COURT FILE NO.: CV-14-291 (Owen Sound)
DATE: 2022 09 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tyson David Rogerson, an infant, by his litigation guardian Candice Rogerson, Candice Rogerson and David Shade
Duncan Embury, Brandyn Di Domenico and John Tamming, for the Plaintiffs
Plaintiffs
- and -
Dr. Nkiruka Nwebube, Dr. Elyse Savaria and Cassandra Camsell
Kevin Ross, Joseph Masterson, and Jacob Damstra for the Defendant Physicians
Defendants
Ms. Camsell is self-represented
HEARD: March 8–11, 14–18, 22–25, 29-31, April 1, 4–7, 25–26, September 13, 2022
REASONS FOR JUDGMENT
Sproat J.
Table of Contents
I. OVERVIEW.. 4
II. EVIDENCE OTHER THAN EXPERT EVIDENCE. 7
A. INTRODUCTION.. 7
B. MS. CAMSELL’S HISTORY.. 7
C. CHRONOLOGICAL REVIEW OF EVIDENCE.. 8
D. TYSON’S WEIGHT GAIN.. 16
E. DR. SAVARIA.. 17
F. DR. NWEBUBE.. 20
G. MS. CAMSELL. 23
H. FINDINGS OF FACT.. 27
III. STANDARD OF CARE. 34
A. INTRODUCTION.. 34
B. EXPERT EVIDENCE – STANDARD OF CARE OF A FAMILY PHYSICIAN – DUTY TO REPORT TO THE CAS.. 34
C. EXPERT EVIDENCE – STANDARD OF CARE OF A PEDIATRICIAN – DUTY TO REPORT TO THE CAS.. 38
D. THE LAW... 40
E. ANALYSIS AND CONCLUSION – DR. SAVARIA.. 41
F. ANALYSIS AND CONCLUSION – DR. NWEBUBE.. 45
IV. CAUSATION. 47
A. INTRODUCTION.. 47
B. EXPERT EVIDENCE.. 47
C. THE LAW... 50
D. ANALYSIS AND CONCLUSION.. 51
V. CONCLUSION – LIABILITY. 52
VI. DAMAGES. 53
VII. COSTS. 53
VIII. CONCLUSION. 54
I. OVERVIEW
[1] An overview of the Plaintiffs’ case is as follows:
a) this is a medical malpractice action brought by the minor Plaintiff, Tyson Rogerson ("Tyson") and his adoptive family. Tyson was born on December 2, 2007 and on December 18, 2007, he was assaulted by his biological mother, Cassandra Camsell, resulting in a severe and permanent brain injury;
b) the defendant physicians in this case are Ms. Camsell's and Tyson’s family doctor, Dr. Savaria, and Dr. Nwebube, a pediatrician involved in the care of Tyson the day before the assault (hereinafter “the Defendant Physicians);
c) Ms. Camsell’s mental health history was such that Dr. Savaria should have advised the Children’s Aid Society (“the CAS”) prior to Tyson’s birth that there were likely to be safety concerns;
d) pursuant to section 72 of the Child and Family Services Act (“the CFSA”), in 2007 all physicians had a statutory duty to make a report to the CAS if they have a suspicion that a child is in need of protection. Central to the Plaintiffs’ case is whether that duty arose in the circumstances in this case; and
e) on the issue of causation, the Plaintiffs assert that had a child in need of protection report been made to the CAS by either Dr. Nwebube or Dr. Savaria, the CAS would have intervened immediately, thus preventing the assault and Tyson's resulting injuries.
[2] An overview of the Defendant Physicians’ case is as follows:
a) Dr. Savaria saw Ms. Camsell and Tyson on December 10, 13 and 17, 2007 and made appropriate inquiries into Ms. Camsell’s mental health and ability to cope and care for Tyson;
b) Dr. Savaria was concerned that Tyson’s weight gain was suboptimal and so she decided on December 17 to refer Tyson to Dr. Nwebube a pediatrician;
c) Dr. Nwebube saw Tyson on December 17 and concluded his weight gain was appropriate. She also sent public health, and attempted to send the CAS, a note seeking additional services to help Ms. Camsell, such as with housework;
d) Dr. Savaria and Dr. Nwebube had no reason to be concerned that Tyson was a child in need of protection and so had no duty to make a report to the CAS; and
e) in any event, even if either of them had made a report of a child in need of protection to the CAS, it would have been regarded as a low priority case to be addressed within 7 days. As such, even if a report had been made by Dr. Savaria on December 13 or by Dr. Savaria or Dr. Nwebube on December 17 the CAS would not have intervened in time, or in such a manner, as to prevent Ms. Camsell from assaulting Tyson on December 18.
[3] Section 72 of the CFSA provides, in relevant part, that if a person has “reasonable grounds to suspect” that “there is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child” or “resulting from that person’s failure to adequately care for, provide for, supervise or protect the child” then that person has a duty to forthwith report the suspicion and the grounds for it to the CAS.
[4] Ms. Camsell was originally a defendant in the main action. During the trial I granted leave to the Plaintiffs to discontinue the action against Ms. Camsell. Ms. Camsell and the Defendant Physicians had cross-claimed against each other. The discontinuance of the main action against Ms. Camsell effectively ended her cross-claim. I granted leave to the Defendant Physicians to continue their cross-claims against Ms. Camsell.
[5] The trial was originally scheduled to proceed uninterrupted beginning March 6, 2022. It came to light just prior to trial that Tyson and his parents planned to move to Temagami. This move had implications for the expert evidence on damages. As such, it was agreed that the Plaintiffs’ and the Defendant Physicians’ liability evidence would be called, and liability argued as between them. The damages’ evidence would then be heard in September and a decision on liability and damages would follow.
[6] Ms. Camsell has been self-represented throughout. For some unknown reason Ms. Camsell was not included in a number of pre-trial conferences. It was, therefore, agreed that while she would be called as a witness on the liability phase of the trial, she could elect to provide additional evidence when the trial resumed in September. Ms. Camsell, however, concluded that she did not have additional evidence to present.
II. EVIDENCE OTHER THAN EXPERT EVIDENCE
A. INTRODUCTION
[7] I will review the non-expert evidence in chronological order. I will then review the testimony of Dr. Savaria, Dr. Nwebube and Ms. Camsell.
[8] In the course of reviewing the evidence, I will make certain comments on the evidence given and make certain findings of fact. In doing so, I rely on the totality of the evidence given and any findings that appear later in my reasons.
[9] Extensive documentation was admitted as business records pursuant to s.35 of the Evidence Act. I will identify evidence testified to at trial. Other references to evidence are to the business records.
B. MS. CAMSELL’S HISTORY
[10] Ms. Camsell was born in 1988. Her mother had mental health issues. The CAS became involved with the family in 1989 and Ms. Camsell was put into foster care in 1991. In 1992 she was placed with Richard and Cheryl Camsell and adopted by them in 1993.
[11] Ms. Camsell continued to have behavioral and other problems. In 2002 – 2004, due to various difficulties she encountered, Ms. Camsell was in and out of foster care and CAS residential facilities.
[12] Dr. Savaria first saw Ms. Camsell in 1999, and later that year referred her to Dr. Hallett, a pediatrician. Dr. Hallett diagnosed Ms. Camsell as having Attention Deficit Hyperactivity Disorder (“ADHD”) and prescribed Ritalin. Dr. Savaria continued to see Ms. Camsell for minor issues such as infections and colds.
