COURT OF APPEAL FOR ONTARIO
Doherty, Juriansz and Hoy JJ.A.
BETWEEN
Steve Manary and Lauren Manary by her Litigation Guardian, Steve Manary
Plaintiffs (Respondents)
and
Dr. Martin Strban, Dr. Stephen D. Halmo, Dr. N. Hanna, Dr. L. Singer, Dr. A. Nagpal, Grand River Hospital, Dr. John Doe and Nurse Jane Doe
Defendant (Appellant)
Sarit E. Batner and Eli D. Mogil, for the appellant
J. Greg Murdoch, Steven K. Kenney and C. Davis, for the respondents
Heard: December 10, 2012
On appeal from the judgment of Justice J.C. Kent of the Superior Court of Justice, dated February 23, 2011.
I
overview
1Christine Manary, age 28, was 36 weeks pregnant when she went to Grand River Hospital in Kitchener, Ontario on the evening of Thursday, August 7, 2003. Ms. Manary was experiencing severe, sudden onset chest pain and shortness of breath. The doctors suspected either a pulmonary embolism, a blood clot in the lung (“PE”), or an aortic dissection, a tear in the wall of the aorta. Both are serious, life-threatening conditions. The doctors ordered various tests and admitted Ms. Manary to the Hospital.
2On Friday, August 15, the day Ms. Manary was to be discharged, she suddenly collapsed and died from a ruptured ascending aortic aneurism. Fortunately, Ms. Manary’s baby girl, Lauren, was successfully delivered by caesarian section.
3Mr. Manary, on his own behalf and as his daughter’s litigation guardian, sued various doctors and nurses involved in Ms. Manary’s treatment at the hospital. The action went to trial against Dr. Halmo, her obstetrician, Dr. Strban, one of the respirologists involved in Ms. Manary’s care, and Dr. Hanna, the radiologist who performed a CT angiogram on August 10.
4Three central factual questions emerged at trial:
Was it medically appropriate, as of about August 10, to treat Ms. Manary’s heart-related problems as not requiring the immediate attention of a cardiologist and/or transfer to a tertiary care centre?
Was Dr. Halmo, the doctor designated as the Most Responsible Physician (“MRP”) according to hospital protocol, entitled to rely on the respirologists’ opinion as to the appropriate treatment plan for Ms. Manary’s heart-related problems, or was he obliged to make an independent assessment and formulate his own plan?
Would it have made any difference to the ultimate outcome if on or about August 10, Dr. Halmo had determined that Ms. Manary’s heart-related problems required an immediate cardiac consultation and an immediate transfer to a tertiary care centre where the appropriate surgical facilities were available?
5The trial judge dismissed the claim against Dr. Strban, the respirologist, and Dr. Hanna, the radiologist, concluding that they had met the required standard of care. The trial judge, however, found Dr. Halmo, the obstetrician and MRP, liable. The trial judge held that Dr. Halmo fell below the required standard of care by accepting Dr. Strban’s treatment plan without engaging in an independent assessment of Ms. Manary’s needs. The trial judge held that had Dr. Halmo made his own assessment:
[H]e would have been driven to the conclusion that the safest course was an immediate transfer to a tertiary care centre where an evaluation of Christine’s enlarged aorta and immediate management of her condition would have been available to ensure her survival.
6The parties had agreed on the quantum of damages and the trial judge entered judgment for the plaintiff in that amount. He also assessed costs in favour of the plaintiff at $400,000.
7Dr. Halmo appeals from the finding of liability and seeks leave to appeal the costs order.1
8On the appeal, counsel for Dr. Halmo launched a far-ranging attack on the reasons of the trial judge. Her submissions focused mainly on two complaints. First, counsel argued that the finding of liability against Dr. Halmo cannot stand beside the finding that Dr. Strban met the requisite standard of care. The trial judge found that Dr. Halmo was negligent for failing to treat Ms. Manary’s heart-related problems as an emergency requiring an immediate cardiac consultation and transfer to a tertiary care centre. In contrast, the trial judge found that Dr. Strban had met the standard of care when he advised Dr. Halmo that Ms. Manary’s heart-related problems were not an emergency and did not require an immediate cardiac consultation or transfer to a tertiary centre. In effect, counsel for the appellant argues that the trial judge found Dr. Halmo negligent for relying on the reasonable advice of a qualified consulting respirologist. Counsel contends that as the finding with respect to Dr. Strban is not challenged on appeal, the irreconcilable finding of liability against Dr. Halmo cannot stand.
9Second, counsel submits that the trial judge failed to consider, much less make, the findings of fact necessary to draw a causal link between the negligence the trial judge attributed to Dr. Halmo and Ms. Manary’s death. Counsel contends that the plaintiff was obliged to show that but for Dr. Halmo’s negligence, Ms. Manary would have been transferred to a tertiary care centre and would have undergone surgery — the only treatment which could have prevented her death — before the morning of August 15. Counsel submits that those findings could not reasonably be made on this record.
10I would allow the appeal. I think the appeal turns on the first of the two submissions outlined above. The trial judge found that Dr. Strban met the applicable standard of care when he concluded that Ms. Manary’s heart-related problems were not an emergency and could be treated by cardiac consultation a week or two after Ms. Manary’s discharge from the hospital. At the same time, the trial judge found Dr. Halmo negligent for accepting what the trial judge found was the reasonable course of treatment proposed by Dr. Strban. These findings cannot be reconciled. Taken together they demonstrate the application of a legally incorrect standard of care to Dr. Halmo’s conduct (the “safest course” standard), a palpable and overriding error in the trial judge’s fact-finding, or an unreasonable finding of fact. The appeal must succeed.
II
the evidence
(a) Ms. Manary’s care in the hospital
11From the time Ms. Manary arrived at the hospital on Thursday, August 7, 2013, the doctors suspected that Ms. Manary had a serious chest-related problem. The physicians regarded PE as the most likely cause of Ms. Manary’s chest pains and shortness of breath. PE is common in pregnant women.
12The treating physicians, however, also appreciated the risk of an aortic dissection. An aortic dissection almost invariably causes death and must be treated as an emergency. Various tests administered between August 7and August 10 were intended to assist the doctors in choosing between the two possible diagnoses. Clinical observations of Ms. Manary also played an important role in formulating the doctors’ diagnosis.
