COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Weiler and Laskin JJ.A.
BETWEEN
Stephen Michael Sozonchuk, Margaret Rachel Moser, Mikelina Naomi Moser Sozonchuk, Elizabeth Anne Sozonchuk
Plaintiffs
and
Carol Polych, University Heath Network c.o.b. as Toronto Western Hospital, Ontario Best Nursing Agency Ltd.
Defendants (Appellants/Respondent)
Steven Stieber, for the appellants
John J. Morris, for the respondent
Heard: April 5, 2013
On appeal from the judgment of Justice Laurence Arthur Pattillo of the Superior Court of Justice, dated January 6, 2012.
ENDORSEMENT
Background
1The appellants, Nurse Carol Polych and Ontario Best Nursing Agency (“Best Nursing”), were found to be 50 per cent liable in negligence on the respondent University Health Network’s (UHN) crossclaim. The crossclaim was issued in response to an action by Mr. Sozonchuk against UHN for damages while he was a patient at the respondent Toronto Western Hospital (the Hospital).
2Mr. Sozonchuk suffered a subarachnoid haemorrhage as a result of an aneurysm that burst in the interior communicating artery of his brain. On October 5, 2003, during or after an operation to clip the artery, Mr. Sozonchuk suffered a stroke. He developed complications as a result of the surgery including respiratory problems, a fever and bacteria in the spinal fluid, which required a drain. On October 8, weakness on the right side of his body was noted and he was diagnosed as having mild to moderate vasospasm – that is, bleeding around the surface of the brain. He was treated for this with pharmacological therapy.
3On October 17, Mr. Sozonchuk suffered an additional injury. The injury was noted around 2 pm when paralysis of his right side due to a stroke (hemiplegia) was observed. The CT scan undertaken revealed that the vasospasm had become severe enough that there was not enough blood to supply the brain adequately and a number of brain cells had been deprived of oxygen for a period of time. He underwent balloon angioplasty to allow more blood to flow to the brain because vasospasm, if untreated, can cause death.
4Mr. Sozonchuk sued the Hospital and alleged that there was a delay by the nurses in detecting and treating his condition, which caused additional harm to him. The Hospital settled Mr. Sozonchuk’s claim against it and pursued its cross-claim against Nurse Polych and her employer, Best Nursing.
5The factual causation issue at trial was whether Nurse Polych, who was assigned to look after Mr. Sozonchuk the morning of October 17, and Nurse Benn, the charge nurse employed by UHN, caused or aggravated some portion of Mr. Sozonchuk’s injuries.
6Based on the evidence he accepted, the trial judge made the following findings concerning Mr. Sozonchuk’s injury on a balance of probabilities:
During his surgery on October 5, 2003, Mr. Sozonchuk suffered injury in the form of a stroke to the left side of his brain as a consequence of the surgery;
On October 17, 2033, Mr. Sozonchuk suffered further injury to the left side of his brain from an ischemic stroke by severe vasospasm;
The injury Mr. Sozonchuk suffered on October 17, 2003 began to occur at or shortly after he became hemiplegic;
Mr. Sozonchuk became hemiplegic sometime between mid morning and early afternoon on October 17, 2003;
There was a significant delay in diagnosing Mr. Sozonchuk’s hemiplegia. It was not diagnosed until around 2:00 pm when Nurse Potvin assessed him. Thereafter he received prompt and appropriate treatment;
The angioplasty was successful in arresting Mr. Sozonchuk’s stroke;
Neither Dr. Miller nor Dr. Benoit were able to provide a firm opinion that the delay in obtaining the angioplasty on October 17, 2003 contributed to Mr. Sozonchuk’s injury;
Drs. Miller, Benoit and Tymianski all agree that the earlier the assessment and treatment for vasospasm (in this case angioplasty), the more likely Mr. Sozonchuk’s ultimate deficits would have been reduced.
7The trial judge ultimately found that the two nurses were jointly responsible for the delay in diagnosis and treatment of Mr. Sozonchuk’s vasospasm and that this delay exacerbated Mr. Sozonchuk’s injuries.