[13] Dr. Savaria was not involved in the decision making leading to Ms. Camsell being admitted to the Child and Parent Resource Institute (“CPRI”) from November 30, 2004 to January 26, 2005. By letter dated February 4, 2005, Dr. Swart of CPRI advised Dr. Savaria concerning Ms. Camsell’s residential treatment and listed her psychiatric diagnoses at discharge as attachment disorder; probably post-traumatic stress disorder; conduct disorder; chronic anxiety; and low average intellectual functioning with a specific learning disability in the non-verbal area.
[14] From 2005 to 2007 Dr. Savaria saw Ms. Camsell infrequently. Ms. Camsell did not raise any mental health issues.
C. CHRONOLOGICAL REVIEW OF EVIDENCE
September 4, 2007
[15] Dr. Savaria made initial entries on the standard Antenatal Record 1 for Ms. Camsell. She checked off boxes to indicate that Ms. Camsell had a psychiatric history and, under the heading “Psychosocial”, checked off boxes indicating “relationship problems, emotional/depression, and parenting concerns”.
[16] Dr. Savaria noted that she had referred Ms. Camsell to an obstetrician but that Ms. Camsell would follow up with Dr. Savaria for mood issues. She also noted “anger and irritability lately, ADHD [symptoms] known” and “will need social worker”.
September 20, 2007
[17] Dr. Savaria saw Ms. Camsell and noted that “mood still labile, feels quite depressed at times”. Dr. Savaria consulted a psychiatrist, and on his recommendation prescribed a low dose of Seroquel. This is a drug prescribed at high doses for psychosis, but at low doses for conditions like anxiety and irritability.
September 27, 2007
[18] Dr. Savaria saw Ms. Camsell and noted that she was feeling “much better” after taking Seroquel.
October 15, 2007
[19] Dr. Savaria saw Ms. Camsell and noted, “much better with anger since Seroquel / will need support at home, close supervision”.
October 23, 2007
[20] Dr. Savaria referred Ms. Camsell to Dr. Caulley, an obstetrician, who saw her on October 23, 2007. Following the visit Dr. Savaria’s office called Dr. Caulley’s office to let him know Ms. Camsell had been prescribed Seroquel. Dr. Caulley telephoned Ms. Camsell later that same day to discuss the importance of her taking Seroquel daily.
[21] Nurse Scott also completed a screening tool. Ms. Camsell’s score warranted referral to the Public Health – Healthy Babies Healthy Children Program.
[22] In the fall of 2007 Ms. Camsell enrolled in the Public Health – Healthy Beginnings Program which provided opportunities in a group setting for expecting and new mothers to meet with, and learn from, public health professionals. Topics included what to expect during pregnancy and following childbirth.
November 20, 2007
[23] Ms. McCorkindale, a social worker at the hospital obstetrical unit, met with Ms. Camsell and her father Richard. Her detailed notes were in evidence. She noted that Ms. Camsell was very close to her father, and she turns to him when she needs someone to talk to. Ms. Camsell sees her father two or three times a week and often speaks with him on the phone. He is available to her whenever she needs him. Ms. Camsell was attending the Public Health – Healthy Beginnings program with public health Nurse Fawcett. Ms. Camsell reported that her emotions have been “out of whack” throughout her pregnancy. She said she has felt like crying much of the time but understands this is normal. Ms. McCorkindale told her that was not normal, and she encouraged her to speak to her doctor about this.
[24] Ms. McCorkindale was aware that Ms. Camsell had a significant history of mental health issues. Ms. Camsell indicated that she was taking Seroquel daily. Ms. Camsell indicated that Seroquel helps to keep her calm. She finds the Seroquel makes her very sleepy but seems to understand the importance of staying on the medication.
December 2, 2007
[25] Tyson was born at 8:10 a.m., 21 days premature. A nurse charted that she observed Ms. Camsell holding Tyson and yelling at him “I just want to sleep”. She recorded Ms. Camsell was “++ frustrated with lack of sleep and crying” and that Tyson had a bruise on his right arm.
December 3, 2007
[26] Ms. Camsell and Tyson were assessed by a social worker, Ms. Lanktree, at 11:00 a.m. on December 3, 2007. Ms. Lanktree noted that Ms. Camsell was holding Tyson who was sleeping comfortably on her chest. Ms. Camsell reported “feeling well, is tired, but feeling fairly well otherwise”. Ms. Lanktree’s social work notes review Ms. Camsell’s support systems and her plans for caring for Tyson. She also reviews a discussion with Ms. Camsell about her mental health issues and history of depression. She noted:
[Ms. Camsell] indicates she’s not concerned at all about this right now, feels good, reports positive feelings re Tyson. Says feels her depression is behind her, but say will continue to take Seroquel. Say has no concerns re feeling sad or depressed @ this point. → not interested in counselling + has supports if needed. Did not appear flat or blunted. No reported symptoms of current depression.
[27] Ms. Lanktree’s social work notes also detail counselling on smoking, drug use and sleeplessness with babies, including how Ms. Camsell planned to deal with this. Ms. Lanktree’s note concluded stating:
Overall Cassandra voiced no concerns + did not present any info that was of noteworthy concern.
[28] Mr. Camsell testified that from December 3 – 18 he would visit his daughter four or five times a week, typically in the evening before going to work. He would see if things were okay. Ms. Camsell did not mention any difficulties to him and he did not really ask. Mr. Camsell didn’t think Ms. Camsell’s mental health was an issue. He thought Ms. Camsell and her partner Mr. Ranger were doing pretty well. He didn’t have any concerns about Tyson’s well-being prior to December 18.
December 6, 2007
[29] Lee Fawcett, a nurse employed by the Grey Bruce Public Health Unit in the Healthy Babies, Healthy Children program testified at trial. As of 2007 Nurse Fawcett had been conducting home visits with new mothers for 15 years.
[30] Nurse Fawcett called Ms. Camsell on December 4 to conduct an initial assessment. On December 5, 2007 Ms. McCorkindale telephoned Nurse Fawcett and advised her of Ms. Camsell’s extensive mental health history. Nurse Fawcett then visited Ms. Camsell and Tyson at home on December 6, 2007. During the visit Nurse Fawcett completed a Maternal Postpartum Assessment form. She recorded Ms. Camsell as “normal / no problem” for “Emotional Response – postpartum adjustment” and “Attachment: responsive care”. Nurse Fawcett also made a note that Ms. Camsell was taking Seroquel as prescribed.
[31] Nurse Fawcett testified that it was her standard practice to assess for postpartum depression and how the mother is coping and how she engages with the baby. Nurse Fawcett also explained that one purpose of the home visit was to offer any resources that the parents might need. Nurse Fawcett testified that she saw no indication that Tyson was in need of protection and so she did not consider calling the CAS.
[32] Nurse Fawcett also completed a form entitled “Overall Rating for Risk of Poor Child Development for the Family”. Ms. Camsell was rated as high risk of poor child development for the family. This was an assessment of whether Tyson was at risk of not achieving his potential. It was not an assessment of the risk of physical harm.
December 10, 2007
[33] Dr. Savaria saw Ms. Camsell and Tyson. I will later describe Dr. Savaria’s evidence under a separate heading.
December 13, 2007
[34] In the morning Ms. Camsell attended the Healthy Beginnings program at a local church led by Nurse Fawcett. Nurse Fawcett was with Ms. Camsell for approximately one hour. She left for an 11:00 a.m. appointment with Dr. Savaria. Ms. Camsell then returned to the Healthy Beginnings program. Nurse Fawcett spent approximately one additional hour, one-on-one, with Ms. Camsell. Nurse Fawcett did not see any evidence that Tyson was a child in need of protection, and she was “totally shocked” to learn that Ms. Camsell had harmed Tyson.
