COURT FILE NO.: 5283/11 DATE: 20170313

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Estate of Sandra Joan Zarubiak, deceased, by her Estate Representative, Edward John Zarubiak, Edward John Zarubiak, personally, Judith Lynn Zarubiak, Michael Edward Zarubiak, Annemarie Zarubiak-Versluis, Blake Edward Zarubiak, by his Litigation Guardian, Judith Lynn Zarubiak, and Jennifer Marie Versluis, Jessica Lynn Versluis, and Rebekah Anne Versluis, by their Litigation Guardian, Annemarie Zarubiak-Versluis Plaintiffs

– and –

Dr. John Thomas Luce, Dr. Wayne Michael Gruber, Dr. Jonathan Sheldon Chow, Dr. Rafi Fahram, Setrak, Dr. Eric Roderick Blackman, Dr. Doris Helene Wiens, Dr. Robert George Josefchak, Dr. Thomas Joseph Nolan, Dr. William Neil Malcolm, Dr. Danny Domenic Lagrotteria, Dr. J. Chuback, Dr. Vikas Khera, Dr. Anthony Peter Broski, Dr. Martin Leo Samosh, Dr. Allan Selby Ditor, Dr. Mark Joseph Jany, Dr. Samuel Nandakumar Puvendran, Nurse Shirley Wells-Covello, Nurse Kathy Cull, and Niagara Health System – St. Catharines General Site Defendants

Counsel: Jill McCartney and Kimberly Knight, for the plaintiffs Andrew Parley and Andrew Porter, for the defendant Dr. John Thomas Luce Gordon Slemko and Jonathan Gutman, for the defendants Kathy Cull and Niagara Health System – St. Catharines General Site

HEARD: November 28, 29, 30, December 1, 2, 5, 6, 7 and 8, 2016

Grace J.

A. Overview

1During the period from October 6 through November 1, 2009 a well-loved 66 year old mother, grandmother and spouse was admitted to, discharged from, re-admitted to and then passed away in the St. Catharines General Site of the Niagara Health System (the “Hospital”).

2Sandra Zarubiak (“Sandra”) was discharged from Hospital shortly after 3:30 p.m. on October 15, 2009. She fell while attempting to ascend the stairs that led to the front door of her residence. Sandra suffered a number of lacerations to her legs and returned to the Hospital by ambulance less than an hour after her release.

3Sandra’s condition deteriorated quickly and permanently. The poignant final discharge summary said:

…by the time she reached the Intensive Care Unit it was apparent that she was in multi-organ failure secondary to sepsis. [During t]he succeeding days…her condition essentially worsened. After a full frank discussion with her relatives over several days, it was felt that treatment be withdrawn as of the 1st of November, 2009. This was done with her full family in attendance and she passed away very peacefully subsequent to this.

4The loss has been deeply felt. The plaintiffs maintain that the decision to discharge Sandra was flawed. They allege that some of the health professionals involved in her care fell below the required standard of care. They argue that but for the discharge, Sandra would not have fallen and suffered lacerations. Sandra’s family argues the new tears in her skin were the source of the infection that resulted in her death.

B. Applicable Legal Principles

5The legal principles that apply are not in dispute. The plaintiff alleges negligence on the part of the most responsible physician Dr. John Luce and the charge nurse Kathy Cull. Two of the constituent elements of negligence are in issue in this case: breach of the standard of care and causation. I will deal with them in that order.

i. Standard of Care

6Perfection is never required. Medical professionals must possess and exercise a reasonable level of knowledge, care and skill. In Crits v. Sylvester, [1956] O.R. 132 (C.A.) at para. 13, aff’d , [1956] S.C.R. 991, Schroeder J.A. explained:

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…

7The plaintiffs bear the onus of proving unskilfulness, carelessness or lack of knowledge: Stell v. Obedkoff, [2000] O.J. No. 4011 (S.C.J.) at para. 203.

8Courts must avoid the temptation to use the benefit of hindsight: Child v. Vancouver General Hospital, [1970] S.C.R. 477 at 493. As L’Heureux-Dubé explained in Lapointe v. Hȏpital Le Gardeur, [1992] 1 S.C.R. 351 at paras. 28 and 29:

…courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

Both doctrine and case law emphasise that medical professionals should not be held liable for mere errors of judgment which are distinguishable from professional fault.

9Some situations may require a universally accepted response. However, many others involve consideration of alternative courses of action. Each one may have each its own advantages and disadvantages. A finding of negligence will rarely be made if a patient’s treatment accords with a regarded body of professional opinion, even if outnumbered by other respected and qualified views. As Laskin J.A. wrote in Connell v. Tanner, [2002] O.J. No. 1543 (C.A.) at para. 1:

The rationale for this principle is that courts lack the institutional competence to decide between reasonable medical practices.

10Liability will not attach if the step taken is one recognized as appropriate at the time, even if adopted in the face of competing theories: Lapointe v. Hȏpital Le Gardeur, supra at para. 31. Implementation of a reasonable alternative will not lead to a finding that the standard of care has been breached even if the result is less or other than desired. As Callaghan A.C.J.H.C. observed in Kungl v. Fallis, [1989] O.J. No. 15 (H.C.J.) at para. 97:

In summary…the law protects the physician from liability to his patient for damages where, with respect to modern technical matters, the physician honestly and intelligently applies his mind to the problem presenting itself and arrives at a conclusion or judgment which subsequently proves to be wrong.

