]

Dr. Whelans submissions suggest that if a defendant is
    able to advance proof that one reputable body in the community of medical
    professionals in

Ontario
    at the time of the incident would support the conduct and decision making of
    the defendant, the trial judge is virtually compelled to accept that evidence
    and find against negligence.

[25]

This argument proceeds on the premise that by ignoring
    or misapplying the applicable authorities, the trial judge misdirected herself
    on the law of negligence, leading her to wrongly disregard the defence expert
    evidence.  Dr. Whelan also argues that
    the trial judges failure to adequately consider the defence expert evidence resulted
    in palpable and overriding errors of factual determination on both negligence
    and causation issues.

[26]

The respondents, on the other hand, submit that in all
    cases of medical malpractice, the question is whether there was a duty of care
    between the doctor and patient and, if so, whether the standard of care that
    applied in all the circumstances was breached, leading to damages.  If Dr. Whelans approach were taken to the
    extreme, they argue, it would unfairly insulate physicians from liability in
    all cases where conflicting expert evidence as to the standard of care is led.

[27]

The respondents contend that the overarching theme of
    Dr. Whelans arguments is simply that the trial judge should have accepted the
    evidence of Dr. Whelan and his expert, Dr. Clarke, over the evidence led by the
    respondents through their experts, Dr. Vallance and Dr. Chakraborty.  The respondents say that Dr. Whelans claim
    that he was engaged in the exercise of clinical judgment is not supported by
    the trial judges findings of fact or by the evidence.

[28]

I would dismiss the appeal.  First, I disagree with Dr. Whelans
    contention that the principles enunciated in
ter Neuzen
are engaged in this case.  I conclude that the trial judges
    interpretation and application of the law were correct.  Second, in my view, the trial judge did not
    ignore, misapprehend or misapply the evidence.  Indeed, I conclude that her findings were based on a fair and proper
    consideration of all the evidence.

THE EXPERT EVIDENCE

[29]

Given the focus of Dr. Whelans appeal, it will
    be useful to set out, in a brief fashion, the expert evidence that the trial
    judge considered.  The experts called by
    the respondents were:

(i)        Dr. Adeli: Head of Clinical Biochemistry at the Department of
    Paediatric Laboratory Medicine at the Hospital for Sick Children, Professor in
    the Department of Laboratory Medicine at the University of Toronto, and Fellow
    of the Academy of Clinical Biochemistry.  Dr. Adeli discussed the storage history of the blood spots from

Tylers third specimen and
    the results of the 1999 and 2004 retests.  His evidence concerned the standard of care applicable to a laboratory
    conducting newborn screening.  In his opinion,
    there were errors in the testing of

Tylers
    blood spots; such errors, he testified, breached the standard of care
    reasonably expected of a laboratory conducting newborn screening
.

(ii)       Dr. Vallance: Medical doctor with a sub-specialty in biomedical
    genetics, Director of the Newborn Screening Program of British Columbia, and Director
    of the Biomedical Genetics Laboratory and Division Head of the Clinical
    Biochemistry Program at Children and Womens Health Centre of British Columbia.
     She is also a Clinical Professor of
    Pathology and Laboratory Medicine in the Faculty of Medicine at the

University of
British Columbia.  Dr. Vallance discussed the positive predictive
    value for PKU following two positive Guthrie tests.  Her opinion was that after two consecutive
    abnormal results, the standard of care required quantitative testing for plasma
    amino acids.  Dr. Vallance confirmed Dr.
    Adelis opinion that

Tylers
    third blood specimen likely had a much higher phe value than was reported and
    that there were errors in testing this specimen
.

(iii)     Dr.
    Chakraborty: Specialist in paediatrics and medical biochemistry, Assistant
    Professor of Paediatrics and Pathology and Laboratory Medicine at the University
    of Ottawa and the co-head of the testing laboratory for the Ontario Newborn
    Screening Program.  Dr. Chakrabortys
    opinion was that Dr. Whelans decision to order a third Guthrie test, following
    two borderline positive results, did not meet the standard of practice of
    clinical or laboratory medicine at the relevant time.


