Court File and Parties

COURT FILE NO.: CV-11-435046 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID RYCROFT, personally and his capacity as Estate Trustee of the Estate of Thelma Rycroft, and KEVIN SMEE Plaintiffs – and – DR. THOMAS GILAS, DR. DEAN CHEN, DR. DOUGLAS BAIRD, "JANE DOE" and THE TORONTO EAST GENERAL HOSPITAL Defendants

COUNSEL: Jillian Evans, for the Plaintiffs Erica J. Baron and Michael O’Brien, for the Defendant Dr. Dean Chen

HEARD: October 7, 8, 9, 13, 14, 15, 16, 2015; December 17, 2015.

M. D. FAIETA, j

REASONS FOR DECISION

[1] Thelma Rycroft was a 63-year-old woman who died of septic shock on October 10, 2009, after a gastroscopy, two days earlier, performed by Dr. Dean Chen at the Toronto East General Hospital (“TEGH”). This action, brought by Mrs. Rycroft’s spouse, David Rycroft, and son, Kevin Smee, was discontinued against all defendants other than Dr. Chen. Both liability and damages are in dispute. For the reasons described below, I have found Dr. Chen liable in negligence and I have awarded damages in the amount of $96,913.14.

BACKGROUND

[2] Dr. Chen is a gastroenterologist. He received a medical degree in 1999 and completed a Residency in Adult Gastroscopy. He subsequently completed a two-year Fellowship in Advanced Therapeutic Endoscopy at the University of Toronto’s Department of Gastroenterology. Dr. Chen has been a staff physician at the Toronto East General Hospital since October 2006.

[3] Thelma Rycroft had a history of abdominal pain. She was examined by the defendant Dr. Chen on May 8, 2008. Dr. Chen sent the following reporting letter, also dated May 8, 2008, to Mrs. Rycroft’s family physician, Dr. Paul Chan:

Thelma was seen today for assessment of abdominal discomfort.

She is a 62-year-old woman with a past history inclusive of HPV, hemorrhoidectomy, vulvectomy, hysterectomy, cholecystectomy, small bowel obstruction secondary to adhesions and Grave’s disease who has been experiencing abdominal discomfort for many years. This has worsened somewhat in the last three months or so. The discomfort basically involves her entire abdomen with no radiation to her back and can be constant. She also has a history of chronic dyspepsia and previously was diagnosed with GERD responsive to Nexium.

Throughout all this she has been systemically well and in fact her weight continues to increase. There is no known family history of gastrointestinal malignancy, celiac disease or inflammatory bowel disease.

She underwent what sounds like a colonoscopy and gastroscopy by my colleague Dr. Appell in 2002 and apparently those investigations were normal. She also underwent what sounds like a virtual colonoscopy at St. Michael’s Hospital as recently as one to two years ago and apparently that was normal as well.

On closer questioning Thelma has actually undergone assessment by several specialists either in general surgery or gastroenterology and the diagnosis so far has been irritable bowel syndrome.

She has no known drug allergies and is currently on Nexium, Prozac, Cardizem, Isordil, aspirin, and Fiorinal.

She is a married mother of one.

Her current bowel movements are one every two days or so but that requires a stool softener. She does admit on close questioning that the level of stress in her life has increased quite a bit in the last three to six months, around the same time that her abdominal pain has worsened, as she is dealing with issues surrounding Alzheimer’s in her relatives.

A limited examination revealed a well-nourished woman and was otherwise unremarkable.

Impression:

Thelma has irritable bowel syndrome and I counseled her regarding this diagnosis and made several management recommendations. She will do her best to follow them. At this juncture, there is really no need for further endoscopic investigations given the plethora of investigations that she has undergone in the last five to six years. I also prescribed her a trial of TuZen, a probiotic formulation that has been studied in randomized controlled trials and proven to be of benefit to a small proportion of patients with symptoms similar to Thelma’s.

[4] In 2009, Thelma Rycroft was referred by Dr. Paul Chan to Dr. Thomas Gilas, a general surgeon, to investigate her complaints of abdominal pain, reflux and dyspepsia.

[5] An exploratory upper gastrointestinal endoscopy (also referred to as a “gastroscopy”) was performed by Dr. Gilas on August 27, 2009 at the Toronto East General Hospital. This procedure allows a doctor to examine the lining of the upper gastrointestinal tract using a lighted, flexible tube called an endoscope (also referred to as a “gastroscope”) that is inserted down a patient’s throat and into the patient’s esophagus, stomach and duodenum (the first part of the small intestine). The gastroscopy revealed ulceration around the pylorus (which is a muscle that opens and closes and that connects the stomach to the duodenum). The gastroscopy showed “a small amount of residual food” in the stomach and after proceeding through the pylorus “more solid food debris” was encountered in the first part of the duodenum. Dr. Gilas suspected a stricture at the junction of the first and second parts of the duodenum. His post-operative report, transcribed on August 29, 2009, states:

CLINICAL NOTE: Mrs. Rycroft is here at the request of her family doctor to investigate chronic dyspepsia. PROCEDURE: The scope was passed easily through it. The esophagus was inspected and no lesions were identified. The stomach was entered. We immediately identified a small amount of residual solid food and gastritis so we followed this down into the antrum and surprisingly we did see that there was a fairly significant gastritis with a broad superficial ulceration right at the pylorus. We then went through the pylorus, which was easily and widely patent, to encounter more solid food debris in the first part of the duodenum. The mucosa of the duodenum looked normal, however, but we could not really identify the lumen because of the solid food debris, which seemed to be held up in the first part, so I began to suspect that there was an obstructing lesion of the postbulbar area of the duodenum that was causing this retained food and obscuration of the lumen. With irrigation and exploration of the lumen we did in fact identify a stricture of the post bulbar duodenum which we could see through. It was roughly about a centimeter in overall diameter with fibrotic, firm edges but normal mucosa. We could look through the stricture into the duodenum beyond but could not get through it with the normal sized gastroscope. I did not want to force it through at this time. So this lady has a post bulbar stricture of the duodenum perhaps related to previous peptic ulceration in addition to current peptic disease at the pylorus with gastritis as well. …

The patient returned to Recovery in satisfactory condition having tolerated the procedure well.

PLAN: I will investigate her with an upper GI just to get an idea of the configuration of the stricture and get an idea of her gastric emptying. As well, I will get a CT scan to make sure there are no other abdominal issues.

[6] An upper gastrointestinal series imaging test, using barium, was performed on September 11, 2009, at the request of Dr. Gilas. This x-ray confirmed that there was a stricture in Mrs. Rycroft’s duodenum. The report, prepared by Dr. Martin Nathanson, states:

… The duodenal bulb is normal. There is a short segment of marked narrowing in the proximal descending duodenum with retained food present in the stomach and duodenal bulb proximal to this narrowing. There is no mass effect and this stricture is likely benign although endoscopy would be required for confirmation. … [Emphasis added.]

[7] On September 16, 2009, Dr. Gilas referred Mrs. Rycroft to Dr. Chen to consider the possible dilatation of the duodenal stricture using an endoscope.

[8] Mrs. Rycroft met with Dr. Chen on September 24, 2009. Amongst other things, Dr. Chen’s handwritten notes of that appointment state that Mrs. Rycroft was taking prescription drugs for various ailments. She was constipated and did not want to eat. She was also gaining weight. Dr. Chen testified that Mrs. Rycroft told him that she was on a liquid diet (which he states can include jello, juice and consommé). Based on the available information, Dr. Chen determined that he might be able to open the duodenal stricture through an endoscopic dilatation. Dr. Chen’s letter dated September 24, 2009 was accidentally addressed to Dr. Paul Chan, who was Mrs. Rycroft’s family doctor, rather than Dr. Gilas. This letter states:

Thelma was seen today in re-consultation. I originally saw her 1 ½ years ago for abdominal discomfort. She is a 63 year-old woman with a past history of migraine headaches hysterectomy, cholecystectomy, Grave’s disease, HPV, hemorrhoidectomy, vulvectomy, and small bowel obstruction who describes a chronic history of abdominal pain. Recent investigation by yourself including gastroscopy show a duodenal stricture, confirmed on upper GI series. Biopsies have been negative for malignancy to this point. You also mentioned a peptic ulcer that was seen. She was on a fair amount of NSAIDs including Fiorinal until recently and this was stopped. She continues to be on Nexium 40 mg b.i.d.

Thelma currently is not feeling well. She is very constipated and is not consuming very much food, although her weight continues to increase. She feels somewhat nauseous but there is no history of vomiting per se. A limited examination revealed an overweight woman who was very anxious. Her abdomen was quite distended but soft and bowel sounds were present. Impression: As you mentioned, Thelma has a pyloric and duodenal stricture likely secondary to recurrent peptic ulcer disease caused by Fiorinal. She has discontinued all NSAIDs and is currently on double-dose PPI therapy. I will book her for a gastroscopy and duodenoscopy to assess for whether dilatation of the strictured area will be of benefit in her. She is aware of the risks of perforation. … [Emphasis added.]

[9] Dr. Chen testified that he had an independent recollection of this appointment because the circumstances for Mrs. Rycroft’s referral were unique. He also testified that he recalls Mrs. Rycroft told him that she had been on a “clear liquid diet” for several weeks prior to the appointment even though neither his notes nor his reporting letter mentions this, which he conceded would be a quite relevant fact. During cross-examination Dr. Chen stated that Mrs. Rycroft told him at her appointment on September 24, 2009 that her “clear liquid diet” included boost (which is a liquid nutritional supplement) as well as coffee, water, jello and juice. At his examination for discovery in 2013, Dr. Chen testified that Mrs. Rycroft told him that her “clear liquid diet” was comprised of water, juice and jello.

[10] Dr. Chen also testified that when he stated in the above letter that Mrs. Rycroft was not “consuming very much food”, he meant that she was not consuming very much liquid food.

[11] Dr. Chen stated that he explained to Mrs. Rycroft that the risk of perforation was much greater for a therapeutic gastroscopy (1:20) as opposed to a diagnostic gastroscopy (1:10,000). Dr. Chen states that Mrs. Rycroft asked about other options such as surgery. Ultimately, Mrs. Rycroft signed a consent form at the end of her appointment. Dr. Chen also provided Mrs. Rycroft with a pamphlet prepared by the Toronto East General Hospital which explains the required preparation. Amongst other things, it states that:

For the best possible examination, the stomach must be completely empty, so you should have nothing to eat or drink from midnight the evening before your examination. You may have clear fluids only 4 hours before your examination. [Emphasis in original]

[12] Dr. Chen testified that, after Mrs. Rycroft signed the consent form, he also provided Mrs. Rycroft with an additional verbal instruction to stay on a liquid diet for several more weeks until the procedure which, at that time, was scheduled for October 30, 2009 at the Toronto East General Hospital. Given her condition, Dr. Chen asked that Mrs. Rycroft be placed on a list to be contacted in the event that an earlier date became available. Due to an opening in the hospital’s schedule, Mrs. Rycroft was notified on October 6, 2009 that her gastroscopy had been re-scheduled for October 8, 2009 at 11 a.m..

