NEWMARKET COURT FILE NO.: CV-14-117930-00
DATE: 20211118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Estate of Milicent Agola Owala, by the Estate Administratror Vivian Awuor Oawal, Vivian Awuor Owala, Andy Ochieng Owala, Michelle Atieno Owala, Prisca Akelo Ogweno, by her Litigation Guardian Vivian Awuor Owala, Lawrence Otila Ogweno, by his Litigation Guardian Vivan Awuor Owala, James Odero Ogwendo, by his Litigation Guardian Vivan Awuor Owala, and Felix Ogweno Ogweno, by his Litigation Guardian Vivan Awuor Owala
Plaintiffs
– and –
Southlake Regional Health Centre, Dr. David Makary, Nicole (Nikki) Watts, and Abigael (Abby) Boakye
Defendants
Miguna Miguna for the Plaintiffs
Gordon Slemko and Jonathan Gutman for the Defendants Southlake Regional Health Centre, Nicole (Nikki) Watts and Abigail (Abby) Boakye and Paul-Erik Veel and Jessica Kras for the Defendant Dr. David Makary
HEARD: March 29 – July 30, 2021
REASONS FOR judgment
woodley, J.:
I. INTRODUCTION
[1] The facts of this case are very tragic.
[2] The deceased, Millicent Agola Owala (Ms. Owala) was a vibrant and beloved young woman, mother, and teacher. On October 17, 2013, Ms. Owala experienced sudden and unrelenting chest pain and arrived at Southlake Regional Health Centre by ambulance.
[3] Approximately five hours later, Ms. Owala died suddenly and unexpectedly in an acute care room, while awaiting further testing and diagnosis. The Coroner determined that Ms. Owala’s cause of death was acute aortic dissection.
[4] Following Ms. Owala’s death, a medical malpractice action was commenced. These are the Reasons for Judgment from the trial of that action.
[5] The Plaintiffs are Ms. Owala’s children, her mother (now deceased), her siblings and her Estate. The Defendants are the hospital where Ms. Owala attended together with the emergency physician and the primary care nurses who cared for Ms. Owala on October 17, 2013.
[6] By the action the Plaintiffs claim that the Defendants were negligent in their treatment and care of Ms. Owala. More specifically, the plaintiffs allege that the Defendants, Dr. David Makary, Nurse Abigail Boakye, Nurse Nicole Watts, and Southlake Regional Health Centre, are jointly and/or severally breached the standard of care applicable to their profession and that such breach and/or breaches caused and/or contributed to the Ms. Owala’s death.
[7] The Defendants deny that any breach of the standard of care occurred. The Defendants assert that Ms. Owala was provided with proper and adequate medical care and treatment that met or exceeded the applicable standard of care. The Defendants further assert that even if a breach of the standard of care by any of the Defendants is found, causation has not been proven and the claim cannot succeed in any event.
[8] The issues to be determined include liability, causation, and damages.
II. OVERVIEW OF FACTS
[9] Ms. Owala was born in Kenya on June 1, 1973. She graduated from university in Kenya with a Bachelor of Education and thereafter obtained employment as a high school teacher.
[10] Ms. Owala married and had three children, namely, Vivian Awuor Owala (Vivian), born May 26, 1994; Andy Ochieng Owala (Andy) born July 25, 1997; and Michelle Atieno Owala (Michelle) born May 7, 2000.
[11] In November 2002, Ms. Owala, her husband, and three children immigrated to Canada.
[12] On April 15, 2003, while residing in Toronto, Ms. Owala was diagnosed with aortic regurgitation. In 2003 and 2004, Ms. Owala attended upon a cardiologist, Dr. Ari Levinson, and an endocrinologist, Dr. Pike.
[13] Sometime between 2003 and 2004, Ms. Owala and her husband separated and divorced. Following separation, Ms. Owala purchased a home in Newmarket for herself and her children and taught high school English at a local high school.
[14] On July 4, 2004, Ms. Owala attended Southlake Regional Health Centre Emergency Department (Southlake) with a minor head injury. The emergency medical records for this visit record that Ms. Owala had a history of “heart valve regurgitation” and “hypertension”.
[15] On August 9, 2009, Ms. Owala attended Southlake Emergency Department with complaints of chest pains. The emergency medical records for this visit record that Ms. Owala only had a history of “hypertension”. “Heart valve regurgitation” was not recorded on the emergency record on this date. A chest x-ray (2 views) was taken on this date.
[16] On June 8, 2012, Ms. Owala attended Southlake Emergency Department with complaints of chest pain. The emergency medical records for this visit record that Ms. Owala only had a history of “hypertension”. Again, “heart valve regurgitation” was not recorded on the emergency record on this date. A chest x-ray (2 views) was taken on this date.
[17] In June 2013, Ms. Owala enrolled in a Masters’ of Education program at the University of Toronto on a full-time basis for the summer semester and a part-time basis for the fall semester.
[18] In September 2013, Ms. Owala returned to her position as a high school teacher for the York Region District School Board. Also, in September 2013, Ms. Owala’s eldest child, Vivian, moved away from home to attend university while her younger children Andy and Michelle, remained at home attending high school and middle school, respectively. Socially, Ms. Owala was dating a gentleman named Ernest Mwanri, an engineer.
[19] In or about September and October of 2013, in addition to supporting herself and her children, Ms. Owala also provided some financial assistance for her mother and brothers living in Kenya.
[20] On October 17, 2013, being the date of Ms. Owala’s death, Ms. Owala woke early and made breakfast for Andy and Michelle and then drove to the high school where she taught, located in Richmond Hill.
[21] Sometime between 10 am and 11 am, while teaching, Ms. Owala had a sudden onset of chest pain. Ms. Owala sought permission to leave school and drove herself home.
[22] On October 17, 2013, at 12:43 p.m. Ms. Owala telephoned 911 from her home. According to the transcript from the 911 recording, Ms. Owala advised that she was 40 years old, had “pain on” her chest, was breathing normally, and did not look pale, grey, or sweaty. When questioned about whether she had a history of heart problems – Ms. Owala advised that she had “high blood pressure”.
[23] At 13:00, EMS arrived at Ms. Owala’s home and performed an exam, attached a 12 Lead ECG, administered ASA, and unsuccessfully attempted to insert an I.V. EMS departed Ms. Owala’s home at 13:12 arriving at Southlake Emergency Department at 13:21.
[24] Upon arrival at Southlake, Ms. Owala was triaged and classified as C2, which denotes a patient requiring urgent and emergent care. Ms. Owala reported her chief complaint to the triage nurse as chest pain which she expressed had a current pain intensity of 8/10.
[25] The Defendant Nurse Abigail Boakye was assigned as Ms. Owala’s primary care nurse and the Defendant Nurse Nicole Watts was assigned as Nurse Boakye’s “floater” nurse to cover Nurse Boakye’s patients when she was unavailable.
[26] At approximately 13:50, Ms. Owala was placed in acute room 14 and Nurse Boakye attended upon her to complete a nursing assessment which assessment Nurse Boakye recorded in the hospital chart.
[27] Ms. Owala reported her chief complaint to Nurse Boakye as being chest pain with a then current pain intensity of 7/10, located midsternal, choking, radiating to her neck, with an onset time of 11:00 am.
[28] Upon assessment, Nurse Boakye initiated Southlake’s “chest pain medical directive known as C1ER”, which once inputted into Southlake’s electronic system automatically propagates orders for various blood tests and a chest x-ray (two views). The C1ER medical directive is a standard medical directive designed to enable nurses to begin necessary investigations pending assessment by the emergency physician. The C1ER is initiated for those individuals who present at the Emergency Department with chest pain together with various other noted symptoms outlined in Southlake’s written C1ER medical directive. After Nurse Boakye initiated the C1ER medical directive, it was inputted into Southlake’s computer system by Nurse Watts on Nurse Boakye’s behalf at 13:56.
[29] At 14:00, Dr. David Makary, who was assigned as Ms. Owala’s primary care physician, attended upon Ms. Owala accompanied by a medical student. Both Dr. Makary and the medical student completed an assessment of Ms. Owala and recorded their findings in the medical chart. Dr. Makary noted that the C1ER medical directive had been initiated and added additional tests, including a “D-Dimer” test, repeat vitals, and ongoing EKG monitoring. Dr. Makary also prescribed medication to be administered to Ms. Owala to treat her pain, hypertension, and nausea.
[30] Also, at 14:00, Nurse Boakye inserted an I.V. into Ms. Owala’s arm and drew blood which was sent to the laboratory for testing in accordance with the medical directive and Dr. Makary’s orders.
[31] Between 14:00 and 18:00, Ms. Owala’s heart was constantly monitored by the EKG machine. Nurse Boakye and Nurse Watts printed off EKG readings for review by Dr. Makary periodically as noted by the medical records (14:05, 15:00, 17:00, and 18:00). Dr. Makary either initialled the printed pages or made notations thereon during his review (see EKG print-outs from the hospital records time stamped 13:53, 13:54, 14:08, 14:28, 14:31, 14:57, 16:57, 17:43, 18:00, 18:21, 18:23, and 18:27).
[32] Also, between 14:00 and 18:00, Ms. Owala’s vital signs were monitored and the medication prescribed by Dr. Makary was administered by either Nurse Boakye or Nurse Watts who attended upon Ms. Owala to perform these tasks at 13:55, 14:00, 14:50, 15:00, 15:30, 15:50, 16:05, 16:10, 16:35, 16:40, 17:00, 17:43, 17:53, and 18:00.
[33] At approximately 16:00 Ms. Owala’s boyfriend, Ernest Mwarni, attended Ms. Owala’s hospital room and remained with Ms. Owala from this point forward.
[34] At 16:15 Dr. Makary attended and reassessed Ms. Owala, reviewed the blood work results received, and noted on the medical chart that Ms. Owala’s pain was still present but much improved. Dr. Makary ordered certain blood work (Troponin and CK) be repeated at 18:00, that bilateral blood pressures be taken at that time, that EKG (print-outs) be repeated at 17:00 and 18:00, and that Ms. Owala be provided with a “nitro patch”. Dr. Makary testified that as the x-ray had not been taken yet that he asked the nurse to follow-up.
[35] At 16:26 Ms. Owala’s chest x-ray (two views) was completed.
[36] At 17:00 Nurse Boakye requested and obtained an oral order from Dr. Makary (charted) for the administration of Ativan.
[37] At 17:35 the on-call radiologist, Dr. Philip Buckler, reviewed Ms. Owala’s chest x-rays and filed a report on his findings.
[38] At 17:53 Dr. Makary reviewed Ms. Owala’s chest x-ray (two views) and Dr. Buckler’s report. Dr. Makary also reviewed for comparison study Ms. Owala’s previous chest x-rays taken in 2012 and 2009.
[39] At 18:15 Dr. Makary attended and reassessed Ms. Owala noting on the medical chart that her “pain persists”. Dr. Makary ordered a repeat of bilateral blood pressure readings to be taken at that time and ordered a repeat of various blood tests including CK and Troponin. Dr. Makary recorded the word “medicine” on the medical chart which he testified meant that he consulted with internal medicine at that time but could not remember the internist’s name.
[40] At approximately 18:26 Mr. Mwanri alerted Nurse Watts that Ms. Owala required immediate assistance. Nurse Watts found Ms. Owala unresponsive, instituted the Code Blue protocol and began CPR.
[41] According to the Coroner’s Investigation Statement, at about 18:31, Ms. Owala went unresponsive and went into sudden cardiac arrest. Despite aggressive resuscitation and external pacing - she was pronounced at 18:56. The coroner concluded that Ms. Owala died suddenly at 18:31 after acute aortic dissection into the left main coronary artery.
The Testimony of the Children: Vivian; Andrew; and Michelle and The Claim
[42] None of Ms. Owala’s children were present at Southlake during the period that Ms. Owala received care on October 17, 2013. As such, none of the children were able to provide evidence regarding the facts relating to the issue of breach of standard of care and instead provided thoughtful and compelling evidence regarding the devastating effect that the loss of their mother has had on their lives.
[43] Each of Vivian, Andy and Michelle testified about their life and relationship with their mother and the effect that their mother’s unexpected and sudden death had upon them.
[44] Each child described Ms. Owala as a wonderful and loving mother who allowed them to live a relatively carefree life. All of Ms. Owala’s children were financially dependent upon her for all their needs and Ms. Owala was the sole source of financial support to her children.
[45] At trial, each of Vivian, Andy, and Michelle, were well spoken, articulate, and thoughtful. All spoke with a sense of dignity about their mother, her life, the loving relationship that they shared with their mother and that they shared together as a family.
[46] The testimony of the children was heartbreaking, honest, and compelling and provided poignant insight into the loss and devastation shared by this small family following the death of their mother. From the testimony of the children it was apparent that Ms. Owala was a true matriarch, who was loving, kind, considerate, generous, compassionate, and truly beloved.
[47] Each of Vivian, Andy, and Michelle, presented as credible witnesses who provided reliable evidence. They should be proud of their testimony and the manner that they each conducted themselves as witnesses in the proceeding.
The Claims Against the Defendants
[48] The Plaintiffs submit that Ms. Owala’s death was both tragic and avoidable and the result of medical negligence.
[49] The Plaintiffs allege that the Defendant, Dr. Makary, was negligent and lacked sufficient knowledge, experience, clinical skill, and concern for the patient’s well-being, constituting a breach of standard of care expected of an ER doctor.
[50] The Plaintiffs allege that Nurses Boakye and Nurse Watts lacked the minimum qualifications, training, competence, knowledge, experience, skill, and compassion to care for or treat Ms. Owala. They claim that the nurses, jointly and severally, failed to meet the standards of care required of reasonable, knowledgeable, and careful nurses under the circumstances. In particular, the plaintiffs allege that Nurse Boakye and Nurse Watts breached the standard of care in three regards:
Failing to advocate for Ms. Owala by requesting that Dr. Makary consider additional measures, including a referral to a consultant;
Failing to adequately document Ms. Owala’s condition and care; and
Failing to monitor Ms. Owala, notify doctors of salient information, and ensure Ms. Owala’s medical equipment was functioning properly.
[51] Underlying the Plaintiffs’ submissions with respect to Dr. Makary and the Defendant Nurses Boakye and Watts are issues of racial and gender discrimination; specifically, medical bias and anti-Black racism against Ms. Owala.
[52] The Plaintiffs’ also submit that the medical records and charts have been falsified to avoid liability and to subvert justice.
[53] A further issue raised by the Plaintiffs concerned the Code Blue protocol that was implemented. However, as no expert evidence was called by any party relating to the Code Blue and as the Coroner determined that Ms. Owala went unresponsive and died suddenly at 18:31 after acute aortic dissection (prior to Code Blue being implemented), these Reasons for Judgment do not address any facts or issues relating to the Code Blue protocol.
III. ISSUES TO BE DETERMINED
1. Breach of Standard of Care
A. Dr. Makary:
[54] What is the Standard of Care Applicable to Dr. Makary as an Emergency Room Physician on October 17, 2013?
[55] Did Dr. Makary breach the applicable standard of care?
B. Nurse Boakye and Nurse Watts
[56] What is the Standard of Care Applicable to Nurse Boakye and Nurse Watts as Emergency Room Nurses on October 17, 2013?
[57] Did Nurse Boakye or Nurse Watts breach the applicable standard of care?
2. Causation
[58] If there was a breach of the standard of care, have the Plaintiffs proven, on the balance of probabilities, that such breach caused and/or contributed to the death of Ms. Owala?
3. Damages
[59] If there was a breach of the standard of care, and such breach caused and/or contributed to the death of Ms. Owala, what damages should be awarded to the plaintiffs?
4. Additional Issues Raised by the Plaintiffs in this Proceeding: Alteration and/or Admissibility of Medical Records and Racism and/or Sexism
[60] Were the medical records of Southlake as contained in the Joint Brief of Documents, and otherwise as produced by the Defendant Hospital, falsified, altered, or amended in any manner such that they should not be relied upon by this Court?
[61] Should the medical records and/or examinations for discovery testimony of any doctor who did not appear as a witness at trial be admitted as evidence in this proceeding?
