Willick v. Willard, 2022 ONSC 3900

COURT FILE NO.: 12629/19

DATE: 20220704

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Melanie Willick, Paul Willick and Dustin Willick, plaintiffs

AND: Peter Willard and Michael Csanadi, defendants

BEFORE: Mr Justice Ramsay

COUNSEL: Tobi Samson and Ryan Marinacci for plaintiffs; Sarit E. Batner and Erin Chesney for defendants

HEARD: June 20-24, 27, 28, 30, 2022 at Welland by videoconference

ENDORSEMENT

[1] This is an action in medical negligence. Damages are agreed. The issues are whether two doctors fell below the standard of care and if so, whether the departure caused the death of the patient.

[2] The plaintiffs are the widow and two sons of Brian Willick, who died on March 24, 2014, two weeks after falling from a height. The defendants are Dr Willard, the surgeon who treated him at the Welland County site of the Niagara Health System and Dr Csanadi, Mr Willick’s family doctor.

[3] Mr Willick was a carpenter by trade. On March 10, 2014, he was doing some renovations at his late father’s home. A temporary staircase collapsed, and he fell about seven feet onto a concrete floor. His wife drove him to Welland County hospital. He was admitted and spent two days in hospital. He was discharged with instructions to rest for a week and see his family doctor. He stayed home in Crystal Beach for a week and then saw his family doctor. The family doctor examined him and told him that he could go back to work. Mr Willick went back to work. On March 24, 2014, two weeks after his fall, he bled to death from a ruptured spleen.

Treatment at Welland

[4] Mr Willick was 51 years old. He suffered from cirrhosis of the liver. Cirrhosis had been diagnosed clinically in 2005 and by biopsy in 2009. As a result of his liver disease he had a very low platelet count, with the result that his blood did not clot as fast as it should. His international normalized ratio (INR) was 1.7, which indicates that his blood is slow to clot. A normal INR is 1.0. In addition, Mr Willick had high blood pressure at the portal to the spleen (portal hypertension) and an enlarged spleen. The result of his conditions was that he had a higher risk of splenic rupture and a reduced chance of a favourable outcome in that event.

[5] Mr Willick was seen in the emergency room. In the emergency room he had an abdominal ultrasound which was negative for fluid and a chest CT scan which included the upper organs. That CT scan showed a fracture of the left 9th rib. The 9th rib crosses over the spleen.

[6] The emergency room physician, Dr James, consulted with Dr Willard. Dr Willard saw no acute injury that would indicate surgical intervention.

[7] Another CT scan was performed overnight. It showed dense fluid that raised suspicion of a splenic injury. Dr Habdank reported,

Small amount of hemoperitoneum predominantly in the right subphrenic region, pelvis and trace suspected posterior to the spleen. Heterogeneity of the spleen is suspicious for splenic injury, especially given splenomegaly which is longstanding and presumably relating to cirrhosis with evidence of portal hypertension. … Possibility of a splenic pseudoaneurysm cannot be excluded and therefore multiphasic CT of the spleen is recommended in 24 hrs/ AM.

[8] Dr Willard was consulted again. He admitted Mr Willick onto his service, ordered new blood work and a CT with contrast and ordered blood typing in case emergency surgery became necessary.

[9] The third CT, a multiphasic CT with contrast, noted the previous findings of splenomegaly and cirrhosis of the liver, with indications of portal hypertension. The impression of Dr Aggarwal, the radiologist, was that there was no ongoing peritoneal haemorrhage and that the rest of the findings remain stable. No haematomas were present in the spleen. There was fluid (“ascites”), which could be blood or not. The CT could not tell. Whether the fluid was blood was a clinical judgment for the surgeon.

[10] Dr Willard testified that he spoke to Dr Aggarwal about this report and concluded that Mr Willick had not suffered a splenic injury. Dr Willard based his opinion on the radiography and his clinical observations, in particular the fact that the amount of fluid was not increasing, and the patient’s haemoglobin was not decreasing. The heterogeneity of the spleen was consistent with the underlying condition. Dr Woolfson, the plaintiff’s expert surgeon, conceded that if the conversation with Dr Aggarwal took place, Dr Willard met the standard of care. He points out, however, that this conversation is not documented in any notes. It is also arguably inconsistent with the discharge summary, which says that haemoperitoneum remained stable after the third CT, while Dr Willard testified that after the third CT he considered that the fluid in the peritoneum was not blood.

