Meloche v. Hotel Dieu Grace Hospital

Meloche v. Hotel Dieu Grace Hospital Collection Decisions of the Court of Appeal Date 1999-09-24 Docket numbers C29715 Judges Brooke, John Watson; Carthy, James Joseph; Doherty, David H. Subject Civil Decision Content DATE: 19990924 DOCKET: C29715 COURT OF APPEAL FOR ONTARIO BROOKE, CARTHY AND DOHERTY JJ.A. BETWEEN: ) ) GREGORY JOSEPH MELOCHE ) Alan J. Lenczner, Q.C. ) and Luis Sarabia Plaintiff ) for the appellant (Respondent) ) ) and ) ) André I.G. Michael HOTEL DIEU GRACE HOSPITAL/VILLA ) and Katharine L. Byrick MARIE (also known as Hotel Dieu of ) for the respondent St. Joseph Hospital), R. DEANS, ) J. RENAUD, D. FAVOT, D. MITCHELL, ) R. BATES, S. MAHONEY, F. TAYFOUR, ) THE METROPOLITAN GENERAL ) HOSPITAL, P. FRANK and S.M. ) SIMPSON ) ) Defendants ) (Appellant) ) Heard: June 28, 1999 On appeal from the judgment of Quinn J., dated April 14, 1998 at Windsor. Meloche v. Hotel Dieu Grace Hospital/Villa Marie (1998) 61 O.T.C. 26 (Gen. Div.) CARTHY J.A.: [1] On September 21, 1993, the plaintiff/respondent, a 24-year old male soft-contact lens wearer, experienced pain in his right eye. He was unable to sleep that night, or the following night, and on the morning of September 23, 1993, presented himself at the Emergency Department of the Hotel Dieu Grace Hospital/Villa Marie in Windsor. The attending doctor diagnosed an abrasion or scratch on the cornea and prescribed a mild dosage of an antibotic, administered externally in drops, with instructions to return in 24 hours. The pain increased and late that evening the respondent attended another hospital emergency room at the Metropolitan General Hospital, where the same diagnosis was given by Dr. Frank, with instructions to return to the Hotel Dieu in the morning. When he did so, the attending doctor diagnosed not only the abrasion, but also a corneal ulcer – clinical evidence that there was an infection in the eye. He was immediately referred to an ophthalmologist, the respondent Doctor Deans, who saw no corneal ulcer and treated him again for the abrasion with instructions to return in 24 hours. When he did return to Dr. Deans a corneal ulcer was evident and the respondent was immediately hospitalized and put on a much more intensive dosage of antibiotic. He lost the sight of his right eye, and waited approximately three and one-half years for a corneal transplant, which restored his vision, with some residual limitations and discomfort. [2] Damages were settled at an undisclosed amount and after a trial of the liability issue. Both Dr. Deans and Dr. Frank, the attending physician at the Metropolitan General Hospital on the evening of September 23, 1993, were found liable. [3] Dr. Frank does not appeal the finding of the trial judge that he failed to meet the required standard of care expected of an emergency physician, but does appeal the finding that his conduct was a cause of the plaintiff’s damages. Dr. Deans appeals both the finding of a failure to meet the standard of care of an ophthalmologist and against the finding of causation. [4] The evidence indicates that abrasions to the cornea are quite common and generally heal within 24 hours when treated with a mild dosage of an antibiotic such as ciloxan, applied externally in drops. Abrasions are identifiable visually and can form an opening in the skin of the cornea for the entry of organisms that can lead to infection. In the present case the organism was pseudomonas. The infection itself is not clinically identifiable until it forms an ulcer which can be seen with the aid of a magnifying lamp, called a slit lamp. Once an ulcer is seen the indicated treatment is a much intensified application of the antibiotic and, in this case, hospitalization in order to assist in its administration to the patient. A MORE DETAILED REVIEW [5] Dr. Favot saw the respondent in the emergency department of the Hotel Dieu Hospital on the morning of September 23, 1993, identified two corneal abrasions, and saw nothing further through use of a slit lamp. He treated the respondent with a mild antibiotic, had a patch put on the eye, and told him to return in 24 hours. The medical evidence of the plaintiff and defendant was that Dr. Favot met the standard of care applicable to an emergency room physician and the claim against him was dismissed. [6] Mr. Meloche was very upset by the increasing pain during the day of September 23, 1993, and at about 11:00 p.m. went to the Metropolitan Hospital to obtain a second opinion. Dr. Frank, the attending physician, did not have a slit lamp available in the emergency department. He examined the eye visually, identified one abrasion, and treated the eye with the same antibiotic that had been prescribed by Dr. Favot. Dr. Frank repatched the eye and told the respondent to return to the Hotel Dieu Hospital in the morning. [7] Dr. Frank did not appeal the finding that he fell below the expected standard of care and it is therefore unnecessary for me to analyze the trial judge’s reasoning on that issue. However, in fairness to Dr. Frank, I would observe that one aspect of the trial judge’s