ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
FATHALIA SHALOUF and FARAG SHALOUF, an infant by his Litigation Guardian FATHALA SHALOUF
Kibondo M. Kilongozi, for the Appellants
Appellants (Plaintiffs)
- and -
DR. PHILLIP R. BEAUDRY, DR. PIERRE BÉDARD, DR. WILBERT J. KEON and DR WILLIAM G. WILLIAMS
Marc J. Somerville Q.C., for the Respondents
Respondents (Defendants)
HEARD: June 13, 2006 at Ottawa
1This is an appeal of the order of Master Beaudoin dated March 10, 2006, wherein he granted the motion for summary judgment brought by the respondents and dismissed the appellants’ action for medical malpractice. He did so after concluding that the plaintiffs had failed to provide evidence on the key issue of causation, in that they offered no evidence that the tragic outcome of the death of Nagah Elahsadi would have been avoided had the defendants not been negligent.
2Briefly stated, Ms. Elahsadi was the wife of the plaintiff Fathalia Shalouf, and the mother of the minor plaintiff Farag Shalouf. She was diagnosed in 1997 with an inflammatory condition of the aorta known as Takayasu’s Aortitis. She first saw the defendant Dr. Beaudry on July 13, 1999, and a series of tests and echocardiograms were performed in the following months. On October 8, 1999 she was admitted for emergency surgery following a rupture in her aortic valve. Her condition improved temporarily, but on November 20, 1999 she was readmitted on an emergency basis. An echocardiogram revealed continued bleeding at the site of the previous surgery.
3The defendant Dr. Bédard was on call on November 20, and declined surgical intervention because, in his opinion, Ms. Elahsadi’s condition was beyond repair. The defendant Dr. Keon similarly declined surgical intervention for the same reasons. At the insistence of the plaintiff Mr. Shalouf, surgery was ultimately scheduled for December 6, 1999, but Ms. Elahsadi died shortly before that surgery could be performed.
4It is the plaintiffs’ case that the deceased died as a result of the negligence of her various attending physicians, in failing to intervene surgically on a timely basis.
5In order to succeed against any of the defendants, the plaintiffs must prove, on a balance of probabilities, two things: first, that the physician was negligent, in that he failed to provide treatment in accordance with the accepted standards of care; and second, that his negligence caused or contributed to the unfavourable outcome that is the subject matter of the lawsuit, which in this case is the death of Ms. Elahsadi: ter Neuzen v. Korn, [1995] S.C.R. 674; Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.).
6The motion for summary judgment was brought pursuant to Rule 20.04(2)(a), which gives the court discretion to dismiss the action if the court is satisfied that there is no genuine issue for trial with respect to the claim. A master has jurisdiction to hear such a motion pursuant to Rule 37.02(2). In considering whether there is a genuine issue for trial, the Master correctly noted that the plaintiffs could not rely on the allegations in the pleadings, but rather had a positive responsibility to produce evidence in support of their claim: Transamerica Occidental Life Insurance Co. v. Toronto-Dominion Bank (1999), 44 O.R. (3d) 97 (C.A.). The rule contemplates that a complete evidentiary record will be put before the motions court judge, and that the parties must put their “best foot forward” at that time: Rogers Cable TV Ltd. v. 373031 Ontario Ltd. (1994), 22 O.R. (3d) 25 (Gen. Div.).
7The defendants filed two expert reports in support of their motion. One was from Dr. David Latter, an eminently qualified expert in cardiovascular surgery, dated December 16, 2005. It was his opinion that any operation after November 20, 1999 had “little chance of success” and that Ms. Elahsadi’s chance of surviving the post-operative phase was “extremely small”. He concluded that “even if Dr. Keon had operated on Ms. Elahsadi prior to December 6, 1999, she would not have survived”.
8The other report was from Dr. Hugh Scully, who is also a senior cardiovascular surgeon, and is dated December 12, 2005. He concluded that the actions of the attending physicians met the standard of care expected of them. On the causation issue, his opinion was that emergency surgery on November 20, 1999 or at any subsequent stage would not have been successful.
9The Master also considered three reports filed by the plaintiffs. The first is dated September 27, 2005, and is from Dr. Idris Ali, who is an Associate Professor of Surgery at Dalhousie University. It was his opinion that when the patient presented the second time with the leak of blood, “correction should have been offered”. He provided a second report dated November 2, 2005. In his opinion, when the patient re-attended with a leaking aorta, standard treatment and management required immediate surgery. The Master interpreted this to be evidence that the standard of care had been breached. On the causation issue, however, the Master correctly noted that “Dr. Ali offers no opinion that the tragic outcome would have been avoided if the subsequent surgery had been performed any earlier”.