[11] Dr Willard’s account is also contradicted by a letter to the regional supervising coroner dated January 20, 2015. This letter was authored by Dr James, the emergency room physician, and co-signed by Dr Willard. The letter was written in response to a request from the coroner’s office to review Mr Willick’s care. There are two drafts of the letter. Dr Willard did not sign the first draft. He requested changes, some of which were made and some of which were not made. The letter he signed contained the following passage:

On March 11, 2014, [Mr Willick] had been consuming alcohol and he decided to do some work around the home requiring use of a ladder. He sustained a fall from the ladder and presented to the Emergency Department of the Welland General Hospital by ambulance. He was complaining of left chest and lower back pain. He was placed in the trauma room and treated as a trauma case. Pan-CT scanning revealed … a small collection of blood in the right subphrenic region, marked splenomegaly at 18.5 cm with a questionable splenic injury. However, there was a trace of peri- splenic fluid suggesting splenic injury. …

Dr Willard was consulted, and he admitted the patient to the hospital with a diagnosis of blunt abdominal trauma and elected to treat the splenic injury as well as the fractures conservatively.

[12] Dr Willard explained that his signature only indicated agreement with the last paragraph of the letter, in which Dr James concluded that Mr Willick’s treatment at Welland County had been appropriate. He maintained that he admitted Mr Willick with a diagnosis of blunt abdominal trauma and found no splenic injury to treat. He says that conservative treatment of splenic injury is not what he did.

Follow up with the family doctor

[13] On March 12, 2014, Dr Willard discharged Mr Willick with advice to restrict his activities for one week and to follow up with his family doctor. The restriction of activities was suggested because people who have had a fall often have another fall short term as a result of weakness or lack of balance associated with the trauma. Among other things, Mr Willick had bumped his head.

[14] On March 18, 2014 Mr Willick saw Dr Csanadi, his family doctor. Doctor Csanadi reviewed the hospital records, did a physical examination and booked an ultrasound for April 27, 2014. On the requisition he wrote “f/u [follow up] hemoperitoneum known ascites and massive HS megaly.” He also ordered a same day X-ray to determine that the rib fracture had not displaced. It had not. He cleared Mr Willick to return to work on March 20. Dr Csanadi testified that he gave Mr Willick his standard advice for cirrhotic patients post- trauma: stay on the sedentary side and if you suffer decompensation in the form of pain or bruising, seek immediate medical treatment.

The events of March 22 – 24

[15] Mr Willick returned to work. He worked two weeks on, one week off as a construction foreman at a dam site about 90 km from Kapuskasing, a one and a half hour drive. After his return on March 20, his work did not involve building scaffolding personally. He worked in the office. By the evening of March 23, a bruise had developed on his chest, and he had complained of pain. On the morning of March 24 Mr Willick was not feeling well. He had a large bruise on the left side of his abdomen that was tender to palpation. Medical assistance was sought at the worksite. The company ambulance drove him toward Kapuskasing. An ambulance was dispatched from Kapuskasing at 10:33 am to meet it. Mr Willick was transferred to the hospital ambulance at 11:18 am. Shortly thereafter his heart stopped. The paramedics performed chest compressions and rescue breathing for about 40 minutes. On arrival at the hospital in Kapuskasing, medical personnel continued CPR with drug therapy for 15 minutes. Resuscitation was unsuccessful and Mr Willick was pronounced dead at a quarter past noon.

[16] The autopsy showed that Mr Willick had four haematomas within the capsule of his spleen. One of them had ruptured as a result of blunt force trauma. About 3.8 litres of blood escaped into his abdominal cavity. He also had a number of broken ribs, which I attribute to CPR.

[17] Mr Willick had bruises on his left chest and flank and a number of bruises on his leg, but since the pathologist’s fellow recorded the bruises on one leg on the diagram and the other leg in the report proper, I cannot say which leg was bruised. The pathologist also misdiagnosed Mr Willick’s cirrhosis as fibrosis.

[18] The pathologist attributed the tear in the spleen to a delayed rupture from the two-week- old fall. In so doing, however, she was simply going by what the coroner’s warrant said. All I take from the pathologist’s testimony are her own observations and her undoubtedly correct conclusion that the cause of death was exsanguination from a ruptured subcapsular haematoma in the spleen.

Expert evidence

[19] The plaintiffs called two expert witnesses: Dr Woolfson, an expert general surgeon and Dr Morris, an expert in family medicine.

[20] Dr Woolfson testified that Dr Willard’s care fell below the standard in the following ways:

a. Given the cirrhosis, the enlarged spleen and the force that is evidenced by the broken rib, Dr Willard should have been more suspicious of splenic injury.

b. Dr Willard should have followed up himself, rather than sending the patient to his family doctor.

c. He should have told the patient to restrict his activities for several weeks, not just one week, and he should have told him to stay within a reasonable distance of a hospital.

