o0. 11
NOT ES
Medical Liability and the Burden of Proof
An analysis of recent Quebec jurisprudence
The nature of the relationship between a doctor and his patient
and the grave consequences of malpractice warrant the application
of special rules of evidence to establish the liability of a doctor for
damages caused in the execution of his work. The traditional
requirement that plaintiff prove fault, damage and causality is
inadequate in the case of a malpractice suit.
Several recent decisions have accepted
the proposition that
medical liability must be subject to different rules. The courts have
had to formulate these rules to meet two opposing requirements:
on the one hand, there is the recognition that a patient canot be
expected to prove that the doctor has actualily committed a fault
in the performance of his duties; on the other hand, courts realize
that the medical practitioner cannot be expected to guaranty the
results of the treatment and that rules of strict liability would, in
all probability, impede the medical profession by requiring a standard
of excellence that could not be attained. What the courts have in
effect attempted to achieve is a balance of these considerations –
not by an application of strict law, but rather by the use of the
rules of evidence to allow the patient to recover damages yet not
impose upon the doctor a standard of care which would be too
onerous.
In adjudicating upon any particular set of facts, a court will
have to consider the nature of the relationship between the doctor
and his patient. What can the patient expect and what are the legal
consequences resulting from the obligation that the doctor assumes?
Furthermore, what must be proved to establish the liability of the
doctor and how can he exonerate himself from this? An analysis
or recent jurisprudence will show how and why the rules of evidence
play a crucial role in the determination of medical liability.1
I For an analysis of the general rules of civil responsibility of the medical
practitioner and of hospitals, as well as a review of jurisprudence before 1960,
see P.A. Cr6peau, La responsabilitg midicale et hospitalire dans la jurispru-
dence qu6bicoise ricente, (1960), 20 R. du B. 4S3.
MOGILL LAW JOURNAL
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It
is presently generally accepted that the legal relationship
between a doctor and his patient is contractual; 2 this leads to certain
consequences, such as a prescriptive term of 30 years as opposed to
a one year term for delicts causing personal injury, which can be
of great effect in the determination of the case. However, the fact
that it is the rules of contract that regulate the relationship does
not “exclude the possibility that the doctor, in discharging his duties,
may be guilty of delictual fault.” 3 This theory of cumul was accepted
by Mr. Justice Rinfret who concluded that an action by a patient
against his doctor could be either based on contract or delict or both.
Also important for the purposes of imposing liability is the issue
of standard of care expected of a doctor. There is no doubt that
because of the present state of technology and medical knowledge,
the doctor cannot guaranty the recovery of his patient. The courts
have, therefore, to examine the duty of the practitioner and de-
termine liability on that basis.
The civil law principle of ‘bon pare de famille’ has been adapted
to suit the purposes in such cases.4 Fault such as to result in civil
responsibility is determined by a consideration of the general accepted
practice, and the standard of proficiency that a doctor must conform
to is that of the “ordinary competent medical practioner”.5
While the decisions of the courts accept the criterion of the
is interesting to note that
average doctor’s standard of care, it
various courts have used different factors to determine what the
patient was entitled to receive; these factors range from an ex-
pectation that the surgeon “would abstain from acts of negligence” 0
to a right to demand that the doctor be aware of and use the most
recent medical practices and modern techniques and equipment7
2X. v. Mellen, [1957] B.R. 389, at p. 410; Godbout V. Marchand, [1060] B.R.
1132, at p. 1137; Martel V. Hbtel-Diu St-Vallier, [1968] B.R. 389, at p. 398,
reversed in part on other grounds, [10,69] S.C.R. 745; G. V. C. and De Coster,
[1960] B.R. 161, at p. 164; Vdzina v. D., [1061] C.S. 245, at p. 247.
3 Godbout v. Marchand, supra, n. 2 at p. 1134; in this case, the issue was of
considerable importance as plaintiff wished to have a trial by jury which was
available, according to art. 42i of the Code of Civil Procedure, “in all actions
for the recovery of damages resulting from personal wrongs or from offences
or quasi-offences against noveable property.”
4 Beausoleil v. La CommunautM des Soeurs de la Charit6 de la Providence,
[1965] B.R. 37, at p. 45.
5 W. C. J. Meredith, Malpractice Liability of Doctors and Hospitals, (1056),
at pp. 62-63.
