Canady v. Tucci, 2009 ONCA 686

Canady v. Tucci, 2009 ONCA 686

CITATION: Canady v. Tucci, 2009 ONCA 686

DATE: 20090929

DOCKET: C50307

COURT OF APPEAL FOR ONTARIO

Sharpe, Gillese and LaForme JJ.A.

BETWEEN

Luck Canady, Personal Representative of Burany Omer Tawfiq Mohammad, deceased, the said Luck Canady and Glovesh Canady

Plaintiffs (Appellants)

and

Dr. Marissa A. Tucci, London Health Sciences Centre and Victoria Hospital/Children’s Hospital of Western Ontario

Defendants (Respondents)

Allan Rouben and Scott Merrifield, for the appellants

D.I.W. Hamer and A.N. Wood, for the respondents

Heard: September 15, 2009

On appeal from the judgment of Justice John C. Kennedy of the Superior Court of Justice dated January 3, 2007.

By The Court:

[1]

Overview

This appeal arises from a medical malpractice action involving the treatment of the appellants’ 10 month old son, Burany. Tragically, Burany died of a bowel obstruction approximately four hours after he had been examined and discharged by the respondent Dr. Marissa Tucci, an emergency room physician at the Victoria Hospital/Children’s Hospital of Western Ontario. The trial judge made adverse findings of credibility against the appellants, accepted the evidence of Dr. Tucci, rejected the expert opinion evidence offered by the appellants and accepted the expert opinion evidence offered by the respondent. The trial judge found on the basis of the evidence that he did accept that Dr. Tucci had not fallen below the applicable standard of care. Accordingly, he dismissed the action.

2The appellants do not challenge the trial judge’s adverse credibility findings against them or his positive credibility findings in favour of Dr. Tucci. They submit, however, that the trial judge erred in his assessment of the medical evidence pertaining to the standard of care and in concluding that Dr. Tucci did not fall below that standard. They submit that the trial judge erred in law in that he ignored or failed to address critical evidence and, in effect, failed to ask himself the correct question.

3For the following reasons we dismiss the appeal.

[4]

The Appellants' Position

The appellants’ argument is based largely on a manual written by Dr. Anna Jarvis, the respondents’ expert, as to certain warning signs that point to bowel obstruction in young infants. Those warning signs were:

1. elevated heart rate;
2. surgery at the time of birth;
3. legs pulled up to the child’s abdomen, indicating abdominal pain;
4. distended bowel and increased bowel sounds; and
5. significant crying on palpation.

5The appellants submit that the trial judge erred in failing to critically assess Dr. Jarvis’ opinion evidence that the respondent Dr. Tucci had met the standard of care in the face of the evidence that these warning signs were present. The appellants argue that given the presence of the five warning signs, the standard of care for an emergency room physician required admission of the infant to hospital for monitoring, further investigation and, if necessary, immediate surgery for bowel obstruction.

[6]

Analysis

We reject this submission for the following reasons.

7First, the trial judge’s reasons for judgment must be read in light of the case that was presented to him. It is important to note that the argument advanced on appeal differs fundamentally from that advanced before the trial judge. At trial, the appellants urged the trial judge to accept their version of what they told Dr. Tucci as to their son’s condition when she examined him in the emergency room. That version was radically different from the evidence offered by Dr. Tucci. The appellants urged the trial judge to reject Dr. Tucci’s evidence as to what she was told and what she knew at the time of the examination. Indeed, they invited the trial judge to find that Dr. Tucci had lied and distorted the truth. The trial judge’s reasons respond to those arguments, not to arguments that he did not hear. As we have already noted, the trial judge did not accept the appellants’ evidence as to what took place in the emergency room on the night in question, and he did accept the evidence of Dr. Tucci.

8Second, not only did the trial judge reject the appellants’ evidence, he also rejected that of the two experts they called as to the applicable standard of care. The evidence of Dr. Crosby was rejected outright on the ground that he had misled the court in a variety of ways. The opinion of Dr. Jones as to the requisite standard of care was rejected because Dr. Jones is a treating surgeon and not an emergency room physician and her opinion was based on the facts as related by the appellants. As the trial judge rejected the appellants’ version of what Dr. Tucci was told in the emergency room, he was not prepared to accept an opinion that rested on those facts. We see no basis to interfere with these conclusions. As a result, we are left with only the opinion evidence of Dr. Jarvis, who testified that Dr. Tucci had met the requisite standard of care.

9Third, the trial judge was aware of the five warning signs identified by the appellants as well as other factors that an emergency physician should look for in the case of possible bowel obstruction. Dr. Tucci gave a detailed explanation of why she concluded, on the basis of her observations as to those five factors and a number of other factors that might indicate either bowel obstruction or some other condition, that the admission of the infant for further observation was not medically indicated. Dr. Jarvis essentially agreed and testified that Dr. Tucci had met the applicable standard of care in deciding to discharge the infant.

10Fourth, before this court, the appellants could point to no expert witness who testified that an emergency room physician who failed to admit a child for further observation in the presence of the five warning signs upon which they now focus would fail to live up to the applicable standard of care. They say that had the trial judge rigorously scrutinized the evidence and the extracts from medical texts cited by the witnesses, he would have come to that conclusion himself. In the face of Dr. Jarvis’s opinion to the contrary and in the absence of an expert opinion in support, we fail to see how the trial judge could have done so.

11Another point raised by the appellants relates to the nature or degree of vomiting exhibited by the infant. Here again, there was conflicting evidence from the appellants and from Dr. Tucci. The trial judge considered this evidence and concluded that Dr. Tucci’s version should be accepted. The evidence indicated that Dr. Tucci was alive to the significance of frequent or bilious vomiting and that she took steps to investigate the nature of the vomiting exhibited by the infant – both in her own presence and in the presence of the triage nurse – and asked the appellants about what they had observed earlier that evening. She noted that the infant was not dehydrated, which indicated that the infant had not been vomiting repeatedly. We see no error on the part of the trial judge in finding that bilious vomiting, a further sign of bowel obstruction, had not been present.

12In the end, the appellants’ submissions all relate to issues of fact that the trial judge determined adversely to the position they advanced. We see no palpable and overriding error which would allow for appellate intervention.

13The central issue in this case has always been the condition of Burany and the symptoms he exhibited when Dr. Tucci examined him. Had the trial judge accepted the appellants’ version of his condition at that time, it is likely that they would have succeeded in demonstrating that when Dr. Tucci discharged him rather than admitting him for further observation, she failed to live up to the standard of care expected of an emergency room physician. However, the trial judge did not accept their evidence. He made findings of fact, fully explained in his reasons, as to Burany’s condition when he was examined by Dr. Tucci in the emergency room. In the absence of an expert opinion that an emergency room physician would fall below the standard of care in discharging the infant on these facts, and given an expert opinion that Dr. Tucci had met the standard of care, we see no basis to interfere with the conclusion of the trial judge that the action should be dismissed.

[14]

Disposition

Accordingly, the appeal is dismissed with costs to the respondent if demanded fixed at $20,000 inclusive of disbursements and GST.