finding is very questionable. [8] At paragraph 15 of the reasons the trial judge says: Dr. Frank did not make observations of the plaintiff’s right eye and compare his observations with those of Dr. Favot. Dr. Frank relied on the diagnosis of Dr. Favot, which diagnosis later proved to be wrong. I would find, therefore, that Dr. Peter Frank’s care of the plaintiff did not meet the standard required in 1993. [9] There was no evidence to suggest that it was Dr. Frank’s duty as an emergency physician at 11:00 p.m. to seek out the medical record created by Dr. Favot at another hospital. Nor was Dr. Favot’s diagnosis proved to be wrong in terms of what was clinically observable. However, there was a dispute in the evidence as to whether Dr. Frank realized that a second opinion was being sought (as the plaintiff claimed), or thought he was dealing with a patient who simply wanted a wet patch to be replaced (as Dr. Frank claimed). The trial judge appears to have preferred the evidence of the patient and, viewed from that perspective, there was sufficient evidence to support the finding against Dr. Frank. [10] On the morning of September 24, 1993, Mr. Meloche attended at the Hotel Dieu Hospital and was seen by Dr. Meyer. Dr. Meyer was not called as a witness and the only evidence emanating from him is the notes made on the emergency record, filed under the provisions of the Evidence Act, R.S.C. 1985, c.5. Those notes indicate an abrasion and an ulcer and the discharge diagnosis is “corneal ulcer/iritis/ + abrasion”. Having seen signs of an ulcer he sent the patient directly across the street to Dr. Deans’ office for immediate consultation by an ophthalmologist. [11] Dr. Dean saw Mr. Meloche immediately and upon examination saw no clinical evidence of infection or corneal ulcer. As a precaution against infection he prescribed a somewhat increased dosage of the antibiotic ciloxan, with instructions to see him within 24 hours or earlier if the condition worsened. [12] On September 25, 1993, Dr. Deans saw Mr. Meloche in the early morning and found evidence of a whitish infiltrate in the anterior chamber of the cornea, indicating that the plaintiff was suffering from a corneal ulcer. He was then admitted to the hospital for more intensive treatment. [13] The reasons of the trial judge in concluding that Dr. Deans’ conduct fell below the expected standard are flawed in several respects. At paragraph 21 he states: Dr. Deans’ notes of the September 24, 1993, examination (exhibit 1-Tab C-1) do not exceed 20 words. The only written reference to the history are three letters at the top of the note ‘S.C.L.’ (soft contact lens). Dr. Deans testified that the plaintiff related the history of his illness to him but it was not recorded. The history and the examination according to Dr. Deans took five to 10 minutes. It is difficult to conceive a thorough history, examination and diagnosis in five to 10 minutes. [14] There was no evidence as to the time necessary to take a history and make this examination. The examination itself is a visual one through a slit lamp and both Dr. Deans and Mr. Meloche testified that the history was taken. In Mr. Meloche’s words “I went over exactly what happened from day 1.” The trial judge then states at paragraph 21: Dr. Deans did not examine Dr. Favot’s observations of September 23, 1993. This documentation was located across the street from Dr. Deans’ office. [15] As indicated earlier, there was no evidence to suggest that it was medical practice to secure the notes of a general practitioner who has given earlier treatment. Dr. Deans was the specialist and, no matter what the notes or reports of other doctors might indicate, he was bound to rely upon his own experience and judgment in making this visual examination. The same criticism was made of Dr. Deans’ failure to examine Dr. Meyer’s records. [16] At paragraph 24 of his reasons the trial judge continues: Dr. Deans’ diagnosis of September 24, 1993 was corneal abrasion. Dr. Deans however, did not treat the plaintiff for an abrasion but an infection. Dr. Deans prescribed ciloxan which was used for infection. Dr. Deans knew in 1993 that corneal ulcers were a frequent complication of corneal abrasions with soft contact lens users. If Dr. Deans suspected an infection, would it not have been prudent, given the plaintiff was a contact lens user, to do the tests that were done September 25, 1993 to confirm or discount the suspicion. [17] The evidence of Dr. Deans was that he prescribed the dosage of ciloxan that was greater than normal because the problem had persisted for 24 hours and he wanted to avoid the possible development of an infection. It was the evidence of Dr. Burt, the expert called by the defendants, that doctors would typically see 2,000 cases of abrasion and only one that led to a corneal ulcer and that it is not good practice to be overly intensive in treatment of an abrasion. As to the last sentence of the above quotation the evidence was that the testing done on September 25, 1993, was precisely the same as done on September 24, 1993, – observation through a slit