December 17, 2007
[35] Dr. Savaria saw Tyson, Ms. Camsell and Mr. Ranger. She referred Tyson to Dr. Nwebube based upon her concern that Tyson’s weight gain was suboptimal. Dr. Nwebube saw Tyson later that day. I will later describe Dr. Nwebube’s evidence under a separate heading.
December 18, 2007
[36] Mr. Camsell had a short visit with his daughter and Tyson before the start of his work shift at 11:00 p.m. He didn’t notice anything strange. He then went to work and got a call about 11:05 p.m. from Ms. Camsell indicating that Tyson was having trouble breathing and they needed to take him to the hospital. He went and gave them a ride to the hospital. Hospital staff determined that Tyson had suffered catastrophic brain injuries.
December 20, 2007
[37] In a police interview Ms. Camsell admitted that she had shaken Tyson on the evening of December 18 and that, after she did so, he went quiet. Ms. Camsell ultimately pleaded guilty to aggravated assault on Tyson.
Early January, 2008
[38] Dr. Sauro, the Chief of Pediatrics at Grey Bruce Health Centre, was called as a witness by the Plaintiffs. He testified that he met with Dr. Nwebube because he received information that Dr. Nwebube had said that she had made a referral to the CAS on December 17, however, no such referral was received by the CAS. Dr. Sauro testified that Dr. Nwebube told him:
a) that she had faxed the standard referral form to the CAS; and
b) that she did so because she had safety concerns.
[39] Dr. Sauro testified, and other witnesses agreed, that there was no standard CAS referral form. This was because the standard practice was to telephone the CAS if there was a safety concern.
D. TYSON’S WEIGHT GAIN
[40] The electronic medical record indicated that Tyson’s weight increased by 125 grams from his birth on December 2 to his discharge on December 3. The consensus of expert opinion was that because babies typically lose weight initially the discharge weight must be an error. I agree and, therefore, disregard the discharge weight. For December 17 I accept the weight recorded personally by Dr. Nwebube as being most reliable. I, therefore, find that Tyson’s weight was as follows:
December 2 (birth – 8:53 a.m.) 3275 grams
December 3 (1:00 a.m.) 3225 grams
December 10 3300 grams
December 13 3320 grams
December 17 3410 grams
E. DR. SAVARIA
[41] Dr. Savaria received her medical degree in 1989 and completed a family medicine residency in 1991. From 1991 to 1997 she was a family physician in Durham. Since that time, she has been in family practice in Owen Sound.
[42] Dr. Savaria testified that she had a good and trusting relationship with Ms. Camsell and that she believed Ms. Camsell would tell her if she had an issue.
[43] On September 4, 2007, in Antenatal Record 1, Dr. Savaria ticked off boxes indicating relationship problems, emotional-depression, and parenting concerns. This was based more on Dr. Savaria’s observations rather than what Ms. Camsell said to her at the time.
[44] Dr. Savaria testified that it was part of her standard practice to screen for any symptoms of postpartum depression. Dr. Savaria testified that at the December 10 visit she had a discussion with Ms. Camsell about how things were going and how she was coping. Dr. Savaria’s impression was that all was well, and Ms. Camsell did not express any concerns. Dr. Savaria also testified that she made notes that day using a template which had a heading “family coping – parenting / bonding / fatigue” which effectively prompted her to ask those questions.
[45] Dr. Savaria asked the same questions on December 13. Ms. Camsell denied any symptoms of “the blues”. She appeared calm, appropriate and denied that she had any problems.
[46] On December 17 Mr. Ranger also attended the appointment with Dr. Savaria. She testified that she asked both Mr. Ranger and Ms. Camsell how they were feeling and coping, and they said they were fine.
[47] In cross-examination Dr. Savaria acknowledged that she did not know that Nurse Fawcett, at her home visit on December 6, assessed Tyson at high risk for poor child development and that on December 13 Nurse Fawcett observed Ms. Camsell to be “teary”. Dr. Savaria agreed that being “teary” could be a warning sign in a patient with a documented mood disorder.
[48] It was also pointed out to Dr. Savaria that on the December 17 Healthy Babies referral form, Dr. Nwebube had noted that Ms. Camsell had few people she can turn to for support and that Dr. Nwebube had noted “concerns about adequate care for baby” and that Ms. Camsell “needs help with day-to-day care of this baby”.
[49] The suggestion was that Dr. Savaria had missed warning signs that Dr. Nwebube was able to detect on December 17.
[50] Dr. Savaria explained that while, on December 17, she did tell Nurse Fawcett that she did not trust the parents, she meant that she did not think they were accurately reporting the amount being fed to Tyson.
[51] Dr. Savaria testified that she met the standard of care in the amount of detail provided to Dr. Nwebube concerning Ms. Camsell’s mental health history given that the concern was about Tyson’s weight.
[52] Dr. Savaria agreed that, as stated by Dr. Caulley, Ms. Camsell needed careful assessment and close follow up. Specifically, Dr. Savaria agreed that she needed to assess Ms. Camsell to determine the need or potential need for CAS involvement.
[53] Dr. Savaria was not aware that Nurse Fawcett’s assessment was that Ms. Camsell had some support but that it was unreliable.
[54] Dr. Savaria agreed that a possible cause of inadequate weight gain was Ms. Camsell’s inability to care for Tyson due to her mental health issues. This was not, however, in her mind at the time. It was not part of Dr. Savaria’s differential diagnosis for what she viewed as Tyson’s suboptimal weight gain.
F. DR. NWEBUBE
[55] Dr. Nwebube obtained her medical degree in 1990 in Nigeria. She did residency training which included pediatrics. She then moved to the United Kingdom and completed a residency in pediatrics in 1995 and practiced pediatric medicine there for approximately 5 years. In 2000 she moved to the United States and completed a 3-year pediatrics residency. From 2004 to 2007 she did an additional fellowship in neonatal and perinatal medicine. In order to be closer to family members she applied for a position in Owen Sound and started there on November 26, 2007.
[56] On December 17 Dr. Savaria asked her to see Tyson for suboptimal weight gain and she mentioned that Ms. Camsell was on mood stabilizer medication. Since Dr. Nwebube was on call, she saw Tyson that day.
[57] Dr. Nwebube met with Ms. Camsell, Mr. Ranger and Tyson for approximately one hour. The presenting concern was suboptimal weight gain. Tyson’s birth weight was at the 25th percentile and on December 17 he remained at the 25th percentile. As such, he did not meet the criterion for “failure to thrive” which would have required Tyson’s weight to have declined to about the 5th percentile. Tyson’s weight gain was, however, suboptimal.
[58] Dr. Nwebube described Ms. Camsell and Mr. Ranger as calm, pleasant and appropriately concerned. She summarized her findings and advised them of the options. One being to admit Tyson to the hospital for the purpose of observing his feeding and weight gain and the other option to re-assess Tyson in three days’ time. Ms. Camsell and Mr. Ranger preferred to have Tyson at home but indicated they were happy to bring him back in three days’ time. She, therefore, booked an appointment for December 20 at 10:00 a.m. for a weight check. She also told them that if Tyson’s weight was suboptimal on December 20 she would admit him for observation.
[59] Dr. Nwebube’s handwritten notes made during the consultation include, “Great concerns about parenting”. Dr. Nwebube dictated a summary of her findings at 5:20 p.m. on December 17, which included the following:
IMPRESSION: Impression is that of a 2-1/2 week-old infant who reportedly has had poor weight gain since birth.
During the consultation, mother did state that she would really benefit from extra help at home to help with care of the baby and managing her household duties. In view of this, I did notify the parents that I would make a referral to the Children’s Aid Society to help with available resources. I have also made a referral to the Infant Development Team in view of this baby’s presentation.
