SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-50938

DATE: July 19, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ESTATE OF ASHLY MICKEY LYNN COVILLE, Deceased, and THE ESTATE OF ASHLY MICKEY LYNN COVILLE, Deceased, by her Estate Trustee, Philip William Kowch, and THE ESTATE OF ASHLY MICKEY LYNN COVILLE, by her Litigation Administrator, Philip William Kowch, PHILIP WILLIAM KOWCH (Personally), and NICOLE KOWCH, by her Litigation Guardian, Philip William Kowch

Plaintiffs

– and –

HAMILTON HEALTH SCIENCES CORPORATION, CATHERINE ANNE SELLENS, IAN LAIDLEY, MOHAMED PANJU, BRAM NOAH ROCHWERG, ALI HERSI, MAAZ IBRAHIM ABDELAZIZ AHMED, BAHAREH GHADAKI, SAYALI TADWALKAR, CINDY MAIA HAMIELEC, DINA ABOUTOUK, JOANNA CHARL RIEBER, BARBARA NIKISCHIN, CHARITY MORROW, and LAURA KNECHTEL

Defendants

James A. Scarfone and Jacob Sazio, for the Plaintiffs

Andrea H. Plumb and Sarah E. Martens, for the Defendants, Catherine Anne Sellens and Ian Laidley

HEARD: September 19, 20, 22, 26, 27, 29, October 3, and December 13, 2022

REASONS FOR JUDGMENT

OVERVIEW

[1] Ashly Coville was a 26-year-old loving mother and partner. She attended at the Hamilton General Hospital Emergency Department (“the Emergency Department”) on December 24, 2012, as she was feeling ill. While at the Emergency Department that day, Ms. Coville was under the care of Dr. Ian Laidley and Dr. Catherine Sellens. Ms. Coville remained in the Emergency Department for three-and-a-half hours and was treated with intravenous saline, Tylenol and Gravol. After her condition improved and she reported to be feeling better, she was discharged home. Later the next day, Ms. Coville returned to the Emergency Department with worsened symptoms and was admitted to the hospital. Tragically, her condition deteriorated. She passed away during the morning of December 26, 2012, as a result of complications from bacterial pneumonia.

[2] Philip Kowch was Ms. Coville’s partner. They met when she was 16 years old and he was 18 years old. They were together in a relationship for about 9.5 years. They had a precious daughter together, Nicole, who was born in 2005. Philip and Nicole (“the Plaintiffs”) commenced this action against Dr. Laidley and Dr. Sellens (“the Defendants”). The Plaintiffs’ position is that the applicable standard of care required Drs. Laidley and Sellens to consider and investigate Ms. Coville for pneumonia on December 24, 2012, including by ordering a chest X-ray and bloodwork, and that they breached that standard by failing to do so. The Plaintiffs contend that, but for that breach, Ms. Coville’s life would have been saved and, thus, one or both of the Defendants should be found liable for Ms. Coville’s death and resulting damages.

[3] Dr. Laidley obtained his medical degree in 2009 and was a senior resident in the 4th year of his emergency medicine residency when he assessed Ms. Coville. As a 4th-year resident, Dr. Laidley could order any investigation he believed was clinically indicated, including bloodwork and X-rays, but he could not discharge a patient independently. Dr. Sellens obtained her medical degree in 1994 and was qualified as a specialist in emergency medicine in 2000. Dr. Sellens was responsible for Ms. Coville’s care as a staff physician in the Emergency Department. The Defendants’ position is that they acted reasonably in their care of Ms. Coville and that they met the standard of care required of them. Ms. Coville’s complete clinical presentation on December 24, 2012 was entirely consistent with a viral illness and did not indicate that a chest X-ray and bloodwork were required. The Defendants submit that the onset of Ms. Coville’s bacterial pneumonia did not occur until a couple of hours before she re-attended at the Emergency Department on the afternoon of December 25, 2012 and thereafter her clinical condition quickly deteriorated. Ms. Coville ultimately succumbed to a rapid pneumococcal bacterial pneumonia that is a very rare event in an otherwise healthy young adult and, based on her symptoms on December 24th, could not have been reasonably foreseen. Dr. Laidley and Dr. Sellens contend that their care and treatment of Ms. Coville did not cause her death.

