ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-327916PD1

DATE: 20130301

BETWEEN:

LUIGI DI TACCHIO, LEONARDA ROJAS, LUCY VALAVANIS, MARIA DI TACCHIO and VITO DI TACCHIO

Plaintiffs

– and –

LONDON HEALTH SCIENCES CENTRE, MARKHAM STOUFFVILLE HOSPITAL, DR. DAVID DIOSY, DR. DAVID STEVEN, DR. ANDREW ARCAND, DR. DOE #1, DR. DOE #2, NURSE DOE #1, NURSE DOE #2, NURSE DOE #3 and NURSE DOE #4

Defendants

Jacinthe Boudreau, for the defendant, London Health Science Centre, moving party

James Norton and Andrea Gorys for the plaintiffs, respondents

John A. Nicholson, for the defendants, Dr. David Diosy and Dr. Andrew Arcand, respondents

HEARD: January 8, 2013

LEDERMAN J.

Introduction

[1] The defendant, London Health Sciences Centre (“LHSC”), brings this motion for summary judgment to dismiss the plaintiffs’ claim and the other defendants’ cross-claim against it. The plaintiffs and other defendants contend that this is not an appropriate case for summary judgment.

[2] The main action pertains to a brain injury caused by post-surgical infection sustained by the plaintiff, Mr. Luigi Di Tacchio, following a neurological procedure undergone to monitor his severe epilepsy. The plaintiffs allege that an LHSC employee, Nurse Mary Ann Kettlewell, negligently permitted Mr. Di Tacchio to be discharged from the hospital without reporting to his treating physician, Dr. David Diosy, that she observed pus at the site of his surgical wound.

[3] The evidence on this motion was presented through affidavits, transcripts of the cross-examinations on those affidavits, and discovery transcripts. As neither Nurse Kettlewell nor Dr. Diosy have any independent memory of the events in question, their evidence, for the most part, relates to their usual or invariable medical practice at the time of the events in question.

[4] The events in question on this motion occurred in a time period of about 10-15 minutes and involve three witnesses and three notes.

Background Facts

[5] On January 30, 2005, Mr. Di Tacchio was admitted to LHSC’s Epilepsy Monitoring Unit (EMU) to have bilateral subdural electrodes surgically implanted into his brain. The hope was that after identifying the source of the seizures in his brain, a surgical plan could be developed to treat the seizures permanently.

[6] The subdural electrodes were implanted on February 10, 2005 by neurosurgeon Dr. David Steven, one of the original defendants in this action. The electrodes remained in place for the purpose of monitoring Mr. Di Tacchio’s seizure activity until they were removed by Dr. Steven on February 28, 2005. Unfortunately, it was determined at that time that surgical treatment was not an option for Mr. Di Tacchio.

Events on March 1, 2005

[7] On the morning of March 1, 2005, Mr. Di Tacchio’s sister, Leonarda Rojas (also a plaintiff), attended at LHSC to pick up her brother, who was to be discharged into her care.

[8] According to Ms. Rojas, she asked Nurse Kettewell to change the bandage on Mr. Di Tacchio’s wound, since she noticed that it had blood on it and she would be taking Mr. Di Tacchio home by train. Once the bandage was removed, Ms. Rojas observed what she believed to be pus on the site of Mr. Tacchio’s incision wound, where the electrodes had been implanted. She asked Nurse Kettlewell about the pus and was told that Mr. Tacchio had a “slight infection”. She testified at discovery that Nurse Kettlewell then wiped or dabbed at the site and applied “something” to the wound which she later described as “white”. Ms. Rojas was then asked by another nurse to go to the “Quiet Room” across the hall to wait for Dr. Diosy. Ms. Rojas left her brother with Nurse Kettlewell before his wound was re-bandaged. She recalls waiting 10-15 minutes in the Quiet Room before Dr. Diosy arrived to meet with her.

[9] Although Dr. Diosy does not remember the details of this meeting, he does not dispute that he typically spoke with patients and their families upon discharge. Ms. Rojas recalls asking Dr. Diosy about the pus she observed on Mr. Di Tacchio’s wound while she met with him in the Quiet Room. She recalls Dr. Diosy replying that it was “surface infection” and Mr. Di Tacchio had “been given an antibiotic to deal with that”. She testified that Dr. Diosy did not appear surprised when she asked him about the infection. She subsequently recorded her account of this discussion with Dr. Diosy in a note.

