COURT FILE NO.: CV-14-518857

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

John Joseph Jellifo

Plaintiff

– and –

Dr. Merajuddin Shams

Defendant

Daniel Michaelson and Lianna Woolard, for the Plaintiff

Eli Mogil and William Lim, for the Defendant

HEARD: November 8, 9, 10, 11, 12, 15, 16, 18, 19, 22, 23, 24, 2021, and December 2, 2021

M.D. Sharma J.

JUDGMENT

[1] This is my judgment in this medical malpractice trial, held virtually via Zoom.

[2] The plaintiff alleges that over several monthly appointments with his family physician, he complained about soreness, chest pain, coughing, fever, headaches, sweating, chills and other symptoms. Those symptoms were left untreated. The plaintiff was admitted to the hospital on July 2, 2013 for acute pneumonia and streptococcal empyema, a serious infection. He underwent significant invasive surgery – bronchoscopy, thoracotomy and decortication of the right lung. The surgery has caused the plaintiff to suffer from numerous ailments. They include nerve pain, back pain, right chest pain, diabetes, hypertension, respiratory issues, compromised immunity, and mental health issues.

[3] The situation in which the plaintiff now finds himself is tragic. His injuries have impacted all aspects of his daily living, have substantially deprived him of his enjoyment of life, and have rendered him unable to perform simple household chores. He states he was also on the precipice of launching a new business venture in 2013, but his current health prevents him from working, with a resulting loss of income.

[4] The plaintiff alleges his family physician breached his duty of care and was negligent, and that this negligence caused or contributed to the damages the plaintiff is suffering and will suffer in the future.

[5] The parties have agreed upon damages and costs of the trial. This trial only determines liability.

I. Preliminary Issues

Inadequate Record Keeping & Ineffective Pain Management Allegations

[6] There was expert evidence adduced at trial with respect to whether the defendant had maintained adequate notes of his appointments with the plaintiff, and whether the defendant had engaged appropriate care in the management of the plaintiff’s chronic pain. Standard of care experts were adduced by the plaintiff on these points, along with a responding expert from the defendant.

[7] After all evidence was received, I expressed concern to counsel that material facts relating to the alleged ineffective pain management were not found in the Statement of Claim, although some broad-sweeping allegations may arguably include a claim with respect to ineffective pain management. In my view, the Statement of Claim focused exclusively on the allegation of an untreated respiratory illness. I invited counsel to address this issue in their closing submissions.

[8] Plaintiff’s counsel argued that pleadings should be read generously with allowance for deficiencies. He pointed out that the defendant adduced his own expert report responding to this issue. He further argued that when determining whether a family physician fell below the standard of care, all aspects of the physician’s care must be considered.

[9] I am not concerned about the potential for surprise at trial for the defendant, given that he responded to the plaintiff’s expert evidence with his own expert. What concerns me is that, in this trial, there was no evidence that would suggest that ineffective pain management was at all causally connected to the injuries the plaintiff suffered from his surgery for his respiratory illness.

[10] During closing oral arguments, plaintiff’s counsel confirmed that evidence of the defendant’s ineffective pain management provides context for how the defendant treated the plaintiff. The plaintiff’s theory is that the defendant had tunnel vision in his treatment of the plaintiff, which focussed on his long-standing chronic issues to the exclusion of acute conditions or symptoms that the plaintiff presented at his monthly visits. Accordingly, I only consider evidence regarding pain management in the context of my assessment of whether the defendant breached the standard of care in treating the plaintiff’s respiratory illness. Even if there was ineffective pain management, it is not a basis upon which liability may be imposed because of the lack of evidence of a causal connection to the injuries the plaintiff suffers arising from his surgery for his respiratory illness.

[11] With respect to inadequate note-taking by the defendant, I can see how this issue is connected to the plaintiff’s allegation that the defendant failed to treat symptoms that he says he reported. The plaintiff’s position on what he recounted to the defendant differs from what was recorded in the defendant’s medical notes. Therefore, I consider this evidence in my assessment of whether the plaintiff reported his symptoms to the defendant.

II. Issues

[12] The issues to be decided are:

1. Is it more likely than not that the plaintiff was ill with symptoms of a respiratory infection in the weeks or months prior to his hospital admission and when he was attending monthly medical visits with the defendant physician?

2. If so, did the defendant breach a standard of care if it is proven that the plaintiff reported symptoms of a respiratory infection to the defendant, and notwithstanding those reports, the patient was left untreated?

3. Alternatively, did the defendant breach a standard of care if it is proven that the plaintiff had obvious and observable respiratory infection symptoms and the defendant failed to make inquiries, investigate or treat those symptoms?

4. In the further alternative, did the defendant breach a standard of care if it is proven that the defendant, knowing the plaintiff was prescribed medication that would mask symptoms of a respiratory infection, failed to make inquiries or investigate at subsequent visits whether the plaintiff’s prior diagnosed cold / respiratory infection had resolved?

5. If there was negligence on the part of the physician, what is the proper test of causation in this case – “but for” or “material contribution to injury”? Did Dr. Shams’ negligence cause the damages (physical and mental illness, loss of income, loss of enjoyment of life, future care costs) the plaintiff is now suffering and will suffer arising from his surgery?

6. Was there contributory negligence on the part of the plaintiff arising from a failure to provide information about his symptoms to the defendant, to follow instructions, or to otherwise act in his own best interest as his symptoms persisted?

III. Background Facts

[13] The parties submitted an Agreed Statement of Facts. I summarize those relevant to my judgment. I include other facts that are largely not in dispute and which arose from the evidence.

[14] The Plaintiff, John Joseph Jellifo (“John”), is currently 56 years old. He has four children: Stephen, Klayton, Murray and Lindsay. He has a grade twelve education. I refer to John and other members of his family by their first name with no disrespect, and only to distinguish them from other family members with the same surname who provided evidence at trial.

[15] Before 2008, John’s treating physician was Dr. Tran.

[16] The defendant, Dr. Merajuddin Shams (“Dr. Shams”) took over the care of some patients of Dr. Tran in 2010. He became John’s treating family physician in September of 2010 until June 2013, although Dr. Shams treated John occasionally between 2008 and 2010 when Dr. Tran was not available.

[17] John would see Dr. Shams (and Dr. Tran) at the Unimedico clinic. Dr. Sadik, a physician at the same clinic as Dr. Shams, treated John on November 30, 2011 and October 24, 2012 when Dr. Shams was not available.

[18] Dr. Shams is a medical doctor with a specialty in Family Medicine. He graduated from Kabul University, Afghanistan in 1983, and came to Canada in 1989. In 2004, Dr. Shams was accepted to the University of Toronto for his residency. He began school in 2005 and graduated in 2007. He has experience and is familiar with treating infections with antibiotics.

[19] The relevant period for the purpose of this action is January 2012 to June 2013, based on the allegations in the Statement of Claim. John attended Dr. Shams’ office on nineteen occasions from January 2012 to June 2013: January 9, February 3, March 2, March 30, April 27, May 25, June 25, July 25, August 24, September 24, November 26, December 14, 2012, January 11, February 11, February 22, March 20, April 19, May 17 and June 17, 2013.

[20] While not in the Agreed Statement of Facts, John was treated by Dr. Shams for three chronic conditions: migraines, back pain, and hypertension. It is undisputed that John received prescriptions at each of his monthly visits for Tylenol 3 with codeine (“T3s”). This medication was prescribed to manage John’s migraines, although it also helped with his chronic back pain. Because T3s contains an opioid, it was necessary for John to have monthly appointments to monitor his use and to obtain a new prescription. At each appointment, John also received prescriptions for Flexeril, a muscle relaxant for his chronic back pain, and Indomethacin, an anti-inflammatory analgesic.

[21] What happened at medical appointments between January 2012 to June 2013, and perhaps more particularly, between November 2012 and June 2013 is a subject of dispute. John alleges that at some or many of these visits, he complained to Dr. Shams about symptoms of a respiratory infection - coughing, phlegm, chest pain, sweating and a general feeling of being unwell.

[22] Dr. Shams denies this, with a few exceptions. His medical notes show that on January 9, 2012, John was treated for a complaint of a sore throat and was prescribed antibiotics. The next recorded complaint of a possible respiratory infection was on March 20, 2013.

[23] The medical note from the March 20, 2013 visit states John reported having a cold for three weeks, with symptoms of a cough with phlegm, that Dr. Shams conducted an examination which found that John had no fever, and that his mouth, chest and ears were clear. Dr. Shams diagnosed him with an upper respiratory tract infection, or a common cold. No antibiotics were prescribed at this appointment.

[24] At the June 17, 2013 appointment, the medical note states John complained of migraine and nausea which the evidence revealed could be a symptom of a lower respiratory tract infection, but Dr. Shams attributed this to John’s migraines since he had complained of worsening migraines at that appointment. Nausea is often a symptom of migraines but can also be associated with an infection.

[25] On July 2, 2013, John was taken to Southlake Regional Health Hospital (“Southlake”) by his son. Upon presentation, his blood pressure was 89/40, heart rate was in the 130 range, and respiratory rate was 20. John underwent a right-sided thoracentesis in the emergency department. Chest x-ray imaging demonstrated significant right sided pleural effusion and consolidation. John was admitted to the ICU at Southlake the same day for acute pneumonia, empyema of the right lung, and pleural effusions. John’s culture from his pleural fluid grew Streptococcus Anginosus.

[26] John underwent immediate thoracic surgery - bronchoscopy, thoracotomy and decortication. He had three chest tubes placed intra-operatively. He suffered from significant delirium while in the ICU requiring Haldol.

[27] On July 19, 2013, he was discharged from the hospital on antibiotics via a PICC line. He stayed at his parent’s home for several weeks where they cared for him. In August 2013, John returned to his home in Keswick, Ontario.

[28] Following his surgery, John complained of chronic thoracic pain arising from the surgery. He began to see a pain specialist, Dr. Railton, in 2014 through to December 2019. Dr. Railton prescribed John various pain medications and administered various therapies.

[29] Dr. Nicholas was John’s treating family doctor from approximately June 2014 to June 2019, when he retired. Dr. Nicholas saw John for his nerve pain, back pain, right chest pain, diabetes, hypertension, and mental health issues. Dr. Nicholas prescribed John several medications to manage his conditions.

[30] Dr. Collins is John’s treating psychologist. He diagnosed John with depression, anxiety, and adjustment issues related to his ongoing physical and mental health issues.

[31] Dr. Salimpour is John’s current treating family doctor. John sees Dr. Salimpour for his chronic nerve pain, right chest pain, hypertension, diabetes, and mental health issues. John remains on several prescription medications.

[32] Since John’s July 3, 2013 invasive bronchoscopy, thoracotomy, and decortication, he has suffered significant pain, specifically chronic pain syndrome, chronic pain chest wall, and mental health issues. John remains in severe pain, which impacts his ability to engage in daily living activities, including work and social activities. John has not returned to any gainful employment since his hospital admission in July 2013. He requires care and housekeeping support over and above OHIP provided healthcare.

[33] John has incurred out of pocket expenses since July 2013 associated with his medical care and prescriptions. He has incurred financial debts since July 2013 as a result of his inability to work gainfully. OHIP Subrogated interest is $93,697.93.

