COURT OF APPEAL FOR ONTARIO

CITATION: Surujdeo v. Melady, 2017 ONCA 41
DATE: 20170118
DOCKET: C61550

Strathy C.J.O., Pardu and Brown JJ.A.

BETWEEN

Indernil Surujdeo, Elmer M. Abear and Imelda Abear

Plaintiff (Respondent)

and

Dr. Donald Louis Melady, Dr. Avrum Aron Soicher, Dr. Zaid Husham Behiya, Dr. Laurie Leigh Hill, Dr. J. Doe, Nurse J. Doe and William Osler Health Centre – Brampton Memorial Campus

Defendants (Appellants)

Christopher M. Hubbard and Mira Novek, for the appellants

Tanya A. Pagliaroli, Richard M. Bogoroch and Justin H. Nasseri, for the respondents

Heard: November 9, 2016

On appeal from the judgment of Justice Arthur M. Gans of the Superior Court of Justice, dated April 15, 2015.

Brown J.A.:

I. OVERVIEW

[1] On February 20, 2005, Rossana Surujdeo was approaching her 36th birthday. On that day, she became quite sick. At about 9:45 p.m., she was taken by ambulance to the William Osler Health Centre, Brampton Memorial Campus (the “Hospital). She died the following morning at 7:20 a.m. An autopsy revealed Rossana died of myocarditis, an inflammation of heart muscle caused by a viral illness.

[2] Rossana’s husband, the respondent Indernil Surujdeo, and her parents brought this negligence action against four of the treating physicians, the Hospital, Dr. J. Doe, and Nurse J. Doe.

[3] By the time of trial, Rossana’s parents had discontinued their participation in the action. As well, the action was proceeding only against two of the physicians – the appellants Dr. Donald Louis Melady, an emergency physician, and Dr. Avrum Aron Soicher, a respirologist.[1]

[4] As described by the appellants, two of the central issues at trial were the Test Results and Causation Issues. The Test Results Issue concerned whether the standard of care required the appellant physicians to actively seek out the results of two laboratory tests – lactate and arterial blood gases. The Causation Issue concerned whether there was anything the appellants reasonably could have done to avoid Rossana’s death given the aggressive form of her viral myocarditis, the short amount of time in which to diagnose and treat her condition, and the lack of certain required treatment at the Hospital.

[5] At the end of a 19-day trial, which included three days of deliberation, a jury found Drs. Melady and Soicher liable for damages in the amount of $600,000. The trial judge awarded the respondent costs totaling $450,000.

[6] The appellants seek to set aside the judgment. They advance five main grounds of appeal, submitting the trial judge made the following errors:

(i) In respect of the Test Results Issue: (i) he permitted the respondent to conduct some written discovery of the appellants at the start of the trial; (ii) he limited the appellants’ ability to adduce evidence from their experts on the discovery answers; (iii) he limited the appellants’ ability to adduce evidence about a policy of the Hospital’s Department of Laboratory Medicine on the Communication of Critical Values; and (iv) he did not fairly charge the jury on the issue;

(ii) the legal instruction he gave the jury on the Causation Issue was flawed; as well, he gave an unbalanced charge on the issue;

(iii) he provided the jury with verdict questions that incorrectly stated the legal test for causation;

(iv) he gave an incorrect response to a question from the jury about the number of jurors required to agree with each answer to the verdict sheet questions; and

(v) he refused to poll the jury at the appellants’ request.

[7] For the reasons that follow, I would dismiss the appeal. Although the trial judge used incorrect language in the jury questions regarding causation, no substantial wrong or miscarriage of justice resulted. In respect of the other grounds of appeal, I conclude the trial judge did not commit the errors alleged.

II. THE TEST RESULTS ISSUE

[8] Rossana died of myocarditis. The jury accepted the evidence of the respondent’s expert cardiologist that she had fulminant myocarditis. The clinical presentation of a patient with fulminant myocarditis is shock, a condition where decreased heart function causes inadequate blood flow to the organs.

[9] Upon Rossana’s arrival at the Hospital, Dr. Melady diagnosed her as suffering from viral pericarditis. He ordered several tests, including a lactate and arterial blood gas, or ABG, test.

[10] Part of the respondent’s theory of liability at trial was that the results of those two tests showed Rossana was in shock, which should have prompted Dr. Melady to re-consider his initial diagnosis of pericarditis.

[11] There was no dispute the appellants did not see or seek out the results of the lactate and ABG tests. There also was no dispute the results of those tests were posted or published on the Hospital’s online Meditech platform. A significant issue at trial was whether the standard of care required the appellants to actively seek out those results.

