IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100519

Docket:
S070321

Registry: Vancouver

Between:

James
Grant Shannahan

Plaintiff

And:

Dr. Andrew A. Johnson,
Dr. Edward V. Auersperg,

Dr. Francis L.C. Ervin, and
Dr. Conrad G. Keebler

Defendants

Before:
The Honourable Mr. Justice Savage

Reasons for Judgment

I.                
Introduction

[1]            
The plaintiff, James Grant Shannahan (“Mr. Shannahan”),
brings this action against four physicians for medical negligence and
defamation.  Mr. Shannahan is impecunious and at trial was
self-represented.  He is an intelligent man, an autodidact, with obvious
abilities. 

[2]            
The defendants include his family physician, Dr. Andrew
A. Johnson (“Dr. Johnson”), the general internal medicine specialist at
the Ridge Meadows Hospital (“RMH”) , Dr. Edward V. Auersperg (“Dr. Auersperg”),
and two consulting physicians at RMH, Dr. Francis L.C. Ervin (“Dr. Ervin”),
and Dr. Conrad G. Keebler (“Dr. Keebler”). 

[3]            
Dr. Garry Henderson, the emergency room
physician at Mission Memorial Hospital (“MMH”), and Dr. Shavinder S. Gill,
an internal medicine specialist, and the Fraser Health Authority, the operator
of the MMH,  MSA General Hospital, and RMH, were formerly defendants in the
action. 

[4]            
On January 20, 2005 Mr. Shannahan
arrived at the MMH Emergency Department in a wheelchair.  He complained of
various symptoms.  He explained that he had been diagnosed with adult onset
Still’s Disease about 20 years earlier and thought his current symptoms
might represent a recurrence.  He saw Dr. Garry Henderson in emergency.

[5]            
On January 21, 2005 his regular family
doctor, Dr. Johnson, assumed his care at MMH.  Mr. Shannahan was
transferred to MSA Hospital briefly on January 25, 2005, then returned to MMH. 
Because his condition worsened Mr. Shannahan was transferred on an
emergency basis to RMH on February 1, 2005.  Between January 21, 2005
and February 14, 2005 Mr. Shannahan was seen by the various defendant
physicians.  He was subsequently transferred to Vancouver General Hospital (“VGH”)
on February 14, 2005.  Within a couple of days after he received
treatment, his condition improved and he was discharged from VGH on February 25,
2005.

[6]            
Mr. Shannahan says that his recovery was
slow and he was forced to discontinue his business, Phoenix Arts.  He was
unable to continue payments for his home, which included his studio, and it was
sold in the summer of 2005.  He is now categorized by the Canadian Revenue
Agency as a person with a disability, and receives disability benefit payments. 

[7]            
During the course of his treatment he was tested
for HIV which tests proved negative.  There is reference to the HIV testing in
the physicians’ records including hospital records.  Mr. Shannahan denies
that he consented to the HIV tests that were actually administered.

[8]            
Mr. Shannahan claims damages for negligence
for delayed diagnosis and damages for defamation.  The physicians deny that
they were negligent.  They deny that their actions caused or contributed to the
plaintiff’s current condition. 

[9]            
In a related matter in Shannahan v. Fraser
Health Authority, 2010 BCSC 144, Smith J. dismissed the action
against Fraser Health Authority.  In another related matter, Shannahan v.
Fraser Health Authority (01 January 2010), Vancouver S070321 (S.C.), Silverman J.
dismissed the actions against Dr. Garry Henderson and Dr. Shavinder
S. Gill.  Those actions were concluded by proceedings for summary judgment
under Rule 18A of the Rules of Court. 

II.              
Issues

[10]        
The issues for consideration by this court are: 

(1)           
Were any of the physicians negligent in their
treatment of Mr. Shannahan?

(2)           
Were any of the remarks made by the physicians
about Mr. Shannahan defamatory?  If the remarks were defamatory were they
privileged?

(3)           
Did the physicians’ negligence, if any, cause or
contribute to Mr. Shannahan’s condition?

(4)           
If the physicians’ negligence caused or
contributed to Mr. Shannahan’s condition, what are Mr. Shannahan’s
losses attributable to such negligence?

(5)           
Did Mr. Shannahan consent to the HIV
testing?

III.            
Location and Assessment Chronology

[11]        
The following is a brief chronology of some of
the events that occurred up to Mr. Shannahan’s admission to VGH:

A.             
1985 Episode and Diagnosis

[12]        
As I have mentioned, Mr. Shannahan became Dr. Johnson’s
patient in 1991.  At that time he gave Dr. Johnson a history that included
the diagnosis and treatment for Still’s Disease in 1985 by Dr. Angela Howe. 

[13]        
Dr. Johnson had Mr. Shannahan sign a
requisition authorizing the release of his medical records.  The requisition
was sent by Dr. Johnson although there is some controversy over whether he
received anything in reply.  Dr. Johnson’s evidence was that not receiving
anything was not uncommon but a review of his records indicates, he believes,
that he received some documents.

[14]        
Dr.  Johnson also gave evidence that it was
his practise to vet such records, discard illegible or unintelligible material,
and retain only what he thought useful.  There are some records in his file,
although Mr. Shannahan argues that the earlier material came from his own
records, concerning which he enlisted Dr. Johnson’s assistance in making
WCB claims.  In my opinion nothing turns on this difference in the evidence.

[15]        
Introduced in evidence are some records from
1985 including a Consultation Report dated May 13, 1985 and a Discharge
Summary dated May 26, 1985 from Burnaby Hospital.  Although Mr. Shannahan
insists that he was diagnosed with Still’s Disease, the documents suggest a
less certain conclusion.  Dr. Johnson did not see this record. 

[16]        
The records indicate that Mr. Shannahan was
admitted to Burnaby Hospital on May 13, 1985 after having been unwell for
12 days, and after having visited the emergency room on four or five
occasions.  On each occasion he was told he had an infection and sent home on
Erythromycin.  The symptoms included fever, myalgia, productive cough, malaise,
anorexia, sore throat, difficulty swallowing and recent knee pain and swelling. 