11Gonthier J. made a similar point but in these words in St.-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491 at para. 53. He said:

The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances…Professionals have an obligation of means, not an obligation of result.

12The line between errors in judgment and conduct which falls below the required standard of care can be difficult to discern.

13Similar principles apply to nurses. Members of that profession are expected to exercise the same care as a reasonable nurse faced with similar circumstances: E.I. Picard and G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson Carswell, 2007) at p. 489. To use the words of Moore J. in Suwary (Litigation Guardian of) v. Women’s College Hospital, [2009] O.J. No. 2579 (S.C.J.) at para. 170:

The standard of care applicable to nurse is that of an ordinary skilled person exercising and professing to have skills of a nurse reflecting the education, training, experience and knowledge of the ordinary skilled nurse.

ii. Causation

14Liability does not follow automatically from a finding that a defendant has failed to meet the standard of care. The plaintiffs must also establish a causal connection between the breach and the outcome. As McLachlin C.J. said in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 at paras. 21 and 23:

The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.

The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 327, per Sopinka J.

15Proof on a balance of probabilities that the negligence of the defendant caused or materially contributed to the injury complained of is required. However, scientific precision need not be established: Benhaim v. St-Germain, 2016 SCC 48 at para. 47. The trial judge is to adopt “a robust and pragmatic approach” to the issue of causation: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 at para. 46 (1).

C. The Parties’ Positions

16The focus of Sandra Zarubiak’s family is her discharge from the Hospital on October 15, 2009.

17They maintain Dr. Luce should not have given an order to that effect because the risk of a fall was unacceptably high. The plaintiff’s argue that Dr. Luce did not exercise the degree of care and skill which could reasonably be expected of a knowledgeable and prudent practitioner of the same experience and standing and acting in similar circumstances.

18The plaintiffs’ claims against the other defendants are based on a conversation they allege Judith Zarubiak had with Kathy Cull the morning of October 15, 2009. They submit that Nurse Cull failed to record or act upon significant concerns expressed by Sandra’s daughter concerning the proposed discharge.

19They also urge the court to find that but for the negligence of the defendants Sandra would not suffered lacerations that were the source of the infection that resulted in her death because she would have been kept safely in the Hospital.

20The decision to discharge was a reasoned and appropriate one according to counsel for Dr. Luce. At most, the plaintiffs have established the existence of disagreement among physicians concerning a matter of clinical judgment. Liability does not attach in such circumstances.

21The Hospital maintains that Judith Zarubiak misremembers any conversation she may have had with Nurse Cull. They submit the plaintiffs have not met the onus of proving that any of the steps taken by the nurse in relation to the discharge fell below the required standard.

22The defendants also dispute the plaintiffs’ argument concerning causation. They theorize that the infection which caused Sandra’s death was present at the time of her discharge from hospital. The lacerations suffered soon afterward were not its source. Consequently, the plaintiffs have failed to satisfy the “but for” test.

23Entitlement to a measure of damages if all of the elements of negligence are established is undisputed. However, the defendants take issue with the quantum sought.

D. Analysis and Decision

i. Standard of Care

a. The Surrounding Circumstances

24Sandra’s October 15, 2009 discharge must be put in context. Much of the evidence relevant to the standard of care issue is non-controversial.

25Sandra was born on December 30, 1942. She was 66 years old at the time of the most important events these reasons address. Sandra lived in a one-floor bungalow with her spouse Edward, daughter Judith and grandson Blake.

26Dr. Luce graduated from the University of Manitoba medical school in 1966. He started a family practice in St. Catharines, Ontario after completing a residency in Montreal.

27Sandra and Dr. Luce had a long relationship. He had been her family physician for more than thirty five years. Frequent visits were made to his office.

28The patient had a long health history. Excerpts will suffice. Sandra was diabetic. One knee had been replaced. More surgery on that joint followed. She had suffered a heart attack. Stents had been inserted. Sandra was plagued by the effects of degenerative disc disease. She was susceptible to lesions on her upper and lower extremities. Sandra was a smoker and had chronic obstructive airway disease. She was overweight. Her mobility was affected. She used, at least on occasion, a walker or cane.

29Specialists were involved in her ongoing care. They included Dr. E.R. Blackman, an orthopaedic surgeon and wound specialist and internist Dr. W. M. Gruber.

30An ambulance transported Sandra to the Hospital on October 6, 2009. An Adult Triage Assessment form was completed shortly after arrival at the Emergency Department. Excruciating back pain, nausea, diarrhoea and normal vital signs were reported.

31A nurse and physician completed an Emergency Department Record over the course of the next few hours. Investigations and tests were ordered. Blood was drawn. Pain medication and antibiotics were prescribed. A decision to admit was made. A kidney infection called Pyelonephritis was recorded as the diagnosis at the time of discharge from that unit.

32Elevated levels of leukocytes, platelets, neutrophil and monocytes were found in the blood drawn from Sandra the evening of October 6, 2009. Those results were consistent with the Pyelonephritis diagnosis.