[62] Did the evidence establish that Dr. Makary and/or the Defendant nurses participate in racial and/or gender discrimination behavior towards Ms. Owala during her time at the hospital. More specifically, was Ms. Owala the subject of medical bias and anti-Black racism?
IV. THE LAW AND ANALYSIS
Assessment of Evidence Generally
[63] With respect to reviewing and assessing the evidence, Thorburn J. (as she then was) provided a helpful summary of the law and the rules to be followed in R. v. Chauhan, 2014 ONSC 5557, at paras. 38-42, as follows:
All evidence should be considered together, rather than assessing individual items of evidence in isolation. This is particularly true where the principal issue is the credibility and reliability of witnesses. Credibility is the witness’ willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall, and recount events. A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. The evidence must be assessed based on the entirety of the evidence provided. A judge can choose to believe some, all, or none of a witness’ evidence.
[64] In assessing the evidence of witnesses, I am further guided by the Supreme Court’s comments in R. v. F. (W. J.), 1999 CanLII 667 (SCC), [1999] 3 S.C.R. 569, as well as the Court of Appeal’s comments in R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, (Ont. C.A.), leave to appeal to S.C.C. dismissed without reasons, [1994] S.C.C.A No. 290.
[65] Every person who gives evidence is an individual whose truthfulness and reliability must be assessed keeping in mind, among other things, that person’s mental development, understanding, and ability to communicate.
[66] It is important to consider the witnesses’ intelligence, experience, and capacity to observe and understand what was happening at the time of the event. A younger witness might not be paying particular attention to some detail that an adult might notice, and a distracted witness might not be paying particular attention to any details. The failure to pay attention might give rise to confusion on such details.
[67] The important questions in that context are whether the deficiencies, if any, are minor or significant and whether the deficiencies mean that events were misconceived.
Demeanor Evidence
[68] While judges are entitled to consider demeanour in assessing witnesses’ credibility, they must be cautious. Demeanour can be misleading and may differ between cultures and communities. Demeanor evidence provides little assistance in determining a witness’ credibility and (in any event) a credible witness may provide unreliable evidence.
[69] A far more reliable indicator of credibility is whether the evidence is consistent with or supported by other independent evidence that is known to be reliable.
Credibility and Reliability: Consistencies and Inconsistencies
[70] Where there are inconsistencies between a witness’ testimony at trial and her prior statements, points of consistency on essential aspects of the allegations are relevant to the credibility and reliability assessment of a complainant’s evidence: see R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34 – 36; R. v. Perkins, 2015 ONCA 521.
[71] Inconsistencies may emerge from things said differently at different times or omitting to refer to certain events at one time while referring to them on other occasions: See R. v. A.M., 2014 ONCA 769, at para. 12.
[72] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. A.M., at para. 13.
Determining the Standard of Care for Doctors
[73] For a claim of negligence to be successful, the Plaintiff must establish, on a balance of probabilities, that the conduct of the Defendant breached an expected standard of care.
[74] In Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at para 69, Justice McLaughlin stated that “general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances”. This standard is qualified in cases involving special skills such as those possessed by a doctor. In such cases, the Defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling” (supra, at para. 69). In cases involved medical malpractice, establishing a breach of standard of care is achieved through expert opinion evidence.
[75] In Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132, [1956] O.J. No. 526 (Ont. C.A.), at para. 13, the Ontario Court of Appeal articulated the accepted standard of care expected of doctors as follows:
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.
[76] When considering whether a reasonable doctor would have undertaken the same course of treatment for their patient, one should avoid using hindsight or a retrospective analysis.
[77] In Lapoint v. Hopital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, 90 D.L.R. (4th) 7, at p. 12, the Supreme Court of Canada held that courts should be careful not to rely upon the perfect vision afforded by hindsight. To evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.
[78] In ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577, at para. 38, the Supreme Court of Canada held that “when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent”. At para 47 the Court further held that “the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence.”
[79] A decision that in hindsight turns out to be wrong, will not necessarily be held to have been a breach of the standard of care so long as the doctor acts “in accordance with a respectable body of medical opinion – even if it is a minority opinion” (Connell v. Turner, [2002] O.J. No. 1543 (Ont. C.A.) at para. 1).
[80] An unfortunate outcome is not the measure of negligence nor is it the measure of a breach of standard of care. As noted in St-Jean c. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53, “Professionals have an obligation of means, not an obligation of result.” So long as the physician was acting as a reasonable doctor would have, it is not a breach of the standard of care if an alternative course of action would have had a more favourable outcome (Stevenhaagen (Estate) v. Kingston General Hospital, 2020 ONSC 5020, at para. 111)
[81] The standard expected of doctors is not perfection; rather, it is ‘the honest and intelligent exercise of judgment” (Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 (S.C.C.), 5 D.L.R. (2d) 113, at p. 812 (as cited in Stevenhaagen (Estate) v. Kingston General Hospital, 2020 ONSC 5020, at para. 109).
[82] The onus is on the Plaintiff to demonstrate that “the decisions and actions of the defendants were not those which would have been taken by a reasonable, competent physician in the circumstances (Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804 (S.C.C.), at pp. 811-812).
[83] An error in judgment will not give a prima facie case for medical negligence (see Wilson v Swanson, at p. 812; Gent and Gent v. Wilson, 1956 CanLII 128 (ON CA), [1956] O.R. 257, at pp. 265; Johnston v. Wellesley Hospital et al., 1970 CanLII 273 (ON SC), [1971] 2 O.R. 103 (H.C.), at pp. 113-14). Further, “an error in judgment has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge” (Wilson v. Swanson, at p. 812).
[84] While physicians may have differing opinions regarding the treatment, it was held in Fish v Shainhouse, [2005] O.J. No. 4575, at para. 12, that if the error could not have been made by a reasonably competent physician with the skill and knowledge that the defendant had, then it is negligent. If, however, it is an error that can be made while acting with ordinary care, the error itself does not constitute negligence.
[85] A court must focus on whether the physician met the standard of care, not on whether a specific act or omission on the part of the physician constituted a fault.
[86] A doctor's behaviour must be assessed in comparison to the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. (See ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577, at para. 46).
[87] It was held in Grass (Litigation guardian of) v. Women's College Hospital, [2003] O.J. No. 5313, at para. 167, that in applying the standard of care, the court asks whether the specialist conformed to general practice in the area, whether the specialist in question managed the patient in a manner in which a reasonably prudent, equally trained and experienced physician would have managed the patient.
[88] In Lee (Litigation guardian of) v. Southlake Regional Health Centre, 2015 ONSC 7509, Gilmore, J. held that the treating physician cannot be held to a standard which would have required him to investigate a possibility where such possibility was close to zero in the circumstances. The Court found that the doctor could not be held to a standard where he must anticipate the worst case but most unlikely scenario.
Determining the Standard of Care for Nurses
[89] Nursing is an “independent profession with its own practices, procedures, and standards of competence”. (Heidebrecht v. Fraser-Burrard Hospital Society, [1996] B.C.J. No. 3042, [1996] B.C.W.L.D. 2697, at para. 121).
[90] The standard of care applicable to a nurse “is that of an ordinary skilled person exercising and professing to have the skills of a nurse and must reflect the education, training, experience and knowledge of the ordinary, skilled nurse” (Dixon v. Calgary Health Region, 2006 ABQB 235, [2006] A.J. No. 348, at para. 73).
[91] The standard which expected of a nurse is average competence (Tekano, Guardian ad litem of) v. Lions Gate Hospital, 1999 CanLII 1578 (BC SC), [1999] B.C.J. No. 1763, 16 B.C.T.C. 194, at para. 109).
[92] It is not a breach of the standard of care for a nurse to fail to achieve perfection or to make a judgment error (Heidebrecht v. Fraser-Burrard Hospital Society, [1996] B.C.J. No. 3042, [1996] B.C.W.L.D. 2697, at paras. 121 and 125-7).
[93] Further, nurses should not be judged using hindsight and should only be judged with knowledge that was, or ought to have been, possessed at the time of the medical treatment. (See Lapointe v. Hôpital le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, 90 D.L.R. (4th) 7 at 363; and Kehler v. Myles, supra, at para. 276).
Expert Witnesses
[94] Although expert reports are exchanged and form the basis for examinations at trial, it is the expert’s testimony that constitutes the evidence, and not the reports. If an expert does not testify to something contained in their report, the trier of fact is not to seek the information from the report. To proceed otherwise would create unfairness in the trial process. (1162740 Ontario Limited v. Pingue, 2017 ONCA 52 at paras 19-20; Iannarella v. Corbett 2015 ONCA 110 at para 131; R. v. Browne, 2017 ONSC 5059.
[95] Experts can only testify to matters on which they have been qualified. Evidence on a topic that falls outside the scope of their qualifications is not admissible. (R. v. Abbey, 2009 ONCA 624 at para 76; White Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC 23 at para 23; Stepita v. Dibble, 2020 ONSC 3041 at paras 27 – 29).
[96] Experts cannot testify on the credibility or reliability of a witness’s evidence. Evidence that the expert believes one witness over another is not admissible. However, this prohibition does not prohibit experts from being able to draw inferences about what transpired. (Parliament v. Conley, 2021 ONCA 261 at para 44; R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 SCR 24 at para 44).
Competing Opinions on Standard of Care
[97] In Vescio v. Garfield, [2007] O.J. No. 2624, Justice Moore crafted the following test for assessing the weight that should be given to expert witnesses, at para. 102: …
in considering the conflicting evidence of experts, the court should weigh and assess in light of these factors:
The relevance of the training, experience and specialty of the witness to the medical issues before the court;
Any reason for the witness to be less than impartial;
Whether that testimony appears credible and persuasive compared and contrasted with the other expert testimony at the trial.
[98] In D.M. Drugs Ltd. v. Bywater, 2013 ONCA 356, [2013] O.J. No. 2486, at paras. 40 and 48, the Court of Appeal quotes, with approval, the trial judge’s approach to weighing evidence:
In taking stock of each of these expert witnesses, I have assessed their credibility by considering their qualifications for the testimony each preferred as well as their partiality, advocacy, and candor. I recognize however that their reliability is a more useful analytical tool for weighing evidence. Therefore, I have also assessed what each expert witness reviewed or overlooked in arriving at their opinion. Is their opinion consistent with the facts that I have been able to accept? Is their opinion internally consistent? As always, the expert evidence is only as useful as the assumptions and the information relied upon by the respective expert witness.
[99] Experts base their opinions on certain facts and assumptions. The Supreme Court of Canada stated in Lavallee: “the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion”: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at para. 74; see also R. v. Kresko, 2013 ONSC 1159, [2013] O.J. No. 1523, at para. 98; R. v. Scardino (1991), 1991 CanLII 13919 (ON CA), 46 O.A.C. 209 (C.A.); and McLean (Litigation guardian of) v. Seisel, 2004 CanLII 9418 (ON CA), [2004] O.J. No. 185 (C.A.), at para. 112.
Medical Records Generally
[100] In medical malpractice actions, medical records are routinely relied upon by Courts as a primary source of evidence. Medical records are also relied upon by members of the medical community as a memory aide and as an anchor for which expert medical opinions are formed.
[101] Medical records are admissible as business records as they are contemporaneously prepared by individuals under a legal duty to prepare them. (See Ares v. Venner, 1970 CanLII 5 (SCC), [1970] SCR 608 at para 26).
[102] Absent evidence that the medical records were falsified or altered, medical records provide proof of the facts stated therein and should be given substantial weight. (See Ares v. Venner, 1970 CanLII 5 (SCC), [1970] SCR 608 at para 26; O.Reg. 114/94; GENERAL, under the Medicine Act, 1991, SO 1991, c. 30, s 18; Setak Computer Services Corporation Ltd. V. Burroughs Busters Machines Ltd., 1977 CanLII 1184 (ON SC), [1977] 15 OR (2d) 750 at para 47.)
[103] A witness, such as the defendant doctor or nurses in the present case, cannot be faulted or criticized because their recollection derives, in whole or in part, from the medical records. Refreshing one’s memory from medical records is entirely appropriate and is common practice in medical trials, just as it is common practice for police to refresh their memories from their contemporaneous notes. (See R. v. Fliss, 2002 SCC 16; Armstrong v. McCall, 2006 CanLII 17248 (ON CA) at para 25.
Joint Brief of Documents (“JBD”): Falsification of Records
[104] Pursuant to the parties’ Agreement on the Joint Brief of Documents (“JBD”), the entirety of the JBD was admitted as authentic and admissible for the truth of its contents.
[105] However, during the trial, the Plaintiffs’ counsel alleged that some of the documents contained in the JBD had been falsified or altered, including the notes made in the medical chart by the Defendants and the McKesson requisition.
[106] Despite this wide-sweeping allegation, no credible or reliable evidence was tendered to support this theory and the expert evidence presented was extremely limited in scope and not determinative.
[107] Dr. Makary, Nurse Boakye, and Nurse Watts all testified that the entries made by them were made contemporaneously at the time indicated by the record and were not altered by them at any later date. While some corrections were made to the nursing progress notes that did not technically conform with the hospital’s directive, the corrections were made immediately and contemporaneously by the original author of the note to clarify the record and not otherwise.
[108] With respect to the vulnerability and ability to alter and/or falsify medical records in a more general sense, representatives from the hospital testified regarding the reliability and authenticity of the medical documents and audit reports, including Linda Bergeron, Manager of Diagnostic Imaging, Barbara Stanek, Manager of Health Information Services, and Yana Nachimovitch, Clinical and Information Specialist. I found each of these witnesses to have presented their testimony in a straight-forward, understandable, and educational manner and all appeared to be credible witnesses who provided reliable evidence.
[109] All hospital representatives denied that the records were falsified and/or altered in the manner suggested by Plaintiffs’ counsel. Further, the representatives denied that the records could be falsified and/or altered in the manner suggested by Plaintiffs’ counsel absent a wide-sweeping and sophisticated conspiracy that would involve numerous individuals including IT professionals and computer programmers and there was no evidence whatsoever that would support such a finding.
[110] During the trial, the Plaintiff sought permission to retain a handwriting expert to challenge the authenticity of the hospital records, particularly relating to entries made by Nurse Watts, which request was granted by me.
[111] Notwithstanding the wide-sweeping allegations relating to falsification of the hospital records, the Plaintiff’s handwriting expert, Brenda Petty, reviewed very limited portions of the record written by Nurse Watts. At best, the only evidence proffered to support the Plaintiffs’ theory by the handwriting expert was that there was one entry in the nursing notes relating to p. 19 of the JBD, being the 18:26 Code Blue entry, that may have been altered by white out and written over. However, this same expert also agreed that the appearance of the entry could also be caused by scanning issues. Nurse Watts adamantly denied that she has ever used white out in a medical record and I unreservedly accept her evidence in this regard.
[112] Having carefully considered the evidence of the handwriting expert as presented and that of Nurse Watts, Nurse Boakye, Dr. Makary, Linda Bergeron, Barbara Stanek, and Yana Nachimovitch, I find that there is no credible or reliable evidence that any of the hospital records admitted in this trial were amended or falsified in any manner. I find that the entirety of the documents contained in the Joint Brief of Documents to be authentic and admissible for the truth of the contents and substantial reliance has been placed upon these records in determining the issues.
Other Medical Records
[113] Other than those medical records contained in the JBD, medical records must be properly proven through the person that authored or maintained those records, or they may be admissible in another manner.
[114] In the present case, there were various medical records that were not contained in the JBD for which no Evidence Act notice was filed, which were put to witnesses. These records include the clinical notes and records of Dr. Lam and Dr. Sood (previous records from Ms. Owala’s treating physicians that did not testify at trial regarding records that were not in the Southlake Regional Hospital electronic database). None of the witnesses who were presented with the records could identify them, none of the authors were called at trial, and as noted none of the records were subject to an Evidence Act notice.
[115] Having reviewed the various records and having considered the arguments of counsel, I find that these records are not admissible and cannot be relied on for any purpose. (See Girao v. Cunningham, 2020 ONCA 260 at para 23).