[17]        
Mr. Shannahan was assessed by Dr. Angela
Howe.  Her initial impression was that he had an underlying infectious process
resulting in his symptoms but sought to first rule out bacterial causes.  A
number of laboratory investigations were conducted and drugs administered over
the first six days in hospital with no improvement.  He was started on
prednisone and showed improvement.  Within seven days he was discharged.  The
records say that “[h]e was discharged on May 26^th with the
diagnosis not clear but may either be due to a post viral infection syndrome,
to gonococcal arthritis, or to adult Still’s”. 

[18]        
There is no indication in the records that Dr. Voth,
from whom Dr. Johnson sought records, had received this document.

B.             
Dr. Johnson Pre-Hospital Admission 1991-2005

[19]        
 Dr. Johnson has a family practice.  He was
educated at the University of Manchester, finishing his schooling in 1976,
whereupon he commenced three years of rotating internships.  He practiced
family medicine in Manchester, England until coming to Canada in 1983.  He
commenced his family practice in Mission, B.C., in 1990.  He had an open
practice at that time and took Mr. Shannahan as a patient in 1991.

[20]        
In 1991, when first meeting Mr. Shannahan, Dr. Johnson
noted in his records that Mr.  Shannahan reported an episode of Still’s
Disease.  From 1991 until January 2005, the concerns were relatively
mundane, including flu shots, back pain, and some male health issues.  Mr. Shannahan
was also tested for human immunodeficiency virus on two occasions.  The results
of the test were negative.

C.             
Mission Memorial Hospital Admission and Care
January 20-February 1, 2005

[21]        
On January 20, 2005 Mr. Shannahan
attended the emergency room at MMH.  He was seen by Dr. Gary Henderson,
the emergency room physician, who is a general practitioner.  Dr. Henderson
took a history and admitted Mr. Shannahan to hospital. 

[22]        
On admission Mr. Shannahan explained that
he had three days of worsening conditions prior to his admission.  Dr. Henderson
examined Mr. Shannahan and found his lungs clear to oculation, and his
heart sounded normal.  He ordered lab work including CBC, SED rate, C-reactive
protein, uric acid, ANA, and blood cultures.  He ordered that urine and sputum
be collected.  A chest X-ray was taken and interpreted as normal.  Hematology
and Chemistry were checked.  Dr. Henderson did not see Mr. Shannahan
again.  Although the action originally included Dr. Henderson, the action
against Dr. Henderson was dismissed. 

[23]        
On January 21, 2005 Dr. Johnson attended
on Mr. Shannahan at MMH.  Dr. Johnson ordered CBC and HIV testing.  Mr. Shannahan
signed a consent for HIV testing but the form was misdated by a staff member. 
January 21^st was a Friday and the form was not processed.  HIV
testing takes from 5 to 7 days.  Mr. Shannahan’s urinalysis was reported
and his temperature fluctuated.

[24]        
On January 22, 2005 Mr. Shannahan was
seen by one of Dr. Johnson’s colleagues at MMH.  His hematology was
checked, chemistry was checked, and temperature recorded.

[25]        
On January 23, 2005 Dr. Johnson saw Mr. Shannahan
at MMH.  He found bilateral bibasilar crackles.  He prescribed Clarithromycin. 
A chest X-ray was interpreted as showing possible signs of pneumonia.  A sputum
culture showed normal respiratory flora.  His temperature was checked.  The HIV
test form was properly dated and sent off to the B.C. Centre for Disease
Control (“BCCDC”). 

[26]        
On January 24, 2005 Dr. Johnson saw Mr. Shannahan
at MMH.  His urinalysis was checked and temperature recorded. 

[27]        
On January 25, 2005 Dr. Johnson saw Mr. Shannahan. 
Later that day his condition worsened.  He was taken to MSA Hospital from MMH
by ambulance and seen by Dr. Shavinder Gill.  Dr. Gill who is a
general internal medicine specialist reviewed Mr. Shannahan’s history and
made eleven orders.  He sought to have Mr. Shannahan admitted to MSA
hospital but there were no beds. 

[28]        
Mr. Shannahan returned to MMH and continued
under the care of Dr. Johnson. 

D.             
Ridge Meadows Hospital Admission and Care
February 1–February 13, 2005

[29]        
Late in the day February 1, 2005 Mr. Shannahan
was transported to RMH.  Dr. Auersperg was the physician in attendance. 
He is a fellow of the Royal College of Physicians and Surgeons with a specialty
in internal medicine.  He graduated from medical school at the University of
British Columbia in 1983, completing residencies in VGH and St. Paul’s Hospital
in 1989.  He also has a Masters in tropical medicine from London, England. 

[30]        
Dr. Auersperg first encountered Mr. Shannahan
shortly after 10:00 p.m. on February 1, 2005.  He spoke to him just
before midnight that evening.  He reviewed the medical records, took a history,
spoke with the attending nurse, and made various orders.  Dr. Auersperg
acknowledged that he was the responsible physician during Mr. Shannahan’s
stay at RMH.  Within a day he had Mr. Shannahan’s HIV test results which
were negative.  Although the test results were negative, the test results did
not definitively rule out HIV.  His diagnostic impression was that Mr. Shannahan
had a typical case of very severe pneumonia. 

[31]        
Mr. Shannahan mentioned to Dr. Auersperg
his earlier diagnosis of Still’s Disease.  Dr. Auersperg’s view was that
he must first deal with the symptoms of infection.  His view was that Mr. Shannahan’s
condition should be stabilized.  To do that he prescribed adrenalin,
antibiotics and expected to see his condition improve.  He was aware of Still’s
Disease, which he described as a disease where the immune systems “go berserk”. 
The symptoms of Still’s Disease may include similar features to the symptoms of
infectious diseases. 

[32]        
The treatment of Still’s Disease requires the
application of steroids.  However, if there is sepsis, arising from infection,
the application of steroids is contraindicated.  The negative test result for
HIV does not rule out HIV.  HIV gradually erodes immunity.  Symptoms like fever
and joint pain can sometimes signal the immune system waking up to the presence
of an invader. 

[33]        
During the period February 1 to 9, 2005, Dr. Auersperg’s
observations were that in some respects Mr. Shannahan got better, but in
other respects he got worse.  He seemed generally better for 1 or 2 days after
his admission to RMH, but on February 3 he looked worse.  Over this period
the antibiotics were changed, a tube was inserted into Mr. Shannahan’s
chest cavity and fluid extracted, he was also started on hydrocortisone. 