33Dr. Luce was regarded as the most responsible physician (“MRP”) during Sandra’s first stay in the Hospital. On October 10, 2009 he authored a document entitled History and Admission. It offered this description of the events leading up to and soon following Sandra’s arrival:

This 66-year-old spent three or four days lying in bed prior to coming the emergency room. She developed severe back pain in the lower back and in the right costovertebral angle hip area. The leg was getting weaker and gave out. She presented with nausea and vomiting and emergency room doctor thought she might have a pyelonephritis. She was admitted…and placed on antibiotics. She has no bowel or bladder dysfunction and her urine on admission showed mixed contaminant culture. Blood culture substances were negative.

34A nurse completed a Falls Risk Assessment Form the morning of Sandra’s admission. An error concerning Sandra’s age cause the score to be overstated. Sandra was regarded as a “High Fall Risk” even after allowing for the mistake.

35Kathy Cull was one of many nurses involved in Sandra’s care. She began practising at the Hospital immediately after obtaining the designation of registered nurse in 1976. Her employment continued there until her retirement in 2012. Nurse Cull was a charge nurse. She acted in a leadership role supporting, managing, mentoring and assisting nurses having direct responsibility for patient care. Nurse Cull also had a host of other duties including reviewing and implementing orders made by the MRP and other physicians.

36Dr. Luce conducted a physical examination of Sandra on October 7, 2009. He summarized his findings in an October 10, 2009 report. In part he said the check-up:

Reveals a cognitively intact 65-year-old ( sic ) woman in moderate distress, complaining of pain. She has morphine for the pain.

Head and neck: Eyes, ears, nose and throat are within normal limits. She wears glasses.

Heart sounds are normal, no murmurs or evidence of cardiomegaly.

Chest is clear to percussion and auscultation.

Abdomen is soft, obese, no organomegaly, masses or tenderness.

Extremities: She is extremely bruised throughout…She has a lesion of the left elbow area, left ankle area.

Neurological examination: Gait was not examined. She is unable to get out of bed at the present time. Reflexes are normal. Strength is diminished in the lower extremities. Plantar responses are normal.

37Dr. Luce’s diagnosis included acute back pain, diabetes, degenerative disc disease and coronary artery disease. At that time he also wondered whether Sandra had a urinary tract infection.

38As noted, Sandra remained under Dr. Luce’s care until mid-afternoon on October 15, 2009. A number of documents were used to record observations concerning aspects of Sandra’s condition and care.

39Remarks made by Dr. Luce and other physicians were set forth in the Physician’s Progress Notes. Instructions given by them were found in the part of the patient’s chart entitled Physician’s Orders. Other disciplines used the Interdisciplinary Clinical Notes to record their narrative. The night, day and evening care nurses made short, coded entries in a Patient Activity & Assessment Record Flowsheet. Computer generated records evidenced the dates and times at which blood was drawn and the complete blood results. Consulting reports were provided by Drs. Blackman and Gruber after they saw Sandra at Dr. Luce’s request. X-rays and a computed tomography (“CT”) scan led to the generation of other reports.

40Once pieced together the information those documents contain provide a detailed picture of Sandra’s condition each day. I will only mention those that are important to the findings that must be made.

41The documents are particularly important because they were the source of the testimony given by Dr. Luce and Nurse Cull. Both parties acknowledged they had little, if any, independent recollection of the events they described.

42X-rays were taken on October 7, 2009. As suspected, degenerative disk disease was observed in Sandra’s lower back.

43A dressing was removed from an upper forearm on October 8, 2009. A “moderate amount of serosanguineous discharge”, a slightly bloody but non- infectious secretion - was noted.

44Dr. Gruber saw Sandra at the request of Dr. Luce that day too. The following were among the observations contained in the consultation report he forwarded to the MRP:

Strength in the legs was about 2/4. I could not get her to sit up as it was just too painful. Rolling on her side, she is very tender – almost the entire lumbar spine.

45Dr. Gruber also outlined his impressions. He said:

I suspect this lady either has a disk herniation or a compression fracture. We will arrange to get a CT scan of the spine and put her on some Toradol in the meantime. There appears to be nothing in the way to account for her symptoms intra-abdominally. I think she vomited because of the pain. There are no signs of any infectious etiology.

46A CT scan was ordered by the consultant. Given Sandra’s immobility a catheter was inserted.

47Following morning rounds on October 9, 2009, Dr. Luce observed two lesions. He asked the charge nurse to arrange for Dr. Blackman to see Sandra.

48Dr. Luce also directed nursing staff to request the involvement of a physiotherapist and occupational therapist. He testified he did so because Sandra had been bedridden and he was anxious to get her moving.

49Various entries were made in the Interdisciplinary Clinical Notes later that day. Mobility was a problem. A nurse noted Sandra “continues to have pain on any movement”. As requested, physiotherapist Clark attended to review the hospital chart and to undertake an initial assessment of the patient.

50Skin issues were addressed on October 10, 2009. Dr. Blackman examined the lesions Dr. Luce had observed. One of them was on the left calf. A nurse had noted seeing a small amount of purulent discharge from the left ankle on October 9, 2010. In his October 10, 2009 report, the specialist wrote:

On examination of the left calf, there is a wound that is about three cm in size and it is superficial…

It is recommended that the wound be treated with topical silver, either Silvercel or Acticoat treated by Mepilex, changed every three days and followup [ sic ] care will be provided at the Wound Care Clinic upon discharge from hospital.

