Superior Court of Justice
COURT FILE NO.: C-839/09
DATE: 2015-06-10
ONTARIO
BETWEEN:
CHRIS BEHRENDT, ALLISON WOOD-BEHRENDT, EMMELINE BEHRENDT by her Litigation Guardian, Allison Wood-Behrendt, and ANDREAS BEHRENDT, Deceased, by his Litigation Administratix, Allison Wood-Behrendt
Plaintiffs
– and –
DR. STEPHANIE MILONE, DR. CONSTANTINE MALLIN, DR. DAVID CORMIER, DR. DAVID JOSEPHSON, HEADWATERS HEALTH CARE CENTRE, VALERIE BANNER, BEVERLEY MacNEIL, KATHERINE FERRIS, MARY JANE WHITE, MARGARET SMITH, TANYA KLIMEK and NURSE JANE DOE
Defendants
COUNSEL:
Paul M. Mann, Counsel for the Plaintiff
Thomas N.T. Sutton and Shane C. D’Souza, Counsel for the Defendant Physicians
Mary Lynn Gleason and Lee Lenkinski, Counsel for the Defendant Nurses and the Defendant, Headwaters Health Care Centre
HEARD: February 9-13, 17-20, 23-27, March 4-6, 9, 12-14, April 14, 2015
THE HONOURABLE MR. JUSTICE R.D. REILLY
REASONS FOR JUDGMENT
[1] This is an action claiming damages for negligence, more specifically against the various defendants for their alleged failure to comply with a standard of care expected and required of all healthcare providers.
[2] The action results from the death of Andreas Behrendt in the early morning of July 8, 2008. Andreas was born on June 28, 2008 at the Headwaters Health Care Centre and died some 10 days later at the same hospital. Chris Behrendt and Allison Wood-Behrendt are the parents of Andreas. His mother was an in-patient at the hospital at the time of his birth and his loving father was in attendance, as indeed was his sister Emmeline, who was older by some 2 years and had been born in the same hospital. Both Andreas’ mother and father are well educated and sophisticated members of the community. They welcomed Andreas into their family with great joy.
[3] Andreas was examined shortly after his birth by Nurse Valerie Banner. I will deal with her evidence in further detail below, together with the other physicians who dealt with Andreas shortly after his birth. Nurse Banner did a thorough newborn assessment, including taking his temperature with a rectal thermometer which had a head of 5mm. Andreas’ temperature was normal for a newborn and his APGAR scores immediately following his birth were 9 and 9. Andreas appeared to be a healthy newborn baby.
[4] On June 28th and/or June 29th (see details below) Andreas was given a discharge examination by Dr. David Cormier confirming that he was a healthy newborn. Dr. Cormier discharged Andreas and his mother from the hospital on June 29th. Andreas was sent home to enjoy his new life with his family.
[5] As a result of what his mother felt was a possible problem with diarrhea she phoned Telehealth on the 1st of July, 2008. She was apparently advised that she should not be concerned and simply attend with Andreas at his first “well baby” appointment with the family physician, Dr. Stephanie Milone.
[6] On the 2nd of July, mother and father attended with Dr. Stephanie Milone at the family clinic. As a result of Dr. Milone’s concern that Andreas might be jaundiced, she made an immediate referral to Dr. David Josephson at the Headwaters Health Care Centre Hospital next door. Mother and father immediately took Andreas to see Dr. Josephson who conducted a bilirubin test to assess for jaundice. Dr. Josephson assessed that the test might be slightly elevated but there was no need for concern. The family again went home.
[7] Over the 3rd to the 4th of July, mother testified that Andreas appeared to be in greater distress. There was also, according to mother, an increased problem with his feeding. Therefore, on July 7th, according to mother, after repeated calls she arranged an appointment at the clinic for 6:00 p.m. Father had decided to begin again his professional obligations, so at 6:00 p.m. Andreas’ mother attended with Andreas to see Dr. Constantine Mallin, a clinic associate with Dr. Stephanie Milone. Dr. Mallin examined Andreas and apparently stated he was encouraged by his condition and booked another appointment for the next day, July 8th, with Dr. Milone, the family physician, for 1:40 p.m.
[8] Andreas’ father was sufficiently concerned about his condition and the appointment Andreas’ mother had booked with Dr. Mallin that he attended at the hospital by bus from where he was working in Toronto. He met Andreas’ mother outside the clinic and they then debated what further steps they should take, immediately or the next day, with respect to their concerns for Andreas. They decided to go home to their residence nearby at Grand Valley and make a decision about what they should do the next day.
[9] Early the next morning, Andreas’ condition deteriorated. An ambulance was called in the early morning hours to take Andreas to the Headwaters Health Care Centre in Orangeville.
[10] After Andreas’ arrival, the paramedics rushed him into the emergency room where he was immediately seen by Dr. Reesor, who was on duty. Dr. Reesor became sufficiently concerned that he immediately contacted Dr. Ron Murphy, the paediatrician on call. From the time of his arrival at the hospital, 2:51 a.m., the next two hours, Dr. Reesor and Dr. Murphy did their best to deal with Andreas’ apparent problems and sustain his life until he passed away at 4:54 a.m. As I noted above, some of this time will be dealt with in detail below.
[11] The plaintiffs claim that the three physicians, Drs. Cormier, Milone and Mallin (or any one or two of them) fell below an expected standard of care in dealing with Andreas, which effectively constitutes negligence on their part (or any one or two of them). The plaintiffs essentially claim that “but for” that negligence, Andreas would not have died and therefore the defendants (or any one or two of them) should be found liable for such negligence. The defendants maintain that the defendant physicians all met the standard of care expected of them and in no way bear responsibility for Andreas’ death. The defendants also maintain that in the early morning of July 8th at the hospital, there was a Novus actus interveniens, a new intervening act that was in fact the cause of death of Andreas and that any negligence which preceded the new intervening act was interrupted or struck by the new intervening act which was in fact the actual cause of death.
