Ortolan v. Hotel-Dieu Grace Hospital, 2011 ONCA 456

CITATION: Ortolan v. Hotel-Dieu Grace Hospital, 2011 ONCA 456

DATE: 20110616

DOCKET: C51612

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Simmons and Armstrong JJ.A.

BETWEEN

Regina Ortolan, Valerie Ferraro and Alida Demarco

Plaintiffs (Respondents)

and

Hotel-Dieu Grace Hospital and Estate of R.R. Anderson

Defendants (Appellant)

Counsel:

Ronald G. Slaght and Dena Varah, for the appellant, Estate of R.R. Anderson

Claudio Martini, for the respondents

Heard: June 2, 2011

On appeal from the judgment of Justice Joseph G. Quinn of the Superior Court of Justice dated January 8, 2010.

By The Court:

[1] The appellant appeals from a judgment awarding damages to the respondents on account of medical malpractice arising from stomach surgery performed by Dr. Anderson on Mr. Francesco Ortolan on November 26, 1999.

[2] Following the November 26, 1999 surgery, a feeding tube inserted during the surgery became dislodged with the result that Mr. Ortolan’s abdominal cavity became infected, leading to his untimely death.

[3] The narrow factual issue the trial judge had to determine was whether or not Dr. Anderson sutured the jejunum (small intestine) to the abdominal wall, one of three sutures required to be performed to meet the standard of care for insertion of a feeding tube.

[4] Dr. Anderson died in 2002 before examinations for discovery were held. Accordingly, the only direct evidence before the trial judge concerning what happened during the November 26, 1999 surgery was two operative notes prepared by Dr. Anderson – one relating to the November 26, 1999 surgery and the other relating to a second surgery performed on December 2, 1999 after Mr. Ortolan’s condition deteriorated.

[5] The initial operative note dated November 26, 1999 makes no reference to any of the three necessary sutures required to meet the standard of care.

[6] The trial judge seized upon this omission and also:

• relied upon the evidence of the respondents’ expert to the effect that a statement by Dr. Anderson in a second operative report relating to a subsequent December 2, 1999 surgery that “the jejunum was attached” did not mean sutured;

• rejected the appellant's expert’s opinion that the December 2, 1999 reference to “attached” did mean sutured;

• relied on the fact that neither expert witness had experienced a situation in which a properly secured feeding tube had become dislodged;

to conclude that that the jejunum had not been sutured to the abdominal wall and that the standard of care had therefore been breached.

[7] In our view, in analyzing the evidence in this way, the trial judge fell into error.

[8] In the December 2, 1999 operative report, Dr. Anderson made the observation that the feeding tube had recoiled into the abdominal wall and that feed “had leaked a little bit through right where the jejunum was attached (emphasis added).”

[9] Considered in context, the reasonable and obvious meaning of “attached” as it appears in the December 2, 1999 operative report is “sutured”.

[10] In describing the jejunum as “attached”, Dr. Anderson was not describing a step taken during the December 2, 1999 surgery. Rather, he was describing the situation he encountered when he re-opened the patient on that date. As was explained by the appellant’s expert, Dr. Anderson would have been able to make this observation by taking down the sutures he originally made. The concessions made by the respondents’ expert, Dr. Colapinto, in cross-examination that when something is sutured it is attached and that at least one of the other two sutures necessary to meet the standard of care for inserting a feeding tube were performed, even though not referred to in the November 26, 1999 operative report, support this conclusion.

[11] In all the circumstances, in our view, it was simply not open to the trial judge to prefer Dr. Colapinto’s opinion evidence over the only direct evidence at trial concerning the steps taken during the November 26, 1999 surgery.

[12] The evidence of the experts who testified at trial concerning whether Dr. Anderson sutured the jejunum to the abdominal wall was neither direct evidence nor fact evidence; rather, it was opinion evidence premised largely on a review of the two operative reports.

[13] Further, there was no physical evidence that supported the opinion of Dr. Colapinto that the word “attached’ as it appears in the December 2, 1999 operative report does not mean sutured. In particular, there was no physical evidence to support the conclusion that Mr. Ortolan’s stomach cavity was infected with jejunum contents as well as feed.

[14] Finally, as was noted by the respondents’ expert, the possibility that the jejunum could have attached naturally at the exact location on the abdominal wall where the feeding tube was located was remote in the extreme.

[15] Moreover, contrary to the trial judge’s line of reasoning, the fact that the feeding tube became dislodged did not support the conclusion that Dr. Anderson failed to suture the jejunum to the abdominal wall.

[16] As noted above, in his December 2, 1999 operative report, Dr. Anderson observed that the feeding tube had recoiled into the abdominal wall. Although perhaps rare, there was no dispute that this is a known complication arising from insertion of a feeding tube. The fact that this complication occurred could not assist in determining whether Dr. Anderson sutured the jejunum to the abdominal wall.

[17] Considered in context, in our opinion, it is unreasonable to conclude that “attached” as it appears in the December 2, 1999 operative report means anything other than “sutured”. This is particularly so when the respondent’s expert, Dr. Colapinto, conceded in cross-examination that “sutured” and “attached” mean the same thing.

[18] In his December 2, 1999 operative report, Dr. Anderson described exactly what happened in clear terms:

I realized then that [the feeding tube] had recoiled and gone right into the abdominal wall …. and there was a collection the size of my fist in the abdominal wall that had leaked a little bit through right where the jejunum was attached…

This is disappointing because the #8 feeding tube was sutured with an 0 Ethibond which is almost as big as the tube and yet even this would not hold it.

[19] In lay terms, what Dr. Anderson was saying was that the outer suture attaching the feeding tube to the skin came undone with the result that the feeding tube slid into the abdominal wall and some of the feed, which was being pumped through the abdominal wall under pressure, leaked out where the jejunum was attached to the abdomen. This was an unfortunate and tragic accident that resulted in the untimely death of Mr. Ortolan, but it was not caused by any negligence on the part of Dr. Anderson.

[20] In the result, we allow the appeal, set aside the trial judge’s order and substitute an order dismissing the action.

[21] Costs of the appeal are to the appellant in the amount of $15,000 inclusive of disbursements and all applicable taxes as agreed upon by the parties.

Signed: “Winkler C.J.O.”

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

RELEASED: “WW” June 16, 2011