The Supreme Court of Canada overturns the Court of Appeal’s decision, dismissing the case and upholding the trial judge’s decision.


The Lapointe’s five-year-old daughter sustained a severe cut to her elbow, resulting in significant bleeding and the severing of an artery. Seeking immediate medical attention, her mother took her to a local general hospital where the appellant, a general practitioner on call, assumed her care. 

A general practitioner performed a vein dissection to administer fluids through an intravenous drip but determined that he could not repair the severed artery. Consequently, he made the decision to transfer the child to a specialized pediatric hospital. 

Before the transfer, the physician contacted the pediatric hospital, describing the seriousness of the injury, the treatment provided, and the potential for the child to go into shock. He drafted a transfer order indicating the patient’s pre-shock condition and arranged for her transportation via ambulance. Upon her arrival at the pediatric hospital, the child suffered a cardiac and respiratory arrest, resulting in oxygen deprivation to the brain and irreversible brain damage, leading to permanent disability. 

The respondents brought a malpractice claim against the appellant and the general hospital. The trial judge found no negligence on the appellant’s part and dismissed the case. 

The Court of Appeal

In this case, the trial judge assessed witness credibility, providing reasons for favoring certain testimonies over others. The appellant, along with the defense’s medical experts, was deemed entirely credible by the trial judge, unlike the doctor who initially treated the child at the pediatric hospital. The judge determined that the appellant exercised sound judgment in deciding to transfer the patient at the given time. Eventually, the child would have needed to be transferred to a better-equipped pediatric hospital. 

The trial judge found it reasonable for the appellant to transfer the child promptly without a blood transfusion. The Court of Appeal’s disagreement on this matter did not stem from a differing standard of liability or the identification of a palpable error in law or fact by the trial judge. Rather, the appellate court simply held a different opinion and substituted its own viewpoint.

However, the Court of Appeal, in a majority decision, overturned the trial judge’s ruling. 

A majority of the Court of Appeal also concluded that the appellant had failed to convey essential information to the second hospital, as the telephone conversation did not adequately alert the on-call doctor to the severity of the patient’s condition. However, the trial judge’s conclusion that the appellant acted diligently in the circumstances was based on the evidence presented, and thus, did not constitute a palpable error. The evidence confirmed that the staff at the pediatric hospital understood the incoming patient’s medical condition.

The Supreme Court of Canada

The central issue before the Supreme Court was whether the Court of Appeal erred in reversing the trial judge’s findings regarding the appellant’s decision to transfer the patient, the decision to forgo a blood analysis and transfusion prior to the transfer, and the information communicated to the pediatric hospital about the patient’s condition during the transfer. 

The Supreme Court clarified that physicians can only be assessed based on the information that is available to them at the time of the event, stating, 

“In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.”

The Supreme Court ultimately overturned the Court of Appeal’s decision and reinstated the trial judge’s decision, dismissing the action. 

Read the full case here

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From CanLII