COURT FILE NO.: CV-16-34-00TT

DATE: 2020-02-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ALLISON SKEAD, by her Litigation Guardian and Trustee, and JUSTIN FRASER

Mr. R. Bogoroch and Ms. T. Samson, for the Plaintiff

Plaintiff

• and -

DR. DANIEL CHIN, DR. JANINE JOHNSTON and DR. SHANNON WIEBE

Mr. T. Campbell and Ms. N. Watson, for the Defendants

Defendants

HEARD: March 4, 5, 6, 7, 13, 14, 18, 19 20 and 21, 2019 and by written submissions

Table of Contents

BACKGROUND.. 3

THE ISSUES. 8

MEDICAL BACKGROUND INFORMATION.. 8

SUMMARY OF THE EVIDENCE.. 11

ALLISON SKEAD.. 11

DR. SHANNON WIEBE.. 14

DR. DANIEL CHIN.. 25

DR. JANINE JOHNSTON.. 30

THE PLAINTIFF’S EXPERTS. 40

DR. ALAN R. BERGER.. 40

DR. EDWIN R. BRANKSTON.. 53

THE DEFENDANTS’ EXPERTS. 57

DR. WILLIAM HODGE.. 57

DR. BRIAN DUFRESNE.. 65

THE POSITION OF THE PLAINTIFF. 70

THE POSITION OF THE DEFENDANTS. 76

THE APPLICABLE LEGAL PRINCIPLES. 80

DISCUSSION.. 89

DR. WIEBE.. 89

DR. CHIN.. 99

DR. JOHNSTON.. 104

CAUSATION.. 109

CONTRIBUTORY NEGLIGENCE.. 122

Mr. Justice J.S. Fregeau

Reasons for Judgment

BACKGROUND

[1] The plaintiff, Allison Skead (“Ms. Skead”) was born on March 30, 1983. Ms. Skead is an Indigenous Canadian from the Wauzhushk Onigum First Nation, located adjacent to Kenora, Ontario. She was 25 years old when the events giving rise to this action occurred.

[2] In late April 2008, Ms. Skead experienced a “blur” in her left eye vision and developed a headache. On May 5, 2008, Ms. Skead was seen by Dr. J. Agnew, an optometrist practicing in Kenora. Dr. Agnew’s examination of Ms. Skead did not detect any ocular abnormalities.

[3] On May 8, 2008, Ms. Skead attended at the emergency department of the Lake of the Woods District Hospital (“LWDH”) in Kenora at which time she was assessed by Dr. Snyder. Dr. Snyder recorded that Ms. Skead’s vision and headache had been getting worse over the last several days. Dr. Snyder noted that Ms. Skead’s fundi were difficult to visualize and that the right fundus looked “distorted” and the left fundus looked “grey.”

[4] Dr. Snyder’s discharge diagnosis was left eye vision loss and headache not yet diagnosed. Dr. Snyder scheduled a CT scan for Ms. Skead the following day.

[5] Ms. Skead returned to the LWDH on May 9, 2008, and underwent a CT scan, which was negative. Dr. Snyder arranged for Ms. Skead to see the defendant, Dr. Daniel Chin, an ophthalmologist practicing in Winnipeg, Manitoba, at 4:00 pm that day. Ms. Skead was notified of this appointment after she left the LWDH.

[6] Ms. Skead travelled from Kenora to Winnipeg and was examined by Dr. Chin on May 9, 2008. Dr. Chin’s examination of Ms. Skead’s eyes was normal, but for a “query” in regard to “mildly elevated changes re: central retina.” Dr. Chin’s assessment of Ms. Skead was optic neuritis in her left eye, a broad term meaning that there was disruption to the conduction of the optic nerve. A follow-up appointment for a re-assessment was scheduled for May 23, 2008.

[7] Ms. Skead re-attended at the emergency department of the LWDH on May 10, 2008, complaining of a persistent headache and visual changes. She was again assessed by Dr. Snyder. Dr. Snyder spoke with the neurosurgeon on call and admitted Ms. Skead, planning to have her re-assessed the next day and possibly referred to a retinal specialist.

[8] On May 11, 2008, Ms. Skead was seen at the LWDH by Dr. du Plessis, a hospitalist and an emergency physician. He performed an ophthalmological examination which disclosed no abnormal findings. Dr. du Plessis assessed Ms. Skead as possibly suffering from optic neuritis. His plan was to re-consult with neurology the next morning.

[9] On May 12, 2008, Dr. Loewen assessed Ms. Skead at the LWDH and arranged for her to be transferred to the Health Sciences Centre (“HSC”) in Winnipeg for an urgent MRI because of a 12-day history of occipital headache with negative CT scan and gradually decreasing vision in the left eye.

[10] Ms. Skead arrived at the HSC on May 13, 2008. She was examined, in turn, by Dr. Mulchey, a resident in internal medicine; Dr. Al-Kaabi, neurology resident with Dr. Borys, a neurologist; Dr. Gouda, an internal medicine intern; and Dr. Hitchon, an internal medicine specialist. Dr. Al-Kaabi’s differential diagnosis was optic neuritis, ischemic, cavernous thrombosis, mass/aneurysm pressing the optic nerve. An MRI taken that day did not reveal any intracranial abnormality. Dr. Borys spoke with Dr. Chin and confirmed the diagnosis of optic neuritis and confirmed Ms. Skead’s May 23, 2008 follow-up appointment with Dr. Chin.

[11] Ms. Skead was discharged from the HSC on May 15, 2008. The discharge summary noted that Ms. Skead had findings consistent with optic neuritis. The follow-up appointment for Ms. Skead to see Dr. Chin on May 23, 2008, was confirmed.

[12] On May 23, 2008, Ms. Skead or someone on her behalf cancelled her appointment with Dr. Chin without re-scheduling another appointment. Coincidentally, also on May 23, 2008, Dr. Borys had a brief discussion about Ms. Skead with the defendant Dr. Janine Johnston, a neuro-ophthalmologist. Dr. Borys mentioned to Dr. Johnston that he had a patient with optic neuritis and asked if she could examine this patient.

[13] On May 25, 2008, Ms. Skead attended the emergency department (the “ER”) of the LWDH, reporting a recurrent headache, persistent decreased vision in her left eye and slight blurring in her right eye. Ms. Skead was assessed by the defendant, Dr. Shannon Wiebe, who requested and received Ms. Skead’s MRI report, progress notes and history from the HSC.

[14] Dr. Wiebe called Dr. Borys at home. Dr. Borys suggested that Ms. Skead be referred to Dr. Johnston. Dr. Borys offered to call Dr. Johnston about Ms. Skead the following day. Dr. Wiebe discharged Ms. Skead later that day with discharge instructions.

[15] On May 25, 2008, Dr. Wiebe dictated consultation letters to Dr. Johnston and Dr. Chin, with instructions to staff that the letters were to be priority transcribed and faxed. Dr. Wiebe’s consultation letters to Dr. Johnston and Dr. Chin were transcribed, faxed and sent by regular mail on May 26, 2008. These letters were received and reviewed by Dr. Johnston and Dr. Chin on May 26 and May 28, 2008, respectively.

[16] The judgment exercised and the actions taken by Dr. Wiebe on May 25, 2008, and by Dr. Johnston and Dr. Chin upon their receipt of these referral letters are the focus of the plaintiff’s cause of action against the defendants.

[17] On June 5, 2008, a staff member from Dr. Johnston’s office wrote to Ms. Skead advising her that Dr. Johnston had been asked to see Ms. Skead on an urgent basis but that the telephone number that Dr. Johnston’s office had been given was not in service. Ms. Skead was asked to contact Dr. Johnston’s office upon her receipt of this letter.

[18] On June 10, 2008, Ms. Skead returned to the ER of the LWDH and was assessed by Dr. Young. Dr. Young recorded a history of headache, progressive vision loss initially in the left eye and now in the right eye. Dr. Young spoke with Dr. Johnston by telephone to discuss Ms. Skead’s progressive loss of vision. Dr. Young arranged for Ms. Skead to see Dr. Johnston on June 17, 2008, and then discharged her.

[19] On June 16, 2008, Ms. Skead returned to the ER of the LWDH and was again seen by Dr. Young. Dr. Young noted that Ms. Skead was crying for help as she could not see. Dr. Young referred Ms. Skead to Dr. Gupta, the ophthalmologist on call in Winnipeg, and dictated a detailed priority referral letter to Dr. Gupta. Dr. Young also faxed Dr. Johnston to advise her of Ms. Skead’s appointment with Dr. Gupta and copied her the referral letter to Dr. Gupta.

[20] Ms. Skead travelled to Winnipeg and was examined by Dr. Gupta that day. Dr. Gupta prescribed Atropine and Prednisone eye drops and advised Ms. Skead to follow up with Dr. Chin.

[21] On June 17, 2008, Ms. Skead was seen by Dr. Johnston as previously scheduled. Dr. Johnston’s visual acuity examination detected no light perception (“NLP”) in the right eye and hand movement inferiorly in the left eye. She also observed that Ms. Skead’s pupils were fixed and very irregular.

[22] Dr. Johnston diagnosed Ms. Skead with bilateral vision loss secondary to panuveitis and possible Vogt-Koyangi-Harada Syndrome (“VKH”). Dr. Johnston asked Dr. Young to begin a five-day course of intravenous steroid medication. Dr. Johnston also wrote to Dr. M. Roy, a uveitis specialist, asking that she provide an urgent opinion and a more definitive diagnosis of Ms. Skead’s condition.

[23] On June 20, 2008, Ms. Skead was seen by Dr. Roy. Dr. Roy diagnosed Ms. Skead as suffering from bilateral panuveitis and systemic symptoms suggestive of VKH. Dr. Roy recommended that Ms. Skead continue with the course of steroids recommended by Dr. Johnston. She also did a steroid injection in Ms. Skead’s right eye that day.

[24] On June 27, 2008, Ms. Skead saw Dr. Roy again. Dr. Roy noted that the uveitis had improved but not resolved. She ordered an increased dose of oral prednisone. Dr. Roy’s follow-up plan was to have Ms. Skead see her again two weeks after she had seen Dr. Johnston.

[25] On July 10, 2008, Ms. Skead was seen by Dr. Johnston who observed that Ms. Skead was now suffering from complete vision loss in both eyes.

[26] On July 28, 2008, Ms. Skead was re-assessed by Dr. Roy. Dr. Roy observed that light perception had returned to Ms. Skead’s left eye and that the uveitis was improving in both eyes but that there was minimal functional improvement in the right eye.

[27] Ms. Skead has sued Dr. Weibe, Dr. Chin and Dr. Johnston in negligence, claiming that they individually and collectively breached the standard of care required of them by failing to act with the urgency necessitated by her condition and by failing to effectively and directly communicate with other physicians and/or with her.

[28] Ms. Skead alleges that had any of the defendants met their respective standards of care, she would have been seen urgently by an appropriately qualified physician during the week of May 25, 2008, and not later than May 31, 2008.

[29] Ms. Skead further alleges that had she been seen by an appropriately qualified physician within this time frame, her VKH would have been provisionally diagnosed and treatment initiated such that her right eye would have been treated before permanent damage occurred, leaving her with 20/200 vision or better in that eye for the rest of her life.

[30] The defendants contend that they acted reasonably and in accordance with the standard of care required of each of them in light of the information available to each of them at the relevant times.

[31] The defendants further contend that nothing done or failed to have been done by them was the cause of Ms. Skead’s vision loss because she suffered from a very aggressive VKH and would have suffered the same vision loss regardless of the timing of the initial treatment she received.

[32] Finally, if it is found that the delay in diagnosing and initiating treatment for Ms. Skead did cause damage to the plaintiff, the defendants contend that the conduct of Ms. Skead is relevant in terms of both contributory negligence and causation.

[33] The plaintiff Justin Fraser is a Family Law Act claimant. By order dated February 15, 2019, Shaw J. directed that if Justin Fraser did not file an Intention to Act in Person or retain counsel within 30 days of service of his Order, his action would be dismissed.

[34] Mr. Fraser was duly served with the Order of Shaw J. He did not file a Notice of Intention to Act in Person nor did he retain counsel as required. The claim of Justin Fraser is therefore dismissed.

THE ISSUES

[35] The issues to be determined are:

1. Did Dr. Wiebe breach the standard of care of an emergency physician on May 25, 2008?

2. Did Dr. Chin breach the standard of care of an ophthalmologist in May and June 2008?

3. Did Dr. Johnston breach the standard of care of a neuro-ophthalmologist in May and June 2008?

4. If a breach or breaches of the standard of care are established, would Ms. Skead have maintained legal vision or better in her right eye but for said breaches?

5. For what time frame would Ms. Skead have retained legal vision or better in her right eye? and,

6. Was Ms. Skead contributorily negligent, and if so, to what extent?

[36] Damages were resolved prior to trial and are not in issue.

MEDICAL BACKGROUND INFORMATION

[37] Optic neuritis is an inflammation of the optic nerve.

[38] Uveitis is an inflammation of the uveal tract. The uveal tract is the vascular component of the eye comprised of the iris, the front layer of the uveal tract, the ciliary body, a circular muscle surrounding the lens, and the choroid, the vascular layer of the eye providing blood supply.

[39] Uveitis can be anterior, affecting the front of the eye, intermediate affecting primarily the ciliary body, or posterior affecting the choroid and often the retina. Panuveitis is an inflammation of the entire uveal tract. Uveitis can be understood to be “rheumatoid arthritis of the eye.” The goal of uveitis management is to decrease and control the inflammation to prevent damage to the structure of the eye. Uveitis is typically treated with steroids - topical, intravenous or oral.

[40] VKH is a type of panuveitis which primarily starts in the back portion of the uveal tract. It is a severe ocular inflammation and an autoimmune disease without an external infection or trigger. VKH is a rare, chronic inflammatory condition which requires life-long medical management and treatment. It affects both eyes but can be asymmetric. VKH can start in one eye and then progress to the other.

[41] VKH has four phases:

• The prodromal phase which usually lasts a week or two. In this phase, most complaints will not relate to the eye. People will generally experience problems such as neck stiffness, ringing in the ear and headache. It is difficult to diagnose VKH during the prodromal phase because there is typically no inflammation in the eye at this point and due to the similarity presenting symptoms have with common viral conditions;

• The uveitic or acute phase which typically starts slowly and accelerates with time. The acute phase usually lasts several weeks, during which the eye first becomes inflamed. At the onset of inflammation during the acute phase, people often experience pain and perhaps photophobia, reduced vision or visual field abnormalities. On examination, inflammatory cells would be visible throughout the eye;

• The chronic or convalescent phase which can persist for the patient’s lifetime, during which there is persistent low-grade inflammation usually controlled with medication. Vision is dependent on the nature of the inflammation. If it is low grade and controlled, vision may be relatively unimpaired. If the retina and macula are swollen the inflammation can affect the eye in various ways and vision can be poor; and,

• The recurrent phase which coincides with the chronic phase, with chronic, persistent inflammation punctuated by recurrent spikes of more significant inflammation. The recurrent spikes are typically treated with steroids, the objective being to reduce the inflammation to that of the chronic stage. The cycle of recurrent spikes of more significant inflammation repeats. The recurrent acute inflammation can impact vision because there is more inflammation in the eye. These recurrent bouts of inflammation can be very aggressive and hard to control. They can cause damage to the eye structure and reduced vision.

[42] VKH is the most difficult uveitis condition to treat due to the combination of the intensity of the inflammation and its duration.

[43] Visual acuity is the measure of central vision:

1. 20/20 - normal acuity or perfect vision;

2. 20/50 - the patient sees at 20 feet what a normal sighted person sees at 50 feet;

3. 20/200 - legal blindness;

4. Count Fingers/CF - the patient can’t see letters on the eye chart but can count the number of fingers placed in front of the face;

5. Hand Motions/HM - the patient can’t count fingers but can see hand motions;

6. Light Perception/LP - the patient can tell if a light is on and its direction but nothing more; and

7. No Light Perception/NLP - medical blindness. Complete darkness.

SUMMARY OF THE EVIDENCE

ALLISON SKEAD

[44] Ms. Skead is a member of the Wauzhushk Onigum First Nation, located adjacent to the southeastern limits of the City of Kenora. Ms. Skead did not complete her Grade 8 education. She has suffered from depression from a young age and was taking antidepressant medication in the spring of 2008.

[45] In May 2008, Ms. Skead resided on Wauzhushk Onigum First Nation with her four children and her spouse, Mr. Andy Beaver. Mr. Beaver also had an apartment in Kenora. Between May 25, 2008, and June 10, 2008, Ms. Skead lived both at her home and at Mr. Beaver’s home. Ms. Skead only had intermittent telephone service at her residence. It was frequently disconnected as a result her being unable to pay her telephone bills.

[46] Ms. Skead provided the telephone numbers of Mr. Beaver and her mother, Isabel Seymour, to hospitals and physicians as her secondary contacts. She also provided health care providers with the contact information for Donna Reed, a family friend whom she visited frequently. Ms. Skead’s residence was close to that of her mother and her mother frequently took her to medical appointments. The First Nation also had a medical transportation van available to take members to appointments and to pick up prescription medications.

[47] Regrettably but understandably, Ms. Skead was able to provide little reliable evidence as to the events of the spring of 2008, and the period thereafter.

[48] On direct examination, Ms. Skead testified that she had no recollection of her mother, Andy Beaver or Donna Reed advising her of any doctors trying to contact her in the spring of 2008. However, on cross-examination, Ms. Skead agreed that she had answered truthfully at her examination for discovery when she testified that Mr. Beaver had in fact told her in the spring of 2008 that he had received a call from Dr. Johnston’s office asking that Ms. Skead make an appointment to see Dr. Johnston.

[49] Ms. Skead also testified that she was told by “a doctor or a nurse” at the LWDH that there was a “history of something, blindness or something in my family and that [her] aunt Julia had it.” Ms. Skead apparently asked her aunt about her condition and was told “what it was called” but that she could not remember how to pronounce the name of the condition. Ms. Skead was uncertain as to the timing of these discussions. At one point she testified that this conversation occurred “when I was going back and forth to the hospital.” Later in her evidence, she testified that this conversation occurred during her May 25, 2008 visit to the LWDH ER.

[50] Ms. Skead recalled that her mother drove her to Winnipeg on May 9, 2008, to see Dr. Chin. On direct examination, Ms. Skead recalled that her May 23, 2008, appointment with Dr. Chin was cancelled because of her stepfather’s death. She had no recollection of rebooking that appointment. On cross-examination, Ms. Skead testified that she did not recall meeting with Dr. Chin on May 9, 2008, that she did not recall Dr. Chin providing her with a May 23, 2008 follow-up appointment and that she had no recollection of cancelling this appointment. She did, however, recall giving Donna Reed’s name and phone number to Dr. Chin’s office as an alternate contact person.

[51] Ms. Skead did not recall being seen by Dr. Snyder in the ER of the LWDH on May 9, 2008, did not recall being admitted that day and did not recall being assessed by Dr. du Plessis the next day. She did recall seeing Dr. Loewen on May 12, 2008, and being transferred to the HSC for an urgent MRI the next day.

[52] Ms. Skead had very little recollection of the various doctors she saw at the HSC between May 13-15, 2008. She did acknowledge being aware of the importance of her follow-up appointments with Dr. Chin and Dr. Borys after her discharge from the HSC on May 15, 2008.

[53] Ms. Skead had only a vague recollection of her attendance at the ER of the LWDH on May 25, 2008. She had no recollection of any information given by her to the ER triage nurse that day. Ms. Skead did not recall Dr. Wiebe or what services Dr. Wiebe provided to her that day. She did not dispute that she provided the information recorded by Dr. Wiebe on the Emergency Record dated May 25, 2008. Ms. Skead described her vision from both eyes that day as “…both blurry. Both going away.”

[54] Ms. Skead testified that she had no memory of being told by Dr. Wiebe that Dr. Johnston or Dr. Borys would be contacting her. She further testified that she did not recall Dr. Wiebe instructing her to return to the hospital if she did not hear from these doctors. However, on cross-examination Ms. Skead agreed that if she had been confused about Dr. Wiebe’s discharge instructions, she would have asked Dr. Wiebe or a nurse for clarification, which she did not.

[55] Ms. Skead was unable to explain why she did not return to hospital between May 25, 2008, and June 10, 2008. When asked about this she stated “I don’t know why. I probably gave up by then, probably got too frustrated.” Ms. Skead testified that if she had been told by Dr. Wiebe on May 25, 2008, that she had to go to Winnipeg the next day to see a specialist she would have gone. She also testified that she would have stayed overnight in the emergency department at the LWDH on May 25, 2008, if she had been told to do so by Dr. Wiebe.

[56] Ms. Skead recalled seeing Dr. Johnston on June 17, 2008, but had no recollection of any hospital attendances in either Kenora or Winnipeg between May 25, 2008, and June 17, 2008. When asked if she recalled the status of her vision when she saw Dr. Johnston on June 17, 2008, Ms. Skead replied, “Yeah, I couldn’t hardly see anything.”

[57] Ms. Skead did recall that Dr. Johnston prescribed intravenous steroids for her, requiring her to attend at the LWDH daily for a period of approximately four days following her return from Winnipeg.

[58] Ms. Skead was able to recall her appointment with Dr. Roy in Winnipeg on June 20, 2008. Dr. Roy apparently discussed VKH with Ms. Skead and administered an injection into her right eye. Ms. Skead had no recollection of seeing either Dr. Roy or Dr. Johnston thereafter other than a recollection that she continued to see Dr. Roy “for a few years” after which she stopped because “there was nothing else to do for me.”

[59] Ms. Skead testified that she continued taking Prednisone until at least 2009 in the hope that it might restore her vision. According to Ms. Skead, there were times she was unable to refill her prescription. She discontinued taking Prednisone at some point in time because of how it made her feel.

[60] Ms. Skead did not recall anything from her time at the HSC during May of 2008, including being reminded of her May 23, 2008 appointment with Dr. Chin and that follow-up arrangements were to be made for her with Dr. Borys. She did acknowledge understanding that attending follow up appointments was important.

[61] The following evidence from the examination for discovery of the plaintiff was read into the record at the conclusion of the defendants’ case:

Question 274:

Q. Did Andy Beaver ever tell you that he’d received a call from Dr. Johnston’s office asking you to attend to see her?

A. Yes.

THE DEFENDANT DOCTORS

DR. SHANNON WIEBE

[62] Dr. Wiebe was licensed to practice family medicine in Ontario in May 2007. At that time, she began a clinical practice together with inpatient care and work as an ER physician at the LWDH. Dr. Wiebe has worked an average of four to six ER shifts per month since 2007.

[63] On Sunday May 25, 2008, Dr. Wiebe worked a 12-hour ER shift – 8:00 am to 8:00 pm. She first assessed Ms. Skead between 9:30 am and 10:10 am. Dr. Wiebe had only a “very general recollection” of her meeting with Ms. Skead on this date. While testifying she relied primarily on the notes she made on the Emergency Record for May 25, 2008.

[64] Dr. Wiebe testified that Ms. Skead attended the ER that day complaining of a headache. Dr. Wiebe took a history from Ms. Skead, the relevant portions being:

25-year-old woman with recent extensive workup regarding decreased vision left eye and now right, sinus pressure plus frontal … workup in Winnipeg … discharged nine days ago. Which included MRI, two ophthalmological assessments … missed follow-up with Dr. Borys, but have been talking on phone.

[65] Dr. Wiebe ordered pain medication for Ms. Skead, ordered her previous LWDH chart and her MRI results and discharge summary from the HSC regarding Ms. Skead’s recent attendance there. Dr. Wiebe explained that she sought this information because she did not have a complete understanding of what she perceived to be a complicated case. She also called the HSC to speak directly to Dr. Borys. Dr. Wiebe left a message for Dr. Borys because he was not on call that day.

[66] Dr. Wiebe re-assessed Ms. Skead at 12:15 pm on May 25, 2008, at which time she had reviewed the previous LWDH chart but not the HSC records. The previous LWDH chart included a History and Physical Examination completed by Dr. Snyder on May 10, 2008, and an undated handwritten transfer letter from Dr. Loewen.

[67] At the time of this re-assessment, Dr. Wiebe found Ms. Skead to be feeling “significantly better” with decreased pain. Ms. Skead advised Dr. Wiebe that her vision was still blurry on the right. Dr. Wiebe noted that this was new. Ms. Skead also advised Dr. Wiebe that she had been expecting a call from Dr. Borys that day. Dr. Wiebe then called the HSC a second time in an attempt to reach Dr. Borys through the HSC switchboard. She was advised that Dr. Borys’ pager was not on because he was not on call that day. The HSC switchboard transferred Dr. Wiebe to Dr. Borys’ home number and Dr. Wiebe left him a message.

