COURT FILE NO.: CV-14-503006

DATE: 20191223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MUHAMMAD TAHIR, HASFA TAHIR CHAUDHRY, HAMZA TAHIR CHAUDHRY, ESTATE OF BUSHRA TAHIR CHAUDHRY, BY ITS EXECUTOR MUHAMMAD TAHIR

Plaintiffs

– and –

DR. PETER MITOFF, DR. JANINE MCCREADY, DR. MELINDA HILLMER, DR. AARON BLUMENFELD, DR. JOHN ABRAHAMSON, DR. KAMRAN QURESHY, DR. ARI LEVINSON, DR. VLADISLAV OVCHINNIKOV, TORONTO EAST GENERAL HOSPITAL

Defendants

Jerome R. Morse, Counsel for the Plaintiffs

Anne E. Spafford and Cynthia B. Kuehl, Counsel for the Defendants Abrahamson, Levinson, Ovchinnikov and Qureshy

HEARD: June 6, 7, 10, 11, 12, 13, 14, 17, 18, 19 and August 19, 2019

D. A. Wilson J.

Background Facts

1Bushra Tahir Chaudhry (“Ms. Chaudhry”) went to her family doctor’s office on July 18, 2012 complaining of abdominal pain and nausea. She was taken by ambulance to the Toronto East General Hospital (“the hospital”) and admitted to the internal medicine ward. The Defendant physicians provided care to Ms. Chaudhry over the course of her admission. Tragically, on July 25, Ms. Chaudhry passed away; she was 47 years old.

2Her husband Muhammad Tahir, personally and on behalf of her estate, and her children Hafsa and Hamza, bring this action in negligence against the doctors who treated her. The action has been dismissed against the defendant hospital and all the other defendants except Dr. Abrahamson, Dr. Qureshy, Dr. Levinson and Dr. Ovchinnikov.

3Ms. Chaudhry was employed at the Toronto East General Hospital as a registered nurse. Ms. Chaudhry was the main breadwinner in the family; Mr. Tahir’s earnings according to his tax returns were very modest. She had been married to the Plaintiff Mr. Tahir for 26 years. Hamza was born in 1990 and Hafsa in 1994 and both children were in school and living at home at the time of their mother’s death.

4Ms. Chaudhry had a significant medical history. She had been diagnosed with diabetes, high cholesterol and high blood pressure. There was family history of cardiac illness. In 2008, Ms. Chaudhry experienced chest pain and was assessed by the Defendant Dr. Levinson who recommended she undergo an angiogram, which she declined.

5In the Agreed Statement of Facts (exhibit 1) it was noted that at the time of these events, Ms. Chaudhry had a life expectancy of another 25 years.

6Counsel filed as exhibit 6 a chronology of important events. This was of much assistance, given that Ms. Chaudhry received treatment from a variety of doctors during her admission and she was in the general medical ward at times, and she was also in the Intensive Care Unit (“ICU”).

7On July 18, 2012, Ms. Chaudhry had severe abdominal pain, nausea and she was vomiting. Her family doctor, Dr. Buckridan, sent her by ambulance to the hospital. After admission, blood work was done and it was noted she had an elevated white blood cell count, an elevated creatinine level and she was hypertensive.

8Ms. Chaudhry was diagnosed with emphysematous pyelonephritis, which is a severe infection of the kidney. The results of the blood cultures indicated that she was septic and there was bacteria in her blood stream. This was a serious infection; the possibility of removal of her kidney was noted (Hospital records tab 9 July 19, 2012).

9Ms. Chaudhry decompensated on the afternoon of July 19, 2012. She was administered IV antibiotics as well as fluids. She was given enoxaparin, a prophylactic anticoagulant to prevent deep vein thrombosis from occurring. This was standard treatment to prevent the development of a thrombus. She was seen by Dr. Abrahamson, internal medicine specialist, the evening of July 19 and she was transferred to the ICU. Dr. Abrahamson assessed her again at 0800 on July 20, before he went off shift and he requested a consultation with a cardiologist and a nephrologist.

10Dr. Ovchinnikov, cardiologist, assessed Ms. Chaudhry in the morning of July 20. He ordered an echocardiogram be done “STAT”, which he reviewed; she was seen by other specialists and various tests were performed. Dr. Ovchinnikov saw Ms. Chaudhry again on July 21; she was transferred back to the internal medicine ward during the morning of July 22.

11Dr. Qureshy, internal medicine specialist, evaluated Ms. Chaudhry on the morning of July 23 and again on July 24. Dr. Qureshy contacted Dr. Levinson, cardiologist, in the afternoon of July 24 due to an elevated troponin level. In the afternoon, Ms. Chaudhry had difficulty breathing and decompensated. She was seen by Dr. Qureshy around 1545 and then by the Outreach team physician, who immediately transferred her to the ICU. Ms. Chaudhry was seen by Dr. Levinson who ordered a STAT bedside echocardiogram and reviewed it. He had no further involvement in the care of Ms. Chaudhry.

12Ms. Chaudhry continued to deteriorate, and she died at 301 July 25. An autopsy was recommended but it was not performed, in accordance with the family’s wishes.

Issues

13The issues to be determined are:

• Did Dr. Abrahamson meet the standard of care for an internal medicine physician in his care and treatment on July 19 and 20, 2012?

• Did Dr. Ovchinnikov meet the standard of care for a cardiologist in his care and treatment on July 19 and 20, 2012?

• Did Dr. Qureshy meet the standard of care for an internal medicine physician in his care and treatment on July 24, 2012?

• Did Dr. Levinson meet the standard of care for a cardiologist in his care and treatment on July 24, 2012?

• If there were breaches of the standard of care, but for these breaches would Ms. Chaudhry have died?

• What are the damages arising from the death of Ms. Chaudhry?

Medical Definitions

14Counsel filed as exhibit 5 a list of medical definitions, which was very helpful.

15A thrombus is a blood clot that can start in the arteries of the legs, known as deep vein thrombosis. A thrombus can also start in the pelvis. An embolus is a thrombus that has gone to another part of the body. If it travels to the lungs, it is known as a pulmonary embolus.

16A pulmonary embolism is the sudden blockage or occlusion of an artery in the lung, usually caused by a blood clot that originates elsewhere in the body.

17Hypotensive means that a patient has low blood pressure. Hypertensive is the term for a person with high blood pressure.

18BiPAP is a form of positive pressure ventilation in which oxygen is delivered at a higher pressure on inspiration and a lower pressure on expiration.; it is designed to improve ventilation to the air sacs in the lungs and to assist with fluid in the lungs.

19Creatinine is a measurement of kidney function; if it is elevated, it indicates an infection or some type of injury to the kidney.

20Emphysematous pyelonephritis is a severe, acute, necrotizing infection of the kidney.

21Systolic function is the squeezing function of the heart to force blood out by the left ventricle. Diastolic function relates to the relaxation of the left ventricle of the heart after it pumps. The muscle fibers lengthen, the heart dilates, and the cavities fill with blood.

22Pulmonary edema is a condition caused by excess fluid in the lungs. The fluid collects in the air sacs in the lungs which manifests as shortness of breath. Most often, heart problems cause pulmonary edema but the accumulation of fluid may be caused by other reasons including pneumonia.

23Electrocardiogram (or ECG or EKG) is a test that measures the electrical activity of the heart; it is a common test used to detect heart problems.

24An echocardiogram is an ultrasound of the heart.

25Sepsis is the reaction of the body to bacteria which is in the blood stream from an infection.

26The Outreach Team is a specialized group of doctors and nurses at the hospital who provide care to patients on the ward who deteriorate suddenly. The team is intended to treat ill patients and hopefully avoid an admission to the ICU.

27The Wells Criteria is a scoring tool which is used to determine whether a patient might have a pulmonary embolism or is at risk for one, and whether treatment is necessary.

Positions of the Parties

28The Plaintiffs submit that the Defendant doctors were negligent because they failed to diagnose a pulmonary embolism and treat it appropriately, by prescribing full anticoagulation medication with heparin. The Plaintiffs assert Ms. Chaudhry suffered a pulmonary embolus on July 20 which caused a marked deterioration in her condition. The doctors failed to recognize she had an embolus and thought her presentation was due to pulmonary edema perhaps from heart failure, or sepsis, although the testing that was done did not support these diagnoses.

29The Plaintiffs argue that pulmonary embolism was a likely possibility and full anticoagulation with heparin should have been instituted. If not, a nuclear medicine lung scan ought to have been performed to establish the diagnosis.

30Ms. Chaudhry decompensated again on the afternoon of July 24. While full anticoagulation was ordered at that time, it was not administered. Had Ms. Chaudhry been treated for the pulmonary embolism in the period July 20-24, 2012, the Plaintiffs argue Ms. Chaudhry’s death would have been prevented.

31As a result of her untimely death, the family has suffered pecuniary losses. In addition, they claim damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3, for the loss of care, guidance and companionship sustained due to the loss of their wife and mother.

32The Defendants argue that the Plaintiffs have failed to prove on a balance of probabilities that Bushra Chaudhry died as a result of negligence of the physicians who treated her in the hospital during the July 2012 admission. Rather, the doctors provided appropriate care and treatment to Ms. Chaudhry; she was seen by a number of specialists who had several potential differential diagnoses, including pulmonary embolus.

33Furthermore, the Plaintiffs have failed to prove that Ms. Chaudhry suffered a pulmonary embolism on July 19 or on July 24, 2012. There was no autopsy, so the cause of death remains unknown.

34On the issue of damages, the Defendants argue that the damages pursuant to the FLA for loss of care, guidance and companionship ought to be assessed at the lower end of the range, given the nature of the relationships, particularly the relationship between Mr. Tahir and his wife.