13Dr. Nagpal, a respirologist who saw Ms. Manary when she arrived at the hospital on August 7, considered both the possibility of PE and an aortic dissection. He thought PE was the likely diagnosis and started Ms. Manary on a course of Heparin, a blood thinner commonly used in the treatment of PE. Dr. Nagpal also detected a heart murmur and ordered an echocardiogram.
14The protocol at Grand River Hospital required that all pregnant women admitted to the hospital be admitted to the obstetric service even if the admission did not relate directly to any pregnancy-related problem. Hospital protocol also dictated that Ms. Manary’s obstetrician, Dr. Stephen Halmo, would be designated as the MRP. The MRP is the physician primarily responsible for providing a plan of care for a patient and coordinating that plan among the various doctors involved in her care. Dr. Halmo was the MRP throughout Ms. Manary’s stay at Grand River Hospital.
15Dr. Halmo first saw Ms. Manary on Friday August 8 during his rounds. He was aware of the circumstances surrounding her admission and the tests that had been administered and ordered. Dr. Halmo was aware that PE was the suspected cause of Ms. Manary’s problems. Dr. Halmo assessed Ms. Manary and the fetus. He saw no obstetrical problems.
16Dr. Halmo had relatively little experience with PE. It was his practice to rely on the “chest team” headed by the respirologists to investigate and manage PE. The other obstetricians at the hospital followed the same practice. There were no cardiologists on service at Grand River Hospital, but a cardiac consultation could be obtained from St. Mary’s, another Kitchener hospital.
17Dr. Strban became involved in Ms. Manary’s care on Friday, August 8. The echocardiogram ordered the previous day showed some left ventricular enlargement, mild thickening of the aortic valve, and a dilated aortic root (a bulge) in the ascending aorta. There was no indication of an aortic dissection.
18The echocardiogram was read by Dr. Singer, a cardiologist. Dr. Singer was originally a defendant in this action and was examined for discovery. The plaintiffs did not proceed to trial against Dr. Singer.
19Dr. Strban, like Dr. Nagpal, believed that PE was the probable cause of Ms. Manary’s problems. He remained concerned, however, about the possibility of an aortic dissection because of Ms. Manary’s ongoing pain. Dr. Strban called a cardiologist at St. Mary’s to discuss the possibility of performing a transesophageal echocardiogram (TEE) on Ms. Manary. A TEE is one of three tests that can detect an aortic dissection. The cardiologist at St. Mary’s advised Dr. Strban that a TEE was not available. The same cardiologist told Dr. Strban that it was unlikely that Ms. Manary would have remained stable for 24 hours while receiving Heparin if in fact she had a dissected aorta. This information gave Dr. Strban some comfort that his provisional diagnosis of PE was correct.
20Dr. Strban continued to treat Ms. Manary for PE. He continued the Heparin, and he ordered a Doppler ultrasound on Ms. Manary’s legs. The Doppler can provide evidence of PE. The Doppler was performed on August 9 and it did not show any signs of PE.
21Dr. Strban was away for the weekend and his colleague, Dr. Jackson, a respirologist, was on call. Dr. Jackson saw Ms. Manary on Saturday, August 9 and Sunday, August 10. Dr. Jackson was not sued.
22Dr. Halmo spoke with Dr. Jackson on August 9 to be sure that she knew she had a patient on the obstetrical unit. Dr. Halmo was also aware that the echocardiogram had shown certain abnormalities and he wanted to be clear with Dr. Jackson that the respirologists were pursuing those issues. Dr. Halmo regarded Dr. Jackson as a very competent and highly respected physician within the hospital. He trusted her to follow up on any chest-related problem.
23Dr. Jackson’s clinical note written after she had examined Ms. Manary on August 9 included the following observations and comments:
Admitted Thursday evening with suspected pulmonary embolus;
Feeling better today; - chest pain much improved;
Bedside exam and echocardiogram suggests significant aortic valve disease with regurgitation likely aggravated by increased cardiac output in pregnancy;
Jugular venous pressure is normal;
No effusion;
Dissection seems unlikely;
Should have cardiology review;
Subacute bacterial endocarditis prophylaxis;
Postpartum follow-up and monitoring;
Plan, continue Heparin, Doppler and Tylenol 2 if analgesics required.
24As of August 9 Dr. Jackson considered PE the likely diagnosis. However, she remained concerned about the possibility of aortic dissection. She explained that aortic valve disease and a dilated aortic root are risk factors for aortic dissection but they can exist without a dissection. Dr. Jackson believed that Ms. Manary should have a cardiac consultation before her delivery. Dr. Jackson testified:
[W]e had evidence of this significant aortic valve disease and we also knew that she had a dilated aortic root and that she was within a number of weeks of her due date and I mean, I’m not a cardiologist so I didn’t have the expertise to really evaluate how that cardiac problem would influence her delivery and the way that that should be managed but I certainly felt that that’s something that should be undertaken before she would be allowed to deliver. [Emphasis added.]
25Dr. Jackson saw Ms. Manary on Sunday, August 10. Ms. Manary had been in considerable pain throughout the evening and morning of August 9-10. Dr. Jackson remained concerned about the possibility of aortic dissection. She stopped the Heparin and ordered a CT angiogram, the best test available for identifying an aortic dissection.
26Dr. Jackson examined the CT angiogram with Dr. Hanna on August 10. It showed no evidence of aortic dissection. It did show, as had the echocardiogram, some enlargement of the left side of the heart and some apparent chronic valve disease. The CT angiogram also showed a large aneurism in the ascending aorta. An aneurism is a bulge in the aorta. It is not the same as a dissection of the aorta, although it can overlay a dissection. The CT angiogram showed no evidence of PE.
27Dr. Jackson was satisfied that the results of the CT angiogram excluded aortic dissection as a potential problem. She decided to continue treating Ms. Manary for PE and ordered the Heparin recommenced.
28Dr. Jackson explained her analysis in these terms:
[P]ulmonary embolus can be a very difficult diagnosis to prove or exclude and CT angiogram is not 100 per cent sensitive for pulmonary emboli and this woman had also been on treatment for several days so although disquieting, the fact that the CT angiogram was negative for obvious pulmonary embolism it unfortunately doesn’t exclude it as a possibility and we still needed some explanation for this woman’s, you know, her ongoing symptoms. On balance, it seemed to be the diagnosis that fit the picture the best, made the most sense.