[13] Mr. Rycroft testified that he did not recall having dinner with Mrs. Rycroft on October 7, 2009 however he was sure that Mrs. Rycroft followed the written instructions regarding the consumption of food and liquid, described above, to prepare for the procedure. He stated that Mrs. Rycroft had complied with such instructions in the past in relation to other endoscopies.

[14] Mr. Rycroft drove Mrs. Rycroft to the Toronto East General Hospital at about 8:30 a.m. on October 8, 2009. He does not recall speaking with a physician before the procedure. His impression is that he left because he believed that Mrs. Rycroft would not be released until much later that afternoon.

Procedure Room

[15] The procedure commenced at about 11:35 a.m. on October 8, 2009 at the Toronto East General Hospital. Dr. Chen estimated that a gastroscopy takes about 20 minutes and that a dilatation procedure typically takes an extra five minutes.

[16] Coincidentally, Dr. Chen used the same endoscope that had been used by Dr. Gilas about two months earlier. The endoscope was about 1 centimetre in diameter. It had several channels. Three channels provide light. One channel provides a water spray. Another channel provides a conduit for suctioning and passing the balloon instrument used to dilate a stricture.

[17] Dr. Chen was assisted by Dr. Douglas Baird, an anaesthetist and two registered nurses: Ping Nacua and Susan Ryce. All of these persons, other than Ms. Nacua, testified at trial.

[18] Dr. Baird recalls speaking with Mrs. Rycroft about her medications and medical history. He stated that based on his conversation with Mr. and Mrs. Rycroft his impression was that Mrs. Rycroft had last eaten solid food at midnight: Evidence, October 16, 2015, at about 10:24 a.m.

[19] In the procedure room, Mrs. Rycroft laid on her left side facing Dr. Chen and the two nurses. Dr. Baird stood behind Mrs. Rycroft. Devices to monitor blood pressure, oxygen saturation and other vital signs were connected to Mrs. Rycroft. An intervenous tube as well as nasal prongs to provide supplemental oxygen were also connected to Mrs. Rycroft.

[20] The first drug administered by Dr. Baird was a xylocaine solution that Mrs. Rycroft swallowed. It is a topical anaesthetic that eases the insertion of an endoscope through the esophagus. Mrs. Rycroft was given two drugs intravenously. Dr. Baird administered a 1.5 milligram dose of midazolam, a mild tranquilizer, followed by a second 0.5 milligram dose of midazolam about five minutes later. The final drug given by Dr. Baird was propofol. It is a sedative that was used to induce sleep. Mrs. Rycroft received three doses of propofol of 50 milligrams each. The first dose of propofol was given shortly after the first dose of midazolam. The second and third doses were given in five minute intervals.

[21] Dr. Baird stated that he recorded Mrs. Rycroft’s vital signs in five minute intervals after the nasal prongs were connected and after the first dose of midazolam was administered. The Anaesthetic Record shows that Mrs. Rycroft’s oxygen saturation levels were 96 per cent at about 11:40 am, 11:50 am and 12:00 pm, 85 per cent at 12:10 pm and 87 per cent at 12:20 pm. Dr. Baird stated that these times are approximate given the small size of the chart on which recorded these figures. Dr. Baird stated that the oxygen saturation levels dropped to 85 after the third dose of propofol was administered and before the dilatation occurred. He attributed the drop in oxygen saturation levels due to Mrs. Rycroft not breathing deeply due to the effect of the anaesthesia. Dr. Baird also stated that Mrs. Rycroft’s systolic blood pressure remained constant at 120 throughout the procedure until the end when it dropped to 110.

[22] Dr. Baird testified that he focussed on two monitors during this procedure. He watched the monitor displaying Mrs. Rycroft’s vital signs which was next to him. He also watched the monitor on the other side of Mrs. Rycroft which displayed the images transmitted by the endoscope. Dr. Baird testified that just before the regurgitation the images on the endoscopy monitor showed a quantity of “totally clear water” in Mrs. Rycroft’s stomach. He was surprised by this observation given that he “normally does not see that” and relayed his concern to the nurses and Dr. Chen. Dr. Chen then commenced suctioning the liquid from Mrs. Rycroft’s stomach using the endoscope.

[23] Dr. Baird stated that at about three quarters of the way through the procedure, Mrs. Rycroft regurgitated the contents of her stomach. He stated it was very close to the end of the procedure when the regurgitation occurred. He stated that Mrs. Rycroft’s oxygen saturation level was 96 when she regurgitated the contents of her stomach. He stated that her breathing showed no signs of changing after the regurgitation occurred. He did not recall discussing whether to proceed with the gastroscopy with Dr. Chen. He was not concerned because the regurgitation was treated rapidly (using both forms of suctioning) and because her breathing continued as before.

[24] Susan Ryce has a great deal of experience in assisting with therapeutic endoscopies. On that day, Ms. Ryce was a “float” nurse and replaced the other nurses in that unit as they went to lunch or for a break.

[25] Ms. Ryce testified that the endoscope was in Mrs. Rycroft’s esophagus when she entered the procedure room. Given that she had more experience than Ms. Nacua in managing the inflation and deflation of the balloon (at the direction of the attending gastroenterologist) used in a dilatation, she believes that it was likely that she was summonsed into the Procedure Room by Dr. Chen to assist him with the balloon dilatation of the duodenal stricture while he managed the placement of the endoscope and balloon. It was also her recollection that Mrs. Rycroft had likely regurgitated the contents of her stomach prior to the dilatation of the stricture being attempted. She does not recall when the regurgitation started or stopped. She recalls that the regurgitated material was a dark, brownish liquid. Ms. Ryce stated that she did not commonly encounter this type of regurgitated material during a gastroscopy and that it caused her concern given that this material could go back down into Mrs. Rycroft’s lungs. As a result, she turned Mrs. Rycroft further onto her left side so that gravity would help the regurgitated contents leave her mouth and would make it easier to suction the regurgitated material from Mrs. Rycroft’s mouth. Ms. Ryce recalls that either she or Ms. Nacua suctioned the regurgitated material from Mrs. Rycroft’s mouth.

[26] Dr. Chen testified that Mrs. Rycroft told him in the procedure room that she had remained on a liquid diet since her last visit. This evidence was not corroborated by any of the other doctors or nurses in that room or in any contemporaneous notes made by Dr. Chen.

[27] Dr. Chen stated that, after Mrs. Rycroft was sedated, he placed the endoscope into her mouth, through her esophagus and into her stomach. Once he saw a quantity of clear liquid and semi-solid material in her stomach, Dr. Chen started to suction the material from her stomach using the endoscope. While Dr. Chen was unable to estimate the amount of this material, he testified that the quantity was a little more than he expected. He testified that Mrs. Rycroft regurgitated clear liquid while he was suctioning her stomach. Dr. Chen stated that this regurgitation occurred during the first few minutes of the gastroscopy. He stated that regurgitation was a common occurrence during a gastroscopy and that he was not surprised by that event. The regurgitated material came out in a spray like fashion from her mouth. He estimated that over 90 per cent of the contents of her stomach was liquid and that the balance of the material was solid or semi-solid. He likened this material to “bubble tea with some small tapioca”. In contrast, at his examination for discovery, Dr. Chen testified that Mrs. Rycroft regurgitated “clear sputum”. He also testified that Mrs. Rycroft did not have a bezoar (a hard solid concretion of material in her stomach). At trial, Dr. Chen stated that when he encountered the materials in Mrs. Rycroft’s stomach, it “flashed through his head” that perhaps Mrs. Rycroft was not on a clear liquid diet.

[28] After the regurgitation and suctioning using the endoscope, Dr. Chen stated that he quickly considered his options including suctioning the remaining materials in Mrs. Rycroft’s stomach using either an Ewald tube or a NG (nasal gastric) tube. Dr. Chen had no concern that Mrs. Rycroft had aspirated in the procedure room given her vital signs. He was aware that her oxygen saturation levels had dropped to 85 and 87 however he attributed these readings to the effects of sedation or movement in the patient. It was his view that Mrs. Rycroft’s condition would not improve without active intervention. In the circumstances, Dr. Chen felt that it would be “cowardly” to not proceed with the gastroscopy and dilatation. He believed that even if the dilatation was partially successful, whatever solids or liquids that were left behind after suctioning might be able to pass through the duodenum.

[29] The Operative Report [Exhibit 2, tab B4] was dictated on October 8, 2009 at 12:23 pm by Dr. Chen while Mrs. Rycroft was in the recovery unit, and transcribed on October 14, 2009. It states:

OPERATION: Gastroscopy with dilatation

PROCEDURE NOTE:

The patient was given sedation by Anaesthesia.

Gastroscopy was performed today showing:

1. Mild oesophagitis at the gastroesophageal junction.
2. The stomach was full of liquid and solid contents. As much of this was suctioned off as possible.
3. The pylorus was narrowed with a overlying ulceration with a clean base in the northwest corner. The pylorus itself was wide enough for a regular sized gastroscope to pass through without difficulty.
4. The most predominant finding was a very small opening, in the proximal duodenum just past the pylorus, in which the scope could not pass. Using a wire-guided CRE dilatation balloon, the balloon was placed through the small hole just past the pylorus in the proximal duodenum, and pneumatic dilatation was carried out.

The scope was withdrawn.

IMPRESSION: Because of scarring from NSAID related ulcer disease in the duodenum, there is now stricturing there. Pneumatic dilatation was carried out today but she will need repeated dilatations in the near future to hopefully avoid the need for surgery. [Emphasis added.]

[30] In cross-examination Dr. Chen stated that his Operative Report had been incorrectly transcribed. Specifically, Dr. Chen stated that the report should not had stated that Mrs. Rycroft’s stomach was “full of liquids and solids” but rather that her stomach might have included solids or semi-solids. In explaining why he had not corrected this alleged error, Dr. Chen stated that he did not believe it was appropriate to do so given the various subsequent investigations and this lawsuit.

[31] Dr. Chen’s Operative Report does not mention that Mrs. Rycroft regurgitated the contents of her stomach during this procedure: Exhibit 2, Tab B4. However, Dr. Baird noted on the Anaesthetic Record (which is part of the Endoscopy Record form) for this procedure: “Pyloric obstruction. Some regurgitation stomach contents. Dilation accomplished. Suction required”. At trial, Dr. Chen acknowledged that Mrs. Rycroft regurgitated the contents of her stomach: Exhibit 2, Tab B2.

[32] Dr. Chen also made some handwritten notes on a form immediately following Mrs. Rycroft’s transfer to the Recovery Room: Exhibit 2, Tab B3. He explained that his notes state: 1) Mrs. Rycroft had a gastroscopy; 2) Duodenal ulcer with stricture; 3) “food/liquid” in her stomach meant that there was some semi-solids on top or floating inside her stomach; 4) “open with ulcer” meant that there was an ulcer on one of the side walls of her stomach; 5) “tiny hole” referred to the area of the stricture in the duodenum. His notes do not mention that Mrs. Rycroft regurgitated.

