COURT FILE NO.: CV-12-470670

DATE: 20211012

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Craig Bothwell and Miranda Bothwell

Plaintiffs

– and –

London Health Sciences Centre, Victoria Hospital and Cameron Dalton

Defendants

Ms. M. Miller for the plaintiffs

Mr. A. McCutcheon and Ms. S. Margison for the defendants

HEARD: February 10, 2020 and February 22, 23 and 24, 2021

McArthur J.

INTRODUCTION

1Craig Bothwell had Crohn’s disease affecting his small and large bowel. He had a number of earlier resection surgeries. In 2011, he underwent a reverse ileostomy for a resection surgery earlier that year at the defendant’s hospital facility. As he was recovering in the PACU unit, the co-defendant nurse erroneously administered Heparin instead of Voluven.

2A short time later, Mr. Bothwell underwent surgery to relieve abdominal cavity pressure as a result of substantial internal bleeding. Days later he also underwent further surgeries to close the abdomen and related procedures.

3Mr. Bothwell claims he experienced an exacerbation of his symptoms of Crohn’s disease, injuries to internal organs, digestive issues, neurological weakness, muscle wasting, sensory loss, nightmares, emotional distress, anxiety, depression and psychological injury as a result of the erroneously administered medication.

4Mrs. Boswell, pregnant with their first child, thought that she would lose her husband when informed of the medication error.

5This case has proceeded on a bifurcated basis. Liability will be addressed first and this is the decision in this respect.

The Issue

6The main issue at this juncture in this case is whether the administration of the heparin caused the injuries claimed.

7The test is whether the injuries claimed would not have occurred but for the medication error. The act need only be part of the cause of an injury.

8Psychological injuries to the plaintiff are acknowledged by the defendants to having been caused by the erroneous administration of the Heparin medication.

Position of the Parties

9The plaintiffs submit that but for the negligent administration of Heparin postoperatively by the defendants, Mr. Bothwell would not have lost such a volume of blood to lead to his compartment syndrome, necessitating a laparotomy with a VAC dressing and two closure procedures.

10The plaintiffs also submit his wife sustained psychological harm and trauma upon learning of the erroneous administration of medication. These latter harms are not the subject of this decision.

11The defendants submit that Mr. Bothwell was already hemorrhaging before the Heparin administration error occurred, there was no clinical evidence Heparin caused any new bleeding and Mr. Bothwell would have required reoperation to stop the bleeding in any event.

The Law

12This case primarily involves the careful evaluation of the expert’s evidence at this stage in relation to the facts. In this case, I have outlined the factual chronology below which is largely not in dispute and also outlined in greater detail in the evidence of each expert.

13This court is well aware that expert evidence carries with it the risk that the trier of fact will inappropriately defer to the expert’s opinion rather than carefully evaluate it. See White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, [2015]2 2 S.C.R. 182 at para 17 and R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para 21-22.

14Trial judges must not only continue to ensure that the experts actual testimony does not overstep the appropriate scope of the expert evidence, they must also include ensuring that the expert testimony continues to be independent in the sense that the expert does not become an advocate for the party by whom they are called. See Parliament v. Conley 2021 ONCA 261 at para 47.

Background Facts

Mr. Bothwell

15Mr. Bothwell was 40 years of age when this trial commenced. He is married. He and his wife have a young son and daughter, with the youngest born just after the events giving rise to this claim.

16Mr. Bothwell has been a professional paramedic for approximately 20 years.

17He has suffered from Crohn’s disease since he was 12 years of age. He has undergone prior surgical resection and related procedures, particularly in 1995 and 2005.

September 22, 2011 Surgery – reverse ileostomy

18Dr. Kenneth Leslie was the general surgeon who performed surgery upon Mr. Bothwell. He is also the Chief Chair of General Surgery who performs a high volume of gastro-intestinal surgeries with a specialty in pancreatic and umbilic cancers. He had performed prior surgery upon Mr. Bothwell for features of Crohn’s disease.

19In early 2011, Mr. Bothwell had a bowel resection and an ileostomy to protect that resection. This was a loop ileostomy where both the proximal and distal lens of the small bowel were removed through the same opening in the bowel wall, up to his ostomy appliance. As a result of having prior multiple surgeries on his small bowel, Mr. Bothwell also developed short gut syndrome with less of the small bowel available to provide nutrition to his body.

20The reverse ileostomy was an uncomplicated surgery upon the plaintiff and was performed in the afternoon on September 22, 2011 over approximately one hour.

