COURT OF APPEAL FOR ONTARIO
MacPherson, Cronk and Pepall JJ.A.
BETWEEN
Patricia Wilson, personally and as Estate Trustee for the Estate of Kenneth Wilson, Sarah Wilson by her litigation guardian, Patricia Wilson, Jordan Wilson by his litigation guardian, Patricia Wilson, Makayla Wilson, by her litigation guardian, Patricia Wilson, Dorothy Wilson, Ken Wilson, and George Wilson
Plaintiffs (Respondents)
and
Dr. Ian Vincent Beck, Dr. Douglas Gordon D. Cram, Dr. Katherine Maria Walewski Habdank-Kossowski, St. Joseph’s Health Care Centre and Thames EMS Inc.
Defendants (Appellants)
Andrea Plumb and Dara Lambe, for the appellants
Paul Bates, David B. Williams and Mana Khami, for the respondents
Heard: January 15, 2013
On appeal from the judgment of Justice Johanne N. Morissette of the Superior Court of Justice, dated July 8, 2011, with reasons reported at 2011 ONSC 1789.
A. INTRODUCTION
1The appellants Dr. Ian Beck, Dr. Gordon Cram and Dr. Katherine Habdank-Kossowski (“Dr. Habdank”) appeal from the judgment of Morissette J. of the Superior Court of Justice dated July 8, 2011, holding them liable to the plaintiffs/respondents for their diagnosis and treatment of the deceased, Kenneth Wilson. Mr. Wilson died as a result of complications of infective endocarditis (“IE”) caused by staphylococcous aureus bacteria (“staph aureus”).
2Dr. Beck and Dr. Habdank were found liable in negligence. The trial judge found that Dr. Cram was not negligent, but held him vicariously liable for the negligence of Dr. Habdank.
3The appeal raises issues of vicarious liability, standard of care, and causation.
B. FACTS
(1) The parties and events
4On December 22, 2003, 34-year-old Kenneth Wilson visited his family physician, Dr. Ian Beck, for bacterial conjunctivitis (pink eye). Dr. Beck prescribed topical antibiotics for five days.
5On December 26, Mr. Wilson began feeling unwell. By December 27, he had a temperature of 38°C. He began to suffer from fever, chills, headache, diarrhea, lack of appetite, dizziness and fainting spells. He said his stomach burned when he ate or drank.
6Mr. Wilson’s wife, Tricia, a registered nurse, administered Tylenol every four hours for his fever and encouraged him to increase his fluid intake. Not seeing any improvement, Mrs. Wilson called Dr. Beck’s office on December 29 and booked the first available appointment for that evening.
7Dr. Beck diagnosed Mr. Wilson with viral gastroenteritis (commonly known as the stomach flu). He considered a bacterial infection, but ruled it out. He recommended rehydration and told Mrs. Wilson that the flu takes a long time to resolve.
8From December 29 to 30, Mr. Wilson hydrated and took Tylenol. He felt some improvement. However, in the early morning hours of December 31, he was startled awake by the family cat and felt a sharp shoulder pain. Concerned that he had dislocated his shoulder, Mr. Wilson asked his brother George to drive him to the emergency department of St. Joseph’s Hospital in London that morning. Mrs. Wilson accompanied them. She filled out a SARS form for her husband. She checked the “Yes” box for these two questions: “Is the patient feeling feverish, had shakes or chills in the last 24 hours?” and “Is the temperature above 38°C?”
9Mrs. Wilson advised the triage nurse about Mr. Wilson’s previous symptoms and treatment. The triage nurse did not record these symptoms and there was no evidence at trial that she spoke to anyone else about what Mrs. Wilson told her. She did not take Mr. Wilson’s vital signs.
10Dr. Habdank, a first year resident in internal medicine who was completing a rotation in emergency medicine, assessed Mr. Wilson. Dr. Habdank took a general history, recording that except for the complaint about his shoulder, Mr. Wilson was “otherwise healthy.” Relying on x-rays, she diagnosed a soft tissue injury to the shoulder, ordered the administration of pain medication, and discharged Mr. Wilson once improvement was noted, with instructions to return if his symptoms worsened. This diagnosis and plan were reviewed with, and approved by, Dr. Cram, the supervising emergency physician working in the emergency room that day. Dr. Cram did not see Mr. Wilson.