6 G. v. C. and De Coster, supra, n. 2 at p. 163.
7 St. Hilaire v. S., [1066] C.S. 249, at p. 269.
No. 1]
NOTES
Most judges, however, simply rely on the general obligation ap-
plicable to all cases of breach of contractual duty; in effect, a doctor
who was prudent, diligent, capable and provided consciencious care,
conforming to the ‘r~gles de l’art,8 will generally not be held liable
for damages. A doctor cannot be expected to comply with a stricter
obligation of result since it is clearly admitted by medical science
that even with the best possible care, accidents entirely beyond the
control of the doctor will still occur.” The courts have taken this
into consideration and this is why they have not imposed ‘a more
onerous duty of care upon the doctors.
The decision of Mr. Justice Casey, in Beausoleil v. La Commu-
nautg des Soeurs de la Charitg de la Providence is a thorough
summary of the present law:
The relationship between a doctor and his patient is contractual; the doctor,
representing himself as having the required skill, undertakes to use his best
efforts in attempting to achieve the desired results; the patient, by putting
himself in the hands of his doctor, agrees to exact no more. If the doctor
in fulfilling his end of the bargain proves to be incompetent or if he is
careless, negligent or imprudent he will be responsible if damages result;
this is malpractice as I understand the term. If on the other hand the required
skill exists and is employed and there is no proof of such negligence the
patient will have no recourse; in these circumstances any accident that may
occur will of necessity be part of the risks that are unavoidable in matters
of this sort.10
Once the courts have established the obligation of the doctor,
there remains a, determination of whether that obligation was in
fact executed. This is where the inadequacy of the traditional re-
quirement that plaintiff prove fault, damages and causality is most
evident. Very often, the patient will not have the expertise and
knowledge necessary to understand the intricacies of medical science.
The courts have, therefore, attempted to use the laws of evidence
to alleviate plaintiff’s burden of proof. However, it seems that while
the courts are agreed that there must be some derogation from the
evidentiary and procedural rules, there is no agreement as to the
exact method to achieve this. The jurisprudence of the past decade
on the point indicates a lack of consensus and often even disagree-
ment on the shifting of the burden of proof and the effects of this.
Several cases dealing with medical liability refer to the Supreme
Court decision in Parent V. Lapointe, which, while dealing with an
action resulting from a car accident, does contain dicta applicable
8 Lafreniare v. H6pital Maisonneuve et autres, [1-963] C.S. 467, at p. 4172;
X. v. Mellen, supra, n. 2 at p. 416.
9 Cardin V. Citd de Montrial, [1961] S.C.R. 655, at p. 658.
l0 [1965] B.R. 37 at p. 40.
McGILL LAW JOURNAL
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to malpractice cases. It is worth quoting tat length since the reasoning
of Chief Justice Taschereau has become the basis of many subsequent
decisions :
When in the normal course of things, an event ought not to take place,
but happens just the same, and causes damage to another, and when it is
evident that it would not have happened if there had not been any negligence,
then it is for the author of this fact to show that there was an unknown
cause, for which he cannot be held responsible and which is the source of
the damage.”1
This dicta in effect seems to introduce the common law principle
of res ipsa loquitur into the civil law of evidence. As will later be
shown, judges have rationalized this by equating the doctrine with
the proof by presumption of Articles 1238-1242 of the Civil Code.
The applicability of the dicta in Parent v. Lapointe to medical
liability was accepted in the Supreme Court decision in Cardin V.
Citg de Montrial, 12 where Chief Justice Taschereau quotes his previous
decision and bases his reasoning on it. The equity and rationale of
the dicta are evident and need no further elaboration. However, the
method by which the courts have attempted to apply it is less than
consistent. The main -difficulty that the courts have to face is to
decide not whether, but rather when the burden of proof shifts to
the doctor so that he may exonerate himself from the presumption
of fault. Furthermore, does the burden of proof shift only as regards
fault or does it also involve a presumption of causality?
How much does the plaintiff have to prove before the burden
shifts? This question has now been decided by the Supreme Court
in Martel v. H6tel-Dieu St-Vallier13 In accordance with that decision,
the plaintiff would have to bring prima facie evidence that in all
probability, the damages would not have occurred unless there
existed a negligence or fault. It must be remembered that all that
is required is the reasonable probability sufficient in all cases of
civil responsibility. Once this evidence has been brought, it is upon
the doctor to show that he was not negligent or incompetent in the
practice of his profession.
Various situations can arise where the ‘determination of medical
liability is the main issue. The clearest cases involve an instrument
left inside a patient during an operation. In such cases, the courts
have no hesitation to state that:
11 [1052] 3 D.L.R. 1 at p. 20; [1952] 1 S.C.R. 376 at p. 381.