35On the loss of dependency claims, it is submitted the assumptions relied on by the Plaintiffs’ expert are unreasonable and the approach used by the defence expert is to be preferred.

Legal Principles

36The law on standard of care is set out in Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R.132, where the Court stated, at para. 143:

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.

37It is important to note that the actions of a physician are to be judged in light of the medical knowledge that was available at the time of the alleged act of negligence. It is a well-established principle that “courts must not, with the benefit of hindsight, judge too harshly doctors who act in accordance with prevailing standards of professional knowledge.” Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.).

38It would be unfair and incorrect to judge the actions of a doctor after the fact, with the knowledge of the outcome. A doctor must be assessed against the reasonable doctor of average ability in the same circumstances at the same time: Lapointe v. Hôpital le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351. To put it another way, the doctor is to be judged taking into account the knowledge that was available and that the doctor possessed at the time of treatment.

39As well, the conduct must not be assessed by examining the result. A disappointing or surprising outcome does not mean a doctor was negligent. An error in judgment is not the same as negligence: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804.

40Medical negligence cases, along with other professional negligence cases, in the vast majority of cases, require expert evidence to assist the trier of fact to determine the standard of care that is applicable, whether there has been a breach of that standard and whether the damages that result are caused by the negligence. In making these determinations, the trier of fact must necessarily weigh conflicting testimony from similarly qualified experts and assess the proper weight to be given to the expert opinions.

41In order to succeed at trial, a Plaintiff must prove both a breach of the standard of care as well as causation on a balance of probabilities. The Plaintiff must prove that “but for” the doctor’s breach of the standard of care, the injury would not have occurred: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. It is not sufficient for the Court to infer causation or to draw an inference based on common sense; there is an onus on a Plaintiff to lead evidence to demonstrate that the defendant’s negligent conduct caused the injury. Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193.

The Experts at Trial

42The Plaintiffs called Dr. Dennis Humen, who was a professor medicine at Western University and staff cardiologist at the London Health Sciences Centre until 2015. He never practised as an internal medicine specialist. He is no longer a practising cardiologist; currently, he is a consultant at an imaging facility in Alberta and has no clinical practice or hospital privileges. Dr. Humen was qualified, on consent, to opine on the standards of care for cardiologists and internal medicine specialists as well as on the causation issue.

43The Defendants called two expert witnesses on liability and causation: Dr. Wilkins, an internal medicine specialist who practices in Peterborough; and Dr. Raco, a staff cardiologist at William Osler Health Centre in Brampton. Dr. Wilkins offered expert evidence on the standard of care issue involving Dr. Abrahamson and Dr. Qureshy who are both internal medicine specialists.

44Dr. Raco was qualified by the Court to offer opinion evidence on the standard of care of the cardiologists involved in the care of Ms. Chaudhry, Dr. Ovchinnikov and Dr. Levinson.

45Both Dr. Wilkins and Dr. Raco offered opinion evidence on the causation issue.

46I pause to remark on expert evidence in negligence cases. Perhaps there is no civil case where the expert plays a more important role than in matters involving alleged professional negligence. The court must rely on the experts to articulate the standard of care in the circumstances, whether there was a breach of the standard and if so, whether the injury was a consequence of the breach. It is a trite observation to state that the success of a case of alleged malpractice often depends on which expert opinion is accepted by the court.

47In its role as gatekeeper of expert evidence, the court must scrutinize the qualifications and experience of the expert as well as the foundations that underly the opinion proffered. The fact that an expert retained by a party has an impressive resume, has written extensively in an area and holds an important position at a large hospital does not mean his or her opinion will necessarily be accepted.

48In his Inquiry into Pediatric Forensic Pathology in Ontario (2008) (“the Goudge report”) the Honourable Stephen Goudge offered some valuable comments about the role of an expert witness in the judicial system. He noted that experts must give evidence in their area of specialty: “Expert witnesses are called to the court to speak to the issues that involve their expertise. They are not given free rein to discuss other matters on which they happen to have an opinion…Judges also play an important role in protecting the legal system from the effects of flawed scientific evidence. Although this objective will be greatly assisted by the use of rigorous quality assurance processes in preparing expert opinions, by the integrity and candour of expert witnesses, and by vigorous testing of expert evidence by skilled and informed counsel, the judge must bear the heavy burden of being the ultimate gatekeeper in protecting the system from unreliable expert evidence…Once experts are properly qualified, care should be taken to ensure that they stay within the bounds of their expertise.”

49Following the release of the Goudge report and the 2010 amendments to Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the expert is increasingly subject to greater scrutiny by the trial judge. It is counsel’s obligation to ensure the expert retained to provide opinion evidence at trial is one who can be properly qualified to assist the court in areas which require expert evidence. Early on in the litigation, counsel must determine what issues require expert opinion, what type of expert needs to be retained to properly opine on the issues, to select the best expert to provide a Rule 53 compliant report and finally, if necessary, to testify at trial.

50An expert must do a thorough review of the relevant materials and the literature on the issue on which he or she is asked to opine. Rule 53 of the Rules of Civil Procedure requires that the expert set out in a written report the basis for the opinion, including any research relied on.

51Dr. Humen did not review the discovery transcripts of the defendant doctors before arriving at his conclusion they all breached the standard of care. He said he relied on the medical records that were available to all the physicians. In my view, it would have been preferable for Dr. Humen to have reviewed the discovery transcripts because that would have provided him with insight from the treating physicians as to what they were thinking at the time they were providing care to Ms. Chaudhry and why they did not believe she had a pulmonary embolism. While reviewing the records is essential to forming an opinion, it is also important to take into consideration the evidence of the treatment providers as to what prompted the actions that they took at the time.

52The process of selecting an expert, obviously, occurs long before the trial commences. However, counsel must be vigilant throughout the case to ensure that the expert chosen has the expertise to offer opinion evidence at trial and remains firm in their opinion, particularly after reviewing the opposing party’s expert opinions. If it becomes uncertain whether the expert who has been retained possesses the proper qualifications to be permitted to testify as an expert at trial, counsel needs to address this and perhaps retain a different expert as quickly as possible, because the failure to do so could be fatal to success at trial.

53In my view, it is preferable to have an expert who is similarly situated to the doctor who is alleged to have been negligent. For example, if a doctor at a small, community hospital is the defendant, the expert opinion of a specialist at a busy hospital in a large city may not be of particular assistance to the court in determining the applicable standard of care and whether there has been a breach of it. This is because the experience and practice of the two physicians is likely quite different.

54The fact finder must determine the proper standard of care in the circumstances, based on the evidence of the experts. When an opinion is sought on the standard of care, it is preferable to have an expert of similar qualifications provide opinion evidence as to what the proper standard of care is in the circumstances.

55I agree with the comments of the court in Bafaro v. Dowd, 2008 CanLII 45000 (Ont. S.C.), aff’d 2010 ONCA 188, 260 O.A.C. 70, where it noted, at para. 33, “Medical specialists are not properly situated to opine on the standard of care of specialists in other areas.”

56Simply because an expert is well qualified in his or her area does not mean that person ought to be qualified as an expert to comment on the standard of care of another type of doctor.

57While I appreciate that specialists in the course of their treatment of patients work closely with other doctors, and other specialists, in my view, that does not necessarily entitle a specialist to opine on the standard of care of a doctor of another specialty. The fact that a proffered expert might have studied another area of medicine during his or her internship or residency does not mean that he or she ought to be qualified to provide expert evidence to the court in that area. It is unlikely they would be the best expert to offer an opinion to assist the court.

58Further, the fact that an expert has additional training and is consulted as a specialist is something the court must take into account when deciding whether to allow that expert to testify on the standard of care issue involving a physician who is of a different experience and qualification. Depending on the circumstances, it might be unfair to permit a specialist to offer expert opinion to the Court on the standard of care of a doctor with lesser training and experience.

59While I agree there are certain circumstances where the opinion of a specialist can be admissible as to the conduct of a non-specialist, as the court noted in Barber v. Joshi, 2016 ONCA 897, in my view, these situations are the exception and certainly not the rule.

60When determining the standard of care of a particular doctor or nurse, the Court looks to a similarly situated expert who possesses the same skills and training as the defendant who is alleged to have been negligent. The standard of care is not perfection; it is that of a doctor or nurse in a similar situation exercising a reasonable degree of skill at that time.

61In Gerald Robertson and Justice Ellen Picard, Legal Liability of Doctor and Hospitals in Canada, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2017), it is noted, “The medical practitioner is measured objectively against a reasonable medical person who possesses and exercises the skill, knowledge and judgment of the normal, prudent practitioner of his or her special group. The comparison is made with reference to the particular circumstances at the material time.” The court expects that an expert testifying to assist the court on what the proper standard of care is would have practical and clinical experience in the same area as the defendant.

62The trial judge is the gatekeeper of the evidence, a function which must be rigorously exercised to ensure the very best expert evidence is heard at trial. A determination needs to be made at the outset as to whether the proffered expert should be qualified to provide opinion evidence to the Court or whether the difference in experience and training renders the opinion of little value.

63To allow a specialist with qualifications and experience different from those of a defendant to comment on the standard of care may well result in unfairness. This is especially so when counsel intends to call further expert evidence from a doctor with the same specialty; it is also repetitious, unnecessary and may result in a waste of the court’s time.

