Court of Appeal for Ontario

CITATION: Smith v. Liwanpo, 2008 ONCA 551

DATE: 20080710

DOCKET: C47145

BEFORE: WINKLER C.J.O., FELDMAN J.A. and LAX J. (ad hoc)

BETWEEN:

LARRY DOUGLAS SMITH and DIANE SMITH

Plaintiffs/Respondents

and

DR. PAUL T.F. LIWANPO, DR. A. SOHLA, DR. SIULIO MUSCEDERE, DR. J. CROSBY AND TILLSONBURG DISTRICT MEMORIAL HOSPITAL

Defendant/Appellant

COUNSEL:

Kirk F. Stevens for the defendant/appellant

André I.G. Michael and Jill S. McCartney for the plaintiffs/respondents

Heard and released orally: June 19, 2008

On appeal from the judgment of Justice J.N. Morissette of the Superior Court of Justice dated April 23, 2007.

ENDORSEMENT

[1] Following a nine day trial, the trial judge determined that the defendant physician did not meet a reasonable standard of care and caused the plaintiff’s significant injuries. This appeal is concerned solely with liability; the award of damages is not contested.

[2] The reasons of the trial judge demonstrate a comprehensive review of the evidence. She was confronted with competing expert medical opinions on standard of care and causation. She accepted the expert opinion evidence of the plaintiff’s witnesses on both issues and explained why.

[3] These witnesses opined that the clinical presentation of the plaintiff with severe abdominal pain four days after a colonoscopy procedure, together with an abnormally low haemoglobin level despite no evidence of external blood loss, was “virtually diagnostic of intra-abdominal haemorrhage”. This required the surgeon to order a CT scan that afternoon to determine the cause of the blood loss. The trial judge rejected the defence evidence that the drop in haemoglobin was due to dehydration/re-hydration. It was open to her to do so.

[4] The trial judge concluded that the physician failed to consider the possibility of intra-abdominal bleeding which resulted in her failure to order a CT scan urgently and this fell below the standard of care. There was abundant evidence to support this finding.

[5] There was no direct evidence that a CT scan ordered on July 8, the day of the assessment, would not have been performed on that day. The trial judge drew the inference that this would have occurred. The inference was not speculative and was available on the evidence.

[6] The appellant challenges the trial judge’s finding on causation and submits that she misapprehended parts of the evidence including the evidence of Dr. Duff on which she relied. We do not agree. On a fair reading of her reasons, she was fully conversant with the evidence on causation and there was evidence to support her findings.

[7] The appellant has not persuaded us that the trial judge committed any palpable and overriding error nor that there is any basis to interfere with her decision.

[8] The appeal is dismissed with costs fixed at $25,000 inclusive of GST and disbursements.

“W. Winkler C.J.O.”

“K. Feldman J.A.”

“J.L. Lax J. (ad hoc)