John’s condition prior to November 2012

[34] John’s witnesses gave evidence which suggest that John’s health and mood began to noticeably deteriorate in November 2012. Therefore, I begin with my assessment of John’s general condition before November 2012.

[35] Evidence of John’s general condition, personality, work and family life came from several witnesses, including John. There was also evidence from Dr. Shams and corroborating medical reports.

[36] John’s witnesses were his bother-in-law, David McGuire; his sister, Helen McGuire; his brother, Martin Jellifo; his sister, Maureen Charlebois; his two sons, Murray Jellifo and Stephen Jellifo; and his long-standing friend, Betty Briber.

[37] Two business associates also provided evidence: (1) Alex Wong, the owner and operator of National Auto Exchange, had worked with John for over 23 years in the car industry; and (2) Steve Cook, the owner and operator of Cooks Service Center, was John’s neighbour in Keswick. He and John were formulating a business plan to work together in auto sales in 2012 and 2013.

[38] The testimony of John and his witnesses was consistent in terms of how they witnessed John before November 2012. Dr. Shams did not adduce evidence that would contradict those observations. In summary, I make the following factual findings about John’s general condition, mood, personality, and professional career:

1. John was healthy and physically active. While he has been overweight most of his life, he was able to engage in many activities, including home construction projects; household chores (e.g., cooking and cleaning); exterior household maintenance (e.g., mowing and garden care); recreational activities (i.e. hunting, hiking, snowmobiling, and boating); and activities with his children (e.g., road hockey, biking, and driving his children to activities). While John had suffered from migraines and back pain, his witnesses stated that these conditions did not significantly impact his ability to function. In 2010, John was physically fit to work ten hours carrying heavy loads of wood and plywood to construct an outdoor dancefloor and stage.

2. John was close with his extended family. He and his immediate family would regularly attend extended family functions with his parents, siblings, and their families, including birthday parties and holiday dinners. He also had monthly dinners with his sister, Maureen, and their respective families. He would participate in fishing, hunting, and boating activities with his immediate and extended family. Sometimes he would vacation with his extended family.

3. John was a committed father. He was very close with his four children and spent a great deal of time with them as they were growing up. He met his now ex-wife, Laura, in 1997. They began living together that year, along with her twin boys who were 3 years old at the time – Stephen and Klayton. John later adopted the two boys. Laura and John had two more children, Murray and Lindsay. The evidence of John, Murray, and Stephen was that John was dedicated as a father and that he was very active with them as children. Activities John engaged in with his kids included hockey, boating activities, hunting, baseball, skating, dancing lessons, badminton, and their schooling. He participated in these activities regularly through to 2011. In 2011, John and Laura separated. John moved to Keswick to live with his mother-in-law. Stephen and Klayton went away to university, but Murray and Lindsay resided with John 50 percent of the time, until Murray decided to live with John full-time in 2012.

4. John was a caring and likable man. His siblings, and friend, Betty, described him as “joyful”, “the life of the party”, “always in a good mood”, and someone who was always “laughing and making others laugh.” When living with his mother-in-law, he managed the house, cooked, cleaned, took his mother-in-law to cancer treatments, and drove his kids between Keswick and Schomberg. He also drove his mother-in-law to visit her husband, who was in a nursing home.

5. John’s separation from his wife in 2011 caused him stress. There was evidence that the separation was difficult on him, that he was “going through some tough times” due to the divorce and separation, and that restrictions imposed upon him with respect to time he spent with his children made him angry. However, the separation issues were largely resolved in 2013, resulting in him having his children, Murray and Lindsay, 50 percent of the time.

6. John was a trusted professional in the car sales industry. From 1984 to 2010, John worked in the car sales business at various car dealerships. He took on positions of graduated seniority – from salesman, Assistant Manager, General Manager to Wholesale Manager. He held senior positions in the industry, other than owner of a dealership. He was respected by car dealership owners and was recruited by them for his experience. He worked hard in the industry and was perceived as trustworthy by Mr. Wong and Mr. Cook, with whom John had planned to embark on a business venture of opening a used car sales business in Keswick.

John’s evidence was that his migraines may have occasionally required him to leave work, and that he had no other health impediments that prevented him from working. His sister, Maureen, confirmed that if John suffered from back pain, it did not affect his mood, walking, or ability to work outside the home or to perform housework before 2012.

Between 2010 to June 2013, John was not working. There is a dispute as to whether John was unable to work because of his chronic back pain, or whether he was unable to work temporarily as he took care of his family.

IV. Evidence of John and Dr. Shams

[39] The evidence of John and Dr. Shams is central in this case. Aside from the notes Dr. Shams took, their recollection of appointments is the only direct evidence of what occurred at their monthly visits. I therefore begin with a general assessment of their evidence.

John’s Evidence

[40] John’s evidence was given over two and a half days. His demeanour was consistent throughout. Despite testifying at home in a reclining chair, he appeared to be in some discomfort throughout.

[41] During his examination-in-chief and cross-examination, he was forthright in admitting that he did not have specific recollections of most appointments he had with Dr. Shams. Where he had recollections, they were general in nature. He admitted, on cross-examination, that Dr. Shams’ medical records and Dr. Shams’ own recollection of events would be more reliable than his.

[42] There were attempts to impeach him during his cross-examination, based on evidence he gave at his examination for discovery. But upon review of other portions of the discovery transcript, I am not satisfied that there were inconsistent statements on some material facts. He was not hostile or argumentative. While there was a casualness and lack of precision with John’s evidence, which likely explains some of the inconsistency, I am not persuaded that those inconsistencies arose from an intention to deceive the Court. For these reasons, I generally found John to be a credible witness, subject to two caveats.

[43] First, on a balance of probabilities, I believe several factors have likely impacted the reliability of John’s evidence. Nine years have passed since the events in 2012/13 and this trial. John also testified that he remained in pain while giving testimony and that he testified with difficulty. I accept that this may have impacted his testimony. I afforded several breaks during his testimony for this reason. I am also cognizant that John’s pain and his medications may have impacted his ability to recollect or communicate his recollection. He was quick to answer questions, sometimes before the question was fully asked. I encouraged him to pause for a second or two before he provided his answers.

[44] The second caveat is that, on cross-examination, John gave several unequivocal answers about Dr. Shams’ medical notes that did not have an air of reality. Combined with the fact that John admitted he did not have specific recollections of most visits, these answers suggested John was either confused, or had convinced himself that the answers he was giving were true. Again, I am not satisfied he gave answers with an intention to deceive.

[45] Notably, he was asked on cross-examination if he would agree that the only way Dr. Shams could record several facts within the medical records is if John had communicated that information to Dr. Shams or if Dr. Shams had performed a test. For example, the medical records contained notations about John being on a diet for weight loss, when John settled his custody dispute, where John was experiencing pain, whether John experienced chills, whether John had experienced a fall, John’s weight, his blood pressure and the examination of John’s leg for swelling. For each of these notations made by Dr. Shams, John refused to agree that Dr. Shams’ notes reflected what John must have communicated to him, or that Dr. Shams had in fact weighed John, taken his blood pressure, or examined his leg.

[46] If I were to accept John’s evidence, I would be left to conclude that Dr. Shams made up information found in his medical records, which information only John could possess. I would also have to conclude that Dr. Shams made up numbers about John’s weight, his blood pressure, and about his physical examination of John, and then recorded that false information in John’s records. This lacks an air of reality.

[47] For these reasons, I find that John’s evidence on what transpired at his medical appointments with Dr. Shams is unreliable. Where there is inconsistent evidence between John and Dr. Shams, I will consider whether there is evidence that may corroborate John’s recollection, as well as the probability or improbability of John’s recollection in the context of all of the evidence.

Dr. Shams’ Evidence

[48] I found Dr. Shams to be a credible and reliable witness.

[49] Like John, he provided evidence in a straightforward and respectful manner. He was not confrontational or argumentative. He made admissions with respect to what he should have done, such as investigate observable physical symptoms when John attended appointments.

[50] He adopted his medical records as being accurate reflections of what was discussed at appointments. There would be no motivation for Dr. Shams to fabricate medical records from a period before John’s hospitalization and before this litigation started. And there was no evidence to suggest that these medical records were not made contemporaneously at the time of John’s visits, or that they were fabricated or altered after this litigation commenced.

[51] Dr. Shams admitted that much of his recollection of the monthly appointments was reconstructed based on his notes, and that not everything he discusses with a patient is reflected in the medical record he prepares. He also admitted that it was possible to make mistakes when charting a patient’s visit, although for some entries where John provided him with information that only John could know (e.g., John’s work history), Dr. Shams stated it was “impossible” for him to record that information incorrectly.

[52] As with John, there is a concern about the reliability of Dr. Shams’ recollection of events due to the passage of time, plus potential for confusion among the sheer number of patients seen by Dr. Shams.

[53] Some measure of caution must be exercised by me, as the trier of fact, in accepting Dr. Shams’ recollection based primarily on a recollection of his notes, especially in light of the plaintiff’s theory that Dr. Shams’ care of John suffered from tunnel vision, which was focussed on treating his chronic conditions to the exclusion of acute illnesses, such as respiratory illness.

[54] However, Dr. Shams also testified about his usual or standard practice when seeing patients, which informed much of his evidence of what happened at appointments. It is not surprising that a doctor cannot recall every appointment. It is not uncommon for doctors to have a usual and standard practice in their treatment of patients, on which the Court can rely upon as evidence of what transpired in a given case. Indeed, there is authority for the Court to give significant weight to evidence of a physician’s usual practice where a physician has no specific recollection of the day(s) in question: see Bafaro v. Dowd, [2008] O.J. No. 3474, at para. 29; Jones-Carter v. Warwaruk, 2019 ONSC 1965, at para. 266; and Owala v. Makary, 2021 ONSC 7476, at para. 122.

V. Analysis

Issue #1: Is it more likely than not that John had an untreated respiratory illness in the weeks or months prior to his hospital admission and when he was attending monthly medical visits with Dr. Shams?

[55] If John did not have symptoms of a respiratory illness by at least June 17, 2013 – his last visit with Dr. Shams – then there would be no basis to impose any liability on Dr. Shams. In other words, if John’s condition resulting in his hospital admission did not exist or result in any symptoms before June 17, 2013, it would not have been possible for John to report symptoms, or for Dr. Shams to detect and treat his respiratory illness.

[56] Therefore, I begin with a factual finding of whether, on a balance of probabilities, John had symptoms of a respiratory illness in the weeks or months prior to his hospital admission.

[57] Expert evidence from a respiratory specialist, Dr. Gerard Cox, was received with respect to John’s condition upon admission to the hospital, and the symptoms John would have been experiencing.

[58] Direct evidence of John’s symptoms and condition came from John and Dr. Shams. His family and friends also provided evidence on what they observed of John and his symptoms.

Dr. Cox’s Expert Evidence on John’s Respiratory Illness and Symptoms

[59] Dr. Cox is head of clinical services at the Firestone Institute for Respiratory Health. He currently works at St. Joseph’s Health Care Centre in Hamilton where he treats patients with lung disease. He also teaches respiratory medicine at McMaster University, Department of Medicine. He has received awards in respiratory clinical education and has provided expert reports for plaintiffs and defendants in the past, as well as expert testimony.