lamp. [18] However, quite independently of these observations which I have criticized, the trial judge concludes at paragraph 25: “I would find, on a balance of probabilities, that Dr. Meyer’s diagnosis of September 24, 1993 was correct and Dr. Deans’ diagnosis of the same date was not.” [19] It is thus the trial judge’s fundamental finding that Dr. Deans failed to observe what was readily observable on September 24, 1993, and that this is established through the emergency record notes of Dr. Meyer. The filing of records pursuant to the Evidence Act, supra, at p.5, is beneficial both to the medical profession and the administration of the courts, but it is troubling where, as here, such evidence is cryptic and goes directly to the integrity of Dr. Deans diagnosis. If called as a witness, Dr. Meyer may have explained the brief notations so as to permit a more informed assessment of whether Dr. Deans in fact failed to see what Dr. Meyer had seen. In any event, the evidence was before the court, either party might have called Dr. Meyer, and it was open to the trial judge to make the finding he did. [20] I would therefore not disturb the finding that Dr. Deans failed to meet the requisite standard of conduct on September 24 and that the proper diagnosis was delayed for 24 hours. It is on that basis that I will now turn to the issue of causation. CAUSATION [21] The issue is whether the delay in diagnosing the presence of an infection through the identification of the corneal ulcer contributed to the injuries suffered by Mr. Meloche. The trial judge’s analysis is very brief. He refers to Snell v. Farrell (1990), 72 D.L.R. (4th) 289 (S.C.C.), where Sopinka J. reasoned that in certain circumstances where scientific proof of causation is lacking the trial judge may take a “robust and pragmatic” approach to the facts. [22] The trial judge then concludes at paragraph 29 of his reasons: The issue then, in this case, is whether this court can draw an inference that the negligence of the defendants, Drs. Frank and Deans, caused or contributed to the plaintiff’s damage. I have no hesitation in drawing such an inference from the facts of this case. In my opinion, Dr. Peter Frank’s failure to refer the plaintiff to an ophthalmologist on September 23, 1993 and Dr. Robin Deans’ failure to treat the plaintiff’s corneal ulcer on the morning of September 24, 1993, contributed to the plaintiff’s injury. Dr. Burt testified as follows: Q. …So, my question is – if, if, if you didn’t feel that doctor Deans did such a good job with what he did, is it possible that Mr. Meloche would have been left with a more significant scar then he did have such as, for example, the one that’s shown in EXHIBIT 18? A. That’s possible. Q. Yes, And, is it also possible than that given the virulence of pseudomonas if it had been utilized in a greater dosage on the 24th then it was that is siloxane that the size of the scar would have been smaller? A. Well, you’re talking about a difference of perhaps a half a dozen drops. But, you know … Q. We’re not talking about the difference between half a dozen drops. We’re talking about the introduction of what you described as a loading up dose as opposed to the utilization of one drop per hour as doctor Deans testified that he prescribed. And during that critical period when the disease entity is first being attacked with something that has any effect in respect of it would it not make a difference to load up as you described it? A. It’s possible. But then I could say to you, well, if that’s the case then perhaps in those situations we should have injected the drugs and used the other drugs that he did as well. [Emphasis added.] [23] The final answer is somewhat ambiguous, but probably refers to the doctor’s earlier evidence to the effect that it is not good medical practice to overuse antibiotics where they are not specifically required for the clinically observed aliment. However, the more important error of the trial judge is in taking this excerpt out of context and relating causation of vision loss to the size of the scar. [24] In the portion of the cross-examination immediately preceding these questions, counsel made the following inquiry Q. …So what I want to do is direct that same question to you in terms of causation. And if I can try to help you, the, the question as I see it in terms of causation is – would it have made a difference? So what I want to ask you is putting aside your views as to what the appropriate dosage of siloxane was on the 24th when doctor Deans first saw Mr. Meloche, is it not true that a more potent dose of siloxane on the 24th could very possibly have resulted in a better outcome for Mr. Meloche? and Dr. Burt answered, A. Well, there’s several aspects to that I’d address. First of all, if we go back to the nature of the disease. It was going to produce scar. It did produce scar and a little scar is often times just as bad as a lot of scars. So, if we’re talking about his visual outcome, it’s hard for me to imagine that those few extra drops in the first few hours on that day when he did not have an ulcer significantly