CITATION: Spirito v. Trillium Health Centre, 2013 ONSC 5138
COURT FILE NO.: CV-04-012458-00
DATE: 2013-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N
Mary Spirito, as Estate Trustee Without a Will of the Estate of the Late Emilio Spirito, and the said Mary Spirito, Personally, Christopher Spirito, Lori Ann Bertan, Personally, and as Litigation Guardian of Jessica Bertan, Minor
Stewart Gillis and Duncan Embury, for the Plaintiffs
Plaintiffs
- and -
The Trillium Health Centre, The Credit Valley Hospital, Dr. Christopher Cobourn, Dr. Cameron Gelder, Dr. Allan Kagal, Dr. Lee, Dr. Leigh, Dr. Lancelot Tin, Dr. Adam Mohammed,Kerry Armstrong, Doctors EF, GH and Nurses IJ, KL, MN, OP
Peter Osborne and Jaan Lilles, for the Defendants Dr. Christopher Cobourn, Dr. Cameron Gelder, Dr. Lancelot Tin and Dr. Adam Mohammed
Simon Clement and Anna Marrison, for the Defendants The Trillium Health Centre, The Credit Valley Hospital, Kerry Armstrong and Nurses IJ, KL, MN and OP
Defendants
HEARD: May 13-17, 21-24, 27, 29, June 5 and 21, 2013
D.L. Edwards J.
REASONS FOR JUDGMENT
[1] Emilio Spirito died suddenly and tragically while in hospital at Trillium Health Centre (“Trillium”) on November 9, 2003. His widow, Mary Spirito, personally and as trustee of Emilio’s estate, his son, Christopher, his daughter, Lori Ann Bertan, personally, and as Litigation Guardian for his granddaughter, Jessica Bertan, sue the defendants for negligence.
[2] The plaintiffs’ primary allegation is that Emilio died from complications after aspirating fluids that he had vomited. They assert that the defendants’ behaviour fell below the expected standard of care, and that their negligence caused Emilio’s death. In general terms, the plaintiffs submit that the timely insertion of a nasogastric tube (“NG tube”) would have prevented Emilio’s death.
[3] At the commencement of the trial, the matter was dismissed, on consent, against The Credit Valley Hospital (“Credit Valley”). Following the close of the plaintiffs’ evidence, on consent, the matter was dismissed against Doctors Kagal, Lee, Leigh, Tin and Mohammed.
[4] Therefore, I must determine whether any of the remaining defendants, Dr. Cobourn, Dr. Gelder and Nurse Kerry Armstrong, were negligent, or in the case of Trillium, a party for whom it was legally responsible, was negligent, and if so, whether that negligence caused Emilio’s death.
[5] The defendants deny that they were negligent or that there was a causal connection between their care of Emilio and his death. In the Amended Statement of Defence, the defendant doctors raised a limitation period defence.
[6] The parties have agreed that, if I find for the plaintiffs, the damages are $369,125.00 including pre-judgment interest.
[7] For the reasons set out below, the plaintiffs’ claims are dismissed.
Background
[8] Certain facts are undisputed. Prior to 1992, Emilio had no significant medical issues. Emilio was diagnosed in 1992 with a blood condition called polycythemia rubra vera. This condition advanced, and by 2003 became myelofibrosis. One of the complications of myelofibrosis is enlargement of the spleen. On March 25, 2003, Dr. Cobourn performed a splenectomy at Trillium; Emilio’s spleen was removed.
[9] Emilio's recovery from the operation was rapid, and in fact, he returned to work after three months, rather than the recommended six months.
[10] At the time of the splenectomy, Dr. Cobourn noticed that Emilio had an inguinal hernia; however, as it was not bothering him too much, Emilio did not want it repaired at that time.
[11] Gradually, the discomfort from the hernia increased to the point that Emilio decided to have it repaired. On Tuesday, November 4, 2003, Dr. Cobourn performed a laparoscopic repair of the left inguinal hernia as day surgery at Trillium. Emilio was discharged at about 2:45 p.m. the same day.
[12] Two days later, on Thursday, November 6, 2003, Emilio’s wife called 911. The ambulance took Emilio to the closest hospital, Credit Valley. There it was determined that he had a post-surgical intra-abdominal haemorrhage. His abdomen was enlarged and distended. He was haemodynamically unstable. He was admitted, and while at Credit Valley, he was given a blood transfusion of four units.
[13] On Friday, November 7, 2003, the Credit Valley doctor charged with Emilio’s care, Dr. Mohammed, spoke with Dr. Cobourn. At that time, Dr. Cobourn agreed to accept Emilio’s transfer back to Trillium.
[14] On Saturday, November 8, 2003, Emilio was transferred from Credit Valley to Trillium. There was disagreement as to the time of Emilio’s arrival at Trillium. Credit Valley records show that he left there at 5:30 p.m. The Trillium records indicate that he was admitted to Trillium at approximately 6:30 p.m. Mrs. Spirito testified that her brother and sister-in-law advised her that Emilio arrived at Trillium at 4:30 p.m.
[15] There is agreement that when Emilio arrived at Trillium he was haemodynamically stable.
[16] Initially, Nurse Tasha Van Hemme was the nurse in charge of Emilio’s care on the surgical ward. Her shift ended at 7:30 p.m., at which time Nurse Kerry Armstrong assumed that responsibility.
[17] At approximately 10:00 p.m., the on-call surgeon, Dr. Gelder, saw Emilio in his hospital room and made certain orders for his care.
[18] During that evening, Emilio vomited. The parties disagree as to whether this occurred before, or after, Dr. Gelder met with Emilio.
[19] When Mrs. Spirito left Emilio that evening at approximately 10:30 p.m., Emilio was alert. He was concerned about his wife’s safety walking in the parking lot alone. He called her at home to ensure that she made the trip safely. He was coherent and alert.
[20] At 2:45 a.m. on November 9, 2003, Emilio’s oxygen saturation decreased to 74 per cent. Dr. Oh, the on-call internal medical doctor, was called. He found Emilio in great distress. He was intubated. The parties disagree as to whether the intubation occurred prior to Dr. Oh’s arrival, or at his instruction. Dr. Oh inserted an NG tube (an NG tube is a tube that is inserted via the nose into the stomach and fluids are suctioned). Dr. Oh stabilized Emilio and transferred him to the ICU.
[21] Emilio was pronounced dead in Trillium’s ICU at approximately 5:10 a.m. on Sunday, November 9, 2003.
[22] Due to the dismissal of the action against Credit Valley and the doctors who worked at Credit Valley, it is the actions and omissions of the defendants during the period from Emilio’s admission to Trillium on Saturday, November 8, 2003 until his death at 5:10 a.m. on Sunday, November 9, 2003, that form the primary focus of my analysis.
Preliminary Matter
[23] At the commencement of the trial, the plaintiffs sought leave, under section 52 of the Ontario Evidence Act, to file medical reports prepared by Dr. Clifford Oh and Dr. Z. J. Manowski, and to call them as expert witnesses. They also sought an order directing Dr. Manowski to undertake certain pathological tests on Emilio’s lung tissue.
