ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-04-11226-00
DATE: 20130111

B E T W E E N:

JOSEPH BOGDON and ALLISON CRANE, both personally and as Litigation Guardian for MATTHEW BOGDON and MADISON BOGDON

John W. Bruggeman, for the Plaintiffs

Plaintiffs

• and -

DR. RAPHAEL FOLMAN

Sarit E. Batner and Kate Findlay, for the Defendant

Defendant

HEARD: May 22, 23, 24, 25, 28, 29, 30, 2012

REASONS FOR JUDGMENT

Seppi J.

Background Facts

[1] The plaintiff Matthew Bogdon was born on July 14, 2001. He suffered from numerous conditions at birth including intrauterine growth retardation, a complicated delivery, low birth size and weight, low blood glucose, respiratory and feeding difficulties.

[2] From and after his birth he experienced global and developmental delay, and dysmorphism. After his premature delivery at 37 weeks he was hospitalized for six weeks at Trillium Health Centre (“Trillium”), and the Hospital for Sick Children (“HSC”). He was followed by the neonatal follow-up team at Trillium and the genetics team at HSC.

[3] The plaintiffs Joseph Bogdon and Allison Crane are Matthew’s father and mother. Madison Bogdon is his sister. His mother testified his facial features looked different to her and she observed unusual skin tags on his fingers. She said no explanation was given to her about the cause of his condition.

[4] The defendant, Dr. Raphael Folman, is a paediatrician. He graduated from University of Toronto medical facility in 1967, and achieved his fellowship designation in paediatrics in 1977. He had a paediatric practice in Mississauga from 1977 to 2011. During this time 90 to 95% of his professional time was in patient care. In his clinical practice he would see approximately six patients per hour, five days a week. He was also on call at Trillium.

[5] Dr. Folman was called upon during the delivery to administer oxygen to Matthew. He became Matthew’s regular paediatrician for both office calls and numerous hospital attendances. Matthew was believed to have a developmental disorder from birth. His growth and speech development were slower than the norm, as was the development of his motor skills. He was given orthotics to wear for stability after he started walking at 16 months. He began speech therapy in 2003 because he could only say a few words.

[6] Dr. Folman followed Matthew’s progress on a growth chart. Though it showed he was progressing steadily, it was clear he remained far behind expected normal growth.

[7] The cause of this slow development and growth was not diagnosed while he was Dr. Folman’s patient. Over time Matthew was referred for and given numerous tests including chromosome studies, MRI, CAT scans, ultrasound of the brain, kidney testing and EEGs, all of which were reportedly normal. He never received a diagnosis for his underlying problems prior to his seizure and events of February 12, 2004, which led to this lawsuit. After February 12, 2004 he was given a diagnosis of panhypopituitarism.

[8] Matthew also suffered from frequent coughs, viral infections and instances of high fever. He was given puffers to help with his breathing. Most often he was seen by Dr. Folman in his office, given medication and then treated at home. Ms. Crane, who was diligent in his care, testified she treated the fevers with Tempra but if they were higher than 38 degrees centigrade she would take Matthew to the doctor or to the hospital if it was a weekend.

[9] Dr. Folman was aware of Matthew’s special needs. His office was proximate to Matthew’s home and he was generally available for appointments and for unscheduled consultations. Although Matthew’s father at trial complained about Dr. Folman’s poor bedside manner and overly short office consultations, there was no issue that he was competently providing for Matthew’s ongoing medical treatment and care before the incidents which led to this lawsuit.

The Issue

[10] The primary issue before the court is whether Dr. Folman breached the requisite standard of care for a paediatrician in his treatment of Matthew’s hypoglycaemic seizure on November 9, 2003, and in Matthew’s subsequent care.

[11] The secondary issue arises if the standard of care was not met by Dr. Folman. The court must determine whether but for such breach Matthew’s underlying condition of panhypopituitarism would have been diagnosed and treated in time to avoid the seizure on February 12, 2004. The plaintiffs allege this seizure caused permanent brain damage to Matthew.

