COURT FILE NO.: CV-15-542376
DATE: 20230116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMEELA FORTUNE-OZOIKE and CHRISTIAN OZOIKE
Plaintiffs
– and –
WAL-MART CANADA CORP., DR. CALVIN TAI-LEN LIAN, DR. KAFAI LAI, RITA G. MOLINO, MERCY KOMOLAFE, ANDREA DALY, ANNE TRAN, JOHN DOE, JANE DOE, HANNAH (DOE) and HUMBER RIVER REGIONAL HOSPITAL
Defendants
Ryan Breedon, David Lackman and Jessica Golosky, for the Plaintiffs
Thomas N.T. Sutton and Adriana Forest, for the Defendants Dr. Calvin Tai-Len Lian and Dr. Kafai Lai
HEARD: April 19, 20, 22, 25-28, and May 2, 3, 17, 2022
REASONS FOR JUDGMENT
VERMETTE J.
[1] In the evening of Boxing Day 2013, the Plaintiff Jameela Fortune-Ozoike went shopping to a Wal-Mart store with her sister. She slipped on a hanger that was on the floor and fell on the ground. She was in excruciating pain and was taken to Humber River Regional Hospital (“Hospital”) by ambulance. Ms. Fortune-Ozoike was eventually diagnosed with a left knee dislocation. By the following morning, the blood flow in her left leg was seriously compromised, and she was transferred on an urgent basis by air ambulance to St. Michael’s Hospital. There, she had vascular surgery in the early afternoon of December 27, 2013. Unfortunately, this was too late to save Ms. Fortune-Ozoike’s leg and, on January 4, 2014, she received an above-knee amputation.
[2] By the time the trial started, the only remaining Defendants in the action were the two physicians who were involved in the care of Ms. Fortune-Ozoike at the Hospital on December 26 and 27, 2013, i.e. Dr. Calvin Tai-Len Lian, an emergency physician, and Dr. Kafai Lai, an orthopaedic surgeon. The main issues before me are whether the conduct of Dr. Lian and Dr. Lai breached the applicable standard of care and whether any breach of the standard of care caused an injury to Ms. Fortune-Ozoike. Damages have been agreed upon.
A. FACTUAL BACKGROUND
[3] The main facts of this case are generally undisputed.
[4] Ms. Fortune-Ozoike remembers very little about what happened after her fall at Wal-Mart. Among other things, she does not remember the ambulance ride from the Wal-Mart store to the Hospital and her conversations with ambulance attendants, doctors and most nurses.
[5] The chronology below is largely based on the medical records. All times are approximate.
[6] When reviewing the facts of this case, it is useful to know that a knee dislocation is a relatively uncommon injury. It is also a serious injury that often involves the rupture of ligaments and associated risks of vascular and nerve injury.
[7] The superficial femoral artery is the main blood vessel supplying blood to the lower body. As it passes through the back of the knee, its name changes and it becomes the popliteal artery. The popliteal artery is the main source of blood to the leg below the knee. Using a conservative percentage, injuries to the popliteal artery occur in approximately 20% of cases of knee dislocation (according to some studies, in up to 40-45% of cases). Such injuries can make knee dislocation a limb-threatening emergency.
1. Fall at Wal-Mart and transfer to the Hospital
[8] On December 26, 2013, Ms. Fortune-Ozoike visited the Wal-Mart store located at 1305 Lawrence Avenue West in Toronto with her sister. They arrived at the store between 6:30 and 7:00 p.m. Ms. Fortune-Ozoike had never been to that particular Wal-Mart store before. According to her, while there were people in the store, it was not packed. The person who was the duty manager at the Wal-Mart store at the time of the accident testified that while Boxing Day is a busy day, it is not busier than other days in the evening.
[9] Ms. Fortune-Ozoike does not remember having any concerns regarding the condition of the store on that day. She was wearing running shoes. There is evidence that it was “wet and cold” on December 26, 2013, but there is no specific evidence as to the weather in the evening, when Ms. Fortune-Ozoike went to the store.
[10] After spending some time in other sections of the store, Ms. Fortune-Ozoike eventually went to the nightgown section in the ladieswear department. At some point, as she was going to take a look at a particular nightgown, she slipped and fell on the hardwood floor. Her left leg went forward and she fell on her back.
[11] While Ms. Fortune-Ozoike did not see anything on the floor before she fell, she noticed a clear hanger with two clips with no clothing on it on the floor after her fall. All of the contemporaneous documents show that Ms. Fortune-Ozoike believed that she had fallen as a result of slipping on a hanger on the floor.
[12] Ms. Fortune-Ozoike remembers lying on the floor of the store and screaming as she was in excruciating pain. She had pain in her entire left leg and it felt like her leg was on fire. She was not able to get up. People started gathering around her.
[13] Wal-Mart employees called 911 at 8:44 p.m. Ambulance attendants were with Ms. Fortune-Ozoike by 8:56 p.m. They transported her to the Hospital where they arrived at 9:21 p.m.
2. Triage and first assessment and reduction by Dr. Lian
[14] After the ambulance arrived at the Hospital, Nurse Anne Tran conducted a triage assessment of Ms. Fortune-Ozoike at 9:25 p.m. Nurse Tran assigned her a CTAS score of 3.[^1] CTAS scores range from 1 to 5. A CTAS 3 means that the case is urgent, but that the patient is stable and does not need to be seen by a doctor immediately.[^2] The “History of Stated Complaint” recorded by Nurse Tran is as follows: “Stepped onto hanger @ Walmart & fell. C/o left knee pain. CSM [circulation, sensation, movement] intact.”
[15] In 2013, emergency room physicians at the Hospital saw patients based on the CTAS scores assigned by the triage nurses (i.e. CTAS 1 patients were seen before CTAS 2 patients, who were seen before CTAS 3 patients, etc.). Patients within a particular CTAS band were seen based on how long they had been waiting. It was also possible for a nurse to ask a physician to see a patient earlier.
[16] The Hospital’s emergency department was very busy on December 26, 2013, with some patients waiting for several hours before seeing a doctor.
[17] Dr. Lian was working in the emergency room at the Hospital on December 26, 2013. His shift started at 8 p.m. and ended at 3:30 a.m. on December 27, 2013.
[18] After Nurse Tran completed the triage process for Ms. Fortune-Ozoike, she went to see Dr. Lian and requested verbal orders for pain medication and an X-ray, which Dr. Lian provided. Nurse Tran told Dr. Lian that the patient had slipped and fell and had knee pain. She did not ask Dr. Lian to assess the patient at that time. Dr. Lian subsequently wrote these orders on the “face sheet” printed by Nurse Tran. The order for an X-ray was entered into the system at 9:49 p.m. Nurse Tran administered morphine to Ms. Fortune-Ozoike at 9:52 p.m.
[19] Because the emergency room was full that night, Ms. Fortune-Ozoike remained outside of the emergency room, in the ambulance bay, while she was waiting.
[20] Dr. Lian was not asked to, and he did not, order that the X-ray of Ms. Fortune-Ozoike’s leg be expedited. Based on the information that was conveyed to him by Nurse Tran, he thought that the most likely diagnosis was a break, and he saw no reason to give Ms. Fortune-Ozoike priority over other patients in the emergency room. In his view, there was no reason to suspect that she had a knee dislocation.
[21] The X-rays ordered by Dr. Lian were taken between 11:00 and 11:05 p.m. and became available for review at 11:14 p.m. An X-ray technician and a nurse came to see Dr. Lian to ask him to look at the X-rays. The X-rays disclosed an anterior dislocation of the left knee and a fracture of the femoral condyle.
[22] Dr. Lian reviewed the X-rays on PACS, a digital repository where images are stored and can be accessed. He then immediately ordered the nurses to bring the patient in and prepare her so that he could reduce the knee (i.e. restore the bone to a normal position). At 11:20 p.m., Dr. Lian assessed Ms. Fortune-Ozoike. According to Dr. Lian, it was not obvious that Ms. Fortune-Ozoike’s knee was dislocated as it looked normal.
[23] This is Dr. Lian’s evidence regarding the examination that he performed the first time he saw Ms. Fortune-Ozoike:
Q. […] Now I want to talk, Doctor, about your examination. First of all, you’ve written that the left knee was tender.
A. Yes.
Q. What does that mean?
A. Sore to the touch.
Q. How do you determine that?
A. She told me it was sore, I touched the knee, she said it was painful.
Q. You’ve written “normal dorsal pedal pulse”.
A. That’s right.
Q. Perhaps you should start by telling us what is a dorsal pedal pulse?
A. So it’s the pulse just above the – just on dorsal side of the foot. Like the foot, you got the pulse, big artery there, you can touch it and feel the pulse.
Q. How do you determine if that is normal?
A. Use my finger, check the pulse.
Q. Did you check her pulse any other way?
A. Any other way the pulse? No.
Q. Then you have recorded “normal sensation foot”.
A. Yes.
Q. What does that mean?
A. She could feel me touch the foot.
Q. Anything else?
A. That’s it.
Q. Lastly, you have recorded “normal range of motion toes”. Again Doctor, what does that mean?
A. She could wiggle her toes when I asked her. She could move her toes.
Q. Did you check the pulse on – let’s go back to the pulse. So I have this right, you checked the dorsal pulse on the left foot by using your two fingers, your index and your middle finger?
A. My fingers, yeah.
Q. Yes? Did you check the pulse on the right foot?
A. She had no pain in the right leg. Why would I check the right leg?
Q. So the answer is no –
A. No.
Q. – you did not check the pulse on the right foot? Was her left leg swollen?
A. I didn’t write it down so I don’t know.
Q. Did you evaluate the temperature of the patient’s left leg?
A. I didn’t write it down.
Q. So no?
A. I didn’t write down the temperature.
Q. Is that something that you would have checked?
A. I usually check, yeah.
Q. Did you check the temperature of her right leg.
A. I didn’t write it down, so I don’t recall.
Q. You don’t know. I take it, given that you told me you didn’t check the pulse on the right leg because she didn’t have any injury to the right leg, would it be safe to assume that you also did not check the temperature of the right leg for the same reason?
A. I did not write it down, so I don’t know.
Q. Do you have a practice?
A. I do have a practice, yeah.
Q. What is your practice?
A. Check where the injury is.
Q. So in this case, because the injury was to the left leg, your standard practice would have been to check the left leg?
A. Yeah.
Q. Did you evaluate the colour of the patient’s left leg?
A. I did not write it down.
Q. So that’s a no?
A. I do not recall.
Q. Did you evaluate the patient’s leg using a Doppler?
A. I did not do it.
Q. You are familiar with a Doppler?
A. I do it if there’s an indication.
Q. Yes. And a Doppler is available to you at Humber River? If you had wanted to evaluate this patient with a Doppler, you could have done that?
A. If there was an indication, it’s available, yeah.
Q. In your mind, what would have been an indication for evaluation with a Doppler?
A. An indication would be an acute ischemia.
Q. What is an acute ischemia.
A. Somebody who had a blockage in the artery and loses the pulse.
[24] After conducting his examination, Dr. Lian performed a closed reduction while Ms. Fortune-Ozoike was fully sedated. Following the reduction, a splint was applied by Dr. Lian that went from the patient’s mid-foot to her upper leg, almost to the buttock. Dr. Lian used Plaster of Paris to do the splint and wrapped tensor bandage tightly around the leg. Dr. Lian’s evidence is that after the reduction and after Ms. Fortune-Ozoike woke up, he performed the same examination that he conducted prior to the reduction. However, he did not make any notes of that examination.
3. Two discussions between Dr. Lian and Dr. Lai
[25] At 11:45 p.m., Dr. Lian called the Locating service to obtain a consultation with the orthopaedic surgeon on call that night. Dr. Lai, who was the orthopaedic surgeon on call, was paged at 11:53 p.m.
[26] In the evening of December 26, 2013, Dr. Lai was in an operating room at the Hospital performing surgery on a patient who had a femur fracture. The surgery lasted approximately three and a half hours. After completing the procedure, he wrote orders for the patient and dictated his notes. He then left the Hospital. The Hospital’s records show that Dr. Lai’s notes were uploaded at 11:59 p.m. This suggests that Dr. Lai was still at the Hospital when he was paged at 11:53 p.m.
[27] At 11:57 p.m., Dr. Lian ordered a post-reduction X-ray.
[28] Dr. Lai eventually called back and spoke with Dr. Lian on the phone sometime before 12:30 a.m. Dr. Lai returned Dr. Lian’s call from his car on his way home. Dr. Lai’s evidence is that he found out that he had been paged when he was in his car. If he was paged while he was still at the Hospital, he was not aware of it. He said that he may not have heard the page.
[29] The following is Dr. Lian’s evidence regarding his first conversation with Dr. Lai:
Q. Do you remember your discussion with Dr. Lai?
A. Well the exact words I would not be able to tell you, but I did talk to him about the case, yeah.
Q. What did you tell Dr. Lai?
A. There was a lady with a knee dislocation. It was in the PACS system. You know the digital – the images was [sic] a digital (inaudible). So he was able to take a look at that image. I’m not sure where he was. I think he was at home. So there was a discussion about the case, you know.
Q. So you told Dr. Lai that there was a female patient who had a knee dislocation and Dr. Lai was able to look at the x-ray imaging using the PACS system, correct?
A. That’s right, yeah.
Q. The x-ray imaging that Dr. Lai would have been able to look at at this time would have been the pre-reduction x-ray?
A. That’s right.
Q. Not the post-reduction x-ray which would have been taken shortly after this?
A. That’s right, yeah.
Q. Did you communicate anything else to Dr. Lai about this patient?
A. Well I told him about the patient and I did the reduction.
Q. Again I apologize if my question isn’t clear. What I need you to do, Dr. Lian, is to tell us everything that you said to Dr. Lai about this patient. I appreciate you don’t have a transcript, but to the best of your ability.
A. Lady who fell, dislocated knee, the neurovascular exam was intact before the reduction and then I could feel the pulse post-reduction. He documented himself, I think, in his notes. I did talk to him about the neurovascular exam post-reduction.
Q. Did you say anything else to Dr. Lai?
A. I would not be able to recall.
Q. Did Dr. Lai provide you with any advice or direction or plan?
A. Yeah. He told me to admit the patient under his care. I wrote the orders for admission under his care. He specifically asked me to order neurovascular vitals every one hour, which is what I documented.
[30] The following is Dr. Lai’s evidence about the same conversation at the time of his examination for discovery (which was read in at trial):
Q. Do you recall that discussion?
A. I recall he mentioned there was a patient with a dislocated knee. Sorry, I recall that he mentioned a patient with – I don’t recall if he said dislocated knee, but a knee injury. He wanted to do reduction. I told him that I will contact him after I look at the x-rays.
Q. Sorry, I actually missed the part in the middle. What did you say about the reduction? You’re going to have to speak up if you don’t mind.