10The third and final report relied upon by the plaintiffs was authored by Dr. Wadea Tarhuni, a cardiologist and the Director of the Moose Jaw Cardiac Centre, dated December 20, 2005. He was critical of the delay in performing the October 1999 surgery, as well as the failure to intervene surgically on November 20, 1999 when the patient presented with a blood leak at the site of the previous operation. Once again, this constitutes evidence of negligence. The Master noted, however, that Dr. Tarhuni “does not provide any opinion as to whether or not the outcome would have been any different; namely whether or not earlier surgeries would have saved Ms. Elahsadi’s life”.
11The Master went on to arrive at the following decision on the motion, at para. 35:
Since the Plaintiffs offer no expert evidence on the issue of causation, I conclude that there is no triable issue and I am obliged to give judgment in favour of the Defendants and dismiss the action against them in its entirety.
12I do not agree that the Plaintiffs offered no expert evidence on the issue of causation. Dr. Tarhuni, in para. 4 of his report, did state the following:
In conclusion there was a significant breach of the “standards of care, i.e., medical negligence” that eventually led to the unfortunate final fatal outcome in this patient. This breach lies mainly in depriving the patient from her only chance to live “i.e., surgical intervention in a timely fashion”…
13While this opinion does not state that the patient would probably have lived had timely surgical intervention taken place, it does state that the failure to do so deprived her of a “chance to live”. This is some evidence of causation.
14In a similar vein, the report of Dr. Latter also indicates that there was at least an “extremely small” chance of surviving a second operation. While it is his opinion that surgery on or after November 20, 1999 had “little chance of success”, it follows that it must have had at least some chance of success, however small.
15Taking the plaintiffs expert reports at their highest, therefore, they provide some evidence that Ms. Elahsadi lost a chance at living due to the negligence of the defendants. The difficulty for the plaintiffs, however, is that loss of a chance has been rejected as a basis for liability in tort in Canada: Lawson v. Laferrière (1991), 78 D.L.R. (4th) 609 (S.C.C.). The Supreme Court of Canada, in Athey v. Leonati (1996), 140 D.L.R. (4th) 235 at 242 (S.C.C.), made it clear that in assessing damages, a court may consider what will happen in the future or what would have happened in the future if something had not happened in the past, and may make adjustments in the award of damages to reflect the chance of those events occurring. However, in considering past events, such as whether negligent conduct was or was not the cause of the injury, liability must be proven on a balance of probabilities.
16The Ontario Court of Appeal, in Cottrelle v. Gerrard (supra at p. 746), provides a helpful summary of the standard of proof that must be met by a plaintiff in a medical malpractice action in establishing causation. Speaking for the court, Sharpe J.A. says the following:
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".
17That passage is directly applicable to the case at bar, which is also a case of allegedly delayed medical treatment. The claim must fail unless the plaintiffs can prove, on a balance of probabilities, that the death of Ms. Elahsadi would have been avoided with prompt surgical intervention.
18The evidence filed by the plaintiffs fails to show anything more than a chance that the death of Ms. Elahsadi would have been avoided had surgery been undertaken upon her readmission on November 20, 1999. This falls far short of proof on a balance of probabilities. The only evidence directly on this point indicates that her death would probably have occurred anyway, with or without surgery.
19As a result, no triable issue has been raised concerning this crucial element of the plaintiffs’ case. A trial is not warranted because, on the evidence filed, the plaintiffs cannot prove causation.
20I conclude that the Master was correct in his decision to grant summary judgment and dismiss the claim. The appeal is, therefore, dismissed.
21With respect to costs, this is a tragic case. Aside from the emotional burden that the plaintiffs have had to bear, Mr. Shalouf has been under considerable economic strain as well. This is reflected in the fact that Mr. Kilongozi has, quite honourably, acted on this appeal on a pro bono basis. Bearing all of this in mind, costs of the appeal are awarded to the Respondents fixed at $4,000 all inclusive, if demanded.
Mr. Justice T. A. Heeney
RELEASED: June 13, 2006
COURT FILE NO.: 06-DV-001203
DATE: 2006-06-13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
FATHALIA SHALOUF and FARAG SHALOUF, an infant by his Litigation Guardian FATHALA SHALOUF
Appellants (Plaintiffs)
22and –
DR. PHILLIP R. BEAUDRY, DR. PIERRE BÉDARD, DR. WILBERT J. KEON and DR. WILLIAM G. WILLIAMS
Respondents
REASONS FOR JUDGMENT ON AN APPEAL
T. A. Heeney J.
Released: 2006-06-13