Court of Appeal for Ontario
Date: September 20, 2018 Docket: C64628
Justices: Sharpe, van Rensburg and Brown JJ.A.
Between
Taha Ghiassi, Pouya Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh Ghiassi personally, and Taher Ghiassi
Plaintiffs (Respondents)
and
Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Gurinder Singh Sangha, Sandra Oswald, London Health Sciences Centre, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin
Defendants (Appellants)
Counsel
Simon Clements and Jessica DiFederico, for the appellants
Gavin MacKenzie, Barbara Legate, and Brooke MacKenzie, for the respondents
Heard: September 4, 2018
On appeal from: The judgment of Justice Lynne Leitch of the Superior Court of Justice, dated October 31, 2017, with reasons reported at 2017 ONSC 6541.
Reasons for Decision
Facts
[1] The plaintiff Taha Ghiassi was born at London Health Sciences Centre ("LHSC") on December 22, 2005. Because of his condition at birth, he was cared for by paediatricians and nurses in the Paediatric Critical Care Unit and subsequently the Clinical Teaching Unit at LHSC for several days.
[2] At 21:00, December 25, Nurse Sandra Oswald took Taha's temperature and noted a change in Taha's colour. He was pink and slightly yellow, which indicated that he was slightly jaundiced. Taha only took 10CCs when Nurse Oswald attempted to bottle feed him. Nurse Oswald made a notation that "Mom plans to nurse when able."
[3] At 7:00, December 26, Nurse Oswald reported Taha's change in colour and jaundice to the incoming shift nurse. That nurse assessed Taha at approximately 8:30. At 8:45, she took a blood sample without a physician's order and sent it to the lab to conduct a test to determine Taha's bilirubin level. Bilirubin is a waste product in the blood that is a toxin in the brain at high enough concentrations. An increased bilirubin concentration is associated with jaundice. Jaundice is common in newborns due to immaturity of the liver. The lab report at 10:00 indicated severe hyperbilirubinemia, a higher than normal level of bilirubin in the blood. The bilirubin level was only slightly less than the threshold for critical hyperbilirubinemia, which has the potential to cause long-term neurological impairment.
[4] Phototherapy (putting the infant under lights to reduce the bilirubin concentration) was commenced at 11:00. Taha was still neurologically intact at this time. Taha's bilirubin level dropped slightly but by 15:00 he began to show signs of neurological damage. Further treatment proved unsuccessful and he developed the neurological condition kernicterus, caused by his hyperbilirubinemia. As a result of kernicterus, Taha suffers from severe deficits including dyskinetic cerebral palsy, moderate to severe hearing loss, visual impairment, developmental delays, and intellectual disability.
[5] Taha, his parents, and his two older siblings commenced this action against LHSC, Nurse Oswald, and seven doctors involved in treating Taha.
[6] Before the trial, the parties agreed on the damages that the plaintiffs sustained in the amount of $9,500,000.00. At the beginning of trial, the plaintiffs settled the claims against the seven doctors and the trial proceeded against Nurse Oswald and LHSC.
[7] After a 12 day trial, the trial judge found that Nurse Oswald fell below the standard of care by failing to report to the resident pediatrician on duty the onset of jaundice when she noted that condition at 21:00, December 25. In her careful and detailed reasons, the trial judge found that but for Nurse Oswald's negligence, a resident would have ordered a blood test for bilirubin at 24:00. Relying on the timing of the introduction of phototherapy on the morning of December 26 after a blood test was finally done, the trial judge found that phototherapy to reduce Taha's level of bilirubin would have commenced not later than 2:15, December 26. Had that occurred, she found that Taha would not have developed kernicterus.
[8] Nurse Oswald and LHSC appeal Leitch J.'s findings on the issue of causation only. They do not quarrel with her finding that Nurse Oswald fell below the appropriate standard of care.
Issues
[9] The appellants raise three issues in this essentially fact-driven appeal:
(1) Was the trial judge's finding of causation tainted by her error in relying on what a "reasonable resident" would have done if Nurse Oswald had reported jaundice at 21:00, December 25?
