Court of Appeal for Ontario

Date: 2022-07-28 Docket: C68860

Judges: Trotter, Coroza and Favreau JJ.A.

Between: In the Estate of Julia Stevenhaagen, deceased, by her Estate Trustee, John Stevenhaagen, Holly Stevenaagen and Brad Stevenhaagen, Plaintiffs (Respondents)

And: Kingston General Hospital, Dr. Gary N. Burggraf, Dr. Douglas R. Walker, Dr. I. Singh, Dr. John D. Ricketts, Dr. Lavallee, W. Tsui, V. Nair, Dr. Robert D. Tomalty, Brenda Beattie, M. Campbell, Kate Switzer, B. Brumh, The Toronto Hospital (also known as University Health Network), Dr. Peter R. McLaughlin, Dr. Ralph Edwards, Dr. Tirone E. David, Dr. Haggie and Dr. Yip, Jane Doe 2 and Dr. Yaron Sternbach, Defendants (Appellants)

Counsel: Darryl A. Cruz, Atrisha S. Lewis and Alana Robert, for the appellants Paul J. Pape and Mitchel McGowan, for the respondents

Heard: February 16, 2022 by video conference

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated August 31, 2020, with reasons reported at 2020 ONSC 5020.

Trotter J.A.:

A. Introduction

[1] Julia Stevenhaagen had a congenital heart condition. On October 18, 2002, when she was 46 years old, she underwent an angioplasty procedure at the Toronto General Hospital (“TGH”). Ms. Stevenhaagen’s aorta ruptured during the procedure. This caused a serious emergency: she was bleeding to death.

[2] Instead of consulting the cardiovascular surgery service at TGH, Dr. Peter R. McLaughlin (an interventional cardiologist) and Dr. Yaron Sternbach (a vascular surgeon) responded to the situation by themselves. They contained Ms. Stevenhaagen’s bleeding to a degree by inserting a covered stent, but her condition remained precarious.

[3] Hours passed before a cardiovascular surgeon was finally brought into the picture. When this happened, Ms. Stevenhaagen was immediately moved to the operating room where her aorta was successfully repaired. However, Ms. Stevenhaagen suffered serious injuries: paraplegia, paralysis of the left vocal cord, brain ischemia, left arm pain syndrome, and bladder and bowel dysfunction. She saw some improvement over the years until she died in 2012. The trial judge said Ms. Stevenhaagen’s injuries “resulted in her spending the last decade of her life as an invalid.”

[4] After a 22-day trial, Drs. McLaughlin and Sternbach were found liable for Ms. Stevenhaagen’s injuries. Damages were settled between the parties.

[5] Dr. McLaughlin and Dr. Sternbach appeal the trial judge’s judgment. Their principal submission is that the trial judge erred in finding that causation had been established. The appellants further submit that the trial judge erred in finding that they failed to meet the standard of care by failing to consult with a cardiovascular surgeon in a more timely manner, resulting in a lengthy delay in getting Ms. Stevenhaagen to the operating room sooner. Finally, Dr. Sternbach contends that he should not have been found liable at all because Dr. McLaughlin made the critical decisions about Ms. Stevenhaagen’s care.

[6] The following reasons explain why I would dismiss Dr. McLaughlin’s appeal. I would also dismiss Dr. Sternbach’s appeal. His liability was established in the circumstances.

B. Factual Background

[7] The extensive medical evidence adduced at trial was highly technical and complicated. It is distilled in the trial judge’s thorough reasons for judgment. Accordingly, the following overview draws heavily on his reasons. The evidence is considered in more detail, as necessary, when discussing the grounds of appeal.

(1) Ms. Stevenhaagen’s Condition and Prior Treatments

[8] Ms. Stevenhaagen was diagnosed with a coarctation of the aorta in 1975. In her case, it was a narrowing of her descending thoracic aorta, which travels downwards through the chest. This is a particularly difficult location to reach through catheterization because it is located on the “far side” of the aortic arch (which curves 180 degrees over the heart).

[9] In 1975, Ms. Stevenhaagen had a thoracotomy, a form of open surgical repair, to her aorta. However, by 1997, problems presented again. The narrowing of her descending thoracic aorta caused high blood pressure in Ms. Stevenhaagen. She experienced a “pressure gradient” – abnormally high blood pressure above the coarctation, and low blood pressure below it. On March 23, 1999, Ms. Stevenhaagen underwent a catheterization procedure in Kingston, Ontario. The procedure was not completed because an appropriate stent was not available.

[10] On May 28, 1999, the procedure was attempted again. This time a stent (referred to hereafter as “the Kingston stent”) was successfully placed, but it failed to fully open at one end. Ms. Stevenhaagen’s hypertension persisted.

(2) Treatment at TGH

[11] In July of 2001, Ms. Stevenhaagen’s Kingston doctors referred her to Dr. McLaughlin at TGH. He consulted with Ms. Stevenhaagen about inserting a balloon into the Kingston stent to open it up and increase blood flow. Dr. McLaughlin described the risk of this procedure as relatively low – up to 2% for death, stroke, or the need for cardiac surgery. However, expert evidence at trial, which the trial judge accepted, characterized the procedure as “very high risk”, one which required pre-planning in the event of a tear. This is discussed in more detail below.

[12] The procedure was performed on October 18, 2002, commencing at 8:44 a.m. Ms. Stevenhaagen was taken to the catheterization laboratory (known as the “Cath Lab”). Dr. McLaughlin inserted a balloon in an effort to dilate the coarctation by opening up the Kingston stent. The balloon burst. He attempted the procedure with another balloon, which also burst. The second one caused Ms. Stevenhaagen’s aorta to rupture. This was discovered at 10:14 a.m. Ms. Stevenhaagen complained of pain in her left shoulder and arm. This was now a serious emergency.

