COURT FILE NO.: 84070/13
DATE: 2023-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamal Kamara Baines, Onika Thompson, Kamika Thompson Baines and Kamal Baines
Plaintiffs
– and –
Rouge Valley Hospital Ajax Site, Mohamed Abounaja, Charles Thompson, Stephen Gulland, John Doe and Jane Doe
Defendant
Ron Bohm, Paul Harte and Maria Damiano, Counsel for the Plaintiffs
Matthew B. Lerner, Andrew M. Porter and Madison B. Robins, Counsel for the Defendant, Mohamed Abounaja
HEARD: April 11 - 14, 19 - 22, 25 - 29, May 6, 2022
JUDGMENT
Lack J.
The Action
[1] This is an action in which it is alleged that Dr. Mohamed Abounaja’s medical management of his patient, Kamal Kamara Baines, was negligent.
[2] At the heart of the case is Dr. Abounaja’s response on June 23 and 24, 2011 to Mr. Baines’ pulseless lower left leg. On June 23, 2011, at approximately 10:45 p.m., Mr. Baines was involved in a motorcycle accident in which he suffered injuries, including a fractured left femur (thigh bone). Paramedics took him to Ajax Hospital. Dr. Abounaja was the Emergency Room (“ER”) physician who cared for Mr. Baines during approximately his first four hours there. Shortly after Mr. Baines’ arrival at hospital, pulses in his lower left leg could no longer be detected, indicating an interruption of blood flow. The Ajax Hospital lacked the surgical resources to repair vascular injuries. Mr. Baines was not accepted for transfer to a trauma centre, St. Michael’s Hospital, until 4:49 a.m. on June 24. He arrived at St. Michael’s Hospital at 6:15 a.m. There, he had surgery and his left leg was amputated above the knee.
The Plaintiffs’ Position
[3] The plaintiffs’ position is that Dr. Abounaja fell below the applicable standard of care by failing to arrange an urgent transfer to a trauma centre for Mr. Baines’ fractured, pulseless limb at, or around, 12:16 a.m., soon after he became aware of the pulseless limb. If Dr. Abounaja had arranged for an earlier transfer, Mr. Baines would likely have had surgery to restore blood flow and repair the fracture. He would not have had his limb amputated and he would have fully recovered from his injuries from the motorcycle accident within about one year.
The Defendant’s Position
[4] The defendant’s position is that Dr. Abounaja met the standard of care. For reasons unrelated to his efforts, Dr. Abounaja’s appropriate requests to transfer Mr. Baines were not accepted in time. Dr. Abounaja cannot be blamed for the unfortunate outcome. While acknowledging that an earlier transfer would have avoided the amputation of Mr. Baines’ leg, the defence says that, regardless of the time of transfer, Mr. Baines would have been left with a significant functional disability related to his injuries from the motorcycle accident.
Legal Issues
[5] The first legal issue is whether Dr. Abounaja, in his management of Mr. Baines’ medical care, fell below the standard reasonably to be expected of an experienced emergency medicine physician in a modern urban community hospital in Ontario in 2011 in the assessment and treatment of a patient presenting in the circumstances of Mr. Baines.
[6] The second legal issue, if he did breach that standard of care, is whether any breach caused Mr. Baines’ amputation.
[7] The third legal issue is damages. The parties have an agreement on an undisclosed quantum of damages to be awarded if Dr. Abounaja is liable. There are two matters to be considered.
(i) The first is what level of disability Mr. Baines would have been left with, apart from any negligence by Dr. Abounaja.
(ii) The second is an assessment of any degree of fault of defendants who were released under a Pierringer agreement. This is required solely for purposes of assessing Dr. Abounaja’s several apportionment of fault.
[8] The foregoing issues involve questions of fact, which will be set out and considered.
[9] The final legal issues relate to the application of provisions in the Insurance Act, R.S.O. 1990, c. I.8.
(i) The first is whether Dr. Abounaja may deduct the benefits, which Mr. Baines received from his automobile insurance carrier, from any award of damages arising out of these proceedings.
(ii) The second is whether the claim for OHIP’s subrogated expenses should be dismissed, and the amount allocated to OHIP should be deducted from the total damages agreed upon.
The Parties
Mr. Baines
[10] At the time of the accident in June 2011, the plaintiff, Kamal Baines, was 33 years old. Onika Thompson is Kamal’s spouse. Kamika Thompson Baines and Kamal Baines Jr. are their now adult children.
[11] In June 2011, Mr. Baines was strong and healthy. He worked at Leon’s Furniture, driving a truck and delivering products to customers. The products included furniture, electrical goods and appliances. He worked with a partner, performing a mixture of light, moderate and heavy work. For heavy work, they used either a two-wheel or four-wheel dolly. His work often required him to climb stairs. He worked six days a week, 8 to 12 hours a day. He was steady and conscientious. He had good customer service reviews. He was happy with his job. Mr. Baines’ plan was to get his own truck and start a business doing consumer deliveries for Leon’s and for other companies like Loblaw. His wife supported his plan.
[12] Mr. Baines’ other pursuits included playing soccer, basketball and football, as well as attending his children’s events.
Dr. Abounaja
[13] On June 23 and 24, 2011, the defendant, Dr. Mohamed Abounaja, was the ER physician who cared for Mr. Baines during approximately his first four hours at the Ajax Hospital.
[14] Dr. Abounaja graduated from medical school in Tripoli, Libya in 1999. He completed a one-year internship rotation at the Tripoli Central Hospital, a trauma centre. He worked there for two years. In 2003, he wrote examinations to qualify to practise medicine in Canada, including ones to establish that he was proficient in the English language.
[15] Initially, Dr. Abounaja worked for two years as a general practitioner and ER doctor in a small town, Twillingate, Newfoundland. Then, he worked as an ER physician, part-time, in two hospitals in St. John’s, Newfoundland.
[16] In 2006, Dr. Abounaja was licensed to practise medicine in Ontario and moved here. He worked for an emergency service until May 2009 when he started working for the Rouge Valley Health System. The System operated Centenary Hospital in Scarborough and Ajax Hospital. Dr. Abounaja worked in the ER of both locations. Between the two hospitals, he usually worked 10 to 12 shifts a month, sometimes 12 to 15, but he could do up to 20. His shifts in the Ajax Hospital were usually 6 to 12 hours. In addition, he worked a half-day a week at a pain management clinic and a half-day a week at a walk-in clinic, both in Scarborough. That was what he was doing at the relevant time in June 2011.
[17] Before beginning his work with Rouge Valley, Dr. Abounaja completed emergency courses, which included Advanced Cardiac Life Support and Advanced Trauma Life Support (“ATLS”).
Standard of Care
[18] There is no dispute that Dr. Abounaja owed Mr. Baines a duty of care on June 23 and 24, 2011, when Mr. Baines was his patient in the ER at the Ajax Hospital. The legal issue to determine is what standard of care is applicable and whether Dr. Abounaja met that standard of care. There are factual issues that must be determined as well.
Primary Factual Issues – Standard of Care
[19] The factual issues that must be determined in the context of an assessment of whether Dr. Abounaja met the standard of care are:
(i) Did Dr. Abounaja tell either CritiCall agents, or the CritiCall Trauma Team Leader, Dr. Bernard Lawless, at any time before 2:50 a.m. on June 24, 2011, that Mr. Baines had a pulseless leg and that the Ajax Hospital did not have the vascular services necessary to save a leg, and that Mr. Baines required an urgent transfer to a trauma centre?
(ii) Did Dr. Abounaja’s failure to ensure that an orthopedic specialist was present in the hospital when the CT scan results were available cause unnecessary delay?
(iii) Did Dr. Abounaja fail to act promptly on the CT scan results and cause unnecessary delay?
The Danger of Hindsight
[20] At every step of the factual analysis, it is necessary to avoid the temptation of hindsight. Dr. Abounaja’s conduct must be judged in light of what he knew or should have known at the time he treated Mr. Baines, not in light of what happened later.[^1]
[21] It is particularly essential in this case to prevent Mr. Baines’ loss of his leg from colouring the factual assessment of earlier events.
The Accident and Paramedical Care – 10:45 p.m. to 11:33 p.m.
[22] On June 23, 2011, at approximately 10:45 p.m., Mr. Baines was involved in a single vehicle accident. According to the Ambulance Call Report, Mr. Baines lost control of his motorcycle and struck a metal signpost with his left leg, breaking the sign in half.
[23] At 11:05 p.m., paramedics arrived at the accident scene. They noted an obvious deformity to Mr. Baines’ left femur. They found that Mr. Baines was able to wiggle his toes, had sensation in his foot and had a good pedal pulse in the injured left leg. Pedal pulses are taken on the top of the foot. When they are present, it is an indication of blood flow through the leg at the time the pulses are taken.
[24] At 11:18 p.m., the paramedics applied traction to Mr. Baines’ leg and confirmed that there was still a good pedal pulse and sensation in his left foot.
[25] At 11:27 p.m., a paramedic assessed Mr. Baines’ leg again and found pedal pulses were present. Mr. Baines was experiencing right-sided abdominal pain, which increased upon palpation. He described a sensation of needing to have a bowel movement.
[26] At approximately 11:33 p.m., the ambulance transporting Mr. Baines arrived at the triage department of the Ajax Hospital.
Ajax Hospital – Triage – 11:33 p.m.
[27] At the Ajax Hospital, Mr. Baines was triaged by a nurse who documented pedal pulses present in his injured left leg. The task of a triage nurse is to do a quick initial assessment. The nurse classified Mr. Baines as the second most acute triage category, a high priority.
Dr. Abounaja Assesses Mr. Baines – 11:40 p.m.
[28] At approximately 11:40 p.m., Dr. Abounaja began the initial assessment of Mr. Baines with the assistance of ER nurse, Stephen Gulland, who was the primary nurse for Mr. Baines at Ajax Hospital.
[29] Dr. Abounaja admitted that from 11:40 p.m. on June 23, he was Mr. Baines’ most responsible physician, who had overall responsibility for directing and coordinating his care and management. He continued in that role until the orthopedic surgeon, Dr. Charles Thompson, took over care approximately four hours later.
[30] Dr. Abounaja testified that a nurse does the documenting as he examines a patient. The assessment has two parts – initial assessment and secondary assessment. Nurse Gulland documented the examination in the Trauma Assessment Flow Chart.[^2]
[31] The Emergency Record is where the ER physician writes the story, his findings and his orders. Dr. Abounaja’s Emergency Record for Mr. Baines is found in the Joint Brief of Documents.[^3] He confirmed that it is the only place, which contains his notes in this case.
[32] Dr. Abounaja’s reading of what he wrote in his Emergency Record relating to his initial assessment follows:[^4]
Time seen 23:40 [11:40 p.m.]
Motorcyclist under the influence eth [of alcohol]
Crashed into a post and broke
Patient presented via EMS, conscious, oriented, complaining of leg pain
On examination patient was conscious and oriented. PERL [stands for “pupil equal reactive to light” meaning the brain is functioning well]. Breathing okay, talking.
Blood pressure [no entry - explained “I did not have a reading at the time.”] Pulse between 90 and 100 [explained 100 is high] RR 20 [meaning respiratory rate, explained 20 is fast] and oxygen level 100 percent.
Chest was clear. C-spine was collared [explained EMS placed a cervical collar to protect the neck].
The abdomen was tender all over. There was no laceration.
[33] It should be noted that Dr. Abounaja testified that he had seen the blood pressure in the triage notes. I could not find a blood pressure reading in the triage notes. But Nurse Gulland recorded it as 92/52 at 11:40 p.m. in the initial assessment notes.[^5]
[34] Dr. Abounaja testified that based on his initial assessment, he was worried by the abnormal vital signs. The patient had low blood pressure [hypotensive], fast breathing [tachypneic], and fast heart rate [tachycardic], as well as abdominal pain and tenderness from a high velocity accident on a motorcycle. Dr. Abounaja testified that his primary concern was for Mr. Baines’ life, and he was alarmed about the possibility of a life-threatening internal bleed. He did not document that in his Emergency Record.
[35] Dr. Abounaja made orders that are set out in his Emergency Record. He ordered two units of blood, cross-match [under heading “blood products”], in case he needed to give Mr. Baines blood. He explained in his testimony that O negative unmatched blood can be given to anybody quickly to save life and to restore blood pressure if there is a bleed. He also ordered a cardiac workup [under heading “lab orders”]. He ordered a complete blood count [under heading “LFT”] and a screen for alcohol [under heading “toxicology screen”]. He also ordered a “port” chest x-ray and a femur and pelvis x-ray [under heading “diagnostic imaging”]. “Port” means the x-ray machine is brought to the patient’s bed to save time. He also ordered medication to relieve Mr. Baines’ pain.
[36] Dr. Abounaja testified that he performed a physical examination. His Emergency Record does not record an examination of the left leg.
[37] Dr. Abounaja testified that after he finished his initial assessment, he personally imaged Mr. Baine’s chest and femur by FAST [Focused Assessment by Sonography], a bedside ultrasound. He testified that he was looking for the source of the tenderness and for the reason why the patient was having low blood pressure. He was looking for blood, because free blood in the abdomen “mainly means there is a smashed liver or spleen.” After doing the FAST, he thought he saw some blood on the right upper side [quadrant] of the abdomen. This was a rough estimate because he is not a sonographer. But it alarmed him. In his Emergency Record he did not document doing the FAST or any concerns arising from it.
[38] The Hospital Fluid Records show that at 11:48 p.m., Mr. Baines received one litre of normal saline in the right arm, and at 11:50 p.m. one litre in the left arm.[^6] Dr. Abounaja said this was given to Mr. Baines as part of the ATLS resuscitation protocol – a bolus [fast] infusion of normal saline to restore normal blood pressure or boost it.
Advanced Trauma Life Support (“ATLS”)
[39] “ATLS” refers to Advanced Trauma Life Support. The evidence at trial established that it is the Canadian and internationally recognized standard for physicians dealing with trauma. ATLS protocols provide guidance to physicians in the assessment and management of trauma patients. ATLS was referred to throughout the evidence. Its guidance and protocols are relevant to a consideration of the standard of care that applied in this case. Dr. Abounaja testified that he systematically followed the ATLS protocols in providing care to Mr. Baines throughout.[^7]
Absence of Pulse – 11:40 p.m.
[40] During the assessment, starting at 11:40 p.m., Nurse Gulland documented the patient’s arrival, collared by EMS, airway intact, alert, yelling in pain, no apparent head trauma, no pulse left foot, Sager traction [splint] intact to the left leg [previously applied by EMS].[^8]
[41] The recording also shows Mr. Baines had peripheral pulses palpable in his right and left arms and right foot, but no pulse palpable in the left foot. There is then a note by Nurse Gulland: “Dr. Abounaja aware.” This entry is timed 11:50 p.m.
[42] Dr. Abounaja was asked when he became aware that there was no pulse palpable in the left foot. He said: “So if we say I saw the patient around 11:40, by the time I did my assessment, the initial assessment, the secondary assessment, so usually around 11:55, something like that, just a few minutes before midnight.”[^9]
[43] Nowhere in Dr. Abounaja’s Emergency Record does he document, at any time, that the pulse in the left leg is absent. Dr. Abounaja testified that after he finished his initial assessment, he went with the nurse to do the secondary assessment. He testified that he was planning to write down the absent pulse after, but he forgot, and he should have done it. He said that he was focusing on the life-threatening conditions according to ATLS protocol. The only references in his Emergency Record to the leg is that the patient was complaining of leg pain; diagnostic imaging of the femur was ordered; and “Diagnosis: # [broken] Femur Shaft.”
[44] There is a Secondary Assessment document.[^10] According to Dr. Abounaja, this is the second part of the ATLS protocol. The nurse documents as they go along. The form shows bowel sounds are absent. Dr. Abounaja testified that this is a positive finding that indicates there might be abdominal insult or injury. The assessment shows no pulse in the left lower extremity. There was a small abrasion on the left lower extremity, which Dr. Abounaja testified was not a finding of concern. It was sutured. Dr. Abounaja does not remember that he sutured it and did not record it.
[45] Dr. Abounaja testified that the secondary assessment took about 10 minutes. He said that when he was finished, his priority was the patient’s life because he had low blood pressure. Next was the left lower extremity. The patient had a life-threatening condition and a limb- threatening condition.
[46] In cross-examination, Dr. Abounaja was asked if, after he initially assessed Mr. Baines, he understood that an orthopedic consultation was required. He said that was “not quite right.” The patient was involved in a multi-system trauma. He was unstable. He needed a team of specialists.
Mr. Baines’ Blood Pressure Drops – 12:01 a.m.
[47] At 12:01 a.m., Nurse Gulland documented that Mr. Baines’ blood pressure was 66/50. Dr. Abounaja referred to this in his evidence as a “sudden crash.” He said he was alarmed by the drop in blood pressure. If it continued, there would be no perfusion [circulation] and Mr. Baines would go into a state of shock. If there is no perfusion to the vital organs, the patient arrests or dies. Dr. Abounaja testified that he suspected that Mr. Baines had a bleed from an injury to his liver, spleen or kidney.
[48] As noted above, Dr. Abounaja had already given Mr. Baines two litres of normal saline. In response to the sudden drop in blood pressure, he ordered 500 cc. of Voluven to be given to Mr. Baines bolus. It was given to boost or increase blood pressure. The administration was reflected in Nurse Gulland’s notes.[^11]
[49] Dr. Abounaja testified that his plan was to resuscitate Mr. Baines and then transfer him to a trauma centre. He did not document his plan in his Emergency Record. His opinion was that Mr. Baines needed a transfer because he had multi-trauma symptoms – abdominal pain, low blood pressure, a fractured femur, and no pulse in the lower left extremity. At 12:04 a.m., Dr. Abounaja made his first call to CritiCall. The only reference to CritiCall in Dr. Abounaja’s Emergency Record is “Critl called 200 am/Dr. Thompson called.”[^12]
CritiCall
[50] CritiCall is an initiative of the Ministry of Health, serving the entire Province of Ontario and was operating in June 2011. It is a call centre, operated around the clock. It supports physicians treating critically ill patients by facilitating their consultations with medical specialists. It receives calls from physicians with patients in the ER or admitted to acute care facilities when they need resources beyond what is available at the local hospital. Mostly, CritiCall agents receiving the calls connect these physicians to specialists who are practicing in tertiary hospitals. A tertiary hospital is one that provides care by specialists. For trauma patients, there are specialized centres throughout the Province of Ontario. Community hospitals do not have the same resources to deal with trauma patients as trauma centres do. Trauma centres have specialists and resources available around the clock. There are two trauma centres in the Greater Toronto Area, St. Michael’s Hospital and Sunnybrook Hospital. Each of these centres has a designated trauma team leader who is on call. ER doctors can use CritiCall to connect to these team leaders. Team leaders can authorize a patient to be transferred to the trauma centre, if necessary.[^13]
[51] Ajax Hospital is a community hospital. St. Michael’s Hospital, Toronto, is approximately 47 km, or 30 miles from the Ajax Hospital. Sunnybrook Hospital, Toronto, is approximately 40 km, or 25 miles from the Ajax Hospital.
[52] Acronyms are used in the CritiCall records. Exhibit 3 is a list defining them. It is important to note that in 2011 CritiCall had a “Life and Limb” policy project in effect, but only for southwestern Ontario. Consequently, where the records show “No” as the answer to the question “Is this a Life and Limb case?”, it is irrelevant to my considerations because Mr. Baines was not in the southwestern region of the Province where the pilot policy applied.
Call to CritiCall – Dispatcher – 12:04 a.m.
[53] When Dr. Abounaja made his first call to CritiCall at 12:04 a.m., he spoke to dispatcher, David Bailey.
David Bailey’s Evidence
[54] David Bailey testified. He was a CritiCall call agent on June 24, 2011. He had worked in that capacity since June 2009. He was educated in medical terminology and had a college level certificate as a ward clerk.
[55] He said that his role at CritiCall was to speak to the requesting doctor or medical delegate calling in and to collect and record demographic details, diagnostic information, details of the patient’s status and to confirm the specialty required. Based on the problem identified, CritiCall’s diagnostic tool populates a specialty. The agent confirms that is the specialty the requesting doctor is looking for. The agent would then let the requester go. The agent would then call the closest, most appropriate hospital that offers that service. The agent would page that specialist for the requester. Then the requesting physician and specialist are patched together, and the agent remains on the call as they speak and takes notes.
