Cooper v Flood, 2016 ABCA


Republished in part// Emphasis added

The Court:

I           Introduction

[1]               The appellants, Dr. Flood and Dr. Yiu, appeal a trial judgment finding them to have breached the relevant standard of care owed to their patient, Mrs. Cooper, when conducting a TVT Procedure on her in 2004: see Cooper v Flood, 2015 ABQB 567 (CanLII). The TVT Procedure is a Tension Free Vaginal Tape Procedure in which mesh tape is placed under the urethra to act as a sling or hammock to keep the urethra in its normal position so it does not sag and leak urine. It is a surgical option for stress urinary incontinence.

[2]               Mrs. Cooper suffered a perforated bowel, and consequent damages, during the procedure. The main thrust on appeal is whether the trial judge erred, both in law and in misapprehending the medical evidence, by finding that the TVT Procedure was performed negligently by Drs. Liu and Flood, the former as the handler of an instrument called a trocar, and the latter as supervisor of the surgical procedure. On appeal there is no issue as to informed consent, which the trial judge found to have been given by the plaintiff before the surgical procedure.


III        Discussion

[11]           The appellants argue that the trial judge misapprehended the medical evidence, particularly that arising from the corrective surgery performed by Dr. de Gara as observed by Dr. Flood, to rule out a non-negligent cause for the injury. The appellants emphasize that, in doing that work, Dr. de Gara did not open up the pelvic area but only the abdominal cavity. Dr. Flood was in attendance at that time.

[12]           Based on this, the appellants firstly contend that neither Dr. de Gara nor Dr. Flood were in a position to observe any anomaly in the pelvic region which may have caused the trocar to go off course and which might have established a non-negligent cause for the injury. Thus, their failure to observe any such anomaly was impossible from that vantage point and should not be used as makeweight against them in the sense that there was, therefore, no evidence to support a finding of the existence of such an anomaly.

[13]           Secondly, the appellants contend that the trial judge’s finding that the trocar was “off course” not once, but twice, should not have been a basis for a finding of negligence. The appellants contend that it is unlikely that the trocar was manipulated negligently twice successively but that such an event suggests that an anomaly must have been present in the pelvic cavity to move the trocar off course and, therefore, the appellants are not liable for the bowel perforation.

[14]           In both respects, the appellants essentially suggest that the plaintiff failed to meet the burden of proof of negligence by failing to exclude non-negligent happenstance as the cause of the injury.

[15]           Associated with this position is the appellants’ contention that, by finding a prima facie case of negligence in that the trocar was “off course” twice and the bowel was perforated during the procedure, the trial judge reversed the onus of proof by requiring the appellants to disprove negligence and to prove a non-negligent cause of the bowel perforation. As such, they argue in effect that the trial judge — although in our view he was aware of the removal by Fontaine of the concept of res ipsa loquitur – slipped back into such a presumption and erred in law because he adopted the view that if the evidence proves a prima facie case of negligence, not merely a prima facie case of harm, a trier of fact’s search for alternative non-negligent causes can be informed by that prima facie case.

[16]           We are satisfied that the trial judge properly framed the larger legal debate arising from the evidence when he summarized the law as follows:

139      The principles concerning whether a medical professional met his or her standard of care when treating a patient are well established. The applicable standard of care is that the doctor have and apply the level of care, skill and knowledge of the average practitioner in his or her specialty: Wilson v Swanson, 1956 CanLII 1 (SCC), [1956] SCR 804, 5 DLR (2d) 113; Ter Neuzen v Korn, 1995 CanLII 72 (SCC), [1995] 3 SCR 674 at paras 32-33, 38, 127 DLR (4th) 577; St-Jean v Mercier, 2002 SCC 15 (CanLII) at para 52, [2002] 1 SCR 491.

140      Sopinka J in ter Neuzen v Korn identified central principles to evaluate alleged medical negligence:

a physician is to conduct his or her practice “… in accordance with the conduct of a prudent and diligent doctor in the same circumstances.”: at 693;

“…when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent.”: at 695;

“…the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence.”: at 693; and

“…courts should be careful not to rely upon the perfect vision afforded by hindsight. 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. …”: at 693, quoting Lapointe v Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 SCR 351 at 362-63, 90 DLR (4th) 7.

141      Medical professionals are not held to an absolute perfect standard and are not liable for an error in judgment: Wilson v Swanson, at 812:

An error of judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge. Although universally accepted procedures must be observed, they furnish little or no assistance in resolving such a predicament as faced the surgeon here. In such a situation a decision must be made without delay based on limited known and unknown factors; and the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation.

142      Similarly, an unfavourable result is, in itself, not a basis to conclude a physician’s conduct was negligent: Wilson v Swanson, at 815; Carlson v Sutherland, 2006 BCCA 214 (CanLII) at para 12, 225 BCAC 150.