[13] Cardiovascular surgery was paged almost immediately, not at Dr. McLaughlin’s behest, but apparently by an unidentified person in the Cath Lab. Dr. Anthony Ralph-Edwards, a cardiovascular surgeon, answered the page and attended at the Cath Lab within minutes. After determining that his assistance was not required, he left without Dr. McLaughlin apprising him of Ms. Stevenhaagen’s condition. Nobody told Dr. Ralph-Edwards that Ms. Stevenhaagen’s aorta had ruptured.

[14] Dr. McLaughlin asked that Dr. Sternbach be paged to the Cath Lab. Dr. Sternbach was operating on another patient at the time. Nonetheless, he arrived at the Cath Lab at 10:29 a.m. and recognized the gravity of the situation immediately. In the meantime, Dr. McLaughlin had been using a balloon to tamponade the aortic tear in an attempt to stop the bleeding. This was a difficult and delicate procedure. He had to continually make adjustments to keep the balloon in place against the pressure of the blood flow. He deflated the balloon every couple of minutes to preserve blood flow to Ms. Stevenhaagen’s lower organs. I pause here to note that Dr. McLaughlin testified that he did not believe it was prudent to take Ms. Stevenhaagen to the operating room at this time because it would have compromised the effectiveness of his use of the balloon to stop the bleeding. Any movement of it would have caused what Dr. McLaughlin viewed as an unaffordable amount of blood loss.

[15] Dr. McLaughlin and Dr. Sternbach decided that they should attempt an endovascular procedure to stop the bleeding and restore proper blood flow. Dr. Sternbach believed that it would be possible to insert a covered stent into the aorta to stop the bleeding. He went to retrieve a stent. He found one that he thought was suitable (known as the “Cook stent”). But this stent was not designed for this purpose; it was not contoured to fit the thoracic aorta. Consequently, Dr. Sternbach was required to obtain permission from Health Canada to use the device in this manner, which he did.

[16] Dr. Ralph-Edwards was paged to the Cath Lab a second time. By this time, Dr. Sternbach was present. Again, Dr. Ralph-Edwards was sent away without any meaningful consultation with Dr. McLaughlin and/or Dr. Sternbach. The defence experts at trial agreed that it was “unfortunate” that no consultation took place with a cardiovascular surgeon at the time. Dr. Benoît de Varennes, an expert for the plaintiffs, testified that, had a cardiovascular surgeon been told that the attempted repair would utilize a stent that was not designed for this purpose, they would have advocated taking Ms. Stevenhaagen to the operating room. [1]

[17] The procedure to insert the Cook stent began at 11:03 a.m. It was deployed at 11:28 a.m. However, Ms. Stevehaagen continued to present with a high blood pressure gradient. This signalled a severe restriction of blood flow. The stent was adjusted by 12:35 p.m., which seemed to improve her condition. However, this stabilization was only temporary.

[18] There was little evidence about what happened during the next half hour – 12:35 p.m. to 1:05 p.m. Dr. Sternbach sutured her left groin site closed. During this time, Ms. Stevenhaagen’s pH levels were variable. She experienced facial swelling, indicating superior vena cava obstruction and haemodynamic instability. Ms. Stevenhaagen was in a seriously compromised state. Dr. William Hellenbrand, one of the plaintiffs’ experts, was of the opinion that this situation signalled the need for prompt surgical intervention. Dr. de Varennes, said that Ms. Stevenhaagen was “a ticking time bomb.”

[19] It took another 35 minutes (from 1:05 p.m. to 1:40 p.m.) to prepare Ms. Stevenhaagen to be transferred out of the Cath Lab. This involved the removal of tubes, further suturing, and securing ventilation tubes and equipment. Despite Ms. Stevenhaagen having apparently stabilized by 12:35 p.m., more than an hour earlier, cardiovascular surgery had still not been consulted.

[20] Ms. Stevenhaagen arrived at the Coronary Care Unit (“CCU”) at approximately 1:45 p.m. Dr. McLaughlin visited her in the CCU at 2:00 p.m. She appeared to be trending in a positive direction, but by 2:20 p.m., Dr. McLaughlin was concerned that Ms. Stevenhaagen had become unstable again.

[21] Enter Dr. Ralph-Edwards once again. He was paged for a third time at 2:20 p.m. This time he was summoned to the CCU. After examining Ms. Stevenhaagen, he diagnosed ongoing bleeding from the aortic arch and a gathering hematoma in her chest. He feared that Ms. Stevenhaagen may have already sustained neurological injury. He expressed this concern to her family.

[22] At 2:30 p.m., after consulting with Dr. Tirone David, Dr. Ralph-Edwards was of the opinion that surgery was urgently needed and immediately arranged for an operating room. The attending anaesthetist made a note of Ms. Stevenhaagen’s arrival in the operating room 15 minutes later, at 2:45 p.m. The cardiopulmonary by-pass began at 3:24 p.m. Dr. Ralph-Edwards and Dr. Tirone David repaired the aortic tear. The Kingston and Cook stents were removed during this procedure.

[23] An important issue at trial was how quickly Ms. Stevenhaagen could have been taken from the Cath Lab to an operating room had Drs. McLaughlin and Sternbach seen fit to do so. The anaesthetist, Dr. Jane Heggie, testified that it would take 10 minutes to move a critically ill and ventilated patient from the Cath Lab to the operating room and onto the operating table. Dr. Ralph-Edwards estimated that it would take 15 to 20 minutes. Dr. Tirone David testified that it was a “common occurrence in our lives” that cardiac surgery would have to respond to an emergency like Ms. Stevenhaagen’s. If there were another planned surgery that day, the patient would be bumped to respond to the “dying patient”. Asked how soon such a patient could be transferred to the operating room, Dr. David said: “Fairly fast. Our hospital is geared to take care of this type of patient. I’ll say 15, 20 minutes…we might be making the incision into the chest – or belly, or whatever the emergency is”.