[12] I will therefore, bearing in mind that each of the defendants is entitled to be judged independently based on his or her actions (or lack thereof) be dealing with each of the physicians as an individual and considering the role that they played or did not play in this tragic chain of events.
[13] As I consider the standard of care demonstrated by the defendants, I will also consider whatever decision I make with respect to standard of care the issue of the Novus actus interveniens as an issue in this case, raised as it has been by counsel.
[14] During the course of trial, counsel indicated on consent, that the claims against a number of the defendants were being abandoned by the plaintiffs. As a result of their submissions, I endorsed the trial record on the 25th of February 2015 as follows, identifying all counsel as being present:
“Counsel have advised me that all parties have agreed that the actions including crossclaims may be noted as dismissed as abandoned against all of the defendants with the exception of the principal claims of the plaintiffs as against the defendants Dr. Stephanie Milone, Dr. David Cormier and Dr. Constantine Mallin. This dismissal includes any claim for costs, and the claims by the infant plaintiff.”
[15] There then remain the claims against Dr. Stephanie Milone, Dr. Constantine Mallin and Dr. David Cormier. That therefore removes arguably the volume of work required of this court, but does not in any way diminish the court’s legal responsibility in this challenging and sensitive case.
[16] I will then continue to deal in greater detail with the evidence with respect to the three remaining defendants, Dr. Stephanie Milone, Dr. Constantine Mallin and Dr. David Cormier. Before I deal with each of them individually, I will make brief comments with respect to the concept of duty of care, as it relates to any attending physician.
[17] The three remaining defendants are general practitioners, practising in Orangeville with privileges at the Headwaters Health Care Centre. The duty of care of a general practitioner and in particular as it relates to these three defendants, has been well established in Ontario and in Canada. I agree entirely with the jurisprudence cited by the plaintiffs and the defendants in this case with their oral submissions and with the jurisprudence set out in their written arguments. I shall only cite briefly from that jurisprudence.
[18] Justice Schroeder of the Ontario Court of Appeal in the well-known case of Crits v. Sylvester stated:
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 in 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. (Crits v. Sylvester 1956 CanLII 34 (ON CA), 1956 O.R. 132)
[19] In this case there is not an issue as there is in some of the jurisprudence as to a mistaken diagnosis. Andreas was suffering from a chronic condition, anal stenosis, about which I shall have more to say in a moment. There was simply no diagnosis of his condition, a condition which one way or the other ultimately led to his death.
[20] In coming to a diagnosis a doctor has a duty to take a complete and accurate history of the patient, perform a proper and thorough examination of the patient, use the scientific means and facilities available to him and if necessary refer the patient to a specialist and to perform the appropriate tests where necessary. This obligation was well set out by Mr. Justice Hope in Bergen v. Sturgeon General Hospital, [1984] 52 A.R. 161(Q.B.) at para. 28.
[21] I am mindful of the reliance that the plaintiffs have placed upon this case, as well as the reliance of the plaintiffs on the comments of Justice Lissaman in the case of Chow (Litigation Guardian of) v. Wellesley Hospital, [1999] O.J. No. 279 at para. 191.
[22] I am also mindful of counsels’ reliance on Grant Estate v. Mathers 1991 CanLII 4496 (NS SC).
[23] I have as well taken into consideration the other jurisprudence cited by counsel, including Ghent and Ghent v. Wilson, 1956 CanLII 128 (ON CA), [1956] O.R. 257, Serre et al v. de Tilly et al 1975 CanLII 389 (ON SC), 1975 O.J. No. 2315 (HCJ) and the other jurisprudence cited by all counsel in their oral and written submissions.
[24] Before I deal with the care offered by the three defendant physicians, it is important to note the nature of the congenitive condition from which Andreas suffered. Anal stenosis is a very rare subset of a general range of congenital anal rectal malformations. These are developmental defects in the anus and rectum. Anal rectal malformations are as noted very rare, found in approximately 1 in 5,000 newborns. The incidence of anal stenosis is only 1-2% of all anal rectal malformations, otherwise expressed, anal stenosis is exceptionally rare. Andreas’ anal stenosis, it is clear from his autopsy, occurred in the area of his pectinate line, perhaps 1.5-2 cm from the anal opening. The evidence has persuaded me clearly that the anal stenosis was not visible externally. The perineum will still appear to be normal by external observation. Anal stenosis is usually diagnosed by symptoms, such as vomiting.
[25] Anal stenosis can also be typically associated with other congenital abnormalities. This may include a fistulous with surrounding structures, such as the vagina or bladder. These are commonly known as DACTERL associations. They include vertebral anomalies, anal atresia, cardiac defects, tracheal esophageal fistula and/or esophageal atresia, renal and radial anomalies, as well as some limb defects.
[26] Anal stenosis may be diagnosed in a newborn if the infant does not pass his meconium. However if meconium is passed, as in the case of Andreas, it is not uncommon for anal stenosis to be diagnosed days, weeks, months or even years later. Diagnosis may occur when there is a delayed passage of meconium, vomiting, constipation, distal bowel obstruction or otherwise the baby is sickly, failing to thrive and is not growing well. This evidence was given by a number of expert witnesses, including Dr. Chris Justinich.
[27] Dr. Justinich testified that a reference is made to a paediatric surgeon in many cases, sometime well after anal stenosis is suspected, particularly if the infant is otherwise clinically well and stable. Dr. Sharon Unger testified in a similar vein.
[28] The time has now come for me to deal with the evidence as it relates to each of the individual defendants, Dr. David Cormier, Dr. Stephanie Milone and Dr. Constantine Mallin.
