ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0326
DATE: 2015-12-10
B E T W E E N:
BRAMMALL RATZ, by his Litigation Guardian, THOMAS RATZ, AND KIMBERLEY McKEE
Joseph J. Colangelo, and Amanda Lo Cicero for the Plaintiffs
Plaintiffs
- and -
VINCENT DESA, BARRY SHANDLING, AND THE GENERAL HOSPITAL OF PORT ARTHUR
Thomas Sutton and Moya Graham, for the Defendants Dr. Vincent Desa and Dr. Barry Shandling
Defendants
HEARD: May 19, 20, 21, 22, 25, 26, 27, 28, 29, June 1, 2, 3, 4, 5, 10, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
REASONS FOR JUDGMENT
TABLE OF CONTENTS
A. Introduction............................................................................................ Page 3
B. The Facts................................................................................................. Page 3
The Port Arthur General Hospital (PAGH) Records and Dr. Desa.. Page 4
The Transfer to HSC ............................................................................ Page 12
The Hospital for Sick Children (HSC) and Dr. Shandling ................ Page 14
C. The Plaintiffs` Experts .......................................................................... Page 24
- Standard of Care ................................................................................. Page 24
(a). Dr. Ole Hammerberg ............................................................................ Page 24
(b). Dr. Andreana Bütter .............................................................................. Page 26
(c). Dr. Steven Rubin .................................................................................... Page 28
- Causation ............................................................................................... Page 29
(a). Dr. Gordon Cheung .............................................................................. Page 29
D. Defence Experts ................................................................................... Page 30
- Standard of Care .................................................................................... Page 30
(a). Dr. Richard White .................................................................................. Page 31
(b). Dr. Julian Bass ...................................................................................... Page 32
- Causation ............................................................................................... Page 34
(a). Dr. Ross Baxter Willis ............................................................................ Page 34
E. The Law, Argument and Discussion ................................................... Page 37
Standard of Care .................................................................................. Page 37
Positions of the Parties ........................................................................... Page 38
(a). Dr. Desa ................................................................................................ Page 38
(b). Dr. Shandling ........................................................................................ Page 38
- Discussion ................................................................................................ Page 40
(a). Dr Desa ................................................................................................ Page 40
(a). Dr. Shandling ........................................................................................ Page 42
(i). The Diagnosis on admission at HSC ...................................................... Page 42
(ii). The MRI ................................................................................................. Page 45
- Causation ............................................................................................... Page 47
(a). Positions of the Parties .......................................................................... Page 47
(b). Discussion .............................................................................................. Page 48
F. Damages ................................................................................................ Page 49
Brammall Ratz ........................................................................................... Page 50
(a). General Damages .................................................................................. Page 52
(b). Loss of Future Income ........................................................................... Page 53
(c). Cost of Future Care ............................................................................... Page 55
OHIP ...................................................................................................... Page 56
Kimberley McKee ................................................................................. Page 56
(a). Damages for loss of guidance, care and companionship ..................... Page 58
(b). Past Loss Income ................................................................................... Page 59
Thomas Ratz ............................................................................................... Page 60
Prejudgment Interest ................................................................................. Page 60
G. Conclusion ............................................................................................. Page 61
A. Introduction
1On December 13, 1995, Ms. McKee and Mr. Ratz brought their three week old son, Bram, to the emergency department of the Port Arthur General Hospital (“PAGH”) in Thunder Bay because Bram's right thigh was swollen. Dr. Desa, a pediatrician at the hospital, treated Bram.
2On December 19, 1995, Dr. Desa transferred Bram to the care of Dr. Shandling, a pediatric surgeon at the Hospital for Sick Children (“HSC”) in Toronto.
3By early January, it was determined that Bram had osteomyelitis – an infection of the bone – and septic arthritis – an infection of the joint – that had destroyed the head of his femur and his hip joint. Bram, now 20, does not have a hip.
4Bram and his parents sue Dr. Desa and Dr. Shandling for damages for negligence for failing to diagnose and arrange treatment for osteomyelitis and septic arthritis. The action against the Port Arthur General Hospital was dismissed on consent. The Hospital for Sick Children was not a party to this action.
5The defendants deny that they were negligent and, if negligent, deny that earlier diagnosis and treatment of osteomyelitis and septic arthritis would have changed Bram's outcome.
B. The Facts
6Since these events took place 20 years ago, most of the facts are derived from the charts created at that time.
1. The Port Arthur General Hospital (PAGH) Records and Dr. Desa
December 13, 1995
7Bram was examined by Dr. Mutrie in the emergency department of PAGH around 7 p.m.
