Court File and Parties

CITATION: Da Silva v. Hannam, 2011 ONCA 505

DATE: 20110711

DOCKET: C53070

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Epstein JJ.A.

BETWEEN

Jose Da Silva and Zita Da Silva

Plaintiffs (Appellants)

and

Dr. Paul Hannam and Toronto East General Hospital

Defendants (Respondents)

Counsel:

Diane L. Evans, for the appellants

Michael Kortez and Meredith E. Jones for the respondent Dr. Paul Hannam

Simon Clements, for the respondent Toronto East General Hospital

Heard and released orally: July 7, 2011

On appeal from the judgment of Justice S. Chapnik of the Superior Court of Justice, dated November 29, 2010.

ENDORSEMENT

[1] The appellants, Jose Da Silva and Zita Da Silva, are the plaintiffs in a medical malpractice action that they have brought against the respondents in this appeal, Dr. Paul Hannam – the doctor who treated Mr. Da Silva – and Toronto East General Hospital – the treating hospital. They appeal the judgment of Justice Chapnik, dated November 29, 2010, allowing the respondents’ summary judgment motion, the effect of which was to dismiss the appellants’ action.

[2] In our view, the appeal must be dismissed.

[3] The action arises out of a condition with which Mr. Da Silva was unfortunately afflicted, known as testicle torsion. Approximately 64 hours after Mr. Da Silva became aware that he had a problem, he was operated on and the affected testicle, which by then was no longer viable, was removed.

[4] The argument before the motion judge focused not on the standard of care but on causation. The question of whether there was any genuine issue requiring a trial was whether, had the respondent doctor properly diagnosed the problem when he first saw Mr. Da Silva 19 hours after the onset of Mr. Da Silva’s symptoms, Mr. Da Silva’s condition could have been treated without the removal of his testicle.

[5] The appellants’ expert evidence showed that, at its highest, when the respondent doctor first saw Mr. Da Silva, there was a 10 per cent chance of preventing the loss of his testicle. There was no evidence indicating that if an earlier diagnosis and treatment had been effected by the respondent doctor after Mr. Da Silva’s attendance at the hospital, it was more likely than not that Mr. Da Silva’s testicle could have been saved. On this evidence, the motion judge concluded, correctly in our view, that the “but for” test for causation applied and that this test was not met.

[6] We see no error in the motion judge’s reasoning. The appeal is therefore dismissed.

[7] The respondent hospital will have its costs of the appeal in the amount of $2,500, inclusive of disbursements and all applicable taxes, and the respondent doctor will have his costs of the appeal in the amount of $7,500, inclusive of disbursements and all applicable taxes.

“M. J. Moldaver J.A.”

“E.A. Cronk J.A.”

“G.J. Epstein J.A.”