COURT OF APPEAL FOR ONTARIO

CITATION: White v. St. Joseph's Hospital (Hamilton), 2019 ONCA 312

DATE: 20190425

DOCKET: C64741

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Paul White, Connor White, Carson White, Marleigh White, Mary Ann McConaghy, The Estate of Gerald Francis White Sr., by his executor Gerald Francis White, Jr., Gerald Francis White, Jr.

Plaintiffs (Appellants)

and

St. Joseph’s Hospital (Hamilton), 951743 Ontario Limited, carrying on business as St. Joseph’s Health System, St. Joseph’s Health System, formerly, St. Joseph’s Healthcare System, St. Joseph’s Healthcare Foundation, Carol Schweinbenz, Ved Tandan and Rohit Gupta

Defendants (Respondents)

Paul Harte and Giuseppe Michelucci, for the appellants

Jessica DiFederico and Simon Clements, for the respondents

Heard: November 5, 2018

On appeal from the judgment of Justice Kim Carpenter-Gunn, dated November 29, 2017.

Lauwers J.A.:

[1] The appellant, Paul White, suffered a “pinhole” bowel leak after a routine bowel surgery. The leak was a rare but well recognized risk and a potentially life-threatening complication. Mr. White does not argue that the leak came about as a result of anyone’s negligence.

[2] Mr. White’s claim for damages is based on the delay in treatment because the leak was not detected for some time. Mr. White developed sepsis and entered septic shock, which required remedial surgery, a course of antibiotics, and a stay in the Intensive Care Unit. He later developed an unrelated bowel perforation that necessitated a longer hospital stay.

[3] The trial judge dismissed the action against the hospital, Nurse Carol Schweinbenz, and Drs. Ved Tandan and Rohit Gupta. Mr. White appeals the decision only in respect of the hospital and Nurse Schweinbenz.

[4] Mr. White largely seeks to re-litigate the trial judge’s factual findings on the basis that she made palpable and overriding errors in her assessment of the evidence along with some related legal errors. He asserts that, contrary to the evidence, the trial judge failed to make three findings:

• Nurse Schweinbenz was negligent in her treatment of Mr. White during the overnight period of May 4-5, 2016, thus delaying treatment of the leak;

• the hospital negligently failed to ensure that the antibiotic Piperacillin-Tazobactam, also known as Pip-Taz, was properly administered to Mr. White, which was a medication error;

• the medication error combined with Nurse Schweinbenz’s negligence exacerbated Mr. White’s injury and therefore “caused or contributed” to it.

[5] In my view, the trial judge made no palpable and overriding errors of fact, or legal errors. The medical evidence supports the trial judge’s decision. I would dismiss the appeal.

A. Did Nurse Schweinbenz’s negligence delay treatment of the leak?

[6] Nurse Schweinbenz noted that Mr. White had mottled limbs at about 6:15 a.m. on May 5 when she decided to give him a bath, suggesting that he was then in septic shock. She called for a doctor. He was resuscitated and transferred to the Intensive Care Unit at 8:10 a.m.

[7] Mr. White called Valerie Neely as an expert on the nursing standard of care. Her evidence was that the care provided by Nurse Schweinbenz was appropriate up to 1:00 a.m. on May 5. Katherine Trip, the nursing expert called by the hospital and Nurse Schweinbenz, gave evidence that Nurse Schweinbenz met the standard of care throughout. The trial judge preferred the evidence of Nurse Trip, whom she found to be better qualified by education, training and experience than Nurse Neely.

[8] Mr. White points to several “abnormal changes” in his condition overnight from the beginning of Nurse Schweinbenz’s shift at 7:00 p.m. on May 4 and into the morning of May 5. The first was a drop in his blood pressure at 10:30 p.m. The second related to his insufficient urine output. The third related to his continuing pain despite medication.

[9] Mr. White submits that the standard of care required Nurse Schweinbenz to report the abnormal changes to the resident on call. Had she reported the changes, Nurse Schweinbenz testified that she "would have had to [tell the resident Dr. Singh] what Mr. White had done, what his vitals were, how many days post-op, who he was a patient of." Mr. White asserts that had the abnormal changes been reported, the expert evidence was that a reasonable doctor would have come to see him and emergency treatment would have started hours earlier.

[10] The trial judge noted that Nurse Schweinbenz had reported Mr. White’s accelerated heart rate to Dr. Singh at 10:00 p.m. who told her to keep a close eye on him.