[10] Although Dr. Diosy has no independent memory of what was said, he did record his account of this meeting in the Clinical Progress Record. His note states as follows:

Epilepsy

Family meeting with Luigi and his sister Linda

• discussed Luigi’s multifocal independent seizure foci

=> surgery unlikely to be sufficiently helpful

• Has never tried Lamictal or Keppra

=> will start Keppra with first target 500 b.i.d.

• is still on Decradon 2 t.i.d.

=> taper over nine days off.

• some drainage from subs site

and Dr. Steven started [Luigi] on Keflex and gave 6 days worth to go

• stiches out in 7 days

• will follow with Dr. R. Wennberg

[11] In one of his affidavits, Dr. Diosy states that this note indicates that he examined Mr. Di Tacchio and observed drainage that was not purulent (not pus). In terms of his usual practice, Dr. Diosy testified that if he observed what he thought to be pus on an incision site, he would have swabbed the drainage and sent the swab to the laboratory for investigation. His decision to swab the site would be based on his own assessment, not what was reported to him by a nurse. He concludes that since he did not take a swab in this case, the drainage referred to in his note was either serous or cerebral fluid, neither of which are indicative of infection. Keflex, the drug that he notes Dr. Steven prescribed, is an antibiotic.

[12] On the following page of the Clinical Progress Record, a note from Nurse Kettlewell appears. It was made at 10:20 a.m.:

O – Small amount of bright bleeding and purulent drainage from right sided incision site. Light dressing applied for trip home on the train. Dr. Diosy in to speak with Luigi and his sister Linda. Prescription given. Will visit family doctor in one week. Discharge per wheelchair with his sister. All belongings taken.

[13] As Nurse Kettlewell’s note appears later in the chart than Dr. Diosy’s, it is clear that it was written after Dr. Diosy’s entry. This practice – called ‘block charting’ (in which one note is written retrospectively to refer to successive events) – is not unusual in the hospital setting. Though notes should be timely, in most circumstances it is not expected that a nurse document her actions immediately at the point of care.

[14] The other key piece of documentary evidence is Mr. Di Tacchio’s Discharge Order which was signed and noted by Dr. Diosy and Nurse Kettlewell at 10:10 a.m. LHSC submits that this indicates that Dr. Diosy and Nurse Kettlewell were likely to have had a face-to-face conversation at that time. There is some dispute whether the Order was signed before or after Mr. Di Tacchio was actually discharged and what, if anything, should be inferred from this fact.

[15] Ms. Rojas testified that she did not observe any interactions between Dr. Diosy and Nurse Kettlewell on March 1, 2005. The evidence of what Nurse Kettlewell reported to Dr. Diosy must therefore be inferred from their usual practice evidence, what is suggested by the documentary evidence, and Ms. Rojas’ account of her separate interactions with them.

Usual Practice Evidence

[16] Where a healthcare provider has no specific recollection of his/her dealings with a patient, s/he is entitled to rely on his/her ordinary or invariable practice. A healthcare provider’s ordinary practice is considered strong evidence that s/he acted in the same way on the day in question: see Turkington v. Lai (2007), 2007 48993 (ON SC), 52 C.C.L.T. (3d) 254 (Ont. S.C.J.) at paras. 93-95.

[17] In various affidavits, Nurse Kettlewell states that her usual or invariable practice would have been to notify Dr. Diosy if she observed purulent discharge and ask him if he wanted the incision swabbed. If the pus was not evident in the incision, she would have shown Dr. Diosy the dressing that had been removed. Nurse Kettlewell was not cross-examined on this aspect of her affidavit evidence.

[18] In her affidavits, Nurse Kettlewell also states that it was not her usual practice to write “doctor advised” or “M.D. aware” when she reported an observation to a doctor and the doctor proceeded to examine the patient. The responding parties submit that her failure to make such a note is further evidence that she did not inform Dr. Diosy of her observation prior to Mr. Di Tacchio’s discharge.

[19] Dr. Diosy and Nurse Kettlewell agree that it was Dr. Diosy’s usual practice to obtain a nursing update prior to patient discharge. Dr. Diosy stated on cross-examination that he often would not look at a patient’s progress notes or chart when he went to see a patient. If he did not look at the chart, he would not be aware of the previous entries into the chart by nurses. He stated that when he does look at the chart, it’s typically not with a view to see if the nurses wrote notes after his last visit.

[20] On cross-examination, Dr. Diosy testified that if a nurse reported to him the appearance of pus, he would examine the incision. Likewise, if a family member reported the appearance of pus, he would examine the incision. If he had examined the patient moments earlier, he may or may not re-examine the wound if a family member reported the appearance of pus.