Facts

[12] In addition to his developmental delay Matthew, suffered from frequent respiratory illnesses. He also from time to time suffered from fevers that became extremely elevated. In August 2002 and September 2002 he was admitted to Trillium for febrile seizures. These were described by all the medical specialists as being common in young children.

[13] The hospital records indicate Matthew responded appropriately to treatment during these admissions. At his August 2002 admission glucose levels were in the normal range at 5.5 mmol/L. These levels indicate that his body was responding and properly regulating his glucose production and he was producing the requisite increased demand of glucose in response to the seizures. None of the treating physicians, namely Dr. Conrad Yim a neurologist, Dr. Simone an endocrinologist, and Dr. Folman, considered there to be a need for further investigations. The plaintiffs’ expert at trial, Dr. Daniel Neuspiel, agreed there would have been no concern about Matthew having hypoglycaemia as a result of these events.

[14] What is at issue in this trial is Dr. Folman’s treatment and follow up for Matthew’s care after his November 9 to November 11, 2003 admission to Trillium. On that occasion Matthew had developed a cough and fever on November 8, 2003. The next day his mother observed the normally active Matthew to be unusually sleepy. She took him to the local family care centre from where he was immediately sent to the emergency department at Trillium (“ER”). Ms. Crane testified they were unable to wake Matthew and his eyes looked drowsy. The doctor in the ER initially suspected meningitis, and procedures were activated for a lumbar puncture test.

[15] Matthew’s glucose reading was extremely low at 1.2 mmol/L, and he was given fluid intravenously (“IV”). According to his mother, Matthew started to perk right up after receiving the fluid. A CAT scan was performed, and the intended lumbar puncture test for meningitis was cancelled. In Ms. Crane’s words, Matthew “seemed to come back to himself”.

[16] The medical evidence supports Matthew’s mother’s observations of Matthew. The hospital records note that Matthew was very lethargic with significant chest congestion upon his admission at 17:07 on November 9, 2003. An IV bolus of normal saline solution was ordered and administered for hydration at 19:14. The blood test ordered in the ER and taken at 19:20 showed a low glucose level for Matthew of 1.2 mmol/L. To treat the low blood sugar, the ER doctor, Dr. Adelman, ordered that Matthew be given a bolus of 2 cc/k of 50% dextrose, and he administered 24 cc of D50W (50% dextrose) to Matthew by IV push at 20:16. According to the records, Matthew perked up on his way to the CT Scan. In the CAT Scan room he was no longer demonstrating signs of hypoglycaemia.

[17] After this initial treatment in ER, Dr. Adelman admitted Matthew to the hospital for observation. A second blood glucose test on November 10, 2003 showed 4.6 mmol/L, which was considered normal. When Dr. Folman saw Matthew that morning he was made aware of the upper respiratory infection and the previous day’s episode of low blood sugar which, he was informed, had quickly remedied itself following the administration of dextrose. Thereafter Matthew did not show any signs or symptoms of low blood sugar while in the hospital.

[18] When Dr. Folman saw him on November 10, 2003 Matthew had no symptoms of hypoglycaemia. His diagnosis was of a viral upper respiratory infection leading to transient hypoglycaemia. Dr. Folman’s direction was for Matthew to go home the next day if he remained well, which is what happened. Matthew’s mother was advised and aware Matthew’s low blood sugar had been resolved. Upon the discharge Dr. Folman advised her to keep administering Matthew’s puffers and follow up at his office as necessary.

[19] Dr. Folman testified Matthew was active upon examination on November 10, 2003 and doing well. In his opinion, the low blood sugar and sodium had likely been caused by Matthew’s viral upper respiratory infection. He ordered Matthew to remain overnight in hospital for observation to ensure he remained well and there was no recurrence of hypoglycaemia. As the low blood sugar had readily responded to treatment, had normalized and did not recur, it was Dr. Folman’s opinion the hypoglycaemia had been transient and Matthew did not require further blood glucose testing or any referral for investigation of an underlying cause.

