COURT OF APPEAL FOR ONTARIO

CITATION: Mangal v. William Osler Health Centre, 2014 ONCA 639

DATE: 20140917

DOCKET: C57056

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Sudesh Mangal, Vincent Ravi Mangal, by his Litigation Guardian, Sudesh Mangal and Sarina Mangal, by her Litigation Guardian, Sudesh Mangal

Plaintiffs

(Appellants)

and

William Osler Health Centre, Brampton Memorial Hospital Campus, Dr. Indira Chandran, Dr. Sheldon Girvitz, Dr. Jordan Bohay, Dr. Keith Louis, Dr. Azhar Malik, Dr. A. Singh. Dr. I. Gold, Dr. D. Price, Dr. A. Macdonald, Dr. D. Dubois, Dr. J. Doe #1, Dr. J. Doe #2, Nurse Caron Hall, Nurse Amy Romyn, Nurse Tara Benford, Nurse Connie Brain, Nurse Mary Bell, Nurse K. Gravac, Nurse T. Ellis, Nurse Ann Botting, Nurse Iris Perry, Nurse V. Gutwein, Nurse J. Doe #1 and Nurse J. Doe #2

Defendants

(Respondents)

Paul J. Pape and Tanya A. Pagliaroli, for the appellants

Nina Bombier and Katie Pentney, for the respondents Dr. Indira Chandran, Dr. Sheldon Girvitz and Dr. Jordan Bohay

William D.T. Carter, Ewa Krajewska and Logan Crowell, for the respondent William Osler Health Centre

Heard: April 1, 2014

On appeal from the order Justice Frank N. Marrocco of the Superior Court of Justice, dated April 22, 2013, with reasons reported at 2013 ONSC 2313.

Hourigan J.A.:

OVERVIEW

[1] At 8:42 a.m. on February 16, 2004, Sharon Mangal gave birth to a healthy baby girl at the William Osler Health Centre (“William Osler”). Ms. Mangal was pronounced dead approximately nine hours later. At trial, her family alleged that she died of post-partum haemorrhaging that the nurses and physicians caring for her failed to properly diagnose and treat.

[2] The trial judge found that one of the respondent physicians, Dr. Jordan Bohay, an anaesthetist, breached his duty of care by failing to promptly notify an obstetrician about Ms. Mangal’s condition at a critical stage. However, because the trial judge also found that Ms. Mangal died due to an untreatable blockage in her lung, he dismissed the appellants’ claim.

[3] The appellants appeal the decision, submitting that the trial judge erred in finding: (i) that Ms. Mangal died from a blockage in her lung; and (ii) that various omissions by the physicians and William Osler played no causal role in Ms. Mangal’s death. The respondent physicians cross-appeal the trial judge’s finding that Dr. Bohay breached the standard of care by not ensuring that an obstetrician was promptly called.

[4] For the reasons that follow, I would dismiss the appeal and the cross-appeal.

BACKGROUND FACTS

[5] Ms. Mangal was admitted to William Osler on February 16, 2004 for an elective caesarean section and a tubal ligation. She had undergone a previous caesarean section approximately four years earlier, giving birth to a healthy baby boy without complications.

[6] Dr. Indira Chandran, an obstetrician and a respondent in the appeal, performed the caesarean section on February 16, 2004. Following the delivery, she returned to her office, which was located very close to the hospital.

[7] At approximately 9:35 a.m., Dr. Bohay, the anaesthetist during the surgery, transferred Ms. Mangal to the Post-Anaesthetic Care Unit, and wrote orders to Nurse Michelle Jackson requiring her to administer certain fluids (namely, Ringers Lactate) and to notify a physician if Ms. Mangal’s systolic pressure fell below 90. Dr. Bohay left Ms. Mangal to recover under the supervision of Nurse Jackson. At this point, Ms. Mangal was not actively bleeding and was stable.

[8] At 10:35 a.m., Nurse Jackson noted that Ms. Mangal had moderate lochia rubra. Lochia rubra is a red and thick jelly-like blood that comes from the vagina after giving birth. Nurse Jackson recorded this bleeding as “normal”. She also noted that Ms. Mangal’s fundus was three fingers above the umbilicus. A rising fundus is a sign of both bleeding and blood clots and requires monitoring.

[9] At 11:22 a.m., Ms. Mangal’s blood pressure dropped suddenly from 120/85 to 90/57, and her systolic blood pressure hovered in the mid- to low-80s over the next 20 minutes. Bleeding often causes a fall in systolic blood pressure in a post-operative patient.

[10] At 11:30 a.m., Nurse Jackson observed that Ms. Mangal’s fundal height rose an additional centimetre to four fingers, and that her fundus was firm. She noted that a “large amount” of lochia rubra was on the pads beneath Ms. Mangal. When Nurse Jackson massaged the fundus, a “moderate amount of clots” was expressed. Nurse Jackson did not report these observations to the obstetrician on call, Dr. Sheldon Girvitz, or to Dr. Chandran.

[11] Between 11:39 a.m. and 11:43 a.m., Nurse Jackson recorded three blood pressure readings: 85/51, 81/52, and 82/53. Immediately after the third reading, Nurse Jackson followed Dr. Bohay’s earlier orders and initiated a single large dose of Ringers Lactate. She also notified Dr. Bohay of a drop in Ms. Mangal’s blood pressure. Dr. Bohay ordered Nurse Jackson to administer 250 mL of Pentaspan to Ms. Mangal. Nurse Jackson did not tell Dr. Bohay or Dr. Girvitz about the large amount of lochia rubra, the blood clots, and the fundus level.

[12] At 11:45 a.m., after taking blood pressure readings, Nurse Jackson observed “gushes of blood” coming out of Ms. Mangal. At 11:47 a.m., Nurse Jackson administered the Pentaspan and re-assessed whether Ms. Mangal needed to be seen by an obstetrician. At noon, Nurse Jackson approached Dr. Girvitz and requested that he attend to Ms. Mangal.

[13] Between 12:25 p.m. and 12:30 p.m., Dr. Bohay assessed Ms. Mangal. Ms. Mangal’s blood pressure was at 89/60, her oxygen saturation was at 100%, and her pulse was at 83. Dr. Bohay concluded that her blood pressure had responded to the Pentaspan, that she was stable, and that she did not require any other fluids. He gave no further orders and left Ms. Mangal without any follow-up.

[14] At this point, Nurse Sandra Smout took over from Nurse Jackson, but Nurse Jackson remained with Ms. Mangal. Nurse Smout testified that when she came on duty, Ms. Mangal was not actively bleeding.

[15] At 12:35 p.m., Dr. Girvitz conducted a full physical examination. Dr. Girvitz recorded that Ms. Mangal was having “postpartum bleeding more than usual but not acute haemorrhage”. He noted that Ms. Mangal’s bleeding had stopped.