[29] As noted above, Andreas was born on the 28th of June 2008, in the early morning. He was released from the hospital by Dr. David Cormier on the 29th of June 2008.
[30] Dr. David Cormier testified that he was on duty on both the 28th and the 29th of June. His normal practice, he testified, was to see all in-patients on each of the days he was on duty.
[31] In all candour I find some difficulty in dealing with the probative value to be given to the mother, Allison and to the father Chris, as it relates to each of their contacts with the defendant physicians. The mother Allison is and was at trial obviously angry and upset with the care or lack of care she believed that her son Andreas received from attending physicians. I would emphasize that I do not find her a discredible witness, but I must take her animus into account with respect to her description of her contact with the defendant physicians, Dr. David Cormier, Dr. Stephanie Milone and Dr. Constantine Mallin.
[32] I must say I initially had some difficulty in assessing the reliability I gave to one of the defendant physicians, Dr. David Cormier. He testified that he had no recollection of his contact with Andreas or Andreas’ family. I initially found that difficult to understand, given the consequences that ensued a few days later, the death of Andreas. However I subsequently learned that Dr. Cormier is not a member of the same health care team with Dr. Stephanie Milone and Dr. Constantine Mallin. Apparently he did not learn of the death of Andreas until approximately one year later. I therefore find it somewhat understandable that he might have lost his recollection of his first contact with Andreas.
[33] Dr. Cormier was on staff at the hospital on June 28th and June 29th, 2008. He testified that it was his normal practice to see every patient in the hospital on each day on which he was on duty. He has no specific recollection of what day he conducted the discharge examination of Andreas, but it is clear from the records that he discharged him on June 29th.
[34] It may be important to note that when Dr. Cormier came into the room at the Headwaters Health Care Centre that Andreas had already been examined by Nurse Valerie Banner. Dr. Cormier was in to examine a newborn baby, apparently in good health. The evidence of the mother, Allison Wood-Behrendt, confirmed by her husband, Chris Behrendt, was that when Dr. Cormier came into the room he was “angry” because he was called in to perform this discharge examination, in the late morning or early afternoon. He was angry because the doctor who was supposed to be there to perform the examination was at a Stanley Cup game “or some other sporting event”. It may be noted, for what it’s worth, that on that day at the end of June, the Stanley Cup was long since terminated. I note as well that Dr. Cormier was noted by hospital records to be on duty on both the 28th and 29th of June.
[35] The mother, Allison Wood-Behrendt, testified that Dr. Cormier was present less than 5 minutes. She testified that this was the only time she saw Dr. Cormier. She did testify that she didn’t inform Dr. Cormier with respect to any concerns she may have had regarding Andreas’ anus. She testified that by her perception, Dr. Cormier was only there to discharge Andreas. She didn’t recall whether Dr. Cormier measured Andreas or performed any other physical examination with a stethoscope or otherwise. She did testify that Dr. Cormier did remove Andreas’ diaper, but did not recollect whether he touched his penis, testacles or moved his arms or legs, or performed any other physical examination.
[36] Andreas’ father, Chris Behrendt, testified that when Dr. Cormier opened the diaper he was “disgusted” and criticized the father with respect to the dirty diaper. Chris Behrendt offered to change the diaper, but Dr. Cormier said “don’t bother”.
[37] Chris Behrendt said that Dr. Cormier did “discuss things” with Allison Wood-Behrendt and then filled out a piece of paper. Chris Behrendt testified that he never discussed Andreas’ anus with Dr. Cormier. Dr. Cormier testified as to his usual practice with respect to a discharge examination.
[38] Both mother and father testified that they did receive copies of the “Discharge Summary” (Exhibit 12) and the “Infant Passport” (Exhibit 13).
[39] Dr. David Cormier is an experienced physician. His C.V. was introduced on consent as Exhibit 39. Part of his usual practice is to visit newborns on a daily basis. He confirmed that all of the handwriting on Exhibit 3 (co6.01) is his.
[40] The newborn assessment which he conducted of Andreas was done within 24 hours of birth. Because this was on the weekend staff does not normally call the family doctor, which would have been Dr. Milone. He does not have a specific recollection of his attendance with the Behrendt family. However, his normal practice when he enters the room is to introduce himself and then inquire as to any concerns the family may have. Any concerns expressed will be reflected in his “comments”. When he marked the chart “okay”, this meant that his examination was “within normal range”.
[41] Dr. Cormier went on to demonstrate how he would examine a newborn using Exhibit 42, the “doll”. The assessment is at the bedside with mother present. The baby was in the basinet, on a cabinet by the bed. Dr. Cormier testified that he would have gone through a full check of the newborn infant. Part of that check would have been to separate and bend the legs, to separate the bum and view the anus. He would have attempted no insertion into the anus because there was no indication that that was appropriate. Following the inspection of the anus (from the exterior), he then checked the back and spine.
[42] He testified that if there was anything abnormal that he saw with respect to the anus, he would have pointed it out to the parents and documented it in the chart. He testified specifically when shown Exhibit No. 18 (post-mortem photos) he had never seen anything like that before. With respect to No. 11, he specifically testified “that does not look anything like the boy’s anus when I saw it. It is well outside the range of normal.”
[43] He further testified that he would not have stopped his examination because of any stool in the diaper. He would have cleaned the baby. He further testified that the presence of stool is reassuring.
[44] He went on to testify that he would have spent 15-20 minutes for a full assessment.
[45] Under cross-examination, he testified that although he has no specific present recollection, he believes that he saw Andreas on both the 28th and 29th of June. He charged OHIP for only one newborn visit because that is the limit that OHIP will pay, together with a discharge assessment of the mother.
[46] Dr. Cormier went on to testify that he had never experienced anal stenosis previously, but he never saw anything in terms of his assessment of Andreas that caused him any concern.