contributed to the visual end result. In addition, I would say that when those very same orders were prescribed the following day, the day he admitted him plus other drops in association with it, the following day after that he was worse. So, you know, we can’t, I think that’s conjectural. [Emphasis added.] [25] In his examination-in-chief Dr. Burt stated: Q. I want you to comment on the result because we’re in a case here where it’s obvious Mr. Meloche did or Meloche did experience the loss of vision and then required a corneal transplant. This is about some years later. And what do you, what is your opinion of that result in the case of in this case? A. Pseudomonas is perhaps the most feared organism in the eye in terms of the damage it can cause and the severity of visual loss. And, it causes severe disturbance to the cornea. Often times it can go onto to perforating the cornea. A hole opens up in it because it’s only a half a millimetre thick and that kind of gross infection I showed you in that picture destroys the entire cornea sickness[sic]. The cornea can rupture. The infection gets in the eye and you can lose the eye from widespread infection inside the eye. So, I guess what I’m saying is this is a very serious problem with a wide ranging number of sequelae in spite of all of the best therapy we can throw. In this particular and let me say in addition to that that when pseudomonas infects the eye once the part of the apple below the epithelium, the saran wrap is damaged, you have scarring. So, basically, I’m saying to you if you get an ulcer there will be a scar. And if you have a scar if it’s in the centre of cornea impeding vision through that clear window you will have decreased vision. So, invariably, there will be a scar. And with pseudomonas it’s often very severe. I have never treated a culture prove pseudomonas case that did not result in some scarring and if it’s in the centre of the cornea loss of vision under any circumstances. No matter how early I caught them. [Emphasis added.] [26] At a later stage in the examination-in-chief, the evidence with respect to causation was as follows: Q. I understand the standard. We addressed that earlier with His Honour. But we’re simply looking at the issue of the[sic] whether there was a contribution. And, and you have said is there any other thing you want to say as to why you were of that view? A. Well, the first issue is that you’re dealing with an infection that is a very potent serious infection and I think in spite of anything at all that we might do in many of these as I’ve said before it goes onto a serious problem. And it’s very hard for me to imagine that some intermittent patching for pain as was recommended contributed in any way to the end result. Scarring was inevitable when that infection became established and the degree of scarring would[sic] is variable and often very very severe. And in this particular patient I might tell you that the scarring we saw and the end result compared to patients I have seen with pseudomonas infection was excellent, a very good result. I mean not for the patient. He, obviously, had lost vision. But many of these infections perhaps most of them in spite of anything at all we throw at them looked more like that picture. So it’s a serious problem. It, and the potential is there. And I can’t believe that putting a patch on intermittently to relieve some pain had any significant effect on that ultimate outcome. [27] Dr. Burt’s evidence was consistent throughout to the effect that any scar in the center of the cornea would lead to visual impairment and the ultimate necessity of a corneal transplant. There was no need for the trial judge to accept the evidence of Dr. Burt but, in my view, the excerpt he chose dealing with the size of the scar does not diminish or detract from the evidence of Dr. Burt directed to the issue of causation. [28] Most significantly, the trial judge makes no reference to the evidence from the plaintiff’s expert on this subject. Dr. Tokarewicz, an ophthalmologist, submitted a report to counsel for Mr. Meloche and it was subsequently filed in evidence pursuant to the Evidence Act. The report is not critical of the defendant doctors but does not deal with the issue of delay in treatment. Following receipt of that report counsel for Mr. Meloche wrote the doctor with a follow-up inquiry reading We would ask for you to provide us with a further report specifically addressing the following issues: 1. Would the appropriate administration of ciloxan commencing during the morning of September 23, 1993 (when Mr. Meloche saw the first emergency physician, Dr. Favot, which was 24 hours prior to seeing Dr. Deans and 48 hours prior to being admitted), probably have resulted in the organisms causing less damage? 