[11] The trial judge found that Nurse Schweinbenz met the standard of care. She addressed each of the changes Mr. White described as abnormal. First, in terms of the drop in blood pressure at 10:30 p.m., Nurse Schweinbenz testified that she had given morphine to Mr. White one hour earlier, which she thought accounted for the drop in his blood pressure, and when she took the next round of vital signs around 4:30 a.m. his blood pressure had rebounded. The trial judge accepted this evidence. She also drew the inference that Dr. Singh would not have attended to assess Mr. White if he had been told his blood pressure at 11:30 p.m., given that Dr. Singh did not attend when the same vitals were eventually reported to him by Nurse Schweinbenz at 2:00 a.m. on May 5. Moreover, the trial judge accepted Nurse Schweinbenz’s evidence that she spoke to Mr. White shortly before 2:00 a.m. “and he was lucid and coherent and they had a dialogue.” The trial judge found that Nurse Schweinbenz was not required to insist that Dr. Singh attend and examine Mr. White, and she added that “there was no evidence before the court as to what would have been done or how the outcome for Mr. White would have been different had Dr. Singh attended at that time.”

[12] Second, the evidence was that Mr. White’s urine output was at the minimum expected amount. The evidence also indicated that the dark colour of the urine could have been the result of dehydration or from blood resulting from the recent surgery or catheter insertion.

[13] Third, there was no expert evidence to support the position that in not reporting Mr. White’s continued pain Nurse Schweinbenz was in breach of the standard of care. The trial judge found that his vital signs remained relatively stable overnight.

[14] In my view, the trial judge’s findings were available to her on the evidence and do not constitute palpable and overriding errors. I would uphold the trial judge’s findings that Mr. White did not prove negligence on the part of Nurse Schweinbenz. Did the hospital negligently fail to properly administer antibiotics to Mr. White?

[15] The evidence was equivocal regarding the administration of the first dose of Pip-Taz. The first order for Pip-Taz was given by Dr. Ward around the time Mr. White was resuscitated after 6:15 a.m. on May 5. The order called for a single dose of Pip-Taz. The factual issue was whether the first dose of Pip-Taz was actually given to Mr. White. The order has a checkmark next to it on the order form. According to the trial judge, this signified either that the order had been transcribed into the medication administration record, or that the dose had been actually administered.

[16] Nurse Neely was asked about Dr. Ward’s medication order and the meaning of the checkmark on the order form. She testified that the checkmark meant that the order had been transcribed into the medication administration record. However, because the order does not actually appear in the medication administration record, the trial judge did not accept Nurse Neely’s interpretation. She concluded instead that the checkmark meant that the Pip-Taz had been administered to Mr. White.

[17] Mr. White points to a note by Dr. Christian in the chart about a medication error, and submits that this refers to the missed dose of Pip-Taz. However, the trial judge found that the more logical and contextual reading of Dr. Christian’s note is that the error was that Mr. White mistakenly got an additional dose of phenylephrine. The trial judge did not make a palpable and overriding error in this finding, which was available to her on the evidence.

[18] Dr. Ward later made an order that Pip-Taz be given every six hours on May 5, post-operation. This was superseded by an order made by Dr. Christian at 1:50 p.m., after Mr. White’s return from surgery. The trial judge interpreted Dr. Christian’s order for Pip-Taz as requiring it to be given eight hours later at 10:00 p.m. that evening. According to the trial judge, the medication record shows that he was given the next dose of Pip-Taz at 12:00 a.m. Mr. White’s counsel conceded at trial that a two hour delay would be “de minimis”.

[19] The parties disagree about whether the order required the antibiotics to be administered 8 hours after the order was made, or 8 hours after the first dose was administered (around 8:00 a.m.). The appellants took the position that Mr. White ought to have received the antibiotics every 8 hours, being 8:00 a.m., 4:00 p.m., and 12:00 a.m. They argued that the trial judge erred in concluding, without any expert evidence, that the order meant that the second dose ought to have been given to Mr. White 8 hours after the order was made: 10:00 p.m.

[20] The respondents argued that the trial judge correctly interpreted the order to mean that the dose ought to be administered every 8 hours after the order was made. They note that the trial judge contrasted the order with other orders which stated that actions ought to occur “now.” The respondents also took the position that if this order was in error (presumably because drugs ought to be administered every 6-8 hours after the first dose which ostensibly occurred around 8:00 a.m.), then this would fall on the prescribing physician, not the nurse or hospital who were merely carrying out the order.

[21] According to the infectious disease expert called by the doctors, Dr. Tina Mele, when the blood culture results became available around 11:00 a.m. on May 8, it became clear that Pip-Taz was not the most effective medication for Mr. White. Dr. Mele testified that Mr. White had therefore not been appropriately treated by an antibiotic until May 8, when he was switched to Meropenem. Mr. White does not allege that Pip-Taz was negligently prescribed. Dr. Mele took the view that, at best, the Pip-Taz might have partially treated the infection since the strain of bacteria was partially sensitive to that drug.