[68] Following this re-assessment, Dr. Wiebe requested that Ms. Skead remain in the ER until she was able to speak directly to Dr. Borys and “clarify the follow-up plan for her underlying condition.”

[69] Dr. Wiebe re-assessed Ms. Skead again at 4:20 pm on May 25, 2008, at which time she had the MRI Report, Progress Notes, History and Physical from the HSC. The MRI Report confirmed sinusitis but was otherwise normal. Dr. Wiebe reviewed the HSC History and Physical and Progress Notes because she “didn’t know what was going on” with Ms. Skead and wanted to understand the HSC’s differential diagnosis and the HSC follow-up plan for her.

[70] Dr. Wiebe understood from these records that the HSC neurology department would be calling Ms. Skead for a follow-up appointment with Dr. Borys and contacting Dr. Chin to confirm his impression and follow-up plans for Ms. Skead. She noted that the HSC discharge note dated May 15, 2008, indicated that Ms. Skead was to “follow-up with Dr. Chin, ophthalmology, in one week – patient has her appointment record.”

[71] The HSC Neurology note located within these records and dated May 15, 2008, reads “diagnosis appears to be optic neuritis.” Dr. Wiebe testified that this information from the HSC corresponded well with the information she had obtained from Ms. Skead to that point in time.

[72] Dr. Wiebe’s notes from her reassessment of Ms. Skead at 4:20 pm May 25, 2008, read as follows:

Mobilizing no problem, pain settled, MRI normal per admission history Winnipeg. No discharge report available.

[73] Dr. Wiebe recorded a second note at 4:20 pm on May 25, 2008, as a result of Dr. Borys returning her call:

Dr. Andrew Borys called. Workup as discussed with patient, feels ? (query) optic neuritis. Follow-up Dr. Chin. May refer to a retinal specialist. Suggests referral to Dr. Janine Johnston, neuro-ophthalmologist – he will call her tomorrow.

[74] Dr. Wiebe testified that it was her understanding that Dr. Borys felt that Ms. Skead’s vision problems in her left eye were related to a neurological issue. Dr. Wiebe also testified that she shared her assessment of Ms. Skead with Dr. Borys, including that Ms. Skead now had some change/blurring of the vision in her right eye.

[75] As a result of her conversation with Dr. Borys, Dr. Wiebe explained that the plan for Ms. Skead was for her to be contacted by Dr. Chin, Dr. Johnston and Dr. Borys for follow-up appointments. Dr. Wiebe testified that she told Ms. Skead that she expected she would be hearing about these appointments the following day and “to let us know at the hospital if she did not.”

[76] Dr. Wiebe explained that Dr. Borys advised her that he felt Ms. Skead should see Dr. Johnston. According to Dr. Wiebe, Dr. Borys told her that he had a “working relationship” with Dr. Johnston and that he had in fact recently discussed Ms. Skead’s case with Dr. Johnston. Dr. Borys asked Dr. Wiebe to send Dr. Johnston a formal referral letter.

[77] Dr. Wiebe further explained that she understood that Ms. Skead was already scheduled to see Dr. Chin such that she and Dr. Borys “discussed … reinstituting that follow-up to make sure she got the appointment.”

[78] Dr. Wiebe’s discharge instructions as set out in the May 25, 2008 LWDH Emergency Record include the following:

Follow-up with Dr. Borys. Comfortable with same. Notify us if not heard in 24 hours.

[79] Dr. Wiebe testified that this note also referred to the expected follow-ups with Dr. Chin and Dr. Johnston. According to Dr. Wiebe, she spoke directly to Ms. Skead after she had spoken with Dr. Borys and had the follow-up plan in place. Dr. Wiebe testified that she advised Ms. Skead of the three doctors that she should expect to hear from the next day about these follow-up appointments. Ms. Skead told Dr. Wiebe that she was unable to call long distance from her home telephone. Dr. Wiebe therefore made clear in her referral letters to Dr. Chin and Dr. Johnston that they were to call Ms. Skead to advise of appointment dates and times.

[80] According to Dr. Wiebe, subsequent to this exchange with Ms. Skead and as Ms. Skead was leaving the emergency department, a nurse “stopped to double-check” what Ms. Skead should do if she did not hear from these doctors as anticipated. Dr. Wiebe testified that she “confirmed that [Ms. Skead] would need to come back to the emergency department.”

[81] Dr. Wiebe testified that, at the time of her discharge at 5:45 pm on May 25, 2008, Ms. Skead “had been better for quite some time” and that her vision “was stable.” Dr. Wiebe explained that she decided to discharge Ms. Skead because “her presenting complaint, the headache had improved … the vision change had been quite stable. Not just through her stay, but with the assessment in Winnipeg at which time she was discharged there…. And we had established a clear plan for follow-up.”

[82] Dr. Wiebe testified that she saw no reason to admit Ms. Skead to hospital or to hold her in the ER overnight because Ms. Skead was comfortable, her headache had resolved, and her vision symptoms were stable and consistent with those described when she was discharged from hospital in Winnipeg.

[83] Dr. Wiebe was taken through her May 25, 2008 referral letter to Dr. Chin which was noted to be “Trans. May 26, 2008 Priority.” meaning it would be transcribed and faxed immediately the following morning. In this letter, Dr. Wiebe reiterated some of Ms. Skead’s history and described to Dr. Chin her own findings and assessment of Ms. Skead, including:

Allison has returned to the Emergency Department in Kenora today with recurrent headache, persistent decreased vision in her left eye. She states that she now sees only a horizontal slit. She has also complained of some slight blurring of her vision, on the right, though this has decreased with treatment of her headache…”

[84] In her letter to Dr. Chin, Dr. Wiebe also referenced the discussion the previous week between Dr. Chin and Dr. Borys and Dr. Chin’s anticipated reassessment of Ms. Skead. Dr. Wiebe explained to Dr. Chin that Ms. Skead did not have access to long distance telephone and that it would be necessary for his office to contact Ms. Skead.

[85] Dr. Wiebe also advised Dr. Chin as follows:

Of note, [Ms. Skead] does have some concerns that this may be related to a current condition her aunt has, Vogt-Koyanagi-Harada, or a chronic uveitis.

[86] When asked the source of that information, Dr. Wiebe testified that this information:

Would have come from the nurse who escorted her out, came back and at some point later in the shift mentioned this family history of VKH and so I added that to the referral letter.

[87] Dr. Wiebe explained that she was not familiar with VKH at the time, so she accessed an online medical database and learned that it was a type of chronic uveitis requiring prompt treatment with steroids. At that time, Dr. Wiebe was uncertain of the significance of the fact that Ms. Skead had an aunt with VKH. Dr. Wiebe testified that she did not have any direct discussions with Ms. Skead about her family history of VKH. Dr. Wiebe testified that she received this information from a nurse only after Ms. Skead had left the ER.

[88] Dr. Wiebe copied her referral letter to Dr. Chin to Dr. Borys to confirm that she had sent the referral letter as they had discussed and because she was under the impression that Ms. Skead was continuing to follow-up with him.

[89] Dr. Wiebe did not consider calling Dr. Chin directly on May 25, 2008. She explained that May 25 was a Sunday and that a follow-up had already been planned with Dr. Chin.

[90] Dr. Wiebe reviewed her May 25, 2008 referral letter to Dr. Johnston, also copied to Dr. Borys. After noting Ms. Skead’s recent treatments in Winnipeg, Dr. Wiebe advised Dr. Johnston of her assessment of Ms. Skead, including:

Her vision loss has persisted, and in fact she now sees only a small hazy horizontal slit out of the left eye. Today she was seen in the Emergency Department in Kenora with some blurring of vision on her right side…I discussed her case with Dr. Borys this afternoon and he remains concerned that we may be missing a neuro-ophthalmological issue contributing to her blindness. I understand that he briefly mentioned this case to you last week, and will be calling you tomorrow to further this referral…[Ms. Skead] is also concerned given history of Vogt-Koyanagi-Harada syndrome in her aunt.

[91] This letter was also marked “PRIORITY DICTATION Trans. May 26, 2008” and was copied to Dr. Borys. Dr. Wiebe also advised Dr. Johnson in this letter that Ms. Skead did not have access to long distance and provided Ms. Skead’s telephone number to Dr. Johnston so that her office could call Ms. Skead to arrange an appointment.

[92] Dr. Wiebe did not consider talking directly with Dr. Johnston on May 25, 2008, either to discuss her referral or to make Ms. Skead’s appointment directly with Dr. Johnston. She explained that Dr. Borys had asked her to dictate the referral letter and had undertaken to speak to Dr. Johnston himself. It was Dr. Wiebe’s evidence that “we had a very clear division of responsibility” with Dr. Borys planning to speak to Dr. Johnston directly about the case such that she would be expecting Dr. Wiebe’s referral letter.

[93] Dr. Wiebe did not follow up with either Dr. Chin, Dr. Johnston or Dr. Borys to confirm that they had received her referral letters, explaining that if there had been a problem she would have been advised by the medical records department at the LWDH.

[94] On cross-examination, Dr. Wiebe conceded that she did not have an independent recollection of all the details of her May 25, 2008 interactions with Ms. Skead. She repeatedly denied that she had a direct discussion with Ms. Skead about her family history of VKH, testifying that if she had had that information earlier in the day she would have documented it in the Emergency Record for May 25, 2008.

[95] On cross-examination, Dr. Wiebe testified that she understood the phrase most responsible physician (“MRP”) to mean the physician with overall responsibility for directing and coordinating the care and management of an individual patient. Dr. Wiebe agreed that she was Ms. Skead’s MRP on May 25, 2008, while Ms. Skead was in the ER.

[96] Dr. Wiebe maintained that she did “coordinate a plan for the arrangement of … appointments” with Dr. Johnson and Dr. Chin but conceded that “there was no specific time booked” or directly arranged with either of these doctors by her that day. When it was suggested to Dr. Wiebe that faxing referral letters to Dr. Chin and Dr. Johnston did not constitute arranging an appointment for Ms. Skead given her role as MRP, Dr. Wiebe’s evidence was as follows:

Well it was a unique circumstance in that Dr. Borys and I had already discussed the case and he had said specifically that he would speak to Dr. Johnston on Monday [May 26, 2008] … She was not likely to be available on a Sunday. And with regards to Dr. Chin, there was already a plan for [Ms. Skead] to follow-up and so my referral letter [to Dr. Chin] was just to augment and help facilitate the existing plan.

[97] Dr. Wiebe went on to explain that her “initial conversation was with Dr. Borys because I felt, my impression was that he was the one most involved in her care and he made a specific offer to speak with Dr. Johnston with whom he had a working relationship” the next day. Dr. Wiebe felt this to be a reasonable plan under the circumstances.

[98] Dr. Wiebe was cross-examined on her Discharge Instructions – “notify us if not heard in 24 hours” – as set out in the Emergency Record for May 25, 2008. She testified that this meant that Ms. Skead was to notify the ER, not her personally. She agreed that she did not give written instructions as to whom in the ER Ms. Skead should contact and that her written discharge instructions did not state that Ms. Skead was to “come back” to the ER if she had not heard about the follow-up appointments within 24 hours.

[99] When pressed on this issue, Dr. Wiebe responded as follows:

At the time, this is what I had written and then as she was leaving the nurse stopped with [Ms. Skead] for clarification. I recall thinking that was a good point. I hadn’t been entirely specific about how she could notify us and I didn’t want to have any confusion and I said that the best thing would be to come back to the department. What I said was, specifically, I think was that she would have to come back.

[100] Dr. Wiebe was not scheduled to work in the ER on May 26, 2008. She did not leave any instructions about Ms. Skead for the ER staff or ER doctor working on May 26, 2008. Dr. Wiebe’s May 25, 2008 Emergency Record would have been available to the doctor on duty in the ER on May 26, 2008.

[101] Dr. Wiebe acknowledged that the reference in her May 25, 2008 referral letter to Dr. Johnston about Ms. Skead experiencing “some blurring of vision on her right eye” that day was a new finding. She also agreed that she did not use the word “urgent” in her letter to Dr. Johnston or Dr. Chin, either in regard to Ms. Skead’s condition or in regard to a time frame for Ms. Skead’s appointments with them. Dr. Wiebe did not call Dr. Borys back to discuss Ms. Skead’s family history of VKH upon learning of it subsequent to their telephone conversation.

[102] Dr. Wiebe testified that she considered her professional responsibility to Ms. Skead to have been discharged once she had dictated the May 25, 2008 referral letters to Dr. Chin and Dr. Johnston, unless she was notified that there were difficulties with the letters or with the follow-up plan that had been put in place.

[103] Dr. Wiebe acknowledged that she did not consider contacting Dr. Johnston directly to arrange Ms. Skead’s appointment with her. She also agreed that she did not note on the Emergency Record for May 25, 2008, that she told Ms. Skead that Dr. Borys wanted her to see Dr. Johnston. Dr. Wiebe testified that she was unable to recall the specific details of her conversations with Ms. Skead but that she would have explained to Ms. Skead who would be calling her and why. Dr. Wiebe did not advise Ms. Skead that her appointments with Dr. Johnston and Dr. Chin were “urgent” and did not advise Ms. Skead that she was at risk of her vision deteriorating if she didn’t see Dr. Johnston in a timely fashion.

[104] Dr. Wiebe agreed that on May 25, 2008, she learned that VKH was a serious condition requiring urgent treatment. She reiterated that she did not have this information when she was assessing Ms. Skead but conceded that VKH was a “potential diagnosis” and, if ultimately the diagnosis, in need of prompt treatment. Dr. Wiebe did not consider contacting Ms. Skead directly after she had researched VKH later in the day on May 25, 2008.

[105] Dr. Wiebe testified that she expected that Ms. Skead would be seen by Dr. Johnston “within a short time frame” of May 25, 2008, and that June 17, 2008, was beyond what she expected. Dr. Wiebe agreed that she could have called Dr. Johnston, Dr. Chin or the ophthalmologist on call on May 25, 2008.

[106] The following evidence from the examination for discovery of Dr. Wiebe was read into the record at the conclusion of the plaintiff’s case:

Question 86.

Q. Did you give any consideration yourself to calling Dr. Johnston?

A. No.

Question 87:

Q. Now did you give any consideration to calling Dr. Chin? There’s a reference to Dr. Chin.

A. No.

Question 106.

Q. Did you discuss with Dr. Borys Allison’s history of Vogt-Koyanagi-Harada syndrome?

A. In her family, no. From what I recall that information came to me right at the end of the visit so I would have already spoken to Dr. Borys.

Question 107:

Q. Could you have called him back and told him about that?

A. I guess I could have.

Question 109:

Q. Now were you familiar with Vogt-Koyanagi-Harada syndrome?

A. Actually at the time I’d never heard of it.

Question 110:

Q. How did you hear about it then?

A. A nurse actually came to me and mentioned that and told me that the patient had mentioned her family history of VKH. And so I looked up the acronym VKH with respect to eye concerns.

Question 111:

Q. When did you look it up?

A. That day.

Question 112:

Q. Were you aware then how urgent it is for prompt treatment of somebody with a diagnosis of VKH?

A. Yes.

Question 124:

Q. I see. Okay. And did you ever confirm with Dr. Borys whether he received your letter?

A. No I did not speak to Dr. Borys again on this subject.

Question 125:

Q. Did you do any follow up with Dr. Borys further to your letter of May 25?

A. No.

Question 135:

Q. When you saw her on May 25 was she your patient then at that time?

A. Yes she was.

Question 140:

Q. Did you call Dr. Chin?

A. No.

Question 141:

Q. Did you have any discussion? You didn’t speak to Dr. Chin at all?

A. No.

Question 149:

Q. Okay. Did Dr. Johnston ever call you? I’m sorry, did Dr. Johnston ever contact you?

A. No.

Question 161:

Q. Did you call Allison to find out if she heard from anyone?

A. No.

DR. DANIEL CHIN

[107] Dr. Chin was certified as a specialist in ophthalmology in 1993 and has practiced as an ophthalmologist in Winnipeg since then. His practice is primarily office based, assessing and treating outpatients on a referral basis.

[108] On May 9, 2008, Dr. Chin was the on-call ophthalmologist for Misericordia General Hospital in Winnipeg, the eye centre for Winnipeg and Manitoba, the catchment area of which includes the LWDH in Kenora.

[109] Dr. Snyder referred Ms. Skead to Dr. Chin’s office from the ER at the LWDH on May 9, 2008, because of vision loss in her left eye. Dr. Chin was provided with a copy of Ms. Skead’s May 9, 2008 LWDH Emergency Record for this referral appointment. Dr. Chin had no independent recollection of his examination of Ms. Skead on this date. He relied on his chart notes from that day when testifying at trial.

[110] Immediately prior to being examined by Dr. Chin on May 9, 2008, Ms. Skead completed a patient intake form on which she listed “Donna Reed (807)548-5399” as her alternate contact person.

[111] Dr. Chin was taken through his May 9, 2008 chart for Ms. Skead. His assessment and findings as noted on this chart included the following:

• One week ago ache in left eye and headache in back of head;

• April 29 decreased vision left eye and scotoma [patchy black spot in vision] central;

• Recent paresthesia [tingling or numbness];

• Brightness test 100% for the right eye, 50% on the left eye indicating a conduction deficit;

• Colour vision/ishihara plate test right eye 17 out of 17 (normal) left eye zero out of 17 totally abnormal;

• Slit lamp examination normal with no signs of inflammation;

• Ophthalmoscopic examination normal in both eyes, mildly elevated ? in left eye;

• Peripheral retinal exam normal both eyes;

• Assessment optic neuritis left eye.

[112] Dr. Chin explained that optic neuritis is a condition involving a loss of myelin in the nerve fibre layers resulting in a reduction or loss of signals to the brain and affecting vision to varying degrees. Dr. Chin testified that the usual course for an optic neuritis involves the vision deteriorating, for up to a month or more, then reversing and slowly returning to normal over the following two or three months. Dr. Chin explained that optic neuritis is usually treated by observing the progress of the condition in the patient and, if necessary, treating recurrent bouts with high-dose steroids.

[113] Dr. Chin’s plan for Ms. Skead following his May 9, 2008 assessment and as set out on his chart from that day was to follow-up in one week and to conduct a visual field test at that time to document any progression of the condition or improvement in vision.

[114] Dr. Chin testified that his usual practice with a patient who presents as Ms. Skead did on May 9, 2008, would be to explain to the patient that his working diagnosis was optic neuritis, what that meant and how this condition would progress or improve. Dr. Chin further testified that he explains to patients that he would monitor the condition and do further testing if the condition did not improve within the usual time frame. In Dr. Chin’s practice, follow-up appointments are scheduled by staff immediately after Dr. Chin has completed his examination and assessment of the patient.

[115] The final entry on Dr. Chin’s chart was “May 23, 2008 canc. Appt – father passed away S”. Dr. Chin testified that his usual office practice when patients cancelled appointments was to ask the patient to rebook when they called to cancel. He is not generally advised when a patient cancels an appointment. Dr. Chin testified that Ms. Skead did not rebook her cancelled May 23, 2008 appointment.

[116] Dr. Chin’s office did not receive the faxed copy of Dr. Wiebe’s May 25, 2008, referral letter pertaining to Ms. Skead. The original letter was received by mail on May 28, 2008, at which time Dr. Chin was made aware that Ms. Skead’s May 23, 2008 appointment had been cancelled.

[117] Dr. Chin testified that nothing in this letter, including Dr. Wiebe’s comment that Ms. Skead had some slight blurring of vision in her right eye, was indicative of a progressive loss of vision in that eye. When Dr. Chin was asked to comment on the fact that Dr. Wiebe advised him in this letter that Ms. Skead’s aunt suffered from VKH, or a chronic uveitis, Dr. Chin testified that this was “a slight concern, but…there was no link to the direct relative, the direct family.”

[118] On May 28, 2008, after reviewing his May 9, 2008 chart in conjunction with Dr. Wiebe’s May 25, 2008 referral letter, Dr. Chin instructed his staff to schedule a follow-up appointment with Ms. Skead in one to two weeks. According to Dr. Chin, on May 28, 2008, his staff attempted to telephone Ms. Skead at the number she provided to them and learned that the number was disconnected. Upon being advised of this, Dr. Chin instructed his staff to write to Ms. Skead for a follow-up appointment and he endorsed the May 25, 2008 referral letter accordingly.

[119] Dr. Chin testified that in 2008, he understood VKH to be “an immune related condition” causing inflammation in the eye and which, if diagnosed, he would refer to a uveitis specialist. Dr. Chin noted that Dr. Wiebe’s May 25, 2008 referral letter to him made no mention of inflammation in Ms. Skead’s eyes.

[120] Dr. Chin requested that Ms. Skead’s appointment be booked as “an urgent follow-up” within a one to two-week time-frame. Dr. Chin testified that there was nothing in Dr. Weibe’s May 25, 2008 referral letter to suggest that Ms. Skead’s condition was, as of May 28, 2008, an ophthalmological emergency.

[121] Dr. Chin was allowed to testify as to discussions he had with his office assistant, Sharon Ellis, about her attempts to communicate with Ms. Skead in May 2008. Ms. Ellis is deceased and her statements to Dr. Chin were ruled admissible as a principled exception to the hearsay rule.

[122] Ms. Ellis advised Dr. Chin that she asked “the patient” to rebook at the time she cancelled the May 23, 2008 appointment but that the patient declined and indicated that she would call back to rebook that appointment.

[123] Ms. Ellis also told Dr. Chin that she had been able to contact Donna Reed, the person provided by Ms. Skead as an alternate contact, later in the day on May 28, 2008, and that she told Ms. Reed to have Ms. Skead contact Dr. Chin’s office as soon as she was able to.

[124] Dr. Chin’s phone records confirmed that a call was placed to Donna Reed’s number at 3:42 p.m. on May 28, 2008, and that the call lasted a maximum of 30 seconds. Dr. Chin agreed that there are no notes or records confirming that a conversation occurred between his office staff and a third party at this number or that the call was even answered. Dr. Chin’s office made no other attempts to contact Ms. Skead or Ms. Reed, her alternate contact, by telephone thereafter.

[125] Ms. Skead did not contact Dr. Chin’s office to rebook her cancelled appointment. On July 7, 2008, Dr. Chin’s office wrote to Ms. Skead advising her that they had scheduled an appointment with her for July 23, 2008.

[126] On cross-examination, Dr. Chin agreed that neither Ms. Skead’s patient intake form nor his chart from May 9, 2008 record any inquiry into Ms. Skead’s family history including any family history of vision loss.

[127] Dr. Chin testified that he did not conclusively diagnose Ms. Skead with optic neuritis on May 9, 2008, but he agreed that it was at the top of his differential diagnosis for her that day. His plan was to see Ms. Skead again to re-evaluate her and check on the progress of her condition.

[128] Dr. Chin agreed that his May 28, 2008 review of Dr. Wiebe’s May 25, 2008, referral letter informed him that at the time of Dr. Wiebe’s examination of Ms. Skead, she was experiencing persistent decreased vision in her left eye to the extent of seeing only a horizontal slit and slight blurring in her right eye. This letter also informed Dr. Chin that Ms. Skead’s aunt had VKH.

[129] Dr. Chin agreed that he regarded Ms. Skead’s situation as urgent on May 28, 2008. He was equivocal as to whether he would have expected Dr. Wiebe and/or LWDH staff to have contacted him directly about Ms. Skead rather than fax a referral letter in these circumstances.

[130] Dr. Chin did not contact either Dr. Wiebe or Dr. Borys to discuss Ms. Skead’s condition on May 28, 2008, or at any time thereafter.

[131] Dr. Chin confirmed that he had Dr. Snyder’s May 9, 2008, LWDH Emergency Record when he examined Ms. Skead that day. Listed on this record as parties to be notified in case of emergency are Isabel Seymour – mother – (807)548-8874 and Andy Beaver – spouse – (807)468-6685. Dr. Chin conceded that his office did not attempt to contact either of these parties about Ms. Skead on May 23rd or 28th or at any time thereafter.

[132] Dr. Chin testified that he did not see Dr. Gupta’s June 23, 2008 letter in regard to Ms. Skead until July 4, 2008, because he was on vacation between June 23, 2008, and July 4, 2008. On July 7, 2008, after reviewing Dr. Gupta’s letter, Dr. Chin’s office wrote to Ms. Skead advising her of an appointment with Dr. Chin on July 23, 2008. Dr. Chin agreed that this was his first attempt to contact Ms. Skead since May 28, 2008, despite his having considered her condition as urgent on May 28, 2008. Dr. Chin acknowledged that the July 23, 2008, appointment was two months after the follow-up appointment originally scheduled for May 23, 2008.