Other Documents Put to the Witnesses
[116] Documents put to a witness that a witness cannot identify are not admissible, unless otherwise proven. During the trial of this action, documents that a witness could not identify were marked as lettered exhibits. While these documents form part of the trial record as they were referred to, the documents were not proven for any purpose, cannot be relied upon, and were not relied upon by me for any purpose in determining the issues herein.
Examination for Discovery Transcripts
[117] Rule 31.11 provides that the transcript of an adverse party’s examination for discovery can be read into the record by a party during their case. Discovery read-ins can only be used against the party who gave the evidence. It is not permissible to use the read-in of the evidence of a former party against another defendant. (See Urbacon Building Groups Corp v. Guelph (City), 2013 ONSC 5773 at paras 12-20, additional reasons: 2013 ONSC 6165 at paras 13-14).
[118] In the present case, the Plaintiffs’ sought to rely upon the discovery transcript of Dr. Lorne Goldman, an interventional cardiologist at Southlake, who was a former Defendant in this case. As was reiterated throughout the trial, this discovery transcript is inadmissible. If the Plaintiffs’ sought to rely upon the evidence of Dr. Goldman after he was removed as a Defendant, they were required to call him as a witness at trial. The only admissible read-ins in this case are those excerpts of the examination for discovery of Andy Owala, read in by the defendant Dr. Makary.
Authoritative Literature
[119] Academic research or literature can only be put to an expert witness and relied upon by the Court if the witness has acknowledged its authority. The proper procedure is for a witness to be asked if they recognize the literature as authority. If the witness does not recognize the literature or research as authoritative no further use can be put to the document. (Bogdon v. Floman, 2013 ONSC 222 at para 68; R. v. Marquard, [1993] 4 SCR 233).
[120] Literature that has not been proven through a witness cannot be relied upon by the parties and has not been relied upon by me in determining any of the issues at trial.
Findings by Justice Boswell on a Summary Judgment Motion by Other Parties
[121] The Plaintiffs in their Factum and during oral argument referred to Justice Boswell’s decision on summary judgment motion brought by other physicians who were previously Defendants in this action and other related actions. Dr. Makary did not move for summary judgment and the findings on that motion do not bind the Court as it relates to this trial (See Skunk v. Ketash, 2016 ONCA 841 at paras 35). Justice Boswell’s findings have not been relied upon by me in determining any of the issue in this trial.
Evidence of a Regular or Standard Practice
[122] A medical professional’s evidence of their standard or regular practice is also admissible and reliable. Where physicians or nurses have no specific recollection of their dealings with patients, their ordinary or invariable practice can be considered as strong evidence that the physician or nurse acted the same way on the day in question. (See Belknap v. Meakes, 1989 CanLII 5268 at paras 39-40; Turkington v. Lai, 2007 CanLII 48993 (ON SC); Keith v. Abraham , 2011 ONSC 2 at paras 213(cii) and 279; Jones-Carter v. Warwaruk, 2019 ONSC 1965 at para 266).
EVIDENCE RELATING TO STANDARD OF CARE GENERALLY
Testimony of Ernest Mwanri
[123] Ernest Mwanri was Ms. Owala’s boyfriend at the date of her death. Mr. Mwanri attended Southlake approximately two hours after Ms. Owala arrived in response to several messages left for him by Ms. Owala. Mr. Mwanri remained with Ms. Owala, in her room, from approximately 14:00 until she died at 18:31 that day.
[124] Mr. Mwanri advised that he is a software programmer and holds a degree in electrical engineering (Tanzania) and a Masters’ Degree in software engineering from McMaster University.
[125] Mr. Mwarni testified that the day that Ms. Owala went to the emergency department, being October 17, 2013, was a very busy workday for him as he was preparing for a business trip to Singapore the following day. At approximately 2 pm he noticed that he had three text messages and a missed call from around 10 am from Ms. Owala.
[126] One text sent around 11 am by Ms. Owala advised that she was home from school and had called 911. A further text received around 1 pm advised that she was at the hospital.
[127] Mr. Mwanri left work to attend upon Ms. Owala and arrived at Southlake at approximately 15:50. When he entered Ms. Owala’s room she was alone, lying on the bed, hooked to a machine that was monitoring her pressure “and everything”. Mr. Mwanri testified that upon arrival Ms. Owala advised him:
i. She came to the hospital because she had a very strong, very intense pain, chest pain, which was radiating to her neck and was choking her, which began when she was in class teaching and she was unable to continue standing and teaching, so she drove home with some difficulties and that big pain brought her to the hospital;
ii. She didn’t think she had had enough care or the care that she was expecting, because she came to the hospital by ambulance and she didn’t think she had treatment for the reason that brought her to the hospital;
iii. She had high blood pressure which he could see from the readings that were on the wall. Her readings were “really very high, and they were blinking” and was 200/150 at his arrival;
iv. She had explained to the doctor about two hours prior to his attendance about her chest pain and about her history of having a cardiac problem, which involves a leaky valve. She advised that she had skipped breakfast but drank milk. The doctor told her that her body “is in shock because you skipped your breakfast. That’s your problem, you need to relax, you need to go easy, and everything will be fine. You will go home”; and
v. She said that her pain was “extreme, very, very high”. She was having pain like she never had before. She said the intensity of her pain was 10/10 and he did not hear her describe it otherwise while he was at the hospital.
[128] Mr. Mwanri testified that Ms. Owala’s pain was so great that she was “cowering down” and “deliberately asking for help to relieve this pain”. Before he arrived “morphine was given to her in her drip line” and she was “still complaining of very, very extreme pain.”
[129] Mr. Mwanri testified that whenever there was an interaction with the doctor – Nurse Boakye was there – from when he arrived onward. He also testified that Nurse Boakye was the only nurse that attended Ms. Owala, except for the “nurse” that delivered Ms. Owala to x-ray.
[130] Mr. Mwanri first saw Nurse Boakye about 16:00. Ms. Owala told Nurse Boakye that her pain was “very high”, “it’s 10 out of 10”. Approximately 5 minutes later (16:05), while Nurse Boakye was still in the room, someone came to the door and left, and Ms. Owala advised that was her doctor. The doctor did not speak to Ms. Owala or Nurse Boakye. Nurse Boakye remained and the doctor returned about 20 minutes later (16:20 – 16:25). The doctor asked about Ms. Owala’s pain and she said it was 10/10. The doctor said “no, your pain is not 10/10” and there was a “heated debate” between them and the doctor ordered more morphine.
[131] Mr. Mwanri testified that before adding the morphine the doctor stated “Millicent…you only need to relax…there’s nothing wrong with you. You’re going home today. Just relax, just rest, and you’re going to be fine”. In response Ms. Owala said, “I have pain, I have big pain, and the pressure (blood) is high”. To which the doctor responded, “this is normal, there’s no problem, it’s normal”. Mr. Mwanri testified that Nurse Boakye also reassured Ms. Owala that she was fine and would go home that day.
[132] Mr. Mwanri testified that morphine was administered at approximately 16:20 – 16:25 and then Ms. Owala went to the washroom by herself. Nurse Boakye remained and while waiting advised Mr. Mwanri that she was attending McMaster University for her Masters’ degree.
[133] At about 17:00, the doctor returned, and Ms. Owala told him that her pain was 10/10. Her blood pressure was “really bad, it’s high again, 206/163”. Nurse Boakye was in the room. Ms. Owala and the doctor discussed her pain level and the doctor was “almost getting angry” saying he “didn’t see a person with 10/10 pain”. The doctor then asked Ms. Owala if she had children, how many, and was it a C-section or a normal birth? Ms. Owala advised she had three children all-natural births to which the doctor replied, “That is 10/10 pain”.
[134] Ms. Owala was crying “because the doctor was not believing her, whatever she’s saying the doctor is just saying no, it’s not like that. Somebody has to come in, like holding their chest, being on the side, that’s the person who is 10/10”. Mr. Mwanri said that at 17:00 the doctor ordered the x-ray saying “Okay, I will order the x-ray… as more investigation” and before that time there had been “no talk of x-ray or waiting for x-ray results”.
[135] Approximately 5 to 10 minutes after the x-ray was ordered (17:05 – 17:10), a different nurse entered the room, unhooked Ms. Owala from the wires, put her in a wheelchair and wheeled her away to x-ray. Ms. Owala returned about 5 to 10 minutes later.
[136] The doctor re-entered about 10 minutes after Ms. Owala returned from x-ray (17:30) and told Ms. Owala that her heart is enlarged and said “now I’m trying to investigate whether it is your heart or the valve” at which time Ms. Owala told the doctor “this (blood) pressure it has been high too long. What is it going to do to me?” to which the doctor replied “Don’t worry about it, you are in the hospital, that’s a normal pressure, if anything happens to you we will handle it. We’ll take care of it.”
[137] Mr. Mwanri stated that she was in the room with “no machine there for her heart. There was nothing there for her internal organs, …that would actually…help her. So, the doctor left at that time and I never saw him again” until Ms. Owala passed.
[138] Mr. Mwanri testified that after the doctor left, Nurse Boakye returned to the room and said she need to take more blood. Mr. Mwanri recalls that this was a “very traumatic event” because the “nurse tried to get the blood from her veins” and it “wasn’t coming”. He explained, the nurse is putting the needle, trying to move the needle to find whatever she’s trying to find, the vein, it wasn’t working”. Mr. Mwanri said that it was “really painful, like Millicent was crying and this was happening. It was so, so sad to see really. And after that the nurse (Boakye) eventually got the blood…and left”. Mr. Mwanri said that he didn’t see Nurse Boakye until later when Ms. Owala requested a pillow be brought to her room at about 17:30.
[139] Mr. Mwanri testified that Nurse Boakye returned at approximately 18:00 to administer medication which was placed under the tongue.
[140] At approximately 18:30 Ms. Owala was lying on her side and Mr. Mwanri spoke to her about his need to go home to prepare for his business trip the next day. Ms. Owala told Mr. Mwanri that it was okay to go and finish his preparation. Just before he intended to leave, Ms. Owala told him that the pain had gone down, for the first time. Mr. Mwanri went to the other side of the bed to say goodbye and as he was turning the corner he saw Ms. Owala’s eyes open “very, very widely, and kind of go through – kind of like really , really wide, and then started closing very slowly. It was a very strange move”. Mr. Mwanri believed something “abnormal” happened and so he “rushed out to the nurse station” and said, “Please come there’s emergency”. Mr. Mwanri said the nurse was shocked and staring so he repeated his plea “Please come there is emergency” and the nurse (Watts) came into the room with him.
[141] Mr. Mwanri testified that when Nurse Watts entered the room, Ms. Owala was lying on her side. Mr. Mwanri said that Ms. Owala’s skin was very smooth and tight, had had looked bruised, like it was changing. Nurse Watts spoke to her but there was no response at all. Nurse Watts asked Mr. Mwanri if Ms. Owala’s situation had changed and he responded “Yes, yes…she was talking to me, and now she’s not”.
[142] Mr. Mwanri said this was a bad time for him. He couldn’t believe it was happening. Mr. Mwanri stated that while he was at the hospital, he “wasn’t really interacting, I wasn’t doing any conversation because Millicent was doing her own conversation. She was speaking clearly, she understood whatever she wanted to say, so I was there to support her, but I wasn’t’ directly interacting”. Mr. Mwanri clarified this statement to explain that he wasn’t communicating with the doctor regarding Ms. Owala’s care.
[143] Mr. Mwanri remained at the hospital until Ms. Owala’s death was confirmed. He then spent the evening with Ms. Owala’s children and has been a great source of support to the children since Ms. Owala’s death.
[144] During cross-examination Mr. Mwanri testified as follows:
a. Ms. Owala’s blood pressure was for a period of time 216/150 and the lower number was consistently around 150 to 163 while he was at the hospital and he was adamant that his recollection was correct;
b. When it was suggested that Mr. Mwanri was mistaken about the timeline of events (i.e. when the chest x-ray was ordered, completed, and reviewed by Dr. Makary) he insisted that he heard Dr. Makary say at 5 pm that he would order x-ray and once Ms. Owala had her x-ray the results came promptly, within 15 minutes, not hours;
c. When it was suggested that Dr. Makary did not tell Ms. Owala she was in shock because she only had milk for breakfast, Mr. Mwanri responded “that discussion happened in front of me. That’s what the doctor said”.
d. Ms. Owala told him that she told “them” about her failing valve, her blood pressure and had even brought her blood pressure medication to the hospital.
e. The evening of Ms. Owala’s death, Mr. Mwanri stayed with her children and made handwritten notes of his recollection of the events and no where in those notes or any subsequent typewritten version of the notes nor in any affidavit sworn by him did he record that Ms. Owala told Dr. Makary about her leaky valve.
f. He does not recall Nurse Watts attending Ms. Owala. To his recollection only Nurse Boakye attended Ms. Owala (other than the nurse who wheeled her to x-ray).
[145] Mr. Mwanri was well spoken, articulate and intelligent and provided most of his testimony in a calm and forthright manner occasionally interrupted by waves of sincere and heartfelt grief and sadness. Mr. Mwanri presented as a thoroughly credible witness who did not seek any financial benefit from the proceedings.
[146] Mr. Mwanri was quite obviously devastated by Ms. Owala’s death and appears to have struggled to reconcile the events that occurred on October 17, 2013. Having considered the whole of the evidence, I find Mr. Mwanri to be a credible witness, who testified to the court as to the truth of the events as he recalled them. I do not find that Mr. Mwanri sought to mislead the court or to tailor his evidence.
[147] However, I have great concern about the reliability of Mr. Mwanri’s evidence as his account of the events of October 17, 2013, is inconsistent with the medical records and is not supported by any other witness or contemporaneous documentation. Mr. Mwanri’s evidence was demonstrably incorrect on many material points including:
a. The timing when Ms. Owala called 911;
b. Whether Ms. Owala told anyone about her leaky valve;
c. The timing of the ordering of the x-ray by Dr. Makary which had been ordered at 13:56 and not 17:00 as stated by him;
d. The timing of the taking of the x-ray which happened at 16:25 and not 17:10 as stated by him;
e. The timing of delivery of the x-ray results by Dr. Makary which happened at 18:00 – 18:15 and not at 17:10 - 17:25 as stated by him;
f. Ms. Owala’s stated pain levels which were recorded as being between 7/10 – 9/10 and never 10/10;
g. Ms. Owala’s blood pressure readings which were recorded regularly and never in the range reported by him;
h. The identity of Ms. Owala’s nurse being only Nurse Boakye when the records evidence that Nurse Watts attended to check vitals and administer medication while he was in the room including vitals and medication administration at 17:00;
i. His evidence that no one entered the room from 17:30 - 18:26 which is incorrect. The medical records document:
a. 7:43, Nurse Boakye took vital signs;
b. 17:53, Nurse Boakye took pain scale;
c. 18:00, Nurse Boakye administered morphine by I.V.;
d. 18:00 – 18:15: Dr. Makary completed re-assessment;
e. 18:14: blood was drawn pursuant to Dr. Makary’s re-assessment.
[148] As noted, Mr. Mwanri was not directly interacting while at the hospital. He did not take notes of any vital signs, pain scales, or conversations while at the hospital nor did he speak to Dr. Makary or the nurses regarding Ms. Owala’s care and treatment.
[149] While I believe that Mr. Mwanri is a credible witness in that he believes the truth of his testimony, in the face of the contemporaneous medical notes and records and the evidence of the Defendants as supported by the contemporaneous medical notes and records, I do not accept that Mr. Mwanri’s evidence is reliable.
[150] As such, while I find that Mr. Mwanri was a kind, considerate and credible witness, I also find that his evidence on key points is not reliable. For the foregoing reasons, where Mr. Mwanri’s evidence diverges from the contemporaneous medical notes and records and the testimony of Dr. Makary and the Defendant Nurses based on those records, I prefer and accept the evidence as contained in the contemporaneous medical notes and records and the testimony of the Defendants.
Testimony of Dr. David H. Fitchett, Plaintiff’s Expert
[151] Dr. David Fitchett is a certified cardiologist with over 40 years of experience in the assessment of patients with chest pains and acute aortic syndromes and has had a very distinguished and impressive career.
[152] Dr. Fitchett was qualified to opine and provide contextual information regarding chest pain, aortic dissection, and cardiac issues generally and causation as it relates to the death of Ms. Owala.