[16] Dr. Girvitz recorded no clots in the vagina, small amounts of lochia rubra in the vagina, a firm fundus, and no fever. Ms. Mangal’s blood pressure was 90/60 and her heart rate was at 78. Dr. Girvitz kept Ms. Mangal in the recovery room and gave a number of orders, including a complete blood count to determine Ms. Mangal’s haemoglobin levels and a “cross and type 2 units” which was an instruction to the nurses to draw additional blood to send to the blood bank so that they could prepare two units of blood which matched Ms. Mangal’s blood in case it was needed. After conducting an internal examination, Dr. Girvitz concluded that a haemorrhage was not occurring. He left Ms. Mangal and did not follow up with her for the next hour.

[17] Nurse Smout checked Ms. Mangal every five minutes and noticed no change in her vital signs. At 12:55 p.m., she drew a blood sample for the complete blood count ordered by Dr. Girvitz.

[18] At 1:10 p.m., Ms. Mangal’s condition changed dramatically. Her blood pressure dropped to 67/42 and 66/38. Nurse Smout paged Dr. Bohay and told him of the drop in blood pressure. Dr. Bohay concluded that Ms. Mangal was probably bleeding, and ordered Nurse Smout to run a second intravenous, order two units of blood (and to hang them under pressure as quickly as possible), conduct a complete blood count, conduct coagulation studies, administer more fluids, and notify Dr. Chandran. For the next half hour, Nurse Smout carried out these orders.

[19] At 1:28 p.m., the results of the CBC showed a 35% decline in Ms. Mangal’s haemoglobin and platelets. Dr. Bohay assessed Ms. Mangal and ordered more Pentaspan. At this point, Dr. Bohay suspected bleeding.

[20] At 1:43 p.m., Nurse Smout contacted Dr. Chandran.

[21] At 1:50 p.m., the first of two units of blood ordered by Dr. Bohay was ready.

[22] At 1:52 p.m., Dr. Chandran examined Ms. Mangal and observed blood coming out of her abdomen. She examined her vagina and removed blood clots; she told the nurses to find Dr. Bohay and tell him to make sure an operating room was available. Dr. Chandran asked if blood was available and was mistakenly told that Dr. Bohay had already ordered blood and blood products.

[23] At 2:00 p.m., Dr. Chandran contacted and consulted with Dr. Girvitz and they agreed to operate on Ms. Mangal to locate where the bleeding was coming from and to stop it. The doctors obtained Ms. Mangal’s consent to remove her uterus.

[24] At 2:05 p.m., Nurse Smout hung the first of two units of blood ordered by Dr. Bohay, and Ms. Mangal was given her first blood transfusion.

[25] At 2:07 p.m., Ms. Mangal’s incision oozed watery blood. Watery blood is an overt clinical sign of coagulopathy, an inability to form blood clots. Disseminated intravascular coagulopathy, or DIC, is a disorder in which the blood’s clotting mechanism goes into overdrive, forming small blood clots that consume all the blood’s coagulation products so that the blood can no longer clot. The doctors concluded that there was a coagulation problem and identified a need for coagulation factors.

[26] At 2:18 p.m., the second of two units of blood ordered by Dr. Bohay was ready.

[27] At 2:19 p.m., the lab received the blood samples for the coagulation tests.

[28] At 2:23 p.m., Nurse Smout hung the second of two units of blood ordered by Dr. Bohay, and Ms. Mangal was given her second blood transfusion with pressure. Dr. Bohay was called. Based on the watery blood observed earlier, he ordered a third intravenous and blood products (fresh frozen plasma, cryoprecipitate, and pooled platelets).

[29] At 2:33 p.m., Ms. Mangal was taken to the operating room. Ten minutes later, she was given four units of packed red blood cells. At 2:45 p.m., anaesthesia was started. At 2:50 p.m., she was given another unit of packed red blood cells.

[30] The first surgical cut was made at 3:10 p.m. As Dr. Girvitz removed the uterus, he saw less and less bleeding; however, Ms. Mangal’s heart rhythm became unstable.

[31] At 3:20 p.m., Ms. Mangal received a platelet transfusion. Five minutes later, she began receiving the first of another seven units of red blood cells, which were administered until 3:50 p.m.

[32] At 3:34 p.m., the lab results from the coagulation tests came back. They showed that Ms. Mangal needed coagulation factors.

[33] At 3:40 p.m., Ms. Mangal began receiving a transfusion of four units of plasma.

[34] At 3:55 p.m., Ms. Mangal’s heart stopped beating rhythmically. The surgical team acted immediately – by administering drugs and defibrillating Ms. Mangal – and resuscitated her. Dr. Girvitz noted that there was “generalized bleeding from pretty much everywhere”. He enlisted the help of a vascular surgeon. Ms. Mangal’s vena cava was “grossly distended and backed up”. Dr. Girvitz noted that Ms. Mangal experienced “very high venous pressures” despite “being hypotensive”.

[35] At 4:15 p.m., Ms. Mangal received another platelet transfusion and, at 5:05 p.m., she received her first unit of cryoprecipitate.

[36] At 5:23 p.m., Ms. Mangal suffered a second cardiac arrest and was pronounced dead.

DECISION OF THE TRIAL JUDGE

[37] At trial, the appellants called four expert witnesses: Dr. Sam Schulman, a haematologist; Dr. Wilfred Cassar-Demajo, an anaesthesiologist and specialist in internal medicine; Dr. Gary Dildy, an O.B.G.Y.N. with a sub-specialty in maternal fetal medicine; and Nurse Ann Holden, a registered nurse.

[38] The respondent doctors called two expert witnesses: Dr. William Noble, an anaesthesiologist and specialist in intensive care; and Dr. Catherine Cowal, who practices obstetrics and gynecology. William Osler called one expert witness, Nurse Barbara Scott, a registered nurse.

[39] The trial judge provided very thorough reasons for judgment that carefully reviewed the treatment that Ms. Mangal had received at William Osler. Ultimately, he dismissed the claim against all defendants.

[40] The trial judge scrutinized the actions of the doctors and nurses treating Ms. Mangal to determine whether they fell below the requisite standard of care. He reached the following conclusions, beginning at para. 261:

I am not satisfied that the evidence establishes that Nurse Jackson failed to notify an obstetrician no later than 12:00 p.m. concerning her observations of Ms. Mangal and that her failure to do so was a breach of the standard of care expected of a reasonable and prudent registered nurse of similar skill and experience.

I am not satisfied that Dr. Bohay’s failure to order a larger dose of Pentaspan at 12:30 p.m. was conduct which fell below the standard of care expected of a reasonable and prudent anaesthesiologist with his experience.

I am not satisfied that Dr. Bohay’s failure to order coagulation studies at 11:45 a.m. fell below the standard of care expected of a reasonable and prudent anaesthesiologist with his level of experience. I am also satisfied that, had Dr. Bohay ordered coagulation studies at 11:45 a.m., the results of those studies would not have disclosed a clotting disorder.