[60] I found Dr. Cox duly qualified as a respiratory specialist to give opinion evidence on causation in this case. Dr. Cox, in preparation of his expert report, had access to Dr. Sham’s clinical notes as well as John’s hospital records.

[61] John’s hospital admission records show that he was diagnosed with streptococcal empyema, and that he had pneumonia. Dr. Cox provided helpful descriptions of these conditions, and he explained the surgery that John required.

[62] Dr. Cox testified that respiratory tract infections can occur above the vocal cords, which are upper respiratory tract infections. Those that affect the bronchial tubes, lung tissue and pleural spaces are lower respiratory tract infections.

[63] He testified that there are two groups of symptoms with respiratory tract infections. One is the consequence of any infection, such as feeling hot and cold, fever, chills, and shivering. For respiratory tract infections, typical symptoms are coughing and mucus or phlegm production. The second group of symptoms are the consequences of the inflammation or irritation. For an upper respiratory tract infection, symptoms are nasal congestion or sinusitis. For a lower respiratory tract infection, Dr. Cox advised you can have noisy breathing or wheezing, and shortness of breath. If the lower respiratory tract infection is in the lining of the lungs and the pleural spaces, a patient may also experience chest pain and discomfort.

[64] Dr. Cox stated if the infection is viral, there is no treatment. If the infection is bacterial, effective intervention is important to prevent deterioration, progression, and complications. Antibiotics, such as penicillin or related to penicillin, are the typical means to treat a bacterial respiratory infection.

[65] Dr. Cox further explained that pneumonia is an infection of the lung tissue, as opposed to an infection of the throat, nose or airways. A streptococcal pneumonia is a respiratory tract infection caused by the streptococcus organism. He stated that the signs and symptoms of streptococcal pneumonia would be the general symptoms of an infection – fever, sense of being hot, shivering, and inappropriate sweating. In addition, there would be typical symptoms of a respiratory tract infection, namely a cough with mucus. The consequences of the infection and mucus would be noise or wheezing breathing, and shortness of breath.

[66] Dr. Cox also explained a pleural effusion. Pleura is the lining on the inside of the chest wall and another layer of pleura covers the lung. It is a thin, resilient, and pliable layer of tissue. It is lubricated by a small amount of fluid that allows movement to occur when breathing. Between the two layers of pleura there is space where this small amount of liquid is found. When there is an excessive accumulation of fluid in this pleural space, it is called a pleural effusion. Signs and symptoms of pleural effusion would be whatever the problem that caused the effusion, plus shortness of breath, and coughing or chest pain if there is irritation of the lining of the lung causing the fluid to accumulate.

[67] Dr. Cox testified that it is important to treat a pleural effusion. Without treatment, in simple cases, excessive lubricant fluid develops in the pleural space which can come and go. In not simple cases, high protein content can develop in the pleural space which can congeal or coagulate forming solid components. It is no longer simple liquid, but particulates. This can result in the pleural linings sticking to each other, rather than slipping and sliding over each other. If medical therapies such as antibiotics are ineffective, surgery can be required.

[68] He testified that pleural fluid collection in patients with pneumonia is an indication of the complexity and extension of the underlying condition. Infection in the pleural space is an extension of the underlying condition. It takes time for that extension and progression to the pleural space to occur.

[69] Dr. Cox further explained that empyema, a condition that John presented with at the hospital, is the accumulation of pus in the pleural space. It is a type of pleural effusion with fluid accumulation, but the fluid is pus. It will be called streptococcal empyema when the organism causing the infection is streptococcus. Streptococcal infections can infect the pharnyx (i.e., strep throat), the upper respiratory tract, or lower respiratory tract. Streptococcus that causes pneumonia is streptococcal pneumonia, which occasionally extends to the pleural space and is called streptococcal empyema.

[70] Streptococcal empyema is what John was diagnosed with upon his admission to Southlake.

[71] Dr. Cox testified that empyema is not common. It can occur from trauma to the pleural space, such as a knife wound or gunshot. Empyema occurring as a complication of chest infection is less common because the body has mechanisms to resist infection. For an infection to get into the pleural space, it is a longer journey. He said in John’s case, there was no evidence of trauma, and therefore, his empyema was from a respiratory infection. Symptoms of empyema are the same as an infection (fever, hot/cold, shivers, and sweating), as well as coughing and shortness of breath. Empyema would be treated with intravenous antibiotics initially, and surgery when the person’s condition was serious or severe enough.

[72] The goal of thoracic surgery for empyema is to remove the fluid and sticky particulates of protein and restore space between the pleura. In addition, decortication may be required if the layer of pleural lining has become thickened. The removal of the layer of thickened pleura is called decortication. When pleural lining thickens, it cannot function as the flexible, pliable, and thin layer of tissue. Without this flexibility, it can restrict lung expansion. Therefore, even if one were to successfully remove the fluid and particulate in the pleural space, the lung may remain restricted by the thickened pleural lining.

[73] Dr. Cox opined that John’s condition on presentation to the hospital developed over weeks to months. He based this opinion on the fact that John had seen Dr. Shams about a cold in March 2013. According to hospital admission records, John had indicated his respiratory symptoms predated his admission to hospital by months. The second reason was that the surgical removal of thickened pleura through decortication is “more frequent with empyema that has been present for longer periods than with empyema that has developed acutely over some days.”

[74] Dr. Cox further opined that John’s cold reported at the March 20, 2013 visit with Dr. Shams was more likely than not causally related to his ultimate diagnosis upon his July 2, 2013 hospital admission. He opined:

Symptoms recorded during Mr. Jellifo’s visit with Dr. Shams on March 20, 2013 are typical of respiratory tract infection. His hospital admission in July 2013 was for management of empyema, which is a serious infection, usually occurring as a complication of lower respiratory tract infection. It is more likely than not that these are casually related.

[75] However, Dr. Cox acknowledges that it was not likely that John would have been referred to a specialist or for diagnostic imaging based on the findings recorded by Dr. Shams at the March 20, 2013 visit, which appeared to be symptoms of a cold or upper respiratory tract infection. Dr. Cox went on to state:

However, if his symptoms of cough and sputum failed to resolve or if there was a deterioration such as weight loss, fevers, sweats, new or worsening chest pain, then arranging diagnostic imaging and/or specialist referral would have been appropriate. I would expect that finding a pleural effusion in a patient with chest infection would have led to prompt investigation, inquiry re possible empyema and management (antibiotics and consideration for drainage of the effusion). By prompt, I mean within 1-2 days – the risk of empyema is regarded as an urgent issue to resolve. Managing an uninfected pleural effusion is not as urgent.

[76] Dr. Cox further stated that if John’s “respiratory symptoms failed to resolve or there was evidence of progression/deterioration, then treatment for infection would have been considered. It is a truism – that prompt initiation of effective antibiotic therapy reduces the duration and morbidity of bacterial infections of the respiratory tract.”

[77] During his testimony, Dr. Cox stated that a prescription of oral antibiotics in April, May or June of 2013 would more than likely have assisted John’s outcome. The complications of pneumonia can be interrupted or diminished by effective antibiotics during a person’s illness. Prompts for the administration of antibiotics would have been at the time of diagnosis of pneumonia, or secondly, if pleural effusion were detected that was not infected.

[78] From Dr. Cox’s evidence, symptoms related to John’s pneumonia and empyema would have been fever, chills, sweating, cough with mucus or phlegm, weight loss, shortness of breath, and chest pain.

[79] I next turn to the evidence to determine whether it was more likely than not that John was experiencing these symptoms in the months prior to his hospital admission.

John’s Evidence

[80] The bulk of the evidence from John and his family and friends was that in or around November 2012, John first had noticeable symptoms of coughing, spitting phlegm, sweating, low energy, and feeling ill. There was also significant evidence of back pain, which I recount for completeness, although it is not a symptom of the illnesses for which John was hospitalized.

[81] As noted, John had few specific recollections about his visits with Dr. Shams, except for three: (a) a visit on January 9, 2012, where he complained of a sore throat and was prescribed antibiotics; (b) a visit on March 20, 2013, where John complained of cold symptoms, and other symptoms; and (c) a visit on June 17, 2013, where he says he continued to complain of symptoms.

[82] In terms of his specific recollection of respiratory illness symptoms, John’s evidence was that it was first around November 2012 on a duck hunting trip with his son, Murray, that his back was sore, he had cold symptoms, and was coughing phlegm. John said he was unable to go hunting on an island to which they normally go; instead they hunted from the boat. He had similar symptoms on a subsequent hunting trip in November 2012 with his brother, Martin, and a friend.

[83] Through the winter of 2013 to July 2013, John said his back pain worsened and he was sweating a lot. When driving Murray and Lindsay to school, he recounted having body pain, coughing, and producing phlegm. He also recounted losing 40 or maybe 50 pounds by June 2013.

[84] John testified that he had a general recollection of telling Dr. Shams about his poor health around this time, but his only specific recollection was at the March 20 and June 17, 2013 appointments with Dr. Shams. At the March 20th appointment, his evidence was that he decided he wanted to have a “proper appointment” with Dr. Shams where he “stood his ground” and told Dr. Shams as much as he could about what was going on with him because “he wasn’t feeling good.” He remembered this appointment, he said, because his back was “killing [him].” The medical note from this appointment confirms that Dr. Shams diagnosed John with an upper respiratory tract infection after making inquiries and some diagnostic tests. Dr. Shams did not prescribe antibiotics, although he did recommend Corcidin, an over-the-counter cough medicine meant for individuals with high blood pressure.

[85] In or around March 2013, John went to his brother-in-law’s birthday party in Midland. John said when he got there, he was “hurting pretty bad”, he had a cold, and he was embarrassed by not being able to control his phlegm.

[86] In May 2013, John’s son, Stephen, was home from university. John was continuing to experience coughing and phlegm. At that point, John said he felt that he didn’t know what else he could do. He testified he got angry with Stephen, telling him that “[Dr. Shams] is the doctor, you listen to him and you do what he tells you to do. And that’s the way I was raised, so I didn’t, I didn’t allow my son to disrespect the doctor.”

[87] John had no specific recollection of his appointments with Dr. Shams in April or May of 2013. However, he said at the May 2013 appointment, he recalled continuing to report coughing and phlegm and to continuing to take cough syrup.

[88] At his next visit on June 17, 2013, John testified that he recalled telling Dr. Shams what was going on, how rough he had been for months, his sweating, that he could hardly breathe, and that his chest was killing him. He said he also told Dr. Shams about losing 40 to 50 pounds in weight, and Dr. Shams responded with “that’s a good start.” John further said that Dr. Shams blamed a lot of John’s sweating and anxiety on the stress of his family and custody dispute, but John had told him at this appointment that the custody dispute was resolved. He said he tried to get across to Dr. Shams everything he could. John testified that the only thing Dr. Shams did was recommend John take hot baths for his back. He did not prescribe antibiotics, send him for chest x-rays, or recommend that he go to an emergency room if his condition worsened.

[89] He then testified about his father’s birthday party in June 2013, and then on June 30, 2013, having a party at his home for his sons’ birthday. At both events, he recounted not feeling well, coughing and sweating. At his sons’ birthday party, he tried to move around and be entertaining and get people drinks, but he couldn’t. He said his back was killing him, and he thought he had pulled a disk in his back because it was tender. He said he was noticeably short of breath.