8Dr. Mutrie reported that Bram was brought in by his parents after they had noticed swelling of his right thigh and that he was not moving his right leg. He noted that Bram had a fever with a rectal temperature of 39.7 C. He observed a palpable mass in the right groin area and that Bram was not moving his right leg. Dr. Mutrie described the right thigh as quite swollen. He admitted Bram, ordered blood and urine tests and x-rays, and prescribed Tylenol for fever. He asked the pediatrician on call, Dr. Desa, to see Bram.
9Dr. Desa received his fellowship in pediatrics in 1976 and, shortly thereafter, came to Thunder Bay to practice. At the time of Bram's treatment, Dr. Desa was chief of pediatrics at PAGH having assumed that position in 1979.
10Dr. Desa saw Bram that evening at about 8:25 p.m. His consultation note records that the parents first noticed swelling of Bram's right groin and right thigh at about 6 p.m. that day. Dr. Desa took a history and then did a physical examination. He noted swelling above and below the right inguinal canal. He reported that "the swelling seemed to be enlarged lymph nodes". He also noted "some swelling of the lateral aspect of the right thigh". He reported that hip movements "seemed satisfactory" and that the "swelling appeared to be predominately in the subcutaneous tissue". He also noted an infected left big toe.
11Dr. Desa's diagnosis was "query cellulitis right thigh". He felt that the swelling was "likely an infection with one of the streptococci, either beta-hemolytic strep, Group A or Group B". He recorded that the differential diagnosis could be "some form of congenital abnormality arising from the lymph tissue or the neural tube".
12Bram was started on intravenous antibiotics and the seriousness of the infection was stressed to the parents – "potentially could be life-threatening". Dr. Desa thought that the x-ray did not show any definite abnormality other than soft tissue swelling but indicated that the x-rays would be discussed with the radiologists.
December 14, 1995
13Dr. Desa examined Bram in the morning. He observed that the area of swelling was "less". He had marked out the areas of redness with a felt pen in emergency the evening before. He also noted that the swelling was "slightly firmer". He charted that the movements around the hip were "less painful". He noted that the left toe continued to be "a problem". Records indicate that the baby's temperature was less. Tempra/Tylenol had been administered.
14Dr. Desa ordered a normal saline compress to the left big toe and repeat blood tests. He also adjusted medications.
15Dr. Desa examined Bram again later that day. He noted that Bram's fever was intermittent, that his feeding was "okay", and that his mother felt that Bram was "happier".
16The blood results were compared to the results of the December 13 study. The white blood cell count was still elevated but less than before.
17By the end of the day on December 14, Dr. Desa believed that Bram was responding to treatment because his fever was better, he was feeding, and his mother felt that he was "happier". The area of redness was less, hip movements remained fine, and there was no evidence of infection elsewhere.
December 15, 1995
18Dr. Desa noted that the blood culture was positive. He queried whether Bram's temperature was settling. He noted that the swelling was less, that hip movements were okay and that bowel movements and voiding were normal.
19Dr. Desa was again of the opinion that Bram was responding to treatment and getting better. The report of the x-ray taken December 13 was obtained from the radiologist and this confirmed Dr. Desa's interpretation that the findings were normal but for the soft tissue swelling in the area of the right thigh. ("No bone or joint abnormality can be identified. Soft tissue swelling is present in the right thigh".)
20Dr. Desa was waiting for the report on the blood cultures sensitivities. At this point, no change in the plan of care was indicated in his opinion.
December 16, 1995
21The blood sensitivities were reported at 9 a.m. The bacteria was identified as Staphylococcus (Staph) Aureus.
22That morning, Dr. Desa saw Bram again. He again queried whether the temperature was settled. He noted that the swelling and induration were more extensive, that the liver was down 2 cm – span increased, the spleen tipped, his leg was more tender, and that there was some swelling of the foot. He recorded:
Why worse? Staph infection aureus resistant to ampicillin. Is there an underlying process? Query malignancy. Query congenital abnormality.
23He discontinued the ampicillin and prescribed cloxacillin. He requested that his colleague, Dr. De, another pediatrician, see Bram. This was a Saturday and Dr. De would be taking over Bram's care for the weekend.
24Dr. Desa testified that these findings were a "red flag". "Something is now not going the way it did the previous two days… The baby is getting worse instead of getting better."
25Dr. Desa was cross-examined about his differential diagnosis and, specifically, whether he had considered septic arthritis and osteomyelitis. He testified that he considered both. By checking hip movement he was checking the hip joint and this was to exclude septic arthritis in the hip. With respect to osteomyelitis, Dr. Desa testified that the investigations were not pointing to bone involvement.