[4] Liability is the only issue for trial as the parties have agreed on the quantum of damages.

[5] While there were a multitude of defendants initially named in the statement of claim, by the time this matter was tried, the only remaining defendants were Dr. Laidley and Dr. Sellens.

ISSUES

[6] The following issues are to be determined:

a. What is the applicable standard of care?

b. Did Dr. Laidley and Dr. Sellens breach the standard of care in their treatment of Ms. Coville on December 24, 2012?

c. Did any breach of the standard of care by Dr. Laidley and Dr. Sellens cause Ms. Coville’s death?

WEIGHING OF THE EVIDENCE

[7] The evidence at trial focussed on the issues of liability and causation, with testimony from three of Ms. Coville’s family members, Dr. Laidley, and Dr. Sellens, and with competing testimony from four experts who testified as to the standard of care and causation.

[8] I am satisfied that all of the fact witnesses were honest and credible. However, their memories were affected by the passage of time considering that these events happened in 2012.

[9] With respect to the evidence of Philip Kowch, specifically, I found him to be a credible witness who testified in an honest and forthright manner. However, I did not find all of his evidence to be reliable. There were some significant inconsistencies between his evidence and the hospital records and the evidence of other witnesses, including his father, that are detailed below. In my view, these inconsistencies are the result of his memories of the events of December 24 and 25, 2012 fading and/or conflating due to the passage of time and the fact that, unlike the Defendants, he has no contemporaneous written records. I found he had a weak recollection of events that occurred during the time when he was present with Ms. Coville in the hospital on December 25th.

[10] In my view, significant weight and a high degree of probative value must be given to the hospital records prepared on December 24 and 25, 2012 relating to Ms. Coville’s stays in the Emergency Department. These records constitute reliable documents written as part of the official hospital records and made contemporaneously with the events in question; they were not prepared for this litigation. They record the observations of the staff who made the notes.

[11] At trial, Dr. Laidley and Dr. Sellens testified as to their interactions with Ms. Coville during the events in question. Each of the Defendants had some independent recollection of certain aspects of their observations and assessments of Ms. Coville on December 24th. Their evidence was also assisted, at times, by their review of and reliance on the hospital records. I accept the testimony of Drs. Laidley and Sellens as being a reliable account of what occurred in their presence, the history they received from Ms. Coville, and their observations and assessments of her.

[12] The Defendants also testified as to their hand-written notes found on Ms. Coville’s chart for December 24th. Their oral testimony accords with these hand-written notes. There was nothing in the evidence of the Defendants or in the Plaintiffs’ cross-examination of the Defendants’ witnesses that left a reasonable doubt as to the accuracy or reliability of the hospital records. To the extent there was no witness testimony relating to a notation found in the hospital records, the most I can take from the hospital records is that they record the observations of the staff who made the notes.

[13] I do not agree with the Plaintiffs’ assertion that the hospital notes conflict with the testimony of Drs. Laidley and Sellens in terms of how Ms. Coville presented in the Emergency Department on December 24th. With the exception of Ms. Coville’s physical respiratory examination results, Dr. Laidley’s entries on the hospital chart are complete to the extent Dr. Laidley testified that he documented all relevant findings.

[14] To the extent the Defendants were not able to recall all of the details of the events in question, Drs. Laidley and Sellens testified as to their usual or standard practice when seeing patients. The court can rely upon a doctor’s usual and standard practice in their care and treatment of patients as evidence of what transpired. There is authority for the court to give significant weight to evidence of a physician's usual practice where a physician has no specific recollection of the day in question: see Bafaro v. Dowd, [2008] O.J. No. 3474, at para. 29; Jones-Carter v. Warwaruk, 2019 ONSC 1965, at para. 266; and Owala v. Makary, 2021 ONSC 7476, at para. 122.

[15] Apart from the Defendants, none of the other fact witnesses who testified at the trial were present with Ms. Coville after she was admitted into the Emergency Department on December 24th, and so their evidence is of limited assistance on the issues to be determined.

