Court of Appeal for Ontario

Date: 20240725 Docket: C70952

Lauwers, Miller and Harvison Young JJ.A.

Between

Syed Jadwal Hasan*, Shazia Hasan, Syeda Kisa Zehra*, Syed Zain Jaffary*, and Syeda Aruba Zehra* Plaintiffs (Respondents*)

and

Trillium Health Partners – Mississauga, Dr. Verity Jayne John, Dr. Alan Campbell*, Dr. Neil Antman, Dr. Chikkahanumaiah Devaraj, John Doe and Jane Doe Defendants (Appellant*)

Counsel: Stuart Zacharias, Jennifer Hunter and Nadia Marotta, for the appellant Duncan Embury, Daniela Pacheco, John Adair and Ritika Rai, for the respondents

Heard: February 21, 2024

On appeal from the judgment of Justice E. Ria Tzimas of the Superior Court of Justice, dated July 7, 2022, reported at 2022 ONSC 3988.

Lauwers J.A.:

A. Overview

[1] Syed Hasan, the respondent, was a stroke victim. The trial judge found the appellant, Dr. Alan Campbell, negligent in treating Mr. Hasan in the emergency department at Trillium Health Partners – Mississauga Hospital. She found that “but for Dr. Campbell’s breach of the standard of care, Mr. Hasan would have been assessed and received treatment in a timely manner, which in turn would have resulted in a successful treatment and recovery.” Mr. Hasan suffered permanent and disabling injuries. He now requires assistance for almost all activities of basic living. The parties agreed on the amount of the damages award. The remaining issue is liability.

[2] The appellant’s factum notes that the trial judge found: “Mr. Hasan suffered an embolic stroke that originated when a clot lodged at the junction of the distal vertebral artery and the basilar artery at the base of the brain, leading to further clot formation, blockage, compromised blood flow, and gradual ischemic injury in the brain.” The factum adds that Dr. Campbell’s specific breaches of the standard of care were that he did not but “ought to have included stroke in his differential diagnosis, and either consulted a neurologist or arranged a CT angiogram on December 3rd or 4th”. The trial judge concluded that, had he done so, “Mr. Hasan would have been ‘attended to and treated in a timely manner’, resulting in ‘a good outcome’”: para. 138.

[3] This is a limited appeal. The appellant accepts the trial judge’s findings that “Mr. Hasan’s stroke was caused by a blood clot and that treatment would have been initiated” had Dr. Campbell met the standard of care. However, the appellant argues that the trial judge erred in finding liability on the basis that Dr. Campbell’s negligence caused Mr. Hasan’s injuries.

[4] For the reasons that follow, I would dismiss the appeal.

B. The Issue

[5] The appellant raises what I regard as a single issue: Did the trial judge err in finding that Dr. Campbell’s negligence caused Mr. Hasan’s unfavourable outcome? More particularly, did the trial judge err in failing to require Mr. Hasan to establish precisely which of the various treatment options would have prevented that outcome?

[6] Before attending to this issue, I set the facts out briefly.

C. The Facts

[7] Mr. Hasan, who was 40 years old at the time, went to the emergency department at Milton District Hospital in the morning on December 3, 2011. He complained of dizziness, nausea and vomiting. The doctor diagnosed him with “probable peripheral vertigo”, prescribed some medication and discharged him. Mr. Hasan continued to feel unwell and, later that morning, he went to his family physician, Dr. Odette Wahba. She advised him to go directly to the emergency department at Trillium and wrote a referral note requesting that the hospital “rule out organic cause (brain lesion or stroke)”.

[8] That afternoon, Mr. Hasan went to Trillium, which is a designated Regional Stroke Centre. The nurses in the emergency department at Trillium documented both Dr. Wahba’s note and the fact that Mr. Hasan had been at the hospital previously with the same symptoms. They also noted that Mr. Hasan had a headache, visual and hearing difficulties, and “right side droop”.