11After midnight on January 1, 2004, Mrs. Wilson found Mr. Wilson in the bathroom unable to catch his breath. She called 911. Upon the arrival of the paramedics, Mrs. Wilson informed them of Mr. Wilson’s condition and recent history. They assured her that Mr. Wilson’s shortness of breath was due to his fever. One of the paramedics had left her glasses in the ambulance and so did not take Mr. Wilson’s pulse or blood pressure. The paramedics counselled Mrs. Wilson not to go to the hospital because the emergency department was full of New Year’s Eve partiers. Thames EMS Inc. admitted that the paramedics breached the standard of care expected of them.
12From January 2 to 4, 2004, Mr. Wilson was generally very weak, requiring help to stand and go to the bathroom. However, his fever was lower and his appetite returned a little. Nevertheless, on January 5, Mr. Wilson became disoriented and unable to swallow his mucus. Mrs. Wilson called Dr. Beck’s office and booked an appointment for later the same day. When George arrived to take his brother to Dr. Beck’s office, Mr. Wilson did not recognize him. Mrs. Wilson called 911. When the paramedics arrived, they lectured Mrs. Wilson for not seeking medical attention sooner.
13Mr. Wilson was taken to St. Joseph’s Hospital and was transferred to the ICU that night. On January 6, an echocardiogram was ordered and the treating physician diagnosed Mr. Wilson with IE, a bacterial infection of the inner lining of the heart. He was transferred to London Health Sciences Centre on January 7, where the physicians determined that he was not a candidate for surgery because the infection was out of control and the antibiotics were not working. By January 8, Mr. Wilson had minimal brain functionality. Sadly, he passed away on January 9, 2004.
14There are other facts relevant to the disposition of this appeal. They are better dealt with in the context of the legal issues to which they relate.
(2) The trial judgment
15Two of the defendants entered into a Perringer Agreement with the plaintiffs, which resulted in the dismissal of the action against Thames EMS Inc. and St. Joseph’s Health Care Centre. The trial proceeded against the non-settling doctors.
16The trial judge stated that Dr. Beck was to be held to the standard of care of a prudent family doctor, Dr. Habdank to the standard of a prudent resident, and Dr. Cram to the standard of a prudent emergency physician.
17The trial judge found that Dr. Beck breached his standard of care by not recommending a follow-up visit if Mr. Wilson’s fever persisted and by providing a treatment plan that created a risk.1
18The trial judge found that Dr. Habdank breached her standard of care by failing to consider, or being wilfully blind to, all the clinical history provided by Mr. and Mrs. Wilson, including the history of a febrile illness (fever), shakes and chills documented in the SARS form.
19The trial judge found Dr. Cram vicariously liable, as supervisor, for Dr. Habdank’s negligence.
20On the causation issue, the trial judge found that an echocardiogram is the only way to diagnose IE. In order for an echocardiogram to be ordered at any stage of Mr. Wilson’s illness, he would have to have presented with both a fever, which was obvious throughout, and, crucially, a heart murmur. All the experts agreed that in the absence of either a fever or an audible heart murmur, the investigations necessary to diagnose IE would not have been undertaken. As expressed by the trial judge:
In order for the plaintiffs to succeed, they must establish that in addition to Ken’s fever, there was a discernable heart murmur on or shortly after December 29th, December 31st or January 1st. That is the only way that the next step of ordering investigative tests would have led to a diagnosis of infective endocarditis.
21After reviewing the evidence, including expert evidence and the medical literature, the trial judge found “on the balance of probabilities (just over 50%), that on December 31st, a murmur would likely have been heard.” A “multitude of tests, including listening to his heart” would have been ordered. This treatment plan “would have resulted in a completely different course of action and Ken would likely be alive today.”
22The trial judge awarded total damages of $557,289. She apportioned liability for these damages as follows: St. Joseph’s Health Care Centre – 20%; Thames EMS Inc. – 20%; Dr. Beck – 25%; and Dr. Habdank and Dr. Cram – 35%. The trial judge found no contributory negligence on the part of Mr. or Mrs. Wilson.
23The appellants appeal the vicarious liability finding against Dr. Cram, the liability finding against Dr. Habdank, and the causation conclusion.