21Briefly, the surgeons worked around the ileostomy site and removed both loops of the bowel through the abdominal wall. They then entered and freed up the intra-abdominal compartment and removed a six to eight cm segment of bowel which was attached to the patient’s muscle layer. They then removed the intestine by dividing the bowel, disconnecting the small veins and then reconnecting these veins which are within the mesentery that supply the intestine and bowels with blood.

22The mesentery contains big blood vessels from the aorta base that fan into smaller vessels as the vessels move through the length of the small bowels. This procedure required doctors only to cut and sew and reconnect part of the mesentery closer to the small bowel and contained smaller blood vessels.

23The surgeons ensured the remaining intestine, supplied blood by mesentery vessels, had a good supply of blood to heal properly. The reattachment of the bowel was hand-sewn instead of stapling to preserve and maximize the small bowel length and prevent short gut syndrome. This procedure takes longer than standard stapling. Once the reattachment was completed, the surgeons placed the reattached area in the abdominal cavity. Dr. Leslie indicated the area as dry.

24The hole in the muscle layer was closed up with the intestine within the abdominal cavity.

25The procedure went as expected without intraoperative nor technical complications. Dr. Leslie commented that due to Mr. Bothwell’s thinness, doctors were better able to see and access his bowels and past scar tissue adhesions were light. None of these posed any problems during the surgery.

26Mr. Bothwell lost 50 ml, less than two ounces of blood during the surgery which, by all accounts, was very small amount of blood loss. The doctors did not expect ongoing blood loss nor post-operative bleeding since the surgical site was dry.

27Dr. Leslie’s primary concerns following the procedure were a failure in anastomosis healing, infection, and sepsis - all of which were more common than post-operative bleeding. Immediately after surgery, he noted no bleeding, intraoperative complications, or other issues with Mr. Bothwell’s blood vessels throughout the procedure. In these circumstances, a post-operative bleed, if there would be one, may be due to a mesenteric hematoma, which is a blood clot or bruise.

28Dr. Leslie acknowledged the risks of this surgery involved bleeding and that bleeding could not be detected until surgery was complete. He also acknowledged that a wound may appear dry at the end of an operation but continue to bleed over time with the primary risk being anastomotic leak.

29Dr. Leslie also explained the different causes of shock; hypovolemic shock (loss of fluid that is not blood, hemorrhagic shock, cardiogenic shock, anaphylactic shock, neurogenic shock and other classes of shock. Hemodynamic instability can be a symptom of shock caused by bleeding where, early on, blood pressure and pulse are normal but the patient becomes tachycardic, indicating a 15 to 30% loss of circulating blood volume.

Post-operative events

30Mr. Bothwell was taken to the post anaesthesia care unit (PACU) for post operative observation at 1:50 pm (1550 hours). Mr. Bothwell’s blood pressure, when initially admitted here was 106/51. This was a normal blood pressure reading based on his baseline, but lower than the standard reading of 120/80.

31A medication error resulted in Mr. Bothwell receiving 20,000 to 30,000 units of Heparin, an anti-coagulant used for thinning out the blood which has a quick onset. A typical therapeutic dose of anti-coagulation would be a 5,000-unit bolus and is never given within hours of surgery.

32Mr. Bothwell recalls waking up in the PACU and heard someone ask if the Voluven had been hung and then heard words of a male person to the effect “that’s fucking Heparin”. As a paramedic, he knew that was not good and that he could bleed to death. He then blacked out. He woke up later with his wife and others there. He experienced shortness of breath and became very hot. He was sedated and intubated.

33He later learned of the administration of Heparin. This shocked him since he knew the effects of the medication caused massive bleeding and also was familiar with the procedure to check and double check medications. He was frustrated and angry, with these feelings persisting.

34Dr. Leslie indicated that Mr. Bothwell’s receipt of Heparin led to a significant intra-abdominal hemorrhage from which Mr. Bothwell became hemodynamically unstable. that is, he became hypotensive; his blood pressure was low (below 100) and tachycardic, his heart rate was high, above 100 beats per minute. Mr. Bothwell had bled a large amount of his blood into his abdomen and had abdominal compartment syndrome; the increased pressure due to fluid, including blood, in the abdomen which compresses the lungs or the kidneys and which, at some point, will result in organ dysfunction.

35Mr. Bothwell received medication to counteract the heparin and also received a large blood transfusion containing packed red blood cells and platelets, all to promote blood clotting.