[34]        
The antibiotics were changed because the
previous antibiotics did not create improvement.  Antibiotics are intended to
kill specific infectious organisms.  A change in antibiotics would target
different infectious organisms.  It was also hoped to culture the infectious
organism from the fluid extracted from Mr. Shannahan’s lung.  That way a
specific antibiotic could be selected to attack the invading organism, instead
of using less effective broad spectrum antibiotics. 

[35]        
On February 2 to 3, 2005 Dr. Auersperg
consulted with Dr. Ervin.  Dr. Ervin is a specialist in internal
medicine.  He has a subspecialty in respiratory medicine.  He graduated from
Dalhousie University in 1979, spent three years in emergency medicine, three
years in internal medicine, and two years in respirology.  After two years in
P.E.I. he moved to Maple Ridge in 1990. 

[36]        
Dr. Ervin examined Mr. Shannahan on
three occasions, February 2, 6 and 14, 2005.  Although Dr. Ervin saw Mr. Shannahan
more frequently than that, the other occasions were brief, as he was not the
physician primarily responsible for Mr. Shannahan at Ridge Meadows
Hospital.  Nothing is recorded in the hospital records regarding those events. 
Dr. Ervin’s consultation report of February 2, 2005 is part of the
hospital records before the court. 

[37]        
Dr. Ervin formed the view that Mr. Shannahan
had left lower lobe pneumonia.  He noted the source of the pneumonia, i.e., the
particular organism causing the pneumonia, was not identified.  He also
observed that Mr. Shannahan was not responding well to antibiotics and his
ongoing sepsis syndrome was bordering on septic shock.  Dr. Ervin was
concerned about a lung abscess or complicated pneumonic effusion.  He
recommended a CT scan of the chest, and if no abscess was found, consideration
be given to anaerobic bacterial coverage.

[38]        
Dr. Ervin’s evidence was that the ongoing
sepsis syndrome required treatment.  Septic shock was potentially fatal.  He
was aware of a previous history of arthritis thought to be Still’s Disease. 
Still’s Disease is rarely fatal. 

[39]        
Hydrocortisone was started February 3 and
administered until February 6, 2005.  Over this period there was no
impression that he was getting better so this was discontinued. 

[40]        
On February 9, 2005 Dr. Auersperg made
a lengthy note in the hospital chart which reveals his thought processes.  The
note started “Very mysterious!  Not getting better, in some respects worse”.  Dr. Auersperg
then went on to itemize some thirteen aspects of Mr. Shannahan’s
presentation.  He then noted in the record that “Unifying [diagnosis] eludes
me” and queried various options including “CTD” or connective tissue disease.

[41]        
On February 11, 2005 Dr. Auersperg
asked Dr. Conrad Keebler, the locum Internal Medicine Specialist, to see Mr. Shannahan
in consultation.  Dr. Auersperg asked Dr. Keebler for his opinion on
possible diagnosis and for a proposed plan of action.  Mr. Shannahan was
placed on Bedline for transfer to a regional referral hospital.  At the time
Royal Columbian Hospital in Burnaby was considered.  As it turned out, Mr. Shannahan
was transferred to VGH on February 14, 2005. 

[42]        
Dr. Keebler performed his locum duties once
a month over a 48-hour period encompassing Friday and Saturday.  Dr. Keebler’s
consultation report of February 12, 2005 is part of the hospital records
before the court.  Dr. Keebler saw Mr. Shannahan on February 11,
briefly on February 12 and the morning of February 13, 2005. 

[43]        
When Dr. Keebler saw Mr. Shannahan he
was complaining of right-sided pleuritic pain and shortness of breath.  He was
still getting fever, chills and aches and pains in his joints and generally
felt miserable. 

[44]        
Dr. Keebler concluded that Mr. Shannahan
was probably septic, and that it started with left lower lobe pneumonia.  He
felt that Mr. Shannahan probably had an opportunistic infection and
queried fungal disease.  He ordered cultures for fungi and histoplasma
serology. 

[45]        
Dr. Keebler did not think Mr. Shannahan
was suffering from a collagen vascular disease, but conceded that he could be wrong. 
He thought that steroids should be stopped but then realized that they had
already been stopped.  He knew that Mr. Shannahan tested HIV negative but
also knew because of the timing of the tests that it was possible that he had
not yet seroconverted. 

E.             
Vancouver General Hospital February 14 et. seq.

[46]        
As noted earlier, Mr. Shannahan was on Bedline
for transfer to a more specialized hospital.  On February 14, 2005 he was
transferred to VGH.  In reasonably short order he was diagnosed and treated for
Still’s Disease. 

[47]        
Mr. Shannahan introduced in evidence the
response of the BC College of Physicians and Surgeons to his complaint.  He is
not critical of the treatment he received at VGH.  Dr. Wilson responded to
queries from the College about his treatment at VGH in this way: 

 ‘… By the
time he was transferred to VGH, he had had a thorough, thoughtful, and careful
septic workup and treatment with appropriate broad spectrum antibiotics. 
Diagnostic thoracenteses were performed.  HIV was appropriately considered, and
tested.  Toxic ingestions were considered, and lead poisoning ruled out.  While
it seems that the VGH physicians were able to make an astute diagnosis quickly,
the reality is that all of the important workup had already been done by the
physicians at Mission and Maple Ridge Hospital.  If Mr. Shannahan had
presented to VGH initially, I suspect his workup and time to diagnosis would
have been similar, as Still’s is a rare disease.  To have treated Mr. Shannahan
empirically with steroids for Still’s disease before ruling out an infectious
etiology for his symptoms might have had catastrophic results.  The only test
which may have helped make the diagnosis sooner was a serum Ferritin, which is
typically markedly elevated in Still’s disease.  I am not sure if a level was
drawn prior to the level drawn at VGH.’ 

IV.           
Allegations of Negligence

[48]        
Mr. Shannahan alleges that the named
physicians were negligent.  Broadly speaking, the allegation is that they were
negligent in failing to diagnose and treat him in a timely way for the disease
for which he was ultimately diagnosed, adult onset Still’s Disease.  Mr. Shannahan
finds this especially troubling since when he presented at hospital for the
first time he mentioned Still’s Disease to his care providers and continued to
do so throughout most of his treatment.