29Although Dr. Jackson believed that PE was the immediate medical concern, she did recognize that Ms. Manary had two heart-related problems: the aneurism in the ascending aorta and the chronic valve disease. Dr. Jackson believed that both problems would have to be assessed by a cardiologist before Ms. Manary delivered.
30Dr. Strban returned to the hospital on Monday, August 11. When he visited Ms. Manary she was feeling much better than she had been when he examined her on Friday, August 8. Her chest pain was significantly reduced and she had less shortness of breath. Dr. Strban attributed the improvement to the Heparin.
31Dr. Strban also reviewed Dr. Jackson’s notes and the CT angiogram. He agreed with Dr. Jackson’s assessment. In Dr. Strban’s view, the CT angiogram was the best test available for finding an aortic dissection. The absence of any evidence of an aortic dissection in the CT angiogram tended to confirm his opinion that PE was the correct diagnosis.
32Although the various tests administered between August 7 and 10 had not offered any positive proof of PE, Ms. Manary’s clinical presentation and the absence of any indication of an aortic dissection in the CT angiogram led Dr. Strban to believe that PE remained the most likely cause of Ms. Manary’s problems. Consequently, he continued the Heparin.
33Dr. Halmo, who had been away on Sunday, August 10, also saw Ms. Manary on August 11. He reviewed Dr. Jackson’s notes from the weekend and was aware of the proposed treatment. He also satisfied himself that there were no problems from “an obstetrical perspective”.
34As of August 11, Dr. Strban had formulated a two-pronged approach for Ms. Manary’s treatment. First, based on his belief that PE was the likely cause of Ms. Manary’s problems, Dr. Strban continued the administration of Heparin. He planned to discharge Ms. Manary when she had learned to inject herself with Heparin. Second, Dr. Strban undertook to arrange a cardiac follow-up for Ms. Manary after her discharge. He anticipated that both the aneurism and the apparent chronic valve related problems would be addressed by the cardiologist. Dr. Strban did not regard either heart-related problem as an emergency requiring an immediate consultation. He did think, however, that both problems had to be addressed by a cardiologist before Ms. Manary’s delivery date in about four weeks. Consequently he undertook to arrange a cardiac consultation within a week or two.
35Dr. Strban testified that in formulating his treatment plan, he was aware that there was always a risk that an aneurism might rupture. He did not, however, regard that risk as sufficiently significant to warrant an immediate consultation with a cardiologist.
36Dr. Strban also did not consider performing any further test to establish or exclude PE. The only other possible test was a pulmonary angiogram. In light of Ms. Manary’s improvement while receiving Heparin, Dr. Strban did not think that an intrusive test, such as a pulmonary angiogram, was warranted. Dr. Strban also did not consider transferring Ms. Manary to a tertiary care centre on or before August 11. In his opinion, a tertiary care centre would not have accepted Ms. Manary.
37Dr. Strban spoke to Dr. Halmo on August 12 or 13. He told Dr. Halmo that PE remained his diagnosis and that Ms. Manary should continue to take Heparin. Dr. Strban advised Dr. Halmo that Ms. Manary would be ready for discharge later that week and that he would arrange an out-patient cardiology consultation within the next week or so. Dr. Halmo accepted Dr. Strban’s treatment plan.
38Ms. Manary was scheduled to be released on Friday, August 15. That morning she had no pain and was feeling good. At about 11:55 a.m. she suddenly collapsed. Resuscitation efforts failed. Ms. Manary’s daughter was delivered by caesarean section.
39The post-mortem revealed that Ms. Manary died as an immediate consequence of the rupture of the aneurism in her ascending aorta. The pathologist discovered a small tear or dissection of the inner wall of the aorta, about one centimetre distal (further from the heart) to the aneurism. That dissection caused blood to travel between the inner and outer walls of the aorta toward the heart ultimately causing the aneurism and the rupture of the aneurism.
40The pathologist could not indicate when the dissection occurred. He could say that there was some evidence of healing around the dissection indicating that it must have occurred at least two or three days prior to death.
41Dr. Strban testified that he and the other respirologists were responsible for Ms. Manary’s “chest issues”, meaning her suspected PE and the heart-related problems. Dr. Strban fully expected Dr. Halmo to rely on his opinion as to the appropriate follow up for Ms. Manary’s heart-related problems.
42Dr. Halmo testified that at Grand River Hospital, pregnant women who are admitted with a suspected PE come under the care of respirologists. Dr. Halmo relied on the respirologists to investigate Ms. Manary’s medical problems, specifically her suspected PE. He had no concerns that the respirologists were not taking appropriate steps to investigate and treat Ms. Manary’s problems. Dr. Halmo knew that those problems had to be addressed by a cardiologist before Ms. Manary delivered and he knew that Dr. Strban was making arrangements to have a cardiac consultation within the next week or two. Dr. Halmo accepted Dr. Strban’s assessment that a cardiac consultation within a week or two of discharge was appropriate. Dr. Halmo was also satisfied that there were no obstetrical problems preventing Ms. Manary’s discharge on August 15.
(b) The expert evidence
43Several experts testified at trial. They joined issue primarily on whether Ms. Manary’s heart-related problems called for an immediate cardiac consultation and transfer to a tertiary care centre no later than the morning of August 11.
44The plaintiff did not call an expert respirologist at trial. The defence expert respirologist testified that the respirologists had properly identified PE as the likely cause of the Ms. Manary’s problems and had correctly identified her heart-related problems as warranting a cardiac consultation on a non-emergency basis. The expert also testified that in most hospitals obstetricians rely on respirologists or internists to diagnose and treat PE. The expert indicated that she would have preferred a cardiac consultation within a week of discharge, but that Dr. Strban’s plan, calling for a consultation within a week or two, was a reasonable plan and met the applicable standard of care.
45Neither party called an expert cardiologist. The plaintiff successfully opposed the defence attempt to call Dr. Singer, the cardiologist who had read the August 8 echocardiogram. No cardiologist testified at the trial.