I am satisfied that Nurse Jackson and Nurse Smout failed to chart properly. However, I am not satisfied that the failures to chart described in the evidence impaired the determination by Dr. Chandran, Dr. Bohay or Dr. Girvitz of how to treat Ms. Mangal.

I am not satisfied that Dr. Bohay’s failure to order fluids, blood tests and a transfusion at 11:45 a.m. or at 12:30 p.m. fell below the standard of care expected of a reasonable and prudent anaesthesiologist with his level of experience.

I am not satisfied that Dr. Girvitz's failure to order coagulation studies when he completed his assessment of Ms. Mangal prior to 1:00 p.m. constituted a breach of the standard of care expected of a reasonable and prudent obstetrician with his level of experience.

I am not satisfied that Dr. Girvitz's failure to order a blood transfusion when he completed his assessment of Ms. Mangal prior to 1:00 p.m. constituted a breach of the standard of care expected of a reasonable and prudent obstetrician with his level of experience.

I am satisfied that, had Dr. Girvitz known that Ms. Mangal’s haemoglobin was 76 and her platelet count was 154,000 when he was examining her prior to 1:00 p.m., he would not have made any different written orders than the ones he left with Nurse Smout.

I am satisfied that the nursing staff implemented Dr. Girvitz's order for a complete blood count test (the 12:55 p.m. test) promptly, that the laboratory at the William Osler Health Centre performed the 12:55 p.m. test promptly and reported the results of that test promptly to the Post-Anaesthetic Care Unit.

[41] The trial judge found a single breach of the requisite standard of care. He held, at para. 270, that Dr. Bohay's “failure to promptly notify Dr. Chandran or Dr. Girvitz of Ms. Mangal’s condition at 1:13 p.m. was a breach of the standard of care expected of a reasonable and prudent anaesthesiologist with his level of experience”. He further found that this “breach resulted in the decision to operate being made later than 1:30 p.m.”

[42] The trial judge then turned to a consideration of whether the delay in contacting Dr. Chandran contributed to Ms. Mangal’s death. That assessment led him to consider the cause of death.

[43] The trial judge concluded that the cause of death was not an Amniotic Fluid Embolism (AFE), which the respondents had theorized, as the lungs did not contain any amniotic content. He also rejected the appellants’ theory of haemorrhaging at the C-section site, as this was inconsistent with the evidence and the physicians’ observations.

[44] The trial judge concluded, at paras. 219-20, that Ms. Mangal died because of a blockage in her lung that prevented blood from flowing from the right side of her heart to the left side:

When I consider the evidence, I am satisfied that Ms. Mangal died because her heart stopped beating. Her heart stopped beating because there was insufficient blood available to circulate within her body. I am satisfied that there was insufficient blood available to circulate within her body because there was a blockage which impaired the flow of blood from the right side of her heart to the left side of her heart. In my view, this conclusion explains the observations made, not only by Dr. Girvitz but by two other doctors, who voluntarily participated in the emergency surgery to try to stop Ms. Mangal’s bleeding and who made actual observations of Ms. Mangal.

If amniotic fluid did not cause the blockage, then the question becomes whether the blockage was a blood clot formed as a result of Ms. Mangal having the clotting disorder DIC and whether it is more likely than not that failing to decide to operate at 1:30 p.m. contributed to the blockage.

[45] He concluded that Ms. Mangal was in DIC at 2:07 p.m. when an overt clinical sign of DIC, watery blood, was observed oozing from the incision site. The decision to operate was made at approximately 2:00 p.m. and the surgery actually began at 3:10 p.m. The trial judge noted that there was no suggestion that the time it took to prepare for surgery, from 2:00 p.m. to 3:10 p.m., was unreasonable. He therefore drew the inference that, had the decision to operate been made at 1:30 p.m., the surgery would have commenced at a point when Ms. Mangal was in DIC.

[46] He further found that, even if Dr. Girvitz had decided to operate at 12:50 p.m., at the conclusion of his assessment, the operation would not have commenced until approximately 2:00 p.m., “at which time it is more likely than not that she was fully in DIC”: at para. 228.

[47] Based on these findings the trial judge reached the following conclusions, at paras. 229-30:

Accordingly, I am not satisfied that it is more likely than not that the blockage which prevented blood from flowing from the right side of Ms. Mangal’s heart to the left side of her heart could have been avoided if the decision to return to surgery had been made at 1:30 p.m.

Accordingly, I am not satisfied that, it is more likely than not, that the failure to decide to operate on Ms. Mangal at 1:30 p.m. contributed to the blockage which prevented blood from flowing to the left side of Ms. Mangal’s heart and caused her death.

[48] The trial judge also considered this issue of the administration of blood products. He concluded as follows, at para. 271:

I am satisfied that blood and blood products were administered to Ms. Mangal prior to and during the second surgery as they became available. I am satisfied that blood and coagulation products were administered in the appropriate proportion prior to 3:55 p.m. when Ms. Mangal’s heart stopped beating rhythmically and her chances of survival as a result were below 50%. In terms of the timing of the administration of the coagulation blood products, I am satisfied that Ms. Mangal should have received one and three-quarter units of plasma between 2:04 p.m. and 3:20 p.m. I am not satisfied, on the evidence, that had this quantity of plasma been administered to Ms. Mangal, it is more likely than not that she would have survived her second surgery.

POSITIONS OF THE PARTIES

[49] The appellants submit that the trial judge’s blockage in the lung theory was neither supported by the evidence nor pleaded by the parties, and they were prejudiced because they could not have reasonably anticipated a judge made cause of death theory or have responded to it at trial. They submit that fairness requires a new trial.

[50] The appellants further submit that the trial judge erred in finding that there was no causal connection between the respondents’ acts or omissions and the death of Ms. Mangal. It is their position that Ms. Mangal would have been saved, had the administration of blood and blood products and the surgery taken place earlier.

[51] The respondent physicians assert that the trial judge did not have to accept either party’s cause of death theory and that the trial judge’s cause of death finding was amply supported in the evidence. In contrast, the appellants’ cause of death theory was properly rejected because it was inconsistent with the evidence.

[52] The physicians submit that the trial judge correctly found that any delay in calling an obstetrician did not cause or contribute to Ms. Mangal’s death. While a decision to perform surgery could have been made 30 minutes earlier, Ms. Mangal would have already still been in DIC. An earlier surgery decision also would not have affected the timing of the coagulation test results or the ordering of blood and blood products, nor would it have prevented Ms. Mangal’s blockage in the lung and her subsequent heart failure.

[53] William Osler also submits that the trial judge properly rejected the appellants’ cause of death theory because it was unsupported in the evidence. It asserts that the trial judge’s finding that Ms. Mangal died because of a blockage in her lung was consistent with the respondents’ theory and the evidence.