[9] Mr. Hasan was then assessed by Dr. Alan Campbell, who documented the symptoms Mr. Hasan was experiencing and his previous hospital attendance, but he did not see or document Dr. Wahba’s note. Dr. Campbell conducted a physical examination but did not conduct a gait assessment. He ordered medications to be administered, bloodwork, and a CT scan. A stroke was a possible diagnosis in his mind at this point, but Dr. Campbell noted that the CT scan did not show any acute abnormalities and that some of Mr. Hasan’s symptoms had improved. He did not consult a neurologist, nor did he order a CT angiogram. He diagnosed Mr. Hasan as “Dizzy – Bell’s Palsy – Peripheral Vertigo” and discharged him with medication.

[10] Mr. Hasan awoke on December 4 with worsened symptoms and returned to Trillium by ambulance. Dr. Campbell assessed Mr. Hasan at 9:15 a.m. and ordered another CT scan bearing in his mind a possible stroke. He consulted a neurologist at 11:45 a.m. when Mr. Hasan’s condition deteriorated further and he had to be intubated. Dr. Campbell handed over Mr. Hasan’s care to an internist and had no further contact with him.

[11] Mr. Hasan’s brain MRI some days later on December 8 showed that he had suffered “an acute infarct” and loss of normal blood flow in the proximal basilar artery. A CT angiogram was then conducted, which confirmed that he had suffered a stroke. An infarct is an area of irreversible tissue injury in the brain resulting from insufficient blood flow.

D. The Governing Principles

[12] To succeed in a medical malpractice lawsuit, the plaintiff must prove, on a balance of probabilities, that: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached the standard of care; (c) the defendant’s breach caused the plaintiff to suffer a bodily injury; and (d) the injury must not be too remote a result of the defendant’s conduct: Willick v. Willard, 2023 ONCA 792, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[13] It is common ground that Dr. Campbell owed Mr. Hasan a duty of care as an emergency room doctor and that he breached the applicable standard of care. Remoteness is not an issue in this case. The remaining issue is legal causation. Did Dr. Campbell’s breach cause Mr. Hasan’s injuries?

[14] Chief Justice McLachlin’s statement in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, remains the causation test in negligence cases:

The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis by McLachlin C.J.]

[15] Chief Justice McLachlin noted, at para. 42: “A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss.” She added: “Scientific proof of causation is not required.” At paras. 9, 20, 23, and 28, she reiterated the view that the court should take “a robust and common sense” approach to the application of the test.

[16] Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, was a medical malpractice case involving multiple defendants. It describes the application of the “but for” test to an omission at paras. 46-48, which I will paraphrase. The trier of fact’s thought process in determining factual causation has two steps. The first is to determine what likely happened in actuality. The second is to consider what likely would have happened had the defendant not breached the standard of care:

[48] 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.

[17] The trial judge couched her decision in the framework set out in Sacks v. Ross, which she cited at paras. 142-144. The appellant argues that the trial judge did not apply the “but for” causation test correctly.

E. The Principles Applied

[18] Counsel expressed the crux of the appellant’s complaint in oral argument: “The respondents failed to prove causation at trial because they failed to lead evidence to enable critical findings that had to be made in order for them to succeed, most fundamentally in regard to what actually would have happened if the appellant had not breached the standard of care.”

[19] The appellant argues that the respondents’ expert evidence and the trial judge’s findings had to go further than to state that there would have been “some form of treatment.” In other words, the onus was on the respondents to prove what specific treatment would have been given to Mr. Hasan, and then to prove that the treatment would have been successful. The appellant submits that the respondents had to establish “how the events would actually have unfolded if the appellant had taken the action he was obliged to take.” Because findings “were not actually made on that required point,” the appellant asserts that the causation analysis could not go to the next step, which was “to determine whether a particular treatment would have changed the outcome.”

[20] The trial judge cited the Clements “but for” causation test. Her analysis followed the relevant steps in the test set out in Sacks v. Ross, at para. 47: (i) determine what likely happened; and (ii) determine what would have likely happened had the defendant not breached the standard of care. The trial judge recognized that in delayed medical diagnosis and treatment cases, it is not enough for the plaintiff to show that adequate diagnosis and treatment would have given the plaintiff a chance of avoiding an unfavourable outcome – the plaintiff must show that avoiding the unfavourable outcome is “more likely than not”: Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.), at para. 25. In the trial judge’s view, this was not, as the appellant argues in his factum, merely a case in which the respondent lost a chance at a better outcome, which is not compensable in law.