51The Physician’s Orders bearing that date advised that Sandra “may be up as able”. Dr. Luce believed that direction had been made by Dr. Gruber. He thought it was a reflection in the improvement of Sandra’s condition. However, it appears that Sandra continued to be inactive. Bed rest was entered for all three shifts that day in the Patient Activity & Assessment Record Flowsheet.

52Blood was drawn from Sandra daily. All results were within normal ranges for the first time on October 11. Dr. Luce also noted improvement in Sandra’s symptoms in the progress note he made on that date.

53While Dr. Gruber and nursing staff noted back pain was ongoing, the records indicate that Sandra ambulated to the bathroom with the assistance of a cane and “minimal” help from a nurse during the day and evening shifts. The CT scan ordered three days earlier had not yet been completed.

54October 12, 2009 started badly for the patient. Sandra complained of back pain “continually” according to a 6 a.m. nursing note. She was said to have reacted badly when told she was “to get out of bed and move more”.

55Dr. Luce asked physiotherapy to see his patient again. While a visit is not recorded until the following day, ambulation with assistance was noted during the day shift. However, bed rest and sedation appears otherwise to have been the order of the day on the 12th.

56For some reason the MRP did not make a progress note following rounds on the 13th. However, his further repeated request for a CT scan was answered. It revealed broad based disk bulging and protrusion but no compression fracture.

57Bed rest entries ceased to be made. Ambulation with the assistance of one nurse and a cane was reported during the day shift. According to a physiotherapist, that level of support was required because of left foot and lower leg pain. At 1:40 p.m. an occupational therapist observed that Sandra did “not want to get out of bed until medications are finished”.

58On the morning of the 14th, Dr. Luce wrote “Improved, wants to go home. Could cope” in the Physician’s Progress Notes. He ordered the removal of intravenous infusions and the catheter. He asked that physiotherapy get Sandra “up and about” and added “Home ASAP”. Based on a subsequent telephone conversation with Dr. Luce, Nurse Cull added “plan tomorrow”.

59Blood was drawn again. While the level of monocytes was slightly elevated, all other results were within the normal range.

60Various entries were made in the Interdisciplinary Clinical Notes throughout October 14, 2009. Complaints of back pain were noted at 10:50 a.m. At 2:05 p.m. Sandra reported soreness had reached the level of 9/10. News that the time for further sedation had not yet arrived was poorly received. Sandra’s intention to call her doctor was recorded.

61Two Percocets were administered at 3:45 p.m. Afterward Sandra was seen by Physiotherapist Clark. The physiotherapist reported that Sandra was suffering low back pain that ranged from “medium to severe”. Sandra was said to be able to travel twenty-five metres with the assistance of a walker and one person. The physiotherapist added “not ready for [discharge]…needs to be [independent] to [washroom] [with] walker or cane”.

62At 5:30 p.m. Dr. Luce made a verbal order increasing the frequency with which Percocets could be administered.

63The final note of the day was made by a nurse at 18:35. It indicated there was “no change in client status”.

64According to the Patient Activity & Assessment Record Flowsheet, Sandra ambulated with the assistance of a nurse and a walker following removal of the catheter.

65Just after midnight on the 15th Sandra was up to the bathroom again. The Interdisciplinary Clinical Notes mentioned a walker. No other assistance was indicated. However, according to the Patient Activity & Assessment Record Flowsheet Sandra required the assistance of a nurse and a walker to ambulate.

66After morning rounds Dr. Luce noted that Sandra had been up and about on her own despite still having spasms. “Should manage o.k. at home” completed his entry in the Physician’s Progress Notes.

67Dr. Luce penultimate order was made at 8 a.m. on October 15, 2009. Alongside the word “discharge” he directed nursing staff to check with Dr. Gruber. Incidental directions were also made. Sandra was to arrange a follow up in-office visit in one week.

68In cross-examination, Dr. Luce acknowledged that he did not conduct another physical examination of Sandra. He believed doctor and patient had a conversation in which questions were asked and answered. Dr. Luce had no recollection of reviewing the Interdisciplinary Clinical Notes. Specifically, he did not remember seeing the “not ready for discharge” entry made by the physiotherapist the previous day.

69What happened next on the 15th is in dispute. Judith Zarubiak testified that she visited her mother after dropping her son at school. Her narrative is set forth in the next several paragraphs.

70Sandra reported feeling a little better but seemed upset. She said she had been told by Dr. Luce discharge would occur that day.

71Sandra wanted to go home but acknowledged she was not ready to manage there when questioned by her daughter. Sandra said she felt dizzy and a little nauseous.

72Thereafter, Judith had an eight to ten minute conversation with Nurse Cull. She relayed to the charge nurse what her mother had told her. Judith outlined Sandra’s concerns and provided her own opinion that Sandra was unready for release. Judith described Nurse Cull’s response. The charge nurse explained there was nothing to worry about because Dr. Luce did not have the authority to discharge Sandra. Dr. Gruber was identified as the MRP. He would see Sandra after his office hours ended at 4 p.m. and then make the decision to discharge or not. Nurse Cull promised to pass the concerns on to Dr. Luce and to call Judith later.

73Judith said she returned to her mother’s room and told Sandra what had transpired.