[54] With respect to causation, William Osler submits that the trial judge correctly found that the delay in returning the coagulation test results did not cause or contribute to Ms. Mangal’s death and that the blood and blood products were produced and administered in the correct proportions. Finally, William Osler takes the position that the appellants’ argument that the hospital contributed to Ms. Mangal’s death by failing to provide blood and blood products in a timely manner was not pleaded and that this court must not entertain it. Even if this were a live issue, William Osler submits that it delivered the blood and blood products to Ms. Mangal in vast quantities and in a timely manner and, therefore, the trial judge was correct not to find a breach in the standard of care in the supply and timing of blood and blood products.

ANALYSIS

(i) Legal Principles

[55] The standard test for causation in a negligence case is the “but for” test. A plaintiff must establish on a balance of probabilities that, but for the defendant’s negligent act, the injury would not have occurred: Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 28.

[56] In medical negligence cases involving alleged delays in diagnosis and treatment, the test was described by Sharpe J.A. in Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.), at para. 25, as follows:

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”.

[57] On appeal, the appellants have the onus of establishing that the trial judge’s impugned causation findings amount to palpable and overriding errors: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 19; and Ediger, at para. 29.

[58] With these legal principles in mind, I turn to a consideration of the appellants’ arguments on this appeal.

(ii) Cause of Death

[59] The appellants submit that the trial judge made a palpable and overriding error in reaching a cause of death conclusion that was not advanced by the parties at trial. In support of this submission, they rely upon Grass (Litigation Guardian of) v. Women’s College Hospital (2005), 2005 CanLII 11387 (ON CA), 75 O.R. (3d) 85 (C.A.).

[60] In Grass, the trial judge found the defendant physician liable on a theory of negligence that was not pleaded or advanced at trial. Justice Cronk held, at para. 78, that it was unfair to impose liability on a theory that was not considered at trial:

With respect, I agree. Dr. Weisberg could not reasonably have anticipated and she had no opportunity to meaningfully respond in either the evidential or final argument phases of the trial to the very foundation upon which she was ultimately found to have been negligent. Had this foundation for liability been in issue at trial, the evidence adduced by the defence, especially the expert obstetrical evidence, may well have been different. In my view, the appellant cannot be held negligent on a theory of negligence that was not developed at trial and that formed no part of the respondents’ case against her.

[61] In my view, the appellants’ reliance on Grass is misplaced. In the present appeal, the trial judge considered the theories advanced by both parties and rejected them, as he was entitled to do. He was not engaged in an either-or-exercise where he was obliged to accept one theory of liability or the other. Rather, the trial judge’s function was to determine if the appellants had met their onus of proving on a balance of probabilities that, but for the negligence of the respondents, Ms. Mangal would not have died. In so doing, it was open to the trial judge to accept some, none, or all of a witness’s evidence, including an expert witness’s evidence.

[62] The appellants’ theory was that Ms. Mangal died from an on-going post-partum haemorrhage that started between 9 a.m. and 11:30 a.m. The trial judge rejected this theory as being inconsistent with the evidence. There was ample evidence on which to base this conclusion.

[63] The trial judge accepted the evidence of Dr. Girvitz that, at 12:45 p.m., he examined Ms. Mangal to assess for abnormal bleeding and concluded that, while she had more than usual bleeding, her bleeding had stopped and her vital signs were inconsistent with haemorrhage.

[64] Dr. Girvitz testified that the results of the complete blood count drawn at 12:55 p.m. were consistent with the expected blood loss during and after the C‑section. He also gave evidence that, when he operated on Ms. Mangal, he was unable to find a specific source of the bleeding, as he would have expected had there been haemorrhaging for an extended period.

[65] Dr. Noble testified that Ms. Mangal’s high venous pressure was inconsistent with haemorrhage. He also testified that, if the appellants’ theory was correct, then there would have been some indication of DIC prior to 1:00 p.m., but there was none.

[66] The trial judge’s decision to reject the appellants’ cause of death theory is entitled to deference. It was well grounded in the evidence. The appellants simply did not adduce evidence that supported their theory that Ms. Mangal was actively bleeding for hours or that any haemorrhage went unnoticed and untreated. There is no basis for interference with this finding.

[67] Turning to the trial judge’s cause of death finding, I disagree with the appellants’ submission that the trial judge reached a conclusion that was not grounded in the evidence.

[68] The trial judge’s conclusion was based, in large measure, on the testimony of Dr. Girvitz and Dr. Bohay regarding what they had observed during the second surgery. Specifically, both doctors observed a gross distension of the inferior vena cava, high venous pressures, and low arterial pressures. They testified that the right side of her heart could not pump blood to her lungs.

[69] Dr. Girvitz believed that the heart was blocked somewhere. Dr. Noble testified that the high venous pressures were consistent with an obstruction in Ms. Mangal’s lung, and he opined that the cause of the blockage was AFE.

[70] The trial judge rejected the AFE theory because Ms. Mangal’s lungs did not contain amniotic fluid. However, he did accept that there was a blockage. The trial judge relied on the evidence of the appellants’ experts, Dr. Cassar-Demajo and Dr. Schulman, that DIC results in clotting and concluded that DIC caused the blockage.

[71] The appellants led no evidence to explain the high venous pressures nor provided any explanation as to how their theory of ongoing post-partum haemorrhage was consistent with the high venous pressures and the blockage.

[72] The trial judge’s finding was open to him and based on the evidence. This was not an instance of the trial judge creating his own cause of death theory. Rather, the trial judge drew reasonable inferences and reached conclusions based on the evidentiary record. The appellants have failed to establish that he made any palpable and overriding error in reaching his finding and, therefore, have not met their onus.

(iii) Causation

[73] The appellants submit that Ms. Mangal would have been saved, had the second surgery taken place earlier and had blood and blood products been administered sooner and in the proper proportions.

[74] With respect to the timing of the second surgery, the appellants argue that, because the trial judge found that Ms. Mangal was suffering from a progressive disorder that became more catastrophic with the passage of time, earlier treatment would have led to a more favourable outcome.

[75] With respect to the administration of blood and blood products, the appellants submit that the trial judge erred in finding that the respondents had met the standard of care in their delivery and administration of blood and blood products by supplying them as they became available. The appellants also submit that the trial judge erred in failing to find that the respondents were negligent in commencing surgery before administrating coagulation factors. Moreover, they assert that William Osler breached its standard of care by delivering the results of the 1:30 p.m. coagulation tests at 3:34 p.m.

[76] I will address each of these arguments below.

Delay in Surgery

[77] In my view, the appellants have failed to establish a palpable and overriding error in the trial judge’s conclusion that the 30-minute delay in surgery was not causally linked to Ms. Mangal’s death.