A. I recall that he spoke to me about a patient with a possible knee dislocation. I think he said he’s going to perform the reduction. Then I told him that I will be looking at the x-ray after confirming that the patient was neurovascularly intact.
[31] At trial, Dr. Lai stated that he could not recall the exact details of his first conversation with Dr. Lian, but, essentially, Dr. Lian told him that there was a patient with a knee dislocation, she was neurovascularly intact and she was going for X-rays.
[32] At 12:30 a.m., after his conversation with Dr. Lai, Dr. Lian wrote an order admitting Ms. Fortune-Ozoike under Dr. Lai’s care in orthopaedics. He also wrote orders to prepare the patient for a possible operation and for pain medication, including an order for morphine (4 mg) to be given as needed but not more than every four hours.
[33] The post-reduction X-ray was completed and became available for viewing at 12:31 a.m. The X-ray showed that the dislocation had been satisfactorily reduced.
[34] Nurse Mercy Komolafe administered morphine to Ms. Fortune-Ozoik at 12:42 a.m.
[35] Dr. Lian spoke to Dr. Lai on the phone a second time after the post-reduction X-rays were available, sometime before 1 a.m. At that time, Dr. Lai was at home and he had had the opportunity to review both the pre-reduction and the post-reduction X-rays on PACS.
[36] Dr. Lai’s evidence at trial about his second conversation with Dr. Lian was that he confirmed with Dr. Lian that the knee was reduced based on the X-rays, and Dr. Lian informed him that Ms. Fortune-Ozoike was neurovascularly intact and was feeling better and more comfortable after the reduction. Dr. Lai concluded that the patient was stable and that he did not need to assess the patient himself. He asked Dr. Lian to order neurovascular checks so that she could be monitored.
[37] At 1 a.m., after this second conversation and at the request of Dr. Lai, Dr. Lian wrote an order that a neurovascular assessment (“neurovascular vitals”) be conducted every hour.
4. Assessment of Ms. Fortune-Ozoike at 1 a.m.
[38] At 1 a.m., Nurse Komolafe assessed Ms. Fortune-Ozoike. She documented her 1 a.m. assessment as follows: “Patient stated that she feels leg is on fire. Dr. Lian C notified about it. And Dr. Lian C came and loosed [sic] the tensor bandage and re bandages it again.” Nurse Komolafe documented a normal colour of the left foot, a limited range of motion, a palpable pulse, a “burning” sensation, no numbness/tingling in the toes, a numeric pain score of 9/10 at rest and a numeric pain score of 10/10 with activity. In a separate note regarding her assessment at 1 a.m., Nurse Komolafe noted that the patient was moaning and wrote the following next to “Pain description”: “Burning”, “Unbearable”, “BURNING LIKE FIRE. DR LIAN C AWARE”.
[39] As noted by Nurse Komolafe, Dr. Lian reassessed Ms. Fortune-Ozoike shortly after 1 a.m. at her request. This was after Dr Lian’s second telephone conversation with Dr. Lai. Dr. Lian said that, at that time, he was concerned about compartment syndrome[^3] and an injury to the vessels or the nerves. With the help of a few nurses, he loosened the tensor bandage by taking the whole tensor bandage off and rebandaging the leg more loosely. Before rebandaging the leg Dr. Lian performed a neurovascular assessment. Ms. Fortune-Ozoike could wiggle her toes, she could feel it when Dr. Lian touched her leg, and she had a pedal pulse. Dr. Lian also touched her knee to ensure that it was not dislocated again. There is no evidence that Dr. Lian examined her left leg’s compartments. Ms. Fortune-Ozoike felt better after the bandage was loosened.
[40] Dr. Lian did not make any notes of his assessment of Ms. Fortune-Ozoike at 1 a.m. He also did not advise Dr. Lai of the patient’s complaints and his assessment at 1 a.m.
[41] Dr. Lian was not asked to, and he did not, assess Ms. Fortune-Ozoike again between 1 a.m. and the end of his shift at 3:30 a.m. He did not have any further involvement with her after 1 a.m.
5. Subsequent assessments of Ms. Fortune-Ozoike by nurses and Dr. Lai
[42] At 2 a.m., Nurse Komolafe assessed Ms. Fortune-Ozoike again. She documented a normal colour of the left foot, a limited range of motion, a palpable pulse, a sensation of pain (with no other comments), and no numbness/tingling in the toes.
[43] At 2:50 a.m., Ms. Fortune-Ozoike was given another 4 mg of morphine, two hours and eight minutes after the previous administration of morphine at 12:42 a.m., and almost two hours earlier than Dr. Lian’s order provided.
[44] At 3 a.m., Nurse Komolage performed another assessment, with the same observations as at the ones she had made at 2 a.m. She also added the following comment: “Left foot same colour with the right foot. Swelling noted to left foot. Pedal pulse palpable. Checked with RN Rita and Hannah. Also heard on Doppler.”
[45] At 3:20 a.m., Nurse Komolafe recorded that the patient’s capillary refill was less than two seconds, which is normal.[^4]
[46] At 4:40 a.m., Nurse Rita Molino attended on Ms. Fortune-Ozoike and noted that she was complaining of pain and numbness from her mid-thigh to her toes. Nurse Molino documented the following:
Pt [Patient] moaning, crying, c/o numbness to left leg from mid thigh to toes. C/o pain to left leg. Pt has left pedal pulse, but left foot is cooler then [sic] right. Pt asking to have POP [Plaster of Paris] slab/wrapping removed. Dr. Lai, ortho, paged. Pt is pulling left leg wrapping apart to gain relief from numbness/pain. Unable to repeat analgesic at this time. Left leg flannel wrap removed from left foot and pt states this is giving her a little relief. Pt asking for water, advised NPO and given mouth swabs. Waiting call back from ortho.
[47] As stated in her notes, Nurse Molino had Dr. Lai paged. Dr. Lai was paged at 4:49 a.m. and a second time at 5:03 a.m. According to Dr. Lai, he called after the first page, but he could not get through. Nurse Molino spoke with Dr. Lai shortly after the second page and advised him of Ms. Fortune-Ozoike’s condition. Dr. Lai ordered that the flannel wrapping be cut from Ms. Fortune-Ozoike’s left leg, and that her left leg not be manipulated. He said that he would call back in 10 minutes. Ms. Fortune-Ozoike was more comfortable once Dr. Lai’s order was carried out.
[48] Nurse Molino spoke with Dr. Lai again at 5:30 a.m. In response to his questions, she reported that Ms. Fortune-Ozoike was not able to move her toes, that Ms. Fortune-Ozoike’s pain did not increase when Nurse Molino moved her left toes, and that numbness and pain were still present even after the flannel wrappings around her leg had been cut.
[49] Also at 5:30 a.m., Nurse Komolafe noted a faint pedal pulse “due to swelling”, in addition to a left foot colder than the right foot and numbness of toes in the left foot.
[50] After his second conversation with Nurse Molino, Dr. Lai decided to return to the Hospital to assess Ms. Fortune-Ozoike. At 6 a.m., Dr. Lai assessed Ms. Fortune-Ozoike. His assessment revealed that Ms. Fortune-Ozoike’s posterior calf was tight, her left foot was cold, and he could not detect a pulse. Ms. Fortune-Ozoike was unable to actively move her toes.
[51] At the conclusion of his 6 a.m. assessment, Dr. Lai made the following notes:
27 yr old female with traumatic left knee dislocation. Slipped and fell @ Walmart approximately 9:00 pm last night. Came to ER, xrays confirmed dislocation. Contacted by staff (ER physician) approximately 12pm. As per ER physician, was neurovascularly intact. As per nursing notes, difficult assessing active toe movements due to pain. Reduced, and felt better. Post reduction x-rays showed reduced knee, and confirmed w/ ER physician that patient was neurovascularly intact. Admitted to ortho and Q1H neurovascular check. Called @ around 5 am regarding decreased pulses (just noted by nurses) with numbness foot (also first time patient reported it). Increased pain. Loosened splint and felt better immediately. Saw patient @ around 6 am. Posterior calf tight, distal left foot cold and could not detect pulse by Doppler, unable to actively move toes but passively no pain.
On examination:
obese woman, sleeping, not in distress, alert oriented x3.
left posterior calf tight, tender distal half leg down.
absent left dorsalis pedis;[^5] tried Doppler, unable to detect
decreased temperature left foot
unable to move toes actively, passive stretching no pain
xray showed reduced left knee.
Impression: dysvascular leg with recent onset decreased pulse. Altered neurovascular status (decreased sensation), concerned with compartment syndrome from reperfusion.
Plan: notify vascular surgeon
Needs vascular assessment, with possible compartment release and stabilization left knee.
Tried contact vascular service @ Sunnybrook and St. Michael's Hospital. No beds/OR. Will proceed w/ CritiCall.
[52] Ms. Fortune-Ozoike was given 5 mg of morphine at 6 a.m., three hours and ten minutes after the previous administration of morphine.
[53] As stated in his notes, Dr. Lai made a series of phone calls after assessing Ms. Fortune-Ozoike to arrange for a vascular assessment, but he was unable to find a vascular surgeon who would accept Ms. Fortune-Ozoike.
6. Transfer to St. Michael’s Hospital
[54] At 7:32 a.m., Dr. Lai called CritiCall, a service that facilitates emergency transfers. Dr. Lai was connected with the vascular surgeon on call at St. Michael’s Hospital. After a short conversation, an order to transfer Ms. Fortune-Ozoike to St. Michael’s Hospital was accepted by the vascular surgeon on call.
[55] Ms. Fortune-Ozoike was transferred to St. Michael’s Hospital by helicopter. The helicopter arrived at the Hospital at 8:29 a.m. The helicopter departed the Hospital with Ms. Fortune-Ozoike at 8:57 a.m. and landed at St. Michael’s Hospital at 9:26 a.m. Ms. Fortune-Ozoike arrived in the emergency room of St. Michael’s Hospital at 9:35 a.m.
[56] Ms. Fortune-Ozoike was admitted at 9:50 a.m. and assessed by a vascular surgeon at 10 a.m. At 10:38 a.m., Ms. Fortune-Ozoike underwent a CT (Computed Tomography) angiogram, which disclosed an occlusion of her left popliteal artery and blood outside the artery. At 11:05 a.m., Ms. Fortune-Ozoike had a consultation with an orthopaedic surgeon. At 12:40 p.m., her vascular surgery began. She underwent surgery to re-establish blood flow in her left leg and to relieve the compartments of their pressure. A bypass shunt (i.e. a synthetic tube used to restore blood flow into the recipient artery) was used for reperfusion. The shunt was placed at 1:53 p.m.
[57] Thus, approximately 5 hours and 20 minutes elapsed between the time at which Dr. Lai called CritiCall and the time at which blood flow was restored to Ms. Fortune-Ozoike’s left leg using a shunt.
[58] Despite the surgery, the muscles in Ms. Fortune-Ozoike’s left leg did not return to normal health. On January 4, 2014, Ms. Fortune-Ozoike consented to and received an above-knee amputation. After being discharged from St. Michael’s Hospital, she spent a few months in a rehabilitation facility.
[59] On January 3, 2014, the day before the amputation, Dr. Lai dictated an addendum to his consultation notes which reads as follows:
On December 27 at 12:00 a.m., when the page was received by the emergency staff physician, I confirmed with the emergency staff physician on multiple occasions, greater than 2 times prereduction and greater than 2 times postreduction, that the patient was neurovascularly intact. At 4:45, approximately, I received a page; however, I tried returning the page twice, which was listed as an incorrect number. At 5:00 a.m., this was when I was called regarding the status of the patient, with increasing pain, decreased sensation, decreased temperature, absent pulse, absent active movement to the left leg. I immediately asked the nurses to loosen the posterior splints. The pain did improve, but the remaining examination remained unchanged. She also had no active range of motion of her toes, passive range of motion of her toes did not reproduce any pain.
Upon receiving the call, I returned to the hospital and arrived between 5:45 and 6:00. I assessed the patient and noted that with the Doppler, the right foot had normal dorsalis pedis pulse, but in the left, I could not detect a dorsalis pedis, nor a posterior tibial pulse. Her vital signs at the time of examination ranged from a systolic pressure in the 170s and the diastolic pressure between 79 to 107. When I saw the patient at 6:00, she had received about 12 mg of morphine since admission, as per the nursing staff. She was not in distress while laying on the bed, alert and awake. After reassessment, I reviewed the events with the nurses and confirmed that the decreased pulse was a new finding at 5:00. The decreased sensation documented at around 5:00 was also a new documentation, but as per the nurses, the patient later divulged that she had increasing numbness to the foot prior to this, but did not tell the emergency staff.
Upon assessment, I tried contacting the Vascular Service of the hospital. There was no vascular surgeon on call. Secondly, from 5:30 onwards, attempts were made to contact Dr. Auguste, the orthopedic surgeon on call during the day. This was in anticipation that the patient needs close observation. Between 6:15 to 6:30, I was able to reach Dr. Auguste, and a verbal consult, second opinion, was obtained with Dr. Auguste, after summarization of the events. Between 6:15 to 7:00, I tried contacting our vascular chief on 3 occasions. This was done through the switchboard, asking to be transferred to his pager, home, cell phone, I was unable to locate the Chief of Vascular Service. I was able to get a hold of the vascular surgeon on call at St. Michael’s Hospital, as well as Sunnybrook, between 6:30 and 7:00. Due to bed issues, they expressed difficulty in accepting care.
I resorted to CritiCall between 7:15 and 7:30. At this time, I was able to get connected again with the vascular attending on call at St. Michael’s Hospital via CritiCall. At this time, a repeat detailed discussion was made regarding the events that passed, the timing of the events and my concerns with the left foot. An order was then given to transfer the patient to St. Michael’s Hospital, accepted by the vascular surgeon on call. A recommendation of heparin 5000 units was also made by the vascular surgeon, which I wrote on the order sheet.
7. The litigation
[60] This action was commenced on December 10, 2015.
[61] On March 28, 2022, the Plaintiffs and the Defendant Wal-Mart Canada Corp. (“Wal-Mart”) entered into a Pierringer Agreement. By Order dated April 14, 2022, the action was dismissed against Wal-Mart. On the same day, the action was dismissed on consent against the Defendants Rita G. Molino and Andrea Daly.
[62] On April 18, 2022, the Plaintiffs and the Defendants Humber River Regional Hospital, Anne Tran and Mercy Komolafe (“Hospital Defendants”) entered into a Pierringer Agreement. By Order dated April 14, 2022, the action was dismissed against the Hospital Defendants.
[63] As noted above, the only remaining Defendants in the action are Dr. Lian and Dr. Lai, i.e. the two physicians who were involved in the care of Ms. Fortune-Ozoike at the Hospital on December 26-27, 2013.
[64] Damages have been agreed upon by the parties. Therefore, the only issue before the Court is liability, more particularly whether there were breaches of the applicable standards of care and whether any such breaches caused any injury to Ms. Fortune-Ozoike.