C. ISSUES
24The appellants raise three issues:
(1) Did the trial judge err in law in finding Dr. Cram vicariously liable for the actions and omissions of Dr. Habdank?
(2) Did the trial judge err in fact and law in finding a breach of the standard of care by Dr. Habdank?
(3) Did the trial judge err in finding that the negligent conduct of the defendants caused Mr. Wilson’s death?
D. ANALYSIS
(1) Vicarious liability – Dr. Cram
25The trial judge’s analysis and conclusion on this issue are contained in a single sentence: “Dr. Cram is only vicariously liable if Dr. Habdank is found to be liable.”
26The appellants contend that there was no basis for the trial judge to have held Dr. Cram vicariously liable for the actions of Dr. Habdank. The plaintiffs did not plead that Dr. Cram was vicariously liable. Rather, the claims pleaded against Dr. Cram were in negligence. As well, Dr. Cram’s vicarious liability was not argued at trial.
27The respondents acknowledge that the possible vicarious liability of Dr. Cram was not an issue at trial. They do not contend that this finding by the trial judge should be upheld. This is a fair concession. The case law is clear. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. A finding of liability and resulting damages on a basis not pleaded in a Statement of Claim cannot stand, as it deprives the defendant of the opportunity to address that issue in the evidence at trial: see Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-63.
28The respondents assert that their claim against Dr. Cram at trial was one of direct liability, namely, that Dr. Cram, as the supervising physician in the Emergency Department, was ultimately responsible for Mr. Wilson’s care. Accordingly, if Dr. Habdank were negligent, so must have been Dr. Cram.
29In my view, this is still the concept and language of vicarious liability. Indeed, in their factum, after discussing the evidence relating to what they want to call Dr. Cram’s “direct” liability, the respondents commence their legal analysis by formulating the issue in this fashion:
Thus, the issue relating to Dr. Cram is this: as the attending physician, did he have responsibility for Dr. Habdank’s failure? This issue may be re-formulated in the language of vicarious liability as discussed in Ontario medical malpractice jurisprudence.
30In other words, the respondents’ attempt to keep alive the possibility of a finding of direct liability against Dr. Cram collapses quickly and entirely into the concept of vicarious liability which, they concede, was neither pleaded nor argued at trial.
31For these reasons, I would allow the appeal on this ground.
(2) Liability – Dr. Habdank
32When Mr. Wilson arrived at the Emergency Department on December 31, 2003, Mrs. Wilson completed a SARS form. As noted earlier, she checked the “Yes” box for these two questions: “Is the patient feeling feverish, had shakes or chills in the last 24 hours?” and “Is the temperature above 38°C?”
33The trial judge found as a fact that the SARS form was on Mr. Wilson’s chart when he was assessed by Dr. Habdank. She also found as a fact that Dr. Habdank would have looked at it, but only for reasons of personal safety, not as a clinical document relating to Mr. Wilson. The trial judge found that this breached the standard of care:
That, in my opinion, is to deprive her of [an] important piece of clinical history associated with Ken’s attendance on December 31st, 2003. All experts agree that one cannot ignore historical information no matter how it is obtained and for what purpose.
34The appellants contend that the trial judge erred in finding that the SARS form was present on the chart at the time of Dr. Habdank’s assessment. They say there was no evidence to support this conclusion.
35I do not accept this submission. In her testimony, Dr. Habdank accepted that the SARS form could have been on Mr. Wilson’s chart when she assessed him. She could not recall his attendance at the hospital. She had seen SARS forms on patients’ charts before. Dr. Cram testified that he did not recall seeing the SARS form on Mr. Wilson’s chart but the practice of the hospital was to keep all documents relating to a patient together. It was his sense that all records were kept together in the Emergency Room. Finally, the hospital produced its records relating to Mr. Wilson as a package, including the SARS form.
36Taken together, these factors strongly support the trial judge’s finding on this issue; in any event, the finding is far removed from being a palpable and overriding error.
37The appellants contend that the trial judge erred in finding that Dr. Habdank fell below the standard of care in failing to review the SARS form to glean any potential clinical information that may be contained therein.