[49]        
The main points raised by Mr. Shannahan,
which I paraphrase, include:  (1) the apparent failure of the physicians
to consider his own statements, or self-diagnosis, regarding the likelihood of
Still’s Disease, (2) the failure of his physicians to obtain his earlier
medical records, (3) the delay in obtaining and considering his HIV
testing results, and (4) the failure of his physicians to obtain a
referral to a specialist such as a rheumatologist and/or infectious diseases
specialist. 

[50]        
The physicians’ general response is that Mr. Shannahan
had an unusual presentation of a very rare disorder.  The disease can be mild
or severe and can mimic a mild infection or a more serious systemic infection. 
There are no specific tests to confirm Still’s Disease.  The diagnosis of Still’s
Disease is therefore one of exclusion since none of the clinical features are
specific or diagnostic, and there are no laboratory tests that are diagnostic. 
Since the diagnosis of Still’s Disease is one of exclusion, it would be
exceptional for any specialist to come up with a definitive diagnosis without
the benefit of a battery of negative tests.  That is ultimately what occurred
here. 

V.             
Facts Regarding Allegations of Negligence

A.             
Failure to Consider Self-Diagnosis

[51]        
When Mr. Shannahan first presented at MMH on
January 20, 2005 he told the attending emergency room physician, Dr. Henderson,
about an earlier episode regarding Still’s Disease. 

[52]        
Dr. Henderson recorded the following note;

PAST MEDICAL HISTORY

Relevant for an
acute inflammatory arthritis when he was about 35 years old He was treated by Dr. Angela
Howe and was admitted to hospital.  The entire episode lasted around six
weeks.  He recalls being treated with steroids.  Following this, he made a full
recovery and has not been troubled by his joints since then. 

[53]        
Dr. Henderson then gave a differential
diagnosis of “…an acute polyarthritis versus a septic arthritis”. 

[54]        
Dr. Johnson first saw Mr. Shannahan on
January 21, 2005.  He referred Mr. Shannahan to Dr. Gill, who provided
a consultation report dictated January 25, 2005.  In that consultation
report Dr. Gill said: 

… He says he
was found to have similar symptoms in 1984 and 1985, and was having pain in the
knees, loss of appetite, high fever, and then knee swelling.  He did not have a
rash.  He was told that he has Still’s disease.  He was having possibly a
gonococcal infection too. 

[55]        
Dr. Auersperg first saw Mr. Shannahan
on February 1, 2005.  His consultation report of February 2, 2005,
noted in point 2 of his past history “Still’s disease as a child which
resolved”. 

[56]        
Dr. Ervin saw Mr. Shannahan on
February 2, 2005.  His consultation report said, “He has had a history of
arthritis thought to be Still’s Disease”. 

[57]        
Dr. Keebler saw Mr. Shannahan on
February 11, 2005 and prepared a consultation report on February 12,
2005.  Although he did not mention Still’s Disease he did consider the issue. 
He wrote:

I do not think
we are dealing with a collagen vascular disease here Ed.  I would like to think
so but I really do not feel that that is a possibility but I could be proven
wrong.

[58]        
Thus, it is apparent that all of the physicians,
with the exception of Dr. Keebler, were aware of or at least considered Mr. Shannahan’s
self-diagnosis. 

[59]        
While Dr. Keebler did not mention Still’s
Disease by name, he did refer to “a collagen vascular disease”.  Under the
heading “Physical examination” Dr. Keebler noted that, “He has no
peripheral evidence to suggest a collagen vascular disease for that matter”. 

B.             
Failure to Obtain Earlier Medical Records

[60]        
When Mr. Shannahan first engaged Dr. Johnson
as his family physician Dr. Johnson had Mr. Shannahan sign an
authorization to obtain his former physician’s records.  Apparently the
authorization was sent, but it is unclear whether any records were received by Dr. Johnson. 
Dr. Johnson noted that it was not unusual for such requests to not receive
a response.

[61]        
Dr. Howe’s consultation report is in
evidence.  I have referred to the facts in connection with that report above.

C.             
Delay in Ordering and Receiving HIV Test Results

[62]        
It is acknowledged that Dr. Johnson ordered
an HIV test on January 21, 2005 when he first saw Mr. Shannahan, but
that the form was misdated and ultimately resigned and sent to the BCCDC on
January 23, 2005.  The results did not come back as would have been
expected on January 28, 2005.  As it turned out, the results were sent to
another hospital.

[63]        
By February 1, 2005 Mr. Shannahan had
been transferred to RMH.  While at RMH the physician primarily responsible for
his care was Dr. Auersperg.  Dr. Auersperg was aware of the negative
results of the HIV testing.

D.             
Failure to Refer to Rheumatologist/Infection
Diseases Specialist

[64]        
During the course of his treatment at MMH and
RMH while under the care of Dr. Johnson and then Dr. Auersperg, Mr. Shannahan
was not referred to either a rheumatologist or an infectious diseases
specialist.  Mr. Shannahan was seen, however, by Dr. Auersperg, Dr. Gill,
Dr. Ervin and Dr. Keebler.  All of these physicians are specialists
in internal medicine.  Dr. Auersperg himself has training in tropical
medicine, which specialization is largely related to infectious diseases.

VI.           
Negligence

[65]        
In order to succeed in a claim of negligence
against the defendants the plaintiff must prove all of the elements of
negligence, but most importantly, that the defendants failed to meet the
appropriate standard of care.  The standard of care is not considered in the
abstract. 

[66]        
A physician is required to possess and use that
reasonable degree of learning and skill ordinarily possessed by practitioners
in similar communities in similar circumstances.  Liability in negligence is
founded by failing to meet the appropriate standard, which in a professional
negligence claim is the average knowledge and skill of a physician’s
practitioner peers: Wilson v. Swanson, [1956] S.C.R. 804. 

[67]        
Sopinka J., speaking for the Supreme Court
of Canada on this point in ter Neuzen v. Korn (1995), 11 B.C.L.R. (3d)
201(1995), 11 B.C.L.R. (3d) 201 said:

33        It is well settled that physicians
have a duty to conduct their practice in accordance with the conduct of a
prudent and diligent doctor in the same circumstances.  In the case of a
specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour
must be assessed in light of the conduct of other ordinary specialists, who
possess a reasonable level of knowledge, competence and skill expected of
professionals in Canada, in that field.  A specialist, such as the respondent,
who holds himself out as possessing a special degree of skill and knowledge,
must exercise the degree of skill of an average specialist in his field: see Wilson
v. Swanson, [1956] S.C.R. 804 at 817, Lapointe c. Hôpital Le Gardeur,
[1992] 1 S.C.R. 351 at 361, and McCormick v. Marcotte (1971), [1972]
S.C.R. 18. 