[153] Dr. Fitchett opined that Ms. Owala had ascending aortic dissection which is a lethal condition with a high mortality rate. Untreated, 40% of patients who arrive at emergency will die within 24 hours and emergency surgery to replace the aortic root reduces the 24-hour mortality to 10%.
[154] Dr. Fitchett opined that a diagnosis of aortic dissection depends upon a high level of clinical suspicion as it can present with a range of different symptoms and many patients do not have the typical presentation. Diagnosis of AD is made from heart imaging with CT angiography and/or echocardiography. Dr. Fitchett opined that if there is any possibility, albeit small, of a potentially highly lethal condition such as AD, the diagnosis needs to be ruled out by imaging with either CT angiogram or echocardiography. Dr. Fitchett conceded that he has no knowledge of whether such machines were available at Southlake on October 17, 2013.
[155] Dr. Fitchett further opined, on a balance of probabilities, that if Dr. Makary had sought a cardiology consult at around 4:15 P.M. while caring for Ms. Owala, the likelihood of Ms. Owala surviving was “promising”. Once AD is recognized, and a cardiothoracic surgeon notified, the patient can be the operating room within an hour of the notification. Once the patient arrives in the operating room, even if she has a catastrophic cardiac arrest and a bleed, there is “a chance, a good chance” but conceded he is not a cardiac surgeon and would not have performed the operation.
[156] Dr. Fitchett advised that the type of bleeding that Ms. Owala was experiencing into her pericardial sac was a “harbinger of disaster” and patients who are slowly bleeding in the pericardium have a very high risk of fatal rupture.
[157] Dr. Fitchett was well-spoken, articulate and extremely well-informed. He did not seek to exaggerate or deride or dismiss the opinions of the other experts in the proceeding. However, there were two underlying errors that affected the reliability of Dr. Fitchett’s evidence: (i) in addition to the medical records available to Dr. Makary on October 17, 2013, Dr. Fitchett was also provided with medical records not available to Dr. Makary; and (ii) Dr. Fitchett was not provided with Dr. Makary’s transcripts from his examination for discovery. These two errors led to several inaccurate assumptions with the result that I have given little weight to Dr. Fitchett’s opinion that Dr. Makary should have had a “high level” of suspicion that Ms. Owala had AD and that Dr. Makary should have ordered a (1) transoesophageal echocardiography, or (2) CT angiogram for Ms. Owala on an emergent basis based on her presentation.
Testimony of Dr. Christopher Glover, Defendant Doctor’s Expert
[158] Dr. Christopher Glover is also a certified cardiologist with extensive experience in the assessment of patients with chest pains and acute aortic syndromes and like Dr. Fitchett has had a very distinguished and impressive career.
[159] Dr. Glover was qualified to was qualified to opine and provide contextual information on the subject of chest pain and cardiac issues generally including aortic dissection and causation as it relates to the death of Ms. Owala.
[160] Dr. Glover testified that chest pain is one of the most common reasons for attendances at emergency and most patients are discharged with a diagnosis of non-specific chest pain. Further, 90% of the patients who present with a potentially life-threatening diagnosis have Acute Coronary Syndrome (ACS) which must be ruled out as a possible diagnosis. Pulmonary embolism is also a common cause of chest pain and the tests ordered by Dr. Makary including serial troponins, ECGS, and D-Dimer, were completely appropriate to assess these most common conditions.
[161] As for aortic dissection (AD), this is a rare condition occurring in 5 – 30 patients per million and in 1 in 10,000 patients admitted to hospital. Acute aortic dissection is a highly lethal condition with a mortality rate over 40% within 24 hours of presentation to hospital and patients who have a pericardium rupture (as happened here) have a significantly higher mortality rate even with operable management. Dr. Glover advised that approximately one (1) case of AD presents at hospital for every 600 ACS cases.
[162] Dr. Glover opined that a diagnosis of AD requires a high clinical index of suspicion as there is no universally accepted clinical risk score. He noted that the most common feature of AD is pain in the chest, back and/or abdomen that is of sudden onset tearing or ripping pain, a positive D-Dimer score, and/or pulse/BP differential.
[163] It was Dr. Glover’s expert opinion that Ms. Owala’s enlarged cardiac silhouette, negative D-dimer test, normal bi-lateral BP readings, her fluctuating hypertension, and pleuritic pain, all pointed strongly away from diagnosing an aortic dissection. As Ms. Owala did not have any of the physical exam features suggestive of AD, she would have been considered at low risk for aortic dissection and it would have appeared very low on any differential diagnosis not warranting a CT angiography.
[164] Dr. Glover further opined that had Ms. Owala been referred to a specialist at 16:15, it is unlikely given her clinical findings that she would have been diagnosed with AD but even if the imaging had been obtained and shown AD, while it is possible, he was unable to say that Ms. Owala would have survived regardless of whether the specialist was an internist or a cardiologist. Dr. Glover acknowledged that he was not a surgeon and was could not opine whether Ms. Owala could have survived had she received an early diagnosis, referral, and surgery.
[165] I found Dr. Glover to be well-spoken, articulate and extremely well-informed. He did not seek to exaggerate or deride or dismiss the opinions of the other experts in the proceeding. Most importantly, Dr. Glover did not base his opinions upon faulty assumptions and informed himself of Dr. Makary’s examination for discovery evidence prior to testifying. I found Dr. Glover to be a credible witness who provided reliable testimony and I have placed great weight on the opinions that he provided to the Court.
REVIEW OF THE EVIDENCE RELATING TO DR. DAVID MAKARY
Testimony of Dr. David Makary
[166] Dr. Makary is primarily a family physician. He completed an Honours Bachelor of Science and attended medical school at McMaster University graduating in 2010. Dr. Makary completed a two-year residence in family medicine from 2010 to 2012, following which he completed a three-month emergency department program between September and November 2012.
[167] Dr. Makary became a fully licensed and qualified physician in the Province of Ontario in July of 2012. Initially, Dr. Makary practised family medicine practise at a clinic at Southlake Academic Family Health and was an emergency room physician at Southlake Regional Health Centre from July of 2012 to December 31, 2015.
[168] In general terms, Dr. Makary explained that when he sees a patient, he records his findings in the medical record. He testified that he is bound by the College of Physician’s and Surgeons’ principles and guidelines on how to document and what to document on the records to be able to follow. Dr. Makary testified that the medical records also demonstrates his thought process throughout and is a way of communicating to the other members of the team so that the nurses and the unit clerks are aware of what he has ordered for the patient.
[169] Turning to the present case, in addition to relying on the medical record, Dr. Makary had an independent recollection of his encounter with Ms. Owala on October 17, 2013, as the case stays with him because it was a tragic event. Dr. Makary noted that Ms. Owala was a young mother who died leaving three children. Ms. Owala’s death left an imprint on him and that is why he believes he has recollections about that day.
[170] On October 17, 2013, Dr. Makary was working in the emergency department at Southlake. He began his shift at 13:00 (1 pm) in the acute ward. Dr. Makary noted that he first attended Ms. Owala at 14:00 (2 pm) and prior to that date and time had never attended upon or treated Ms. Owala. Dr. Makary understood that Ms. Owala had been dropped off by EMS by ambulance and had been seen by the triage nurse as well as her treating nurse in the acute room.
[171] Nurse Boakye completed the initial assessment of Ms. Owala as was the usual practice. As a result of her assessment, Nurse Boakye initiated a medical directive for chest pain known as C1ER, that propagated various standard medical tests that are ordered when a patient presents with chest pain.
[172] Dr. Makary testified that he entered Ms. Owala’s acute room (14) at 14:00 accompanied by a medical student who was assigned to him that day. Dr. Makary obtained consent from Ms. Owala, to have the medical student take the initial history, and complete the initial physical examination.
[173] Dr. Makary made sure that Ms. Owala was stable and safe and that immediate actions didn’t need to be taken, such as resuscitation or a referral to the cardiac catherization lab. Dr. Makary then allowed the medical student to take Ms. Owala’s history and complete her physical exam while he attended other patients. Dr. Makary returned to Ms. Owala’s room to fully review the history and physical, taking most of it himself again, and then pursued treatment and investigations.
[174] Dr. Makary reviewed the medical record contained in the Joint Brief of Documents (JBD) at p. 13, being the Physicians’ Assessment portion of the chart for the court. Dr. Makary testified that, amongst other matters, the chart disclosed as follows:
a. Most of the handwriting contained in this section belongs to the medical student, however, Dr. Makary’s handwriting is interspersed throughout the document reflective of his independent assessment and examination. The notes would have been completed between 14:00 and 14:45.
b. Dr. Makary asked Ms. Owala about her history and reviewed her symptoms asking for any heart issues and covered other heart conditions as well as any abnormalities. Dr. Makary also completed a cardiovascular, neurological, and abdominal exam. His initial assessment began at 14:00 – he left after five to ten minutes with the medical student remaining for a further 20 minutes. Dr. Makary then returned to do a history with Ms. Owala and physical and to review the student’s assessment. The full assessment by Dr. Makary and the student would have taken between 45 and 60 minutes.
c. The physician’s assessment records Ms. Owala’s pain intensity as 5/10. Dr. Makary stated that this was the pain level at ONSET – the notes also record “pain increased over time” and that line is written by the medical student. Dr. Makary testified that he knew the 5/10 referred to pain at onset because the entire section where it is written is referring to Ms. Owala’s pain when she first presented. The fact that the pain began at 5/10 and increased over time supported a differential diagnosis for acute coronary syndrome versus other conditions where the pain is maximal at onset.
d. Immediately below the 5/10 pain record it says “sat down, got slightly better” – this was also part of the medical student’s notes. “Recent stresses – work and study” she was both working as a teacher and studying which was a cause of stress for her. “Past anxiety episodes” “social history” “no smoking, no alcohol, no recreational drug use”.
e. “Physical” “systolic, grade two murmurs – best heart at P and A area” (pulmonic area and aortic area) – written by the student but Dr. Makary also heard the murmur during his assessment and testified that it was not concerning.
f. The medical records note that while the chest pain was still present, Ms. Owala no longer had neck pain and the pain was not radiating anywhere and was dull and not localizable. Dr. Makary testified that the history taken from Ms. Owala pointed towards ischemic changes of the heart.
g. The medical chart records no previous history of MI, and DVT (heart attack or deep vein thrombosis) written by the medical student and “no trauma” written by Dr. Makary – which is important as trauma could be a risk factor for many different types of conditions. “No history of past episodes”, written by the student and “no travel” written by Dr. Makary. “worse by getting up, breathing in”, “no treatment of asthma, no acto/back”, written by medical student – with the insertion “no abdominal pain and no back pain” written by Dr. Makary. The chart then records “no A/A” (headache), no vision changes”, “no pre/syncope” (fainting) “afebrile” “no diaphoresis (sweating)”, written by Dr. Makary said these are important negative findings to narrow the differential diagnosis – for example, aortic dissection and/or neurological conditions can lead to fainting which was not present.
h. “First presentation” was written meaning she advised that she hadn’t previously been seen for chest pain in the ER. “No URI, S/SX” (no upper respiratory infection), were all written by Dr. Makary.
i. Dr. Makary testified that Ms. Owala did not tell him that she had previously attended the emergency department for chest pain and did not tell him she had a “leaky valve”.
j. Under the section PMH (past medical history) “hypertension” was noted with medications noted. “No ocp use” (oral contraceptive). Under PMHX (past medical history), “no MI” written by Dr. Makary, and “not sure about VBT” written by the student. “No anxiety” written by Dr. Makary “not sure about depression” written by the student. Dr. Makary explained that questions concerning anxiety and depression relate to chest pain, but neither were present here. “
k. At the top of the chart “G3P3 and SVD x3” were written by Dr. Makary which means G3 (three pregnancies), P3 (three deliveries), SVD (spontaneous vaginal delivery).
l. While Ms. Owala was being assessed, her blood pressure was being monitored and otherwise was written on the chart as being 161/82. Dr. Makary said that high blood pressure in the emergency room is very common and is dangerous to treat without a diagnosis although nitro does provide some blood pressure relief.
[175] Dr. Makary testified that from his first assessment of Ms. Owala he was working on a differential diagnosis which means a list of working diagnoses. First and foremost, acute coronary syndrome (ACS) was on the top of his differential diagnosis as the potential cause of her chest pain. Then pulmonary embolism (PE) was also on the differential diagnosis as well as conditions that could potentially lead to chest pain such as pneumonia, pericarditis, hemothorax, and lower down as well, peptic ulcer and aortic dissection (AD).
[176] Dr. Makary explained that ACS was at the top of his differential diagnosis because Ms. Owala had a risk factor of hypertension and ACS is one of the most common, if not the most common emergent causes of chest pain. Dr. Makary testified that Ms. Owala’s symptom description, with the pain starting lower and then increasing – presenting with choking pain radiating up to her neck – all point towards ACS. He also noted that he reviewed the ECG that had some inverted T-waves.
[177] PE was next on his differential diagnosis as it is a common cause of acute chest pain. The symptoms of sudden onset, and some of the characteristics of Ms. Owala’s pain pointed towards PE such as the fact that her pain go worse when she breathed in.
[178] Dr. Makary testified that aortic dissection (AD) was on his working differential diagnosis, however, it was lower down because Ms. Owala presented with certain characteristics and risk factors that were contrary to aortic dissection, for example:
a. Her chest pain increased over time;
b. She wasn’t pregnant;
c. She had no family history of aortic dissection or cardiac tamponade that she told them about;
d. Her pain did not radiate to her back or the spine or abdominal area which is common with aortic dissection;
e. The pain was described as “dull and not localized” and not as tearing or ripping which is how pain related to aortic dissection is often described;
f. She was young, which is atypical;
g. She had no fainting symptoms; and
h. She had no neurological findings such as headache or vision changes.
[179] Dr. Makary testified that Ms. Owala’s symptoms as presented pointed away from aortic dissection. While he put AD on his differential diagnosis, and kept it there, which is demonstrated through his repeated orders for bilateral blood pressures (both normal) - AD was low on his differential diagnosis for the reasons noted above.
[180] Dr. Makary testified that he did not write the working differential diagnosis on the chart as it is a working list in his mind where things move up and down and slowly emerge as different test results come back. He further testified that it is not common practice for an emergency doctor to record their working differential diagnosis because they would be spending their time writing the list, editing it, organizing it from top to bottom and amending the list as test results returned. However, you can see through the history of tests that were ordered what he was thinking about for the differential diagnosis. Dr. Makary noted that the medical record contained a box with the text “provisional diagnosis” where he had written “CP, NYD”, which means chest pain, not yet diagnosed as he was continuing to investigate to determine the diagnosis.
[181] Dr. Makary testified that in Ms. Owala’s case, the chest x-ray showed that her heart was enlarged (cardiomegaly), which finding is not indicative of aortic dissection but is indicative of an issue with her pericardium or the lining of the heart.
[182] Dr. Makary testified all orders, including the chest x-ray, made in the emergency department pursuant to the cardiac protocol (as it was here), are to be done stat, which means right away. However, with testing they often get blood drawn first, do an assessment, order investigations like blood work and ECG and once the patient is confirmed as stable and some of the investigations are back, then the patient gets the chest x-ray a bit further along in the investigations.
[183] In Ms. Owala’s case, at her initial assessment at 14:00, in addition to the C1ER cardiac protocol blood tests ordered, Dr. Makary ordered the following additional tests:
a. D-dimer to rule out PE and if the test is negative (which it was) this also puts aortic dissection further down on the differential diagnosis list;
b. EKG (electrocardiogram) print-outs and monitoring to continue;
c. Repeat vitals – blood pressure or heart rate, oxygen saturation, temperature to provide ongoing monitoring of her status by the nurses; and
d. Medications: nitro (for pain and helps to reduce blood pressure); morphine (for pain); and Gravol, as needed.
[184] Dr. Makary testified that he considered at CT scan but chose not to order it considering the resources available and how low aortic dissection was on the differential diagnosis.
[185] Dr. Makary stated that he did not consider seeking a consult from an internal medical specialist or a cardiologist following his initial assessment as it was much too early. It was his task as the emergency physician to stabilize the patient and do the initial work-up to try and diagnosis the chest pain.