Murray Jellifo’s Evidence

[90] John’s son, Murray, testified that in November 2012, he and John went duck hunting. He stated John was already having health issues at that point and having difficulties doing outdoor things like boating and other physical activities. Each season when they would go hunting, they would normally take a boat and hunt from an island. But in November of 2012, they just hunted from the boat. This was because John was having trouble breathing, he was sweating a lot, and his back was hurting him. Murray’s evidence was that John started coughing and spitting up phlegm around that time, and he recalled specifically noticing it on this trip.

[91] Following this trip, Murray said John’s health continued to deteriorate. He noticed that John participated in activities, like snowmobiling, less frequently. He witnessed John coughing and spitting often, particularly when John would drive Murray to school. Sometimes it was four to five times per car ride. He also noticed John sweating a lot and that it would take a lot out of him to get the boat going, to put on snowmobile gear, or to go up and down the stairs.

[92] Murray also testified that John’s back pain was a lot worse during the period leading up to July 2013. Murray said that John had had back pain for years, and John was always able to deal with it. But in the months leading up to July 2013, John had to take additional measures to deal with his back pain (e.g., heat therapy, baths) because his back was hurting much more.

[93] Murray also recounted two family events where John’s condition was noticeably poor. One was at his grandfather’s 80th birthday party on June 1, 2013. Murray said John was not doing well, he was thin by that point having lost a lot of weight, and his back continued to bother him. Murray estimated John had lost 30 to 40 pounds. The second party was on or about July 1, 2013, at Murray’s brothers’ birthday party. According to Murray, John “was really hurting at that one.” He recounted that John was in a lot of pain because of his back, and was sweating a lot.

[94] Murray also recounted the medications he saw his father take. He saw John take T3s for his migraines, other medication for gout, and in the four or five months before July 2013, he would see his father take cough syrup from the pharmacy and he remembers having to buy it once a week or so.

Stephen Jellifo’s Evidence

[95] John’s other son, Stephen Jellifo, also testified. He was away at university during much of the relevant time in this action, although he was home for Christmas in 2012 and recalled that John was sick with a cough and coughing the entire time. He returned home in April 2013 and saw John coughing, hacking up phlegm, and sleeping a lot. During the day, it was daily and all day long. He also saw that John was always sweating. At night, he remembered waking up to the sound of his father coughing up phlegm. He said that this was John’s condition right up to his hospital admission on July 2, 2013.

David McGuire’s Evidence

[96] David McGuire, John’s brother-in-law, testified that he recalled seeing John at the twin boys’ birthday party in June 2013. John had taken David and his sister, Helen, out for a boat ride. He noticed that John was speaking very softly, he was using short sentences and struggling as he shifted his body around in his seat to manoeuvre the boat. At one point on the boat, David called to John to say that his son Klayton was up waterskiing, and when John turned around, he bellowed or moaned very loud. John doubled over, was out of breath, and “he was saying, his back, his back.” David further testified that John acted like the wind got knocked out of him. They ended waterskiing. John came inside to the couch, and according to David, he couldn’t get him out of the house for the rest of the afternoon.

Helen McGuire’s Evidence

[97] Helen McGuire’s evidence was that she would see John at their parent’s place often. She saw him, generally, twice a month or more at family functions. Her first recollection of John’s poor health was at a family Christmas party in December 2012 at Helen’s home. She observed that John was very quiet and reserved, unlike the fun, jokester-type person he usually is. He did not look well. At their parent’s place, she observed that John was sick, he had lost weight, he looked pale, he wasn’t able to sit properly on a chair.

[98] Helen recounted seeing John at their father’s 80th birthday party on June 1, 2013. She observed that John couldn’t sit properly on a chair, he stayed upstairs rather than go downstairs, and he had to lean on things. At this party, Helen said that you could really tell John had lost a lot of weight – at least 40 to 50 pounds. He was also quiet at this party and did not participate.

[99] The next time Helen saw John was at the twin’s birthday party. Helen said John “was not good”, he couldn’t breathe properly, he had lost more weight, and did not come back outside after a boating excursion.

Martin Jellifo’s Evidence

[100] Martin Jellifo, John’s brother, similarly recalled John and him taking a hunting trip in November 2012. On that trip, John was clearing his throat, coughing all the time, and he didn’t look well. He also observed John sweating, and that he remarked to John that John should “find out what’s going on - you’ve been hacking all day.”

[101] Martin also observed John at the family Christmas dinner in December 2012. He saw John sweating a lot and he remembered John putting his head under cold water. He said John seemed to be declining. At his brother-in-law’s 50th birthday party in March 2013, he recalled seeing John “not looking well, coughing a lot and the sweating was a big thing.” At their father’s 80th birthday party in June 2013, Martin noticed John was starting to lose quite a bit of weight, he was still sweating, and he still had the cough he had when they went hunting in November 2012.

Maureen Charleboix’s Evidence

[102] John’s sister, Maureen Charleboix, is a nurse. She testified that she did not notice any changes in John until early 2013. She recalled hearing his cough when they spoke on the phone or in person, prior to Easter of 2013. She believes it would have been in January or February of 2013. She recalled at an Easter celebration in late March or early April of 2013, John had to sit down, he didn’t have energy, and he continued to have a persistent cough. She witnessed him grimace in pain when he coughed. Then, at their father’s 80th birthday party in June, Maureen said she noticed a significant deterioration in John’s health. She said she was shocked to see him. He was visibly weakened, he looked pale, and had lost a lot of weight. She estimated he had lost 20 to 30 pounds. He was not engaged at the party. She encouraged him to follow-up with his doctor. She couldn’t recall whether there was phlegm with his cough, but she did notice him going to the washroom after he coughed.

Betty Briber’s Evidence

[103] John’s friend, Betty Briber, also gave evidence. She recalled seeing John at a Christmas party in 2012 but did not notice anything unusual with him. In June 2013, Betty attended John’s father’s 80th birthday party. She noticed that John had lost a lot of weight, he was sweating a lot, he didn’t seem his usual self, and that he seemed to be in a lot of pain and discomfort. She noticed that his clothes were baggy and loose on him, and his weight loss was all over his body. She estimated John had lost 40 to 45 pounds between Christmas of 2012 and the June 2013 birthday party.

Dr. Shams’ Evidence

[104] Dr. Shams testified that aside from the sore throat complaint on January 9, 2012, and the complaint of cold symptoms on March 20, 2013, John did not complain to Dr. Shams about a fever, chills, sweating, coughing with mucus or phlegm, weight loss, shortness of breath, and chest pain.

[105] At the March 20, 2013 appointment, Dr. Shams testified that he opened the visit like he would any other visit, asking what he can do for John or what brings him in. This was how the issue of the cold came up. Dr. Shams testified that he conducted an appropriate physical examination of John’s chest, mouth, and ears which all came back clear. He also took John’s temperature, which was normal. He also took his blood pressure. He diagnosed John with an upper respiratory tract infection, recommended that John take Corcidin HBP, which is a cough syrup for those with high blood pressure, and that he increase his fluid intake. He testified that his standard practice is to tell patients to come back to the clinic, attend a walk-in clinic, or an emergency room if the patient’s condition did not improve or worsened, and that it is his standard practice not to record that advice in his notes.

[106] At subsequent visits in April, May, and June, Dr. Shams says that John did not report any respiratory symptoms. He further testified that he would have begun these appointments with his usual opening of “what brings you in today?” At the April 2013 visit, Dr. Shams testified that he would have reviewed his notes from his prior appointment and asked John if his cold reported in March was gone. If John had reported that it persisted or worsened, Dr. Shams would have investigated by asking John questions and conducting a physical examination, which would have been reported in Dr. Shams’ medical records.

Assessment of the Evidence – Respiratory Infection Symptoms

[107] The plaintiff’s evidence strongly suggests that it is more likely than not that John was experiencing symptoms of coughing, with phlegm or mucus, and excessive sweating for several months prior to his hospitalization in July 2013.

[108] While some of John’s family members may have sought to corroborate their testimony for John’s benefit, I found their evidence to be both credible and reliable. They were able to pinpoint specific and notable recollections of what they observed of John’s condition at specific family events, outings, or in John’s daily life. There was specific detail from John’s sons who witnessed him coughing phlegm and experiencing excessive sweating at home, which was consistent with the testimony of others. Those details suggested their recollections were reliable, such as when John drove Murray and Lindsay to school, when Murray saw his dad sweating a lot more when putting on snowmobile gear, and Stephen’s recollection of hearing his father cough at night because their bedroom windows were on the same side of the house. Martin’s recollections of seeing John sweating a lot when duck hunting, John having to wipe his forehead and putting cold water on his face at the December 2012 Christmas party, were also specific. Maureen’s evidence of seeing John cough, and the candour with which she admitted not seeing him produce phlegm, also suggests her evidence is not tainted by an improper motive. There was consistency among the plaintiff’s witnesses’ testimony, which was also consistent with the testimony of John. Their demeanour while testifying did not give cause to question their credibility. For these reasons, I found their evidence to be credible and reliable.

[109] There was an attempt, during cross-examination, to suggest that some of the plaintiff’s witnesses were financially motivated to give evidence so that John could win this trial. There were promissory notes adduced into evidence which purportedly showed a commitment by John to repay family members money that was loaned to him from any damage award John received following this trial. However, the undisputed evidence is that John prepared these promissory notes on his own initiative out of a sense of obligation to repay his family. Some of the family members did not know of these notes or had only signed them to appease John. They all testified that they provided money to John to assist him at a time of need and without the expectation of repayment. I accept their evidence and find that these promissory notes did not affect the credibility of the witnesses purporting to be parties to these promissory notes.

[110] Some of the evidence about John’s condition prior to July 2013 were more general in nature – that he appeared unwell, or in discomfort. Because John also had back pain, and there were instances in the months leading up to July 2013 where John’s own evidence was that it was significant and getting worse, I do not place weight on the evidence given by John’s family and friends about his general feeling of being unwell which may be difficult to distinguish between his back pain versus symptoms of a respiratory infection. For example, Betty Briber did not witness John coughing, only that he had lost weight and did not seem well.

[111] A finding that John was experiencing symptoms of a respiratory infection in the months prior to his hospital admission is also consistent with the expert medical evidence given by Dr. Cox. Namely, that John’s condition of empyema likely developed over weeks to months, and that surgical removal of thickened pleura through decortication is “more frequent with empyema that has been present for longer periods than with empyema that has developed acutely over some days.”

[112] There is also John’s and Dr. Shams’ evidence that by at least March 20, 2013, John had been experiencing a form of respiratory infection, although Dr. Shams had concluded it was a minor upper respiratory infection. Dr. Cox was of the view that it is more likely than not that the March 20, 2013 upper respiratory tract infection was causally linked to the infection that led to John’s hospitalization.

[113] Finally, records from Southlake from July 2, 2013, when John presented himself to the Emergency Department, were jointly submitted as business records. These records suggest that John reported to different attending physicians that he had symptoms of coughing with phlegm, shortness of breath, fever, and sweating for some months before his admission to the hospital, and that those symptoms became progressively worse in the few weeks or days before his admission.

[114] A record prepared by Dr. M. Kouchaken on July 2, 2013 states:

Apparently, Mr. Jellifo has complained of shortness of breath and productive cough for the last few months, but over the last one or two weeks, he has increasing shortness of breath and right-sided pleuritic chest pain. He has a productive cough and history of fever and chills.