[133] The following evidence from the examination for discovery of Dr. Chin was read into the record at the conclusion of the plaintiff’s case:

Question 26:

Q. In 2008 were you familiar with VKH?

A. Yes, I’m familiar with VKH.

Question 168:

Q. Did you speak to Dr. Wiebe yourself?

A. No, I did not and she did not call me either so.

Question 170:

Q. You agree with me the letter raises a very serious concern about Ms. Skead’s visual condition?

A. Yes. I was surprised that she faxed me a letter. Why didn’t she make the appointment for the patient?

Question 177:

Q. Did you regard this letter as creating an urgent need to see Allison?

A. It was a concern. It was a concern. And so that’s why we initiated the call. Usually we would try to....

Question 178:

Q. I’m not asking usually. Please, if there’s anything you don’t understand... I didn’t ask that. Just answer the question.

A. This is a concern. It’s a concern.

Question 179:

Q. Did you regard this as an urgent situation requiring urgent action?

A. I suspect I – yes.

DR. JANINE JOHNSTON

[134] Dr. Johnston completed her residency in neurology in 1987 and clinical and research fellowships in neuro-ophthalmology in 1990. She was licensed to practice medicine in Manitoba in 1990 and has had a clinical practice in Winnipeg as a neuro-ophthalmologist continuously since then.

[135] Neurology is the study of the central and peripheral nervous systems; neuro-ophthalmology is the study of the neurology of the eye.

[136] In 2008, Dr. Johnston accepted patients only by referral. She explained that her office received consults primarily by fax and that she was responsible for reviewing consults and deciding on the timing of an appointment in response to consults. Appointments were booked by her assistants subsequent to Dr. Johnston’s triage of the referrals.

[137] Dr. Johnston first learned of Ms. Skead on May 23, 2008, when she and Dr. Borys had a brief “hallway” conversation about her. At that time, Dr. Borys mentioned to Dr. Johnston that he had a patient “who had optic neuritis” and asked if Dr. Johnston could see her.

[138] Dr. Johnston received and reviewed Dr. Wiebe’s May 25, 2008 referral letter on May 26, 2008. In this letter, Dr. Wiebe explained to Dr. Johnston that Dr. Chin had not found any ophthalmological abnormalities when he assessed Ms. Skead and that Dr. Chin’s differential diagnosis was optic neuritis. Dr. Johnston explained that optic neuritis is a broad term describing an inflammatory process involving the optic nerve and that it is an “urgent, not emergent” condition that she saw frequently.

[139] Dr. Wiebe further advised Dr. Johnston of the findings of her examination of Ms. Skead on May 25, 2008, including that Ms. Skead’s vision loss was persistent, that she could now see only a small hazy horizontal slit out of her left eye and that she now had “some blurring of vision on her right eye.”

[140] Dr. Johnston testified that this information “bore no significance” in terms of triaging Dr. Wiebe’s consult as it was “not relevant to the diagnosis of optic neuritis.” Dr. Johnston explained that the “fairly decent visual loss” in Ms. Skead’s left eye was “quite typical of optic neuropathies and optic neuritis.”

[141] Dr. Johnston was asked to comment on Dr. Wiebe having further advised her that an aunt of Ms. Skead suffered from VKH. Dr. Johnston testified that VKH is a condition that neuro-ophthalmologists rarely see. At that time, she knew of the condition and that it caused a chronic uveitis, an inflammation of the uveal tract and that it did not cause optic neuritis.

[142] Dr. Johnston testified that this information “bore no significance whatsoever” and that this family history in a non-first degree relative was “not relevant” in her triaging of this consult. She explained that this information did not change the fact that “this was an optic neuropathy and it was still urgent, but not emergent.”

[143] On May 26, 2008, after triaging Dr. Wiebe’s consult as urgent, Dr. Johnston noted on the LWDH fax cover sheet as an instruction to her staff, “can we book on Thurs EMR?” Dr. Johnston’s time frame for an urgent appointment was two to three weeks. Dr. Johnston explained that it is her practice to reserve openings in her bookings for urgent or emergent cases and that Thursday, May 29, 2008, was her next available opening for an appointment for Ms. Skead.

[144] On May 26, 2008, or shortly thereafter, Dr. Johnston’s staff attempted to reach Ms. Skead by telephone at the number provided in Dr. Wiebe’s letter in order to advise her of the Thursday May 29, 2008 appointment. They were unable to do so because the number was disconnected.

[145] Dr. Johnston received the mailed copy of Dr. Wiebe’s May 25, 2008 letter on May 28, 2008. On this letter, Dr. Johnston noted, “? June 6 @ 10:00.” Dr. Johnston testified that she made this note on May 28, 2008, or sometime thereafter, as an instruction to her assistant to book Ms. Skead on June 6, 2008, at 10:00 a.m. upon learning that Ms. Skead could not be scheduled for the May 29, 2008 appointment and knowing that June 6, 2008, was the next available opening. On cross-examination, Dr. Johnston testified that she did not know when she made this note.

[146] Dr. Johnston testified that as a result of a review of her office telephone records, she understood that her staff contacted the LWDH on June 2, 2008, and obtained an alternate contact name and number for Ms. Skead: “Andy” at (807)468-6685. Dr. Johnston was referred to the handwritten note of her assistant on the hard copy of Dr. Wiebe’s May 25, 2008 letter which reads, “Andy 807 468 6685 left msg. 06/02/08.” Dr. Johnston’s understanding of this note was that her assistant called this number on June 2, 2008, to notify Ms. Skead of an appointment for her on June 6, 2008, at 10:00 a.m. and left a message with “Andy.”

[147] Dr. Johnston confirmed that another two-minute telephone call was placed from her office to (807)468-6685 on June 5, 2008, at 9:40 a.m. Dr. Johnston was then referred to the June 5, 2008 note of her office assistant Sandra Illsley, which reads as follows:

Spoke with someone she wouldn’t tell me who, she said she would get a hold of Allison to call us. I also told her it was urgent that she contact us.

[148] Dr. Johnston understood this note to mean that on June 5, 2008, Ms. Illsley left a message with a person who preferred to remain anonymous that Ms. Skead was to contact her office and that it was urgent she do so.

[149] As her office was unable to reach Ms. Skead directly by telephone to arrange an appointment, Dr. Johnston directed Ms. Illsley to write to Ms. Skead on June 5, 2008, which she did. That letter read as follows:

Dr. Johnston was asked by Dr. Wiebe and Dr. Borys to see you on an urgent basis. Unfortunately, the phone number I have for you is no longer in service. We would like to book this appointment for you as soon as possible, can you please contact our office upon receipt of this letter to schedule this appointment?

[150] Ms. Skead did not contact Dr. Johnston’s office in response to the June 5, 2008 letter. Dr. Johnston’s office was unable to book Ms. Skead for an appointment on June 6, 2008.

[151] Dr. Johnston was next contacted about Ms. Skead on June 10, 2008, when she received a telephone call from Dr. Young, an ER doctor at the LWDH. Dr. Johnston’s notes from her conversation with Dr. Young were:

Progressive vision loss in both eyes, chronic uveitis ruled out (Dr. Chin), red eye from rubbing them.

[152] Dr. Johnston explained that this information informed her that Ms. Skead “likely had an optic neuritis and that there was no uveitis associated with it.” On June 10, 2008, Dr. Johnston still regarded Ms. Skead’s condition as an “urgent case for optic neuritis.” Dr. Johnston confirmed that a June 17, 2008, 3:00 pm appointment was booked for Ms. Skead through the LWDH on June 10, 2008. This was Dr. Johnston’s next available appointment for an urgent patient.

[153] On June 16, 2008, Dr. Young faxed Dr. Johnston and confirmed Ms. Skead’s appointment for the following day. He advised Dr. Johnston that Ms. Skead had attended the LWDH ER again that day. Dr. Young provided Dr. Johnston with Ms. Skead’s MRI, history, physical and integrated progress notes from the HSC, which Dr. Johnston reviewed on June 16, 2008.

[154] Dr. Johnston examined Ms. Skead on June 17, 2008. As a result of and immediately following her examination of Ms. Skead, Dr. Johnston telephoned Dr. Roy in order to have Dr. Roy see Ms. Skead as soon as possible. Dr. Johnston was unable to reach Dr. Roy by telephone. She therefore faxed a consult letter to Dr. Roy that day, in which she summarized the findings of her examination of Ms. Skead.

[155] Dr. Johnston advised Dr. Roy that Ms. Skead’s history dated back to April 27, 2008, at which time Ms. Skead experienced a blurring of vision in her left eye. Dr. Johnston described this as a loss of vision below the midpoint and toward her temple with a distortion of vision surrounding the area of vision loss.

[156] Dr. Johnston noted that, over the course of the following two days, Ms. Skead developed further vision loss in the same eye, above the midline and towards her nose and that the two areas of vision loss then merged to include the whole of the visual field in her left eye. Dr. Johnston next noted that over the course of approximately 10 days, Ms. Skead was left with a small sliver of vision in her left eye.

[157] Dr. Johnston further advised Dr. Roy that the HSC records indicated that Ms. Skead had “a left relative afferent pupillary dysfunction [left pupil not reacting as well to light] with bilateral conjunctive injection.” Dr. Johnston explained to the court that “this is typical for an optic nerve problem. Not a retinal problem, an optic nerve problem”.

[158] Dr. Johnston also advised Dr. Roy that Ms. Skead had a “strong family history of VKH syndrome in two aunts and a great-aunt.”

[159] Dr. Johnston’s June 17, 2008 examination of Ms. Skead revealed that Ms. Skead had NLP in her right eye and could only see HM below the midline in her left eye and no HM above the midline with significant inflammation in the anterior segments of both eyes.

[160] When asked to comment on the significance of her findings from her June 17, 2008 examination of Ms. Skead, Dr. Johnson testified as follows:

Well…she did in fact have uveitis despite the fact that I had been told otherwise. And there was a lot of inflammatory changes at the front of both eyes and that she had visual loss that was worse in the right eye and that the right optic nerve was very, very pale which suggest it had been damaged at least four to six weeks prior.

[161] Dr. Johnston’s assessment of Ms. Skead’s condition on June 17, 2008, was “severe uveitis and optic neuropathy. The assessment at that time would have been most likely VKH, although the differential diagnosis was exceedingly broad.”

[162] Dr. Johnston telephoned Dr. Young at the LWDH immediately after her examination of Ms. Skead, explained her findings and asked Dr. Young to begin the maximum dose of intravenous steroids for Ms. Skead as an anti-inflammatory treatment.

[163] During her examination of Ms. Skead, Dr. Johnston did not have any concerns with respect to Ms. Skead’s ability to either convey information to her or understand information Dr. Johnston provided to Ms. Skead. Ms. Skead and/or her mother provided Dr. Johnston with Isabel Seymour’s home telephone number and cell number to assist Dr. Roy in contacting Ms. Skead in the future.

[164] Dr. Roy saw Ms. Skead on June 20, 2008, and called Dr. Johnston later that day to discuss the results of her findings. It was agreed that Dr. Roy would follow-up with Ms. Skead in one week and that Dr. Johnston would see her again on July 10, 2008.

[165] Dr. Johnston re-examined Ms. Skead on July 10, 2008, and summarized her findings from that day in a July 14, 2008 letter to Dr. Roy. Dr. Johnston advised Dr. Roy that Ms. Skead now had complete vision loss in both eyes. Dr. Roy re-assessed Ms. Skead on July 28, 2008, and arranged another follow-up appointment for Ms. Skead with Dr. Johnston one month later. However, Ms. Skead did not see Dr. Johnston again.

[166] During cross-examination, Dr. Johnston was referred to her June 17, 2008 referral letter to Dr. Roy in which she advised Dr. Roy that “of particular note is a strong family history of VKH syndrome in two aunts and a great-aunt” of Ms. Skead. Dr. Johnston disagreed that this statement contradicted her evidence on direct examination when she testified that Ms. Skead’s family history of VKH was not relevant when she triaged Dr. Wiebe’s May 25, 2008 referral letter on May 26, 2008.

[167] Dr. Johnston explained that this history “was not relevant in the context of an optic neuritis” but that it becomes relevant “when you see a patient who has uveitis…otherwise, VKH is not even considered within the differential diagnosis.” Dr. Johnston conceded that in 2008 she was aware that VKH could cause permanent vision loss.

[168] Dr. Johnston’s May 26, 2008 review of Dr. Wiebe’s May 25, 2008, referral letter reminded her of her May 23, 2008, conversation about Ms. Skead with Dr. Borys. On cross-examination, Dr. Johnston agreed that her conversation with Dr. Borys and her review of this letter provided her with the following information about Ms. Skead as of May 26, 2008:

• That Ms. Skead had a “few weeks” history of progressive vision loss in her left eye;

• That Ms. Skead was suffering from new onset vision problems in her right eye;

• That Ms. Skead had a family history of VKH;

• That Dr. Borys was concerned about Ms. Skead; and,

• That she considered Dr. Wiebe’s consultation request urgent.

[169] On cross-examination, Dr. Johnston maintained that she reviewed Dr. Wiebe’s letter during her lunch hour on May 26, 2008, and at that time noted on it, “can we book on Thurs EMR?” Dr. Johnston conceded that she did not have a memory of speaking to her staff about booking an appointment for Ms. Skead during the week of May 26, 2008; however, she insisted that it was not possible that she did not do so.

[170] Dr. Johnston testified that she “would have” simply handed the fax cover sheet to her staff after she had written her note on it asking her staff if they could book Ms. Skead for Thursday May 29, 2008. Dr. Johnston conceded that she did not know what, if any, efforts her staff made to contact Ms. Skead on May 27, 28, 29 or May 30, 2008. Dr. Johnston testified that she herself made no attempt to contact anyone involved in the care of Ms. Skead until her call to Dr. Young on June 17, 2008.

[171] On cross-examination, Dr. Johnston was referred to the hard copy of Dr. Wiebe’s May 25, 2008, letter to her and the handwritten note “Not in service” next to Ms. Skead’s telephone number on that letter. Dr. Johnston agreed that she did not know when the call from her office to that number was made. Dr. Johnston also agreed that her office made no other phone calls relating to Ms. Skead until June 2, 2008 – one week after receiving Dr. Wiebe’s consult request. Dr. Johnston acknowledged that she did not know if her office staff attempted to get any other contact information for Ms. Skead prior to June 2, 2008.

[172] Dr. Johnston was then referred to a second notation on the same letter, which read, “Andy 807-468-6685 left message 06/02/08”. Dr. Johnston could not say whether this was a voicemail message or whether her staff spoke to a person at this number on June 2, 2008. Dr. Johnston acknowledged that her office did not attempt to contact “Andy” on June 3 or 4, 2008, and did not write to Ms. Skead on June 2, 3 or 4, 2008.

[173] Dr. Johnston conceded that it appeared from the above evidence that her office called Ms. Skead during the week of May 26, 2008, learned that her number was not in service and then made no attempt to obtain further contact information for Ms. Skead until June 2, 2008. Dr. Johnston, however, did not agree that waiting one week before attempting to get alternate contact information for an urgent consultation was unreasonable.

[174] Dr. Johnston agreed that the June 5, 2008 letter to Ms. Skead was the first letter sent to Ms. Skead by her office.

[175] Dr. Johnston was referred to her June 10, 2008 telephone conversation with Dr. Young at the LWDH and his letter to her the same day. She agreed that she offered Ms. Skead a June 17, 2008 appointment that day.

[176] Dr. Johnston confirmed on cross-examination that when she examined Ms. Skead on June 17, 2008, she diagnosed her with bilateral vision loss secondary to panuveitis and possible VKH. That same day, Dr. Johnston asked Dr. Roy to see Ms. Skead on an urgent basis and asked Dr. Young to immediately begin a five-day course of intravenous steroids. Dr. Johnston agreed that Ms. Skead attended at the LWDH to receive this treatment on June 17, 18, 19, 20 and 21, 2008, and saw Dr. Roy on June 20, 2008.

[177] Dr. Johnston agreed that she assessed Dr. Wiebe’s May 25, 2008 letter as a consultation request for an optic neuritis – an inflammation of the optic nerve which she preferred to describe as an optic neuropathy and which can be caused by an infectious process and an inflammatory process. Dr. Johnston did not agree that Ms. Skead’s optic neuropathy was an inflammatory process when she examined her on June 17, 2008.

[178] Dr. Johnson explained her position in the following terms:

It was an optic neuropathy not an optic neuritis and that makes a big difference…so that’s the whole key to this thing though is that failure to understand that it was an optic nerve problem back in the early parts of May.

[179] Dr. Johnston testified that the unconfirmed diagnosis of optic neuritis on May 25, 2008, did in fact rule out uveitis – “from the examination that I was given uveitis had been ruled out … Dr. Chin ruled out uveitis.” Dr. Johnston felt that there had been a working diagnosis of optic neuritis on May 25, 2008.

[180] Dr. Johnston was referred to the handwritten note she had made on the June 5, 2008 letter from her office to Ms. Skead – progressive vision loss O.U., chronic uveitis ruled out (Dr. Chin). Dr. Johnston agreed that these notes were made contemporaneously with her June 10, 2008 conversation with Dr. Young, whom she knew to be an ER physician at the LWDH.

[181] Dr. Johnston agreed that when she and Dr. Young spoke on June 10, 2008, he did not have Dr. Chin’s ophthalmology report and she did not know when Dr. Chin had seen Ms. Skead. Dr. Johnston also agreed that Dr. Chin’s report was not contained within the HSC records she received. Dr. Johnston acknowledged that Dr. Wiebe’s May 25, 2008, letter informed her, incorrectly that Dr. Chin had assessed Ms. Skead while she was in the HSC sometime prior to May 15, 2008. In fact, Dr. Chin assessed Ms. Skead on May 9, 2008, in his office.

[182] It was suggested to Dr. Johnston that she was incorrect when she noted on her June 5, 2008 letter that Dr. Chin had ruled out chronic uveitis. Dr. Johnston testified that the note was “written directly from what I was told by Dr. Young, as he’s talking, I am writing.” Dr. Johnston testified that Dr. Young, Dr. Wiebe in her May 25, 2008 letter and Dr. Borys on May 23, 2008 “all…said the same thing.” Dr. Johnston did not call Dr. Chin to directly confirm information about his assessment of Ms. Skead.

[183] It was suggested to Dr. Johnston that she concluded that Dr. Chin had “conclusively ruled out chronic uveitis despite not even seeing a shred of paper from Dr. Chin nor even asking for it.” Dr. Johnston testified as follows:

I have to rely on what I’m being told by my colleagues. I cannot second guess every colleague that talks to me and gives me information…if I did that with every urgent patient that walked in the door I wouldn’t get any further. So I have to accept what Dr. Borys said to me, what Dr. Wiebe said in her letter, what Dr. Young told me over the phone. I have to accept that as being true.

[184] According to Dr. Johnston, the information which she relied on in concluding that Dr. Chin had ruled out chronic uveitis was as accurate as it could be at the time. Dr. Johnston also testified that she suggested to Dr. Young that he send Ms. Skead back to see Dr. Chin “because that would be the most logical thing to do.”

[185] On re-examination, Dr. Johnston was referred to Dr. Young’s June 10, 2008 letter to her in which Dr. Young advised Dr. Johnston that he would “send along a copy of [Ms. Skead’s] MRI from HSC” and a copy of Dr. Chin’s ophthalmology report “when it becomes available.” Dr. Johnston testified that she and Dr. Young did in fact discuss having further information about Ms. Skead’s condition sent to her.

[186] The following evidence from the examination for discovery of Dr. Johnston was read into the record at the conclusion of the plaintiff’s case:

Q. Did you attempt to contact Dr. Wiebe after you received this fax of May 25 of 2008?

A. No.

THE PLAINTIFF’S EXPERTS

DR. ALAN R. BERGER

[187] Dr. Berger was licensed to practice medicine in Ontario in 1983 and was certified as a specialist in ophthalmology in 1987. Dr. Berger then completed a two-year vitreo-retinal fellowship. He began practicing as a vitreo-retinal surgeon and retina specialist in 1989. Dr. Berger estimated that he had seen more than 100,000 patients over the course of his career as a vitreo-retinal specialist.

[188] Between 1989 and 2002, Dr. Berger practiced at Sunnybrook Health Sciences Centre (“Sunnybrook”) in Toronto where he was the only vitreo-retinal surgeon on staff. During this time, his practice was restricted to the management of patients with retinal diseases and related surgery. His responsibilities at Sunnybrook also included the teaching and training of the ophthalmology group and medical students and providing lectures for family and emergency physicians.

[189] From 2002 to the present, Dr. Berger has practiced at St. Michael’s Hospital in Toronto. Between 2002 and 2014, he served as the ophthalmologist-in-chief at St. Michael’s. Dr. Berger’s teaching responsibilities continued during this period, including instructing family and emergency physicians and ophthalmologists as to the standard of care.

[190] Dr. Berger’s practice has included the diagnosis, treatment and management of patients with VKH which he described as an uncommon uveitis syndrome. Dr. Berger estimated that in his career he had diagnosed only six to eight patients with VKH and that five percent of his present practice relates to uveitis. Dr. Berger explained that he now refers patients with VKH to uveitis specialists and that he does not remain actively involved in the management of patients with VKH.

[191] Dr. Berger agreed that he is not a specialist in uveitis or a neuro-ophthalmologist and that he has never trained or practiced as an ER physician.

[192] Dr. Berger has been qualified as an expert in the Ontario Superior Court of Justice on the standard of care of ophthalmologists in two previous cases. In this case, Dr. Berger was qualified as an expert and allowed to provide opinion evidence in the following areas:

1. In the field of ophthalmology;

2. As to the standard of care for ophthalmologists in 2008;

3. As to whether Dr. Chin breached the standard of care for ophthalmologists practicing in 2008;

4. Whether Dr. Johnston breached the standard of care for ophthalmologists practicing in 2008;

5. As to the standard of care for ER doctors relating to the management of patients presenting with sight-threatening visual problems;

6. Whether Dr. Wiebe breached the standard of care for ER doctors for patients presenting with sight-threatening visual problems, such as Ms. Skead;

7. As to the history, treatment and prognosis of patients with VKH generally and as applied to Ms. Skead; and,

8. Whether Ms. Skead would have been left with some useful vision had any of the defendants acted within their respective standards of care.

[193] Dr. Berger testified that VKH is an inflammatory condition of the eye “which if left untreated or is aggressive enough will cause permanent damage resulting in [vision] loss.” He further explained that the recommended treatment for VKH during the acute phase is to initiate treatment with high-dose steroids, an anti-inflammatory, as early as possible in the course of the disease and to maintain high-dose steroids for a period of at least four to six months, adjusting as required depending on the patient’s response to and tolerance of the steroids.

[194] Dr. Berger testified that Ms. Skead’s complaint of blurring and decreased vision in her right eye, when she was seen by Dr. Wiebe in the LWDH ER department on May 25, 2008, was a “new and very critical symptom.” He opined that the uveitis/VKH in Ms. Skead’s right eye, at this point, was in the acute phase. He was unable to provide an opinion as to the stage of the uveitis/VKH in her left eye at the time.

[195] Dr. Berger noted that Dr. Wiebe mentioned Ms. Skead’s aunt having VKH in each of the referral letters to Dr. Johnston and Dr. Chin. He testified that:

VKH certainly shot up the list of possible diagnoses [for Ms. Skead] once the family history was elicited. And certainly once [Ms. Skead] started to develop visual changes in her second eye.

[196] Dr. Berger testified that Dr. Johnston and Dr. Chin who received Dr. Weibe’s consultation requests on May 26 and May 28 respectively, “were the only two … eye specialists who would have significant knowledge and understanding of … VKH.” Dr. Berger testified that once Dr. Chin had received Dr. Wiebe’s letter indicating that Ms. Skead’s right eye was now involved, and once he recognized that VKH was a “possible diagnosis” and that Ms. Skead had cancelled her May 23, 2008 follow-up appointment – Dr Chin should have “made urgent attempts to bring her in.”

[197] Dr. Berger understood that Dr. Chin and his staff made the following efforts to contact Ms. Skead on May 28, 2008 and thereafter, once Dr. Chin had reviewed Dr. Wiebe’s May 25, 2008 referral letter:

• Dr. Chin instructed his staff to schedule a follow-up appointment with Ms. Skead in one to two weeks;

• Dr. Chin’s staff telephoned Ms. Skead on May 28, 2008, at the number she had provided and learned that it was not in service;

• Dr. Chin’s assistant, Ms. Ellis, telephoned and spoke with Ms. Reed the alternate contact on May 28, 2008, and left a message with Ms. Reed to have Ms. Skead contact Dr. Chin’s office; and

• Dr. Chin’s office wrote to Ms. Skead, on July 7, 2008, advising her that she had an appointment with Dr. Chin on July 23, 2008.