[47] Summarizing the evidence of the hospital records, Andreas’ parents, attending nurses and Dr. David Cormier, and appreciating fully the oral and written submissions of the plaintiffs and defendants, I conclude on a preponderance of the evidence that Dr. David Cormier did attend as a discharge physician on Andreas on June 28th and/or June 29th and did authorize his discharge from the Headwaters Health Care Centre with his mother, Allison, and his father, Chris. If the parents’ evidence is accurate, his behaviour when he attended to discharge Andreas was inconsiderate, disrespectful and unprofessional. However, in all candour, I find the parents’ evidence in that regard is difficult to believe. Whatever pressures a physician may feel from time to time, there is nothing to justify discourtesy.
[48] Both mother and father understandably are distressed in the extreme at the loss of their little boy Andreas. Any reasonable person would feel the same way. They may be interpreting events in an attempt to find fault with those who might bear responsibility for Andreas passing.
[49] Putting that aside, however, and even if Dr. David Cormier behaved toward the parents in a disrespectful fashion, I am quite satisfied that he performed a thorough examination of the newborn baby. As I have noted above, regrettably, there is no reason why Andreas’ anal stenosis which was chronic and clearly existed at the time of Dr. Cormier’s examination should have been in any way apparent to him. He could do nothing other than that which he did, discharge this newborn baby. I have considered all the evidence in this case, including the evidence of Dr. Keith Thompson and Dr. David Tennenbaum. Having considered that evidence carefully, including Dr. Cormier’s evidence as to his usual practice, I say again that I conclude Dr. David Cormier did not fall below the standard of care expected of a general physician conducting a discharge examination. There was nothing that could have alerted him to a problem that would result in a further referral or consultation. The claims against Dr. David Cormier are dismissed.
[50] Mother and father, Mr. and Mrs. Behrendt, with Andreas and this time with their infant daughter, Emmeline as well, sought a family physician, Dr. Stephanie Milone, on July 2, 2008. The appointment was booked for 12:10 p.m.
[51] Both parents told her they were concerned about Andreas.
[52] Based on the evidence before the court, Dr. Stephanie Milone performed a full examination of the baby, consistent with that which would be expected of a family physician at a first “well baby” examination.
[53] Andreas had stool in his diaper when Dr. Milone performed her examination. According to Andreas’ father, Chris, he pointed to Andreas’ anus and asked if it looked normal. Dr. Milone told him that it was “completely normal in boys”. Summarizing the evidence of the three witnesses, Dr. Milone and Chris and Allison Behrendt, that well baby examination appears to have been a reasonably pleasant experience for all concerned.
[54] Dr. Milone expressed some concern about his skin colour and arranged for an immediate bilirubin test to be done at the hospital next door. She spoke directly with Dr. Josephson, the doctor on duty, to expedite the test. Based on what she had been told by the parents, she sent a note to Dr. Josephson and endorsed the record as follows:
“Thank you for seeing this 4 week old baby with jaundice. Feeding well, good stool and urine output.”
[55] To summarize, Dr. Milone found Andreas in fine condition for a newborn baby and quite stable, subject to her very slight concern about the possibility of jaundice, the reason for which she requested the bilirubin test.
[56] Andreas had a bilirubin test with Dr. Josephson, which turned out to be slightly elevated, but of no immediate concern. Dr. Milone advised Andreas’ parents to arrange another follow-up attendance in 4-5 weeks.
[57] I had the opinion when I heard her evidence that Dr. Milone was very concerned about Andreas and the family, but she was examining a baby who seemed well and there appeared to be no clinical concern. The parents’ concern with respect to explosive stools and other related matters did not seem to be inconsistent with the concern expressed by any newborn parents.
[58] I would note that Dr. Milone’s concern about the baby’s colour resulted in her directing an immediate bilirubin test. Ultimately, she directed that Andreas and his parents be returned to her in 4-5 weeks, for another examination. On the surface, that would seem to be consistent with the conscientious and professional approach of a family physician.
[59] I would note again that Andreas’ chronic condition is anal stenosis and would not be apparent to any reasonable physician. He had not begun to demonstrate the symptoms that would be a red flag to a physician.
[60] Dr. David Tennenbaum testified as an expert witness on standard of care for the defendants. He was indeed a most impressive witness. He testified, as did other witnesses, that there was no need in the circumstances for the physician to perform an intrusive anal examination. Dr. Tennenbaum continued to testify that he commonly hears parental concerns about the passage of stool, whether it is explosive, the variety of colour, high volume, soft flowing stool or whether it extends beyond the diaper. He testified that Dr. Milone met the standard of care with respect to history taking.
[61] Dr. Tennenbaum was also present when Dr. Milone testified, using exhibit 42, how she examined Andreas. Dr. Tennenbaum testified:
“In my opinion, I believe that she met the standard of care completely. The physical examination in this case in 4 days, and the first week, is to review the health of the child, the development to date, a review of what happened during pregnancy. The feeding patterns, the passage of stools and urine and an examination that screens for any obvious abnormalities … so she conducted the examination and demonstrated in an examination that was complete and appropriate at this age (under a week of age) did so in a comprehensive way.”
[62] Dr. Tennenbaum continued to opine that Dr. Milone addressed Andreas’ possible jaundiced appearance in a way that met the standard of care.
[63] In sum, I conclude that given his chronic condition and given no reason to do otherwise, Dr. Stephanie Milone did not fall below the standard of care expected of a general practitioner in the circumstances. She asked the parents that the baby be returned for further attention in 4-5 weeks. She had no reason to believe that his chronic condition (which was not apparent) would result in a tragedy shortly thereafter.