46The plaintiff called Dr. Davies, an obstetrician, to comment on the standard of care provided by Dr. Halmo. Dr. Davies agreed that it was appropriate to treat Ms. Manary for PE when she arrived at the hospital on August 7. He testified, however, that Dr. Halmo should have realized that the various tests, especially the CT angiogram on August 10, virtually excluded PE and that the heart-related problems – especially the aneurism – revealed by those tests required immediate and thorough investigation by the appropriate specialists. As I understand the thrust of Dr. Davies’ evidence, it was his opinion that by no later than the morning of Monday, August 11 Dr. Halmo, as Ms. Manary’s obstetrician and the MRP, should have realized that it was necessary to obtain an immediate cardiac consultation and to immediately transfer Ms. Manary to a tertiary care centre.
47Dr. Davies did not agree that Dr. Halmo could rely on the treatment plan proposed by Drs. Jackson and Strban. Dr. Davies believed that Dr. Halmo had sufficient experience with PE to “second guess” the respirologists. In cross-examination of Dr. Davies the following exchange occurred:
Q …You say it’s a failure to meet the standard of care for Dr. Halmo with his – in his circumstances and the circumstances of this case not to second guess the respirologist with respect to the issues in this case; correct?
A Yes.
Q And would you agree it depends on the practice of the physician and the hospital in which he’s practicing?
A No.
Q No, you don’t agree with that?
A No, I think based on his education and experience he should have the ability whether he’s treating the patient completely for the pulmonary embolus or in conjunction with the cardiologist – or sorry, the chest physicians that he maintains the same responsibility for the patient.
48Dr. Davies was not qualified to express an opinion on the care provided by Dr. Strban and the other respirologists. Nonetheless, he testified that “all of the doctors missed the urgency of the problem”. Dr. Davies opined that the treatment plan proposed by the respirologists was “incorrect” because that plan did not appreciate the urgency presented by the aneurism.
49In Dr. Davies’ opinion, Dr. Halmo was negligent for not realizing that the respirologists’ proposed plan was “incorrect” given the emergency presented by the aneurism and the virtual exclusion of PE as a cause of Ms. Manary’s symptoms. According to Dr. Davies, Dr. Halmo should have rejected the plan proposed by the consulting respirologists and implemented a plan that would see Ms. Manary obtain an immediate cardiac consultation and an immediate transfer to a tertiary care centre.2
50Dr. Cowal, an obstetrician, testified as a defence expert. In her opinion, Dr. Halmo met the standard of care as both the obstetrician and MPR in relying on the respirologists to investigate and treat Ms. Manary’s heart-related problems. It was unreasonable to expect that Dr. Halmo would have the same expertise in diagnosing and treating PE as would the respirologists. It was, therefore, appropriate for him to not second guess their diagnosis and proposed plan of treatment. In Dr. Cowal’s assessment Dr. Halmo fully met his duty to Ms. Manary by ensuring that the respirologists were making what they regarded as the appropriate treatment plan for Ms. Manary’s various chest-related medical issues.
51The plaintiff also called Dr. Rubin, a vascular surgeon. He testified that Dr. Strban and Dr. Halmo fell below the standard of practice by failing to conduct the test necessary to confirm the provisional diagnosis of PE, and by failing to conduct the test necessary to definitely rule out an aortic dissection. Dr. Rubin testified that had the proposed tests been conducted, a diagnosis of acute aortic dissection would have been made leading to the immediate transfer to a cardiac surgical unit in time to perform the necessary surgery before the aneurism ruptured.
52The defence called a cardiovascular surgeon, Dr. Christakis. In his opinion, the aneurism detected in Ms. Manary’s ascending aorta on August 10 did not give rise to an emergency. The risk of rupture was relatively low. The aneurism could be properly treated by surgery before or at the time of delivery. In his opinion, a cardiac consultation in a week or two after Ms. Manary’s discharge would have given sufficient time to perform the necessary surgery.
53Dr. Christakis opined that Ms. Manary received “excellent care” and that the appropriate tests had been done and a reasonable treatment plan formulated. In his opinion, the ruptured aneurism and Ms. Manary’s death were an exceedingly rare event that could not have been prevented.
III
THE REASONS FOR JUDGMENT
54The trial judge recognized that the outcome of the action depended largely on whether the decision that Ms. Manary’s heart-related problems did not require immediate attention from a cardiologist and transfer to a tertiary care centre fell below the applicable standard of care. After a general overview of the evidence and a review of the applicable legal principles, the trial judge turned to the application of those principles to the facts as he found they related to each of the defendant doctors. He found that Dr. Hanna was not negligent in failing to observe certain “subtle findings on the CT scan”. The trial judge then turned to Dr. Strban.
While it would have been preferable for Dr. Strban to treat Christine’s enlarged aorta as an emergency and have her seen quickly by a cardiologist who would be more familiar with an enlarged aortic aneurism and the risk of rupturing, I am unable to conclude that his failure to do so was a failure to meet the required standard of practice.
Similarly, to require Dr. Strban to treat Christine’s enlarged aorta as an emergency, given the information provided to him and what he observed, would be to impose an elevated standard that goes beyond what is reasonably required. [Emphasis added.]
55There is no appeal from the trial judge’s finding that Dr. Strban’s conduct met the applicable standard of care. This is not surprising in that the plaintiff did not call an expert respirologist and the defence called an expert respirologist who defended Dr. Strban’s treatment of Ms. Manary as reasonable and appropriate.
56After finding that Dr. Strban was not negligent, the trial judge turned to Dr. Halmo. He summarized the competing opinions of the experts. As outlined above, they disagreed on whether Dr. Halmo was entitled to rely on the opinion of the respirologists. Dr. Davies insisted that because Dr. Halmo was the MRP he was required to make his own assessment of the appropriate treatment for Ms. Manary’s heart-related problems. Dr. Cowal, the defence expert, testified that the respirologists had greater expertise in respect of the medical problems confronting Ms. Manary and that it was appropriate for Dr. Halmo to rely on their assessment of the appropriate course of treatment.
57In preferring Dr. Davies’ evidence the trial judge said:
With great respect to the view of Dr. Cowal, she has set the standard of care too low. Dr. Davies is not discussing an ideal or an impossibly high standard. It is a safer standard. It is not a standard that should be avoided by the delegation of responsibility in a particular mode of practice. The defence position on the division of responsibilities is counter-intuitive and defeats the purpose of designating an MRP. If this court accepts the defence position that Dr. Halmo is to trust the respirology team absolutely and to chart on obstetric issues only, this court would be accepting that Dr. Halmo serves no function beyond that of an obstetrician. Respectfully, this court does not accept that. The standard of care of an MRP is not limited to delegating tasks and responsibilities to experts. An MRP is not absolved of responsibility with respect to a medical condition simply because that medical problem is beyond the expertise of the MRP. [Emphasis added.]