(2) Did the trial judge err by inferring causation in the absence of expert evidence that Taha would not have developed kernicterus had phototherapy been commenced at 2:15, December 26?
(3) Did the trial judge err in finding that the conversation between Nurse Oswald and Taha's mother took place at 21:00, December 25?
[10] It is common ground that the trial judge's factual findings attract deference on appeal and can only be upset if they reveal palpable and overriding error.
Analysis
(1) Was the trial judge's finding of causation tainted by her error in relying on what a "reasonable resident" would have done if Nurse Oswald had reported jaundice at 21:00, December 25?
[11] The trial judge found that had Nurse Oswald reported the jaundice and other risk factors, the resident on duty that night, Dr. Saleh, or a reasonably competent resident, would have responded promptly and ordered blood to be drawn for a bilirubin test the next time Taha was handled at 24:00. In making this finding, the trial judge relied on the opinion of the respondents' causation expert, Dr. Michael Marrin, that a competent resident would order a blood test at the next handling episode. The trial judge also treated the evidence of another resident who testified, Dr. Sangha, as a proxy for the evidence of Dr. Saleh, who did not testify. She based this on the fact that Drs. Sangha and Saleh had equivalent levels of knowledge and experience.
[12] The appellants submit that the trial judge erred in making this finding for several reasons. First, Dr. Saleh was not called as a witness and without his evidence as to what he would have done, there was a fatal gap in the evidence required to prove causation. Second, Dr. Marrin testified that he thought the entire medical staff on the unit lacked competence and it follows that the trial judge erred in finding that the resident on duty would have lived up to the standard of a reasonably competent resident. Third, they argue that the trial judge misapprehended the evidence of Dr. Sangha as to when he would have ordered the blood test. It is the appellants' position that even if Nurse Oswald had reported the jaundice at 21:00, the resident would not have ordered a bilirubin test until the start of the morning shift on December 26.
[13] We do not agree with these submissions.
[14] The trial judge refused to draw an adverse inference from the failure to call Dr. Saleh who was available to both parties. That decision is not challenged on appeal.
[15] The combination of Dr. Marrin's evidence about what a reasonably competent resident would have done and what Dr. Sangha said he would have done provide a reasonable foundation for the trial judge's finding. Dr. Sangha testified that in the normal course he would order a bilirubin test as soon as he was made aware that an infant under his care was evidencing signs of jaundice. That corresponded to Dr. Marrin's evidence of what he would expect a reasonably competent resident to do. While at a later point in his evidence, Dr. Sangha stated that in some circumstances he might wait for the next blood test to be taken, that evidence did not take into account the added risk factors that Nurse Oswald should have reported in addition to the early signs of jaundice. In any event, the trial judge was entitled to prefer Dr. Sangha's earlier and unqualified evidence that he would have ordered the test as soon as he became aware of the presence of jaundice.
[16] Finally, we agree with the respondents that the trial judge did not err by refusing to adopt the appellants' submission that they should escape liability by pointing the finger at the hypothetical negligence of a physician that might have caused the loss in any event.
[17] If Nurse Oswald and the night resident had been cumulatively negligent, the law would not allow each of them to point to each other's negligence to rebut a finding of causation. In Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, this court stated, at para. 116:
Generally speaking, with respect to delayed diagnosis medical negligence cases involving multiple tortfeasors, it ought not to be possible for any one of the negligent tortfeasors to sidestep liability on the basis that there was sufficient cumulative delay resulting from the negligent acts or omissions of other defendants so that it could not be proven under Clements that the defendant's particular contribution was "necessary" – that the injury would still have been incurred but for the negligent act or omission.
[18] Accordingly, it would be incongruous to permit Nurse Oswald to escape liability by pointing to another physician's hypothetical negligence. If an additional defendant's actual negligence does not provide a defence in a delayed treatment case, it follows that the hypothetical negligence of a third party should not provide a defence.
(2) Did the trial judge err by inferring causation in the absence of expert evidence that Taha would not have developed kernicterus had phototherapy been commenced at 2:15, December 26?