64In Gutbir v. University Health Network, 2010 ONSC 6394, 7 C.P.C. (7th) 208, I wrote,

The role of the trial judge as gatekeeper is not a new phenomenon. More than 10 years ago in R. v. J.-L.J. 2000 SCC 51, [2000] 2 S.C.R. 600, Justice Binnie stated:

…the court has emphasized that the trial judge should take seriously the role of gatekeeper. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry n the basis that all of the frailties can go at the end of the day to weight rather than admissibility…

65In a more recent case, Dulong v. Merrill Lynch Canada Inc. (2006), 2006 CanLII 9146 (ON SC), 80 O.R. (3d) 378 (S.C.), Justice Ducharme reviewed the four criteria established in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, for the admissibility of expert testimony and in doing so, stated, at para. 9:

There is no question that, in civil cases at least, the path of least resistance in matters such as these seems to be to admit the evidence and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of the trial judge and was explicitly rejected by Binnie, J. in R. v. J-L.J...

66This approach has been followed, see DeMarco v. Martin, 2019 ONSC 2788, 57 C.C.L.T. (4th) 100, where the Plaintiff sought to have a cardiologist comment on the standard of care of a family doctor. In rejecting the cardiologist as an expert on the standard of care of a family doctor, the court noted, at para. 154, “Dr. Myers is not trained in and does not practise family medicine. Dr. Myers is not trained in and does not practise in forensic pathology. I find, therefore, that Dr. Myers is not qualified to provide evidence on the standard of care of a family physician.”

67This approach is consistent with the principles established by the SCC in ter Neuzen v Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674.

68Dr. Humen is a cardiologist; he was asked to opine on the standard of care of the defendant doctors, 2 of whom are internal medicine specialists and 2 are cardiologists. Counsel for the Defendants was content to have Dr. Humen qualified in this fashion but in final submissions argued that no weight should be given to the opinion of Dr. Humen concerning the internal medicine specialists, Dr. Abrahamson and Dr. Qureshy.

69Dr. Humen testified that he was a staff cardiologist and there was a large overlap between internal medicine and cardiology. He said he had “daily contact with physicians in a broad variety of specialities, including internal medicine…” page 7 transcript June 6.

70While I accept that when he worked as a cardiologist, Dr. Humen interacted with specialists in the area of internal medicine and was asked to consult on cases with a similar presentation to that of Ms. Chaudhry, I do not view him as the “best” expert who could have opined on the standard of care of a specialist in internal medicine. Dr. Humen does not have the same training or experience as an internal medicine specialist; he was trained and worked as a cardiologist. While I agree that there is overlap between the two specialties and generally, Dr. Humen could comment on the actions of an internal medicine specialist, his opinion on the standard of care must necessarily be tempered with the recognition that he has not worked as a specialist in internal medicine, and does not have the same “experience in the trenches” as a physician of that specialty.

Did Dr. Abrahamson meet the standard of care for an internal medicine physician in his care and treatment on July 19 and 20, 2012?

71On July 19, Ms. Chaudhry’s blood pressure became low; she was hypotensive. Dr. Hillmer, her most responsible physician, ordered boluses of fluid to increase her blood volume.

72In the early evening, Ms. Chaudhry decompensated. She had difficulty breathing, and her oxygen saturation was 66% (hospital records, tab 2, nursing progress note p. 44). She was noted to have high blood pressure, 196/90.

73Dr. Abrahamson was an internal medicine specialist and a member of the Outreach Team. In this capacity, he provided on-call urgent care to patients in the hospital. Dr. Abrahamson was called by Dr. Hillmer who expressed concern about fluid overload because of the fluid boluses Ms. Chaudhry had received over the day.

74Dr. Abrahamson assessed Ms. Chaudhry on July 19, 2012 shortly after 1842. He noted she was in respiratory distress. He ordered Lasix, which is a diuretic intended to open the venous system and move the fluid through the body. He ordered BiPAP, in which oxygen is delivered at a higher pressure when the patient breathes in and a lower pressure when breathing out. It is intended to improve ventilation to the air sacs in the lungs, to address the fluid problem. Dr. Abrahamson transferred Ms. Chaudhry to the ICU.

75He reviewed her chest x-ray, which was unremarkable, and he ruled out pneumonia. Over the course of the evening, her respirations improved and the BiPAP was discontinued at 2300 (hospital records tab 2, p 40). Overnight, Ms. Chaudhry was assessed by other physicians.

76When Dr. Abrahamson went off shift at 0800 July 20, he noted Ms. Chaudhry had improved. He dictated a note (hospital records, tab 3, p 84) summarizing his involvement. Because Ms. Chaudhry had an elevated troponin level, which is a protein in the bloodstream which could indicate damage to the heart muscle, he requested consultations with cardiology and nephrology. He did not provide any further treatment to Ms. Chaudhry.

Expert Evidence

77Dr. Humen stated that all the defendant doctors fell below the standard of care because they failed to interpret the data properly, recognize Ms. Chaudhry had a pulmonary embolism and act accordingly. Essentially, the opinion of Dr. Humen is that Ms. Chaudhry’s presentation was consistent with a large pulmonary embolism and on the evening of July 19, she should have been given full dose anti-coagulation medication which would have prevented the second pulmonary embolism which occurred July 24 and resulted in her death.

78Dr. Humen was critical of the doctors for investigating whether she had a heart attack as a cause for the pulmonary edema. Ms. Chaudhry was in respiratory distress so Dr. Humen is of the view that the doctors should have had pulmonary embolism on the top of the list of differential diagnoses.

79According to Dr. Humen, once a pulmonary embolism could be a possibility, the patient should be given full anti-coagulation medication. There are tests which can diagnose an embolism, such as an angiogram with contrast or a ventilation perfusion scan or even an ultrasound of the femoral vein. The fact that she had been given a low dose of heparin is of no moment; it is useful to prevent clots in a sedentary patient but will not have an effect on existing clots; that requires full dose anti-coagulation therapy. The failure of the physicians to investigate whether Ms. Chaudhry had a pulmonary embolism and to treat it constitutes negligence according to Dr. Humen.

80He went on to say that her deterioration on July 24 was due to a large pulmonary embolism; she was very hypoxic, was in respiratory distress and had low blood pressure. She developed shock and died. Dr. Humen was confident that her decline was not related to heart failure because the ECG showed normal left ventricle function and the chest x-ray was normal. If she had a cardiac event, Dr. Humen testified her left ventricle function would have been abnormal and it was not. In his view, the Troponin levels were of little value because Ms. Chaudhry had renal failure, which can cause an elevated troponin reading.

81Had the treating physicians recognized on July 19 and 20 that her presentation was consistent with a pulmonary embolism and treated her with full dose heparin, the second pulmonary embolism would not have occurred, and she would not have died.

82Dr Wilkins, the internal medicine specialist called by the defence, has been working at the Peterborough hospital for the majority of his career. He is of the opinion that the care provided by Dr. Abrahamson met and exceeded the standard of care; he assessed Ms. Chaudhry, thought of various differential diagnoses, made the correct diagnosis and arranged appropriate consultations.

83When Dr. Abrahamson saw Ms. Chaudhry, he thought she might have 4 problems: aspiration; pulmonary embolism; adult respiratory distress syndrome or ARDS; or fluid overload caused by acute heart failure. Dr. Abrahamson believed Ms. Chaudhry had fluid overload and Dr. Wilkins concurred with that belief and he thought it was the most reasonable explanation for her sudden deterioration.

84Dr. Wilkins noted that Ms. Chaudhry responded quickly to the Lasix and BiPAP therapy, and this was an important factor, because that would not have happened if she had a pulmonary embolus or ARDS. He also commented on the fact that Dr. Abrahamson went to see Ms. Chaudhry around midnight and then again in the morning before he went off shift; this was very good care. When he left the hospital on July 20, she was stable, and Dr. Abrahamson had ordered a consultation with a cardiologist and a nephrologist. Dr. Wilkins could not think of any other investigation that Dr. Abrahamson should have ordered before going off shift.

85On the issue of whether full dose heparin should have been ordered, Dr. Wilkins commented that it is not indicated unless the physician is convinced a patient has a pulmonary embolism. It has risks associated with its use, primarily the risk of bleeding.

Analysis

86Dr. Humen in his testimony made broad statements that “the doctors” did not meet the standard of care. He did not identify in what way each defendant physician was negligent. He testified that “all of the doctors” should have recognized Ms. Chaudhry had a presentation consistent with a pulmonary embolism and he was critical of the doctors for investigating things other than pulmonary embolism, which Dr. Humen stated ought to have been be at the top of the list of differential diagnoses. Dr. Humen was highly critical of the doctors for failing to institute full dose heparin on July 19/20. Dr. Humen said that all of the treating doctors “along the way” breached the standard of care and bear some responsibility for the outcome.

87In his written submissions, Mr. Morse makes reference to the contents of the various expert reports. However, the reports are not in evidence; they were provided to the court only to assist in understanding the expert testimony. They were marked as lettered exhibits for identification and do not form part of the evidentiary record. No reliance can be placed on the reports of the experts.

88In my view, in a medical negligence case, an expert is required to identify what the standard of care is in a specific situation and then explain his or her opinion as to whether the standard was breached and if so, in what way. It is not helpful to the court to make sweeping statements that “all of the doctors” fell below the standard because none of them recognized that Ms. Chaudhry had a pulmonary embolism. Each named defendant physician provided care at a specific time when Ms. Chaudhry had a certain presentation and symptoms. The actions of each doctor must be considered in the context of her presentation at the time of treatment and the manner in which the treatment provided either met or fell below the requisite standard.

89Dr. Humen did not specifically criticize Dr. Abrahamson but he offered the opinion that on the date of Dr. Abrahamson’s involvement, “the doctors” should have realized that the most likely diagnosis was that of a pulmonary embolism. I will address this issue.