[64] The next appointment with a physician was on July 7, 2008, with Dr. Constantine Mallin. Allison Wood-Behrendt testified that Andreas was “aggressive and assertive” because of a “problem with his bowels”. When she called the clinic, she was told that Dr. Milone was unavailable. She subsequently called back, insisted on an appointment and was given an appointment at 5:50 p.m. with Dr. Constantine Mallin, one of the defendants. Dr. Mallin is a clinic colleague with Dr. Stephanie Milone. When she saw him, Andreas’ mother, Allison, advised him about her concern about Andreas’ bowel movements, his breastfeeding and his alertness. That was her evidence. On her evidence, Dr. Mallin “stopped” her description with an open hand. He was reading the information about the case on the computer. Allison testified that he didn’t “encourage” any further information.
[65] She testified that Dr. Mallin said she should come back the next day and indeed made an appointment for her to see the family physician, Dr. Milone. She went on to say that Dr. Mallin gave a “thorough” examination of the infant.
[66] It is important to note and I am very mindful that by this day, Andreas’ father Chris had gone back to work in Toronto.
[67] On his evidence, as a result of a “frantic phone call” from his wife Allison, he travelled by GO Bus from Toronto to Orangeville to meet with Allison and Andreas at the clinic. When he arrived in Orangeville, he met Andreas and Allison outside the clinic and they decided what they should do. They decided to go home and to decide the next morning whether to come back to the hospital or to take Andreas to another hospital.
[68] Regrettably that night and early the next morning, Andreas’ condition deteriorated to the point where he finally, at the Orangeville hospital, passed away.
[69] There is no question that Dr. Mallin performed a complete examination of Andreas at the time.
[70] In all candour, I have some serious concerns about the position of Dr. Mallin in the circumstances. He was asked to step in on behalf of a colleague and examine a newborn baby about whom the parents expressed serious concerns. Andreas had already been examined by two previous physicians, in the previous week.
[71] When he testified, Dr. Constantine Mallin, stated he had never seen in his professional career an anal malformation. He has significant practice experience in Toronto and in Grand Valley. He has over the years performed many newborn assessments and has served as an emergency physician at the Headwaters Hospital. He testified that though he has seen “thousands” of newborn anus’, which revealed “a wide variety of normal” he has never experienced an anal stenosis.
[72] When Dr. Mallin testified, the court was impressed by his sense of dedication and also by his sense of tragedy at what happened to Andreas.
[73] When he was in the examination room, after introducing himself, he began to check the electronic record of Andreas’ birth and post-birth. He said that he at one point may have put up his hand to indicate to Andreas’ mother Allison that wanted to continue to check the record.
[74] He said that Andreas’ mother Allison did describe Andreas’ stools as “explosive” and “frequent”. When he asked Andreas’ mother if anything was “different” about that day, apparently Allison told him that Andreas was crying when he was passing urine. Allison went on to say that there was no vomiting or that Andreas was “spitting up”
[75] Dr. Mallin took no actual temperature, but he said that Andreas felt “normal”. He weighed the baby and found that he had gained weight since his birth. He further testified that Andreas was “content” with a “good tone”.
[76] He went on to testify that Andreas’ mother never reported that Andreas had stopped feeding and did not report that Andreas was lethargic, nor inconsolable. He further testified that Andreas was wide awake and alert during the visit and that he looked at the light through the window. He concluded that there was “no acute process going on”.
[77] He went on to testify about a full physical examination, including after loosening Andreas’ diaper, an examination of Andreas’ tummy and his abdomen, which resulted in no reaction from the baby. He had a “good look” at Andreas’ penis because mother had reported that Andreas had been crying during urination. He lifted the legs up to observe the perineum and testified that the anus looked normal. He did see a tiny ridge running from the scrotum to the anus, which he touched lightly with his finger and the baby didn’t react.
[78] After his thorough physical examination, he concluded that the baby might have an “unusual feeding intolerance”, but that the baby was “stable”. He was feeding and not vomiting. He therefore arranged an appointment next day with the family physician, Dr. Milone, and given mother’s concern, he recommended the possibility of a paediatric consultation with Dr. Murphy. He concluded that the situation was “stable”. He felt that mother was “relaxed” when the appointment was over.
[79] When Dr. Mallin was shown the photographs at Exhibit No. 18, with which the court is quite familiar, Dr. Mallin testified that Andreas’ perineum and anus did “not at all” look like that. He further testified that photo 1 did not at all look like Andreas’ abdomen. He went on to testify that if Andreas had presented as in the photographs in Exhibit 18, he would have made an immediate emergency referral.
[80] He continued by saying that he did not perform a digital examination of Andreas’ anal gland because the anus looked normal.
[81] I am mindful of the position of the plaintiffs with respect to the standard of care or absence of standard exhibited by Dr. Mallin. I am mindful of the evidence in the case, their submissions and specifically the written submissions of the plaintiffs at page 46 (et seq) of their closing written arguments. However, having carefully considered this issue, I am satisfied that Dr. Mallin met the standard of care expected of a competent family physician in the circumstances. Apart from these submissions, and the material presented by the plaintiffs, I have also considered inter alia the evidence of Dr. Tennenbaum and his opinion that Mr. Mallin met the standard of care (written submissions of the defendants, page 16 et seq). Dr. Tennenbaum testified:
“A child presenting to the afterhours clinic for everything other than a routine visit creates a situation for the doctor to determine whether it is an urgent situation or not, can it by resolved by medication, can follow-up or needs immediate need urgent. From what I heard, there was no need for an urgent referral for the child.”
[82] Dr. Tennebaum opined that based on Andreas’ clinical circumstances, there was no reason to send Andreas to the emergency room. He found that there was no urgent or dangerous situation.