[33] There is conflicting evidence regarding when the regurgitation occurred. Ms. Ryce stated that Mrs. Rycroft likely regurgitated the contents of her stomach prior to the dilatation being attempted (which would have occurred near the end of the procedure). Dr. Baird stated that Mrs. Ryrcoft regurgitated about three-quarters of the way through the gastroscopy. Dr. Chen stated that the regurgitation occurred while he was suctioning Mrs. Rycroft’s stomach during the first few minutes of the gastroscopy. There is nothing in the contemporaneously written hospital records that indicates when the regurgitation started or stopped. I prefer the evidence of Ms. Ryce and Dr. Baird as I found them, overall, to be more credible than Dr. Chen. I find that Mrs. Rycroft regurgitated the contents of her stomach started at least mid-way through the gastroscopy while Dr. Chen was trying to remove the food and liquid out of her stomach using the endoscope. Given that she attended to Mrs. Rycroft after she regurgitated, I also accept Ms. Ryce’s evidence that the regurgitated material was a dark, brownish liquid with flecks of particles.

Recovery Room

[34] Nancy Januszewski, a Registered Nurse, was in the Recovery Room on the day of Mrs. Rycroft’s gastroscopy. She does not recall Mrs. Rycroft.

[35] Ms. Januszewski testified that she had worked for more than a decade in the Endoscopy Unit of the TEGH at the time of Mrs. Rycroft’s gastroscopy. She testified that it was typical for a patient to be brought from the Procedure Room to the Recovery Room by the anaesthetist who would provide the Recovery Room nurse with a report about the patient’s condition. Upon arrival the Recovery Room nurse would assess the patient’s condition by noting her oxygen levels, pulse, blood pressure and colour. The patient would then be checked every 15-20 minutes. The patient would remain on oxygen prongs for about 30 minutes after their arrival into the Recovery Room. The patient would then be moved to sit in a chair. After the patient was seen by the attending gastroenterologist, the patient would be discharged if she was in no apparent distress which, amongst other things, she stated would be reflected by the patient having an oxygen saturation level greater than 90.

[36] Dr. Baird testified that he does not recall what he told the recovery room nurse on transferring Mrs. Rycroft. However, Dr. Baird noted on the Anaesthetic Record that “some regurgitation – stomach contents – dilatation” indicates that Dr. Chen testified that he told the Recovery Room nurse that Mrs. Rycroft had a dilatation and that she had regurgitated.

[37] Dr. Baird, Ms. Ryce and Ms. Januszewski interpreted and explained their post-operative notes found on the Endoscopy Record (see Exhibit 2, Tab B2) as follows:

• 12:05 p.m. – Ms. Ryce explained that the procedure was finished and the patient was transferred to the Recovery Room. Mrs. Rycroft was lying on her left side when she arrived at the Recovery Room. She was receiving 3 litres of oxygen through nasal prongs and was fully alert and complaining of a sore throat. Her oxygen saturation was 87 and her blood pressure was 120 over 70. Her heart rate was 82 and her respiratory rate was 16 breaths per minute.
• 12:10 p.m. – In the Recovery Room, Ms. Ryce changed Mrs. Rycroft’s gown and the bed linen as they were both wet as a result of the regurgitation.
• 12:35 p.m. – Mrs. Rycroft’s oxygen saturation was 92 and her blood pressure was 110 over 80. Her heart rate was 65 and her respiration rate was 16 breaths per minute. Ms. Januszewski explained that she would not have had any concerns about these vitals signs although she felt that the oxygen saturation level could have been higher. There is no evidence of what Mrs. Rycroft’s respiratory rate was prior to the gastroscopy.
• 12:50 p.m. – Ms. Januszewski explained that Mrs. Rycroft was seen by Dr. Chen. He discussed the procedure and what he had done. He talked to her about her diet for the next day or two and when he would see her next. Ms. Januszewski could not opine whether Mrs. Rycroft was on nasal prongs at the time of those readings.
• 13:00 p.m. – Ms. Januszewski explained that Mrs. Rycroft wanted to go home, and her husband was there to take her home. Mrs. Rycroft was discharged, at the direction of Dr. Baird, from the hospital and was given standard written instructions. Mrs. Rycroft did not appear in any distress and her vital signs were within an acceptable range.

[38] Dr. Chen states that, after completing an endoscopic procedure on another patient, he saw Mrs. Rycroft in the Recovery Room and noticed that her Oxygen saturation levels had improved to 92-94. He also saw her about 5-10 minutes later after she had changed into her clothes. He stated that Mrs. Rycroft “… looked like someone who had a routine gastroscopy and did well”. Dr. Chen told her that another gastroscopy would be required. Mrs. Rycroft asked him what she could eat. He told her to stay on a liquid diet and that his office would try to get her in for a further gastroscopy with a possible dilatation within a week or two.

At Home

[39] Mr. Rycroft testified that he picked up Mrs. Rycroft from the Recovery Room. A nurse told him that Mrs. Rycroft wanted to go home. He drove Mrs. Rycroft home while she reclined in a passenger seat. She was uncomfortable. It took about thirty minutes to drive home. They arrived home by about 2 or 2:30 p.m. Mrs. Rycroft went to bed. Mr. Rycroft stayed with her. At some point, Mrs. Rycroft wanted to be left alone in her bedroom and Mr. Rycroft left, checking on her about once every 30 minutes. Mr. Rycroft provided Mrs. Rycroft with something to drink but does not recall giving her any food. Mr. Rycroft stated that Mrs. Rycroft complained of pain in her abdomen during the afternoon. Mr. Smee testified that he called his mother that afternoon and was told that Mrs. Rycroft was upstairs resting in her bedroom as the procedure had taken a lot out of her.

[40] The last time that Mr. Smee spoke with his mother was between 5:00 p.m. and 5:30 p.m. on October 8, 2009. He testified that her voice was weak with a nervous tremble. She was in pain and discomfort. Mrs. Rycroft cut short their call by saying that she needed some rest and would call him back.

[41] Mr. Rycroft stated that Mrs. Rycroft complained of abdominal pain in the evening. Mr. Rycroft was concerned and he called the Toronto East General Hospital. He was told that Mrs. Rycroft could be brought back to the hospital. Mrs. Rycroft did not want to sit in a car while driving to the hospital from her home during rush hour nor wait in the Emergency Department at TEGH. She hoped that she would feel better with sleep and rest.

[42] Late that evening Mrs. Rycroft was in so much pain that she told Mr. Rycroft “Help me, Help me!” He called 9-1-1 to get an ambulance. The Ambulance Call Record shows that this call was made at about 12:37 a.m. on Friday, October 9, 2009 and that an ambulance arrived about seven minutes later: Exhibit 2, Tab C2. Mr. Rycroft stated that Mrs. Rycroft went to the bathroom to freshen up before the paramedics arrived. She collapsed at the entrance to the bathroom. Her bowels emptied while she was on the floor. Mr. Rycroft could not lift her up off the floor. When the paramedics arrived they moved Mrs. Rycroft to her bed. She answered their questions. Her chief complaint was “shortness of breath” and secondarily “nausea/vomiting”. Mr. Rycroft testified that while Mrs. Rycroft may have vomited at home he was not aware that she had done so. Her breath sounds were “congested”. Her skin temperature was “cool” and her skin colour was “mottled”. Her pulse was “weak” and her mental status was “confused”. Mrs. Rycroft’s oxygen saturation levels were 82 at 12:52 a.m. and 84 at 12:57 a.m. The paramedics connected Mrs. Rycroft to a supply of oxygen and intravenous. Mrs. Rycroft was taken by ambulance from her home at 1:08 a.m. and arrived at the Markham-Stouffville Hospital about ten minutes later.

Emergency Return to Hospital

[43] Mr. Rycroft testified that Mrs. Rycroft was taken by ambulance to the Markham Stouffville Hospital at about 1 a.m. on October 9, 2009. He recalls that Mrs. Rycroft was connected to a supply of intravenous fluids and oxygen immediately upon her arrival at the hospital. The attending emergency room physician told him that Mrs. Rycroft was “really ill”. He was told that Mrs. Rycroft had food in her lungs which had caused an infection that restricted her breathing. She was given antibiotics to combat the infection. Some time between 2 a.m. and 4 a.m., while Mrs. Rycroft was on a stretcher, the attending doctor told them that she would have to be intubated. This involved the insertion of a breathing tube into her lungs while she was sedated. After much discussion with Mr. Rycroft regarding the benefits of intubation, Mrs. Rycroft shook her head signifying her agreement to proceed with the intubation by Mr. Rycroft. This was the last time that Mr. Rycroft saw Mrs. Rycroft in a conscious state. Hospital records show a procedure to provide Mrs. Rycroft with endotracheal intubation and mechanical ventilation was performed on at 3:20 a.m.

[44] Mr. Smee arrived at the hospital from Montreal in the morning of October 9, 2009. Mr. Rycroft left the hospital at about 5 a.m. to get some sleep.

[45] Mr. Rycroft was awakened by a telephone call from Dr. Chen’s office around 9 a.m. He told Dr. Chen’s assistant that Mrs. Rycroft was in the Markham Stouffville Hospital because there was food in her lungs and that she was on a breathing machine and taking antibiotics. He states that Dr. Chen’s assistant said that another gastroscopy would be performed when Mrs. Rycroft had recovered. However, his assistant told Mr. Rycroft that next time, she would have to begin fasting four days before the procedure to ensure that her stomach would be empty.

[46] Sheila Service is Dr. Chen’s office administrator. Amongst other things, Ms. Service schedules appointments and books endoscopic procedures for Dr. Chen’s patients. She testified that she “somewhat” remembers speaking with Mr. Rycroft. She called him to schedule an appointment for Mrs. Rycroft on November 17, 2009. She denies that she told Mr. Rycroft that Mrs. Rycroft should fast for four days because it takes longer for her stomach to empty its contents. She testified that she immediately told Dr. Chen that Mrs. Rycroft was in hospital.

[47] Mr. Rycroft returned to the hospital shortly after his telephone call with Ms. Service. Mrs. Rycroft had been moved into a room. She was unconscious.

[48] Mr. Rycroft recalls speaking with Dr. Chen on October 9, 2009 after speaking with his office administrator. Mr. Rycroft advised Dr. Chen that Mrs. Rycroft was on antibiotics and they were hoping she would recover. Dr. Chen told Mr. Rycroft that food was found in Mrs. Rycroft’s stomach during the gastroscopy and that she had regurgitated during the procedure even though he had suctioned some of the food found in the stomach.

[49] Mr. Rycroft’s recollection is confirmed by a conversation that he had with the Coroner, Dr. Robert McKenzie, on October 10, 2009. The Coroner’s Report (see Exhibit 2, Tab D3) states:

On October 9 th he had spoken by telephone with the endoscopist and was told that the decedent had a large amount of food residue in the stomach. The endoscopist told the spouse that he had suctioned the liquid contents but could not remove the solid contents. The endoscopist told the spouse that the decedent had regurgitated during the procedure and may have aspirated.