90Ms. Chaudhry was short of breath when seen by Dr. Abrahamson on July 19. Her jugular venous pressure (“JVP”) was elevated, which is usual for patients with fluid overload. Dr. Abrahamson listened to her chest and it was unremarkable; there were no crackles. After examining Ms. Chaudhry, Dr. Abrahamson thought her respiratory distress was caused by pulmonary edema or fluid overload, and he treated that condition with Lasix and BiPAP. Ms. Chaudhry improved “dramatically” during the time that he was at her bedside; he felt the improvement was confirmatory of his provisional diagnosis.

91The evidence is clear that Dr. Abrahamson was alive to the possibility that Ms. Chaudhry’s symptoms were caused by a pulmonary embolism. In his consultation note of February 20, (exhibit 2, tab 2, page 84) he listed several “likely” diagnoses: acute volume overload due to fluids she received; myocardial dysfunction from the sepsis and kidney infection; and possible cardiac dysfunction related to her diabetes and hypertension. Dr. Abrahamson went on to note, “I believe her acute response to this management does likely indicate a volume overload as opposed to other acute etiologies that could cause hypoxia. There would be certainly no suggestion for aspiration, pulmonary embolus or ARDS based upon her dramatic improvement.”

92Dr. Abrahamson’s belief that Ms. Chaudhry had acute fluid overload was reasonable. She had received over 5 litres of fluid in less than a day and she had impaired kidney function, which affects the body’s ability to distribute fluids.

93A doctor’s actions cannot be judged with the benefit of hindsight: It is a tempting but incorrect perspective to look backwards when trying to determine if a doctor was negligent. A doctor does not have to be correct in his or her diagnosis; but it must have been reasonable considering the circumstances at the time: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804.

94It is clear that Dr. Abrahamson was considering several differential diagnoses at the time he was treating Ms. Chaudhry on July 19 and the morning of July 20. Dr. Abrahamson’s belief that she had fluid overload and heart failure was reasonable. I accept Dr. Wilkins opinion that the fact that Ms. Chaudhry improved quickly with the diuretic medication and BiPAP strengthened Dr. Abrahamson’s provisional diagnosis because patients with a pulmonary embolism do not improve with the administration of BiPAP.

95Ms. Chaudhry presented with symptoms of patients who have acute heart failure. The fact that her chest x-ray was normal did not mean she did not have heart failure. Her medical history included hypertension and she was diabetic. These factors are well known to increase the risk of developing acute heart failure, according to Dr. Wilkins. She had an elevated JVP which was also consistent with Dr. Abrahamson’s diagnosis. In addition, she responded positively to the treatment he ordered. When Dr. Abrahamson went off shift the morning of July 20, Ms. Chaudhry was stable and was in no acute distress. He made referrals to other specialists, which was appropriate.

96The fact that pulmonary embolism could not be ruled out and remained on the differential diagnoses does not mean that full dose anticoagulation with IV heparin had to be administered. I accept the opinion of Dr. Wilkins that full dose heparin was not indicated on July 19. All the experts agreed that full anti-coagulation medication carried with it a risk of hemorrhage and given her rapid improvement with the treatment instituted by Dr. Abrahamson, there was no indication at that time for full dose heparin.

97I find that the care and treatment provided by Dr. Abrahamson was reasonable in the circumstances and met the standard of care.

Did Dr. Ovchinnikov meet the standard of care for a cardiologist in his care and treatment on July 19 and 20, 2012?

98Dr. Ovchinnikov was the staff cardiologist on-call on July 20, 2012; he commenced his shift at 0800 hours and received the request for a consultation that Dr. Abrahamson had made due to her respiratory distress and elevated troponin level. He went to see Ms. Chaudhry and he assessed her. His consultation note was dictated the same morning, at 1024 (exhibit 2, tab 3, page 86).

99Dr. Ovchinnikov was aware that the treatment of Dr. Abrahamson for fluid overload had resulted in a dramatic improvement in her breathing difficulties. When he assessed her, Ms. Chaudhry’s vital signs were stable, and she was not experiencing respiratory distress. He testified that she was not in heart failure when he saw her that morning.

100Dr. Ovchinnikov had as differential diagnoses fluid overload, myocardial infarction, pulmonary embolism or pneumonia, but the last three would not have resulted in the quick improvement Ms. Chaudhry experienced, so he thought fluid overload was the most likely diagnosis.

101He reviewed the electrocardiograms that had been done (exhibit 3). In his view, the ECGs did not suggest she had suffered a myocardial infarction or a pulmonary embolism because there were no changes on them from prior before and after her decompensation. Her chest x-ray was normal, which did not support a diagnosis of pneumonia.

102Dr. Ovchinnikov ordered a bed-side echocardiogram and viewed it as it was being done. He thought she had diastolic dysfunction, which can be described a problem with the heart relaxing, also known as “stiff heart”. In his consultation note, he wrote that her respiratory distress was likely due to acute heart failure and fluid overload. (exhibit 2, tab 3 page 86-87).

103Dr. Ovchinnikov ruled out pulmonary embolism as a potential diagnosis because of her improvement following the BiPAP and Lasix; as well, he stated that the right ventricle is not normal when a patient has pulmonary embolism and Ms. Chaudhry’s was. He believed the elevated troponin level was related to her sepsis.

Expert Evidence

104Dr. Humen testified that Ms. Chaudhry had the classic symptoms of pulmonary embolism because she had a clear chest and was hypoxic. Given her presentation, he was critical of Dr. Ovchinnikov for failing to conclude that the most likely diagnosis for Ms. Chaudhry on July 20 was pulmonary embolus. He should have instituted full dose anti-coagulant medication.

105Dr. Raco disagreed with Dr. Humen and believed that the most compelling diagnosis was that Ms. Chaudhry had acute heart failure in the form of diastolic dysfunction and fluid overload. He testified that her presentation was very common in the many patients he sees with heart failure. The fact that she responded quickly to treatment supported Dr. Raco’s view that she did not have a pulmonary embolism. In his opinion, Dr. Ovchinnikov met the standard of care of a cardiologist in the circumstances and the care he provided was very similar to that which any cardiologist in Canada would provide.

Analysis

106Dr. Ovchinnikov spent a considerable amount of time with Ms. Chaudhry on July 20. He assessed her thoughtfully, understood her history including her decompensation the previous day, and reviewed her chart. He ordered further testing, which he reviewed. While he had pulmonary embolism on the differential diagnoses, along with other possibilities, he did not feel it was the most likely diagnosis. This was reasonable.

107Some of the foundations for Dr. Humen’s opinion concerning Dr. Ovchinnikov were tested under cross examination and his responses affected the reliability of his opinion.

108Dr. Humen disagreed with Dr. Ovchinnikov’s diagnosis of pulmonary edema; during his examination in chief he said it was “untenable”. However, he later said that Ms. Chaudhry did have pulmonary edema, but it was the result of a pulmonary embolism as opposed to heart failure:

Q. And sir, you’d agree with me that the opinion you just expressed in terms of this being pulmonary edema secondary to a pulmonary embolus, the first time that opinion has bene given is today.

A. Yes, but it’s well known in the medical community.

Q. Sir, your opinion before this cross examination started was that there was no pulmonary edema. Right?

A. Correct.

109The first time he expressed this opinion was during his cross examination. Dr. Humen delivered three Rule 53 reports prior to the trial; if his opinion was that the edema was caused from a pulmonary embolus, I would have expected to have seen such an opinion expressed in his written reports, as the Rules require. The fact that he stated his view of this critical issue only during cross examination does not comply with his obligations as an expert pursuant to Rule 53.

110Dr. Humen testified that the ECG done July 18 was normal but after that the various ECGs were abnormal and this supported his diagnosis of a pulmonary embolism; in cross examination he agreed that there was no ECG done on July 18 and he acknowledged that he had erred in his interpretation of the ECGs done July 19 and 20 conceded that they did not support his diagnosis of pulmonary embolism. Dr. Humen relied on the ECGs to support his view that Ms. Chaudhry had a pulmonary embolus, yet he was incorrect in his interpretation of them, which undermines his opinion.

111Dr. Humen testified that Ms. Chaudhry was in shock and hypotensive on July 19 because of a large pulmonary embolism. However, the records indicate when she suffered respiratory difficulties, Ms. Chaudhry was actually hypertensive and not hypotensive. She was not noted to be in shock.

112He stated that her chest was clear but that was incorrect; the records note that crackles in the lungs were heard. He said her chest x-ray was normal, but that was inaccurate. Dr. Chang noted her chest was consistent with pulmonary edema (exhibit 2, tab 3 page 86-7).

113Dr. Humen stated that enlargement of the right ventricle is a classic sign of a pulmonary embolism, yet the doctors failed to record the size of it. That is not accurate. In his consultation note, Dr. Ovchinnikov noted that the right ventricle was a normal size; the echocardiogram reported the chambers of the heart as normal. (exhibit 2, tab 3, page 86). Dr Humen made no mention of the left ventricle dysfunction and said it was normal, which is inaccurate based on Dr. Ovchinnikov’s note.

114The classic indicators of pulmonary embolism on which Dr. Humen relied in support of his view that Dr. Ovchinnikov was negligent were, in fact, not present and thus Ms. Chaudhry’s presentation was not “a typical case of pulmonary embolism”. The foundations of Dr. Humen’s opinion were wrong and thus, his opinion as to the most likely diagnosis for Ms. Chaudhry on July 20 is not well founded.