[83] Though Dr. Tennebaum’s assessment turned out to be regrettably incorrect in the result, I do not disagree with that assessment. I believe that Dr. Mallin conducted himself in accordance with standard practice and although I suspect he wishes he could have done otherwise or recommended otherwise at the time, he did not fall below the standard of care expected of a reasonable physician and therefore should not be found liable for negligence in the circumstances of this case. I reject the claim against him.
[84] This case involves a real tragedy. The death of a newborn baby boy from a chronic medical condition that directly or indirectly caused his death, which was not detected by any of the dedicated attending physicians. I would state again that Andreas’ anal stenosis, which may have directly or indirectly led to his cause of death could not have been determined by observation of any of the defendant physicians.
[85] Andreas was properly examined by Nurse Banner, the original attending nurse, who inter alia performed a rectal examination, all of which seemed appropriate. All of the original indications were that this was a healthy newborn baby.
[86] That set the path for Dr. David Cormier, Dr. Stephanie Milone, Dr. Constantine Mallin and for that matter, Dr. David Josephson, in their subsequent examinations.
[87] I would emphasize again that in my determination that none of the defendant physicians are responsible for any negligence, that I do not believe that any of these physicians would not learn from this experience.
[88] Wisdom is based upon experience. Experience is sometimes based upon tragedy. I am confident that everyone involved in this case will learn from this experience and that hopefully the death of Andreas Behrendt will add to the wisdom of everyone involved in this case.
[89] I now turn to an issue which the parties have asked me to determine and that is the actual cause of death of young Andreas.
[90] Dr. Glen Taylor is a pathologist at Mount Sinai Hospital in Toronto. He also holds a staff pathologist position at the Hospital for Sick Children. He works for the coroner’s office and is on the coroner’s pathologist registry focusing on paediatric cases. His expertise is beyond dispute.
[91] Dr. Taylor performed the autopsy on Andreas and provided his opinion that “the ultimate cause of death, or the proximate cause of death was e coli sepsis … due to or as a consequence of aspiration pneumonia, due to or as a consequence of bowel obstruction, due to or as a consequence of congenital anal stenosis with an additional or potential contributing factor of islet septal hyperplasia”. Dr. Taylor’s opinion received some criticism from counsel for the defendants, both orally and in their written submissions. I am mindful of that criticism, particularly the concern that Dr. Taylor, it is alleged, failed to take into account the possible displacement of the endotracheal tube. He testified that it was most likely, or at least a high probability that displacement of the ET tube from the trachea into the esophagus probably occurred after death. He testified “I’m not 100% sure of that, it might have happened before death but probably after death.” and gave his reasons for coming to that conclusion.
[92] Dr. Jacob Langer, who is a highly qualified paediatric anal rectal surgeon, also testified as to cause of death. Dr. Langer testified that Andreas’ cause of death was “a congenital anal rectal malformation with stenosis (narrowing of the anus), which resulted in a partial bowel obstruction, which resulted in sepsis.”
[93] Dr. Langer continued to opine that this narrowing resulted in an obstruction prior to the days leading up to Andreas’ death. The obstruction then led to sepsis or a general infection and as a result of being so sick with this infection, that Andreas could not be resuscitated. I am mindful of the defendants’ criticism of Dr. Langer’s opinion and return to the clear evidence in the case that Andreas was in fact, during the period immediately prior to his critical condition, passing stool. Further he was not vomiting and he was gaining weight. Neither was there any abdominal distension or swelling in the anal area. There was no real evidence that Andreas had a fever or that he was lethargic.
[94] Dr. Scott Beattie was also called to opine on the cause of death by the plaintiffs. Dr. Beattie is a highly qualified anaesthesiologist, though he testified that he had not given a baby an anaesthetic in approximately 15 years.
[95] Dr. Beattie testified:
“I am of the impression that when he got to the emergency room, he was incredibly ill. And in that situation, he was, I mean everything, everything that was done to him appeared to be appropriate. I was in … in the radiology report, it states that the first x-rays there was not a lot of fluid in the lungs, but there was some infiltrates. But, in the x-ray that took place about 20 minutes later – 25 minutes later, there was notation that there was a lot of fluid in the lungs and that couldn’t have been due to a pneumonic process like a septic process, or an infected process. That would have been done by the amount of fluid that he received. Now the amount of fluid he received was entirely appropriate with what was going on, it is the treatment of septic shock, which is what I believe he had. But the amount of fluid that he got wouldn’t put a normal baby into a pulmonary edema, like what is seen in this x-ray.
[96] Dr. Beattie continued to opine that the efforts of Dr. Reesor and Dr. Murphy to resuscitate Andreas were satisfactory, that he, Dr. Beattie, would not do anything different with respect to Andreas’ resuscitation.
[97] He went on to testify about the placement of the NG Tube and the establishment of the IO Line, as well as the administration of antibiotics. He summarized by conceding that there were elements in the resuscitation process that were not ideal.
[98] I accept as accurate the chronology of events on July 8, 2008 set out in Appendix C of the defendant’s written submissions. I am mindful of all the steps that took place in the efforts of Dr. Reesor and Dr. Murphy to sustain and revive a very sick baby.
[99] I am also mindful of the criticism of Dr. Beattie’s opinion set out by the oral and written submissions of the defendants.
[100] The defendants called several witnesses to testify as to cause of death. Dr. Christopher Justinich is an expert in the area of paediatric gastroenterology. His impressive qualifications are set out at page 162-163 of the defendants’ written submissions. Specifically, Dr. Justinich has experience with airway management, endoscopy, anaesthesia and intubation. Dr. Justinich confirmed that one cannot observe Andreas’ anal stenosis from the autopsy pictures. He went on to testify that the ridge that appears externally in Andreas’ perineum was quite normal and in fact many male infants have a more prominent ridge. This ridge, according to Dr. Justinich would not require an urgent referral or indeed any referral at all. It was in the range of normal. Dr. Justinich confirmed, as did other witnesses, that this ridge was totally unrelated to the anal stenosis or any anal rectal malformation. He continued to testify that the “tag” shown in the autopsy pictures is simply a swollen fold of tissue that likely occurred after death.