[78] This finding was based on the trial judge’s findings related to the cause of death and the overt signs of DIC, which, as explained above, were open to the trial judge to make on the evidence. Accepting the trial judge’s cause of death theory, there is no evidence that an earlier surgery would have prevented Ms. Mangal’s blockage in the lung and her subsequent heart failure.

[79] Even if the trial judge erred in his cause of death finding, the appellants still have not met their onus. It is not sufficient for the appellants to disprove the respondents’ theory or to establish a palpable and overriding error in the trial judge’s conclusion. They still must advance a theory of death that has a causal connection to the thirty-minute delay in surgery or to any other breach of the standard of care that they can establish.

[80] As discussed above, the evidence at trial was wholly inconsistent with the appellant’s cause of death theory. Therefore, even if the appellants could establish a palpable and overriding error in the trial judge’s conclusion regarding the cause of death, they have not established that the trial judge erred in rejecting their cause of death theory. In those circumstances, without the critical finding of a cause of death, it is not possible to establish a causal link between the delay in the surgery and Ms. Mangal’s death.

Administration of Blood Products

[81] The appellants additionally assert that, had coagulation products been ordered earlier, these products could have been administered during the period immediately preceding the second surgery. Thus, they submit that Ms. Mangal would have been better positioned to survive the surgery.

[82] This part of the appellants’ argument requires me to review when the doctors became aware of the need for coagulation products and when these products were administered.

[83] I agree with the trial judge’s conclusion that the delay in returning the coagulation test results did not cause or contribute to Ms. Mangal’s death.

[84] The evidence of Dr. Schulman was that blood products for coagulopathy were not to be ordered unless the doctors had available test results indicating a coagulopathy or unless there was an overt sign of a coagulopathy. While the test results did not arrive until 3:34 p.m., Ms. Mangal showed an overt clotting disorder at 2:07 p.m., when she began oozing watery blood. Dr. Dildy described this development as “the ultimate coagulation test”. Both Dr. Schulman and Dr. Noble testified that they would not have expected the test results to come back before 2:07 p.m.

[85] Based on the foregoing, it was open to the trial judge to conclude that the delay in reporting the test results was not a factor in Ms. Mangal’s death because the doctors were aware that Ms. Mangal was in DIC from their own observations at just after 2 p.m. This finding is bolstered by the appellants’ failure to lead any evidence to establish that the delay between when the doctors discovered a clotting disorder (2:07 p.m.) and when Dr. Bohay ordered blood products (2:23 p.m.) would have made a material difference in Ms. Mangal’s care.

[86] The next issue is the timing of the delivery of the blood products. The trial judge concluded that, given that the coagulation factors were ordered at 2:23 p.m., they could not have been administered until approximately 3:20 p.m. He then found that the first unit of plasma was administered at 3:40 p.m. The appellants criticize the trial judge for failing to consider the impact of this twenty-minute delay.

[87] The issue of delay in the delivery and administration of blood and blood products requires me to consider the conduct of both the physicians and the hospital.

[88] With respect to the potential negligence of the physicians in this regard, Dr. Dildy claimed that the doctors could control the maximum turnaround time for the blood products and opined that the products should have been immediately available. However, Dr. Dildy’s opinion was based on his experience with thawed blood products in the United States. At the time, William Osler only carried frozen plasma and cryoprecipitate, and delivery was therefore delayed to permit thawing. Dr. Bohay ordered the blood products “STAT” (i.e. immediately) and I agree with the submission of the respondent physicians that it is not their obligation to retrieve blood bank.

[89] The appellants’ argument also ignores the dynamics of what was happening at the time of the second surgery. I agree with the trial judge’s statement that the “second surgery should not be reported as a simple sterile set of sentences”: at para. 233. The fact was that Ms. Mangal had to be returned to surgery as soon as possible. Indeed, the appellants are critical of the respondent physicians for not returning her to surgery more quickly. When the decision was made to return to the operating room, there were no coagulation products available. In these circumstances, I am not satisfied that the trial judge made a palpable and overriding error in finding that the physicians met the standard of care when they administered blood and blood products as they become available.

[90] In oral argument, there was a dispute over whether the issue of the hospital’s negligence in preparing and delivering blood and blood products was part of the lis between the parties. Having reviewed the record, I am satisfied that the hospital’s negligence in administering blood and blood products was not pleaded. The appellants also did not raise the hospital’s negligence in this regard in their opening and closing submissions.

[91] In a few exchanges at trial, the appellants’ experts suggested that the hospital might be liable in its handling of the blood and blood products, and tests. However, these issues were not – and could not be – effectively addressed at trial, because no testimony concerning the hospital’s standard of care or evidence concerning the hospital’s policies and protocols were adduced. In the absence of this evidence, it is not clear to me how the trial judge reached his conclusion that the blood products should have been available twenty minutes earlier.

[92] In my view, because the hospital’s liability with respect to the blood and blood products and tests was not and could not have been fully addressed at trial, it is not possible to address this issue on appeal. We simply do not have a proper evidentiary base on which to assess whether William Osler met the standard of care. However, even accepting for the moment that the trial judge was correct in finding that there was a twenty-minute delay which fell below the standard of care, the appellants have not established that such a delay had a material impact on Ms. Mangal’s chances of survival.

[93] Finally, the appellants submit that the trial judge erred in finding that the blood and blood products were administered in the correct proportions. They submit that more plasma was required because Ms. Mangal was coagulopathic and that the trial judge erred in failing to recognize that blood alone should not have been given to Ms. Mangal without the accompanying coagulation factors.

[94] The appellants rely upon the presumed timing of product administration since the actual times of administration are not recorded. However, when the records of the blood bank are considered, they support the trial judge’s conclusion that the blood and blood products were produced in the correct ratio. In any event, even if the proportions in which blood and blood products were administered were incorrect, the respondent physicians administered the blood and blood products as soon as William Osler made them available so I can find no fault with the conduct. With respect to William Osler, given the absence of evidence at trial on the standard of care for hospitals regarding the preparation and administration of blood and blood products, I am not prepared to make a finding of liability against the hospital here.

[95] In summary, the appellants have not established that the trial judge erred in concluding that there was no causal link between the conduct of the respondents and the death of Ms. Mangal.

(iv) Cross-Appeal

[96] The respondent physicians submit that the trial judge’s finding that Dr. Bohay breached the standard of care because he did not ensure an obstetrician was called at 1:13 p.m. should be set aside.

[97] The trial judge accepted the evidence of Dr. Cowal that if “Dr. Bohay was concerned that Ms. Mangal’s condition had changed between the time he saw her at 12:30 p.m. and the time he saw her at 1:13 p.m., then he should have communicated directly or, through the nurse, with Dr. Chandran and Dr. Girvitz”. He went on to find that “Dr. Bohay should have prioritized contacting Doctor Chandran and Dr. Girvitz because one of them had to decide to return to the operating room. Alternatively, Dr. Bohay could have personally contacted one or the other of them”: at para. 189.