2. What are the preferable dosage and frequency of administration of ciloxan? [29] This letter together with the response were also filed in evidence. The response reads: In reply to your first question; Ciloxan used in conjunctivitis, as recommended by Alcon, is used one to two drops into the infected eye every two hours for two days and then two drops every four hours for five days thereafter. In a corneal ulcer on the first day two drops to be used in the eye every fifteen minutes for the first six hours then every thirty minutes. On the second day, two drops every hour. On the following days two drops every four hours. These are the instructions on the packet that comes with the drops inside. Through the “retrospectascope” one could say that perhaps this may have altered the course of the infection if Ciloxan had been used as a primary agent. One must remember that this however is totally conjectural. [30] The real question for the trial judge was whether these two medical opinions left any room to make a finding of causation on a balance of probabilities through the application of a “robust and pragmatic” approach as referred to by Sopinka J. in Snell v. Farrell, supra, at p.8. In that case, an operation on the eye was continued with knowledge that a haemorrhage had appeared in the eye. The loss of sight was caused by blood deprivation in the eye and the medical specialists called at trial could not attribute a cause among competent alternatives including the continuation of the operation despite the haemorrhage. [31] At p. 297 of Snell v. Farrell, supra, at p. 8, Sopinka J. grappled with the decision of the House of Lords in McGhee v. National Coal Board [1973] 1 W.L.R. 1, (H.L. (S.C.)) which appeared to hold that the onus to disprove causation shifts to the defendant in certain circumstances. Sopinka J. notes the concern that the traditional approach to causation may in certain types of cases deprive a probable victim of tortious conduct of relief, particularly in medical malpractice cases where the physician is usually in a better position to know the cause of the injury than the patient. He notes that McGhee was subjected to careful examination by the House of Lords in Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557 (H.L.(E)) where Lord Bridge reaffirmed the principle that the burden of proving causation rested on the plaintiff and explained the McGhee decision “as promoting a robust and pragmatic approach to the facts to enable an inference of negligence to be drawn even though medical or scientific expertise cannot arrive at a definitive conclusion.” [32] After examining a number of cases Sopinka J. concludes at p.301: These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find it preferable to explain the process without using the term secondary or evidential burden. It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden: see Cross, op. Cit., at p.129. In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted. The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn, although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the … facts” (p.569). [33] And then at pp.305-306: The appellant was present during the operation and was in a better position to observe what occurred. Furthermore, he was able to interpret from a medical standpoint what he saw. In addition, by continuing the operation which has been found to constitute negligence, he made it impossible for the respondent or anyone else to detect the bleeding which is alleged to have caused the injury. In these circumstances, it was open to the trial judge to draw the inference that the injury was caused by the retrobulbar bleeding. There was no evidence to rebut this inference. The fact that testing the eye for hardness did not disclose bleeding is insufficient for this purpose. If there was any rebutting evidence, it was weak, and it was open to the trial judge to find causation, applying the principles to which I have referred. I am confident that had the trial judge not stated that “I cannot go beyond this since neither doctor did and I should not speculate”, he would have drawn the necessary inference. In stating the above, he failed to appreciate that it is not essential to have a positive medical opinion to support a finding of causation. Furthermore, it is not speculation but the application of common sense to draw such an inference where, as here, the circumstances, other than a positive medical opinion, permit. [34] As I read Sopinka J., he is saying that there is room in some cases, where medical evidence of probability is not likely available, for a trial judge to be more than usually assertive in concluding on a common sense basis that cause led to effect. It is, in effect, a generosity afforded to the victim in circumstances where, through no fault of the plaintiff, the probable cause is not susceptible of proof on a balance of probabilities. [35] Lankenau Estate v. Dutton (1991), 79 D.L.R. (4th) 705 (B.C.C.A.), leave to appeal refused [1991] 3 S.C.R. provides an example of the application of Snell v. Farrell, supra, at p. 8, to facts which are somewhat closer to those before this court in that it concerned the timing of a diagnosis. The plaintiff underwent a heart operation during the course of which a congenital displacement of her spine was aggravated and she suffered paralysis. The displacement of the vertebrae was not noticed for some period of time at which point