[21] Dr Morris testified that Dr Csanadi fell below the standard of care in the following ways:

a. He should not have authorized a return to work before the results of the ultrasound were known.

b. He should have told Mr Willick not to go to a remote location. He should have asked where he worked and what he did.

c. He should have told Mr Willick that he was at risk of delayed splenic rupture and what signs to look for.

d. He should have emphasized the need for emergent medical care in the event of a rupture.

Defence evidence

[22] For the defence, Dr Willard testified essentially that the second CT scan raised his suspicion of a splenic injury but the third CT, which he discussed with Dr Aggarwal personally, allayed that suspicion. He concluded that Mr Willick had not sustained a splenic injury. Dr Aggarwal, a former defendant, was apparently not well enough to testify. On consent, the transcript of his examination for discovery was entered into evidence. He gave his deposition in 2017. Dr Aggarwal did not suspect a splenic injury, although he could not rule it out as a radiologist. He did not remember the conversation with Dr Willard, but such a conversation would have been common practice. Dr Aggarwal did not know that Mr Willick had died until the action was served, I believe in 2016. I conclude that in 2014, then, this would not have been a particularly memorable case for the radiologist.

[23] Dr Willard testified that his normal practice if he suspects an injury is to observe the patient in hospital and then follow up personally.

[24] Dr Cobourn, the defendants’ expert general surgeon, testified that there are two types of splenic injury – a fracture (which may be called a rupture, a tear or a laceration) and a subcapsular haematoma. A fracture is obvious because it involves bleeding into the abdomen. A subcapsular haematoma occurs when the injury is limited to the parenchyma (the functional tissue) of the spleen and is contained within the capsule. A CT scan will reveal some feature of a subcapsular haematoma in almost all cases. In Dr Cobourn’s opinion, there was no clinical evidence at the time of Mr Willick’s admission to hospital that he had suffered either type of splenic injury. There was therefore no reason for Dr Willard to have been concerned about the risk of a delayed splenic rupture. His treatment and discharge met the standard of care.

[25] In Dr Cobourn’s opinion, there is insufficient evidence to conclude that the injury of March 10 caused the death of Brian Willick. Dr Cobourn took into account the fact that Mr Willick had returned to a relatively physical job, he complained of pain and bruising on March 22 and several comorbidities which would have increased his chance of complications from a new injury. His assumption that Mr Willick was doing a relatively physical job is not made out on the evidence. That weakens his opinion to some extent. I do not think it makes a difference whether the bruising was noticed on March 22 or March 23.

[26] Dr Cobourn was further of the opinion that given Mr Willick’s comorbidities, even if he had been close to a hospital on March 24, he would not likely have survived. He would have had a higher chance of survival if he had sought medical help when he noticed the new bruising, but still not necessarily better than 50%.

[27] Dr Csanadi testified as I have summarized at paragraph 14. In addition, he said that he ordered the ultrasound to establish a new base line. Mr Willick had not had a local ultrasound in some time. He mentioned haemoperitoneum and ascites on the requisition so that the radiologist would know that it had been raised in previous CT scans. He was not himself concerned about haemoperitoneum.

[28] He testified that he did not document the advice he gave Mr Willick because it is his practice to give the same advice to all his patients in comparable circumstances.

[29] Dr Bornstein, the defendants’ expert family doctor, testified that Dr Csanadi paid appropriate attention to the risk of delayed splenic rupture given the surgeon’s opinion that there had not been an injury to the spleen, the fact that the patient was feeling well and wanted to go back to work, the benign results of the physical examination and the patient’s apparent stability over the week since his discharge from hospital.

[30] Dr Bornstein was of the opinion that Dr Csanadi’s advice to seek immediate medical attention if he had pain, bruising or dizziness was appropriate. He also said that the ultrasound was not necessary, but it was a prudent step.

[31] Finally, Dr Bornstein was of the view that it was appropriate for Dr Csanadi to let Mr Willick go back to work. Since his spleen had not been injured on March 10, his risk of sustaining a splenic injury was no higher after March 10 than it had been before.

Credibility of the defendants as witnesses

[32] Dr Willard impressed me as a credible witness. Before finally coming to that conclusion I had to deal with two features of his evidence: the discharge summary and the letter to the regional coroner.