[98] The trial judge concluded that the delay in contacting Dr. Chandran or Dr. Girvitz constituted a breach by Dr. Bohay of the standard of care expected of a reasonable and prudent anaesthesiologist.

[99] The respondent physicians’ position is that because Dr. Bohay ordered Nurse Smout to page Dr. Chandran, his conduct was consistent with Dr. Cowal’s opinion. In light of this, they submit that, because no expert was critical of Dr. Bohay’s conduct, there cannot be a finding that Dr. Bohay breached the standard of care: Samuel v. Ho, [2009] O.J. No. 172 (S.C.).

[100] In my view, the respondent physicians are taking an overly narrow approach to Dr. Cowal’s evidence. Clearly, she was giving evidence to the effect that, in circumstances where Ms. Mangal’s condition was deteriorating, it was important that Dr. Chandran or Dr. Girvitz be contacted on a priority basis. One of the options suggested by Dr. Cowal was that a nurse contact Dr. Chandran. Implicit in that opinion was that the nurse make the contact on a priority basis.

[101] The trial judge found that Dr. Bohay should have prioritized the order to call Dr. Chandran or Dr. Girvitz and failed to do so. It was open to the trial judge to make this finding and, on the evidence of Dr. Cowal, it was open to him to find that Dr. Bohay’s conduct fell below the standard of care. There is no basis for interfering with this finding.

DISPOSITION

[102] I would dismiss the appeal and the cross-appeal.

[103] If the parties cannot agree on costs, they may make written submissions. The submissions of the respondents are due within 15 days of the date of these reasons. The appellants’ submissions are due within 15 days of the receipt of the respondents’ submissions. Any reply submissions are due within seven days of the receipt of the responding submissions.

“William Hourigan J.A.”

“I agree J.C. MacPherson J.A.”

Feldman J.A. (dissenting):

[104] I have had the benefit of reading the reasons of Hourigan J.A., but I do not agree with his conclusion that the appeal should be dismissed. In my view, the appeal must be allowed for two reasons and a new trial ordered.

[105] First, the trial judge made a palpable and overriding error and misapprehended the evidence in determining Ms. Mangal’s cause of death. The trial judge’s conclusion that Ms. Mangal died from a blood clot caused by disseminated intravascular coagulation (DIC), which caused a blockage in the lung, was not supported by the evidence.

[106] Second, the trial judge committed the error of law described in Grass (Litigation Guardian of) v. Women’s College Hospital (2005), 2005 CanLII 11387 (ON CA), 75 O.R. (3d) 85 (C.A.) by finding a cause of death that was not put forward by either the appellants or the respondents or by the witnesses at trial.

[107] Because of those errors, the trial judge effectively found that Ms. Mangal’s death in a large, reputable hospital, following the delivery of her baby by a routine caesarean section, was inevitable. He concluded that nothing could have been done by any of the respondents to either diagnose or treat her post-partum bleeding in a timely way that would likely have saved her life.

[108] The trial judge recognized the central importance of determining Ms. Mangal’s cause of death. He stated, correctly in my view, that “[a]ssessing whether it is more likely than not that failing to decide to operate at 1:30 p.m. contributed to Ms. Mangal’s death leads to consideration of the cause of death.” The effect of finding the wrong cause of death was to undermine the trial judge’s analysis of the standard of care and causation issues. As a result, a new trial must be ordered.

[109] As my colleague has described the background, some of the relevant evidence and the issues, I propose to go directly to those issues.

(1) Cause of Death

[110] The trial judge committed a palpable and overriding error in concluding that Ms. Mangal died from a blockage in her lung caused by DIC.

(a) The parties’ theories at trial

[111] The autopsy of Ms. Mangal stated that she died of heart failure and complications from postpartum haemorrhage (PPH). The appellants’ position throughout the action was that the respondents were negligent in failing to recognize and treat Ms. Mangal’s PPH in a timely manner. The haemorrhage became severe and she developed DIC as a result. She bled uncontrollably during her surgery, which caused her heart to fail.

[112] DIC is a blood clotting disorder. As described by Dr. Schulman, an expert haematologist called by the appellants:

DIC starts with blood clots being formed, but the typical thing is that when you have consumed all of the components in the blood clotting system, and there is not enough there anymore to form blood clots, you start bleeding.

[113] The respondent physicians accepted that Ms. Mangal had PPH by the second surgery and that she died of heart failure and complications from PPH. Their position was that she had a rare condition called Amniotic Fluid Embolism, which caused the DIC and caused death when the embolism lodged in the lung, causing a blockage of blood flow to the heart. That position was supported only by the testimony of the respondents’ expert, Dr. Noble. His evidence on this issue was summarized by the trial judge:

… Dr. Noble was suggesting that amniotic fluid became lodged in Ms. Mangal’s lungs and caused the blockage which prevented blood from the right side of her heart reaching the left side of her heart. Dr. Noble further concluded that the amniotic fluid blockage led to Disseminated Intravascular Coagulation (DIC) and, therefore, continuous blood loss which could not be stopped.

(b) The trial judge rejected the respondents’ theory

[114] The trial judge rejected Dr. Noble’s opinion and rejected the submission that Ms. Mangal had amniotic fluid embolism that caused a blockage in her lung.

[115] The diagnosis of an amniotic fluid embolism was first suggested by the coroner who performed the autopsy on Ms. Mangal, Dr. Alexander. He had identified within the lung tissue “microscopic foci of immature squams”. He explained that the immature squams come from amniotic fluid or the fetus, and are not normally found in the lungs of the mother. It was the presence of the squams in the lungs that he believed suggested an amniotic fluid embolism.

[116] However, Dr. Toby Rose, the Deputy Chief Forensic Pathologist at the Ontario Forensic Pathology Service, testified that immature squams are not diagnostic of amniotic fluid embolism. Dr. Dildy agreed that the presence of fetal tissue in the lungs does not determine a diagnosis of amniotic fluid embolism. Dr. Rose concluded, after reviewing the autopsy including all of the slides originally examined, that there was no evidence of amniotic fluid embolism. Dr. Michael Shkrum, the coroner who investigated Ms. Mangal’s sudden death, also rejected the amniotic fluid embolism theory because microscopic sections of Ms. Mangal’s lungs did not contain amniotic content.