[24] Dr. Oh was a treating physician at Trillium; Dr. Manowski was the pathologist who performed Emilio’s autopsy.
[25] I ordered that Dr. Oh and Dr. Manowski could be fact witnesses and that they could testify as to treatment opinions that they formed in 2003. I did not permit the filing of their medical reports, nor could they provide expert evidence, other than as treating physicians with respect to treatment opinions that they formed in 2003. It followed that Dr. Manowski would not be ordered to perform further tests in order to provide additional expert evidence.
[26] I advised that my reasons would follow. These are my reasons.
[27] On April 30, 2013, the plaintiffs filed a Notice of Intention to file medical reports, pursuant to section 52 of the Evidence Act, for a trial set to begin six days later on May 6, 2013. The revised notice did not comply with the timelines required by the Act.
[28] Neither doctor had delivered an expert report; neither doctor filed an Acknowledgement of Expert’s Duty as required by the Rules of Civil Procedure.
[29] The plaintiffs argue that the law permits a treating physician to be called as an expert witness; indeed, in certain circumstances, that person is in the best position to provide that evidence. They argue that rule 53.03 applies only to experts hired by a party to testify on his or her behalf.
[30] I do not agree. This would gut the effectiveness of rule 53.03 and allow trial by ambush.
[31] I am satisfied that Dr. Oh and Dr. Manowski are “treating experts” as defined in MacNeil v. Filthaut, 2011 ONSC 2165, [2011] I.L.R. I-5138, at para. 48. As such, they are entitled to testify as to treatment opinions that they formed in 2003, without strict compliance with rule 53.03.
[32] Had the plaintiffs complied with rule 53.03, they may have been qualified to give expert evidence beyond that of treatment opinions that they formed in 2003; that was not done here.
[33] Counsel did not provide me with any authority to support the assertion that during a trial, I had the power to order Dr. Manowski to perform tests on Emilio’s lung tissue, and further, to provide opinion evidence regarding the results of those tests. In any event, as I did not qualify him to provide expert evidence, other than as mentioned above, he could not testify about the results of the test.
[34] During the trial, the plaintiffs called Dr. Oh as a witness, but did not call Dr. Manowski.
Expert Evidence
[35] Based upon oral evidence, their respective CV’s which were filed as exhibits, and utilizing the test set forth in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, I qualified five witnesses as experts to provide opinion evidence:
a) Debra Cooper to provide expert opinion on the standard of care of nurses in 2003 in Ontario, but not with respect to the issue of causation;
b) Lisa Shiozaki to provide expert opinion on the standard of care of nurses in 2003 in Ontario;
c) Dr. Ronald Holliday to provide opinion evidence on the standard of care for a general surgeon in 2003;
d) Dr. Robert Mustard to provide opinion evidence on the standard of care for a general surgeon in 2003; and
e) Dr. David Howarth to provide opinion evidence as a pathologist.
[36] Throughout the decision, I will discuss what portions of their evidence that I accept.
Fact Evidence
[37] Mary Spirito’s testimony is important. She was with Emilio at critical points during his medical saga. As Emilio is deceased, she is the only person, in most circumstances, who can convey fact evidence from the plaintiffs’ point of view. On certain critical issues, her evidence diverges from the defendants’ evidence. It is useful to make certain factual findings before undertaking the analysis of the alleged breaches of standard of care.
[38] I am satisfied that Mrs. Spirito testified to the best of her recollection; however, I find that her recollection about certain facts, during what was a very stressful period in her life, is inconsistent with the defendants’ evidence, which is corroborated. Some of these events are critical to this proceeding; others are not, but support my findings of credibility.
[39] For example, Mrs. Spirito initially testified that Dr. Cobourn did not conduct a physical examination of Emilio when they met Dr. Cobourn at his office prior to the hernia surgery. In cross-examination, she conceded that she could not recall whether a physical examination occurred. Dr. Cobourn testified that he conducted a physical examination, and that he could not have made the findings that he charted without the physical examination. His records support his testimony.
[40] I find that, when Emilio attended Dr. Cobourn’s office for the pre-surgery visit, Dr. Cobourn performed a physical examination of Emilio.
[41] Mrs. Spirito testified that, on November 5, 2003, the day after the surgery, she called Dr. Cobourn’s office because Emilio was feeling nauseous, and that Dr. Cobourn never returned the call.
[42] Dr. Cobourn testified that he returned the call the same day and spoke first to Mrs. Spirito, and then Emilio. He advised both that, for him to make an assessment, Emilio had to go to his office or the hospital. Emilio told him that he was “feeling fine” and did not want to “return to the hospital”.
[43] As part of the standard practice following day surgery, Nurse Celia Brion called the Spirito home on November 5, 2003 and spoke to Mrs. Spirito. The standard practice also required that Nurse Brion complete a “Day Surgery Post Discharge Telephone Follow-Up Record” as a record of her telephone call, which record formed part of the Joint Brief. The Joint Brief was submitted into evidence by all parties as Business Records and made Exhibits 1A and 1B. In her report, Nurse Brion recorded: “Dr. Cobourn told wife to bring him back to hospital but patient refused”.
[44] The Business Record is accepted as prima facie evidence of the truth of the record. There was no evidence before me that Nurse Brion received that information other than through her telephone call with Mrs. Spirito.
[45] I find that Nurse Brion completed the record following her conversation with Mrs. Spirito, and that she obtained the information reflected on the record during her telephone conversation with Mrs. Spirito.
[46] I find that Mrs. Spirito’s recollection of these events is in error and that Dr. Cobourn returned the call; he spoke to Mrs. Spirito and Emilio.
[47] Mrs. Spirito testified that, when Emilio was taken by ambulance to Credit Valley on November 6, 2003, she followed separately, and arrived at the hospital that evening. She testified that, by the time she arrived at the hospital, Emilio had received a blood transfusion of four units; in fact, the Credit Valley records show that the transfusion did not occur until the early hours of the next day, November 7, 2003.
[48] Her recollection of the timing of the transfusions is in error.
[49] Mrs. Spirito testified that Emilio’s transfer to Trillium on November 8, 2003 occurred at 4:30 p.m. Her evidence was based upon the hearsay report of her brother and sister-in-law. The records of Credit Valley show that he left there at 5:30 p.m. and the Trillium records show that he was admitted to Trillium at approximately 6:30 p.m.
[50] I am satisfied that the hospital records accurately reflect the timing of Emilio’s transfer. I find that Emilio was admitted to Trillium at approximately 6:30 p.m. on November 8, 2003.
[51] Mrs. Spirito testified that, when Doctor Gelder visited Emilio in his hospital room at 10:00 p.m. on November 8, 2003, he did not conduct a physical examination; instead, he stood at the foot of the bed.
[52] Dr. Gelder testified that it was his standard practice to conduct a physical examination of post-surgical patients for whom there was an abdominal issue; that he did conduct a physical examination of Emilio; and that the findings that he charted could not have been made without the physical examination.