34        It is also particularly important
to emphasize, in the context of this case, that 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.  As Denning L.J.
eloquently stated in Roe v. Ministry of Health; Woolley v. Ministry
of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137, "we must not
look at the 1947 accident with 1954 spectacles".  That is, courts must
not, with the benefit of hindsight, judge too harshly doctors who act in
accordance with prevailing standards of professional knowledge.  This point was
also emphasized by this Court in Lapointe, supra, at pp. 362-63:

… 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.  Otherwise,
the doctor will not be assessed according to the norms of the average doctor of
reasonable ability in the same circumstances, but rather will be held
accountable for mistakes that are apparent only after the fact. 

No issue is
taken with this proposition which was applied both in the trial judge’s charge
to the jury and by the Court of Appeal. 

[68]        
The general principle with regard to assessing a
physician’s diagnostic skill, is that a doctor is expected to exercise
reasonable care, skill and judgment in coming to a diagnosis.  This is a matter
of professional judgment based on training and experience: Scrimgeour v.
Singer, [1988] B.C.J. No. 31(S.C.), at p. 3-4.  A mere error in
judgment is insufficient to found liability, and no physician, or any other
professional, is expected to be infallible. 

[69]        
In the ordinary case it is expected that
evidence of professional practice will be presented to the court.  In ter
Neuzen the court said:

38        It is generally accepted that 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.  This is because
courts do not ordinarily have the expertise to tell professionals that they are
not behaving appropriately in their field.  In a sense, the medical profession
as a whole is assumed to have adopted procedures which are in the best
interests of patients and are not inherently negligent.  As L’Heureux-Dubé J.
stated in Lapointe, in the context of the Quebec Civil Code (at
pp. 363-64): 

Given the number
of available methods of treatment from which medical professionals must at
times choose, and the distinction between error and fault, a doctor will not
be found liable if the diagnosis and treatment given to a patient correspond to
those recognized by medical science at the time, even in the face of competing
theories.  As expressed more eloquently by André Nadeau in "La
responsabilité médicale" (1946), 6 R. du B. 153, at p. 155: 

The courts do not have jurisdiction
to settle scientific disputes or to choose among divergent opinions of
physicians on certain subjects. They may only make a finding of fault where
a violation of universally accepted rules of medicine has occurred.  The courts
should not involve themselves in controversial questions of assessment having
to do with diagnosis or the treatment of preference. (Emphasis added by
Sopinka J.)

39        In The Law of Torts (7th ed.,
1987), Professor Fleming observed the following with respect to the role of
standard practice, at p. 109:

Conformity with
general practice, on the other hand, usually dispels a charge of negligence.  It
tends to show what others in the same "business" considered
sufficient, that the defendant could not have learnt how to avoid the accident
by the example of others, that most probably no other practical precautions
could have been taken, and that the impact of an adverse judgment (especially
in cases involving industry or a profession) will be industry-wide and thus
assume the function of a "test case". Finally, it underlines the
need for caution against passing too cavalierly upon the conduct and decision
of experts.

All the same, even
a common practice may itself be condemned as negligent if fraught with
obvious risks.  (Emphasis added by Sopinka J.)

40        With respect to the medical
profession in particular, Professor Fleming noted, at p. 110:

Common practice plays its most conspicuous
role in medical negligence actions.  Conscious at once of the layman’s
ignorance of medical science and apprehensive of the impact of jury bias on a
peculiarly vulnerable profession, courts have resorted to the safeguard of
insisting that negligence in diagnosis and treatment (including disclosure of
risks) cannot ordinarily be established without the aid of expert testimony or
in the teeth of conformity with accepted medical practice. However there is
no categorical rule.  Thus an accepted practice is open to censure by a jury
(nor expert testimony required) at any rate in matters not involving diagnostic
or clinical skills, on which an ordinary person may presume to pass judgment
sensibly, like omission to inform the patient of risks, failure to remove a
sponge, an explosion set off by an admixture of ether vapour and oxygen or
injury to a patient’s body outside the area of treatment. (Footnotes
omitted.)  {Emphasis added by Sopinka J.] 

[70]        
In the course of argument Mr. Shannahan
referred to the latin maxim res ipsa loquitur or “the thing speaks for
itself”. 

[71]        
In Fontaine v. Insurance Corporation of
British Columbia (1998), 156 D.L.R. (4th) 577, Major J., speaking for
the Supreme Court of Canada, described the maxim thus: 

17 Res ipsa loquitur, or
"the thing speaks for itself", has been referred to in negligence
cases for more than a century.  In Scott v. London and St. Katherine Docks
Co. (1865), 3 H. & C. 596, 159 E.R. 665, at p. 601 and p. 667,
respectively, Erle C.J. defined what has since become known as res ipsa
loquitur in the following terms: 

 There must be reasonable
evidence of negligence.

 But where the thing is shewn to
be under the management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in the absence of
explanation by the defendants, that the accident arose from want of care.

18        These factual elements have since
been recast (see Clerk and Lindsell on Torts, 13th ed. (London:  Sweet &
Maxwell, 1969), at para. 967, quoted with approval in Jackson v. Millar,
[1976] 1 S.C.R. 225, at p. 235, and Hellenius v. Lees, [1972]
S.C.R. 165 at p. 172, 20 D.L.R. (3d) 369):

The doctrine applies (1) when the thing
that inflicted the damage was under the sole management and control of the
defendant, or of someone for whom he is responsible or whom he has a right to
control; (2) the occurrence is such that it would not have happened without
negligence.  If these two conditions are satisfied it follows, on a balance of
probability, that the defendant, or the person for whom he is responsible, must
have been negligent.  There is, however, a further negative condition: (3)
there must be no evidence as to why or how the occurrence took place.  If there
is, then appeal to res ipsa loquitur is inappropriate, for the question
of the defendant’s negligence must be determined on that evidence. 

[72]        
The court considered the effect of the maxim on,
for example, the application of the burden of proof, circumstantial evidence,
and the procedural consequences, before concluding that the law would be better
served by treating the maxim as having expired:

26        Whatever value res ipsa loquitur
may have once provided is gone.  Various attempts to apply the so-called
doctrine have been more confusing than helpful.  Its use has been restricted to
cases where the facts permitted an inference of negligence and there was no
other reasonable explanation for the accident.  Given its limited use it is
somewhat meaningless to refer to that use as a doctrine of law. 