[115] A record prepared by Dr. B. Nathanson, dictated on July 2, 2013, states:

John’s story appears to go back at least four months, and possibly several months more than that, up to and possibly even a year. He has complained of daily morning productive cough, yielding scanty mucoid sputum to his Family Physician. This has been going on for many months. In the last four months, things have changed. He has developed constitutional symptoms, which include weight loss of about 40 lbs (which he ascribed to his dietary changes but, upon reviewing those dietary changes, appear unlikely to have been caused by his diet).

He has also had progressively worsening night sweats, and at time, quite significant, and progressive exertional dyspnea [shortness of breath] with orthopnea with disruptive sleep as a result of his dyspnea. He has also had drenching night sweats for the last several weeks and particularly over the last several days. This all seems to have begun with an episode of bronchitis over a year ago, for which he sought antibiotic therapy from his Primary Care provider, those antibiotics were not provided with the explanation that, as is certainly the case, most bronchitides, are of a viral etiology.

Over the past couple of days, things have certainly come to a head, as he has developed progressively worsening chest pain, pleuritis in nature, and principally a combination of anterior and posterior chest wall pain, made worse with his ever increasing cough, which has yielded increasing amounts of sputum, but no blood. He has also had worsened drenching night sweats and consequent sleep disturbance, to the point where he finally threw up his arms up and presented himself to the Emergency Department here at 1612 hours late this afternoon.

[116] A further record from the thoracic surgeon, Dr. Salvatore Privitera, dictated on July 3, 2013 states:

He presented to the hospital with respiratory failure and query pneumonia, and what looks like to be a multiloculated right-sided pleural effusion. He is having ongoing sinus tachycardia and has had elements of productive cough and has pleuritic chest pain and shortness of breath for the last four to five weeks.

[117] These Southlake records suggest that John reported to Southlake physicians he had symptoms of a respiratory infection ranging from “four to five weeks” to “at least the last four months and possibly several months more than that”, and that these symptoms became worse in the few weeks or days prior to his admission. At most, I take from these records that this is what John likely communicated to Southlake physicians.

[118] Based on all the evidence, I am satisfied that John most certainly experienced symptoms of coughing, with phlegm or mucus, as well as excessive sweating, from at least March 2013 through to his hospital admission in July. In addition, on a balance of probabilities, I am satisfied he likely had these symptoms from as early as November 2012, but they were less severe at that time as compared to when he was admitted to the hospital.

Assessment of Evidence Re Weight Loss

[119] With respect to John’s weight loss, the evidence was not as precise as to when John began to lose weight or how much. However, there was consistent evidence from several sources that John had lost a significant amount of weight leading up to the end of July. Ms. Briber’s testimony was that John lost 40 to 45 pounds between December 2012 and June 2013. His sister, Maureen, said that she noticed John lost 20 to 30 pounds when she saw him in June 2013. From her testimony, it appears the last time Maureen saw John would have been in late March/early May of 2013. Helen testified that John had lost 40 to 50 pounds when she saw him on June 1, 2013, but it is not clear what her point of comparison was. Murray testified that his father lost between 30 and 40 pounds by June 1, 2013.

[120] Dr. Shams’ evidence was that he and John discussed weight loss multiple times in the past. According to Dr. Shams’ review of John’s medical records before he took over his care, other doctors at the same medical clinic had also discussed weight loss with John going back to 2006 or 2007.

[121] Dr. Shams testified that he educated John on the positive impact weight loss would have on his chronic conditions, such as his back pain and hypertension. John was also referred to a weight loss/metabolic clinic. Medical records and Dr. Shams’ testimony evidence that Dr. Shams and John discussed weight loss, diet, or exercise at appointments on December 1, 2010, July 4, 2011, July 25, 2012, September 24, 2012, and January 11, 2013. Dr. Shams’ medical notes suggest that John, in the past, had been successful on multiple occasions in intentionally losing weight on his own, once as much as 38 pounds, but then gaining it back. Dr. Shams testified he would often encourage John to lose weight, and he would not “challenge him” if he did lose weight. He further said he was concerned about not sounding like a “broken record” if John was not keen to address his weight. To Dr. Shams, it was important to nurture a trusting relationship with his patients. Repeatedly raising weight loss at monthly appointments would run counter to that objective.

[122] At the January 11, 2013 appointment, the medical note states “Exercise wants to start”. According to Dr. Shams, this meant that John had expressed a desire to start doing exercise. Dr. Shams testified that he did not recall any further discussions with John about weight loss. If John had lost weight after January 11, 2013, Dr. Shams testified that he would have concluded that John had been successful in his efforts to lose weight, based on his January 2013 expressed intention to exercise, and his history of successful weight loss in the past.

[123] Dr. Shams did not give evidence of an independent recollection of John losing weight in the months leading up to his last visit on June 17, 2013. The last time Dr. Shams’ medical notes recorded John’s weight was on July 4, 2011. On cross-examination, Dr. Shams stated that if he noticed John had lost 40 pounds or another significant amount, he would have weighed him. He did not dispute the evidence of John’s witnesses who testified that John had lost significant weight in the months leading to his hospital admission. He said that John did not tell him that his weight loss was unintentional. Had John done so, he would have weighed him and made further inquiries and conducted a physical examination. But Dr. Shams relied on the fact that John’s weight loss in the past had always been intentional and that John had expressed a desire to start exercising in January 2013, which he would have attributed to any observed weight loss.

[124] Based on the foregoing, and the totality of the evidence around John’s weight loss, which was not disputed by Dr. Shams, I am satisfied that it is more likely than not that John lost between 30 to 50 pounds of weight in the period from December 2012 to July 2013.

Issue #2: Did the defendant breach a standard of care if it is proven that the plaintiff reported symptoms of a respiratory infection to the defendant, and notwithstanding those reports, the patient was left untreated?

Standard of Care

[125] Two standard of care experts in family medicine gave evidence. In addition, Dr. Cox gave evidence with respect to standard of care.

[126] The plaintiff called Dr. Geoffrey Morris as an expert witness. Dr. Morris specializes in family medicine, and currently works out of Oakville. I found him qualified to give expert evidence on the standard of care of a family physician, and causation with respect to the use of antibiotics by family physicians in treating patients with respiratory illness.

[127] The defendant called Dr. Howard Rudner as an expert witness. Dr. Rudner also specializes in family medicine. I found him qualified to give opinion evidence on the standard of care applicable to a family physician.

[128] Among Drs. Morris, Rudner, and Cox, there was consensus with respect to the following standard of care:

1. If John did complain to Dr. Shams about respiratory illness symptoms, including unintentional weight loss, there was a positive obligation on Dr. Shams to take a history, conduct an examination, and treat accordingly based on his diagnosis.

2. On March 20, 2013, when John complained of respiratory illness symptoms, and based on Dr. Shams’ negative physical findings (mouth, chest and ears were clear, no runny nose, and temperature was normal), Dr. Shams was justified in not referring John for further investigation or treatment, including antibiotic treatment. Dr. Shams met the standard of care.

One caveat offered by Dr. Morris, however, was that a cold persisting for three weeks was unusual. Most colds last five to seven days. For this reason, Dr. Morris stated he would be concerned with ensuring that the diagnosis of a cold was in fact the correct diagnosis. In his view, it was incumbent upon Dr. Shams to follow up with John at his subsequent appointment.

3. If John did subsequently complain to Dr. Shams about weight loss and respiratory infection symptoms in April, May, or June of 2013, and Dr. Shams did not address those complaints, then Dr. Shams’ care would have fallen below the standard.

[129] There is no dispute that John reported symptoms of respiratory infection at the March 20, 2013 appointment. And there is no dispute, among the experts, that Dr. Shams met the standard of care at this appointment.[^1]

[130] There is a dispute as to whether John reported symptoms earlier, or perhaps more importantly, at subsequent visits after March 20, 2013.

[131] For the following reasons, I am not persuaded that John has proven, on a balance of probabilities, that he reported symptoms of a respiratory infection, including unintentional weight loss, to Dr. Shams prior to the March 20, 2013 appointment, or after it.

[132] First, with respect to appointments before March 20, 2013, the only appointment that John could specifically recall was the January 9, 2012 appointment when he was treated for strep throat with an antibiotic. John had no further recollections of appointments until the March 20, 2013 appointment. At best, he had general recollections of telling or trying to tell Dr. Shams of his complaints, but he would then admit to not having a recollection of appointments. In my view, this is insufficient evidence to meet the plaintiff’s burden of proof.

[133] Second, with respect to John’s specific recollection of appointments on and after March, I have explained why I do not find John’s evidence reliable in Part IV of this judgment. John refused to concede that many of the notations in Dr. Shams’ notes could only have been recorded if John had advised Dr. Shams of those facts, or if Dr. Shams conducted an examination. John denied that Dr. Shams, at the March 20, 2013 appointment, took John’s temperature, checked his ears, mouth, and blood pressure, notwithstanding clear notations otherwise. As I have explained, this lacks an air of reality given that Dr. Shams’ notes record a temperature, blood pressure, and negative findings from a mouth, chest and ear examination. It makes John’s recollection improbable.

[134] Third, Dr. Shams’ evidence was that he would have recorded and investigated symptoms had John communicated them to him. He did not have a specific recollection of most appointments with John. For the most part, Dr. Shams’ recollection was from the medical records or charts that he prepared.

[135] However, he testified that it is his usual practice to chart matters that have a direct impact on the health of a patient, the important positive and the important negative matters. He explained that the chief complaint, the physical exam and his assessment and plan must always be charted. He said that even minor complaints would need to be charted, such as a scratch on the head. There are some things, he admitted, he does not record in the chart, such as instruction to a patient to come back to the clinic or to attend a hospital Emergency Room if symptoms do not improve.

[136] In terms of visits after the March 20, 2013 appointment, Dr. Shams testified that the April 19, 2013 visit was a regularly scheduled 30-day appointment. Since John had not come in sooner, Dr. Shams said he would have assumed the cold diagnosed on March 20 had likely resolved. Dr. Shams testified that he always looks back at the note from the previous appointment before the next appointment. He testified that he would have asked John what brought him in that day, and that he would have asked about the cold reported in March and whether it was gone.

[137] At any of the appointments, if John had told Dr. Shams he continued to have symptoms or new ones, Dr. Shams said he would have recorded it, taken a full history, conducted a full examination, and there would have been an assessment and management plan. If John had said the symptoms were gone, Dr. Shams would not have recorded that fact in his notes.

[138] Because John did not have a recollection of the April appointment, the only evidence of any discussion about John’s prior cold symptoms at the April appointment was Dr. Shams’ usual practice of following up on subsequent appointments about prior conditions, and Dr. Shams’ evidence that if John reported continuing symptoms, they would have been recorded. They were not. Therefore, I am not persuaded that John has met his burden of proving that he continued to report symptoms of his cold at the April appointment.

[139] In addition, because the only reliable evidence I have as to whether or not Dr. Shams followed up with John about his cold is Dr. Shams’ evidence of his usual practice of following up, I am unable to conclude that he failed to follow-up. Therefore, Dr. Morris’ view that the standard of care required Dr. Shams to follow up with respect to John’s cold, has been met.