[56] The call between Dr. Abounaja and Mr. Bailey began at 12:04 a.m. and lasted roughly three and a half minutes.
[57] Mr. Bailey does not have any specific memory of what took place during Dr. Abounaja’s call. In testifying, he relied purely on his usual practices at the time and the CritiCall records.[^14]
[58] Mr. Bailey said that he relies solely on the physician at the requesting hospital (or the physician’s delegate) for the patient information that he enters on the system. He likely would have talked to Dr. Abounaja personally on the call. He recorded as follows:
Clinical Comments: [The patient] Driving motorcycle. High speed collision. Hit sign and broke it with his body. Femur fracture L [left] side. Query R [right] upper quadrant injury. Alcohol on board.
Diagnosis: Multiple Injuries
Initial Specialty: Trauma[^15]
[59] Mr. Bailey testified that he records anything identified as a mechanism of injury. He makes note of any relevant medical conditions. He would not leave out anything pertinent to the reasons for the call. He records anything identified as a possible diagnosis. He said that given two systems of injury, a femur fracture and abdominal concerns, Mr. Baines would qualify as a trauma patient.
[60] He said that if there were issues about an ischemic or pulseless leg, he would have recognized it as a significant medical condition that was imminently life-threatening. If it had been reported to him, he would have noted it. He deduced from the fact that he made no notation of ischemia, a pulseless leg, or absent pedal pulses that he was not informed of it. He is pretty much “one hundred percent certain” that he was not informed of it, or it would have been in his notes of the call.
[61] Following this call, Mr. Bailey let Dr. Abounaja return to his patient and connected with Dr. Bernard Lawless. Mr. Bailey said that based on his practice, he would have given Dr. Lawless a summary of the patient from what was in his notes. Mr. Bailey then called Dr. Abounaja back. At 12:16 a.m. he connected Dr. Abounaja and Dr. Lawless and stayed on the line.
Dr. Bernard Lawless
[62] Dr. Bernard Lawless was the on-call Trauma Team Leader at St. Michael’s Hospital at the time. He is a general surgeon. According to Dr. Homer Tien, a defence expert witness, Dr. Lawless is known to be a competent and experienced trauma surgeon. He has advocated for early transfer of patients. He was instrumental in designing the life and limb policy implemented by CritiCall in 2015.[^16]
Dr. Abounaja’s Evidence
[63] Dr. Abounaja testified that he did not remember the exact details of his discussion with the dispatcher, but he did remember the context, core and reason for the call.
[64] Dr. Abounaja testified that he told the dispatcher who he was and where he was calling from. He testified that the information in the record that Mr. Bailey made is accurate, but incomplete. In addition to what is recorded, he also told the dispatcher that the patient presents with low blood pressure. His blood pressure crashed a few minutes ago. The patient has diffuse abdominal pain. He did a bedside ultrasound. He thinks he found some blood in the right upper quadrant. There is no pulse detected in the lower extremity. He initiated CT scans. The patient has a life-threatening and limb-threatening condition. He needs transfer to a trauma centre.
Events Before Consultation with Trauma Team Leader
Mr. Baines’ Hemodynamic Condition
[65] As noted, Mr. Baines’ blood pressure at 12:01 a.m. had dropped to 66/50. That was before the call to CritiCall at 12:04 a.m. The chart shows that by 12:07 a.m. (after the Voluven was administered), Mr. Baines’ blood pressure was 118/52.[^17]
[66] Dr. Abounaja agreed that, by the time that he spoke to Dr. Lawless at 12:16 a.m., Mr. Baines was hemodynamically normalized. He still had tachycardia (pulse 122) and fast breathing (38), which Dr. Abounaja testified could be because of pain or could be impending shock.
[67] Dr. Abounaja testified that before he spoke to Dr. Lawless, he had ordered a series of CT scans on head, neck and abdomen. This is confirmed by a nurse’s note at 12:15 that reads:
12:15 - 0 [absent] pedal pulse. MD ordering CT. MD aware. MD wants CT abdo [abdomen].[^18]
[68] Dr. Abounaja testified that he wanted the CT scans before he spoke to Dr. Lawless. He agreed that he knew it would take over an hour to get them done and about 15 minutes to get them read. He also acknowledged that the patient would be transferred into a distant area of the hospital for the scans. He agreed reluctantly that this showed that he thought that the patient was hemodynamically stable because part of the ATLS protocol is that a patient should only be sent for a CT scan when he is hemodynamically stable. It is further confirmed by the fact that, at 12:20 a.m., Dr. Abounaja told the nursing staff, as recorded in the Emergency Record, to hold off giving any blood.[^19]
Dr. Abounaja’s First Discussion with Trauma Team Leader – 12:16 a.m.
[69] At 12:16 a.m., Dr. Abounaja spoke with Dr. Lawless. Mr. Bailey stayed on the line. Mr. Bailey testified that it was his job to note all relevant portions of the communication, the key points. He is also to document the plan. The call lasted until 12:19 a.m.
[70] Mr. Bailey documented the call between Dr. Abounaja and Dr. Lawless, as follows:
Trauma
High speed motorcycle accident. Driver went through a road sign and broke it in two. Blood in the RUQ [right upper quadrant]. Helmet intact no sign for a head injury. Femur fracture.
GCS 15 [Glasgow Coma Scale – normal]. Management provided in Ajax relayed. CT [CT scan] head, chest and abdo [abdomen] pending. Will also get a CT spine.
Once the results are available then Dr. Abounaja is to call back to CritiCall. If results reveal further injury then follow up needed via CritiCall. If scans reveal nothing then Ortho [orthopedic specialist] locally should see the patient.
In the space for “Final Outcome”, Mr. Bailey recorded “No”.[^20]
[71] Mr. Bailey testified that if ischemia, absent pedal pulses or a pulseless leg had been discussed, he would have noted it and he is “one hundred percent certain” of that based on everything else that is documented.
[72] Mr. Bailey said that normally when plans are hashed out, it’s a discussion between the two physicians. If there had been any dispute over the plan, he would have documented it because CritiCall has policies in place about that. He was “one hundred percent certain of that.” He said if there had been any requests through CritiCall or of the doctor that were not provided for he would have documented it.
[73] When the call ended, it was Mr. Bailey’s expectation that Dr. Abounaja would be calling back with the CT results. That is why he recorded that it was not a final outcome.
Dr. Abounaja’s Evidence About the Call
[74] Dr. Abounaja testified that what Mr. Bailey recorded about his call with Dr. Lawless is accurate, but there are parts missing.
[75] Dr. Abounaja took no notes of the discussion with Dr. Lawless. He testified that he could not recall the exact words used, but he remembered telling Dr. Lawless the scenario, the history and the findings. In his testimony, he described the call as follows:
So I got on the phone with the trauma team leader. It's Dr. Abounaja here. I have a - I'm calling from Ajax. I have a high velocity motorcycle accident. The patient was thrown off his motorcycle, crashed into a pole, broke it in half, presented with low blood pressure with EMS. He's got, he still have low blood pressure. He, he got a blood pressure that crashed not too long ago. I'm resuscitating him. He's got an abdominal pain, tender on exam. I did an ultrasound on him. I did the FAST exam, which showed some blood. He's got a fractured femur and along with the fractured femur, we could not detect any pulse in the lower extremity. So I've done CAT scans, resuscitated the patient, and I need him to be transferred to a trauma centre as this guy's got multiple systems trauma going on there. He's unstable at the moment. I need him to be transferred to a trauma centre.[^21]
[76] Dr. Abounaja testified that he was “one hundred percent certain” that he requested a transfer of the patient.
[77] Dr. Abounaja testified that in response, Dr. Lawless told him to complete the CT scans before transferring the patient. He also told him to add a CT scan of the cervical spine. If they showed abdominal injury or chest injury, Dr. Abounaja was to call him back for further instructions. If they showed no injuries, Dr. Abounaja was to “get your local orthopaedic to deal with a fractured femur with the pulseless leg.”[^22]
[78] Dr. Abounaja testified that he did not see Dr. Lawless’ response at the time as a rejection of his request for a transfer.
[79] Dr. Abounaja testified that following the conversation with Dr. Lawless, he spoke to Nurse Gulland. There is an entry in the Interdisciplinary Progress Record by Nurse Gulland. Oddly, it was written in after the 12:15 a.m. note referred to above, but bears a time of 12:10 a.m., which was before Dr. Abounaja spoke to Dr. Lawless, but appears to refer to the call. It is as follows:
Dr. Abounaja aware of 0 [absent] pulse L [left] leg. Dr. Abounaja “I can’t do anything until I get the CT done.” Dr. Abounaja “I was asked at CritiCall to get the CT done before I send him.” Writer states that he was concerned that “we were wasting time, the patient needs to go to Toronto.” Dr. Abounaja “no we can’t send him to Toronto until I get the CT.”[^23]
[80] Dr. Abounaja testified that he remembers the “12:10” discussion. He said it took place as soon as he hung up from talking to Dr. Lawless at 12:19 a.m. The time recorded is wrong, but otherwise, the notation is accurate. He testified that the note reflects his response to Nurse Gulland’s concerns and his view of the plan, as follows:
I told him [Nurse Gulland] “I was told by the trauma team leader we will follow his instructions. He said get the CT scan before we transfer him.” So, I was like under the impression that okay he was – they were going to do the CT and then the patient will be heading to Toronto.[^24]
CT Scans – 12:19 a.m.
[81] Dr. Abounaja got off the phone from speaking to Dr. Lawless at 12:19 a.m. He testified that after the call it took him a couple of minutes to make the request for the CT scans. Since they did not have a CT technician present in the hospital, the radiologist, Dr. Matthew Benjamin, had to be paged first to get the technician to come in.
[82] There is a nursing note at 12:36 a.m. by Nurse Gulland.[^25] It is difficult to read, but Dr. Abounaja testified that the important part is: “patient remains alert times three, chest clear and good airways. His heart sound too was normal. His abdomen was flat, rigid. He was absent bowel signs.” Dr. Abounaja testified that this was an important finding because it raised suspicion that there must be a bleed since the abdomen is rigid and there are no bowel sounds. The note also says that there is no pulse in the left foot, no sensation.
[83] The nurse’s note documents that at 12:43 a.m., Mr. Baines was off to have the CT scan. That was 24 minutes after the call with Dr. Lawless ended.
[84] The next nurse’s note shows that at 12:52 a.m. Mr. Baines was at the CT scan with Nurse Gulland.[^26] His blood pressure was 124/78, pulse 100 and respiration 26. Dr. Abounaja commented in his evidence that the pulse at 100 was still alarming because it was high.
[85] The next nurse’s note shows that at 1:10 a.m., Mr. Baines had returned from CT.[^27] His blood pressure was 132/78 and respiration 19. Also, at 1:10 a.m., the nurse recorded that Mr. Baines had left abdominal pain:
L [left] upper quadrant abdo [abdomen] pain c/o [complaining of] tingling to upper chest as well. MD aware. L. [left] thigh swollen ++. MD informed by RN. L [left] thigh hot/hard/cold at lower limb to touch.
BP [blood pressure] 133/84
P [pulse] 98
R [respiration] 31.[^28]
[86] There is another nurse’s note at 1:30 a.m. that Mr. Baines was seen by Dr. Abounaja, “another portable U/S done, awaiting CT results from radiology.”[^29]
[87] At 2:00 a.m. the nurse recorded that the patient was complaining of “pain +++.” His blood pressure was 124/82; pulse 90; respiration 22.[^30]
CT Scan Results
[88] After Mr. Baines’ return from CT scanning, Dr. Abounaja was waiting for the report of CT scan results from the radiologist. Reports are posted on the hospital computer. Dr. Abounaja testified that he checked the system every couple of minutes because he knew the results were urgently required.
[89] Dr. Abounaja testified that he got the preliminary report on the CT scan on the head at 1:26 a.m. The report read “nil acute” meaning no blood or broken bones. He also got a report on a portable chest x-ray at 1:27 a.m. It was normal. The radiologist had not posted the abdominal CT scan results. As a result, Dr. Abounaja asked staff to page the radiologist around the same time. He was unsure of when. At one point, he said it was around 2:00 a.m. The records show that the radiologist was paged at 1:26 a.m. Dr. Abounaja testified that he cannot remember exactly when he learned of the radiologist’s conclusions on the remaining scans, but it was roughly before 2:30 a.m.
[90] Dr. Abounaja said that he stopped checking for the results, after the radiologist was paged. He went to see other patients. It was an average night as far as he remembers, but he does not remember the details. There were about 20 patients.
[91] The results of the CT scan on the thorax were posted at 1:29 a.m. and were “normal”. The results of the CT scan on the abdomen and pelvis were posted at 1:34 a.m. and were “nil acute.”[^31] On cross-examination, Dr. Abounaja said that he checked between 2:00 a.m. and 2:30 a.m. and saw that the results were there. Then he was going to call CritiCall.
[92] Dr. Abounaja testified that he thinks that he did an ultrasound on the foot by Doppler, likely the abdomen too, but he is not sure. If he did, he did not note it or the results in his Emergency Record.
Call from CritiCall Dispatcher – 1:41 a.m.
[93] Mr. Bailey testified that he would have understood and expected that Dr. Abounaja would call CritiCall once the CT studies were completed and resulted, to advise if assistance was still required or if the patient’s injuries would be dealt with in Ajax Hospital. When Mr. Bailey did not get a call, he called the ER at Ajax Hospital for a status update at 1:41 a.m. He spoke to a nurse. He noted that he was told that they were waiting for a report from the radiologist.[^32]
[94] All results were available on-line at 1:34 a.m., if anyone had checked.
Second Call from CritiCall Dispatcher – 2:34 a.m.
[95] Approximately 55 minutes later, at 2:34 a.m., Mr. Bailey again called back when he had not received a call from Dr. Abounaja. According to the CritiCall records, the call was approximately one minute and fifteen seconds long. Mr. Bailey testified that what he was told, probably by Dr. Abounaja, was:
Everything was negative. Ct head clear. Spine is clear and abdomen is clear. Will have ortho locally see the patient in regards to the femur.
[96] Mr. Bailey recorded: “FRC [Final Request Cancelled] Req. Cancelled/ Internal Placement.”[^33]
[97] Mr. Bailey testified that he was certain that if ischemia or absent pedal pulse had been mentioned on the call, he would have recorded it. He closed the record. He said that he would have done so based on the internal placement as CritiCall is not involved in the internal processes of hospitals. He said that he would never initiate that independently without direction, in this case, from Dr. Abounaja. In cross-examination, Mr. Bailey said that Dr. Abounaja was no longer asking for a transfer for this patient at this time, so that is why he would have recorded the final outcome as he did and closed off the case. But, when a case is re-opened, then whoever takes over the call would unclick the box because it is no longer a final outcome.
Dr. Abounaja’s Evidence About the Call
[98] Dr. Abounaja testified that he remembers this conversation, the main points, the core and the purpose. He testified that he informed the agent that the CT scans were normal, and he was just following the Trauma Team Leader’s instructions to get the local orthopedic specialist to deal with the fractured femur with the pulseless leg, before transferring the patient. He testified that he never cancelled his request to have Mr. Baines transferred to a trauma centre. He said he was “100 percent sure” that he never cancelled the call.
[99] On cross-examination, Dr. Abounaja agreed that at his examination for discovery, on July 15, 2015, he said that he had no specific recollection of this call. At trial, he said that was probably true then, but now he does have a recollection. He is not sure when he discovered that he had a recollection. It was a few months prior to trial, when he looked at the CritiCall notes, his chart and the nurse’s chart. That was when he got the idea about when and what happened in that period of time, roughly. He did not correct his answer from his examination for discovery before trial.
[100] On cross-examination, Dr. Abounaja testified that the only thing he does not have an explanation for is the hour before CritiCall called. He said that is the only part that is missing in his memory. He was referring to the hour when the last results of the CT scans were available, but not retrieved.
Dr. Thompson Paged – 2:34 a.m.
[101] The parties are agreed that at 2:34 a.m., Dr. Charles Thompson, the on-call orthopedic surgeon at Ajax Hospital, was paged. Shortly afterward, Dr. Thompson spoke to Dr. Abounaja by phone.
[102] Dr. Thompson was called as a witness by the defence to testify as a participant expert about the nature of his involvement in Mr. Baines’ care.
[103] Dr. Thompson graduated from medical school at the University of Toronto in 2002. After that, he did five years of training in orthopedics. In that context, he did some elective time as a trauma surgeon. In addition to being a general orthopedic surgeon, he also has subspecialities in hip and knee arthroplasty and revision arthroplasty procedure (meaning revisions of primary hip and knee replacements). Dr. Thompson completed his education in 2010. In 2011, he was doing on-call service as an orthopedic surgeon two or three weekends a month, covering Centenary Hospital and Ajax Hospital.
[104] Dr. Thompson testified that as an orthopedic surgeon practicing at a community hospital it is very rare for him to see vascular injuries associated with orthopedic fractures. In his entire career, he has seen three vascular injuries associated with orthopedics generally, not just fractures. Mr. Baines was the third. Of the other two, one was where a surgeon doing a knee replacement injured a blood vessel. He has not seen another since Mr. Baines’ case. He confirmed that there was no vascular surgery available at the Ajax Hospital in 2011.
[105] Dr. Thompson testified that overall, he has a strong recollection of his interaction with Mr. Baines. This is because a pulseless leg is not a common occurrence, and because of the difficulty he had getting Mr. Baines transferred to a hospital with orthopedic and vascular service. For some matters, however, he had to rely on the patient charts and the CritiCall records.
[106] Dr. Thompson was at home when he got the page from the Ajax Hospital ER. He has some recollection of his discussion with Dr. Abounaja who told him about a patient with a femur fracture and no pulse. Dr. Thompson said that he told Dr. Abounaja that if the patient has no pulse, they could not manage him. They needed to CritiCall him out. Dr. Abounaja said he would look after it. Dr. Thompson did not recall that Dr. Abounaja told him he had already called CritiCall.
Dr. Abounaja’s Evidence
[107] Dr. Abounaja testified that he told Dr. Thompson that he was following the instructions of the Trauma Team Leader by calling him. He told Dr. Thompson that he would call the Trauma Team Leader back and tell him that Dr. Thompson had said that the patient needed to be transferred to a trauma centre.
Dr. Thompson’s Review
[108] Dr. Thompson logged into the hospital server from home and accessed Mr. Baines’ x-ray. He testified that a malalignment of a fracture can impede blood flow. However, the x-ray showed that Mr. Baines’ fracture was lined up fairly well. There was a splint in place. That strongly suggested the pulseless limb was not due to the fracture. There was a possibility that the splint was too tight, acting like a tourniquet. He also noted that there was no image of the joint above or below the break. It was necessary to make sure that there was no dislocation of the hip or knee joint causing the pulselessness. With these concerns in mind, Dr. Thompson called the hospital at approximately 2:50 a.m. and suggested taking off the splint and applying skin traction. He also ordered x-rays of the two joints, as well as back and lateral views of the area. He then dressed and went to the hospital to see if there was something he could do to restore circulation or to get the patient transferred. At that point, he said he was not aware of any discussions that Dr. Abounaja had with CritiCall. It took him 30 to 40 minutes to get to the hospital.
Call to CritiCall – Dispatcher – 2:50 a.m.
[109] At 2:50 a.m. Dr. Abounaja called CritiCall. The agent who took the call and spoke to him was Lori Hill. She testified. Ms. Hill had been a CritiCall call agent since 2007. She described her role in a similar fashion to what Mr. Bailey had said – extracting significant medical information that is being provided by the referring physician or delegate. She does not take verbatim notes. As with Mr. Bailey, Ms. Hill had no independent recollection of the call. When she testified about events, she relied on the CritiCall records that she had made and her usual practices.