[30]

The expert evidence called by Dr. Whelan was:

(i)        Dr.
    Clarke: Specialist in paediatrics and biochemistry, former Head of Genetic
    Metabolic Diseases Program and Head of Division of Clinic Genetics at the Hospital
    for Sick Children, and Director of Postgraduate Medical Education in Medical
    Genetics at the University of Toronto.  Dr. Clarke has also pursued clinical research
    for over 35 years on PKU and the impact of treatment for children with PKU, as
    well as serving as member and later Chair of the Ministry of Healths Advisory Committee
    on screening newborns for inherited metabolic diseases.  Dr. Clarke disagreed with Dr. Vallance and
    Dr. Chakraborty on the standard of care.  His opinion was that Dr. Whelans management of the case met the
    standard of care of a metabolic specialist in 1996
.

[31]

I intend to first discuss Dr. Whelans submission that
    the trial judge erred by failing to apply
ter
    Neuzen
in this case.  I will then
    examine his argument that the trial judge further erred by committing palpable
    and overriding errors of factual finding.

ANALYSIS

[32]

Like
    all medical malpractice cases, the issues in this case are ones of tort and
    negligence law.

In
Mustapha v. Culligan of Canada Ltd.
, [2008] 2 S.C.R. 114, at para.
    3, McLachlin C.J., writing for the Supreme Court, explained that a
    successful action in negligence requires the plaintiff to demonstrate that:

1)     the
    defendant owed a duty of care;

2)     the
    defendants behaviour breached the standard of care;

3)     the
    plaintiff sustained damage; and

4)     the
    damage was caused, in fact and in law, by the defendants breach.

[33]

McLachlin C.J. went on to make clear that these
    steps are sequential and separate.  Thus,
    the first question for the court to decide in a negligence action is whether
    the defendant owes the plaintiff a duty of care.  If a duty is owed, the second question is
    whether the defendants behaviour breached the applicable standard of care.

[34]

The concepts of duty of care and standard of care are
    distinct but closely related.  In
Ryan v.

Victoria (City)
,
[1999] 1 S.C.R. 201, at paras. 21 and
    25,

Major J. explained:

[A] discussion of
    duty centres around its existence, while the standard of care clarifies what
    the content of the duty is.  Where there is no duty there is no
    negligence.

...

A duty of care
    either exists or it does not. [W]hen the language of duty is framed in terms
    of its degree or content, what is really at issue is not the duty but the
    applicable standard of care.  While the distinction is obvious, courts
    from time to time seem to lose sight of that principle. [Citation omitted].

[35]

A standard of care,
    therefore, is
the amount
    of care required by certain people under certain situations and is a measure of
    care that satisfies the duty.
In this
    case, there is no issue that Dr. Whelan owed the respondents a duty of care.  At trial, the contentious issue was whether,
    on the established facts, Dr. Whelans conduct in ordering a third Guthrie test
    for

Tyler met
    the standard of care.

[36]

This appeal is thus about how the
    second of the four elements of negligence  whether
the defendants
    behaviour breached the standard of care  is established in a medical
    malpractice case where there is competing expert evidence.  Specifically, the issues are 1) what standard
    of care applied to Dr. Whelan in the circumstances; and 2) whether Dr. Whelan
    breached that standard by ordering a third Guthrie test, rather than a
    diagnostic test, for Tyler.

Standard of Care

[37]

The standard of care applicable to Dr. Whelan required
    that his conduct be assessed on the basis of that degree of care and skill
    which could reasonably be expected of a normal, prudent practitioner of the
    same experience and standing:
Crits
at p. 143.  A specialist, however, is
    held to a higher standard than is a generalist.  As the Supreme Court elaborated in
ter
    Neuzen
at para. 33:

In the case of a
    specialist, such as a gynaecologist and obstetrician, the doctor's behaviour
    must be assessed in light of the conduct of other ordinary specialists, who
    possess a reasonable level of knowledge, competence and skill expected of
    professionals in Canada, in that field. A specialist, such as the respondent,
    who holds himself out as possessing a special degree of skill and knowledge,
    must exercise the degree of skill of an average specialist in his field.
    [Citations omitted.]