traction was used to move the vertebrae to its approximate original position and relieve the pressure on the spinal cord. The medical experts could not say whether traction applied at the earlier time when the displacement should have been discovered would or would not have assured the plaintiff any restoration of function. [36] After reviewing the judgment of Sopinka J. in Snell v. Farrell, supra, at p. 8, Southin J.A. stated at p. 717: Here, we know what caused the paralysis – it was compression of the spinal cord. What we do not know with certainty was whether the breach of duty, i.e., the failure of timely diagnosis, made even partial recovery impossible. To put it another way, what we do not know with certainty is whether if there had been no breach of duty she would have had some recovery. In my opinion, this is a case for a robust and pragmatic approach to the facts. It is not possible for anyone to do any controlled experiment to find out how much traction applied at what time to a patient in this condition can cause a reversal, in whole or in part, of the paralysis. In a practical sense, it is much more difficult to determine what would have happened if something which ought to have been done but was not done had been done than it is to determine the effect of the doing of something which ought not to have been done. To say that a plaintiff, in the circumstances of a case such as this, has the burden of showing that, if there had been no breach of duty, she could and would have received effective, in the sense of relieving the pressure, treatment, before 1715 on June 12th rather than before the time the appellant says she could and would have received such treatment, namely 1800 hours, seems to me to be importing into the concept of the legal burden of proof a requirement that a plaintiff demonstrate scientifically that which is incapable of scientific proof. If there had been no breach of duty, her recovery even in part was bound to be a near-run thing. But, in my opinion, there was and is sufficient evidence for a finding that she would not have been in such a hopeless condition. [37] Returning to Snell v. Farrell, supra, at p. 8, Sopinka J. gave anxious consideration to whether the traditional causation approach of imposing an onus upon the plaintiff should give way in malpractice cases, at least, to a requirement that those who have knowledge of the allegations be required to disprove causation. He was concerned that plaintiffs in malpractice cases may be deprived of compensation because they cannot prove causation where it, in fact, exists. In the course of rejecting a move in that direction, as indicated in the excerpts quoted above, he stated at p. 299: Adoption of either of the proposed alternatives would have the effect of compensating plaintiffs where a substantial connection between the injury and the defendant’s conduct is absent. Reversing the burden of proof may be justified where two defendants negligently fire in the direction of the plaintiff and then by their tortious conduct destroy the means of proof at his disposal. In such a case it is clear that the injury was not caused by neutral conduct. It is quite a different matter to compensate a plaintiff by reversing the burden of proof for an injury that may very well be due to factors unconnected to the defendant and not the fault of anyone. [Emphasis added.] [38] The judgment as a whole created a new frontier for plaintiffs in circumstances where the causal relationship is uncertain. However, it would be an unjustified extension of that principle to permit speculation in factual circumstances where the evidence on both sides is that the injury was not the fault of anyone. There is no lack of evidence in this case. Both plaintiffs and defendants witnesses have asserted that it would be speculative to associate the delay in diagnosis with the result. The infection came from an unknown source, it was not identifiable until the ulcer was seen, and any ulcer in the center of the cornea leads to vision impairment and the resultant injury. There was no room for common sense between the two book ends of medical evidence refuting causation. The trial judge was not filling in a void with common sense pragmatism. He was rather challenging the medical opinions with one of his own. He pulled a small concession out of the evidence of Dr. Burt, failed to put that concession into the context of the medical evidence as a whole and then erroneously concluded that the size of the scar was related to the ultimate injury. In my view, the trial judge far exceeded the bounds set by Snell and Farrell and should have concluded on all the evidence that the plaintiff’s action failed for want of proof of causation on a balance of probabilities. [39] While the findings were specifically directed to Dr. Deans, the conclusion in these reasons applies equally to Dr. Franks. I would therefore set aside the judgment below and dismiss the action, in the circumstances without costs here or below. Released: September 24, 1999 “JWB” “J.J. Carthy J.A.” “I agree John W. Brooke J.A. “I agree Doherty J.A.”