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. 

[73]        
In considering a professional negligence claim a
court must almost always rely on expert evidence to establish a standard of
care against which to measure the conduct of such professionals.  This is
especially so in cases where a court is asked to pass judgment on the
application of diagnostic or clinical skills, as opposed to situations where
negligence consists of an untoward act or event. 

VII.          
Analysis

A.             
Failure to Consider Self-Diagnosis

[74]        
In my opinion there is nothing in the evidence
that suggests that the various physicians that treated Mr. Shannahan
failed to appropriately consider his self-diagnosis, with the possible
exception of Dr. Keebler.  All of the other physicians made note of the self-diagnosis
of Still’s Disease, while pursuing other possible causes.

[75]        
While at first blush this might seem odd, when
all of the circumstances are considered, it is far less so. 

[76]        
Diagnosis of Still’s Disease is by exclusion. 
That is, there is no diagnostic test for Still’s Disease.  The period of time
taken to rule out other possible causes is consistent with the length of time
taken for the ambiguous diagnosis he received in 1985.

[77]        
Still’s Disease is extremely rare.  There are
between one and two cases a year per million persons.  Most of the physicians
who treated Mr. Shannahan had many years of experience but had never
encountered an instance of the disease. 

[78]        
Still’s Disease is rarely fatal, but Mr. Shannahan
presented as extremely ill.  Infectious causes were consistent with Mr. Shannahan’s
symptoms.  Sepsis caused by infection is common among hospitalized patients. 
It is also commonly fatal, being so in more than 30% of the 30,500 patients
hospitalized with this condition in 2008-2009.  Empirically, the absence of
evidence of any particular infectious agent is not conclusive evidence of the
absence of some agent. 

[79]        
Mr. Shannahan’s presentation was unusual
for Still’s Disease.  It was unusual in that (a) he did not have a salmon
coloured bumpy rash, (b) his face was an unusual slate grey colour, (c) he
had severe pneumonia which was an unusual manifestation, (d) he had low
blood pressure and lack of appetite, (e) he was generally severely ill,
(f) he did not have enlargement of the spleen, liver or lymph nodes, and
(g) other tests were suggestive of infection.  While it was established in
cross-examination that most of these features can be associated with Still’s
Disease, it is uncontradicted that Mr. Shannahan’s presentation was
unusual for Still’s Disease.

[80]        
While Dr. Keebler seems not to have been
aware of Mr. Shannahan’s self-diagnosis, he considered “a collagen
vascular disease”.  Dr. Keebler was of the view that there was no
peripheral evidence to suggest that as a cause.  He testified that had he known
about Mr. Shannahan’s previous bout with Still’s Disease that would not
have affected his consideration.  Dr. Chan-Yan, a defence expert,
testified that twenty years is an unusually long time to go without having a
relapse.

[81]        
In the circumstances I am unable to conclude
that the physicians’ consideration of Mr. Shannahan’s reported medical
history was negligent.  While Dr. Keebler seemed unaware of that history,
I am unable to conclude that with that history his conclusions would have been
any different from those of Dr. Auersperg or Dr. Ervin.

B.             
Failure to Obtain Earlier Medical Records

[82]        
It is argued by Mr. Shannahan that Dr. Johnson
and perhaps the other physicians were negligent in failing to obtain the
Burnaby hospital records relating to his admission in 1985.  The trouble with
that submission is that even if the record had been obtained by Dr. Johnson
when he took on Mr. Shannahan as his patient, the discharge summary
prepared by Dr. Howe was inconclusive about his diagnosis. 

[83]        
The discharge summary provides that “He was
discharged on May 26^th with the diagnosis not clear but may
either be due to post viral infection syndrome, to gonococcal arthritis, or to
Adult Still’s”.  Interestingly enough, Dr. Gill’s notes from Mr. Shannahan
record “…possibly a gonococcal infection too”. 

[84]        
Dr. Chan-Yan also testified regarding the
uncertainty of earlier diagnoses of Still’s Disease.  Still’s Disease has
always been a rare disease.  It was his view that there was less knowledge and
fewer diagnostic tests for other diseases in the 70’s and 80’s,
resulting in a diagnosis of Still’s disease in many cases being probably
erroneous.

[85]        
It is clear from the record that the physicians
who treated Mr. Shannahan, who were advised by him of his previous medical
history, treated that history as fact.  Dr. Howe’s discharge summary
rather than clarifying matters would have clouded that issue by creating
uncertainty regarding the previous diagnosis. 

[86]        
In my view these circumstances do not establish
negligence.

C.             
Delay in Ordering and Receiving HIV Test Results

[87]        
While there was an initial delay in ordering the
tests, this ground rests primarily on Dr. Johnson failing to search out
the test results when the results failed to arrive within five days of being
ordered.  The test results were sent to the wrong hospital through no fault of Dr. Johnson.

[88]        
The tests were not conclusive in any event
because of the period of time it takes for HIV to become detectable by using
these tests.  Thus, the physicians, even when aware of the negative test
results continued to be alert to whether this was a potential cause.

[89]        
There is no evidence before me to suggest that Mr. Shannahan’s
treatment would have been any different were those test results received
earlier. 

[90]        
In my view these circumstances do not establish
on a balance of probabilities that the physician defendants were negligent in
this respect. 

D.             
Failure to Refer to Rheumatologist/Infection
Diseases Specialist

[91]        
This ground of alleged negligence seems to
suggest that only a specialist can positively diagnose Still’s Disease or categorically
rule out an infection.  The only expert evidence before the court on this issue
is that of Dr. Chan-Yan, and that of the physicians themselves.  It was Dr. Chan-Yan’s
opinion that it is not necessary for either a rheumatologist to diagnose Still’s
Disease or for an infectious disease specialist to rule out an infection.  Of
course Dr. Johnson and the other treating physicians did seek out other
consultations and specialists. 

[92]        
Dr. Johnson sought and obtained a
consulting report from Dr. Gill who is an internal medicine specialist.  Dr. Johnson
consulted with an infectious disease specialist at the Royal Columbian
Hospital.  When Mr. Shannahan was transferred from MMH to RMH he was seen
by Dr. Auersperg who is an internal medicine specialist. 