[186] In addition to the assessment and re-assessments charted, it was Dr. Makary’s usual practice to pop his head into a patient’s room and do a visual assessment and look at the monitors. He would not chart these attendances. unless a change in the patient’s condition was noted.
[187] Dr. Makary confirmed that he reviewed Ms. Owala’s ECG printouts regularly during her attendance commencing at 14:00 (printouts 13:53; 13:54) which he noted to be repeated in 5 minutes. The tracings were abnormal and the findings non-specific, so Ms. Owala needed to be further monitored and worked up. Further tracings were presented including tracings printed at 14:08; 14:28; 14:31; 14:35 and 14:57 which Dr. Makary advised were all abnormal and the findings non-specific but worrisome for ischemia and ACS.
[188] At 16:15, Dr. Makary performed a re-assessment that is documented in the progress notes (JBD, p. 56) entirely in Dr. Makary’s handwriting that reflect Ms. Owala’s status as at 16:15: “pain still persists but much improved, n/v (not vomiting) no fever, no shortness of breath or palpitations, no abdominal or back pain. No pre-syncope (fainting) no headache, some ischemic changes; EKG is abnormal”. The blood results had returned including a negative D-Dimer which made aortic dissection less likely. Dr. Makary still didn’t have a diagnosis, needed to continue investigating and ordered further tests including bilateral blood pressure readings (normal) which test was specifically directed at aortic dissection even though it was low on the differential.
[189] During the 16:15 re-assessment, Dr. Makary noted that the x-ray had not been taken and asked the nurse to follow up. He did not consider ordering a CT scan as aortic dissection was very low on his differential diagnosis and did not fit with the patient’s scenario.
[190] Dr. Makary testified that he was not considering a referral at 16:15 as he was continuing to work on diagnosing the cause of the chest pain and would have received a lot of resistance as the most likely diagnosis was ACS which can’t be ruled out without two Troponin tests. Also, the chest x-ray had not returned yet, so pneumothorax had not been ruled out.
[191] Following the 16:15 reassessment, Dr. Makary reviewed further EKG tracings including tracings done at 16:57; 17:43; and 18:00 which were similar to the earlier tracings (shown to him prior to 16:15) in that they were abnormal and non-specific.
[192] At 16:43 Dr. Makary provided a verbal order to Nurse Boakye to administer Ativan, one milligram sublingual, to calm anxieties and nerves. This order was given in response to Nurse Boakye’s request and in response to her concern for Ms. Owala.
[193] At 17:53 Dr. Makary accessed Ms. Owala’s chest x-ray imaging on the hospital PACS system which indicated that she had cardiomegaly (an enlarged heart). He then quickly viewed Ms. Owala’s previous x-rays and learned that the cardiomegaly was a new finding.
[194] At 18:15 Dr. Makary (again) re-assessed Ms. Owala and noted his findings in the medical chart (JDB, p. 56). The medical chart notes that pain persists, bilateral blood pressures are normal, and cardiomegaly, on the chest x-ray. Dr. Makary sought additional blood work and referred Ms. Owala to internal medicine which referral was in keeping with Southlake’s referral policy. Dr. Makary said that the differential diagnosis was broadening to include thyroid issues, inflammatory issues, and vasculitis.
[195] The medical record (JDB, p. 56) contained a notation “medicine” noted at 18:15 which Dr. Makary testified “is well understood to as a referral to Internal Medicine”. Dr. Makary spoke to the medicine specialist, told him about Ms. Owala’s case, and handed the case to the internal medicine specialist. Dr. Makary testified that he made the referral at 18:15 because the chest pain continued, and the diagnosis was unclear.
[196] At 18:30, Dr. Makary was called to Ms. Owala’s room in response to the Code Blue. Despite attempts, the team was not able to resuscitate Ms. Owala and Dr. Makary pronounced Ms. Owala’s death at 18:56 and the family was notified of her death.
[197] Dr. Makary provided the following response with respect to the claims made by Mr. Mwanri:
a. He would never have told Ms. Owala that her pain was not as she stated. Pain is subjective and its for the patient to tell him what her pain level is. If Ms. Owala had told him that her pain was 10/10 he would have charted 10/10.
b. He would not have advised Ms. Owala that childbirth is 10/10 pain. He had done an obstetrical history at 14:00 and noted her pregnancy and deliveries on the medical record. He would not assume that childbirth is a 10/10 standard, that’s not the case. A 10/10 is the worst pain you’ve ever felt and a 0/10 is no pain. The patient is free to choose whatever number she believes her pain severity level is.
c. While he can’t confirm that he told Ms. Owala that she needed to relax or that there was nothing wrong with her and that she would be going home that day – as an ER physician it’s his role to try to find out what is causing her pain and to treat it. He would have tried to reassure her, but he does not believe he told her she would be going home. Eventually he referred Ms. Owala to internal medicine to keep her in the hospital.
d. He never saw that Ms. Owala’s blood pressure at any time was 206/150 either on the monitor or reported in the charts.
e. Dr. Makary may have advised Ms. Owala that they were trying to investigate whether it was her heart or the valve after he told her about the enlarged heart, but he didn’t recall saying that exact sentence to Ms. Owala.
[198] Dr. Makary did not have access to Ms. Owala’s records from her family doctors or her a treating cardiologist as these records do not form part of the hospital’s electronic record system but he did have access to the hospital’s EMR which is an electronic medical record.
[199] During the cross-examination, Dr. Makary provided the following additional evidence:
a. Dr. Makary’s management of Ms. Owala would not have changed had the nurses asked if they were missing something, should they do more, or that an earlier consult be obtained. It is a physician’s responsibility to seek a consult not a nurse’s;
b. Dr. Makary could not recall the internist’s name that he spoke to on October 17, 2013. It is his practice to record the specialty consulted not the name of the doctor. When challenged that he did not consult with anyone, Dr. Makary testified: “I disagree. I did consult with a specialist. His room was right there in the acute room and I spoke with him. Not remembering a name, it doesn’t mean I didn’t speak to them”. When presented with the emergency schedule so that he could identify the internist – Dr. Makary noted that all names listed were emergency physicians and none were internal medicine specialists.
c. Dr. Makary compiled his working differential diagnosis based on objective findings. While he agrees it is a subjective decision, it is based on objective data.
d. In 2013, in Ontario, it was understood that a negative D-Dimer lowered the threshold of aortic dissection as most patients with AD had a positive D-dimer.
e. He did not think that there was a need to have the x-ray completed ASAP following his assessment as it is always considered to be a STAT order.
f. He did not minimize Ms. Owala’s pain or belittle her. “I disagree that I was minimizing her pain and I hope she was not upset at me for those, for those reasons. If that is certainly not something I intended to do, nor do I believe I did.” Dr. Makary denied that he would have suggested that Ms. Owala was in shock for missing breakfast as that is not medically possible and disagreed that he suggested that she didn’t know her own pain level as this is subjective.
g. In response to the question as to why, out of the entire documentation, the 5/10 pain scale number only came from Dr. Makary he replied: “Truthfully, I think it suggests that we asked her what her pain was at onset. I don’t know if the triage nurse or EMS asked what her pain level was at time of onset”.
h. When confronted with Dr. Makary’s examination for discovery evidence that Ms. Owala’s pain level of 5/10 was her pain at assessment he explained the inconsistency as follows: “…my apologies, I must have misspoken at the time. The section of the chart where it’s denoted that her pain is 5 out of 10 is clearly the section of the chart that is describing pain when it began and so, the 5 out of 10 pain is at onset. My apologies for, for misspeaking during the examination for discovery”.
i. When questioned about the practice that women and black people in particular having a history of their pain not being recognized, he responded: “You know, not only their pain, but, …even just the presentation of treatments of black people that have not been appropriate in all circumstances. I do agree with you, pain and much more.”
j. When questioned whether Dr. Makary’s actions of recording Ms. Owala’s pain as 5/10 wasn’t reflective of bias, he responded: “I will disagree with that... these unconscious racial bias, first of all, they’re terrible and it’s sad that, that such a thing would occur, but the first step in protecting against that is to realize that they exist and that is how we can guard against ourselves demonstrating those biases. So, I agree that those unconscious biases are there and I’m aware of them and try to guard against that, and the 5 out of 10 pain was just at onset. We did note that her pain progressively worsened over time and recorded multiple times in the emerg record that it was 7/10, 8/10 and 9/10, so we weren’t minimizing her pain at all. Simply put, in the emerg record it started as moderate and it became severe pain”.
k. The finding of cardiomegaly on Ms. Owala’s x-ray is a common finding seen in emergency and he has never had a radiologist call him for finding cardiomegaly on an x-ray.
l. While he could have viewed Ms. Owala’s previous emergency record visits he didn’t because Ms. Owala did not advise that she had attended for chest pain previously (as noted on p. 13 of the chart) and he believes a patient when they tell him that. He did access prior diagnostic imaging to compare her x-ray results to see if the cardiomegaly was a new finding and it was apparent there was a change.
m. At 18:15 when Dr. Makary saw Ms. Owala’s x-ray his differential diagnosis widened. However, the x-ray was not suggestive of aortic dissection.
n. Dr. Makary did not send Ms. Owala for a CT angiography with contrast as “Ms. Owala didn’t present as an aortic dissection patient”.
[200] Dr. Makary testified in a forthright and direct manner. He underwent cross-examination for two days and was unshaken in his testimony. Dr. Makary gave evidence that differed from his discovery evidence on only one point – being the interpretation of the medical student’s notation of Ms. Owala’s pain being 5/10, which is addressed above. Dr. Makary’s explanation for the difference in his evidence was both credible and logical.
[201] Dr. Makary provided thoughtful and fulsome answer to all questions posed of him. He was soft-spoken and articulate. Dr. Makary’s testimony was supported by the medical chart and the entries therein. Dr. Makary presented as a conscientious physician who keenly cared for his patients. Dr. Makary was a credible witness who provided verifiable and reliable evidence.
Dr. Eric Fonberg: The Plaintiffs’ Standard of Care Expert
[202] The Plaintiff’s expert, Dr. Eric Fonberg received his medical degree from the University of Western Ontario in 1976. Dr. Fonberg received his certification in family practice in 1982 and in emergency medicine in 1983. Dr. Fonberg practised family medicine from 1977 to 1993, during which time he also practised emergency medicine on a part-time basis. Dr. Fonberg is a certified emergency physician with extensive experience in emergency medicine with a distinguished and impressive career.
[203] Dr. Fonberg was qualified to provide an expert opinion on the standard of care applicable to Dr. Makary in his care and treatment of Ms. Owala as at October 17, 2013.
[204] Dr. Fonberg opined that although aortic dissection is a relatively uncommon cause of chest pain, it has a very high rate of mortality especially if not diagnosed and treated early.
[205] Dr. Fonberg further opined that due to the seriousness of the condition and the high rate of mortality, when a patient attends an emergency department with undiagnosed chest pain the emergency physician must have a high index of suspicion about AD as a possible cause for the presentation, make clinical decisions accordingly, and urgently in order to address the seriousness of the condition.
[206] Dr. Fonberg testified that in general terms it is his view that the approach to emergency medicine should be to rule in or rule out the most serious condition that a patient presents with. Critical thinking should begin with the question “What is the worst condition that this presentation could represent?” Although aortic dissection is a rare presentation, it is a condition that an emergency physician should have a high index of suspicion because it does occur and because it is life-threatening. The diagnosis must be considered and must be ruled in or ruled out on the basis of history, physical examination and relevant investigations.
[207] Dr. Fonberg testified that while bilateral blood pressure readings that result in different upper extremity blood pressure rulings may be a clinical finding in cases of aortic dissection the finding does not rule out aortic dissection nor does a negative D-dimer result. Dr. Fonberg opined that CT angiography is the critical investigation to rule in or rule out AD and this imagining study should have been initiated following Dr. Makary’s initial assessment.
[208] Dr. Fonberg opined that Dr. Makary failed to meet the standard of care because he did not apply critical reasoning when Ms. Owala presented to the emergency department. Dr. Fonberg opined that Dr. Makary should have considered Ms. Owala’s presentation, including her history of aortic dilation, and had AD high on his differential diagnosis. Dr. Fonberg was adamant that Ms. Owala’s presentation coupled with AD’s high mortality rate required Dr. Makary to have ordered a CT angiography upon initial presentation.
[209] Dr. Fonberg further opined that Dr. Makary failed to meet the standard of care as follows:
a. he did not recognize the severity of Ms. Owala’s symptoms - Ms. Owala presented severe symptoms and warranted an urgent diagnosis and medical intervention.
b. he failed to consider the worst outcome and was focused on more likely rather than worst case scenario which is what doctors are trained to assess. It is not reasonable for a doctor to focus on the condition based on prevalence in society.
c. By failing to consider a differential diagnosis, Dr. Makary was unable to refer Ms. Owala for a consult early enough. Ms. Owala was in the hospital for five hours with no referral to any specialized doctor.
d. Dr. Makary failed to have the x-ray completed in a timely manner and reviewed the chest x-ray too late. The x-ray should have been completed STAT within 30 minutes and reviewed immediately regardless of whether it has been read by radiologists. He would expect results within an hour.
e. In the five (5) hours Ms. Owala was in Dr. Makary’s care, Dr. Makary did not consider or order a CT angiogram, which is the standard to rule in or out an aortic dissection.
f. Dr. Makary failed to meet the standard of care because he did not consider or make a diagnosis of the condition which caused this patient’s death. A variety of factors should have pointed Dr. Makary to the correct diagnosis.
[210] Several errors were made by Dr. Fonberg in his assessment of Dr. Makary’s care and in providing his expert opinion as follows:
a. First, Dr. Fonberg assumed that Dr. Makary did not have a differential diagnosis, did not consider AD, and did not consider ordering a CT angiography. All three assumptions are incorrect. Dr. Makary testified that he did have a differential diagnosis, did consider AD which is evidenced by his orders for bilateral blood pressures, and did consider a CT angiography but as AD was quite low on his differential he did not order the CT. I accept and prefer Dr. Makary’s testimony in this regard.
b. Second, Dr. Fonberg assumed that Dr. Makary failed to take a proper history and failed to read the nursing notes. Dr. Makary verified that he reviewed the medical student’s assessment and provided his own thorough assessment of Ms. Owala as a learning tool and discussed Ms. Owala’s condition with the nurses on an ongoing basis. I accept and prefer Dr. Makary’s evidence in this respect.
c. Third, Dr. Fonberg reviewed Dr. Lam’s medical records which were not available to Dr. Makary and relied upon the fact that Ms. Owala had a history of aortic dilation diagnosed by Dr. Pike and Dr. Levinson in 2003, in forming his opinion. As is apparent from the medical records and the testimony of the doctor and nurses, Ms. Owala did not inform any of her health care providers (EMS, triage nurse, nursing assessment, Dr. Makary) of any aortic dilation or regurgitation nor did she provide this information during her two previous emergency visits for chest pain that occurred in 2012 and 2009.
d. Finally, Dr. Fonberg testified he reviewed the issue of standard of care applicable to Dr. Makary from a retrospective view and specifically testified that the outcome of a case was not only relevant but could be determinative of whether the standard of care was met. This approach is clearly incorrect and contrary to how the Court has consistently held the standard of care should be approached.
[211] Dr. Fonberg presented as highly intelligent and qualified but not overly interested in the proceeding or the trial process. Dr. Fonberg had little patience for questions and often responded in an abrupt and terse manner. At one point in the proceeding he answered his telephone while testifying. However, given that Dr. Fonberg had been overrun and overworked responding to the pandemic and the current health care crisis, I make no negative inferences regarding his demeanour and the Court is grateful that he found time in the midst of a pandemic to testify.
[212] However, Dr. Fonberg’s opinion was based on several faulty assumptions and he opined perfection in practice, which is always the goal but never the standard. While I find that Dr. Fonberg to be an eminently qualified expert, I place little weight on his testimony due to the numerous errors committed in forming the basis for his expert opinion as noted above.