[50] A Consultation Note dictated by Dr. Alan Yee, of the Markham Stouffville Hospital, on October 9, 2009 states:

Mrs. Rycroft is a 63 year-old female who presents with shortness of breath and respiratory failure. … On arrival, she was hypotensive and mottled with blood pressure of 60 systolic although she responded well to two litres of fluids with blood pressure rising to the 90 systolic range. However, she required 100% oxygen to maintain her saturation in the low 90% range. Chest x-ray showed diffuse patchy mixed infiltrate, predominantly in the left lung. …

On initial examination, she was in moderately severe respiratory distress with O2 saturation anywhere in the 80-90% range on 100% oxygen. Blood pressure was in the 90 systolic range. Chest examination showed occasional coarse crackles. … Mrs. Rycroft is presenting with pneumonia, probably from aspiration. There is no air seen in the mediastinum on plain films and abdominal examination was unremarkable. Due to her ongoing high oxygen requirements and persistent respiratory distress and borderline O2 saturations, she subsequently was intubated for hypoxemic respiratory failure. She will be placed on antibiotics … Her critical condition was reviewed with her husband.

[51] On Saturday, October 10, 2009, Mr. Rycroft was told by doctors that Mrs. Rycroft would not recover. She remained on a ventilator. The infection had spread to other organs. Mrs. Rycroft’s brain activity had diminished. He and Mr. Smee were asked whether they wished to keep Mrs. Rycroft on a ventilator. They reached the difficult decision to disconnect the ventilator. Mrs. Rycroft was pronounced dead on the evening of October 10, 2009.

[52] Mr. Rycroft stated that the hospital called the Coroner, Dr. Robert McKenzie. Mr. Rycroft met with the Coroner within a day or two after Mrs. Rycroft’s death.

[53] A Final Note, prepared by Dr. Atul Bansal of the Markham-Stouffville Hospital on October 20, 2009, stated:

Mrs. Rycroft … presented with left-sided aspiration pneumonia, septic shock and hypoxemic respiratory failure requiring ICU admission. … Despite aggressive measures, the patient failed to respond to treatment as well as supportive measures and in keeping with the patient’s pre-expressed wishes, given the non-reversability of her condition, it was decided to pursue a course of comfort care with the family. ... The patient was a coroner’s case to rule out any complications as she did have a procedure just prior to this admission.

Post-Mortem Examination

[54] The Coroner ordered an autopsy. The autopsy was conducted by Dr. J. Lentz at the York Central Hospital on October 12, 2009. Dr. Lentz’s post-mortem examination report, dated October 22, 2009, in part, states:

INTERNAL EXAMINATION: Respiratory System

Right Lung: 1090 gms. Marked diffuse congestion. No other lesions. Left Lung: 1350 gms. Marked diffuse congestion. On sectioning a small piece of green coloured foreign material consistent with food particle is present in left lower lobe measuring 0.5 cm maximum dimension. No other lesions. … Gastrointestinal system

Stomach, proximal duodenum and contents: The stomach appears dilated and is filled with at least 2 liters of partially digested food material. Occasionally partially digested small pills are present; some of these are retained. … No evidence of perforation, hemorrhage or malignancy is apparent.

MICROSCOPY AND LABORATORY FINDINGS

2. Lungs - Section shows extensive bilateral pneumonia, more predominant on the left side. Foreign material is present consistent with food debris, ie. aspiration pneumonia. Emphysema is also apparent.

SUMMARY OF ABNORMAL FINDINGS

1. Lungs: a. Aspiration pneumonia, bilateral b. Emphysema, bilateral
2. Stomach: a. Pyloric ulcer, active b. Duodenal ulcer, proximal, healed c. Secondary duodenal obstruction and dilatation.

Information supplied on the Coroner’s warrant indicates the decedent had a gastroscopy with dilatation of a duodenal stricture on October 8, 2009. She was admitted approximately 12 hours later to the hospital with septic shock. It was questioned whether there was aspiration pneumonia or perforation.

Post mortem examination revealed bilateral aspiration pneumonia, the obvious etiology of the sepsis. Pulmonary emphysema was present; this may have been a contributing factor with respect to respiratory compromise. The upper gastrointestinal tract showed an active chronic pyloric ulcer and a healed chronic duodenal ulcer. The latter showed stricture formation with secondary obstruction and proximal duodenal dilatation. No evidence of perforation, hemorrhage or malignancy was apparent.

CAUSE OF DEATH This is to certify that I have examined this body, have opened and examined the above cavities and organs indicated and that in my opinion the cause of death was: ASPIRATION PNEUMONIA.

[55] This action raises the following issues:

• Did Dr. Chen meet the standard of care in his care and treatment of Mrs. Rycroft?
• If so, did Dr. Chen’s negligence cause Mrs. Rycroft’s death?
• If liability is established, what is the appropriate amount of damages to be paid to the plaintiffs?

ANALYSIS

[56] The Plaintiffs allege that Mrs. Rycroft’s death was caused by Dr. Chen’s negligence. The plaintiffs allege Mrs. Rycroft’s death was caused as a consequence of the aspiration of food from her stomach during the gastroscopy. The plaintiffs submit that Dr. Chen did not adequately prepare Mrs. Rycroft for the gastroscopy and, as a result, her stomach was full of food when this procedure was undertaken. Further, they submit that Dr. Chen was negligent in proceeding with the gastroscopy once he realized that there was food in her stomach.

[57] To establish negligence, a plaintiff must show that:

1. the defendant owed a duty of care;
2. the defendant’s behavior breached the standard of care;
3. the plaintiff sustained damage; and
4. the damage was caused, in fact and in law, by the defendant’s breach. [ Cleveland v. Whelan, 2011 ONCA 244, [2011] O.J. No. 1401, at para. 32].

[58] This trial concerns whether the second and fourth elements of this negligence action have been established as Dr. Chen concedes that the other two elements have been established.

[59] Each party called two medical experts. Dr. Stuart Eberhard, called by the plaintiffs, and Dr. Peter Rossos, called by Dr. Chen, gave opinion evidence regarding the applicable standard of care in managing the care of a patient undergoing a gastroscopy. Dr. Stephen Halpern, called by the plaintiffs, and Dr. Brian Kashin, called by Dr. Chen, are anaesthetists and they gave opinion evidence regarding whether Mrs. Rycroft aspirated during the gastroscopy.

ISSUE #1: DID DR. CHEN BREACH THE STANDARD OF CARE IN HIS CARE AND TREATMENT OF MRS. RYCROFT?

[60] A physician is not to be held to a standard of perfection but rather only to one of reasonable care (Cuthbertson v. Rasouli, 2013 SCC 53, [2013] 3 S.C.R. 341, at para. 110). This principle was explained by the Ontario Court of Appeal in Crits v. Sylvester, [1956] O.R. 132, 1 D.L.R. (2d) 502, aff’d, [1956] S.C.R. 991, 5 D.L.R. (2d) 601, at pp. 134-44 as follows:

The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

I do not believe that the standard of care required of a medical practitioner has been more clearly or succinctly stated than by Lord Hewart C.J. in Rex v. Bateman (1925), 41 T.L.R. 557 at 559: “If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. . . The law requires a fair and reasonable standard of care and competence.”

In approaching a problem such as this it is well for a Court to caution itself, as was done by Denning L.J. in Roe v. Minister of Health et al.; Woolley v. Same, [1954] 2 Q.B. 66 at 83, [1954] 2 All E.R. 131, where that learned jurist stated: “It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right.”

I also subscribe to the concluding words in his judgment at p. 86 where he says: “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.” [Emphasis added.]

[61] Analogous principles apply to a specialist. In ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577, at paras. 33-34, the Supreme Court of Canada described the standard of care owed by a specialist as follows:

In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: see Wilson v. Swanson, [1956] S.C.R. 804, at p. 817, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, at p. 361, and McCormick v. Marcotte, [1972] S.C.R. 18.

It is also particularly important to emphasize, in the context of this case, that the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence. As Denning L.J. eloquently stated in Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137, “[w]e must not look at the 1947 accident with 1954 spectacles”. That is, courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge. [Emphasis added.]

[62] In Conn v. Darcel, 2013 ONSC 5080, [2013] O.J. No. 3588, at para. 114, Justice Stinson stated:

Expert evidence is generally required to establish the standard of care, the breach of the standard of care and that the negligent treatment was connected to the injury in question. Expert evidence must be considered in light of, among other considerations:

(a) the relevance of the training, experience and specialty of the witness to the medical issues before the court; (b) any reason for the witness to be less than impartial; (c) whether the medical standard propounded reflects the standard of the great majority of medical practitioners in the field in question; and (d) whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial.

It is ultimately up to the trier of fact, having regard for all of the expert testimony, to determine the standard of care.

Did Dr. Chen adequately prepare Mrs. Rycroft for the gastroscopy?

[63] The plaintiffs submit that Dr. Chen inadequately prepared Mrs. Rycroft for the gastroscopy because: (1) she arrived at the hospital with food in her stomach after not consuming any food after midnight as directed by Dr. Chen; (2) she should have been told to undertake a clear liquid diet for at least 24 hours prior to the gastroscopy given the delayed emptying of the contents of stomach caused by a duodenal stricture. The plaintiffs also submit that Dr. Chen was negligent in proceeding with the gastroscopy even though Mrs. Rycroft’s stomach contained food. The plaintiffs submit that Mrs. Rycroft regurgitated and aspirated the contents of her stomach into her lungs during the gastroscopy, which led to septic shock and her death.

[64] I now address these allegations in turn.

What pre-operative instructions were given to Mrs. Rycroft by Dr. Chen?

[65] Mrs. Rycroft had a pre-operative appointment with Dr. Chen on September 24, 2009.

[66] Dr. Chen testified that at this appointment, Mrs. Rycroft told him that she was on a “clear liquid” diet of jello, juice, water, coffee and clear broth for a number of weeks and that he directed her to remain on this diet until the gastroscopy was performed. At that time the gastroscopy was scheduled for October 30, 2009.