[198] Dr. Berger testified that the standard of care for Dr. Chin, given his May 9, 2008 examination of Ms. Skead and the contents of Dr. Wiebe’s referral letter, required him to “make every effort to contact the patient and explain the seriousness of the problem.” Dr. Berger opined that Dr. Chin’s efforts to contact Ms. Skead for an appointment, including leaving a message with Ms. Reed on May 28, 2008, and mailing a letter to Ms. Skead on July 7, 2008, “did not meet the standard expected of someone knowledgeable in the urgency of the situation and VKH disease.”

[199] Dr. Berger testified that the standard of care for Dr. Chin in 2008 as it relates to communicating with a patient is very dependent on the facts. Dr. Berger explained that an ophthalmologist with knowledge of the aggressive nature of VKH and the need for aggressive treatment and “with Dr. Chin being aware that Ms. Skead had VKH certainly every possible effort should have been made to try and bring her in quite urgently.”

[200] Dr. Berger was specifically critical of the fact that Dr. Chin’s office made no further efforts to contact Ms. Skead by telephone after May 28, 2008, and that a letter was not sent to her until July 7, 2008. He was of the opinion that these efforts did not meet the standard of care required in the circumstances.

[201] Dr. Berger explained his opinion as follows:

From my clinical experience, my discussions with other uveitis specialists and from the peer reviewed scientific literature, VKH is a disease where aggressive high-dose systemic therapy has more likely than not had a very probable or potential outcome of retaining good vision. It’s my opinion that had [Ms. Skead] been treated on or about May 26 aggressively I do not think that the left eye would have recovered vision based on how she progressed and the chronology of what we see. But I feel that there was a very reasonable probability that her right eye could have been, the fire could have been put out early with retention of useful vision.

[202] Dr. Berger was asked if he was able to opine on a time frame within which useful vision could have been saved. He replied as follows:

My best estimate is based on her starting to complain of new symptoms in her right eye as of or shortly before May 25. It would have been in her best interests to give her the best possible visual outcome that she would have been treated within several days to a week of her new onset of symptoms in her right eye.

[203] Dr. Berger testified that his use of the term “useful vision” means vision of at least 20/200 central vision acuity, the standard for legal blindness.

[204] Dr. Berger was also of the opinion that Dr. Wiebe breached the standard of care for an emergency physician in her management and treatment of Ms. Skead on May 25, 2008.

[205] Dr. Berger explained that “once [Dr. Wiebe] knew that VKH was a potential diagnosis … it’s my opinion that she needed to speak to an ophthalmologist who understood this disease to gauge how critical it was for the patient to be seen and in what time frame.”

[206] Dr. Berger would not have expected Dr. Wiebe to have initiated therapy. However, in his opinion, Dr. Wiebe breached the standard of care in not “ensuring that [Ms. Skead] was assessed by an ophthalmologist knowledgeable and aware of the importance of aggressive therapy with steroid[s] in someone with VKH.”

[207] Dr. Berger opined that Dr. Wiebe did not meet the standard of care by simply faxing consultation requests to Dr. Chin and Dr. Johnston on May 26, 2008. He testified that “once [Dr. Wiebe] became aware that VKH was a possible or probable diagnosis” she was required to directly call and consult with an ophthalmologist knowledgeable of VKH – as Dr. Snyder and Dr. Young had done.

[208] Dr. Berger further opined that if Dr. Wiebe had attempted but been unable to directly communicate with an ophthalmologist on May 25, 2008, the standard of care required her to explain the urgency of the situation to Ms. Skead and have her admitted to hospital or kept in the ER overnight. In the alternative, Dr. Berger opined that the standard of care required Dr. Wiebe to deliver very clear instructions to Ms. Skead to return to the LWDH the next morning.

[209] Dr. Berger testified that the standard of care required Dr. Wiebe to make every possible effort to ensure that Ms. Skead received timely care by a physician knowledgeable of VKH, specifically, by communicating directly with Dr. Johnston or another ophthalmologist aware of VKH. Instead, Dr. Wiebe delegated this responsibility to Dr. Borys, according to Dr. Berger.

[210] Dr. Berger opined that had Dr. Wiebe spoken directly to an ophthalmologist knowledgeable of VKH and had high-dose steroid treatment been initiated in a timely fashion, there was a “significant probability” that Ms. Skead would have retained “useful vision” in one eye.

[211] Dr. Berger was asked to opine on the instructions given by Dr. Wiebe to Ms. Skead when she was discharged from the LWDH ER on May 25, 2008. Those instructions read:

Notify us if not heard 24h

[212] Dr. Berger testified that the note was “sparse”, but that if it was explained to the patient “how and who she was supposed to communicate to, it sounds reasonable, although [Ms. Skead] doesn’t have a telephone so that might be a concern.” Asked to assume that Dr. Wiebe did not further indicate to [Ms. Skead] whom she was to notify, Dr. Berger opined that “it’s borderline or falls below the standard as to not being clear enough for someone to know exactly what they’re supposed to do in the case they haven’t heard from whoever they were supposed to hear from.”

[213] Dr. Berger testified that Dr. Wiebe’s discharge instructions fell below the standard of care if she failed to leave instructions with the ER staff as to what they were to do if Ms. Skead did in fact call back to the ER as instructed.

[214] Dr. Berger, having reviewed Dr. Wiebe’s notes and the LWDH records, assumed that Dr. Wiebe’s discharge plan was to have Dr. Borys contact Dr. Johnston about Ms. Skead the following day and for Dr. Johnston to determine when she was going to examine Ms. Skead. Dr. Berger’s opinion was that Dr. Wiebe’s discharge plan “fell below the standard that was required for someone in [Ms. Skead’s] situation.”

[215] Dr. Berger was next asked to comment on the actions of Dr. Johnston in relation to Ms. Skead.

[216] Dr. Wiebe’s May 25, 2008, referral letter to Dr. Johnston included certain key facts, according to Dr. Berger. Dr. Wiebe informed Dr. Johnston, among other things, that:

• Ms. Skead had been recently assessed by Dr. Chin who did not find any ophthalmological abnormalities but who was concerned about possible optic neuritis;

• Ms. Skead’s vision loss had persisted to the point where she now sees only a small hazy horizontal slit out of the left eye;

• Ms. Skead now has some blurring of vision on her right eye; and

• Ms. Skead has a family history of VKH in her aunt.

[217] Dr. Berger acknowledged that having been advised of these facts, Dr. Johnston would not have been able to conclude that Ms. Skead had VKH. However, in Dr. Berger’s opinion, Dr. Johnston’s efforts to contact Ms. Skead for an appointment after receiving this information did not meet the standard of care. Dr. Johnston “fell below the standard of care in not making every effort to ensure that [Ms. Skead] was evaluated in an emergent fashion,” meaning “within a very short period of time,” according to Dr. Berger.

[218] With Dr. Johnston having received Dr. Wiebe’s letter on May 26, 2008, Dr. Berger’s opinion was that the standard of care required that “a same day attempt” be made to contact the patient. Dr. Berger acknowledged that Dr. Johnston’s office promptly attempted to contact Ms. Skead by telephone to bring her in for an appointment on May 29, 2008. Had Ms. Skead been seen on May 29, 2008, this would have been “adequate,” according to Dr. Berger.

[219] Dr. Berger was referred to Dr. Johnston’s office telephone records for June 2008. It is not in dispute that Dr. Johnston’s office contacted the LWDH on June 2, 2008, and then placed calls to Andy Beaver, Ms. Skead’s common law spouse, on June 2 and 5, 2008.

[220] Dr. Berger was asked to assume that Dr. Johnston’s office did not contact the LWDH on May 26, 2008, or at any other time until June 2, 2008, to obtain alternate contact information for Ms. Skead. Dr. Berger opined that Dr. Johnston’s attempts, or the lack thereof, to contact Ms. Skead for an appointment upon her receipt of Dr. Wiebe’s referral letter breached the standard of care in relation to communication with Ms. Skead.

[221] Dr. Berger testified that the standard of care required Dr. Johnston, upon her receipt of Dr. Wiebe’s letter on May 26, 2008, to make “same day attempts” to contact Ms. Skead directly for an appointment and/or to obtain alternate contact numbers and then place daily phone calls to Ms. Skead to try to schedule an urgent assessment.

[222] Dr. Berger was further of the opinion that Dr. Johnston breached the standard of care in not seeing Ms. Skead earlier than June 17, 2008, after being contacted directly about Ms. Skead by Dr. Young on June 10, 2008.

[223] Dr. Berger was asked to consider the June 5, 2008 note of Ms. Illsley, Dr. Johnston’s assistant, which indicated that Ms. Illsley had placed a call to Andy Beaver’s telephone number on June 5, 2008, and spoken with a person who would not identify herself. Ms. Illsley left a message with this person indicating that it was “urgent” that Ms. Skead contact Dr. Johnston’s office. The anonymous party indicated that she would give Ms. Skead the message.

[224] Dr. Berger noted that this message was conveyed “10 or 11 days” after Dr. Johnston had been informed that Ms. Skead had a family history of VKH and “progressive [vision] loss in the second eye.” Dr. Berger’s opinion was that this attempt to contact Ms. Skead also fell below the standard of care required of Dr. Johnston in the circumstances. Dr. Berger was also of the opinion that Dr. Johnston’s delay in assessing Ms. Skead until June 17, 2008, affected her outcome. He testified that, “earlier treatment would have improved [Ms. Skead’s] prognosis and visual outcome.” Dr. Berger testified that Ms. Skead would have had “useful vision for many years” if she had been treated within the standard of care and been administered steroids in a timely fashion.

[225] On cross-examination, Dr. Berger acknowledged that Ms. Skead’s failure to attend her May 23, 2008 follow-up appointment with Dr. Chin was a lost opportunity for him to reassess her visual issues. Dr. Berger also questioned why Ms. Skead did not schedule another appointment with Dr. Chin. Dr. Berger agreed that by providing a phone number that was not in service, Ms. Skead made it difficult for doctors to contact her. He also agreed that Ms. Skead’s failure to follow Dr. Wiebe’s discharge instructions resulted in a lost opportunity for her to be re-assessed.

[226] Dr. Chin’s efforts to re-schedule a follow-up appointment with Ms. Skead are set out in the summary of Dr. Chin’s evidence. Dr. Berger was referred to his April 22, 2014 report in which he stated, contrary to the opinion he gave in direct examination, that Dr. Chin’s office “did appear to make appropriate efforts to reach [Ms. Skead], and I question why [Ms. Skead] did not, herself, try to reach Dr. Chin to arrange another appointment.”

[227] Dr. Berger agreed that his trial testimony was based on the same record and information that he had in 2014. Dr. Berger was unable to say when he changed this opinion or if he advised anyone that he had done so.

[228] Dr. Berger agreed that he had repeatedly referred to Ms. Skead as having a “strong family history” of VKH based on his understanding that Ms. Skead had three family members with VKH. When reminded that Dr. Wiebe’s referral letters to Dr. Chin and Dr. Johnston stated that Ms. Skead had one aunt with VKH, Dr. Berger testified that “a family history is a family history … I guess the use of the word “strong” indicates more than one.” He agreed that Ms. Skead’s aunt would fall within a second-degree family history.

[229] Dr. Berger was taken through the records documenting Ms. Skead’s May 13-15, 2008 hospitalization at the HSC. Dr. Berger agreed that Dr. Borys was one of several specialists who examined Ms. Skead at this time and that he was familiar with her symptoms and the care she had received. Dr. Berger acknowledged that Dr. Borys had reviewed Dr. Chin’s notes and had spoken with Dr. Chin about Ms. Skead. He also acknowledged that Dr. Borys was Ms. Skead’s consulting neurologist and that Dr. Borys agreed with Dr. Hitchon’s discharge of Ms. Skead given the anticipated follow-up with Dr. Chin on May 23, 2008.

[230] Dr. Berger was aware that Dr. Borys knew of Ms. Skead’s follow-up appointment of May 23, 2008, with Dr. Chin. He agreed that the May 15, 2008, HSC discharge note included the following direction to Ms. Skead:

To follow up with Dr. Chin (ophthalmology) in one week. Pt has her appointment record.

[231] Dr. Berger further acknowledged that the HSC Physician’s Order Sheet for May 15, 2008, included the following entry:

Follow up in 1 week with Dr. D. Chin Friday May 23 at 2:15 pm.

[232] Dr. Berger also acknowledged that the May 15, 2008 HSC Discharge Information Sheet for Ms. Skead noted as “Follow-up Plans” that Ms. Skead was to “follow up in 1 week with Dr. Chin.”

[233] Dr. Berger was referred to the following statement in his report of January 14, 2019:

I have reconsidered my statement specifying that June 10, 2008, was a date on which therapy would have, more likely than not, prevented Ms. Skead from being left completely blind, as I feel that Dr. Young’s examination seemed to indicate that there was already significant uveitis in her right eye at that time. I am of the opinion that had Ms. Skead received treatment on or before May 31, 2008, more likely than not she would have been able to retain functional vision in her right eye.

[234] Dr. Berger agreed that he had changed his opinion such that his current opinion was that treatment for Ms. Skead would have had to have started sometime between Sunday May 25 and Saturday May 31, 2008, to give Ms. Skead the best possible opportunity to retain vision in her right eye.

[235] Dr. Berger agreed that there is nothing in the LWDH intake records for Ms. Skead for May 25, 2008, indicating that she attended the hospital that day because of vision loss. In reviewing LWDH Emergency Records for May 25, 2008, Dr. Berger acknowledged the following facts as being accurate:

• Ms. Skead arrived at 9:27 a.m. and was discharged at 5:45 p.m.;

• Dr. Wiebe obtained Ms. Skead’s records from the HSC and pulled her previous chart from the LWDH;

• Dr. Wiebe assessed Ms. Skead on three separate occasions that day;

• Dr. Wiebe noted that Ms. Skead had undergone a recent extensive workup which included being examined by an ophthalmologist; and

• Ms. Skead missed a follow-up with Dr. Borys but had been talking with him by telephone.

[236] Dr. Berger agreed that it was entirely appropriate for Dr. Wiebe to have sought out Dr. Borys at home on a Sunday when he was not on call to discuss Ms. Skead’s case. He acknowledged that on May 25, 2008, Dr. Wiebe and Dr. Borys developed a plan for Ms. Skead’s care. This plan included having Ms. Skead see both Dr. Johnston and Dr. Chin who had seen her previously. Also included in this plan was for Dr. Borys to speak directly with Dr. Johnston because he knew her personally and had, in fact, chatted with Dr. Johnston about Ms. Skead the previous week. Dr. Berger also agreed that this plan included Dr. Wiebe writing the referral letters to Dr. Johnston and Dr. Chin.

[237] Dr. Berger was referred to Dr. Wiebe’s May 25, 2008 referral letter to Dr. Chin wherein Dr. Wiebe advised Dr. Chin that Ms. Skead “has also complained of some slight blurring of her vision, on the right, though this decreased with treatment of her headache”. Dr. Berger conceded that this indicated that there had not been a progression of the loss of vision in the right eye during the course of May 25, 2008, and that, in fact, there had been some improvement.

[238] On cross-examination, Dr. Berger agreed that Dr. Wiebe’s discharge instructions provided to Ms. Skead on May 25, 2008 – “notify us if not heard within 24h” – were “clear” instructions to Ms. Skead to contact the LWDH if she had not heard from Dr. Chin, Dr. Borys or Dr. Johnston within 24 hours. Dr. Berger acknowledged that Ms. Skead did not follow these discharge instructions and did not return to the LWDH on May 26, 2008.

[239] Dr. Berger was not aware that Ms. Skead had, in fact, received a message to which she had not responded – that Dr. Johnston’s office was attempting to contact her. He agreed with the suggestion that he would have expected her to respond to this message. He was also not aware that Dr. Johnston did not provide on-call services in 2008, was not on any hospital staff and practiced only on Mondays, Tuesdays and Thursdays.

[240] Dr. Berger acknowledged that when Dr. Johnston was triaging Dr. Wiebe’s referral of Ms. Skead for the purpose of scheduling an appointment for her, she had no more information in exercising her judgement than the information in Dr. Wiebe’s referral letter and any information she had received from Dr. Borys. Dr. Berger readily agreed that the exercise of clinical judgement is a fundamental aspect of the practice of medicine and that different doctors may exercise their judgement in different but acceptable ways.

[241] Dr. Berger conceded that Dr. Hodge, the defendants’ expert and a uveitis specialist, has more experience than he does in diagnosing, treating and managing VKH. Dr. Berger accepted as “a possibility but not necessarily a probability” the suggestion that even if Ms. Skead had received intravenous steroids on or before May 31, 2008, she would have continued to lose vision over time given the particular nature of her disease.

[242] Dr. Berger agreed with Dr. Hodge as to the importance of patients with VKH being compliant with prescribed steroid treatment in order to achieve the best possible outcome. In 2008, steroids were the “drug of choice” for treating VKH, according to Dr. Berger.

[243] Dr. Berger was aware that Ms. Skead had been treated by Dr. Roy, a uveitis specialist, after June 20, 2008, until sometime in 2010. He agreed that compliance is an important consideration in relation to steroid treatment for VKH and outcome and that Dr. Roy would have explained to Ms. Skead the importance of compliance with steroid therapy and evaluated the ongoing benefit of this therapy to Ms. Skead.

[244] Dr. Berger acknowledged that Ms. Skead had, at times, been non-compliant with steroid treatment prescribed for her after June 2008 and that her non-compliance could have had an adverse effect on her outcome. Dr. Berger specifically acknowledged Dr. Roy’s note of January 5, 2009 which indicated that Ms. Skead “ran out” of Prednisone approximately two months previously and her note of April 2, 2009 which indicated that Ms. Skead also “ran out” of Prednisone “1 month ago or longer.”

[245] It was suggested to Dr. Berger, given Ms. Skead’s history of limited compliance with steroid treatment after June 2008, that retention of functional vision over time was unsustainable. Dr. Berger testified that this was “an interesting theory and is certainly a possibility.” However, Dr. Berger went on to explain that a patient’s motivation to remain compliant with treatment is partially a function of the patient experiencing a benefit from the treatment.

[246] In response to this explanation, Dr. Berger was again referred to Dr. Roy’s notes and acknowledged that Dr. Roy assessed Ms. Skead’s left eye at 20/200-1 on April 27, 2009, which he agreed was “functionally better than light perception and no light perception vision,” a better result than she had in the past and which he agreed could be lost with non-compliance.

[247] Dr. Berger was referred to Dr. Johnston’s June 17, 2008 consultation letter to Dr. Roy, which summarized the findings of her examination of Ms. Skead that day and which included her finding that Ms. Skead’s “right optic nerve appeared swollen and pale.” Dr. Berger agreed that this finding is consistent with damage to the optic nerve caused by an interruption of the blood supply to the optic nerve.

[248] Dr. Berger agreed that the interruption of the blood supply to the optic nerve would have occurred approximately three to four weeks prior to the optic nerve turning pale. He conceded that there is “no likelihood of good or excellent visual recovery” from such an occurrence.

[249] In re-examination, Dr. Berger was referred to a Discharge Summary from the LWDH, transcribed April 29, 2009. Included in this summary is the following statement:

After her follow-up appointment with Dr. Roy yesterday, [Ms. Skead] was told that the complications of the Prednisone and the disease would likely lead her to being blind.

[250] Dr. Berger testified that in his experience if a patient is told that they are going blind and that a treatment is not going to help, the patient is potentially less compliant with taking the drug particularly if the drug causes complications.

DR. EDWIN R. BRANKSTON

[251] Dr. Brankston has been licensed to practice medicine in Ontario since 1977. He practiced family medicine in Oshawa from 1977 to 2001 and was also a part-time ER physician at the Oshawa General Hospital from 1977 to 1995. Dr. Brankston estimated that he saw approximately 20,000 ER patients during that period of time. Dr. Brankston also worked fulltime as a hospitalist from 2001 to 2005.

[252] In 2006, Dr. Brankston re-entered family practice and again worked as a part-time ER physician in Oshawa from 2007 to 2012. In 2012, he gave up his ER practice in Oshawa and began to do part-time ER work in Haliburton.

[253] Over the course of his career as an ER physician, Dr. Brankston estimated that he had seen hundreds of patients with emergent or urgent visual problems requiring him to interact with ophthalmologists and neurologists on a regular basis. Dr. Brankston testified that he has been qualified as an expert in the Ontario Superior Court of Justice “many times.”

[254] Dr. Brankston was qualified as an expert and allowed to provide opinion evidence in the following areas:

1. The field of emergency medicine;

2. As to the standard of care of ER physicians practicing in Ontario in 2008 generally and as related to;

a) The management of patients with issues that could require urgent treatment;

b) Conducting differential diagnosis;

c) Obtaining consultations, including follow-ups;

d) Communications with patients, including discharge instructions and follow-ups;

e) The referral of patients to consultants.

3. Whether Dr. Wiebe breached the standard of care of an ER physician in her care and management of Ms. Skead.

[255] Dr. Brankston opined that Dr. Wiebe breached the standard of care in her treatment and management of Ms. Skead on May 25, 2008.

[256] Dr. Brankston testified that after Dr. Wiebe learned of Ms. Skead’s deteriorating visual condition, including the right eye involvement as of May 25, 2008, and was advised of her family history of VKH, which she researched online, she was required to have called back Dr. Borys to advise him of and discuss with him Ms. Skead’s family history of VKH in the context of her overall presentation. If Dr. Borys was uncertain how to proceed in light of this family history, Dr. Wiebe was required to have tried to reach Dr. Johnston to discuss the issue with her, failing which Dr. Wiebe should have discussed the issue with the ophthalmologist on call in Winnipeg, according to Dr. Brankston.

[257] Dr. Brankston opined that Ms. Skead’s family history of VKH was sufficiently significant to require Dr. Wiebe to have a direct telephone consultation with one of these consultants to obtain advice as to the urgency with which Ms. Skead’s vision issues should be assessed. If Dr. Wiebe had been unable to speak directly with any of these consultants on May 25, 2008, Dr. Wiebe should have held Ms. Skead in the ER until she was able to do so, something which is “routinely done.”

[258] Dr. Brankston described Dr. Wiebe’s failure to do so as a “communication breach of the standard of care,” opining that the standard of care in this situation requires that the ER physician speak directly with the consultant, particularly where, as in this case, the ER physician is unsure of a possible diagnosis and there is a situation of possible urgency.

[259] Dr. Brankston was referred to Dr. Wiebe’s May 25, 2008 referral letters to Dr. Johnston and Dr. Chin. He testified that once Dr. Wiebe became aware of Ms. Skead’s family history of VKH and then learned of the need for urgent management, simply faxing consultations was inappropriate. He stressed that the benefit of a direct conversation between the ER physician and the consultant is that the ER physician ends the conversation with a definite appointment for the patient to be assessed by the consultant within a time frame deemed appropriate by the consultant.

[260] Dr. Brankston was also of the opinion that as the MRP for Ms. Skead on May 25, 2008, Dr. Wiebe breached the standard of care in delegating to and relying on Dr. Borys to make the direct contact with Dr. Johnston.

[261] In cross-examination, Dr. Brankston testified that he had reviewed approximately 50 medical malpractice cases per year in the last 25 to 30 years.

[262] Dr. Brankston agreed that the exercise of clinical judgement – the product of a physician’s knowledge, training and experience – is a fundamental aspect of the practice of medicine and that the person best able to exercise that judgement is the physician assessing the patient. Dr. Brankston also agreed that VKH is a very rare disease, unknown to the vast majority of ER physicians including himself.

[263] Dr. Brankston was referred to the May 25, 2008 LWDH Emergency Record for Ms. Skead. He was aware that Ms. Skead had advised Dr. Wiebe that she recently had contact with Dr. Borys, that she had missed a follow-up appointment with Dr. Borys but had been talking with him. Dr. Brankston agreed that Dr. Borys was “probably” Ms. Skead’s current treating neurologist and that he was identified by Ms. Skead as a physician of recent primary contact for her. He agreed that it was appropriate for Dr. Wiebe to have called and talked with Dr. Borys on May 25, 2008. Dr. Brankston acknowledged that Dr. Wiebe assessed Ms. Skead three times on May 25, 2008, and obtained her HSC records and her previous LWDH chart.

[264] Dr. Brankston was next referred to Dr. Wiebe’s May 25, 2008 referral letter to Dr. Johnston. He was aware from this letter that Dr. Borys had already spoken to Dr. Johnston about Ms. Skead prior to May 25, 2008, and that Dr. Borys would be speaking with her again on May 26, 2008, specifically, about Dr. Wiebe’s referral of Ms. Skead to Dr. Johnston. Dr. Brankston was also aware that this letter, which advised Dr. Johnston of Ms. Skead’s family history of VKH, was faxed to Dr. Johnston’s office on May 26, 2008.