[117] Dr. Dildy, accepted by the trial judge as a “leading authority on amniotic fluid embolism” and who is the physician who maintains the Registry for Amniotic Fluid Embolism in the United States, explained why Ms. Mangal’s history in hospital made it clear that her DIC was not caused by amniotic fluid embolism in the following response:

Well a typical case of amniotic fluid embolism, the woman’s in labour or maybe she’s just delivered within five, ten, fifteen minutes or so, all of a sudden she goes from being perfectly normal with nothing else going on, she’s not bleeding, she’s not having any problems, she’s totally just fine, all of a sudden, profound hypotension, low blood pressure, profound change in mental status, maybe seizures, loss of consciousness, cardiac arrest, all that occurs just suddenly, like a lightning bolt, and somebody who’s just previously doing well. And then the DIC, the coagulopathy follows, lags a little bit, sometimes it’s fifteen, thirty minutes, but it’s sort of, a second phase and the coagulopathy kicks in fifteen, thirty minutes later and then you go through all the problems of trying to resuscitate the patient, and any, any person that’s had a cardiac arrest in a hospital has a poor chance of walking out alive. […] But amniotic fluid embolism, unfortunately, becomes, kind of like, a waste basket diagnosis for people who die giving birth with a thought that it’s believed to be unpreventable, unpredictable, and untreatable. And, unfortunately, it’s, it’s misused. This case here looks nothing like an amniotic fluid embolism, this woman did not get into trouble till hours after her delivery.

[118] The trial judge accepted Dr. Dildy’s evidence and opinion that Ms. Mangal’s case would not be accepted into the Amniotic Fluid Embolism Registry in the United States or the one maintained in the United Kingdom, and that this was not a case of amniotic fluid embolism, due to the delay in the onset of the symptoms and because there were other causes of Ms. Mangal’s death.

(c) The trial judge’s cause of death theory was not supported by the evidence

[119] Despite rejecting the amniotic fluid embolism theory, the trial judge nevertheless concluded that Ms. Mangal died from a blockage in her lung – a blockage caused by something other than amniotic fluid embolism:

…I am not prepared to find that amniotic fluid caused the blockage observed by Dr. Girvitz and the other surgeons. I do accept, however, that there was a blockage in Ms. Mangal’s lungs which prevented blood from flowing to the left side of the heart. [Emphasis added.]

[120] It was this conclusion by the trial judge that there was a blockage other than amniotic fluid embolism that prevented blood from flowing to the left side of the heart, which constituted a palpable and overriding error of fact, as it was based on a misapprehension of the evidence. The trial judge’s conclusion was based on three misunderstandings of the evidence. First, there was no evidence for his conclusion that the cause of death was a blockage. Second, he found that after Ms. Mangal developed DIC, blood clots travelled to her lung and caused a blockage, which ignored the fact that no blood clots were found on her autopsy. Third, he wrongly believed that Ms. Mangal’s DIC was a death sentence; the evidence in fact indicated that DIC can be cured in many cases.

[121] It also constituted a Grass error, because it led the trial judge to find a cause of death that was not the position of any party, was not the opinion of any of the experts, and was based on pieces of evidence that were not explored with witnesses in cross-examination in order to test their applicability to the blockage theory that the trial judge adopted.

There was no evidence that a blockage caused Ms. Mangal’s death

[122] The trial judge relied on the testimony of Dr. Girvitz and the notes of two surgeons to conclude that there was a physical “blockage” in the lung that prevented the flow of blood from the right side of the heart to the left side. He understood their testimony to have been that they observed a blockage. However, none of the three said they observed a blockage.

[123] Dr. Girvitz did not see a blockage. He saw the patient’s inferior vena cava “grossly distended and backed up.” He described it as “obstructed at the level of the right heart” and he concluded there was nothing they were going to be able to do for her then. He was asked why and he answered:

There were such hugely high venous pressures to distend out the inferior vena cava that her heart was blocked somewhere. It was no longer able to pump into the pulmonary vasculature, into the pulmonary artery. So at some place beyond there was an obstruction and there is no treatment to be able for me or anybody else to relieve that obstruction. Even if you took her heart out and put a new one in it wouldn’t help.

Although he described the effect of the back-up of blood in the vein and the high pressure there in terms of her heart being “blocked somewhere”, Dr. Girvitz did not see any physical blockage. Nor was he cross-examined on what he meant by the terms he used. I will discuss the significance of this as part of the Grass error.

[124] The other two surgeons’ notes also remarked on the high venous pressure, but did not make reference to any blockage. They did not testify at the trial.

[125] At trial, the only theory that relied on a blockage to explain Ms. Mangal’s heart failure was the respondents’ amniotic fluid embolism theory. This theory was rightly rejected by the trial judge. The trial judge erred when he nonetheless concluded that Ms. Mangal’s death was caused by some other kind of blockage. Because he believed he had to find another cause for a blockage in order to explain Ms. Mangal’s heart failure, the trial judge failed to consider the other explanation for the heart failure: the evidence that, because the patient was bleeding all over her body, she suffered severe blood loss. When the heart does not have enough blood to pump, it begins to fail and is unable to pump the blood that there is, which causes the back-up in the vena cava and eventually, heart failure and death. This was explained in part by Dr. Bohay and in part by Dr. Cassar-Demajo, an expert haematologist called by the appellants.[^1]

There was no evidence that a blood clot caused any blockage

[126] After finding that there was a blockage, the trial judge concluded that he had to find a cause of death that accounted for it. As a result, the trial judge rejected the opinions of Drs. Schulman and Dildy, the appellants’ expert witnesses, as well as the opinion of Dr. Shkrum, the coroner who investigated the patient’s sudden death, with whom Dr. Toby Rose agreed, who all described the cause of death similarly as: PPH, cardiac arrest due to PPH, and complications of PPH and hysterectomy, respectively. The trial judge stated:

I do not accept these opinions concerning the cause of death because the opinions, having regard to the totality of the evidence, do not explain the blockage which was observed by Dr. Girvitz and other surgeons while they were operating on Ms. Mangal.

When I consider the evidence, I am satisfied that Ms. Mangal died because her heart stopped beating. Her heart stopped beating because there was insufficient blood available to circulate within her body. I am satisfied that there was insufficient blood available to circulate within her body because there was a blockage which impaired the flow of blood from the right side of her heart to the left side of her heart. In my view, this conclusion explains the observations made, not only by Dr. Girvitz but by two other doctors, who voluntarily participated in the emergency surgery to try to stop Ms. Mangal’s bleeding and who made actual observations of Ms. Mangal.

[127] In searching for the cause of this blockage, the trial judge postulated that the blockage was a blood clot that formed as a result of DIC:

…the clotting disorder known as DIC results in the body attempting to clot blood inside blood vessels. Small clots are formed and transported with the patient’s blood until they are caught in different organs. The lack of oxygen produces symptoms such as decreased consciousness, bluish skin coloration and decreasing organ function. Clots form everywhere and eventually the body runs out of clotting factors and uncontrolled bleeding at the surgery site and elsewhere occurs. Dr. Schulman testified that, when you bleed severely in postpartum haemorrhage, it can develop into DIC. Accordingly, the question becomes whether it is more likely than not that the excessive clotting could have been prevented if the decision to operate had been made at 1:30 p.m.?

