Friday, April 01, 2011

This Week At The Court of Appeal: 11-04-01

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Cleveland v. Whelan. A negligence tort case where a minor, represented by his parents as litigation guardians, sued a doctor for medical malpractice. Tyler Cleveland was born in 1996 and under blood tests, conducted as part of the Ontario Newborn Screening Program, was found on two occasions to have elevated levels of phenylalanine, an amino acid which in excess quantities can indicate potential for developing phenylketonuria ("PKU"), a congenital disorder which can interfere with normal brain development.

Tyler's doctor, Dr. Whelan, ordered a third screening test, which indicated a non-elevated level of phenylalanine, and no further clinical or laboratory followup was ordered at that time. However, these screening tests - the routine tests performed for the Newborn Screening Program - were only semi-quantitative and could not provide entirely accurate results.

Tyler was diagnosed in 1999 with severe PKU: his original screening samples were retested under a more rigorous and accurate test for phenylalanine, and it was found that all three samples had higher levels of phenylalanine than the semi-quantitative nature of the screening tests would have been able to determine. Tyler, through his parents, brought an action in negligence against various parties, including Dr. Whelan.

At trial, Dr. Whelan was found liable for negligence, and appealed.

His appeal was based on the argument that the trial judge had incorrectly failed to apply the principle in ter Nezuen v. Korn, where a medical practitioner will not be found liable for negligence if, despite choosing a treatment not endorsed by the majority of medical practitioners, said treatment was still generally recognized by medical science as a reasonable alternative adhered to by a respectable minority of competent practitioners.

At trial, Dr. Whelan called one expert witness to the plaintiff's three: Dr. Whelan's witness affirmed that his management of the case met the standard of care of a metabolic specialist at the time, while the plaintiff's witnesses obviously disagreed. Dr. Whelan also noted, in his appeal, that one of the plaintiff's expert witnesses admitted that they would respect and rely upon his opinion where it was given.

The Court of Appeal dismissed Dr. Whelan's appeal. Dr. Whelan's expert witness had stated that in 1996, it was common practice to repeat the standard screening test until it was determined whether a high level of phenylalanine was treatable, and that Tyler's results had been "suspicious" but insufficient to require diagnostic investigation, as the levels he had seemed to have were untreatable despite their elevation.

The Court of Appeal, however, agreed with the trial judge, who had felt that the expert witness had essentially characterized a second high-level test result as being both "suspicious" and reassuring enough to not require additional investigation. They also noted that Dr. Whelan, by his own admission, would order diagnostic testing upon three consecutive tests showing an elevated result where they were all untreatable, which belied his assertion that diagnostic testing was not necessary until treatable levels of phenylalanine could be demonstrated to exist.

Dr. Whelan also argued that since there was no protocols in place expressing the standard of care in Tyler's case at the time, that therefore the decision was up to his clinical judgement.

However, Dr. Whelan was being sued as the regional consultant and not Tyler's physician; although he was responsible for Tyler's care, he was not actively making decisions about Tyler's case. The Court characterized Dr. Whelan's actions in this incidence, then, as merely being his routine standard orders and not a conscious decision specifically relating to Tyler's well-being, which would not satisfy the "honest and intelligent exercise of judgement" to take reasonable care which would satisfy the doctor's professional obligations.

Read-the-whole-case rating: 3. The technical jargon takes a bit of plowing through, but once you get to it there's some interesting discussion of what constitutes the standard of care in medical malpractice cases.

Masters' Association of Ontario v. Ontario. This was an action brought by the Masters' Association specifically on behalf of case management masters. When the province of Ontario introduced case management masters in 1996, they were paid less than traditional masters. In 2000, the Masters' Association sued the province to obtain identical salary, benefits, and security for case management masters as existed for traditional masters.

The province settled at pre-trial, agreeing to tie case management masters' salaries to the SMG3 classification of public employees. However, since then, traditional masters' salaries have increased twice as fast as case management masters' salaries have.

The Masters' Association brought an application for a declaration that case management masters are entitled to the same salary, benefits and security as traditional masters. The application judge declared that s.53(1) of the Courts of Justice Act, which provides the Lieutenant Governor of Ontario with the power to address case management masters' renumeration, was unconstitutional as it failed to sufficiently provide judicial independence to case management masters (who might be influenced by public sector pay rate changes, either actual or potential).

The judge also found the requirement in s.86(5.2) of the Act that the Attorney General approve of any case management master's reappointment over the age of 65 to be similarly unconstitutional. However, the application judge refused to sever the provisions and read case management masters into the existing provisions applying to masters' renumeration, as the Masters' Association requested, stating that he felt the choice of remedy for the situation was best left up to the government. The Province appealed the finding on s.53(1); the Masters' Association cross-appealed seeking the severance and reading-in.

The Court of Appeal dismissed both appeals. In regards to the Province's appeal, although it was that the current pay system for case management masters satisfied the requirements for judicial independence of being objective and effective, the requirement of independence was not satisfied since there was no independent body serving as an intermediary between the government and the judiciary.

The SMG3 classification, established and controlled by the government, could not be considered independent in this sense. The Court of Appeal, however, did note that the problem lay not in s.53(1) of the Act, but in the manner by which case management masters' renumeration was determined in Order-in-Council 458/2003.

The Court also made short work of the Assocation's cross-appeal, stating simply that, following Mackin, it was not appropriate for courts to remedy the situation, since there were multiple ways to address the issue and that the choice of method should be left up to the government if possible. Read-the-whole-case rating: 2.5 since this decision mostly just serves to endorse a prior decision at length, but it's still important for the future of jurisprudence in Ontario.

- Christopher Bird, Toronto
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