[24] Once the surgery was complete, and because Ms. Stevenhaagen was hemodynamically compromised, Drs. David and Ralph-Edwards could not properly close her chest. This was done several days later. In the meantime, Ms. Stevenhaagen showed significant neurological impairment. She initially demonstrated quadriplegia, but this improved to paraplegia. A CT scan of her head was performed at TGH on October 22, 2002. This imaging revealed neurological abnormalities. The cause of these abnormalities is discussed below.

[25] Ms. Stevenhaagen remained at TGH for about a month. She was transferred to Kingston General Hospital on November 19, 2002. On December 13, 2002, Ms. Stevenhaagen underwent another CT scan, again showing abnormalities. On December 17, 2002, she was transferred to a rehabilitation facility in Kingston – St. Mary’s of the Lake Hospital. She remained there until August of 2003. Ms. Stevenhaagen never walked again. She required a wheelchair for the rest of her life, which ended on September 21, 2012.

(3) The Cause of Ms. Stevenhaagen’s Deficits

[26] As discussed below, one of the main issues at trial was causation: did Dr. McLaughlin and/or Dr. Sternbach, through their actions and/or omissions, cause Ms. Stevenhaagen’s injuries or deficits? The plaintiffs contended that her injuries were caused by the failure to get her into the operating room promptly after her aortic rupture was discovered or, at the latest, after she was temporarily stabilized by the placement of the Cook stent. It was the defendants’ position that the injuries were caused by emboli from the open-heart surgical procedure performed by Dr. David and Dr. Ralph-Edwards.

(a) Obstruction of the Aorta

[27] This issue must be seen in light of the difficulties Ms. Stevenhaagen experienced after the Cook stent was in place. There was evidence that the stent was obstructing her thoracic aorta, cutting off the flow of blood “downstream”. The trial judge summarized the evidence of Dr. Jerry Chen on this point, an expert called by the plaintiffs (at para. 204):

Dr. Chen felt that there should have been a prompt referral to cardiac surgery at that point, because the position of the stent graft was creating a significant obstruction to the flow of blood to the organs downstream and was incompatible with a long-term solution. According to Dr. Chen, the resulting interruption of blood flow would have decreased circulation to those organs, including Ms. Stevenhaagen’s spinal cord, thereby contributing to her paraplegia.

[28] Estimates varied on the extent of the obstruction. Dr. Chen estimated as much as 80%. Dr. David gave the opinion that it was much less, around 50%. Still, and without resolving this discrepancy, the trial judge accepted that the obstruction was serious and it was starving her organs and lower spinal cord of oxygenated blood.

(b) Dr. Jane Heggie

[29] The appellants rely heavily on the evidence of Dr. Jane Heggie, the attending anaesthetist. Dr. Heggie made a note, at around 2:45 p.m., that when Ms. Stevenhaagen arrived in the operating room, she was “sedated + paralyzed on arrival” and “moving all 4 limbs.” The appellants contend that this is the key to the case – it proved that Ms. Stevenhaagen’s deficits had not occurred prior to surgery. One of the defendants’ experts, Dr. Daniel Selchen, called it “lynchpin” evidence that supported his theory that the brain infarcts suffered by Ms. Stevenhaagen were surgery-related emboli. But as discussed below, the trial judge found Dr. Heggie’s evidence to be unreliable.

(c) CT Imaging

[30] Related to this issue is the CT imaging of Ms. Stevenhaagen’s brain. The issue was whether she suffered watershed infarcts, which would be indicative of a lack of perfusion of blood to the brain. This theory was consistent with the plaintiffs’ position that the delay in obtaining cardiovascular surgical intervention left Ms. Stevenhaagen in a compromised state which caused these injuries. The competing approach, advanced by the defendants, was that the CT imaging showed evidence of embolic infarcts, which more likely than not would have been the result of the surgical procedure.

[31] As noted above, Ms. Stevenhaagen underwent two CT scans of her brain. The first was performed on October 22, 2002. The second was on December 13, 2002. Both indicated neurological abnormalities. Dr. Selchen, the stroke neurologist called by the defendants, reviewed the imaging of the first scan but reviewed only the radiology report for the second. He concluded the scans supported the defence’s theory of embolic infarcts.

[32] Dr. Steven Dommann, an expert neurologist called by the plaintiffs, reviewed the reports (but not the imaging) for both scans. He concluded, in contrast to Dr. Selchen, that the scans indicated watershed infarcts. On cross-examination, Dr. Dommann agreed he would defer to a stroke neurologist who had actually reviewed the native imaging of a CT scan. Although Dr. Selchen had reviewed the imaging of the first scan (and Dr. Dommann had not), neither Dr. Dommann nor Dr. Selchen reviewed the imaging of the second scan (December 13, 2002); both relied on the radiologist’s report. Dr. Dommann disagreed with Dr. Selchen’s overall opinion about the cause of Ms. Stevenhaagen’s cerebral infarcts. As discussed below, the trial judge explained why he preferred the opinion of Dr. Dommann.

C. Issues on Appeal

[33] The appellants submit that the trial judge erred in concluding that they did not meet the standard of care by failing to obtain an immediate cardiac surgery consult after the endovascular repair. They point to the fact that there was already a surgeon directly involved in Ms. Stevenhaagen’s care – Dr. Sternbach.

[34] More forcefully, the appellants submit that the trial judge erred by misapplying the “robust and pragmatic” approach to causation. They submit that it was not proven that the delay in performing the surgery caused Ms. Stevenhaagen’s injuries. The appellants further submit that the trial judge should have recognized a crucial gap in the plaintiffs’ case – it was not proved that, had Dr. McLaughlin and Dr. Sternbach arranged a cardiac consult sooner, Ms. Stevenhaagen would have had surgery any earlier. Moreover, the trial judge erred in transforming a number of possibilities into a finding of probability.