[38]

Dr. Whelan argues that the trial judge erred by failing
    to apply what he terms the 
ter Neuzen
principle
    or the respectable minority principle.
[4]
This principle holds that where the practice
    followed by a doctor is adhered to by at least a respectable minority of
    competent medical practitioners in the same field; it is not for the court to
    prefer the practice of the majority over that of the respectable minority.  In other words, a doctor who acts in
    accordance with a respectable minority body of medical opinion will normally be
    absolved of negligence: see for example, Ellen I. Picard & Gerald R.
    Robertson,
Legal Liability of Doctors and
    Hospitals in Canada
, 4th ed. (Toronto: Thomson Carswell, 2007) at p. 362.

[39]

Dr.
    Whelans invocation of the respectable minority principle proceeds in this
    fashion.  First, he relies on Dr.
    Clarkes testimony that Dr. Whelans decision to order a third Guthrie test
    following

Tylers
    first two borderline elevated phe levels met the applicable standard of care in
    1996.  Dr. Whelan submits that, as his
    decision to order a third Guthrie test, rather than a diagnostic test, involved
    the exercise of clinical judgment based on his considerable clinical
    experience, Dr. Clarkes opinion and Dr. Whelans own testimony regarding the
    appropriate third test in the circumstances deserved great weight.

[40]

Dr.
    Whelan next emphasizes that, in his testimony, Dr. Chakraborty, one of the
    respondents experts, acknowledged that he would respect and rely on Dr.
    Clarkes opinion.  Dr. Whelan therefore
    contends that Dr. Clarkes opinion on the applicable standard of care,
    supported by Dr. Chakrabortys testimony, constituted evidence of a respectable
    minority body of medical opinion on the established practice for a third PKU
    test in

Tylers
    circumstances.  As his actions conformed
    with that body of opinion, Dr. Whelan maintains that the trial judge erred in
    finding him negligent.

[41]

I
    would not give effect to this argument on this record.

[42]

This
    is not a case where the trial judge erred by simply preferring one body of
    medical opinion over another respectable and competing body of medical opinion
    concerning the appropriate medical practice.  This is a case where the trial judge
    considered and weighed the conflicting testimony of the expert witnesses on the
    operative standard of care.  She
    concluded that Dr. Clarkes opinion on the standard of care suffered from a
    number of frailties and was not sufficiently reliable to establish the existence
    of a respectable minority opinion.  The
    trial judge therefore accepted the evidence of Dr. Vallance and that of Dr.
    Chakraborty that, in

Tylers
    case, after two consecutive abnormal phe values on Guthrie tests, the standard
    of care required quantitative testing for PKU.  In my opinion, the trial judge did not err in
    doing so.

[43]

In
    his testimony, Dr. Clarke emphasized that at the time of the original testing
    of

Tylers
    blood specimens, it was common practice to conduct repeat Guthrie tests until
    it was determined whether hyperphe was treatable.  He said that two successive Guthrie test
    results of 240
μ
mol/L were suspicious but that
    this was insufficient to require diagnostic investigation since the second test
    result indicated that the patients phe level had not risen.  In the absence of a rise in the phe level by
    the time of the second test, Dr. Clarke was of the opinion that it was less
    likely that treatable hyperphe would develop.

[44]

The
    trial judge concluded that there were three key difficulties with Dr. Clarkes
    evidence on this issue.  First, his
    opinion rested on the premise that the relevant question at the time of
    determining the appropriate third test was whether

Tyler had developed treatable hyperphe.  However, the trial judge held that the
    important question that Dr. Whelan had to answer was whether it was safe to
    discharge [

Tyler]
    from further follow-up, and that this question could not be answered without a
    diagnostic, rather than a repeat screening, test.  In other words, the necessary inquiry was
    whether treatment or early intervention was necessary.  The evidence of both Dr. Vallance and Dr.
    Chakraborty supported this finding.