74Nurse Cull had no recollection of or note relating to the conversation Judith described. Nurse Cull explained that she would have spoken with the patient had the discussion occurred as Judith outlined. If concerns were expressed, Nurse Cull would have discussed them first with the nurse providing care to Sandra and then with the MRP. She said she had known Dr. Luce for many years and described him as quite approachable.

75The chart does not provide much information concerning Sandra’s discomfort or mobility prior to discharge on the 15th. According to the Patient Activity & Assessment Record Flowsheet, Sandra continued to ambulate with the assistance of a nurse and a walker during the day.

76Courtney Sheldon was a nurse who provided care to Sandra from time to time. Her entry at 10:20 a.m. on October 15, 2009 was confined to observations made concerning the wound on Sandra’s lower left calf. She noted:

…1.5cm x 1 cm open area, small amount of purulent drainage, wound bare bright red, surrounding skin satisfactory

Cleansed with sterile water, applied [indecipherable] acticoat and a mepilex border.

77At 3 p.m. Nurse Cull recorded the fact that she had told Dr. Luce of her inability “to contact Dr. Gruber to approve discharge” despite trying to reach him on three occasions. Nonetheless, Dr. Luce ordered that Sandra be allowed to go home.

78Sandra was discharged at approximately 3:35 p.m. She had been given prescription and discharge instructions. According to an entry made by Nurse Sheldon there were “no voiced complaints on discharge”. That notation is consistent with the testimony provided by Michael and Edward Zarubiak.

79Unfortunately, the joy of release from the institutional setting was short-lived. Edward picked Sandra up from the Hospital. He said he drove his truck onto the lawn right in front of the stairs leading to the front door. He remembered telling Sandra to remain seated while he ran into the house to retrieve something – likely her cane. He said he came back about ten seconds later to find her lying on the stairs.

80Judith said she was driving toward home when her father passed by headed in the opposite direction. She said she assumed he was on his way to visit Sandra in the Hospital.

81The next thing she knew, Edward was calling for assistance. His truck was on the grass in front of the stairs. She said she was shocked to learn her mother had been discharged from hospital. After a brief conversation concerning Sandra’s discharge, Judith helped her out of the truck. Sandra placed her right hand on the railing. Sandra was on the left side of her mother. They paused for a few minutes. Edward entered the house. Once ready, Sandra put one foot up on the second step. However, her legs gave out as she pushed up on her other foot.

82Edward and Judith described the aftermath in a similar fashion. Sandra’s legs scraped on the cement steps. Blood flowed from the cuts she sustained. Sandra was obviously in distress. A 911 call was made.

83Dr. Luce offered this after the fact description of Sandra’s short-lived return to her residence in a History and Physical he authored on October 17, 2009:

…unfortunately on arriving home she had three steps to go to get into the house and her leg collapsed under her and she fell, suffering multiple lacerations to the left leg, laceration over the right shin, huge hematoma of the right calf, she had lacerations of the left upper arm…

b. Did Nurse Cull fall below the Standard of Care

84Insofar as Nurse Cull is concerned, the plaintiffs’ position is predicated on the events of the morning of October 15 being as Judith described.

85After careful consideration, I prefer Nurse Cull’s version of events.

86Judith may have expressed a personal opinion to a nurse in passing. Nurse Cull may have been the audience. However, I reject the balance of her evidence concerning the content of the discussion with the charge nurse preceding Sandra’s discharge.

87Nurse Cull’s record keeping was meticulous. She was an impressive witness at trial. She answered questions in a calm, considered and detailed manner. I have no doubt additional steps would have been taken – and recorded – had Judith voiced concerns about discharge on her mother’s behalf.

88Importantly, Nurse Cull would not have misidentified the MRP. Nor would she have reversed the roles of Drs. Luce and Gruber in the discharge process. Nurse Cull was an experienced, capable and long-time employee of the Hospital. She understood her role and responsibilities and carefully discharged them.

89She had been involved in implementing the Physician’s Orders made with respect to Sandra on October 8, 9, 10, 14 and at 8 a.m. on the 15th. Her interactions with Dr. Luce were plentiful and well documented. She did not make the errors that would have to be attributed to her if Judith’s version was accepted.

90Furthermore, Judith’s description of her mother’s state of mind is at odds with the ones provided by her father Edward and by her brother Michael.

91Edward Zarubiak visited Sandra the morning of October 15. While he did not know of the forthcoming discharge at that time, he said Sandra was getting better. She was more cheerful. Her colour was improving.

92Michael Zarubiak testified that he visited the Hospital on his way home from work on October 15, 2009. Sandra told him that she was about to be discharged. In fact, she said she was waiting for Edward to pick her up.

93Michael told the court his mother “didn’t look right”. She was grey in colour. However, in cross-examination he expressed the belief that Sandra wanted to go home and confirmed that she did not express reluctance about doing so.

94Edward confirmed that Sandra called and asked him to come and pick her up from the Hospital the afternoon of the 15th. He received that news happily. He had no concerns about her discharge at that time. Edward said that Sandra continued to be cheerful during the fifteen to twenty minute drive home. No complaints or concerns were expressed by her.

95Their evidence is consistent with the note made by Nurse Sheldon at the time of discharge.

c. Did Dr. Luce fall below the Standard of Care

96Dr. Luce offered several reasons for his decision to discharge Sandra:

i. Pyelonephritis was in the past; ii. She was up and about on her own following the removal of the I.V. and catheter; iii. Pain was being effectively controlled with medication; iv. There was nothing in the blood results or CT scan that favoured continuation of an in-hospital stay; v. She wanted to go home, was well supported there and Dr. Luce trusted her opinion that she would be able to manage.