[35] The respondents submit that the trial judge did not err in finding that the standard of care was breached. They contend that the expert evidence established that, when Ms. Stevenhaagen’s aorta ruptured, open heart surgery was inevitable and urgent. The respondents further submit that the appellants’ approach was wrongheaded because, while an endovascular approach to a ruptured aorta is favoured today, at the time of these events, in 2002, cardiac surgery was the “gold standard”. Ms. Stevenhaagen was denied this standard.

[36] On the issue of causation, the respondents submit that the trial judge did not confound possibilities with probabilities. He applied the proper standard in finding that it was more likely than not that the hemodynamic instability Ms. Stevenhaagen experienced after the final deployment of the Cook “caused or substantially contributed to the neurological injuries that she subsequently suffered.” On the issue of whether an earlier consultation would have resulted in earlier surgery, the respondents submit that the evidence of Dr. de Varennes establishes that, had a cardiovascular surgeon been consulted, the opinion would have been to get Ms. Stevenhaagen to the operating room as soon as possible.

D. The Standard of Care

(1) Introduction

[37] Even though the appellants place greater emphasis on their challenge to the trial judge’s causation finding, it is convenient to consider causation in light of the trial judge’s findings on the standard of care, which are also under attack.

[38] At trial, the plaintiffs alleged that the standard of care was breached multiple ways: (a) there was no back-up plan before the catheterization procedure commenced; (b) there should have been a consultation with cardiovascular surgeons as soon as the aortic rupture occurred; (c) the endovascular response was not appropriate because Dr. Sternbach lacked sufficient experience with the procedure and an approved stent was not available; and (d) after deploying the Cook stent, an immediate cardiovascular consultation was required, the failure of which resulted in the loss of valuable time in getting Ms. Stevenhaagen to the operating room. The trial judge accepted the bases of liability set out in (b) and (d).

(2) The Trial Judge’s Reasons

[39] Critical to the trial judge’s conclusion on the standard of care was what he described as “antiquity.” That is, he accepted the uncontradicted evidence at trial that, in 2002, the “gold standard” for the treatment of an aortic tear was open heart surgery. At trial, many years later, both Dr. McLaughlin and Dr. Sternbach acknowledged this historical fact. The trial judge said, at para. 122: “The world of interventional cardiology has come a long way since 2002. Open surgery would now be the exception rather than the rule. A much wider range of stent grafts is available, including stents that are designed for the architecture of the aorta.”

[40] As discussed below, the trial judge ultimately found that the standard was breached by the failure to consult with cardiac surgeons much sooner in the aftermath of the aortic tear. However, he also identified other failings. While not themselves amounting to breaches of the standard of care, they provide a rich context for what went wrong that day.

[41] For instance, the trial judge found that the arrangements in place for Ms. Stevenhaagen’s surgery were “incomplete” and “suboptimal”. This finding turned on the calibration of the risk inherent in the procedure that was attempted. Contrary to Dr. McLaughlin’s opinion that it was “low risk”, the trial judge accepted the evidence of Dr. William Hellenbrand, who gave expert opinion evidence that the procedure was “very high risk” and required proper planning in the event of a tear. In the circumstances, Dr. McLaughlin should have arranged for a surgical back-up in advance.

[42] This ought to have been apparent to Dr. McLaughlin and Dr. Sternbach in light of the fact that one of their patients had recently died in similar circumstances. Moreover, Dr. McLaughlin did not even consult with Dr. Sternbach ahead of time about Ms. Stevenhaagen’s procedure; Dr. Sternbach only learned of her presence at the hospital when he was paged to respond to the emergency. However, given that the appellants had access to the on-call vascular and cardiac surgical teams at TGH, the trial judge did not find that the failure to have a plan in place breached the standard of care.

[43] The trial judge found that the employment of the endovascular response to the emergency did not fall below the standard of care expected of the doctors in the circumstances. He held that, at para. 197, “the judgment calls made by Drs. McLaughlin and Sternbach, which led to the attempt of an endovascular repair, were reasonable in all of the circumstances… I find that the election to proceed with an endovascular repair was reasonable”.

[44] The trial judge found that Dr. McLaughlin fell below the standard of care by failing to consult with a cardiovascular surgeon. This conclusion is complicated by the identification of two points in time when this is said to have occurred – when Ms. Stevenhaagen’s aorta ruptured (at 10:14 a.m.) and once the Cook stent was properly positioned (by 12:35 p.m.). I will explain.

[45] As soon as he realized that Ms. Stevenhaagen’s aorta had ruptured, Dr. McLaughlin told a nurse to “Page Dr. Sternbach”. He did not immediately page cardiac surgery. Dr. McLaughlin testified that he needed Dr. Sternbach’s opinion about the feasibility of stemming the bleeding with a covered stent. Nonetheless, even though Dr. McLaughlin did not think it was necessary to consult cardiac surgery, someone else in the Cath Lab did. This resulted in Dr. Ralph-Edwards’ first attendance. Ultimately, he was sent away, without being apprised of Ms. Stevenhaagen’s condition. After being paged a second time, Dr. Ralph-Edwards was sent away again, without any consultation.

[46] None of the expert witnesses were of the opinion that it would have been inappropriate to obtain a cardiovascular surgical consult at that time. The trial judge said (at para. 180): “I would go further. Given the wealth of resources available at Toronto General Hospital, it was inexcusable that such a consultation did not occur.”

[47] The trial judge considered the concerns expressed by Drs. McLaughlin and Sternbach that there were risks associated with transferring Ms. Stevenhaagen to the operating room while trying to control her bleeding with the balloon. However, he was clearly skeptical of this explanation. As he said at para. 185:

Interestingly, although Dr. McLaughlin testified that the risk of a “blind” transfer of Ms. Stevenhaagen from the Cath Lab to an operating room while trying to maintain a balloon tamponade in place, was too great, neither the operative notes of Dr. Sternbach or Dr. McLaughlin made any reference to the potential for unsafe transportation to an operating room. Rather, the reason articulated for proceeding with an endovascular approach was stated to be that “in the setting of metal stent, surgical intervention was postulated to be excessively difficult and likely to be more time consuming, therefore, an endovascular solution was sought”. A conclusion reached without having consulted with a cardiac surgeon. [Emphasis added.]