[110] The CritiCall records show Ms. Hill recorded the call as a “Status Update.” She recorded the information, which Dr. Abounaja gave her about his patient as:
Open femur fracture. Unable to detect dorsalis pedis. No pulses. No worries about compartment syndrome.[^34]
[111] She said she would have looked at the earlier notes taken by Mr. Bailey. This note made by Ms. Hill was the first in the CritiCall records of Dr. Abounaja mentioning an absent pulse.
Dr. Abounaja’s Second Call with Trauma Team Leader – 2:56 a.m.
[112] Following the usual practice, Ms. Hill contacted Dr. Lawless, and patched through a call to Dr. Abounaja. She remained on the line to take notes. The patched call started at 2:56 a.m. and ended at 2:59 a.m.
[113] The records show that Ms. Hill made the following notes relating to the discussion between Dr. Abounaja and Dr. Lawless:
Hemodynamically stable. CT head is fine, chest is fine. Unable to move toes, does not feel lower extremity. Fracture has been reduced and splinted. Ortho in Ajax has not seen patient, Dr. Lawless advised to have Ortho come and assess patient. Dr. Abounaja will call back if further assistance is required.[^35]
[114] Ms. Hill noted in the records that the outcome of the call was “patient to remain” and it was not a final outcome.
[115] Ms. Hill testified that based on the documentation in the CritiCall records, Dr. Abounaja did not request a transfer during the call. She said if he had, she would have documented it. She testified that she was very certain of that because it relates to the next step for case facilitation. She said that normal practice is, if there was no consensus between the referring physician and the consultant about a plan of management or a transfer request, it would be documented to continue case facilitation. There was an escalation procedure to deal with disputes. It involved the agent contacting the on-call CritiCall Medical Director to get involved.
Dr. Abounaja’s Evidence About the Call
[116] Dr. Abounaja testified that the notes are accurate, but incomplete. He said that he told Dr. Lawless that he had spoken to the local orthopedic who said if there is no pulse, the patient needs to be transferred to a trauma center to get vascular assessment. Dr. Lawless asked him if Dr. Thompson had seen the patient. Dr. Abounaja said no, and Dr. Lawless told him to call him and tell him to see the patient and get back to Dr. Lawless before “we” transfer him.
[117] Dr. Abounaja testified that Dr. Lawless denied the transfer that he requested, and this was the first time it was denied. However, he also said that since Dr. Lawless told him what to do, it was not like he was refusing. He was not accepting at the time. Dr. Abounaja was asked on cross-examination if he was satisfied with the plan. He said: “I don’t have an answer.”[^36] He agreed that he did not voice any opposition to the plan, accepted the direction that Dr. Lawless gave him, and tried to implement it. He also testified that he was not aware that CritiCall had an escalation process.
[118] Dr. Abounaja was asked on cross-examination if the fastest way to get the pulse restored could be if an orthopedic surgeon, seeing the patient quickly, could manipulate the limb and restore pulse to it. Dr. Abounaja said that was “not quite right”[^37] and then testified about his own efforts.
Call to CritiCall – Dispatcher – 3:02 a.m.
[119] Dr. Abounaja testified that he had a conversation with Dr. Thompson after his call with Dr. Lawless ended. Then he said it was not Dr. Thompson he spoke to, but a nurse with whom Dr. Thompson had spoken, after viewing the x-rays at home.
[120] The CritiCall records show that at 3:02 a.m. Dr. Abounaja spoke to agent Lori Hill and asked to speak to Dr. Lawless. Her recording of the details is:
Advised that his ortho has viewed imaging and advised that alignment is good, and that there is vascular injuries.[^38]
[121] At 3:05 a.m. Ms. Hill spoke to Dr. Lawless and told him the purpose of the page. She recorded his response:
Ideally should be Ortho to Ortho who would be speaking. Agrees to speak with Dr. Abounaja again.[^39]
Dr. Abounaja’s Third Discussion with Trauma Team Leader – 3:09 a.m.
[122] At 3:09 a.m., Dr. Abounaja spoke with Dr. Lawless. Ms. Hill recorded the discussion as follows:
Reiterated what Ortho has relayed. Advised that once Ortho has assessed patient, Ortho can refer to colleagues.[^40]
[123] Ms. Hill noted in the records that the outcome of the call was “patient to remain” and it was not a final outcome.[^41]
Dr. Abounaja’s Evidence About the Call
[124] Dr. Abounaja testified about his last discussion with Dr. Lawless. He said: “I do remember that call.” He then seemed to repeat the conversation verbatim. To summarize, Dr. Abounaja testified that he said to Dr. Lawless: “As you instructed me the CT scans were negative and I got my orthopaedic locally to see the patient.” He then quoted to Dr. Lawless what Dr. Thompson had said: “…[D]on’t delay the transfer, get him out as soon as possible. He needs a vascular assessment, and to be treated and taken care of by the trauma centre.”
[125] Dr. Abounaja said it was really frustrating because Dr. Lawless asked if Dr. Thompson came and saw the patient in person or if it was just an assessment over the phone. Dr. Abounaja told him that Dr. Thompson saw the images. Dr. Lawless said: “No, no, get Dr. Thompson, your orthopaedic, to come and see the patient in-person before transferring the patient and let him assess the patient. If he feels the patient needs to be transferred let him call CritiCall or he can call orthopaedic.”[^42]
[126] There was no evidence, recorded or otherwise, that Dr. Abounaja expressed any opposition to the plan after Dr. Lawless made those comments.
Dr. Thompson Arrives at Hospital
[127] Dr. Abounaja said that shortly after that conversation with Dr. Lawless, Dr. Thompson arrived at the hospital. The parties agree that at approximately 3:28 a.m., Dr. Thompson was assessing Mr. Baines in the ER.
[128] Dr. Abounaja testified that when Dr. Thompson arrived, he said: “Why is the patient here? He’s supposed to be in the trauma centre.” Dr. Abounaja then told Dr. Thompson that the Trauma Team Leader said that Dr. Thompson must see the patient in person and if he feels the need for a transfer, he can call CritiCall or his orthopedic colleagues. Dr. Thompson said: “Okay, let me go and see the patient. I mean let’s get this done.”
[129] Dr. Thompson recalled the discussion a bit differently. He said he saw Dr. Abounaja at the nursing station and asked if he had spoken to CritiCall. Dr. Abounaja told him: “They said you should fix it.” Dr. Thompson asked him if he told them Mr. Baines had no pulse. Dr. Abounaja responded: “Yes I did. And they said you should fix it.” Then Dr. Thompson asked: “Did you tell them that we don’t have a vascular surgeon?” Dr. Abounaja said: “Yes. They said you should fix it.” Dr. Thompson said Dr. Abounaja became more frustrated and eventually walked away.[^43]
Dr. Thompson Speaks to Dr. Lawless
[130] Dr. Thompson testified that he found out from the ward clerk that Dr. Abounaja had been speaking to Dr. Lawless at St. Michael’s Hospital. He had him paged directly, rather than through CritiCall, to save time. At this point, Dr. Thompson considered that he was Mr. Baines’ most responsible physician. Dr. Abounaja had nothing further to do with Mr. Baines after approximately 3:40 a.m.
[131] About 10 or 15 minutes after he arrived, Dr. Lawless returned the page. In the meantime, Dr. Thompson viewed the x-rays, which he had ordered. He also saw Mr. Baines. He saw that the leg was well aligned. Mr. Baines was out of the splint. He definitely had no pulse.
[132] Dr. Thompson testified that he had a good recollection of his conversation with Dr. Lawless. He told him: “This guy really has no pulse.” He believes Dr. Lawless asked if “you guys” could manage it there. Dr. Thompson said no because Mr. Baines had a vascular injury and needed a vascular surgeon, and it was not something they could fix. Dr. Lawless said: “I can’t take him, try ortho or vascular.”[^44]
[133] Dr. Thompson recalled that he told Dr. Lawless that there were no vascular services at Ajax because Dr. Lawless did not seem to be aware of that.
[134] Dr. Thompson said he was surprised. Dr. Lawless’ reaction made no sense to him. He did not have a clear understanding why Dr. Lawless would not accept Mr. Baines. He did not give a reason and Dr. Thompson did not ask. They spoke for less than a minute. Dr. Thompson did not want to waste more time talking because he felt that regardless of what he said, Dr. Lawless was not going to take Mr. Baines. Looking somewhere else would be faster. Dr. Thompson’s opinion was that since the patient had been there over three hours he needed to be transferred immediately. So, he asked that CritiCall be paged and went back to assessing Mr. Baines.
Dr. Thompson’s Assessment of Mr. Baines
[135] Dr. Thompson’s contemporaneous notes were filed.[^45] As well, later that morning, at 6:56 a.m., he dictated a note to supplement his hand-written note.[^46] Dr. Thompson testified about his assessment, what he did and his conclusions, referring to his notes, and explaining as he went along. It is important to remember that Dr. Thompson is not a vascular surgeon.
[136] Dr. Thompson testified that Mr. Baines had a femur fracture with absent doralis pulses with a transverse laceration across the knee. He had sensation above the knee. His foot was quite cold. He had decreased sensation over the top dorsum of his foot, but had sensation on the bottom of his foot. He could not straighten his toes, but could curl them. So even though no pulse could be detected, his foot in the sense of muscles and nerves was not completely ischemic. His capillary refill was diminished, but tissues were still somehow being perfused.
[137] The fractured was well-aligned. However, Dr. Thompson manipulated it to rule out the possibility that a small amount of displacement, which he saw on the lateral view from the x-rays that he had ordered, might be the problem. The manipulation did not restore the pulse. He ruled out compartment syndrome [so much swelling in the muscle that it cuts off the blood supply].
[138] Dr. Thompson suspected that Mr. Baines might have suffered an injury to the femoral artery. If it were transected [artery cut in half], blood would flow into the leg, and it would swell up. That was not happening. So, he thought that it might be an intimal tear. The inner lining of the artery is called the intima. It is fragile and might have been torn at the time of the accident. Dr. Thompson testified that intimal tears can propagate over time and can occlude blood flow.
[139] Dr. Thompson’s conclusion was that Mr. Baines required assessment by a vascular surgeon to rule out injury to the femoral artery. He said that Mr. Baines needed to be transferred urgently because there is a window of opportunity when there can still be viability to the muscles and nerves and the limb can be salvaged.
Discussions Through CritiCall – Starting 3:45 a.m.
[140] Lori Hill, the agent at CritiCall, testified that according to the records, Dr. Thompson called CritiCall at 3:45 a.m. Ms. Hill recorded:
Called in. Orthopaedic Surgery. Requesting to speak with Ortho. Unable to find pulses still.[^47]
[141] Ms. Hill paged Dr. Jeremy Hall, an orthopedic surgeon at St. Michael’s Hospital, at 3:48 a.m.
[142] The CritiCall records show that Dr. Hall spoke to Dr. Thompson at 3:56 a.m. Another agent, Ms. Soares, was the agent listening in on that call. The record entry is:
Orthopaedic Surgery. Injuries discussed. Pulse cannot be felt on left leg. Possible vascular injury. Foot is cold. In traction now. Needs vascular consult.
Conclusion: CO Consult/Referred Other Specialty[^48]
[143] Dr. Thompson said that he recalled Dr. Hall saying that he would try to see if he could do something to help out.
[144] The CritiCall records show that the agent then contacted Dr. Tony Maloney, a vascular surgeon at Toronto General Hospital. Dr. Maloney and Dr. Thompson spoke at 4:04 a.m., with Ms. Soares listening. She recorded:
Vascular Surgeon. No pulses on left leg. No trauma at the General.
Conclusion: CO Consult/Check Beds.[^49]
[145] This is a convenient spot to mention that Dr. Thompson testified that he did not ask Dr. Maloney for a transfer. He knew that the Toronto General Hospital did not have orthopedic services, but he also knew that Mount Sinai Hospital did, and the two hospitals sometimes coordinated. Dr. Maloney said that he would see if there was anything he could do.
[146] The CritiCall records show that Dr. Maloney called back at 4:13 a.m. and Ms. Soares took the call. She recorded:
Vascular Surgeon. General has no Ortho. Suggested to try Sunnybrook.
Leg has been ischemic for over 4 hours. Patient needs to go to ortho ASAP. Advised to call Dr. Maloney back if there are any problems.
Conclusion: CD Consult Decline/Referred Other Specialty.[^50]
[147] The CritiCall records show that Ms. Soares paged Dr. Robin Richards, an orthopedic surgeon at Sunnybrook Hospital, at 4:16 a.m. He called back at 4:26 a.m. and Ms. Hill recorded:
CD Consult Declined/No Beds.[^51]
[148] In the meantime, the records show that Dr. Maloney was so concerned about the plight of this patient that he called back to CritiCall at 4:22 a.m., 4:29 a.m. and 4:42 a.m. to urge action.
CritiCall Escalates – 4:32 a.m.
[149] At 4:32 a.m., Ms. Hill put out a call to Dr. Howard Clasky, the Medical Director of CritiCall. She said she would have been looking for direction. The call would have been to escalate because it had been some time since the original call came in and they were still looking for orthopedic surgery and vascular surgery and were being thrown back and forth between specialties.
[150] At 4:34 a.m., Dr. Clasky called in and was on the line until 4:46 a.m., which included a patch with Dr. Thompson. There are no details recorded of the conversation between Dr. Clasky and Ms. Hill. The records show that at 4:38 a.m. Dr. Thompson told Dr. Clasky:
Left femoral shaft fracture at midshaft. No pulses. Closed fracture, laceration over the patella. Query patella tendon rupture.[^52]
[151] Dr. Thompson testified that he did not know how Dr. Clasky got involved. He had been under the impression that Dr. Hall would take the patient, not because he said he would, but because he said he would try to find a bed.
[152] Ms. Hill then paged the on-call Trauma Team Leader at St. Michael’s Hospital, Dr. Lawless, at 4:46 a.m. Dr. Lawless responded at 4:48 a.m. and accepted Mr. Baines for transfer to the ER. At 4:49 a.m., Ms. Hill notified Dr. Thompson of the transfer.
The Transfer
[153] Dr. Thompson testified that as soon as he heard of the transfer, he told the ward clerk to get an ambulance urgently. He wrote transfer orders and gave instructions to staff. Then he spoke to Mr. Baines. He told him that he was trying to get everything done as urgently as he could because there was a possibility that he might lose his leg.
[154] At 4:51 a.m., Ms. Hill called the triage nurse at St. Michael’s Hospital to let her know that the patient was coming to them from Ajax Hospital.
[155] At 5:19 a.m., Ms. Hill called the nurse in the ER at Ajax Hospital who advised her that they were waiting for the ambulance. At 5:46 a.m., Ms. Hill again called Ajax Hospital. The nurse in the ER told her that the patient was just leaving. At 5:47 a.m., Ms. Hill called the triage nurse at St. Michael’s Hospital with the estimated time of arrival.
[156] There seemed to be general acceptance that an hour from acceptance of the transfer to departure from Ajax Hospital was a long time, but there was no reliable evidence of the cause.
[157] The nursing notes from the time of Mr. Baines’ initial assessment at Ajax Hospital, including the Interdisciplinary Progress Record and the Secondary Assessment, were not copied and transmitted to St. Michael’s Hospital, but there was no reliable evidence of the cause.
St. Michael’s Hospital
[158] It is agreed that Mr. Baines arrived at St. Michael’s Hospital at 6:15 a.m. So, the trip took roughly 30 minutes. He was seen immediately by the trauma team.[^53]
[159] At 6:15 a.m., the orthopedic resident assessed the left lower leg and found “no palpable pulses, popliteal, DP [dorsalis pedis], PT [posterior tibialis]; no pulses with doppler; left thigh hematoma, soft; left lower leg compartments tense; possible left knee dislocation; no ankle dorsi/plantar flexion; no sensation L4/L5/S1- midcalf - laceration transverse to distally.”[^54]
[160] At 6:45 a.m. the vascular fellow assessed the left limb and noted: L[left] foot cool; no cap [capillary] refill; no reading on Spl 2 probe; no sensory or motor function of foot ankle; return of sensation mid shin; calf muscle compartment doughy and tense. … [T]he limb is now clinically irreversible. This injury likely occurred at time of accident. The extent of orthopedic and neurological injury makes this limb unsalvageable. In addition there is clinically dead muscle in the calf. No benefit to attempted revascularization. Pt. seen with Dr. Campbell. Decision to proceed to 1 degree [primary] amp [amputation] by ortho.[^55]
[161] Dr. Campbell, the vascular surgeon, was at the bedside at 7:10 a.m. His report showed that he concurred.[^56] The orthopedic surgeon also concurred.[^57] Nevertheless, Dr. Campbell ordered a CT scan angiogram. It was done between 7:30 and 8:00 a.m. The report stated:
Abrupt termination of the distal superficial femoral/popliteal artery. Collaterals reconstitute the popliteal artery with a long central filling defect. This is once again occluded at the level of the trifurcation.[^58]
[162] At 8:10 a.m., Mr. Baines was back to the ER.
[163] At 8:35 a.m., Mr. Baines was taken to the operating room and his left leg was amputated above the knee. The surgery started at 9:15 a.m. and he left the operating room around noon.
[164] After the surgery, Dr. Michael McKee, one of the orthopedic surgeons reported his intraoperative observations, including the following:
Unfortunately, both the anterior, lateral and both posterior compartments appeared to be completely ischemic or dead. There was no muscle contractility. There was no blood supply whatsoever. On the skin and subcutaneous cuts, there was evidence of some venous backbleeding but no arterial flow. The entire below-knee incision level appeared to be completely avascular and ischemic. There was some haematoma tracking down into the posterior compartment but this was merely oozing of venous haematoma and not active circulation.[^59]
Standard of Care - Primary Factual Issues
[165] The parties agree that the central factual contest in this case is whether Dr. Abounaja told the CritiCall agent or Dr. Lawless during the call sequence from 12:04 a.m. to 12:19 a.m. about the absent pulse in Mr. Baines’ left foot, and that Ajax Hospital did not have vascular services and that he was requesting an urgent transfer of Mr. Baines to a trauma centre.
[166] The content of the discussions are questions of fact. The evidence of the experts, who testified on standard of care, has contextualized the issue and I have taken their evidence into account as it relates to this issue. Unfortunately, experts in this case weighed in on the factual determination, by expressing opinions about what they believed were the contents of the discussions. I have disregarded those views.
The Failure to Call Dr. Lawless
[167] It is necessary to address the failure to call Dr. Bernard Lawless as a witness. It was not demonstrated to me that the plaintiffs undertook to call him. Either side could have called him to testify. Despite some comments from counsel, Dr. Lawless’ ability to recollect relevant events is unknown. On the issue of the contents of the call at 12:16 a.m., I do not draw an adverse inference against either side from the failure to call him as a witness.
Dr. Campbell’s Consultation Note
[168] It is also necessary, as a preliminary matter, to address what evidentiary use can be made of a consultation note, which Dr. Vern Campbell prepared on June 24, 2011, at 8:29 a.m.[^60] Dr. Campbell was the vascular surgeon who assumed Mr. Baines’ care at St. Michael’s Hospital. His note includes details of what he did to understand Mr. Baines’ history. The portion of the note at issue states:
I reviewed the sequence of events with the Trauma staff here who had handled the call. As far as I can tell, the initial focus was on ruling out other injuries, so CT scan of thorax and abdomen were performed first and there was actually no mention in the CritiCall conversation about concern for left leg ischemia. As far as I can tell from the conversation when the CT scan turned out to be negative and attention was then focused on the left lower leg and it was at this point that the absence of left leg pulses was identified. Ortho assessment was requested to assess if the fracture was displaced and make sure it was not causing extrinsic compression. I am not sure from the transfer notes if an ortho assessment was actually performed, but apparently a couple of hours went by before the definitive assessment was made that this was a vascular injury. Transfer was set up, but as noted above, vascular was not called until 0645.
[169] This part of the note was not referred to in evidence until the last day of the trial when it was put to Dr. Maggisano, a defence witness, in cross-examination when counsel was probing various matters that he considered in the preparation of his expert report.