Further surgeries

36Since Mr. Bothwell had ongoing blood loss, ongoing low blood pressure and enough blood and fluid in the abdominal cavity, his abdomen became tense with pressure that would affect lung and kidney function, an operation was necessary to remove the blood and fluids and to decompress the abdomen.

37On September 24, 2011, an emergency laparotomy was conducted by a larger incision in the middle of his abdomen and the abdominal cavity was examined and drained. This surgery was performed by Dr. Latosinsky who identified the bleeding from the two blood vessels and found no other significant sources of hemorrhage. The plaintiff’s abdomen was initially closed with a temporary dressing since he remained too swollen from a massive blood transfusion.

38On September 26, Mr. Bothwell had to have another procedure to surgically close his abdominal muscles. A final and definitive closure with the insertion of surgical mesh was completed.

39Mr. Bothwell’s incision from his ileostomy site did not heal well. A clot was evacuated and the skin was left open. Mr. Bothwell went home with homecare for packing the wound from the incision. He also developed a right, upper-arm deep venous thrombosis, a clot in the vein from one of the PICC lines. Mr. Bothwell required anti-coagulation in order to dissolve this clot.

40He was also in the intensive care unit with a ventilator and an endotracheal tube in his lungs to assist his breathing. He was extubated on September 28, 2011.

41The laparotomy resulted in Mr. Bothwell’s extended stay in the hospital from three days to at least a week. He was discharged from the hospital on October 5, 2011. Overall, he had a two-week stay at the hospital.

Detailed Chronological Outline

42The chronology of events is as follows:

September 24, 2011

a. 2:12 pm - anesthesia administered

b. 2:25 pm - surgery commenced

c. 3:33 pm - surgery ended and to PACU recovery room

d. 4:00 pm - blood pressure 107/55 and pulse rate of 76

e. 4:15 pm - blood pressure 109/58 and pulse rate of 78

f. 4:30 pm - blood pressure 105/56 and pulse rate of 80

g. 4:45 pm - blood pressure 99/59 and pulse rate of 87

h. 5:00 pm - blood pressure 94/57 and pulse rate of 84

i. 5:30 pm - blood pressure 92/51 and pulse rate of 106

j. 6:00 pm - blood pressure 73/53 and pulse rate of 112

k. 6:15 pm - blood pressure 72/51 and pulse rate of 116, Voluven order

l. 6:16 pm - Heparin administered in error

m. 6:30 pm – pain control medication placed on hold while bolus amounts were administered for low blood pressure

n. 6:45 pm – blood pressure remains low

o. 7:10 pm – blood pressure 76/43, slightly tachycardic at 109-99. Orders placed for CBC tests

p. 7:15 pm – staff anesthesiologist notices medication error of Heparin instead of Voluven and Heparin discontinued

q. 8:20 pm – report of hemoglobin was 78 and P.P.T. (partial thromboplastin) was above 240 seconds. 200 mg protamine ordered and soon administered intravenously

r. 9:06 pm – P.P.T. normal. Effects of Heparin reversed by this time.

September 23, 2011

s. Laparotomy conducted

September 24, 2011

t. VAC change and abdominal closure performed

September 26, 2011

u. Abdominal closure with surgical mesh performed

Expert Medical Evidence

Dr. Fingerote – the plaintiff’s expert

43Dr. Fingerote was qualified as an expert in the area of gastroenterology, fluid resuscitation, the use of Heparin, its effects and side effects and treatment. He was not qualified to give opinion evidence about general surgery.

44He commented that after a review of all of the plaintiff’s earlier surgeries, there was no documentation of prior serious hemorrhages.

45Dr. Fingerote observes from 4:45 to 5:00 pm, there was an increase in the heart rate of the plaintiff and decreases in his blood pressure that became especially bad after 6:00 pm. He indicated there are various possible reasons for blood pressure decreases.

46He noted that the resident intern made an order at 6:15 pm and prescribed Voluven, a volume depletion agent to increase the flow of blood and blood pressure. Mr. Bothwell received 20,000 to 30,000 units of Heparin instead of 500 units. A standard therapeutic dose of Heparin is from 5,000 to 10,000 units to prevent blood clots from propagating or forming in legs, arteries, pulmonary embolisms, spontaneous bleeding or bleeding from small cuts.

47Dr. Fingernote observed that results from INR PPT showed the plaintiff’s blood would not clot and that the source of bleeding would not stop. Cryoprecipitate and fresh frozen plasma were administered to reverse the uncontrolled bleeding. Dr. Fingerote testified that this was too little, too late.