[101] Dr. Justinich, who frequently comes into contact with parents complaining of loose stools, that such complaint is common in infants who are breastfed. Breastfed infants have stools that are watery, loose, seedy or yellow. Even when parents report explosiveness of the stools, most of these children do not have any underlying pathology. Neither would Dr. Justinich be concerned about a baby who strains while stooling, as such straining is within normal.
[102] Dr. Justinich explained that loose stools may relate to a food intolerance or to allergy problems. Such babies may be allergic to something that mother may have ingested that transmitted into the breast milk. As did other witnesses, Dr. Justinich testified that up until his final arrival at hospital, Andreas had not presented with any symptoms that were consistent with anal stenosis or obstruction.
[103] However, on the early morning of July 8, 2008, Dr. Justinich testified that by this point, Andreas’ condition had dramatically changed. Andreas was found to be vomiting, was observed to be cyanotic, was mottled and that his abdomen was firm and distended. In sum, Dr. Justinich testified that something had happened after Andreas went home from Dr. Mallin’s office to the point where Andreas showed signs that the anal stenosis had developed into an obstruction.
[104] However, Dr. Justinich further testified that in his opinion, Andreas’ death was as a result of the dislodgement of the ET Tube. This opinion was based upon his comparing the x-ray images with the autopsy pictures. He added his note that the epinephrine administered (as noted in the chronology already referred to) was not effective and he noted Andreas’ sudden respiratory deterioration. He noted that from the pictures that Andreas’ bowel was full of gas during the autopsy. He noted the difference between the first and second x-ray, that the difference between the amount of gas present in each of these x-rays was not that much.
[105] He went on to note that the autopsy pictures showed bowels that were grossly distended. He opined that the amount of gas being introduced into the GI tract would have been a result of ventilating error into the stomach and not into the lung. Dr. Justinich was of the opinion that there was no other mechanism which would explain the significant increase of gas between the second x-ray and the post-mortem pictures.
[106] Dr. Justinich formed his opinion as to the cause of death on the events that led to Andreas’ sudden deterioration.
[107] He noted that since Andreas appeared stable after the initial intubation, he opined that the sudden deterioration was characteristic of an airway or breathing problem. This is why Dr. Justinich was of the view that the displacement of the ET tube was the likely explanation for Andreas’ decompensation after being stabilized.
[108] As noted from the record, ET tubes are typically inserted to T3 or T4. In Andreas’ case, the ET tube was apparently inserted at T1, an area that in Dr. Justinich’s view made it easier for the ET tube to be displaced into the esophagus. In that case, the administration of drugs into the ET tube would have no effect.
[109] Dr. Justinich continued to testify that the placement of the NG tube would not have decompressed the air from the stomach because of the size of this tube. The NG tube would not have been sufficient to drain the air from the stomach introduced by the ET tube.
[110] Dr. Justinich continued to disagree with the coroner’s report that Andreas died by aspirational pneumonia. Dr. Justinich testified that it is very unusual for people to die from aspirational pneumonia and that aspiration would normally cause inflammation and cough, but would not normally result in severe pneumonia. In sum, Dr. Justinich opined that Andreas’ aspiration did not cause his death. In the normal course, it would take hours or days for such aspiration to lead to pneumonia.
[111] Dr. Jefferson Terry was also called as a paediatric pathologist on the issue of causation. His impressive qualifications are set out at pages 170-171 of the defendants’ written submissions.
[112] Dr. Terry shared the opinion of other witnesses that the location of Andreas’ anal orifice was normal. He testified as well that in his opinion, the “ridge” of tissue between Andreas’ anus and the scrotum was normal.
[113] Dr. Terry went on to testify that the “tag” shown in the autopsy pictures (at 11 o’clock to the anal orifice) was simply a cutaneous edema and likely occurred post-mortem, as a result of the pooling of fluid, and as well, any apparent swelling of the anal orifice would have occurred post-mortem.
[114] Dr. Terry confirmed as did other experts that Andreas’ anal stenosis occurred near the pectinate line.
[115] Dr. Terry continued to testify that there were no appreciable signs or symptoms of anal stenosis from Andreas’ birth. He noted that a rectal temperature was obtained with no anal stenosis, atresia or discomfort. Otherwise expressed, there were no external signs of Andreas’ anal stenosis. Andreas’ discharge summary indicated a patent anus with standard elimination patterns. Dr. Terry continued to testify that on the visit with Dr. Milone, Andreas presented as a normal baby on physical examination. Andreas was not exhibiting any signs or symptoms of anal stenosis, nor had Andreas demonstrated any change in his clinical presentation. Dr. Terry added that though there may have been some jaundice present, this would have been completely unrelated to anal stenosis.
[116] Dr. Terry continued to testify that Andreas’ clinical picture changed on July 8th when he started vomiting. He went on to clarify that vomiting is abnormal, but that vomiting is a non-specific finding, so it would not point specifically to anal stenosis or any other specific finding.
[117] Dr. Terry went on to testify that the necrotic epithelium, which was causing sepsis, leading to septic ileus, which resulted in gas in the bowel and caused bowel dilation, which would then be detectable, unfolded in a matter of hours. It may be emphasized at this point that from the evidence the necrosis of the epithelium cannot be detected externally by a family physician.
[118] From the point of his arrival at the hospital, Dr. Terry opined that Andreas was becoming progressively worse. He had another vomiting episode in the emergency room. He was cyanosed, mottled and his abdomen was distended. These symptoms were consistent with developing sepsis and bowel obstruction.