[48] The trial judge’s ultimate conclusion with respect to the failure to consult at this juncture is found in paras. 186-187:

I do not, accordingly, accept the risk of transporting Ms. Stevenhaagen from the Cath Lab to an operating room as a basis for not consulting with cardiac surgery at all. There should have been a communication between the three consultants [i.e., Drs. McLaughlin, Sternbach and Ralph-Edwards]. A more fully informed decision would then have been made.

I conclude that the failure to consult with cardiac surgery was not just, as Dr. De Rose put it, “unfortunate”. It was a failure that fell below the standard of care owed to Ms. Stevenhaagen in the circumstances, for which Dr. McLaughlin, as the lead physician, was responsible. [Emphasis added.]

[49] Having found this breach, the trial judge was not satisfied on a balance of probabilities that Dr. McLaughlin and Dr. Sternbach would have made a different decision even had they consulted with cardiac surgery. He found that: “The attempt at an endovascular repair, deploying the Cook stent, was a judgment call that reasonable physicians could have made in the circumstances” (para. 228).

[50] The trial judge next considered asserted liability based on Dr. Sternbach’s abilities and his use of the Cook stent. He found that the use of the Cook stent was reasonable. At para. 202, he said: “It offered the prospect of addressing the immediate need to stem the escape of blood through the rupture without the need to risk moving Ms. Stevenhaagen to the operating room while attempting to maintain a balloon tamponade in place.”

[51] The trial judge then turned to the decision to transfer Ms. Stevenhaagen to the CCU after the Cook stent was in place. It appeared to Dr. McLaughlin that she had stabilized and that she should be sent to the CCU to recover and where next steps could be considered. But as the trial judge observed at paras. 222-224:

However, with the exception of Drs. McLaughlin and Sternbach, the other medical witnesses saw surgery as inevitable. There was a stent in Ms. Stevenhaagen’s thoracic aorta which was not designed for that part of the anatomy. It did not and could not conform with the curvature in the vicinity of the aortic arch. While there may have been disagreement about the degree of obstruction, there was undoubtedly an obstruction after the Cook stent was placed. There were also still a number of indications that her situation was unstable.

Although the insertion of the stent had achieved its most pressing and urgent need - arresting the life-threatening escape of blood through the rupture in Ms. Stevenhaagen's aorta - I accept the evidence of the witnesses who say that once that purpose had been achieved, Ms. Stevenhaagen should have been moved immediately to the operating theatre. That was clearly the option which presented the least risk to her. The possibility that she might be able to regain some strength and provide the physicians with the luxury of more time to reflect on what the next steps should be had to be weighed against the risks of doing so.

As a number of the medical witnesses said, time was of the essence. While the decision to insert a stent, rather than transport Ms. Stevenhaagen immediately to the operating theatre was not, in my judgment, an unreasonable one, the decision to send her to the CCU instead of the operating room was, in all of the circumstances, not one which similarly situated reasonable physicians would have made. [Emphasis added.]

[52] The trial judge’s ultimate finding on this point is found in para. 229:

Having got Ms.Stevenhaagen to a point where the bleeding seemed to have been arrested and her condition stabilised, she should have been immediately transferred to the operating room. The risk of further injury and complications following the completion of Dr. Sternbach’s endovascular response significantly outweighed any benefit that may have been gained from giving Ms. Stevenhaagen an opportunity to recover. Dr. McLaughlin should have arranged for an immediate consultation with cardiac and/or thoracic surgery following deployment of the Cook stent and initiated the transfer of Ms. Stevenhaagen to cardiac surgery as soon as it was safe to do so. Instead, supported by Dr. Sternbach, it was determined that Ms. Stevenhaagen should be transferred to the CCU. This error breached the standard of care which was owed to Ms. Stevenhaagen. [Emphasis added.]

(3) Discussion

[53] The trial judge gave careful and considered reasons on the issue of the standard of care being breached in the circumstances. His conclusions rested on ample evidence that, on a balance of probabilities, the standard of care had been breached. I see no error.

[54] An important contextual feature of the trial judge’s reasons was what he referred to as “antiquity.” When Ms. Stevenhaagen was treated by the appellants in 2002, the “gold standard” in these circumstances was open-heart surgery. Yet, in the face of a catastrophic mishap during an angioplasty procedure, no thought was given to consulting with a cardiovascular surgeon. I agree with the trial judge’s conclusion that this was “inexcusable” given the vast resources available at TGH, including the services of Dr. Tirone David, who the trial judge described as a world-renowned cardiac surgeon. Indeed, along with Dr. Ralph-Edwards, Dr. David successfully repaired Ms. Stevenhaagen’s aorta. There was no evidence that this was anything less than a permanent fix.

[55] The trial judge was fair in his approach on the failure to consult. He found that this should have occurred immediately, as soon as the emergency arose. However, he also found that the path taken by Dr. McLaughlin and Dr. Sternbach to stem the bleeding through an endovascular procedure was reasonable at the time. But the duty to consult persisted. Once the Cook stent was in place, and then properly adjusted, the failure to consult remained below the requisite standard of care. On the preponderance of evidence, the trial judge found that the need for cardiovascular surgery was both inevitable and imminent. Ms. Stevenhaagen was in a very compromised state, a “ticking time bomb” according to Dr. de Varennes.