As the baby’s weight gain is one of great concern, I have arranged to see this baby again in our clinic for a weight check on Thursday, the 20th of December at 10 AM. I have also informed parents that if the weight gain is inadequate or if there are any further concerns, we may have to admit this baby for observation.
[60] Dr. Nwebube testified that the “great concerns about parenting” referred to in her handwritten note were the concerns that she put in her dictated notes, namely extra help at home.
[61] Because Ms. Camsell had indicated that she needed some support to manage her housework and Tyson, Dr. Nwebube filled out a Healthy Babies referral form for Ms. Camsell. Dr. Nwebube checked off “want to know how to care for myself and my growing baby” and “have few people I can turn to for support”. She asked Lois Lobban, an administrative assistant, to fax this form to public health and it was received by public health.
[62] Dr. Nwebube testified that she also wrote a note containing similar information and asked that it be faxed to the CAS. Ms. Lobban testified that while she had no specific recollection her practice was to fax documents as instructed and make a record of that. There was, however, no record of a fax to the CAS and the CAS had no record of receiving it. Dr. Nwebube testified that she had no child protection concerns and that this form was not intended as a s.72 CFSA referral.
[63] Dr. Nwebube denied having told Dr. Sauro in January 2008 that she had faxed a standard referral form to the CAS as a result of her safety concerns.
G. MS. CAMSELL
[64] Ms. Camsell was called as a witness by the Defendant Physicians, and I ruled that she was subject to cross-examination by the Defendant Physicians and the Plaintiffs.
[65] Ms. Camsell agreed with Mr. Ross that after she was discharged from the CPRI residential program in January 2005 she went back to live with her parents and by April 2005 was no longer involved with the CAS. She was not taking any medication for a mood disorder.
[66] She had a good relationship with Dr. Savaria and trusted her and respected her judgment. For the most part she felt comfortable sharing private matters with Dr. Savaria.
[67] When she went to see Dr. Savaria in September, she told her about increased irritability and anger towards Mr. Ranger. She started taking Seroquel September 20. On September 27 she told Dr. Savaria she was feeling much better. She also told Dr. Savaria that she was taking Seroquel and feeling better on October 15.
[68] Ms. Camsell initially testified that she was taking Seroquel after leaving the hospital but then qualified this by stating that, because she was extremely tired at the time, she was not 100% sure that she was taking Seroquel as directed after her discharge from the hospital.
[69] Mr. Ross asked about the assistance Ms. Camsell was receiving. She said that, with great difficulty, Mr. Ranger would help her. She agreed that her father visited almost daily but couldn’t stay because he had to go back to work. He would stay an hour, maybe two at most. He was also available by phone. Mr. Ranger’s parents, who lived in an apartment across the hall, provided a little assistance. Mr. Ranger’s siblings, Aaron and Tabitha, rarely provided assistance. Ms. Camsell had two girlfriends that she sometimes visited with.
[70] Ms. Camsell was then referred to a transcript of her police interview and she agreed that matters were fresh in her mind at that time. She agreed that she did her best to be honest and accurate. In that statement Ms. Camsell referred to the fact that her mother and father-in-law had taken Tyson for a couple of hours the weekend before Tyson was injured. She referred to her in-laws as being willing to take Tyson so she could get some sleep during the day.
[71] Ms. Camsell testified that she had no memory of having any feelings about wanting to harm Tyson. She did not harbour any feelings of anger or resentment towards Tyson.
[72] Ms. Camsell does recall telling Dr. Nwebube that she could use some extra help. This was help with her housework and so she could sleep more.
[73] Ms. Camsell testified that she did not recall what she did on December 18 or how Tyson came to be injured. She agreed, however, she had no reason to doubt what she told the police. Ms. Camsell told the police that she got frustrated because Tyson would not stop being fussy. She was frustrated because she had heard him cry all day, and she had a pounding headache, and was just ready to give up at that point. Ms. Camsell put Tyson down in a carrier that attaches to his stroller. She admitted to the police that she had shaken Tyson and that she “grabbed a hold of his chest” and “he then went quiet”.
[74] Ms. Camsell was then arrested for aggravated assault causing bodily harm. She was represented by experienced defence counsel. She was examined by a psychiatrist from CAMH and subsequently pleaded guilty to unlawfully causing bodily harm to Tyson. She received a conditional sentence of two years less a day.
[75] Ms. Camsell also described herself as not ever asking for help “in the conventional sense” and she agreed that at her December 10, 13 and 17 appointments she never asked Dr. Savaria for help
[76] In cross-examination by Mr. Embury Ms. Camsell agreed that she had some issues around mood stabilization and issues with anger and irritability. She trusted Dr. Savaria and had a good relationship with her. She would have been honest in speaking with Dr. Savaria.
[77] Ms. Camsell indicated that a number of factors were causing her stress:
a) difficulty in breastfeeding;
b) Tyson crying;
c) as a new mother uncertainty about what to do to calm Tyson;
d) lack of sleep; and
e) bearing the primary responsibility for caring for Tyson.
[78] Asking Mr. Ranger for help was like pulling teeth. He was hard to wake up at night when he was supposed to feed Tyson. Ms. Camsell was asked about support from Mr. Ranger’s family. She recalled one time asking for help and Mr. Ranger’s mother told her, “Welcome to parenthood. This is what you asked for. You can do it on your own.” She said that was like a shot to her because they said they would be there, and they weren’t.
[79] Her father could only help so much, and it was at the point where he was at her apartment so much, he was at risk of losing his job.
H. FINDINGS OF FACT
[80] I will make certain findings of fact as that will put into context the expert opinions and reveal the extent to which the foundation for those opinions accords with the facts as I find them to be.
[81] The principal submission of the Plaintiffs was that Dr. Savaria was negligent in that she did not make a careful mental health assessment of Ms. Camsell when she saw her on December 10, 13 and 17. The Plaintiffs’ alternative submission is that Dr. Savaria made only perfunctory inquiries about Ms. Camsell’s mental health and by so doing breached the standard of care. The Plaintiffs submit that Dr. Savaria’s inquiries must have been perfunctory because she failed to elicit from Ms. Camsell “red flags” that other witnesses noted.
[82] Three of the alleged “red flags” are as follows:
a) Ms. Camsell told Ms. McCorkindale, the social worker, on November 20, 2007, that her emotions had been “out of whack” throughout the pregnancy and that she felt like crying much of the time.
b) that, as charted by a hospital nurse on December 2, Ms. Camsell was “yelling at Tyson and being frustrated with lack of sleep and crying”.
c) that on December 13, as observed by Nurse Fawcett, Ms. Camsell was “teary” after seeing Dr. Savaria and being told Tyson was not gaining enough weight.
[83] Ms. Camsell testified that:
a) she had a good relationship with Dr. Savaria and wasn’t afraid to discuss things with her.
b) from May to September her pregnancy had progressed well and her problems with mood arose in September.
c) she does not ask people for help directly or “in the conventional sense”.
[84] I do not agree that Dr. Savaria’s inquiries were perfunctory or that more careful questioning would have elicited these three “red flags”.
[85] While I am satisfied that Ms. McCorkindale accurately recorded what Ms. Camsell told her on November 20, 2007, the weight of the evidence leads me to conclude that the statement by Ms. Camsell that her emotions were “out of whack” throughout her pregnancy is exaggerated. She saw Dr. Savaria June 7 and July 26, 2007 and said nothing about any mental health issue. Ms. Camsell testified that her pregnancy progressed well until September when she experienced irritability and was prescribed Seroquel. Ms. Camsell then reported feeling better.