[65] The parties agree that there is no basis for a finding of liability as against the Hospital and the nurses. I note that no evidence was adduced at trial regarding the standard of care applicable to nurses. With respect to Wal-Mart, the Plaintiffs’ position is that there is no evidence that Wal-Mart breached the standard of care of an occupier and no evidence that any breach on the part of Wal-Mart caused an injury to Ms. Fortune-Ozoike. The Defendants take the opposite position.
B. ISSUES
[66] The substantive issues to be determined are the following:
Dr. Lian
Did Dr. Lian breach the standard of care of a reasonable emergency room physician practicing in the Province of Ontario in December 2013?
If the answer to (1) is yes, did the breach of the standard of care by Dr. Lian cause an injury to Ms. Fortune-Ozoike?
Dr. Lai
Did Dr. Lai breach the standard of care of a reasonable orthopaedic surgeon practicing in the Province of Ontario in December 2013?
If the answer to (3) is yes, did the breach of the standard of care by Dr. Lai cause an injury to Ms. Fortune-Ozoike?
Wal-Mart
Did Wal-Mart breach the standard of care of a reasonable occupier of 1305 Lawrence Avenue West, Toronto, Ontario?
If the answer to (5) is yes, did the breach of the standard of care by Wal-Mart cause an injury to Ms. Fortune-Ozoike?
Apportionment
- If the answer to (6) is yes and the answer to any of 2 and 4 is yes, what is the apportionment of fault, in percentage terms, of Wal-Mart, on the one hand, and among one or both of Dr. Lian and Dr. Lai, on the other?
[67] The Plaintiffs argue that the evidence discloses two breaches of the standard of care on the part of Dr. Lian, and two breaches of the standard of care on the part of Dr. Lai. They are as follows:
Dr. Lian
Dr. Lian’s failure to assess Ms. Fortune-Ozoike upon being notified of her unusual degree of pain by the triage nurse between 9:33 and 9:49 p.m.
Dr. Lian’s failure to conduct a competent examination of Ms. Fortune-Ozoike, or to notify Dr. Lai of his concern that she might be developing compartment syndrome, when he reassessed her at 1 a.m.
Dr. Lai
Dr. Lai’s failure to respond to Dr. Lian’s page prior to leaving the hospital sometime after 11:59 p.m.
Dr. Lai’s failure to either perform or ensure that Dr. Lian performed an adequate examination of Ms. Fortune-Ozoike when he was consulted by Dr. Lian around 12:30 a.m.
C. WITNESSES AT TRIAL
[68] Most of the witnesses at trial were expert witnesses. They are discussed below. The other witnesses were Ms. Fortune-Ozoike, Dr. Lian, Dr. Lai and two employees who were working at the Wal-Mart store where Ms. Fortune-Ozoike fell on December 26, 2013, i.e. Ms. Celia Alimagno and Ms. Erlina de los Santos. Ms. Alimagno was the duty manager at the store, and Ms. de los Santos was a part-time associate in the ladieswear department.
[69] In addition, the Defendants read into evidence excerpts from the examinations for discovery of the Plaintiff Christian Ozoike and Nurses Tran, Komolafe, Molino and Daly.[^6]
1. Experts in emergency medicine
[70] The Plaintiffs’ expert in emergency medicine was Dr. Arun Kumar Sayal and the Defendants’ expert was Dr. David Boushy. On consent, both Dr. Sayal and Dr. Boushy were recognized as experts in emergency medicine who were qualified to opine on the standard of care applicable to emergency room physicians practicing in the Province of Ontario in 2013, including, specifically, the diagnosis and treatment of knee dislocations.
[71] Dr. Sayal has practiced emergency medicine at North York General Hospital since 1993. He has been a physician in the Minor Fracture Clinic at the same hospital since 2005. He is also an Associate Professor in the Department of Family and Community Medicine at the University of Toronto. He is the creator, director and lead faculty of CASTED, a series of courses for people who work in an emergency department to better manage orthopaedic injuries.
[72] Dr. Boushy has been practicing emergency medicine at the Royal Victoria Hospital in Barrie since 2003. He was the Chief of the Emergency Department from 2008 to 2011. He is the President of the Medical Staff at Royal Victoria Hospital. Dr. Boushy is an adjunct Clinical Professor and Lecturer at the Faculty of Medicine at the University of Toronto.
2. Experts in orthopaedic medicine
[73] The Plaintiffs’ expert in orthopaedic medicine was Dr. David Pichora and the Defendants’ expert was Dr. C. Bruce Paitich. On consent, Dr. Pichora and Dr. Paitich were recognized as experts in orthopaedic medicine who were qualified to opine on the standard of care applicable to orthopaedic surgeons practicing in the Province of Ontario in 2013, including, specifically, with respect to the diagnosis and treatment of knee dislocations.
[74] Dr. Pichora is a Professor of Surgery and Mechanical and Materials Engineering at Queen’s University. He has been a staff physician in orthopaedic surgery at the Kingston General and Hotel Dieu Hospitals since 1986. Since 2015, he has held the Paul B. Helliwell Chair in Orthopaedic Research. He has been the President and Chief Executive Officer of the Kingston Health Sciences Centre since 2017. He is a former President of the Ontario Orthopaedic Association.
[75] Dr. Paitich has practiced full-time as an orthopaedic surgeon since 1993. His clinical and surgical practice is primarily undertaken at William Osler Hospital, which has facilities in Brampton, Peel and Etobicoke. He also practices at other hospitals, notably Halton Healthcare, which includes Georgetown Hospital and Oakville Trafalgar Hospital, and West Park Hospital.
3. Experts in vascular medicine
[76] The Plaintiffs’ expert in vascular medicine was Dr. Varun Kapila and the Defendants’ expert was Dr. Andrew Dueck. On consent, Dr. Kapila and Dr. Dueck were recognized as experts in vascular medicine who were qualified to opine on: (i) the cause, nature and physiology of the injury sustained by the Plaintiff; (ii) the diagnosis and treatment of vascular injuries in patients who have suffered a knee dislocation from the time of referral to a vascular surgeon; and (iii) the effect, if any, of any delay in the diagnosis and treatment of the Plaintiff’s vascular injury.
[77] Dr. Kapila has been a vascular and endovascular surgeon since 2013. In 2014, he became Division Head of Vascular Surgery at the William Osler Health System in Brampton. He is also the Site Chief of Surgery at Brampton Civic Hospital. He has been on the executive committee of the Canadian Society for Vascular Surgery since 2017.
[78] Dr. Dueck is the Head of the Division of Vascular Surgery at Sunnybrook Health Sciences Centre, MacKenzie Health and North York General Hospital. He has been a practicing vascular surgeon at Sunnybrook Health Sciences Centre and an Assistant Professor at the University of Toronto since 2007. He is the Maggisano Chair in Vascular Surgery and he previously sat on the executive committee of the Canadian Society for Vascular Surgery.
D. DISCUSSION
[79] I discuss below the two breaches of the standard of care alleged by the Plaintiffs against Dr. Lian, the two breaches of the standard of care alleged by the Plaintiffs against Dr. Lai and the issue of causation. I then address the issue of Wal-Mart’s liability.
[80] Before turning to the alleged breaches of the standard of care, I review briefly the general legal principles applicable in medical malpractice cases.
1. General legal principles applicable in medical malpractice cases
[81] It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist who holds themselves out as possessing a special degree of skill and knowledge must exercise the degree of skill of an average specialist in their field. See ter Neuzen v, Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674 at para. 33 (“ter Neuzen”).
[82] The standard of care is not a gold standard. Rather, it is the average among similar peers. A physician must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases. See Hillis v. Meineri, 2017 ONSC 2845 at para. 54. What a physician or expert testifies they would do themselves in a particular situation does not establish the standard of care: see Bafaro v. Dowd, 2008 45000 at para. 36 (Ont. S.C.J.); aff’d by 2010 ONCA 188.
[83] A doctor who treats a patient in accordance with a respectable body of medical opinion – even if it is a minority opinion – will not normally be held liable in negligence. The rationale for this principle is that courts lack the institutional competence to decide between reasonable medical practices. See Connell v. Tanner, 2002 44921 at para. 1 (Ont. C.A.) and ter Neuzen at paras. 38, 44.
[84] 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. See Adams v. Taylor, 2012 ONSC 4208 at para. 35 and Ediger v. Johnston, 2013 SCC 18 at paras. 44-45, 49, 53.
[85] When assessing whether there has been a departure from a reasonable standard of care, the court must be careful not to rely on the perfect vision afforded by hindsight. A physician’s conduct should be judged in light of the information that they knew or could have known upon inquiry at the time of the alleged act of negligence. See Skead v. Chin, 2020 ONSC 1283 at para. 386 and Grass v. Women's College Hospital, 2005 11387 at paras. 95-98 (Ont. C.A.)
[86] It has been noted in the case law that the process of differential diagnosis, wherein possible medical perils with similar symptoms are listed and eliminated by order of severity, “is a universally accepted standard within the medical profession”: Adair Estate v. Hamilton Health Sciences Corp., 2005 18846 at paras. 2, 116, 153 (Ont. S.C.J.) (“Adair Estate”). A key feature of differential diagnosis is the importance of eliminating the most serious possibility first, rather than the most probable: see also Boyd v. Edington, 2014 ONSC 1130 at para. 12. Thus, a proper differential diagnosis must not only be focused on probability, but must also be informed by considerations of severity: see Adair Estate at paras. 117, 121.
[87] On its own, proof by an injured plaintiff that a defendant breached the standard of care does not make that defendant liable for the loss. The plaintiff must also establish on a balance of probabilities that the defendant’s breach of the standard of care caused the injury. See Clements v. Clements, 2012 SCC 32 at para. 6 (“Clements”).
[88] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. The “but for” causation test must be applied in a robust common-sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Clements at paras. 8-9.
[89] In an action for delayed medical diagnosis and treatment, a plaintiff must establish on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. A plaintiff who fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment will fail to establish their claim. 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”. See Beldycki Estate v. Jaipargas, 2012 ONCA 537 at para. 44 and Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737, 2003 50091 at para. 25 (C.A.). A mere loss of a chance is not compensable in medical malpractice cases: see Salter v. Hirst, 2011 ONCA 609 at para. 14.
[90] If there is a gap in the evidence about what would have happened that is the product of the defendant’s negligence, the defendant should not be permitted to rely on the lack of evidence that the defendant’s own negligence produced: see Ghiassi v. Singh, 2018 ONCA 764 at para. 29.
2. Whether Dr. Lian’s failure to assess Ms. Fortune-Ozoike after his discussion with the triage nurse between 9:33 and 9:49 p.m. was a breach of the standard or care
[91] As noted above, Nurse Tran requested an order for pain medication and an X-ray from Dr. Lian after she completed the triage process with Ms. Fortune-Ozoike. The experts disagree as to whether the request for pain medication should have prompted Dr. Lian to see Ms. Fortune-Ozoike more quickly and out of order.
[92] In his testimony, Dr. Lian said that if he had known that Ms. Fortune-Ozoike had a knee dislocation, he would have ordered the X-ray to be done on an urgent basis and he would have seen her earlier. However, he said that he could not suspect that she had a knee dislocation based on the information that he had. His view, in light of the fact that he was told that she had slipped and fell, was that the most likely diagnosis was a fracture.
a. Summary of expert evidence
[93] The Plaintiffs’ expert, Dr. Sayal, expressed the view that it was unusual for a physician to be asked for pain medication for a knee injury, and that this request should have prompted an emergency room physician to examine the patient in a more expeditious manner (rather than leaving the patient in the regular queue) in order to determine what was causing such high level of pain. He said that the level of discomfort of the patient would have prompted him to ask for the X-ray to be done on a STAT basis, i.e. without delay – which usually takes within 20-30 minutes.
[94] Dr. Sayal stated the following in his testimony:
Q. And what in your opinion should Dr. Lian have done when the nurse approached him and requested this pain medication?
A. So, I think it’s appropriate to order the medicine. It takes time to start an intravenous, for the nurse to get the medicine, to administer the medicine. Clearly the patient’s in a lot of pain. She needs pain medicine. There’s no question about that. What she also needs is a diagnosis. An assessment as to why she’s having the pain. And I think what should’ve happened is simultaneous with the order being put in for the x-ray, sumultaneioius [sic] with the nurse going and getting the medication ready, should’ve been a quick assessment of the patient to see just what her knee actually looks like. If she’s in triage it’s whatever number of steps it takes to walk around and go have a look and see, to see what the knee is like. It doesn’t take long to do that. If it looks like it’s all in place and everything’s fine, things can move along as expected. If we find something that’s concerning, if she say’s [sic] my knee is dislocated, if it felt like it was out, if it looked it was out, if she was in way more pain than I was expecting, I would probably expedite an x-ray just to make sure we see what we’re dealing with. If it looks mal-aligned, if it looks like it’s out of position, sometimes it can be a fracture. Sometimes it can be a dislocation. But that degree of discomfort would prompt me to ask for the x-ray to be done on what’s called a stat basis, on a much faster basis.
Q. If Dr. Lian had gone and assessed the patient at the time of that request in the manner that you have described what would’ve happened in terms of Dr. Lian’s care of the patient?
A. Well, if he went and saw the patient, he would’ve recognized the degree of pain that she was in and I think he would’ve expedited the x-ray. Then it would’ve been on his radar as soon as the x-ray is done, I better go look at it quickly and manage the care appropriately.
[95] The Defendants’ expert, Dr. Boushy, stated that the kind of request made by Nurse Tran for pain medication and X-ray was very common. He expressed the view that there was no information requiring Dr. Lian to see the patient out of order if not requested by the nurse. In particular, no concerns about a knee dislocation or any other issue requiring immediate assessment were brought to Dr. Lian’s attention.
[96] Both experts agreed that before making an order at the request of a nurse, physicians have to be satisfied that the order is indicated and appropriate. They have to evaluate the information provided by the nurse and, if necessary, ask for more information. Dr. Boushy agreed that situations in which a physician may need to ask for more information include unusual injuries, injuries that have higher risks of complications or unusual responses to those injuries. However, he was not specifically asked in chief or in cross-examination about the specific “red flags” alleged in this case and relied upon by Dr. Sayal, including Dr. Sayal’s view that a request for narcotics in the context of a knee injury was uncommon.
b. Analysis and conclusion
[97] While I have considerable difficulty with other aspects of Dr. Boushy’s evidence, as discussed below, I accept his opinion on this issue and I find that Dr. Lian’s failure to assess Ms. Fortune-Ozoike after his discussion with Nurse Tran between 9:33 and 9:49 p.m. did not constitute a breach of the standard or care. In my view, the Plaintiffs have not established that an average emergency room physician in the same circumstances as Dr. Lian would have assessed Ms. Fortune-Ozoike at that time, based on the information that was available to him.