Dr. Ian Preyra: The Defendant Doctor’s Standard of Care Expert
[213] Dr. Ian Preyra graduated from Queen’s University School of Medicine in 1999 and completed a five-year residency program in Emergency Medicine in 2004. Dr. Preyra was certified by examination as a Specialist in Emergency Medicine in 2004 and is the current Chief of Staff at Joseph Brant Hospital in Burlington. Dr. Preyra is an examiner of medical students seeking to become physicians for the Royal College of Physicians and Surgeons and is also certified as an investigative coroner in the Province of Ontario.
[214] Dr. Preyra has extensive experience in emergency medicine with a distinguished and impressive career.
[215] Dr. Preyra was qualified to provide an expert opinion on the standard of care applicable to Dr. Makary in his care and treatment of Ms. Owala as at October 17, 2013 and on causation.
[216] Dr. Preyra testified that the standard of care expected of a skilled and prudent ER doctor were met by Dr. Makary and that the following evidence supports his opinion that Dr. Makary met the standard of care:
a. Dr. Makary’s testimony that he did not write down his differential diagnosis is entirely reasonable. Differential diagnoses are not always written down, one can infer from the testing ordered what the doctor had in their mind as to the potential cause of the patient’s illness.
b. Although Dr. Makary did not order a CT angiography on Ms. Owala, it is bad practice to do every test, every time, on every patient. A doctor needs to use investigatory tools (either via questioning or medical testing) to narrow down the type of testing required.
c. The fact that a patient died from AD does not necessarily result in that attending doctor having fallen below the standard of care. The standard is not perfection, but rather, is whether the doctor followed a reasonable approach and evidence placed guidelines.
d. Dr. Makary did have aortic dissection on his differential as evidence by the ordering of bilateral blood pressure. There would have been no clinical reason to order this testing other than a suspicion of aortic dissection.
e. The fact that Ms. Owala was seen promptly, and investigative tests were ordered immediately, demonstrated that Dr. Makary met the standard of care to emergently assess his patient.
f. The questions asked of Ms. Owala and the history provided by her fall within the standard of care. The fact that the initial assessment was conducted by a medical student and then reviewed and followed up by Dr. Makary as the primary care physician is precisely within the guidelines.
g. The clinical documentation “touches all the bases” as to what one would expect to see in the documentation.
h. At 16:15, the most likely diagnosis continued to be ischemic coronary disease. Dr. Makary clearly considered ischemia and ordered the appropriate investigatory tests and treatment. Therefore, his diagnostic approach was consistent with the best practice guidelines to rule out his suspected medical issues, namely, ischemic coronary disease, acute coronary syndrome, and pulmonary embolism.
i. Ruling out ischemic heart disease is fundamental. This is where Dr. Makary focused his attentions, consistent with the established guidelines.
j. Ms. Owala’s presentation of symptoms did not call for a CT angiogram or transesophageal echocardiography. The differential diagnosis of pulmonary embolism and acute coronary syndrome were appropriate. Dr. Fonberg’s opinion that a CT angiogram was required is incorrect and not within the required standard of care expected of Dr. Makary.
k. Dr. Makary made inquiries into the risk factors that would have been present in an aortic dissection. Ms. Owala was identified as having no risk factors. This, in combination with Ms. Owala’s previous attendances at emergency for chest pain (as documented by the prior chest x-rays) reinforces the opinion that Dr. Makary was within the standard of care because AD is not a chronic condition.
l. It is not the role of emergency room doctors to always come to a definitive diagnosis as in an emergency room setting, it may not always be possible to do so. Therefore, patients may be referred for such diagnosis while ER doctors investigate and treat patients with undifferentiated presentations. Dr. Makary met the standard of care and his referral to internal medicine at 18:15 was appropriate and also within the standard of care.
m. A patient who presents with chest pain can expect to spend at least 6-7 hours in the emergency department. In the present case, Ms. Owala was assessed and reassessed three times during her stay at Southlake. She was under continuous monitoring by nursing staff. It is within the standard of care to reassess a patient after 2-3 hours and Dr. Preyra met the standard.
[217] Dr. Preyra presented as a soft-spoken individual with a keen sense of intellect. He was entirely engaged in his testimony and took great care in providing a fulsome response to all questions posed of him.
[218] Although Dr. Preyra often repeated questions prior to answering them, I find this habit was one of reflection and consideration as opposed to delay and obscuration as suggested by Plaintiffs’ counsel. I found Dr. Preyra to be a highly engaged, thoughtful, and intuitive physician. I appreciate the knowledge, wisdom, and expertise that Dr. Preyra provided to the Court and place great weight upon his testimony.
DETERMINATION OF STANDARD OF CARE ISSUES: DR. MAKARY
[219] For the reasons previously noted I place little weight on the expert opinion evidence of Dr. Fonberg, the Plaintiffs’ expert on standard of care. More specifically, I reject Dr. Fonberg’s opinion that Dr. Makary was required to have a high index of suspicion that Ms. Owala had aortic dissection because it “does occur and is life threating”.
[220] Based on the entirety of the evidence as presented, I accept that aortic dissection should not have been high on Dr. Makary’s differential diagnosis. Dr. Makary cannot be held to a standard that would require him to have a high index of suspicion and to rule in or rule out aortic dissection based solely on the fact that aortic dissection does occur and has a high fatality rate. As opined by Dr. Glover, 90% of the patients who present with a potentially life-threatening diagnosis have acute coronary syndrome. The other most common diagnoses are pulmonary embolism and ischemic coronary disease. Ms. Owala had some symptoms consistent with these diagnoses and had little to no symptoms consistent with aortic dissection.
[221] I accept and adopt Dr. Preyra’s expert opinion that Dr. Makary’s investigative and diagnostic approach was consistent with the best practice guidelines to rule out his suspected medical issues, namely acute pulmonary syndrome, pulmonary embolism, and ischemic coronary disease.
[222] I further accept and adopt Dr. Preyra’s expert opinion that Ms. Owala’s presentation of symptoms did not call for a CT angiogram or a transesophageal echocardiography. I find that the opinions of Dr. Fonberg and Dr. Fitchett to the contrary were incorrect in the circumstances of this case and fatally flawed having been based on impermissible reasoning (Dr. Fonberg) and/or information not available to of Dr. Makary (Dr. Fonberg and Dr. Fitchett).
[223] I do not accept the opinion of Dr. Fonberg or Dr. Fitchett that Dr. Makary fell below the standard of care for failing to obtain the x-ray quicker. The x-ray was considered a STAT order and treated as such. Ms. Stanek and both nurses testified that the x-ray was completed within the ordinary STAT emergency timeline. Further, the chest x-ray imaging depicting Ms. Owala’s enlarged heart (cardiomegaly) was not considered a “critical finding” by radiology and pointed away from (and not towards) aortic dissection. Finally, when Dr. Makary noted the cardiomegaly he obtained a consult to internal medicine which was entirely appropriate and in keeping with the standard of care.
[224] All expert witnesses agreed that aortic dissection is a rare and highly fatal condition. Dr. Glover and Dr. Preyra who properly informed their opinions based on the medical information within Dr. Makary’s knowledge on October 17, 2013, both agreed that Ms. Owala did not present with any of the classic symptoms of aortic dissection. Ms. Owala did, however, present with classic symptoms consistent with acute coronary syndrome, and/or pulmonary embolism, and/or ischemic coronary disease. It is these conditions that Dr. Makary focused his investigations and it is these conditions that Dr. Makary appropriately placed high on his differential diagnosis noting that aortic dissection remained on his differential but much lower.
[225] Dr. Fonberg viewed Dr. Makary’s actions from a retrospective view and opined that a breach of the standard of care is evident because the patient died. This type or reasoning is impermissible and entirely rejected by me.
[226] Dr. Makary made all appropriate enquiries and ordered all appropriate tests in accordance with his working differential diagnosis based on critical thinking and objective data. The fact that Ms. Owala did not survive does not mean that Dr. Makary breached the standard of care.
[227] I fully accept and adopt Dr. Preyra’s expert opinion on the issue of standard of care as it applies to Dr. Makary as an emergency room physician on October 17, 2013.
[228] I find that Dr. Makary was a competent, considerate, and informed physician who made appropriate enquires, conducted appropriate investigations, made appropriate and timely orders, reviewed and considered all results in a timely manner, and who referred his patient appropriately when he could not find a diagnosis.
[229] Ms. Owala had an uncommon presentation of a rare and highly fatal condition. The type of bleeding that Ms. Owala was experiencing was a “harbinger of disaster”. Despite all best efforts, and despite meeting the standard of care of an emergency physician on October 17, 2013, Dr. Makary, to his great regret, was not able to save Ms. Owala.
REVIEW OF THE EVIDENCE RELATING TO THE NURSES
Testimony of Nurse Boakye
[230] Nurse Boakye graduated with a Bachelor of Science and Nursing Degree from Laurentian University in 2007 and became fully licensed to practise as a nurse in 2008. Nurse Boakye was hired by Southlake in 2008 in the Medicine and Neurology department and moved to the Emergency Department in 2009, where she continues to work. Nurse Boakye also works as the office care coordinator at the Central Local Health and Integration Network.
[231] Nurse Boakye testified that she had an independent recollection of Ms. Owala as it was a sad situation. She was working the 7:30 am to 7:30 pm shift and Ms. Owala was assigned as her patient. Ms. Owala was first seen by the triage nurse following which Nurse Boakye received Ms. Owala in the Acute 14 room. Nurse Boakye connected Ms. Owala to the cardiac monitor and the blood pressure machine – which remained attached the entire time she was in emergency, other than when she went for x-rays. Nurse Boakye completed her nursing assessment and recorded her findings in the chart. Ms. Owala advised that she had chest pain and Nurse Boakye focused on the symptoms. Nurse Boakye checked her chest pain and Ms. Owala told her that her pain was 7/10 and the location was midsternal, described as choking and radiating to neck with an onset at 11 am. Ms. Owala’s pulse was 66 and her blood pressure was 184/69. Any item that was normal was not checked off on the chart. If abnormal she placed an x on the chart. Nurse Boakye signed her name at the bottom of the chart under her assessment completed at 13:55, which was the start time of her assessment.
[232] Nurse Boakye re-checked Ms. Owala’s blood pressure at 14:00 as it was a little high. No new pain scale was added as it hadn’t changed and therefore it wasn’t written down. This practice is called “charting by exception”. Under significant findings Nurse Owala charted “patient complained of midsternal chest pains which radiate to the neck since 11:00 am. She denies shortness of breath, no nausea, no vomiting. C1ER initiated”.
[233] Nurse Boakye testified that the C1ER is a cardiac directive that is done as a standing physician order to allow a nurse to implement the directive if a patient meets certain criteria. The fact that Ms. Owala’s chest pain was radiating to the neck triggered the initiation of the C1ER. These symptoms are noted on Southlake’s Medical Directive effective July 17, 2013. Nurse Boakye inserted the C1ER on a portion on the chart where the physician is expected to write so that the doctor would see that the cardiac directive has been ordered.
[234] Nurse Boakye printed off ECG strips and showed them to Dr. Makary at 14:05. This strip was initialled by Dr. Makary who ordered it be repeated in 5 minutes, which she did. Nurse Boakye testified that although the ECG strip indicates that Ms. Owala was 55 years old that this is a default setting – if the patient’s age is not manually entered it defaults to age 55 – and that this does not in any way effect the validity of the ECG. Nurse Boakye further testified that it was her general practice that when she finished printing ECGs, she would make a package and show them to the physician. She testified that in this case either she (Boakye) or Nurse Watts would have shown all the printed ECGs to Dr. Makary.
[235] Nurse Boakye reviewed the medical chart and confirmed that those portions of the medical chart which were initialled by her were written contemporaneously and that she completed all assessments, tests, and attendances upon Ms. Owala as recorded by the chart. She also testified that there may have been other times where she looked in on Ms. Owala but did not make a notation in the chart and that Dr. Makary would also pop into the room from time to time to have a look and this would also not have been charted. Nurse Boakye testified that Ms. Owala was stable the entire time that she was in the emergency department until her condition quickly deteriorated.
[236] Nurse Boakye ordered the C1ER at the time of her initial assessment at approximately 14:00. Although the chest x-ray wasn’t completed until 16:25, Nurse Boakye testified that this timing is not unusual, and she felt the x-ray was taken in a timely manner.
[237] In addition to the information charted, Nurse Boakye said that she talked to Ms. Owala about having anxiety and sought an order for Ativan. Ms. Owala talked about being a teacher and Nurse Boakye told her that she was from Ghana, had been in a Masters’ program but was on leave of absence. Ms. Owala encouraged her to finish her Masters’ program. Nurse Boakye reassured Ms. Owala during her stay. At no time during Ms. Owala’s stay did she tell Nurse Boakye that her pain was 10/10. Nurse Boakye is sure of this fact as she would have documented it and would have told Dr. Makary about it.
[238] Nurse Boakye testified that Ms. Owala never complained to her about the care she was receiving and never complained about Dr. Makary. Had she complained, Nurse Boakye would have spoken to Dr. Makary.
[239] Nurse Boakye testified that Ms. Owala never told her that she had a history of cardiac problems only high blood pressure which was documented on the medical chart, and that she was on Amlodipine. Ms. Owala never told her that she had a leaky or failing heart valve. If she had, Nurse Boakye would have documented it and she would have advised Dr. Makary.
[240] Nurse Boakye testified that Ms. Owala’s boyfriend (Mr. Mwanri) attended at the hospital but she did not have any discussions with him as he kept “pretty much to himself”. Nurse Boakye denies that she told Mr. Mwanri that she was in a Masters’ program at McMaster or that she was born in Ghana. These are matters that she told to Ms. Owala not Mr. Mwanri.
[241] Nurse Boakye had no concerns regarding the care and treatment of Ms. Owala because she had testing and blood work that was appropriate for a cardiac patient and had she had concerns she would have gone to Dr. Makary who is pretty receptive and would have listened to her concerns.
[242] Nurse Boakye testified that she advocated for Ms. Owala by managing her pain and by obtaining Ativan from Dr. Makary to treat Ms. Owala’s anxiety. During cross-examination, it was suggested to Nurse Boakye that she sought to drug Ms. Owala so that she would be less trouble to deal with during her time in emergency. Nurse Boakye denied this allegation and testified that that she sought Ativan because Ms. Owala was feeling anxious.
[243] Nurse Boakye provided the further following evidence which I found relevant for the purposes of determining the issues at trial:
a. The relationship between the nurse and the most responsible physician is as follows: the physician assesses the patient and will direct the patient’s care to warrant medication and treatment investigation. The nurse will initiate the treatment orders and monitor the patient on an ongoing basis. If there’s a change in the patient’s condition, or if the blood work results are back, the nurse is expected to notify the doctor if there is any change. The nurse will either call the doctor or go to where the doctor is and speak to the doctor face to face to communicate what is going on with the patient.
b. A nurse cannot prescribe medication, or order a test, or refer a patient to a specialist or consultant. Only a doctor can do those tasks.
c. There is no requirement for a nurse to make a recommendation to a physician that her or she may get a referral to a specialist or a consultant. She has never been instructed either in school or during her time at Southlake to make a recommendation to a physician concerning the referral of a patient to a specialist or a consultant. While a nurse could make such a recommendation it is unlikely that a nurse would do that. She has never seen any of her colleagues do that nor has she ever done that.
d. Prior to October 17, 2013, Nurse Boakye had worked with Dr. Makary many times. He was very good to work with, he was approachable, easy to speak to, he doesn’t brush you off if you ask a question. If she doesn’t understand something, he will explain it. Dr. Makary is very polite, he takes his time, and he doesn’t get frustrated when you ask him questions. “He’s really good”. If she had an issue with a patient, she would not hesitate to bring it to Dr. Makary’s attention.
e. Nurse Boakye has observed Dr. Makary with patients and testified that he is friendly, he lets patients talk, and gets them to give their input. He has a good bedside manner and good communication. Dr. Makary is very thoughtful with his patients and is generally attentive to his patients. Nurse Boakye has never witnessed Dr. Makary be dismissive about a patient’s concerns nor has she seen him minimize a patient’s pain, or belittle a patient, or make a patient cry.
f. Nurse Boakye has never hear Dr. Makary ever make a racist comment to her or to any patient, any nurse or member of the staff. Nurse Boakye has never observed Dr. Makary acting in a racist manner towards a patient and has never observed him treat a black patient differently than a white patient. Nurse Boakye had never observed Dr. Makary withhold or refuse to treat a black patient. She likes working with Dr. Makary and would recommend him as a physician to a friend or family member.
g. As for the documentation, nurses document because it is part of their total care and responsibilities. Nurses also document for clinical communication and to let other members of the healthcare team know what care has been provided for the patient including medication, what has been done, current status, so that everyone knows what the patient has had and what’s been going on with the patient. Nurses document as soon as possible after specific tasks have been done. As soon as a particular task has been completed it is documented.
h. Charting by exception is something that is done in the ER. It is done so that they don’t duplicate charting and basically document when there’s anything abnormal or if there’s been a significant change – then you would document. If there is no significant change it is not documented.
i. Pain scores are documented by asking the patient to rate their pain on a scale out of 10 and rating their pain. The nurses use a pain scale or progress notes and then document what the patient tells her what the pain scale is. Because pain is subjective you need to ask the patient what their pain is. Pain that is expressed as 10/10 is severe pain. You want to make sure that you are documenting regular intervals and if there’s a specific change in the patient’s status you would document.
j. Nurse Boakye has reviewed the medical chart for Ms. Owala’s attendance at the emergency department on October 17, 2013 and reviewed the entries in the chart. She testified that she made the entries in the usual and ordinary course of performing her duties and made the entries at the time of performing her duties or as soon after as possible. Nurse Boakye testified that it is usual and ordinary for notes to be made by others as well. Nurse Boakye testified that she did not change any of her entries after Ms. Owala’s death and to the best of her knowledge the medical chart accurately reflects the entries that she made on October 17, 2013. She is not aware of any alterations in the chart.