Expert Evidence on Standard of Care

[21] There is little disagreement between the experts regarding what actions were necessary on Nurse Kettlewell’s part to meet the standard of care.

[22] The plaintiffs’ nursing expert, Norm Kelly, a Registered Nurse with over 30 years’ experience in the province of British Columbia, opined that Nurse Kettlewell would have met the standard of care if she had:

1. Notified the doctor about the pus at the incision site
2. Not put a dressing on the wound, not covered it up and showed [the] physician
3. Showed the old dressing to the physician
4. Told Mr. Di Tacchio and his sister Mrs. Rojas that discharge would be delayed as the physician must examine the wound
5. Documented the wound site findings and her actions surrounding the notification of the physician
6. Given the patient and family thorough signs and symptoms to watch for at home with regards to increased temperature, increased pain, infection control and proper follow up.

[23] Item 4 and 6 are not at issue here.

[24] LHSC’s nursing expert, Jill Congram, a Registered Nurse and Nurse Clinician in Alberta, states that “[i]n my nursing experience, it would be normal practice to save and show the old dressings or the gauze with the discharge that was wiped from an incision to the physician in addition to leaving the incision open to air for the physician to observe the incision prior to applying a new dressing.”

The Issues

[25] The following issues must be addressed by the Court in this case:

1. Can a full appreciation of the issues and evidence be achieved by way of summary judgment?

2. If so, is there a genuine issue requiring trial as to whether Nurse Kettlewell advised Dr. Diosy that she observed purulent drainage on Mr. Di Tacchio’s incision site?

3. Is there a genuine issue requiring trial as to whether Nurse Kettlewell wiped away the pus before Dr. Diosy had the opportunity to observe the wound? And, if so, is there a genuine issue requiring trial as to whether Nurse Kettlewell showed Dr. Diosy the substance that was removed, or accurately described this substance?

4. In the absence of evidence on causation, is there a genuine issue requiring trial regarding any other aspects of the care provided to Mr. Di Tacchio by Nurse Kettlewell?

[26] To reiterate, the issue to be determined on this motion is not whether the substance that Nurse Kettlewell observed was pus or serous or cerebral fluid. Instead, I must determine whether there is a genuine issue requiring trial as to whether Nurse Kettlewell reported to Dr. Diosy that she observed what she thought to be pus on Mr. Di Tacchio’s incision site.

Law and Analysis

(i) Can a full appreciation of the issues and evidence be achieved by way of summary judgment?

[27] Rule 20.04(2) provides that summary judgment shall be granted “if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence….” Per rule 20.04(2.1), a motions judge hearing a summary judgment motion is now entitled to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.

[28] As set out by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 286 O.A.C. 3, the amended Rule 20 now allows for summary disposition of a case when the trial process is not required to dispose of the claim in the “interests of justice”. Summary judgment also remains available where a claim has no real chance of success.

[29] In order to determine whether to use the expanded rule 20.04(2.1) powers, a motions judge must be satisfied that s/he can gain a full appreciation of the issues and evidence required to make the necessary dispositive findings by way of summary judgment, rather than full trial. To answer this inquiry I must consider whether I can accurately weigh and draw inferences from the evidence without the benefits of trial, which include counsel’s presentation of the trial narrative, the assistance of counsel as I review the record, or the ability to hear from the witnesses first hand: Combined Air at paras. 46-48 and 54.

[30] Having carefully considered the submissions of the parties, I am of the opinion that, in the present circumstances, the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. There is little conflicting evidence here. While the parties have highlighted different circumstantial evidence to support their differing interpretations of events, very little of the evidence put forward actually conflicts. As will be discussed below, Ms. Rojas’ timing of events is completely consistent with the possibility that Dr. Diosy inspected Mr. Di Tacchio’s incision site while Ms. Rojas was waiting in the Quiet Room, providing Nurse Kettlewell with ample opportunity to inform him about the purulent discharge she observed.

[31] Further, it is significant in this case that only three witnesses were directly involved in events in question, and two of them have no independent memory of that involvement. Even the most probing cross-examination could not force Dr. Diosy or Nurse Kettlewell to remember what they cannot. Significantly, the remaining witness, Ms. Rojas, does not purport to have witnessed any interactions between Dr. Diosy and Nurse Kettlewell, when the material issue at hand is what Nurse Kettlewell did or did not report to Dr. Diosy. Even if I accept all of Ms. Rojas’ evidence as true, the plaintiffs’ case against LHSC ultimately rests on the inferences they seek to draw from the documentary evidence. This documentary evidence is limited. I note the Court of Appeal’s direction in Combined Air at para. 52:

[I]n document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Similarly, the full appreciation test may be met in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can be supplemented to the requisite degree at the motion judge’s direction by hearing oral evidence on discrete issues.