115While he agreed that the administration of Lasix and BiPAP resolved Ms. Chaudhry’s respiratory distress, and that this treatment was not indicated for a pulmonary embolism, he doggedly maintained that Dr. Ovchinnikov fell below the standard because he failed to order full dose heparin. I do not accept this opinion. I prefer the opinion of Dr. Wilkins who stated that full dose anticoagulant medication has its own risks and should not be started without a good reason to do so, particularly given Ms. Chaudhry’s compromised renal function. Based on the evidence, I find there was no reason to order full dose heparin on July 20 and Dr. Ovchinnikov’s failure to do so does not fall below the standard of care.

116I pause to comment that the court expects and requires candor and impartiality from experts who have been qualified by the court to offer opinion evidence. It is not surprising that an expert might make an error during the course of writing reports and arriving at opinions. When confronted with mistakes, expert witnesses ought to acknowledge the error and candidly state whether or not it affects the reliability of the opinion that has been offered. Dr. Humen did not do this. Instead, he attempted to minimize the effect of his errors and he simply refused to acknowledge that the likelihood of Ms. Chaudhry having a pulmonary embolus was probably low.

117Dr. Ovchinnikov thought she had acute heart failure when he was involved in treating Ms. Chaudhry; he does not have to be correct in this diagnosis in order to escape liability, he simply must be found to have been acting as a reasonable, prudent doctor in the circumstances. Dr. Raco agreed with Dr. Ovchinnikov that most likely her shortness of breath was due to fluid overload. Ms. Chaudhry was in a precarious condition with sepsis and renal failure and from a cardiac perspective there was nothing additional that Dr. Ovchinnikov ought to have done. I find that Dr. Ovchinnikov met the standard of care in his treatment of Ms. Chaudhry.

Did Dr. Qureshy meet the standard of care for an internal medicine physician in his care and treatment on July 24, 2012?

118Dr. Qureshy provided care to Ms. Chaudhry on July 23 and 24; he had read her chart the evening before and was aware of the bloodwork and imaging results. When he initially assessed her, Ms. Chaudhry was stable, but her liver enzymes were elevated so he ordered an abdominal ultrasound. He knew she had a serious kidney infection and her renal function needed to be monitored. When he assessed her later that day, he noted she was weak but felt she was slowly improving.

119On July 24, Ms. Chaudhry’s troponin level had increased significantly which is usually associated with cardiac issues but could also be related to sepsis or kidney function. Dr. Qureshy contacted the cardiologist on call, Dr. Levinson, who thought Ms. Chaudhry had perhaps suffered a small heart attack so he recommended full dose heparin. Dr. Qureshy wrote the script for it at 1440. An ECG done at 1300 showed no changes and Ms. Chaudhry was stable. He suspected because of her diabetes she might have suffered a mild heart attack.

120Ms. Chaudhry was assessed by the Outreach team including Dr. DaCosta at 1345, who wondered if she had an acute coronary syndrome or if her condition was related to her acute kidney issue.

121Dr. Qureshy was summoned back to Ms. Chaudhry and he assessed her at 1540. He noted that the IV heparin had not been started because the preliminary bloodwork had not been returned from the lab. She was in respiratory distress and her oxygen saturation was low. Dr. Qureshy felt she needed to return to the ICU, so he called Dr. DaCosta. Ms. Chaudhry was returned to the ICU at 1620, and she was no longer Dr. Qureshy’s patient.

122Dr. Qureshy testified that he thought that her deterioration could have been caused by a pulmonary embolism or a heart attack. The ECG showed a left bundle branch block which Dr. Qureshy stated was suggestive of a heart attack.

Expert Evidence

123In his testimony, Dr. Humen was not critical of the care provided by Dr. Qureshy on July 24 and 25. However, he maintained that Ms. Chaudhry’s presentation was consistent with a large pulmonary embolism and not a myocardial infarction principally because the echocardiogram results.

124Dr. Wilkins opined that Dr. Qureshy met the standard of care; he did a comprehensive review of her multiple problems and developed a care plan. When Ms. Chaudhry deteriorated, he reattended quickly and made appropriate referrals. His treatment was reasonable and it was not necessary to order full dose IV heparin in order to meet the standard of care; it was something that could have been ordered but Dr. Wilkins was careful to point out that that decision was one to be made by the ICU physicians, not Dr. Qureshy.

Analysis

125Dr. Humen was asked to comment on the reports of the defence experts Dr. Wilkins and Dr. Raco and he spent much of his testimony stating why he disagreed with their opinions. That is not the same thing as offering opinion evidence on how the actions of the various defendant doctors failed to meet the standard of care.

126In addition, by commenting on why he disagreed with the opinions of opposing experts Dr. Humen engaged in a retrospective analysis. He looked backwards at the test results, the imaging studies and the presentation of Ms. Chaudhry and stated why all these things were consistent with a pulmonary embolism. The comments from the SCC are instructive: “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 circumstances, but rather will be held accountable for mistakes that are apparent only after the fact. Lapointe v. Hopital Le Gardeur, supra.

127This is not a case where the treating doctors failed to consider a potential diagnosis; all of the doctors had pulmonary embolism on their list of differential diagnoses, they simply did not conclude that Ms. Chaudhry’s presentation was most likely caused by a pulmonary embolus.

128I accept the opinion of Dr. Wilkins that until the afternoon of July 24, Ms. Chaudhry was stable; she had been assessed by numerous doctors and investigative tests had been done. When Dr. Qureshy was advised that her troponin had increased significantly, he contacted the cardiologist Dr. Levinson, which was appropriate. It was Dr. Levinson who suggested that full dose IV heparin be started and Dr. Qureshy ordered it. I accept that there was no need for it to be ordered on a STAT basis at that time, given Ms. Chaudhry’s presentation and the concomitant risks association with its administration.

129I find that the treatment provided by Dr. Qureshy to Ms. Chaudhry was reasonable and met the standard of care.

Did Dr. Levinson meet the standard of care for a cardiologist in his care and treatment on July 24, 2012?

130Dr. Levinson recalled assessing Ms. Chaudhry in 2008 when she attended at the emergency room with complaints of chest pain. She had a number of risk factors for cardiac disease and he recommended an angiogram to check for blockages in the arteries of her heart, but she declined such a test. He did not see her again until July 24, 2012 when he was contacted by Dr. Qureshy for a cardiac referral and he was the cardiologist on call. He was advised that her troponin level was elevated, which can be a sign of cardiac injury.

131At 1441, Dr. Levinson advised Dr. Qureshy to put her on anti-coagulant medication, heparin, and he went to assess her late in the afternoon. She was critically ill; and had been transferred to the ICU by the Outreach team. Dr. Levinson consulted with the ICU physician, Dr. Warren. Dr. Levinson thought she could have had a severe heart attack, but her presentation could also have been due to sepsis or a pulmonary embolism; it was not clear. He contacted the technician to arrange an echocardiogram immediately. He sat at the bedside while it was done and he noted she had mild impairment on the right side, but her heart was pumping well. He did not believe Ms. Chaudhry’s deterioration was due to a massive heart attack. He thought it could be due to sepsis, her renal function was very impaired.

132While a pulmonary embolism was on the differential diagnoses, her clinical findings did not support such a diagnosis in Dr. Levinson’s view. Had she had one, he would have expected to see severe right sided dilatation of the right ventricle, a much higher right ventricular pressure and massive abnormalities on the echocardiogram as well as tricuspid regurgitation leakage. Dr. Levinson discussed his thoughts with the doctors in the ICU, and said he thought she was septic. He wrote a note at 1733 for full dose heparin if the ICU doctor felt it was appropriate. He left to work in the emergency room and provided no further treatment to Ms. Chaudhry.

Expert Evidence

133In his testimony, Dr. Humen was not critical of the treatment rendered by Dr. Levinson; he did not state that Dr. Levinson fell below the standard of care. As I have noted previously, Dr. Humen made broad statements about all the defendant physicians as a whole, although they each played different roles in her care at different times. He criticized them for failing to diagnose and treat a pulmonary embolism with full dose anti-coagulant medication at the outset.

134Dr. Levinson was involved at the end of Ms. Chaudry’s hospital admission and about twelve hours prior to her death. He did an assessment, ordered the echocardiogram and discussed the results with the physicians in the ICU. He ordered full dose heparin. Dr. Raco testified that Dr. Levinson’s treatment met the standard of care in the circumstances; there was nothing further that Dr. Levinson could have done in his treatment of Ms. Chaudhry to have avoided the unfortunate outcome.

Analysis

135By the time Dr. Levinson became involved in the care of Ms Chaudhry, she was very ill and in the ICU. He assessed her, ordered an echocardiogram urgently and reviewed it. He discussed the plan of care with the ICU doctors and ordered full dose heparin. There was no evidence that this treatment fell below the standard of care and I find that it was reasonable and appropriate in the circumstances. Dr. Levinson was alive to the possibility she had a pulmonary embolism but he felt her severe sepsis could also be responsible. Dr. Levinson acted reasonably in the circumstances and his treatment met the standard of care.

136I accept the opinion of Dr. Raco that the full dose anti-coagulant medication at that point was “gunshot therapy” because although the risk of a bleed from her infected kidney was present, the risk of her dying justified the administration of heparin at that time. I accept Dr. Raco’s opinion as it reflects an understanding of the facts of the case and the medical situation that Dr. Levinson faced at the time. There was no breach of the standard of care by Dr. Levinson.

If there were breaches of the standard of care, but for these breaches would Ms. Chaudhry have died?

137Generally, the issue of causation is decided after the trial judge has addressed whether there has been a breach of the standard of care: Bafaro v. Dowd, supra. If negligence is established, the Plaintiff must then prove on a balance of probabilities that the injury was caused by the negligence of the Defendant(s). The SCC stated, “The test for showing causation is the “but for” test. The Plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury—in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the Plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the Defendant fails.” (Clements v. Clements, supra.).