[22] In my view, the trial judge’s finding that the first dose of Pip-Taz was administered to Mr. White after his resuscitation at about 6:15 a.m. on May 5 was available to her on the evidence and does not constitute a palpable and overriding error.

[23] The trial judge interpreted Dr. Christian’s order as requiring that the second dose of Pip-Taz be administered around 10:00 p.m., 8 hours after the order was written. The trial judge interpreted the order in this way because nothing on the form suggested that the order of Pip-Taz needed to be administered immediately; she contrasted this with other parts of his order which expressly stated that they were to be carried out “now.” This interpretation was available to her on the evidence and does not constitute a palpable and overriding error.

B. Did the alleged negligence exacerbate Mr. White’s injury and therefore cause or contribute to it?

[24] Regardless of the findings on the standard of care, the trial judge’s findings on causation preclude a finding of negligence on the part of either Nurse Schweinbenz or the hospital.

[25] In an action for delayed medical diagnosis and treatment, a plaintiff must establish that the delay caused or contributed to the unfavourable outcome: Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal to SCC refused, 2018 CarswellOnt 10678-10679, at para. 117; Beldycki Estate v. Jaipargas, 2012 ONCA 537, 295 O.A.C. 100, at para. 44. The phrase “caused or contributed” originates in the Negligence Act, R.S.O. 1990, c. N.1, at s. 1, and is the normative test applied by this court, as set out in Sacks v. Ross, at para. 117, and embodied in the “but for” test prescribed by the Supreme Court in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8. In other words, “but for” the alleged delay would the plaintiff have suffered the unfavourable outcome? (Nothing in Sacks v Ross revived the “material contribution to injury” test.) The trial judge found that Mr. White failed to prove that the delay in treatment caused or contributed to his injuries. She noted: “Dr. Fong was not able to articulate what injury he says was avoidable.” The trial judge stated: "Dr. Fong agreed that most of Mr. White's outcome was unavoidable. The court finds this evidence is devastating to the plaintiffs' case."

[26] Counsel for the appellants argues that these words show the trial judge misapplied the legal test for causation, and effectively required him to establish that the respondents’ negligence was the “most significant” cause of the harm.

[27] I would not give effect to this argument. The trial judge was not setting out the legal test, but was simply making a finding about the evidence.

[28] Dr. Mele, testified that, analyzed in retrospect, by 4:10 p.m. on May 4 Mr. White was showing early stages of acute respiratory distress syndrome associated with sepsis. That condition results in an inflammatory cascade leading inevitably to remedial surgery for source control, and the administration of antibiotics. Dr. Mele testified that once the cascade set in, Mr. White needed corrective surgery (source control), antibiotics, and admission to the Intensive Care Unit for life support measures. Even if he had been taken to the operating room at 4:10 p.m. on May 4 and the antibiotic had been switched from Pip-Taz to Meropenem thereafter, Mr. White’s outcome would not have been different.

[29] Dr. Mele’s evidence was largely substantiated by the testimony of the infectious disease expert called by the appellants, Dr. Fong. He testified that unless appropriate antibiotics had been started by 5:00 p.m. on May 4 and source control over the leak had been achieved by 6:00 p.m. (through surgery, presumably), “most of” Mr. White’s outcome could not have been avoided.

[30] The evidence of both Dr. Mele and Dr. Fong was that the sepsis cascade was underway before Nurse Schweinbenz came on shift on May 4, at 7:00 p.m. Dr. Mele further stated that Mr. White’s outcome could not have been avoided. To the extent that Dr. Fong’s evidence contradicted this statement when he stated that most, but not all of the outcome was unavoidable, the trial judge was clear that she preferred Dr. Mele’s evidence and that she found Dr. Fong to be “evasive and not of assistance to the court.”

[31] Dr. Mele’s expert testimony is that the septic shock made initial admission to the ICU for life saving measures inevitable. In my view, this is supported in her testimony at pp. 49-51 of the May 25 transcript. First, she was asked whether sepsis that has caused organ injury or failure can be treated without the ICU. Dr. Mele said it could not. She was then asked at what point admission to the ICU was inevitable. She replied: “so after reading the medical chart, in my opinion, we know for a definite fact that he had evidence of multiple organ failure and septic shock at 7:15 a.m. in the morning of May 5th.”

[32] Dr. Mele noted that the “inflammatory cascade” does not occur instantaneously but develops over time. Thus, she concluded that no intervention after 4:10 p.m. on May 4 would have made any difference in the outcome, and by “the outcome” she meant admission to the ICU.

[33] In the end, she testified that the bulk of the 70 day ICU stay was caused by the unrelated bowel perforation.

