Executive Summary: Key Legal and Evidentiary Issues

• Confidentiality rules barred the use in evidence of documents and recordings generated in the hospital’s internal complaint process.
• The claimant failed to adduce expert medical evidence to prove a fault in anesthetic technique or intubation by the anesthesiologist.
• Hospital liability was rejected because no breach of organizational or record-keeping standards was established, and the anesthesiologist was not a preposé (employee) of the institution.
• Pre-existing dental and oral conditions undermined the alleged causal link between the surgery-related anesthesia and the plaintiff’s subsequent symptoms.
• Claimed financial losses, including “legal” and file-preparation costs, were not recoverable as damages in this civil action and instead fall under the regime of court costs.
• Overall, the plaintiff did not meet the civil burden of proof on fault, causation, and compensable damage, leading to a full dismissal of the claim with costs.

Factual background

Gaston Cossette, then 68 years old, was scheduled for a right-sided spermatocèle repair at Hôpital Saint-François d’Assise, part of the CHU de Québec–Université Laval. On 16 January 2019, anesthesiologist Dr Jean Marcotte conducted the preoperative assessment. Options, risks and complications of anesthesia were discussed, and Cossette opted for general anesthesia rather than another modality. The surgery took place on 7 March 2019. Dr Marcotte was responsible for the anesthetic management, while urologist Dr Annie Imbeault performed the operation. According to the medical chart, Cossette entered the operating room at 14:41. Anesthesia was induced shortly thereafter. The records show no intraoperative complications or difficulties either in intubation or in maintenance of anesthesia. He was transferred to the recovery room at 15:53. Nursing notes recorded stable vital signs and no specific complaints of mouth, dental or jaw pain. At 16:23, Cossette was moved to the day-surgery unit, where he received Dilaudid for routine postoperative analgesia. Staff notes again recorded that he was resting, calm, oriented and without particular complaints. He was discharged from the hospital around 20:30 in a wheelchair and accompanied. In the days and weeks following the procedure, Cossette consulted his family doctor and various dental professionals, reporting pain and functional issues that he personally attributed to the anesthetic and intubation of 7 March 2019. Over time, several examinations and consultations were carried out to evaluate these complaints. On 30 April 2019, Dr Imbeault asked Dr Marcotte to review the file and contact the patient. During a call on 3 May 2019, Marcotte explained that he considered it unlikely that the described symptoms were related to the anesthesia, while acknowledging that some mouth-related discomforts are inherent risks of intubation. He offered referral to a chronic pain clinic, which Cossette declined. Dissatisfied, Cossette initiated the hospital’s internal complaint process, triggering administrative review, correspondence and conclusions by the hospital’s complaints commissioner and medical examiner. Separately from this internal process, Cossette brought a small claims action before the Cour du Québec (Division des petites créances), claiming $11,772.10 in damages, including alleged medical and dental expenses and various costs he characterized as legal or file-preparation expenses. He alleged that the intubation and anesthetic management under general anesthesia had been performed in a faulty manner and that this had caused injuries to his teeth, gums, sublingual muscle, jaw and facial nerve.

Issues before the court

The Court, sitting in the Small Claims Division, was asked to determine two core sets of issues. First, it had to decide whether certain documents and an audio recording originating from the internal intrahospital complaint process could be admitted as evidence in this civil action. These included the recording of a telephone conference with a review committee, internal complaint correspondence, and the conclusions of the hospital’s complaints commissioner and medical examiner. Second, on the merits, the Court had to assess whether Cossette had discharged his burden of proof, on a balance of probabilities, with respect to (i) a fault attributable either to Dr Marcotte or to the CHU as an institution; (ii) a compensable injury; and (iii) a causal link between any such fault and the claimed damages.

Confidentiality and admissibility of complaint-process evidence

The defendants objected to the admissibility of the internal complaint materials, relying on the Loi sur la gouvernance du système de santé et de services sociaux (which replaced, in relevant part, former provisions of the Loi sur les services de santé et les services sociaux). The Court focused on articles 733 and 739 of the governance statute. In substance, these provisions make confidential the declarations, information and documents obtained in the course of examining a complaint or intervention under the statutory process. They also provide that the contents of the complaint file may not be used or admitted in judicial proceedings to prove a fault or to engage civil liability. Applying these rules, the judge found that the contested pieces clearly fell within the intra-hospital complaint framework. They documented the administrative processing of Cossette’s complaint and the internal conclusions reached, rather than constituting independent clinical notes or neutral factual records. Consequently, the Court held that they were covered by the statutory confidentiality and inadmissibility regime and could not be used to support or refute civil liability in this judicial action. The objection was upheld, and the impugned recording and pages were formally removed from the evidentiary record and not considered in the merits analysis.

Applicable legal principles in medical and hospital liability

Turning to substantive law, the Court reiterated that, under Québec civil law, a plaintiff must prove three cumulative elements: a fault, a compensable injury, and a causal connection between the two, all on the balance of probabilities. In the context of professional medical responsibility, a physician is subject to an obligation of means, not of result. The physician’s conduct is assessed by reference to that of a reasonably prudent and diligent professional placed in similar circumstances, and the mere occurrence of an adverse outcome does not suffice to establish fault. The judgment emphasized that where the alleged fault concerns technical or specialized aspects of practice—such as anesthetic management and intubation—expert evidence is generally essential. Expert testimony is needed to set out the applicable standards of practice (les règles de l’art), to identify any deviation from those standards, and to assess causation between any such deviation and the alleged injury.

