Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Civil liability - Negligence - Damages - Medical malpractice by omission - Superior Court finding two doctors partially liable for catastrophic development of breast cancer in young mother who consulted them but unable to obtain mammogram - In judgment rendered after patient’s death, Court of Appeal finding no causal connection between faults committed and most of damage suffered - Whether intervention of Court of Appeal constituted unwarranted re-assessment of evidence - Whether intervention constituted unwarranted shifting of burden of proof with respect to causal connection between fault and damage in cases concerning medical malpractice by omission, making this burden impossible to discharge in cases involving virulent cancer - Whether intervention unreasonable as regards quantum of non-pecuniary damages.

In July 1998, the patient sought medical advice for a problem with her right breast and tried to obtain a mammogram. None of the doctors consulted followed through on this request. The first doctor noted a dysplasia and suggested a follow-up by her family physician. The second (Dr. Bouchard), a gynecologist, noted a number of symptoms but immediately ruled out any serious problems. In December 1998, after the suspicious lump had grown and the pain had become worse, a third doctor gave the patient information on dysplasia. Then a fourth doctor (Dr. Fisch), who noted a 2-cm x 2-cm dysplastic lump, suggested that it be lanced and made an appointment for a year later. In January 1999, the patient went back to see the first doctor at a clinic; the doctor noted a significant increase in the size of the lump and ordered a mammogram. The results led to a biopsy and a diagnosis of cancer. On February 12, 1999, a mastectomy was performed; the surgeon noted ganglionic and lymphovascular invasion. The patient received chemotherapy and radiation treatments that led to a remission. After an initial relapse in 2001 and a second in 2002, the cancer spread and the patient died in August 2003. In April 2003, the Superior Court found a causal connection between the doctors’ negligence and the quickness of the relapses; it awarded damages to the patient and her family. In July 2005, the Court of Appeal reversed this finding and awarded damages only for mental distress caused by the discovery of the negligence of one of the doctors.