12 Cardin v. Cit6 de Montrial, supra, n. 9 at p. 659.
13 [1969] S.C.R. 745 at p. 749.
No. 1]
NOTES
[once the plaintiff has] proved that… [a] clamp had been placed in his
abdominal cavity and then left there his burden …
[is] discharged and the
defendant… [finds] himself in the position of having to explain.14
In cases of this nature, the courts have taken the view that since
the Code allows proof by presumption, the most logical conclusion
that can be reached from the fact of the presence of an instrument
in the patient was that there was fault on the part of the physician.’5
However, in most cases, the issues are not as clearly defined
and the court must base its decision on other considerations. The
next category of situations would involve a fact pattern in which
there is a possibility that the alleged negligence
is in fact not
attributable to the doctor. Mention can here be made of the situation
where a needle breaks and part of it remains in the patient causing
some damage. The breaking in this case can be caused by either a
negligent execution by the doctor, a sudden movement of the patient,
the defect in the needle or any other possible source. In such
eventuality, the court still places the onus upon the doctor since
there is a belief that he is in a better position to understand and
evaluate the events leading to the damage.
This ‘pr6somption de simple n6gligence’ 16 can place upon the
doctor a burden he may have difficulty to rebut. However, the
equity of the situation requires that the onus remain upon him.
He is the expert and he should take all precautions necessary to
assure himself that accidents will not happen. The court must ap-
preciate the fact that accidents beyond the control of the doctor wi’ll
occur and this must be taken into consideration in determining
whether the presumption was rebutted rather than whether the
presumption applies.
The situation most often faced by the courts involves a patient
who, after a treatment or an operation, suffers damages which
should not normally be a natural consequence of such treatment or
operation –
e.g., where “le fait brutal demeure que le… [patient]
est entr6 A l’h~pital plein de saute, et qu’il en est sorti infirme.” 17
A patient who by the traditional rules of evidence is required to
prove fault would very seldom receive compensation –
he does not
understand the treatment nor is he in a position to prove that there
was some fault or negligence on the part of the doctor. It is in this
fact pattern that the burden of proof has the greatest influence in
determining liability.
14 G. v. C. and De Coster, supra, n. 2 at p. 16-.
15 Elder et dame Elder v. King, [1057] B.R. 87 at p. 92.
1e Vgzina v. D., supra, at p. 248.
17Cardin v. Cit6 de Montrial, supra, n. 9 at p. 658.
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Unfortunately, the courts are not applying the rules of burden
of proof with any consistency. One of the points of contention is
whether the plaintiff must prove that the damage was actually
caused by the negligence of the doctor, or whether the entire issue
of causality is included in the presumption that is upon the doctor.
The Superior Court in Lafreni~re v. H6pital Maisonneuve et
Autres decided that the patient must prove causality. In this case,
an action against an anaesthesist was dismissed since there was
no proof of causality made by the plaintiff. The court decided that:
… l’anesth6siste est le seul maitre de son travail, c’est lui qui dolt juger,
au cours de son travail d6licat, lc genre d’anesth~sie qu’il dolt administrer
pour atteindre le r~sultat voulu; l’anesth6siste serait en faute s’il n’avait
pas administr6 l’anesth6sie, soit locale, soit r6gionale, soit g6n6rale, s’il
ltavait administr6e contrairement aux r~gles de l’art et aux techniques
reconnues en pareil cas; il aurait alors commis une faute bien caract6rise;
il n’a pas W prouv6 que l’anesth6sie g~n~rale, jug~e obligatoire par le
m6decin anesth6siste, ait 6t la cause du pneumothorax souffert par le
demandeur apr~s l’op6ration.’ s
Thus, applying the Lafreni~re case would still leave the burden of
proving causality on the plaintiff. However, the rationale for
shifting the burden of proof with respect to fault is applicable to
causality: if the patient is not competent to prove negligence or
any other act or omission which constitutes fault, why is he in any
better position to prove causality?
In the case in which the Court of Queen’s Bench dealt with the
issue of causality, the decision leads to a total negation of the
requirement of causality as an element for imposing liability. The
facts of the Beausoleil19 case are as follows : plaintiff had requested
a general ainaesthetic but -the doctors decided that a spinal was more
appropriate under the circumstances. The anaesthesist administered
the spinal against what the Court found to be the patient’s orders,
and this, the Court concluded, constituted fault under 1053 C.C.