[45]

For
    example, Dr. Vallance testified that after a second positive phe result, as
    occurred in this case, a baby has about a 50% chance of being diagnosed with
    PKU or a variant.  Although Dr. Clarke
    disagreed, Dr. Chakraborty criticized Dr. Clarkes analysis and expressed the
    opinion that after a second Guthrie test resulting in a borderline positive phe
    value, a patient is at increased risk of having PKU.  In his view, the available scientific data
    supported up to a 50% chance of some babies being diagnosed with PKU after a
    second positive phe result.  Accordingly,
    in these circumstances, a quantitative test should be conducted to determine if
    treatment or early intervention is required.  The trial judge accepted this evidence,
    stating:

Two
    elevated [phe] results should have raised a level of suspicion that [

Tyler] may have had PKU or
    a variant and diagnostic testing was required. This is reinforced by the fact
    that the concentration measured using the semi-quantitative Guthrie test can vary
    by ≥ 100
μ
mol/L.

[46]

Second,
    the trial judge, in effect, concluded that Dr. Clarkes evidence on the
    significance of

Tylers
    first two phe values was internally inconsistent.  Dr. Clarke testified that two elevated phe
    values at the cut-off point of the Guthrie test were suspicious.  However, he also suggested that the second phe
    level had not risen over the first and, therefore, there was a reduced
    likelihood of the development of treatable hyperphe.

[47]

The
    trial judge rejected this inconsistent hypothesis.  She put it this way:

I
    do not understand how a second positive Guthrie at 240
μ
mol/L can be both reassuring and suspicious. On Dr. Clarkes analysis,
    a third screen [a third Guthrie test] with no rise in phe would be more rather
    than less reassuring.

I see no error in this reasoning.  Indeed, I agree with it.

[48]

Moreover,
    contrary to Dr. Clarkes contention that
Tylers
    second Guthrie test result indicated no rise in his phe level, there was
    evidence at trial indicating that, properly interpreted and taking account of
    various specimen storage factors and laboratory errors, it was likely that

Tylers true phe value was
    rising between his first and second Guthrie tests.  As I have already indicated, the trial judge
    accepted this evidence, as she was entitled to do, and found as a fact that the
    true phe value on

Tylers
    second Guthrie test was closer to 480
μ
mol/L.  There was ample evidence at trial to support
    this finding.

[49]

Third,
    Dr. Whelans evidence of his own practice did not accord with Dr. Clarkes view
    that diagnostic testing was not required until evidence of treatable hyperphe
    had emerged.  Dr. Whelan testified that
    babies with three successive Guthrie test results at
untreatable
phe levels of 240
μ
mol/L were
    subjected to diagnostic testing.  In
    other words, Dr. Whelans practice at the relevant time did not support the
    suggestion that diagnostic testing need not be undertaken until an indication
    of treatable hyperphe, evidenced by a rise in phe levels, existed.

[50]

The
    trial judge regarded all these factors as cogent reasons for rejecting Dr.
    Clarkes opinion on the content of the applicable standard of care.  I agree.

[51]

The
    courts have recognized that the respectable minority principle does not absolve
    a doctor from liability in negligence whenever there is a conflict in the
    expert evidence led at trial concerning the reasonableness of a doctors
    conduct: see
Kangas v. Parker and Asquith
,
    [1976] 5 W.W.R. 25 (Sask. Q.B.), at pp. 38-39, affd [1978] 5 W.W.R. 667 (Sask.
    C.A.);
Cope v. Layden
, [1984] A.J.
    No. 175 (C.A.);
Kehler v. Myles
(1988), 64 Alta. L.R. (2d) 97 (C.A.), at p. 106, leave to appeal to S.C.C.
    refused (1989), 95 A.R. 236;
Alakoozi v.
    Hospital for Sick Children
(2004), 187 O.A.C. 187 (C.A.), at paras. 5-7.  As Picard and Robertson point out in
Legal Liability of Doctors and Hospitals in
    Canada
at p. 364, were it otherwise, nearly every medical negligence case
    would be resolved in favour of the doctor, because they almost always involve a
    conflict of expert evidence.