[67] I do not accept Dr. Chen’s evidence that he was told by Mrs. Rycroft that she was on a “clear liquid” diet for a number of weeks prior to the September 24, 2009 appointment for the following reasons:

(1) Neither Dr. Chen’s sparse handwritten notes of Mrs. Rycroft’s September 24, 2009 visit nor his report of the same date state that Mrs. Rycroft reported that she was on a clear liquid diet. (2) Dr. Chen’s evidence that he was told by Mrs. Rycroft that she had been on a “clear liquid” diet for a number of weeks prior to the September 24, 2009 appointment is inconsistent with: (a) Dr. Chen’s contemporaneous written statement that Mrs. Rycroft is “… very constipated and is not consuming very much food, although her weight continues to increase” (emphasis added); (b) An upper gastrointestinal series x-ray, taken on September 11, 2009, which showed retain food in Mrs. Rycroft’s stomach; (c) Dr. Gilas’ finding of retained solid food in Mrs. Rycroft’s stomach on August 27, 2009; (d) Mr. Rycroft’s recollection that in the weeks and months prior to her death he brought home prepared meals from a local grocer most evenings for Mrs. Rycroft. He recalls that she commonly ate rotisserie chicken, sandwich meats, soft meat pies and sponge cakes, and he testified that he had never seen Mrs. Rycroft eat Jello; (e) Mr. Rycroft’s recollection that, after he learned that she had a stricture, he suggested to Mrs. Rycroft that she drink Ensure, a liquid dietary supplementary that her mother had used. Mrs. Rycroft refused as she “hated the taste of the stuff”; (f) Mr. Smee’s recollection that he frequently visited Mrs. Rycroft at home in the summer of 2009. He would typically bring in food from Swiss Chalet as well as soup and bagels from Tim Hortons. They would eat this food while watching television; (g) Mr. Smee’s testimony that his mother never told him that she was on a clear liquid diet and that she would have told him if she had done so as this would have been a radical change from what she normally ate. (3) Dr. Rossos gave evidence that he would not expect someone to be on a “clear liquid diet” for several weeks because it would significantly impact their health and, in any event, they would not gain weight during that period. He also testified that he would have expected that a gastroenterologist would have noted in their records that the patient had limited dietary intake. (4) Dr. Baird gave evidence that his impression was that Mrs. Rycroft advised him on the morning of the procedure that she had last eaten solid food at midnight although he did not specifically recall the time or amount of food. (5) There was no reason for Mrs. Rycroft to misrepresent her diet to Dr. Chen. She continued to eat solid food as reflected by Dr. Chen’s Post-Operative Note which describes Mrs. Rycroft’s stomach as “full of liquid and solid contents”. (6) I find it incredulous that, after being confronted with the suggestion that it would have been difficult for Mrs. Rycroft to survive on a clear liquid diet for several weeks, Dr. Chen recalled for the first time at trial that Mrs. Rycroft told him on September 24, 2009 that she was drinking Boost (a liquid nutritional supplement). That information is not reflected in his notes of the September 24, 2009 appointment or in the report of that same day. He testified that at his examination for discovery, about 2 ½ years before trial, that Mrs. Rycroft had told him that her diet was limited to water, juice and jello. He explained this omission by opining that perhaps his answer had been “cut off”. He also confirmed that he had reviewed the transcript of his examination for discovery and had not corrected this alleged omission.

[68] I accept the plaintiffs’ evidence. Their testimony throughout the trial was presented in a straightforward manner without any apparent overstatement or embellishment.

[69] Dr. Chen also submits that Mr. Rycroft’s evidence was that Mrs. Rycroft “had been told not to eat anything after dinner and not to drink anything after midnight”. I do not accept this submission.

[70] First, his submission does not fairly reflect Mr. Rycroft’s evidence on this point which was as follows:

Question: Do you have any recollection of any instructions that were given to Thelma by Dr. Chen at that appointment?

Answer: I don’t know … No, not specifically by him. We were given the instructions. At some point we were also given the little – I mean, I’m not sure if it’s the same one, I assume it was – we were given this little folder that gave the instructions. And it was like don’t eat after – whatever – six o’clock the night before, nothing after 10 or 12 at night – that kind of thing. …

Question: Is that [Exhibit 2, tab A12] to your memory, the pamphlet or folder that you were given?

Answer: Yeah, this is certainly my recollection of what it looked like and what the instructions were. I actually later, I remember, after Thelma had passed away, I had a copy of this at home which I re-read and put in a drawer somewhere. …

Question: What preparations did Thelma undertake before the – in order to undergo the endoscopy the next day?

Answer: Just … the process of making sure that there was no food, the liquids cut off at the right time, that’s my recollection of the only preparation, and I mean, we had done these types of things before so it wasn’t like this was the first time.

Question: Do you have any memory of the instructions … of Thelma receiving any instructions or sharing any instructions with you that were different from what she had previously been told for previous procedures?

Answer: No. …

Question: To your understanding, did Thelma comply with the preparatory instructions as she understood them?

Answer: Absolutely. [Emphasis added.]

[71] Second, it is inconsistent with the written instructions provided by Dr. Chen to Mrs. Rycroft on September 24, 2009. Dr. Chen testified that, at her appointment, he provided Mrs. Rycroft with a pamphlet published by the Toronto East General Hospital entitled “Some Answers to Questions about Gastroscopy” (“Gastroscopy Pamphlet”) (see Exhibit 2, Tab A12). Amongst other things, it provides the following information and direction:

What is Gastroscopy?

A Gastroscopy is an examination of the esophagus, stomach and duodenum. …

A gastroscope is a long, thin, flexible tube with a light. The tube is inserted through your mouth, and allows direct visualization of your upper intestinal tract. Instruments may be passed, through the gastroscope to take tiny, painless biopsies … Strictures (narrowed) areas may be dilated (stretched).

What Preparation is Required?

For the best possible examination, the stomach must be completely empty, so you should have nothing to eat or drink from midnight the evening before your examination. You may have clear fluids only 4 hours before your examination. [Emphasis in original.]

[72] Finally, this submission is inconsistent with Dr. Chen’s own evidence. Dr. Chen testified that the only additional instruction that he gave Mrs. Rycroft was to stay on a liquid diet. Dr. Chen did not testify that he provided Mrs. Rycroft with any instructions regarding eating and drinking prior to the gastroscopy that deviated from the instructions found in the Pamphlet that he or his staff gave to Mrs. Rycroft. He testified that, had Mrs. Rycroft told him that she was eating a limited amount of solid food, he likely would not have changed his pre-procedure instructions.

[73] To summarize, I make the following findings. I prefer the evidence of Mr. Rycroft and Mr. Smee over that of Dr. Chen where they conflict. Mrs. Rycroft was not on a clear liquid diet, nor did she use Boost or any other similar liquid nutritional supplement, in the weeks prior to her September 24, 2009 appointment with Dr. Chen nor in the weeks prior to the gastroscopy. I also find that Mrs. Rycroft did not advise Dr. Chen on September 24, 2009, or at any time prior to her death, that she was on a clear liquid diet, consuming a liquid nutritional supplement, or that she no longer ate solid foods. Further, Dr. Chen did not, at any time prior to the gastroscopy on October 8, 2009, advise Mrs. Rycroft to maintain a clear liquid diet with or without a nutritional supplement. I find that the instructions provided by Dr. Chen and his staff did not vary from the written instructions outlined in the Pamphlet. Specifically, Mrs. Rycroft was not directed by Dr. Chen to refrain from eating or drinking at some point prior to midnight the evening before the gastroscopy.

What was the standard of care in respect of the pre-operative instructions given on September 24, 2009?

[74] Two doctors testified as to the standard of care in respect of pre-operative instructions and intra-operative care afforded to Mrs. Rycroft.

[75] Dr. Stuart Eberhard was qualified, on consent, as “an expert through education and experience in the performance of gastroscopic procedures as well as an expert in the pre-operative, intra-operative and post-operative management of patients undergoing gastroscopy under sedation”. Dr. Eberhard graduated from the University of Western Ontario’s Faculty of Medicine in 1967. He completed a one year residency in internal medicine in London. He spent three years practicing internal medicine and gastroenterology at Victoria Hospital in London. He received a Fellowship in General Internal Medicine in 1973. He has had privileges at the Victoria Hospital since 1974 as well as a few regional hospitals. He has performed thousands of endoscopic procedures. A majority of those procedures involve gastroscopies (the upper part of the body) as opposed to colonoscopies. He stopped doing balloon dilatations of strictures in about 2005. In 2009, he spent about 2 ½ days per week performing endoscopies, mostly gastroscopic procedures. Since 2007, Dr. Eberhard has held the combined appointment of the Chief of the Division of Internal Medicine at the London Health Science Centre as well as the Chair of Internal Medicine at the University of Western Ontario. In these positions, he is responsible for ensuring appropriate standards in hospital care and for teaching residents such standards.

[76] Dr. Peter Rossos was qualified, on consent, as “an expert gastroenterologist qualified to testify on the standard of care applicable to gastroenterologists in 2009 including with respect to the care and endoscopic treatment of patients with duodenal strictures”. Dr. Rossos graduated from the University of Toronto’s Faculty of Medicine in 1986. At the University of Toronto, he completed an internship in internal medicine in 1987 and a residency in internal medicine and gastroenterology over a two year period ending in 1989. He has been a Fellow, Internal Medicine, RCPS since 1991. He has been a staff gastroenterologist at the University Health Network since July 1992. He received a Certificate of Special Competency in Gastroenterology from the RCPS in 1994. He is also an Associate Professor of Medicine at the University of Toronto. He has nearly 25 years of clinical experience as a practicing gastroenterologist and over 20 years’ experience teaching clinical residents in endoscop.

[77] I find that both Dr. Eberhard and Dr. Rossos are eminently qualified to opine on the standard of care required of Dr. Chen in respect of the issues raised in this action. While certified gastroenterologists such as Dr. Chen and Dr. Rossos may have more specialized training related to endoscopies, I note that such training was not available to Dr. Eberhard given that endoscopic procedures did not did not exist at the time that Dr. Eberhard became an internist in the late-1960s. Instead, Dr. Eberhard’s expertise was learned by doing thousands of gastroscopies over four decade. He has shared that experience and taught best practices to interns and residents, some of whom may have gone on to obtain the now available certificate in gastroenterology.

[78] Both Drs. Eberhard and Rossos agreed that a patient undergoing sedation or anaesthesia should have an empty stomach because sedation and anaesthesia compromise the body’s ability to protect the airway from aspirating regurgitated content. Dr. Rossos explained that he emphasizes the risk of aspiration during a gastroscopy with trainees. One way of addressing the risk of aspiration during an endoscopy is to ensure that the patient has an empty stomach. He stated:

Question: … are there steps that can be taken before the procedure to protect against the risk of aspiration?

Answer: One of the most important … is to ensure that the patient presents with an empty stomach. So that would be to offer them the general recommendation not to eat generally after … midnight typically and in most cases we’ll allow them to have a little bit of fluids in morning especially if they have to take some oral medication but not to drink any significant amount of fluids in the morning before the procedure.

We tend to be a little more liberal if we aren’t using deep conscious sedation and if the procedure is later in the day. But it is difficult to customize that. So I think for most patients we keep it simple. We say nothing to eat after midnight unless you need medication in the morning that you can take with sips of water.

Question: Are the circumstances where it is appropriate to ask patients to avoid solids for longer than that period?

Answer: If the patient is known to have issues around gastric retention or the accumulation of food within their stomach despite their fast then we’ll often ask them to do that. [Emphasis added.]