[128] The trial judge then found that the patient was in DIC at 2:07 p.m., so that surgery after that time would have been too late to save her from the effect of the clotting. Therefore, even if the decision to operate had been made at 1:30 p.m., as the trial judge found it should have been, Ms. Mangal would not have been in surgery by 2:07 p.m. As a result, he concluded that the failure to decide to operate at 1:30 p.m. did not cause her death.

[129] There are two problems with this analysis. The first is that there was no evidence of any blood clot causing a blockage that stopped the flow of blood to the heart. There was no finding on autopsy of any blockage at all or of any blood clots in the lungs or leading to the heart.[^2] Nor did any expert suggest that blood clots from the DIC could have that effect. The only suggestion that blood clots in DIC will travel and lodge around the body came in a brief description of the effects of DIC by Dr. Schulman in cross-examination:

Q. …the first stage of DIC is to actually hyper-active clotting. Right?

A. You’re right.

Q. And then what happens is, doesn’t it cede into the surrounding tissue and cause some microvascular damage?

A. So, these small clots, they’re caught, they are created in the circulation. That’s why it’s called intravascular and then they are caught into different organs and they block the delivery of oxygen so you see a decreasing organ function. You can see either decreasing output of urine. You can see decreasing consciousness of the patient. You can see bluish skin colouration. You can see heart arrhythmias. Yes.

[130] What he did not say was that the clots can get lodged in the lungs or heart as a blockage to the flow of blood. Nor did anyone suggest this to him in questioning.

DIC is not a death sentence

[131] The second problem with the trial judge’s conclusion that once Ms. Mangal was in DIC, it was too late to save her, is that this conclusion was contrary to the evidence. In approaching the issue of causation, the trial judge determined that the critical matter was the timing of the surgery. He found that, even if the respondents made the decision to operate at 1:30 pm, as they should have, Ms. Mangal would not have survived, because the surgery would have begun at around 2:40 p.m., and Ms. Mangal was already in DIC by 2:07 p.m.

[132] The evidence was that DIC is not a death sentence, and that with timely intervention, most patients survive. The appellants’ expert, Dr. Schulman, discussed a peer-reviewed study where, in 32 cases of obstetric DIC, all 32 subjects survived. The respondent physicians’ expert, Dr. Noble, was clear that DIC (without amniotic fluid embolism) is treatable and survivable:

…give me DIC and hypovolemia every day. Because that I can do something about. Just fill the tank everything goes back. With amniotic fluid embolus DIC, the problem it isn’t just the DIC. It is all the other problems that it is creating in that circulation in the lungs, in the heart. And that is, in most cases…not survivable.

[133] The trial judge should not have concluded that once Ms. Mangal was in DIC, nothing could be done to save her. The evidence was that giving blood transfusions cures DIC in most cases, unless there is also amniotic fluid embolism – which there was not.

Conclusion on cause of death error

[134] My colleague suggests that even if the trial judge erred in his conclusion regarding the cause of death, no new trial should be ordered because the appellants failed to meet their onus of proof. I do not agree. As discussed in paragraph 125, the appellants’ position on the cause of death was supported by expert evidence. It was also the written conclusion of most of the physicians involved in Ms. Mangal’s treatment. Because the trial judge looked for a cause of blockage, he did not consider the appellants’ evidence for the cause of death, as he otherwise would have, to determine whether they met their onus of proof.

[135] I conclude that the trial judge made a palpable and overriding error in determining the cause of death. He misapprehended the evidence of the mechanism that caused the patient’s heart to fail, as well as the effect of DIC. As a result, his assessment of whether an earlier decision to go to surgery was more likely than not to have contributed to Ms. Mangal’s death was necessarily flawed. On that basis, a new trial is required.

(2) The Grass Error

[136] In Grass, this court found that it was an error in law for a trial judge in a medical malpractice action to find a physician negligent based on a theory that was not advanced against her. In so holding, Cronk J.A. stated at para. 78:

Dr. Waisberg could not reasonably have anticipated and she had no opportunity to reasonably respond in either the evidential or final argument phases of the trial to the very foundation upon which she was ultimately found to have been negligent. Had this foundation for liability been in issue at trial, the evidence adduced by the defence, especially the expert obstetrical evidence, may well have been different. In my view, the appellant cannot be held negligent on a theory of negligence that was not developed at trial and formed no part of the respondents’ case against her.

[137] The same principle applies to the issue of causation. Where the appellants do not have the opportunity, either in testing the evidence, or in final argument, to address the causation analysis ultimately relied on by the trial judge because it was not an analysis put forward by them, by the respondents or by the witnesses, a new trial must be ordered.

[138] In this case, there were a number of aspects of the evidence that the trial judge focused on that were not the subject of examination by the appellants. One was the suggestion of a “blockage” in the lung, other than amniotic fluid embolism, that would cause the back-up of blood in the vena cava. Dr. Girvitz postulated but did not see such a blockage, and it was not followed up by the appellants as a cause of death. Another was Dr. Schulman’s evidence regarding the proliferation of small blood clots in DIC to all parts of the body. Again, counsel did not clarify this phenomenon in terms of whether these blood clots could cause a blockage of blood to the heart and whether they did in this case. In any event, the post-mortem evidence showed no blood clots and no blockage.

[139] My colleague dismisses the Grass problem by saying that the trial judge was entitled to reject both parties’ theories of causation. That is true, but only if he does so based on the evidence: Barker v. Montfort Hospital, 2007 ONCA 282, 278 D.L.R. (4th) 215, at paras. 35-41. Further, if the trial judge makes findings based on a theory not put forward by the parties, it must be a theory which was explored in evidence with the witnesses so that the parties had an opportunity to address it and show why and how they refuted it.

(3) Conclusion

[140] I would set aside the judgment in this case and order a new trial. As all of the respondents were involved at one stage or another in the treatment of the patient, including the provision and administration of blood products, I would order that the new trial proceed against all of them, to give the trial judge the full opportunity to assess who, if anyone, bears responsibility for the death of Ms. Mangal. I would grant the costs of the appeal to the appellants to be fixed based on the agreement of the parties or failing agreement, submissions to be made in writing to the court.

Released: September 17, 2014 “KF” “K. Feldman J.A.”

[^1]: Dr. Bohay testified: “If the heart, the right side of the heart which [receives] the venous blood, if it is unable to pump the blood through the pulmonary circulation to the left side of the heart to be pumped out to the body, the pressure builds up. And so, so in, in this instance the high central venous pressures resulting in the back bleeding, also meant that the heart wasn’t able to pump the blood that was returned to it through the pulmonary circulation to the left side of the heart and then back out through the body.” Dr. Cassar-Demajo stated that “if you don’t have enough blood [to] circulate the heart will stop.”

[^2]: In the autopsy report, Dr. Alexander noted “moderate acute vascular congestion” in the lungs, which he explained as “blood vessels…congested with blood.” However, he did not mention blood clots. His conclusion for the cause of death was amniotic fluid embolism.