[52]

The
    decision of the Manitoba Court of Appeal in
Anderson
    v. Chasney
, [1949] 4 D.L.R. 71, affd [1950] 4 D.L.R. 223 (S.C.C.) is
    instructive in this regard.  In


Anderson
,
    the defence argued that if the defendant surgeon followed what was established
    by expert evidence to be a general surgical practice, no finding of negligence
    could be made against the defendant.  In
    rejecting the proposition that expert evidence of common medical practice was
    conclusive of the question of negligence, Coyne J.A. commented at p. 81: [I]f
    that were correct the expert witnesses would, in effect, be the jury to try the
    question of negligence.  He went on to
    hold at p. 81:

That
    question, however, must continue to be one for the petit jury empanelled to try
    the case, if it is a jury case, and for the Court where it is not.  The experts remain witnesses to give their
    expert opinions in assistance of the jury or the Court to determine whether
    there was negligence or not.  The
    opinions of the experts are not conclusive.

See also pp. 88-89.

[53]

Moreover,
    courts have the discretion to assess liability even in the face of
    uncontradicted evidence of common professional practice.  As LHeureux-Dubé J. stated in
Roberge v. Bolduc
, [1991] 1 S.C.R. 374,
    at p. 437:

The
    fact that a professional has followed the practice of his or her peers may be
    strong evidence of reasonable and diligent conduct,
but it is not determinative
.  If the practice is not in accordance with the general standards of
    liability, i.e., that one must act in a reasonable manner, then the
    professional who adheres to such a practice can be found liable, depending on the
    facts of each case.  [Emphasis in
    original.]

[54]

In this case, the trial judge essentially concluded
    that the expert evidence did not establish that Dr. Whelans decision to order
    a third Guthrie test in the face of two successive borderline elevated phe
    levels, instead of ordering a diagnostic test, accorded with a practice adopted
    by a respectable minority of the medical profession. In other words, on the
    totality of the evidence in this case, the respectable minority principle was
    simply not engaged.  I see no reversible
    error in the trial judges conclusion on this issue.

Breach of Standard of Care

[55]

Once
    the trial judge had determined what the standard of care required, the question
    of breach was rather simple.
Having found that the applicable standard required the ordering of a
    diagnostic test
after
    the positive screening tests
,
the factual question was simply whether or not Dr. Whelan had ordered
    such a diagnostic test.  The answer was
    that he had not and thus that he had breached the standard of care.  One could imagine a case where the factual
    determination of whether or not a breach had occurred would be more complicated
    and perhaps require further expert evidence, but that was not the case here.

Attack on Trial Judges Factual Findings

[56]

As I noted above, the overarching theme of Dr. Whelans
    arguments is that the trial judge should have accepted the evidence of Dr.
    Whelan and his expert over the evidence of the respondents experts.  In this context, he attacks the trial judges
    factual findings on several grounds.  I
    view it as unnecessary to address each of these grounds separately.  Rather, I will discuss those submissions that
    I believe have relative merit.

(i)        Dr. Whelans clinical judgment

[57]

The first argument relates to the trial judges finding
    that Dr. Whelan negligently exercised his clinical judgment in choosing a
    third Guthrie test because he did not inform himself as to whether

Tyler had any condition
    which would cause benign transient hyperphe.  Dr. Whelan contends that the judge erred in making this finding.  I would reject this submission for several
    reasons.

[58]

First, as I have said, Dr. Whalen asserts that there
    were no practice protocols in place that expressed the standard of care in the
    circumstances of this case.  That is, at
    the time of the 1996 testing, no protocol existed to guide the Ontario Newborn
    Screening Program or any of its five regional centre staff as to the
    appropriate test to be conducted following two borderline elevated phe values
    in a newborn on Guthrie tests.  Therefore, he says, the decision was one for the exercise of his clinical
    judgment, based on his clinical experience.