8Nurse Polych and Ontario Best Nursing appeal this finding of fact. This is the sole ground of appeal. The appellants concede that Nurse Polych fell below the standard of care and that the trial judge applied the correct test for causation.
Argument and Analysis
9The appellants submit that the time frame Dr. Miller gave as to when the additional injury took place was so broad as to make it impossible for the trial judge to determine whether the negligence of Nurse Polych exacerbated the injuries suffered by Mr. Sozonchuk. In chief, Dr. Miller testified that, from the appearance of the CT scan, Mr. Sozonchuk’s condition was typical of patients who have been without adequate blood supply to the brain for a period of one to three hours at the time. In cross-examination he stated, “[T]hose times are not very precise, they’re speculation. But I don’t think it would be eight hours, and …it could be a half an hour.” Accordingly, the appellants submit that the trial judge’s finding of fact that Mr. Sozonchuk suffered a stroke or became hemiplegic sometime between midmorning and early afternoon on October 17, 2003 is unreasonable.
10Having regard to the evidence as a whole, there was evidence upon which the trial judge could make the finding he did. There was evidence that:
- Both Dr. Miller and Dr. Benoit were of the opinion that the damage to Mr. Sozonchuk’s brain probably occurred within minutes to an hour from when he became hemiplegic or paralyzed on the right side of his body;
- Between 10:30 and 12:30 p.m. Nurse Polych became more concerned about Mr. Sozonchuk’s condition and that sometime in late morning or early afternoon, she spoke to Nurse Benn about it;
- Nurse Benn agreed to page a doctor;
- When Nurse Practitioner Potvin saw the patient around 1:45 p.m. she noticed that he was hemiplegic on his right side and at 2:10 p.m. paged both doctors on call and ordered a CT scan; and
- When Dr. Tymianski examined Mr. Sozonchuk around 3 p.m. and asked Nurse Polych how long Mr. Sozonchuk had been hemiplegic, he was unable to obtain an answer.
11The doctors were unanimous in stating that the longer vasospasm, or a decrease in the flow of blood to the brain, exists, the greater the likelihood of damage.
12The trial judge also held that Nurse Polych’s duty of care was not discharged when she notified Nurse Benn of her concern respecting Mr. Sozonchuk. She was obligated to ensure Mr. Sozonchuk received the care he required and, in the absence of a timely response after speaking with Nurse Benn, to go over her head to get a doctor to see him. This holding was not challenged. Thus, there was a basis on which the trial judge could conclude that Nurse Polych’s continuing negligence after the time period Mr. Sozonchuk became hemiplegic exacerbated the harm to him.
13The evidence, viewed as a whole, and the trial judge’s holding on Nurse Polych’s duty of care, taken together, support the trial judge’s finding.
14The appellants also submit that there was merely a chance that Mr. Sozonchuk’s injuries were aggravated by Nurse Polych and loss of a chance is not compensable. In support of this submission the appellants rely on the evidence of Dr. Miller to the effect that if the angioplasty had been done sooner, “[t]here may have been a chance” that the damage to the brain would have been less.
15We disagree with this submission. This was not a “loss of a chance” case. Dr. Miller was never asked to quantify whether the “chance” of exacerbation was more probable than not. The further question he was asked was whether it was correct that if the procedure had been done earlier, the death to the brain cells may have been eliminated or been prevented. His answer was: “Correct.”
16The appellant also relies on the evidence of Dr. Benoit to the effect that had the angioplasty been undertaken sooner, the effect on Mr. Sozonchuk’s impairment would not have been significant. However, Dr. Benoit clarified his answer and stated that this effect could still have translated into a major impact on Mr. Sozonchuk’s ability to function.
17Accordingly, the appeal from the cross-claim is dismissed.
18Costs are agreed in the amount of $25,000, inclusive of any taxes and disbursements, and are payable to UHN.
“Warren K. Winkler C.J.O.”
“Karen M. Weiler J.A.”
“John Laskin J.A.”