58The trial judge then found that Dr. Halmo’s decision to accept the treatment plan put forward by Dr. Strban fell below the applicable standard of care.
He [Dr. Halmo] did not exercise critical judgment in considering the path being taken by the respirologists when there was an alternative diagnosis that could and should have been pursued. Given the mode of practice at Grand River Hospital at the relevant time the MRP was required to participate in a fuller manner by exercising independent critical judgment and ensuring full and complete communication among all treating physicians. While the honest and intelligent exercise of judgment has long been recognized as satisfying one’s professional obligation, a failure to exercise objective and critical judgment can constitute negligence. Perhaps, Dr. Halmo, given the mode of practice, was lulled into a belief that any responsibility beyond obstetrical care was not his. That cannot be the case. The mode of practice is only workable and safe for the patient if the MRP is exercising his responsibility to the fullest. The standard of care required of an MRP cannot be met by an implied and undocumented understanding or by merely delegating responsibility. [Emphasis added.]
59The trial judge further elucidated the nature of Dr. Halmo’s negligence in this passage:
Had Dr. Halmo, who bore ultimate responsibility for the patient, not merely accepted the opinion and paths of treatment taken by the respirologists, he would have been driven to the conclusion that the safest course was an immediate transfer to a tertiary care centre where an evaluation of Christine’s [Ms. Manary’s] enlarged aorta and immediate management of her condition would have been available to ensure her survival. [Emphasis added.]
IV
Are the trial judge’s findings Demonstrably incompatible?
60There is, of course, nothing wrong with a finding that one treating physician met the requisite standard of care while another did not. The assessment of liability is specific to each defendant. Nor are logic and consistency the standards against which trial findings are measured on appeal. An illogical result is not necessarily a reversible result. Inconsistent findings do, however, warrant appellate intervention where they reflect legal error, or are so demonstrably incompatible as to compel the conclusion that one or both findings are unreasonable or the product of palpable and overriding factual error.
61In finding Dr. Halmo negligent the trial judge accepted, as he was entitled to do, Dr. Davies’ evidence. In particular the trial judge accepted Dr. Davies’ evidence that as the MRP, Dr. Halmo was required to make his own assessment of the appropriate treatment plan for Ms. Manary’s heart-related problems rather than simply accept the advice of Dr. Strban. Acknowledging that the trial judge was entitled to prefer Dr. Davies’ evidence as to the scope of the MRP’s role, does not, however, provide an answer to the complaint that the finding that Dr. Strban was not negligent is irreconcilable with the finding that Dr. Halmo was negligent. Even if Dr. Halmo was required to make his own independent assessment as to the proper treatment of Ms. Manary’s heart-related problems, the question remains whether his acceptance of the plan proposed by Dr. Strban fell below the required standard of care.
62Dr. Davies’ testimony that Dr. Halmo was negligent in simply accepting Dr. Strban’s treatment plan rested on Dr. Davies’ opinion that Dr. Strban’s plan was “incorrect” and failed to appreciate that Ms. Manary’s condition required immediate attention by those with the necessary cardiac expertise. Dr. Davies’ opinion that Dr. Halmo was required to “second guess” Dr. Strban was based on his belief that Dr. Strban’s opinion was wrong and that Dr. Halmo should have recognized that Dr. Strban had failed to appreciate the urgency of the situation.
63The trial judge accepted that Dr. Strban met the applicable standard of care, and in doing so effectively rejected the premise underlying Dr. Davies’ opinion that Dr. Halmo was negligent. Given the trial judge’s finding that Dr. Strban’s proposed treatment plan was reasonable, the question should have been: was Dr. Halmo negligent in accepting what the trial judge found was a reasonable treatment plan proposed by Dr. Strban?
64On the trial judge’s analysis, Dr. Strban’s plan for a cardiac consultation within a week or two of Ms. Manary’s discharge met the applicable standard of care, but Dr. Halmo’s acceptance of that reasonable treatment plan fell below the standard of care applicable to Dr. Halmo. In effect, Dr. Halmo was found negligent for adopting a treatment plan that the trial judge found to be reasonable and consistent with the standard of care applicable to Dr. Strban.
65Nothing in the evidence explains or justifies the trial judge’s different findings. Those findings cannot be explained on the basis that Dr. Halmo had an added expertise and should, therefore, have seen that Ms. Manary’s condition required urgent attention from a cardiologist at a tertiary care centre even if Dr. Strban, acting reasonably, could not be expected to have seen that need. The bulk of the evidence indicated that Dr. Halmo had considerably less expertise in the treatment of the medical problems faced by Ms. Manary than did Dr. Strban. Even Dr. Davies did not suggest that Dr. Halmo would be expected to have more expertise in the diagnosis and treatment of Ms. Manary’s heart-related problems than did Dr. Strban.
66Counsel for the respondent, relying heavily on the trial judge’s reasons, suggests that the different findings are explained by Dr. Halmo’s added obligations as the MRP. Dr. Halmo was required to “assess the full clinical picture” and “formulate an overall plan of care”. There is no doubt that Dr. Halmo had those obligations. There is, however, no evidence that Dr. Halmo was aware of or should have been aware of any part of Ms. Manary’s clinical picture that was not known to Dr. Strban. Both doctors had equal access to and equal knowledge of the facts relevant to an assessment of whether Ms. Manary’s heart-related problems should be treated as an emergency.
67Nor can Ms. Manary’s pregnancy and Dr. Halmo’s role as her MRP and obstetrician explain the trial judge’s different findings. All of the doctors agreed that Ms. Manary’s heart-related problems had to be addressed before she delivered. The trial judge did not, however, suggest that Dr. Halmo was aware of or should have been aware of pregnancy-related issues that would require him to reject Dr. Strban’s proposed treatment plan.