[79] This view was echoed by Dr. Eberhard who stated:

There are a number of reasons why the stomach should be cleared. One is to give a better view of everything that is there, I mean you got a whole lot of material in the stomach, some of which is fluid, some of which seemed to be semi-solid from what I could understand since it would not come up the scope so, that may obscure the opening of the pylorus. Also, you are at risk of agitating the stomach to the point where that material will be regurgitated. [1]

[80] In a medical report prepared for this action, Dr. Rossos did not opine on whether the pre-operative instructions provided by Dr. Chen to avoid eating food after midnight met the standard of care because he relied upon Dr. Chen’s earlier statement that Mrs. Rycroft had told him that she was avoiding solid foods. At trial, counsel for Dr. Chen sought to ask Dr. Rossos whether Dr. Chen’s instructions would have been appropriate if Mrs. Rycroft had told Dr. Chen that she was able to consume roast chicken and a bland diet, such as soft food and bread. I did not permit this question to be asked because it would have amounted to “trial by ambush” contrary to Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: see Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, 138 O.A.C. 201, at para. 38, leave to appeal ref’d [2001] S.C.C.A. No. 66. Further, the answer to the question would not have amplified the opinions found in Dr. Rossos’ report. There is nothing in Dr. Rossos’report which addresses this issue. He assumed, based on Dr. Chen’s evidence at examination for discovery, that Mrs. Rycroft stopped eating solid food many weeks before the gastroscopy. No such assumption was made by Dr. Eberhard in his report which pre-dated Dr. Rossos’ report. While Dr. Chen submitted that this question responds to the evidence given by Mr. Rycroft at trial regarding his spouse’s eating habits, it is my view that this view was known to Dr. Chen well before trial. Dr. Rossos could have opined on this issue as did Dr. Eberhard. In any event, later in his evidence, Dr. Rossos stated that it was his view that Dr. Chen would not have been required to modify his instructions given Dr. Gilas’ observation that there was a small amount of residual solid food in Mrs. Rycroft’s stomach, and given his belief that she was on a “fairly limited diet”.

[81] Dr. Eberhard’s medical report, prepared for this action, states that:

The patient was told apparently to have nothing to eat after supper on the night prior to the procedure. There was no effort at extended gastric preparation despite the previous experience (Dr. Gilas – August 2009).

The patient was inadequately prepared for the procedure … despite the known history of gastroparesis and retention of undigested food. [Emphasis added.]

[82] At trial, counsel for Dr. Chen objected to Dr. Eberhard being asked to describe what additional pre-operative preparation was required, arguing that the answer to this question was inadmissible because it was not found in Dr. Eberhard’s report. I dismissed the objection on the basis that Dr. Eberhard was simply elaborating on the statements that he had made in his report. His answer was as follows:

Initially what one would do is suggest that she be on clear fluids for at least 24 hours and perhaps more.

[83] Dr. Eberhard went on to repeat this opinion.

Question: What you would expect an endoscopist would instruct a patient in Mrs Rycroft’s circumstances to do from a preparation perspective?

Answer: Well I would say at least 24 hours of nothing more than clear fluids. You can’t leave somebody to dehydrate. But on the other hand, you can’t allow them to retain more food in their stomach if they are already retaining. …

Question: I would ask … for your view on what the standard of care required of the instructions that were given to Thelma Rycroft specifically with respect to dietary preparation in the circumstances of her case.

Answer: The standard of care would be in an uncomplicated issue six hours of clear fluids. In her situation because she was known to have abdominal distention and that sort of thing I would have said at least 24 hours of clear fluids.

[84] In summary, both Dr. Eberhard and Dr. Rossos agreed that, in order to prevent the risk of aspiration, it is very important that pre-operative instructions be tailored to ensure that a patient presents for a gastroscopy with an empty stomach. Dr. Rossos’ view that he would not have modified Dr. Chan’s pre-operative instructions were based on the assumption that Ms. Rycroft was “primarily on a liquid diet”. As noted earlier, I have not accepted Dr. Chen’s evidence that Mrs. Rycroft was on a “clear liquid” diet. Further, as noted earlier, Dr. Rossos stated that while a patient is typically directed to not eat after midnight, it is appropriate to ask patients to avoid solids for longer period prior to a gastroscopy when a patient is known to retain food within their stomach. Mrs. Rycroft had been referred by Dr. Gilas to Dr. Chen in large measure because he was concerned that an obstruction was causing her to retain food in her stomach.

[85] In light of the above facts, and given the potentially grave consequences associated with not taking additional precautions, I prefer Dr. Eberhard’s evidence that, in these circumstances, the standard of care required Mrs. Rycroft to have been instructed by Dr. Chen to be on a diet of nothing more than clear fluids for at least 24 hours prior to the procedure. I also find that Dr. Chen failed to meet this standard of care.

Did Dr. Chen meet the standard of care by proceeding with the gastroscopy after encountering food in Mrs. Rycroft’s stomach?

[86] Dr. Chen’s Operative Note states that Mrs. Rycroft’s “… stomach was full of liquid and solid contents” and that he suctioned off as much of these contents as possible. He testified that his Operative Note should have stated that the Mrs. Rycroft’s stomach might have included solids or semi-solids. A handwritten note/diagram prepared on the day of the gastroscopy states that there was “food/liquid” in Mrs. Rycroft’s stomach: Exhibit 2, Tab B2. However, at trial Dr. Chen testified that he observed some semi-solids on top of or floating inside her stomach.

[87] In my view, Dr. Chen’s failure to correct his Operative Note undermines the credibility of his assertion that the Operative Note was in error. His evidence at trial appears to minimize the nature and extent of what was found in Mrs. Rycroft’s stomach during the gastroscopy despite these contemporaneously written statements. Accordingly, I find that during the gastroscopy, Dr. Chen observed through an endoscope that Mrs. Rycroft’s stomach was full of liquid and solid contents. I also find that Dr. Chen used the endoscope to suction as much of the contents of Mrs. Rycroft’s stomach as he could. However, given the narrow width of the endoscope, solids remained in her stomach.

[88] Also, as noted earlier, Dr. Chen testified that it would have been cowardly for him not to proceed with the endoscopy and dilatation in the circumstances.

[89] Dr. Eberhard testified that Dr. Chen, upon finding that Mrs. Rycroft’s stomach was full of food and liquid was required to either “find some way to remove the material or abandon the procedure”. Not surprisingly, both experts indicated that it would be safe to proceed with an endoscopy if the food and liquid in a patient’s stomach was removed.

[90] Dr. Rossos stated: “[I]f one is able to suction up, you know, the food and the fluid in the stomach and in the esophagus it may actually be quite safe to continue.”

[91] Dr. Eberhard stated: “It required a change of game…It’s got to come out. You can’t do that much procedure with a full stomach … because you are risking what actually happened ...”

[92] Nevertheless, Dr. Rossos stated that Dr. Chen met the standard of care in deciding to proceed with the endoscopy in these circumstances for the following reasons: (1) there was no clinical suspicion of aspiration; (2) Mrs. Rycroft’s airway and sedation were being managed by an anaesthetist and a registered nurse; (3) the risks of proceeding with the endoscopy had to be weighed against the risks of prolonging the procedure (by removing the endoscope and placing either an endotracheal tube or esophageal overtube for airway protection) as well as the risk of possibly aspirating at home until the stricture was dilated.

[93] Certain statements made by Dr. Rossos during his evidence suggests that he had assumed that the regurgitation occurred before Dr. Chen decided to continue on with the endoscopy. As noted, I have found that the regurgitation occurred after Dr. Chen observed food and liquid in Mrs. Rycroft’s stomach and after he commenced suctioning those contents. Dr. Rossos also assumed the view, which I have rejected, that Mrs. Rycroft was on a “primarily liquid diet” in the weeks prior to this procedure. As a result, Dr. Rossos’ view of the appropriate standard of care in these circumstances is not based on the facts as I have found them.

[94] Dr. Eberhard stated that Dr. Chen had the following options after encountering the material: (1) abandon the gastroscopy and re-schedule it for another day when proper preparatory instructions had been provided to Mrs. Rycroft; (2) remove the material from her stomach in one of two ways: (a) use a large bore gastric tube to wash and dilute the material in the stomach and then to suck the material out of Mrs. Rycroft’s stomach; (b) admit the patient, put down a nasal gastric tube, intravenously feed her by TPN (total parenteral nutrition) and, over a period of days try to remove the material in her stomach before resuming.

[95] I prefer Dr. Eberhard’s view that, in the circumstances, the standard of care required that the gastroscopy should have been abandoned and re-scheduled for another day when Mrs. Rycroft had an empty stomach. Dr. Chen’s assessment of cowardice in deciding whether it was appropriate to abandon the gastroscopy has no place in this analysis. I find that Dr. Chen did not meet the standard of care in proceeding with the gastroscopy after encountering food and liquid in Mrs. Rycroft’s stomach.

ISSUE #2: DID DR. CHEN’S NEGLIGENCE CAUSE MRS. RYCROFT’S DEATH?

[96] As a general rule, the test for establishing causation in negligence is the “but for” test. The “but for” test requires that a trial judge apply a robust and common sense approach to determine if a plaintiff has established, on a balance of probabilities and having regard to all of the evidence, that the defendant’s negligence caused her loss. The “but for” test is a factual inquiry into what likely happened. (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8, 9, 14 and 46; Martin-Vandenhende v. Myslik, 2015 ONCA 806, 343 O.A.C. 110, at para. 66.)

[97] Scientific proof of causation is not required. Specifically, there is “no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury” (Clements, at paras. 9 and 46).

[98] In Clements, at para. 10, the Supreme Court of Canada further explained that: “A common sense inference of ‘but for’ causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.”

[99] As the Court of Appeal stated in Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282, 274 D.L.R. (4th) 304 (C.A.), leave to appeal ref’d [2006] S.C.C.A. No. 487, 233 O.A.C. 398 (note), at para. 63, “it is important for the plaintiff to provide some sort of evidence (or other considerations) that indicates that the defendant was the cause of the harm suffered. … In Snell, Sopinka J. … disapproved of permitting the plaintiff to ‘simply prove that the defendant created a risk that the injury which occurred would occur’.”

[100] The court in Clements, at para. 11, also stated that: “Where ‘but for’ causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable.”

[101] “Only if ‘special circumstances’ make it impossible to prove ‘but for’ causation and if applying the test ‘would offend basic notions of fairness and justice’, will the ‘material contribution’ test apply” (Martin-Vandenhende, at para. 65). This can occur “in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it.” In such cases the defendant is liable on the basis that he materially contributed to the risk of injury. (Clements, at paras. 13, 27, 28 and 46.)

Did Mrs. Rycroft Eat Food Within 24 Hours Prior the Gastroscopy?

[102] Dr. Chen submits that there is no evidence that Mrs. Rycroft ate any food within 24 hours of the gastroscopy and therefore, the failure to provide adequate preparatory instructions requiring no food to be consumed within 24 hours of the gastroscopy is immaterial.

[103] However, I accept Dr. Baird’s evidence that he was told by Mrs. Rycroft that she had eaten solid food at midnight. Dr. Chen submits that Dr. Baird’s evidence on this point is unreliable because he did not recall the specific time or amount of food. I disagree. Dr. Baird did recall being advised by Mrs. Rycroft that she had ate solid food at midnight. Whether he could recall if they discussed how much food she last ate does not detract from the fact that she told him that she ate approximately 11 hours earlier.