[20] Ms. Crane’s evidence regarding Matthew’s condition following his discharge on November 11, 2003 is that Matthew was active and his normal self. The only health issues that arose between November 11, 2003 and February 10, 2004 were a cough and fever on December 8, 2003, and a fever and sore throat on January 29, 2004 for which Matthew attended at Dr. Folman’s office. His symptoms were consistent with his previous episodes of respiratory illnesses and fever. On the December 8 visit he was prescribed antibiotics and continued use of his puffers. His condition improved within a couple of days thereafter.

[21] On January 29, 2004 Ms. Crane took Matthew to Trillium where a throat swab was done, which was normal. Matthew was sent home after a few hours and was better within a couple of days.

[22] When a cough developed again on February 10, 2004 Ms. Crane took Matthew to Dr. Folman’s office. His symptoms were a cough and slight wheeze in his left chest which were not unusual for him. As in the past Dr. Folman prescribed the use of puffers and medication to control his fever. He testified Matthew had no symptoms of hypoglycaemia or any underlying hormonal problem during this visit. He said he neither saw nor had reported to him any symptoms of hypoglycaemia such as lethargy, jitteriness or convulsions between November 2003 and February 12, 2004.

[23] On February 11, 2004 Ms. Crane called Telehealth, a resource she frequently used, because Matthew was vomiting. She was advised to monitor Matthew at home and ensure he drank plenty of liquids.

[24] In the morning of February 12, 2004 Ms. Crane found Matthew in an active seizure. He was rushed to the hospital where his seizure was difficult to control. His blood sugar was 0.7 upon arrival at about 8:40 a.m. Dr. Conrad Yim was called to Trillium to provide care for Matthew. His blood sugar remained extremely low, 1.4, even after treatment with glucagon 0.5 mg subcutaneous in the ER. After his seizure stopped he was further treated with 5 ml D25 glucose.

[25] Dr. Yim diagnosed Matthew with status epilepticus focal in nature, hypoglycaemia of not diagnosed etiology, and a-typical febrile seizures complicated by hypoglycaemia. He was transferred to the Hospital for Sick Children. Subsequent testing and investigation conducted at the HSC resulted in a diagnosis and treatment of panhypopituitarism. There have been no further episodes of hypoglycaemia for Matthew after receiving that diagnosis and treatment.

Position of the Parties

[26] It is the position of the plaintiffs that Matthew’s hypoglycaemic seizure on February 12, 2004 resulted in permanent brain damage, which would have been avoided had Dr. Folman further tested for hypoglycaemia and referred Matthew to an endocrinologist following the hypoglycaemic episode on November 9, 2003. The plaintiffs submit that in failing to conduct ongoing testing for hypoglycaemia, and not referring Matthew to an endocrinologist for investigation after the episode in November, 2003, Dr. Folman breached the requisite standard of care for a paediatrician in the circumstances.

[27] The plaintiffs also submit that but for this failure and breach in the standard of care, Matthew would not have suffered the hypoglycaemic seizure on February 12, 2004, and upon a referral by no later than December 8, 2003 Matthew’s panhypopituitarism would have been diagnosed and treated before suffering the seizure. They submit the permanent brain damage he suffered as a result could have been avoided.

[28] The defendant’s position is that Dr. Folman at all times fulfilled his duty to provide for Matthew’s medical needs in accordance with the standard of care of a paediatrician in the circumstances presented to him. He submits that in accordance with the requisite standard of care he made a valid and proper clinical judgment, and that further testing for low blood sugar on Matthew, and referral for further investigation, were not indicated in the circumstances given that Matthew had readily recovered from low blood sugar after treatment in November, 2003.

[29] Dr. Folman further maintains there is no evidence, other than an unsupported statement from the plaintiffs’ expert Dr. Neuspiel, that Matthew’s panhypopituitarism would have been diagnosed and treated before February 12, 2004 and the seizure avoided, if such a referral or investigation had in fact been made after the November, 2003 episode.

