Albert Benhaim, et al. v. Cathie St-Germain, personally and in her capacity as tutor to her minor son, whose name is being kept confidential, and in her capacity as universal legatee of the late Marc Émond

(Quebec) (Civil) (By Leave)

(Publication ban in case)


Civil liability - Evidence.


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Civil liability - Medical malpractice - Causation - Evidence - Presumptions - Negative inference - Absence of direct evidence enabling complainants to prove causation because of fault of physicians - Should the trial judge’s factual conclusion that there was no causation stand? - Whether the decision to draw an inference or not is a question of fact or of law? - Whether the Court of Appeal improperly intervened?

Cathie St Germain brought a medical malpractice suit, in her own name and in her capacity as universal legatee and as tutor to her minor son, against the attending physician and the radiologist of her spouse, Marc Émond, who had died of lung cancer in 2008 at the age of 47. She argued that the applicants had failed to detect and investigate the presence of a nodule on her spouse’s right lung, which had appeared as a shadow on a lung X ray taken by chance in November 2005, and had failed to propose a course of action that would have allowed for early diagnosis and full recovery. She claimed a total of $3,780,000 in damages. In their defence, the applicants argued that a diagnosis in November 2005 would not have allowed Mr. Émond to recover because the cancer was already at an advanced stage.

The Superior Court held that the physicians were at fault in this case but that causation had not been proved. The Court of Appeal set aside the decision.