[98] Dr. Sayal was a very credible witness. He did not argue with counsel, he readily admitted what needed to be admitted and he presented his opinion fairly. However, on this particular issue, there are two concerns. First, the alleged “red flag” in this case, i.e. that it is unusual for a physician to be asked for pain medication for a knee injury, was a general proposition advanced by Dr. Sayal with almost no elaboration or support. Further, as noted above, Dr. Boushy was not cross-examined on this point.
[99] The second concern is how Dr. Sayal originally arrived at his opinion and how he may have been influenced by hindsight and information that was not available to Dr. Lian at the time. While Dr. Sayal’s opinion at trial was based on the unusual nature of a request for pain medication for a knee injury, he admitted during his cross-examination that in formulating his opinion in his report, he had made assumptions that were incorrect regarding the information that was known or available to Nurse Tran and Dr. Lian. For instance, Dr. Sayal relied in his report on information contained in the Ambulance Call Report regarding the patient’s pain and a statement she made to the ambulance attendant that her knee dislocated and shifted back. In cross-examination, Dr. Sayal stated that, in his experience, EMS (Emergency Medical Services) staff relate facts to the triage nurse and he assumed that that had occurred in this case. However, there is no evidence before me that the information in issue was conveyed to Nurse Tran and the evidence is that the Ambulance Call Report was faxed to the Hospital at 11:06 p.m., long after the triage process was completed. I also note that Dr. Sayal did not review the transcript of the examination for discovery of Nurse Tran before preparing his report.
[100] Based on the evidence before me, I conclude that the applicable standard of care did not require Dr. Lian to see Ms. Fortune-Ozoike out of order between 9:33 and 9:49 p.m.
3. Whether Dr. Lian’s failure to conduct an examination of Ms. Fortune-Ozoike for compartment syndrome or to notify Dr. Lai of his concern that she might be developing compartment syndrome when he reassessed her at 1 a.m. was a breach of the standard of care
[101] As stated above, Dr. Lian’s evidence is that when he was asked by Nurse Komolafe to reassess Ms. Fortune-Ozoike at 1 a.m. he was concerned about compartment syndrome. The experts disagree as to whether the examination he conducted at that time met the standard of care.
a. Summary of expert evidence
[102] Dr. Sayal’s opinion was that when Dr. Lian reassessed Ms. Fortune-Ozoike at 1 a.m., Dr. Lian should have shown clinical concern for the possibility of compartment syndrome, which is a known complication of knee dislocation. In his view, Ms. Fortune-Ozoike was experiencing at that time pain that was out of proportion to what was expected, and she was still in pain after receiving morphine at 12:42 a.m. According to Dr. Sayal, Dr. Lian should have examined Ms. Fortune-Ozoike for signs of compartment syndrome, i.e. he should have taken the splint off in order to palpate the compartments between the patient’s left knee and ankle, he should have passively stretched the muscles by moving the ankle to assess for worsening pain with passive movement, and he should have completed a distal neurovascular assessment, including palpating pulses under the splint. Dr. Sayal stated that if Dr. Lian was not in a position to manage the situation appropriately, he should have called Dr. Lai who was by then the most responsible physician to inform him of the change in status. Dr. Sayal also expressed concern about the fact that Dr. Lian did not document the care that he gave to Ms. Fortune-Ozoike at 1 a.m.
[103] Dr. Boushy’s opinion was that as long as the neurovascular examination was normal at 1 a.m., Dr. Lian met the standard of care if Ms. Fortune-Ozoike’s pain was relieved by the loosening of the bandage, even if Dr. Lian did not do anything else afterwards. He stated that if pain developed shortly after a reduction, it was very common that it was related to the splint and, therefore, it was very common that emergency physicians would attempt to relieve the tension or remove the tensor bandage and assess how the patient responded to that. Dr. Boushy agreed that compartment syndrome had to be on Dr. Lian’s differential diagnosis and that, generally, a physical examination was required to exclude compartment syndrome, including flexing and extending the foot. However, his view was that a physical examination was not required in this case as the neurovascular examination was normal and the patient’s pain reduced. Dr. Boushy also noted that given the reduction in pain, the likelihood of compartment syndrome was very low. However, he added that if there was still pain about which the physician was concerned, a more detailed examination was required.
[104] As stated above and as explained further below, I have considerable difficulty with Dr. Boushy’s evidence on this issue. The following are excerpts from Dr. Boushy’s evidence at trial which inform the discussion below regarding the assessment of his evidence:
Q. Well, look, when you see a patient, you come up with a list of things – you come up with your differential diagnosis.
A. Yes.
Q. Okay. And that will include things which are very common. Yes?
A. Correct.
Q. There are some things that you see in the emergency room every day.
A. Correct.
Q. Sore throats and whatever.
A. Yeah.
Q. And it will include things that are very uncommon.
A. Correct.
Q. Right. And it will include things that are not serious.
A. Correct.
Q. Probably many of the cases that you see in the emergency room are not very serious.
A. Correct, yes.
Q. And it will include things that are very – very serious.
A. Correct.
Q. And where something is very serious it has to be excluded.
A. Yes. We should – the answer is yes.
Q. Right. On a general level.
A. Off of your list it has to be excluded.
Q. Right. If something is a threat to the patient’s life or limb it has to be investigated and either confirmed or excluded.
A. Or excluded from your list.
Q. Right. It [sic] it’s confirmed it needs to be treated. If it’s excluded you can go down to the next thing.
A. Correct.
Q. Right. And when you said that Dr. Lian had a differential diagnosis what you meant I think is that on the one hand he was thinking perhaps the bandage is too tight.
A. Correct.
Q. That would be in the not very serious but also pretty common category.
A. Correct.
Q. For a patient in the situation that she was in at one o’clock in the morning.
A. Correct.
Q. Right. And he has also told us that he had in his mind the possibility of compartment syndrome. Yes?
A. Yes.
Q. Right. And compartment syndrome is at the other end of that scale in terms of seriousness.
A. Yes.
Q. It’s very serious.
A. Yes.
Q. And so, it has to be excluded. Yes?
A. It has to be excluded from your list of differentials, yes.
Q. Right. And the way it is excluded is the clinical examination.
A. In part.
Q. And in particular, a clinical examination of the compartments.
A. Can you ask the question again?
Q. You cannot exclude compartment syndrome without examining the patient’s compartments, can you?
A. I disagree with that.
Q. What I am suggesting to you is that any physician who forms a differential diagnosis which includes compartment syndrome must perform an examination to exclude the diagnosis of compartment syndrome. And as a general principle, I think you agree with that.
A. I think to be complete to rule out a compartment syndrome, if we’re just talking about the physical exam, then I would agree with you.
Q. Okay. And that physical examination in a patient who has a suspected compartment syndrome in the lower extremity, because you can get it in your arms, and that’s a different thing. We don’t need to worry about that.
A. Yeah.
Q. But in the – in a case of a patient who has a compartment syndrome in the lower extremity, that examination has to include moving the foot.
A. We don’t just do an examination for compartment syndrome. When we think about compartment syndrome we think about the whole picture, right. So, if you go in there just concentrating on a physical exam you’re going to miss compartment syndrome. So, what I’m – what I’m saying is that you got to take what you do in the physical exam and put it together with the history. So, if you go in there and you do an examination that you feel comfortable with whatever that examination is, along with the history, and you think that you can rule out compartment syndrome then the standard care [sic] can be met. That doesn’t mean it is, but it can be met. Okay.
Q. Well, it’s not enough for you to be comfortable with your own examination. You have to do an adequate examination, correct?
A. Correct.
Q. Okay. So, that examination has to include moving the patient’s foot.
A. To rule out compartment syndrome?
Q. Yes.
A. You asked the – when you were – when you phrased your question you say ‘has to include.’
Q. Yes.
A. I would disagree with that.
Q. I’m going to suggest to you a necessary part of an examination to rule out compartment syndrome involves flexing extending the patient’s foot.
A. Correct, I would agree with that.
Q. Okay. So, it’s a language thing. I’ve got it.
A. Yes.
Q. And the standard of care requires the physician performing the examination to conduct that necessary component.
A. I disagree with that.
Q. So, hold on. So, you’re telling me that it is a necessary component of the examination that you flex and extend the patient’s foot.
A. Yes.
Q. And the reason it is a necessary component is because you have to assess whether the pain increases with movement. Yes?
A. Yes.
Q. And that’s because of the way the muscles work. If there is elevated pressure it will be more painful with movement.
A. Correct.
Q. All right. That’s in the textbook that we’re not going to look at. And so, you have to – you have to actually check that in order to rule out compartment syndrome. That’s one of the things you have to do.
A. It’s one of the things that you should do to rule out compartment syndrome.
Q. Okay. And the standard of care requires you to do that.
A. I can’t comment on that because I can’t comment on the standard of care to examine a compartment syndrome – for the physical exam of compartment syndrome.
Q. So, are you telling me – are you telling this court that you do not feel qualified to comment on what the standard of care is for an emergency room physician who is conducting an examination to rule out compartment syndrome?
A. No.
Q. Okay. You do know what the standard of the care is for an emergency room physician to rule out compartment syndrome.
A. In general. Is this a general question, or is this about this specific patient? Because it makes a difference.
Q. Let’s start with the general.
A. Okay.
Q. Are you capable of telling the court what the standard of care is of an emergency room physician who is conducting an examination to rule out compartment syndrome, which they have put on their differential diagnosis?
A. Yes.
Q. Okay. And are you capable of telling the court what the standard of care is of an emergency room physician conducting an examination for amongst other things, the purpose of ruling out compartment syndrome in the circumstances of this case?
A. Yes – yes, I am capable of that.
Q. Okay, that’s good because otherwise we would be wondering why you’re here.
A. Right.
Q. All right. And so, I’m suggesting to you that what that standard includes it requires amongst other things, which we are going to come to, don’t worry, but one of the things it requires is that the physician flex and extends the patient’s foot.
A. In general. For a general patient if you’re ruling out compartment syndrome, I agree.
Q. For any patient when you are ruling out a compartment syndrome.
A. In general, for a patient, in general to rule out compartment syndrome I agree with you. But not – it’s not that easy on every patient.
Q. But you have to do it…
A. You have to try.
Q. … on every patient.
A. You have to try or convince yourself that what you’ve done – that what you’ve done is enough to rule out compartment syndrome.
Q. Well, if you convince yourself without conducting what you have already told us is a necessary part of the examination then you have convinced yourself of something wrong, correct?
A. In this particular case, if I read it correctly, the symptoms reduce. The pain is the first symptom of compartment syndrome. We all know that. If that pain reduces back to the way it was, let’s say back to the half hour before, the likelihood of compartment syndrome is very low. Like cause pain is number 1 – it’s first on your list for compartment syndrome.
Q. […] And another necessary component of examining a patient with a suspected compartment syndrome in the lower limb is to palpate the compartments.
A. It is part of the examination.
Q. Right. It is a necessary part of the examination.
A. It’s part of the examination to rule out compartment syndrome.
Q. Right. It is a necessary part of the examination to rule out compartment syndrome.
A. It is a very important part of ruling out a compartment syndrome.
Q. One of the ways that you tell if a patient has compartment syndrome or not is by determining whether their compartments are swollen, firm, and tender.
A. Correct.
Q. Right. That is the sign of compartment syndrome.
A. One of the signs, correct.
Q. And if you don’t know, if you can’t determine that sufficiently you can go on to actually measure the internal pressure of the compartments.
A. Yes.
Q. Right. So, you start by seeing if the compartments feel swollen, firm, or tender. Yes?
A. Yes,
Q. That’s the first step. And then you – if you don’t know or you want more assurance you can use a device to actually measure the internal pressure in the compartments.
A. If we’re still talking about the physical exam then I agree with you.
Q. Yes, we are talking about the physical exam.
A. Yes.
Q. And the way that you tell if the compartments feel swollen, firm, and tender is by touching them.
A. Correct.
Q. Right. You can’t do it without actually touching the compartments.
A. Correct.
Q. And touching the compartments to assess whether they are swollen, firm, and tender is a necessary part of an examination to rule out compartment syndrome.
A. It is a very important part of examination.
Q. You would do it in every examination to rule out compartment syndrome.
A. If I had access to that calf and the patient was having pain, I agree.
Q. Right. A patient who comes in and has no pain whatsoever you wouldn’t check for compartment syndrome because you wouldn’t – it wouldn’t be in differential diagnosis.
A. Fair enough.
Q. Right?
A. Or in this particular case, if you remove the tensor and the pain improves to the point where less than previously, that would be another example.
Q. Wouldn’t you want to be safe even in that case?
A. Yes.
Q. All right, because look, a patient who has compartment syndrome and has a bandage on their leg there’s two kinds of pressure, right. There’s pressure internally from the bleeding or the reperfusion injury that’s causing the compartment syndrome. Yes?
A. Yes.
Q. And there’s additional pressure from the outside, from the bandage that’s wrapping it.
A. Right.
Q. Right. Both of those things are increasing the pressure. Yes?
A. Yes.
Q. And both of those things are increasing the pain.
A. Agree.
Q. Right. And in a case like that, when you loosen the bandage, the patient might feel some relief because one of those two sources has been removed.
A. It’s possible. It is possible. My experience in that – what I would want to see in this case, is that the pain reduced to where it was previously. So, if you’re saying that the pain did not reduce when that tensor was removed back to the way it was, then I agree. I think that this would need to be escalated.
Q. Well, even if the pain – what I’m suggesting to you is that the fact that the pain might reduce somewhat doesn’t mean that the patient doesn’t have compartment syndrome.
A. Oh, I agree with that.
Q. Right.
A. Yes.
Q. And there is no suggestion in the record that the patient had no pain after the bandage was loosened, right?
A. Right, and you wouldn’t – you wouldn’t expect to have no pain, but, yes.
Q. And so, to be safe because you already had a suspicion of compartment syndrome wouldn’t you have to do the examination to rule that out, even if the pain had improved?
A. So, what you’re asking is if the pain had improved because the patient, she removed the tensor and the patient is back to the way they were, and they say oh, that’s a big relief, if the patient says I feel a lot better, then the chance of compartment syndrome almost comes off your differential, right. But if there’s pain there that you’re concerned about you need to go further. And I would agree with you then you would have to go on to exam, more detailed exam.
[105] Dr. Boushy originally interpreted the Hospital records as showing a reduction in pain at 2 a.m. However, he later admitted that this was not clear and that it was not possible to know from the records only whether the pain had reduced or not as the level of pain was not specified in the nurse’s notes. Dr. Boushy agreed that there was no note anywhere stating that the patient’s pain had improved. I also note that Dr. Lian did not see Ms. Fortune-Ozoike after 1 a.m. to inquire about her level of pain, nor is there any evidence that he gave specific instructions to the nurses in this regard.