The first step of the Sacks analysis: What likely happened

[21] At the first step of the Sacks analysis – to determine what likely happened – the trial judge found that Mr. Hasan suffered an embolic stroke that originated with a dissecting aneurysm in the left vertebral artery, at the C5/C6 level (the “embolic stroke theory”). She rejected the defence theory that the stroke was caused by a perforator ischemia, caused by a dissection (“the dissection theory”).

[22] The trial judge preferred the plaintiffs’ experts over the defendants’ experts for seven reasons. First, several uncontested facts supported the embolic stroke theory, whereas the type of dissection entailed by the dissection theory was so rare that none of the experts had ever seen one or could provide a real life example of one. Second, the trial judge found that the plaintiffs’ experts were objective and comprehensive – they engaged with the competing theory and provided considered explanations for why they disagreed with it. In contrast, the defendants’ experts were absolute in their views and largely dismissive of the competing theory. Third, the defendants’ critiques of the plaintiffs’ expert, Dr. Gordon Cheung, were ill-founded. Dr. Cheung demonstrated a thorough grasp of the issues and what he lacked in awards and publications, he made up for in practical experience. Fourth, the plaintiffs’ experts used a blind review methodology whereby they “identified characteristics and features in the imaging without any preconceived notions or theories of what might have occurred”, at para. 222. In contrast, the defence experts went into the analysis with a theory in mind that they sought to prove. Fifth, the defendants’ experts ignored evidence on the CT angiogram that supported the embolic stroke theory – they sought to minimize this failure and downplay its importance. Sixth, the defendants’ experts ignored Mr. Hasan’s atypical anatomical configuration, which made him more prone to an embolic stroke. The defendants sought to rebut the plaintiffs’ evidence on the anatomical point by relying on the evidentiary gap resulting from the lack of imaging. The trial judge added that Mr. Hasan’s expert, Dr. David Mikulis, drew supportive inferences about the anatomical junction measurements that the defence chose not to rebut. Seventh, the defence experts’ analysis contained errors in their understanding of the progression of Mr. Hasan’s symptoms.

[23] These factual findings, to which we must defer, are deeply rooted in the evidence and well laid out in the trial judge’s careful reasons; the appellant has pointed to no palpable and overriding errors.

[24] The trial judge observed that Dr. Campbell’s breach of the standard of care resulted in an evidentiary gap – there was no imaging, apart from the CT scan, that showed the progression of the stroke over time. She found that Dr. Campbell could not rely on the evidentiary gap resulting from the negligent lack of imaging to support his defence: Ghiassi v. Singh, 2018 ONCA 764, at para. 29; Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at paras. 72-74. The trial judge noted that the court can infer causation where the defendant’s negligence prevents the plaintiff from demonstrating the link between the injury and its causation. The onus then shifts to the defendant to rebut that inference and any uncertainty is resolved in favour of the plaintiff.

[25] I would reject the appellant’s argument that the trial judge effectively created a presumption of causation in favour of the plaintiffs, thereby placing an onus on the defendants to rebut it and thereby “improperly relax[ed] the burden of proof on the plaintiff[s].” The greater risk in these cases, as this court pointed out in Goodwin, at para. 73, is that permitting the defendant to rely on the gap would “effectively immunize” him. The trial judge did not err in her application of the principles in Goodwin and Ghiassi.

The second step of the Sacks analysis: What likely would have happened had the defendants not breached the standard of care

[26] At the second step of the Sacks analysis – to determine what would have likely happened had the defendants not breached the standard of care – the trial judge found that, but for Dr. Campbell’s negligence, Mr. Hasan would have been assessed by a neurologist, would have received a timely CT angiogram, and would have received appropriate treatment.

[27] The trial judge found that timely imaging would have allowed Mr. Hasan to receive treatment without delay. She cited the plaintiffs’ expert, Dr. David Gladstone, on the available treatments in 2011. Dr. Gladstone testified that aspirin and heparin could have been used as a first line of treatment but that the most effective treatment was “recanalization”, that is, opening up the blockage. There were three different ways recanalization could have been performed: two involved administering a clot-dissolving drug, tPA, and the third required using a catheter to pull out the clot, i.e., endovascular treatments. These treatments were all available at Trillium at the time. The defence experts conceded as much: paras. 269-273.