[19] The central issue on this appeal is whether the trial judge erred in finding that it was more likely than not that Taha's kernicterus would have been prevented had phototherapy been initiated at 2:15 on December 26. In coming to that conclusion, the trial judge relied on Dr. Marrin's unchallenged evidence that Taha would not have developed kernicterus if phototherapy had been initiated at either 21:00 on December 25, or 24:00 on December 26.
[20] The appellants submit that as Dr. Marrin was never asked whether Taha's kernicterus would have been prevented had phototherapy been initiated at 2:15, the trial judge's finding on causation amounts to speculation. They assert that the trial judge, in effect, could only come to that conclusion by acting as her own expert.
[21] We disagree.
[22] It is important to place this issue in the context of how this trial unfolded. As we have already noted, the appellants called no expert evidence on causation. They simply rested on the theory that the respondents had failed to prove causation. During the evidentiary part of the trial, the parties posed two conflicting theories. The respondents' theory was that had Nurse Oswald reported jaundice at 21:00, the resident would have immediately ordered a bilirubin test and phototherapy would have been commenced shortly thereafter. The defendants took the position that it was acceptable to wait until the morning to do a blood test and that even if Nurse Oswald had reported the jaundice at 21:00, phototherapy would not have commenced until the morning. It was during oral argument that the appellants first advanced the argument that even if Nurse Oswald had reported jaundice at 21:00 on December 25, phototherapy would not have started until 2:15 on December 26. Only then did the appellants submit that in the absence of expert evidence that starting phototherapy at that time would have prevented Taha from developing kernicterus, the respondents had failed to prove causation.
[23] The trial judge rejected that contention, at para. 552, on the basis of twelve facts she found to support her finding. Among those facts were:
- Dr. Marrin's unequivocal and certain evidence that no injury would have occurred if phototherapy had been initiated at 24:00 on Dec. 26;
- That phototherapy is effective in blunting the rise and reducing the level of bilirubin;
- That when phototherapy was introduced the next morning, Taha's bilirubin declined; and
- That Taha was still neurologically intact at 11:00 am, December 26 and did not exhibit signs of neurological damage until 15:00.
[24] In our view, it was open to the trial judge to infer from this evidence that the introduction of phototherapy at 2:15 would have prevented Taha from developing kernicterus. This did not amount to the trial judge speculating or acting as her own expert. The only expert evidence available, combined with the evidence as to how Taha's condition progressed from the point at which jaundice first appeared to the point at which he began to show signs of neurological damage, provided a solid factual foundation for the inference the trial judge drew.
[25] The appellants' contention in oral argument that the respondents' failure to ask Dr. Marrin whether phototherapy commenced at 2:15 would have been effective amounts to a fatal flaw is unpersuasive. The appellants called no expert evidence on causation and did not give the respondents or Dr. Marrin the opportunity to address that contention by putting it to him in cross-examination. The trial judge's treatment of the evidence is entirely consistent with the principles set out in Snell v. Farrell, [1990] 2 S.C.R. 311. As Sopinka J. stated, at p. 330, "in the absence of evidence to the contrary by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced."
[26] The appellants submit that the trial judge's reliance on Dr. Marrin's evidence that "the direction of change" was "a rising bilirubin not a falling bilirubin" and the rise was "linear" taints her finding of causation. They submit that the trial judge misapprehended Dr. Marrin's evidence. While Dr. Marrin did testify that there is a "linear rise" in bilirubin if an infant has physiological bilirubin, he testified that the rise in cases of pathologic bilirubin falls "outside of that pattern." Taha had pathological bilirubin. Because Taha had pathologic jaundice, the appellants argue that it is impossible to say how quickly his bilirubin level would have risen.
[27] We disagree. First, there is nothing on the evidence to suggest that pathological bilirubin could have developed before 2:15 on December 26 or that Taha's bilirubin levels exhibited sudden or unpredictable jumps. Second, this is merely one fact in a long list of facts that support the trial judge's inference. Even if the trial judge erred by relying on the linear progression of bilirubin, that error was not overriding or sufficient to affect the outcome.