97Dr. Luce said he wrote “check with Gruber” so that the consulting physician would be afforded an opportunity to request a follow up appointment with Sandra too. Nurse Cull agreed. She said she considered that note to be professional courtesy, nothing more.

98The parties’ relied heavily on the experts they retained.

99Dr. W. Kenneth Milne was tendered by the plaintiffs. He completed medical school at the University of Calgary in 1995. A designation by the College of Family Physicians of Canada followed in 1997. Dr. Milne has written, taught and lectured. He is an active clinician and is currently the Chief of Staff and Chief of Emergency Medicine at the South Huron Hospital in Exeter, Ontario.

100The defendants turned to Dr. Chris Ragonetti. After completing his legal education, Dr. Ragonetti graduated from McMaster University’s medical school in 1990. He completed a residency in the Family Practice Program offered by that institution in 1993. A clinical practice followed in Burlington, Ontario until 2002. Dr. Ragonetti has been an attending physician and medical director at three Burlington and one Toronto based long-term care homes since that time and enjoys privileges at the Joseph Brant Hospital in Burlington.

101Dr. Milne was of the opinion that Dr. Luce fell below the standard care because Sandra was discharged when a review of the Hospital chart led to the conclusion there was still a significant – and unacceptable - risk she would fall.

102Dr. Milne acknowledged that Sandra’s mobility had been limited for years before her admission and that patients could be safely and appropriately discharged despite the continuation of those challenges.

103He also agreed that Dr. Luce knew Sandra well having been her family physician for decades.

104Nonetheless, in his view, Sandra ought not to have been discharged. She was deconditioned having been largely immobile over the period from her arrival at the Hospital on October 6 until her discharge on the 15th. Consequently, Dr. Luce should not have allowed Sandra to be released without first having a favourable opinion from Dr. Gruber or, alternatively, having reassessed her himself. While important, Sandra’s stated desire to go home should not have been a determining factor if it was unsafe for her to do so.

105Dr. Ragonetti supported the decision Dr. Luce made and the rationale he offered.

106Sandra had been properly diagnosed with Pyelonephritis in the emergency department. The infection had been treated appropriately and effectively with antibiotics.

107Her state of wellness was a relative thing. Her medical history and chronic conditions were unchangeable. Mobility was limited pre-admission. She required a cane or walker. An assistive device would continue to be required after discharge.

108Sandra also endured chronic pain before being hospitalized. The level of discomfort varied but analgesics provided relief. Numerous abnormalities were mentioned in the CT report but they were not new. Surgical intervention was not warranted. Laboratory results and vital signs were normal.

109As well, Sandra was of sound mind. Her desire to go home and her representation that she could manage were entitled to significant weight. Dr. Ragonetti was of the view that she knew her body better than anyone. Hospitals, he said, are good places to be if acutely ill. They are not a healthy environment for those who are not.

110Given all of the above, Dr. Ragonetti was of the opinion the applicable standard of care did not require the MRP to confer with a consulting physician. He also told the court a pre-discharge physical examination was unnecessary. A review of the Interdisciplinary Clinical Notes was also not needed. If someone else on the medical team had a concern, Dr. Ragonetti would have expected it to have been communicated orally either directly or through the charge nurse. He noted that Nurse Cull had brought a low potassium result to Dr. Luce’s attention on October 9, 2009 by calling him and seeking a verbal order. That was the proper approach.

111While a close call, I am of the view that the plaintiffs’ case founders here.

112I recognize that Sandra’s mobility was far worse upon arrival at the hospital on October 6, 2009 than it had been before. As Drs. Luce and Gruber noted in their early assessments, one of her legs weakened and eventually gave out. Sandra had been largely bedridden for days preceding and postdating her admission.

113It does not appear to be seriously disputed that Drs. Luce and Gruber were concerned about deconditioning. Dr. Luce ordered an assessment by an occupational therapist and physiotherapist on October 9. An order made the following day directed that Sandra “may be up as able”.

114A nurse noted at 6 a.m. on October 12 that Sandra had been “told to get out of bed and move more”. Following rounds a few hours later, Dr. Luce again requested the involvement of physiotherapy. That was the last day on which the bed rest box was marked.

115An occupational therapist and physiotherapist saw Sandra on the 13th. Ambulation with mechanical and human assistance was noted.

116An ability to travel twenty-five metres in a walker with the assistance of one person was recorded in the Interdisciplinary Clinical Notes by the physiotherapist on the 14th. Understandably the plaintiffs seize on the balance of the entry. That discipline said an ability to travel to the washroom with the assistance of a walker or cane only was a precondition to discharge.

117However, according to an entry made in that same part of the chart in the very early morning hours of the 15th, the patient had been up to the bathroom with a walker. Seemingly, Sandra had met the physiotherapist’s suggested discharge condition. Only if compared side by side with the Patient Activity & Assessment Record Flowsheet does it become unclear whether Sandra also needed assistance from an attending nurse.

118Objectively, Sandra’s condition was on an upward trajectory.