[265] Dr. Brankston agreed with the suggestion that this was, in fact, a doctor to doctor communication: Dr. Borys had spoken with Dr. Johnston the previous week, Dr. Borys had spoken with Dr. Wiebe and Dr. Borys told Dr. Wiebe that he would speak with Dr. Johnston the next day because he knew her personally. Dr. Brankston, however, disagreed with “the manner” in which it was done because “Dr. Wiebe at the time was [Ms. Skead’s] MRP, not Dr. Borys.”

[266] Dr. Brankston explained that he did not know if Dr. Borys had spoken with Dr. Johnston on May 26, 2008. He further explained that upon learning of Ms. Skead’s family history of VKH and that it was a possible diagnosis which required urgent treatment, the standard of care required Dr. Wiebe to contact Dr. Borys again, directly to discuss the implications of this new information and if Dr. Borys was unavailable, Dr. Johnston directly.

[267] Dr. Brankston acknowledged that no further medical treatment would have been provided to Ms. Skead if she had been kept overnight in the ER at the LWDH on May 25/26, 2008.

[268] In summary, Dr. Brankston agreed:

• that Dr. Wiebe recognized the need to consult a specialist about Ms. Skead;

• that on May 25, 2008, Dr. Wiebe spoke directly with Dr. Borys, who was identified by Ms. Skead as a primary physician contact;

• that it was arranged that Dr. Borys would speak directly to Dr. Johnston; and

• that Dr. Wiebe sent out the required referral letters in a timely fashion.

THE DEFENDANTS’ EXPERTS

DR. WILLIAM HODGE

[269] Dr. Hodge graduated from McGill University medical school in 1988, completed his residency in ophthalmology in 1993 and his subspecialty training in uveitis in 1995. Dr. Hodge also has a Ph.D. in epidemiology and biostatisitics. He served as the President of the Canadian Uveitis Society between 2005 and 2010 and has published and taught extensively in the field of uveitis.

[270] Between 1995 and 2008, Dr. Hodge was the only uveitis specialist serving the Ottawa/Gatineau regions, an area which encompassed approximately 1.2 million people. As the only uveitis specialist, he diagnosed, treated and managed all VKH patients within this catchment area. Subsequent to 2008, Dr. Hodge continued his practice, including the diagnosis, treatment and management of VKH patients, in London, Ontario.

[271] Throughout his career in Ottawa and London, Dr. Hodge has served as the on-call ophthalmologist for ER departments, averaging between six and 12 weeks of call per year. This has included advising ER physicians on triaging and managing patients presenting with acute vision problems.

[272] Dr. Hodge testified that he is familiar with the medical literature, the timing of treatment and prognosis of VKH.

[273] Dr. Hodge was qualified as an expert and allowed to provide opinion evidence in the following areas:

1. Ophthalmology and uveitis, including VKH;

2. The standard of care for ophthalmologists in 2008;

3. Whether Dr. Chin breached the standard of care for ophthalmologists in 2008;

4. Whether Dr. Johnston breached the standard of care in 2008;

5. The standard of care for ER physicians in relation to the management of patients with sight-threatening visual problems;

6. Whether Dr. Wiebe breached the standard of care for ER physicians;

7. The diagnosis, history, treatment and prognosis for patients with VKH generally and in relation to Ms. Skead;

8. Whether or not Ms. Skead’s blindness would have been avoided had the defendants acted within their respective standards of care; and,

9. Evidence-based medicine.

[274] Dr. Hodge explained that VKH is a severe ocular inflammation that typically causes a chronic panuveitis, which he described as an inflammation in the eyeball. VKH affects both eyes but can be asymmetrical. Dr. Hodge testified that VKH manifests itself differently in each patient. In his opinion, approximately 20% of patients do very well, approximately 60% of patients “have a lot of trouble” with treatment and management being “a battle”, and 20% of patients “seem to have a catastrophic course, who just have such severe inflammation that it’s very hard to control and it’s very hard to save vision.” This latter group includes “a lot of Indigenous Canadians,” who, according to Dr. Hodge, “have a real tough time with uveitis and VKH.”

[275] Dr. Hodge described the four phases of VKH as follows:

1. The prodromal phase – lasting one to two weeks with patients experiencing primarily neurologic problems, such as neck pain and headaches and typically without inflammation in the eye;

2. The acute phase – lasting an average of three to six weeks typically starts slowly and accelerates with the eye now becoming involved with inflammation in the eye, possible swelling of the retina and optic nerve and vision field abnormalities;

3. The chronic phase – lasting potentially for the patient’s entire life characterized by a “grumbling, low to mid-grade inflammation” in the eye controlled by medication; and

4. The recurrent phase – running concurrently with the chronic phase potentially for the patient’s entire life characterized by recurrent acute attacks of inflammation which can affect the structures of the eye and vision.

[276] Dr. Hodge explained that the recurrent attacks that occur during the chronic/recurrent phase affect both the front and back of the eye resulting in a uveitis which can be “very aggressive … persistent and … very hard to control.” The recurrent attacks of inflammation cause scarring and damage the eye structures thereby reducing vision.

[277] Dr. Hodge testified that VKH can only be diagnosed clinically and that the differential diagnosis for VKH is broad and includes optic neuritis. It is treated with systemic steroid therapy, for which the “side effect profile is massive,” according to Dr. Hodge. Due to the side effects, management of VKH includes reducing the steroids gradually such that the disease is kept under control while avoiding “rebound inflammation,” a term describing the aggressive recurrence of inflammation in VKH patients.

[278] In Dr. Hodge’s opinion, Ms. Skead fell within the “catastrophic 20%” of VKH patients, suffering from “probably the most aggressive VKH I’ve ever seen.” Dr. Hodge testified that he has “never had a patient with VKH [who] lost that much vision that quickly,” meaning within five or six weeks.

[279] Dr. Hodge opined that the timing of treatment does not impact into which category a VKH patient falls because “for most chronic diseases early treatment makes very little difference.” He testified that, in his experience, “timing is irrelevant in the condition and in the final outcome of the condition, the timing of initial treatment.” Dr. Hodge testified that he considers a “typical VKH patient” to be “a priority…but definitely not an emergency” and that he would “book that patient in one to three weeks.”

[280] Dr. Hodge was asked to opine on Dr. Chin’s attempts to contact Ms. Skead for a follow-up appointment subsequent to the cancellation of her May 23, 2008 appointment and upon his receipt of Dr. Wiebe’s May 25, 2008 referral letter.

[281] In his opinion, having placed a call to Ms. Skead at the number she provided, which proved not in service, and then leaving a message with the alternate contact person, both on May 28, 2008, Dr. Chin acted within the standard of care. Dr. Hodge disagreed with Dr. Berger’s opinion that Dr. Chin failed to appreciate the urgency of Dr. Wiebe’s referral letter. He also disagreed that the standard of care required Dr. Chin to have attempted to contact Ms. Skead on a daily basis until he was able to confirm an appointment for her. He described it as “almost outrageous to say you should call a patient every day.”

[282] Asked to opine on the urgency of Ms. Skead being seen by Dr. Chin based on the contents of Dr. Wiebe’s letter, Dr. Hodge noted that VKH had not been diagnosed at that point in time with only a family history being noted. Dr. Hodge felt this to be “a priority…but definitely not an emergency.”

[283] Dr. Hodge was then asked to comment on the actions of Dr. Wiebe on May 25, 2008. He noted that Dr. Wiebe assessed Ms. Skead three times that day, talked with Dr. Borys by telephone and dictated letters to each of Dr. Chin and Dr. Johnston that were faxed out the following morning. He was of the opinion that Dr. Wiebe’s actions met the standard of care, that she acted with the appropriate sense of urgency and that her referral letters were “clear…concise and…appropriate.”

[284] Dr. Hodge described holding Ms. Skead overnight in the ER to facilitate a direct consultation with an ophthalmologist with knowledge of VKH, which Dr. Berger opined was the standard of care in the circumstances, as “a bit of an extreme thing to do.” He noted that Ms. Skead had already seen Dr. Chin and that Dr. Wiebe kept Dr. Chin “in the loop,” as required. He also pointed out that VKH had not yet been diagnosed but that, in any event, even with VKH “these minute issues of whether it was this day or that day the person was seen is really going to make no difference in the long-term outcome. It’s less than splitting a hair. It’s making no difference in the long-term outcome.”

[285] Dr. Hodge was next asked to opine on the actions and conduct of Dr. Johnston upon her receipt of Dr. Wiebe’s referral letter on May 26, 2008. His understanding was that Dr. Johnston’s staff attempted to call Ms. Skead at the number provided for a May 29, 2008, appointment but could not reach her because the number was not in service. This was followed by Dr. Johnston’s staff leaving a message with “Andy” on June 2, 2008, for a June 6, 2008 appointment for Ms. Skead and by a letter to Ms. Skead on June 5, 2008, asking Ms. Skead to contact Dr. Johnston’s office for an urgent appointment. Dr. Hodge opined that these efforts were “more than enough to meet the standard of care.” Dr. Hodge also felt that Dr. Johnston ultimately seeing and assessing Ms. Skead on June 17, 2008, was within the standard of care.

[286] Dr. Hodge was referred to various notes of Dr. Roy pertaining to her assessment and treatment of Ms. Skead between June 2008 and July 2009. Dr. Roy recorded Ms. Skead’s left eye visual acuity on April 27, 2009 to have been 20/200, legal blindness. A consultation note of Dr. Schoales, Thunder Bay Regional Health Sciences Centre, from March 2010 recorded that Ms. Skead had NLP in either eye at that time. Dr. Hodge testified that the 20/200 vision Ms. Skead had on April 27, 2009 was no longer present in March 2010.

[287] Dr. Hodge was then referred to Dr. Roy’s notes of her examination of Ms. Skead on June 27, 2008. Dr. Hodge observed that Dr. Roy recorded that Ms. Skead had NLP in either eye that day. Dr. Hodge testified that “what’s interesting though is the left eye, even though it’s NLP at that point, it’s temporary, it’s not permanent. Because we know that in April of 2009 [Ms. Skead] is 20/200…we know there is still some life in that eye because it does come back.”

[288] Dr. Hodge further noted that Ms. Skead was on intravenous steroids on June 27, 2008, that “the eyes are inflamed and the vision is going down despite all the steroid treatment.” Dr. Hodge opined that these observations were “consistent with everything about this case…both how it initially responded and how it kept responding…how aggressive it is.” Dr. Hodge noted that Dr. Roy’s plan on this date was to increase Ms. Skead’s oral Prednisone to 100 milligrams a day, “a very high-dose,” and then to reduce the steroids.

[289] Dr. Hodge was asked to comment on Dr. Roy’s notes from her examination of Ms. Skead on September 4, 2008. Dr. Roy recorded that Ms. Skead did not see Dr. Johnston “since last visit as advised.” Dr. Hodge noted that Dr. Roy recorded that Ms. Skead’s right eye was NLP and that she had a “small residual island of vision” in the left eye – “count fingers, 4 inches” – and it’s blurred for a few days.” Dr. Hodge reviewed Dr. Roy’s notes as to the inflammation she observed in Ms. Skead’s eyes that day. He described Ms. Skead’s uveitis as “very active” and “running wild” on September 4, 2008.

[290] Dr. Hodge testified that his review of Dr. Roy’s September 4, 2008 chart indicated that Ms. Skead was being treated with “a lot of aggressive steroid to treat a very aggressive disease. The disease is recurring. It’s very difficult to control. Vision is still being lost. Inflammation is still persisting.”

[291] Dr. Hodge was next referred to Dr. Roy’s chart entries of January 5, 2009 and specifically to the note that “prednisone – ran out [about] 2 months ago.” Dr. Hodge explained that stopping the steroids can cause the inflammation to recur, possibly spiking up quite aggressively if the stoppage is sudden. More inflammation in the eye results in more destruction of the eye and the loss of more vision, according to Dr. Hodge.

[292] As interpreted by Dr. Hodge, Dr. Roy’s assessment of Ms. Skead on January 5, 2009 included “recurrent severe anterior uveitis in the left eye, posterior segment limited, off systemic treatment, missed follow-ups.” Dr. Hodge concluded that this meant that Ms. Skead’s uveitis was “back and aggressive” on this date. Dr. Hodge based this conclusion on Dr. Roy’s recorded findings as to inflammation pursuant to a slit lamp examination, which he described as “good evidence” of “very severe inflammation in the left [eye], less so in the right [eye].”

[293] Dr. Hodge next reviewed Dr. Roy’s chart entries for April 2, 2009, which noted that Ms. Skead “ran out” of Prednisone approximately “1 month ago or longer.” Dr. Hodge repeated that abruptly stopping the steroids can allow the inflammation to recur and spike. Dr. Hodge testified that Dr. Roy observed active uveitis in both eyes with severe inflammation on April 2, 2009 and that her plan was to resume high-dose prednisone. Dr. Hodge opined that Ms. Skead’s uveitis was, once again, aggressive on this date.

[294] Ultimately, Dr. Hodge was of the opinion, based on his review of Dr. Roy’s entire chart and all other information, that blindness was inevitable for Ms. Skead. He explained that Ms. Skead has the “ultra-aggressive” form of VKH, characterized by long-term inflammation and exacerbations and requiring lifelong management, including very long-term steroid treatment, the side effects of which would be “intolerable.”

[295] Dr. Hodge was asked to comment on the fact that Ms. Skead continues to experience flare ups every four to five weeks that last eight to thirteen days. Dr. Hodge explained that this is consistent with his experience and with the content of Dr. Roy’s chart chronicling Ms. Skead’s VKH throughout 2008 and 2009:

Well I would have predicted that…looking at these notes because [Ms. Skead’s] disease is very aggressive and it keeps going in Dr. Roy’s hands. And that’s what aggressive VKH does, it keeps coming back.

[296] Dr. Hodge testified that the course of VKH is characterized by a “chronic and recurrent time frame. It was his opinion that, regardless of treatment, there is a long-term component to VKH which includes long-term inflammation and exacerbations. He described VKH as a “lifelong problem that involves lifelong management regardless of the timing and amount of initial treatment.”

[297] In summary, it was Dr. Hodge’s opinion, based on his review of the totality of Ms. Skead’s medical records, that there is no evidence that earlier treatment would have altered the course of Ms. Skead’s VKH. According to Dr. Hodge, the chronic recurrent nature of VKH requires a close examination of what occurred after May 2008. He opined that even if a tiny amount of vision in one eye had remained immediately following May 2008, Ms. Skead would have faced similar bouts of aggressive recurrences over and over again, as evidenced by the aggressive recurrences that occurred under Dr. Roy’s care and from the actual history of this condition.

[298] In Dr. Hodge’s opinion, “there was no realistic hope of saving any [of Ms. Skead’s] vision over time regardless of how the events of May 2008 unfolded and even if a small amount of vision in one eye could have been preserved at that time.” In support of this conclusion, Dr. Hodge noted that Dr. Roy assessed Ms. Skead’s left eye vision at 20/200-1 on April 27, 2009. He acknowledged this to be the standard for legal blindness but added that “there’s still a lot of vision to save at 20/200. And we definitely fight for that vision.” However, in Ms. Skead’s case, Dr. Hodge observed that this small amount of vision was gone in the spring of 2010, as seen by the Thunder Bay Regional Health Sciences Centre consultation note of Dr. Schoales from March 2010, which recorded that Ms. Skead had NLP in each of her eyes at that time.

[299] On cross-examination, Dr. Hodge conceded that he was not an ER physician and that he had not worked in ER departments since 1993.

[300] Dr. Hodge agreed that as a result of Dr. Chin’s May 28, 2008 review of Dr. Wiebe’s May 25, 2008 referral letter, Dr. Chin became aware of the deterioration of the vision in Ms. Skead’s right eye and of her family history of VKH on that date. He also acknowledged that the only attempts by Dr. Chin’s office to contact Ms. Skead after May 28, 2008, were the 30 second phone call to Ms. Reed’s number on May 28, 2008, and the letter he wrote to Ms. Skead on July 7, 2008.

[301] Dr. Hodge agreed that Dr. Chin “was concerned” about the deterioration in Ms. Skead’s vision when he examined her on May 9, 2008. Asked to assume that Dr. Chin would have considered Ms. Skead’s condition as urgent on reading Dr. Wiebe’s May 25, 2008 referral letter, Dr. Hodge nonetheless would not agree that Dr. Chin’s attempts to contact Ms. Skead breached the standard of care.

[302] Dr. Hodge was cross-examined about the efforts Dr. Johnston and her staff made to contact Ms. Skead for an appointment subsequent to Dr. Johnston’s May 26, 2008 review of Dr. Wiebe’s May 25, 2008 referral letter. He was referred to Dr. Johnston’s note – can we book her on Thursday EMR? – on the LWDH May 26, 2008 fax cover sheet to Dr. Wiebe’s letter. He agreed that there was no evidence indicating that Dr. Johnston actually spoke to her staff about booking Ms. Skead for Thursday May 29, 2008, or that a June 6, 2008 appointment was booked for her.

[303] Dr. Hodge agreed that a patient with 20/200 vision, the threshold for legal blindness, can still see “quite a bit.”

DR. BRIAN DUFRESNE

[304] Dr. Dufresne graduated from the University of British Columbia medical school in 1987 and completed a one-year rotating internship in 1988. He became qualified to practice family and emergency medicine in 1988. Dr. Dufresne completed specialty training in emergency medicine and obtained his certification in emergency medicine in 1999. He has since practiced continuously in the area of emergency medicine, but for two years of family practice that included emergency coverage. Dr. Dufresne has been the Chief of Emergency Medicine at the Northern Lights Regional Hospital in Fort McMurray, Alberta from 2001 to date.

[305] As a full-time ER physician, Dr. Dufresne estimated that he sees between 750 and 1200 patients per month, including between two and seven patients per day with vision problems.

[306] Dr. Dufresne was qualified as an expert and allowed to provide opinion evidence in the following areas:

1. In the field of emergency medicine generally;

2. As to the standard of care for ER physicians in Ontario in 2008 including:

a) In conducting differential diagnoses;

b) In obtaining consultations and follow-ups;

c) In communicating with patients including discharge instructions and follow-ups;

d) In referring patients to consultants.

3. Whether Dr. Wiebe breached the standard of care in her management of Ms. Skead.

[307] Dr. Dufresne was referred to the LWDH Emergency Record which Dr. Wiebe completed on May 25, 2008. Dr. Dufresne observed that Dr. Wiebe assessed Ms. Skead’s subjective complaint (headache), obtained previous medical records to complete a history, conducted a clinical examination and consulted with Dr. Borys to develop a plan of care and to arrange follow-ups for Ms. Skead.

[308] Dr. Dufresne’s understanding of the plan developed by Dr. Wiebe and Dr. Borys was that Dr. Borys, who knew Dr. Johnston personally, would contact Dr. Johnston the next morning about Ms. Skead and that Dr. Wiebe would complete consultation letters to Dr. Johnston and Dr. Chin.

[309] Dr. Dufresne noted that the discharge instructions on this record read “follow-up with Dr. Borys, comfortable with same, notify us if not heard within 24 hours.” Dr. Dufresne also understood that Ms. Skead was advised to return to the LWDH ER if she had not been contacted within 24 hours.

[310] Dr. Dufresne also understood that Dr. Wiebe was advised of Ms. Skead’s family history of VKH by a nurse after Ms. Skead was discharged but before she left the ER. Dr. Dufresne testified that he has never encountered VKH in 30 years of practice and that he assumed Dr. Wiebe had never heard of it as of May 25, 2008. Dr. Dufresne understood that Dr. Wiebe researched VKH, learned that it was a serious eye condition that required urgent treatment and that she included mention of Ms. Skead’s family history of VKH in her referral letters to Dr. Johnston and Dr. Chin.

[311] Dr. Dufresne opined that Dr. Wiebe’s management of Ms. Skead on May 25, 2008, met the standard of care for an ER physician in Ontario in 2008. He expanded on his opinion as follows:

Dr. Wiebe went to extreme efforts to obtain the history, correlate her findings in the emergency department, kept the patient there…for close to 12 hours to ensure that her condition was not changing, made an exceptional effort to contact a consultant who was not on call…and ensured that she used that advice given to her by Dr. Borys and confirmed that follow-up appointments would be arranged with the consult letters sent to both the consultants.

[312] Dr. Dufresne disagreed with Dr. Brankston’s opinion that the standard of care for an ER physician in this situation required a direct discussion with the consultant. Dr. Dufresne testified that the only time ER physicians speak directly to the consultant is when they are concerned about “an emergent or an urgent case.”

[313] Dr. Dufresne further disagreed with Dr. Brankston’s opinion that once Dr. Wiebe learned of Ms. Skead’s family history of VKH, the standard of care required her to have a direct conversation, inclusive of this information, with either Dr. Borys, Dr. Johnston, Dr. Chin or the ophthalmologist on call. Dr. Dufresne explained that the addition of VKH to Ms. Skead’s differential diagnosis, which according to him could have included between 15 and 20 diseases given her symptoms, did not mean that she had VKH.

[314] Dr. Dufresne noted that this information was included in Dr. Wiebe’s referral letters faxed to Dr. Chin and Dr. Johnston the next day and which were also copied to Dr. Borys. Dr. Dufresne also noted that Dr. Chin’s “working diagnosis” on May 9, 2008, had been optic neuritis, which he described as the “most reliable working diagnosis until she was reassessed.”

[315] Dr. Dufresne opined that Dr. Wiebe’s May 25, 2008 referral letters to Dr. Johnston and Dr. Chin, which he described as “very complete and very detailed,” met the standard of care for an ER physician in these circumstances.

[316] Dr. Dufresne also disagreed with Dr. Brankston’s opinion that the standard of care required Dr. Wiebe to keep Ms. Skead in the ER overnight until she was able to speak directly with Dr. Borys, Dr. Johnston, Dr. Chin or the ophthalmologist on call. He explained that patients that don’t require urgent or critical intervention are discharged from the ER and instructed that they will be contacted by the consultant for an appointment and if not contacted within the specified time frame told to see their family doctor or return to the ER.

[317] Asked to comment on Dr. Brankston’s opinion that the standard of care required Dr. Wiebe to speak directly to a consultant for advice as to the appropriate management plan for Ms. Skead, including the time frame for a consultant’s assessment of her, Dr. Dufresne testified that Dr. Wiebe had done so by speaking with Dr. Borys on May 25, 2008.

[318] Dr. Dufresne disagreed with Dr. Brankston’s opinion that the standard of care required Dr. Wiebe, as the MRP, to have direct contact with Dr. Johnston, rather than delegating that responsibility to Dr. Borys. In Dr. Dufresne’s opinion, Dr. Borys was a consultant whom Dr. Wiebe did directly contact and with whom she discussed Ms. Skead’s case. During this discussion, the two of them agreed that Dr. Borys would speak with Dr. Johnston the next morning, a reasonable approach, according to Dr. Dufresne.

[319] Dr. Dufresne was also familiar with Dr. Berger’s opinions as to the standard of care required of Dr. Wiebe in this case. He disagreed that the standard of care required Dr. Wiebe to speak directly to an ophthalmologist with knowledge of VKH about the urgency of treatment. He disagreed that the standard of care required Dr. Wiebe to keep Ms. Skead in the ER until she was able to do so or have Ms. Skead return to the ER the following morning.

[320] In Dr. Dufresne’s opinion, Dr. Wiebe met the standard of care by consulting directly with Dr. Borys who was familiar with Ms. Skead’s history and who undertook to speak with a neuro-ophthalmologist whom he knew personally, the next morning. He also observed that Dr. Wiebe did keep Ms. Skead in the ER for 12 hours until she had spoken with Dr. Borys.

[321] When asked to comment on the timing of Dr. Wiebe’s faxed referral letters to Dr. Johnston and Dr. Chin, Dr. Dufresne opined that having these letters transcribed and faxed the morning of May 26, 2008, “far exceeds our expectations and [is] certainly well above the standard of practice in most emergency departments.”

[322] In summary, Dr. Dufresne testified that Dr. Wiebe met or exceeded the standard of care:

She took well-researched history, went back through the charts to determine what had been performed previously, who had seen her, what the working diagnosis was. She carried out the appropriate assessment of the patient and she made extenuating efforts to make sure that a consultant was seen, that information was passed on to the patient, that relative notes and charts were sent to the appropriate people, particularly Dr. Johnston and Dr. Chin, and she ensured that the patient had a reasonable plan for follow-up. And that meant telephone contact. And I understand that the telephone number was confirmed with the patient. She also offered the patient the opportunity to return to the emergency department if she was not contacted….