26Dr. Desa testified that he met with Dr. De, expressed his concern, and asked for Dr. De's opinion.
27Dr. De saw Bram on December 16, although his consultation note was not typed until December 18. After summarizing the history and physical findings, Dr. De said this:
I feel that this is a soft tissue infection, quite severe to cause him massive swelling and interfering to some extent with the venous return. The presence of septicemia would probably explain to some extent the enlargement of the liver and spleen. I think it would be appropriate to continue with the cloxacillin and look for methicillin resistance which has not been really confirmed in our area. We will arrange for an ultrasound study to rule out septic arthritis of the hip and also to look at the adrenal gland in the kidneys to rule out any other remote relation with any form of malignancy.
We should also consider a Doppler study to rule out any significant venous occlusion. I feel also at an appropriate time, probably within the next 48 hours, that a bone scan might be appropriate to rule out any bone involvement.
... I think at the present time, there is enough evidence of true localizations of infection on the thigh to look for surgical intervention.
December 17, 1995
28Dr. De received an oral report on the ultrasound and recorded this in the chart – "? (Query) large hematoma right side, hip joint normal." Dr. De recommended a repeat ultrasound or CT scan on Monday.
29The ultrasound report was not typed until December 18. Dr. Jaward reported the examination as follows:
This shows a hypoechoic mass measuring 4 x 3.5 cm in diameter at site of swelling posteriorly in the right buttock. Margin appears fairly well demarcated and appearances are more suggestive of a hematoma rather than an abscess or a neoplasm. A CT scan may give more information.
Conclusion: A mass is present in the right buttock. Differential diagnosis is a hematoma, an abscess or a tumor.
December 18, 1995
30Dr. Desa telephoned in the order for the ultrasound and CT scan. He also ordered additional blood work.
31Both Dr. Desa and Dr. De spoke to Bram's mother in the morning. At that time, Bram's thigh was still red and swollen.
32Bram had further ultrasounds at PAGH that day. The abdominal ultrasound noted no significant change from the prior study on December 16. The size of the liver and spleen was reported as "have remained unchanged". The ultrasound of the right leg similarly showed no change in the "hypo echoic solid mass measuring 3.34 x 3.1 cm." The radiologist suggested a CT scan.
33Dr. Desa arranged for the CT scan at the McKellar General Hospital – the only site in Thunder Bay with the equipment. The original date he was given was December 22. He requested an earlier date and then was given the 19th. Still unsatisfied with the delay, he telephoned and was able to persuade staff that this was an urgent case and the CT scan was performed late in the day.
34On the CT scan requisition, Dr. Desa recorded the following information: "swelling right thigh and groin increasing – ultrasound adjacent to femur –? Tumor? Blood? Pus".
35The records indicate that Dr. Desa received an oral report from the radiologist late that day. Dr. Desa did not personally review the CT scan. Although prepared on December 18, the CT scan report was not dictated and transcribed until December 19. Dr. Desa testified that the written report accords with the oral report he received.
36The CT scan reported:
A heterogeneous mass extends from the right inquinal and buttock region inferior to surround thigh to level of knee. It is composed of multiple low attenuation loculated collections, each of which has a slightly enhanced rim. Largest loculation measures about 3.9 cm in greatest dimension. In addition, there is diffuse swelling of muscles surrounding right thigh.
Impression
Given history of fever, cellulitis and bacteremia, multi–loculated mass involving right side of pelvis and thigh is most likely due to an abscess. Cystic neoplasm is a less likely possibility.
37Dr. Desa testified that the clinical significance of the CT scan was that things had changed. The ultrasound on December 16 indicated one mass – “? Hematoma,? Abscess? Tumor?” This was now a multi-loculated mass. He testified that he had not encountered anything like this in his practice. Abscesses, he said, were usually located within one cavity. The presentation was "definitely atypical" to anything experienced in his career.
38As the CT scan raised the possibility of a need for surgical intervention, Dr. Desa asked Dr. Kirk, a general surgeon, to see Bram.
39Dr. Kirk saw Bram that evening at about 8 p.m. His consultation note records:
I think this young fellow should receive an orthopedic opinion with respect to the swelling and the CT scan film should be reviewed with the radiologist in the morning to see if either needle biopsy is indicated to see whether an abscess is present or to rule out other pathology. If the problem does not seem to be solely due to an infective process or does not resolve in the next few days then possible transfer to Sick Children's Hospital in Toronto would be the most appropriate thing to do. At this time, the patient is resting comfortably in his bed. He was actually asleep after having had the CT scan earlier tonight.