[32] I also note that this motion for summary judgment was not “brought early in the litigation process” (Combined Air at para. 57). The claim was commenced in 2007. Examinations for discovery have been completed. The issues in this case are clearly set out and the parties have had ample opportunity to assure that all relevant and admissible evidence made it into the record.

[33] In concluding this is an appropriate case for summary judgment, I have also considered whether it would be of assistance to hear oral evidence from any of the witnesses pursuant to rule 20.04(2.2). I have determined that conducting a “mini-trial” to hear the testimony of Nurse Kettlewell or Dr. Diosy would not be of assistance for the same reason that hearing their oral testimony is not required for the just resolution of this case. They simply have no memory of the alleged events.

[34] Although in their factum the plaintiffs have belatedly challenged Nurse Kettlewell’s credibility on her usual practice evidence, I note that Nurse Kettlewell was not cross-examined on her invariable practice to notify Dr. Diosy of any patient concerns. Although she was questioned in discovery about whether she charted “doctor advised” whenever she called a doctor, in her most recent affidavit she clarified that her practice was not to make such a notation if the doctor proceeded to examine the patient. To the extent that the responding parties believe this conflicted with her discovery evidence, they did not cross-examine her on this point. Nor did the plaintiffs put forward any independent evidence to suggest that Nurse Kettlewell’s usual practice was not what she purports or not followed in these particular circumstances.

[35] It is trite to say that parties are required to put their ‘best foot forward’ with respect to the existence or non-existence of material issues to be tried. Combined Air has not eroded this obligation. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial: see Combined Air at para. 56, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (S.C.J.) at p. 434. As summarized by Justice Ferguson in Bhakhri v. Valentim, 2012 ONSC 2817, 2012 O.J. No. 2398 at paras. 7-8:

The moving party bears the evidentiary burden of showing there is no genuine issue requiring a trial. After the moving party has discharged the evidentiary burden, the burden shifts to the responding party to prove that its claim or defence has a real chance of success. In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. In accordance with the existing jurisprudence, each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried and cannot sit back and rely on the possibility that more favourable facts or better evidence may be presented at trial. The court is entitled to assume that the record contains all the evidence which the parties would present at trial.

The court [on summary judgment] is entitled to draw inferences from the evidence on a common-sense basis, and may look to the overall credibility of a party’s case. Merely raising an issue of credibility will not be an answer. The issue of credibility must be genuine and not spurious. [emphasis added].

[36] Merely raising the possibility that Nurse Kettlewell may not have followed her usual practice and notified Dr. Diosy of her observation on March 1, 2005 is not sufficient to show a genuine issue requiring trial.

(ii) Is there a genuine issue requiring trial as to whether Nurse Kettlewell advised Dr. Diosy that she observed purulent drainage on Mr. Di Tacchio’s incision site?

[37] In my view, the limited circumstantial evidence available in this case supports that Nurse Kettlewell verbally informed Dr. Diosy that she had observed purulent drainage on Mr. Di Tacchio’s incision site.

[38] It is clear from Dr. Diosy’s note that he examined Mr. Di Tacchio at some point prior to discharge and noticed “drainage” from the wound. Indeed, this is what Dr. Diosy believed the note indicated. Although the plaintiffs have suggested that Dr. Diosy’s note referring to “drainage” could have been based on his understanding that Dr. Steven had prescribed Keflex to Mr. Di Tacchio, I reject this speculation. The fact that Dr. Diosy had just examined Mr. Di Tacchio explains why he did not, in this circumstance, follow his general practice and examine Mr. Di Tacchio’s wound after Ms. Rojas advised him that she had observed pus. The fact that he had examined Mr. Di Tacchio himself also explains why Dr. Diosy did not seem “surprised” when Ms. Rojas mentioned the pus to him during their conversation.

[39] For the above reasons, I would also conclude that this examination likely took place during the 10-15 minutes that Ms. Rojas waited for Dr. Diosy in the Quiet Room. Indeed, Ms. Rojas confirmed that the examination did not take place in her presence, and that she left the hospital with her brother (who was already in a wheelchair with all his belongings) after this meeting. If Dr. Diosy examined the patient, it had to occur before he met with Ms. Rojas in the Quiet Room.