[323] On cross-examination, Dr. Dufresne acknowledged that this was the first time he had testified as an expert witness and that this was the second case he had reviewed on behalf of defendant doctors.

[324] Dr. Dufresne agreed that Dr. Wiebe was Ms. Skead’s MRP on May 25, 2008, and that the MRP is responsible for coordinating ongoing care of the patient “up until the time of discharge.” He did not agree with the suggestion that Dr. Wiebe, as Ms. Skead’s MRP, had an obligation to obtain consultations for her patient and not simply to request them.

[325] It was Dr. Dufresne’s opinion that the May 25, 2008, telephone conversation between Dr. Wiebe and Dr. Borys, while Ms. Skead was still in the ER, “was a formal phone conversation … with Dr. Borys providing advice to Dr. Wiebe”. He also felt that Dr. Borys was the appropriate consultant for Dr. Wiebe to have contacted on May 25, 2008.

[326] Dr. Dufresne was cross-examined on the May 25, 2008 LWDH Emergency Record for Ms. Skead. He agreed that Ms. Skead had experienced headaches since May 8, 2008, that her left eye vision was reduced to a horizontal slit and that blurry vision in her right eye was a new finding that day. He also agreed that her “new and progressing symptoms [on May 25, 2008] were visual” and that Dr. Wiebe had noted, subsequent to her discussion with Dr. Borys, “may refer [to] retinal specialist.”

[327] Dr. Dufresne did not agree that in the circumstances, Dr. Wiebe should have directly consulted with an ophthalmologist rather than with Dr. Borys, a neurologist. He explained his opinion as follows:

The differentiation between a neurological cause of blindness and intraocular issue with the blindness was not within Dr. Wiebe’s scope. She based her decision on the history that she fully reviewed, identified that the working diagnosis was neurological or an optic neuritis, identified that Dr. Borys had been the most recent physician to assess her and felt that that was the most appropriate consultant to contact.

THE POSITION OF THE PLAINTIFF

[328] The plaintiff submits that on May 25, 2008, two critical developments relevant to Ms. Skead’s medical condition came to light. First, Ms. Skead was now experiencing blurring in her right eye vision in addition to the persistent loss of vision in her left eye. Second, Dr. Wiebe learned that Ms. Skead had an aunt with VKH. The plaintiff submits that these two new findings were, or should have been, crucial to the defendants’ assessment of Ms. Skead’s condition.

[329] The plaintiff submits that the new findings elevated Ms. Skead’s condition to an emergency given the deterioration of her left eye and the inconclusive diagnosis of optic neuritis. They elevated VKH on the differential diagnosis for Ms. Skead and put her at risk of suffering permanent vision loss without emergent diagnosis and treatment.

[330] The plaintiff submits that the defendants failed to follow the well-established principle of differential diagnosis. They erroneously relied on what was clearly an inconclusive diagnosis of optic neuritis, without taking steps to corroborate this working diagnosis.

[331] The plaintiff submits that each of the defendant doctors, individually and in combination, breached the standard of care by failing to recognize and act with the urgency that Ms. Skead’s condition required, and by failing to effectively and directly communicate either with other physicians or with Ms. Skead herself.

[332] The plaintiff submits that the actions and omission of the defendants rise far above mere errors in judgment. The defendants failed to adequately consider and respond to the information that Ms. Skead had a family history of VKH and they failed to consider the highly relevant clinical information that Ms. Skead’s right eye was now involved – this latter, an emergency in light of the left eye vision loss.

[333] The plaintiff submits that the defendants’ breaches of the standard of care caused an unacceptable delay in having a properly qualified physician assess Ms. Skead. Because of the defendants’ breaches, a properly qualified physician did not assess Ms. Skead until June 17, 2008 – by this time the plaintiff had suffered irreversible loss of vision in both eyes.

[334] The plaintiff submits that if any of the defendants had met their respective standards of care, Ms. Skead would have been seen by an appropriately qualified physician before May 31, 2008, at least provisionally diagnosed with VKH and had treatment initiated. The plaintiff submits that had this occurred, Ms. Skead would have retained 20/200 vision in her right eye for the rest of her life.

Dr. Wiebe

[335] The plaintiff submits that as Ms. Skead’s MRP on May 25, 2008, Dr. Wiebe breached the standard of care by failing to personally coordinate Ms. Skead’s treatment, provide a plan of care, oversee the discharge process, and obtain, not request, consultations. The standard of care required her to speak directly with an appropriately qualified consultant about Ms. Skead’s condition, including the new findings of right eye vision loss and a family history of VKH.

[336] The plaintiff submits particularly in light of the deterioration of Ms. Skead’s remaining good eye that the standard of care required Dr. Wiebe to schedule an emergent, same-week consultation for Ms. Skead with a consultant capable of diagnosing and treating VKH. The plaintiff submits that Dr. Wiebe breached the standard of care by delegating these responsibilities to Dr. Borys.

[337] The plaintiff submits that Dr. Wiebe breached the standard of care by discharging Ms. Skead and faxing consultation letters to Dr. Chin and Dr. Johnston the next day – without having developed an adequate plan of care.

[338] The plaintiff submits that the standard of care required Dr. Wiebe to hold Ms. Skead in the ER until an appropriate discharge plan had been developed. This plan would have included confirmation of the emergent consultation and a complete explanation to the plaintiff as to the urgency of her condition and the importance of follow-up.

[339] The plaintiff submits that this court should find that Dr. Wiebe did not clarify her “sparse” instructions to Ms. Skead prior to her discharge. Dr. Wiebe did not inform Ms. Skead of the urgency of her condition, of exactly when she should return to the LWDH, or of whom she should speak with at the hospital had she not heard from a consultant within 24 hours.

[340] The plaintiff submits that this court should find that Dr. Wiebe learned directly from Ms. Skead that her aunt had VKH. Alternatively, this court should find that she learned of it prior to Ms. Skead leaving the ER on May 25, 2008. Alternatively, the plaintiff submits that regardless of when Dr. Wiebe learned of Ms. Skead’s VKH family history, Dr. Wiebe breached the standard of care in failing to call back Dr. Borys for directions on what the next steps were, how critical it was for Ms. Skead to be assessed and in what time frame.

[341] The plaintiff reminds the court that Dr. Wiebe knew that there was no confident diagnosis of Ms. Skead’s condition, she conceded that she did not understand Ms. Skead’s condition, and she conceded that she had no knowledge of VKH but learned, on looking it up, that Ms. Skead would require urgent management if she had VKH.

Dr. Chin

[342] The plaintiff submits that Dr. Chin was Ms. Skead’s treating ophthalmologist during the week of May 26, 2008. Dr. Wiebe’s May 25, 2008, referral letter informed Dr. Chin of Ms. Skead’s persistent left eye vision loss, of the new blurring in her right eye vision and of her family history of an aunt with VKH.

[343] The plaintiff submits that once Dr. Chin had reviewed Dr. Wiebe’s referral letter, the standard of care required him to make same day attempts to contact Ms. Skead for an emergent assessment and to make repeated daily attempts until successful in reaching her.

[344] The plaintiff submits that Dr. Chin breached the standard of care by failing to appreciate that Ms. Skead’s right eye involvement and her family history of VKH – both new and critical developments – made her condition emergent. As a result, Dr. Chin failed to take all necessary steps to contact Ms. Skead to arrange an emergent assessment of her condition. The plaintiff submits that leaving a single message with Ms. Skead’s alternate contact person on May 28, 2008, fell below the standard of care required of Dr. Chin in all the circumstances.

[345] The plaintiff further submits that this court should give no weight to Dr. Chin’s evidence as to his recollection of his conversation with his assistant, Sharon Ellis. According to Dr. Chin, Ms. Ellis offered to rebook Ms. Skead’s May 23, 2008 appointment when it was cancelled but was told that the patient would call back to do so. Ms. Ellis purportedly phoned Donna Reed, Ms. Skead’s contact person on May 28, 2008, and Ms. Reed purportedly agreed to tell Ms. Skead to contact Dr. Chin’s office. These accounts as reported by Dr. Chin amount to double hearsay. They bear all the dangers of hearsay and the court ought to give them no weight.

Dr. Johnston

[346] The plaintiff submits that Dr. Johnston breached the standard of care by failing to act with sufficient urgency to secure an appointment for Ms. Skead, within a few days of receiving Dr. Wiebe’s referral letter on May 26, 2008. Dr. Johnston was knowledgeable and experienced enough with VKH to provisionally diagnose it and to initiate treatment the same day she initially saw Ms. Skead. Given that Ms. Skead’s remaining good eye was impacted at the time Dr. Johnston received Dr. Wiebe’s referral letter, Ms. Skead’s condition was then emergent.

[347] The plaintiff submits that Dr. Johnston’s own actions and evidence – including her intention on May 26 to see Ms. Skead on May 29 – indicate that Dr. Johnston considered the situation urgent. However, she failed to act according to that urgency. The plaintiff submits that Dr. Johnston’s single telephone call to Ms. Skead’s out-of-service number in the week of May 26, 2008 – fell below the standard of care. Dr. Johnston’s office should have sought further contact information immediately on learning that Ms. Skead’s telephone number was disconnected.

[348] The plaintiff further submits based on Dr. Johnston’s own evidence that Dr. Johnston breached the standard of care in failing to conduct a proper differential diagnosis. Once Dr. Johnston had learned of Ms. Skead’s persistent left eye vision loss, her new right eye vision loss and her family history of VKH, the standard of care required her to place VKH or uveitis on the differential diagnosis, even if it was a remote possible explanation for Ms. Skead’s condition.

[349] Dr. Johnston testified that she initially considered the request to consult Ms. Skead as being for an atypical optic neuritis. She also suggested that a family history of VKH was only relevant with proven uveitis; otherwise VHK would not be considered on the differential diagnosis. This directly counters the principle of differential diagnosis. That principle requires that the most serious explanation be ruled out first. Diagnosis should not be based on probability.

[350] The plaintiff submits that Dr. Johnston’s own evidence demonstrates that she was mistaken in her confidence of being consulted for an optic neuritis and that she breached the standard of care in failing to perform a proper differential diagnosis.

Causation

[351] The plaintiff submits that had Dr. Wiebe met the standard of care – by speaking directly with Dr. Borys, Dr. Chin or the ophthalmologist on call and advising them of Ms. Skead’s family history of VKH and her new right eye vision loss – Ms. Skead would have been urgently assessed, provisionally diagnosed with VKH and appropriately treated by no later than May 31, 2008.

[352] The plaintiff submits that had Dr. Chin met the standard of care – by appreciating the urgency of Ms. Skead’s condition after learning of her right eye involvement and her family history of VKH – he would have made repeated, persistent and, ultimately, successful efforts to contact Ms. Skead on May 28, 29 or 30, 2008, through Ms. Reed or another alternate contact person whose number was available to him.

[353] The plaintiff submits that had this occurred the true urgency of Ms. Skead’s condition would have then been communicated directly or indirectly to Ms. Skead such that she would have attended for an urgent assessment during the week of May 26, 2008, been provisionally diagnosed with VKH by Dr. Chin and treated by him or a uveitis specialist to whom Dr. Chin would have referred Ms. Skead.

[354] The plaintiff submits that if Dr. Johnston had met the standard of care, she would have assessed Ms. Skead during the week of May 26, 2008, and acted as she did on June 17, 2008 – she would have provisionally diagnosed Ms. Skead with VKH, immediately initiated the required treatment and referred Ms. Skead to Dr. Roy, a uveitis specialist on an urgent basis.

[355] The plaintiff submits that had any one of Dr. Wiebe, Dr. Chin or Dr. Johnston acted within the standard of care, Ms. Skead would have been properly assessed and treated with high-dose systemic corticosteroids on or before May 31, 2008. The plaintiff further submits that if Ms. Skead had been treated with high-dose systemic corticosteroids prior to May 31, 2008, it is more likely than not that she would have retained vision of at least 20/200 in her right eye for the rest of her life.

Contributory Negligence

[356] The plaintiff submits that, given Ms. Skead’s socio-economic conditions and lack of understanding of the urgency of her condition, there should not be a finding of contributory negligence against her.

THE POSITION OF THE DEFENDANTS

[357] The defendants submit that Dr. Berger, the plaintiff’s expert, has acknowledged that nothing done or failed to have been done by the defendants after May 31, 2008, could have avoided the loss alleged by the plaintiff. The defendants submit that it is therefore only the actions or omissions of the defendants between May 25, 2008, and May 31, 2008, that can be the basis of liability against them as any conduct outside of that period is not causative of the plaintiff’s alleged injuries.

[358] The defendants submit that Ms. Skead’s condition was not an ophthalmological emergency.

Dr. Wiebe

[359] The defendants submit that the analysis of Dr. Wiebe’s conduct on May 25, 2008, must include only the information available to her on that date and exclude the benefit of hindsight.

[360] The defendants submit that Dr. Wiebe assessed Ms. Skead on May 25, 2008, as a result of Ms. Skead attending the ER because of a severe headache. The defendants submit that Dr. Wiebe assessed Ms. Skead three times on May 25, 2008, and reviewed Ms. Skead’s LWDH chart and her HSC records from her recent admission there.

[361] The defendants submit that Dr. Wiebe held Ms. Skead in the ER until she had a direct discussion with Dr. Borys whom Ms. Skead had identified as her most recent treating physician. Pursuant to her discussion with Dr. Borys, the defendants submit that Dr. Wiebe developed an appropriate plan of care and discharge plan for Ms. Skead, including referrals to Dr. Johnston, a neuro-ophthalmologist and to Dr. Chin, an ophthalmologist who had recently assessed Ms. Skead. The defendants submit that Dr. Wiebe wrote the required referral letters to these consultants as agreed with Dr. Borys, the adequacy of which is not in issue.

[362] The defendants submit that Dr. Wiebe’s discharge plan for Ms. Skead was appropriately explained to her and that she was given adequate discharge instructions which were also verbally clarified directly with Ms. Skead. The defendants submit that Ms. Skead conceded that she would have asked for clarification about the discharge instructions if she had been confused about them.

[363] The defendants submit that this court should find that Dr. Wiebe did not become aware of Ms. Skead having an aunt with VKH until after Ms. Skead had left the ER on May 25, 2008. The defendants submit that if Dr. Wiebe had been aware of this history prior to Ms. Skead’s discharge it would have been documented in Ms. Skead’s Emergency Record for May 25, 2008. The defendants submit that the inclusion of this information in Dr. Wiebe’s referral letters and not in the Emergency Record is consistent with, and corroborative of, Dr. Wiebe’s evidence on this issue.

[364] The defendants submit that the standard of care did not require Dr. Wiebe to call Dr. Borys back when she learned of Ms. Skead’s aunt having VKH, nor did it require Dr. Wiebe to directly consult with the ophthalmologist on call with this information prior to discharging Ms. Skead. The defendants submit that the inclusion of this information in Dr. Wiebe’s referral letters, which were copied to Dr. Borys, met the standard of care.

[365] The defendants submit that Dr. Wiebe was Ms. Skead’s MRP until she was discharged from the ER on May 25, 2008, and that her direct telephone consultation with Dr. Borys, the most appropriate consultant given the information available to Dr. Wiebe, together with her referral letters to the two other consultants he recommended, met the standard of care of the MRP.

Dr. Chin

[366] Dr. Chin received Dr. Wiebe’s referral letter on May 28, 2008, and learned that Ms. Skead had cancelled and not re-scheduled her May 23, 2008, appointment. Dr. Chin instructed Ms. Ellis to book Ms. Skead for an urgent appointment in one to two weeks.

[367] The defendants submit that Dr. Chin’s assessment of this referral as urgent and not emergent was correct, given his examination of Ms. Skead on May 9, 2008, and the information contained in Dr. Wiebe’s letter.

[368] The defendants submit that Dr. Chin’s evidence as to his conversations with Ms. Ellis pertaining to her efforts to contact Ms. Skead for an appointment should be accepted as accurate because they are corroborated by written notes of Ms. Ellis and Dr. Chin and by Dr. Chin’s telephone records. The defendants submit that Ms. Ellis attempted to contact Ms. Skead at the number provided in Dr. Wiebe’s letter but that it was not in service. Ms. Ellis was then successful in contacting Ms. Skead’s alternate contact, Donna Reed, and left a message for Ms. Skead with Ms. Reed who told Ms. Ellis that she would give the message to Ms. Skead.

[369] The defendants submit that the efforts made by Dr. Chin on May 28, 2008, met the standard of care of an ophthalmologist in the circumstances and that the standard of care did not require Dr. Chin to make further, daily attempts to contact Ms. Skead.

Dr. Johnston

[370] Dr. Johnston reviewed Dr. Wiebe’s referral letter on May 26, 2008, triaged it as urgent and provided a written instruction to her staff to attempt to book Ms. Skead for an appointment on May 29, 2008. Dr. Johnston’s staff attempted to contact Ms. Skead at the number provided in Dr. Wiebe’s letter, but it was not in service.

[371] On May 28, 2008, Dr. Johnston received the mailed copy of Dr. Wiebe’s May 25, 2008, referral letter, realized that Ms. Skead had not been booked for May 29, 2008, and provided a written instruction to her staff to attempt to book Ms. Skead for an appointment on June 6, 2008. On June 2, 2008, Dr. Johnston’s staff contacted the LWDH, obtained Andy Beaver’s name and number as an alternate contact for Ms. Skead, called Mr. Beaver and left a message for Ms. Skead with him. Another message was left with an unidentified person at this number on June 5, 2008.

[372] The defendants submit that the efforts made by Dr. Johnston’s staff to reach Ms. Skead for an appointment on May 29, 2008, together with the efforts made on June 2 and June 5, 2008, met the standard of care.

Causation

[373] The defendants submit that the evidence fails to establish that the plaintiff would have been seen by a physician who would have diagnosed VKH and started systemic steroid therapy by May 31, 2008, even if they had acted as the plaintiff’s experts testified the standard of care required them to act.

[374] The defendants submit that none of the experts testified that Dr. Chin or Dr. Johnston would have been able to diagnose the plaintiff with VKH during the week of May 26, 2008. The defendants submit that there is no evidence that the inflammation present when Ms. Skead was provisionally diagnosed with VKH by Dr. Johnston on June 17, 2008, was present during the week of May 26, 2008, such that VKH was diagnoseable at that time. They further submit that it is not reasonable to infer that this inflammation was present such that a diagnosis would have been made.

[375] The defendants further submit that, even if it had been possible to diagnose Ms. Skead’s VKH during the week of May 26, 2008, the plaintiff has failed to prove that the defendants would have been able to communicate with Ms. Skead and have her attend for an appointment. The defendants submit that the evidence establishes that Ms. Skead failed to respond to messages given to her by alternate contacts.

[376] The defendants submit that, in any event, the timing of the initiation of systemic steroid treatment had no impact on the progression of the plaintiff’s VKH or her visual outcome because she fell within the 20% of VKH patients who have a very aggressive VKH and for whom the loss of vision is inevitable.

Contributory Negligence

[377] The defendants acknowledge that a plaintiff’s personal and socio-economic circumstances must be taken into account in assessing what duties a reasonable person in those circumstances owed herself. The defendants also acknowledge that Ms. Skead did not always have telephone service and that she did not own a vehicle. However, the defendants note that Ms. Skead’s alternate contacts all had telephones, that her First Nation had a medical transport van available for her use and that her mother drove her to medical appointments.

[378] The defendants also acknowledge the plaintiff’s limited education and general lack of sophistication. The defendants submit, however, that the record shows that the plaintiff generally understood the communications between her and her healthcare providers as those communications related to the importance of follow-ups with consultants. The defendants submit that it was not necessary for the plaintiff to be told that her vision was at risk to reasonably expect her to act in her own best interests.

[379] The defendants submit that Ms. Skead’s failure to take reasonable steps to act in her own self-interest constitutes a breach of the duty she owed to herself as a medical patient such that she was contributorily negligent. The defendants submit that the plaintiff should be found 70% at fault for any loss suffered.

THE APPLICABLE LEGAL PRINCIPLES

The Standard of Care

[380] The seminal statement of the standard of care applicable in medical malpractice actions is set out in Crits v. Sylvester, 1956 34 (ON CA), [1956] O.R. 132 (Ont. C.A.) at para. 13:

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.

[381] To establish liability in a medical malpractice action, the plaintiff bears the onus of establishing that a physician has breached the standard of care of a reasonable and prudent physician of the same experience and standing. As the Supreme Court of Canada stated in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R 674, 1995 CarswellBC 593, at para. 46:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist … the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that filed. A specialist … who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field. [Citations omitted.]

[382] The specific facts of each case are an essential component for the determination of liability. The standard of care must be determined having regard to the particular circumstances of each case: Williams (Litigation Guardian of) v. Bowler, 2005 27526 (ON SC), [2005] O.J. No. 3323 (Ont. S.C.J.) at para. 216.

[383] As Ferguson J. noted in Watson v. Dr. Shawn Soon, 2018 ONSC 3809, at para. 23:

The appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.

[384] An unfortunate outcome is not evidence of negligence and hindsight plays no role in determining the standard of care in medical malpractice actions. Accordingly, in Bafaro v. Dowd, 2008 CarswellOnt 5246, [2008] O.J. No. 3474, at paras. 24 and 30, Carpenter-Gunn J. stated:

An unfortunate outcome does not constitute proof of negligence. As stated by the Supreme Court of Canada in St-Jean c. Mercier, 2002 SCC 15, [2002] S.C.J. No. 17 (S.C.C.) at para. 53:

To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Professionals have an obligation of means, not an obligation of results.

[385] A defendant doctor cannot be judged in hindsight, as the conduct of a physician must be judged in light of the knowledge that should have been reasonably within his or her possession at the time of the alleged act of negligence. Courts must not, with the benefit of hindsight, judge too harshly doctors who acted in accordance with the prevailing standard of care at the time of the accident.

[386] In Lapointe c. Hopital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, at paras. 27-29, the Supreme Court instructs that courts should be careful of relying on the perfect vision afforded by hindsight. In order to fairly evaluate a particular exercise of judgment, the doctor’s limited ability to foresee future events when determining a course of conduct must be kept in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

[387] Errors in judgment must be distinguished from professional fault. An error in judgment is not negligence where the physician properly exercises clinical judgment. In Watson v. Soon, at para. 28, Ferguson J. commented as follows:

Where a medical professional applies his mind to a situation and arrives at a reasonable judgment which subsequently may prove wrong or have unexpected consequences, he cannot be held liable. A doctor is not expected to be infallible and is not required at law to order every available test. An error in judgment does not amount to negligence where the medical professional appropriately applies clinical judgment.

[388] However, as Power J. noted in Crawford v. Penny, [2003] O.J. No. 89 (Ont. S.C.), aff’d 2004 22314 (ON CA), [2004] O.J. No. 3669 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 496, at para. 229;

The proper exercise of judgment by a physician is one that is made after his/her weighing, assessing and evaluating such information as may be available. What “may” be available includes the results of tests or consultations that should have been carried out. In other words, the information upon which a judgement or decision is reached must be as complete as is reasonably available and possible in the circumstances.

[389] The law does not require physicians to anticipate all worst-case scenarios and elevate the standard of care accordingly. In Cardy v. Trapp, 2008 CarswellOnt 6755, [2008] O.J. No. 4547 (Ont. S.C.), Kent J. explained as follows:

37 It would be wrong to require a physician to practice to a standard that anticipated a worse case scenario as the risk and elevate the standard of practice accordingly. We know the standard of practice applied has a degree of risk. We know now that additional communication and checks could have prevented the delay in obtaining a diagnosis. But the court must be careful not to rely upon the perfect vision afforded by hindsight. See Lapointe c. Hopital Le Gardeur, 1992 119 (SCC), [1992] S.C.J. No. 11 (S.C.C.), 28.

38 The fact that the degree of risk in the standard of practice unfortunately prevented an earlier diagnosis does not establish that the standard was fraught with such obvious risks that a reasonable person would utilize further measure(s) to avoid.

39 In this case, the condition of the patient was not complex and the advice and recommendation were straightforward and understandable. Communication between Doctors Trapp and Jhaveri occurred. To require an elevated standard that embodies fail-safe follow-up is beyond what reason, common sense and logic would require. It might well have been helpful if Doctors Trapp and Jhaveri had conducted their practices to such an elevated standard, but this court is unable to find that they were obliged to so do and that their failure to do so constituted negligence.