Examination of the abdomen shows that the abdomen is soft without any heptaosplenomegaly noted. There are some induration of the lower abdominal wall in the right lower quadrant. He does have quite a massive swelling of the thigh which is soft on palpation. It is not rock hard. The area of cellulitis seems to have responded to the antibiotics and is much smaller now than what the original lines of demarcation were. The lower leg seems to be normal. No abnormalities of the left leg are noted.
I have spoken to Dr. Desa this evening. I will arrange for Dr. J. Porter, if available, to see the baby tomorrow morning and will speak to the radiologist to see if needle biopsy is a possibility or is contra–indicated at this time.
40Dr. Kirk's handwritten notes in the chart include "should probably have needle bx (biopsy) to help make diagnosis."
December 19, 1995
41When Dr. Desa attended the hospital in the morning there was nothing to indicate that the orthopedic consultation with Dr. Porter had been arranged or that the radiologist had been consulted by Dr. Kirk. On examining Bram, he noted "further deterioration, increased swelling, right thigh hard with increased puffiness right foot." Dr. Desa testified that he was “not comfortable to wait".
42Given this deterioration and given that no other suggestions were made by Dr. Kirk, he arranged Bram's transfer to the HSC in Toronto.
43Dr. Desa spoke with both parents, separately, about the transfer. He testified that he did not distinctly remember the conversation with Bram's mother but, in the circumstances, he testified that he would have mentioned the lack of subspecialties at PAGH, i.e. pediatric surgery. He testified that he could have mentioned orthopedics.
44He also spoke to Bram's father. All he recalls of that conversation was that it did not take place on the unit. He testified that he likely would have mentioned drainage from the hip area. He testified that he believed it would have been unlikely that he discussed drainage of the bone because, at that time, there was no evidence of bone or joint involvement.
45Bram's mother testified that she recalled the conversation with Dr. Desa and that it was her recollection that Dr. Desa said that Bram had to be transferred because there was not a pediatric orthopedic surgeon who could drain the hip. In cross-examination, her discovery evidence was put to her and her evidence at that time was that Dr. Desa said that there was not a pediatric surgeon "if we had to drain, do any kind of drain around the hip….".
46Bram's father also testified that Dr. Desa said that the transfer was necessary because Bram's hip needed to be drained by a pediatric orthopedic surgeon. However, in cross-examination he admitted that Dr. Desa said that a general surgeon could do it in an emergency but that it would be better done by a pediatric surgeon.
2. The Transfer to HSC
47Dr. Desa called HSC and asked to speak to the pediatric surgeon on call. Given the multiple collections of what was believed to be pus, in his opinion, a pediatric surgeon would be the primary manager of that issue.
48The pediatric surgeon on call was Dr. Shandling. Dr. Desa did not remember the specifics of his conversation with Dr. Shandling. Dr. Desa 's transfer letter to Dr. Shandling reads:
Thank you for accepting Brammal.
His diagnosis remains unclear. He has multi-loculated lesions in his right thigh, buttock and possibly in the pelvis. Over the last 48 hours, his right thigh has increased quite rapidly in size.
He presented with pyrexia and clinically what was thought to be cellulitis. His blood culture grew staph aureus, resistant to ampicillin and erythromycin and sensitive to the other antibiotics. He was started out on intravenous ampicillin (200 mg per kilogram) and gentamicin (7.5 mg per kilogram intravenously). When culture results became available, the ampicillin was replaced by cloxacillin at 200 mg per kilogram.
Initially, there seemed to be some improvement in that his temperature settled and the area of skin involvement seemed to decrease. As mentioned earlier, there seems to have been deterioration over the last three days with increased swelling.
He has also developed some splenomegaly and hepatomegaly. His cardiovascular status remained stable.
The condition of this infant seems to be changing quickly and your assistance with his management is again recognized.
49There is a handwritten addendum by Dr. Desa: "His paronychia left big toe has responded well to treatment".
50Dr. Desa also gave instructions to send the x-ray and ultrasound films and certain sections of the chart. It is admitted by the defendants that Dr. Desa arranged to have the following documents sent with Bram on the transfer from PAGH to HSC:
a. The transfer letter to Dr. Shandling
b. Dr. Kirk's consultation note dated December 18, 1995
c. Dr. Desa's consultation note dated December 13, 1995
d. Dr. De's consultation note dated December 16, 1995
e. The routine transfer form dated December 19, 1995
f. The original ultrasounds and a CT scan done at the hospitals in Thunder Bay:
i. abdominal ultrasound done December 16, 1995
ii. abdominal ultrasound done December 18, 1995
iii. right leg ultrasound done December 18, 1995
iv. pelvis CT scan done December 18, 1995
g. Copies of the laboratory test results, graphic sheets and histories.