[106] During his cross-examination, Dr. Boushy was extremely reluctant to admit obvious statements in relation to Dr. Lian’s failure to make notes of his assessment at 1 a.m. It is only after reviewing the policy statement issued by the College of Physicians and Surgeons of Ontario on medical records, which contains excerpts from regulations made under the Medicine Act, 1991, S.O. 1991, c. 30, that he conceded (but even then, not at the first question) that Dr. Lian had a legal obligation to make notes. However, he refused to acknowledge that the standard of care of a practicing physician required them to make notes of their assessments of patients, and he said that he could not comment on the standard of care with respect to handwritten notes, or any notes. Dr. Boushy stated that he did not know whether the standard of care required emergency room physicians to make notes of their assessments of patients. He later said that he did not think that failing to make a note was a breach of the standard of care, but he subsequently reverted to his position that he was not an expert with respect to providing the standard of care for handwritten notes.
b. Analysis and conclusion
[107] I find that Dr. Lian breached the standard of care when he assessed Ms. Fortune-Ozoike at 1 a.m. because he failed to: (a) conduct an examination for compartment syndrome, more specifically palpate the compartments in the patient’s left leg and passively stretch her muscles by moving her ankle; and (b) notify Dr. Lai of his concerns that Ms. Fortune-Ozoike might be developing compartment syndrome.
[108] I unreservedly accept Dr. Sayal’s opinion on this issue. His opinion is rational, as well as consistent with the process of differential diagnosis and the foreseeability of harm and risk posed by compartment syndrome to the patient.
[109] In my view, Dr. Boushy’s own evidence largely supports Dr. Sayal’s opinion and the conclusion that Dr. Lian breached the standard of care by not doing a proper physical examination for compartment syndrome at 1 a.m. However, Dr. Boushy refused to concede that there was a breach of the standard of care, even though this was the logical conclusion based on his own evidence. Instead, Dr. Boushy resorted to splitting hair, giving inconsistent answers, raising issues that had no application to this case, astonishingly taking the position that he could not comment on the standard of care regarding a physical examination for compartment syndrome or the making of notes, trying to justify the absence of a proper examination based on unclear notes of nurse assessments that took place after 1 a.m. and of which Dr. Lian was unaware at the relevant time, and adopting a reasoning and conclusion that are inconsistent with the process of differential diagnosis and fail to take into account the very serious risks posed by compartment syndrome.
[110] I agree with the following submission of the Plaintiffs in their closing submissions:
The inescapable conclusion is that Dr. Boushy would prefer to claim he was not qualified to opine on the standard of care – despite having been tendered for precisely that purpose – rather than concede a breach on the part of his client. A refusal to make obvious concessions is a hallmark of expert who has taken on the role of advocate.
[111] While Dr. Boushy agreed that a physical examination would generally be required to exclude compartment syndrome, he did not provide any rational explanation as to why it was not required in this case. Based on his own evidence, if something is a threat to the patient’s limb, it has to be investigated and either confirmed or excluded. Here, Dr. Lian did not conduct the appropriate investigation, and the reduction in pain right after the tensor bandage was loosened was insufficient to exclude a diagnosis of compartment syndrome. Further, there is no evidence that even the standard applied by Dr. Boushy was met in this case, i.e. “that the pain reduced to where it was previously”.
[112] As noted above, Dr. Lian did not see Ms. Fortune-Ozoike again to monitor her level of pain after 1 a.m., nor is there any evidence that he asked the nurses to do so. Dr. Boushy’s reliance on the nurse’s assessments at 2 a.m. and 3 a.m. is the use of hindsight, yet not very good hindsight. As pointed out above, the notes for these assessments are unclear as to the level of pain. In addition, there is evidence that Ms. Fortune-Ozoike’s pain remained poorly controlled as the nurses administered morphine more frequently than had been ordered, including at 2:50 a.m.
[113] Dr. Lian was aware of the risk of compartment syndrome at 1 a.m. and he did not conduct the physical examination that was required to exclude this very serious risk. Thus, I find that Dr. Lian’s assessment of Ms. Fortune-Ozoike at 1 a.m. fell below the standard of care.
[114] I also find that Dr. Lian breached the standard of care by failing to notify Dr. Lai – under whose care Ms. Fortune-Ozoike was – of his concerns that the patient was developing compartment syndrome and of the change in her condition following their last conversation. Dr. Lai said during his testimony that he would have expected to have been notified of the findings at 1 a.m. as there were a number of early signs of compartment syndrome. Among other things, Dr. Lai agreed that a patient reporting a burning pain was a potential symptom of compartment syndrome. Dr. Lai further said that if he had been notified, he would have come to the Hospital immediately and assessed the patient himself for compartment syndrome and any potential vascular compromise. He would have performed a neurovascular examination, assessing both limbs. If the physical examination was indicative, he would have ordered adjunct investigations, including an Ankle Brachial Index (“ABI”) if there was an asymmetry in the pulses, and possibly a CT scan.
[115] While Dr. Lian’s conduct cannot be assessed against what Dr. Lai, as an orthopaedic surgeon, would have done, Dr. Lian should have advised Dr. Lai of the change in the patient’s status so that the risk of compartment syndrome, which was limb-threatening, could be properly managed and monitored.
[116] In light of the foregoing, I find that Dr. Lian breached the standard of care of an emergency room physician at 1 a.m.
4. Whether Dr. Lai’s failure to respond to Dr. Lian’s page prior to leaving the Hospital sometime after 11:59 p.m. was a breach of the standard of care
[117] Since the Plaintiffs only discovered during the trial and after the close of their case that Dr. Lai was still at the Hospital at 11:59 p.m. after being paged at 11:53 p.m., there is no expert evidence on the standard of care with respect to checking a pager. The Plaintiffs argue that this issue falls within the exception identified in ter Neuzen at para. 51 and that a breach of the standard of care can be found in this case as a physician’s failure to check their pager before leaving the hospital is a practice that fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact.
[118] Dr. Lai testified that his practice was to return pages as soon as possible and that if he was at the Hospital when he received a page, he would go see the patient before leaving the Hospital. However, as stated above, Dr. Lai’s evidence with respect to this particular case is that he found out that he had been paged when he was in his car. If he was paged while he was still at the Hospital, he was not aware of it. He said that he may not have heard the page.
[119] The Defendants point to a Hospital policy entitled “Consultant Response Time – Emergency Department” (“Consultant Policy”) which provides that on-call consultants must respond to requests for their services from the emergency department by telephone within 15 minutes to a maximum of 30 minutes from the time the call was received. They say that Dr. Lai called back within that window. The Defendants also argue that Dr. Lai’s failure to see or hear the missed page before leaving the Hospital was inadvertence, not negligence, and they note that Dr. Lai had just completed a long surgery.
[120] Based on the evidence before me, which was very limited on this issue, I conclude that Dr. Lai’s failure to return Dr. Lian’s page before he left the Hospital did not breach the standard of care. The Consultant Policy relied upon by the Defendants raises the issue of whether calling back within the specified window was sufficient to meet the standard of care or whether a prudent and diligent consultant in the same circumstances as Dr. Lai in 2013 would always have checked their pager before leaving the Hospital, even if the pager did not beep. There is no evidence on this point before me. Further, the evidence about Dr. Lai’s pager and how it worked was very limited and the possibility that Dr. Lai’s pager may have malfunctioned was not satisfactorily addressed.
[121] Thus, I find that the Plaintiffs did not discharge their burden of proof with respect to this alleged breach of the standard of care on the part of Dr. Lai.
5. Whether Dr. Lai’s failure to either perform or ensure that Dr. Lian performed a neurovascular examination of Ms. Fortune-Ozoike in a particular way when he was consulted by Dr. Lian around 12:30 a.m. was a breach of the standard of care
[122] With respect to this alleged breach, the experts disagree, among other things, as to whether Dr. Lai could rely on Dr. Lian to conduct an adequate neurovascular examination, and whether such an examination had to include an examination of the uninjured limb.
[123] Before turning to the evidence of the experts on this issue, it is necessary to refer to Dr. Lai’s evidence regarding his standard practice to determine whether a patient is vascularly intact:
Q. You mentioned that in both discussions, Dr. Lian told you that the patient was neurovascularly intact?
A. It is typically my practice to ask the consulting physician if the patient was neurovascularly intact.
Q. I want to break this down a little bit more precisely. First of all, do you recall having a discussion with Dr. Lian about whether or not the patient was neurovascularly intact?
A. I can’t recall exactly right now.
Q. But your practice is to ask a consulting physician, when somebody calls you for your advice on one of these cases, whether or not the patient is neurovascularly intact?
A. Yes.
Q. What specifically do you ask? By which I mean, do you just say ‘is the patient neurovascularly intact?’, or do you have a list of questions that you would typically ask a consulting physician?
A. I don’t recall the exact questions I asked him, but typically I would ask the consulting physician if the patient is neurovascularly intact, they could palpate the pulses, wiggling – moving the toes, no numbness, tingling, and make sure the other side is equal.
Q. When you say “make sure the other side is equal”, what do you mean by that?
A. That they could palpate a pulse on the other side, a similar pulse on the other side.
Q. I don’t want to put words in your mouth, but in this case, this patient was presenting with a suspected injury to her left knee. So when you say the other side, what are you talking about?
A. The right side.
Q. How would you expect the pulses to be assessed on each side?
A. Through palpation of the dorsalis pedis.
Q. Why would you ask whether the pulses had been checked on both sides?
A. If there is a difference in the pulses, then this will lead me to subsequent investigations.
Q. Why is that?
A. If there is a difference in pulses, this may suggest vascular injury.
Q. What further investigation would you undertake in the event that there was a difference in pulses?
A. If there was a difference in pulses, the investigations would be either a ABI Index or a CTI Angiogram.
Q. The other test that you suggested you could order in the event of different pulses is a CT Angiogram, is that correct?
A. Sorry, I'll clarify, a CT scan –
Q. Yes.
A. – would suffice.
Q. A CT scan, all right. Was a CT scan available at the time that you were consulted by Dr. Lai [sic]?
A. If I submitted the requisition, it would be available, yes.
Q. I take it that it is important to compare the injured limb with the opposite limb to determine if – pardon me, let me try this again. The reason you need to compare the injured limb and the opposite limb is because the difference between the two might indicate problems, is that fair?
A. That is correct.
Q. Right. One of the things that you’ve already mentioned is that differences in the pedal pulse on the two limbs can be suggestive of underlying pathology?
A. If there is a difference, yes.
Q. Yes. I would suggest that differences in appearance between the two limbs could also be suggestive of underlying pathology.
A. What do you mean by appearance?
Q. If one limb is discoloured and the other is not, for instance.
A. Yes.
Q. Yes. So that would be an important part of an assessment of a suspected vascular injury?
A. Yes, but typically it would be something that the emergency physician would mention to me.
Q. Differences in the temperature between the injured and uninjured limb could also be clinically significant?
A. Correct.
Q. If the injured limb is colder than the uninjured limb, that also can suggest a vascular injury?
A. Correct.
Q. In cases of dislocated knees, the risk of vascular injury is high?
A. Correct.
Q. It is common for people with dislocated knees to suffer vascular injury?
A. I’m not sure how common it is.
Q. Certainly it would be on your index of suspicion always?
A. Yes.
Q. It is important to conducted [sic] this assessment that you’ve talked about?
A. Which one?
Q. The neurovascular assessment, and in particular comparing the injured and uninjured limb?
A. It would be important to conduct a neurovascular assessment.
Q. Including comparing the injured and the uninjured limb?
A. Correct. That would be invariably what – that would be typically what I would ask. I cannot recall the exact conversation at that time.
[124] It is clear from the evidence that Dr. Lai did not follow the practice described above in this case.
a. Summary of expert evidence
[125] The Plaintiffs’ expert, Dr. Pichora, stated that a knee dislocation was a serious injury that was known to have significant associated risks of vascular injury, and that injuries to the popliteal artery could make knee dislocation a limb-threatening emergency. As a result, his view was that an orthopaedic surgeon needed to have a heightened sense of awareness of those risks and make sure that they were assessed and that everything was done to mitigate them promptly. He described as follows the assessment that, in his opinion, was required to be performed by an orthopaedic surgeon in 2013:
A. […] Well, the first thing is to try to confirm with or without x-rays that their [sic] dealing with a knee dislocation. And you know typically, at that time you would also assess circulation by checking the pulses in the foot. If they don’t feel normal compared to the other side also try to assess the other pulses in the leg to make sure that the circulation farther up is normal. So, the femoral pulse at the groin, the popliteal pulse behind the knee and then the two pulses at the ankle, and compare it to the opposite side. You’re also wanting to look at skin colour, temperature, capillary refill. And then check for neurovascular peripheral nerve function which would involve you know, objectively testing the sensation and the motor power in some of key muscles. The motor parts in the key muscles that are motored by the sciatic nerve branches just above the knee into a posterior tibial and a peroneal branch. Typically, with knee dislocations the posterior tibial branch is spared. Whereas there’s a [sic] quite a high incidence of peroneal nerve injury. And so, the muscles that extend the foot, like pull up the foot, the foot and the toes, or tilted out laterally, they may not be working if that nerve is injured. So, it can produce what’s known as a drop foot.
Q. When you say that you would have to check the pulses, you describe measuring the pulses in various locations on the leg.
A. Right.
Q. And then you mentioned that you would need to compare the pulses with the other side. Why is that?
A. Well, sometimes it’s difficult to know if you’re feeling the patient’s pulse or the pulse in your own fingers, and that can be very difficult if the pulse in the foot is absent or thready. And so, there are different levels of pulse quality. And if you’re – if you’re checking the pulses in the injured leg and they’re perfectly normal then comparing to the other side would be sort of routine quality measure. However, if the pulses in the leg of concern are absent or feel abnormal or difficult to feel then you absolutely need to compare to the other side. And sometimes that helps to guide you as to whether you’re actually feeling the patient’s pulse. And sometimes I’ll palpate both legs at the same time to ensure that what I’m feeling is synchronous and it’s compatible with their pulse and not mine. And that’s a useful adjunct in situations where the pulse is difficult to feel.
[126] Dr. Pichora also gave evidence about adjunctive measures that can be used to assess a patient’s vascular status, such as Doppler Pressure Index (“DPI”) and ABI. Both the DPI and ABI involve checking the patient’s blood pressure in the affected limb and comparing it to that in the arm (ABI) or the opposite limb (DPI). Dr. Pichora’s expectation was that a DPI or ABI would be performed by an orthopaedic surgeon in 2013 in the case of a knee dislocation. However, the authoritative literature in the area of orthopaedic medicine in 2013 reflected a disagreement in the profession as to whether an ABI should be done in all cases of knee dislocation.
[127] Dr. Pichora’s opinion was that the examinations performed by Dr. Lian pre- and post-reduction, if they had been performed by an orthopaedic surgeon, would not have met the standard of care of an orthopaedic surgeon in the assessment of a patient with a knee dislocation as the examinations failed to include most of the elements discussed in his evidence reproduced above.