[244] During cross-examination Nurse Boakye gave the following relevant evidence:
a. Prior to working in the emergency department Nurse Boakye worked on the internal medicine floor. The entry by Dr. Makary in the medical records at p. 56 of the JBD that says “Medicine” is in her understanding means a referral or consult to internal medicine specialist.
b. Nurses act as the eyes and ears of physicians and one of her jobs is to communicate any significant change in Ms. Owala’s status to Dr. Makary and during the time she attended Ms. Owala she updated Dr. Makary on any developments in Ms. Owala’s status and Ms. Owala was considered “medically stable” from her arrival at the hospital until 18:26 when Ms. Owala suddenly went unresponsive.
c. If lab results return with a critical value – of particular concern – the lab calls for a panic lab result and then the nurses inform the doctor of the panic lab result but there were no panic lab results returned for Ms. Owala throughout her stay.
d. With respect to an x-ray result– if an imaging shows a critical condition that requires emergent intervention there might be a call placed to advise of a critical condition but in this case no such call was received in respect of Ms. Owala’s chest x-ray and her diagnostic imaging.
e. Nurse Boakye does not recall hearing Dr. Makary saying to Ms. Owala that her pain could not be 10/10 or that such pain would cause you to lean to your side and clutch your chest nor does she recall Dr. Makary and Ms. Owala being in a heated argument nor does she “see him doing that, he is so calm. I can’t see that, no”. She does not recall Dr. Makary telling Ms. Owala to relax and she would be going home, nor that her body was in shock for skipping breakfast, nor does she recall Ms. Owala expressing concerns about her blood pressure and having Dr. Makary tell her it is entirely normal. Nurse Boakye also testified that none of these examples sound like something Dr. Makary would do based on her experience of working with him.
f. Nurse Boakye does not recall that Dr. Makary ordered a chest x-ray shortly before 17:00 and heard no discussions between Dr. Makary and Ms. Owala in this regard although admittedly she was not in the room the entire time.
g. Nurse Boakye wanted to ensure that Ms. Owala’s pain was well managed before she went to x-ray as x-ray might not be able to handle it. The notation on the McKesson Requisition “not ready” at 15:50 corresponds to the medical chart indicating that Ms. Owala was being administered morphine by I.V. at 15:50.
h. Ms. Owala’s pain improved after the morphine. It was 9/10 and then lowered to 7/10.
i. Nurse Boakye denied that just because she (herself) is a black woman from Africa and Ms. Owala was a black woman from Africa that she should have treated her differently – she disagrees because she treats all her patients the same.
j. When challenged that Nurse Boakye did not assist Ms. Owala to change into her gown or whether she needed assistance to go to the washroom, Nurse Boakye asserted – I always help my patients. She couldn’t recall whether she assisted her to the bathroom but if Ms. Owala had needed assistance she would have provided it.
k. When asked who the court should believe regarding Ms. Owala’s pain score, Mr. Mwanri who said it was 10/10 or her who charted the pain between 7/10 and 9/10, Nurse Boakye said “the patient, because that’s what the patient was reporting to me, not what Mr. Mwanri is, he’s not my patient, counsel…I disagree with him (Mwanri) because my, what my patient reports to me is what I document because I ask my patient”.
l. Mr. Mwanri’s statement that Nurse Boakye had difficulty inserting the IV was incorrect. Nurse Boakye got the IV in on the first try.
m. Nurse Boakye disagreed with Plaintiffs’ counsel’s suggestion that a combination of morphine and Ativan is to “make them pass in quiet”.
n. When asked if she would agree that she “failed this patient”, Nurse Boakye testified, “My team and I did the best that we could, it’s unfortunate that she died, but we did the best that we could. It’s unfortunate sometimes you can, you can go above and beyond but sometimes I guess you don’t have a good end result. And I believe in my team and myself and my colleague, but we did our job, it was unfortunate, it was just unfortunate that a young woman ended up dying. So, I disagree with you.”
o. Nurse Boakye disagreed that Ms. Owala’s blood pressure was as high as reported by Mr. Mwanri.
p. Nurse Boakye testified that any corrections made to the medical chart entries were made as soon as possible as she was writing the entry. It would have been done immediately.
q. It is the physician’s responsibility to direct a patient’s plan of care and physician’s do not typically discuss their differential diagnosis with the nurse.
[245] With respect to the Plaintiffs’ submission that Nurse Boakye “admitted that she was negligent” when she failed to review records from Ms. Owala’s previous Hospital attendances and that had she reviewed these records the management of Ms. Owala would have been different, I note the following:
a. The evidence did not establish that the nurses are required to review past hospital admissions and Nurse Boakye testified that there was no need to review the past records as Ms. Owala was capable and competent of providing her own history – she could (and did) speak for herself – which evidence was confirmed by Mr. Mwanri.
b. Had Nurse Boakye reviewed Ms. Owala’s prior admissions for “chest pain”, no further information would have been garnered as Ms. Owala only provided “hypertension” when questioned about her past medical history on all “chest pain” attendances (2013, 2012, 2009).
c. Had Nurse Boakye reviewed the 2004 record, when Ms. Owala attended for a minor head injury, she would have seen “heart valve regurgitation” and “hypertension” noted in medical history. As explained by Dr. Preyra, heart valve regurgitation is also known as “leaky valve” and is a “common and benign” condition. Such a notation would not have changed the course of treatment.
[246] Nurse Boakye was a responsive witness who exhibited an amazing ability to recall the entries in the medical chart by citing entries and page numbers quickly and effortlessly. Nurse Boakye had a clear recollection of Ms. Owala and the events that occurred during her stay which was verified to a great extent by the medical chart. I find Nurse Boakye to be a credible witness who provided reliable evidence. To the extent that Nurse Boakye’s evidence differed from that of Mr. Mwanri, I prefer and accept Ms. Boakye’s version of events.
Testimony of Nurse Nicole Watts
[247] Nurse Watts graduated from the Registered Practical Nurse program at Georgian College in 1999 and then transferred to the Registered Nursing Program which she completed in 2001. Nurse Watts was hired by Southlake in 2001, on the medical surgery floor. After approximately two years, Nurse Watts transferred to the emergency department and has worked continuously in the emergency department at Southlake since 2003.
[248] Nurse Watts provided the following evidence which I found relevant for the purposes of determining the issues at trial:
a. Prior to October 17, 2013, Nurse Watts had worked with Dr. Makary many times. Nurse Watts described Dr. Makary as a “very caring man, very knowledgeable…very approachable.” Nurse Watts would not hesitate to bring a patient issue to Dr. Makary’s attention. Dr. Makary has never made a racist or sexist remark to her nor did he treat her differently because she is a woman. She would describe Dr. Makary’s bedside manner as being very caring, very approachable, good listener. He treated everyone the same. Nurse Watts never observed Dr. Makary minimize a patient’s pain, make a racist or sexist comment about a patient, or act in a racist or sexist manner. Nurse Watts never observed Dr. Makary treat a black patient differently than a white patient nor she did she ever observe him withhold or refuse treatment for a female patient.
b. Nurse Watts testified that she would make a chart entry for an initial assessment that’s done any change in the patient’s condition, any medications you give, any vital signs you do. Charting is completed just as soon as you’re able to chart after your interaction with your patient. That is standard practice. Charting by exception occurs after the initial assessment’s done, you only chart on significant things – significant different findings from your original charting. The nursing staff at Southlake utilizes charting by exception.
c. Pain levels are charted using a number scale of 0 to 10. You assign whatever number the patient tells you. There is no set interval, just frequent intervals.
d. Nurse Watts had an opportunity to review the chart and confirmed that the entries made in the chart by her were made in the usual and ordinary course of performing her duties. No entries to the chart were changed by her after Ms. Owala passed nor is she aware of any alterations to the chart.
e. Nurse Watts’ first entry in the chart is at 14:20 “resident in to see pt”.
f. Her next entry is at 14:50, which consists of a set of vital signs and a pain scale level recorded as 9/10. Nurse Watts testified that Ms. Owala would have provided this number in response to Nurse Watts asking to give her a scale. Under the medication box, it says nitro spray x1, sublingual, with Nurse Watts initials. The time of the entry is 14:50. Nurse Watts acknowledged that she testified previously at discovery that the time was 14:00 – however, she has since had more chance to view the chart and it is her practice to do a set of vital signs with each medication that she gives, the chart shows a further set of vitals completed by her at 1500 with a corresponding entry for medication (nitro) for the same time (1500). If she skips forward in the chart to 1700 – she sees that she did a set of vitals and administered medication (Ativan). It is her practice to do a set of vitals with each administration of medication and that is how she knows that the number that could be read as either 1400 or 1450 is actually 1450 as it corresponds with her providing medication to the patient. Nurse Watts testified that she “always” does vital signs before administering medication to a patient. The order for the nitro is found at p. 13 of the JBD and is from Dr. Makary.
g. Page 19 of the JBD contains an entry record of vital signs that Nurse Watts completed at 15:00. She did not write down a pain score because the nursing staff at Southlake utilizes charting by exception, there was no change in Ms. Owala’s pain score from the previous time and therefore it is not written down.
h. Page 19 of the JBD, contains an entry that at 17:00 Nurse Watts administered Ativan sublingual. The vital sign entry for this administration of meds is found at p. 59 of the JBD that shows vitals completed at 17:00. Page 56 of the JBD records the verbal order by Dr. Makary to Nurse Boakye for Ativan. Nurse Watts testified that there is no protocol that the nurse who obtains an oral order must also administer it.
i. Nurse Watts does not recall whether she showed any of the ECGs to Dr. Makary but the usual practice is to show the doctor all abnormal ECGs and they were all abnormal. Once the doctor reviews the ECG it is replaced back into the chart by the nurse.
j. The last chart entry that pertained to Nurse Watts is found at p. 19 of the JBD and timed at 18:26. The entry states “called into room by husband due to patient not feeling well. Patient not responding. Doctor called to room and CPR began. See Code Blue sheet. Nurse Watts testified that she recalled these events occurred as charted.
k. Nurse Watts testified that Ms. Owala never told her that her pain was 10/10 – she knows this because had she Nurse Watts would have charted her pain as 10/10.
l. Ms. Owala never told her that she had a leaky or failing heat valve and had she it would have been charted and she would have advised Dr. Makary.
m. Nurse Watts did not review the previous emergency room records for Ms. Owala as it is not a nurse’s practice to do that – neither her practice nor a nursing practice.
n. Nurse Watts had no conversations with Mr. Mwanri excepting his request for assistance at 18:26 (or thereabouts).
o. At no time did Nurse Watts have concerns about the care and treatment provided to Ms. Owala and had she had concerns she would have raised them with Dr. Makary.
p. In her view, Ms. Owala did not need any additional care beyond what was being provided by Dr. Makary and had she thought something else should be done she would have so advised Dr. Makary.
q. Nurse Watts acknowledged that nurses are the “eyes and ears” of the physicians and part of her job was to communicate any significant changes in the patient’s condition and prior to Ms. Owala’s arrest at approximately 18:26, there were no significant changes in her status that required her to alert Dr. Makary.
r. In her view Ms. Owala was stable throughout the day until the time of her cardiac arrest.
s. No critical blood work results were received for Ms. Owala that would have required the nurses to alert Dr. Makary and there was no call received from diagnostic imaging to convey any critical imaging results for Ms. Owala.
t. Nurse Watts is not aware of anyone, including Dr. Makary, of making alterations to the medical chart.
u. All medication administered was pursuant to Dr. Makary’s orders.
v. Nurse Watts never saw Ms. Owala’s diastolic blood pressure as high as 150 or 163 (as reported by Mr. Mwanri) and had she seen it at that level she would have charted it and informed Dr. Makary.
w. Nurse Watts did not see Dr. Makary and Ms. Owala engaged in a heated debate and was not advised by any person that day that there had been an argument or heated debate between Dr. Makary and Ms. Owala. Having worked with Dr. Makary she does not believe that he is someone who would engage in heated debates with patients.
x. Ms. Owala did not express any concerns over the care provided to her by Dr. Makary.
[249] During cross-examination, Nurse Watts provided the following evidence which I find relevant for determining the issues at trial:
a. Nurse Watts never saw Ms. Owala and Dr. Makary together and therefore she can’t testify as to whether she saw Dr. Makary subject Ms. Owala to racism – or sexism – as she did not see any interaction between them.
b. Nurse Watts had never heard of the word anti-black racism but agreed that there is racism in Newmarket and racism at Southlake “I’m sure there is”. “I haven’t seen it at my work, so, yeah, I’m sure it happens in other places but not where I work”. Plaintiffs’ counsel suggested that Nurse Watts was “in denial” about systemic racism to which Nurse Watts replied “I realize racism is out there. I do. Just because I haven’t seen it at my workplace, doesn’t make me naïve to know that it’s not out there. I know racism’s out there, but personally, I haven’t seen it at my workplace”.
c. Nurse Watts did not notify Dr. Makary about Ms. Owala’s pain when it increased to 9/10 because they were giving her medication to try and treat the pain and the treatment would not have been any different.
d. When Nurse Watts was called into Ms. Owala’s room at approximately 18:26 the cardiac monitor did not alarm as Ms. Owala “still had a heart rate when I was in the room with her”.
e. Nurse Watts testified that Mr. Mwanri’s re-telling of the events that occurred at 18:26 was “not true, that’s not what happened…that is not true at all and occurred as charted.
f. Nurse Watts was challenged that on October 18, 2013, that she telephoned EMS pretending to be a nurse named “Trinny” looking for information about Ms. Owala. Nurse Watts denied that she telephoned EMS and/or identified herself as “Trinny” and further denied that she wrote the information obtained from the EMS call (the ambulance number 3148) onto p. 13 of the medical chart.
g. Nurse Watts was challenged that the medical directive was “cooked up after the fact” and Nurse Watts is now “making it look like she did something when she (Ms. Owala) was alive, when in fact you did absolutely nothing until she died. You are trying to cover up”. Nurse Watts testified “we’re not trying to cover anything up”.
h. Nurse Watts was challenged that she was “taking the fall” for advising that she had inputted the medical directive initiated by Nurse Boakye. Nurse Watts denied that she was “lying” and said that she knows that she inputted the information as her name appears on the documents.
i. Plaintiffs’ counsel confronted Nurse Watts: “And this is the conspiracy in this case. You met with some people, and you decided to create fake medical records in order for the hospital, Dr. Makary, yourself, Abigail Boakye, to get out of liability in this case. That’s what this is. What do you say about that?”. Nurse Watts responded as follows: “That’s false. I’m not sure how you could make…put a late entry in for computer – like I just – sorry, I don’t see it”.
j. Plaintiffs’ counsel further suggested “I’m suggesting to you that this (the x-ray requisition) was created by somebody in order to be to defeat the cause of justice. And you are given this to come and say, it is yours for that purpose and that purpose only” to which Nurse Watts responded: “This is the first time I’ve seen this. So, I don’t know…I was told about it, because my lawyer showed me an x-ray sheet that the x-ray people use and it said – it had my initials on it. And that’s how I figured out that I put in the medical directive because the x-ray is part of the medical directive…I didn’t write on it but if you go back up so the second line of things it says request date, ID, it has the date in there , the time, and then NMC. Those are my initials…I assumed it because it is part of the medical directive, so there’s no reason I would have just put in the chest x-ray. I would’ve put in the medical directive”.
k. Nurse Watts confirmed that when ECGs are printed in the emergency department, they have a default age of 55.