[53] He dictated his findings following his consultation with Emilio. His findings refer to symptoms discernible only from a physical examination, and are as follows: “On examination right now he is cachectic but has obvious abdominal distension. He is in no distress. He does not appear toxic. His abdomen is tympanitic, distended, but soft throughout. There is no significant tenderness. His laparoscopic incisions are well healed” (emphasis added).
[54] I find that Dr. Gelder conducted a physical examination when he attended at Emilio’s hospital room on November 8, 2003.
[55] Mrs. Spirito testified that Nurse Armstrong called her at 1:00 a.m. on November 9, 2003 to come to the hospital because Emilio was not doing well. She woke her son who was living in the basement of their home. They both testified that they arrived at the hospital at approximately 1:30 a.m., and that when they reached the hospital, Dr. Oh was “working on” Emilio.
[56] Nurse Armstrong testified that she called Dr. Gelder shortly after her 2:45 a.m. assessment of Emilio as he was in respiratory distress. Pursuant to Dr. Gelder’s instructions, she called Dr. Oh, the internal medicine specialist on-call, shortly thereafter. She also called Mrs. Spirito sometime after 3:00 a.m. on November 9, 2003, and advised her that Emilio was not doing well.
[57] Dr. Oh, a witness called by the plaintiffs, testified that, as a result of a call from Nurse Armstrong at 3:00 a.m., he attended at Emilio’s hospital room shortly thereafter, and provided medical assistance. The hospital records support the testimony of Nurse Armstrong and Dr. Oh with respect to the timing of these events.
[58] I find that Nurse Armstrong called Mrs. Spirito sometime after 3:00 a.m. on November 9, 2003, and not at 1:00 a.m. as Mrs. Spirito testified.
[59] As noted above, some of these findings are critical to this proceeding; others simply support my findings of credibility.
[60] Finally, as a general comment, I would note a significant portion of the plaintiffs’ evidence from all witnesses, including Mrs. Spirito, was adduced through leading questions, notwithstanding numerous objections by counsel and a warning from me that the weight ascribed to that evidence would be impacted by the leading questions. That is an additional, but not deciding, factor in my assessment of the evidence of the witnesses for the plaintiffs.
Method of Analysis
[61] The law is clear. Findings of breaches of the standard of care should be made first, and factual causation analyzed later in light of those findings: see Randall v. Lakeridge Health Oshawa, 2010 ONCA 537, 270 O.A.C. 371.
[62] The plaintiff must prove both on a balance of probabilities.
[63] Accordingly, I will analyze the alleged breaches of standard of care individually, and then turn to the issue of causation.
Standard of Care
The Law
[64] There is no disagreement among the parties as to the legal definition of the standard of care for the defendants.
[65] With respect to the doctors, Schroeder J.A. noted in Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132, at p. 143, aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991:
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 one who does not profess to be so qualified by special training and ability.
[66] As expressed in Keech v. Chang, [2009] O.J. No. 1614 (S.C.), at para. 69: “One must not assess the actions with the benefit of hindsight, but rather in light of the information that the doctor had or ought to reasonably possess. An honest error in clinical judgment does not amount to negligence.”
[67] It is the standard of care in 2003 that is relevant. The doctors’ conduct must be judged in light of the standard of care in 2003, not as of the date of the trial.
[68] With respect to the nurses, the standard of care is that of an ordinary person exercising and professing to have the skills of a nurse and the standard must reflect the experience, training, education and knowledge of the ordinary skilled nurse: see Skeels Estate v. Iwashkiw, 2006 ABQB 335, 63 Alta. L.R. (4th) 26, at para. 88.
[69] The expectations of doctors do not set the applicable standard of care but they may be relevant in determining whether a nursing standard has been met: see Suwary v. Women’s College Hospital, 2009 CanLII 5156 (ON SC), at para. 170.
[70] For both doctors and nurses there is a difference between an error in judgment and negligence. The honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation: see Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804, at p. 812.
[71] I will now analyze the alleged breaches of the standard.
The Conduct
[72] The plaintiffs’ theory of negligence evolved significantly throughout the trial. The plaintiffs vigorously pursued many different allegations of negligence during the trial. Accordingly, I have organized my reasons by dealing first, with each allegation contained in the Amended Statement of Claim, and second, with those made during closing submissions.
Did Dr. Cobourn’s Conduct Fall Below the Standard of Care?
[73] In the Amended Statement of Claim, the plaintiffs allege that Dr. Cobourn was negligent:
(a) for failing to refer Emilio to a haematologist or taking any steps to address the issues of the hernia surgery in light of his blood condition;
(b) for discharging him immediately after surgery and failing to obtain the assistance of a haematologist post-operatively after he recognized that the surgical site was “oozy”;
(c) for failing to return Mary Spirito’s phone calls on November 5, 2003; and
(d) for failing to attend at Trillium following Emilio’s re-admission at 6:30 p.m. on November 8, 2003, to assess Emilio.
[74] In closing submissions, the first three allegations were not pursued; rather, the plaintiffs submitted that Dr. Cobourn was negligent:
(a) as the Most Responsible Physician (“MRP”), for failing to be available to assess Emilio, and to provide admission orders within 30 minutes of his arrival at Trillium; and
(b) alternatively, as MRP, for failing to convey to Dr. Gelder sufficient patient history to allow Dr. Gelder to reach a professional appropriate diagnosis.
[75] First, I turn to the allegations pleaded in the Amended Statement of Claim.
Allegations of Negligence contained in the Amended Statement of Claim
1) Failure to refer Emilio to a haematologist or taking any steps to address the issues of the hernia surgery in light of his blood condition
[76] I find that the plaintiffs have failed to prove on a balance of probabilities that Dr. Cobourn’s conduct fell below the standard of care expected of him in 2003 with respect to his acts and omissions regarding the hernia surgery and Emilio’s blood condition.
[77] Dr. Cobourn was well aware of Emilio’s blood condition. On March 25, 2003, he removed Emilio’s spleen because it was enlarged due to the blood condition. Emilio’s haematologist, Dr. King, stated that he “recovered beautifully” from the surgery.
[78] After a pre-surgery consultation with Emilio, Dr. Cobourn sent a consultation note dated October 13, 2003 to Dr. Miller, the family physician, and Dr. King indicating that the hernia repair would proceed; neither raised concerns about the surgery.
[79] I accept Dr. Mustard’s opinion that there was no need to consult directly with Dr. King, and reject Dr. Holliday’s opinion that Dr. Cobourn should have consulted Dr. King prior to surgery: Emilio had recovered well from a more significant surgery eight months earlier; Dr. King had received a copy of the consultation note; there was no intervention which Dr. King could have taken to treat the myelofibrosis.
- For discharging him immediately after surgery and failing to obtain the assistance of a haematologist post-operatively after he recognized that the surgical site was “oozy”
[80] The evidence does not support this allegation.