[34] Accordingly, the trial judge found that Mr. White had failed to establish that, but for the alleged delay in treatment, his injuries would not have occurred. In particular, the trial judge found that "there is no evidence before this court articulating what specific injury Mr. White suffered that could have been avoided". She added:

The court finds there is no evidence to suggest that Mr. White's outcome would have been different if the surgery had been done six hours after 23:30 on May 4, or six hours after 02:00 or six hours after 04:30 on May 5, as compared to the actual surgery time which was 11:45. That is, a surgery done six hours after at 05:30, 08:00 or 10:30 would not have had a different outcome.

[35] The trial judge stated:

Based on Dr. Mele's complete review of the medical records, her opinion was the reason Mr. White remained in the ICU for 70 days was actually related to the bowel perforation he suffered following the second surgery. That is, it was not related to the anastomotic leak that was found on May 5. The court agrees that the protracted stay in ICU was caused by unrelated events. The court finds that prior to the second surgery, Mr. White's stay in the ICU would likely have been uneventful. This evidence was not challenged.

[36] With respect to the alleged failure to properly administer antibiotics, the trial judge noted that the respondents’ experts testified that a missed or delayed dose of Pip-Taz had no effect on the Mr. White’s outcome. Specifically, she looked at Dr. Salit’s testimony; he testified that any errors in antibiotic management on May 5 would have no contributory effect because Mr. White was already in septic shock at 6:00 a.m. on May 5.

[37] The trial judge also pointed to Dr. Mele’s testimony that even if Mr. White had been taken to the operating room and been switched to the proper antibiotic coverage by 4:10 p.m. on May 4, there would be no difference in outcome. Indeed, when asked specifically whether the delay of the administration of Pip-Taz resulted in Mr. White’s complications, Dr. Mele said:

I can’t imagine how one missed dose of pip-tazo would have been the direct result of any of his ensuing complications. Sepsis is such a complex inflammatory cascade that it was already well underway in progress at that time. (Emphasis added)

The trial judge went on to reject Dr. Fong’s argument that the delay in administering the antibiotics caused ICU myopathy or ICU neuropathy in favour of Dr. Mele’s evidence in which she testified she had never seen any support in medical literature suggesting that ICU myopathy or neuropathy are related to the timing of antibiotics.

[38] In my view, the trial judge’s findings were available to her on the evidence and do not constitute palpable and overriding errors.

[39] Moreover, these findings show that the trial judge was not confused about the proper test for causation. She was not requiring Mr. White to establish that the respondents’ negligence was the “most significant” cause of harm. On the contrary, the findings of the trial judge were that the plaintiff had failed to establish any harm, because Mr. White’s outcome would have been no different whether or not the alleged negligence occurred.

[40] Appellants’ counsel argued forcefully that he merely had to establish a causal connection between the alleged breach of the standard of care and Mr. White’s injury; there was no need to establish a connection between the injury and a particular loss, since damages had been agreed by the parties. However, the trial judge did not require proof of particular pecuniary loss. As mentioned above, the trial judge’s findings were that Mr. White’s injuries, not his pecuniary loss, were unavoidable; Mr. White was already in septic shock and his injuries were inevitable before the alleged negligence occurred.

[41] Appellants’ counsel is correct that there was evidence that delay in treatment can have adverse consequences on a patient’s outcome. What is missing here is an actual link between the delay in diagnosis and treatment, and Mr. White’s injuries. The trial judge rejected Dr. Fong’s evidence that the delay in treatment caused some harm to Mr. White. She preferred the respondents’ expert evidence on this point. These findings were open to her on the evidence and do not disclose a palpable and overriding error.

[42] In oral argument, the appellants stressed that their agreement with the respondents as to damages meant that they only had to prove “some harm” in order to establish causation. I do not think the parties made such an agreement. During the proceedings below, on November 27, 2017, Mr. Clements for the hospital said, “The plaintiff makes the statement that the plaintiff’s burden was only to prove that the negligent conduct likely caused some harm... My submission is that’s not the law… That standard is too low.” Mr. Harte did not object, as one would expect had there been an agreement that the appellants only had to prove “some harm” in order to establish causation. The agreement was solely with respect to the quantum of damages. I agree with appellants’ counsel that there was no need to link Mr. White’s injury with any particular pecuniary loss. But, as explained above, the appellants did not established that the alleged negligence caused or exacerbated Mr. White’s injuries.

C. Disposition

[43] For these reasons I would dismiss the appeal.

[44] As agreed by the parties, the respondents are entitled to costs of $20,000 all-inclusive.

Released: “P.L.” April 25, 2019

“P. Lauwers J.A.”

“I agree. C.W. Hourigan J.A.”

“I agree. G. Pardu J.A.”