38I disagree. According to the trial judge, “[a]ll experts agree that one cannot ignore historical information no matter how it is obtained and for what purpose. Dr. Habdank, Dr. Cram and Dr. Thompson all agreed that information of a febrile illness would have changed their entire assessment of Ken.” The record amply supports the trial judge’s conclusion that Dr. Habdank failed to meet the standard of care.
(3) Causation
39The appellants contend that the trial judge erred in several respects in her causation analysis.
40The trial judge engaged in an extensive discussion of the causation issue (63 paragraphs). A fair summary of her causation analysis would be that it is based on three critical findings.
41First, the trial judge concluded that in order to establish causation, the plaintiffs needed to show that Mr. Wilson had both a fever and a heart murmur “on or shortly after December 29th, December 31st or January 1st.” Only by first establishing both of those symptoms could the plaintiffs show that but for the defendants’ negligence in not listening to Mr. Wilson’s heart sounds, they would have heard the heart murmur, ordered the appropriate tests, and diagnosed IE earlier.
42Second, the trial judge agreed with the plaintiffs that Mr. Wilson never had any other illness besides a bacterial infection caused by staph aureus. She disagreed with the defendants’ theory that Mr. Wilson had a viral infection upon which a bacterial infection was superimposed. She thus implicitly answered her question of whether Mr. Wilson had IE on December 31 affirmatively, finding he had had IE from December 27.
43Third, the trial judge determined that since Mr. Wilson had IE on December 27, he, more likely than not, had a heart murmur when he was at the Emergency Department on December 31. She therefore found that but for the negligence of the defendants, Mr. Wilson would have been diagnosed with IE earlier than he was.
44The appellants challenge two of these findings. As causation is a factual inquiry, the appellants must establish that the challenged findings amount to palpable and overriding errors in order to succeed: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 19; Ediger v. Johnston, 2013 SCC 18, at para. 29.
45The law of causation in medical malpractice cases has been the subject of many major decisions by the Supreme Court of Canada and this court: see, for example, Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458; Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.); Aristorenas v. Comcare Health Services (2006), 2006 CanLII 33850 (ON CA), 83 O.R. (3d) 282 (C.A.); Clements v. Clements, 2012 SCC 32; [2012] 2 S.C.R. 181; Goodman v. Viljoen, 2012 ONCA 896, 299 O.A.C. 257; and Ediger. A fair reading of these decisions easily establishes that this is a complex and difficult area of law for appellate judges. It should not be forgotten that this is also true for trial judges.
46The Supreme Court of Canada has again recently confirmed that the standard test for proving causation in a negligence case is the “but for” test – a plaintiff must show on a balance of probabilities that, but for the defendant’s negligent act, the injury would not have occurred: see Ediger; at para. 28, Clements, at para. 8. In applying this test, courts may take a “robust and pragmatic approach to the facts”: see Snell, at pp. 328-30. Finally, by way of setting the jurisprudential context for this appeal, Sharpe J.A. set out the proper analytical framework for medical negligence cases involving an alleged delay in diagnosis in Cottrelle, at para. 25:
I agree with the appellant’s submission that in an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not”.
47Against the backdrop of this brief description of the trial judge’s reasoning on the causation issue and this summary of the relevant legal principles, I turn to the appellants’ submissions on this issue.
48The appellants do not challenge the trial judge’s first finding. They agree that in order to establish causation, the plaintiffs had to establish that Mr. Wilson had both a fever and a heart murmur, especially on December 31, 2003, when he attended the Emergency Department at St. Joseph’s Hospital.
49The appellants challenge the trial judge’s second and third findings. They submit that she erred by finding both that Mr. Wilson had IE on December 27 and that he had a heart murmur on December 31.
50The trial judge’s ultimate conclusion on causation is summarized in three paragraphs in her reasons:
If on day one of the infection, only 40% of patients have an audible murmur, and on day ten of the infection, it is more likely than not that 85% of patients have an audible murmur (due to the progression of the vegetation), then a reasonable inference can be made that on day five, or December 31st, 2003, the halfway point, there would have been more likely than not an audible murmur, had his heart been listened to.
This inference is especially reasonable if between 20 to 40% die within a two-week period, it is safe to conclude that on a balance of probability, from December 27th, 2003 to January 5th, 2004 (10 days), it is more likely than not that a heart murmur would have been heard by no later than December 31st (the half-way point).