68In considering whether the finding against Dr. Halmo can be justified based on pregnancy-related problems, it is important to realize that on the facts of this case, it was of no assistance to the plaintiff to demonstrate that by virtue of her pregnancy and the need to transfer her to a tertiary care centre, Ms. Manary should have been seen by a cardiologist before her discharge from the hospital. The plaintiff could only succeed by showing that the situation was sufficiently urgent to necessitate her transfer to a tertiary care centre before August 15 so that she could undergo the necessary surgery no later than the morning of August 15. Ms. Manary’s most unfortunate death on August 15 renders irrelevant questions as to whether the stage of her pregnancy dictated that she receive a cardiac consultation well before the week or two envisioned by Dr. Strban.
69Finally, there is nothing in Dr. Halmo’s role as MRP that can reconcile the results arrived at by the trial judge. Clearly, as counsel for the respondent contends, Dr. Halmo was obliged to “formulate an overall plan of care”. However one describes that oversight role, nothing in the evidence suggests that oversight extended to an obligation to disregard the reasonable opinions offered by specialists specifically engaged in the treatment of Ms. Manary because of their expertise. Even if one accepts Dr. Davies’ contention that an MRP must “second guess” specialists brought in to consult on the treatment of a patient, Dr. Davies does not suggest that the “second guessing” extends to an obligation to reject a reasonable treatment plan proposed by a specialist qualified to offer that proposed treatment plan.
70How did the trial judge arrive at these inconsistent findings? Counsel for the appellant persuasively argues that the trial judge’s inconsistent findings are explained by his application of an overly rigorous standard of care to Dr. Halmo’s conduct. Counsel submits that the trial judge improperly imposed that more rigorous standard because of Dr. Halmo’s role as the MRP.
71Counsel relies on the following passage in the trial judge’s reasons:
Had Dr. Halmo, who bore ultimate responsibility for the patient, not merely accepted the opinion and paths of treatment taken by the respirologists, he would have been driven to the conclusion that the safest course was an immediate transfer to a tertiary care centre… [Emphasis added.]
72Counsel for the appellant submits the “safest course” standard is significantly higher than the reasonableness standard applied to Dr. Strban’s conduct. A proposed treatment plan may be reasonable but may not be the safest treatment available in the circumstances. Counsel submits that the trial judge’s inconsistent findings indicate that Dr. Halmo was found negligent not because he failed to act as a reasonable obstetrician and MRP would in the circumstances, but because he failed to choose the “safest course” for Ms. Manary.
73Counsel’s reading of the trial judge’s reasons may well explain the inconsistent results. If the trial judge did apply a “safest course” standard of care he erred in law. Dr. Halmo’s liability had to be tested against the standard of what a reasonable physician in the circumstances would have done. Those circumstances included the fact that Dr. Halmo was the MRP. His role as the MRP did not, however, require that he follow only the “safest course” of treatment. That standard is wholly unworkable in the real world of limited medical resources and is contrary to binding precedent: see Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 362.
74Counsel for the appellant also argues that even if the inconsistent findings cannot be traced to a legal error, those findings cannot stand. She argues that irreconcilable findings of fact that are not the product of a legal error must reflect reversible factual error.
75I find support for counsel’s submission in R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 21, where the Supreme Court, in the context of considering the reasonableness of a trial judge’s decision in a criminal case said:
A verdict is likewise unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict if that inference or finding of fact is demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge. [Emphasis added.]
76“Reasonableness”, the concept most commonly used in the criminal law context to describe the standard of appellate review applicable to findings of fact, is also used in the civil context. In H.L. v. Attorney General of Canada, 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 4, Fish J., for the majority, in describing the standard of review applicable to appellate review of fact finding, said:
[I]t [the Court of Appeal] may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence. [Emphasis added.]
77The finding that Dr. Halmo was negligent is “demonstrably incompatible” with the finding that Dr. Strban was not negligent. That incompatibility goes beyond an inconsistency between a finding of fact and other evidence that was neither contradicted nor rejected. The incompatibility in this case is more fundamental in that it arises out of two inconsistent findings on the ultimate questions faced by the trial judge.
78Even if the inconsistent findings are not the product of the legal error as alleged by the appellant, their demonstrable incompatibility convinces me that the finding against Dr. Halmo is unreasonable and warrants appellate intervention on that basis. Ultimately, it does not matter whether the irreconcilable findings reflect legal error, a palpable and overriding error in the fact finding process, or an unreasonable factual finding. In any event, the result cannot stand. As the finding in respect of Dr. Strban is not challenged, it follows that the finding that Dr. Halmo was negligent must be set aside.
V
the causation issue
79As I would allow the appeal for the reasons set out above, it is unnecessary to address the appellant’s causation argument. However, for completeness, I will briefly indicate why I would not have given effect to that argument.
80There was evidence from the plaintiff’s experts that by no later than the morning of August 11 the doctors at Grand River Hospital should have treated Ms. Manary’s condition as an emergency and obtained an immediate cardiac consultation and transferred Ms. Manary to a tertiary care centre. There was also evidence from those experts that had Ms. Manary been transferred by August 11, it was likely that she would have had life-saving surgery before August 15.
81The appellant is critical of the plaintiff’s failure to call a cardiologist to speak to the likely course of events had Dr. Halmo requested a cardiac consultation. The absence of that evidence could well have had a negative impact on the plaintiff’s case as it related to causation. I do not agree, however, that without the evidence of a cardiologist the plaintiff could not prove causation.
82Had the finding that Dr. Halmo was negligent been sustainable in light of the finding that Dr. Strban was not negligent, the evidence of the plaintiff’s experts was enough to demonstrate causation. That evidence was accepted by the trial judge.
VI
conclusion
83I would allow the appeal, set aside the judgment below, and dismiss the action against Dr. Halmo. I do not reach Dr. Halmo’s application for leave to appeal the cost order made at trial.
“D. Doherty J.A.”
84We would dismiss this appeal.
85The issues concerning the responsibilities of the various doctors involved in Ms. Manary’s care must be considered in light of the Hospital’s policies. A representative of the Hospital introduced Exhibit 4, Policy 2-30 from the Hospital’s Physician Manual entitled “Most Responsible Practitioner/Attending Practitioner”. The Policy Manual indicates the Policy was approved by the Medical Advisory Committee.
86The document states that:
IT IS THE POLICY OF THE HOSPITAL THAT:
“The Most Responsible Practitioner/Attending Practitioner” (MRP) is the practitioner most responsible for the hospital care of a particular patient. The MRP is responsible for writing and clarifying orders, and providing a plan of care, obtaining consultations as appropriate, coordinating care, as well as the discharge process. Staff concerns about a patient should be directed to the MRP.
