April 11, 2017
Doyon, Savard, Mainville
Application for leave to appeal de bene esse, nunc pro tunc of Waddell. Allowed; the appeal is dismissed. Appeals of M.G. in her capacity as tutor to the child X against Waddell. Allowed in part. Incidental appeals of M.G. personally and of D.Q. against Waddell. Dismissed. Application to declare the appeal abusive. Dismissed. Appeal of M.G. in her capacity as tutor to X and personally against Pinsonneault. Dismissed.
X was born on May 27, 1999, following a delivery that was arduous, to say the least, and performed by two obstetricians, Pinsonneault and Waddell. Waddell used forceps, which caused lacerations and left permanent scars on the child’s face. The child’s parents instituted proceedings against the physicians. The trial judge found Waddell liable solely in regard to the duty to inform. In the judge’s view, he merely told the couple of his decision to use medium forceps, without explaining the reasons for his choice or the risks and benefits of using forceps as opposed to proceeding by caesarian. Moreover, he disregarded the mother’s expressed wish to deliver her baby by caesarian, even though there was no serious contraindication to proceeding with that type of delivery. The judge therefore inferred that if Waddell had respected his patient’s wishes, or if he had asked her spouse to choose the type of delivery in the event of her incapacity, [translation] “no attempt to deliver the baby by forceps would have been made, her shoulders would not have been blocked during the extraction, no extraction maneuver would have been required, the mother would not have suffered a fourth-degree laceration, and X would not have suffered a brachial plexus injury or any scars on her face”. This conclusion had the effect of breaking the causal connection between the fault committed during the treatment provided by Pinsonneault (hyperstimulation) and the final damage. The judge therefore found Waddell solely liable for the following amounts: $198,954 to the mother in her capacity as tutor to her daughter, $41,152 to the mother personally, and $10,000 to the father. Dissatisfied with the outcome, all parties appealed, except Pinsonneault, who is, however, the respondent in the appeal brought by the mother.
No fault may be ascribed to Pinsonneault. As for Waddell’s liability, no satisfactory reason was provided to explain the unfortunate result of the use of forceps. But establishing the presence of sequelae is not sufficient to establish fault. The mere concurrence between the medical procedure and the injury do not necessarily lead to the inference that the procedure was faulty, which, in fact, was not the case here. The judge did not commit a palpable and overriding error in his finding that the mother had requested a caesarian and that Waddell disregarded her request. Waddell had a duty to inform, and he had to obtain the consent of the mother or her spouse, depending on the circumstances, before proceeding with forceps. Physicians have the duty to inform their patients of the various possible solutions, particularly when they run different risks. That was the case here because caesarian was an option for the mother. The breach of the duty to inform was thus correctly established by the judge.
As for the damage suffered, the evidence reveals that the injury resulted in functional physical limitations for the child that will restrict her career choices, but without preventing her from being able to work. The limitations established in regard to manual work, writing, and using a keyboard will certainly take a toll on the child’s productivity. Insofar as loss related to the heavy burden on the child’s productivity is likely, it must be compensated as pecuniary loss even if the quantum established is merely a reasonable approximation of the loss. In this context, the judge’s refusal to award damages for pecuniary loss was based on the error he committed in failing to draw the necessary inferences from his findings of fact. The amount of $70,000 is fair and reasonable in the circumstances because it does justice to the child. With respect to the other amounts awarded by the judge, the Court’s intervention is not warranted.
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