[33] Dr Willard did not dictate or sign the discharge summary. The discharge summary was authored by Dr Willard’s fellow, Dr Motilal, who reconstructed the radiographic consultation from the entire course of Mr Willick’s stay. Ultimately for that reason I did not hold Dr Willard responsible for the summary vis-a-vis his credibility as a witness. I do not think that any inconsistency between the discharge summary and Dr Willard’s account is so important in any event. It is really just the use of the word haemoperitoneum, as opposed to ascites or fluid, that is inconsistent. The discharge summary is consistent with Dr Willard’s testimony that a splenic rupture was ruled out. I also observe, as did Dr Willard, that the fluid was on the right side, near the liver, while the spleen is on the left. Ascites, or fluid, is commonly found with cirrhosis of the liver.

[34] As to the letter to the regional coroner, it contained a very significant inconsistency as to whether Dr Willard had diagnosed a splenic injury. It says, “Dr Willard elected to treat the splenic injury conservatively.” This inconsistency, if believed, also amounts to an admission of fact, that is, an admission that when Mr Willick was in Welland hospital he had suffered a splenic injury and Dr Willard knew so. I have elected not to treat it as such for the following reasons.

[35] First, the letter was drafted by Dr James, not Dr Willard. Second, it is replete with inaccurate statements. Dr James has Mr Willick falling from a ladder, in his own house, having consumed alcohol at the time of the accident, and going to hospital by ambulance. He wrote that the patient “elected to travel well away from home against our advice, which was well documented in the discharge summary.” All of these statements are wrong. Dr James reconstructed the events from I know not where.

[36] Second, the existence of a splenic injury on March 10 is contradicted by the objective evidence of the CT scans, about which more later. Ultimately, while I am surprised that Dr Willard signed this letter, I do not take it as the smoking gun it could be taken to be. Dr Willard’s explanation that his signature only indicates agreement with the last paragraph seems lame at first blush but looking at the explanation in the context of all the evidence I accept it. At the end of the day I found Dr Willard to be a credible witness.

[37] I found Dr Csanadi to be credible as well. I accept that he gave Mr Willick the advice he said he did even though he did not write it down. It was advice that he habitually gave in the existing circumstances and the doctor was keeping notes for medical purposes, not legal purposes. When he ordered the ultrasound he obviously knew that the possibility of abdominal bleeding had been raised in the hospital, because he said so on the requisition. I do not think however, that this means that he suspected that such bleeding was still going on. I note again, that if the surgeon ruled out splenic injury, the family doctor cannot be expected to know better.

What I think happened

[38] Mr Willick undoubtedly died from a delayed rupture of the spleen. A central question is whether it was delayed from the trauma of March 10 or from a later trauma. In the days before his death there is evidence that he suffered pain and bruising. That is evidence of a second trauma, as Dr Woolfson conceded. I do not accept the plaintiffs’ submission that it would be speculating to infer an intervening trauma. The fact of recent bruising, however, is not conclusive. It is also consistent with a delayed rupture from the trauma of March 10.

[39] The pathologist reported, “Subcapsular haematomas of the spleen arose from the blunt impact injury he suffered during his fall.” The context shows that she was talking about the fall of March 10.

[40] It is unfortunate that she made that statement. The pathologist was not in a position to know whether the accident of March 10 was the genesis of the subcapsular haematomas and the delayed rupture. The question requires looking at evidence that was not available to her.

[41] Combined with the cause of death, which was correctly stated to be exsanguination from a delayed rupture of a subcapsular haematoma, the report as a whole gives the impression of an authoritative pronouncement that the accident of March 10 caused a splenic injury, that it was treated conservatively, and that it ended with a fatal delayed rupture. In the face of that report, it is no wonder that Mr Willick’s family was not happy with the care he received.

[42] There are two types of splenic injury: a rupture and a subcapsular haematoma. Trauma can cause either. If trauma causes a subcapsular haematoma, that is, bleeding that is contained in the capsule of the spleen, the haematoma can rupture within hours or days. A delay of 14 days would be uncommon, but not out of the question. Mr Willick was found on autopsy to have had four subcapsular haematomas, one of which had ruptured, causing 3.8 litres of blood to leak into his abdomen.

[43] Haematoma occurs at the time of the trauma. In order for a delayed rupture to occur, there has to have been a haematoma that could rupture in the first place. Dr Cobourn testified that delayed splenic rupture is extremely rare when the spleen appears normal on post-trauma CT imaging. His opinion is supported by the literature.[^1] To me, the striking feature of the objective evidence is that on March 10 and 11, no subcapsular haematomas were visible on the CT scans. Either they were not there, or, less probably, but with the same legal effect, it was not possible for a prudent physician to see them.

