Court of Appeal for Ontario

CITATION: Timpano v. Hurst, 2009 ONCA 863

DATE: 20091208

DOCKET: C48616

Feldman, Armstrong and Epstein JJ.A.

BETWEEN

Joe Timpano, Executor of the Estate of Roger Lawrence and Paula Lawrence

Plaintiffs (Appellants)

and

Bunny Alexander, Niagara Health System – Welland Hospital Site, Dr. G.G. Guindon #21570, Dr. J. Davies #73781, Dr. D.W. Hurst #18205, Dr. D.A. Willson #12708, Dr. Jane Doe, Dr. John Doe, Nurse J. Doe, Technical J. Doe, Manufacturer Doe, Distributor Doe

Defendants (Respondent)

Counsel:

Robert T. Anderson, for the appellants

J. Thomas Curry and Anne E. Posno, for the respondent Dr. D.W. Hurst #18205

Heard: November 19, 2009

On appeal from the judgment of Justice Alan C.R. Whitten of the Superior Court of Justice dated March 4, 2008.

ENDORSEMENT

[1] The appellants sued the respondent doctor for damages for medical malpractice in his investigation and treatment of Roger Lawrence following his admission to the Welland Hospital on May 22, 2000, as a result of severe stomach pain. The respondent, a general surgeon, after examining Mr. Lawrence the next day and reviewing test results, concluded that his patient was suffering from gallbladder colic.

[2] On May 24, 2000, the respondent competently performed the appropriate operation - a laparoscopic cholecystectomy. As Mr. Lawrence was being taken from the operating room, he aspirated some of his own vomit.

[3] Over the next 12 days, Mr. Lawrence’s condition alternately improved and deteriorated. However, on June 1, 2000, Mr. Lawrence started to show signs of distress. He was air lifted to Mount Sinai Hospital in Toronto where necrotising pancreatitis was discovered. On June 3, 2000, Mr. Lawrence died.

[4] At trial and in this appeal, the appellants’ negligence claim focused on their allegations that the respondent failed to respond appropriately to the changes in Mr. Lawrence’s symptoms on Friday, May 26, 2000, when signs of jaundice were noted.

[5] At that point, for a number of reasons including the fact that Mr. Lawrence was still on a respirator as a result of the post-operative aspiration, the respondent decided to take a “wait and see approach” over the weekend.

[6] This approach, described by the trial judge as the “focal point” of the trial, was the subject of much of the trial testimony given by the respondent and by the doctors called as experts by both sides.

[7] The appellants’ medical experts testified that on May 26, they would have immediately taken further investigative steps and ordered imaging, including a CT scan, an HIDA scan and possibly an ultrasound – possibly leading to a procedure known as an ERCP.

[8] The opinion of the experts called on behalf of the respondent was that the respondent’s approach to the treatment of Mr. Lawrence was, in the words of the trial judge “reasonable”, in the sense that he had acted in accordance with the expected standard of practice.

[9] Preferring the conclusions of the respondent’s experts and noting the testimony of Dr. Mamazza, one of the appellants’ experts, that the respondent’s decision to wait was merely an “error in judgment”, the trial judge concluded that the respondent did not fall below the standard of care. In so saying, it is clear that the trial judge did not consider it an error that the respondent waited before taking further investigative steps, but rather, that in hindsight, it turned out to be an error. Even in that regard, it was not clear on the evidence that earlier investigation would have changed the outcome in this case.

[10] The trial judge was therefore not persuaded that the appellants had established medical malpractice.

[11] The trial judge then went on to consider the issue of causation. Again, with reference to the medical evidence to the effect that there is no known treatment for pancreatitis, he found that it was doubtful that anything could have been done for Mr. Lawrence at any relevant time.

[12] This appeal challenges both the trial judge’s findings of fact against the appellants’ position and his conclusion of law based on the evidence he accepted and the findings he made. A trial judge’s findings of fact and application of the law to the facts as found are, of course, entitled to deference.

[13] In our view, the trial judge made no such error in finding not only that the respondent’s treatment of Mr. Lawrence did not fall below the standard of care but also that causation had not been established.

[14] He correctly applied the law to facts supported by the evidence. We see no reason to interfere with his characterization of the respondent’s management of Mr. Lawrence’s complex medical situation as an error in clinical judgment resulting in misadventure.

[15] On the agreement of counsel, costs to the respondent, if demanded, are fixed in the amount of $25,000 including interest and GST.

“K. Feldman J.A.”

“Robert P. Armstrong J.A.”

“G.J. Epstein J.A.”