[56] The continued severity of the situation was not recognized by Dr. McLaughlin until Dr. Ralph-Edwards was paged – for a third time – after Ms. Stevenhaagen had been transferred to the CCU. Dr. McLaughlin was still labouring under the view that the Cook stent might have been a permanent fix, even though the evidence demonstrated that the makeshift stent was obstructing Ms. Stevenhaagen’s blood flow “downstream.” Although the extent of the obstruction was contentious, the evidence as a whole proved that it was significant. As soon as Dr. Ralph-Edwards was consulted, in conjunction with Dr. David, surgery was commenced in very short order, something that could have been arranged much earlier. In the meantime, Ms. Stevenhaagen’s condition worsened.

[57] I would dismiss this ground of appeal.

E. Causation

(1) Introduction

[58] The appellants submit that the trial judge erred in finding that, even if they failed to meet the standard of care, this breach was the cause of Ms. Stevenhaagen’s deficits. They submit that the trial judge failed to make findings about when Ms. Stevenhaagen’s injuries occurred. This was compounded by the trial judge’s failure to make findings on whether she would have been taken to the operating room any earlier if a consultation had taken place earlier, and whether Ms. Stevenhaagen’s unfortunate outcome would have been prevented had she received surgery sooner.

(2) The Trial Judge’s Reasons

[59] As noted above, the trial judge initially found that the duty was breached once Ms. Stevenhaagen’s aorta ruptured and the doctors failed to consult cardiac surgery. However, the evidence did not establish that the decision to employ an endovascular repair would have been any different had cardiovascular surgery been consulted. Consequently, the analysis shifted to the end of that procedure, when the Cook stent was in place, and when Ms. Stevenhaagen appeared to be stable. The trial judge provided two points in time relevant to this event – 12:35 p.m., when the stent was properly in place and 1:05 p.m., when the procedure was noted as being complete. Therefore, it had to be proved on a balance of probabilities that the damage occurred after that point in time.

[60] The trial judge acknowledged the complexity of the situation. He made the following observations, at paras. 248-249:

At the risk of oversimplifying the evidence and arguments on the subject of causation, I make the following observations.

Appreciating that the experts disagree on when the damage was most likely done, they generally agree that some or all of the following factors could have had a bearing on the outcome:

a. After the initial rupture Ms. Stevenhaagen suffered significant loss of blood until Dr. McLaughlin was able to insert the balloon tamponade;

b. Thereafter, Dr. McLaughlin periodically manoeuvred the balloon to allow some perfusion of the descending aorta and everything that that blood vessel supplies (including the major organs and the spinal cord);

c. Ms. Stevenhaagen was haemodynamically unstable for most of the time between the rupture and being placed on cardiopulmonary by-pass;

d. Ms. Stevenhaagen experienced hypovolemic shock as a result of significant loss of blood;

e. During a period of haemodynamic instability, Ms. Stevenhaagen was at a heightened risk of strokes;

f. The haemodynamic status of a patient before undergoing complex cardiac surgery can play a significant role in the ultimate outcome (Dr. de Varennes, the only cardiac surgeon to testify as a Rule 53 expert witness explained that the longer the period of such instability, the greater the possibility of an adverse outcome);

g. There is a higher risk of neurological injury during or resulting from cardiac surgery than during vascular surgery of the type undergone by Ms. Stevenhaagen; and

h. The use of factor VII – a measure of last resort when everything else has failed to stop bleeding – which was deployed during Ms. Stevenhaagen’s cardiac surgery introduces a very potent coagulant that can cause clotting. The use of factor VII is associated with increased rate of mortality and stroke (although Dr. de Varennes expressed the opinion that factor VII would not have increased the risk of stroke, Dr. Selchen, a stroke neurologist, did: I accept Dr. Selchen’s evidence on that point).

[61] The trial judge’s ultimate conclusion on causation is found in paras. 274-275 of his reasons:

Having carefully considered and weighed the substantial evidentiary record, I am satisfied that the neurological injuries which Ms. Stevenhaagen sustained more likely than not occurred during the period of haemodynamic instability which she experienced between the final deployment of the Cook stent in the Cath Lab and the commencement of surgery in the operating room, and/or that her injuries occurred during or following the cardiac surgery because of her compromised state, resulting from her poor haemodynamic status going into that surgery due to the delay in moving her to surgery following the completion of the procedure in the Cath Lab.

Having found that Dr. McLaughlin and Dr. Sternbach fell below the standard of care when they failed to (i) arrange for the transportation of Julia Stevenhaagen directly from the Cath Lab to the operating room, and (ii) make the appropriate and timely cardiac surgical consultations which would have affected that outcome, I am satisfied on a balance of probabilities that, but for this breach of the standard of care, Julia Stevenhaagen would not have suffered the neurological injuries that resulted in her spending the last decade of her life as an invalid. [Emphasis added.]

(3) Discussion

[62] The appellants submit that the trial judge erred in finding that causation had been established in the circumstances. They submit that the trial judge erred in the application of the robust common-sense approach to causation discussed in the authorities by transforming mere possibilities into proof on a balance of probabilities. They further contend that the trial judge was unduly focused on medical causation to the neglect of the factual cause of Ms. Stevenhaagen’s injuries. That is, he failed to make necessary findings about what would have happened to Ms. Stevenhaagen if the appellants had not fallen short of the standard of care. This failure, the appellants submit, is due to shortcomings in the evidence adduced at trial.

(a) Possibilities and Probabilities

[63] I do not accept the submission that the trial judge failed to apply the proper standard of proof in determining whether causation had been properly established. I acknowledge that, in the course of making his observations, set out in para. 59 above, the trial judge refers to factors that “could have had a bearing on the outcome”. However, the trial judge was merely setting out the various factors at play at the time. More importantly, the passage quoted above (from paras. 274-275) of the trial judge’s reasons demonstrates that he was well focused on the requirement that the plaintiffs discharge their burden on a balance of probabilities.

[64] The trial judge properly identified the test for causation established in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. He specifically referenced McLachlin C.J.’s prescription, at para. 9 (of Clements): “The ‘but for’ causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.”