138In order to succeed on causation, there must be a substantial connection between the injury suffered and the defendant’s negligent conduct. The court noted “Causation need not be determined by scientific precision.” (Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at para. 30).

139In Donleavy v. Ultramar Ltd, 2019 ONCA 687, the court stated, at para. 68, “The fact that there are multiple defendants, or more than one potential cause of an injury, is not a reason to depart from the “but for” test for causation.”

140In Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, the court said, at para. 23, “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’”.

141I have found that the four defendant physicians were not negligent, so the question of causation is moot. However, in the event that it is determined I am wrong on the standard of care issue, I will deal with the issue of causation.

Expert Evidence

142Dr. Humen’s opinion on causation is that Ms. Chaudhry suffered a pulmonary embolism on July 19/20 which caused her decompensation and she suffered a second, very large pulmonary embolism on July 24 which resulted in her death. But for the failure of the defendant doctors to recognize the first pulmonary embolism and institute full anticoagulant medication, the second one would not have occurred, and she would not have died.

143Dr. Humen testified, “My opinion is that at the time of the first event on the evening of the 19th extending into the 20th, if that event had been recognized as a pulmonary embolism, more often than not full heparin anticoagulation would have prevented the second event and therefore her death.”

144Dr. Humen stated she had the classic symptoms of a pulmonary embolus: hypoxia; respiratory distress; a clear chest x-ray; hypertension; and normal heart imaging. The treatment was full dose heparin which would have avoided the pulmonary embolus killing Ms. Chaudhry.

145The defence experts, Dr. Wilkins and Dr. Raco, testified that the cause of death is uncertain but was multifactorial. She had several risk factors that increased the likelihood of a cardiac event, she was septic with a serious kidney infection, and she was in renal failure. Likely, she suffered some type of heart attack and deteriorated on July 24.

146The Defendants argue that while pulmonary embolus may have been one of the reasons for Ms. Chaudhry’s death, the Plaintiffs cannot prove this on a balance of probabilities. Her death may have been caused by acute coronary syndrome, complications arising from her sepsis or a pulmonary embolism.

147Dr. Wilkins stated that until 1440 on July 24 full dose heparin was not indicated as there was no evidence she had a pulmonary embolism and she was already on prophylactic heparin, which was appropriate.

148In any event, the defence argues that there was no evidence to pin down when the IV heparin needed to have been commenced to have prevented Ms. Chaudhary’s death, so legal causation cannot be established.

Analysis

149It remains uncertain what caused Ms. Chaudhry’s sudden death. Although she was a young woman, she had a complex medical history involving a diagnosis of diabetes, hypertension and hyperlipidemia. When she attended at the hospital, she had a serious kidney infection and, later, sepsis.

150All of the defendant doctors had pulmonary embolism on their list of differential diagnoses. There were other possibilities including myocardial infarction and septic shock which was getting worse.

151While Dr. Humen was confident in his view that Ms. Chaudhry suffered a massive pulmonary embolism on July 24 resulting in her death, Dr. Raco testified that her presentation and the test results did not point to one diagnosis exclusively, and certainly not a pulmonary embolism. Some of her test results were highly suggestive of a myocardial event while others pointed to a pulmonary embolism.

152Dr. Raco is of the opinion that there was not one specific cause of death but rather, it was multifactorial. He did not agree that pulmonary embolus was the most likely cause of her death; that theory is not supported by the increase in her troponin levels or by the ECG changes. He said that he had never seen a pulmonary embolus cause pulmonary edema; in fact, when a patient has a pulmonary embolus, it is a blockage so the fluid cannot travel into the lungs.

153It was not disputed by the experts or the defendant physicians that on July 19, Ms. Chaudhry had pulmonary edema. At trial, Dr. Humen for the first time expressed the opinion that the pulmonary edema was related to a pulmonary embolus and not to fluid overload.

154Dr. Humen stated that the doctors were negligent in not recognizing she had a “fairly typical presentation of a pulmonary embolus” (June 6 page 30) on July 19, prescribing full dose anticoagulant medication and but for this negligence Ms. Chaudhry would not have died. Earlier in these reasons I have set out why the foundations of Dr. Humen’s opinion concerning the pulmonary embolism diagnosis are flawed and his opinion is therefore unreliable.

155The treatment team including the ICU physician Dr. Warner believed the most likely cause of death was an acute coronary syndrome and he noted that in his discharge report. Dr. Humen had not even read that note nor considered it in arriving at his opinion. The note of the doctor who was the most responsible physician is of some significance and ought to have been reviewed by Dr. Humen when arriving at his opinion on causation.

156Dr. Humen said the first pulmonary embolism was large enough to cause shock but there was no evidence Ms. Chaudhry was in shock on July 19. The numerous errors made in his review of the records seriously undermine the validity of Dr. Humen’s opinion.

157None of the other doctors or the experts agreed with Dr. Humen’s views. I found the opinions of Dr. Wilkins and Dr. Raco on causation to be well-reasoned and fair. Both of them agreed that a pulmonary embolus might have been one of the factors in Ms. Chaudhry’s deterioration and death. However, the evidence is clear that she had a number of serious issues including a critical infection, renal failure and a coronary issue as a result of which she deteriorated and ultimately passed away. Dr. Raco testified that there was nothing further the treating doctors could have done to prevent her death; I agree. I accept the evidence of Dr. Raco that pulmonary edema is never associated with the existence of a pulmonary embolus. The medical records do not support Dr. Humen’s opinion that Ms. Chaudhry died of a large pulmonary embolism. I do not accept this theory, which is speculative at best.

158In Todd v. Pegado, 2014 ONSC 2783, the comments of the court, at para. 60, are applicable to the instant case:

The courts have also recognized that the test for causation is not to be applied too rigidly, nor does causation need to be established with scientific precision. It is essentially a practical question of fact which can best be answered by ordinary common sense. As well, application of these principles will involve a “robust and pragmatic approach” to assessing the evidence. However, that approach is not a substitute for evidence of causation. It does not alter the amount of proof required.

159The Plaintiffs have failed to prove on a balance of probabilities that Ms. Chaudhry’s death was caused by a pulmonary embolism. Dr. Humen stated only that if she had been prescribed full dose heparin at some point, the death would have been prevented. He did not specify when the heparin needed to be administered. He agreed that investigations needed to be undertaken before the heparin was given to confirm the pulmonary embolism. She was given IV heparin in the evening of July 24; there was no evidence that had it been started earlier, it would have made a difference.

160The cause of Ms. Chaudhry’s death remains unknown, largely because there was no autopsy conducted. The defendant doctors testified that they were not certain of the cause of death. The problem with Dr. Humen’s theory on causation is twofold: it is speculative and not rooted in the evidence; and it is a retrospective analysis. The Plaintiffs have not proven on a balance of probabilities that but for the negligence of the doctors, in failing to recognize a pulmonary embolism and institute IV heparin, Ms. Chaudhry would not have died. Causation has not been proven.

What are the damages arising from the death of Ms. Chaudhry?

161The claims being advanced by the Plaintiffs are as follows:

162Claims pursuant to the Family Law Act are asserted for loss of care, guidance and companionship for Ms. Chaudhry’s husband, son and daughter; there is a claim for the estate for the pain suffered by Ms. Chaudhry prior to her death; loss of dependency claims for the family members are advanced as well as loss of household services; and a management fee is sought for the investment of funds.

163Expert evidence on the dependency claims was given by Professor Jack Carr on behalf of the Plaintiffs and Professor Doug Hyatt for the defence.

Section 61 claims pursuant to the Family Law Act for loss of care, guidance and companionship

Muhammad Tahir

164Mr. Tahir was born in Pakistan in 1954 and came to Canada in 2001. He married Ms. Chaudhry in Pakistan in 1986. Their son Hamza was born in 1990 and their daughter Hafsa in 1994.

165While in Pakistan he worked as a teacher but in Canada he secured employment at a gas station for a number of years. Mr. Tahir obtained his real estate license in 2005 and has worked in that area, with no particular success. In 2008, he bought a Hasty Market store on Winona which he operated and then sold after a year. He started driving a cab in 2010 and that was his occupation at the time his wife was admitted to the hospital in 2012.

166In 2002, Mr. Tahir and Ms. Chaudhry purchased a house on Broadview. Subsequently, they purchased the house next door as a rental property, eventually selling it for a profit.

167Ms. Chaudhry was trained as a nurse in Pakistan and worked in that field. After coming to Canada, she secured her nursing license in 2003 and in 2004, she was hired by the Toronto East General Hospital as a nurse. Mr. Tahir testified that she was an excellent nurse and it was her passion. She had discussed with him that she would work until age 65.

168Mr. Tahir described his relationship with his wife as close. The enjoyed doing activities with family; in particular, she loved to cook and enjoyed having meals together with family members.

169In 2010, Mr. Tahir and his wife had an argument over their line of credit, which he claimed Ms. Chaudhry used to give a friend money without discussing it with him. The argument escalated, Ms. Chaudhry called the police and he was arrested for assaulting his wife. Mr. Tahir denied striking Ms. Chaudhry or threatening to kill her; he admitted he shook her when they were in the car and he pleaded guilty to assault but he testified he did so in order to get out of jail. There was a restraining order, so he rented an apartment for a month and participated in a partner assault program. After that, he returned to the family home and he described his relationship with his wife as close, with no further separations. Mr. Tahir testified that he has no plans to remarry.