[81] Dr. Cobourn’s uncontradicted evidence is that the procedure went well. Although there was some oozing from the peritoneal cavity, his standard practice was to wait until the bleeding stopped. He testified that nothing occurred during the surgery or prior to discharge that caused him any concern. Further, he stated that it was not uncommon in surgical patients to have some oozing.
[82] I accept this evidence.
[83] Further, neither Dr. Holliday nor Dr. Mustard, the parties’ expert witnesses, testified that, in discharging Emilio following day surgery, Dr. Cobourn’s conduct fell below the expected standard of care.
[84] I find that the plaintiffs have failed to prove on a balance of probabilities that Dr. Cobourn’s conduct fell below the standard of care expected of him in 2003 with respect to his handling of the discharge of Emilio.
3) For failing to return Mary Spirito’s phone calls on November 5, 2003
[85] In paragraph 43, I found that Dr. Cobourn returned Mrs. Spirito’s call on November 5, 2003; accordingly, this allegation fails.
4) For failing to attend at Trillium following Emilio’s re-admission at 6:30 p.m. on November 8, 2003 to assess Emilio
[86] This allegation was repeated during closing submissions on a much more specific basis. I will deal with this allegation under that section.
Allegations of Negligence made in Closing Submissions
1) As MRP, for failing to be available to assess Emilio, and to provide admission orders within 30 minutes of his arrival at Trillium
[87] The plaintiffs allege that, as Dr. Cobourn had agreed with Dr. Mohammed to accept Emilio’s transfer back to Trillium, he was the MRP. As a result, he was required by the Trillium Health Centre Policy, dated September 2002, to assess Emilio, and to provide admission orders, within 30 minutes of Emilio’s arrival at Trillium, which was approximately 6:30 p.m. on November 8, 2003.
[88] All parties agree that Dr. Cobourn did not see Emilio at any time during the period commencing with his admission to Trillium at 6:30 p.m. on November 8, 2003, and ending with his death.
[89] Nurse Van Hemme testified that, following his arrival at approximately 6:30 p.m., she did an assessment of Emilio and charted that assessment. Her overall assessment was that he was stable; there was nothing urgent that needed to be addressed.
[90] Both Nurses Van Hemme and Armstrong testified that Nurse Van Hemme’s shift ended at 7:30 p.m. on November 8, 2003, at which time Nurse Armstrong assumed Emilio’s care.
[91] At one point in the evening, although he was not on-call, Dr. Cobourn and Nurse Armstrong spoke over the phone. Dr. Cobourn testified that they spoke about Emilio’s status; he asked her certain pertinent questions about his status; he gave her certain orders that she charted.
[92] These orders included: maintaining a clear fluid diet; morphine if needed for pain; gravol if needed; adalat if needed; blood count now and daily for the next three days; and to do three views abdomen x-ray in the a.m. As well, Dr. Cobourn was to be contacted if haemoglobin was less than 100.
[93] Dr. Cobourn testified that he ordered blood tests to assess Emilio’s haemoglobin level to ensure that the intra-abdominal bleeding that had occurred while at Credit Valley had not reoccurred. This was repeated daily over the next three days to monitor the situation.
[94] Dr. Holliday, the plaintiffs’ general surgeon expert, testified that Dr. Cobourn should at least have attended at the emergency department of Trillium, examined Emilio and provided orders. He somewhat qualified that statement when he stated that “in the best of worlds” Dr. Cobourn should have attended at the hospital to see Emilio, despite the presence of an on-call physician. He did, however, also testify that a physician was entitled to rely upon his on-call colleagues to monitor and assess his patients.
[95] Dr. Mustard, the defendants’ general surgeon expert, testified that Dr. Cobourn was entitled to rely upon the on-call surgeon and that his actions were consistent with the standard of care in 2003.
[96] He testified that the on-call system was developed to deal with the reality that a doctor could not work 24 hours a day. When a physician was not working, the on-call surgeon took over responsibility for the care of that physician’s patients. Dr. Cobourn was not on-call; Dr. Gelder was.
[97] I find that, as the on-call surgeon, Dr. Gelder assumed care of Dr. Cobourn’s patients. I accept Dr. Mustard’s testimony that it is unreasonable to expect a physician to work 24 hours a day. I do not accept the plaintiffs’ allegation that proximity of Dr. Cobourn’s residence to the hospital is a relevant factor. He was not on-call; he knew that Dr. Gelder was on-call and had responsibility for caring for Emilio.
[98] Dr. Mustard stated that Dr. Cobourn’s telephone orders were appropriate and met the standard of care: Dr. Cobourn was entitled to rely upon the assessment of Nurse Armstrong; Dr. Cobourn was aware that the on-call surgeon would be further assessing Emilio pursuant to Dr. Cobourn’s request; and the orders given were standard orders and generally monitoring in nature. I will deal specifically with the order for a clear fluid diet in more detail below.
[99] I accept that the orders were of a standard nature and were intended to be in place until Dr. Cobourn further assessed Emilio.
[100] I find that the plaintiffs have failed to prove on a balance of probabilities that Dr. Cobourn’s conduct fell below the standard of care expected of him in 2003 by his failure to assess Emilio and to provide admission orders within 30 minutes of Emilio’s arrival at Trillium, at 6:30 p.m. on November 8, 2003.
2) As MRP, for failing to convey to Dr. Gelder sufficient patient history to allow Dr. Gelder to reach a professional appropriate diagnosis
[101] This allegation presumes that Dr. Cobourn remained MRP for Emilio, even when he was not working and an on-call surgeon had assumed responsibility for Emilio’s care. I do not accept this assumption. Based upon the on-call system in place at Trillium in 2003, Dr. Cobourn was not responsible for Emilio’s care when coverage was in place by way of an on-call surgeon.
[102] Secondly, as noted in detail below, Dr. Gelder had what he believed was a sufficient patient history. He testified that, if he felt that the information was deficient, he would have called Dr. Cobourn to elicit that information.
[103] I find that the plaintiffs have failed to prove on a balance of probabilities that Dr. Cobourn’s conduct fell below the standard of care expected of him in 2003 by not contacting Dr. Gelder to convey to him Emilio’s medical history.
Allegation during Trial
[104] During the trial, the plaintiffs’ general surgeon expert, Dr. Holliday, testified that, in his opinion, Dr. Cobourn had breached the standard of care in three ways. Two have been dealt with above. In Dr. Holliday’s opinion, the third breach was the order by Dr. Cobourn for a diet of clear fluids without seeing and assessing Emilio.
[105] The evidence does not support the allegation.
[106] Dr. Cobourn testified that he was aware that Emilio had been placed on a clear fluid diet at Credit Valley, and that he discussed this with Nurse Armstrong. The clear fluid diet was ordered as Nurse Armstrong advised him that Emilio had been on that diet at Credit Valley; he was tolerating it well; there was no history of vomiting.
[107] I accept this evidence.