[170] The plaintiffs take the position that the note is evidence that Dr. Lawless was not told about Mr. Baines’ pulseless limb until after the CT scan results were reported. The submission is that since the note was covered by the plaintiffs’ notice under s. 35(1) of the Evidence Act, R.S.O. 1990, c. E.23, as a business record, it is subject to the statutory exception to the rule against hearsay. As well, it is subject to an agreement of the parties relating to the documents in the Joint Book of Documents,[^61] which provides:
The parties agree that the documents in the Joint Book of Documents are authentic copies of the originals. To the extent that records are business records as defined by the Evidence Act, RSO 1990 c. E. 23, they are agreed to be evidence of such acts, transactions, occurrences or events as set out in the records, without prejudice to the right of any party to lead contrary evidence.
Where the records contain a diagnosis or statement of opinion those entries are admitted to establish the fact that the author(s) of the entry reached those diagnoses or opinions at the time, and not for the truth or accuracy of those opinions.
[171] The defence objects to the admission of this report for the purpose of establishing the accuracy of the contents. They rely on the authority of Adderly v. Bremner[^62] that the statement in the note is not a record of an “act, transaction, occurrence made in the ordinary course of business” with respect to Dr. Abounaja’s and Dr. Lawless’ discussions.
[172] I agree with the position of the defence. Dr. Campbell’s note about what he gathered about a third-party discussion from “[t]he trauma staff” is not a record of an act, transaction or occurrence.
[173] Even if I am wrong about that, statutory exceptions to the hearsay rule may be excluded, as evidence of the truth of the contents where the indicia of necessity and reliability are lacking, in the circumstances of a case. As well, an agreement between counsel about admissibility of documents is not automatically binding on a trial judge who remains the gatekeeper of evidence at all times, as the Court of Appeal for Ontario stated in Bruno v. DaCosta.[^63]
[174] There seemed to be some degree of acceptance at trial that the “trauma staff” referred to in the note was Dr. Lawless, but there was no evidence of that from Dr. Campbell, who was not called as a witness. Dr. Lawless was not called as a witness, and why not is unknown. Necessity is not made out. The note is tentative. Twice the author repeats “as far as I can tell.” The specific source of his information is not named, and the reliability of that source cannot be determined. Reliability overall is not made out. The particular concerns raised by this hearsay, which are not satisfied, make it inadmissible.
[175] For these reasons, the report is not admissible to prove the content of the discussions and I have not considered it on the issue.
Primary Factual Issues – Analysis and Finding
[176] The discussions through CritiCall on June 24, 2011, between 12:04 a.m. and 12:19 a.m., took place nearly 11 years before the trial.
[177] David Bailey had no specific recollection of his discussions with Dr. Abounaja or of the discussions between Dr. Abounaja and Dr. Lawless, which he monitored. His testimony was based solely on CritiCall policy, his contemporaneous notes and his usual practice. He had a duty to take notes and record any relevant medical conditions. He was trained and experienced. He understood the significance of an ischemic leg as an imminently life-threatening condition. He testified that, based on his training, knowledge and practice, if Dr. Abounaja had mentioned Mr. Baines’ ischemic leg, he would have recorded it. He did not record it. From that he deduced that Dr. Abounaja did not tell him, or Dr. Lawless, about Mr. Baines’ ischemic leg. He was certain of that.
[178] Mr. Bailey did not record that Dr. Abounaja informed him or Dr. Lawless that the Ajax Hospital did not have vascular services available.
[179] Mr. Bailey did not record any dispute over the plan that Dr. Lawless proposed. He said that if there had been a dispute, he would have recorded it because CritiCall had policies for that.
[180] Dr. Abounaja acknowledged that the CritiCall records were accurate, but incomplete. He testified to significant and detailed memories of the two calls.
[181] Dr. Abounaja testified that he does not remember the exact details of his discussions with Mr. Bailey, but he does remember the context, the core and the reason for the calls. He testified that he told Mr. Bailey that he detected no pulse in Mr. Baines’ lower left leg. He told him that Mr. Baines had a life-threatening and limb-threatening condition. He told him that Mr. Baines needed an urgent transfer to a trauma center.
[182] Dr. Abounaja testified that he could not recall the exact words used, but remembered telling Dr. Lawless the scenario, the history and the findings. This included that he could not detect any pulse in the lower extremity of the left leg with the fractured femur. He needed the patient to be transferred urgently to a multiple systems trauma center. He said he was 100 percent certain he requested a transfer of the patient.
[183] The defence position was that it cannot be inferred from Dr. Lawless’ failure to accept a transfer of Mr. Baines at the time that he was not told about the pulses. Dr. Lawless subsequently refused a transfer when he knew about them. I accept that.
[184] The defence argued that it is unlikely that Dr. Lawless and Dr. Abounaja did not discuss the pulses. Counsel referred to the evidence of Drs. Tien, Lindsay and McMillan that trauma team leaders invariably ask questions about the patient’s status, including the neurovascular status of a fractured limb. They ask about the availability of relevant specialist services at the referring hospital, according to Dr. Lindsay. In my view, it seems unlikely that those questions were asked here in light of Dr. Thompson’s evidence that Dr. Lawless asked him: “Can’t you guys fix it?” and Dr. Thompson’s evidence he seemed unaware that there were no vascular services at Ajax Hospital.
[185] The cross-examination of Mr. Bailey focused on details discussed that he did not include in his recordings. For example, he did not record all details of the investigation relating to the suspected abdominal issue. But, I note that he did record suspected blood in the upper quadrant and that Dr. Abounaja relayed in the discussion the management that he provided in Ajax.
[186] The defence also argued that it makes no sense to conclude that Dr. Abounaja did not request a transfer. There was evidence from the expert witnesses, Drs. Greenway, Tien, Lindsay and McMillan, that the only reason why an ER physician would call CritiCall for a trauma patient is to speak to a trauma team leader to request transfer to a trauma centre. I accept that evidence. But Mr. Bailey’s evidence was not that Dr. Abounaja had called for some other purpose. His evidence was simply that if Dr. Abounaja had expressed any dispute about the plan formulated during the call, which effectively was not to transfer Mr. Baines at the time, he would have recorded it. From that and the nature of the plan and Dr. Abounaja’s failure to object to it, the plaintiffs say it can be inferred that urgency was not Dr. Abounaja’s priority.
[187] Dr. Abounaja’s recollection of events seemed unlikely. Most of the expert witnesses testified that his notetaking was substandard. He admitted it. He made no note about the purpose or content of his calls to CritiCall. In fact, the only reference in his notes is: “Critl called 200 am/Dr. Thompson called.” There was no call to or from CritiCall at 2:00 a.m. Dr. Abounaja never recorded a pulseless limb in his notes or a plan of management for it. He made no note of a request for transfer or a rejection of a request for transfer. The only note (apart from the CritiCall records) that was contemporaneous was a nurse’s note after the 12:19 a.m. discussion, where, in response to the nurse’s concerns about wasting time, Dr. Abounaja was reported to say: “I was asked at CritiCall to get the CT done before I send him.”
[188] Dr. Abounaja’s actions were more consistent with what was in the CritiCall notes than what he told the nurse. The CritiCall notes recorded the plan as: “[I]f scans reveal nothing then Ortho locally should see the patient.” At 2:34 a.m. when Dr. Abounaja returned Mr. Bailey’s second call, he is reported in the CritiCall records to have said: “[E]verything was negative. Will have ortho locally see the patient in regards to the femur.” Dr. Abounaja then paged orthopedic surgeon Dr. Thompson at 2:34 a.m. According to Dr. Thompson Dr. Abounaja did not tell him that he had been in touch with CritiCall.
[189] Dr. Abounaja’s vivid recollections seem unlikely. After Dr. Abounaja handed care of Mr. Baines over to Dr. Thompson, he had nothing further to do with him. He testified that his expectation was that Mr. Baines would receive the care he needed. He could not recall when he next heard about Mr. Baines. He was served with the Statement of Claim sometime after June 2013. He said that he was shocked to receive it. He admitted that he would have seen about 5,000 patients between June 2011 and June 2013. Since then, another nine years have elapsed.
[190] Dr. Abounaja showed some significant failures of recollection. His evidence about receiving the last of the final CT scan results was inaccurate and confusing, even with the benefit of hospital records. He said that he paged the radiologist around 2:00 a.m. It was, in fact, 1:26 a.m. At first, he said he had been checking for the results every couple of minutes. He said he got the results about 2:30 a.m. When presented with the evidence that they were available at 1:34 a.m., he said he stopped checking for them every few minutes after he paged the radiologist.
[191] At his examination for discovery on July 15, 2015, Dr. Abounaja testified that he had no recollection of the second call from Mr. Bailey at 2:34 a.m., looking for information about the CT scan results. However, his evidence at trial was that he now remembered it. He remembered it a few months before trial. But he did not correct his discovery evidence before trial. He said that his memory was revived looking at records. However, the CritiCall records were the only ones documenting the call.
[192] Mr. Bailey was conscientious in doing his job. When Dr. Abounaja had not called CritiCall with the results of the CT scan, Mr. Bailey called twice at 1:41 a.m. and 2:34 a.m. to follow up. In my view, Mr. Bailey’s evidence was reliable. The records he made were contemporaneous. I find them to be reliable. They do not support Dr. Abounaja’s version of events. Dr. Abounaja’s testimony was unreliable and at times incredible.
[193] I find that Dr. Abounaja did not tell David Bailey, or Dr. Lawless, or anyone at CritiCall during the call sequence from 12:04 a.m. to 12:19 a.m. that Mr. Baines had a pulseless leg. He also did not tell them that Ajax Hospital did not have vascular services to save a pulseless leg. He expressed no opposition to the plan that Dr. Lawless provided during their discussion, inherent in which were lengthy delays. From this, I infer that he did not press for an urgent transfer.
[194] For the same reasons, I accept David Bailey’s evidence that at 2:34 a.m., following his discussion with Dr. Abounaja, he closed the record on the case on the basis that the request for transfer had been cancelled and he would never have done that without Dr. Abounaja’s direction. I do not accept Dr. Abounaja’s evidence that he did not cancel the request. Dr. Abounaja’s recent recollection of the call is unlikely.
Standard of Care – The Legal Principles
[195] The standard of care required of a medical practitioner is to exercise a reasonable degree of skill and knowledge and the degree of care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing: see Crits v. Sylvester.[^64]
[196] The standard of reasonableness is not a standard of excellence that amounts to perfection. A physician’s honest and intelligent exercise of judgment will satisfy the standard of care: Armstrong v. Royal Victoria Hospital.[^65] The plaintiff must show that any lapse is more than an error in judgment. It must rise to the level of unskilfulness, or carelessness or lack of knowledge.
[197] The standard of care includes a duty to refer in appropriate cases, as the Supreme Court of Canada confirmed in Vail v. MacDonald.[^66] The most critical factor in the duty to refer is timing. There is no absolute test to ascertain when a doctor should refer or consult, but the cases suggest that it is indicated when: (i) the doctor is unable to diagnose the patient’s condition, (ii) the patient is not responding to the treatment being given, (iii) the patient needs treatment which the doctor is not competent to give, (iv) the doctor has a duty to guard against his own inexperience, or (iv) the doctor cannot continue to treat a patient: Scott v. Mohan.[^67]
[198] General practitioners, such as emergency physicians, are entitled to rely on and defer to the advice, expertise and opinions they receive from consulting specialists: Symaniw v. Zajac[^68]; Ferguson Estate v. Burton[^69]; McPherson v. Bernstein[^70]; KS v Wilcox.[^71]
[199] The standard of care expected of a medical practitioner increases with the foreseeability of harm or risk to a patient. The degree of care required by law is care commensurate with the potential danger: Adams v. Taylor[^72] and Ediger v. Johnston.[^73] As the degree of risk involved increases, so does the standard of care expected of the doctor.
Standard of Care – Expert Witnesses
[200] On the standard of care, the plaintiffs called Dr. Keith Greenway, an emergency medicine specialist from Burlington, Ontario, and Dr. Thomas Lindsay, a vascular surgeon from Toronto, Ontario.
[201] On the standard of care, the defence called Dr. Homer Tien, a trauma surgeon and trauma team leader from Toronto and Dr. Ronald McMillan, an emergency room physician from Brampton.
Dr. Keith Greenway
[202] Dr. Keith Greenway has practiced medicine in Ontario since 1976 and been a Fellow of the Royal College of Physicians and Surgeons of Canada for Emergency Medicine since 1984. From 1988 to 1990, he was Chief of Emergency Medicine at Peel Memorial Hospital. From 1998 to 2005, he was Chief of Emergency Services at the William Osler Centre. From 2005 to 2009, he was Chief of Medicine at the Niagara Health System. He has specific experience in community hospital emergency departments. He also has extensive experience teaching medical students and residents. At McMaster University, he ran and taught the first ATLS program. He also has experience dealing with fractured and pulseless limbs and years of experience dealing with CritiCall. Of particular note, between 1995 and 2001, he served on the Standards Committee for the Canadian Association of Emergency Physicians. As well, he was one of the first assessors for emergency physicians at the College of Physicians and Surgeons of Ontario, and he was its lead assessor in that area between 2009 and 2011. As an assessor, he would evaluate the care provided by ER physicians, whom he was assessing, to determine if they met standards of care. Dr. Greenway is currently Lead Hospitalist at Joseph Brant Hospital in Burlington, where he sees and treats patients, on referral, in the ER.[^74]
[203] I found Dr. Greenway to be an expert in Emergency Medicine. He was permitted to provide expert opinion evidence in relation to the standard of care in emergency medicine, generally, in the Province of Ontario, including management of trauma, femur fracture and pulseless limb and the consequences of delay in such treatment and care.
[204] It was Dr. Greenway’s opinion that the standard of care required Dr. Abounaja to access the on-call orthopedic surgeon urgently and early. It required him not to delay, but to urgently request and access a transfer of Mr. Baines to a trauma centre. It required him to communicate to other specialists very clearly about the clinical scenario, as well as what was available and what was being requested. It also required that he persist in the request for transfer. If it was resisted, he was required to document the resistance. He was required not to stop pursuing the request, including moving up the chain of command. It was Dr. Greenway’s opinion that Dr. Abounaja did not meet these expected standards of care in the treatment he delivered to Mr. Baines in the ER.
[205] Dr. Greenway testified that it is the ER physician’s responsibility to identify life-threatening and limb-threatening injuries for treatment, and to reach out and access the necessary resources.
[206] In basic trauma Emergency Medicine principles, the rule is that there is six hours to restore blood flow to a pulseless limb. When an absent pulse is identified in the ER, the clock starts ticking to get the blood flowing. The orthopedic surgeon, on 24-hour call, was the most qualified specialist that Dr. Abounaja had at his disposal to come in and to try to restore the blood flow. It was not a sure thing that he would succeed, but it was vitally important to attempt it. At the same time, the process to get the patient off to a trauma centre had to take place, as Mr. Baines was going to need a vascular surgeon, at some point, even if the local orthopedic surgeon was able to restore the blood flow temporarily.
[207] In Dr. Greenway’s opinion, the on-call orthopedic surgeon should have been paged within 15 to 20 minutes of Dr. Abounaja’s initial assessment at 11:40 p.m. He testified that once the ATLS “ABCs” were done, it was time to get the orthopedic surgeon in and get CritiCall on the phone. Dr. Greenway said that Dr. Abounaja’s failure to page the orthopedic specialist until 2:34 a.m. was “inexcusable.”
[208] Dr. Greenway was very critical of Dr. Abounaja’s failure to record anything about the absent pulse. That was also a failure to meet the standard of care.
[209] The time constraints are layered on top of the trauma assessment of other issues going on simultaneously. The ER physician must re-configure the priority lists as he goes along.
[210] The standard of care required in communicating with other specialists is to be very clear about the clinical scenario, what is needed, what is being requested and what is available and unavailable.
[211] Dr. Greenway said that CritiCall has no access to information about a patient beyond what is conveyed by the person calling in. From a practical perspective, if CritiCall or the physician was told that the patient had a fractured limb and that there was a concern about the right upper quadrant, without being told that the limb was pulseless, the referral would be to a general surgeon. General surgeons fix abdominal bleeds. But a pulseless, fractured limb requires an orthopedic surgeon and a vascular surgeon. Here, CritiCall was going down the abdominal trauma route. If the communication was missing the key information needed to make the appropriate triage, it failed to meet the standard of care.
[212] When a request for transfer is resisted, the ER doctor must persist. The ER doctor should document resistance. Dr. Abounaja should not have stopped his efforts to get Mr. Baines out of the ER. He did not go to the lengths he should have. The ER doctor should start softly and ask if what he is seeking is understood, and if there is still resistance, there is a chain of command, and he should state the case, speak for the patient and then move up the chain of command and ask for another opinion.
[213] Dr. Greenway testified about ATLS and said that it was the standard for treating trauma patients in Ontario. He did not quarrel with Dr. Abounaja’s concern about internal bleeding. He acknowledged that Mr. Baines had a low blood pressure at 12:01 a.m. that deserved attention. However, it turned around quickly, and it was stable at 12:15 a.m. While the pulse was up and down, the vitals were quite reasonable. By midnight, the primary and secondary assessments were done. Dr. Abounaja was correct to identify the need for transfer. The nature of the injury alone was enough to tell him right from the beginning that the patient had to go. Getting the CT scans was a waste of time. They could have been done in a trauma centre where the CT scans could be done concurrent with fixing the leg.
Dr. Thomas Lindsay
[214] Dr. Thomas Lindsay has practiced as a vascular surgeon for over 30 years at the Toronto General Hospital. As a preliminary matter, the defence took issue with the plaintiffs calling Dr. Lindsay to provide expert testimony on the standard of care of an emergency medicine physician. Dr. Lindsay has taught medical students at all levels for years. He is an on-call specialist with CritiCall, and in that capacity receives calls for consultations, referrals and transfers from ER doctors on a continuing basis. He has done so since CritiCall’s inception and throughout its evolution. He was permitted to provide expert opinion evidence on the standard of care of an ER physician, based on core standards that all graduate medical students should know about the assessment and treatment of a fractured femur and pulseless leg, including prioritization in the context of multiple injuries, and the consequence of any delay in treatment.[^75]
[215] Dr. Lindsay testified that it is the duty of the most responsible physician, to identify Mr. Baines’ injuries, engage proper specialists, and make sure his injuries are dealt with expeditiously.
[216] Initially, an orthopedic surgeon is a specialist to be engaged because an orthopedic surgeon can manipulate the limb and possibly return vascularity, if it is in an atypical position. It should have happened as soon as the secondary ATLS survey was completed.
[217] In Dr. Lindsay’s opinion, Mr. Baines was ready for transfer to a trauma centre as soon as his x-rays were completed, and the diagnosis of an ischemic leg was made. Mr. Baines became relatively hemodynamically stable rapidly. At that point, the main problem was the ischemic limb.
[218] The standard of care required that Dr. Abounaja recognize the urgency of a fractured, pulseless limb. It required him to communicate to CritiCall that the patient had a fractured, ischemic limb, that it was urgent and that there were no local resources to deal with it. It required him to make sure that a transfer to a trauma centre took place in an appropriate time frame. He was required to advocate for his patient and to insist on transfer. In the event of a refusal, doing that included asking for another consultant or elevating up the chain of command, or trying somewhere else.
Dr. Homer Tien
[219] Dr. Homer Tien has practiced medicine since 1992. He completed specialist training in general surgery in 1998, in trauma surgery in 2002. He is a trauma surgeon and currently trauma team leader at Sunnybrook Health Sciences Centre. He was Sunnybrook’s Medical Director of Trauma Services from 2010 to 2016 and was the co-Chair of the University of Toronto’s Trauma Program from 2011 to 2016, where he was responsible for ensuring alignment in patient care and guidelines between Toronto’s two adult trauma centres. He has also been Chief Medical Officer and Chief Executive Officer of Ornge (Ontario’s air and land ambulance service for inter-facility transfers).[^76]
[220] I found Dr. Tien to be an expert in trauma and the treatment of trauma patients in Ontario, as well as the province wide inter-hospital trauma system, including the manner and circumstances in which trauma patients warrant transfer to a trauma centre. He was permitted to give opinion evidence on whether Dr. Abounaja’s treatment of Mr. Baines met the standard of care for a community health emergency physician in June 2011 and whether and at what time Mr. Baines warranted transfer to a trauma centre, considering his injuries.