The Legal Framework

[30] The plaintiffs’ case against Dr. Folman is for medical malpractice which engages the principles of tort and negligence law. To be successful the onus is on the plaintiff to prove:

1. the defendant owed a duty of care;

2. the defendant’s behaviour breached the standard of care;

3. the plaintiff sustained damage; and

4. the damaged was caused, in fact and law, by the defendant’s breach[^1]

[31] There is no dispute in this case that Dr. Folman owed a duty of care to his patient the plaintiff, Matthew Bogdon. Dr. Folman was Matthew’s treating paediatrician before and during the relevant time period from November 9, 2003 to February 12, 2004. The parties have agreed to narrow the scope of the trial to standard of care, and to causation. The issue of damages is not before me.

Standard of Care

[32] The standard of care required of a physician who is specialized, as is Dr. Folman in paediatrics, is that of a reasonably competent practitioner practicing in the same specialty, considering all the circumstances.

[33] As stated by Schroeder J.A. in Crits v. Sylvester:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability. [^2]

[34] Thus, Dr. Folman’s care of Matthew is measured against the standard required of a normal, prudent primary care paediatrician of his experience and standing. For the plaintiffs to succeed they must establish on a balance of probabilities that Dr. Folman in his care of Matthew failed to conduct himself as would a normal prudent paediatrician of the same experience in similar circumstances.

[35] It is the law in Canada that expert evidence is required for the trier of fact in a medical malpractice case to determine whether the defendant has breached the standard of care. This concept in the context of a medical practitioner’s conduct is not one that is intuitively understood by a person of ordinary knowledge and experience. As stated in Bafaro v. Dowd:

Actions alleging malpractice involve issues to be decided that are not within the ordinary knowledge and experience of the trier of fact. Therefore the plaintiff requires expert evidence to prove that the Defendant physician was negligent.

The Court’s findings should be based on expert evidence; and the Court should not make conclusions of breach of the standard of care or causation without expert opinion evidence in support of those conclusions.[^3]

[36] Thus without the weight of expert opinion to demonstrate a physician has not met the requisite standard of care in accordance with a recognized and reputable practice of the profession, he will not be found to be negligent.

[37] In ter Neuzen v. Korn the Supreme Court of Canada states:

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent. (emphasis added) [^4]

[38] The Ontario Court of Appeal has warned that the court “must be cautious to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards”.[^5] In a case such as this where there is conflicting expert opinion regarding the standard of care, and on the issue of whether the defendant breached the requisite standard of care, the court is required to determine the weight to be given to the evidence.

[39] In Crawford (Litigation Guardian of) v. Penney, Power J. stated:

I conclude from the foregoing that indeed, the appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence. ‘There is no necessitated dismissal of a medical negligence claim simply because honest and competent experts disagree over a doctor’s diagnoses and treatment’. [^6]

Expert Evidence

[40] The plaintiffs called Dr. Daniel R. Neuspiel, a paediatrician who practices in North Carolina, USA, to give opinion evidence on the issues of standard of care and causation. Defendant’s counsel opposed Dr. Neuspiel being qualified as an expert in this case on the grounds that he had no Canadian training or experience, his written report is merely conclusory, and that he is effectively an “expert for hire” whose evidence is not objective.

[41] The Court, for oral reasons given at trial, nevertheless qualified Dr. Neuspiel as an expert having specialized knowledge and experience in paediatrics. The question of his objectivity, lack of Ontario education or experience, and weaknesses in his written report are matters which affect the weight to be given to his testimony and not the threshold question of the admission of his evidence. Dr. Neuspiel, an experienced paediatrician, has expertise in the field of paediatrics which is beyond that of the trier of fact.