[140] I have also considered the possibility that Dr. Shams simply failed to record symptoms that John reported at the April 13, 2013 appointment. This brings in the evidence about the sufficiency of Dr. Shams’ notes, and the expert evidence given by Drs. Morris and Rudner. I need not go through their respective evidence in detail. For the following two reasons, I am not persuaded that Dr. Shams failed to record symptoms that John reported.

[141] First, the plaintiff’s expert, Dr. Morris, when taken through the notes of each appointment on cross-examination, conceded that many of Dr. Shams’ notes met the standard of care one would expect of a family physician, and that some in his view were sub-standard. He further acknowledged that there is room for judgment in terms of assessing the sufficiency of the notes. This likely explains why the defendant’s expert, Dr. Rudner, found the medical notes kept by Dr. Shams met the standard of care. When taken through each appointment’s notes, the symptoms reported, Dr. Shams’ observations and physical examinations, and his assessment and treatment plan, Dr. Morris regularly found, with only two real exceptions, that Dr. Shams had done what was “sensible”, “reasonable”, and “appropriate”. The two significant exceptions are with how Dr. Shams tried to wean John off of T3s, but as I explained at the start of this judgment, there is no evidence of a causal connection between ineffective pain management and the damages arising from John’s surgery. The other is that Dr. Morris would have been more concerned about John’s cold diagnosis in March, and that Dr. Shams ought to have followed up. But as I mentioned, the only reliable evidence is that Dr. Shams did follow up.

[142] The second reason why I am not persuaded that Dr. Shams failed to record symptoms is that in my view, all of his notes appear to be consistently comprehensive and report on a wide range of matters impacting all aspects of John’s health. For example, between January 2012 and July 2013, there are notations with respect to: a throat infection and examination; the repeated use of an assessment tool (the 5 A’s) for managing his chronic pain; records of weight, blood pressure, and other physical examinations; recordings of “no chest pain” and “no shortness of breath” and examining a swollen leg in relation to John’s hypertension; records of John’s emotional state from the custody dispute; urinalysis and MRI’s being requisitioned; referrals to neurologists for migraines; obesity management; eye examinations; inquiries and tests related to toe numbness; employment history; use of drugs or alcohol and psychiatric illness; questions about his sleep, mood, concentration, and sexual activity; and regular migraine/pain management. This track record is inconsistent with the theory that Dr. Shams simply failed to record minor or severe symptoms of a respiratory infection. In my view, it is also inconsistent with the theory that Dr. Shams was locked in “tunnel vision” and only treating John’s chronic conditions and was unwilling or incapable of hearing or addressing other complaints raised by John. The evidence, in my opinion, does not establish that Dr. Shams had “tunnel visions” in his care of John.

[143] For completeness, I go through the April, May, and June 2013 notes and Dr. Shams’ evidence. At the April 19, 2013 appointment, Dr. Shams discussed John beginning to take Nadolol, which was part of a previously discussed plan to help wean John off T3s. John reported he had not started taking Nadolol, but he was able to manage his migraines with one less T3s each day. The note also indicated John advised Dr. Shams he was going through a rough time in relation to his divorce and custody dispute. There are no reports of respiratory illness symptoms or unexplained weight loss in this note.

[144] At the May 17, 2013 appointment, Dr. Shams testified that two topics were discussed: an MRI and John’s regular medication renewal. The MRI was ordered to investigate a prior concern John reported of numbness in a left toe. The MRI revealed that the numbness in John’s toe was unrelated to his herniated disc. In terms of medication renewal, the note indicated John ran out of medication early, and that Dr. Shams reminded John of the Narcotics Contract (discussed later) he had previously entered into with Dr. Shams. Dr. Shams testified that there was no complaint about respiratory issues at this appointment. If there had, he would have recorded it. He testified it would not have been ignored.

[145] Next, at the June 17, 2013 appointment, Dr. Shams testified that this was a regularly scheduled visit. Dr. Shams had a specific recollection of this appointment because he remembered how happy John was because his custody dispute was over, and that he now had his children 50 percent of the time. This was recorded in the note for this appointment. According to Dr. Shams, John did not complain of any respiratory symptoms, nor was there a discussion of his weight. Since John did not complain about respiratory symptoms at the May appointment, Dr. Shams said he would not have inquired about this issue at the June appointment. The focus of discussion at this appointment was John’s migraine and his report that he had had “rough days”. The note also states, “when weather changes, migraine change” and there is a plus (+) sign beside the word “nausea”. Dr. Shams testified that the nausea was part of the migraine complaint, as nausea is a symptom of migraines.

[146] Dr. Shams’ testimony as to what transpired at these appointments, in my view, was credible and reliable. While his recollection was largely from his notes, he did have a specific recollection of the June visit and testified that John did not complain of ongoing respiratory issues or unexplained weight loss. Moreover, after review of all of Dr. Shams’ medical notes for John, there is a track record of Dr. Shams recording major and minor health complaints raised by John, consistent with Dr. Shams’ stated usual practice. In my view, it would be improbable for Dr. Shams not to record or investigate the very serious symptoms that John said he reported to Dr. Shams at the June appointment – namely, that he could hardly breathe, and that his chest was killing him.

[147] Finally, and specifically with respect to John’s weight loss, I am not satisfied that he reported this symptom to Dr. Shams. John testified that he may have reported his weight loss at the June 17, 2013 appointment, but he said he was not sure. There is no notation made by Dr. Shams of unintentional weight loss, or any weight loss. Dr. Shams had no recollection of such a complaint. I therefore find, on a balance of probabilities, that John did not report this to Dr. Shams on June 17, 2013. If it was reported, in my view, it is more likely than not that John communicated that it was intentional. This would be consistent with the Southlake record of Dr. Nathanson, which shows that John explained his weight loss was due to dietary changes.

[148] Accordingly, I find that John did not report to Dr. Shams symptoms of a respiratory infection, including coughing, phlegm, fever, sweating, or unexplained weight loss other than at the March 20, 2013 appointment. Therefore, Dr. Shams did not breach a duty of care by failing to treat such reported symptoms.

Complaint of Nausea

[149] There was evidence and argument about nausea being reported at the June 17, 2013 appointment, and whether Dr. Shams ought to have followed up with respect to this symptom. This is because, as agreed upon by the experts and Dr. Shams, nausea can be a symptom of an infection.

[150] Interestingly, and even though his counsel relies on the complaint of nausea, John testified that he did not report nausea to Dr. Shams on June 17, 2013. But as I found earlier, I have found his evidence unreliable. In my view, it is more likely than not that he did report it.

[151] Dr. Shams testified that nausea “goes hand in hand” with migraines. When this was reported at the June appointment, Dr. Shams testified that John had told him it was part of his migraine complaint. However, a report from July 12, 2012 from a neurologist, Dr. Warren Goldstein, who John had seen with respect to his migraines stated John did not report having nausea. On cross-examination, Dr. Shams admitted that in none of his previous notes did he record nausea as a symptom, or it being associated with John’s migraines. He also explained that Dr. Warren Goldstein’s report simply recorded that John had not had migraines that day. When John saw another neurologist, Dr. Lisa Goldstein, John had reported having nausea.

[152] Dr. Morris testified that the issue of nausea reported at the June appointment ought to have been explored because the note does not say it was related to John’s migraines. Although he admitted that if it was related to John’s migraines, there was nothing more Dr. Shams needed to do.

[153] I am satisfied that Dr. Shams was not negligent in failing to address the complaint of nausea at the June 17, 2013 appointment. I accept Dr. Shams’ evidence that it was reported to him by John as a symptom of John’s chronic migraines. Even if it had not, Dr. Shams would have acted reasonably, in the absence of any other symptoms of an infection, in assuming it was related to John’s migraines especially since Dr. Lisa Goldstein had previously reported nausea being associated with John’s migraines.

[154] Finally, and in the absence of any other reported symptoms of a respiratory infection, I am concerned about holding Dr. Shams to a standard above what would have been required of a reasonably prudent family physician in the circumstances. Caution must be exercised against assessing a physician’s conduct with the benefit of hindsight. As stated in Hillis v. Meineri, 2017 ONSC 2845, at para. 63:

A finding of negligence cannot be based merely on the consequences of medical treatment to a patient. The law requires reasonable care, not infallibility, and recognizes that reasonable physicians make mistakes: Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, [2001] A.J. No. 877 (Alta. Q.B.) at para. 80. Physicians are not guarantors of the results of their treatment, and, in medicine, adverse outcomes are often unpredictable or unavoidable even where the medical care has been reasonable. In Lapointe c. Hôpital Le Gardeur, supra, at para. 28, the Supreme Court held:

...[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

[155] For these reasons, I find that Dr. Shams was not negligent in failing to take steps to address a report of nausea from the June 17, 2013 appointment.

Issue 3: Did the defendant breach a standard of care if it is proven that the plaintiff had obvious and observable respiratory infection symptoms and the defendant failed to make inquiries, investigate or treat those symptoms?

Standard of Care

[156] Drs. Morris, Rudner and Shams addressed the obligations a physician has to make observations of a patient and to act on those observations.

[157] Dr. Morris said that if Dr. Shams observed that John had lost weight, he ought to have had some discussion with him about it and measured his weight.

[158] Dr. Rudner similarly stated that it is important for physicians to make observations of a patient. Part of an assessment is observing how a patient looks and behaves. He said that if a patient appeared sweaty, was spitting up phlegm, or had visibly lost weight, he would ask a patient questions regarding those symptoms.

[159] Dr. Shams, on cross-examination, also said that making observations of a patient is important and it is not just what they tell you. He also admitted that if he had noticed a 40-pound weight loss or a significant weight loss in a patient, he would have weighed the patient.

Assessment of Evidence

[160] I have found that John had symptoms of a cough, with phlegm, and excessive sweating in the months leading to his hospital admission, primarily from the evidence of his family and friends. However, there was no direct evidence of John experiencing these symptoms while attending appointments with Dr. Shams. Dr. Shams’ testimony is that he did not observe these symptoms. At best, there is circumstantial evidence that John may have been experiencing these symptoms at appointments with Dr. Shams because his friends and family observed him with these symptoms elsewhere. In my view, this is insufficient to allow me to conclude that John was experiencing these symptoms in the presence of Dr. Shams, particularly when Dr. Shams’ direct evidence is otherwise.

[161] There is also circumstantial evidence to suggest that Dr. Shams may not have observed these symptoms. Dr. Rudner testified that how a patient presents during a brief appointment with a family physician may not reflect their underlying condition. Dr. Shams testified that his appointments were generally scheduled 10 minutes apart, but sometimes he would spend more or less time with patients, depending on their needs. Given the evidence of the brevity of these appointments, it is possible to infer that John did not experience coughing, phlegm, and sweating at them, and therefore, it was impossible for Dr. Shams to observe them. Furthermore, John was also taking five to six T3s each day. As I explain in the next section, the evidence of the experts was that this may have had the effect of depressing respiratory symptoms while he was attending appointments with Dr. Shams.