[86] While I accept that Ms. Camsell yelled at Tyson at the hospital, this is something that would be embarrassing and unlikely to be admitted, even to a trusted person like Dr. Savaria.
[87] Dr. Savaria could, of course, only learn that Ms. Camsell had been “teary” on December 13 when she attended for her appointment on December 17. On December 17, however, Ms. Camsell was still indicating she was fine. Further, a new mother being “teary” over difficulty in breastfeeding and concern that her baby had suboptimal weight gain would be more normal and expected than a “red flag”.
[88] The Plaintiffs further submitted that Dr. Savaria must have conducted a perfunctory assessment of Ms. Camsell because she failed to detect “red flags” that Dr. Nwebube detected in one visit.
[89] The Plaintiffs highlighted that:
a) Dr. Nwebube’s referral form sent to the Healthy Babies program stated that there were “concerns about adequate care for the baby” and that Ms. Camsell had “few people she could turn to for help”.
b) Dr. Nwebube’s handwritten note during the December 17 consultation referred to “great concerns about parenting”.
c) Dr. Nwebube’s December 17 dictated clinic note referred to “…this baby’s weight gain is one of great concern”.
[90] It is important to analyze these alleged “red flags” in some detail.
[91] Dr. Savaria’s referral was for “weight gain suboptimal – parents say feeding 4 ounces Q4H [four times a day]”. Dr. Nwebube ascertained that Tyson was at the 25th percentile at birth and on December 17. This was far removed from the criterion for “failure to thrive”.
[92] Tyson was steadily gaining weight although his weight was suboptimal. Dr. Nwebube had no safety concern about deferring the possible admission of Tyson to monitor his food intake and weight from December 17 to December 20. All of Dr. Nwebube’s observations with respect to Ms. Camsell and Mr. Ranger, in terms of their care and concern for Tyson, were positive. They waited hours for her to see Tyson and they were appropriately interested in his care and treatment. There was nothing to indicate that Tyson was at possible risk in going home with Ms. Camsell and returning in three days.
[93] Dr. Nwebube’s clinic note, dictated on December 17 soon after examining Tyson, and so at a time when this was routine referral, stated in relevant part:
During the consultation, mother did state that she would really benefit from extra help at home to help with care of the baby and managing her household duties. In view of this, I did notify the parents that I would make a referral to the Children’s Aid Society to help with available resources. I have also made a referral to the Infant Development Team in view of this baby’s presentation.
[94] Reading this clinic note, it is inconceivable to me that Dr. Nwebube had, and was intending to communicate, a safety concern. If Dr. Nwebube had a reasonable suspicion that there was a risk that Tyson would likely suffer physical harm inflicted by Ms. Camsell or resulting from her neglect, I am confident the grounds for this suspicion would have been clearly set out. Dr. Nwebube simply wanted Ms. Camsell to have “extra help at home”. Dr. Nwebube’s dictated clinical note of December 17 summarizing her findings is the most reliable evidence as to the nature and extent of her concerns.
[95] Dr. Nwebube testified that her note, that weight gain was of “great concern”, referred to the concern expressed by Dr. Savaria. After examining Tyson, she did not have any great concern herself. Further, Dr. Nwebube testified that her note “great concerns about parenting” referred to the same concern as in her clinic note being that Ms. Camsell could benefit from extra help at home.
[96] I find that Dr. Savaria questioned Ms. Camsell and did make a careful mental health assessment of her, how she was coping, the supports available to her and whether she was experiencing any depression, at each of the three visits. In this regard:
a) it is almost inevitable that even a friend or relative conversing with a new mother would ask questions along the lines of, “how are you doing – feeling?”, “are you able to get any sleep?”, and “do you need any help?”;
b) Dr. Savaria was well aware of Ms. Camsell’s mental health history which she understood, and it was generally agreed, would put her at higher risk of decompensation;
c) as an experienced family physician, Dr. Savaria was well aware that “the blues” and postpartum depression are always a concern;
d) on September 4, 2007 Dr. Savaria checked off boxes on Antenatal Record 1 that Ms. Camsell had a psychiatric history, relationship problems, emotional depression issues and that there were parenting concerns. Ms. Camsell’s mental health history was, therefore, fresh in Dr. Savaria’s mind.
e) on September 20, 2007, after consulting a psychiatrist, Dr. Savaria prescribed Seroquel for Ms. Camsell;
f) on December 10 Dr. Savaria used a template which directed her to the issue of “family coping – parenting / bonding / fatigue”.
g) Dr. Savaria’s testimony that Ms. Camsell advised her on December 10, 13 and 17 that she was coping well, and did not have any concerns, is generally consistent with what Ms. Camsell communicated to Ms. Lanktree, the social worker at the hospital, on December 3 and to Nurse Fawcett at the home visit on December 6, and at the Healthy Beginnings program on December 13.
h) Ms. Camsell testified that she never told Dr. Savaria that she needed help which is consistent with the fact that she was not expressing any concerns to Dr. Savaria.
[97] I accept the evidence of Dr. Nwebube that she did not tell Dr. Sauro that she had sent a “standard” CAS referral form as a result of safety concerns. I make this finding taking into account:
a) Dr. Sauro gave a will-say, and so reduced his recollection to writing, 10 years after the fact;
b) Dr. Nwebube’s recollection is supported by the fact that she did send a fax to public health indicating that CAS was being notified and that the request was for supports for the family;
c) in cross-examination Dr. Sauro defended his recollection that Dr. Nwebube had “safety” concerns by stating that she would not have been trying to get the parents to agree to have Tyson admitted to the hospital if there were no safety concerns. In fact, Dr. Nwebube suggested that Tyson could be admitted in order to provide a controlled environment in which his intake and weight gain could be accurately recorded.
d) Dr. Sauro and Dr. Nwebube had a strained professional relationship which may have coloured Dr. Sauro’s recollection.
[98] I find that Dr. Nwebube did not have a safety concern and so did not intend to make a s.72 report to the CAS.
[99] The evidence is unclear, and in any event it is not necessary to make a finding, as to why the CAS did not receive the note from Dr. Nwebube asking for additional help for Ms. Camsell.
[100] I further find that Ms. Camsell was taking Seroquel as prescribed following her discharge from hospital. She testified that she continued to take Seroquel although she then qualified this stating that she could not be 100% sure. This finding is also supported by the fact that on November 20 she told Ms. McCorkindale she understood the importance of taking Seroquel; on December 3 she told Ms. Lanktree that she would continue to take Seroquel and on December 6 she told Nurse Fawcett that she was taking Seroquel as prescribed.
[101] I also accept Dr. Savaria’s evidence that when she told Nurse Fawcett that she did not trust the parents, she was referring to trusting that they were accurately reporting the amount of nourishment Tyson was consuming. This makes sense as the central concern around suboptimal weight gain was that there was a disconnect between the amount of nourishment reported by the parents and Tyson’s weight gain.
III. STANDARD OF CARE
A. INTRODUCTION
[102] All of the expert witnesses were well qualified, and I would not differentiate between any of them on the basis of their education and experience. As such, I will only make very brief reference in that regard.
B. EXPERT EVIDENCE – STANDARD OF CARE OF A FAMILY PHYSICIAN – DUTY TO REPORT TO THE CAS
[103] Dr. Morris, who testified for the Plaintiffs, had a family practice in Brampton from 1983 – 2001 and since that time has had a family practice in Oakville.