[59]

Dr. Whelans counsel in oral argument stated that
    clinical judgment, in this case, means adopting a protocol or standing order
    which is informed by the doctors clinical experience and consistent with logic
    and common sense.  Thus, he argued, the
    decision in question was a matter about which reasonable physicians could
    disagree.  Accordingly, there had to be
    good reasons, grounded in recognized clinical practice, for holding that Dr.
    Whelans exercise of judgment fell below the standard of care.

[60]

Dr. Whelan, as regional consultant, was responsible for

Tylers case.  However, he did not actively take part in any
    decision making regarding his case.

Tylers test results were
    received and managed by a genetic counsellor at Dr. Whelans offices, Tim
    Heshka, pursuant to routine and standing orders provided by Dr. Whelan.

[61]

Thus, in spite of his position, Dr. Whelan does not
    appear to have made any specific clinical decisions with respect to

Tyler.  As found by the trial judge, Tylers third
    repeat Guthrie test arose as a result of Tim Heshka following the routine
    standing orders of Dr. Whelan.  It was
    not the result of a conscious decision that was specifically and particularly
    related to

Tyler.

[62]

The trial judge was very much alive to this issue,
    noting that the honest and intelligent exercise of judgment, even if
    mistaken, satisfies a doctors professional obligation to take reasonable care
    in the circumstances.  In para. 55 of her
    reasons, she rejected the argument that what occurred in this case was the
    exercise of clinical judgment by Dr. Whelan.  After reviewing the relevant evidence, she
    concluded:



Tyler
    had none of [the factors that might suggest transient benign hyperphe], but Dr.
    Whalen did not know this, nor did he seek out this information. This kind of
    information could have provided some reassurance that

Tylers elevations were transient, but
    without it, I find it difficult to accept that the routine third test that Mr.
    Heshka arranged was based on an exercise of Dr. Whalens clinical judgment.

[63]

In light of this finding, Dr. Whelans
    assertion that he exercised clinical judgment is without any factual
    support.
Dr. Whelans evidence as
    to the reasonableness of a decision that was not made by him, as the
    respondents note, is no more than historical reconstruction posed in a way that
    was designed to give it the appearance of immediate direct contemplative
    thought.  No such contemplation occurred
    here.
I would reject this
    argument.

(ii)       The trial judges treatment of expert evidence

[64]

Next, Dr. Whelan submits that the evidence of Dr.
    Chakraborty should have been given less weight than it was.  This is because, in his testimony, Dr.
    Chakraborty acknowledged that providing an opinion in this case required him to
    apply in a retrospective way what he knows now but did not know in 1996.  And, as the trial judge noted at para. 37:

Hindsight has no role to play in evaluating conduct
    that is said to fall below a reasonable standard of care.  Practices change and standards evolve.  As much as possible, one must try to go back
    and experience the event as it was then. [Citations omitted.]

[65]

Dr. Whelans counsel at trial objected to Dr.
    Chakrabortys qualifications to give expert evidence on the standard of care as
    it existed in 1996.  Dr. Chakraborty, who
    is the current head of the Ontario Newborn Screening Program, had his
    qualifications carefully reviewed by the trial judge as a result of this
    challenge.  The trial judge held that he
    was qualified to provide the proffered opinion evidence.  That ruling has not been appealed.  The trial judge, therefore, was entitled to
    consider Dr. Chakrabortys expert opinion evidence and to assign to it the
    weight, if any, that she considered appropriate.

[66]

Further, even if the trial judge had given little or no
    weight to Dr. Chakrabortys evidence, the evidence of Dr. Vallance still
    conflicts with that of Dr. Clarke.  Moreover, for the reasons I have outlined above, the trial judge would
    still have had a firm basis on which to reject the evidence of Dr. Clarke.  There is, therefore, no substance to this
    argument.