Expert Evidence

[390] Expert evidence is essential in medical malpractice actions. It is well established that a plaintiff in a medical malpractice action cannot establish a breach of the standard of care without credible and reliable expert evidence supporting the alleged breach. In Reed v. Livingstone, 2004 CarswellOnt 1429, [2004] O.J. No. 1477 (Ont. S.C.), at para. 12, the court expressed the proposition as follows:

In order to establish whether the conduct of a person engaged in a technical occupation not within the expertise of the ordinary person, such as a doctor or nurse, met the standard of care required of them … the plaintiff must provide evidence of a person qualified and experienced in the field of conduct in issue that the defendant’s conduct in the circumstances failed to meet the standard of care the defendant owed to the plaintiff.

[391] However, courts must be particular about the expert evidence they accept in accessing the standard of care. Generally, medical specialists are not properly situated to opine on the standard of care of specialists in other areas. In addition, to the extent that an expert testifies as to what he himself would do in a situation, rather than what the standard of care requires, his testimony does not establish the standard of care nor demonstrate that the defendant doctor breached a standard of care: Bafaro v. Dowd, at paras. 32, 33 and 36.

The Principles of Diagnosis

[392] The duty to diagnose is a component of the standard of care. Mr. Justice Power described this duty in Crawford v. Penny, at para. 230(b):

The duty to diagnose requires doctors to take a full history, use appropriate tests and consult or refer if necessary. They must take reasonable care to detect signs and symptoms and formulate a diagnosis using good judgment. They cannot act only on what they are told, nor ignore what they are told. Sophisticated tests and continuing knowledge of disease must be employed when appropriate.

[393] The diagnostic process generally begins with the development of a differential diagnosis, a universally accepted rule of medicine. Mr. Justice Harris described the differential diagnosis in Adair Estate v. Hamilton Health Sciences Corp., 2005 18846 (ON SC), 2005 CarswellOnt 2180, [2005] O.J. No. 2180, at para. 116:

The diagnoses made by the defendants were substandard. Differential diagnosis is the system of determining which of two or more diseases with similar symptoms is the one that a patient is suffering from, through a systematic comparison and contrast of the clinical findings. All experts at trial agreed that this is the proper method of arriving at a diagnosis, leading to the conclusion that it is a universally accepted rule of medicine. Dr. Goldberg expanded on this definition by explaining that after the physician has identified the likely perils, these possible perils must be listed from the most serious to the least serious. The physician eliminates the peril that has the most severe consequences first. He summed this idea up in his expert testimony by asserting the simple maxim “worst first”.

[394] Diagnosis based on probability does not meet the standard of care. Mr. Justice Harris explained why at para. 153:

If doctors were to diagnose based on probability, rare and severe ailments would regularly be ignored in favour of common, non-life-threatening alternatives. When faced with symptoms that point to two or more diseases, the universally acceptable system to use is a differential diagnosis that accounts for severity. Given the symptoms, the possibility of a bowel obstruction should reasonably have been at or near the top of the differential diagnoses list of risks. Dr. McDonagh’s reliance on probability is a violation of a universally accepted diagnostic practice of the profession and is negligent.

The Most Responsible Physician

[395] Mr. Justice Kent defined the “most responsible physician” (“MRP”) and the standard of care of the MRP in Manary v. Strban, 2011 ONSC 176, aff’d 2013 ONCA 319, leave to appeal refused, 2013 CarswellOnt 14755 (SCC):

37 The definition of MRP is provided for in Exhibit 4: “the practitioner most responsible for the in-hospital care of a particular patient. The MRP is responsible for writing and clarifying orders, and providing a plan of care, obtaining consultations as appropriate, coordinating care, as well as the discharge process.”

38 With great respect to the view of Dr. Cowal, she has set the standard of care too low. Dr. Davies is not discussing an ideal or impossibly high standard. It is a safer standard. It is not a standard that should be avoided by the delegation of responsibility in a particular mode of practice. The defence position on the division of responsibilities is counter-intuitive and defeats the purpose of designating an MRP. If this court accepts the defence position that Dr. Halmo is to trust the respirology team absolutely and chart on obstetric issues only, this court would be accepting that Dr. Halmo served no function beyond that of an obstetrician. Respectfully, this court does not accept that. The standard of care of an MRP is not limited to delegating tasks and responsibilities to experts. An MRP is not absolved of responsibility with respect to a medical condition simply because that medical problem is beyond the expertise of the MRP. As stated in Exhibit 4, the MRP is responsible for a plan of care. That plan should address the totality of care, not only obstetric issues.

Causation

[396] Causation is established where the plaintiff proves on a balance of probabilities that the defendant caused or contributed to his or her injury. The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458 , at para. 14.

[397] In exceptional circumstances, where negligence has been found against two or more defendants and it is impossible to establish causation pursuant to the “but for” test, courts have applied the “material contribution” test to determine causation.

[398] The Supreme Court of Canada summarized the present state of the law of causation in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 SCR 181:

46 The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

[399] The Supreme Court of Canada illustrated situations in which the “material contribution” test might apply in Hanke v. Resurface Corp., 2007 SCC 7, [2007] 1 SCR 333:

27 One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Lewis v. Cook, 1951 26 (SCC), [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied.

28 A second situation requiring an exception to the “but for” test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the “but for” chain of causation. For example, although there was no need to rely on the “material contribution” test in Walker Estate v. York-Finch General Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central.

[400] The Supreme Court of Canada addressed causation in the context of an action for delayed medical diagnosis and treatment in Cottrelle v. Gerrard, 2003 50091 (ON CA), 233 DLR (4th) 45, 2003 CarswellOnt 4154 (Ont. C.A.), leave to appeal refused, [2003] S.C.C.A. No. 549:

25 I agree with the appellant’s submission that, in an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not.”

36 In my view, the respondent established no more than the loss of a less than 50% chance of salvaging her leg had the appellant not been negligent. Unfortunately for the respondent, under the current state of the law, loss of a chance is non-compensable in medical malpractice cases: see Laferriere c. Lawson, supra, St-Jean c. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491 (S.C.C.), Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750 (U.K. H.L.). The trial judge did not explain the basis for her conclusion that “the loss of chance doctrine is not applicable to this case.” In view of the evidence I have reviewed, and in view of the respondent’s concession that there was no evidence to suggest that it was more than likely a better outcome would have followed had the appellant acted with care, the trial judge’s finding reveals either a misapprehension as to the law or a palpable and overriding error on the facts.

Contributory Negligence

[401] Contributory negligence is fault or negligent conduct on the part of a plaintiff which contributed to the plaintiff’s injuries or damages. The burden of establishing contributory negligence is on the defendant.

[402] If a plaintiff is found to have been contributorily negligent the court is required to apportion damages in proportion to the degree of fault or negligence found against the parties respectively: Negligence Act, R.S.O. 1990, c. N.1, s. 3.

[403] Mr. Justice Belobaba summarized a medical patient’s responsibilities in Polera v. Wade, 2015 ONSC 821, aff’d 2015 ONCA 895, at para. 23:

Medical patients have certain duties and responsibilities when seeking medical treatment, including: (a) a duty to provide information to the doctor; (b) to follow instructions; and (c) generally to act in their own best interests. In carrying out these duties, they are expected to meet a reasonable patient standard. If they do not, and the breach of this standard is the factual and proximate cause of their injuries, they may be found to be contributorily negligent. A reasonable patient standard is measured objectively, but the circumstances faced by the patient are also taken into account when determining how a reasonable patient would react in the circumstances. [Emphasis in original.]

DISCUSSION

DR. WIEBE

[404] The majority of the evidence as to Dr. Wiebe’s care of Ms. Skead is not in dispute. On Sunday, May 25, 2008, Dr. Wiebe was working a 12-hour ER shift at the LWDH. Ms. Skead attended the hospital complaining of a headache. She was first assessed by Dr. Wiebe between 9:30 am and 10:00 am. Dr. Wiebe recorded a history which included reference to Ms. Skead’s “recent extensive workup [at the HSC] regarding decreased vision left eye now right”.

[405] Dr. Wiebe ordered pain medication for Ms. Skead’s headache. She requested her recent medical records from the HSC to assist her in understanding what she acknowledged to be a complicated case. Dr. Wiebe attempted to contact Dr. Borys directly for a consultation. He was not on call and she left a message.

[406] Dr. Wiebe re-assessed Ms. Skead at 12:15 pm and recorded decreased pain and “vision still blurry right eye (new).” Dr. Wiebe again attempted to consult directly with Dr. Borys and eventually left a message for him at his home number. Dr. Wiebe did not discharge Ms. Skead at this time although Ms. Skead was feeling significantly better – with decreased pain. Dr. Wiebe asked Ms. Skead to stay in the ER until she had spoken directly with Dr. Borys to clarify the follow-up plan for her.

[407] Of significance in regard to Dr. Wiebe’s efforts to consult directly with Dr. Borys is that Dr. Berger acknowledged that Dr. Borys was Ms. Skead’s consulting neurologist and that Dr. Brankston agreed that Dr. Borys was “probably” Ms. Skead’s current treating neurologist and a physician of recent primary contact for Ms. Skead.

[408] Prior to Dr. Wiebe re-assessing Ms. Skead a third time at 4:20 pm, she reviewed the HSC records to understand the HSC’s differential diagnosis and follow-up plans for Ms. Skead. In doing so, Dr. Wiebe learned that the HSC neurology department would be arranging a follow-up appointment for Ms. Skead with Dr. Borys and that Ms. Skead had been seen by Dr. Chin on May 9, 2008, and was to follow up with him, having cancelled her May 23, 2008 appointment.

[409] Dr. Borys returned Dr. Wiebe’s call around the time of her 4:20 pm re-assessment of Ms. Skead. As a result of her consultation with Dr. Borys, Dr. Wiebe understood that he felt that Ms. Skead’s vision problems were related to a neurological issue and/or possibly a neuro-ophthalmological issue that was being missed. Dr. Wiebe also understood that Dr. Chin felt that Ms. Skead might have optic neuritis. Dr. Wiebe advised Dr. Borys that Ms. Skead now had some change/blurring of the vision in her right eye.

[410] Dr. Wiebe’s discharge/follow-up plan for Ms. Skead included Ms. Skead being contacted by Dr. Chin, Dr. Johnston and Dr. Borys for follow-up appointments. Dr. Wiebe discussed this with Ms. Skead who advised Dr. Wiebe that she could not receive long-distance calls.

[411] It was agreed between Dr. Wiebe and Dr. Borys that Dr. Wiebe would send referral letters to both Dr. Chin and Dr. Johnston and that Dr. Borys would speak directly with Dr. Johnston, with whom he had a working relationship. Dr. Borys had, in fact, spoken informally with Dr. Johnston about Ms. Skead the previous week. Dr. Wiebe was entitled to assume that Dr. Borys would, in fact, speak to Dr. Johnston on May 26 as he had undertaken to do.

[412] When Dr. Wiebe discharged Ms. Skead at 5:45 pm, her left eye vision was stable, both that day and in relation to her recent assessment at the HSC. A follow-up plan had also been implemented. Dr. Berger acknowledged that there had not been a progression of vision loss in Ms. Skead’s right eye over the course of her stay in the ER that day. He also conceded that Dr. Wiebe’s discharge instructions – “notify us if not heard within 24h” – were clear instructions for Ms. Skead to contact the LWDH if she had not heard from Dr. Borys or Dr. Johnston within 24 hours. Ms. Skead agreed that if she had been confused about Dr. Wiebe’s discharge instructions she would have asked for clarification, which she did not.

[413] Dr. Wiebe’s referral letters to Dr. Johnston and Dr. Chin were faxed on May 26, 2008. They were reviewed by Dr. Johnston and Dr. Chin on May 26 and May 28, respectively. Both letters noted Dr. Chin’s recent assessment of “possible” optic neuritis, Ms. Skead’s “persistent”, not progressive, vision loss in her left eye, the new finding of “some blurring” of vision in her right eye and that Ms. Skead’s aunt had VKH. The letters were silent on the urgency of Dr. Wiebe’s referral/consultation. Both were copied to Dr. Borys. There is no issue as to the quality of Dr. Wiebe’s referral letters, which Dr. Hodge described as “clear … concise and … appropriate”.

[414] Exactly when and how Dr. Wiebe learned of Ms. Skead’s aunt having VKH is very much in dispute. In direct examination, Dr. Wiebe testified that she did not have discussions with Ms. Skead about a family history of VKH. She testified that she received this information “later in the shift” from the nurse who had escorted Ms. Skead out of the ER. As a result, she added this information to her referral letters. Ms. Skead’s evidence on this point is unclear and unreliable. However, common sense would suggest that Ms. Skead would have some recollection of having told Dr. Wiebe about the condition that ultimately caused her blindness if, in fact, she had done so.

[415] On cross-examination, Dr. Wiebe repeatedly denied that she had a direct discussion with Ms. Skead about VKH. She insisted that if she had learned of this from Ms. Skead, she would have recorded it in the Emergency Record for May 25, 2008. This Emergency Record is detailed and comprehensive. It has not been criticized by the plaintiff’s expert witnesses. It makes no mention of a family history of VKH.

[416] I find as a fact that Dr. Wiebe did not learn that Ms. Skead’s aunt had VKH until after she had spoken with Dr. Borys and after she had discharged Ms. Skead from the ER. She was cross-examined aggressively on this point and her evidence was logical and consistent. The wording of her referral letters to Dr. Johnston and Dr. Chin notwithstanding, there is no evidence to the contrary.

[417] Dr. Wiebe had never heard of VKH prior to May 25, 2008. It is not disputed that the standard of care would not require an ER physician with a reasonable degree of skill and knowledge to have heard of it. At some point after Ms. Skead had been discharged, Dr. Wiebe researched VKH and learned that it was a type of chronic uveitis requiring prompt treatment with steroids. As noted, she appropriately included Ms. Skead’s family history of VKH in both of her referral letters which were copied to Dr. Borys.

[418] The plaintiff submits that Dr. Wiebe breached the standard of care in two respects:

1. In failing to speak directly to a consultant when she learned that Ms. Skead had new right eye vision loss and an aunt with VKH; and

2. In failing to schedule an urgent, “same-week” appointment with an appropriate specialist in light of the new right eye vision loss, the fact that Ms. Skead had an aunt with VKH and the information that Dr. Wiebe had learned about VKH on May 25, 2008.

[419] It is not disputed that the fact that Ms. Skead’s aunt had VKH put VKH on Dr. Wiebe’s differential diagnosis. In Dr. Berger’s opinion, once VKH was on the differential diagnosis, the standard of care required Dr. Wiebe to speak directly to an ophthalmologist or other consultant who was knowledgeable about VKH “to gauge how critical it was for the patient to be seen and in what time frame.” If she was unable to do so that evening, Dr. Berger opined, the standard of care required Dr. Wiebe to keep Ms. Skead in the ER overnight until she was able to do so. Otherwise, the standard of care required that she discharge Ms. Skead with very clear instructions to return to the hospital the next morning.

[420] Dr. Berger also opined that Dr. Wiebe’s discharge plan – having Ms. Skead seen by Dr. Johnston and, again, by Dr. Chin, Dr. Borys speaking to Dr. Johnston the next day and Dr. Wiebe faxing referral letters to both – breached the standard of care because Dr. Wiebe, as Ms. Skead’s MRP, inappropriately delegated the required direct communication with a physician knowledgeable of VKH to Dr. Borys.

[421] Dr. Brankston opined that the standard of care required Dr. Wiebe to call back Dr. Borys and speak directly to him about Ms. Skead’s family history of VKH in the context of her overall presentation – once Dr. Wiebe had learned of the involvement of Ms. Skead’s right eye and of her family history of VKH. If Dr. Borys was unsure of how to proceed, the standard of care required that Dr. Wiebe call Dr. Johnston directly. If Dr. Wiebe could not reach Dr. Johnston, Dr. Brankston opined that Dr. Wiebe was required to have spoken with the ophthalmologist on call and to keep Ms. Skead in the ER until she had done so.

[422] Had Dr. Wiebe done so, a consultant knowledgeable of VKH would have provided input on the time frame within which Ms. Skead should be assessed by that consultant, according to Dr. Brankston.

[423] Dr. Hodge opined that Dr. Wiebe’s care of Ms. Skead met the standard of care. Dr. Hodge noted that Dr. Wiebe assessed Ms. Skead three times that day and talked directly with Dr. Borys, her treating neurologist. As a result of Dr. Wiebe’s conversation with Dr. Borys, Dr. Wiebe dictated referral letters to Dr. Chin and Dr. Johnston, which were faxed the following morning, and which Dr. Hodge described as clear and concise. The referral letters included the fact that Ms. Skead’s aunt had VKH and they were copied to Dr. Borys.

[424] Dr. Hodge considers a patient diagnosed with VKH to be a priority, not an emergency. He testified that he would book that patient for an appointment within one to three weeks. Dr. Hodge opined that holding Ms. Skead overnight to facilitate a direct consultation with an ophthalmologist knowledgeable of VKH was an extreme measure and beyond the standard of care, given that there was only a family history of VKH and that VKH not been diagnosed. In all the circumstances, Dr. Hodge felt that Dr. Wiebe acted with the appropriate sense of urgency.

[425] Dr. Dufresne disagreed with Dr. Brankston’s opinion that the standard of care required Dr. Wiebe to speak directly with Dr. Borys, Dr. Johnston, Dr. Chin or the ophthalmologist on call after learning of Ms. Skead’s family history of VKH.

[426] Dr. Dufresne agreed that this information added VKH to the differential diagnosis. He noted, however, that this was not a diagnosis of VKH. He noted that the differential diagnosis could have included 15 to 20 different causes of Ms. Skead’s symptoms with the most reliable working diagnosis being optic neuritis. Dr. Dufresne also observed that Dr. Wiebe properly included the information about VKH in her referral letters to Dr. Johnston and Dr. Chin.

[427] Of significance in my opinion, is Dr. Dufresne’s observation that it is beyond the scope of an ER physician in Dr. Wiebe’s position to differentiate between a neurological cause of vision loss and an ophthalmological cause. He was not challenged on this evidence.

[428] Dr. Dufresne opined that as Ms. Skead’s MRP, Dr. Wiebe had met the standard of care. She had done so by consulting directly with Dr. Borys, Ms. Skead’s treating neurologist, and agreeing on a discharge plan. That plan included Dr. Borys speaking directly to Dr. Johnston about Ms. Skead the next morning and both Dr. Johnston and Dr. Chin scheduling Ms. Skead for follow-up appointments, as a result of Dr. Wiebe’s referral letters.

[429] Dr. Wiebe’s discharge/plan of care for Ms. Skead, thus, included a referral to a neuro-ophthalmologist, as suggested by the patient’s treating neurologist, a referral to the patient’s treating ophthalmologist and the patient’s re-attendance with her neurologist and specialist of most recent contact for follow-up.

[430] In my opinion, Dr. Wiebe did not breach the standard of care required of an ER physician in her care and management of Ms. Skead on May 25, 2008. My reasons for this conclusion follow.

[431] Dr. Wiebe assessed Ms. Skead three times on May 25, 2008. She reviewed the medical records from her recent admission to the HSC in order to determine which doctors had seen her and what the working diagnosis was. Dr. Wiebe kept Ms. Skead in the ER for approximately 10 hours and until she had spoken directly with Dr. Borys, Ms. Skead’s treating neurologist.

[432] On discussing her assessment and Ms. Skead’s history with Dr. Borys, Dr. Wiebe confirmed that Dr. Chin’s working diagnosis from his recent assessment of Ms. Skead had been optic neuritis, a neurological condition. She also confirmed that Dr. Borys was concerned that a neuro-ophthalmological issue relating to Ms. Skead’s vision loss was being missed. Dr. Borys therefore recommended that Ms. Skead be referred to Dr. Johnston, a neuro-ophthalmologist whom he undertook to call the next day. It was agreed that Dr. Wiebe would fax referral letters to Dr. Johnston and Dr. Chin, the purpose of the latter being to get Ms. Skead’s treating ophthalmologist “back in the loop”.

[433] Dr. Wiebe discussed the discharge plan with Ms. Skead and provided her with appropriate discharge instructions. This included instructing Ms. Skead to return to the LWDH ER if she had not heard from Dr. Johnston, Dr. Borys or Dr. Chin within 24 hours. Ms. Skead was then discharged.

[434] I have found as a fact that Dr. Wiebe learned of Ms. Skead’s aunt having VKH only after Ms. Skead had been discharged. It was, therefore, not possible for Dr. Wiebe to have kept Ms. Skead in the ER until she had spoken with Dr. Borys or another consultant about Ms. Skead’s family history of VKH – as Dr. Berger and Dr. Brankston asserted the standard of care required her to do.

[435] Dr. Wiebe researched VKH and learned that it was a chronic uveitis requiring prompt treatment with steroids. Unsure of the significance of the family history of VKH in light of the suspected neuro-ophthalmological causes of Ms. Skead’s condition, Dr. Wiebe properly added the information to her referral letters to Dr. Johnston and Dr. Chin and copied both to Dr. Borys.

[436] VKH was now properly part of the differential diagnosis for Ms. Skead but it was not a diagnosis at this point in time. I accept the evidence of both Dr. Dufresne and Dr. Johnston that the differential diagnosis was extremely broad. None of the experts suggested otherwise. I also accept the opinion of Dr. Dufresne that it was beyond the scope of an ER physician in the position of Dr. Wiebe to be able to differentiate between a neurological and ophthalmological cause of vision loss.

[437] I am not persuaded that the standard of care required Dr. Wiebe to talk directly with Dr. Borys, Dr. Johnston, Dr. Chin or the ophthalmologist on call after learning that Ms. Skead had an aunt with VKH. On this issue, I prefer the opinions of Dr. Hodge and Dr. Dufresne over those of Dr. Berger and Dr. Brankston.

[438] Dr. Berger is an ophthalmologist and retinal specialist. In the past, his practice included the diagnosis, treatment and management of patients with VKH. He now refers these patients to specialists. Dr. Berger is not a uveitis specialist and he conceded that Dr. Hodge – who is a uveitis specialist – has greater experience in diagnosing, treating and managing VKH patients. Dr. Berger has never trained or practiced as an ER physician.

[439] Dr. Brankston was a family physician and a part-time ER physician between 1977 and 1995 and again between 2007 and 2018. Dr. Brankston estimated that over the course of his ER practice, he had seen hundreds of patients with emergent or urgent vision problems. This required him to regularly interact with ophthalmologists and neurologists. Dr. Brankston estimated that he had reviewed 50 medical malpractice cases per year over the last 25 to 30 years.

[440] Dr. Hodge is an ophthalmologist and a uveitis specialist. He has diagnosed, treated and managed VKH patients since 1995. Throughout his career, he has acted as an on-call ophthalmologist for ER departments, advising ER doctors on the triaging and management of patients with acute vision problems.

[441] Dr. Dufresne has practiced as an ER specialist since 1999, but for two years of family practice which included ER coverage. Dr. Dufresne has been the Chief of Emergency Medicine at the hospital in Fort McMurray for the last 19 years.

[442] Dr. Berger’s opinion as to what was required of Dr. Wiebe when she learned that Ms. Skead’s aunt had VKH was based on his understanding that this family history elevated Ms. Skead’s status to “urgent/emergent”. Dr. Hodge, who was significantly more experienced than Dr. Berger in diagnosing, treating and managing VKH, testified that patients diagnosed with VKH do not require emergency appointments. He opined that, at this point, Ms. Skead had not been diagnosed with VKH; rather, VKH was included in a broad differential diagnosis.

[443] Dr. Hodge was not directly challenged on this point. I accept his opinion over that of Dr. Berger. Based on the information that Dr. Wiebe had, Ms. Skead’s condition was urgent but was not an emergency. I cannot accept the plaintiff’s submission that on learning that Ms. Skead had an aunt with VKH, Dr. Wiebe, in fact, assessed Ms. Skead’s condition as “urgent”.

[444] On direct and cross-examinations, Dr. Wiebe used the word “prompt” in describing the time frame for treating someone diagnosed with VKH. On discovery, she responded affirmatively when asked if she was aware “how urgent it is for prompt treatment of somebody with a diagnosis of VKH”

[445] With respect, Dr. Berger’s opinion of the standard of care, being predicated as it was on the assumption that the inclusion of VKH on the differential diagnosis for Ms. Skead made her condition “urgent/emergent”, is entitled to little weight.

[446] Dr. Brankston’s extensive experience as part-time ER physician has been augmented by his equally extensive experience as an expert witness in medical malpractice actions. I have no doubt that his opinions in this case are sincerely held. However, with respect, I am persuaded that those opinions have been influenced by his experience in reviewing 50 cases per year over the last 25 to 30 years.

[447] In opining on the standard of care required of Dr. Wiebe, Dr. Brankston apparently failed to adequately appreciate that Ms. Skead’s family history of VKH placed VKH on an extremely broad differential diagnosis. What’s more, having heard and carefully considered his evidence, I was left with the impression that Dr. Brankston inadvertently employed some element of hindsight in testifying to an elevated standard of care. This standard of care anticipated all worst-case scenarios in regard to follow-up.

