Court of Appeal for Ontario

CITATION: Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193

DATE: 20140314

DOCKET: C56387

Juriansz, Pepall and Strathy JJ.A.

BETWEEN

Anita Brebant Fowlow, in her Personal Capacity and as Estate Trustee for the Estate of Frederick Chesley Fowlow, a Deceased; Jonathan Frederick Fowlow, and Jennifer Anne-Marie Fowlow

Appellants (Plaintiffs)

and

Southlake Regional Health Centre and Dr. Deepak Gupta

Respondent in appeal (Defendants)

Counsel:

Bernie Romano, for the appellants

Erica J. Baron and Byron Shaw, for the respondent

Heard: March 4, 2014

On appeal from the judgment of Justice David G. Stinson of the Superior Court of Justice, dated November 19, 2012.

ENDORSEMENT

[1] This is an appeal from the trial judge’s dismissal of the appellants’ medical malpractice action against the respondent doctor. The appellants are the estate and family members of the respondent’s patient who died four days after undergoing an axillary-femoral bypass operation performed by the respondent.

[2] An axillary-femoral bypass involves the insertion of an artificial blood vessel from the axillary artery to the femoral artery in order to by-pass a blockage. The respondent used an IMPRA Flex Thinwall graft for the procedure. The respondent admitted that he did not read the manufacturer’s Information For Use (IFU) for the graft, and that he was unaware that the IFU indicated that the graft was “not recommended” for an axillary-femoral bypass. The operation itself was uneventful. Shortly after being discharged from hospital, the patient died from massive blood loss resulting from the detachment of the graft from the axillary artery.

[3] The trial judge found that the respondent failed to meet the standard of care in several respects: by failing to inform the patient he intended to install a graft that was expressly not recommended for the procedure and failing to obtain the patient’s consent to do so, by failing to be aware of the manufacturer’s IFU indicating the graft was “not recommended”, and by carrying out the procedure using a graft that was “not recommended”. However, the trial judge went on to find that the appellants had failed to meet their burden of proof to establish a causal connection between the respondent’s failures and the death of the patient.

[4] In his detailed and clearly written reasons, the trial judge said the appellants, to establish causation, had relied only on the caution in the manufacturer’s IFU and the fact that the graft had become detached from the axillary artery. He pointed out that they led no evidence as to whether the sutures pulled through the graft, whether the sutures pulled through the artery, whether the graft itself tore, or whether there was some combination of these events. The trial judge observed that it was entirely possible that the detachment of the graft had nothing to do with the quality of the graft itself, but rather was due to the inability of the patient’s axillary artery to maintain the connection. He noted, for example, that patients with advanced arterial disease may have arteries that are particularly fragile, in which case the artery walls are weaker and less able to withstand the disruption associated with the bypass procedure. He added that the patient in this case had advanced arterial disease.

[5] In the absence of evidence connecting the detachment to the quality of the graft, the trial judge concluded that he was unable to draw a causal link between the respondent’s failures to meet the standard of care and the death of the patient.

[6] On appeal, the appellants submit the trial judge erred by unduly focusing on the specific mechanism that led to the detachment. In doing so, they say he required them to establish causation with scientific precision. They submit he failed to apply the robust and pragmatic approach to causation set out in Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, and that he failed to apply the “modified objective test” for causation in Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 in relation to the issue of informed consent. The appellants submit it is impossible for them to prove the specific mechanism of the detachment, and that these cases indicate that it is sufficient that they established that the respondent’s use of a thin wall graft materially contributed to the risk of detachment and that there was a relationship between the increase in risk and the death of the patient. They also submit that the trial judge failed to consider whether a reasonable person in the patient’s position would have declined treatment, had he been informed of the use of a “not recommended” graft.

[7] We do not agree.

[8] First, as a factual matter, the trial judge did not accept that the appellants had established that the use of the IMPRA Flex Thinwall graft increased the risk of detachment. He said:

Apart from the manufacturer's warning, the plaintiffs were unable to point to any particular evidence to support the conclusion that the disruption was due to the quality of the graft employed. They tendered no evidence from the manufacturer to explain why the warning was included in the IFU or to indicate any history of problems with that particular manufacturer's graft in this type of application. It may be that other problems led to the inclusion of the warning, such as reports of blockages or clotting or kinking in the tube, to name a few.

[9] Second, this is not a case for the application of the “material contribution” approach. As the Supreme Court of Canada recently pointed out in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, the “material contribution” approach may be employed where it is truly impossible to establish “but for” causation, and is particularly apt for cases involving multiple tortfeasors. Not only was there only a single tortfeasor in this case, but the appellants had not established it was truly impossible for them to satisfy the “but for” test. We agree that without evidence from the manufacturer or from a pathologist who performed or witnessed the post-mortem examination, or at least evidence of why these witnesses would not be helpful, the “impossibility” criterion was not satisfied.

[10] Third, the robust and pragmatic approach does not dispense with the requirement that plaintiffs lead some evidence of causal connection, whether the claim is based on negligence or on breach of the duty of disclosure. Moreover, the approach is most robustly applied in cases in which the facts lie particularly within the knowledge of the defendant. Counsel for the appellant recognizes that the appellants in this case were equally able to tender evidence from the manufacturer or from a pathologist who performed or witnessed the post-mortem examination.

[11] We do not doubt that the trial judge engaged in a robust and pragmatic analysis of the evidence. After his careful review, he declined to infer that the respondent’s use of a graft contrary to the manufacturer’s recommendation and failure to disclose were sufficient, in itself, to establish a causal link to the patient’s death. We are not persuaded that he committed a reversible error.

[12] The appeal is dismissed. The respondent’s costs are fixed in the amount of $14,000 all-inclusive as agreed by counsel.

“R.G. Juriansz J.A.”

“S.E. Pepall J.A.”

“G. R. Strathy J.A.”