Assessment of the claim against the anesthesiologist

Cossette did not file any expert report. His case rested on his own testimony, some clinical notes, and his personal interpretation of events. In contrast, the defense tendered an expert report from anesthesiologist Dr Christian Ayoub. After reviewing the medical record and relevant circumstances, Ayoub concluded that the induction, maintenance of anesthesia and intubation had been carried out in accordance with anesthetic standards and that it was highly improbable that the alleged damages stemmed from the 7 March 2019 intervention. The expert highlighted several points. Preoperatively, different anesthesia options, with their risks and complications, were discussed, and Cossette elected general anesthesia. The chosen technique was appropriate, and nothing in the preoperative data indicated a foreseeably complex intubation. The chart did not reflect the involvement of a resident in the anesthetic procedures themselves; while a resident attempted intravenous catheter placement, that step had to be completed by Dr Marcotte. The medications selected and the use of rapid-sequence induction (indicated given the plaintiff’s gastro-esophageal reflux) were consistent with accepted practice, and the short delay required for anesthetic installation suggested the performance of an experienced anesthesiologist without complications. The operative record and recovery notes reported no difficulty or trauma during intubation or extubation and no immediate postoperative signs supporting severe oral, lingual or swallowing problems. The intubation was graded as easy (Cormack grade 1), with no recorded trauma. Faced with this uncontroverted expert opinion and the absence of any technical expert evidence for the plaintiff, the Court declined to substitute its own lay judgment for specialist analysis. The judge held that a medical fault had not been proven on the balance of probabilities. Even if one looked at causation independently, the evidentiary record still did not support the conclusion that the 7 March 2019 anesthetic intervention probably caused the suite of complaints reported by Cossette.

Evaluation of the CHU’s potential institutional responsibility

Cossette also sought to hold the CHU de Québec–Université Laval liable on the basis of hospital responsibility and alleged deficiencies in care organization and documentation. He claimed that certain anesthetic-related maneuvers—cannulation, mask placement and intubation—were allowed to be attempted by a resident, and that this led to his injuries. The Court noted, however, that there was no expert evidence establishing that the applicable standards for delegation, supervision, or charting had been breached, including any alleged failures in record-keeping of postoperative complaints or follow-up telephone calls. The acts in question fell squarely within the practice of anesthesiology, which remained under the clinical responsibility of Dr Marcotte, a physician practising independently under privileges, rather than as an employee of the hospital. The judge reaffirmed that a hospital is not automatically liable for the professional acts of physicians who hold privileges there. In the absence of an employer–employee (préposé) relationship, the physician’s professional acts cannot simply be attributed to the institution. Even if a resident had participated in some technical gestures, the Court observed that the evidence did not show that such a resident would have been acting as the hospital’s preposé rather than under the direct supervision and responsibility of the attending anesthesiologist. In that context, any professional responsibility would rest primarily with the supervising physician, not the institution. Cossette further criticized the completeness of his medical record, alleging missing notes regarding oral pain and calls made after the surgery. The Court rejected the contention that these gaps amounted, by themselves, to a fault. The judge characterized the medical record as a clinical tool, not a word-for-word transcript of every conversation or symptom. It must be read in its context as a contemporaneously written document produced by health professionals. No expert evidence showed that the manner of keeping this file departed from accepted standards or that the omissions alleged rose to the level of professional negligence. Moreover, even had some irregularity in record-keeping been established, the plaintiff failed to demonstrate how this would have caused the physical and financial harm he claimed. The suggestion that imperfect documentation made his civil action “harder to prove” was not treated as a legally compensable injury in the circumstances.

Causation, pre-existing conditions and damages

The Court devoted significant attention to causation. Even assuming, hypothetically, some shortcoming in anesthetic care or in documentation, the plaintiff still needed to show that his alleged dental, gum, jaw and nerve injuries were a direct and immediate consequence of that shortcoming. This required serious probabilities, not mere conjecture or temporal association. The judge stressed that causal links cannot be presumed or inferred from possibilities or hypotheses; it must be more probable than not that the alleged fault produced the harm. The evidence revealed long-standing dental and oral issues predating the 2019 surgery. These pre-existing problems offered a plausible alternative explanation, in whole or in part, for the symptoms Cossette described after the operation. No independent medical expert connected the intubation of 7 March 2019 to the subsequent complaints with the requisite degree of probability. The plaintiff’s theory relied mainly on his subjective perception and on the temporal proximity between surgery and symptoms, which the Court found insufficient to prove legal causation. Regarding the financial component of the claim, the Court concluded that Cossette had not proven a probative link between the expenditures claimed and any fault attributable to the defendants. Some of the amounts related to addressing pre-existing conditions and thus could not be laid at the door of the CHU or Dr Marcotte in the absence of causal proof. The Court also drew a clear line between compensable damages and litigation costs. Expenses framed as “legal fees” or “file preparation costs” were not recoverable as substantive damages within this civil liability action; they fall under the regime of court costs, which are awarded according to procedural rules rather than as part of a tort damage award.

Outcome and significance of the decision

In closing, the Court held that Cossette had not discharged his burden to prove fault, causation, and compensable damage against either the anesthesiologist or the hospital. The objection to the admissibility of internal-complaint documents and the audio recording was allowed, and the impugned material was struck from the record. On the merits, the action was dismissed. The successful parties were the defendants, CHU de Québec–Université Laval (Hôpital Saint-François d’Assise) and Dr Jean Marcotte. No portion of the $11,772.10 claimed by the plaintiff was awarded; the judgment instead orders the dismissal of the claim “with costs of justice”. The decision does not specify any exact monetary figure for those costs, which are therefore not precisely determinable from the text of the judgment itself.