[221] Dr. Tien testified that at each of the three interactions that Dr. Abounaja had with Dr. Lawless, at 2:16 a.m., 2:56 a.m. and 3:09 a.m., Mr. Baines’ clinical picture warranted urgent transfer to a trauma centre, based on only what was documented by CritiCall. He has no explanation for why the transfer was not accepted. He attributed it to systemic reasons and would not criticize Dr. Lawless.
[222] It was Dr. Tien’s opinion that Dr. Abounaja met the standard of care required of an ER physician treating a trauma patient and seeking to transfer the patient to a trauma centre. Dr. Abounaja’s assessment of Mr. Baines, his recognition of the immediate need to transfer him, based on the drop in blood pressure and also because of the known femur fracture and pulseless leg, his compliance with Dr. Lawless’ instructions thereafter and his continued advocacy for the transfer, all met the required standard of care.
[223] Dr. Abounaja was provided with instructions from Dr. Lawless. Dr. Tien testified that Dr. Abounaja had no option but to follow those instructions in order to achieve a patient transfer. He did not think Dr. Abounaja needed to escalate. Dr. Tien testified that there was nothing to escalate before 4:32 a.m. (sic) when Dr. Abounaja had done everything he was told to do and did not get a transfer.
[224] Dr. Tien testified that ATLS was the standard of care for ER doctors in assessing and resuscitating trauma patients in a community hospital in 2011.
[225] When Dr. Abounaja first called CritiCall, the primary issue was the suspected bleed from an intra-abdominal source. That is potentially life-threatening. Because of the location of the pain, the concern was an injured liver. The standard of care is to prioritize life-threatening issues. The blood pressure drop was likely the main reason for the call to CritiCall at 12:04 a.m. Dr. Abounaja was reassured over time. The priority moved from potential bleeding to the pulseless limb by 12:16 a.m., when Dr. Abounaja spoke for the first time with Dr. Lawless.
[226] Dr. Tien testified that the CT scans did not need to be done, but Dr. Abounaja had no practical choice in the matter because the Trauma Team Leader told him to do them. Dr. Lawless was the specialist giving advice, and there was no transfer until the CT scans were done.
[227] It was Dr. Tien’s opinion that it was not appropriate for Dr. Abounaja to ask for the assistance of the local on-call orthopedic surgeon at 12:19 a.m., after he was told to get the scans. The reason is because the patient would be in the CT scanner when the orthopedic surgeon arrived, and he would have to wait. If the CT scans were positive for injury, presumably the patient would be transferred to a trauma center and therefore the orthopedic surgeon would not be contributing. The life-threatening problem had to be dealt with and the orthopedic surgeon had no role in the treatment of intra-abdominal bleeding.
[228] The acceptance of the transfer at 4:48 a.m. was approximately 4 hours and 30 minutes from the first request. Dr. Tien said this was not acceptable and was far too long, given that there is a 6-hour window for revascularization of the leg. Dr. Tien’s opinion was that Dr. Abounaja was not responsible for any delays in having Mr. Baines transferred.
[229] In cross-examination, Dr. Tien agreed that if Dr. Abounaja failed to tell Dr. Lawless at 12:16 a.m. that Mr. Baines’ limb was pulseless it was substandard.
Dr. Ronald McMillan
[230] Dr. Ronald McMillan graduated from medical school in 1984 and completed residency in Emergency Medicine and became a Fellow of the Royal College of Physicians and Surgeons of Canada in 1988. He has practiced as an emergency physician since 1987. He has been a full-time ER physician since 2002 at William Osler Health Centre in Brampton, a large community hospital. He also worked as a trauma consultant at Rashid Hospital in the United Arab Emirates in 2006, and as a flight physician caring for critically injured patients from 2005 to 2007, and as an instructor of the ATLS course since 1988. He has also been a Field Hospital Medical Director with the Red Cross in disaster and conflict zones, including his current posting, overseeing the treatment of trauma patients in the Ukraine.[^77]
[231] Dr. McMillan is an expert in Emergency Medicine in the treatment of trauma patients, including the manner and circumstances in which a trauma patient warrants transfer to a trauma centre. He was permitted to give opinion evidence on whether Dr. Abounaja’s treatment of Mr. Baines met the standard of care for a community hospital ER physician in June 2011 and whether and at what time warranted transfer to a trauma centre, considering his injuries.
[232] Dr. McMillan’s opinion was that Dr. Abounaja met the expected standard of care in his assessment and care of Mr. Baines, which included recognizing the urgent need for transfer and taking appropriate efforts to obtain a transfer to a trauma centre. He was also of the view that Dr. Abounaja was obliged to follow the directions of Dr. Lawless.
[233] Dr. McMillan testified that when an emergency physician contacts CritiCall for a multiple trauma patient and is patched to a trauma team leader, it is to transfer a patient. “Full stop. Period.”
[234] He said that Dr. Abounaja had two concerns when he contacted CritiCall at 12:04 a.m., the risk that there was intra-abdominal injury and the fractured femur with the absent pulse. He assumed that Dr. Abounaja relayed this to Dr. Lawless at 12:16 a.m. He said that trauma team leaders usually ask questions.
[235] He disagreed with Dr. Greenway that Mr. Baines’ hemodynamic status was stable shortly after administration of Voluven. He said that there was no evidence that Mr. Baines had stabilized by 12:15 a.m.
[236] Dr. McMillan testified that because the priority was initially suggestive of an abdominal bleed, getting the CT scans was critical to the next move. If there is an intra-abdominal hemorrhage, the patient could die in transit. In fact, it was his opinion that an ER physician who did not undertake CT imaging in a case like this would fall below the standard of care. The only caveats to doing them are that the patient must be relatively stable for them to be done and doing them cannot delay transfer. Dr. Abounaja was obliged to follow the Trauma Team Leader’s instructions.
[237] In cross-examination, he agreed that he had assumed that Dr. Abounaja immediately contacted CritiCall when he learned of the CT results.
[238] Dr. McMillan disagreed with Dr. Greenway’s and Dr. Lindsay’s opinions that Dr. Abounaja should have requested the assistance of the orthopedic surgeon after midnight. He said that Mr. Baines was a multi-trauma patient, and the orthopedic surgeon does not have the capacity or expertise to treat a vascular injury. Dr. Abounaja was following the instructions of Dr. Lawless, and the expectation was that he would put in a call to Dr. Thompson if the CT scans were negative.
[239] It was Dr. McMillan’s view that at every contact with Dr. Lawless, Mr. Baines should have been transferred. He also disagreed with Dr. Lindsay’s opinion that in response to delays in the acceptance of Mr. Baines, Dr. Abounaja should have escalated up the chain of command through CritiCall. He said he is not familiar with the escalation process. His patients have always been accepted.
[240] Dr. MacMillan agreed on cross-examination that Dr. Abounaja’s documentation in his Emergency Record was not in keeping with the standards of the College of Physicians and Surgeons and was deficient. He did not mention it in his report because in his opinion the deficiencies did not affect the care and management of the patient.
The Expert Evidence Assessed
[241] As a preliminary matter, it is necessary to address the issue of impartiality. The defence took the position that Dr. Greenway purported to usurp the role of fact finder and opined on the credibility of Dr. Abounaja. Consequently, his evidence should be excluded in its entirety because he was not impartial. Less dramatically, but in a similar vein, plaintiffs’ counsel made similar complaints about Dr. Tien and Dr. McMillan. In providing their opinions on whether Dr. Abounaja met the standard of care, the plaintiffs’ experts and defence’s experts had different views about whether Dr. Abounaja told CritiCall and Dr. Lawless about the absent pulse in the leg before 2:50 a.m. There were times when each testified, directly or inferentially, about where they stood on underlying disputed facts. Obviously, this was not proper. However, there was no jury in this case. There is no danger that the trier of fact will confuse or conflate an expert’s role with hers. Where an expert expressed a view on an underlying disputed fact, that fact must be considered hypothetical until the trier decides the fact, based on the evidence properly admissible on the issue. That is how I considered it. Further, I considered whether any expert’s approach rose to the level of lack of impartiality, and I concluded none did.
[242] On the standard of care, I generally accept the opinion of the plaintiffs’ medical witness Dr. Greenway. He was well qualified and experienced. His evidence was fairly and reasonably based on the evidence and on the factual assumptions now found as a fact to be true. His evidence was entitled to significant weight, particularly in light of the clear, common sense and reasonable approach he took during examination in chief and cross-examination. I also accept the opinion of the plaintiffs’ medical witness Dr. Lindsay on the standard of care, limited to basic, core principles. Dr. Lindsay did not overstep the limitation and in that context gave his opinion in a clear, straightforward manner and did not fence on cross-examination.
[243] On the standard of care, I generally reject the opinion evidence of the defence witnesses, Dr. Tien and Dr. McMillan, where it conflicts with Dr. Greenway and Dr. Lindsay. There were basic flaws in their testimony, which I will address in setting out my findings.
Standard of Care - Findings
Transfer
[244] All of the experts testified that the standard of care required an ER physician in Dr. Abounaja’s position to recognize the urgency required to deal with a fractured, pulseless limb. All of the experts testified that the standard of care required Dr. Abounaja to seek an urgent transfer of Mr. Baines to a trauma centre because of his fractured, pulseless limb and to communicate that condition.
[245] Dr. Greenway, Dr. Lindsay and Dr. Tien agreed that if Dr. Abounaja failed to tell Dr. Lawless about the pulseless limb in the 12:16 a.m. call, he failed to meet the standard of care. Dr. McMillan simply assumed that Dr. Abounaja had told Dr. Lawless and would not answer the hypothetical question whether Dr. Abounaja met the standard of care, if he did not communicate the condition. Dr. McMillan’s failure to engage in the process reflected badly on his testimony.
[246] As I have found, Dr. Abounaja did not tell Dr. Lawless about the pulseless, fractured limb. I find that in failing to do so, in the 12:16 a.m. call, Dr. Abounaja failed to meet the standard of the care.
Accessing the Orthopedic Surgeon
[247] Dr. Greenway and Dr. Lindsay testified that the standard of care required Dr. Abounaja to access the on-call orthopedic surgeon early, meaning within 15 to 20 minutes of 11:40 a.m., to assist in the assessment and treatment of Mr. Baines’ pulseless, fractured leg.
[248] Dr. Greenway and Dr. Lindsay both testified that the on-call orthopedic surgeon was the only resource Dr. Abounaja had available, and he might be able to restore blood flow to the limb, at least temporarily.
[249] Dr. Tien testified that the standard of care did not require Dr. Abounaja to contact the orthopedic surgeon early. He said the standard of care was to prioritize suspected life-threatening injury. Having called CritiCall and being told to get the CT scans, Dr. Abounaja had no option but to get them. If called, the orthopedic surgeon might have to wait while Mr. Baines was in the scanner. If the scans were positive for injury, the patient would be transferred, and an orthopedic surgeon has no role in the treatment of abdominal injury. These reasons made no sense to me. The fact that the orthopedic surgeon might have to wait a few minutes pales in comparison to a pulseless limb with the clock ticking. Dr. Tien ignored the potential contribution an orthopedic surgeon can make in assessing causes of a pulseless limb and in possibly restoring critical blood flow, if only temporarily. He also ignored the fact that if the scans were negative for injury, the orthopedic surgeon had to be called according to Dr. Lawless’ plan. He ignored the potential waste of time waiting.
[250] Dr. McMillan also testified that the standard of care did not require Dr. Abounaja to contact the orthopedic surgeon early. He said that Mr. Baines was a multi-trauma patient. The orthopedic surgeon does not have the capacity to treat a vascular injury. The expectation was that if the CT scans were negative Dr. Abounaja would put in a call to the orthopedic surgeon. This also made no sense. The evidence was that an orthopedic surgeon does have a role, as noted above. Dr. McMillan also ignored the potential waste of time, waiting for the orthopedic surgeon, if the scans were negative.
[251] I reject the evidence of Dr. Tien and Dr. McMillan on this issue. I accept the evidence of Dr. Greenway and Dr. Lindsay. I find that the standard of care required Dr. Abounaja to access the on-call orthopedic surgeon within 15 to 20 minutes of 11:40 a.m., to assist in the assessment and treatment of Mr. Baines’ pulseless, fractured leg.
[252] Dr. Abounaja did not contact Dr. Thompson until 2:34 a.m. I find that in failing to contact Dr. Thompson within 15 to 20 minutes of 11:40 a.m., Dr. Abounaja failed to meet the standard of care.
Failure to Insist and Escalate
[253] Dr. Greenway and Dr. Lindsay each testified that the standard of care required Dr. Abounaja to persist in efforts to have Mr. Baines transferred and if a transfer was resisted, to advocate on the patient’s behalf and ask for another consultant or elevate up the chain of command to make sure that a transfer to a trauma centre took place in an appropriate time frame.
[254] Dr. Greenway testified that it simply did not make any sense for Mr. Baines, with a pulseless left limb, to be sitting in the ER for over 3 hours with not a lot happening.
[255] Dr. Tien testified that Dr. Abounaja met the standard of care in all respects and recognized the need for an immediate transfer. This was somewhat undermined when he admitted that he assumed that Dr. Abounaja ordered the CT scans because Dr. Lawless told him to and had not considered that Dr. Abounaja decided to get the CT scans before he spoke to Dr. Lawless. It was his opinion that there was nothing to escalate or challenge until the transfer was actually refused at 4:32 a.m. This makes no sense since a failure to transfer urgently is functionally a refusal. At the same time, it was his view that at every juncture, Mr. Baines’ clinical picture warranted a transfer. As well, he said that not transferring Mr. Baines until approximately 4 hours and 30 minutes after the first request was “not acceptable”. I find it difficult to accept that a failure to question, insist or escalate in circumstances moving in the direction of “not acceptable” is recognizing the need for an immediate transfer.
[256] Dr. McMillan also was of the view that Dr. Abounaja met the standard of care in all respects. His view was that Dr. Abounaja was obliged to accept Dr. Lawless’ instructions. In his view, Dr. Abounaja was not obliged to escalate. Dr. McMillan said that he has never used escalation. That is not a rationale for saying that Dr. Abounaja was not obliged to.
[257] There is no issue that Dr. Abounaja did not voice any opposition to Dr. Lawless’ plan. He agreed that he did not. When he was asked if he was satisfied with the plan, he said: “I don’t have an answer.”
[258] I accept that a general practitioner is entitled to rely on and defer to the advice they receive from consulting physicians. But I do not accept that is the case where the consultant has not been given the full picture. Dr. Lawless was not told about the pulseless limb at 12:16 a.m. As well, I do not accept that Dr. Abounaja was entitled to defer to the consultant later when Dr. Lawless did know about the pulseless limb. Dr. Abounaja was still the most responsible physician, and the evidence is overwhelming that Mr. Baines warranted an urgent transfer for his pulseless limb and there was no one at the Ajax Hospital to deal with it.
[259] I reject the evidence of Dr. Tien and Dr. McMillan on this issue. I accept the evidence of Dr. Greenway and Dr. Lindsay. I find that the standard of care required Dr. Abounaja to persist in efforts to have Mr. Baines transferred and if a transfer was resisted, to advocate on the patient’s behalf and ask for another consultant or elevate up the chain of command to make sure that a transfer to a trauma centre took place in an appropriate time frame.
[260] The evidence showed that Dr. Abounaja never once expressed any disagreement with or questioned Dr. Lawless’ plan because the plan did not address the urgency of the situation. If he had, according to Mr. Bailey and Ms. Hill, it would have been documented. Dr. Abounaja did not even need to know about the escalation process. A difference of opinion was enough to trigger it. In the urgent circumstances that Mr. Baines faced, Dr. Abounaja failed to meet the standard of care by not advocating on behalf of his patient and taking issue with a plan that delayed transfer beginning with the first discussion with Dr. Lawless and continuing throughout Dr. Abounaja’s care of Mr. Baines.
Failure to Access CT Scan Results Earlier
[261] The plaintiffs take the position that Dr. Abounaja breached the standard of care by failing to access the CT scan results of the abdomen earlier than approximately 2:30 a.m. There was evidence that there was a delay of approximately one hour between when they were posted and when Dr. Abounaja accessed them. Common sense tells me Dr. Abounaja should have been more vigilant. Although Dr. Abounaja could not say what he was doing in that period, Dr. Tien inferred from a review of the nursing records that Dr. Abounaja was with Mr. Baines. Dr. Tien also testified that usually the radiologist would call the physician when the results were posted. There was no evidence that happened. There was no evidence from any of the expert witnesses, who testified on standard of care, that the failure by Dr. Abounaja to access the results earlier was a breach of the standard of care. Consequently, I cannot find that it was.
[262] For these reasons, I conclude that Dr. Abounaja in his treatment of Mr. Baines, on June 23 and 24, 2011, fell below the standard of care reasonably expected of him in the circumstances.
Causation
The Issue
[263] The defence has acknowledged that Mr. Baines’ leg was amputated because of a delay in transfer to a trauma centre, and that an earlier transfer would have avoided the amputation. The issue focuses on the time of transfer. The issue to be decided is whether Dr. Abounaja’s breaches of the standard of care took Mr. Baines outside the window of time for salvageability of his limb or deprived him of a favourable decision to attempt to salvage the limb.
[264] The first matter to determine is the window of opportunity for salvageability of Mr. Baines’ limb.
The Expert Witnesses
[265] On the issue of causation, the plaintiffs called Dr. Thomas Lindsay, and the defendants called Dr. Robert Maggisano, both vascular surgeons.
Dr. Thomas Lindsay
[266] Dr. Thomas Lindsay has been a vascular surgeon at Toronto General Hospital since 1991. As part of his education in medicine, he completed a fellowship and post-doctoral fellowship in the effects of ischemia and reperfusion injuries. He has been on active staff at St. Joseph’s Health Centre since 2006. He was Head of the Division of Vascular Surgery at the University Health Network for several years. He was also Chair of the Speciality Committee in Vascular Surgery at the Royal College of Physicians and Surgeons of Canada. He is also a Professor of Vascular Surgery at the University of Toronto Medical School and was Chair of Vascular Surgery for several years, starting in 2003. He was permitted to provide expert opinion evidence respecting vascular injuries in the context of a fractured femur and pulseless leg, including the impact and consequences of delay in treatment.[^78]
Dr. Robert Maggisano
[267] Dr. Robert Maggisano has been a vascular surgeon at Sunnybrook Health Sciences Centre since 1981. He extended his post-doctoral training by attending a fellowship in quaternary vascular care. At Sunnybrook, he was Acting Head of Vascular Surgery from 1986 to 1999; Head from 1999 to 2006; and Chair of Vascular Surgery from 2012 to the present. He also had concurrent, continuing appointments at the University of Toronto as a lecturer starting in 1981; an Assistant Professor starting in 1986 and an Associate Professor from 2006 to 2015. He has been a full-time staff surgeon at North York General Hospital from 2009 and has cross appointments to McKenzie Health Network, St. Michael’s Hospital and University Health Network. He was a consultant Vascular Surgeon at the Toronto Hospital from 1983 to 2000; at Wellesley Hospital from 1991 to 2006; consultant staff at Humber Memorial Hospital from 1995 to 2000, and associate staff, Vascular Surgery at University Health Network, from 2015 to 2016. He was permitted to provide expert opinion evidence respecting the time at which Mr. Baines’ left limb was likely salvageable, as well as whether and at what time Mr. Baines warranted transfer to a trauma centre, considering his injuries.[^79]
Matters Not in Dispute
[268] There is no disagreement between Dr. Lindsay and Dr. Maggisano about some general characteristics of an ischemic limb and how it is repaired. A summary is necessary to help to contextualize the issues arising in their testimony.
[269] Mr. Baines suffered blunt trauma mid-thigh causing a displacement fracture to his femur. There was also injury to the superficial femoral artery in the area adjacent to the fracture.
[270] The femoral artery at the level of the groin divides into the profunda, which is an artery to the thigh and the superficial femoral artery, which is the main conduit, transiting through the thigh, down to the lower leg. Below the knee, the superficial femoral artery divides into three blood vessels that go through the calf and into the foot. Pulse waves of the superficial femoral artery are transmitted into the foot. The pulse points of the superficial femoral artery are the dorsalis pedis, which is on the top of the foot; and the posterior tibial artery, which is the area of the ankle.