170While Mr. Tahir denied striking his wife, the notes of Ms. Chaudhry’s family doctor (exhibit 2, page 554) demonstrate that on February 23, 2010 she told Dr. Buckridan that her husband struck her with his fist 4-5 times causing her to blank out and vomit. She said there was blood on her pillow after the assault. Dr. Buckridan noted tenderness on her chest, neck and the left side of her head. At his examination for discovery, Mr. Tahir denied there were any periods of separation; that answer was not true. I find Mr. Tahir’s evidence about what transpired with the assault is not truthful; I do not accept that he never hit Ms. Chaudhry.

171In 2009, both Mr. Tahir and Ms. Chaudhry reported being separated on their income tax returns. It is unclear why that was done; while Mr. Tahir denied being separated in 2009, his evidence on this issue is unreliable.

172I reject Mr. Tahir’s attempts to minimize the impact of his assault on his wife by describing it as part of a usual marital relationship. Mr. Tahir did not describe anything that he and his wife did together; he said she enjoyed socializing with her friends at the hospital and she liked to organize family functions, but there was a paucity of evidence about anything Mr. Tahir and Ms. Chaudhry did together. She went alone to Pakistan for a month shortly before she died.

173Mr. Tahir and Ms. Chaudhry were married for 26 years at the time of her death. I accept that Mr. Tahir loved his wife and mourns her loss. I assess the damages pursuant to section 61 of the FLA at $50,000.

Hamsa and Hafsa

174Hamza is currently 29 years old and lives with his father and sister. He graduated from the University of Toronto in 2014 with a degree in political science and obtained his Master’s degree in Public Policy Administration and Law from York University in 2017. He currently works at the Bank of Nova Scotia.

175Hamza described his relationship with his mother as very close. He would do anything she asked of him. He felt he could discuss his problems with her, she took him shopping for clothes and they enjoyed family activities together.

176Hamza was in his third year of undergraduate studies and had a summer job at the hospital where his mother worked in the summer of 2012. When she was admitted to the hospital, he went to see her; she was in terrible pain. He recalls her gasping for air, this memory continues to haunt him.

177After his mother’s death, Hamza testified that he felt that he was in a state of darkness. He started to have problems with anxiety following her death and he was prescribed medication. He struggled at university and his marks slipped.

178Hafsa was born in 1994 and is studying psychology at the University of Toronto. She lives with her father and brother and plans to continue to do so. She recalled her mother enjoyed cooking and keeping the house organized. She did the laundry and various errands for the household. She enjoyed her work as a nurse very much and she had a lot of friends at work.

179Hafsa described her mother as her best friend. Although she testified that she and her mother did many things together, the only example she offered was shopping. She described her mother as vibrant and loud while her father was quiet, so they were a good mix.

180Hafsa went to the hospital every day after her mother was admitted. She recalled her mother gasping for air. After her mother died, she could not sleep.

181Hamza and Hafsa had a loving relationship with their mother and she enjoyed doing things for them. I assess their damages pursuant to section 61 for loss of care, guidance and companionship at $35,000 each.

The claim of the estate

182Ms. Chaudhry was in extremis on July 24 following her decompensation and she was transferred to the ICU. While I accept that she endured a period of time where she was in pain prior to her death, it was not of long duration. I assess this head of damages at $10,000.

Dependency Loss Claims

183This case involves a fatality of a 47-year-old woman who was employed full time as a registered nurse at the Defendant hospital. In the Agreed Statement of Facts (exhibit 1) Ms. Chaudhry’s income was set out and it was agreed that she had a life expectancy in 2012 of another 25 years.

184Cases involving fatalities have a certain methodology that is used to calculate the loss of dependency claims for the relatives of the deceased. The modified sole dependency approach, as articulated in Nielsen v. Kaufman (1986), 1986 CanLII 2717 (ON CA), 54 O.R. (2d) 188 (C.A.), can be used when the household is a two-income family with children. Using this approach, a 60% dependency rate for the surviving spouse is used, with each child receiving 4%.

185In Hechavarria v. Reale (2000), 2000 CanLII 22711 (ON SC), 51 O.R. (3d) 364 (S.C.), the court used a cross-dependency approach in which both spouses’ income is added together and a 70% dependency ratio applied to their combined earnings, with the resulting amount subject to the further deduction of the surviving spouse’s income to recognize that the income of the surviving spouse remains and can be used entirely by the surviving spouse.

186Whether a sole dependency approach is used or the cross-dependency approach when calculating the loss to the surviving spouse depends on the facts of a particular case, and the quantum of income earned by each spouse.

187In this case, as is the usual custom, counsel each retained experts to quantify these losses. Both experts are well respected in the field and they both used the cross-dependency approach when calculating the dependency loss. I agree that this is appropriate given that both Mr. Tahir and Ms. Chaudhry were employed on a full-time basis.

188By way of summary, the Plaintiffs through Professor Carr claim the following losses: past loss of financial support, $517,554; past loss of household services, $159,752; future loss of financial support, $679,962; future loss of household services, $314,113; and a management fee of $49,704 for a total sum of $1,721,085. He assumed a retirement age of Ms. Chaudhry of 65 and that the children would be dependent until age 28.

189The Defendants argue the damages are as follows: past loss of financial support, $366,821 (assuming earnings for Mr. Tahir of $20,000 per year) to $393,987 (assuming earnings of $6,231 per year) plus $3,177 for the children; past loss of household services, $72,500-$125,443; future loss of financial support assuming no remarriage, $289,341 (retirement age 60), $422,890 (retirement age 63) or $501,743 (retirement age 65); plus loss of pension income of $35,385; and future loss of household services, $250,569. The range is between $1,070,736 and $1,310,304.

190The differences in the calculations of the loss of dependency between the two experts are based on differences in the rates of dependency used, the age the children would cease being dependent, the retirement age of Ms. Chaudhry, the fringe benefits she was entitled to through her work, whether Mr. Tahir will remarry, and the discount rate used.

191Exhibit 4 is the income loss brief which contains the employment file from the hospital, the pension plan booklet for Ms. Chaudhry and the summaries of her tax returns for the years 2008-2012 as well as the tax information for Mr. Tahir for 2008-2017. There is no dispute about what Ms. Chaudhry earned in the years preceding her death. Her average earnings for the years 2008-2012 on a gross basis $102,591 and a net figure of $86,356. Mr. Tahir’s average income from his work driving a taxi and operating the Quizno’s franchise was $6,542.

192Simply put, the cross-dependency approach takes the annual loss of financial support for Mr. Tahir as being 70 percent of the income of Ms. Chaudhry and the net income of Mr. Tahir—less the net income of Mr. Tahir to arrive at the amount that is necessary to maintain that same standard of living.

193Professor Carr using the cross-dependency approach used 71% dependency ratio and then 11% for Hamza and 3% for Hafsa. He relied on a study from Statistics Canada which indicated that a family with one adult and two children needs 85% of the after-tax income of a family of two adults and two children to maintain the same standard of living. I do not accept this methodology and prefer to follow the traditional cross-dependency approach as articulated in the jurisprudence, with the spouse recovering 70 % of the household income, less his own net of tax income and the children each receiving 4 percent of the net of tax income of Ms. Chaudhry until they are no longer financially dependent.

194Professor Hyatt calculates the past dependency loss at $366,821 or $393,987 based on the 2 different assumptions about Mr. Tahir’s income. In the former figure, he assumes Mr. Tahir earned $6,231 per year while in the latter, he assumed Mr. Tahir earned $20,000 per year. He calculates the loss of financial support for the children to be $3,177. On the basis Mr. Tahir will not remarry, he quantifies the future economic loss at between $289,341 assuming a retirement age of 60, $422,890 with a retirement age of 63 and $501,743 with a retirement age of 65 (exhibit 36). Because he assumed each of the children would be finished university and independent by age 22, he did not calculate a future loss of financial support for either child.

Remarriage

195Mr. Tahir testified he has not dated since his wife’s death and he has no plans to remarry as he feels to do so would be to “deceive” Ms. Chaudhry. According to Professor Hyatt, 14% of men remarry after their wife dies. The children described their father as quiet, not as social as their mother was. Given Mr. Tahir’s age, 65, and the fact that he has not dated since losing his wife, it is unlikely he will remarry.

196While Professor Hyatt offered calculations based on the assumption that Mr. Tahir would remarry, I reject those scenarios as I do not find that Mr. Tahir will remarry in the future.

Fringe Benefits

197The experts did not agree on the rate of fringe benefits, the things such as dental and health plans that the family members benefited from through Ms. Chaudhry’s employment. Professor Carr used 15.3% while Professor Hyatt used 11.3%. The fringe benefits included the extended health care plan, dental plan and the pension, which add up to $11,121.64 (exhibit 31). That amount is 11.8% of Ms. Chaudhry’s salary, which is slightly higher than the KPMG study which estimated fringe benefits for public sector employees at 11.3%. It is unclear to me on what basis Professor Carr arrived at the 15.3% figure and in my view, the correct figure is 11.8%.

Retirement Age

198The economists did not agree on the age at which Ms. Chaudhry would retire: Professor Carr used 65 while Professor Hyatt used 3 different ages: 60; 63; and 65. The evidence persuades me that Ms. Chaudhry would have retired at age 63, which is the average age of retirement for Canadian women according to Statistics Canada. While I appreciate that Ms. Chaudhry loved her job as a nurse, she already had some serious health problems at age 47 including insulin dependent diabetes. Working as a nurse on shift work is a demanding job, both physically and emotionally. Her employment file (exhibit 4 tab 1) contains several letters documenting attendance problems. She was entitled to a private pension upon retirement and since her husband was 10 years older than her, there would be incentive for her to retire at an earlier age. Given these circumstances, I find she would have retired at age 63.