48At 8:20 pm, two hours after the Heparin was in the plaintiff’s system, 200 units of protamine zinc was administered. Dr. Fingernote testified that at this point, the plaintiff was dying; he had no urine output, was in respiratory failure, had already been intubated and was on a ventilator, had a decrease in the heart rate return because of impaired cardiac return. Dr. Fingerote did agree that when PPT became normal, the effects of Heparin were reversed.

49Dr. Fingerote testified the plaintiff was experiencing compartment syndrome from blood entering into his wounds. There was 4 liters of blood with clots in the abdominal cavity. Dr. Fingerote stated that compartment syndrome is a very uncommon complication. As a result of the substantial bleeding within the fixed cavity, the pressure inside the cavity increased to the point that the venous return was impaired meaning there is not enough blood to the heart. The patient cannot inhale and goes into shock.

50He testified the blood clots observed could have formed recently, since by that time (around midnight) the Heparin had been discontinued for 5 to 6 hours and the blood would have been able to clot. He also indicated that the clots could have formed only an hour or two before the laparotomy since the half-life of bolus amount of heparin is between 1 to 2 ½ hours. He did indicate that there is no way of knowing for certain based on the person’s medical functioning and administration of other medications and plasma.

51He agreed that infusions of Heparin can cause new bleeding at a fresh surgical site. He also testified that it was possible that the plaintiff was still actively bleeding since this too would be consistent with the ongoing effects of Heparin. He later agreed the likely source of the bleeding were these two blood vessels and, deferring to Dr. Leslie’s opinion, that even if the blood vessels were bleeding, they would have stopped bleeding spontaneously if Heparin had not been administered. He conceded the plaintiff would have required some resuscitative fluids and blood products if he was bleeding before the Heparin was administered and noted that blood products were not administered which implied the senior resident did not think there was a major bleeding event happening after the surgery.

52During the laparotomy, the surgeons discovered two bleeders from the mesentery around the anastomosis. Dr. Fingerote testified Heparin can induce hemorrhages in relation to other possible intraperitoneal hemorrhage. However, he was not able to say whether the plaintiff had a small anthracosis hemorrhage or a retroperitoneal hemorrhage as a result of Heparin.

53Dr. Fingerote opined the amount of blood in the peritoneal cavity during the laparotomy was due to Heparin preventing the blood from clotting. He stated that it is difficult to predict when such clots can form. Generally, a clot or hematoma would form and that would be the end of the story, as Dr. Leslie stated.

54He disagreed with these suggestions: the plaintiff would have developed compartment syndrome in spite of the Heparin dose; Heparin did not have any significance or relevance toward the bleeding and the compartment syndrome; Heparin was a major contributing factor to his catastrophic intraperitoneal hemorrhage and subsequent hypotension.

55Dr. Fingerote also pointed out that there was no indication of the plaintiff having compartment syndrome when Voluven was first ordered.

56In cross-examination, Dr. Fingerote indicated that there was a strong possibility/high probability the plaintiff was bleeding in recovery in the PACU and that, based on him being tachycardic, he had lost 15 to 30% of his blood volume. Dr. Fingernote agreed the bleeding may have been a factor and probable reason for the decline and abnormal vital signs of the plaintiff. These may also be due to the effects of drugs and dehydration.

57He also indicated the change to the plaintiff’s vitals was related to multiple factors two hours after the operative procedure. Narcotics were not a major factor and there was no tachycardia or decrease in blood pressure when the plaintiff was administered medications during surgery nor did the plaintiff become bradycardic.

58Dr. Fingerote acknowledged the plaintiff was tachycardic and hypotensive and not diagnosed with dehydration prior to the administration of Heparin. He explained an increased heart rate could be due to being scared, nervous and in pain.

59Dr. Fingerote stated that the plaintiff was moving toward shock but not in shock (where the body is not getting enough oxygenated blood) since there was no indication of impaired mentation, a drop in urine output nor indications the plaintiff was cold and clammy. He was not prepared to concede that the plaintiff was in the early stages of shock before being given Heparin since the senior resident notes that the plaintiff was alert, responsive and his cardiovascular and chest signs were normal.