[128] Dr. Pichora expressed the view that Dr. Lai did not meet the standard of care of an orthopaedic surgeon when Dr. Lian called him between 12 and 12:30 a.m. He stated that since a knee dislocation is a limb-threatening injury, it was incumbent on an orthopaedic surgeon to ensure that the right neurovascular assessment was done and would be done. According to Dr. Pichora, this meant that the orthopaedic surgeon should have gone and see the patient. His evidence on this point was as follows:
Q. So, just assume that that is how the conversation happened. Again, from the perspective of an orthopedic surgeon in the position of Dr. Lai receiving a consult, do you have an opinion as to whether Dr. Lai met the standard of care in that discussion?
A. I do.
Q. What is your opinion?
A. I don’t believe that he did in my opinion.
Q. Why is that?
A. Well, for all the reasons that we’ve talked about in terms of the concerns around associated vascular and neurologic injury that are immediately limb threatening if they’re present. And so, I think it’s – and because these injuries are uncommon it’s my opinion that it’s incumbent on the orthopedic surgeon to ensure that a proper vascular neurologic exam has been done and will be done on a regular basis, and in my opinion that means going in and ensuring yourself that the findings are correct and repeatable and reliable.
And then what I’ve often done is to make sure that the nurses are able to do it and confirm the same findings, because we know here that there’s a very strong indication for doing adjunctive measures, doppler pressures or a CT angiogram. And that has not been done yet. And so, I don’t think it’s reasonable or safe to just go to hourly neurovascular checks when the initial examination. Full examination you know, according to that algorithm for example, has not been done. And then you’re unsure, knowing that the physical exam in these patients, especially an obese patient can be unreliable and difficult, you’re unsure whether the nurses are actually capable of doing it to the correct standard.
Q. What do you say Dr. Lai should have done?
A. Come in.
Q. And then what?
A. And then repeat the exam and in all likelihood perform doppler pressures if that hasn’t been done yet. He could’ve asked the emerg physician to do it. I don’t know if they would. And then start looking for a vascular surgeon because the indications would be there.
Q. And what do you mean by that?
A. Well, there’s been a knee dislocation. We know there’s a high risk of vascular injury. I think it’s highly likely. Almost certain in this situation that the doppler pressure studies had that been done at this time would not have been normal. Had the pulses in the opposite limb been examined and compared it’s quite likely that there would have been asymmetry there. And so, there would have been indications to proceed. And getting the vascular surgeon involved right away is essential.
[129] Dr. Pichora noted that the discussion that Dr. Lai said would be his normal standard practice if consulted did not happen in this case and, in any event, it was not sufficient. In his view, the standard of care required checking all of the pulses, not just one, and it was unclear whether Dr. Lai’s standard practice included an objective assessment of colour, temperature, capillary refill, sensation and motor power. Dr. Pichora repeated his opinion that Dr. Lai should have come in and examined the patient himself.
[130] The Defendants’ expert, Dr. Paitich, expressed the view that the standard of care did not require Dr. Lai to attend at the Hospital to assess the patient himself, nor did it require Dr. Lai to ask Dr. Lian about the manner in which he was conducting a neurovascular examination or to include in his order the specific manner in which the hourly neurovascular assessments had to be conducted. In Dr. Paitich’s opinion, Dr. Lai was entitled to rely on Dr. Lian. Dr. Paitich stated the following during his examination-in-chief:
Q. So I asked did the standard of care require Dr. Lai to inquire, during the second phone call with Dr. Lian, as to the manner of neurovascular examination undertaken by the emergency room physician?
A. No no he’s a health care provider, he’s part of the team, and he’s a qualified individual and we rely on our team members to give us reliable and accurate information. The team can’t function very well unless you rely on your team members.
Q. And did the standard of care require Dr. Lai to attend to the hospital, himself, to assess the patient at that time?
A. No if the if the scenario remains the same in that he’s been provided information that the person is neurovascular intact and the knee is reduced and the splint is on then no, with that information there’s no, there’s not going to do anything so no, answer’s no.
[131] Dr. Paitich also expressed the opinion that doing an ABI as part of a physical examination of a patient with a knee dislocation did not represent the standard of care applicable to an orthopaedic surgeon as at December 2013.
[132] For the purpose of preparing his expert reports, Dr. Paitich reviewed a number of documents, including the transcript of the examination for discovery of Dr. Lai. However, he did not review the transcript of the examination for discovery of Dr. Lian.
[133] Dr. Paitich’s second report, which he wrote after reviewing Dr. Pichora’s report, appears to assume erroneously that an examination of the uninjured limb was performed during the neurovascular assessments of Ms. Fortune-Ozoike, in accordance with the standard practice described by Dr. Lai during his examination for discovery. Dr. Paitich stated in his report that Dr. Lai “chose a reasonable algorithm and applied it, and that algorithm was well supported in the literature at the time of the event.”
[134] During his examination-in-chief, Dr. Paitich agreed with the proposition that “the most predictive physical finding for a vascular injury was a pulse deficit on examination of the pedal pulses.”. He also agreed with the concept of “selective arteriography”, which is based on the use of physical examination as an initial screening test to determine the need for an arteriography. According to Dr. Paitich, the method of selective arteriography was “liberally employed” in community hospitals in Ontario in December 2013. However, the literature that describes and advocates for selective arteriography requires an examination of both the injured limb and the “normal” or uninjured limb.
[135] In cross-examination, Dr. Paitich stated that, in practice, “the boots on the ground health care professionals” in 2013 did not routinely do a comparison with the unaffected limb when performing a neurovascular assessment unless there was an abnormality or a suspected abnormality in the injured leg. This opinion was not set out in his expert reports and, in fact, the proposition that an absence of comparison would meet the standard of care applicable to an orthopaedic surgeon in 2013 was contradicted by literature cited by Dr. Paitich in his report.
b. Analysis and conclusion
[136] I do not accept Dr. Paitich’s evidence. His performance as an expert witness was deplorable.
[137] In cross-examination, Dr. Paitich gave non-responsive answers to simple questions on multiple occasions, he attempted to resile from statements contained in his report, and he refused to admit obvious statements. In addition, he gave answers that made no sense in light of his own reports, the evidence given by Dr. Lai during his examination for discovery and the literature that was accepted as authoritative in the area of orthopaedic medicine, including by Dr. Paitich himself. He also repeatedly referred to “management strategies”, a concept that is not mentioned in his reports and the contents and relevance of which were not explained in any detail in relation to this particular case.
[138] While Dr. Paitich signed a Form 53 – Acknowledgement of Expert’s Duty, he did not provide opinion evidence that was fair, objective and non-partisan. He acted as an advocate.
[139] In contrast, Dr. Pichora did provide opinion evidence that was fair, objective and non-partisan. He was a credible witness.
[140] Based on the evidence of Dr. Pichora and the authoritative literature that was put to him and/or Dr. Paitich, I find that, at a minimum, the standard of care applicable to an orthopaedic surgeon practicing in Ontario in 2013 required, in the circumstances of a patient with a knee dislocation, that: (a) a neurovascular examination be performed and that it include a comparison of the injured limb with the uninjured/contralateral limb; and (b) if the orthopaedic surgeon did not perform the examination themselves, they had to ensure that the person performing the examination was doing it properly.
[141] While there was some debate in the literature in evidence before me as to whether, in 2013, the standard of care required an orthopaedic surgeon to perform an ABI or DPI, there was no real debate that a comparison of the injured limb with the uninjured limb was required. Literature setting out this requirement was quoted by Dr. Paitich in his report. While Dr. Paitich tried to explain away these references during his testimony, his evidence on this point was utterly unconvincing.
[142] While I accept the Defendants’ argument that authoritative literature and texts may not, on their own, be determinative of the standard of practice, I find that in this case they do set out the standard of practice with respect to the requirement to examine the uninjured leg. I make this finding based on the evidence before me, including the evidence of Dr. Pichora and Dr. Lai himself.
[143] I accept Dr. Pichora’s opinion that because cases of knee dislocation are uncommon, it is incumbent on an orthopaedic surgeon to ensure that a proper neurovascular examination is performed given the significant risks of vascular injury in these cases.
[144] At 12:30 a.m., Ms. Fortune-Ozoike was admitted under Dr. Lai’s care and Dr. Lai became the most responsible physician. While he may not have had to come to the Hospital to examine the patient himself (a point that I do not need to decide[^7]), at a minimum he had to ensure that the physical examination that he would have had to perform was adequately performed by another health care professional. Given the uncommon nature of knee dislocations and the very serious risks associated with them, it was not reasonable for an orthopaedic surgeon to simply assume that an emergency room physician and/or a nurse would know what to do and what to check and would do it properly. As stated above, the degree of care required has to be commensurate with the potential danger, and the standard of care expected of a medical practitioner increases with the foreseeability of harm or risk to a patient. As opined by Dr. Pichora, an orthopaedic surgeon needs to have a heightened sense of awareness of the risks of vascular injury associated with knee dislocation and make sure that they are assessed adequately and promptly.
[145] Dr. Lai did not follow the standard practice that he described in his evidence and there is no evidence that he took any steps when he was consulted by Dr. Lian between 12 a.m. and 12:30 a.m. to ensure that Dr. Lian had performed an appropriate neurovascular examination of Ms. Fortune-Ozoike, including a comparison of the injured limb with the uninjured limb. As a result, I find that he breached the standard of care.
6. Causation
[146] Now that I have found that both Dr. Lian and Dr. Lai have breached the standard of care, I turn to the issue of causation.
[147] As stated above, in an action for delayed medical diagnosis and treatment, a plaintiff must establish on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. A plaintiff who fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment will fail to establish their claim. 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”.
a. Summary of expert evidence
[148] Both Dr. Kapila, the Plaintiffs’ expert, and Dr. Dueck, the Defendants’ expert, agreed that Ms. Fortune-Ozoike sustained two types of injuries to her popliteal artery as a result of her fall/knee dislocation: (1) a partial transection of the artery (i.e. a hole in the artery wall) causing bleeding outside of the artery; and (2) an injury inside of the artery (i.e. an injury to the intima, which is the inside lining of the artery), promoting blood clots and causing turbulent or abnormal blood flow and, ultimately, leading to the occlusion of the artery. In addition, both experts agreed that Ms. Fortune-Ozoike had compartment syndrome.
[149] Both experts were also generally in agreement with respect to the signs of ischemia in this case. Ischemia occurs when there is an inadequate supply of oxygen and nutrients at the cellular level. This can be a chronic process where the amount of perfusion decreases slowly over a long period of time, or it may be an acute process where it occurs rapidly (like in this case). According to Dr. Dueck, ischemia started at some point before 4:40 a.m. in this case because one sign of malperfusion/ischemia was documented at 4:40 a.m. by Nurse Molino (cooler foot). Since there was no documentation of any malperfusion at the previous assessment at 3:20 a.m. (normal capillary refill), Dr. Dueck concluded that malperfusion began at some point between 3:20 and 4:40 a.m.
[150] Similarly, Dr. Kapila stated that Nurse Molino’s assessment at 4:40 a.m. was evidence of a change in the patient’s vascular status as Ms. Fortune-Ozoike was complaining about numbness in her left leg and foot and her left foot was cooler than her right foot. However, there was still some blood flow as Nurse Molino was able to palpate a left pedal pulse. There was a further change in vascular status at 5:30 a.m. when Nurse Molino indicated to Dr. Lai that Ms. Fortune-Ozoike was not able to move her toes, which Dr. Kapila described as a “red flag”. There were additional documented changes when Nurse Komolafe noted a faint pedal pulse at 5:30 a.m. (in addition to numbness of toes and a left foot colder than the right foot) and when Dr. Lai could no longer detect a pulse in the left foot at 6 a.m.
[151] Dr. Kapila’s opinion was that starting at 6 a.m., when there was an absent pulse, Ms. Fortune-Ozoike’s leg was “salvageable” without any functional impairment if the following had been done within 1-2 hours (i.e. by 7-8 a.m.): (a) a fasciotomy to reduce the pressure in the compartment; and (b) revascularization of the leg using a shunt.
[152] Dr. Kapila’s view was that if this was accomplished within 2-4 hours (i.e. by 8-10 a.m.) instead of 1-2 hours, “it would be likely to save the leg with some dysfunction” and “it’s more likely than not that you’d be able to save the limb”. He stated that “on balance, most of the time legs can be saved such that they’re able to walk with it.” According to Dr. Kapila, Ms. Fortune-Ozoike could have had a “somewhat functional” leg, that is, her ability to walk could be salvaged, but with some amount of disability (e.g., foot drop, permanent nerve damage, etc.).
[153] Dr. Kapila opined that after four hours (i.e. after 10 a.m.), it was unlikely that the leg could be saved and the risk for amputation would be the highest concern.
[154] Dr. Kapila agreed with the opinion expressed in Dr. Dueck’s report that: (a) in general terms, when flow is interrupted to a limb, vascular surgeons try to re-establish flow within six hours; and (b) in most cases, re-establishing flow within this time frame results in acceptable outcomes. As set out below, while Dr. Kapila used 6 a.m. (i.e. absent pulse) as the start time for the timeframes he used,[^8] Dr. Dueck used 3:20 to 4:40 a.m. (i.e. the onset of ischemic signs) as the start time. Dr. Kapila also agreed with Dr. Dueck’s conclusion that Ms. Fortune-Ozoike’s limb would have been salvaged if Dr. Lai had arrived at her bedside by 2:45 a.m.
[155] Dr. Kapila expressed the view that since Ms. Fortune-Ozoike suffered the injury to her popliteal artery at the time of her fall, an abnormality or asymmetry would have been detected between the two legs had Ms. Fortune-Ozoike’s right leg been checked for comparison purposes during the physical examinations performed at the Hospital. Such abnormality or asymmetry would have resulted in imaging being ordered.
[156] Dr. Kapila’s evidence was that he did a rotation at the Hospital in or around 2013 and that, at that time, CT scans were available in the middle of the night. He stated that if a request for a CT scan was marked urgent, it could be completed within 30 to 60 minutes.
[157] According to Dr. Kapila, a CT scan / imaging would have shown, at a minimum, the transection injury to the popliteal artery, which constitutes a vascular emergency and requires immediate treatment. In his opinion, as soon as transection of the artery was disclosed, the CritiCall policy was engaged. He stated that with such a diagnosis, St. Michael’s Hospital would have accepted Ms. Fortune-Ozoike as a patient.
[158] Dr. Dueck agreed with the following statement in Dr. Kapila’s first report: “While acute limb ischemia usually requires reperfusion within six hours after onset, the window is likely lower in situations with concomitant acute compartment syndrome. Ideally this reperfusion should aim to revascularize the leg within two hours.” Dr. Dueck said that layering compartment syndrome on top of malperfusion aggravates the situation and increases the urgency.