[104] In summary, Dr. Morris testified as follows:
a) Ms. Camsell’s mental health problems were such that they could not be viewed as reliably under control. As such, she was significantly at risk for trouble after childbirth. She had also been prescribed Seroquel. Dr. Savaria breached the standard of care by not advising the CAS, prior to Tyson’s birth, that Ms. Camsell’s mental health history posed a risk to a baby.
b) mental health issues could result in Ms. Camsell not feeding Tyson properly and so account for his suboptimal weight gain. As such, mental health issues should have been part of Dr. Savaria’s differential diagnosis.
c) Dr. Savaria breached the standard of care by failing to conduct a focused mental health assessment at the December 10, 13 and 17 appointments. Dr. Morris based this on the fact Dr. Savaria did not make a note of having conducted these assessments.
d) if Dr. Savaria had conducted an appropriate mental health assessment she would have elicited “red flags” as to Ms. Camsell’s mental health such that as of December 13 she had a s.72 CFSA duty to report.
e) given that Ms. Camsell’s mental health could be a cause of Tyson’s suboptimal weight gain, Dr. Savaria should have provided Dr. Nwebube with a summary of her entire mental health history.
[105] In cross-examination, Dr. Morris testified as follows:
a) he did not review the Public Health Unit documents and so was unaware of the December 4 telephone call by Nurse Fawcett; her December 6 home visit or her two meetings with Ms. Camsell at the Healthy Beginning program on December 13.
b) it was fundamental to his opinion that Dr. Savaria did not make an assessment of Ms. Camsell’s mental health at any of the three appointments.
[106] Dr. Stanton, who testified for the Defendant Physicians has had a family practice in Oakville since 1991. I summarize Dr. Stanton’s opinion as follows:
a) his opinion was premised on the fact that, as I have found, Dr. Savaria inquired into and assessed Ms. Camsell’s mental health on December 10, 13 and 17.
b) Ms. Camsell was attending her appointments and was generally following the advice she received. Public health was providing support and she also had family support. There were no signs of neglect or indifference. Ms. Camsell appeared to have bonded with Tyson and there was no evidence that she was agitated or frustrated.
c) as such, there was no s.72 CFSA duty to report.
d) In his opinion Dr. Savaria met the standard of care with her evaluation and management of Ms. Camsell and Tyson.
[107] In cross-examination Dr. Stanton testified that:
a) December 13 was categorized as a patient visit by Ms. Camsell and so Dr. Savaria should have documented her mental health inquiries.
b) that if, with supports and assistance, Tyson’s needs were not being met there would be a duty to report to the CAS.
c) the relevant mental health history for Ms. Camsell was that she had ADHD and had been prescribed Seroquel.
d) Ms. Camsell’s mental health should have been part of Dr. Savaria’s differential diagnosis of Tyson’s suboptimal weight gain.
[108] Carolyn Buck also testified for the Plaintiffs and provided expert evidence on the duty to report. Ms. Buck had 30 years of experience working at the Toronto CAS. She began as a frontline worker in child protection and progressed to be a supervisor responsible for making decisions as to what child protection steps should be taken. Ms. Buck progressed to ever more senior positions and served as the Executive Director of the Toronto CAS from 2003 to 2007.
[109] In Ms. Bucks’ opinion a s.72 child in need of protection report should have been made by Dr. Savaria on December 17, and perhaps earlier, and by Dr. Nwebube on December 17. In Ms. Buck’s opinion the CAS would have regarded this referral as requiring an immediate response by a CAS worker who would have attended, assessed the risk and implemented a safety plan.
[110] The facts that Ms. Buck relied upon in forming her opinions were inaccurate in a number of important respects.
[111] Ms. Buck understood that Ms. Camsell had been prescribed an “anti-psychotic drug” which implies that Ms. Buck understood that Ms. Camsell had suffered from or was prone to psychosis (The Canadian Oxford dictionary defines psychosis as, “a severe mental derangement esp. when resulting in delusions and loss of contact with external reality”). In fact, Seroquel was prescribed for irritability.
[112] Ms. Buck understood that Tyson was not gaining weight and that in fact on December 13 he weighed less than when he was discharged from the hospital on December 3. In fact, Tyson was consistently gaining weight.
[113] Ms. Buck understood that Tyson’s parents were refusing to have him admitted to the hospital in circumstances in which a failure to admit him would be unsafe. In fact, given Tyson’s consistent weight gain, there was no safety risk in deferring his possible admission for 3 days.
C. EXPERT EVIDENCE – STANDARD OF CARE OF A PEDIATRICIAN – DUTY TO REPORT TO THE CAS
[114] Dr. Kanani, who testified for the Plaintiffs, qualified as a pediatician in 2005. From August 2013 to the present, he has served as the Chief of Pediatrics at the North York General Hospital.
[115] I summarize Dr. Kanani’s opinion that Dr. Nwebube breached the standard of care as follows:
a) it is important to get a social – mental health history of the parents as that can impact on the care of an infant;
b) if the referring physician does not provide such a history the pediatrician should obtain that information;
c) Ms. Camsell’s mental health history would not itself require a s.72 CFSA report to the CAS, however, coupled with Dr. Nwebube’s stated concern about parenting, there was a duty to report.
[116] In cross-examination Dr. Kanani agreed that:
a) Dr. Nwebube had the advantage of seeing Tyson and his parents in person and observing how they interacted;
b) the fact the parents were cooperative, took a bus and then waited to see Dr. Nwebube, and agreed to a follow-up appointment, were positive signs;
c) there was no indication that Tyson had been injured or that Ms. Camsell’s mental health had affected her ability to care for Tyson;
d) not all referrals to the CAS are for the purpose of child protection.
[117] Dr. Wilson, who testified for the Defendant Physicians, qualified as a pediatrician in 1988. Since then, he has had a consulting practice in Kitchener-Waterloo and been on staff at the two hospitals in that area.
[118] In his opinion Dr. Nwebube met the standard of care. Dr. Wilson’s opinion can be summarized as follows:
a) Dr. Nwebube ascertained correctly that this was not a case of Tyson failing to thrive as his birth weight, as well as his weight on December 17, were at the 25th percentile;
b) given that this was a young couple with a first child and potentially limited family supports, it was reasonable to monitor the newborn for appropriate weight gain, which is what Dr. Nwebube did;
c) it was not necessary to admit Tyson for observation. Follow-up in three days was very reasonable. It is common and reasonable for parents to not want a baby to be admitted to hospital. If they did not want Tyson admitted, it was perfectly reasonable to offer an alternative plan.
d) there was nothing in the information provided to suggest that Tyson was at imminent risk of harm.
e) it was reasonable and appropriate for Dr. Nwebube to make referrals requesting parental support through public health and the CAS. The CAS can help parents access services and resources.
f) as Tyson was healthy, Ms. Camsell’s mental health did not need to be addressed at the initial assessment.
[119] In cross-examination Dr. Wilson agreed that:
a) the CAS was the organization best able to ensure the safety of a child;
b) the standard of care would require Dr. Nwebube to make at least “broad inquiries” of Ms. Camsell’s mental health history and medications.
D. THE LAW
[120] There was no real dispute as to the general principles as stated, in leading authorities such as Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] SCR 804.
[121] With respect to Dr. Savaria, a central issue was the significance of the fact that she failed to chart the mental health and coping assessments that she testified she conducted on December 10, 13 and 17. In Keith v. Abraham, 2011 ONSC 2, D.M. Brown J.:
a) found that charting by exception, in the sense of only charting new conditions or changes, was reasonable; and
b) noted that the invariable practice of a physician (in the case of Dr. Savaria that she always assessed the mental health and coping of new mothers) is evidence and possibly convincing evidence, that she did so as she testified to.