60Dr. Fingerote opined that the plaintiff would not have developed compartment syndrome if bleeding slowly and that the reason he experienced compartment syndrome and shock was that bleeding here was aggressive and rapid. He pointed out that the plaintiff went through 10 bags of blood in a matter of a couple of hours and explained that this is a massive bleed attributed to two small little vessels. This was not a normal clotting situation but rather a massive bleed due to the high levels, 20,000 to 30,000 units of Heparin administered between approximately 6:16 pm and 7:10 pm.

61He opined that absent the Heparin, if the two mesentery bleeders had continued bleeding, the medical staff would have had plenty of time to prepare, the plaintiff would not have gone into shock and would have only required a small incision to find the bleeders and tie them off. This would not have required the laparotomy to correct the compartment syndrome.

62Dr. Fingerote stated that the anticoagulation effects of Heparin would have worn off at the time of re-operation in the early hours of September 24th as a result of the combination of the metabolizing of the medication by the liver and kidneys, fresh frozen plasma and other medications administered.

63Dr. Leslie had indicated that a patient can have reduced or no urine output. This can mean the kidneys are compressed due to compartment syndrome. If bladder pressure exceeds specific limits and the abdomen is tight, this would mean compartment syndrome.

64As to the Foley catheter inserted into the plaintiff at 7:45 pm while in recovery, Dr. Fingerote commented that the plaintiff’s urine output was low and it was highly probable that it was decreased, however, this remained unknown since there was no measure of the amount or urine voided over an specified time span.

Dr. Urbach – the defence’s expert

65Dr. Urbach is a Professor of Surgery and Health Policy, Management and Evaluation at the University of Toronto and a surgeon since 2001 including gastrointestinal surgery, minimally invasive surgery and bariatric surgery.

66Dr. Urbach opined the source of Mr. Bothwell’s bleeding and blood loss was the two blood vessels in the mesentery and that the administration of Heparin could result in complications. His opinion was Mr. Bothwell had sustained intrabdominal bleeding prior to the administration of Heparin or even prior to the order for the Voluven. It did not seem possible to him that the administration of Heparin could have caused the bleeding that led to the complications associated with Mr. Bothwell.

67He cited the surgeon’s operative report indicating the bleeding was from the two bleeders, the vessels in the mesentery. No other sources of significant hemorrhaging were identified. He observed that the surgeons did not do any maneuvers they would typically do if they were concerned that a patient was bleeding from generalized oozing from a tissue’s surface. The surgeon’s operative notes did not suggest that the cause of Mr. Bothwell’s hemorrhage was generalized oozing from multiple tissue surfaces since they did not seem to think or treat him in this way.

68Dr. Urbach found Mr. Bothwell to be in shock in the recovery room which could only be explained by a hemorrhage that would have to have been quite extensive to cause that amount of derangement to blood pressure and the heart rate. He indicated this hemorrhage would likely not have stopped on its own since the plaintiff was hemodynamically unstable within a couple of hours of surgery and predated the administration of Heparin. He concluded that Mr. Bothwell had a severe hemorrhage requiring reoperation before Heparin had been administered and possibly even before Voluven had been ordered.

69He explained that if bleeding from the mesentery does not stop, the surgeons would have had to intervene to stop the bleeding. He stated that, based on Mr. Bothwell’s PACU vitals, it is difficult to determine if the bleeding would have stopped on its own. Based on his determination that the plaintiff was in shock within a few hours of surgery, his opinion was that bleeding would not stop without reoperation.

70He postulated the mesentery vessels were likely in spasm at the end of the surgery and as such, it was normal that the surgeon and the surgical team would not have noticed that the vessels were at risk of rebleeding. However, after the abdomen was closed, the spasm relaxed, allowing the blood vessels to relax and bleed and this led to extensive bleeding in the abdomen as well as the abnormalities in Mr. Bothwell’s vitals while in the PACU.

71Dr. Urbach stated that, based on the vitals in the PACU, the plaintiff would have been administered Voluven, blood cells, and basic plasma-expanding units and very likely would have had blood transfusions whether or not he had received Heparin because of the extent of the hemorrhage and the rapidity. He opined, even if the Heparin had not been administered, the plaintiff would likely have had a complicated post-operative course after the severe, post-surgery hemorrhage, bled out without surgical intervention, had compartment syndrome requiring resuscitation, multiple liters of fluid and a staged approach for abdominal wall closure involving a longer stay in the hospital in any event. He does not believe the Heparin had a meaningful impact on Mr. Bothwell’s post-surgical bleeding.