[448] Dr. Dufresne has practiced exclusively as an ER specialist for the last 20 years. I accept the submission of the defendants that the evidence of Dr. Dufresne represents the standard, not of perfection, but of an ordinary specialist with the reasonable level of knowledge, competence and skill expected of an ER physician.

[449] In my opinion, Dr. Dufresne pragmatically considered the breadth of the differential diagnosis in the context of Dr. Wiebe’s assessments of Ms. Skead and all other information in relation to Ms. Skead that Dr. Wiebe reviewed that day. I accept Dr. Dufresne’s opinion that given all information available to Dr. Wiebe, including her conversation with Dr. Borys at 4:20 pm that day, the standard of care did not require Dr. Wiebe to again speak with Dr. Borys or with another consultant with knowledge of VKH, once Dr. Wiebe had learned that Ms. Skead’s aunt had VKH.

[450] I accept Dr. Dufresne’s opinion that Dr. Wiebe’s actions met the standard of care. As noted by Dr. Dufresne, Dr. Wiebe consulted with Dr. Borys, Ms. Skead’s treating neurologist, after reviewing her history and assessing Ms. Skead three times. Dr. Wiebe actioned Dr. Borys’ advice and referred Ms. Skead to Dr. Johnston, a neuro-ophthalmologist and to Dr. Chin, an ophthalmologist who had seen Ms. Skead on May 9, 2008, and whose scheduled follow-up appointment with her had been cancelled. Dr. Wiebe’s referral letters were complete and concise. They included the fact that Ms. Skead had an aunt with VKH and that the consultants would have to contact Ms. Skead.

[451] Dr. Wiebe discussed the consultations and discharge plan with Ms. Skead and provided her with appropriate discharge instructions, including to return to the ER if she did not hear from the consultants within 24 hours.

[452] Considering all the evidence, I am satisfied that Dr. Wiebe appropriately exercised clinical judgment in arriving at a discharge plan for Ms. Skead. I find that Dr. Wiebe did not breach the standard of care in her treatment of Ms. Skead on May 25, 2008.

[453] The action, as against Dr. Wiebe, is dismissed.

DR. CHIN

[454] Dr. Chin examined Ms. Skead on May 9, 2008, as a result of her being referred to him that day from the LWDH. Dr. Chin was provided with the May 9, 2008, LWDH Emergency Record for Ms. Skead. This record listed both Ms. Skead’s mother, Isabel Seymour, and her spouse, Andy Beaver, as her emergency contacts. Telephone numbers for both were included on the record. Before seeing Dr. Chin, Ms. Skead had provided his staff with “Donna Reed (807) 548-5399” as her alternate contact person.

[455] Dr. Chin’s May 9, 2008, working diagnosis for Ms. Skead was optic neuritis. Dr. Chin wanted to monitor Ms. Skead’s condition and he therefore had his staff book a follow-up appointment with her for May 23, 2008. Ms. Skead cancelled that appointment and did not rebook it when Dr. Chin’s office offered to do so.

[456] On May 28, 2008, Dr. Chin reviewed Dr. Wiebe’s referral letter. He then reviewed his chart from May 9, 2008, and learned that Ms. Skead had cancelled her May 23, 2008, follow-up appointment. While Dr. Wiebe’s letter included the fact that Ms. Skead had an aunt with VKH, Dr. Chin testified that it did not mention any inflammation in Ms. Skead’s eyes or anything else that raised a concern about possible uveitis. Dr. Chin did not consider Dr. Wiebe’s referral to be an ophthalmological emergency. He instructed his staff to book an “urgent” follow-up appointment with Ms. Skead in one to two weeks.

[457] Dr. Chin testified about discussions he had with Sharon Ellis, his now deceased assistant, on her attempts to contact Ms. Skead on May 28, 2008. This testimony was admitted as a principled exception to the hearsay rule, subject to weight.

[458] Dr. Chin testified that Ms. Ellis told him that she had asked the patient to rebook when the patient cancelled the May 23, 2008, appointment. However, the patient had declined to do so. Ms. Ellis further told Dr. Chin that she had called and talked with Ms. Skead’s alternate contact, Donna Reed, later in the day on May 28, 2008. She asked Ms. Reed to have Ms. Skead contact Dr. Chin’s office as soon as she could. Apparently, Ms. Reed advised Ms. Ellis that she would give Ms. Skead the message.

[459] Ms. Ellis had worked for Dr. Chin for more than 10 years. This conversation between her and Dr. Chin occurred in response to his questions to her – after Dr. Chin had been served with the Statement of Claim in this action. Ms. Ellis had then been retired for approximately two years. Dr. Chin did not make any notes of the conversation.

[460] Having carefully reviewed the evidence of this conversation, I am satisfied that it is reliable, and I accept it as accurate. Dr. Chin’s copy of Dr. Wiebe’s May 25, 2008, referral letter has a “May 28, 2008” date stamp on it beside which is printed “Phone # not in serv.” Dr. Chin’s telephone records for May 28, 2008, confirm that his office had a 30-second phone call with someone at the number (807)548-5399, Ms. Reed’s number, at 3:42 pm on May 28, 2008.

[461] The contemporaneous records, therefore, establish that Dr. Chin’s staff called Ms. Skead on May 28, 2008. They learned that the number Ms. Skead had provided was not in service. Then, they called her alternate contact number. The call was connected and lasted a maximum of 30 seconds. It is not disputed that Ms. Ellis was the staff member who placed this call.

[462] The content of the communication between Ms. Ellis and Ms. Reed has not been corroborated. Ms. Ellis is deceased and Ms. Reed was not called as a witness. Ms. Ellis was retired when she discussed these events with Dr. Chin. She would have had no reason to lie about what occurred. It is speculation to suggest, as the plaintiff does, that she had a motive to lie in order to protect Dr. Chin.

[463] The only reason for Ms. Ellis to have called this number was because Ms. Skead provided it on May 9, 2008, as her alternate contact number. I accept that Ms. Ellis placed the call to try to arrange an appointment for Ms. Skead. In my opinion, a 30-second phone call would have provided sufficient time for Ms. Ellis to ask Ms. Reed to have Ms. Skead call Dr. Chin’s office for an appointment.

[464] There would not have been much content to the conversation: only a brief message, which the recipient agreed to pass along, that Ms. Skead should call Dr. Chin’s office for an appointment. I cannot accept the suggestion that an experienced office assistant, or that Dr. Chin, could have materially incorrectly recalled this simple discussion. Even if the double hearsay aspect of this evidence – what Donna Reed told Ms. Ellis – is disregarded, I nonetheless accept as true Dr. Chin’s testimony as to what Ms. Ellis told him she said to Donna Reed.

[465] Ms. Skead never called Dr. Chin’s office for an appointment. Dr. Chin’s office made no attempt to contact either Isabel Seymour or Andy Beaver, despite having their telephone numbers in their chart. Dr. Chin’s office made no further attempts to contact Ms. Skead until they sent her a letter on July 7, 2008, advising her of a July 23, 2008, appointment.

[466] The plaintiff submits that Dr. Chin breached the standard of care of an ophthalmologist by failing to recognize, on his receipt of Dr. Wiebe’s referral letter on May 28, 2008, that Ms. Skead’s visual condition was “emergent”, requiring “urgent attempts” to contact her for an appointment.

[467] Dr. Berger opined that had Ms. Skead received treatment on or before May 31, 2008, more likely than not she would have retained functional vision in her right eye. Given this position, the issue as it relates to Dr. Chin is whether the efforts made to contact Ms. Skead on May 28, 2008, met the standard of care of an ophthalmologist.

[468] Dr. Berger opined that given his May 9, 2008 examination of Ms. Skead and the contents of Dr. Wiebe’s referral letter, the standard of care required Dr. Chin, an ophthalmologist knowledgeable of VKH, to make urgent, daily efforts to contact Ms. Skead, to explain the urgency of her condition and to try to see her urgently.

[469] Dr. Berger further opined that Dr. Chin’s efforts to contact Ms. Skead on his receipt of Dr. Wiebe’s referral letter “did not meet the standard expected of someone knowledgeable in the urgency of the situation and [the] VKH disease.”

[470] Dr. Hodge disagreed with Dr. Berger’s opinion that Dr. Chin failed to appreciate the urgency of Ms. Skead’s condition on reviewing the contents of Dr. Wiebe’s letter. Dr. Hodge testified that Dr. Chin’s efforts on May 28, 2008, met the standard of care. Dr. Hodge was dismissive of Dr. Berger’s opinion that the standard of care required Dr. Chin to make daily attempts to contact Ms. Skead until an appointment was confirmed – a course of action he described as “almost outrageous.”

[471] Having carefully reviewed Dr. Berger’s evidence, I have concerns about its reliability.

[472] Dr. Berger’s opinion as to what the standard of care required of Dr. Chin on May 28, 2008, was necessarily premised on his understanding of the information that Dr. Chin had on that date. This comprised the results of Dr. Chin’s May 9, 2008, examination of Ms. Skead and the contents of Dr. Wiebe’s May 25, 2008, referral letter.

[473] Dr. Berger took no issue with Dr. Chin’s May 9, 2008, “tentative or putative diagnosis” of “optic neuritis left eye.” On May 28, 2008, Dr. Chin learned from Dr. Wiebe that Ms. Skead had one aunt with VKH. Dr. Berger described this as a “strong family history of [the] VKH disease in several … two or three of her … female relatives.” This description, however, is based on the family history obtained by Dr. Johnston on June 17, 2008. Dr. Berger placed considerable weight on the significance of Ms. Skead’s family history of VKH – “VKH certainly shot up the list of possible diagnoses [for Ms. Skead] once the family history was elicited.” It is clear, however, that his doing so was based on a misapprehension of the evidence at the relevant times.

[474] Coupled with Dr. Berger’s misapprehension as to Ms. Skead’s family history of VKH is the fact that, at one point, during his testimony Dr. Berger described Dr. Chin as “receiving a letter indicating that “VKH was a possible diagnosis” At another point, in opining on what the standard of care required of Dr. Chin, he stated, “with Dr. Chin being aware that Ms. Skead had VKH … every possible effort should have been made to try to bring her in quite urgently”

[475] Further, Dr. Berger acknowledged in cross-examination that he had stated in his April 22, 2014, report that Dr. Chin’s office “did appear to make appropriate efforts to reach [Ms. Skead].” He was unable to say when he had changed his position or, to satisfactorily explain why he had done so:

Upon further examination of the report, I believe that my impression was that they made appropriate initial efforts to reach her. But once [Dr. Chin] became aware of the potential diagnosis of family history of VKH, I don’t feel the efforts were appropriate.

[476] Dr. Berger conceded that he had the same clinical information when he wrote the April 22, 2014, report and when he testified at trial. Dr. Berger testified that while he was knowledgeable about the treatment of VKH in 2008, his knowledge “has expanded a lot in the last little while in preparing for this trial and studying the disease and reviewing the literature on VKH.”

[477] There is merit to the defendants’ submission that Dr. Berger’s continued research of VKH following his initial opinion caused him to reverse that opinion. That continued research underpinned his subsequent hindsight opinion that VKH is an emergent condition which required Dr. Chin to have done more to contact Ms. Skead on May 28, 2008.

[478] For these reasons and the reasons set out in my findings pertaining to Dr. Wiebe, I accept the opinion of Dr. Hodge over that of Dr. Berger to the effect that VKH, when diagnosed, is not an ophthalmological emergency.

[479] I also accept the opinion of Dr. Hodge that Dr. Chin met the standard of care in his efforts to contact Ms. Skead for an appointment on May 28, 2008, once he had learned that Ms. Skead was experiencing vision loss in her right eye and that she had an aunt with VKH. These efforts included a call on May 28, 2008, to the telephone number provided by Ms. Skead and which was not in service, a second call on May 28, 2008, to the alternate contact person and a request that the alternate contact have Ms. Skead contact Dr. Chin’s office as soon as she could – a request which the alternate contact agreed to carry out.

[480] I cannot accept the submission of the plaintiff that the standard of care required Dr. Chin, in these circumstances, to also call the plaintiff’s mother and Andy Beaver on May 28, 2008, leave the same message and to do so again on May 29 and May 30, 2008, or until Ms. Skead responded to his message.

[481] The action, as against Dr. Chin, is dismissed.

DR. JOHNSTON

[482] Dr. Johnston completed her residency in neurology in 1987 and clinical and research fellowships in neuro-ophthalmology in 1990. She has practiced as a neuro-ophthalmologist since 1990. Dr. Johnston has never trained or practiced as an ophthalmologist but given her background she had a working knowledge of ophthalmology in 2008.

[483] On May 23, 2008, Dr. Borys informally asked Dr. Johnston, referring to Ms. Skead, if she would see a patient of his “who had optic neuritis.” Dr. Johnston reviewed Dr. Wiebe’s May 25, 2008, referral letter on May 26, 2008. The consultation request informed Dr. Johnston that Dr. Chin was concerned about “possible optic neuritis”, that Ms. Skead’s left eye vision loss persisted, that she now had blurring of vision in her right eye, that Dr. Borys was concerned that a neuro-ophthalmological issue was being missed and that Ms. Skead had an aunt with VKH.

[484] Dr. Johnston’s impression was that “this was an optic neuropathy” and she triaged the consult as “urgent, but not emergent.” Dr. Johnston’s time frame for an urgent appointment was two to three weeks. She instructed her staff, by way of a handwritten note on the fax cover sheet of the referral letter, to attempt to book Ms. Skead for an appointment on Thursday May 29, 2008, her first available opening.

[485] On May 26 or 27, 2008, Dr. Johnston’s staff attempted to reach Ms. Skead by telephone at the number provided in Dr. Wiebe’s letter. The number was disconnected.

[486] Nothing further was done until Dr. Johnston received the mailed copy of Dr. Wiebe’s letter on May 28, 2008. On this copy of the letter, Dr. Johnston made two notations as follows: “discussed with Dr. Borys – needs urgent app’t” and “? June 6 @ 10:00”. The former note relates to a telephone discussion Dr. Johnston had with Dr. Borys; the latter was another instruction to her staff to attempt to book Ms. Skead for an appointment on June 6, 2008, at 10:00 a.m. Dr. Johnston could not recall when she made this note or when she had this telephone conversation with Dr. Borys.

[487] Nothing further was done until June 2, 2008, when Dr. Johnston’s staff contacted the LWDH and obtained the phone number of Ms. Skead’s common law husband, Andy Beaver.

[488] On June 2, 2008, at 12:06 pm, Dr. Johnston’s staff called this number and left a message with “Andy” that Ms. Skead had an appointment with Dr. Johnston scheduled for June 6, 2008. On discovery, Ms. Skead conceded that Andy Beaver had told her that he had received a call from Dr. Johnston’s office asking her to see Dr. Johnston.

[489] On June 5, 2008, Dr. Johnston’s office called Andy Beaver’s number again and left a message with an unidentified person that it was urgent that Ms. Skead contact Dr. Johnston’s office. This person replied that she would have “Allison” return the call.

[490] The particulars of this call were recorded on a note dated June 5, 2008. I ruled this evidence admissible as a business record pursuant to the Evidence Act R.S.O. 1990, c E.23. I accept the record as evidence of the truth of its contents.

[491] Dr. Johnston’s office next wrote to Ms. Skead on June 5, 2008, advising that Dr. Johnston had been asked to see Ms. Skead urgently and requesting that Ms. Skead contact Dr. Johnston’s office on receipt of the letter. Ms. Skead did not do so.

[492] Dr. Johnston ultimately examined Ms. Skead on June 17, 2008. Ms. Skead had attended the LWDH ER on June 10, 2008 and the ER physician had then phoned Dr. Johnston and requested the consult for Ms. Skead.

[493] The plaintiff submits that Dr. Johnston’s conduct fell below the standard of care in her management of Ms. Skead. Specifically, that Dr. Johnston failed to act with the required sense of urgency in response to Dr. Wiebe’s referral letter to ensure that Ms. Skead was assessed on or before May 31, 2008.

[494] As in the case with Dr. Chin, Dr. Berger opined that the window of opportunity to avoid the damages alleged by the plaintiff closed on May 31, 2008. The defendants submit that “the issues as they relate to Dr. Johnston are whether her efforts to reach the plaintiff before May 31, 2008, met the … standard of care.” The defendants submit that Dr. Johnston’s conduct after May 31, 2008, is immaterial to the allegation that she breached the standard of care.

[495] Dr. Berger opined that Dr. Johnston’s efforts to contact Ms. Skead in response to the information contained in Dr. Wiebe’s referral letter breached the standard of care. In Dr. Berger’s opinion, the standard of care required Dr. Johnston to make “same day attempts” to contact Ms. Skead directly for an appointment and/or to call the LWDH to obtain alternate contact numbers and then place daily phone calls to attempt to evaluate Ms. Skead on an emergent basis. Had Dr. Johnston done so and seen Ms. Skead on May 29, 2008, she would have met the standard of care, according to Dr. Berger.

[496] Dr. Hodge testified that assessing a patient diagnosed with a chronic uveitis like VKH within three weeks meets the standard of care. Dr. Hodge further opined that Dr. Johnston’s attempts to contact Ms. Skead – including a telephone call on or shortly after May 26, 2008, for a May 29 appointment, the message left with Andy Beaver on June 2, 2008, and the letter sent to Ms. Skead on June 5, 2008 – met the standard of care.

[497] Dr. Hodge provided a very brief analysis of Dr. Johnston’s actions in relation to the standard of care. He did not provide a specific opinion as to whether Dr. Johnston’s efforts to contact Ms. Skead prior to May 31, 2008, met the standard of care. It is not clear to me that Dr. Hodge appreciated the fact that Dr. Johnston’s office made no contact with Ms. Skead during the week of May 26, 2008, and that the only effort made to do so was a single call to an out of service number.

[498] On her May 26, 2008, review of Dr. Wiebe’s referral letter, Dr. Johnston triaged Ms. Skead’s condition as “urgent”. Consistent with that characterization, she instructed her staff to schedule Ms. Skead for an appointment on May 29, 2008. The only evidence as to what efforts, if any, were made to contact Ms. Skead on May 26, 27 or 28, 2008, is the note reading “not in service” on Dr. Wiebe’s referral letter, next to Ms. Skead’s telephone number.

[499] Dr. Johnston saw the mailed copy of Dr. Wiebe’s referral letter on May 28, 2008, realized that Ms. Skead had not been booked for May 29, as she had requested. She again instructed her staff that Ms. Skead needed an urgent appointment. However, no further attempts to contact Ms. Skead were made until June 2, 2008.

[500] I am satisfied that on her review of Dr. Wiebe’s referral letter on May 26, 2008, Dr. Johnston failed to act with the required sense of urgency to ensure that Ms. Skead was assessed on or before May 31, 2008. Dr. Johnston thereby breached the standard of care.

[501] Dr. Wiebe’s letter informed Dr. Johnston that Ms. Skead had experienced persistent vision loss in her left eye, now had blurring vision in her right eye and that Dr. Chin’s was “concerned” about “possible optic neuritis” which Dr. Wiebe interpreted as a “working diagnosis” of optic neuritis. Dr. Johnston was also made aware that Ms. Skead had an aunt with VKH. Dr. Johnston agreed that she had some knowledge of VKH on May 26, 2008.

[502] Dr. Johnston completely dismissed Ms. Skead’s family history of VKH in triaging Dr. Wiebe’s referral on May 26, 2008. Dr. Johnston testified that it “bore no significance whatsoever”. She testified that it was “not relevant to the diagnosis of optic neuritis” and “when you see a patient who has uveitis, [a family history of VKH] becomes relevant. Otherwise VKH is not even considered within the differential diagnosis.”

[503] I take from this evidence that Dr. Johnston incorrectly concluded, on May 26, 2008, that Ms. Skead had been diagnosed with optic neuritis and that Dr. Chin had “ruled out” uveitis. As of the date that Dr. Johnston triaged this referral, she had been told by Dr. Borys, during an informal conversation that he had a patient “who had optic neuritis” whom he would like her to see. She also had Dr. Wiebe’s referral letter which stated that Dr. Chin was “concerned” about “possible optic neuritis”. According to this referral letter, Dr. Chin had not diagnosed optic neuritis nor had he ruled out uveitis.

[504] I accept the opinion of Dr. Berger that the information conveyed to Dr. Johnston in Dr. Wiebe’s referral letter should have placed VKH on Dr. Johnston’s differential diagnosis for Ms. Skead, even if it was a remote diagnostic possibility. I also accept the submission of the plaintiff that Dr. Johnston’s failure to even consider VKH on what she has fairly described as an “exceedingly broad” differential diagnosis is contrary to the principle of differential diagnosis. This court has described that principle as “a universally accepted rule of medicine:” Adair Estate v. Hamilton Health Sciences Corp., paras. 116 and 153.

[505] Notwithstanding her failure to consider VKH on the differential diagnosis, Dr. Johnston triaged the consult as urgent, both on May 26, 2008, and again on May 28, 2008. In fact, Dr. Johnston perceived it as sufficiently urgent to instruct her staff to book Ms. Skead for an appointment three days later in her next emergency slot.

[506] Between the time of her May 26, 2008, instruction to book an urgent appointment on May 29, 2008, and June 2, 2008, Dr. Johnston’s staff placed a single telephone call to Ms. Skead’s out of service telephone number. Nothing further was done on May 26, 27 or 28, 2008, to attempt to have Ms. Skead brought in for that May 29 appointment. There is no explanation – and no reason – why the attempts taken by Dr. Johnston’s office to contact Ms. Skead on June 2, 2008, could not have been made on May 26, 27, 28 or May 29, 2008.

[507] I accept the submission of the plaintiff that the standard of care required Dr. Johnston to do something more than place a single phone call to a disconnected number, on receiving a referral that she conceded was urgent.

[508] Dr. Johnston realized on May 28, 2008, that Ms. Skead had not been booked for May 29 as she had requested. She again instructed her staff that Ms. Skead needed an urgent appointment. However, no further attempts to contact Ms. Skead were made until June 2, 2008.

[509] Having considered all of the evidence, I find that Dr. Johnston breached the standard of care by failing to take reasonable actions to contact Ms. Skead to schedule an urgent appointment on her receipt of Dr. Wiebe’s May 25, 2008, referral letter.

CAUSATION

[510] I have found that Dr. Johnston breached the standard of care and that Dr. Wiebe and Dr. Chin did not. In the event that I am incorrect in this conclusion, I address causation in regard to all defendants.

[511] The plaintiff must establish on a balance of probabilities that Ms. Skead’s loss of residual partial vision was caused, in fact and in law, by the defendants’ breach of the standard of care: Jendrzejczak v. Weisleder, 2013 ONSC 967, at para. 91.

[512] I accept the defendant’s submission that the loss or injury that the plaintiff alleges she suffered must be carefully defined when analyzing causation. Dr. Berger’s opinion was clearly that Ms. Skead would have retained “useful vision” (at least 20/200) in her right eye for “many years.” Ms. Skead’s alleged loss is therefore the loss of that 20/200 vision in her right eye for an unspecified period. Dr. Berger conceded that there was no hope of saving any vision in Ms. Skead’s left eye.

[513] Dr. Berger’s opinion does not support the plaintiff’s submission that Ms. Skead would have retained residual partial vision in one eye for the balance of her life. The plaintiff has suggested that I infer, from the evidence of Dr. Berger, that Ms. Skead would have retained useful vision in her right eye for the remainder of her life. In the absence of expert evidence on this issue I decline to do so.

[514] The court is required to make a finding of what the actual or specific cause of the plaintiff’s loss or injury was (cause in fact) and whether that loss or injury would have occurred “but for” the defendants’ breaches of the standard of care (legal cause).

[515] The “but for” causation test is to be applied in a “robust common-sense fashion” without the need for scientific evidence of the precise contribution that the defendant’s negligence made to the injury. In exceptional cases, a plaintiff may prove causation by establishing that a defendant’s conduct “materially contributed” to the plaintiff’s loss or injury: Clements, para. 46.

[516] Where a cause of action is founded on an alleged delay in diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the unfavourable outcome would have been avoided but for the delay. A loss of chance to avoid an unfavourable outcome is not compensable in medical malpractice actions: Cottrelle v. Gerrard, paras. 25 and 36, Salter v. Hirst, 2011 ONCA 609, leave to appeal refused, [2011] S.C.C.A. No. 503, para.14.

[517] The Supreme Court of Canada cautioned that presumptions of causation can be drawn only when they are “serious, precise and concordant:” Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, para. 69. Shifting the consequences of causal uncertainty when these criteria are not met runs the risk of reversing the burden of proof: para. 68.

[518] The plaintiff submits