Oswald v. Canada
T-2440-85
MacKay J.
24/2/97
33 pp.
Action for damages for pain, suffering, discomfort, subsequent incapacity allegedly caused by oral surgery performed on plaintiff in 1985, subsequent inadequate care, treatment of condition, while incarcerated at Warkworth Institution-Plaintiff requesting dental appointment because of toothache-During appointment at health care centre at Warkworth Institution plaintiff mentioning difficulty singing certain notes or sounds because could not extend tongue-Dr. Binder, dental surgeon, briefly examining tongue, diagnosing plaintiff as tongue tied, describing "fairly simple procedure" involving some cutting, to relieve condition-Plaintiff not prepared to proceed-Subsequently called back to health care centre in January 1985 for surgery to relieve tongue tie-After brief discussion about procedure, plaintiff agreeing to proceed-During surgery Dr. Binder using mouth prop to keep plaintiff's mouth open-When plaintiff complaining of soreness in jaw muscles, process briefly halted halfway through-After surgery, more bleeding, swelling, pain than anticipated-Saliva gland infected when duct closed by scar tissue from surgery-Temporomandibular joint (TMJ) problems aggravated by surgery, particularly use of mouth prop-Treatment of TMJ problems rendered through specialists' services arranged by Dr. Binder, paid for by Correctional Service-By September 3, 1985 problems of mouth, but not of jaw joints, resulting from surgery, remedied-Action dismissed-(1) As Dr. Binder independent contractor, Crown not liable under common law, Crown Liability and Proceedings Act-Dr. Binder acting as subcontractor of Dr. Derumaux, with whom associated in dental practice-Dr. Derumaux under contract with Correctional Service to provide dental services for inmates of Warkworth-No formal written contract between Crown, Dr. Binder-No written agreement between two dentists-No statutory provisions modifying application of common law that one, who contracts with independent contractor to perform services not liable for acts, omissions of contractor, unless principal owing independent duty of care that cannot be delegated or assigned to be undertaken by independent contractor, which duty found not to be met in circumstances where failure causing or contributing to loss-Crown's duty to plaintiff as inmate of Warkworth to take reasonable care for health, safety while in custody-In terms of medical, dental services, Penitentiary Service Regulations, s. 16 requiring provision to inmates of "essential medical and dental care"-Duty to plaintiff reasonably met by contracts with qualified medical, dental doctors for professional services, both within Warkworth and outside, and by provision of care in institution's health care centre and services within institution or outside in wider community-Unless person rendering service servant of Her Majesty, Crown not vicariously liable for negligent acts of doctor concerned-For those who render service as independent contractors, whether inside or outside of institution, personal liability for negligence not also involving liability of Crown-To impose upon Crown generally duty to ensure professional medical or dental services rendered without negligence would place Crown in position of insurer of medical services provided by independent contractors-Circumstances not establishing Crown's liability as insurer-(2) As Dr. Binder not defendant herein, any adverse assessment significant only for this case-Dr. Binder negligent in performance of surgery based on lack of appropriate professional judgment in deciding upon procedure, failure to provide adequate information in advance of surgery to ensure informed consent, and procedure followed-Also failed in duty to provide reasonable care after surgery, but only in respect of delay of month or more in referring plaintiff to specialists for consultation, treatment-Dr. Binder performing surgery without clinical assessment other than brief examination of tongue-Accepted plaintiff's own expressed concern over difficulty in singing certain notes as basis for conclusion plaintiff having problem because of tongue tie-Dr. Binder not himself noticing problem with plaintiff's speech-Had not performed procedure before-Duty to inform plaintiff in advance of surgery, not merely of likely consequences, but also of possibility of serious risks-Dr. Binder not meeting standard of care concerning disclosure of possible effects of surgery-For consent to be relied upon as defence, must be some evidence of how standard of care in circumstances would be applied by members of profession-No evidence adduced to show what professional standard for disclosure was, or that met by Dr. Binder-Dr. Binder's inexperience not lowering standard of care owed to plaintiff-Only evidence before Court that two practitioners of general dentistry would not have undertaken procedure-Dr. Binder himself acknowledging that if knew at time of surgery what knows now, would have dealt with plaintiff differently-Failure to undertake thorough clinical assessment in advance factor contributing to post-surgical complications-Use of mouth prop for extended period aggravating existing TMJ problems-Dr. Binder failed in professional duty of care by failing to refer plaintiff for consultation, treatment to specialists when apparent complications from surgery persisted-Delay not causing problems, but contributing to continuation longer than if same service accessed earlier-(3) If error as to Crown's liability, and in light of awards in other cases for injury to mouth, jaw, general damages for pain and suffering assessed at $15,000 with pre-judgment interest in accord with Crown Liability and Proceedings Act, s. 31-Damages relating to pain, suffering, general discomfort arising from surgery itself, from consequent infection of left submandibular gland and duct, atrophy of gland, from aggravated problems with regard to TMJ and from subsequent surgery, treatment undertaken to examine, redress circumstances precipitated by surgery performed by Dr. Binder-No basis to consider special, punitive damages-As to latter, negligence arising from faulty judgment, not from harsh, vindictive, reprehensible and malicious action-Penitentiary Service Regulations, C.R.C., c. 1251, s. 16-Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, ss. 2, 3, 10, 31 (as am. by S.C. 1990, c. 8, s. 31).