[65] For causation purposes, the important time was 12:35 p.m. (when the Cook stent was properly in place), or 1:05 p.m. at the latest (when the entire procedure was noted as being complete). In order to be found liable, the plaintiffs were required to prove that Ms. Stevenhaagen’s injuries happened after these time markers.

[66] The trial judge addressed his mind to this very issue. It is true that he referred to the “possibility” of injury at an earlier time, but he rejected that conclusion and applied the proper standard of proof. This is reflected in the following paragraph of his reasons (at para. 266):

As both of the neurologists and some of the other witnesses acknowledged, there is a possibility that neurological damage resulted from what happened in the first two hours following the discovery of the rupture. But as I perceive the evidence, it is more likely than not that the haemodynamic instability which Julia Stevenhaagen experienced from the final deployment of the Cook stent on 18 October 2002 until 15:24, when cardiopulmonary by-pass began, caused or substantially contributed to the neurological injuries that she subsequently suffered. [Emphasis added]

[67] I would dismiss this ground of appeal.

(b) Applying the “but for” Test

[68] The appellants submit that the trial judge did not properly apply the “but for” test. They submit that he unduly focused on medical causation, as opposed to factual causation. That is, the trial judge failed to come to terms with what actually happened to Ms. Stevenhaagen, when did her injuries occur, and most critically, would her outcome have been any different had the doctors not been negligent.

[69] The appellants rely on the decision of this court in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused, [2017] S.C.C.A. No. 491, a case that also turned on the issue of causation. Writing for the court, Lauwers J.A. discussed the proper causal reasoning process in the following way, at paras. 47 and 48:

Regardless of whether the defendant's breach of the standard of care is an act or an omission, the trier of fact's cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.

There are two possible outcomes to the trier of fact's imaginative reconstruction of reality at the second step. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. On the other hand, if the trier of fact infers from the evidence that the plaintiff would not likely have been injured without the defendant's act or failure to act, then the "but for" test for causation is satisfied: but for the defendant's act or omission, the plaintiff would not have been injured. The defendant's fault, which justifies liability, has been established.

See also paras. 98-100.

[70] Although the trial judge did not specifically identify this framework, it is clear from his thorough reasons that he engaged in this analysis. His reasons are rife with references to the relevant timeframes. The trial judge’s causation analysis was firmly focused on what happened to Ms. Stevenhaagen after the deployment of the Cook stent. He realized that any injury occurring before this event would not have been caused by any negligent act of the appellants. Moreover, and as noted from paras. 274-275 of his reasons (reproduced above), the trial judge was satisfied that, had the appellants made the appropriate consultations and arranged to move Ms. Stevenhaagen directly from the Cath Lab to the operating room, she would not have suffered her neurological injuries. The trial judge accepted expert evidence that cardiovascular surgery was both inevitable and, given Ms. Stevenhaagen’s compromised state, urgently required. These findings were open to the trial judge on the record.

[71] The appellants also rely upon Salter v. Hirst, 2011 ONCA 609, 107 O.R. (3d) 236, leave to appeal refused, [2011] S.C.C.A. No. 503, in which this court concluded that, although the doctor was negligent in not transferring the patient to another hospital for further testing (which would have yielded a more accurate diagnosis), there was no expert evidence to support the conclusion that the delay caused or contributed to the patient's paraplegia.

[72] Salter was distinguished in Uribe v. Tsandelis, 2021 ONCA 377, a case involving a delay caused by the doctor in arranging for a prompt caesarian section procedure for his patient. Benotto J.A. wrote, at para. 42:

Here there was direct evidence from which the jury could conclude that, had the appellant not breached the standard of care, the caesarian section would have been done before the damage occurred. The jury found that the appellant breached the standard of care because he did not prepare for delivery after the first deceleration. Had he done so he would have secured the operating room. The operating room would have been ready for Ms. Uribe and the baby would have been delivered before the damage.

[73] Similarly, in this case, the evidence allowed the trial judge to conclude on a balance of probabilities that Ms. Stevenhaagen’s injuries could have been prevented had the doctors consulted with a cardiovascular surgeon promptly after the Cook stent was in place.

[74] The trial judge’s conclusion involves two main components: first, that surgery would have actually occurred had cardiac surgery been consulted earlier; second, had the surgery occurred earlier, Ms. Stevenhaagen would not have incurred the injuries that she did. The trial judge resolved both inquiries in favour of the plaintiffs. He was entitled to do so on the record.

[75] There was ample evidence on which the trial judge could conclude that, had a timely consultation occurred, Ms. Stevenhaagen would have received the emergency surgery she required. As noted above, Dr. de Varennes was of the opinion that someone in Ms. Stevenhaagen’s condition would “have to go to the operating room as soon as possible”. Dr. Tirone David testified that, had he been informed of Ms. Stevenhaagen’s aortic rupture, he would have considered it an emergency, “bumped” his other scheduled patient, and assisted immediately. Both Dr. David and Dr. Ralph-Edwards estimated it would take some 15-20 minutes to prepare Ms. Stevenhaagen for surgery. Dr. Ralph-Edwards, who was on-call with no scheduled surgeries that day, further noted that TGH had an operating room generally available for emergencies. Therefore, had cardiac surgery been consulted, Ms. Stevenhaagen would have been rushed to the operating room immediately with cardiac surgeons ready to commence the procedure. Indeed, as soon as a proper consultation did take place, surgery was arranged very swiftly.

[76] Moreover, it was also open to the trial judge to accept that, but for the egregious delay and the inexplicable refusal to consult with a cardiovascular surgeon (even though one had previously been paged twice, and when a world-renowned surgeon was in the building), Ms. Stevenhaagen would not have sustained the injuries that she did. The trial judge found that Ms. Stevenhaagen entered a state of haemodynamic instability following the placement of the Cook stent. She arrived in the operating room in grave condition. But for the surgery, she would have surely died on that day; but for the negligent lapses in the care she received earlier, she would not have suffered her life-altering injuries.