So as the disease progressed, I find that on a balance of probabilities (just over 50%), that on December 31st, a murmur would likely have been heard.
51The appellants submit that there was no evidence to support a finding that Mr. Wilson had IE by December 27, no evidence to support a finding that a heart murmur was likely present on December 31, and no evidence to support the trial judge’s mathematical analysis in the above passage.
52I will deal with each proposition in turn.
53In my view, there was evidence to support the trial judge’s finding that Mr. Wilson had IE by December 27, 2003. Dr. John Jordan, a doctor called by the defence and qualified to give expert testimony on family medicine, testified in cross-examination that Mr. Wilson’s presentment was compatible with a bacterial infection from the start.
54Dr. Harry Rakowski, a cardiologist since 1976, testified as an expert witness for the plaintiffs. His opinion was that Mr. Wilson had a bacterial infection, endocarditis, throughout his illness. In his examination-in-chief, he said:
Q. And can you tell us in relation to the Emergency Room standard of care of the physicians at that time what your analysis was?
A. My analysis was that the standard of care was not met by either Dr. Habdank or Dr. Cram.
Q. All right, and can you tell us what you took into account in arriving at that, in terms of Mr. Wilson’s, what was relevant to his presentment and what they did and didn’t do?
A. So, I looked at a patient who went from being sick, visiting the family doctor, going to the Emergency Department, and then dying in a 14 day course, and that throughout that course there was really never any evidence that he was anything but sick. So, it’s not as though for a very short of time he was – it’s likely that he was healthy. Here’s someone who you know ends up having staph aureus endocarditis. We know that that organism typically is associated with you having bacteria in the bloodstream throughout the course of when – when you start to get sick to the end, especially without antibiotic therapy. And so, I have to believe that he was sick throughout, and not only sick, but quite sick.... He came in with concerns of an infection that initially were called viral, but in point of fact, you have to consider that he had endocarditis throughout the whole course and he then comes to the Emergency Department. [Emphasis and underlining added.]
55In my view, there was also evidence to support the trial judge’s finding that Mr. Wilson probably had a heart murmur on December 31, 2003. The trial judge clearly obtained the 40% and 85% figures she cited in the first paragraph set out above from Douglas P. Zipes, Braunwald’s Heart Disease: A Textbook of Cardiovascular Medicine (Philadelphia: Elsevier Saunders, 2005), which was Exhibit 20 at trial. The textbook states, at p. 1637: “Heart murmurs are heard in 30 to 45 percent of patients on initial evaluation and are ultimately heard in 75 to 85 percent as a consequence of intracardiac damage.” This quote was properly in evidence because it was put to Dr. Rakowski in cross-examination and he accepted it, after some explanation, saying “so I agree with that”.
56It is true that there were other studies in evidence with different percentages for heart murmurs at both initial evaluation and in the late stages of the disease. It is also true that the trial judge was critical of Dr. Rakowski’s testimony with respect to the percentage of cases in which a heart murmur could be detected at early presentation. However, that does not detract from the fact that the relevant extract from the Braunwald text, a leading text in the field, was introduced into evidence, placed before an expert, and the expert agreed with it. The trial judge then accepted and applied those conclusions, as she was entitled to do.
57Once the appellants’ first and second ‘no evidence’ propositions are rejected, the third ‘no evidence’ proposition – there was no evidence to support the trial judge’s mathematical analysis in the passage set out above – falls away automatically. The numbers the trial judge employed as book ends, i.e. that 40% of patients have an audible heart murmur at the onset of IE and 85% have a heart murmur ten days into the disease, are firmly grounded in the evidence. Her ultimate conclusion – a heart murmur was likely (on a balance of probabilities) present when Mr. Wilson attended the Emergency Department on December 31, 2003 – is a fair extrapolation from the book end numbers. In any event, it is far removed from being a palpable and overriding error.
E. disposition
58I would dismiss the appeal.
59The respondents are entitled to their costs of the appeal which I would fix at $75,000 inclusive of disbursements and HST.
Released: May 10, 2013 (“J.C.M.”)
“J.C. MacPherson J.A.”
“I agree. E.A. Cronk J.A.”
“I agree. S.E. Pepall J.A.”