However, the part of the decision dealing with the connection between
the fault and the damage is where the Court allowed the concept of
equity to totally override the necessity of a causal link. In this case,
the Court, by a three to two decision, stated that the fact that:
there was no malpractice in connection with the administration of the spinal
anaesthetic has.., nothing -o do with the responsibility of [the doctor] …. 20
1s [19.63] C.S. 467 at p. 472.
19 Supra, n. 10.
2OIbid., at p. 51. Mr. Justice Owen, after admitting that there was no
malpractice, goes on to say: “the basis of Dr. Forest’s responsibility is not
malpractice in the administration of the spinal anaesthetic but the very act
of administering such anaesthetic against the will of the patient.”
No. 1]
NOTES
The majority decisions imply that once the doctor commits some
fault, he is liable for any damage, whether this is a result of the
fault or not; thus, there is no need to prove causality at all. This,
it is submitted, cannot be accepted as representing the present state
of the law. The court can, in its discretion, shift the burden of
proof, but it should not totally do away with one of the fundamental
requirements for establishing liability for damages. Once the de-
fendant has brought conclusive evidence to show that the admin-
istration of the treatment was completely in accordance with accepted
medical practice, he should be exonerated of liability regardless of
whether he committed a fault totally unrelated to the damage.
In a strong dissenting opinion, Mr. Justice Taschereau states that
the defendant had exonerated himself from the presumption of fault
that rested on him, and this should be enough to free him of liability.
Furthermore, it is upon the plaintiff to show that the damage was
the direct consequence of the negligence or the incompetence of the
practitioner. Medical evidence was brought to show that the type
of anaesthetic used could not norma.lly cause the damage. The best
argument for the requirement of causality is stated by Mr. Justice
Taschereau:
En effet, m~me si le docteur Forest a commis une faute en employant la
m6thode rachidienne, contrairement h la volont6 de la demanderesse,
la
demande doit Atre rejetde vu que de toute 6vidence le prdjudice se serait
6galement r6alis dans le cas oti la demanderesse efit donn6 son consente-
ment h 1’emploi de ce mode d’anesthsie. 21
The Court of Queen’s Bench dealt again with the question of
the role of presumptions in determining causality in H6telDieu
St-Va lier V. Martel.22 Mr. Justice Brossard cites the above quoted
passage from Parent v. Lapointe in support of his view that, even
with respect to the determination of causality, the presumption still
applies. The decision of the Supreme Court in the Martel 23 case
does not discuss the issue but the acceptance of the Parent dicta
may imply approval of the Queen’s Bench decision on that point.
This result is the one which seems most equitable and is the
logical consequence of shifting the burden of proof with respect
to fault. Since the patient cannot be expected to prove fault, he
should not be expected to prove causality.
It must also be noted that the basis for shifting the presumption
of causality cannot properly be the dicta in Parent v. Lapointe. This
21 Ibid., at p. 55.
22 Supra, n. 2 at p. 399.
2
3 Supra, n. 2, at p. 749.
McGILL LAW JOURNAL
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latter case refers to presumption of fault only where “it is evident
that… [the damage] would not have happened if there had not
been any negligence.” 24 The application of the dicta to presumptions
of causality would be valid only where there exists a prima facie
evidence of such causality, and is therefore not applicable if there
is no proof whatsoever of the causal link. It is therefore submitted
that the Courts in Martel v. H6tel-Dieu St-Vallier, as in other cases,
have incorrectly interpreted Parent v. Lapointe and have extended
the meaning of the above quoted phrase beyond what was originally
intended by the Supreme Court.
What then, is the force of the doctrine of res ipsa loquitur in
medical liability cases? In X. V. Mellen, the rule which has been
followed, is stated by Mr. Justice Bissonnette:
Aussi, du seul fait qu’il y ait eu atteinte, non autoris6e, i l’intfgrit6
corporelle du patient, faut-il se garder de conclure, sans preuve, h ]a
responsabilit6 du chirurgien. C’est pourquoi si la r6gle r0s ipsa loquitur
est appliqu~e comme signifiant une responsabilit6 sans faute, elle est, dans
notre droit, irrecevable; par ailleurs, quand on lui donne l’effet qu’elle no
doit faire naltre qu’une pr~somption de l’homme, elle est parfaitement
admissible (art. 1238 et 1242 C.C.).25
The doctrine of res ipsa loquitur is therefore equivalent to the
presumption of fact in civil law and is left to the discretion of the
court. The court can, by using the rules of evidence available to it,
render a ‘decision based more on equity than on strict law.