The MRP is to maintain communication with the patient’s relatives and maintain/liaison if necessary, with consultants and family practitioners involved in the patient’s care.
The MRP will be the admitting practitioner or such other practitioner to whom the patient has been transferred, from time to time, in accordance with the Rules. There shall be only one practitioner at any one time referred to as the most responsible practitioner.
87The Policy goes on to stipulate certain formal and procedural matters. A patient cannot be admitted unless an MRP is designated. On admission, the MRP must be clearly defined on the face sheet. The transfer of the MRP responsibility must be done “in writing, on the order sheet to another practitioner”. The Hospital representative testified that the Policy is distributed to all physicians on staff. The Hospital required that the physician fulfilling the MRP responsibility sign the face sheet that identified him or her as the MRP. Dr. Halmo signed the document designating him as the MRP for Ms. Manary and he remained the MRP from the time of her admission until her death.
88At trial, the major issue in the respondents’ case against Dr. Halmo was the import of the Hospital’s MRP Policy. As the trial judge recounts, counsel for Dr. Halmo put forward that there was “an implied and undocumented understanding” between physicians as to the division of their responsibilities under the Policy. They submitted that the implied and undocumented understanding resulted in coordinated, comprehensive care based on the relative expertise of the physicians. Ms. Manary’s chart, counsel for Dr. Halmo argued at trial, made it clear that the respirologists were closely managing Christine's care. The argument advanced at trial, and repeated here, was that Dr. Halmo, as MRP, was not required to question the diagnosis and treatment plan that the respirologists, principally Dr. Strban, had instituted, or consider any alternative plan of care. Counsel put to the trial judge that Dr. Halmo was less expert than Dr. Strban in cardiac issues and that he appropriately deferred to Dr. Strban’s plan to discharge Ms. Manary and arrange a cardiac consultation for her in a week or two.
89The trial judge emphatically rejected this view of Dr. Halmo’s role and responsibilities as the MRP. He said that the defence position on the division of physicians’ responsibilities was counterintuitive. It would defeat the purpose of designating an MRP and mean that Dr. Halmo served no function beyond that of an obstetrician. He went on to find that:
The standard of care of an MRP is not limited to delegating tasks and responsibilities to experts. An MRP is not absolved of responsibility with respect to a medical condition simply because that medical problem is beyond the expertise of the MRP. As stated in Exhibit 4 [the MRP policy], the MRP is responsible for a plan of care. That plan should address the totality of care, not only obstetric issues. [Emphasis added.]
90The Hospital’s Policy Manual and the testimony of Dr. Davies provided abundant support for the trial judge’s rejection of the narrow “implied and undocumented” view of the responsibilities of an MRP advocated by Dr. Halmo.
91The trial judge found that Dr. Halmo did not exercise critical judgment or provide an appropriate plan of care for Ms. Manary, and accordingly failed to fulfill his responsibilities as the MRP.
92Before reviewing the basis for that finding, we state our agreement with the trial judge’s observation that “a failure to exercise objective and critical judgment can constitute negligence.” The trial judge surmised that perhaps Dr. Halmo had been “lulled into a belief that any responsibility beyond obstetrical care was not his”. Dr. Halmo’s position at trial supports that supposition. As stated, Dr. Halmo’s position at trial was not that he had fulfilled his broad responsibilities as MRP, but that according to the narrow “implied and undocumented understanding” of the MRP position, those responsibilities had been largely transferred to other physicians. However, as the trial judge stated “The standard of care required of a MRP cannot be met by an implied and undocumented understanding or by merely delegating responsibility.”
93It is important to remember the hospital context in which Dr. Halmo was functioning at the time. There was no cardiac specialist on staff at Grand River Hospital. Ms. Manary’s complaints of severe chest pain were addressed by respirologists, principally by Dr. Strban.
94Dr. Strban, as the primary consultant, believed that Ms. Manary suffered from a pulmonary embolism. He was away from the hospital on August 9 and 10. On August 11 he became aware that over the weekend Ms. Manary had experienced a resurgence of severe pain and that a CT angiogram, conducted August 10, had revealed that there was a “big” aneurysm in her ascending aorta. The aneurysm was dilated to a dimension of 6 cm x 6 cm. Nevertheless, Dr. Strban maintained his differential diagnosis of pulmonary embolism - a diagnosis within the realm of respirology, as opposed to cardiology. He explained that he maintained that diagnosis, though he was concerned about the weekend pain she experienced, because the CT angiogram showed no dissection, and she seemed greatly improved from August 8. On August 11, she was not having much pain, was off oxygen, was walking around and looking a lot better. He attributed Ms. Manary’s marked improvement to the treatment she was receiving for pulmonary embolism. He considered that Ms. Manary’s cardiac issues could be addressed on an outpatient basis. According to Dr. Strban on August 12 or 13, he communicated his diagnosis to Dr. Halmo by telephone and undertook to arrange a cardiac consultation for her on an urgent basis within a week or two. On August 13 he “signed off” placing the entry on her chart “ready for discharge home from respirology point of view” (emphasis in original). Under the MRP Policy Dr. Halmo remained responsible for Ms. Manary’s discharge.
95The trial judge dismissed the respondents’ action against Dr. Strban. Dr. Strban was bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same expertise and experience. We note in passing that the trial judge cited Fish v. Shainhouse, [2005] O.J. No. 4575, for the proposition that in medical malpractice cases expert evidence is required and the expert evidence must be a physician who practices in the same area and with the same degree of expertise as the specialist against whom negligence is alleged. The respondents did not call an expert respirologist as a witness.
96While the trial judge found that Dr. Strban met the standard of care required of a respirologist, he found that Dr. Halmo fell short. He concluded that “as an obstetrician and MRP, [Dr. Halmo] did not exercise that degree of care and skill which could reasonably be expected of a normal prudent practitioner of the same experience and standing as an obstetrical specialist acting as an MRP in August 2003” (Emphasis added). Dr. Halmo was required to participate in a fuller manner by exercising independent critical judgment.