[40] Having concluded that Dr. Diosy examined the patient in the EMU prior to meeting with Ms. Rojas, I also conclude that it is likely that Dr. Diosy and Nurse Kettlewell met and discussed Mr. Di Tacchio’s care at this time. Dr. Diosy’s usual practice was to get an update from the nurse before meeting with the patient. He admitted he often did not independently consult the patient’s chart for such updates. Nurse Kettlewell’s usual practice was to alert the treating physician if she had any patient concerns. Nurse Kettlewell remained with Mr. Di Tacchio in the EMU when Ms. Rojas left for the Quiet Room.

[41] Although I do not believe anything turns on it, I note that Nurse Kettlewell and Dr. Diosy also had the opportunity to speak when they both signed the Discharge Order at 10:10 a.m. at the nursing station. While the responding parties argue that if the Order was signed after discharge (as Nurse Kettlewell testified during discovery would have been likely) it did not provide an opportunity for timely disclosure, it was an opportunity to speak nonetheless.

[42] The responding parties have also argued that the fact that Nurse Kettlewell made her note at 10:20 a.m. (or ten minutes after Mr. Di Tacchio’s Discharge Order was signed) suggests that she may not have reported her observation to Dr. Diosy prior to that point. I reject this interpretation of the note. None of the parties have alleged that block charting was an unacceptable practice in the circumstances. If anything, the 10:20 a.m. note indicates that Nurse Kettlewell was alive to her obligation to note and report an observation of “purulent discharge”. It eliminates any speculation that she may have forgotten about the pus, and thereby neglected to advise Dr. Diosy of her observation.

[43] The responding parties also argue that the fact that Nurse Kettlewell did not record “doctor advised” in her note is evidence that she did not in fact advise Dr. Diosy of the pus. The problem with this argument is that they have failed to provide any evidence to refute Nurse Kettlewell’s evidence that she would not normally record “doctor advised” if she reported an observation to a doctor who then proceeded to conduct his/her own examination of the patient. Further, the evidence indicates that recording “doctor advised” is not the usual or consistent practice of any of the nurses in the unit. The responding parties did not point to a single entry in Mr. Di Tacchio’s chart, which covered approximately a three week period, where any nurse made such a note, even though Dr. Diosy would have received regular updates from the nursing staff about Mr. Di Tacchio’s progress during this period.

[44] Finally, I note there are also significant causation problems with this claim. Even if the responding parties could prove that Nurse Kettlewell failed to advise Dr. Diosy that she observed pus on Mr. Di Tacchio’s incision site, they have not provided any evidence to show how this failure caused the injuries in question. Dr. Diosy gave evidence that his decision whether or not to order a swab would be based on his own assessment of the wound, not the opinion of the nurse. His usual practice would have been to conduct his own examination of the wound if notified by either a nurse or a patient’s relative that the wound was exhibiting pus. The uncontradicted evidence is that Ms. Rojas notified Dr. Diosy of the pus while they met in the Quiet Room. Causation therefore hinges on Nurse Kettlewell’s actions somehow distorting Dr. Diosy’s ability to assess the substance. The only way that this could have occurred is if Nurse Kettlewell wiped the wound and failed to accurately inform Dr. Diosy about her observation and actions. I consider this scenario below.

(iii) Is there a genuine issue requiring trial as to whether Nurse Kettlewell wiped away the pus before Dr. Diosy had the opportunity to examine the wound? And, if so, is there a genuine issue requiring trial as to whether Nurse Kettlewell showed Dr. Diosy the substance that she removed, or accurately described this substance?

[45] Ms. Rojas states that she saw Nurse Kettlewell wipe or dab Mr. Di Tacchio’s wound after his bandage was removed. Nurse Kettlewell replies that her invariable practice would have been to advise Dr. Diosy if she observed purulent drainage. If the pus was not evident when he came to examine the patient, she states she would have shown him the dressing that was removed from the wound.

[46] Even if Ms. Rojas evidence is accepted exactly as stated, I find it is not inconsistent with Nurse Kettlewell’s usual practice evidence. Ms. Rojas did not see whether Nurse Kettlewell completely wiped the wound clean or what she did with the old bandage. She left the EMU before a new bandage was applied. On Ms. Rojas’ own evidence, it is possible that Nurse Kettlewell did not wipe the pus away and left the wound uncovered for Dr. Diosy’s examination. Even if Nurse Kettlewell had wiped the area clean, the responding parties have provided no evidence to establish that she did not accurately describe the pus to Dr. Diosy, or that she did not show him the old dressing. In the face of Nurse Kettlewell’s invariable practice evidence, the onus was on the plaintiffs to tender evidence to suggest that her practice was not as she stated or not followed in the circumstances. In the absence of such evidence, this claim cannot be made out. The responding parties have offered no evidence beyond speculation to establish that Nurse Kettlewell breached the standard of care.