E. ANALYSIS AND CONCLUSION – DR. SAVARIA
[122] Given the findings of fact that I have made, and my review of the expert evidence and the extent to which it was premised on those facts, my analysis and conclusion on liability can be stated briefly.
[123] The Plaintiffs allege that Dr. Savaria breached the standard of care by:
a) not reporting Ms. Camsell to the CAS as a high-risk mother prior to Tyson’s birth;
b) failing to conduct a focused mental health assessment of Ms. Camsell during each of the three post-natal visits;
c) failing to report Tyson as a child in need of protection on December 13 and 17;
d) failing to provide Dr. Nwebube with a summary of Ms. Camsell’s mental health history.
[124] With respect to the first alleged breach, I find that during Ms. Camsell’s pregnancy Dr. Savaria did not have an obligation to report to the CAS that she was a high-risk mother. While Ms. Camsell had a concerning mental health history, since leaving CPRI in February 2005 there is no evidence of her acting inappropriately. She never brought any mental health issues to the attention of Dr. Savaria until September 2007 when she was prescribed Seroquel.
[125] I find that Dr. Savaria acted reasonably by on September 4 flagging in Antenatal Record 1 that Ms. Camsell had a psychiatric history and that she would need to have a social worker. This resulted in a social worker interviewing Ms. Camsell prior to her discharge from hospital and Ms. Camsell receiving a home visit from Nurse Fawcett and participating in the Healthy Babies program.
[126] The Plaintiffs submitted that Dr. Stanton did not give an opinion on the obligation to make an antenatal report to the CAS and, therefore, the opinion of Dr. Morris was uncontradicted. Dr. Stanton did not expressly address the obligation to make an antenatal report to CAS. This is not surprising given that the focus, as made clear from the opening statements at trial, was whether Dr. Savaria breached the standard of care by not assessing Ms. Camsell’s mental health on December 10, 13 and 17, and in not eliciting “red flags” that would have obliged her to make a s.72 CFSA report. Dr. Stanton, however, did testify that in his opinion Dr. Savaria met the standard of care in her evaluation and management of Ms. Camsell and Tyson. I, therefore, certainly understand his opinion to be that there was no obligation to make an antenatal report.
[127] I prefer the opinion of Dr. Stanton to that of Dr. Morris on this issue. Dr. Morris’ opinion was that the ante-natal duty to report arose when Ms. Camsell had anger and irritability for which she was prescribed Seroquel. By all accounts Ms. Camsell reacted positively to the Seroquel. I do not, therefore, agree that the prescription of Seroquel indicated a heightened risk.
[128] With respect to the second alleged breach of failing to conduct a focused mental health assessment of Ms. Camsell on December 10, 13 and 17, my findings of fact determine this issue. I have concluded that Dr. Savaria conducted an appropriate mental health assessment of Ms. Camsell and the information she received reassured her that Ms. Camsell was feeling well and coping with the stress of caring for Tyson. As such, Dr. Savaria did not breach the standard of care in this regard.
[129] With respect to the third alleged breach, that Dr. Savaria should have made a s.72 CFSA report on December 13 and December 17, this too is largely determined by my findings of fact. Dr. Savaria did make an appropriate assessment of Ms. Camsell’s mental health. The answers she received, and her observations, indicated that Ms. Camsell was feeling well and coping. Dr. Savaria also observed Ms. Camsell interacting appropriately with Tyson. Dr. Savaria was also aware that Nurse Fawcett had made a home visit and that Ms. Camsell was attending the Healthy Babies program.
[130] Further, Dr. Morris acknowledged that his assumption that Dr. Savaria did not assess Ms. Camsell’s mental health was “fundamental” to his opinion that she had an obligation to make a s.72 report to the CAS on December 13 and 17.
[131] Ms. Buck’s opinion that Dr. Savaria should have made a s.72 report to the CAS was premised on a number of inaccurate facts, including that Tyson was not gaining weight and in fact weighed less on December 13 than he did at birth and that his parents were refusing to have him admitted to the hospital in circumstances in which his safety was at risk.
[132] As such, I have no difficulty in concluding that Dr. Savaria did not have an obligation to make a s.72 report to the CAS. I do not require expert evidence to determine whether a set of facts gives rise to a s.72 CFSA duty. It was, however, agreed that the standard of care of a family physician required compliance with s.72. My conclusion, therefore, receives some support from the opinion of Dr. Stanton, whose opinion I accept, that Dr. Savaria did not have a duty to make a s.72 report.
[133] With respect to the fourth alleged breach, I find that Dr. Savaria breached the standard of care by not providing Dr. Nwebube with a summary of Ms. Camsell’s mental health history. Both Dr. Morris and Dr. Stanton opined that Ms. Camsell’s mental health should have been part of Dr. Savaria’s differential diagnosis as to why Tyson’s weight gain was suboptimal. That being the case Dr. Savaria should have provided Dr. Nwebube with a summary of Ms. Camsell’s mental health history.
[134] I further find, however, that this breach was of no consequence. There is no reason to think that providing Dr. Nwebube this additional information would have allowed her to elicit information concerning Ms. Camsell’s mental health that would be materially different from the information elicited by Ms. Lanktree on December 3, Nurse Fawcett on December 6 and 13, and Dr. Savaria on December 10, 13 and 17. Dr. Nwebube would not, therefore, have taken any different steps than she did.
F. ANALYSIS AND CONCLUSION – DR. NWEBUBE
[135] The Plaintiffs allege that Dr. Nwebube breached the standard of care by:
a) failing to obtain an adequate mental health history of Ms. Camsell; and
b) failing to make a s.72 CFSA report on December 17, 2022.
[136] What is an adequate mental health history depends on the context. Dr. Nwebube ascertained that Tyson was gaining weight and that his 25th percentile weight on December 17 was the same percentile as at birth. This allayed any immediate concerns. Dr. Nwebube had no child protection concerns and so scheduled an appointment three days later.
[137] Dr. Nwebube knew Ms. Camsell was on medication for a mood disorder. Dr. Nwebube spent an hour with her. They certainly must have discussed Ms. Camsell’s attempts to breastfeed and how she was feeling. Dr. Nwebube also had an opportunity to observe Ms. Camsell’s demeanor and how she interacted with Tyson.
[138] I accept Dr. Wilson’s opinion that there was no obligation to obtain a complete mental health history on December 17 given that a follow-up appointment had been scheduled. I find that Dr. Nwebube effectively made adequate inquiries regarding Ms. Camsell’s mental health on December 17.
[139] Dr. Nwebube did not have child protection concerns on December 17. I find that Dr. Nwebube did not have a s.72 CFSA duty to report.
[140] I further find that even if Dr. Nwebube had obtained Ms. Camsell’s full mental health history, and conducted a detailed mental health assessment of her, she would not have had child protection concerns. In that case Dr. Nwebube would simply have obtained the same information as Ms. McCorkindale, Nurse Fawcett and Dr. Savaria – that Ms. Camsell was coping well but could use extra help at home.
IV. CAUSATION
A. INTRODUCTION
[141] As I have already concluded, Dr. Savaria and Dr. Nwebube did not have a s.72 CFSA obligation to report to the CAS. For the sake of completeness, I will also address what would likely have happened had a report been made.
B. EXPERT EVIDENCE
[142] Two expert witnesses testified as to the likely CAS response if Dr. Savaria and/or Dr. Nwebube had made a s.72 report to the CAS.
[143] Carolyn Buck testified for the Plaintiffs, and I previously discussed her credentials. Rod Potgieter testified for the Defendant Physicians. Mr. Potgieter had 27 years of CAS experience. At times he was responsible for making an assessment of the risk presented by particular cases. From 2003 – 2016 he was the Executive Director of the Elgin County CAS.