[77] The appellants further submit that, in his causation analysis, the trial judge did not satisfactorily resolve the conflicting opinions of Dr. Selchen (embolic infarcts caused by the surgery) and Dr. Dommann (watershed infarcts cause by the lack of perfusion of blood due to delay in remedying the aortic tear with open heart surgery). To the extent that he preferred the opinion evidence of Dr. Dommann about the medical cause of Ms. Stevenhaagen’s neurological injuries, he erred in his analysis. I disagree. There was a sound basis for preferring the evidence of Dr. Dommann over Dr. Selchen and the trial judge gave adequate reasons for doing so.

[78] The trial judge was aware that Dr. Selchen had viewed the actual CT images of the first scan when Dr. Dommann had only viewed reports about these images. He appreciated that Dr. Dommann deferred to a certain extent to Dr. Selchen’s expertise in the area of strokes. However, the key to the resolution of this conflicting evidence lay in the manner in which the trial judge handled the evidence of Dr. Heggie, discussed above.

[79] Dr. Selchen’s opinion was tethered to Dr. Heggie’s observations pre-surgery that Ms. Stevenhaagen was “moving all 4 limbs”. He referred to this as “lynchpin” evidence. However, the trial judge did not share the same enthusiasm for this evidence. As he noted, at para. 259, Dr. Heggie was not asked to reconcile that observation with the rest of her notation that Ms. Stevenhaagen was “sedated + paralyzed on arrival.” As the trial judge said, “[n]or was she pressed on the circumstances in which a neurological examination could be undertaken on a fully anesthetised and intubated patient. In the absence of such explanations, I am unable to share the confidence derived by Dr. Selchen from Dr. Heggie’s annotation.” He ultimately found her evidence to be “unreliable” (at para. 272), a finding that he was entitled to make: Uribe, at paras. 41-42. In the circumstances, the trial judge made no error in his reliance on Dr. Dommann’s evidence concerning the cause of Ms. Stevenhaagen’s brain damage – watershed infarcts resulting from a lack of perfusion.

[80] Accordingly, I would dismiss this ground of appeal.

F. The Liability of Dr. Sternbach

[81] Dr. Sternbach submits that the trial judge erred in finding him liable for having merely “supported” the decision to not arrange for a consultation with a cardiovascular surgeon. To repeat what the trial judge said at para. 229 of his reasons (reproduced in full at para. 52 of these reasons):

Dr. McLaughlin should have arranged for an immediate consultation with cardiac and/or thoracic surgery following deployment of the Cook stent and initiated the transfer of Ms. Stevenhaagen to cardiac surgery as soon as it was safe to do so. Instead, supported by Dr. Sternbach, it was determined that Ms. Stevenhaagen should be transferred to the CCU. [Emphasis added.]

[82] Dr. Sternbach submits that was insufficient to find him liable for a decision that was Dr. McLaughlin’s to make, especially in the absence of expert evidence about Dr. Sternbach’s role. This is a rather curious position to take because, in argument before the trial judge and in this court, one of the justifications advanced by the defendants for failing to arrange for a cardiovascular consult was that a surgeon was already there – Dr. Sternbach.

[83] Nonetheless, the trial judge found that Dr. Sternbach joined Dr. McLaughlin in the critical decision, once the Cook stent was properly in place and adjusted by 12:35 p.m., that Ms. Stevenhaagen should not be referred to a cardiovascular surgeon. As he was leaving the Cath Lab, Dr. Sternbach suggested to Dr. McLaughlin that a thoracic surgeon ought to be consulted because of an accumulation of blood in Ms. Stevenhaagen’s chest. A cardiovascular consult still did not appear to be on the radar of either doctor at the time.

[84] The trial judge’s finding that Dr. McLaughlin was “the most responsible physician” (see paras. 182, 197) is not inconsistent with his finding at para. 215, that: “Both of them concluded that she should be sent to the CCU.” It was both possible for the trial judge to find Dr. McLaughlin in charge of the situation while also determining that Dr. Sternbach was sufficiently involved in the negligent treatment of Ms. Stevenhaagen to warrant a finding of liability.

[85] This finding was available on the basis of Dr. Sternbach’s evidence. As he explained in cross-examination, although Dr. McLaughlin had ultimate authority in the situation, “we don’t practice medicine by usurping each other's authorities. We interact directly. We converse. We look for consensus”.

[86] The two doctors consulted with each other prior to making this decision. Although Dr. Sternbach said he would not have usurped Dr. McLaughlin’s authority to send Ms. Stevenhaagen to the CCU had he disagreed with the decision to do so, the crucial point is that Dr. Sternbach did not disagree. He was not only supportive of Dr. McLaughlin’s decision; he played a critical role in facilitating it. As his suggestion regarding thoracic surgery indicates, he did not advise Dr. McLaughlin to seek cardiac surgery nor did he view it as necessary.

[87] It was open for the trial judge to find Dr. Sternbach sufficiently involved in the impugned decision-making to warrant a finding of liability. I would dismiss this ground of appeal.

G. Disposition

[88] I would dismiss the appeal. In accordance with the agreement of the parties, the respondents are entitled to their costs on a partial indemnity basis in the amount of $35,000, inclusive of HST and disbursements.

Released: July 28, 2022 “G.T.T.”

“G.T. Trotter J.A.”

“I agree. Coroza J.A.”

“I agree. L. Favreau J.A.”

Footnotes

[1] At trial, and in their written materials filed on this appeal, the appellants insinuate that Dr. Ralph-Edwards was at fault for not being more inquisitive about Ms. Stevenhaagen’s condition when he visited the operating room. The trial judge strongly rejected the suggestion that he bore any responsibility for what happened.