72Dr. Urbach contrasted the bleeders at the surgical site were bleeding from blood vessels, not from capillaries or hematomas. He explained the bleeding from capillaries or hematomas typically occurs from the lack of proper coagulation, but bleeding from blood vessels typically occurs the blood vessels were not occluded during the surgery. He indicated in this case the vessels were likely in spasm at the time that the surgery was completed then bleeding occurs when the spasms release.

73He stated that bleeding would not normally occur because of anticoagulation because clotting is unlikely to be a satisfactory way to occlude a vessel that is large enough to identify. Coagulation is satisfactory for small blood vessels. However, coagulation would also not stop bleeding from an open blood vessel within an hour or two of surgery since that is not the mechanism by which these macroscopic blood vessels stop bleeding. They stop bleeding because they spasm.

74Lastly, Dr. Urbach testified that Heparin can cause different types of bleeding, usually micro-circulatory bleeds from tissue surfaces where small blood vessels that would normally spontaneously bleed are no longer able to clot off. For example, Heparin typically causes bleeding from capillaries from the muscle which can cause intramuscular hemorrhage and from small vessels and into certain spaces of the abdomen. Heparin could also cause freshly traumatized sites that have small capillaries to ooze blood or fluids on traumatized or abraded surfaces in the abdomen. However, he stated Heparin-caused bleeding would not typically occur with a vessel that was large enough to identify as a discreet site of bleeding when one does a reoperation.

Analysis

75I am mindful that Dr. Leslie was qualified to give evidence as a participant expert and that he conducted the surgery on September 23, 2011. He did not, nor need not, attend the plaintiff in recovery nor conduct the further surgeries upon Mr. Bothwell. I found that Dr. Leslie provided his evidence in a straight-forward, factual and professional manner throughout.

76Dr. Leslie’s involvement post-surgery was limited. Any opinion on the basis of his usual general professional experience but without any real substantial basis is likewise limited and unrelated to the post-surgery evidence in particular.

77Dr. Urbach likewise provided his evidence in a direct and straight-forward manner. He was cross-examined, was courteous and helpful in his responses. This court has no concern as to his reliability and credibility in these proceedings.

78Dr. Fingerote based his opinion as well on the review of medical literature. During cross-examination, it became apparent that he had not in fact read all of the literature he referenced. During his cross-examination, the issue arose as to his reference to other sources which he was directed to disclose. After a substantial Covid-19 delay and through inadvertence or otherwise, this still did not occur.

79During some periods on cross-examination, he became argumentative and there were occasions he would not make reasonable concessions. Throughout his evidence and particularly on cross-examination, Dr. Fingerote became more an advocate for the plaintiff than a professional who could provide scientific medical information and analysis that the court find reliable, trustworthy, and objective.

80At times, Dr. Fingerote over-reached with speculative possibilities. For example, he stated the plaintiff may have been dehydrated between 4:00 and 6:00 pm when in the PACU to explain the plaintiff’s condition. He ultimately admitted that the internal bleeding was the most likely explanation for the condition of the plaintiff.

81However, leaving aside the testimonial observations and concerns for the time being, and conducting a careful review of the evidence, there is no doubt that the plaintiff’s compartment syndrome was caused by bleeding, the only observed bleeding areas were the two blood vessel and there was no other evidence of any other source of bleeding.

82In view of this and Dr. Fingerote’s agreement that the plaintiff’s blood vessels did not stop bleeding until sutured after midnight, well after 9:06 pm when the effects of Heparin had been reversed, only two remaining possibilities could exist in relation to the administration of Heparin; either it had no effect on the plaintiff or it had some effect on clotting between 6:16 pm and 9:06 pm.

83Dr. Urbach’s evidence is that blood vessels spasmed during surgery, appeared dry and then the spasm relaxed post-operatively and continued bleeding. This is the only evidence on this point. This is a non-negligent cause that cannot be ruled out in this case. Significantly, neither Dr. Fingerote nor any other evidence in the plaintiff’s case provide evidence as to the type of bleeding commonly associated with Heparin.

Summary and Conclusions

84As a result, this court is left without the plaintiff establishing an evidential basis as to the effects of Heparin in relation to the plaintiff’s bleeding. This leaves the court only to speculate otherwise in these circumstances. Speculation is not sufficient basis to find in favour of the plaintiffs in these circumstances.

85In conclusion, the plaintiffs have not met the burden of proving on the balance of probabilities whether the administration of the Heparin caused or partly caused the bleeding claimed.

86This finding does not involve any psychological injury.

87Counsel may schedule the resumption of the next part of the trial in consultation with the trial coordinator.