D.I.W. Hamer

The appellants appealed the dismissal of their medical malpractice action following the death of their infant son from a bowel obstruction shortly after being discharged from the emergency room.

The trial judge had made adverse credibility findings against the appellants, accepted the respondent physician's evidence, and relied on the respondent's expert opinion that the standard of care was met.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his assessment of the expert evidence regarding the standard of care.

The respondent, a diabetic, developed a foot sore and consulted the appellant physician, who failed to examine the foot or arrange follow-up care.

The sore became infected, leading to a below-the-knee amputation.

The trial judge found the physician negligent and held that the negligence denied the respondent a 'window of opportunity' to save her leg.

On appeal, the Court of Appeal reversed the decision, finding that the respondent failed to prove causation on a balance of probabilities.

The medical evidence established only a loss of a chance to save the leg, which is not compensable in medical malpractice cases.