[42] Dr. Neuspiel graduated from medical school in New Jersey, USA, in 1979. He did a three year residency in paediatrics and also achieved a Master’s Degree in Public Health in epidemiology and Fellowship in the same in 1984. His numerous writings mainly focus on epidemiology and substance abuse. About 50 percent of his practice currently includes consultations with paediatric patients within an academic setting. He does not have any Canadian education or experience in paediatrics. He testified to his belief that the standard of care applicable to paediatricians in Canada is the same as in the US. He attributes this belief to having sat on committees and professional associations with various Canadian paediatricians.

[43] The defendant’s first expert witness, Dr. W.B. Hanley is a paediatrician who had a general paediatric practice in Toronto from 1962 to his retirement in 2009. He spent 70 percent of his professional time on patient care. The second expert, Dr. Hartley Garfield, obtained his fellowship in paediatrics in 1976. He has been a staff physician at HSC in Toronto since 1977. Both Doctors Hanley and Garfield are experienced and skilled paediatric practitioners. They were qualified by the court as experts in paediatrics to give opinion evidence on the issues of standard of care and causation in this trial.

[44] There is a considerable amount of evidence which is not in dispute regarding Matthew’s care during the relevant medical events. Collectively supported by the evidence of all the experts, including Dr. Neuspiel, and hospital records, the following facts, as noted in the defendant’s brief, are not in dispute:

(a) Matthew’s glucose on August 16, 2002 when he presented with febrile seizures was normal;

(b) There is no evidence that Matthew suffered from a hormonal problem prior to November 2003;

(c) There is no evidence that Matthew suffered from a hypoglycaemic disorder prior to November 2003;

(d) On November 9, 2003, treatment of Matthew with a bolus of 50% dextrose cured his lethargy;

(e) Matthew’s physicians were able to determine a cause for his November 9, 2003 lethargy;

(f) When Dr. Folman came to the hospital on November 10, 2003, Matthew no longer had symptoms of low blood sugar;

(g) On November 10, 2003, Dr. Folman made a clinical judgment and determination that Matthew was suffering from a transient viral URI [upper respiratory infection] with transient hypoglycaemia and transient hyponutremia;

(h) During his November admission, Matthew suffered from one episode of hypoglycaemia;

(i) Following receipt of a bolus of 50% dextrose, Matthew showed no further signs or symptoms of low blood sugar;

(j) Matthew’s blood glucose test on November 10, 2003 indicated that his blood glucose was normal, holding and stable;

(k) An attending physician is in the best position to make an exercise of clinical judgment about the care and treatment of a patient;

(l) The diagnosis of hypoglycaemia is a clinical diagnosis;

(m) Absent signs and symptoms, a paediatrician will not test for hypoglycaemia;

(n) Matthew’s hypoglycaemia at birth is irrelevant to a determination of a breach of the standard of care; and

(o) Prior to February 12, 2004, Matthew never demonstrated persistent, recalcitrant hypoglycaemia.

[45] There is also no dispute among the experts that hypoglycaemia, and particularly the very low blood glucose level of 1.2 mmol/L experienced by Matthew on November 9, 2003, is a serious condition. All of the doctors who testified agreed hypoglycaemia can cause seizures, brain damage and death. What is unique about the evidence from Dr. Neuspiel, as compared to the evidence of Drs. Hanley and Garfield, is his opinion that anytime the blood glucose level falls below 2.0 mmol/L the paediatrician has a duty to follow up with further testing and a referral to ascertain the underlying condition of that low glucose level. Drs. Hanley, Garfield and Folman testified that the proper and accepted procedure is to rely on clinical observations after the patient’s blood glucose returns to normal to determine whether further testing or referral is needed.

(Decision continues with the full reasoning exactly as in the source.)

Footnotes

[^1]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3.
[^2]: Crits v. Sylvester, 1956 34 (ON CA), aff’d 1956 29 (SCC).
[^3]: Bafaro v. Dowd, 2008 45000, aff’d 2010 ONCA 188.
[^4]: ter Neuzen v. Korn, 1995 72 (SCC).
[^5]: Hajgato v. London Health Associates, aff’d 1983 1687 (ON CA).
[^6]: Crawford (Litigation Guardian of) v. Penney.