(iii)     The effect of two positive phe results

[67]

Finally, Dr. Whelan argues that because PKU is
    associated with high concentrations of phe long before one month of age,

Tylers results were not
    indicative of PKU.  After the second
    test, Dr. Whelan thought that the likelihood of PKU had diminished. This was
    because, in his opinion, the phe concentration did not rise in the five days
    between

Tylers
    first and second Guthrie tests.  Therefore,
    he felt a third screening test was appropriate.

[68]

I have already discussed the trial judges
    consideration of this issue.  She found
    as a fact, on all the expert evidence, that

Tylers phe level was likely rising between
    his first and second Guthrie tests.  This
    finding was open to her on the evidence.

[69]

Moreover, in his own evidence, Dr. Whelan said that he
    would have sent
Tyler for quantitative testing
    had

Tylers
    third screen resulted in a phe value at or above 240
µ
mol/L.  Thus, in effect, Dr.
    Whelan testified that two borderline screens plus a third borderline elevated
    result suggest transient benign hyperphe.  There was no explanation as to why three borderline positive phe values within
    one month would be significantly more cause for concern than two, given the
    evidence that transient hyperphe may last longer than a few weeks.  Why would three borderline positive screens
    call for quantitative testing, while two borderline positive screens would not?

[70]

The respondents experts, Dr. Vallance and Dr.
    Chakraborty, both testified that in light of
Tylers
    two positive phe test results, the standard of care at the time required that

Tylers condition should
    be individually and personally investigated clinically.  This direct approach, they said, would
    absolutely mandate the use of a simple, available and inexpensive amino acid
    quantitative blood test.

[71]

All the respondents experts agreed that the amino acid
    quantitative blood test would provide

Tylers
    doctors with an accurate reading of his phe plus or minus 10
μ
mol and would lead to an informed
    clinical diagnosis.  No such test was
    suggested by Dr. Whelans genetic consultant, Tim Heshka, or by Dr. Whelan
    himself.  I would dismiss this ground of
    appeal.

CONCLUSION

[72]

I conclude that Dr. Whelan has not provided any grounds
    for this court to interfere with the decision of the trial judge.  First, the trial judges determination of
    what constituted the standard of care and her application of that standard of
    care to Dr. Whelans conduct were correct.  Second, the findings of the trial judge were
    supported by the evidence presented to her.  She was entitled to accept or reject all or part of the evidence of any
    witness.  And, on my review of her
    reasons and the record as a whole, I conclude that Dr. Whelan has not established
    that the trial judge committed any palpable and overriding errors that would
    support this courts intervention.

DISPOSITION

[73]

For the reasons herein, I would dismiss the
    appeal.  Pursuant to the agreement of the
    parties, I would award the respondents their costs of the appeal, fixed in the
    amount of $25,000, inclusive of disbursements and taxes.

RELEASED:

MAR 30 3011                                           H.S.
    LaForme J.A.

EAC                                                            I
    agree E.A. Cronk J.A.

I
    agree R.A. Blair J.A.





[1]
Micromoles per litre.



[2]
Millimoles per litre.



[3]
This
    line of cases referenced by Dr. Whelan includes:
Brimacombe
v.
Matthews
(2001), 87 B.C.L.R. (3d) 75  (

C.A.
),
    at paras. 75-77;
Fairley (Guardian ad
    litem of)
v.
Waterman,
2002 BCSC
    10, at paras. 11, 42;
Dudas (Guardian ad
    litem of)
v.
Munro,
1997 CanLII
    4313 (BC
S.C.), at paras. 4-6;
Bafaro
v.
Dowd
, 2008 CanLII 45000 (ON S.C.), at paras. 37-38, affd (2010),
    260 O.A.C. 70 (

C.A.
).



[4]
While it
    is true that this principle is sometimes referred to as the
ter Neuzen
principle, this naming is
    unhelpful because
ter Neuzen
involved
    two distinct principles.  Although the
    court did mention what is known as the respectable minority principle, the
    focus of the decision was the principle that in some cases the trier of fact
    can reject a standard medical practice as inherently negligent where the
    practice is fraught with obvious risks: see
ter Neuzen
at paras. 41-42.