[162] Weight loss is different. Even at a brief appointment, weight loss would be possible to observe. But as noted earlier, Dr. Shams’ testimony was that if he noticed weight loss, he would have ascribed it to John’s stated intention to exercise, their multiple past discussions about weight loss and its benefits on John’s chronic conditions, and John’s successful history of intentional weight loss in the past. This direct evidence provides a reasonable explanation why Dr. Shams would not have been concerned with any observable weight loss. Again, I must assess the evidence from the perspective of what a reasonable physician would have done in the circumstances at the time of observing any weight loss and when there were no other symptoms reported or observed, and not with the benefit of hindsight and awareness of John’s ultimate diagnosis. Even the plaintiff’s expert, Dr. Morris, agreed that it was important for Dr. Shams to think about the patient’s persistent and repeated attempts at weight loss, if weight loss occurred. On this basis, if Dr. Shams did observe weight loss, I would have difficulty concluding he breached a standard of care in not investigating it because he would have had a reasonable basis for not doing so.

[163] In any event, if weight loss had been observed, and Dr. Shams had made inquiries of John, in my view, it is more likely than not that John would have explained this was due to diet and exercise. When this question was put to John on cross-examination, he admitted that this is what he had told the doctors at Southlake. This is corroborated by the Southlake records which state that John reported upon his admission that his weight loss was due to dietary changes. In which case, as Dr. Cox testified, if a patient said they wanted to lose weight, loses weight, and then said it was because of diet and exercise, a physician would not need to be concerned unless there were other presentations that suggested the patient be worked up. In this case, there were no other symptoms, observable or reported.

[164] For these reasons, on a balance of probabilities, I do not find that Dr. Shams fell below the appropriate standard of care in his failing to take steps concerning John’s weight loss.

Issue 4: Did the defendant breach a standard of care if it is proven that the defendant, knowing the plaintiff was prescribed medication that would mask symptoms of a respiratory infection, failed to make inquiries or investigate at subsequent visits whether the plaintiff’s prior diagnosed cold / respiratory infection had resolved?

Standard of Care

[165] There was consensus among Drs. Cox, Morris, Rudner, and Shams that John’s use of T3s would have had the effect of depressing the respiratory symptoms he experienced. Specifically, Dr. Morris said it would reduce symptoms of fever, chest pain, and pain associated with coughing. Dr. Cox explained it would reduce the amount that he would have reported these symptoms. Dr. Rudner further explained that while T3 is an analgesic and cough suppressant and may impact the symptomatology presentation, it would not hide an infection that would be evident from a physical examination of the chest, mouth, and ears.

[166] There was no clear evidence from the standard of care experts that Dr. Shams, knowing John was taking T3s and would have depressed respiratory symptoms, ought to have done more than simply ask John if his cold had cleared up after the March appointment. Dr. Morris said “[g]iven how long the cold had lasted for, I would. I would ask the patient if that cleared up.”

[167] Later, the following evidence was provided by Dr. Morris during his examination-in-chief by plaintiff’s counsel:

Q: Okay. What would be the effect of Tylenol 3’s on symptoms involving the respiratory issues that were recorded in March?

A: The effect of giving Tylenol 3 to a patient in this situation would be to – firstly to reduce any pain that the patient may be experiencing. And secondly, codeine has a somewhat of a respiratory depressant effect. I wouldn’t really expect that to be a big deal in this patient, but it might have been, and I would say that the primary effect will be [to] deaden any pain that might, the patient might experience and that may affect his clinical presentation.

Q. What about the affect of Flexeril?

A. Oh, so Flexeril, again, it’s a muscle relaxant which has a slightly sedating effect. So again, there’s a degree of sedation affected with [indiscernible].

Q. And would five Tylenol 3’s per day reduce symptoms of fever?

A. And, yes, the Tylenol would reduce symptoms of fever.

Q. And would it reduce, would it reduce chest pain?

A. Yes, it will.

Q. Would it reduce pain associated with coughing?

A. Oh, very likely.

[168] In my view, this evidence is insufficient to establish a standard of care that required Dr. Shams to conduct a physical examination of John, send him for chest x-rays, or other diagnostic assessment at the April 2013 or subsequent appointments. At most, Dr. Morris’ evidence is that Dr. Shams ought to have asked whether John’s cold symptoms had cleared up. As I found earlier, based on Dr. Shams’ usual practice and because John does not have a recollection of the April appointment, I am satisfied that it is more likely than not that Dr. Shams did make this inquiry and there was nothing that indicated further steps ought to have been taken by Dr. Shams.

[169] In addition, Dr. Morris’ evidence is that the codeine in the T3s John was taking would have “somewhat” of a respiratory depressant effect. He said he “wouldn’t really expect that to be a big deal in this patient, but it might have been…” Therefore, the premise of this theory of liability – that John’s symptoms of coughing would have been depressed due to the T3s when he attended appointments – in my view, has not been established on a balance of probabilities.

[170] Finally, defence counsel argued that Dr. Shams was alive to the possibility that T3 may have masked symptoms when John presented at appointments. This is evidenced by the fact that Dr. Shams did conduct physical examinations of John when there were symptoms that would suggest an infection. He conducted appropriate physical examinations in January 2012 when John presented with a possible throat infection, and again in March 2013 when he had symptoms of a respiratory infection.

[171] For these reasons, a standard of care has not been established requiring that Dr. Shams, knowing John was taking medication that would mask symptoms of a respiratory infection, conduct a physical examination of John at appointments after March 2013. Moreover, and in any event, there is evidence to suggest that it is unlikely that John’s use of T3 would have had a significant respiratory depressant effect.

Issue 5: If there was negligence on the part of the defendant, what is the proper test of causation in this case – “but for” or “material contribution to injury”? Did Dr. Shams’ negligence cause the damages (physical and mental illness, loss of income, loss of enjoyment of life, future care costs) the plaintiff is now suffering and will suffer arising from his surgery?

[172] Given my earlier findings that Dr. Shams did not breach a standard of care in treating John, and therefore, was not negligent, I need not address the issue of causation. In the event my conclusions are wrong, I will address causation.

Test for Causation

[173] The plaintiff has the burden of proving causation on a balance of probabilities.

[174] During closing submissions, the parties disagreed on the appropriate test for causation – whether it is “but for” or “caused or contributed”.

[175] In the Supreme Court of Canada’s decision in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, McLachlin C.J. summarized the test of causation in tort cases at para. 46:

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

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

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

[176] According to the “but for” test, if it were not for the negligence of the defendant, the injury would not have occurred. A defendant’s negligence is a necessary factor that brought on the plaintiff’s injury: Clements, at para. 8.

[177] In Donleavy v. Ultramar Ltd., 2019 ONCA 687, Justice van Rensburg provided a helpful explanation of what appears to be the source of disagreement between the parties as to the appropriate test. At para. 63, she explained that the “but for” test applies even when the defendant’s negligence is not the sole cause of the injury:

The “but for” test applies even where a defendant’s negligence is not the sole cause of the plaintiff’s injury. A defendant will be liable for all injuries caused or contributed to by his or her negligence, even if other non-tortious causes are present: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at paras. 12, 17. Indeed, there are usually a number of background factors that cause an injury and not only a single cause. A defendant only needs to be “a” cause of “some” harm to be found liable in tort: Erik S. Knutsen, “Clarifying Causation in Tort” (2010) 33:1 Dal. L.J. 153 at p. 159.

[178] In Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, Justice Lauwers provides a helpful explanation of the “but for” test, at para. 118:

As I interpret Clements, in specifying the “but for” test, McLachlin C.J. used the word “necessary” in a purposive manner in order to underscore the legal requirement for the plaintiff to prove that there was a real and substantial connection between the defendant’s breach of the standard of care by an act or omission and the plaintiff’s injury. Recall her words in para 8 of Clements: “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 (My emphasis).”

[179] In the plaintiff’s written closing submissions, he notes that in medical negligence cases where there is an alleged delay in diagnosis, a defendant’s conduct will never be the sole factual cause of the injury. The plaintiff will have had an evolving medical condition in the first place.

[180] In this case, the question I must ask is, assuming Dr. Shams was negligent in not treating John’s respiratory infection or in not conducting appropriate diagnostic tests to detect a respiratory infection, has the plaintiff proven on a balance of probabilities that John’s resulting surgery, and the pain and damages he suffered as a result of that surgery, would not have occurred?

[181] The test is not whether a different outcome “could have” resulted. It is whether it “would have” resulted. A “‘loss of a chance’ is not compensable in medical malpractice cases. The plaintiff must prove on a balance of probabilities that, but for the doctor’s negligence, the unfavourable outcome would have been avoided with prompt diagnosis and treatment”: see Salter v. Hirst, 2011 ONCA 609, 107 O.R. (3d) 236, at para. 14, citing Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.), at paras. 25, 36.

Assessment of the Evidence

[182] Assuming Dr. Shams was negligent, the question becomes would John have suffered injury because of that negligence? I begin with defining the injury.

[183] The parties agree that John underwent surgery due to his streptococcal empyema. They also agree that since the surgery, John has suffered significant pain issues, specifically chronic pain syndrome, chronic chest wall pain, and mental health issues.

[184] The parties further agree that John

1. remains in severe pain on a daily basis that impacts his ability to engage in activities of daily living (general damages)

2. has not returned to any gainful employment since his hospitalization and surgery in July 2013 (past and future income loss damages)

3. requires care and housekeeping support over and above OHIP provided healthcare (future care and housekeeping damages)

4. has incurred out of pocket expenses since July 2013 associated with his medical care and prescriptions, and has incurred financial debts since July 2013 because of his inability to work gainfully (special and out of pocket expenses)

5. has required OHIP care subject to a subrogated claim (OHIP subrogated claim)

[185] The plaintiff called Dr. Stephen Brown, an expert in the field of anaesthesiology. I found him duly qualified to give expert evidence on causation and damages.

[186] Dr. Brown gave evidence that John’s condition of chronic pain syndrome, his chronic chest wall pain, anxiety, and depression were directly related to the surgical intervention he received in July 2013 to treat his empyema. He gave further evidence to support what the parties have agreed are his current and future injuries arising from the surgery, described above.

[187] The evidence of Dr. Cox, the expert in respiratory medicine, was pivotal on the issue of causation. Dr. Cox’s evidence may be summarized as follows:

1. In his opinion, John’s ultimate diagnosis of empyema on July 2, 2013, was more likely than not, causally linked to John’s prior reported respiratory infection at his appointment with Dr. Shams on March 20, 2013. However, on cross-examination, Dr. Cox acknowledged that he made this assessment with the benefit of hindsight, which Dr. Shams would not have had on March 20, 2013.

2. John’s empyema developed over “weeks to months” rather than over a shorter span of time of “several days to two weeks”. He based this opinion on three points:

i. Pleural effusion and empyema are serious complications, often associated with pneumonia. Pleural effusion usually occurs within days to weeks, but empyema – an infection in the pleural space - may not occur or not be detected for some time, after the initial infection.

ii. John had attended Dr. Shams in March 2013 with a respiratory infection. In addition, Southlake records “record that his respiratory symptoms pre-date his admission by months” with his condition worsening in the weeks prior to his admission, including drenching sweats and substantial weight loss. On cross-examination, Dr. Cox acknowledged that this information was gathered from others and that John’s reports to Southlake varied on when his symptoms first arose.

iii. John’s surgery, described as “multiloculated, and requiring surgical removal of thickened pleura (decortication)” are more frequent with empyema that has been present for longer periods, than with empyema that has developed acutely, over several days.

3. With respect to the March 20, 2013 appointment, it is not likely that John would have been treated with antibiotics following this appointment. However, if his respiratory symptoms failed to resolve, treatment by antibiotic therapy would have been considered.