[159] Dr. Dueck was asked about the three timeframes set out in Dr. Kapila’s report. He agreed with Dr. Kapila’s opinion regarding the first (1-2 hours) and third (4-6 hours) timeframes. He stated the following with respect to the third timeframe:
Q. Now going back for a sec to the first one after four hours, why is the limb likely unsalvageable after four hours when you have the combination of compromised vascular flow of compartment syndrome.
A. We know that an acutely ischemic limb is, is salvageable as a general rule of thumb within six hours of the onset of the ischemia but there are – can be mitigating factors which may lengthen that window or shorten that window. For example, some patients who may have some element of chronic disease already strangely may tolerate acute ischemia better because they have more robust collateral networks. Of course, that was not the case with this patient. Other injuries can increase the need to revascularize the limb faster, for example, a crush injury is a notorious injury that’s difficult to treat. Incompartment [sic] syndrome is, is similar. In my experience and in my judgement, I would say by – if that situation has existed for more than four hours it’s, it’s rarely recoverable.
[160] Dr. Dueck’s evidence was the following with respect to the 2-4-hour timeframe:
Q. We have the middle range, two to four hours. You can see in the middle paragraph of the top three that Dr. Kapila talks about if perfusion is restored within two to four hours, he opined that there is likely permanent limb damage that begins to occur but that the leg remains salvageable until the end of that two or four hour window. Do you see that?
A. I, I see that, yes.
Q. Do you agree with that assessment?
A. Not entirely.
Q. Could you explain, please?
A. I think it’s quite unlikely that if a combination of acute ischemia and compartment syndrome are treated within two hours, it’s likely that the limb will be salvaged, if it’s treated after four hours, I think it’s unlikely the limb will be salvaged and clearly there’s a spectrum as Dr. Kapila has also said in this section of his report, where something goes from salvageable to unsalvageable. There are a lot of variables that would go into determining when exactly the point of likely to unlikely would occur. Specifically the degree of compartment syndrome. The amount of arterial injury and the density of the ischemia. So I wouldn’t be certain that toward the end of this window, let’s say at 3 hours and 45 minutes that the limb would be salvageable and at four hours it would not. I think there’s a spectrum of probability within that time period.
Q. So before we broke Dr. Dueck, we were talking about the three windows, the, the third window being after four hours that you would not expect I think the words you used it was rare that you would have limb salvage and we talked about the first two hours when you said that limb salvage was likely and then we were about to talk, we were talking a bit about that middle period of time, and you were talking about the variables that play during that period of time. Is it possible with knowing those variables to identify a point in time within that continuum when the leg moved from salvageable to unsalvageable?
A. I don’t believe so.
Q. Why not?
A. Primarily because these, these things that we’re talking about, primarily the relevant things here are compartment syndrome and malperfusion, they don’t exist in binary positions of on or off. They exist in different severities and although clearly both of those elements were at play here, the severity of them is difficult to adjudicate from the files in a post-hoc manner and even in contemporaneous manner, it’s very difficult to, to be certain what will happen to an individual case.
[161] Dr. Dueck stated that he did not entirely agree with Dr. Kapila that the clock started to run at 6 a.m. In his view, the clock would start to run when there were signs of decrease in perfusion, i.e. at 4:40 a.m.
[162] During his cross-examination at trial, Dr. Dueck confirmed the opinion stated in his report that it is more likely than not that a patient treated within six hours from the onset of ischemic signs would have a good functional outcome, i.e. that the leg could be salvaged and be useable. He stated the following:
Q. And so the expectation is that if treated within six hours, the patient should have a useable limb?
A. It’s likely.
Q. Again, more likely than not.
A. Of course. Of course.
Q. And from the literature we know that if the patient is treated after eight hours, the prognosis is very poor?
A. That’s correct.
Q. And just like with the compartment syndrome which we’ll come back to in a moment, between that six and eight hours, there will be a range of outcomes?
A. That’s correct.
Q. Right. There’s kind of sliding scale, again, from likely to save the leg, with no functional limitations whatsoever, six hours, to unlikely to save the leg at all, at eight hours.
A. Yes. Although it – at that time period or in that time window, the individual specifics of – or the specifics of the individual case become very relevant. Some patients have protective elements that allow them to endure the ischemia for longer. Some patients have mild to moderate levels of ischemia that allow, allow a salvage even outside of this, this general rule of thumb of six hours.
Q. But this, this time frame, if we go back to your report that made this conclusion as to the likely window for treatment that you’ve laid out, that, that is your opinion?
A. That’s my opinion based on achieving revascularization with the shunt in a time that is appropriate according to this rule of thumb. That’s when the process of the transfer would have to have begun or the, the process of recognition of the problem and, you know, subsequent events unfolded. Assuming there was no change in the subsequent events.
[163] Based on this opinion, Dr. Dueck stated in his report that it was likely that the Ms. Fortune-Ozoike’s limb could only have been salvaged if Dr. Lai had arrived at the bedside earlier than 1:05 to 2:45 a.m. at the latest. The time range was corrected at trial to start at 1:25 a.m. instead of 1:05 a.m. Dr. Dueck confirmed at trial how he arrived at this time range: (a) he started at the time of the onset of ischemic signs, i.e. between 3:20 and 4:40 a.m.; (b) he added six hours to determine the period during which it was likely to save the leg, i.e. between 9:20 and 10:40 a.m.; and (c) he backed out 7 hours and 55 minutes from the 3:20 to 4:40 a.m. period to reflect the time between the arrival of Dr. Lai at Ms. Fortune-Ozoike’s bedside at 6 a.m. and the time that the shunt was put in at 1:53 p.m.
[164] I note that Dr. Dueck’s opinion that it was likely that Ms. Fortune-Ozoike’s limb could have been salvaged if Dr. Lai had arrived at the bedside earlier than 1:05 to 2:45 a.m. at the latest was set out in the conclusion of his second report which he wrote after he reviewed Dr. Kapila’s report which contains the 1-2-hour timeframe set out above. While Dr. Dueck briefly refers to Dr. Kapila’s timeframe in his report, it is not referred to in his conclusion which contains his opinion on timing.
[165] Dr. Dueck also expressed the view that there was no documented sign of malperfusion prior to 4:40 a.m. and, therefore, it was unlikely that a referral of the patient would have been accepted without clear evidence of arterial injury.
b. Counterfactual timelines
[166] Counsel for the Defendants very helpfully prepared a detailed chart setting out the timing of the actual events that occurred in this case, as well as the timing of four counterfactual or “what if” scenarios based on the four breaches of the standard of care alleged by the Plaintiffs. Since I have only found two breaches of the standard of care, only two of the four counterfactuals are relevant.
[167] The facts and factual assumptions set out in the counterfactual timelines prepared by the Defendants are largely (but not completely) undisputed by the Plaintiffs.
[168] In the chart containing the counterfactual timelines, the Defendants take the position that: (a) the window for treatment ended at 6:40 a.m. (i.e. 4:40 a.m. + 2 hours); (b) the following two-hour period (i.e. until 8:40 a.m.) is a “loss of chance” period during which the “but for” test is not met on a balance of probabilities; and (c) the limb was likely unsalvageable after 8:40 a.m. (i.e. 4 hours after 4:40 a.m.). The Plaintiffs disagree with these windows.
[169] In the counterfactual timeline relating to Dr. Lai’s breach of the standard of care at approximately 12:30 a.m., it is assumed that Dr. Lai would have arrived at the patient’s bedside at 1 a.m., i.e. approximately 30 minutes after his first telephone conversation with Dr. Lian. I find the addition of the 30 minutes generally acceptable,[^9] although I note that the conversation between Dr. Lai and Dr. Lian took place before 12:30 a.m. and since Dr. Lai returned Dr. Lian’s page from his car, it would likely have taken him less time to return to the Hospital than if he had been at home.
[170] The Defendants also added time to this counterfactual timeline for an examination by Dr. Lai and for a CT angiogram to be obtained. Based on the evidence before me, I agree that a CT angiogram would have had to be obtained to confirm the injury to the popliteal artery prior to a transfer to another hospital.[^10] After the CT angiogram was obtained, the Defendants allocated 30 minutes to Dr. Lai reviewing the results of the CT angiogram and assessing Ms. Fortune-Ozoike before he started making his series of telephone calls to find a vascular surgeon. In my view, after receiving the results of the CT angiogram, it would have been clear to Dr. Lai that the patient had an injury to the popliteal artery and he would not have waited 30 minutes to start his telephone calls, especially since he would have already assessed Ms. Fortune-Ozoike prior to the CT angiogram.
[171] The Defendants’ counterfactual timeline keeps in the time required to obtain another CT angiogram at St. Michael’s Hospital after the patient’s transfer. I am not satisfied that a second CT angiogram would have been required had one been obtained at the Hospital earlier that same morning.
[172] Under this counterfactual timeline, as prepared by the Defendants, the bypass shunt would have been placed at 8:35 a.m., i.e. two hours and thirty-five minutes after the start of the clock at 6 a.m. pursuant to Dr. Kapila’s approach, and three hours fifty-five minutes after the start of the clock at 4:40 a.m. pursuant to Dr. Dueck’s approach.
[173] In the counterfactual timeline relating to Dr. Lian’s breach of the standard of care at approximately 1 a.m., it is assumed that Dr. Lai would have been paged by Dr. Lian at 1:05 a.m. and would have arrived at the patient’s bedside 30 minutes later at 1:35 a.m. I find the addition of the 35 minutes appropriate.
[174] The Defendants also added time to this counterfactual timeline for an examination by Dr. Lai, for a CT angiogram to be obtained, and for Dr. Lai to review the results of the CT angiogram and assess Ms. Fortune-Ozoike. They did not subtract time to take into account the fact that a second CT angiogram would likely not have been required at St. Michael’s Hospital. The comments set out above in relation to the prior counterfactual timeline also apply to this counterfactual timeline.
[175] Under this counterfactual timeline, as prepared by the Defendants, the bypass shunt would have been placed at 9:10 a.m., i.e. three hours and ten minutes after the start of the clock at 6 a.m. pursuant to Dr. Kapila’s approach, and four hours and thirty minutes after the start of the clock at 4:40 a.m. pursuant to Dr. Dueck’s approach.
[176] For the purpose of my analysis, and in spite of some of the comments set out above regarding some of the times, I have used the counterfactual timelines as prepared by the Defendants without tweaking any of the times.
c. Analysis and conclusion
[177] This case is unusual. Instead of relying on the opinion expressed by the Defendants’ own expert in his reports and the original approach he adopted, the Defendants wish to rely on the approach put forward by the Plaintiffs’ expert, but with some modifications subsequently proposed by their expert which advantageously (for them) shorten the window for treatment.
[178] While the Plaintiffs are not trying to abandon the approach adopted by their expert, they also seek to rely on the original approach adopted by the Defendants’ expert (i.e. the six-hour window starting at 4:40 a.m.).
[179] As pointed out by the Plaintiffs, the two different approaches adopted by the experts in their respective reports lead to similar results with respect to the window for treatment:
a. based on Dr. Kapila’s approach, Ms. Fortune-Ozoike’s leg was salvageable without any functional impairment until 8 a.m. (i.e. 6 a.m. + 2 hours) and it was salvageable with some dysfunction until 10 a.m. (i.e. 6 a.m. + 4 hours);
b. based on Dr. Dueck’s approach in his report, Ms. Fortune-Ozoike’s leg was salvageable with a good functional outcome until 9:20 – 10:40 a.m. (3:20 – 4:40 a.m. + 6 hours).
[180] At trial, Dr. Dueck’s evidence was that he agreed with Dr. Kapila’s first (1-2 hours) and third (4-6 hours) timeframes, but his view was that the timeframes should start at 4:40 a.m. instead of 6 a.m. under Dr. Kapila’s approach. With respect to the second timeframe (2-4 hours), he said that there was a “spectrum of probability” within that time period and he did not believe that it was possible to identify an exact point in time within that period when the leg moved from salvageable to unsalvageable. As stated above, the Defendants rely on this evidence, which is not contained in Dr. Dueck’s reports, to argue that the window of treatment ended at 6:40 a.m.
[181] While Dr. Dueck has a very impressive curriculum vitae and was a credible witness, I ultimately prefer the evidence of Dr. Kapila for the following reasons, among others:
a. While Dr. Dueck was asked to comment on some opinions/statements of Dr. Kapila, including his three timeframes, Dr. Dueck did not expressly resile from his original opinion. At trial, he confirmed the opinion set out in the conclusion of his second report, which, as stated above, was written after Dr. Dueck became aware of Dr. Kapila’s 1-2-hour timeframe. Dr. Dueck did not explain and was not asked to explain the apparent inconsistencies in his evidence.
b. The shorter timeframes adopted by Dr. Kapila, including the 1-2-hour timeframe, were based on the presence of the severest form of compartment syndrome with absent pulses, not on the mere presence of compartment syndrome. While Dr. Dueck agreed with Dr. Kapila’s 1-2-hour timeframe, he took the view that the clock still started to run at the time he had selected under his own approach, i.e. at 4:40 a.m., when a pulse could still be palpated. The 4:40 a.m. time is unrelated to the issue of compartment syndrome, which informed Dr. Kapila’s shorter timeframes. The opinion that 4:40 a.m. had to remain the start time was not satisfactorily explained by Dr. Dueck.
c. Dr. Dueck was aware that Ms. Fortune-Ozoike had compartment syndrome when he wrote his first report and he nevertheless used a six-hour window.
d. Dr. Dueck did not prepare a report in response to Dr. Kapila’s last report which discusses the 2-4-hour timeframe. While he was allowed to give evidence at trial regarding this timeframe, he did not squarely and substantively address Dr. Kapila’s evidence about the ability to salvage the patient’s leg and ability to walk with some amount of disability or dysfunction.
e. As pointed out above, the window for treatment is very similar under both experts’ approaches, ending at 10 a.m. pursuant to Dr. Kapila’s approach and ending between 9:20 and 10:40 a.m. pursuant to Dr. Dueck’s original approach. It has not been satisfactorily explained how Dr. Dueck, under the pretense of agreeing with Dr. Kapila’s approach and timeframes, can significantly change his opinion and come to the view that the window for treatment now ends at 6:40 a.m.
[182] I disagree with the Defendants’ submission that the 2-4-hour period is a “loss of chance” period. Dr. Kapila’s evidence at trial, which I accept, was that it was more likely than not that, within that time period, the limb could be saved, i.e. not amputated, although with some dysfunction, but with the ability to walk. Dr. Kapila was cross-examined on this issue and he maintained his evidence.
[183] As set out above, pursuant to the counterfactual timelines prepared by the Defendants, the bypass shunt would have been placed at 8:35 a.m. had Dr. Lai not breached the standard of care at 12:30 a.m., and at 9:10 a.m. had Dr. Lian not breached the standard of care at 1 a.m. Both of these times (8:35 and 9:10 a.m.) are within the window for treatment identified by Dr. Kapila, albeit within the 2-4-hour timeframe where some amount of disability would have been expected. Both of these times are also before the end of the window for treatment under Dr. Dueck’s original approach, which was between 9:20 and 10:40 a.m.