Mr. Tahir’s Income

199The evidence surrounding the income earned by Mr. Tahir was less than optimal. In 2008 he declared no income from business or employment but $7,200 in rental income. In subsequent years, he declared gross business income, it is not clear from where, and net business income without any explanation. He testified he has driven a cab, he bought and sold a convenience store, he worked as a security guard, worked in real estate and he operates a Quizno’s franchise. Professor Carr averaged all the figures in the tax returns and arrived at $6,231 as the average income for Mr. Tahir and used that figure to retirement at age 65. I am not convinced that is an accurate figure; the income brief filed contained only printouts of the tax returns that were filed, not the actual documents with schedules.

200I do not accept that Mr. Tahir earned just over $6,000 per year. He and his wife bought and sold properties, he purchased a business and sold it and then more recently, bought a Quizno’s franchise. He did not do that earning $6,000 per year. Instead, it is more reasonable to assume that he is at least capable of $20,000 per annum which is based on earning minimum wage on a full-time basis.

Age When Children’s Dependency Would Cease

201Professor Carr assumed Hamza and Hafsa would be dependent to age 28 while Professor Hyatt assumed dependency to age 22 when they each finished an undergraduate degree. I do not find the age of 28 is reasonable. Even assuming each child pursued a post graduate degree immediately after completing an undergraduate degree, in the normal course, they would finish school by age 25 and be capable of finding full time work.

202Professor Hyatt’s assumption of dependency at age 22 is not appropriate either given that Hamza pursued a Master’s degree and it will take Hafsa 5 years to complete her undergraduate degree, which is a year longer than usual. Hamza graduated high school in 2009 and he took an extra year to obtain his bachelor’s degree, following which he undertook post graduate studies. As a result, ending the dependency for the children at 22 is inappropriate; I find that age 25 is a reasonable age for the children to cease being dependents, based on the circumstances in this case.

Use of Discount Rate

203In his calculations of the future pecuniary losses, Professor Hyatt used the discount rate as set out in Rule 53.09: .1% for the first 15 years; and 2.5% thereafter. While Professor Carr used the discount rate, he adjusted it upwards to .8% account for what he described as productivity to account for wage increase beyond inflation. I do not accept this approach; there was no evidence led at trial that permits the Court to conclude that as a unionized nurse, Ms. Chaudhry’s income would have increased at a rate beyond inflation. In fact, Ms. Chaudhry’s hourly wage had not increased beyond inflation, and in some years, it had not increased at all. I decline to follow the approach of Professor Carr as it is not rooted in the evidence in this case nor in the law. I am of the view that rule 53.09 is the governing rule which the Court is mandated to follow when calculating future pecuniary losses.

204Determining the loss of dependency from the death of a family member cannot be done with mathematical precision. For the reasons articulated, in my view, I cannot accept either of the expert’s calculations without adjustment. Rather, a fair figure given my findings is somewhere between each of their calculations. In my view, the figure of $425,000 for the past loss of dependency is reasonable.

205The future loss of dependency should be calculated to age 63 on the basis that Mr. Tahir will not remarry. Professor Hyatt’s figure of $422,890 needs to be adjusted upward to reflect my finding that age 25 is the end of dependency for the children. Given my findings of fact, the experts can calculate the present value of the future loss of dependency claims. If this gives rise to difficulties, I may be contacted by counsel.

Loss of Household Services

206The Plaintiffs were asked by Professor Carr to complete a survey concerning the type of household activities Ms. Chaudhry did and how much time they consumed on a weekly basis. The family calculated she did 29 hours of household work per week. Professor Carr compared Ms. Chaudhry’s household work with a survey from Statistics Canada; he stated Ms. Chaudhry did 20% more than the average employed woman in Canada in the 45-64 age group. Based on the information from the family, Professor Carr estimated the loss to the family was 28 hours of household work per week at a rate of $16 per hour for an annual amount of $23,296. The past loss of household services is $159,752 and the future loss is $314,113.

207Professor Hyatt calculated the loss of household services based on 23.8 hours of household work per week at a rate of $16.75 per hour so the past loss is $125,443. However, counsel for the defendants submits that the evidence at trial was clear that Ms. Chaudhry spent less than the average time of household chores, 15-16 hours per week. It is submitted the past loss of household services is $72,500. Hyatt estimated the future loss to be in the range of $204,715 to $250,569.

208The survey completed by the family setting out the work Ms. Chaudhry did around the house was filed as exhibit 30. I agree with the submissions of defence counsel that some of the information in the survey cannot be accurate and contradicts testimony of the family members at trial. For example, the survey indicated that Ms. Chaudhry did outside work such as painting the house and caulking cracks while Mr. Tahir gave evidence that he did all the outside work. The survey also indicated that Ms. Chaudhry performed plumbing repairs, appliance repairs and a significant amount of cleaning in the house. At trial, Mr. Tahir stated that he did most of the house cleaning and the laundry. Mr. Tahir did most of the cleaning at home, because his wife was working. They did the grocery shopping together.

209Some of the time estimates seem excessive, particularly since she worked full-time and enjoyed socializing with her friends.

210The evidence at trial concerning how Ms. Chaudhry spent her time does not support Professor Carr’s assumption that she did 20% more than the average employed woman on housework. Some of her time was spent on things for her own benefit or enjoyment, so ought not to be included in the time spent on household work for her family. I accept the evidence of Ms. Chaudhry’s children that their mother was particular about how she liked things around the house and that she enjoyed cooking traditional meals for her family.

211After reviewing the survey and the information from Statistics Canada, together with the evidence from Ms. Chaudhry’s family members, I find that she spent an average of 20 hours per week on household chores for the benefit of her family. I will use $16.50 per hour which is close to the average hourly rate of the figures offered by the two experts. That is $330 per week or $17,160 per year. I fix the past loss of household services at $117,674.70.

212Professor Carr calculated the value of loss of future household services to be $314,113 to age 75. Professor Hyatt provided a range between $204,715 and $250,569 depending on whether Mr. Tahir remarries.

213The present value of the loss of household services to age 75 without remarriage based on $17,160 per annum is $231,377.56, according to my calculations. If my arithmetic is incorrect, counsel are to contact me.

Management Fee

214A management fee may be awarded, in the court’s discretion, where a plaintiff has been awarded a significant sum of money and will require assistance to administer the assets, usually as a result of the injury forming the basis of the lawsuit.

215In many cases, counsel agree that a management fee is required given the nature of the injuries. In the instant case, the Plaintiffs argue for a management fee while the Defendants submit it is unnecessary.

216The onus is on the Plaintiffs to demonstrate the need for a management fee and I would have expected to have heard evidence about the cost of a professional manager to invest the money for the Plaintiffs. In Cadieux v. Cloutier, 2016 ONSC 7604, 63 C.C.L.I. (5th) 79, counsel agreed that a management fee was appropriate but could not agree on the percentage. Justice Hackland awarded a 5% fee based on his review of the case law and he described that amount as a “conventional award”.

217In Butler v. Royal Victoria Hospital, 2017 ONSC 2792, [2018] F.C.J. No. 21, the court declined to make an award of a management fee on the basis that a professional investment advisor would be able to obtain a rate of return higher than the Plaintiff could secure if he or she invested without assistance, even with the fees charged by the financial advisor, so it was unnecessary to award a management fee.

218Professor Carr testified that he included a management fee of 5% to ensure the Plaintiffs were compensated fully. However, there was no evidence at trial about the costs associated with investing.

219Professor Hyatt testified that a management fee was not required because any amounts charged by financial advisors would be self-financing because of the higher rate of return obtained.

220In the instant case, Mr. Tahir is a businessman who has purchased and sold a business and currently operates a Quizno’s franchise. He has bought and sold properties for profit and has his real estate license. There was no evidence at trial about his ability to invest money. His son has a post graduate degree and his daughter will graduate from university in the near future. They cannot be described as unsophisticated in the area of investing.

221Management fees are generally awarded in cases where the award is very large and the people managing the funds do not have the ability to make appropriate investments and require professional assistance. That is not the case here. I am not persuaded that a management fee is necessary and decline to award one.

Funeral Expenses

The funeral expenses total $5,779.39 and this is not in dispute.

A Closing Comment

222The Best Practices for Medical Malpractice Cases from the Holland Group state, “In an ideal world, damages would be settled before any trial and counsel should work towards this result. Where damages cannot be settled in their entirety, however, counsel should agree on those heads of damages that can be settled and eliminate those issues. No trial should proceed with all damages issues as live issues.”

223The deceased was a salaried employee who had worked at the same hospital for a long period of time. She had a husband and 2 children who lived at home. I would have thought the facts of the instant case lent itself well to resolution of the damages, particularly with the assistance of experts.

224There was nothing novel about the dependency claims asserted and the experts were both well respected in the field and they agreed on the appropriate approach. The differences between the calculations done by the experts were based on different assumptions on the age of retirement, the end of the dependency for the children, whether Mr. Tahir would remarry, the number of hours devoted to housework and the quantum of the fringe benefits. I am confident that with the assistance of the expert economists, using a reasonable approach, the financial dependency claims could have been resolved by the time of the pretrial, leaving the liability and causation issues for determination at trial. If there was a dispute between the experts, counsel could have asked for the assistance of the court to resolve the dispute in advance of trial, perhaps with the experts “hot-tubbing”. This would have resulted in shorter trial time and less costs for the parties. That is what the Best Practices from the Holland Group anticipates and what counsel should work toward.

Conclusion

225The action is dismissed. If the parties cannot agree on costs, I may be contacted.

D. A. Wilson J.