[44] There was more. Dr Willard also took into account that any fluid in the abdomen had not increased in volume over the time between CT scans. Furthermore, the repeated laboratory tests showed that Mr Willick’s haemoglobin count was not decreasing. This was a reasonable basis upon which to conclude that Mr Willick was not bleeding, whether into his spleen or out of it. I find that Dr Willard concluded that Mr Willick had not suffered a splenic injury and that he did not fall below the standard of care in coming to that conclusion, which was moreover probably correct. Furthermore I believe Dr Willard’s testimony that he came to this conclusion after discussing the last CT report with Dr Aggarwal personally. It was conceded by Dr Woolfson that if he did so, he met the standard of care. I accept this concession. In the absence of a splenic injury (or, I suppose, in the alternative in the absence of a detectable splenic injury) it was appropriate to refer the patient to his family doctor for follow up.

[45] This goes a long way to determining the case against Dr Csanadi. The family doctor is not expected to be more qualified to diagnose a splenic injury than the surgeon. That is one of the bases of Dr Woolfson’s criticism of Dr Willard. Dr Csanadi considered the possibility of a splenic injury. He performed his own physical examination and looked at the hospital records. He knew that in the hospital, bleeding from the spleen had been investigated and ruled out. He was interested to know why there was evidence of haemoperitoneum in the hospital records. But he was also entitled to conclude that Mr Willick had not suffered a splenic injury and that the surgeon did not think that he had suffered a splenic injury. His advice to Mr Willick was reasonable and met the standard of care.

[46] Finally, if Mr Willick had followed Dr Csanadi’s advice and sought medical care on March 23 when he noticed bruising, his chances of survival might have been better, but given his underlying conditions, his chances of surviving an emergency splenectomy were not good at any time. Dr Woolfson thought that they were better than 50% but the literature that he cited[^2] seems to offer more support to Dr Cobourn’s opinion that his chances were not that good, even if he had stayed in Crystal Beach. The reviewed group had a 46% mortality rate on average, but that group included subjects who were at less risk than Mr Willick. Members of the group who had coagulopathy had a significantly higher mortality rate. I do not know just how much higher, but it is not far from 46% to 51%. There is other literature that suggests a much higher mortality rate.

[47] I do not need to rely on the literature to decide the question. I have evidence of what actually happened to Mr Willick. Mr Willick’s heart stopped 45 minutes or so after he left for the hospital. Professional resuscitation efforts could not revive him. Certainly if he had been home he would have been closer to medical help. But according to Mrs Willick it would have taken 40 minutes to drive to Welland from Crystal Beach. It might take an hour to set up an emergency splenectomy. There would not have been time to reduce Mr Willick’s INR. I do not think that the longer travel time from the work site to Kapuskasing made the difference.

[48] Also apart from the literature, I preferred the evidence of Dr Cobourn to that of Dr Woolfson overall. I thought that Dr Cobourn’s evidence was more in keeping with the objective evidence, in particular the radiography and the laboratory results. To me, Dr Woolfson seemed to struggle at times to maintain his opinion in the face of the objective evidence. In fact, as I have mentioned, he made some significant concessions, namely that if the conversation with Dr Aggarwal took place the standard of care was met and that the recent bruising was consistent with a recent trauma.

[49] I conclude that Mr Willick, unfortunately, must have suffered another trauma shortly before he died. It need not have been of such a nature that his conditions of employment required him to report it. I also think that, sadly, by March 24 he was beyond help.

[50] In the result, I find no departure from the standard of care, and I find that the defendants’ treatment of Mr Willick was not a proximate cause of his death on the test enunciated by the Supreme Court in Clements v. Clements, 2012 SCC 32, paragraph 8. That is, asked whether the plaintiff has proven that but for the defendants’ negligence the injury would not have occurred, I answer in the negative. Accordingly I give judgment to the defendants. I feel obliged to commend Ms Samson for her skilful presentation of this difficult case.

[51] If the parties do not agree on costs, they may make written submissions not exceeding three pages in length, to which a bill of costs and any offers to settle may be appended, the defendants within 15 days of release of this decision, and the plaintiffs within 15 further days, with no reply. I will need to know the amount of the agreed damages.

J.A. Ramsay J.

Date: 20220704

[^1]: The witness referred to Jahromi et al., “Delayed Splenic Rupture; Normal appearing spleen on the initial MDCT can sometimes be misleading” (2016) 21(5) Journal of Trauma and Emergency Medicine, e24465. [^2]: Bugaev et al., “Management and outcome of patients with blunt splenic injury and pre-existing liver cirrhosis” (2014) 76 (6) Journal of Trauma Acute Care Surgery p.1354.