[250] Nurse Watts was required to provide a voice sample and a handwriting sample and was re-called for further examination following Plaintiffs’ expert’s review of the documentation and samples. The following evidence was relevant and assistive regarding Nurse Watts’ further evidence:
a. Nurse Watts denied that her handwriting was materially different within the context of the paragraph and testified that the entire paragraph was written by her – her handwriting depends on the situation and how she is writing – there is a line drawn in the paragraph so that no one else can chart after her and her signature is attached to the entry.
b. When confronted with the handwriting report that she may have used white out on the chart, Nurse Watts testified as follows: “Absolutely not, I have never used whiteout in my career and I’ll never use it in the future. That is – that line, I drew a line there. You can see the tip up, it goes straight across my initial, that is so that no one else can write. It’s a little low, it probably should have been up a millimetre or so, but that’s my line…”
c. Nurse Watts testified that she uses different initials depending on the situation. She used a loopy initial on p. 19 of the JBD (entry 1826) which she tends to use when she is in a rush. She admits that her initials are a little different throughout the chart but that is “just my handwriting”.
[251] Nurse Watts was examined in chief and then underwent three days of cross-examination before being recalled to further testimony regarding specific entries in the medical chart. Despite undergoing lengthy cross-examination and being accused of racist and fraudulent behaviour, Nurse Watts remained controlled, focused, and measured in providing her testimony. Nurse Watts remained resolute and was unshaken in cross-examination. She did not seek to minimize or exaggerate her role in Ms. Owala’s care and remained polite, professional, and calm under extended and often aggressive cross-examination.
[252] Nurse Watts’ testimony differed from her examination for discovery in one aspect, being the timing of a chart entry at p. 19 of the JBD, which she testified at trial read as 14:50 (when at examinations she testified read 14:00). Nurse Watts’ explanation for the correction of her testimony was logical, tied to an earlier vital sign entry on p. 18 of the JBD, and wholly accepted by me as being reasonable, logical, and reliable.
[253] Nurse Watts remained unshaken in her testimony despite extensive cross-examination and despite being the “target” of specific allegations of document tampering and falsification of records. Nurse Watts was a strong witness who remained polite and responsive in the face of incendiary allegations that attacked both her professional capacity and her personal integrity. Nurse Watts is to be commended for her ability to remain professional in the face of adversity. Nurse Watts’ testimony was supported by the medical chart and the testimony of Dr. Makary, Nurse Boakye and to a large extent by the handwriting expert Ms. Brenda Petty. I find Nurse Watts to be a credible witness who provided reliable evidence.
The Plaintiffs’ Nursing Expert: Nurse Rhonda Seidman-Carlson
[254] Nurse Rhonda Seidman-Carlson has been a registered nurse since 1973 and has enjoyed many nursing roles including director of professional practice, vice-President of inter-professional practice, and Chief Nurse Executive at the Scarborough Health Network.
[255] Nurse Seidman-Carlson was admitted as an expert in nursing in Ontario qualified to opine on the standard of care of registered nurses caring for patients in Ontario and the standard of care of nursing set by the College of Nurses of Ontario.
[256] With respect to the issue of falsification and/or alteration of records, Nurse Seidman-Carlson testified that she did not identify any evidence that would identify falsification or alteration of clinical records.
[257] As for the standard of care applicable to the nurses Nurse Seidman-Carlson opined that the nurses did meet acceptable College and emergency department standards in those actions that they carried out including completing documentation, processing orders in a timely fashion and administering medications as ordered. She also testified that charting by exception was an appropriate and common nursing practice.
[258] However, Nurse Seidman-Carlson opined that the nurses fell below the standard of care in actions that they did not do. Nurse Seidman-Carlson interpreted the duty to advocate as requiring nurses to ask the doctor a trio of questions: 1) Are we missing something? 2) Should we be doing more? And 3) Should we consider a referral to a consultant? Nurse Seidman-Carlson testified that Nurses Watts and Boakye did not meet the standard of care in this regard.
The Defendant Nurses’ Expert: Nurse Shiozaki
[259] Nurse Shiozaki has been a registered nurse licensed to practice by the College of Nurses of Ontario, since 1985. She has extensive experience ensuring compliance with the Standards of Care and the Nursing Professional Practice Standards and has been responsible for establishing policy to ensure that nursing practice complies with the Standards of Care and Professional Practice Standards advocated by the College of Nurses of Ontario and external best practice.
[260] Nurse Shiozaki was qualified to provide expert opinion evidence on the standard of care of emergency department nurses in Ontario in 2013, and to opine on the standards of the College of Nurses of Ontario.
[261] Nurse Shiozaki opined that the standard of care expected of a skilled and prudent ER nurse was met by the defendant nurses.
[262] With respect to the more specific issues that were raised by the Plaintiffs as being indicative of breaches of the standard of care, Nurse Shiozaki testified as follows:
The physician’s book was appropriately kept, particularly with regard to the nurses informing the physician of Ms. Owala’s history of anxiety;
The frequency of care management delivered by the defendant nurses met the expected standard of care for a patient with Ms. Owala’s presenting symptoms;
The defendant nurses appropriately monitored and kept the emergency department physicians apprised of Ms. Owala’s status;
Ms. Watts was with Ms. Owala as her condition deteriorated and appropriately initiated calling the Code Blue and starting CPR;
The delay in sending Ms. Owala to get her x-ray when the porter attended in Ms. Owala’s room immediately after she had been given morphine was appropriate as the nurses needed to both relieve Ms. Owala’s pain and ensure there were no side effects from the morphine;
The defendant nurses met the standard of care when recording Ms. Owala’s pain scales;
The defendant nurses appropriately enacted Ms. Owala’s medical directives;
Charting by exception is acceptable for the College of Nurses; and
The defendant nurses met the standard of care for documentation.
[263] As for Nurse Seidman-Carlson’s opinion that the nurses failed to advocate for the patient, and should have asked the stated three questions, Nurse Shiozaki agreed that nurses are required to advocate on the behalf of patients. However, Nurse Shiozaki interpreted the obligation to advocate differently. Nurse Shiozaki testified that nurses are always considering the questions that Nurse Seidman-Carlson articulated as part of the duty to advocate. However, she testified that nurses do not need to say those questions to meet the standard of care or fulfill their duty to advocate.
[264] Nurse Shiozaki testified that Nurses Watts and Boakye met the standard of care and the obligation to advocate. For instance, they advocated for Ms. Owala and suggested appropriate medications for her when she experienced anxiety. She testified that they did not miss anything.
[265] Nurse Shiozaki further opined that asking a physician to get a specialist involved falls outside the scope of practice of nurses. Indeed, Nurse Shiozaki testified that there was nothing more that the nurses could have done in their care and treatment for Ms. Owala.
DETERMINATION OF STANDARD OF CARE ISSUES: THE NURSES
[266] The only breach of the standard of care identified by either expert, was the breach of the duty to advocate, which Nurse Seidman-Carlson identified as the requirement to ask the three stated questions.
[267] While I accept that nurses have a duty to advocate, I am of the view that Nurse Seidman-Carlson’s articulation of the duty is only required in extraordinary circumstances, which were not present in the instant case. (Keane v Craig, [2000] O.J. No. 2160, [2000] O.T.C. 418, at para. 50 and In Suwary (Litigation guardian of) v. Women's College Hospital, [2009] O.J. No. 2579, 178 A.C.W.S. (3d) 469, appeal to ONCA successful on unrelated issue, 2011 ONCA 676, [2011] O.J. No. 4780).
[268] The requirement that nurses ask doctors if they are missing something, if more can be done, and if a consultation is required, suggests that nurses have expertise in diagnosing patients. Nurses are not trained to diagnose patients and it is not part of a nurse’s standard of care to question a doctor’s diagnosis. (See Serre v. de Tilly, (1975), 1975 CanLII 389 (ON SC), 8 O.R. (2d) 490, [1975] O.J. No. 2315 and Suwary, supra).
[269] A nurse’s standard of care will only include intervention, such as calling for assistance from another physician, in exceptional circumstances. To describe the duty of care any more broadly risks imposing an obligation on nurses to "second-guess" doctors' decisions, creating an unsafe environment in emergency medicine.
[270] In Suwary, the court noted in the context of a delivery room that a nurse would “usually defer to a resident and to the obstetrician. In situations where a nurse does not agree with decisions made by an obstetrician or by a resident, she/he can voice a question or concern.” Citing Serre and Skeels, the court affirmed that nurses are not responsible for diagnoses and are not permitted to depart from a physician’s instructions absent clear and obvious negligence or incompetence; to find otherwise would impose unfair and dangerous obligations on nurses.
[271] Nurse and doctors have different responsibilities and each professional is not normally required to second-guess the work of other professionals. In Granger (Litigation Guardian of) v. Ottawa General Hospital, [1996] O.J. No. 2129, 63 A.C.W.S. (3d) 1278, at paras. 40-42, the court stated:
We simply do not have the financial resources to enable every professional to double check the work of other professionals and because each professional …has a defined role, it is essential that each person's role be carried out within a standard of care and training appropriate to the professional involved.
[272] In Bauer (Litigation Guardian of) v. Seager, 2000 MBQB 113, [2000] M.J. No. 356, the court noted that the healthcare system in Canada mandates that healthcare professionals work together as a team with each individual having a role in the provision of care. Each person must carry out their role within their appropriate standard of care and each of these professionals is entitled to rely upon (and must rely upon) the others to fulfill their respective individual responsibilities.
[273] Nurses are only under a duty to advocate on behalf of the patient by asking a physician the three questions as opined by Nurse Seidman-Carlson in the face of clear and obvious evidence of the physician’s neglect or incompetence, which was not present in this case.
[274] The standard of care applicable to nurses does not require nurses to constantly second guess doctor’s in the manner suggested by Nurse Seidman-Carlson. The suggested continual second-guessing would in fact undermine the team dynamic and result in ongoing conflict, inefficiencies, and increased costs.
[275] In determining what the standard of care is applicable to nurses and whether the nurses in this case breached the standard, I have reviewed and considered the entirety of the admissible evidence introduced at trial, including the expert evidence, the testimony of the parties and the hospital representatives, and placed great weight on the medical records detailing the care provided. Having thoroughly reviewed and considered the entirety of the evidence, I find as follows:
a. the evidence provided by Nurse Lisa Shiozaki properly establishes the standard of care applicable to Nurse Boakye and Nurse Watts as emergency room nurses on October 17, 2013; and
b. the entirety of the evidence establishes that Nurse Abigail Boakye and Nurse Nicole Watts met or exceeded all applicable standards of care in their care and treatment of Ms. Owala on October 17, 2013.
ALLEGATIONS OF RACISM AND SEXISM
[276] The Plaintiffs allege that the Dr. Makary, Nurse Boakye, Nurse Watts, and Southlake, demonstrated systemic and institutional anti-Black racism and sexism.
[277] While there is no tort of discrimination, the Supreme Court of Canada opened the possibility of unlawful discrimination playing a role in determining whether the standard of care has been met (See Seneca College of Applied Arts & Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181, [1981] S.C.J. No. 76, at para. 3; Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129).
[278] In Hill v. Hamilton-Wentworth, the Supreme Court held that police can be liable if their conduct in an investigation falls below an acceptable standard, resulting in harm to a suspect. Although the Court did not make an overt determination of racism, it did rely on race-neutral reasoning to determine the issue before them and recognizes “the potential role of negligence law in dealing with racial discrimination” (R. Ruparelia, “‘I Didn’t Mean It That Way!’: Racial Discrimination as Negligence” (2009) 44 S.C.L.R (2d), at p. 98).
[279] Discriminatory conduct, whether racial or sexist, could inherently violate the applicable standards of care. However, in the present case there was no reliable that Dr. Makary, Nurse Boakye, Nurse Watts, or any other hospital staff exhibited racist or sexist behavior towards Ms. Owala or that racist or sexist behavior manifested itself in the care and treatment of Ms. Owala.
IV. DETERMINATION OF ISSUES
[280] For the foregoing reasons for decision, the issues are determined as set out below.
1. Breach of Standard of Care
A. Dr. Makary:
[281] The Standard of Care Applicable to Dr. Makary as an Emergency Room Physician on October 17, 2013 is as detailed herein and otherwise as opined by Dr. Ian Preyra, Expert Witness for the Defendants.
[282] Dr. Makary did not breach the standard of care.
B. Nurse Boakye and Nurse Watts
[283] The Standard of Care Applicable to Nurse Boakye and Nurse Watts as Emergency Room Nurses on October 17, 2013 is as detailed herein and otherwise as opined by Nurse Lisa Shiozaki, Expert Witness for the Defendant Nurses and Southlake.
[284] Nurse Boakye and Nurse Watts did not breach the applicable standard of care.
2. Causation
[285] There was no breach of the standard of care and as such causation is not necessary to determine. However, at best the Plaintiffs’ causation expert, Dr. Fitchett could only opine that had Ms. Owala been referred and diagnosed earlier, that she had a “chance” or a “promise” of survival. Dr. Fitchett did not testify that on a balance of probabilities that Ms. Owala had a greater than 50% chance of survival. Further, the Defendant doctor’s causation experts, Dr. Glover and Dr. Preyra, testified that aortic dissection was a highly fatal condition and in the circumstances of this case neither could opine that Ms. Owala could have been saved.
[286] Simply stated, even if a breach had been found, causation was not proven by the Plaintiffs.
3. Damages
[287] There was no breach of the standard of care, causation was not proven, and as such there are no damages payable.
4. Additional Issues Raised by the Plaintiffs in this Proceeding: Alteration and/or Admissibility of Medical Records and Racism and/or Sexism
[288] There was no reliable evidence that the medical records of Southlake as contained in the Joint Brief of Documents, or otherwise produced by the Defendant Hospital, were falsified, altered, or amended in any manner.
[289] The medical records and/or examinations for discovery testimony of any doctor who did not appear as a witness at this trial, for which no Evidence Act notice was filed, which were not authenticated at trial, are inadmissible as evidence in this proceeding.
[290] There was no reliable evidence that Dr. Makary and/or the Defendant nurses participated in racial and/or gender discrimination behavior towards Ms. Owala on October 17, 2013, or that Ms. Owala was the subject of medical bias and anti-Black racism on October 17, 2013 nor was there any expert evidence that would support any such finding.
Conclusion
[291] For the foregoing reasons, the Plaintiffs’ action is dismissed in its entirety.
[292] Given the tragic circumstances surrounding the death of Ms. Owala, the financial devastation suffered by her children as a result of her unexpected death, and the potential life-long crippling effect that a cost order would have on Ms. Owala’s children’s lives, I am inclined that there be no costs awarded.
[293] I am hopeful that counsel can agree on the issue of costs. If not, I will accept brief written submissions limited to five pages with Bills of Costs, Costs Outlines, with any relevant Offers to Settled attached thereto. If argument is necessary, the Defendants shall serve and file their cost submissions within 45 days, the Plaintiffs shall serve and file their response within 60 days, and any reply submissions shall be served and filed within 65 days of the date herein.
Justice S.J. Woodley
Released: November 18, 2021