97As we read his reasons, the trial judge found that Dr. Halmo’s significant failing occurred no later than the morning of August 11. On the morning of Saturday, August 9, Dr. Halmo called the respirologist on duty, Dr. Jackson, to discuss getting a cardiology consultation. After she examined Ms. Manary on August 9, Dr. Jackson noted on her chart that she should have a “cardiology review”. In his morning rounds on August 11, Dr. Halmo read the notes on Ms. Manary’s chart, including the indication that the August 10 CT scan disclosed a big aneurysm on Ms. Manary’s ascending aorta. Later on August 13, Dr. Strban noted on Ms. Manary’s chart that she needed a cardiology consult OPD” – that is through the outpatient department. According to Dr. Halmo, he had no discussions with Dr. Strban until August 13.
98The trial judge accepted the evidence of Dr. Davies that the enlarged aorta warranted attention and that an MRP had a duty to consult if he did not understand the cardiac findings. The trial judge concluded, as we read his reasons, that Dr. Halmo, who bore ultimate responsibility for the patient, should have exercised independent critical judgment and concluded that immediate, expert cardiac consultation, beyond what the “chest team” at the Hospital could provide, was required and should have arranged a transfer to a tertiary care center where an evaluation of her enlarged aorta and immediate management of her condition could be carried out.
99If, as Dr. Strban believed, the pain that Ms. Manary had been experiencing in the hospital was not cardiac-related, the large aneurysm was nonetheless a clear and significant cardiac problem beyond the expertise of the respirologists that would have to be addressed before delivery. The trial judge’s reasons must be assessed in the context of the record. As Dr. Davies testified, one can never predict exactly when a baby is coming. According to Dr. Cowal, the defence’s obstetrical expert, 90 percent of patients deliver within 37 to 41 weeks. And, as Dr. Cowal testified, a prudent obstetrician would know that the stresses of labour and delivery could cause a tear, a bleed or a dissection of an aneurysm. Ms. Manary – who had been in severe pain for several days, who suffered from gestational diabetes, and whose pre-pregnancy weight was 215 pounds - was fast approaching her 37th week. Grand River Hospital lacked the facilities to look after high-risk obstetrical patients, such as Ms. Manary. Dr. Christakis, the cardiovascular surgeon called by the defence, conceded that the possibility of an early delivery would be left to the obstetrician to evaluate.
100We are not troubled by the fact that the trial judge found Dr. Strban met the standard of care applicable to a respirologist and at the same time found Dr. Halmo failed to meet the standard of care applicable to an obstetrician and MRP. We regard the argument that these two findings are logically incompatible to be but a variation of the argument rejected at trial – that the implied undocumented working relationship between physicians at the hospital allowed Dr. Halmo, the MRP, to delegate Ms. Manary’s care to the “chest team” at the hospital and relieved him from his obligations MRP to exercise independent judgment and oversight. Certainly, the “chest team” had greater expertise in cardiac issues than did Dr. Halmo. We do not understand the trial judge to say that the MRP was required to exercise greater expertise than the respirologists. He stated the case turned on “the determination of the standard of practice for an obstetrician functioning as an MRP” (emphasis added). Under the MRP policy, Dr. Halmo was responsible for obtaining consultations as appropriate, for coordinating care, and for a plan of care that addressed the totality of care, not just obstetric issues. Dr. Halmo had different expertise and different responsibilities than Dr. Strban. For example, it was for Dr. Halmo, as an obstetrician functioning as an MRP, and not Dr. Strban, to factor in both the timing of delivery, and the fact that delivery should not occur at the Grand River Hospital. The trial judge found that had Dr. Halmo recognized and exercised his responsibility as MRP, he would have sought an immediate transfer to a tertiary care centre where an evaluation of Ms. Manary’s enlarged aorta and immediate management of her condition would have been available upon reading the note describing the result of Ms. Manary’s CT scan. In our view, when read in context, the trial judge did not improperly test Dr. Halmo’s conduct against a “safest course” standard of care. The trial judge was clear that he found that Dr. Halmo fell short of the standard of care because “…as an obstetrician and MRP, he did not exercise that degree of care and skill which could reasonably be expected of a normal prudent practitioner of the same experience and standing as an obstetrical specialist acting as an MRP in August 2003”.
101In regard to causation, the trial judge was satisfied had Dr. Halmo not abdicated his responsibility as MRP. The cardiac evaluation of Ms. Manary, her transfer to a tertiary care centre where additional expertise and facilities were available, and the necessary surgery could have been completed days before Ms. Manary’s untimely death on August 15, 2003. Dr. Rubin’s testimony supports that finding.
102Finally, we are satisfied the trial judge’s reasons adequately explain to Dr. Halmo why he was found negligent. His implied and undocumented understanding that he had limited responsibilities as MRP was rejected. He failed in his actual MRP responsibilities to exercise judgment and provide a plan of care for Ms. Manary.
103We would dismiss the appeal.
104The appellant appealed the trial judge’s award of costs arguing that the judge failed to consider the divided success of the case and offers to settle made by Dr. Strban and Dr. Hanna. He argues that the trial judge focussed on the reasonable expectations of the parties as to what a lawyer would have to do to prepare for this kind of litigation to the exclusion of other factors.
105The standard for interfering with a trial judge’s costs award on appeal is a high one. We are not persuaded there is any basis for doing so in this case. If Doctors Strban and Hanna had been let out of the action, the trial would have been much the same. The same experts would still have been required as part of the case against the defendant, Dr. Halmo as he argued that he was entitled to rely on the respirologists.
106Our attention was not drawn to any offer to settle made by all defendants that the trial judge failed to consider.
107We would dismiss the appellant’s costs appeal.
108We would fix the respondent’s costs of the appeal in the amount of $40,000 plus disbursements and applicable taxes.
“R.G. Juriansz J.A.”
“Alexandra Hoy J.A.”
Released: May 14, 2013
Footnotes
- Counsel for Manary initially cross-appealed from the finding that Dr. Hanna, the radiologist, and Dr. Strban, the respirologist, were not negligent. The cross-appeal was not pursued.
- Dr. Davies was also critical of Dr. Halmo’s failure to make daily progress notes in Ms. Manary’s chart. He stressed that the notes are essential to effective communication. As I do not see the quality of Dr. Halmo’s notes, or the effectiveness of the communication among the doctors, as ultimately relevant to the finding of liability against Dr. Halmo, I will not address that part of the evidence.