[16] The evidence of the parties and their experts is reviewed below in some detail. All of the evidence, including that which is not mentioned, has been considered. Comments on the evidence appear throughout.

[17] The opinions of the experts with respect to whether or not the Defendants breached the standard of care and causation depended on the assumptions they made about the underlying facts. Where I have found the facts to differ from their assumptions, I have given less weight to those opinions.

DECEMBER 24, 2012 – EMERGENCY DEPARTMENT ATTENDANCE

Admission and Triage

[18] The hospital records show that Ms. Coville attended at the Emergency Department on December 24, 2012, at approximately 10:00 a.m. She walked in. The Admissions Clerk selected Ms. Coville’s presenting complaint as being “Cough, Headache” from a list of presenting complaints. When asked if she had a new/worse cough or a new/worse shortness of breath, Ms. Coville answered “No”. She answered “Yes” when asked if she was feeling feverish, had shakes or chills in the last 24 hours or a temperature greater than 38˚.

[19] Shortly after arriving, Ms. Coville was seen by the triage nurse, Barbara Nikischin (“Nurse Nikischin”), who took Ms. Coville’s history from her and wrote on the chart as follows:

PT HAS COUGH X 1 WEEK, SMOKER AND FEBRILE. KIDS RECENTLY OVER FLU. PT STATES HAS BEEN VOMITING, UNABLE TO KEEP ANYTHING DOWN BUT HAD TYLENOLS 2S BEFORE COMING. OTHERWISE HEALTHY. NON PREG.

[20] At triage, Ms. Coville’s vital signs were recorded as: temperature - 36.4, pulse/heart rate - 134, blood pressure - 126/103, and respiratory rate - 18.

[21] Ms. Coville was assigned to be a CTAS 3 – Urgent patient. She was subsequently moved to the rapid assessment zone (RAZ), a place where patients who do not need a hospital bed go and wait.

[22] Since Ms. Coville complained of a cough, Nurse Nikischin chose the “Cough/congestion” selection from the Canadian Emergency Department Information System (CEDIS) Presenting Complaint List. There is no CEDIS option for “Cough” alone.

Assessment and Initial Treatment of Ms. Coville

[23] Dr. Laidley estimated that he assessed Ms. Coville between 10:17 a.m. and 11:22 a.m. His initial assessment of Ms. Coville was about 15 or 20 minutes long, taking her history and doing a physical examination; his reassessments of her were much briefer.

[24] Before meeting with Ms. Coville, Dr. Laidley reviewed the triage nurse’s notes. He saw that Ms. Coville’s pulse/heart rate was elevated. Her blood pressure was also slightly elevated, but Dr. Laidley explained that he did not find this concerning because a patient’s blood pressure can be elevated when they come into an emergency department. Ms. Coville’s temperature was normal; and her respiratory rate was normal.

[25] In assessing Ms. Coville, Dr. Laidley took Ms. Coville’s history and wrote the following on her chart:

Current medication – nil, Tylenol #3

Lower back pain

26 year old female complaining of cough x 1 week with fever

Sick contacts children. Took Tylenol #3s before coming with pain

Unable to keep anything down, vomiting x 3 days

Complaining of aches pains all over 4-5 days

Smoker

Last menstrual period Dec 15. No vaginal discharge

[26] Dr. Laidley observed Ms. Coville to be alert, oriented, and non-distressed. He testified that she was showing no signs of distress, she was not short of breath, and she was not sweating. She was talking and responding appropriately. Dr. Laidley noted there was no rigidity in her neck which, if there was, could indicate a possibility of meningitis. Ms. Coville’s capillary refill was less than 2 seconds.

[27] Dr. Laidley did a physical respiratory assessment on Ms. Coville using a stethoscope to listen to her chest/lungs, and he described it as routine. He testified that the chest examination revealed bilateral air entry with no adventitious sounds. He also assessed Ms. Coville’s cough by observation. He did not see or hear her cough.

[28] Dr. Laidley assessed Ms. Coville’s abdomen to see if there was any possible cause for her vomiting. He found her abdomen to be soft, with no rebound and no rigidity.