[93]        
Dr. Auersperg also has a special interest
in tropical medicine which involves infectious diseases.  Dr. Auersperg
also consulted with Dr. Ervin and Dr. Keebler, both of whom are
internal medicine specialists.

[94]        
Dr. Auersperg also consulted with
infectious disease specialists and rheumatologists by telephone while Mr. Shannahan
was in his care, although no consultation report was generated.

[95]        
It should also be noted that Dr. Auersperg
sought to have Mr. Shannahan transferred to Surrey Memorial Hospital and
ultimately had him transferred to VGH.  This was done because of his view that
the resources at RMH were no longer adequate. 

[96]        
I accept the evidence of Dr. Chan-Yan that
an infectious disease specialist is not required to rule out an infection.  I
also accept his evidence that a rheumatologist is not the only type of
physician that can diagnose Still’s Disease.

[97]        
While it is true that Mr. Shannahan was
only diagnosed with Still’s Disease at VGH, that was after the physicians at
that hospital had the benefit of the investigative work done at MMH and RMH. 
In fact, at VGH he was given steroids for adrenal insufficiency.  This resulted
in improvement and the diagnosis followed. 

[98]        
There is also no evidence before me of any of the
physicians failing to meet the standard of knowledge, skill and ability of
professional persons with their training, knowledge and experience.

[99]        
In my opinion Mr. Shannahan has failed to
establish that his physicians were negligent in failing to have him referred to
either an infectious disease specialist or a rheumatologist. 

VIII.        
Causation & Damages

[100]     In order to establish a claim for negligence, the plaintiff must not
only establish a breach of the applicable standard of care, but also the
existence of damage or injury that was caused by the breach.

[101]     As in my opinion the plaintiff has not established a breach of the
applicable standard of care, it is unnecessary to consider whether damage or
injury was caused by the breach.  In deference to the vigour with which Mr. Shannahan
has pursued this case, however, a few words are in order. 

[102]     Of course, if there was a delay in diagnosis then Mr. Shannahan
presumably would have experienced the symptoms of his disease for a longer
period than necessary.  There is no doubt that his experience was painful,
traumatic and unsettling.  As Mr. Shannahan put it, on a couple of
occasions he came close to dying.  That unfortunate experience would have been
with him longer than necessary, had negligence been made out. 

[103]      It is clear on the authorities that such is compensable:  see Wilson
v. Vancouver Hockey Club, (1983), 5 D.L.R. (4th) 282 (B.C.S.C.), aff’d 22
D.L.R. (4th) 516 (B.C.C.A.); Wine v. Gould Estate, [1978] O.J. No. 584
(H.C.J.); Bloudoff v. Dolezel, [1992] O.J. No. 645 (Ont. H.C.), aff’d
[1996] O.J. No. 1447 (Ont. C.A.). 

[104]     It is apparent that Mr. Shannahan also attributes other losses
to these events.  For example, he argues that as a result of the delayed
diagnosis he was unable to work and earn income as a graphic artist.  However, his
business had for sometime been in the economic horse latitudes.  In fact, it
seems never to have turned a profit and was closed before these events as he
undertook renovation of his home.

[105]     Another loss he attributes to the delayed diagnosis is the loss of
his house.  The sale of the house, however, had already been planned.  He was
behind on various bills, and was planning its sale, after some renovations.  In
the circumstances, I would not have attributed either of these alleged losses
to the delayed diagnosis.

[106]     There was no expert evidence before me that Mr. Shannahan
suffered any long term consequences of the delayed diagnosis as opposed to the
ordinary sequelae of these and other medical problems he has had.  While he
blames the absence of a report on Dr. Johnson, in my view, once litigation
was commenced or threatened, Dr. Johnson was under no obligation to
provide a medical report which would be used against him. 

IX.           
Defamation

[107]     Following the close of the plaintiff’s case the defendants presented
two no evidence motions.  I allowed the motion and dismissed the plaintiff’s
case on the defamation matter for the reasons attached as Schedule A.  I
dismissed the motion as it related to the negligence claim.  As a result, the
defendants called evidence.

X.             
Consent to HIV Testing

[108]     As I understand this argument, it turns on whether Mr. Shannahan
consented to the HIV testing after having initially signed a consent form on
January 21, 2005.  The form was misdated.  It seems that a duplicate form
may have been used in its place. 

[109]     In my opinion nothing turns on this matter.  Mr. Shannahan
clearly consented to having the tests done by signing the form.  There is no
evidence to suggest he withdrew his consent. 

[110]     It is acknowledged that the test did not definitively rule out
whether he might be HIV positive.  That is because the development of
detectable specific antibodies to microorganisms in blood takes time.  Because
he might not yet have seroconverted, the test was not conclusive. 

[111]     Of course, Mr. Shannahan proved not to be HIV positive.  The fact
that the test could not conclusively prove that, in my opinion, did not go to
consent.

XI.           
Conclusion

[112]     Mr. Shannahan, through no fault of his own, has had the
misfortune to have suffered a rare condition that had an unusual presentation. 
Still’s Disease has no diagnostic test.  As a result, diagnosis proceeds
through exclusion.  Moreover the condition he presented with appeared
infectious in origin, or may have been coupled with an infection.  As a result,
the very medications that could help him were contraindicated. 

[113]     I have great sympathy for Mr. Shannahan, who, despite his
ordeal and his health issues has kept intact his charm and sense of humour.  In
the circumstances, however, for the reasons given, the evidence falls short of
establishing negligence of any of the named defendants. 

[114]    
The action is dismissed.

“The Honourable Mr. Justice Savage”

Schedule A

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:
20100323

Docket:
S070321

Registry: Vancouver

Between:

James
Grant Shannahan

Plaintiff

And:

Dr. Andrew
A. Johnson, Dr. Edward V. Auersperg,

Dr. Francis
L.C. Ervin, and Dr. Conrad G. Keebler

Defendants

Before:
The Honourable Mr. Justice Savage

Oral Reasons for Judgment

[1]            
This is an application pursuant to Rule 40(8)
by the defendants that the action be dismissed on the ground that there is no
evidence to support the plaintiff’s case.  On such an application Rule 40(9)
allows that such an application may be made by a defendant without being called
upon to elect whether or not to call evidence at all. 