[28] Contrary to the respondents' submissions, this case is readily distinguishable from delayed treatment cases in which this court found there was "no evidence" of causation. In Cottrelle v. Gerrard, 67 O.R. (3d) 737, the expert evidence was that the plaintiff would have lost her leg even if the defendant physician had not been negligent and the expert evidence at best showed loss of a chance: at paras. 3, 23. In Aristorenas v. Comcare Health Services, 83 O.R. (3d) 282, no experts were qualified to give evidence about the disease in question and none of the experts testified that the delay in treatment increased the likelihood of contracting the disease: para. 71. In Barker v. Montfort Hospital, 2007 ONCA 282, 278 D.L.R. (4th) 215, the court found that the organ in question had likely died prior to the delay in treatment: at paras. 40-41. In Salter v. Hirst, 2011 ONCA 609, 107 O.R. (3d) 236, the plaintiffs' experts led no evidence about what would have happened if the plaintiff had been transferred to the hospital without the delay: at paras. 12, 15-16.
[29] Finally, we agree with the respondents' submission that if there is a gap in the evidence about what would have happened had phototherapy been introduced at 2:15, that gap was the product of Nurse Oswald's negligence. Her failure to order the test is the reason there is no data point as to the bilirubin level at 2:15. Nurse Oswald should not be permitted to rely on the lack of evidence that her own negligence produced see Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at paras. 72-74.
(3) Did the trial judge err in finding that the conversation between Nurse Oswald and Taha's mother took place at 21:00, December 25?
[30] The Agreed Statement of Facts states that at some point during Ms. Oswald's night shift on December 25, she had a conversation with Mrs. Ghiassi, Taha's mother. Para. 108 of the Agreed Statement of Facts states as follows:
Mrs. Ghiassi attends and asks to hold Taha. She asks Nurse Oswald to turn on the lights so she can see him, which Nurse Oswald does. She notes his nose is yellow, and he does not arouse from sleep. Mrs. Ghiassi asks Nurse Oswald to have his blood tested by the doctors in the morning, noting that she has experience with jaundice. She is reassured by Nurse Oswald that this is normal jaundice.
[31] This conversation is important because it disclosed to Nurse Oswald several factors that increased the risk posed by Taha's jaundice. The trial judge found on the basis of the expert evidence on the standard of care that learning these factors should have led Nurse Oswald to report the condition to the resident. The timing of that conversation was contentious. Taha's mother was uncertain of the precise time when the conversation occurred. She testified that it could have been at "11:00, maybe 10:00" and later that she thought it was "midnight…11:30 or 2:00 or 1:00" or between "11:00 and 1:00 o'clock up or down". The appellants argued that the conversation occurred slightly after midnight. Nurse Oswald could not recall the time the conversation occurred but testified that the information that she noted at 21:00 could have come from the information on the medical information system, the fact that Taha was having expressed breast milk, or because the initial nursing history obtained on admission indicated that Mrs. Ghiassi planned to breastfeed.
[32] The trial judge found as a fact that the conversation took place at 21:00, relying on the notation made by Nurse Oswald at that time that "Mom plans to nurse when able".
[33] We are not persuaded by the appellants' argument that this factual finding amounts to palpable and overriding error.
[34] Taha's mother was admittedly uncertain in her evidence about the timing, but it was open to the trial judge on this record to infer from Nurse Oswald's note that the conversation took place at 21:00. Nurse Oswald made no other documentation of a visit or information from Taha's mother and she could not recall caring for Taha. The trial judge was entitled to privilege the note over the later times that Mrs. Ghiassi referred to given that Mrs. Ghiassi made clear that she did not "exactly remember the time." Mrs. Ghiassi's statement that it was "late evening" and that "it was night and dark" was also consistent with the 21:00 timing. Moreover, the appellants conceded in oral argument that the crucial issue was whether or not the conversation took place before 24:00 and the mother's evidence was certainly consistent with that timing.
[35] Accordingly, we would not give effect to this ground of appeal.
Disposition
[36] For these reasons, the appeal is dismissed with costs to the respondents fixed in the amount agreed to by the parties, $35,000 inclusive of disbursements and taxes.
"Robert J. Sharpe J.A."
"K. van Rensburg J.A."
"David Brown J.A."