[271] When the foot is pulseless, it means the continuity of the major blood supply has been disrupted and there is no longer a continual flow down the superficial femoral artery to below the knee and then into the calf and the foot. The tissue there is not getting the blood supply it requires. The muscle is the most sensitive of the tissues. Necrosis (death) to the tissue is the end result of tissue that does not get the required blood supply.
[272] Even when the superficial femoral artery is disrupted, there may be some degree of collateral blood supply to the lower leg through the profunda that can sustain tissue, but often not enough to sustain all tissue.
[273] The treatment when the artery is damaged, is surgical replacement of the damaged area. The procedure is to put in a temporary shunt. The shunt is a conduit to carry blood from above an area where circulation has stopped to below the area. It is a temporary by-pass of the area. It restores some circulation. It buys time so a vein can be harvested from the other leg. Then the actual repair is done by suturing the vein into the damaged artery in the proper position to restore the circulation fully.
[274] Dr. Lindsay and Dr. Maggisano agreed that Mr. Baines’ pulseless left leg was a medical emergency and the sooner he could be treated by revascularizing the limb, the better. Where they disagreed was how much time there was to do that successfully.
The Areas of Disagreement
[275] Dr. Lindsay’s opinion was that after 4 to 6 hours of ischemic time, the outer edge of the window for saving a limb is being reached. Dr. Maggisano’s opinion was that there was much more time. He was critical of the 6-hour rule. He said it is probably good as a teaching tool, but not in real-life situations. There are many other factors to consider.
[276] Dr. Lindsay testified that when oxygen is no longer circulating or it gets to a critically low level, the tissue starts to die. The longer tissue remains ischemic, the worse the damage to the tissue. As time passes, there is an exponential, as opposed to linear, increase in damage. He said that if Mr. Baines had been appropriately transferred to a trauma centre and treated, the chance of restoring circulation to the leg would be much like it is in the literature, 70 to 80 percent range, sometimes even higher. But the longer the delay, the worse the outcome. In discussing the effects of delay, he referred to a study of animals in which he was involved. It showed that the effect of ischemia after 3 hours did not lead to very much permanent damage, a 2 percent necrosis. However, at 4 hours there was 30 percent necrosis and at 5 hours almost 90 percent necrosis. He pointed out it was an animal model and there was no collateral blood supply. Animal studies are used because these types of experiments cannot be done on people, for obvious reasons.
[277] Dr. Maggisano was critical of Dr. Lindsay’s reliance on the animal study to show the correlation between time and necrosis, for two reasons. He said that in the animal study the lesions were not evolving and there was no collateral blood supply. In Dr. Maggisano’s opinion, Mr. Baines had both. The nature of the lesion is important, but most important is how much collateralization there is, because it may give time.
[278] Dr. Maggisano relied on a study done in South Africa, where they looked at 34 variables in 661 cases. The study concluded that the severity of tissue ischemia depends not only on the duration of the lack of blood supply, but also on the level of arterial injury, the extent of soft tissue damage, and the efficiency of collaterals.
[279] Dr. Lindsay was critical of Dr. Maggisano’s reliance on the study. He said that it showed patients who were revascularized on average within 2 hours. Some patients were not successfully revascularized, after between 4 to 6 hours of ischemia. Dr. Lindsay said that this probably meant those patients had no collaterals.
[280] Both Dr. Lindsay and Dr. Maggisano agreed that when the femoral artery has been injured there can be collateral blood supply through the profunda. Everyone has some degree of collateral blood supply. However, the degree of collateral supply varies from patient to patient. A patient who is young and healthy may not have the same degree of collateral supply as someone who has become dependent on collateral blood supply through building up plaque for many years in their arteries, which are slowly occluding. The degree of collateralization cannot be measured or predicted.
[281] The nature of the lesion is important. For example, at the extreme, there is no hope of revascularizing a completely mangled limb. Mr. Baines simply had one lesion, which Dr. Lindsay and Dr. Maggisano agreed, was at the level of the fracture of the femur. They agreed that there was a total occlusion of the superficial femoral artery when imaging was done at St. Michael’s Hospital at 7:43 a.m. Dr. Maggisano said what is unknown is whether the occlusion was total or partial when the lack of pulse was first discovered at 11:40 p.m. That is not discernable.
[282] An evolving lesion may give more time. Dr. Lindsay acknowledged that there is always some evolution, but he noted that Mr. Baines’ pulses disappeared shortly after he arrived at Ajax Hospital. He thought the injury must have been a direct artery contusion, or a dissection, perhaps in combination with an intimal tear. In his opinion, the injury had to be more than simply an intimal tear. The intima is just two or three layers of cells, the innermost layer of the artery structure, which if torn can roll up and flap over inside the artery. But they have almost no strength to block an artery. The mechanism of the accident also suggested the nature of the injury. The force required to occlude an artery is significant. Mr. Baines had a bad femur break and the force required for that is substantial. In his opinion, the artery was probably subjected to that same force from the pole or from the bone when it broke. He thought the profunda collaterals were also likely damaged and impaired. Dr. Lindsay said that although the pathology report did not show a dissection, the specimen may not have included that section of the artery. It is usually a short area of dissection.
[283] Dr. Maggisano thought Mr. Baines’ injury to the artery was probably evolving, an intimal flap or hematoma because Dr. Thompson wrote there was no pulsatile mass. A pulsatile mass is a big mass of blood that would flow into a pseudo aneurysm.
[284] Dr. Lindsay noted that Mr. Baines’ condition deteriorated with progressive symptoms of ischemia. He was able to wiggle his toe and feel when he was with the paramedics. Approximately 45 minutes later, no pulse could be detected. When Dr. Thompson assessed him, Mr. Baines could barely wiggle his toes and he had reduced sensation. Those are signs of significant ischemia to his leg. Dr. Lindsay said that when a patient does not have a pulse and his leg is becoming numb and he is less able to wiggle the toes, he is getting into the critical phase where the limb is in desperate need of oxygen through the blood supply. Quick action is needed to reverse it. The longer it takes, the more damage to the limb. As well, with the passage of time, there are consequences such as the release of toxic products into the body that can damage the kidneys and cause other metabolic problems, and the rate of salvage is less.
[285] Dr. Lindsay testified that 6 hours is getting to the outer part of the window for revascularization and saving the limb. It is not a hard stop at 6 hours. His view was that if Mr. Baines had been operated on within 6 hours, he would have retained his leg. He said that if he were evaluating Mr. Baines, if he came in with normal sensations and could wiggle his toes at 6 hours, he would take him and revascularize his limb. But that was not Mr. Baines’ situation. He was losing motor and sensory functions, which means that the limb was critically ischemic.
[286] Dr. Maggisano agreed that Dr. Thompson’s findings showed that the situation was deteriorating. But, he said that since there was sensation and movement of the toes, it means that there was still enough blood supply to keep the leg viable. It was probably through the collaterals. He said otherwise Mr. Baines’ limb would have been dead at 3:30 a.m. As it was, Mr. Baines’ limb was still easily revascularizable and salvageable at that point.
[287] Dr. Maggisano’s opinion was also that there was sufficient collateral flow to sustain Mr. Baines’ muscle and the amputation was not necessary, even as late as 8:00 a.m. Dr. Maggisano based his opinion principally on the CT angiogram done at St. Michael’s Hospital at 7:43 a.m. and on the surgical pathology report.
[288] The CT angiogram showed that the superficial femoral artery was totally occluded. However, according to Dr. Maggisano, the imaging sequence of the CT scan did not show everything, so it was not very helpful to the surgeons who were treating Mr. Baines on the morning of June 24. Dr. Maggisano has since viewed the more reliable actual slices of the scan. Based on his review, it showed the presence of dye in the popliteal artery and then no dye until the ankle. It also showed a central filling defect, possibly a clot, in the popliteal artery. The filling of the popliteal artery suggests to Dr. Maggisano that Mr. Baines had significant collateralization from the profunda femoris artery through the geniculars down the calf. He concluded that this had been keeping the left leg alive. Dr. Maggisano said this debunks the applicability of the time guideline from the animal studies.
[289] Dr. Maggisano also testified that because of the visualization of the popliteal artery with a small occult thrombus, he is able to comment on the viability and probability of success of a bypass. He said that one could easily do a bypass graft from above the superficial femoral artery blockage down to the popliteal artery. The popliteal clot could have been embolized. A shunt could then have been put in to revascularize the vein quickly.
[290] Dr. Maggisano testified that the pathology report shows the CT scan overcalled the degree of injury to the vessels. The report noted that the popliteal artery and posterior and anterior tibial arteries revealed patent lumens and soft walls. There was no thrombus. He says this also suggests that not only the popliteal artery but also the anterior and posterior tibial vessels, which were identified as open and soft on histology examination, could have been revascularized.
[291] Dr. Maggisano testified that when Dr. Campbell felt the calf muscles as “indurated and doughy” he interpreted it as showing advanced and irreversible muscle ischemia. But the surgical pathology report found that the soft tissues in the leg showed extensive hemorrhage with the hematoma extending from the knee to the lower leg and for at least 20 cm. This, in Dr. Maggisano’s opinion, explains Dr. Campbell’s physical finding. The pathology report identified no necrotic tissue. It was viable. In Dr. Maggisano’s view, this also debunks the applicability of the time guideline from the animal studies.
[292] Dr. Lindsay’s opinion was that the inferences, which Dr. Maggisano drew did not follow. Dr. Lindsay testified that the fact that the artery walls referred to in the pathology had patent lumens and were soft simply means they were normal. This is what he would expect to find in a non-atherosclerotic patient. The injury was upstream. The comment in the pathology report that there was no thrombus found was at odds with Dr. Maggisano’s conclusion that the filing defect in the popliteal artery was caused by a clot. There probably was a clot.
[293] Dr. Lindsay agreed that the CT angiogram showed some filling of the popliteal artery. He said that some collateral blood flow was to be expected. But the popliteal artery is not the tibial artery, which is the one which delivers the oxygen. The slices of the CT angiogram show some dye, meaning some blood, got into the popliteal artery. It is a very sensitive test. But it did not show how it got in and it cannot be quantified. There was probably a clot there, as Dr. Maggisano surmised. A stagnant flow predisposes to clotting. Dr. Abounaja never picked up a doppler [a handheld ultrasound device to estimate blood flow] and tested for popliteal flow. Dr. Thompson, using a doppler at 3:30 a.m., detected no flow in the popliteal artery. At the time of the CT scan, the doctors at St. Michael’s Hospital, also using a doppler, detected no flow. Dr. Lindsay’s opinion is that any collateral flow was not enough to maintain the leg. When Mr. Baines arrived at St. Michael’s Hospital at 6:15 a.m., he had no motor or sensory functions in the limb, as the records show. The muscle was so far gone that he could not wiggle his toes or move his foot or feel his foot, which meant that the collateral supply was not enough to keep the muscles and other tissue working. These are signs of advanced ischemia, which had progressed.
[294] In his examination in chief, Dr. Maggisano testified that Mr. Baines warranted transfer to St. Michael’s Hospital at any of the times that Dr. Abounaja called Dr. Lawless, at 12:16 a.m., approximately 2:30 a.m., and approximately 3:00 a.m. He also warranted transfer at approximately 3:30 a.m. when Dr. Thompson spoke to Dr. Lawless. Dr. Maggisano said that if Mr. Baines had been transferred to St. Michael’s Hospital at any of those times, his limb would likely have been salvaged. He also said with the advantage of his hindsight knowledge, which the treating physicians at St. Michael’s Hospital did not have, that Mr. Baines’ limb could have been revascularized and salvaged as late as 8 a.m.
[295] On cross-examination, Dr. Maggisano testified that if Mr. Baines had surgery at 1:30 a.m. or 2:30 a.m. or even 3:30 a.m. he very likely would have had a good outcome.
Inherent Time Requirements
[296] Dr. Lindsay and Dr. Maggisano testified about the inherent time requirements of a transfer of Mr. Baines from Ajax Hospital to St. Michael’s Hospital and revascularization of the limb. This means without delay by anyone.
[297] Dr. Lindsay testified that from acceptance of transfer to arrival of the ambulance at Ajax Hospital would be 45 minutes. Dr. Maggisano preferred to use the actual time and put the time at 30 minutes. They agreed that transport from Ajax Hospital to St. Michael’s Hospital should take 30 minutes. From arrival at St. Michael’s Hospital to arrival at the operating room should take 30 minutes. From arrival at the operating room to installation of a temporary shunt to restore circulation should take 30 minutes. Dr. Lindsay called his estimates the “ideal scenario.”
Analysis and Conclusion
The Window of Opportunity
[298] There is no reason not to accept the conclusions upon which Dr. Lindsay and Dr. Maggisano agreed. Among those areas of agreement is that all efforts should be made to minimize ischemic time.
[299] On the issue of the window of opportunity to salvage Mr. Baines’ limb, I prefer and accept the evidence of Dr. Lindsay for the reasons, which follow.
[300] Dr. Lindsay’s opinion about the nature of the lesion made more sense to me based on the nature of the accident and the force Mr. Baines’ limb was subjected to in the area of the artery, and how quickly the pulses disappeared.
[301] Dr. Maggisano concluded, from the slices from the CT scan that he viewed, that there was collateral flow from the popliteal artery. Dr. Lindsay’s evidence that the presence of a clot in the popliteal artery (which they both agreed was probably there), which is consistent with stagnation, made sense and supports his view of insufficient flow. Also, there is the fact that the flow was insufficient to show up on the CT scan, which surgeons view and rely on.
[302] Dr. Maggisano also relied on the pathology report to show there was no necrosis. There was evidence that a pathology report does not show everything. The histology report showed no evidence of thrombus. Yet, both Dr. Lindsay and Dr. Maggisano agreed there was probably a clot. As Dr. Lindsay testified, when a pathology report does not show a dissection, it does not mean that there was not one. The specimen examined may simply not have included that section.
[303] The histology report showed that the popliteal artery and posterior and anterior tibial arteries were in good shape. Importantly, as Dr. Lindsay testified, they were in the shape that he would expect in a non-atherosclerotic patient. The evidence was that such a patient would probably not have the degree of collateral blood supply of someone who had built up plaque for years.
[304] I accept Dr. Lindsay’s view and find that the retrospective indications of sufficient collateral flow from the popliteal artery to sustain the tissue is not compelling. Nor is it compelling when weighed against the evidence of Mr. Baines’ real-time presentation.
[305] As noted, Mr. Baines’ pulses disappeared about 45 minutes after the accident. There is no evidence one way or the other about collateral flow in the popliteal artery at that time, because Dr. Abounaja did not check with a doppler. By 1:10 a.m., the nurses recorded that Mr. Baines’ lower limb was cold to the touch. At around 3:30 a.m., when Dr. Thompson investigated with a doppler, he found no popliteal pulses. This means none from the tibial artery that carry the oxygen, as Dr. Lindsay pointed out. Dr. Thompson placed a 02 saturation monitor on Mr. Baines’ great toe and was unable to detect a trace of oxygen. Mr. Baines had decreased sensation and decreased extension. His foot was cold. His capillary refill was significantly diminished. Dr. Lindsay said that, at this point, Mr. Baines was losing motor and sensory function. I accept his opinion that Mr. Baines was then critically ischemic. Again, at St. Michael’s Hospital at 6:15 a.m. no popliteal pulses were detected by a doppler, and Mr. Baines’ condition had deteriorated further to the point of no sensation.
[306] I accept Dr. Maggisano’s evidence that if Mr. Baines had been operated on at 3:30 a.m., his limb would have been salvaged and he would have had good results. Dr. Lindsay never said that there was no collateral flow, just not enough to sustain the tissue, so that at 3:30 a.m., he was critically ischemic, and he was deteriorating.
[307] I accept Dr. Lindsay’s opinion that the window of opportunity for revascularization of Mr. Baines’ limb was 4 to 6 hours and if Mr. Baines had been operated on within 6 hours, he would have retained his leg. I accept that within 6 hours was the outer limit. I do not accept Dr. Maggisano’s opinion, based on what he called his retrospective knowledge, that the window extended beyond that.
Causation - The Law
[308] When the standard of care has not been met, the plaintiffs must still establish that the defendant’s negligence was the cause of some harm before the defendant will be liable for the harm.
[309] The test applied for causation is generally the “but for” test. Counsel for the plaintiffs spoke of “material contribution” in his submissions. There is a “material contribution” test that applies in some circumstances. As well, the phrase “material contribution” is also used in another context.
[310] In Donleavy v. Ultramar Ltd.,[^80] the Court of Appeal for Ontario, relying on Resurfice Corp. v. Hanke[^81] and Clements v. Clements,[^82] discussed the meaning and applicability of the two tests at paragraphs 62 to 73. At paragraphs 62 to 65 in Donleavy, the Court wrote:
The “but for” test is generally applied to establish causation in the tort of negligence. It requires a plaintiff to prove, on a balance of probabilities, that without the negligence of one or more defendants, the injury would not have occurred. ….
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. [Citation omitted]….A defendant only needs to be “a” cause of “some” harm to be found liable in tort[.]
The alternative, and exceptional, basis on which legal causation can be established is where the defendant’s act or omission “materially contributed” to the plaintiff’s risk of injury. As McLachlin, C.J.C. pointed out in Clements, at para. 46, “material contribution” eliminates the need to prove factual causation, and it is the appropriate test only in exceptional cases.
[T]he alternative basis for legal causation is the defendant’s material contribution to the risk of injury (and not … material contribution to the plaintiff’s loss or damage). Material contribution is not a test of causation but a policy-oriented rule that imposes liability on the basis of tortious risk creation.
[311] The Court wrote at paragraphs 68 and 69 that “the fact that there are multiple defendants, or more than one potential cause of an injury, is not a reason to depart from the “but for” test for causation.” The type of case where the material contribution to risk approach applies is where “but for” causation cannot be proven against any of multiple defendants, all negligent in a manner that might have in fact caused the plaintiff’s injury, because each can use a “point the finger” strategy to preclude a finding of causation on a balance of probabilities. The threshold for its application is the impossibility of proving which of two or more possible tortious causes is in fact a cause of injury.
[312] The Court noted at paragraph 72 that in the “but for” context, courts have used “contribution” in the context of multiple defendants. The language may have caused confusion. For example, a court may write: “Causation is made out under the “but for” test if the negligence of a defendant caused the whole of the plaintiff’s injury, or contributed in some not insubstantial or immaterial way, to the injury that the plaintiff sustained.” The conclusion in that sentence that one or more defendants “materially contributed” to a plaintiff’s injury or loss simply recognizes that the defendant’s negligence was not the only cause. It does not mean that the “but for” test has been departed from.
[313] In the present case, the “but for” test applies. The “material contribution” to risk test does not.
[314] 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. Lord Denning in Cork v. Kirby Maclean Ltd., [1952] 3 All E.R. 402 at 407, provided a common sense, working explanation of the “but for” test:
If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not the cause of the damage.
[315] The “but for” causation test must be applied in “a robust and pragmatic” way. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury: Clements v. Clements.
[316] Proof that meeting the standard of care would have afforded a chance to avoid an outcome is not sufficient. A mere loss of a chance is not compensable in medical malpractice cases: Salter v. Hirst.[^83]
[317] In Beldycki Estate v. Jaipargas,[^84] the Court of Appeal for Ontario wrote:
It is not enough for a plaintiff to prove that adequate diagnosis and treatment would have afforded the plaintiff a chance of avoiding the unfavourable outcome unless the chance surpasses the threshold of “more likely than not.”
The Issue
[318] As noted, the issue focuses on the time of transfer. The issue to be decided is whether Dr. Abounaja’s breaches of the standard of care took Mr. Baines outside the window of time for salvageability of his limb or deprived him of a favourable decision to attempt to salvage his limb.
The Position of the Plaintiffs
[319] The position of the plaintiffs is that the overwhelming preponderance of the evidence is that if Dr. Abounaja had reported Mr. Baines’ dysvascular limb at any time prior to 2:50 a.m. to CritiCall, Mr. Baines would not have lost his limb. The delay contributed in a substantial and material way to the whole of the delay, which cost Mr. Baines his leg.