[108] Dr. Mustard testified that Dr. Cobourn’s telephone orders were appropriate and met the standard of care. As noted above, they primarily maintained the status quo and monitored the patient. Dr. Cobourn was aware that Dr. Gelder would assess Emilio that evening and could make any changes required to the orders.
[109] I find that the plaintiffs have failed to prove on a balance of probabilities that, in ordering a clear fluid diet, Dr. Cobourn’s conduct fell below the standard of care expected of him in 2003.
Did Dr. Gelder’s Conduct Fall Below the Standard of Care?
[110] In the Amended Statement of Claim, the plaintiffs allege that Dr. Gelder was negligent:
a) for failing to order an investigation (ultrasound or CAT scan) following his assessment; and
b) in ignoring the obvious post-operative haemorrhage and history of blood transfusion and blood irregularities.
[111] This allegation was not pursued during closing submissions; rather, the plaintiffs alleged that Dr. Gelder was negligent:
a) for failing to insert an NG tube following his examination of Emilio at 10:00 p.m. on November 8, 2003.
[112] I will deal first with the allegation pleaded in the Amended Statement of Claim and then the allegation raised in Closing Submissions.
Allegation in the Amended Statement of Claim
[113] In the Amended Statement of Claim, the plaintiffs allege that Dr. Gelder was negligent for failing to order an investigation (ultrasound or CAT scan) following his assessment, and in ignoring the obvious post-operative haemorrhage and history of blood transfusion and blood irregularities.
[114] The evidence does not support that allegation. Indeed, Dr. Holliday, the plaintiffs’ general surgeon expert, testified that Emilio was haemodynamically stable when he was re-admitted to Trillium on November 8, 2003. Accordingly, there were no investigations required.
[115] At the time of Emilio’s assessment by Dr. Gelder, the evidence demonstrates that the post-operative haemorrhage was under control.
[116] I find that the plaintiffs have failed to prove on a balance of probabilities that, by not ordering an investigation, Dr. Gelder’s conduct fell below the standard of care expected of him in 2003.
Allegation in Closing Submissions
[117] In closing submissions, the plaintiffs alleged that Dr. Gelder’s conduct fell below the standard of care expected of him in 2003 when he failed to order the insertion of an NG tube following his examination of Emilio at 10:00 p.m. on November 8, 2003.
[118] The evidence does not support the allegation.
[119] Dr. Gelder testified that he made a clinical decision to not insert an NG tube. Although Dr. Holliday, the plaintiffs’ general surgeon expert, stated in his examination-in-chief that, in his judgment, an NG tube should have been ordered by Dr. Gelder, in cross-examination he agreed with the following statement: “[E]ven if you might have made a different clinical decision, had it been you on the floor at 10:00 pm, Dr. Gelder’s decision, you can’t say sitting here today, it was unreasonable or fell below the standard for him to consider that it was not indicated at that time” (emphasis added).
[120] Further, Dr. Mustard, the defendant doctors’ general surgeon expert, agreed that the decision to not place an NG tube following the 10:00 p.m. assessment did not fall below the expected standard of care.
[121] The plaintiffs submit that Dr. Gelder cannot raise a defence of the exercise of appropriate and acceptable clinical judgment because he cannot establish that he informed himself of the facts that he needed to know in order to exercise his judgment. I do not agree.
[122] Dr. Gelder testified that, prior to assessing Emilio at 10:00 p.m., he reviewed the Credit Valley records which accompanied Emilio on the transfer and the electronic records from Trillium, including the Operative Note of Dr. Cobourn from the laparoscopic hernia repair on November 4, 2003, and the consultation notes from Dr. King.
[123] The plaintiffs assert that the only records that were transferred from Credit Valley were the Medication Administration Record and Lab Results, as the Patient Transfer Record refers only to these two items.
[124] I do not agree. I find that the portion of the Credit Valley chart that is contained within the Trillium chart at pages 217 to 236 of the Joint Brief was transferred to Trillium at the time Emilio was transferred to Trillium.
[125] Nurse Van Hemme testified that, although she had no independent memory of the chart, she would have reviewed the Credit Valley chart prior to speaking with a physician, and if she did not believe that she had the required documentation, she would have called Credit Valley for it. She did not make such a call. Dr. Gelder testified that he reviewed the physicians’ progress notes from Credit Valley prior to examining Emilio. Finally, the relevant pages are part of the Trillium chart filed in the Joint Brief.
[126] It was alleged that Dr. Gelder should have spoken to Dr. Cobourn prior to assessing Emilio. I do not accept this submission. He had sufficient information from his review of the chart material. He was aware that the primary concern at Credit Valley had been a post-operative bleed. There were no signs of an ongoing bleed; Emilio was stable. He was aware of Emilio’s history of myelofibrosis and splenectomy.
[127] Dr. Gelder also spoke to Nurse Armstrong prior to assessing Emilio. Although he could not recall the specifics of the conversation, his standard practice is to gather as much information as is relevant to the patient’s condition from the nurse.
[128] At trial, much evidence surrounded an incident when Emilio vomited on the evening of November 8, 2003 at Trillium. There is disagreement on the amount, the nature and the timing of the incident. However, both Mrs. Spirito and Nurse Armstrong testified that they were not certain whether the incident occurred prior to Dr. Gelder’s assessment. Nurse Armstrong and Dr. Gelder both testified that Nurse Armstrong did not advise Dr. Gelder of this incident of vomiting. I find that Dr. Gelder was not aware of this incident when he assessed Emilio at 10:00 p.m.
[129] Dr. Gelder also had a conscious, alert patient, and a spouse with whom he could further discuss Emilio’s condition.
[130] I have found as a fact that Dr. Gelder performed a physical assessment of Emilio when he met with him at 10:00 p.m. Also, I prefer his testimony regarding his discussion with Emilio that night to Mrs. Spirito’s testimony for the reasons described above regarding the frailty of Mrs. Spirito’s memory.
[131] I find that Dr. Gelder obtained a history from Emilio, and that no incident of recent vomiting was reported to him. He was aware that Emilio had vomited on two occasions prior to his admission to Credit Valley.
[132] Following his assessment, he dictated in a Report of Consultation that included the statement that Emilio “is not vomiting anymore so an NG tube will not be inserted.”
[133] During the trial there was much disagreement among the witnesses as to whether Emilio had post-operative ileus at 10:00 p.m. when Dr. Gelder examined him. Following abdominal surgery, it is usual that, to some degree, the bowel stops moving; this paralysis is known as ileus or paralytic ileus.
[134] Dr. Gelder testified that Emilio’s ileus was improving; he had no history of vomiting in two days; he was passing flatus; he was tolerating clear fluids. Nurse Armstrong also testified that she could hear bowel sounds and that Emilio reported that he was passing flatus.
[135] I am satisfied that Dr. Gelder made a clinical judgment that Emilio’s ileus was resolving.