4. With respect to what would have happened if John was treated with antibiotics sooner, Dr. Cox adopted the following, as set out in his report:

It is a truism – that prompt initiation of effective antibiotic therapy reduces the duration and morbidity of bacterial infections of the respiratory tract. Effective management of empyema typically includes requires [sic] drainage (by chest tube if fluid is not loculated, or at surgery if loculated and/or pleural thickening is present, requiring decortication). Prompt identification of pleural space infection and initiation of antibiotic therapy and effective drainage are keys to reducing morbidity. Earlier identification of Mr. Jellifo’s condition could have resulted in shorter duration of his illness. I can not offer informed comment on whether that would have influenced his subsequent symptoms including chest pain.

[188] While examined in chief, Dr. Cox said:

Q. And would it be more timely introduction of oral antibiotics whether it’s April, May, June have more likely than not improved John’s outcome?

A. Yes.

Q. Would it have more likely than not removed the need for the surgery?

A. I would hesitate to answer that definitively.

Q. Okay. And why is that?

A. Because even, even with best treatment, effective, appropriate, timely treatment, empyema is an illness that’s associated with a recognized morbidity and mortality. So that even when we do things on time and do the right things on time, we can still encounter an adverse outcome.

[189] I accept Dr. Cox’s opinion that had John been prescribed antibiotics in April, May, or June, it would have, more likely than not, improved John’s outcome.

[190] With respect to earlier antibiotic treatment in April, May, or June, Dr. Cox said it could have removed the need for surgery, not “would have” removed the need for surgery.

[191] The defendant argues that the plaintiff has not established causation, because there is no expert evidence that earlier detection would have removed the need for surgery, only that it could have. Based on Salter v. Hirst and Cottrelle v. Girard, loss of chance is not compensable in medical malpractice cases.

[192] However, I am mindful that, as per Clements, a trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused his loss. Scientific proof of causation is not required.

[193] Dr. Cox, in answering why earlier antibiotic treatment could not rule out surgery, he reasoned:

Because even, even with best treatment, effective, appropriate, timely treatment, empyema is an illness that’s associated with a recognized morbidity and mortality.

[194] Implicit in Dr. Cox’s answer, in my view, is an assumption that John already had empyema by April, May, or June. Dr. Cox’s evidence was that John’s empyema developed over weeks to months and that it is typically a later consequence of infection in the lung tissue. This suggests that in April or even early May, John may not yet have developed empyema; he may have only had pneumonia or a “simple case” of pleural effusion that could have been effectively treated with antibiotics. If it were treated in April or early May with antibiotics, the evidence is that this would have improved his outcome. It is only once John’s condition progressed to the more complex empyema, that the possibility of avoiding surgery becomes less certain because of empyema’s associated morbidity and mortality. This is how I understood Dr. Cox’s evidence.

[195] In my view, this is a case where scientific evidence of causation linking any negligence to John’s surgery cannot be obtained with precision. There is no exact date when John’s respiratory illness progressed from pneumonia, to a pleural effusion, to empyema. Demanding exact scientific precision as to whether earlier antibiotic treatment of empyema would have avoided the need for surgery, ignores the evidence that earlier antibiotic treatment intervention would have been effective in treating the respiratory illness and would have avoided the empyema. While the “would have” test is the correct test, in this case, a robust and pragmatic approach is called for that must consider whether Dr. Shams’ actions would have resulted in John not developing empyema in the first place.

[196] Dr. Cox’s evidence was that early intervention of antibiotic therapy would have improved John’s outcome, that prompts for the administration of antibiotics would have been at the time of diagnosis of pneumonia or next, when pleural effusion were detected, and that it is accepted as fact that prompt initiation of antibiotics reduces the duration and morbidity of bacterial respiratory infections.

[197] Therefore, in my view, if Dr. Shams’ negligence were linked to a period in April or early May, it is more likely than not that John would have been treated with antibiotics that would have improved his outcome, that his respiratory illness would not have developed into empyema, and but for Dr. Shams’ negligence (if it is to be found), the resulting surgery for empyema would not have occurred. However, if Dr. Shams’ negligence were linked to a period after early May, the evidence suggests that John would more likely than not have had empyema, and at that stage, surgery could have been avoided – not would have been avoided.

[198] Finally, there was some dispute as to whether John was not working in the months prior to his hospital admission because of his back pain, or whether it was because he was at home carrying for his mother-in-law, attending to the home and caring for his children. The defendant’s theory was that if John was not able to work before his surgery, there would be no subsequent loss of income from his planned business venture with Alex Wong and Steve Cook. Put differently, he would not have had a loss of income claim because the reason he was not able to work was due to his back pain, and not because of the consequences of the surgery.

[199] I am satisfied, based on the evidence from John, his sister, and sons, that while John suffered from back pain, it did not limit his ability to work and it was not the reason why he was not working. I accept their evidence that John was able to function, often with pain, and that the decision to not work was because he placed a higher priority on caring for his mother-in-law and his family.

Issue 6: Was there contributory negligence on the part of the plaintiff arising from a failure to provide information about his symptoms to the defendant, to follow instructions, or to otherwise act in his own best interest as his symptoms persisted?

[200] The defendant pleads that John caused or contributed to his own injuries. As such, I address whether there was any contributory negligence on John’s part.

[201] To determine whether there is contributory negligence, I must assess whether there is evidence from which it can be found that John’s failure to report his symptoms to Dr. Shams, to follow instructions, or to otherwise act in his own best interests contributed to the injuries he now suffers.

[202] A person is entitled to put faith and trust in the care of a physician, the physician’s examinations, diagnosis, and recommended treatment. However, a person is also expected to take reasonable care for their own well-being: Dowhan v. Coates, [2000] O.J. No. 2343 (S.C.), at para. 61.

[203] In my view, there are facts which suggest that John failed to take reasonable care for his own well-being, which would have resulted in earlier diagnosis and treatment of his respiratory illness.

[204] First, I find that John ought to have reported his symptoms to Dr. Shams but failed to do so. If his condition was as significant as he testified, it ought to have been reported to Dr. Shams.

[205] Second, I find it unreasonable that John did not seek out medical attention from others given that he had been suffering from coughing, phlegm, excessive sweating, and weight loss for many months prior to his hospital admission. John testified that at his June 17, 2013 appointment, he recalled telling Dr. Shams how rough he had been for months, his sweating, that he could hardly breathe, and that his chest was killing him. With these substantial symptoms, one would expect a reasonable person would see another doctor or attend at a hospital if their own family physician was doing nothing.

[206] John’s evidence was that he was precluded from doing so because at his August 3, 2011 appointment, he entered into an Opiod Treatment Agreement (“Narcotics Contract”) with Dr. Shams. Among other things, it stated that John would use and store his medications responsibly and that he would not seek prescriptions for opioid pain medication from another doctor. Dr. Shams testified that this was a precedent agreement he had found from a small learning group of family and specialist physicians at McMaster University.

[207] The Narcotics Contract also included a provision which stated that John would avoid seeing other doctors whenever possible and he will inform Dr. Shams if he does see other doctors, including specialists and doctors in an emergency room. John testified that he understood this to mean “everything goes through Dr. Shams.” On cross-examination, John said that Dr. Shams did not want John to see another doctor, “that [Dr. Shams] wanted to clear it with him first” and that he told John not to see another doctor “even for complaints about coughing and phlegm.” John’s counsel argued that this provision in the Narcotics Contract prevented John from being able to see other doctors for any complaint, including a cough or a cold, or at least that is how John understood it from his discussions with Dr. Shams.

[208] Dr. Shams testified that there was no confusion about this contract. It only dealt with and sought to restrict John’s misuse of narcotics. All it did was limit John’s ability to see other physicians for the purpose of acquiring narcotics. If he did so, he had an obligation to advise Dr. Shams.

[209] In my view, reading the Narcotics Contract as a whole, and after hearing evidence of the context in which it was raised, I cannot conclude that a reasonable interpretation or understanding of this agreement was that John was precluded from seeing a physician other than Dr. Shams for any medical complaint John may have had. The contract’s primary focus is on opioid (mis)use, and for good reason.

[210] Nor can I conclude, on a balance of probabilities, that Dr. Shams told him that he was not to see another doctor for any or other medical condition. Neither John nor Dr. Shams had a specific recollection of the August 3, 2011 appointment. No evidence was adduced as to why Dr. Shams would impose this unusual requirement on John. It is improbable that a physician would demand, or that a patient would understand, that a patient signing this agreement would be precluded from seeing another physician for any medical care, especially acute or emergency care that a patient might need. On cross-examination, John agreed that the contract meant he could only get T3s from Dr. Shams.

[211] While a patient is entitled to have faith and trust in their physician, when that physician fails to address major and significant health complaints, it is unreasonable for a patient to do nothing. Reasonableness demands that when serious health complaints persist, such as difficulty breathing and chest pain, patients should seek out appropriate alternative medical attention, including attending a hospital Emergency Room.

[212] As evidence of John’s absolute trust in Dr. Shams, John testified that he got angry with his son, Stephen, telling him that “[Dr. Shams] is the doctor, you listen to him and you do what he tells you to do. And that’s the way I was raised, so I didn’t, I didn’t allow my son to disrespect the doctor.”

[213] In my view, John’s unquestioning faith and trust in Dr. Shams became unreasonable when by June 17, 2013, he suffered from difficulties breathing and chest pain. By at least this date, he ought to have sought immediate medical attention. While I am satisfied that John had symptoms prior to June 17, 2013, I cannot conclude that they were sufficiently severe at appointments prior to June 17, 2013 such that he ought to have sought alternative medical attention.

[214] For these reasons, I find that there is contributory negligence to ascribe to John by at least June 17, 2013.

[215] However, I do not find that John’s contributory negligence was a proximate cause of his empyema and subsequent surgery. It is more likely than not that by June 17, 2013, John’s condition had already progressed to empyema. Dr. Cox’s evidence was that John’s empyema had existed for weeks to months, based on his condition upon admission. By June 17, 2013, antibiotic treatment only could have avoided the surgery, not would have. Therefore, I cannot conclude that John’s contributory negligence was a proximate cause of his surgery.

VI. Conclusion

[216] At the outset of this judgment, I commented on the tragic situation in which John finds himself. The Court empathizes with the immense physical and mental health challenges he now faces. Dr. Shams also testified that he was shocked and saddened by the news of John’s diagnosis and surgery. However, in this case, the law and evidence does not support the claims John is advancing. For the reasons given, I dismiss the plaintiff’s claim.

[217] The parties have advised that they have settled costs. Therefore, I make no order with respect to costs.

Justice Mohan D. Sharma

Released: January 28, 2022

COURT FILE NO.: CV-14-518857

DATE: 20220128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

John Joseph Jellifo

Plaintiff

– and –

Dr. Merajuddin Shams

Defendant

REASONS FOR JUDGMENT

M. D. Sharma J.

Released: January 28, 2022

[^1] Plaintiff’s counsel has submitted authority with respect to the principle of differential diagnosis, and the obligation of physicians to rule out more serious explanations instead of focusing on the most likely explanation. However, I do not see how it is relevant with respect to the March 20, 2013 appointment when there was consensus among the experts that Dr. Shams met the standard of care based on the reported symptoms.