Court of Appeal for Ontario

Date: 2004-06-03 Docket: C39224

Re: Fada Mohammad Alakoozi, Sayerha Alakoozi, both personally and as Executors of the Estate of the Plaintiff, Basir Alakoozi, Deceased, and on behalf of Nazira Alakoozi and Nadia Alakoozi, both Minors, Shah Mohammad Alakoozi, Nasir Ahmad Alakoozi, Saberal Alakoozi, Fazel Ahmad Alakoozi, Shamsi Alakoozi and Bibi Hajirah Alakoozi (Appellants/Plaintiffs) And: The Hospital for Sick Children, Dr. William S. Crysdale and Dr. Gregg Lapp, Dr. M. Abdullah, Dr. S. Burdock, Dr. B. Dodgson Roze, Dr. I.A. Sloan, Jane Doe and John Doe (Respondents/Defendants)

Before: Labrosse, Goudge and MacPherson JJ.A.

Counsel: Joseph Markin, for the appellants Brian T. Butler and Cynthia B. Kuehl, for the respondents Dr. William S. Crysdale and Dr. Gregg Lapp

Heard: June 1, 2004 Released Orally: June 1, 2004

On appeal from the judgment of Justice Jean L. MacFarland of the Superior Court of Justice, sitting without a jury, dated October 31, 2002.

Endorsement

[1] The appellants appeal the judgment of MacFarland J. dismissing their action brought against the respondent doctors, in which the plaintiffs sought damages arising from the death of Basir Alakoozi, born on July 3, 1986.

[2] From birth, Basir was plagued by numerous congenital health problems, including Eisenmenger's Syndrome, diabetes, Down's Syndrome and albinism.

[3] Following a tonsillectomy and further surgery to repair two post-operative tonsillar bleeds, Basir was discharged from hospital. He died the following day, at home, of a heart attack.

[4] The conclusion of the trial judge that, given the complicated nature of the medical evidence, this was not an exceptional case where she could find negligence in the absence of expert opinion is amply supported by the evidence.

[5] The trial judge found that the plaintiffs' only expert, Dr. Barr, a pediatric haematologist, lacked sufficient expertise to give an opinion on the standard of care of an otolaryngologist. She also found that his opinion was affected by a number of frailties in certain aspects of his evidence. The trial judge preferred the evidence of Dr. MacRae, the defence paediatric otolaryngologist, in determining the issue of the standard of care of an otolaryngologist. It was Dr. MacRae's opinion that the decision to transfuse or not was a judgment call and that the decision of the defendants not to transfuse was reasonable in the circumstances.

[6] The trial judge also properly dealt with the evidence of Dr. Rosenberg, Dr. Wilson and Dr. Egger.

[7] In our view, the trial judge considered and weighed the evidence before her, made well-reasoned findings of fact and there is no basis on which to interfere with her decision. In dismissing the appeal, we should not be taken as agreeing with the trial judge that where there are competing professional views about standard of care, the court lacks jurisdiction to choose between them.

[8] The appeal must therefore be dismissed. In light of the trial judge's provision that the action was dismissed with costs, if demanded, and the substantial amount granted after costs were demanded, we make no order as to costs of the appeal.

Signed: "J.-M. Labrosse J.A." "S.T. Goudge J.A." "J.C. MacPherson J.A."