143      The standard of care of a resident physician is the same as that of a qualified doctor of that specialization: Fraser v Vancouver General Hospital, 1952 CanLII 23 (SCC), [1952] 2 SCR 36 at 46, [1952] 3 DLR 785; Johnston v Hader, 2009 ABQB 424 (CanLII) at paras 110-111, 478 AR 343.

144      The standard of care of a professional such as a doctor is evaluated with the assistance of expert evidence on the standards and practices of that discipline: Stoddard v Montague, 2006 ABCA 109 (CanLII) at para 20, 412 AR 88. However, whether that standard of care has been met is an issue of fact determined by the trial judge: Allen (Next Friend of) v University Hospitals Board, 2002 ABCA 195 (CanLII) at para 8, 312 AR 59.

[17]           The ‘but for’ test of causation applies to medical negligence causes as it does to others: Ediger v Johnston 2013 SCC 18 (CanLII) at paras 24 to 28, [2013] 2 SCR 98. The plaintiff bears the burden of showing that their injury was caused by the negligence. However, the trial judge went on to adapt from Nice v John Doe and Calgary, 2000 ABCA 221 (CanLII), 190 DLR (4th) 402 and then in turn from Fontaine. Nice was a public carrier case, so it is arguably not itself applicable. But importantly, this Court in Nice referred to Fontaine at p 435, para 27:

27        It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.  [Emphasis added]

[18]           This issue of the effect of a prima facie case of medical negligence is currently before the Supreme Court of Canada, albeit in the context of the Quebec Civil Code: see Benhaim v St-Germain, (November 10, 2016) (2016 SCC 48 (CanLII); SCC No 36291; 4-3 JJ) from 2014 QCCA 2207 (CanLII). Ediger and a long line of case law makes plain that negligence and causation are questions of fact at para 29. Benhaim, at para 37, adds:

It may be useful to recall the many reasons why appellate courts defer to trial courts’ findings of fact, which were described at length in Housen, at paras. 15-18. Deference to factual findings limits the number, length and cost of appeals, which in turn promotes the autonomy and integrity of trial proceedings. Moreover, the law presumes that trial judges and appellate judges are equally capable of justly resolving disputes. Allowing appellate courts free rein to overturn trial courts’ factual findings would duplicate judicial proceedings at great expense, without any concomitant guarantee of more just results. Finally, according deference to a trial judge’s findings of fact reinforces the notion that they are in the best position to make those findings. Trial judges are immersed in the evidence, they hear viva voce testimony, and they are familiar with the case as a whole. Their expertise in weighing large quantities of evidence and making factual findings ought to be respected. These considerations are particularly important in the present case because it involves a large quantity of complex evidence.

[19]           This then brings to the fore the issue of standard of review. The standard on which an appellate court reviews a trial decision will depend on whether the alleged error is one of fact, law, or mixed fact and law: see Housen v Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 SCR 235. A trial judge’s findings of fact or inferences of fact are accorded deference, absent palpable and overriding error: Housen at paras 10 and 25. Finding palpable and overriding error is equivalent to finding that factual findings or inferences are “clearly wrong”, “unreasonable”, or “unsupported by the evidence”: HL v Canada (A-G), 2005 SCC 25 (CanLII) at paras 55–56, [2005] 1 SCR 401, 333 NR 1.

[20]           While reasonable appeal judges can disagree on what a trial record suggests in a medical negligence case, deference to first instance findings of fact still applies: Goodman v Viljoen, 2012 ONCA 896 (CanLII) at para 142 per Feldman JA for majority, 99 CCLT (3d) 85, leave denied [2013] SCCA No 63 (QL) (SCC No 35230).

[21]           To be sure, we are presently talking about what happened in order to discern whether there was a breach of the standard of care as compared with whether there was causation resulting from such a breach. But decision on the question of breach of the standard of care was fundamentally based upon what the trial judge made of the evidence before him.

[26]           Ultimately, the appellants’ argument comes down to asking this Court to take a different view of the evidence and the inferences drawn therefrom. While appellate review must, to some extent, re-examine and re-weigh the evidence and inferences drawn, viewed through the lens of judicial experience, the finding of negligence is not unreasonable.

IV        Conclusion

[27]           Despite the very able submissions of counsel for the appellants, we are not persuaded that there is a basis to interfere with the decision in this case. The appeal must be dismissed.

Appeal heard on September 8, 2016


Memorandum filed at Edmonton, Alberta

this 18th day of November, 2016




Berger J.A.



Watson J.A.



Authorized to sign for:           McDonald J.A.




B.J. Larbalestier, Q.C. and C.D. MacKay

for the Respondents


W.B. Hembroff and R. Gagnon

for the Appellants

Citation: Cooper v Flood, 2016 ABCA 365 (CanLII), <>, retrieved on 2016-12-13



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