[144] As of 2007, Ontario had standards to guide a CAS. When a referral was received, intake workers were obliged to determine the urgency of a response. Highest risk cases required immediate attention. Other cases would be categorized as requiring a 12-hour or a 7-day response within which a worker would be obliged to obtain information and assess the level of risk.
[145] Ms. Buck’s opinion was that there would have been an immediate response by the CAS which would have intervened and prevented Tyson’s injury.
[146] Ms. Buck’s opinion, however, suffered from two deficiencies. It was premised on facts that did not prove to be accurate and Ms. Buck was unaware of certain facts that were highly relevant to the likely CAS response.
[147] In the course of her evidence as to how the CAS would have responded, Ms. Buck referred eleven times to the fact that Tyson was not gaining weight. On five additional occasions Ms. Buck inaccurately referred to Tyson as “failing to thrive”. Ms. Buck also understood incorrectly that Ms. Camsell was taking Seroquel as an anti-psychotic drug and that Tyson’s parents were refusing to have him admitted to the hospital when Dr. Nwebube wanted to admit him due to safety concerns. These misunderstandings were all fundamental to Ms. Buck’s opinion as to how quickly, and how, the CAS would have responded.
[148] On the evidence of Ms. Buck, at its highest, the CAS would have formulated and achieved agreement as to a “safety plan”. Ms. Buck referred to the fact that this plan might have involved a third party being in the home:
… at least for overnight and for the foreseeable future until they were able to work with the Healthy Babies Program or have a child and family worker go in.
[149] Ms. Buck was also unaware of a number of assessments and reports that would have been reassuring to a CAS investigator, such as by Ms. Lanktree on December 3; and Nurse Fawcett on December 6 and 13.
[150] The rigour of the safety plan that Ms. Buck opined would have been implemented is the direct product of the fact that she erroneously believed Tyson was failing to thrive and that his parents were refusing to have him admitted to hospital when his health and safety were at risk. Taking into account the actual facts, I am not satisfied on a balance of probabilities that any plan proposed by CAS would have involved a person overnight in the home or would otherwise have had provisions that would have prevented the injury to Tyson.
[151] Mr. Potgieter explained that whenever the CAS receives a report concerning a child it is considered to be a child protection report until the CAS is able to determine otherwise. Mr. Potgieter’s opinion was premised on the CAS having received a report containing the same information Dr. Nwebube included in the referral she made to the Public Health Healthy Babies Healthy Children program.
[152] Mr. Potgieter’s opinion was that the CAS intake worker would regard this as a relatively low-risk situation. The CAS would have contacted the pediatrician and accessed the CAS file regarding Ms. Camsell which would have revealed her extensive mental health history. The CAS would also speak to Dr. Savaria and arrange for an appointment with Ms. Camsell, Mr. Ranger and Tyson. In a case of this nature the CAS worker might have asked a psychologist to conduct a parenting capacity assessment. Mr. Potgieter’s opinion was that the additional information the CAS would obtain would not alter the initial impression of the CAS that this was a low-risk situation and that a 7-day response was appropriate.
C. THE LAW
[153] There was no real dispute as to the general principles. In Clements v. Clements, 2012 SCC 32, Chief Justice McLachlin, for the majority stated:
[8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.
[154] The Plaintiffs suggest that because there was no child in need of protection report to the CAS there is a gap in the evidence, as to how the CAS would have responded, due to the negligence of Dr. Savaria and Dr. Nwebube. The Plaintiffs submit that as a result the onus shifts to the Defendant Physicians to prove a cause of injury unrelated to their negligence.
[155] I do not agree. As a matter of law, the cases cited by the Plaintiffs only go so far as to hold that the onus may shift in a case in which the defendant’s negligence has resulted in a failure to create or keep a record of medical data. In any event, it would not be appropriate to draw an adverse inference in this case. It was open to either side to call evidence from the Grey-Bruce CAS as to matters such as its intake process; whether Ms. Camsell’s historical file would be immediately available for review and, if not, the time it would take to obtain it; and the personnel available to respond on the days in question.
D. ANALYSIS AND CONCLUSION
[156] For the reasons I have explained I do not accept Ms. Buck’s opinion that the CAS would have responded immediately. I accept Mr. Potgieter’s opinion. It makes sense and it accords with the reality of the situation.
[157] As such, I conclude that even if the CAS had received a s.72 report on December 13, the CAS would have regarded this as a low-risk situation. I further find that the CAS would not have taken any concrete action by December 18 and so would not have prevented the harm to Tyson.
[158] For the sake of completeness, I will address the further scenario in which the CAS did take some action prior to December 18. Ms. Buck expressed the conclusory opinion that if the CAS had been involved, she had “every confidence” the harm to Tyson would have been avoided.
[159] If the CAS had become involved it would have learned that:
a) Ms. Camsell and Tyson were being closely followed by their family doctor, and Tyson by a consulting pediatrician;
b) Nurse Fawcett had done a home visit and was seeing Ms. Camsell on an ongoing basis;
c) Ms. Camsell’s father was visiting almost daily and was always available by phone.
d) Tyson’s paternal grandparents lived across the hall with Mr. Ranger’s brother and sister. While Ms. Camsell testified they did not live up to the level of support she expected, the fact is they did provide some support.
e) Ms. Camsell had friends who were new mothers with whom she socialized.
[160] In all the circumstances, I conclude that any CAS involvement would have been minimal and not enough to prevent the injury to Tyson.
V. CONCLUSION – LIABILITY
[161] For the foregoing reasons the Plaintiffs’ action is dismissed. As a consequence of that dismissal the crossclaim of the Defendant Physicians against Ms. Camsell is also dismissed.
VI. DAMAGES
[162] While the action is being dismissed, I am still obliged to make a finding as to the damages.
[163] When the trial resumed on September 13, 2022 counsel for the Plaintiffs and the Defendant Physicians put on the record their agreement that damages should be fixed at $13,250,000. On a motion under Rule 7.08 I approved the settlement of the quantum of damages in this amount.
VII. COSTS
[164] The Defendant Physicians shall serve and file a bill of costs and written costs submissions within 30 days. The Plaintiffs shall file responding submissions within a further 30 days. Reply submissions, if any, shall be filed within a further 10 days. I assume that the Defendant Physicians are not claiming costs in relation to their crossclaim against Ms. Camsell. If, however, any costs are claimed they shall include such claim in their costs submissions and Ms. Camsell will have the right to respond.
[165] I want to allow the parties every opportunity to agree upon costs and avoid the considerable time and expense that will be involved in preparing costs submissions. For that reason, these time limits can be extended on consent. Counsel should simply notify the court as to any agreement to extend.
VIII. CONCLUSION
[166] I wish to thank counsel. Both sides were well prepared and presented their case professionally, forcefully and efficiently.
[167] Tyson has obviously suffered catastrophic injuries. I have a great deal of respect for Ms. Rogerson and Mr. Shade who adopted Tyson and have done so much to care for him in difficult circumstances. For the reasons given, however, I cannot, and do not, find that Dr. Savaria and Dr. Nwebube have any liability.
Sproat J.
Released: September 28, 2022
COURT FILE NO.: CV-14-291
DATE: 2022 09 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Tyson David Rogerson, an infant, by his litigation guardian Candice Rogerson, Candice Rogerson and David Shade
Plaintiffs
- and -
Dr. Nkiruka Nwebube, Dr. Elyse Savaria and Cassandra Camsell
Defendants
REASONS FOR JUDGMENT
Sproat J.
Released: September 28, 2022