[184] Accordingly, I conclude that the breaches of the standard of care by Dr. Lai and Dr. Lian caused an injury to Ms. Fortune-Ozoike.
7. Wal-Mart’s liability
a. Additional relevant facts
[185] When new associates are hired at Wal-Mart, they receive training regarding health and safety issues, including with respect to Wal-Mart’s Safety Sweep Policy. The Safety Sweep Policy that was in effect at the time of Ms. Fortune-Ozoike’s fall provided, in part:
Policy
A Safety Sweep is conducted five to eight (5 - 8) times per day and more frequently when conditions and customer traffic warrants. The time slots that are shown in the sweep logs are the minimum acceptable number of Safety Sweeps per day. Increase the frequency manually with presence of inclement weather. All completed sweeps must be recorded in the assigned sweep log book and retained in accordance with the Record Management Policy.
Application
This policy applies to all Wal-Mart Canada Associates.
General
A safety sweep is completed by conducting a visual sweep of the area, looking for, recognizing and correcting any potential hazards. A safety sweep not only involves the floor, it involves any area of the store where a potential hazard may exist.
Sweep Log Books
Associates who are responsible for conducting a safety sweep in their area are to record the completed process in the sweep log book. The Associate must sign and then print his or her full name so that it can be easily read. Any clean up of a spill or removal of a potential slip or trip hazard occurring outside of the prescribed times must also be recorded in the detail section in the sweep log book.
The SWAS/CWAC Manager is to sign the page at the end of the week and address any concerns.
[186] At the time of Ms. Fortune-Ozoike’s fall, the Safety Sweep Policy had last been revised on January 12, 2009.
[187] In 2013, associates assigned to each department were responsible for conducting the safety sweeps in their area. In addition, associates were instructed to immediately address any hazards that they saw in the store outside of regularly scheduled sweeps, even outside of their own areas.
[188] Before each scheduled sweep, an announcement was made to advise associates that it was time to conduct a safety sweep of their area and reminding them to record the safety sweep in the sweep log book.
[189] When an assistant manager reviewed the sweep log book at the end of the week and noticed that safety sweeps were missed, the assistant manager was required to make inquiries of the relevant associates as to why safety sweeps were not conducted. Verbal warnings were given, followed by progressive discipline up to dismissal.
[190] The safety sweep log for the ladieswear department for the week of December 21, 2013 shows that on December 26, 2013, prior to Ms. Fortune-Ozoike’s fall, safety sweeps were conducted in the ladieswear department before the opening of the store at 7 a.m., at 11 a.m., 5:00 p.m. and 7:30 p.m. There was a scheduled safety sweep at 2 p.m. that appears not to have been conducted as there are no initials next to that time. No explanation was provided as to why no safety sweep was conducted at 2 p.m. The 5:00 and 7:30 p.m. safety sweeps in the ladieswear department were conducted by Ms. de los Santos, who had been a part-time associate at Wal-Mart for more than seven years. Ms. de los Santos did not find anything during those two sweeps. No additional safety sweeps were documented for that day in the sweep log. However, there was a short meeting between the duty manager and the associates in the ladieswear department at 6 p.m. Ms. Alimagno’s evidence is that the area was clear at that time, but this was not documented anywhere.
[191] According to Ms. de los Santos, it takes between five and ten minutes to do a safety sweep of the ladieswear department. There are dozens of racks with clothing on them in the ladieswear department, as well as shelves with clothing on the side. There are numerous passageways in between the racks and in between the racks and the shelves. On each rack, there are several hangers with clothing on them. Ms. de los Santos testified that when she conducted safety sweeps, she checked the floor between every single rack in her department. She agreed that if a clear hanger fell on the floor, it might be difficult to see it and it is possible that it might be missed.
[192] In cross-examination, Ms. Alimagno agreed that the Safety Sweep Policy was breached on December 26, 2013. She agreed that less than the minimum acceptable number of sweeps were completed on December 26, 2013 and because there was inclement weather and increased customer traffic, there needed to be more than five to eight sweeps completed according to the Safety Sweep Policy.
[193] While it is presumed that Ms. Fortune-Ozoike slipped on a hanger, there is no evidence as to when and how that hanger fell to the ground and how long it had been left on the ground before the fall.
b. General legal principles
[194] As the occupier of the store where Ms. Fortune-Ozoike fell, Wal-Mart owed “a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.” See subsection 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”). This duty of care applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises: see subsection 3(2) of the OLA.
[195] The determination of whether an occupier has satisfied its duty to take reasonable care is fact-specific. Liability is to be imposed on an occupier under the OLA if its conduct creates a risk of harm that is objectively unreasonable. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. See Martin v. Attorney General of Ontario, 2022 ONSC 1923 at paras. 43-45 (“Martin”).
[196] The statutory standard of care under the OLA is not one of perfection, but one of reasonableness. The duty of care does not require the occupier to remove every possibility of danger, nor does it require constant surveillance and instant response or unrealistic or impractical precautions against known risks. See Martin at paras. 46, 54 and Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447 at para. 42.
[197] The liability exposure of an occupier regarding a slip and fall in a public place requires an analysis of whether the occupier had instituted reasonable policies and procedures for the inspection and maintenance of the premises and whether those policies and procedures were followed: see Martin at para. 48. In Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 at para. 25, Justice Campbell stated the following:
[25] Leading authors A.M. Linden and B. Feldthusen, in their text, Canadian Tort Law, at p. 748, in accurately “generalizing” the practical effect of these many decisions [supermarket slip and fall cases], suggest that in order for supermarket occupiers to successfully defend themselves against such “slip and fall” claims on their premises, they must demonstrate: (1) that they have “implemented reasonable policies and procedures of maintenance” in their stores, such as “regularly scheduled sweeps and inspections”; and (2) that “such policies and procedures were actually followed on the day in question.” The occupier may be able to refute a prima facie breach of the statute by showing that there was “routine compliance” with the reasonable scheme put in place for inspection, maintenance, cleanliness and safety. In such circumstances, the trier of fact must be able to reasonably infer that the defendant’s system was in effect and observed on the date of the accident. See: Atkins v. Jim Pattison Industries Ltd. (1998), B.C.L.R. (3d) 183 (C.A.) at para. 3-8; Howden v. Westfair Foods Ltd., 2000 MBQB 162, [2001] M.J. No. 25 (Q.B.) at para. 23; Lebedynski v. Westfair Foods Ltd., 2000 MBQB 144, [2000] M.J. No. 422 (Q.B.) at para. 20; Hussein v. Loblaws Supermarkets Ltd., [2001] O.J. No. 3705 (C.A.) at para. 1; Heard v. Canada Safeway Ltd., [2008] A.J. No. 790 (Q.B.) at para. 53-58.
[198] However, mere departure from a policy is not prima facie evidence of negligence. While a policy can be used as a factor to evaluate the applicable standard of care, any departure from a policy must be viewed in light of what was reasonable and prudent conduct in the circumstances. See Hibberd v. William Osler Health Centre, 2009 5785 at para. 81 (Ont. S.C.J.); aff’d by 2010 ONCA 294.
[199] In order to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury: see Martin at para. 47 and Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 at para. 8.
c. Analysis and conclusion
[200] In my view, if there is any breach of the standard of care on the part of Wal-Mart, it would be with respect to the missed safety sweep at 2 p.m. and the failure to do additional safety sweeps before 5 p.m. as a result of increased customer traffic during the day and inclement weather. Ms. Alimagno’s evidence was that while Boxing Day was a busy day, it was not busier than other days in the evening. Further, there is no evidence before me that there was inclement weather in the evening of December 26, 2013 requiring additional safety sweeps at that time. I note that Ms. Fortune-Ozoike indicated that she did not remember having any concerns about the condition of the store, and there is no suggestion that she slipped because of a wet floor.
[201] Moreover, there is no evidence before me that could support the conclusion that Wal-Mart’s Safety Sweep Policy is unreasonable. There is also no evidence of routine non-compliance with the Safety Sweep Policy. To the contrary, the evidence about the training of associates, the recording of safety sweeps in sweep logs, the weekly review of sweep logs by store managers, and the regular reminders to do safety sweeps through public announcements show that Wal-Mart implemented mechanisms to ensure compliance with the Safety Sweep Policy.
[202] I also note that there is no evidence that there was any recurring issue with respect to clear hangers on the floor being missed during safety sweeps. In fact, there is no evidence before me about any recurring safety issue or any other slip and fall incident (involving a hanger or not) at this particular Wal-Mart store.
[203] Assuming without deciding that Wal-Mart breached the standard of care of a reasonable occupier as a result of the missed safety sweep at 2 p.m. and the failure to do additional safety sweeps before 5 p.m., I find that any such breach did not cause an injury to Ms. Fortune-Ozoike.
[204] The Defendants have failed to meet the “but for” test and to show that Ms. Fortune-Ozoike’s fall would have been prevented had Wal-Mart conducted a safety sweep at 2 p.m. and additional safety sweeps before 5 p.m. See Martin at paras. 56-57. If the hanger fell on the floor before 5 p.m., it is likely that it would have been picked up during the safety sweeps at 5 or 7:30 p.m. The Defendants have not articulated any reason why it would not have been. Ms. de los Santos was an experienced associate in the ladieswear department and there is no evidence of any concerns regarding her work and performance.
[205] Thus, I conclude that Wal-Mart did not cause any injury to Ms. Fortune-Ozoike and that there is no need to apportion fault between Wal-Mart, on the one hand, and Dr. Lian and Dr. Lai, on the other.
E. DISPOSITION
[206] In light of the foregoing, I conclude that Dr. Lian and Dr. Lai were negligent in their care of Ms. Fortune-Ozoike and the Plaintiffs are entitled to judgment against both of them.
[207] The answers to the issues set out in paragraph 66 above are as follows:
Dr. Lian
Did Dr. Lian breach the standard of care of a reasonable emergency room physician practicing in the Province of Ontario in December 2013? Yes.
If the answer to (1) is yes, did the breach of the standard of care by Dr. Lian cause an injury to Ms. Fortune-Ozoike? Yes.
Dr. Lai
Did Dr. Lai breach the standard of care of a reasonable orthopaedic surgeon practicing in the Province of Ontario in December 2013? Yes.
If the answer to (3) is yes, did the breach of the standard of care by Dr. Lai cause an injury to Ms. Fortune-Ozoike? Yes.
Wal-Mart
Did Wal-Mart breach the standard of care of a reasonable occupier of 1305 Lawrence Avenue West, Toronto, Ontario? Assumed for the purpose of the analysis.
If the answer to (5) is yes, did the breach of the standard of care by Wal-Mart cause an injury to Ms. Fortune-Ozoike? No.
Apportionment
- If the answer to (6) is yes and the answer to any of 2 and 4 is yes, what is the apportionment of fault, in percentage terms, of Wal-Mart, on the one hand, and among one or both of Dr. Lian and Dr. Lai, on the other? N/A
[208] While I was advised by counsel that the parties have agreed on damages, I was not provided with any detail or figure.
[209] The Order that was made in relation to the Pierringer Agreement entered into between the Plaintiffs and Wal-Mart includes the following paragraph:
THIS COURT ORDERS that the Plaintiffs shall provide to the Court a sealed unredacted copy of the Pierringer Agreement between them and Wal-Mart, to be opened by the Court following the conclusion of the trial of this action if the Court makes a finding of negligence against one or more of the Non-Settling Defendants. Any amount paid by Wal-Mart will be deducted from the total quantum of damages agreed upon by the parties.
[210] A similar paragraph is included in the Order made in relation to the Pierringer Agreement entered into between the Plaintiffs and the Hospital Defendants.
[211] Given that I do not know the total quantum of damages agreed upon by the parties, I cannot make any deduction. In the event the parties require my assistance with respect to the calculation of damages, they can contact my assistant to request a case conference with me.
[212] If costs cannot be agreed upon, the Plaintiffs shall deliver submissions of not more than four pages (double-spaced), excluding the bill of costs, by January 30, 2023. The Defendants shall deliver their submissions (with the same page limit) by February 13, 2023.
Vermette J.
Released: January 16, 2023
[^1]: CTAS stands for “Canadian Triage and Acuity Scale”.
[^2]: The CTAS levels are the following: Level 1 – Resuscitation; Level 2 – Emergent; Level 3 – Urgent; Level 4 – Less Urgent; Level 5 – Non-Urgent.
[^3]: Compartment syndrome occurs when increased pressure within a limited space compromises the circulation and function of the tissues within that space. The lower leg has four compartments.
[^4]: Capillary refill was explained as follows by Dr. Pichora: “That’s where you would typically on one of the digits, typically in the foot, the great toe you would either compress the nailbed or the skin nail fold right beside the nail and just gently stroke it and the skin should blanch and then refill. And it should do that within 2 seconds.”
[^5]: The dorsalis pedis pulse can be palpated on top of the foot.
[^6]: There were also read-ins from the examinations for discovery of Dr. Lian, Dr. Lai, Ms. Fortune-Ozoike and Ms. Alimagno.
[^7]: Based on Dr. Lai’s evidence, I infer that if a neurovascular examination performed by another health care professional had disclosed any asymmetry or abnormality, he would have come to the Hospital to assess the patient himself.
[^8]: I disagree with the Defendants’ argument that Dr. Kapila’s opinion that the clock started at 6 a.m. is inconsistent with the opinion set out in his expert reports. Dr. Kapila stated the following in his second report:
I agree with the opinion of Dr. Dueck that the window for intervention for arterial ischemia is within 6 hours of ischemia onset. However, this timeline should only be applied to a purely arterial occlusive event and does not apply to compartment syndrome with absent pulses. In the severest form of compartment syndrome (absent pulses), compartment release should occur within 1-2 hours. [Italics in the original; underlined added.]
It is clear from the record that the first time that an absent pulse was noted was at 6 a.m.
[^9]: The Defendants rely on the Consultant Policy which states that an on-call consultant must respond to requests for their services from the Emergency Department in person within 30 minutes for emergent cases. Therefore, it could take Dr. Lai up to 30 minutes to drive to the Hospital. The Plaintiffs argue that, under the Consultant Policy, a consultant must respond within 15 minutes for resuscitation cases, but I agree with the Defendants that an orthopaedic surgeon would not be dealing with resuscitation cases. Therefore, I am of the view that the applicable time limit under the Consultant Policy is 30 minutes, not 15 minutes.
[^10]: Allowing time for a CT angiogram also deals with the issue raised by Dr. Dueck about the fact that there was no documented sign of malperfusion prior to 4:40 a.m. and, therefore, it was unlikely that a referral of the patient would have been accepted without clear evidence of arterial injury. The uncontradicted evidence of Dr. Kapila is that a CT angiogram obtained after the fall would have shown the injury to the popliteal artery.