The Position of the Defendant
[320] The position of the defendant is that the plaintiffs have failed to establish that “but for” a breach of the standard of care by Dr. Abounaja, Mr. Baines would have been transferred substantially earlier. Dr. Abounaja was not the cause of the delay. There are evidentiary voids in the evidence, which make key elements in the chain of causation speculative. Even with an earlier transfer, Mr. Baines’ leg was always salvageable.
The Analytical Framework
[321] There is an analytical framework, which applies for determining whether the “but for” test has been met in cases of negligent omission. In Donleavy, van Rensburg, J.A. wrote:
In the case of a negligent omission, as in the present case, the application of the “but for” test requires the trier of fact “to attend to the fact situation as it existed in reality the moment before the defendant’s breach of the standard of care, and then to imagine that the defendant took the action the standard of care obliged [it] to take, in order to determine whether [its] doing so would have prevented or reduced the injury”: Sacks, at para. 46
[322] The framework involves determining what actually happened. Next, there must be a determination of what would likely have happened, if the defendant had not breached the standard of the care. This step is an imaginative reconstruction of reality. The next step involves a comparison of the impact of the breach, so quantified, on the actual timing. Finally, it must be determined whether any delay, so quantified, caused the injuries.[^85]
[323] In the present case, the analytical framework requires that the following questions must be answered:
(i) What actually happened?
(ii) Hypothetically, whether and when would Mr. Baines have arrived at St. Michael’s Hospital to obtain definitive treatment, if Dr. Abounaja had not breached the standard of care?
(iii) Did any breach by Dr. Abounaja have an impact on the actual timing of Mr. Baines’ arrival at St. Michael’s Hospital, compared to the hypothetical timing?
(iv) Did any delay, found in (iii) take Mr. Baines outside the window of salvageability of his limb or deprive him of a favourable decision to attempt to salvage the limb?
What Actually Happened?
[324] To summarize, this is what actually happened:
• Mr. Baines was discovered to have absent pedal pulses at approximately 11:40 p.m. and Dr. Abounaja was aware of that.
• Dr. Abounaja contacted CritiCall at 12:04 a.m. and spoke to Dr. Lawless at 12:16 a.m. Dr. Abounaja did not tell Dr. Lawless about the pulseless limb. Mr. Baines was not transferred.
• At 2:34 a.m. Dr. Abounaja reported the results of the CT scans to CritiCall and then paged Dr. Thompson. Shortly after 2:34 a.m., Dr. Abounaja conferred by telephone with Dr. Thompson.
• At 2:50 a.m. Dr. Abounaja contacted CritiCall, reported the pulseless limb and spoke to Dr. Lawless at 2:56 a.m. Mr. Baines was not transferred.
• Dr. Abounaja called CritiCall at 3:02 a.m. and spoke to Dr. Lawless at 3:09 a.m. Mr. Baines was not transferred.
• At all times Mr. Baines warranted a transfer for his pulseless limb. Dr. Abounaja never took issue with Dr. Lawless’ failure to transfer or with the plan Dr. Lawless devised that delayed transfer.
• Dr. Thompson personally assessed Mr. Baines at the hospital at 3:28 a.m. He spoke to Dr. Lawless and requested a transfer. Mr. Baines was not transferred.
• Dr. Thompson called CritiCall at 3:45 a.m. After the involvement of the Medical Director of CritiCall, Dr. Thompson was advised that Mr. Baines was accepted for transfer at 4:49 a.m.
• Mr. Baines arrived at St. Michael’s Hospital at 6:15 a.m. This was 6 hours and 35 minutes of ischemia time (11:40 a.m. to 6:15 a.m.).
• Mr. Baines was taken to the operating room for surgery at 8:35 a.m., where surgery began at 9:15 a.m. and his left leg was amputated. This was 9 hours and 35 minutes of ischemia time (11:40 a.m. to 9:15 a.m.).
Dr. Lawless’ Part
[325] Dr. Abounaja has been found to have breached the standard of care by failing to communicate Mr. Baines’ condition to Dr. Lawless. He did not do so until 2:50 a.m. The position of the defence is that causation cannot be established on the basis of this breach because it was Dr. Lawless who controlled at all times whether a transfer was granted, not Dr. Abounaja. It cannot be concluded that, “but for” the breach of the standard of care, Dr. Lawless would have granted the transfer.
[326] I find that even with no mention of the pulseless limb at 12:16 a.m., there is overwhelming evidence that Mr. Baines merited a transfer to a trauma centre. Yet, Dr. Lawless did not transfer him. Later, after 2:50 a.m. when there was no issue that Dr. Lawless knew about the pulseless limb, he did not transfer Mr. Baines. When Dr. Thompson spoke to Dr. Lawless, after 3:28 a.m., and all of Dr. Lawless’ instructions had been complied with, and Dr. Lawless knew that the Ajax Hospital did not have vascular services, he did not transfer Mr. Baines. None of the experts criticized Dr. Lawless’ handing of the matter, at any point. They did not have enough information to do so. Dr. Lawless did not testify. There is an evidentiary void. There is no evidence why he made the decisions he did. There is no evidence he would have proceeded differently at 12:16 a.m., if he had been advised of the pulseless limb. In fact, the inference to be drawn from what he actually did over time, leads to the conclusion he would not have done anything different at 12:16 a.m. or at any other time.
[327] I accept that Dr. Lawless was “a” cause of delay, but that does not preclude Dr. Abounaja from being “a” cause of delay.
Escalation
[328] Dr. Lawless’ involvement does not end the matter. Dr. Abounaja was found to have breached the standard of care by failing to persist in efforts to have Mr. Baines transferred by not voicing any opposition to Dr. Lawless’ plan and, when a transfer was not provided, by failing to advocate for Mr. Baines and ask for another consultant or elevate up the chain of command to get a transfer in an appropriate time frame.
[329] The plaintiffs’ position is that if Dr. Abounaja had done that at 12:16 a.m. or at anytime after, the escalation process at CritiCall would have been engaged and Mr. Baines would have been transferred.
[330] The countervailing position is that it is impossible to know when the escalation process would have been implemented. Dr. Abounaja was not aware of the process. Dr. McMillan testified that he was not aware it. It was ultimately the third party CritiCall dispatcher who escalated to Dr. Clasky, the medical director, on her own initiative. In the circumstances, the escalation process was in the hands of third parties, and it is impossible to quantify whether and when it would have been engaged and the result. That is the defendant’s position.
[331] Mr. Bailey, the CritiCall agent, testified that CritiCall had policies in place for disputes between referring physicians and consultants. Ms. Hill, another agent, testified that if Dr. Abounaja had requested a transfer that was denied, or if there was no consensus between the consultant and referring physician, she would document it. Further, she said that if that had occurred, she would have escalated the request to the Medical Director, in accordance with CritiCall protocol.[^86] She also testified that a Medical Director, who provides guidance and assistance, is always on call for agents to refer to. Ultimately, Ms. Hill did escalate the matter to the Medical Director when Dr. Thompson could not obtain a transfer for Mr. Baines. It took only 17 minutes from the call out to the Medical Director until Dr. Thompson was advised the transfer was granted.
[332] I accept the plaintiffs’ position. CritiCall had an escalation policy. Both agents, who were involved in this case, were aware of it. Dr. Abounaja simply had to take issue with the plan that would cause significant delay in Mr. Baines being transferred. It took over 2 hours to arrange for the CT scans and get the final result. The evidence establishes that if Dr. Abounaja had taken issue with the plan, escalation would have been implemented, because it was done when Dr. Thompson had difficulties getting a transfer. The irrefutable evidence is that Mr. Baines warranted a transfer at 12:16 a.m. The evidence of three of the experts was that doing the CT scans before transfer was a waste of time. It is more than probable that the Medical Director would have intervened and arranged for Mr. Baines to be transferred after the 12:16 a.m. call. The evidence established that when escalation was implemented, it took 17 minutes for the transfer to be granted. I find that it is more probable than not, that if Dr. Abounaja had taken exception to the plan and pressed for a transfer, the issue would have been escalated by the call agent to the Medical Director and Mr. Baines would have been transferred in short order.
[333] The defendant also argues that “but for” causation cannot be proved because Dr. Abounaja contacted CritiCall at later times when Mr. Baines’ limb could have been salvaged. This does not recognize that Dr. Abounaja’s initial breach of the standard of care in not challenging the plan that failed to meet his patient’s need for an urgent transfer was the same, continuing breach.
Hypothetically, whether and when would Mr. Baines have arrived at St. Michael’s Hospital and obtained definitive treatment if Dr. Abounaja had not breached the standard of care?
[334] Since this is an idealized scenario, I am using Dr. Maggisano’s evidence that for someone in Mr. Baines’ condition, it should take 30 minutes from acceptance of the transfer for the ambulance to arrive at Ajax Hospital; 30 minutes for the patient to arrive at St. Michael’s Hospital ER; 30 minutes for the patient to arrive at the operating room; and 30 minutes for installation of the temporary shunt to revascularize the limb. As I have found, the window of opportunity for revascularization is 4 to 6 hours. This means that Mr. Baines had to arrive at St. Michael’s Hospital on or before 4:40 a.m. for his limb to be revascularized by 5:40 a.m., based on the evidence that his limb was first discovered to be pulseless at 11:40 p.m.
[335] If Dr. Abounaja told Dr. Lawless about the pulseless limb at 12:16 a.m. and if Dr. Lawless had approved a transfer, Mr. Baines would have arrived at St. Michael’s Hospital at 1:16 a.m. Total ischemia time would have been 1 hour and 36 minutes (11:40 a.m. to 1:16 a.m.). The shunt would have been installed by 2:16 a.m. Total ischemia time then would have been 2 hours and 36 minutes (11:40 p.m. to 2:16 a.m.).
[336] If Dr. Lawless had not accepted a transfer and Dr. Abounaja had disputed the plan, the escalation process would have added approximately 17 minutes to the time requirements. Mr. Baines would have arrived at St. Michael’s Hospital at 1:33 a.m. Total ischemia time would have been 1 hour and 53 minutes (11:40 a.m. to 1:33 a.m.). The shunt would have been installed by 2:33 a.m. Total ischemia time then would have been 2 hours and 53 minutes (11:40 p.m. to 2:33 a.m.).
Did any breach by Dr. Abounaja have an impact on the actual timing of Mr. Baines’ arrival at St. Michael’s Hospital compared to the hypothetical timing?
[337] Mr. Baines was actually accepted for transfer at 4:48 a.m. and arrived at St. Michael’s Hospital at 6:15 a.m. By that time of arrival, the total ischemia time was 6 hours and 35 minutes (11:40 p.m. to 6:15 a.m.). His limb was assessed by the receiving physicians to be outside the window of time for salvageability, very shortly after his arrival.
[338] Hypothetically, if Mr. Baines had arrived at St. Michael’s Hospital at 1:33 a.m. instead of 6:15 a.m., the delay is 4 hours and 42 minutes.
[339] However, in actual timing there was a delay of 1 hour and 27 minutes from acceptance of transfer to arrival at St. Michael’s Hospital, which is a delay of 27 minutes more than in the hypothetical version. That must be deducted from the delay ascribed to Dr. Abounaja in the hypothetical version, reducing the impact to 4 hours and 15 minutes of delay.
[340] If Dr. Lawless would have refused the transfer anyway even if advised of the pulseless limb, another 17 minutes for the escalation process should be deducted from the delay ascribed to Dr. Abounaja in the hypothetical version, reducing the impact to 3 hours and 58 minutes of delay.
Did any delay take Mr. Baines outside the window of salvageability of his limb or deprive him of a favourable decision to attempt to salvage his limb?
[341] The window of opportunity for salvage was 4 to 6 hours from 11:40 p.m. At 6:15 a.m., Mr. Baines had 6 hours and 35 minutes of ischemia and that was at arrival. He was outside the window of salvageability of his limb. That is what the receiving physicians concluded. That also accords with my findings.
[342] The impact of Dr. Abounaja’s breach (non-disclosure of the pulseless limb) on arrival time at St. Michael’s Hospital is 4 hours and 15 minutes. But for that delay, Mr. Baines would have arrived at St. Michael’s Hospital at 2:00 a.m. Mr. Baines would have had 2 hours and 20 minutes of ischemia time. If his limb was revascularized within 1 hour, he would have had 3 hours and 20 minutes at the time of the surgery.
[343] Apart from non-disclosure, the impact of Dr. Abounaja’s breach (failure to insist on a transfer leading to escalation) on arrival time is 3 hours and 58 minutes. But for that delay, Mr. Baines would have arrived at St. Michael’s Hospital at 2:17 a.m. Mr. Baines would have had 2 hours and 37 minutes of ischemia time. If his limb was revascularized within 1 hour, he would have had 3 hours and 37 minutes at the time of surgery.
[344] On this analysis, Mr. Baines would have arrived at St. Michael’s Hospital, but for Dr. Abounaja’s delay, well within the window of salvageability of 4 to 6 hours from onset of ischemia. The delay attributed to Dr. Abounaja for either of his breaches of the standard of care took Mr. Baines outside of the window of salvageability for revascularization of his limb.
[345] I should add that a transfer shortly after the 12:16 a.m. call means that Mr. Baines would arrive at St. Michael’s Hospital not having had the CT scans. The physicians at St. Michael’s Hospital would have to decide if they were to be done. According to the evidence, it took about 1 hour and 15 minutes to do them at Ajax Hospital. Perhaps they could have been done more quickly at St. Michael’s Hospital or not at all. Even if that time is taken into consideration, Mr. Baines would still be within the window of salvageability at the time of surgery but for Dr. Abounaja’s breach.
[346] To be clear, I find that Dr. Abounaja’s breach in failing at 12:16 a.m. to insist on a transfer leading to escalation caused a delay in transfer of Mr. Baines to St. Michael’s Hospital of 3 hours and 58 minutes and took Mr. Baines out of the window of time for salvageability of his limb.
Evidentiary Void
[347] The defendant’s position is that there is an evidentiary void because the plaintiffs did not call Dr. Campbell as a witness to testify. He is the vascular surgeon who operated on Mr. Baines at St. Michael’s Hospital. The submission is that there is no evidence about what decision about amputation he would have made, if Mr. Baines had arrived at St. Michael’s Hospital at any time prior to 6:15 a.m. They say that all that can be concluded is that Mr. Baines has lost a chance that the decision might have been different.
[348] I disagree. The plaintiffs called Dr. Lindsay, a vascular surgeon and an expert in ischemic limbs. His evidence was that the window of opportunity for revascularizing a limb is 4 to 6 hours. He also said that if Mr. Baines had been operated on within 6 hours of the onset of ischemia, he would have retained his limb. There was no contrary evidence, certainly not from the Dr. Maggisano, the expert on vascular surgery called by the defendant. Their evidence satisfies me that the chance that Dr. Campbell would have proceeded with revascularization of Mr. Baines’ limb surpasses the threshold of more likely than not, if Mr. Baines had arrived at St. Michael’s Hospital with 2 hours and 37 minutes of ischemia time.
Was the Window Closed?
[349] The defendant takes the position that “but for” causation cannot be established. The defence argues that this is because when Dr. Abounaja ceased to be Mr. Baines’ most responsible physician and Dr. Thompson took over, the limb was still salvageable.
[350] The defendant submits that if a transfer had been granted at 3:30 a.m. when Dr. Thompson took over, Mr. Baines would have arrived at St. Michael’s Hospital at 4:30 a.m. and been taken to the operating room at 5:00 a.m., and his limb would have been revascularized temporarily at 5:30 a.m. This would be 5 hours and 50 minutes of ischemia time. This is based on hypothetical timing.
[351] I find that the call between Dr. Thompson and Dr. Lawless more likely took place at 3:40 a.m. because Dr. Thompson put the page out and waited 10 to 15 minutes for Dr. Thompson to return his call. On that basis, Mr. Baines would have arrived at St. Michael’s Hospital at 4:40 a.m., meaning 6 hours of ischemia time at temporary revascularization.
[352] Translating this into real life, Dr. Thompson had just arrived at the hospital. He spoke to Dr. Abounaja. Then, he paged Dr. Thompson and went to meet Mr. Baines for the first time and began assessing him. He was interrupted by the call from Dr. Lawless. After, he resumed his assessment Mr. Baines. I pause to mention that the expert vascular surgeon, Dr. Maggisano, complimented Dr. Thompson on the thoroughness of his investigation and report. Sometime after he arrived, he had to review the new x-rays. He also attempted to restore blood flow by carefully manipulating the broken, pulseless limb. Layered on that, Dr. Thompson would have had to obtain a transfer and get the patient ready for transfer and have him arrive at St. Michael’s Hospital, all within 1 hour, to achieve no more than 6 hours of ischemic time, where the window is within 6 hours. There is no leeway for even the most unavoidable, mundane delays. To accept the submission would be to reject a pragmatic approach to causation. I do not accept, on the basis of this submission, that causation cannot established.
Conclusion
[353] For these reasons, I find Dr. Abounaja’s breach of the standard of care, specifically for failing to insist on an urgent transfer of Mr. Baines leading to escalation, caused the delays that took Mr. Baines outside the window of opportunity for revascularizing his limb and deprived him of a favourable decision to attempt to salvage his limb. I find that “but for” these delays, Mr. Baines would likely have had surgery to revascularize his limb. Based on the evidence of Dr. Lindsay and Dr. Maggisano, I find that “but for” these delays, Mr. Baines’ left limb would not have been amputated.
Damages
[354] It is a basic principle that damages are only to put the plaintiff in as good a position as he would have been in, absent the defendant’s negligence. A defendant is not liable to a plaintiff for a loss that he would have suffered without the defendant’s negligence. In this case, Mr. Baines’ pre-negligence condition is not his pre-accident condition, but his condition after having suffered injuries from the motorcycle accident. The parties have agreed on a formula for damages. The quantum of damages depends on my findings of which of two scenarios applies. The onus is on the plaintiff to prove his entitlement to the amount agreed upon, without deduction.
If, absent any negligence on the part of Dr. Abounaja, Mr. Baines would have made a full recovery within approximately one year, then he is to receive the full amount of the agreed upon damages.
If, absent any negligence on the part of Dr. Abounaja, Mr. Baines would not have required an amputation but would have been left with a permanently disabled leg, then Mr. Baines is to receive 65% of the agreed upon damages.
[355] On this issue, the plaintiffs rely primarily on the expert evidence of Dr. Mark MacLeod. The defendant relies primarily on the evidence of Dr. David Stephen. Each of these experts provided a very impressive Curriculum Vitae. A brief summary is all that is necessary.
Dr. Mark MacLeod
[356] Dr. Mark MacLeod is an orthopedic surgeon. Since 1993 he has specialized in trauma and post-trauma reconstruction to the lower extremities at the London Health Sciences Centre, a Level 1 Trauma Centre, serving southwestern Ontario. He is an Assistant Professor at the University of Western Ontario Medical School, where he teaches and evaluates all level of medical students. He has also been an examiner for the Orthopedic Surgery Board of the Royal College of Physicians and Surgeon of Canada. He has extensive experience with the treatment, management and long-term outcome of multiple trauma patients. He was permitted to provide expert opinion evidence in respect to orthopedic surgery, generally, and traumatic injuries, their treatment, long-term outcome and the impact and the consequences of any delay in treatment.[^87]
Dr. David Stephen
[357] Dr. David Stephen has been a qualified orthopedic surgeon since 1992 and completed two subspecialities in trauma surgery in 1993 and 1994. He has been an orthopedic surgeon at Sunnybrook Health Sciences Centre since 1994. Since 2003, he has been Medical Director of Orthopedic Trauma at Sunnybrook and at Women’s College Hospital Sciences Centre. He also has held concurrent appointments as medical staff at St. John’s Rehabilitation Hospital since 1994. He has been an Associate Professor in Orthopedic Surgery at the University of Toronto Medical School since 1997, and before that, in turn, as an Assistant Professor and a lecturer from 1994. Since 2008 he has also had an appointment as courtesy staff at Toronto Western Hospital. He was permitted to provide expert opinion evidence respecting the impact and consequences of any delay in treatment of Mr. Baines’ injuries, and whether and to what extent Mr. Baines would have suffered substantial and permanent functional limitations due to the injuries to his left leg.[^88]
The Evidence
[358] Dr. MacLeod testified that there were a number of factors that favoured a good result for Mr. Baines’ femur fracture. It was a simple fracture, with a few flakes of bone around the fracture line. This type of fracture has a high rate of union. It was closed, meaning no disruption of the soft tissue, so the bone was not contaminated by the external environment, meaning there was a low risk of infection or soft tissue loss. The joint surfaces at either end were not involved. The sciatic nerve was intact. There was no knee dislocation. There was a proximal fibular fracture, but he would have expected a full recovery from it. Mr. Baines was young, not overweight and had no significant comorbidities. He had good access to initial care.