(iv) In the absence of evidence on causation, is there a genuine issue requiring trial regarding any other aspects of the care provided by Nurse Kettlewell?

[47] The plaintiffs now rely on their experts’ contention that failing to record “doctor advised” (or its functional equivalent) is a breach of Nurse Kettlewell’s standard of care even if she did report her observation and actions to Dr. Diosy. However, the plaintiffs have provided no evidence to establish a causal link between Nurse Kettlewell’s failure to make such a record and Mr. Di Tacchio’s injury. Assuming Nurse Kettlewell properly informed the doctor of her observation, her charting practices become of no consequence, since the decision to order the swab and thereby detect the infection hinged on Dr. Diosy’s assessment of the drainage. On Dr. Diosy’s own evidence, he would do his own examination if he got such a report from a nurse. In any event, the uncontradicted evidence from Dr. Diosy was that he often did not review patient charts to obtain patient updates. In these circumstances, I find it highly unlikely that he would have reviewed a patient’s chart after discharge. Even if he had done so in this case, he would have seen that Nurse Kettlewell observed “purulent discharge” on the day in question. At that point, it would not have mattered whether or not she also recorded “doctor advised”. In the absence of causation evidence, I find that this claim has no chance of success.

Conclusion

[48] In summary, the following evidence supports that Nurse Kettlewell met the standard of care by reporting her observation of purulent discharge to Dr. Diosy and by either showing him the substance on the wound or describing it to him and showing him the old bandage:

i. Nurse Kettlewell’s usual practice evidence was to notify the doctor if she observed purulent discharge and, if she could not show the substance to him, she would show him the old bandage;

ii. Although Ms. Rojas saw Nurse Kettlewell “dab” or “wipe” at the wound, she did not see if Nurse Kettlewell wiped the wound in a way that would distort Dr. Diosy’s ability to assess whether the substance was pus. None of her evidence refutes Nurse Kettlewell’s evidence that if she did not show the substance to Dr. Diosy she would have reported it to him and showed him the old bandage;

iii. Dr. Diosy does not deny that Nurse Kettlewell may have notified him of her observation, or showed him the old bandage. He has no recollection of his interactions with Nurse Kettlewell on the date in question;

iv. Dr. Diosy’s usual practice was to see a patient’s nurse prior to patient discharge;

v. The evidence indicates that Dr. Diosy did examine Mr. Di Tacchio in the EMU prior to meeting with Ms. Rojas. Dr. Diosy had an opportunity to speak with Nurse Kettlewell at that point;

vi. When Ms. Rojas told Dr. Diosy about the pus, he did not conduct an examination of Mr. Di Tacchio, even though it would have been his practice to do so unless he had examined the patient himself moments before. Ms. Rojas testified that Dr. Diosy did not seem surprised when she notified him of the pus;

vii. Dr. Diosy and Nurse Kettlewell had another opportunity to speak at 10:10 a.m. when they both signed the Discharge Order; and

viii. Nurse Kettlewell’s 10:20 note reports she observed “purulent discharge” from the incision site. This indicates she was alive to her obligation to report such an observation and that she had not forgotten about her observation.

[49] For the above reasons, LHSC’s motion for summary judgment is allowed and the plaintiffs’ action and the defendants’ cross claim against it are dismissed.

[50] If the parties are unable to agree as to costs, they may make written submissions within 30 days.

Lederman J.

Released: March 1, 2013

COURT FILE NO.: 07-CV-327916PD1

**DATE:**20130301

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LUIGI DI TACCHIO, LEONARDA ROJAS, LUCY VALAVANIS, MARIA DI TACCHIO and VITO DI TACCHIO

Plaintiffs

• and -

LONDON HEALTH SCIENCES CENTRE, MARKHAM STOUFFVILLE HOSPITAL, DR. DAVID DIOSY, DR. DAVID STEVEN, DR. ANDREW ARCAND, DR. DOE #1, DR. DOE #2, NURSE DOE #1, NURSE DOE #2, NURSE DOE #3 and NURSE DOE #4

Defendants

REASONS FOR JUDGMENT

LEDERMAN J.

Released: March 1, 2013