[2]            
Rule 40(10) makes it clear that an
application under Rule 40(8) is different than an application relating to
the sufficiency of evidence.

[3]            
The case at bar broadly involves two matters,
the treatment of the plaintiff, and things discussed and recorded about and
said about the plaintiff during the course of his treatment by his health care
providers.  Broadly speaking, the treatment of the plaintiff gives rise to a
claim in negligence against his treating physicians, and the things recorded
about and said about the plaintiff during the course of his treatment gives
rise to a claim of defamation, libel and slander.

[4]            
With respect to the claim in negligence, the defendants
have pleaded that any care provided to the plaintiff was provided in accordance
with the approved practice and expected standard, measured against the
circumstances.  With respect to the claim of defamation, the defendants plead
that what was said about him is not capable of being understood in a defamatory
sense, and further, that what was said about him was, in any event, spoken on
the occasion of privilege.

[5]            
With respect to the application to have the
claim in negligence dismissed on the basis of no evidence, the court in
responding to such an application must make a determination not whether
the evidence is sufficient to found a claim, but whether there is any
evidence, supporting such a claim on the record before it.  In making such a
determination the court is not called upon to decide whether the court accepts
the evidence provided, but whether if such evidence is accepted, a claim might
be made out.  Justice Locke in L’Heureux v. Fair, [1990] B.C.J. No. 304
(C.A.) called it an assessment of “probative sufficiency”.  An assessment of
probative sufficiency does not include weighing the evidence. 

[6]            
This case involves an exceptional fact pattern,
one which, I am advised by counsel, has no parallel in the decided cases.  The
case does not merely involve an action regarding delayed diagnoses; that is not
unusual.  Here the plaintiff presented himself to the defendants with a
self-diagnosis based on earlier experience.  The question arises in the context
of whether the course of his treatment, and the evidence he has given
concerning his statements to his physicians, if accepted, is probatively
sufficient to require answer and/or the court to do an assessment based on the
weight of evidence.  There is also the question of whether the plaintiff
suffered damages as a result of any such negligence.

[7]            
I have reviewed the authorities relied upon by
the defendants, including Seiler v. Mutual Fire Insurance Co. of British
Columbia, 2003 BCCA 696, Fenton (Guardian ad Litem of) v. Baldo,
2001 BCCA 95, Wilson v. Swanson, [1956] S.C.R. 804, Cranwill (Next
of Friend of) v. James (1994), 164 A.R. 241 (Q.B.), aff’d (1997), 193
A.R. 204 (C.A.), ter Neuzen v. Korn, (1995), 11 B.C.L.R. (3d) 201. 
I have also reviewed the cases concerning causation.

[8]            
There is, of course, to some degree an
explanation before me.  That was, and has been introduced into to evidence by
the plaintiff himself.  However, the adequacy of such explanation, and the
weight to be given to such evidence, is, in my view, a matter of the
sufficiency of evidence, not a question of whether there is any evidence. 

[9]            
Bearing in mind this standard, in these
exceptional circumstances, I have concluded that the no evidence motion of the defendants
on these points does not succeed.  In light of my conclusion, I do not think it
helpful or particularly appropriate to elaborate on the evidence, which must
be, at some point, considered from the perspective of sufficiency.  The no
evidence motion on the question of negligence is dismissed.

[10]        
With respect to the action for defamation, it is
clear that communications between two or more physicians about a patient’s
medical history, or matters that might be relevant to a patient’s medical
history, are made on occasions of qualified privilege.  In a hospital setting,
the patient’s chart is the common source of information and direction regarding
a patient’s care.  Given that a patient’s care in such a setting falls to a
variety of persons, there is a duty to record information believed to be
relevant, and those communications are the subject of this application. 

[11]        
It is clear, based on the authorities, that communications
on these occasions are matters of qualified privilege: Foran v. Richman (1976),
10 O.R. (2d) 634 (C.A.), Powick v. Beattie [1995] B.C.J. No. 1923
(S.C.), and Fairview Management Services Ltd. v. Ryeburn, 2000 BCSC 930. 

[12]        
Qualified privilege is not defeated if the
communications are untrue.  In other words, on such occasions, the facts
related in the communication may be wrong.  The privilege, however, may be
defeated by malice.  The nature of malice was discussed by the Supreme Court of
Canada in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130
at paras. 144-147:

… Where the occasion is shown to be
privileged, the bona fides of the defendant is presumed and the defendant is
free to publish, with impunity, remarks which may be defamatory and untrue
about the plaintiff.  However, the privilege is not absolute and can be
defeated if the dominant motive for publishing the statement is actual or
express malice.  See Horrocks v. Lowe, [1975] A.C. 135 (H.L.), at
p. 149.

145      Malice is commonly understood, in
the popular sense, as spite or ill-will.  However, it also includes, as Dickson
J. (as he then was) pointed out in dissent in Cherneskey, [(1978), 90
D.L.R. (3d) 321 (S.C.C.)], "any indirect motive or ulterior purpose"
that conflicts with the sense of duty or the mutual interest which the occasion
created.  See, also, Taylor v. Despard, [1956] O.R. 963 (C.A.).  Malice
may also be established by showing that the defendant spoke dishonestly, or in
knowing or reckless disregard for the truth.  See [McLoughlin v. Kutasy
(1979), 97 D.L.R. (3d) 620 (S.C.C.)] 24, and Netupsky v. Craig (1972)
S.C.R. 55, at pp 61-62. 

146      Qualified privilege may also be
defeated when the limits of the duty or interest have been exceeded… .

147      In
other words, the information communicated must be reasonably appropriate in the
context of the circumstances existing on the occasion when that information was
given….

[13]        
See also the decision of the Supreme Court of
Canada in Botiuk v. Toronto Free Press Publications Ltd. (1995), 126
D.L.R. (4th) 609.

[14]        
In this case the communications were reasonably appropriate
in the context of the plaintiff’s presentation of his complaints.  As the
communications before me alleged to be defamatory were made on occasions of
qualified privilege, the onus is on the plaintiff to show express or implied
malice. 

[15]        
The no evidence motion therefore, of necessity,
turns on whether there is any evidence of malice.  There is no evidence on the
record before me that any of the physicians bore the plaintiff any malice or
ill will.

[16]        
In the circumstances, the plaintiff’s action for
defamation is dismissed. 

“The Honourable Mr. Justice Savage”