[28] The trial judge rejected the defendants’ argument that Dr. Gladstone had not provided a comprehensive opinion on precisely how each of these treatment options might have worked out. She found that Dr. Gladstone had laid out how a neurologist would determine the appropriate treatment method on the spot depending on the imaging. He explained that each case was different and that it would be “exceptionally difficult…to foresee all the various treatment options and their associated intricacies, in advance of the actual procedure”, at para. 275. The trial judge found that requiring Dr. Gladstone to go further and particularize what the imaging would have shown on the spot and how a treating doctor would have responded would be to invite speculation; in any event, the evidentiary gap brought about by the lack of timely imaging – the result of Dr. Campbell’s negligence – made this sort of analysis impossible. She was satisfied that a treating doctor would have been able to treat Mr. Hasan successfully: “the most significant takeaway from the evidence is that various treatment options were available for the treating physicians to consider and deploy”: para. 276.

[29] The trial judge also rejected arguments about the neurologist’s failure to immediately order a CT angiogram once she was consulted, noting that the timing of her involvement meant she was left with little information from the patient. No inference could be drawn that Mr. Hasan would not have received a CT angiogram if the neurologist had been consulted earlier. The trial judge stated that this defence argument was inconsistent with the defendants’ agreement that at least before December 4, Mr. Hasan had not suffered any infarcts: para. 278. Counsel for the appellant points out that Dr. Campbell never conceded that Mr. Hasan had not suffered any infarcts before December 4 and that the respondents’ own expert said it was likely an infarct had occurred but was not yet detectible. This point is of no consequence. The trial judge relied on the fact that no infarcts or ischemia were seen on the available imaging at the time, which indicates that Mr. Hasan’s condition had not yet worsened to a point where treatment would have been unsuccessful.

[30] The trial judge found that if Mr. Hasan had been properly treated by one of the three available modes, he would have had a successful recanalization and therefore a good outcome: para. 279. This finding was based on three key considerations: Mr. Hasan’s imaging and clinical presentation, his unique anatomical considerations, and the medical literature on recanalization: para. 281.

[31] With respect to the first consideration, there was uncontested evidence that Mr. Hasan’s clot burden was unknown on December 3 and 4, resulting from the lack of a contemporaneous CT angiogram: para. 282. Given Mr. Hasan’s clinical presentation, in particular the “stepwise progression” of his symptoms (i.e., minor symptoms that worsened over time), the window for treatment was substantially extended from the typical window. Because the parties agreed that Mr. Hasan was not too far gone on December 3 and 4, there was no evidence to support the conclusion that recanalization would have failed.

[32] The second consideration was that Mr. Hasan was young and in good health, and his initial symptoms were mild. His atypical vasculature ensured good blood flow. These were all good prognostic factors for a good recovery: para. 291.

[33] The third consideration was that the medical literature supported that Mr. Hasan would have had a successful outcome if he had received one of the available forms of recanalization. The trial judge also criticized the defence experts’ approach to engaging with the medical literature because, unlike the plaintiffs’ experts, they did not relate the data to Mr. Hasan’s specific clinical presentation: paras. 294-298. I would reject the appellant’s argument that the trial judge did not take due account of the medical literature.

[34] The trial judge’s findings are all factual in nature and reflect faithfully the Supreme Court’s direction to trial judges to take a robust and pragmatic approach to determining whether the defendant’s negligence caused the plaintiff’s loss, without requiring scientific proof of causation. [1]

F. Disposition

[35] I would dismiss the appeal and require the appellant to pay costs to the respondents in the agreed amount of $60,000.

Released: July 25, 2024 “P.D.L.” “P. Lauwers J.A.” “I agree. B.W. Miller J.A.” “I agree. A. Harvison Young J.A.”

[1] The appellant criticizes several of the trial judge’s factual findings, which I will not enumerate. These findings were not material to the outcome.