[104] I also accept David Rycroft’s evidence that he could not recall whether Mrs. Rycroft ate dinner on October 7, 2009. I also accept his evidence that Mrs. Rycroft never went on a liquid diet and coped with her abdominal pain by eating small portions of “soft” solid food. Mrs. Rycroft typically ate prepared meals, such as meat pies and sponge cakes, most evenings in the weeks prior to her death. I also accept Mr. Rycroft’s evidence that Mrs. Rycroft carefully followed the written instructions that were given by Dr. Chen which required her not to eat or drink after midnight. He agreed on cross-examination that Mrs. Rycroft, in preparing for a gastroscopy, would apply the instructions somewhat more conservatively as she would not eat “to the limit” of the deadline for consuming food. I accept Mr. Rycroft’s evidence and it is consistent with Dr. Baird’s evidence that Mrs. Rycroft told him that she ate solid food on the night before the gastroscopy.

[105] Considering all of the evidence, I find that Mrs. Rycroft ate solid food within 24 hours prior to the gastroscopy. Further, given Mr. Rycroft’s evidence that Mrs. Rycroft had complied with dietary instructions given in relation to other endoscopies and given Dr. Baird’s evidence that she complied with the dietary instructions given in this case, I find that Mrs. Rycroft would have complied with a direction not to eat food within 24 hours prior to the gastroscopy had she been so instructed.

Did Mrs. Rycroft Aspirate during the Procedure or at Home?

[106] The autopsy performed by Dr. Lentz found:

Lungs - Sections show extensive bilateral pneumonia, more predominant on the left side. Foreign material is present consistent with food debris, ie. aspiration pneumonia. Emphysema is also apparent.

Post mortem examination revealed bilateral aspiration pneumonia, the obvious etiology of the sepsis. … No evidence of perforation, hemorrhage or malignancy was apparent.

In my opinion the cause of death was ASPIRATION PNEUMONIA.

[107] The parties have different views on when the aspiration occurred. The plaintiffs submit that Mrs. Rycroft aspirated the materials from her stomach as a result of the regurgitation that occurred during the gastroscopy. Dr. Chen submits that the aspirated materials found in Mrs. Rycroft’s left lung was the result of regurgitation or vomiting that occurred later that same afternoon while she was at home.

[108] Dr. Halpern has been an Anaesthetist with the Sunnybrook Health Sciences Centre since 1988. Amongst other accomplishments, he graduated with a medical degree from the University of Toronto in 1977, has been a Fellow of the Royal College of Physicians of Canada in Anesthesiology since 1982 and has held the title of Professor in Anesthesia at the University of Toronto since 2005. Dr. Halpern was qualified as an expert trained, and practicing, in anesthesia and to provide causation evidence about the matters before this court.

[109] Dr. Kashin has been an Anaesthetist with the North York General Hospital since 2009. Amongst other accomplishments, he graduated with a medical degree from the University of Toronto in 1985, has been a Fellow of the Royal College of Physicians of Canada in Anesthesiolgy since 1989 and has held the title of Assistant Professor in the Department of Anesthesia at the University of Toronto since 2009. Dr. Kashin was qualified as an expert in anesthesia and endoscopic anesthesia qualified to give opinion evidence with respect to the question of the cause and likely timing of Mrs. Rycroft’s deterioration, her prognosis and the diagnosis and treatment of aspiration.

[110] The parties raise the following considerations in addressing when the aspiration occurred.

An Individual Who is Sedated is More Likely to Aspirate than Someone Who is Not Sedated

[111] The experts agreed that there are several muscular and other anatomical barriers that serve to protect a person’s airway from regurgitated materials that might enter their lungs: the lower oesophageal sphincter, the upper oesophageal sphincter, the epiglottis, and the vocal chords. The experts agreed that the effectiveness of these barriers was compromised while Mrs. Rycroft was under sedation. It was also agreed that these sedatives are short-lived and their effect had worn off by the time that Mrs. Rycroft was released from the TEGH.

An Individual Whose Gag Reflex is Diminished is more likely to Aspirate than Someone Whose Gag Reflex is Intact

[112] Dr. Halpern and Dr. Kashin agreed that sedation compromises the gag reflex. In turn, a compromised gag reflex increases the risk of aspiration.

[113] During the gastroscopy Mrs. Rycroft was given xylocaine to swallow in order to anesthetize the back of her throat. Dr. Kashin stated that the gag reflex is reduced but not entirely suppressed. Dr. Kashin agreed that the effects of the xylocaine would have worn off by 12:35 p.m. and that Mrs. Rycroft’s gag reflex would have been restored by the time she left the recovery room.

[114] As well, Mrs. Rycroft was given midazolam and propofol. Both Dr. Halpern and Dr. Kashin agreed that Mrs. Rycroft’s gag reflex was diminished by the combination of xylocaine, midazolam and propofol. Dr. Baird opined that the combined effect of these drugs would have “something less than a major effect” on Mrs. Rycroft’s gag reflex and cough reflex.

An Individual With an Endoscope down her throat is more likely to aspirate than an Individual without such Endoscope down her throat

[115] During the gastroscopy, a 1 cm thick endoscope was placed down Mrs. Rycroft’s throat.

[116] Dr. Rossos and Dr. Halpern agreed that the passing of an endoscope in a sedated patient reduces that patient’s ability to guard against aspiration.

Mrs. Rycroft Reported Nausea and Vomiting at Home

[117] The Ambulance Call Report states that Mrs. Rycroft complained of “nausea/vomiting” to the paramedics. The evidence of Dr. Halpern and Dr. Rossos explained that regurgitation is the passive and effortless flow of stomach contents into the esophagus and into pharynx without nausea, retching or abdominal contractions. On the other hand, vomiting is the evacuation of the contents of the stomach through a person’s mouth in a propulsive manner that is typically by nausea.

[118] I accept Dr. Halpern’s view that given the propulsive nature of vomiting, it was “extremely unlikely” that Mrs. Rycroft would have aspirated while vomiting.

Did Mrs. Rycroft Regurgitate At Home?

[119] Mrs. Rycroft was not observed, nor reported, to have regurgitated at home.

[120] Dr. Kashin agreed with Dr. Halpern that the effects of the drugs administered during the gastroscopy were short-lived and would not have impaired Mrs. Rycroft’s airway defences after she left the TEGH. As part of her discharge evaluation, Ms. Januszweski confirmed that Mrs. Rycroft’s gag reflex was present by placing a tongue depresser at the back of her throat. Nevertheless, Dr. Kashin maintains that Mrs. Rycroft regurgitated while at home.

The Presence of Aspirated Material in Her Left Lung is Consistent with a Finding that Mrs. Rycroft Aspirated During the Gastroscopy

[121] On autopsy, and on presentation to the Markham-Stouffville Hospital, food particles were found in Mrs. Rycroft’s left lung but not in her right lung. Dr. Halpern testified that it is unusual for regurgitated material to go into the left lung given that the opening from the windpipe to the right lung is wider and more vertical than the opening to the left lung which is narrower and has a sharper angle, rendering the right lung more vulnerable to the aspiration of foreign bodies than the left lung.

[122] Dr. Kashin agreed that aspirated material is more likely to end up in a person’s right lung than their left lung if the person is standing, sitting, reclined, lying flat on their back, lying on their right side. Dr. Kashin testified that only when a person is lying on their left side are they more likely to aspirate into their left lung.

[123] Even if Mrs. Rycroft somehow regurgitated at home despite her digestive tract’s physical barriers and gag reflex uncompromised, there is no evidence that Mrs. Rycroft was lying on her left side while at home later that day.

Did Mrs. Rycroft Display Symptoms of Aspiration During or After the Gastroscopy?

[124] Clinical symptoms of aspiration pneumonia include rapid breathing, decreased oxygen saturation, pulmonary congestion, lung infiltrates on x-ray, difficulty breathing, shortness of breath, and wheezing.

Decreased Oxygen Saturation

[125] Dr. Halpern testified that Mrs. Rycroft’s oxygen saturation levels dropped significantly during the gastroscopy and were lower on discharge (92%) than it had been when she arrived at the TEGH (96%) for the gastroscopy.

[126] Dr. Halpern noted that Mrs. Rycroft’s oxygen saturation level dropped from her baseline level of 96% about halfway through the gastroscopy to 85%. Her oxygen saturation levels remained beneath her baseline level (87% and 92%) in the recovery room even though she received supplemental oxygen. Her oxygen saturation levels were worse than those from two previous procedures. He noted that during a previous gastroscopy, Mrs Rycroft’s oxygen saturation level was recorded at 97% during the procedure and no lower than 96% in the recovery room. Similarly, he noted that after a colonscopy, Mrs. Rycroft’s oxygen saturation level on discharge was higher than this gastroscopy (93% vs. 92%) even though she had received more sedation. Dr. Halpern explained that oxygen saturation readings below 90 are considered to be clinically significant and that every percentage point drop in oxygenation below 90 represents an increasingly serious level of compromise.

[127] Dr. Kashin opined that the drop in Mrs. Rycroft’s oxygenation during the gastroscopy could have been the result of improperly positioned instrumentation or as the result of the administration of a third dose of Propofol rather than as a result of aspiration. However, there is no evidence that the oxygen saturation instrumentation was improperly placed for an extended period during the procedure. Additionally, there is no evidence that improper positioning of instrumentation was, in fact, the cause for any or all of the low oxygen saturation readings during the gastroscopy and in the recovery room.

Shortness of Breath

[128] Mrs. Rycroft told paramedics that she had been short of breath since she arrived home from the TEGH. The Ambulance Call Report states that her chief complaint was “shortness of breath” and it goes on to state: “… pt got home not feeling well and sob [short of breath], pt had increase sob with nausea and vomiting [sic] …”

[129] Dr. Kashin opined that given Mrs. Rycroft’s chronic obstructive lung disease, she would have immediately displayed significant respiratory symptoms if she aspirated even a small amount of her stomach contents during the gastroscopy. However, Dr. Halpern testified that small amounts of material from Mrs. Rycroft’s stomach would not necessarily have resulted in significant respiratory symptoms. Similar views were expressed by Dr. Chen and Dr. Rossos. Dr. Chen stated “with severe aspiration, [patients] become sick right away, and then the gradient goes down. So any time after an event of aspiration, the effects may become obvious”. Dr. Rossos stated that aspirations [that occur during a gastroscopy] can be difficult to diagnose – there In any event, the evidence is that Mrs. Rycroft did suffer decreased oxygen saturation during the gastroscopy and shortness of breath after the gastroscopy.

[130] Further, Dr. Kashin’s theory that Mrs. Rycroft must have aspirated at home is based on the false assumption that she was well until sometime between 4 pm and 6 pm. This view of Mrs. Rycroft’s condition is not consistent with the evidence of Mr. Rycroft who observed and spoke to her that afternoon, nor with the evidence of Mr. Smee who spoke with both Mr. Rycroft and Mrs. Rycroft that afternoon.