[136] Further, there was disagreement regarding the standard treatment of post-operative ileus. Dr. Holliday testified that the insertion of an NG tube should be part of the treatment of bowel obstruction “be it mechanical or be it paralytic”. Dr. Cobourn and Dr. Gelder testified that an NG tube could be used to relieve discomfort and other symptoms that cause distension by suctioning some of the gas or fluid from the stomach. Dr. Mustard testified that the purpose of the NG tube is to increase patient comfort. He disagreed that it would reduce hypertension in the gut. It removes matter from the stomach; anything in the small or large bowel would remain.
[137] Rosen’s Emergency Medicine: Concepts and Clinical Practice, 5th ed. (2002) vol. 2, c. 87, at p. 1287, was put to Dr. Mustard in cross-examination: “Enteral decompression via nasogastric suction should take place early in the patient’s course to remove accumulated gas and fluid proximal to the obstruction.”
[138] Dr. Mustard was not familiar with this text, but disagreed that an NG tube should always be used to treat an ileus. This text was not put to Dr. Holliday.
[139] The plaintiffs’ general surgeon expert witness, Dr. Holliday, testified that the failure of the doctors at Credit Valley to place an NG tube during Emilio’s stay did not fall below the standard of care. He stated that this changed when Emilio arrived at Trillium because of the changes to the clinical findings, which include, the duration of the ileus since the operation, the vomit incident and the extent of the distension of his abdomen. I find that this evidence is inconsistent with the concept that the placement of an NG tube is the mandatory treatment for an ileus, and is more consistent with the concept that the placement of an NG tube in the presence of an ileus is a clinical decision.
[140] Dr. Mustard testified that the risk of aspiration in a conscious patient was remote; a patient would react violently to something that colloquially is referred to as “going down the wrong pipe”. That person would cough to clear the airway. He acknowledged that, in a compromised patient, someone who was unconscious for example, the risk of aspiration was higher as that person would not be able to react to the reflux of the fluid from the stomach. Emilio, however, was conscious and alert when Dr. Gelder examined him.
[141] Dr. Gelder testified that there could be complications arising from the insertion of an NG tube, including an increased risk of aspiration. Dr. Mustard echoed this concern. Dr. Holliday, in cross-examination, agreed that a patient with an NG tube is more susceptible to reflux of gastric contents and pulmonary aspiration.
[142] I accept that there are risks in inserting an NG tube, and that this was a factor in Dr. Gelder reaching his clinical decision to not insert an NG tube.
[143] I have found as a fact that Dr. Gelder reviewed the hospital chart information; he discussed Emilio’s situation with Nurse Armstrong and with Emilio; he undertook a physical examination of Emilio; he made a clinical judgment that the ileus was resolving and that an NG tube would not be inserted.
[144] I find that Dr. Gelder made an appropriate and acceptable clinical judgment that Emilio’s ileus was resolving.
[145] As the ileus was resolving, I need not determine whether, in the presence of an unresolved ileus, the failure to insert an NG tube would fall below the standard of care expected in 2003.
[146] I find that, in the presence of a resolving ileus, the failure to insert an NG tube did not fall below the standard of care expected of Dr. Gelder in 2003.
[147] I find that the plaintiffs have not proven on a balance of probabilities that Dr. Gelder’s failure to order the placement of an NG tube following his 10:00 p.m. assessment of Emilio fell below the standard of care expected of him in 2003.
Did Tasha Van Hemme’s Conduct Fall Below the Standard of Care?
[148] The Amended Statement of Claim does not have any specific allegations of negligence against Nurse Van Hemme.
[149] In closing submissions, the plaintiffs make two allegations of negligence by Nurse Van Hemme:
failure to note that the appropriate portion of the Credit Valley chart had not been forwarded when Emilio was transferred; and
failure to begin a fluid intake and output chart which would have shown Emilio’s intake was greater than his output.
[150] The evidence does not support these claims.
[151] I have already found that the appropriate medical chart from Credit Valley was sent with Emilio and was available to the medical staff at Trillium.
[152] I will deal with the issue of the creation of a fluid intake and output chart when I address the allegations against Nurse Armstrong.
Did Kerry Armstrong’s Conduct Fall Below the Standard of Care?
[153] In the Amended Statement of Claim, the plaintiffs allege that Nurse Armstrong’s conduct fell below the standard of care by her failure to inform a doctor of Emilio’s worsened condition, particularly his complaint of abdominal pain and decreasing oxygen saturation.
[154] In closing submissions, the plaintiffs did not pursue this allegation; rather, they asserted that Nurse Armstrong was negligent for failing to:
a) begin a fluid intake and output chart, which would have shown Emilio’s intake was greater than his output;
b) chart the episode of vomiting which occurred during the evening of November 8, 2003;
c) report to Dr. Gelder that episode of vomiting; and
d) consider an assessment of the risk of aspiration.
[155] I will deal with each allegation in turn.
1. Failure to inform physician of worsening condition
[156] The particulars of this allegation are twofold: abdominal pain and decreasing oxygen saturation.
[157] There was no evidence that Emilio was suffering from worsening abdominal pain. He had abdominal pain and there was a doctor’s order for morphine when necessary.
[158] I find that the plaintiffs have failed to prove on a balance of probabilities that Nurse Armstrong’s conduct fell below the standard of care expected of her in 2003 with respect to this issue.
[159] At midnight, Emilio’s oxygen saturation dropped to 79 per cent. Nurse Armstrong repositioned Emilio and gave him supplemental oxygen by nasal prongs. His oxygen saturation immediately recovered to 94 per cent. His vital signs were otherwise normal.
[160] Debra Cooper, the plaintiffs’ nursing expert witness, testified that a physician should have been notified; however, in cross-examination, she conceded that, while she would have “preferred to see a physician called”, it was also appropriate for Nurse Armstrong to continue to monitor Emilio to determine whether there was a trend developing. She acknowledged that in these circumstances some nurses might report this to a physician; others would not.
[161] I find that, in not reporting this change in oxygen saturation, Nurse Armstrong was exercising her nursing judgment, and that the plaintiffs have failed to prove on a balance of probabilities that this conduct fell below the standard of care expected of her in 2003.
2. Charting Issues
[162] There are two aspects to this allegation: first, that a fluid intake and outtake chart was not created by either Nurse Van Hemme or Nurse Armstrong,and second, that Nurse Armstrong did not chart the episode of vomiting which occurred on the evening of November 8, 2003.
[163] All parties agree that charting is a nursing duty and failure to chart appropriately would result in a breach of the standard of care. The point of separation is the definition of “appropriately.”
[164] Both Nurse Van Hemme and Nurse Armstrong testified that they recorded fluid balance information, and that information, as well as vital signs, would be recorded onto a graphic chart by the unit clerk when the clerk returned to work. However, as Emilio was transferred from the ward to the ICU before the end of the night shift, no such record was created.
[165] Ms. Cooper, the plaintiffs’ nursing expert witness, testified that the nurses should have begun a fluid balance chart. Ms. Shiozaki, the defendants’ nursing expert witness, testified that the required information was recorded and there was no obligation on the nurses to start a fluid balance; the unit clerk would create that chart when he/she came back on shift.