[29] On the hospital chart, Dr. Laidley wrote the following results of his examination of Ms. Coville:

Exam – alert and oriented x3, nondistress, no rash, no nuchal rigidity

CVS [Cardiovascular] – S1 S2 normal, no murmurs, cap refill

Resp – S1 S2 normal, no murmurs, cap refill <2seconds

Abd [Abdomen] – soft, nontender, bowel sounds present, no rigidity, no rebound

[30] Dr. Laidley failed to write down the results of his physical respiratory examination of Ms. Coville on her chart. Instead, he re-wrote the results of her cardiovascular examination.

[31] Dr. Laidley’s first treatment orders for Ms. Coville were IV normal saline 1 litre bolus then 100 ml/hr, Tylenol 1g (orally), and Gravol 50 mg IV. Dr. Laidley testified that the reason for the intravenous saline was because he was concerned about dehydration; the Tylenol was to address Ms. Coville’s complaints of aches, pains and headache; and the Gravol was for her nausea.

[32] After he assessed Ms. Coville, Dr. Laidley spoke with Dr. Sellens. They went over Ms. Coville’s history and vital signs and Dr. Laidley’s examination of her, and he gave Dr. Sellens his proposed treatment plan. Dr. Laidley’s plan of care was to hydrate Ms. Coville and then monitor her condition to see how she was doing. Drs. Laidley and Sellens felt that Ms. Coville was dehydrated based on her elevated heart rate.

Reassessments

[33] Dr. Laidley reassessed Ms. Coville at 12:30 p.m. after the first treatment orders had been administered. Ms. Coville told Dr. Laidley that she was feeling better, and her aches and pains had decreased. Her heart rate was lower, now at 120. Dr. Laidley wrote down the results of his reassessment on Ms. Coville’s hospital chart.

[34] Ms. Coville’s vital signs were taken by a nurse at 12:36 p.m. At that time, they were recorded as: pulse/heart rate - 122, respiratory rate - 18, oxygen saturation - 97, and blood pressure - 129/91.

[35] Dr. Laidley found Ms. Coville’s vitals encouraging because her heart rate had come down, her blood pressure was also down, and all of her other vital signs were normal. The treatment seemed to be working and he believed that Ms. Coville’s dehydration was being treated correctly with fluids. However, Dr. Laidley determined to give Ms. Coville another litre of IV saline bolus and reassess her after that, because her heart rate was still high, so he believed she was still dehydrated.

[36] After the first reassessment, Dr. Laidley spoke again with Dr. Sellens to reassess Ms. Coville’s case with her and see if there was anything else they should be doing going forward.

[37] At some point between receipt of the first IV saline treatment and the second, Dr. Sellens also assessed Ms. Coville to get a sense of how well she was doing. Dr. Sellens recalled sitting down on the bed and chatting with Ms. Coville about how she was feeling. Ms. Coville reported that she was feeling a little better and that she had not “thrown up”. They discussed what would be done next. Dr. Sellens spent about 5 to 10 minutes with Ms. Coville and changed her IV saline bag.

[38] Dr. Laidley reassessed Ms. Coville a second time at 1:30 p.m. At the second reassessment, Ms. Coville said that she was feeling better; her heart rate was 96, and she was urinating. Dr. Laidley’s impression was that Ms. Coville’s heart rate had normalized and that she was feeling better. Dr. Laidley wrote down the results of his second reassessment on Ms. Coville’s hospital chart, along with the notation, “can get Gravol at pharmacy”.

[39] Dr. Laidley spoke again with Dr. Sellens about the treatment plan for Ms. Coville. The plan was to discharge Ms. Coville after that, as she was feeling better after the treatments, her vitals had normalized, and Dr. Laidley thought they had corrected the dehydration.

Diagnosis and Discharge

[40] At the time of discharging Ms. Coville, Dr. Laidley’s opinion was that there was nothing abnormal or concerning about Ms. Coville’s condition. Dr. Laidley and Dr. Sellens diagnosed Ms. Coville as having a viral illness.