[359] Dr. MacLeod deferred to the vascular surgeons in regard to the vascular injury but said there was no greater risk of malunion because of it. There was no reason to assume that there would have been any muscle loss with timely revascularization. There was no increased risk of amputation in the future due to infection because of the vascular injury since the break was closed. There was no increased risk of nerve damage because the sciatic nerve was intact. He deferred to the vascular surgeons in regard to secondary vascular supply abnormalities.
[360] Dr. Lindsay, the vascular surgeon called by the plaintiffs, testified that “in clinical experience, we know from the published literature that after four to six hours you get on the curve where the muscle starts to die and that will impair the long-term function of the limb even if you’ve restored circulation to it.”[^89] Dr. Maggisano, the vascular surgeon called by the defendant, testified that if Mr. Baines had surgery when Dr. Thompson examined him [approximately 3:30 a.m.], his limb “was deteriorating, but it’s still easily revascularizable and salvageable at this point.”[^90] He agreed that if Mr. Baines had surgery at that point, he was “very likely” to have “a very good outcome”.[^91] In light of this evidence, I conclude that “appropriate treatment” was revascularization of the limb at approximately 4 hours of ischemia time, or earlier.
[361] Dr. MacLeod testified that if appropriate treatment had been given in a timely fashion for the vascular injury, Mr. Baines would not have had the muscle and soft tissue loss that ensued, and his femur fracture could have been treated by standard techniques and he would have gone on to make a very good recovery.
[362] Dr. MacLeod testified that Mr. Baines would have been in hospital a couple of days after surgery. For the fracture, there would have been 4 to 6 weeks’ limitations on weight bearing, but full weight as soon as he felt comfortable. His fracture would have been healing in 6 weeks and solidly healed by 3 months. The vast majority of recovery would have occurred in the first 12 months, assuming appropriate treatment.
[363] Dr. MacLeod testified that Mr. Baines would have had a 12-to-18-month period of recovery, but he should have returned to normal functionality with minimal accommodation or changes in activity by 12 months. In 12 months, people see the vast majority of recovery and return to their functional status.
[364] He acknowledged that most people with isolated femur fracture have long-term knee pain to some extent. He was involved in a study of it. He said that the presence of knee pain does not necessarily mean that people have reduced level of function or are precluded from returning to a high-functional status. There is a common misperception that a recovery means that a person is exactly the same as they were prior to the accident and that is not true.
[365] Dr. MacLeod acknowledged that it sounded like Mr. Baines’ employment was high demand functional activity. He noted that professional athletes can return to work after similar injuries. He agreed that, in his report, he wrote that Mr. Baines could have been capable of moderate functional lower extremity activities. He testified that “is at a minimum.” He said that he could see no reason why Mr. Baines could not have returned to his previous level of function, if that was his desire.
[366] Dr. Stephen had a different opinion. He testified, based on his knowledge of the literature and his experience with femur fracture with a vascular injury, that if Mr. Baines’ leg had been revascularized, his recovery would take a minimum of 2 years. He would likely be left with a substantial and significant permanent impairment, which would require him to transition from a heavy repetitive job to a sedentary one.
[367] Dr. Stephen testified that Mr. Baines’ femur fracture was significantly displaced. He also said that an injury to knee and a fibular fracture close to the knee joint can be a marker for a ligament injury. He said that with the vascular injury there was significant risk of chronic pain, activity limitations, potential infection, even delayed amputation, nerve impairments, muscle weakness, loss of function and because of a lower fasciotomy, cosmetic deformity with a virtual certainty of skin graft.
[368] Respecting the extent of the orthopedic injury, Dr. Stephen agreed that Dr. Thompson was in the best position to assess the extent of the injury. Dr. Thompson testified he would have been able to nail down the femur and fix it in half an hour.
[369] On the issue of the complications, which Dr. Stephen cited, arising from the combination of femur fracture and vascular problem, he relied on the “LEAP” study. He acknowledged in cross-examination that the patient population involved in the study was different from Mr. Baines. They had injuries below the knee, many with mangled limbs, who were at risk for amputation and none of the complications rose above a 30 percent probability.
[370] Dr. Stephen also admitted that his personal experience in dealing with a patient with a vascular and femur fracture was rare.
[371] A significant portion of Dr. Stephen’s opinions were not contained in his report, including his opinion that it would take well over a year for Mr. Baines to recover from his injuries. Plaintiffs’ counsel objected to the introduction of those portions of Dr. Stephen’s testimony on that basis. The issue was resolved on the basis that I would determine what weight, if any, to give such evidence.
Analysis and Conclusion
[372] I put little weight on Dr. Stephen’s testimony. Much of it was inadmissible, as it was outside the scope of his report. And in any event, it was largely based on speculation about risks, which were not shown to be based on any established degree of probability applicable to the circumstances of this case. I accept Dr. MacLeod’s evidence in its entirety. He gave his evidence in a straightforward manner, deferring to the expertise of others. I have considered the evidence of Dr. Thompson. I have also considered Dr. Lindsay’s evidence and Dr. Maggisano’s evidence.
[373] The alternatives here do not define “full recovery” or “permanently disabled leg.” Since disability is a functional criterion, I conclude that my focus should be on function. In fact, the defendant submitted that I should be considering whether Mr. Baines could return to his former employment within one year of his motorcycle accident. I do not see Mr. Baines on a par with a professional athlete. I accept that he probably would have some degree of knee pain. From a functional perspective, the issue is not would Mr. Baines have returned to his former employment, but could he. Dr. MacLeod testified that Mr. Baines could have returned to normal functionality with minimal accommodation or changes in activities by 12 months. It was also his opinion that there was no reason why Mr. Baines could not have returned to his previous level of function within 12 months, if that was his desire. I conclude that based on a functional approach to the issue, Mr. Baines probably would have made a full recovery within approximately one-year, absent negligence on the part of Dr. Abounaja.
Negligence of the Hospital (Pierringer Agreement)
[374] The plaintiffs’ claim against Dr. Abounaja is for his several liability. Since Dr. Abounaja has been found liable, it is now necessary for me to consider apportionment of fault between Dr. Abounaja and the other defendants in a Pierringer Agreement. In closing submissions, counsel for Dr. Abounaja referred only to the Ajax Hospital.
[375] The defence position is that Ajax Hospital is directly responsible for 30 minutes of delay in getting Mr. Baines to St. Michael’s Hospital after the transfer request was finally accepted at 4:48 a.m. Despite the urgency of the situation, its staff inexplicably failed to have Mr. Baines ready for transfer in time for the patient to leave once EMS arrived at 5:12 a.m., causing an unnecessary delay at a key juncture. Liability should be apportioned between Dr. Abounaja, and the Hospital proportionate to the amount of the total delay that each caused.
[376] In cross-examination, Dr. Lindsay testified that the expected standard is that the responsible physician will tell staff that when the EMS arrives, the patient must be ready. Then it is the responsibility of the hospital and staff to make sure the patient is ready. However, he said that in reading the record he could not understand what was actually responsible for the delay.[^92] Dr. MacLeod testified that once a transfer was initiated, he would have expected that it would take place expeditiously.[^93]
[377] While on the evidence, the standard of care of the hospital was established, there was no evidence about who or what events underlay the delay. There is insufficient evidence on which a finding of breach of the standard of care can be made against Ajax Hospital. No apportionment can be made.
Deductibility of Mr. Baines’ Auto Insurance Benefits
[378] There is a legal issue relating to the application of the provisions of the Insurance Act, R.S.O. 1990, c. I.8.
[379] The defence takes the position that Dr. Abounaja should be permitted to reduce the quantum of any damages awarded in the present proceedings by the amount Mr. Baines’ motor vehicle insurer paid him in March 2016 for statutory accident benefits (SABS) for loss of income, medical expenses, attendant care and other pecuniary damages under the “no-fault” provisions of his private automobile insurance policy.[^94]
[380] Typically, at common law, private insurance benefits are not deductible from damages. The defence accepts that proposition, but takes the position that ss. 267.8(1), (4) and (6) of the Insurance Act are clear statutory exceptions to the principle. Those subsections provide for deductibility of SABS in claims “in an action for loss or damage from bodily injury … arising directly or indirectly from the use or operation of an automobile”.
[381] I do not accept the defendant’s position. The Court of Appeal for Ontario in Hernandez v. 1206625 Ontario Inc. (c.o.b. Mr. Biggs Sports Bar & Eatery),[^95] considered ss. 267.6(1) of the Insurance Act. The section precludes an uninsured driver from recovering “loss or damage from bodily injury … arising directly or indirectly from the use or operation of an automobile.” The issue was whether the provision prevented an uninsured driver from suing a sports bar for negligence for permitting the driver to leave in an intoxicated state and injure himself.
[382] The Court found that the question was whether the plaintiff’s “loss or damage,” as opposed to his injuries, were caused by the use of his vehicle, or whether the connection between the loss and the ownership, use or operation of the vehicle was merely incidental or fortuitous. The Court looked to the essence of the claim being made to determine whether a motor vehicle played a merely ancillary role. The analysis began by examining the nature of the claim being made, and then determining whether some or all of the damage could be attributed to a cause of action that is substantively distinct from the use or operation of a vehicle. It also looked at the purpose of the legislative provision. The Court found that the loss claimed in the case attributed to the non-auto-related negligence did not arise “directly or indirectly from the use or operation of the automobile.” The Court also found that it did not advance the purpose of the legislation to shield tavern owners from liability for negligence.
[383] The present action is not based on the negligence of the owner or operator of a motor vehicle. Rather, the essence of the claim is for loss arising from the professional negligence of the defendant physician. Any damages occasioned by the doctor’s negligence are not properly characterised as arising from the use or operation of an automobile. In fact, the parties have treated the plaintiff’s injuries from the motor vehicle accident as a pre-existing condition. They agreed on damages. They also agreed that the damages could be reduced, depending on my findings on the extent of the plaintiff’s disability, apart from the physician’s negligence.
[384] Section 267.8 applies only to motor vehicle accident claims. Such an interpretation is supported by the reasons of the Supreme Court of Canada in Cunningham v. Wheeler,[^96] a case about collateral benefits, where the Court wrote:
Although in Ontario the non-deductibility principle was abandoned in relation to motor vehicle accidents when a no-fault motor vehicle insurance regime was enacted, the general rule in other tort litigation of non-deductibility has not been altered: s. 267 of the Insurance Act, R.S.O. 1990, c.I.8. It is significant that this was done in the context of creating a new system for compensating victims of motor vehicle accidents, largely outside traditional tort law.
[385] For these reasons, I find that Dr. Abounaja is not entitled to reduce the quantum of any damages awarded in the present proceedings by the amount of accident benefits paid to Mr. Baines under his private automobile insurance policy.
OHIP’s Subrogated Expenses
[386] In a similar vein, the defence takes the position that Dr. Abounaja should be permitted to deduct the amount allocated to OHIP from the total damages agreed upon. The argument is that there is no right of subrogation as a result of the operation of ss. 267.8(17) of the Insurance Act and ss. 30(5) of the Health Insurance Act, R.S.O. 1990, c. H.6.
[387] I do not accept the position of the defence. The Agreed Statement of Facts indicates the parties had agreed on damages. It does not provide that the agreement was without prejudice to the defendant’s right to argue for a deduction of the OHIP subrogated claim. In my view, the agreement precludes it.
[388] If it were open to the defendant to seek this deduction, I find that ss. 267.8(17) only applies to motor vehicle accident claims. The present case is not one. The cases upon which the defence relies are all actions arising from motor vehicle negligence.
[389] For these reasons, I find that Dr. Abounaja is not entitled to reduce the quantum of any damages awarded in the present proceedings by the amount allocated to the OHIP subrogated claim.
Contributory Negligence
[390] The defence did not pursue any claim for contributory negligence on the part of Mr. Baines.
Conclusion
[391] For these reasons, I find that Dr. Abounaja’s negligence caused Mr. Baines’ amputation. Mr. Baines is awarded the damages, which the parties have agreed upon, without deduction.
[392] If counsel do not agree on costs, they may submit written argument or take out an appointment.
[393] The formal judgment may be sent to my judicial assistant along with an approved draft copy.
The Hon. Justice M. L. Lack
Released: March 31, 2023
COURT FILE NO.: 84070/13
DATE: 2023-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kamal Kamara Baines, Onika Thompson, Kamika Thompson Baines and Kamal Baines
Plaintiffs
-and-
Rouge Valley Hospital Ajax Site, Mohamed Abounaja, Charles Thompson, Stephen Gulland, John Doe and Jane Doe
Defendant
REASONS FOR JUDGMENT
The Hon. Justice M. L. Lack
Released: March 31, 2023
[^1]: Stell v. Obedkoff, 2000 CarswellOnt 4085, [2000] O.J. No. 4011 (Ont. S.C.). [^2]: Exhibit 2, Joint Brief of Documents (“JBD”), p.16. [^3]: Exhibit 2, p. 10. [^4]: The square brackets throughout this judgment, indicate an explanation for the preceding term, provided in the evidence. [^5]: Exhibit 2, JBD, p. 16. [^6]: Exhibit 2, JBD, p. 91 [^7]: Transcript, April 20, 2022, p. 104, ll. 20-25. [^8]: Exhibit 2, JBD, p. 13. [^9]: Transcript, April 20, 2022, p. 40, ll. 17-21. [^10]: Exhibit 2, JBD, p. 17. [^11]: Exhibit 2, JBD, p. 13. [^12]: Exhibit 2, JBD, p. 10. [^13]: This is a summary from the evidence of David Bailey and Lori Hill, Transcript, April 11, 2022. [^14]: The CritiCall records will be referred to often. They are found at Exhibit 2, JBD, Tab 28, pp. 102-111. [^15]: Exhibit 2, JBD, p. 102. [^16]: Transcript, April 26, 2022, p. 6, ll. 21-26; p. 9, ll. 17-19; p. 12, ll. 27-31. [^17]: Exhibit 2, JBD, p. 94. [^18]: Exhibit 2, JBD, p. 13. [^19]: Exhibit 2, JBD, p. 10. [^20]: Exhibit 2, JBD, p. 103, entry 534094. [^21]: Transcript, April 20, 2022, p. 45, ll. 15-30. [^22]: Transcript, April 20, 2022, p. 46, ll. 1-20. [^23]: Exhibit 2, JBD, p. 13. [^24]: Transcript, April 20, 2022, p. 49, ll. 27-31. [^25]: Exhibit 2, JBD, p. 13. [^26]: Exhibit 2, JBD, p. 13. [^27]: Exhibit 2, JBD, p. 13. [^28]: Exhibit 2, JBD, p. 14. [^29]: Exhibit 2, JBD, p. 14. [^30]: Exhibit 2, JBD, p. 14. [^31]: Exhibit 2, JBD, p. 45. [^32]: Exhibit 2, JBD, p. 103, entry 534128. [^33]: Exhibit 2, JBD, p. 104, entry 534143. [^34]: Exhibit 2, JBD, p. 2, entry 534141. [^35]: Exhibit 2, JBD, p. 104, entry 534156. [^36]: Transcript, April 21, 2022, p. 123, l. 9. [^37]: Transcript, April 21, 2022, p. 123, l. 25. [^38]: Exhibit 2, JBD, pp. 104, entry 534157. [^39]: Exhibit 2, JBD, p. 105, entry 534163. [^40]: Exhibit 2, JBD, p. 105, entry 534170. [^41]: Exhibit 2, JBD, p. 104, entry 534170. [^42]: Transcript, April 20, 2022, p. 60, l. 17 - p. 61, l. 20. [^43]: Transcript, April 22, 2022, p. 35, l. 29 - p. 36, l. 10. [^44]: Transcript, April 22, 2022, p. 39, l. 25 - p. 40, l. 12. [^45]: Exhibit 2, JBD, p. 98. [^46]: Exhibit 2, JBD, p. 99. [^47]: Exhibit 2, JBD, p. 105, entry 5341895. [^48]: Exhibit 2, JBD, p. 106, entry 534193. [^49]: Exhibit 2, JBD, p. 106, entry 534198. [^50]: Exhibit 2, JBD, p. 106, entry 534199. [^51]: Exhibit 2, JBD, p. 107, entry 534202. [^52]: Exhibit 2, JBD, p. 108, entry 534210. [^53]: Exhibit 2, JBD, p. 118. [^54]: Exhibit 2, JBD, p. 131. [^55]: Exhibit 2, JBD, p. 130. [^56]: Exhibit 2, JBD, pp. 133-134. [^57]: Exhibit 2, JBD, pp. 150-151. [^58]: Exhibit 2, JBD, p. 142. [^59]: Exhibit 2, JBD, p. 150-151. [^60]: Exhibit 2, JBD, p. 133. [^61]: Exhibit 1(a). [^62]: 1967 CanLII 308 (ON SC), 1967 CarswellOnt 217, [1968] 1 O.R. 621 (Ont. H.C.J.). [^63]: 2020 CarswellOnt 13621. [^64]: 1956 CanLII 34 (ONCA), aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991. [^65]: 2019 ONCA 963, at para. 86. [^66]: 1976 CanLII 19 (SCC), [1976] 2 S.C.R. 825. [^67]: 1993 CanLII 16342 (AB KB), 1993 CarswellAlta 650 (Alta. Q.B.), para. 58. [^68]: 1996 CarswellOnt 3290, [1996] O.J. No. 3123 (Ont. Div. Ct.) at para. 93. [^69]: 1987 CarswellOnt 66, 50 M.V.R. 197 (ON SC) at para. 19. [^70]: 2005 CanLII 18716 (ON SC) at para. 145. [^71]: 2016 ABQB 483 at para. 257. [^72]: 2012 ONSC 4208 at para. 35. [^73]: 2013 SCC 18 at paras. 44-45, 49, 53. [^74]: Exhibit 4, Dr. Greenway’s C.V. [^75]: Exhibit 8, Dr. Lindsay’s C.V. A brief summary is provided later in this Judgment. [^76]: Exhibit 21, Dr. Tien’s C.V. [^77]: Exhibit 26, Dr. McMillan’s C.V. [^78]: Exhibit 8, Dr. Lindsay’s C.V. [^79]: Exhibit 30, Dr. Maggisano’s C.V. [^80]: 2019 ONCA 687. [^81]: 2002 SCC 7, [2007] 1 S.C.R. 333. [^82]: 2022 SCC 32, [2012] 2 S.C.R. 181. [^83]: 2011 ONCA 609 at para. 14. [^84]: 2012 ONCA 537 at para. 44. [^85]: See also, Sacks v. Ross, 2017 ONCA 773 at para. 46; and Farej v. Fellows, 2022 ONCA 254 at para. 85. [^86]: Transcript April 11, 2021, p. 127 l. 16 - p. 128, l. 21., p. 157, l. 25 - p. 158, l. 18. [^87]: Exhibit 15, Dr. MacLeod’s C.V. [^88]: Exhibit 24, Dr. Stephen’s C.V. [^89]: Transcript, April 13, 2022, p. 112, ll. 14-18. [^90]: Transcript, April 29, 2022, p. 29, l.29 - p. 30, l. 6. [^91]: Transcript, April 29, 2022, p. 79, ll. 27 - 29. [^92]: Transcript, April 13, 2022, pp. 120-121. [^93]: Transcript, April 19, 2022, pp. 73-74. [^94]: Exhibit 12. [^95]: 2002 CanLII 45089 (ON CA), [2002] O.J. No. 3667, 61 O.R. (3d) 584. [^96]: Cunningham v. Wheeler, 1994 CanLII 120, [1994] 1 S.C.R. 359 at p. 401f.