119I do not accept Dr. Luce’s testimony that Nurse Cull was directed to check with Dr. Gruber for the sole purpose of determining his intentions post-discharge. If that was the underlying purpose the discharge would not have been delayed while Nurse Cull undertook efforts to reach him. There would have been no need for a further order discharging Sandra when Nurse Cull was unable to do so.

120However, to this day it is unknown what, if anything, Dr. Gruber would have said given the fact the CT scan did not reveal a compression fracture. Dr. Luce may have wanted a second opinion but the fact is he made a decision without one. That was his right as the MRP.

121I agree with the plaintiffs that more could have been done to try to improve Sandra’s conditioning. However, the goals would have been very modest ones.

122Judith completed a Disability Tax Credit Certificate with Edward’s assistance after Sandra’s death. The form addressed physical limitations in the twelve month period preceding Sandra’s death. In describing the level of support Sandra required Judith and Edward chose these words:

Provide assistance with walking and stabilizing while walking...assist with preparing meals as she cannot stand for long period of time…

123The certificate stated Sandra had walking difficulties due to a knee replacement and an injury to her back. The effects of her impairments were said to be as follows:

Needs assistance with mobility able to use a cane or walker…Needs help with balancing especially on uneven ground. Difficulty up and down stairs, assistance is needed. Difficulty getting in and out of vehicles. Inability to stand for long period of time in order to prepare and cook meals, tires easily and high risk for fall.

124None of those things would have changed no matter what steps were taken in the Hospital by physiotherapists or others.

125I accept the evidence that she wanted to go home. She lived in a bungalow with family members who loved and supported her. The impediment was three stairs out front. With the benefit of hindsight, I recognize why Sandra’s family would say another day or two in the Hospital may have made Sandra a little stronger. Pre-planning with family members may well have been wise.

126However, I also sympathize with Dr. Luce. Sandra’s health history and physical attributes were unchanged. She had been, was and would continue to be a person with limitations and needs. Movement and risk went hand in hand. Sandra had been in the Hospital for quite a long time. The issue was the best place for her continued recovery: in hospital with medical staff or at home with family members who knew Sandra intimately and who were ready, willing and able to assist her once more.

127In the end, that was an issue of professional judgment. Arguments could be and have been marshalled on both sides. If considered in isolation from and without being influenced by the after-the-fact result both were equally compelling. In the final analysis, Dr. Luce made a reasoned and well-supported decision. Another physician may have reached the opposite, more conservative conclusion. On the particular facts of this case both would have been equally right – or wrong – depending on your point of view. In law, neither decision could be classified as one breaching the applicable standard of care.

128If there was an error in this case, it was one of judgment. It did not constitute professional fault.

ii. Causation

129I address the issue of causation in the event that my conclusions concerning the standard of care are found to be incorrect.

130Once again, the experts retained by the parties offered conflicting opinions.

131Dr. Ragonetti was of the view that Sandra suffered from an as yet unknown infection at the time of her discharge.

132The involvement of a wound specialist was requested by Dr. Luce on October 9, 2009. Dr. Luce reported observing lesions in two areas including the left ankle. According to a nursing entry made in the Interdisciplinary Clinical Notes that morning, a small amount of purulent drainage had been observed coming from that region.

133Consulting physician Dr. Blackman saw the patient the next day and described the wound he saw “behind the left calf”. At 12:10 p.m. on October 10, 2009 a nurse wrote:

Dr. Blackman in to assess ulcer left lower leg. Area cleansed [with] saline. Silver acticoat applied [with] mepilex [dressing]. Scant [amount] sang[guineous] drainage noted only…

134The next entry concerning that lesion was made by Nurse Sheldon at 10:20 a.m. on October 15, 2009. She noted a “small amount of purulent discharge” while changing the dressing that covered that wound. She reported cleaning the area with sterile water. Nurse Sheldon then applied Acticoat and a Mepilex border as Dr. Blackman had instructed a few days earlier.

135That sequence of events caused Dr. Ragonetti to opine that Sandra was discharged when a sign of infection was already present although leukocytes (9.6), platelets (389) and neutrophil (7.1) levels had been within normal ranges when the blood taken the evening before discharge was analyzed. Only monocytes (0.9) had been slightly elevated.

136Dr. Ragonetti pointed to the test results that followed Sandra’s readmission to the Hospital.

137Sandra’s fall occurred at around 4 p.m. on October 15. Blood was drawn at 8:04 p.m. that evening. Leukocytes (14.6), platelets (405) and neutrophil (11.6) levels were all high. The monocytes (1.2) reading increased too.

138Dr. Ragonetti was of the view that those signs of infection would not have been apparent so quickly had the bacteria entered through one of the lacerations suffered that afternoon.

139Blood was drawn at 6:44 a.m. on the 16th. Test results skyrocketed. Leukocyte (27.8), platelet (438), neutrophil (22.8) and monocyte (3.1) levels were increasing at a rapid rate. In Dr. Ragonetti’s view, the laboratory results reflected a deterioration in Sandra’s condition as the infection worsened.

140He noted that blood cultures were ordered. Nothing was yielded from the sample collected the morning of the 16th. However, coagulase-negative staphylococcus bacteria was found in blood taken that evening.

141Dr. Ragonetti concluded it was more likely than not that the source of the infection that led to Sandra’s death was the wound on her left ankle that had been identified and was being treated at the time of her discharge. In his view, it had become infected during the course of her stay.