[166] I find that Nurses Van Hemme and Armstrong recorded the required information on the Assessment and Intervention Record and in the Progress Notes.
[167] The plaintiffs have failed to prove on a balance of probabilities that, by not starting a fluid balance chart, their conduct fell below the standard of care required of them in 2003.
[168] The second allegation with respect to charting is Nurse Armstrong’s failure to chart the episode of vomiting which occurred during the evening of November 8, 2003. There is a further allegation that Nurse Armstrong had a duty to report the episode of vomiting to a physician. I will deal with both allegations together as the evidence somewhat overlaps.
3. Failure to chart and report the episode of vomiting
[169] I prefer the testimony of Nurse Armstrong regarding the amount and nature of the emesis to the testimony of Mrs. Spirito for the reasons described above regarding the frailty of Mrs. Spirito’s memory. The amount of vomit was between 100 to 200 cc of emesis; it was clear; there was no evidence of blood. Both Mrs. Spirito and Nurse Armstrong agreed that Emilio felt better afterwards.
[170] Nurse Armstrong also testified that, on the surgical ward, vomiting was not an uncommon occurrence; it was something that she did not chart or report unless there were other symptoms, such as blood in the emesis, which warranted reporting and charting.
[171] Ms. Cooper testified that Nurse Armstrong had a duty to chart and report the episode of vomiting to a physician and her failure to do so fell below the standard of care.
[172] Ms. Shiozaki fully supported Nurse Armstrong’s exercise of judgment in not reporting the episode in the circumstances: it was Emilio’s first episode of vomiting at Trillium; he felt better and refused Gravol; it was a small amount. In cross-examination, she stated that she would have preferred that the episode was charted and that it would have been useful for her to report the incident, but she did not agree that the failure to do so fell below the standard of care.
[173] While a physician’s expectations do not establish the standard of care for a nurse, they are relevant in analyzing the issue. Dr. Holliday, the plaintiff’s general surgeon expert, testified that he would expect a nurse to exercise her judgment in determining whether to report an episode of vomiting. He testified that he thought that Dr. Gelder would have liked to have known about the episode of vomiting, but that Dr. Gelder had sufficient other information to exercise his clinical judgment. Dr. Mustard, the defendants’ general surgeon expert, testified that, in all of the clinical circumstances, he would not expect Nurse Armstrong to report the episode of vomiting to a physician.
[174] I am satisfied that Nurse Armstrong was exercising her nursing judgment in not reporting or charting the episode of vomiting. I agree that it would have been preferable for her to chart it; however, the failure to do so did not constitute a breach of her duty of care.
[175] I find that the plaintiffs have failed to prove on a balance of probabilities that Nurse Armstrong’s conduct fell below the standard of care expected of her in 2003 by her failure to chart and report the episode of vomiting.
4. Failure to consider an assessment of the risk of aspiration
[176] This issue was not put to Nurse Armstrong during her testimony. It was first raised with Ms. Shiozaki, the defendants’ nursing expert, in cross-examination. She testified that, as the chart reflected at 2:45 a.m. when Nurse Armstrong assessed Emilio, he was alert; it would not be a natural consideration for Nurse Armstrong to consider the risk of aspiration.
[177] It was suggested that, as Emilio had received morphine for pain, he would be compromised; in particular, his gag reflex would be compromised.
[178] The evidence does not support this theory.
[179] Mrs. Spirito testified that, when she left Emilio at approximately 10:30 p.m., he was alert. He was concerned about her safety in going into a parking lot at night; he called her at home to ensure that her trip was a safe one.
[180] Ms. Shiozaki testified that one side effect of a large dose of morphine was a suppressed respiratory rate; however, Emilio’s respiratory rate was charted at the high end of normal.
[181] The plaintiffs have failed to prove on a balance of probabilities that Nurse Armstrong’s conduct fell below the standard of care expected of her in 2003 by not considering the risk of aspiration.
Limitation Period Defence
[182] Doctors Cobourn and Gelder raised a limitation period defence in their Amended Statement of Defence. This was not pursued during closing submissions, and due to my other findings, I will not deal with it.
Conspiracy and Fraud
[183] During the trial, certain allegations of conspiracy and fraud were made against the defendant doctors. They were not pled and the evidence did not support such allegations.
Is there a Causal Connection?
The Law
[184] The law is clear. In medical malpractice actions the plaintiff must prove, on a balance of probabilities: a) a breach of the standard of care; and b) that the breach is causally connected to the injury in question.
[185] The Supreme Court of Canada in Ediger v. Johnston, 2013 SCC 18, [2013] S.C.J. No. 18, at para 28 stated:
That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred: Clements, at para 8. “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.” noting Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.
[186] In exceptional circumstances, the court may depart from the “but for” test and apply a “material contribution” test. First, it must be impossible for the plaintiff to prove the defendant’s negligence caused the plaintiff’s injury using the “but for” test. This must be due to factors outside the plaintiff’s control, such as the limit of scientific knowledge. Second, the proven breach of duty of care must expose the plaintiff to unreasonable risk of injury and the plaintiff must have incurred that form of injury: see Resurface Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 25.
Factual Causation
[187] I have found that the defendants did not breach their respective duties of care. Had I found a breach of duty of care, I would have dismissed the plaintiffs’ action, as there is no causal connection between any of the alleged breaches of the standard of care and Emilio’s death.
[188] The plaintiffs’ theory of causation is that Emilio experienced a massive aspiration and died from the complications arising therefrom, and that the placement of an NG tube following Emilio return to Trillium on November 8, 2003 would have prevented the aspiration, and his death. However, the evidence does not support this theory.
[189] I accept the uncontradicted testimony of Dr. Howarth, the only pathologist who testified at trial. He testified that Emilio died from air-borne bacteria that infected his lungs between 12 and 24 hours before his death, resulting in bilateral lobar pneumonia. The infection began before his transfer back to Trillium on November 8, 2003.
[190] Dr. Howarth testified that Emilio’s blood disorder, myelofibrosis, prevented him from fighting the bacterial pneumonia, and also kept him from exhibiting the typical symptoms of pneumonia.
[191] The plaintiffs called Dr. Huyer who was the investigating coroner. He is a general practitioner with no training in pathology. In his role as investigating coroner, he reviewed the chart and the post-mortem report of Dr. Manowski, and interviewed Dr. Cobourn and Emilio’s family. He concluded that the cause of death was pneumonia that extended throughout all lobes of both lungs. He had no concerns about the medical care that Emilio received at Trillium.
[192] He speculated that three factors may have contributed to the development of pneumonia, but he could not advise whether they were actually involved or when. He agreed that there was no direct link between them.
[193] Dr. Huyer agreed that he would defer to the findings of a qualified pathologist.
[194] Dr. Manowski undertook the post-mortem. His report was filed as an exhibit. The cause of death is listed as “Bilateral lobar pneumonia and paralytic ileus”. His report is based upon a review of Emilio’s history, the two hospital charts, as well as a gross examination and microscopic examination of lung tissues. Although the plaintiffs placed Dr. Manowski under summons, they did not call him as a witness. I conclude that his testimony would have confirmed the findings in his report.