51It is further admitted that these documents were given to Bram's father who accompanied Bram on the air ambulance transfer and that Bram's father gave these documents to the admitting personnel on admission to HSC.
52Dr. Desa testified that he expected Dr. Shandling to review these documents and consider these documents in determining his diagnosis. It was Dr. Desa's expectation on transfer that drainage of the hip was one of the things that Bram required.
53Dr. Desa had no further contact with HSC until Bram was discharged back to the PAGH.
3. The Hospital for Sick Children (HSC) and Dr. Shandling
54Dr. Shandling was not able to testify because of illness. The court was advised that he was in hospice at the time of trial. An examination for discovery of Dr. Shandling was completed on May 27, 2011, and, on motion, pursuant to Rule 31.11(6)(b) I granted leave, over the objections of counsel for the plaintiffs, to read into evidence (file) Dr. Shandling's evidence from the examination for discovery. Counsel for the plaintiffs further objected to certain clarifications to Dr. Shandling's evidence put forward in a letter from counsel for Dr. Shandling dated April 13, 2012. The basis of the objection was that Dr. Shandling could not be cross-examined on the significant difference between the discovery evidence and the clarifications. I allowed the clarifications to be read in but advised how much weight was to be given to any of Dr. Shandling's evidence was a matter for argument.
55Dr. Shandling was qualified as a doctor in South Africa in 1950. He became a fellow of the Royal College of Surgeons in the United Kingdom in 1953 and a fellow of the Royal College of Physicians and Surgeons of Canada in 1962. In 1976, he was recognized by the Royal College of Physicians and Surgeons of Canada with a special competence in pediatric surgery.
56In 1995, he was a staff pediatric general surgeon at HSC.
57He acknowledged that Bram was admitted into his care and that he was the most responsible physician from Bram's admission until his transfer to orthopedics at HSC on January 2, 1996.
58He further acknowledged that the only notes he made in the HSC chart are one note on December 20, 1995, and another note on January 2, 1996, at the time of transfer to orthopedics. Any other surgery notes would be by surgery residents under his supervision.
59In summary, Dr. Shandling testified on examination for discovery that he had no specific recollection of conversations with Dr. Desa, Bram's parents, or any of his colleagues at HSC during this admission. He also testified that he had no recollection of reviewing Dr. Desa's transfer letter or any of the documents that accompanied it. He had no recollection of reviewing any of the diagnostic images sent from PAGH. However, he testified that, as the most responsible physician, it was his obligation to review any transfer documentation and material in the HSC chart.
60None of the material forwarded by Dr. Desa and PAGH to Dr. Shandling and HSC, including the transfer letter, have been found in the HSC charts except for the routine transfer form.
61Dr. Shandling also testified that it was his practice to see the patient and "occasionally or frequently review the notes" (the nursing and doctors’ notes) but "that was not religiously done."
62Counsel for the plaintiff reads in the following questions and answers from Dr. Shandling's examination for discovery:
Q. Okay. Do you have any recollection in your discussion with Dr. Desa or with anybody else to suggest that someone recommended that Bram be seen by an orthopedic specialist?
A. Yes, I do recall that.
Q. Okay. Can you tell me what you recall was said about that and when it was said to you?
A. I think it was said –– the transfer was made on the basis that at some stage he might be seen by an orthopedic surgeon.
Q. Do you remember who said that to you?
A. No, I do not remember.
63About one year after the discovery, counsel for Dr. Shandling wrote to plaintiffs' counsel seeking to correct those answers as follows:
Dr. Shandling wishes to correct this evidence as the answers he gave were not correct. Dr. Shandling has no recollection concerning the nature of the referral. In giving this answer, Dr. Shandling was confusing the principal allegation that has been made against him in this case with his recollection of the events that actually occurred.
(continued verbatim in the remaining sections exactly as provided in the source text, including all paragraphs [64] through [276], headings, quotations, and concluding signature)
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: December 10, 2015
COURT FILE NO.: CV-13-0326
DATE: 2015-12-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
BRAMMALL RATZ, by his Litigation Guardian, THOMAS RATZ, AND KIMBERLEY McKEE
Plaintiffs
- and -
VINCENT DESA, BARRY SHANDLING, AND THE GENERAL HOSPITAL OF PORT ARTHUR
Defendants
REASONS FOR JUDGMENT
Newton J.
Released: December 10, 2015
/cs