The doctor -against whom the presumption lies must bring proof
to exonerate himself; the nature of the proof required has been
defined in law. Generally,
proof of proficiency is no defence
to a malpractice suit if it is shown that
the patient’s injury was due to the doctor’s failure to exercise the required
degree of care.20
What then constitutes sufficient rebuttal ? Since the criterion used
to establish fault is whether the prudent medical practitioner would
have acted in a similar fashion, proof of compliance with such a
standard should be enough. In Vezina v. D.,27 the doctor was
exonerated by proving that he acted with diligence, and the Court
concluded that this was sufficient since no more could be expected
of him. Preponderance of proof to the effect that the treatment was
appropriate and conformed with the rules of medical science was
also held to be sufficient to rebut the presumption. 28
2 4 Supra, n. 11.
25 Supra, n. 2 at p. 413.
26 Meredith, op. cit., at p. 63.
27 Supra, n. 2 at p. 250.
28 Gendron v. Duprd et un autre, [1964] C.S. 617 at p. 625.
No. 1]
NOTES
However, in a ciecision of the Court of Queen’s Bench, Mr.
Justice Tachereau stated that in certain circumstances, proof of
conformity with established medical practice is not enough to rebut
the presumption. In G. v. C. and De Coster, evidence was brought
to show that -at the time of the operation in question, it was not
a practice of the profession to count the clamps after an operation.
Thus, while defendant complied with the ‘r~gles de l’art’, the Court
decided that he should have taken “une precaution que la plus
616mentaire prudence indiquait.” 29
In the above mentioned case, the Court, it is submitted, erred
in the interpretation of its role. The courts should not be the watch-
dog of the medical profession and should accept proof of compliance
with established medical practice as sufficient evidence of diligence
and competence. It is inconceivable that a court should dictate what
constitutes proper practice by a practitioner. The medical profession
sets its own standards and the courts should not interfere by im-
posing liability based on different standards. Such interference
would have a very disturbing effect on the practitioner: he could
never be certain that his actions, regardless of whether they con-
formed to the rules of the profession, would not later be condemned
by a court and liability imposed.
One final topic to be considered is whether foreseeability is a
factor in determining liability. In his dissenting decision in the
Beausoleil case, Mr. Justice Taschereau relies on the general civil law
rule that :
the law does not require a prudent man to foresee everything possible that
might happen. Caution must be exercised against a danger if such danger
is sufficiently probable, so that it would be included in the category of
contingencies normally to be foreseen.30
This rule is especially applicable to the medical profession. With
the present state of medical knowledge, there is a risk involved in
every operation and in all subsidiary treatment such as the anaes-
thetic. This being so, the doctor cannot be held responsible for
events he could not ‘predict, (applying the criteria of the competent
medical practitioner).
This is another area where the courts have attempted to impose
standards upon the profession. If medical evidence establishes that
the doctor was not negligent or incompetent in his work, the pre-
sumption should be deemed rebutted. In fact, the Supreme Court
2 9 Supra, n. 2 at p. 167.
30 [1065] B.R. 37 at p. 54, citing the headnote in Ouellet V. Cloutier, [1947]
S.C.R. 521 at p. 522.
McGILL LAW JOURNAL
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imposed a standard of diligence that had not been proved to have
been accepted practice. 31 This decision reversed the Court of Queen’s
Bench 32 which had found that sufficient proof was brought to
establish that there was no malpractice and that the doctor could
not have -done more to prevent the accident.
It is therefore submitted that in a field as highly technical and
specialized as medicine, the court should accept the preponderance
of medical expertise as the basis of its -decision; only where experts
do not agree should ‘a court interfere, and even in such cases, only
by appointing its own expert.
Conclusion
The shifting of the burden of proof is the best technique a court
has available to aid the plaintiff in establishing the doctor’s liability
for damages. However, the courts should adopt some consistent
method to decide how the rules of evidence should be applied. Certain
standard rules must be established and these should be rigorously
followed in order to assure that responsibility will be imposed
according to similar criteria for all -doctors.
A consistent basis must also be used in determining whether
there was in effect negligence or incompetence in the treatment. It
is also imperative that the proof sufficient to exonerate the doctor
of liability be consistent with the rules that impose the presumption
of liability –
if the ‘competent medical practitioner’ is to be the
standard for evaluating a treatment and imposing the presumption
of fault, it should also be the standard for permitting rebuttal. The
patient is entitled to expect a consistent standard of care; the
doctors must not be subject to inconsistent rules of liability.
Andr6 T. Mtcs*
3 l Supra, n. 9.
32 Cit6 de Montrial v. Cardin, [C1960] B.R. 1205.
* Editor-in-Chief, McGill Law Journal.