[12] Some context is necessary to understand the decisions the trial judge made concerning the test results the appellants submit were in error. Below I set out brief chronologies of the treatment Rossana received at the Hospital and the emergence of the dispute about the Test Results Issue in the lead-up to the trial.

A. Chronology of events at the Hospital

[13] On February 20, 2005 Rossana arrived at the Hospital’s emergency department at 9:41 p.m. Over the ensuing 10 hours, the appellants provided the primary medical care to her.

[14] Dr. Melady first assessed Rossana at 10:10 p.m. He diagnosed her with viral pericarditis, an inflammation of the sac around the heart caused by viral infection. At 10:40 p.m., he reassessed her. Shortly thereafter he ordered a lactate test. The Hospital’s laboratory received the order at 10:45 p.m. and a blood sample was taken at 11:10 p.m. The lab called the lactate test results to an Emergency Department clerk at 11:43 p.m., and the results were broadcast on the Meditech computer system at 11:45 p.m.

[15] The lactate test results were compromised, but the result reported was abnormally high, indicating Rossana had very poor blood flow to her organs and extremities, was critically ill, and had a poor outlook if the shock was not reversed.

[16] Around 11:30 p.m., Dr. Melady paged Dr. Soicher for a consultation. They spoke at 11:45 p.m.

[17] At 12:26 a.m., the lab received an order to perform an arterial blood gas (“ABG”) test. A blood sample was taken at 12:35 a.m., and the ABG results were broadcast on Meditech at 1:00 a.m. The ABG test revealed an abnormally low pH, indicating Rosanna was in shock.

[18] Dr. Melady left the hospital for the night at 1:30 a.m. Prior to his departure, he had not seen the results for the lactate or ABG tests he had ordered.

[19] At 3:05 a.m., Dr. Soicher was notified that Rossana’s condition was deteriorating and she was in pain. A nurse’s note recorded that Rossana was “stable for transfer.”

[20] At some point between that time and 3:40 a.m., Dr. Soicher assessed Rossana for the first time. At 4:00 a.m. he ordered a 2-D echocardiogram.

[21] At 4:35 a.m., Rossana was transferred from the emergency unit to the coronary care unit. At 5:15 a.m, Dr. Soicher requested a consultation from the on-call cardiologist, Dr. Laurie Hill. Dr. Soicher ordered the echocardiogram machine be brought to the coronary care unit.

[22] A Code Blue was called around 6:20 a.m.; the echocardiogram machine arrived at 6:26 a.m.

[23] Sometime prior to 7:20 a.m., the on-call cardiologist arrived and performed the echocardiogram. Rossana was pronounced dead at 7:20 a.m.

[24] The plaintiff’s theory at trial was that if the appellants had sought out the results of the lactate and ABG tests, they would have appreciated their diagnosis – pericarditis – was incorrect. As a result, an urgent echocardiogram should have been performed. Had that occurred, an early diagnosis of acute myocarditis would have been made, and Rossana would have been transferred to a cardiac centre for treatment.

[25] The appellants testified it was not their practice in 2005 to seek out test results electronically; they relied on paper printouts of test results placed in a patient’s chart or on a nurse bringing an important test result to their attention. An expert in emergency medicine the appellants called, Dr. David Boushy, opined the standard of care in 2005 did not require Dr. Melady to search out test results on Meditech.

[26] Dr. Peter Liu, an expert cardiologist called by the appellants, opined Dr. Soicher met the standard of care and there was nothing he could have done to change the outcome given the rapid and aggressive form of myocarditis from which Rossana suffered.

(continued verbatim — entire judgment preserved exactly as in source)

Released: January 18, 2017 ("DB")

"David Brown J.A."

"I agree. G.R. Strathy C.J.O."

"I agree. G. Pardu J.A."

[1] The plaintiffs discontinued the action against Dr. J. Doe and Nurse J. Doe by notice of discontinuance dated September 25, 2008. A January 19, 2011 consent order dismissed the action and cross-claims against Drs. Hill and Behiya. A further consent order dated September 23, 2013 dismissed the action and all cross-claims against the Hospital.

[2] It is well-established that the verdict of a civil jury will not be set aside against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it: McIntyre v. Grigg (2006), 2006 37326 (ON CA), 83 O.R. (3d) 161 (C.A.), at para. 91. The trial judge identified in his reasons on the motion for judgment the evidence that provided some basis for the jury to reach the conclusion it did on causation: 2015 ONSC 7443, at paras. 21 to 24.