[195] Dr. Oh, who was the on-call internal medicine physician who treated Emilio at 3:00 a.m. on November 9, 2003, testified that he would defer to the opinion of a qualified pathologist.
[196] Dr. Howarth, the defendants’ pathologist expert witness, concluded that Emilio died from severe bilateral lobar pneumonia. He stated that the lungs were “all involved in the inflammatory process”. He had never seen a situation where the inflammation was so diffuse throughout the lungs.
[197] In his opinion, the inflammation started 12 to 24 hours before Emilio’s death. This opinion was supported by the radiology report from Credit Valley at 2:32 a.m. November 7, 2003, that revealed that Emilio did not have pneumonia at that time.
[198] Dr. Howarth testified that a paralytic ileus did not cause Emilio’s death, and that he did not die from aspiration or aspiration pneumonia. He noted that a “patient has to actually be debilitated to aspirate significantly.” He stated that normally one would cough and try to hack up anything that went down the wrong way. He stated: “In debilitated patients, you can get aspiration pneumonia, and that is when the gag reflex is suppressed by a stroke or by a loss of consciousness for other reasons”.
[199] This evidence is consistent with everyday life experience. When something goes down the “wrong pipe”, one coughs explosively.
[200] Dr. Howarth did not rule out aspiration, but in his opinion the pneumonia would have caused the aspiration “because of the bilateral lobar pneumonia, which has caused so much destruction of the lung that he can no longer maintain consciousness”. In other words, at the point when Emilio’s condition was compromised by the pneumonia, his gag reflex would be compromised; he would be unable to cough up the regurgitated fluid.
[201] In cross-examination, Dr. Howarth was asked about the Hall’s Bilirubin Stain Test that would have distinguished bile from other matter in the lungs. Bile would have signified the presence of stomach contents in the lungs. He testified that, although that test was not done, it was not necessary. The formalin crystal test confirmed to him that bile was not present.
[202] The plaintiffs attempted to elicit evidence from Dr. Howarth to support their theory that the bacteria present in Emilio’s lungs was peptostreptococcal bacteria and not streptococcal; peptostreptococcal bacteria would come from aspiration of stomach contents.
[203] Dr. Howarth disagreed with the theory that the pneumonia was caused by aspiration. He stated that it was not scientifically possible based upon Emilio’s clinical progression and microscopic findings: “That’s not possible. It’s not possible to have bacteria set up foci, in small little areas and proliferate within a two hour period to fill the lungs. That’s physically not possible, they can’t proliferate that rapidly.”
[204] I accept the uncontradicted evidence of Dr. Howarth; Emilio died from bilateral lobar pneumonia caused by an air-borne bacteria.
Dr. Cobourn
[205] In light of my finding that the cause of death was bilateral lobar pneumonia acquired from air-borne bacteria 12 to 24 hours prior to his death, the allegations of negligence as they relate to matters occurring prior to Emilio’s re-admission to Trillium at 6:30 p.m. on November 8, 2003 could have no causal connection to Emilio’s death.
[206] The plaintiffs have not proven on a balance of probabilities that there is a causal connection between these allegations and the cause of death.
[207] With respect to the allegations regarding:
Dr. Cobourn’s failure to assess Emilio upon his re-admission to Trillium;
his order to continue the diet of clear fluids; and
his failure to communicate with Dr. Gelder,
even if any one of these constituted a breach of the standard of care, I accept Dr. Holliday’s testimony that there was no adverse incident between Emilio’s admission to Trillium at 6:30 p.m. on November 8, 2003 and Dr. Gelder’s examination at 10:00 p.m. that evening, and that no intervention was required during that period. In other words, no harm was done by these actions or inactions.
[208] The plaintiffs have not proven on a balance of probabilities that there is a causal connection between these allegations and the cause of death.
Dr. Gelder
[209] As Emilio died from bilateral lobar pneumonia, there is no causal connection between the allegation that Dr. Gelder failed to order an investigation of the post-operative haemorrhage and the cause of death.
[210] The remaining allegation against Dr. Gelder is his failure to insert an NG tube following his examination of Emilio at 10:00 p.m. on November 8, 2003. Although I have found that this did not constitute a breach of the standard of care, if it was, there is no causal connection to Emilio’s death. Indeed, Dr. Holliday, the plaintiffs’ general surgeon expert, testified that if it was determined that the cause of death was bilateral lobar pneumonia, then the insertion of an NG tube would not have altered the outcome. Dr. Mustard, the defendants’ general surgeon expert, supported this opinion.
[211] I find that the failure to place an NG tube at 10:00 p.m. on November 8, 2003 is not causally connected to Emilio’s death.
[212] The plaintiffs have not proven on a balance of probabilities that there is a causal connection between this allegation and the cause of death.
Nurses Van Hemme and Armstrong
[213] The allegations of negligence against Nurses Van Hemme and Armstrong all relate to the failure to provide, either through charting or reporting, information to the physicians to enable the doctors to exercise their clinical judgment to insert an NG tube. Had any such action or inaction been a breach of the standard of care, they are not causally connected to the cause of Emilio’s death.
[214] The plaintiffs have not proven on a balance of probabilities that there is a causal connection between these allegations and the cause of death.
Conclusion
[215] The plaintiffs’ claims are dismissed, with costs, if demanded.
[216] The parties may provide cost submissions not to exceed three pages (not including any offers to settle or bill of costs). Counsel for the defendants shall provide their submissions within 15 days. Counsel for the plaintiffs shall provide their submissions within 15 days thereafter, with reply submissions, if any, within 7 days thereafter.
D.L. Edwards J.
Released: September 12, 2013
CITATION: Spirito v. Trillium Health Centre, 2013 ONSC 5138
COURT FILE NO.: CV-04-012458-00
DATE: 2013-09-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Mary Spirito, as Estate Trustee Without a Will of the Estate of the Late Emilio Spirito, and the said Mary Spirito, Personally, Christopher Spirito, Lori Ann Bertan, Personally, and as Litigation Guardian of Jessica Bertan, Minor
Stewart Gillis and Duncan Embury, for the Plaintiffs
- and –
The Trillium Health Centre, The Credit Valley Hospital, Dr. Christopher Cobourn, Dr. Cameron Gelder, Dr. Allan Kagal, Dr. Lee, Dr. Leigh, Dr. Lancelot Tin and Dr. Adam Mohammed, Kerry Armstrong, Doctors EF, GH and Nurses IJ, KL, MN, OP
Peter Osborne and Jaan Lilles, for the Defendants Dr. Christopher Cobourn, Dr. Cameron Gelder, Dr. Lancelot Tin and Dr. Adam Mohammed
Simon Clement/Anna Marrison, for the Defendants The Trillium Health Centre, The Credit Valley Hospital, Kerry Armstrong and Nurses IJ, KL, MN and OP
REASONS FOR JUDGMENT
D.L. Edwards J.
Released: September 12, 2013