142Dr. Milne disagreed. He noted that Dr. Blackman described the wound behind Sandra’s left calf as “about three cm in size and …superficial” in his October 10, 2009 consultation note. Nurse Sheldon recorded its size as 1.5 x 1 cm in the entry she made five days later. While Dr. Milne conceded a fifty percent reduction in size over that period of time was impossible, the ordered treatment was effective. The wound was healing although he acknowledged that purulent discharge could be indicative of infection.

143He said four factors were important to his analysis: the location (lower leg), number (five) and size (one of the tears was about 12.5 cm. in length) of the lacerations occasioned by Sandra’s fall and the patient’s underlying medical conditions (Sandra was diabetic). Each one increased the risk of infection.

144While the results of the tests conducted on the blood drawn at 8:04 p.m. on the 15th were mildly elevated, Dr. Milne expressed the view their cause was non-specific. The higher counts could have been indicative of infection. They also might have been triggered by the trauma of the fall. He noted that Sandra’s temperature was normal on her return to the Hospital.

145Dr. Milne testified that the certainty of infection was not evident until the following morning. At that time, the leukocyte, platelet, neutrophil and monocyte levels all exceeded those recorded after Sandra’s initial arrival at the Hospital on October 6.

146In Dr. Milne’s view, it was more likely than not that bacteria entered Sandra’s body through one of the fresh breaches of her skin sustained post-discharge and not through any of the pre-existing wounds that had been treated for some time beforehand.

147I have considered the causation evidence of the two experts carefully. On the one hand, the proximity of the objective manifestation of infection and the fall seem more than coincidental. On the other, the pre-release presence of a purulent discharge and the results of the initial blood tests post re-admission suggest pre-existing contamination.

148In the end, I am unable to choose between the two theories. Both are equally plausible. Since the scales are equally balanced, I must conclude the plaintiffs have failed to discharge the onus they bear.

iii. Damages

149I will address the issue of damages for two reasons. First, in case my analysis concerning the standard of care is flawed. Second, to address the magnitude of the loss the Zarubiak family has suffered.

150Counsel for the plaintiffs offered this description of Sandra:

She was the matriarch of the Zarubiak family. Her surviving family members miss her greatly and are still suffering from the losses of her guidance, care and companionship.

151I agree with every word.

152Three generations offered heartfelt and touching testimonials. Husband Edward, children Michael, Judith and Annemarie and grandchildren Rebekah, Jennifer, Jessica and Blake hurt so much because of the person Sandra was.

153She was described as the extended family’s “glue”. Sandra’s Sunday dinners were anticipated and enjoyed weekly affairs. Holidays and birthday celebrations were her much cherished responsibilities too. Her home was the place the family gathered and thrived.

154She was a craft maker extraordinaire. Photographs of the results of Sandra’s work are testaments to her creativity, effort and skill. Her hand made creations are treasured by those left behind: her inability to make more painful for those left behind.

155Sandra was a devoted and attentive spouse, mother and grandmother. She welcomed Judith and Blake into her home. She was a second mother to Blake. He was eleven when Sandra passed away. Their bond was particularly and understandably close. It would have remained so.

156All family members were important to her. She was a best friend to her children.

157Despite a legion of health issues, Sandra found the time and energy to make meaningful contributions to the lives of every family member. She was a constant presence at school and extra-curricular activities that involved her grandchildren. Granddaughters Jennifer, Jessica and Rebekah were 18, 17 and 14 respectively when their grandmother died. I have no doubt a close bond existed and would have endured.

158Annemarie aptly described her mother as a caring, interested and doting grandmother.

159Edward spoke glowingly about the woman he married in 1961. While understated, the magnitude of his loss was apparent. They were close companions throughout their marriage. He aches with loneliness.

160The defendants do not deny that family members suffered a meaningful loss of guidance, care and companionship. The issue is quantum.

161Had I found negligence on the part of a defendant I would have awarded damages under s. 61(2)(e) of the Family Law Act in these amounts:

a. To Edward Zarubiak the sum of $60,000; b. To Judith Zarubiak the sum of $40,000; c. To Annmarie Zarubiak den-Bak the sum of $30,000; d. To Michael Zarubiak the sum of $30,000; e. To Blake Zarubiak the sum of $30,000; f. To each of Jennifer Drost, Jessica Versluis and Rebekah Versluis the sum of $15,000.

162An award of general damages of $25,000 was sought on behalf of the estate. Sandra’s decline was rapid and irreversible. I would have awarded $5,000.

163The defendants do not dispute the quantum of the subrogated claim of the Ontario Health Insurance Plan. Same totals $21,350.93. I would have ordered payment of that amount.

164Edward told the court funeral and burial expenses totaled approximately $11,000. No supporting documentation was provided. An undertaking to provide same have been given but was never fulfilled. I would have allowed $7,500 on account of these items.

165By my calculation the above amounts total $268,850.93. Damages in that amount would have been awarded had I found a defendant liable in negligence.

E. Conclusion and Costs

166For the reasons given and despite the court’s profound sympathy for the Zarubiak family, the action is dismissed.

167If the parties are unable to resolve the issue of costs, written submissions may be provided by the defendants by no later than April 14 and by the plaintiffs by no later than May 12, 2017.

168To all counsel I express my gratitude.