[119] Dr. Terry’s opinion, however, was that the ultimate cause of Andreas’ death was the dislodgement of the ET tube into the esophagus, which resulted in pushing gas into the stomach and abdomen. In Dr. Terry’s view, the bowel bacteria would cause some increase in gas, but not to the extent seen in the gross post-mortem pictures.
[120] Dr. Terry was of the view that Andreas did not die from septic shock, which he described as the progression of sepsis, where the body can no longer maintain circulation. In his view, Andreas did not lose a significant amount of fluid and did not suffer from a prolonged decrease in blood pressure. In his opinion, Andreas would have had organ failure, liver failure, kidney failure and general edema of the skin, findings that were not made in the post-mortem report. Therefore, in Dr. Terry’s opinion, Andreas’ death was “mechanical” in nature caused by the dislocation of the ET tube.
[121] Dr. Sharon Unger, who is a highly qualified neonatologist, also testified for the defendants as to cause of death. Her extensive qualifications are set out at pages 176-177 of the defendants’ written submissions. Dr. Unger testified as a most impressive witness.
[122] Dr. Unger testified that in her view there was nothing unusual about the position of Andreas’ anus, nor was there anything abnormal about the “ridge” between Andreas’ anus and scrotum, nor about the “flap” just above the anal orifice. Dr. Unger confirmed the opinion of other witnesses that no external examination can detect anal stenosis and that Andreas’ presentation to Dr. Milone and to Dr. Mallin, as well, did not reveal any reason for an urgent referral. However, late in the evening of July 8th, Dr. Unger testified that Andreas presented with a “progression of the bowel obstruction”. Now he was becoming septic. She continued to testify that sepsis evolves very quickly. This process can occur within a matter of a couple hours. As she put it, within two hours of being given a feed, the baby may become very sick.
[123] When Andreas arrived at the hospital, in Dr. Unger’s opinion, Andreas’ sepsis was progressing.
[124] Dr. Unger then went on to particularize her concerns about the efforts at the hospital to deal with Andreas’ problems, including the length of time it took to provide IV fluids and antibiotics. She also detailed her concern with the use of the NG tube and the use of any pain medication.
[125] Dr. Unger was also of the view that Andreas’ direct cause of death was due to dislodgement of the ET tube. She specifically disagreed that Andreas died from septic shock, as there was no prodrome that would be consistent with his death from septic shock.
[126] In sum, in Dr. Unger’s opinion, sepsis did not explain Andreas’ cardiac arrest. In her view, Andreas was not in shock shortly before death. He had a normal heart rate, a normal blood pressure and a normal oxygen saturation level. Andreas’ body was fighting off the sepsis and he should have recovered from the sepsis. His sudden deterioration could only have been attributed to a sudden mechanical change or event.
[127] Dr. Unger testified specifically;
“When the endotracheal tube dislodges into the esophagus, and there can continue to provide positive air pressure into the esophagus and going into the stomach, they are not giving air or oxygen to the baby’s lungs. They are also filling the stomach with a lot of gas. And that does two things. It pushes the stomach contents back up again and makes the baby aspirate again, because there is so much force and so much air going down. And it also makes the abdomen distend even more, and as the belly grows it is very difficult for the lungs to inflate and deflate. And so, babies do have very strong hearts, but if they begin to have not enough air and oxygen then the heart will stop.
[128] Dr. Unger went on to explain her opinion that the ET tube had moved between 4:22 and 4:40 a.m. Her opinion was based on a set of normal vital signs until 4:40, when Andreas had his cardiac arrest. In Dr. Unger’s view, Andreas’ death could only be attributed to a mechanical change. But for that change, Andreas would have survived his sepsis.
[129] I agree with the defendants that there is strong and compelling evidence and that Andreas’ actual cause of death may well have been due to a displacement of the ET tube shortly prior to his death. However, I still find the evidence of the plaintiffs’ witness to be compelling, that Andreas’ ultimate cause of death was e coli sepsis, due to or as a consequence of aspiration pneumonia, due to or as a consequence of bowel obstruction, due to or as a consequence of congenital anal stenosis, with an additional potential contributing factor of islet cell hyperplasia.
[130] In that I have found that none of the defendant physicians fell below a standard of care, the actual cause of death becomes somewhat academic. However, in sum, I am still prepared to accept the evidence of Dr. Taylor as to actual cause of death, given his hands on experience with Andreas as the pathologist who performed the autopsy.
[131] Were I to have found that any of the defendant physicians fell below an appropriate standard of care, the novus actus interviens issue might have presented a greater challenge to the court.
[132] This case involves a real tragedy, the death of a newborn, apparently healthy baby, in a reasonably well-equipped health care facility in our province. Andreas was attended by a number of well-educated health care professionals, all of whom I believe are saddened and made more wise by his passing.
[133] If Andreas had presented with the same problems in a tertiary care hospital such as Toronto Sick Children’s or Mount Sinai, the outcome may have been different. However, I am persuaded that the care he received from the defendant physicians in this case, at the Headwaters Health Care Centre, was consistent with the standard of care expected of physicians in the circumstances. I can only extend my deepest sympathy to Andreas’ parents, Allison and Chris Behrendt.
[134] This, in effect, resolves all of the issues put before me at this trial. The claims against the three defendant physicians, Dr. Stephanie Milone, Dr. Constantine Mallin and Dr. David Cormier are dismissed.
[135] I wish to thank all counsel, both for the plaintiffs and for the defendants, for their significant assistance to the court in dealing with these challenging and sensitive issues and to commend them for their preparation and for their advocacy. If counsel are unable to deal with the issue of costs, they may address me in writing in my chambers within 60 days, with a further 30 days provided to all counsel to respond to written submissions. If counsel feel compelled to address the court orally with respect to costs, they may make arrangements with the trial coordinator.
R.D. Reilly J.
Released: June 10, 2015