[131] At trial, Dr. Halpern offered the following view:

I think she aspirated a small amount of material at the time of the endoscopy, and as a result of that the oxygen saturation went down to 87, 85 percent I think - we mentioned when she was really sick it was down to at 82 or 83 percent and by that time things had developed, you know, over time and so on…I would consider that a small disturbance, a small but real disturbance and I think it would take time for that small disturbance to develop into a real full blown aspiration pneumonia or pneumonitis

I think that the time course actually fits it. If you have a small amount of infected material that would come from the stomach it would sit in the lung where there is absolutely no defence to bacteria - for sure they would sit there, they would multiply and the patient would get sicker and sicker over the course of 6 to 12 hours.

If you want, to use his terminology, it became a pneumonia, but it also caused a pneumonitis because the bacteria would have set off an inflammatory response.

[132] I prefer Dr. Halpern’s view as it is more consistent with the evidence surrounding the events following the gastroscopy than is Dr. Kashin’s view.

Conclusions

[133] For the following reasons, I find that it is most likely that the foreign material found in Mrs. Rycroft’s left lung was aspirated during the gastroscopy rather than later that afternoon after she had arrived home.

[134] First, there is a great deal of evidence that Mrs. Rycroft regurgitated during the gastroscopy. I accept the evidence of Ms. Ryce and Ms. Januszewski regarding the nature and extent of the material that was regurgitated. On the other hand, there is no evidence that Mrs. Rycroft regurgitated the contents of her stomach at home. While there is some evidence that she experienced nausea and vomiting while at home, I find that it is very unlikely that she would have aspirated as a result of vomiting given its propulsive force.

[135] Second, Mrs. Rycroft was at far greater risk of aspiration during the gastroscopy than while at home. During the gastroscopy she faced the risk of aspiration as a result of the physical barriers within her digestive tract being diminished due to the effects of midazolam and propofol as well as the presence of the endoscope in her throat. These aspiration risk factors did not exist at home. During the gastroscopy, Mrs. Rycroft’s gag reflex and cough reflex were also diminished as a result of swallowing xylocaine. This aspiration risk factor did not exist at home.

[136] Third, Mrs. Rycroft was placed on her left side during the gastroscopy. Given that the aspirated material would only have been found in Mrs. Rycroft’s left lung if she had been lying on her left side when she regurgitated, the presence of foreign material in her left lung is consistent with the theory that the aspiration occurred during the gastroscopy. As there is no evidence of Mrs. Rycroft regurgitating or vomiting on her left side at home, I find that this circumstance favours a finding that the aspiration occurred during the gastroscopy.

[137] Fourth, Mrs. Rycroft exhibited decreased oxygen saturation levels during and after the endoscopy as well as shortness of breath from the time that she arrived home from the TEGH. These symptoms were consistent with Mrs. Rycroft having aspirated during the gastroscopy rather than during the late afternoon.

[138] Applying a “robust and common sense approach”, I find that on the balance of probabilities the plaintiffs have established that Mrs. Rycroft’s death was caused by Dr. Chen’s negligence.

ISSUE #3: DID MRS. RYCROFT’S NEGLIGENCE CONTRIBUTE TO HER DEATH?

[139] Dr. Chen did not advance the defence of contributory negligence in his written submissions. However, the plaintiff’s written submissions responded to Dr. Kashin’s view that if Mrs. Rycroft had gone to a hospital several hours earlier, she may have had the opportunity to receive more aggressive therapy and thus may have had a better chance of resuscitation.

[140] In my view the evidence falls short of proving on the balance of probabilities that Mrs. Rycroft’s death would have been avoided had she gone to a hospital earlier that evening. In any event, I am not satisfied that Mrs. Rycroft acted unreasonably in staying at home rather than returning to the Toronto East General Hospital on the evening of October 8, 2009.

ISSUE #4: WHAT IS THE AMOUNT OF DAMAGES OWED TO THE PLAINTIFFS?

[141] The plaintiffs, David Rycroft and Kevin Smee, claim damages under s. 61(2)(e) of the Family Law Act, R.S.O. 1990, c. F.3, for “loss of guidance, care and companionship that [they] might reasonably have expected to receive from the person if the injury or death had not occurred”.

[142] Mr. Rycroft gave the following evidence:

• he was born in 1949 and Mrs. Rycroft was born in 1946;
• he met Mrs. Rycroft in 1975 and married her in 1980;
• Mrs. Rycroft had a son, Kevin Smee, who was about 15 years old at the time of their marriage;
• Mr. and Mrs. Rycroft bought a home in Markham in 1981;
• Mr. Smee lived with them from about the age of 15 until 1993 when he was about 29 years old;
• Mr. Rycroft owned a company called Lumacell that manufactured emergency lighting and emergency signs in Toronto;
• Mr. and Mrs. Rycroft worked together from 1980 to 1998. Mrs. Rycroft was the Vice President of Operations and managed 100 employees. They spent about 10% of each business day together;
• Mr. Smee joined the company as a student and stayed until 1998;
• Mr. Rycroft sold the company in 2003;
• Mr. Rycroft started another manufacturing company in 2003;
• Mrs. Rycroft had bowel surgery in 2003 and was off work for four months;
• Mrs. Rycroft retired in 2003;
• Mrs. Rycroft’s mother moved in with them after Mrs. Rycroft’s father passed away;
• Mrs. Rycroft put her mother into a long term care facility in 2006 and 2007 and visited her daily;
• Mrs. Rycroft had a history of ongoing health issues: she sometimes had migraines, she had a couple of angiograms, she took a thyroid hormone and she had discomfort after eating as she would “bloat up”;
• Several months after Mrs. Rycroft’s death in October 2009, Mr. Rycroft met someone who he married in November 2010.

[143] Mr. Rycroft claims FLA damages of $100,000.00. Dr. Chen submits that FLA damages in the amount of $45,000.00 should be awarded.

[144] I rely upon the following statements made by this court in Dybongco-Rimando Estate v. Jackiewicz, [2001] O.T.C. 716, [2001] O.J. No. 3826, at paras. 18-20:

[18] The assessment of damages for Raul under the Family Law Act would be relatively straightforward, were it not for his remarriage. Counsel for the plaintiffs argue that his remarriage should not be considered, as his 13-year relationship with Evelyn has been “irreplaceably lost.” They describe his companionship with Tessie as “discretely different than that which was provided by Evelyn” and propose damages of $75,000. Counsel for the defendants submit that remarriage is a factor which should serve to reduce the damages that otherwise might be awarded, relying on Vahey v. Farrell, [1994] O.J. No. 459 (Ont. Gen. Div.). They suggest, in the circumstances, $40,000.

[19] I do think that remarriage is a matter that must be considered, although the weight to be given to it is likely to vary from case to case. The length of time before remarriage occurs is one of the more obvious factors to weigh, as is the closeness of the union between the claimant and the deceased. Remarriage replaces at least part of the lost guidance, care and companionship.

[20] Were it not for the remarriage, I would regard $75,000 as quite appropriate for damages under this head. But, this figure must be discounted because of the remarriage. It is an unpleasant task to engage in such arithmetic, but it must be done. I think the figure of $40,000 proposed by counsel for the defendants is correct.

[145] In Dybognco, the plaintiff re-married about five years after the death of his spouse. Had Mr. Rycroft not re-married, I would have awarded him the sum of $90,000.00 for FLA damages given his long and close relationship with Mrs. Rycroft. However, given his subsequent re-marriage about one year after Mrs. Rycroft’s death, I award the sum of $55,000.00.

[146] Mr. Smee gave the following evidence:

• he was born in May 1964;
• his mother, Mrs. Rycroft, divorced his biological father when he was about seven years old;
• from the age of 7 years to the age of about 16 years he lived with his father and visited his mother on weekends;
• he lived full-time with his mother from the age of 16;
• he worked for Mr. Rycroft and then joined Lumacell in 1979;
• he became a full-time employee at Lumacell from June 1982 until he left in 1999;
• he held increasingly responsible positions at Lumacell: Service Manager, Production Assistant, Production Manager;
• he was Production Manager for 8 or 9 years prior to his departure;
• as Production Manger his responsibilities were intertwined with those of his mother as she was Vice President of Operations;
• in a typical week he spent 20% of his time at work in direct contact with Mrs. Rycroft;
• in 1998 or 1999 his parents started their own company called LuxNet;
• he joined his mother at LuxNet as Vice President of Operations and spent 35-40% of his days with this mother until she quit working in 2003;
• after 2003 Mr. Smee either saw his mother for lunch or spoke to his mother in the evening almost every day to discuss his work day and personal matters; Mrs. Rycroft acted not only as a mother but also as a mentor;
• Mr. Smee moved to Montreal in 2005; he called Mrs. Rycroft daily until her death; he visited Toronto every five weeks or so and stayed with her; these visits were usually for two nights;
• Mr. Smee greatly misses Mrs. Rycroft’s guidance, both as a mother and mentor, and thinks of her each day.

[147] Mr. Smee relies upon this court’s decision in Wright v. Hannon, [2007] O.J. No. 53 (Ont. Sup. Ct.) where the court awarded the sum of $50,000.00 to each of two adult children who had shared a close relationship with their late father. Dr. Chen distinguishes Wright on the basis that Mr. Smee lived in a different city. He relies upon this court’s decision in Madonia v. Stevens, 63 C.C.L.T. (3d) 66, [2008] O.J. No. 5434 (Ont. Sup. Ct.), where the court awarded the sum of $20,000.00 as the daughter of the deceased lived more than four hours away by automobile. In my view, Mr. Smee shared a very close relationship with Mrs. Rycroft as evidenced by the daily telephone calls and the overnight visits every five weeks or so. I award the sum of $40,000.00 in FLA damages to Mr. Smee.

[148] Further, I also grant OHIP’s subrogated claim under the Health Insurance Act, R.S.O. 1990, c. H.6, in the amount of $1,913.14 for the intensive medical care provided to Mrs. Rycroft in the final two days of her life. There was no objection to this claim.

CONCLUSIONS

[149] I award Judgment against Dr. Chen in favour of Mr. Rycroft in the amount of $55,000.00 and in favour of Mr. Smee in the amount of $40,000.00. I also granted OHIP’s subrogated claim of $1,913.14. Although the Statement of Claim appears to advance a claim for general damages on behalf of Mrs. Rycroft, there was no evidence or submissions made in this regard. Therefore, no damages are awarded in respect of Mrs. Rycroft’s pain and suffering following the gastroscopy.

[150] The parties have provided their Bill of Costs. I ask that the plaintiffs provide their costs submissions as well as any settlement offers within two weeks and that Dr. Chen provide his costs submissions within four weeks. Submissions shall be no more than five pages.

Mr. Justice M. D. Faieta

Released: February 28, 2017

COURT FILE NO.: CV-11-435046 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID RYCROFT, personally and his capacity as Estate Trustee of the Estate of Thelma Rycroft, and KEVIN SMEE Plaintiffs – and – DR. THOMAS GILAS, DR. DEAN CHEN, DR. DOUGLAS BAIRD, "JANE DOE" and THE TORONTO EAST GENERAL HOSPITAL Defendants

REASONS FOR DECISION Mr. Justice M. Faieta

Released: February 28, 2017

[1] Dr. Stuart Eberhard, Examination in Chief, October 8, 2015.