[41] Before she was discharged, Dr. Laidley spoke with Ms. Coville and advised her to follow up with her family doctor as needed and return to the Emergency Department if her symptoms worsened. Dr. Laidley documented his discharge instructions on Ms. Coville’s chart.

[42] Ms. Coville was discharged a little after 1:30 p.m. on December 24th. She left the hospital on her own and took a cab home.

[43] Under the heading “Final Illness” on Ms. Coville’s chart, Dr. Sellens wrote “Viral Illness” and signed the chart.

DECEMBER 25, 2012 – EMERGENCY DEPARTMENT ATTENDANCE

Admission and Triage

[44] The hospital records show that, on December 25, 2012, Ms. Coville re-attended at the Emergency Department at approximately 5:03 p.m. by wheelchair. Her presenting complaint was “Difficulty Breathing”. Ms. Coville answered “Yes” when asked the screening question of whether she had a new/worse cough or new/worse shortness of breath. She answered “Yes” when asked if she was feeling feverish, had shakes or chills in the last 24 hours or a temperature greater than 38˚.

[45] The triage nursing entry on Ms. Coville’s chart reads:

PT STATES IN TRIAGE CAN’T BREATH AND UNABLE TO TALK. SMOKER, AND COLOUR PINK, SKIN INTACT. DENIES DRUGS OR ETOH. NO N OR V. VOMITED SEVERAL TIMES. NON PREG. SATS 95 ON RA, BUT HR 170.

[46] Ms. Coville’s vital signs at triage were reported as: pulse/heart rate - 168, blood pressure - 141/71, respiratory rate - 22, and oxygen saturation – 95.

[47] At 5:26 p.m., the following information was entered into the hospital’s record regarding Ms. Coville, under “Additional Hx related to presenting/chief complaint”:

ON ARRIVAL PT IS ALERT AND ORIENT X3. SKIN PALE WARM AND DRY. MUCOUS MEMBRANES ++DRY. PT C/O CHEST PAIN AND SOB APPROX 1 HOUR AGO. PT STATES UNWELL WITH FLU X4 DAYS. PT STATES SEEN IN ER 2 DAYS AGO AND GIVEN 2L OF NS THEN SENT HOME. PT STATES FELT LITTLE IMPROVEMENT INITIALLY BUT WORSE TODAY. NOT EATING OR DRINKING DUE TO VOMITING. +SMOKER. HR 160 AND REGULAR. DR. HERSI SHOWN ECG. INTO ASSESS.

[48] Ms. Coville was assigned to be a CTAS 2 – Emergent patient.

Assessment

[49] Ms. Coville was assessed by the Emergency Department physician Dr. Ali Hersi at approximately 5:30 p.m. On the hospital chart, Dr. Hersi’s hand-written notes include the following information from this assessment:

26 female

1 hour ago onset of increased RR (? hyperventilation)

on/off c/p pleuritic

and increased HR

recent URI

IE - sinus tach@ 140 97% RR 33 and talking in full sentences

GAEB no wheezes

[50] At 7:50 p.m., the following information was entered into the hospital’s computerized record about Ms. Coville by a nurse, under “Notes”:

D) PT RECIEVED [sic] AT 1900. PT IN HALLWAY, MOVED INTO CARDIAC 2 TO BE CLOSELY MONITORED. PT C/O ++ PAIN IN HER LEFT SIDE OF HER CHEST, WORSE WITH INSPIRATION. DRY COUGH NOTED. INCREASED WOB NOTED. SOME ACCESSORY MUSCLE USE NOTED. LUNGS AUSCULTATED- A/E EQUAL AND CLEAR BILATERALLY TO BASES. ABDOMEN SOFT, NON-TENDER, NON-DISTENDED, BOWEL SOUNDS X 4 NOTED. PT STATES FEELS A LITTLE NAUSEATED. SKIN WARM AND DRY. PT PALE AND MUSCOUS [sic] MEMBRANES DRY AND PASTY. IV INFUSING IN RT A/C- NS @100 ML. PT ATTACHED TO CARDIAC MONITOR. WILL CONTINUE TO MONITOR.

[51] A chest X-ray had been ordered for Ms. Coville. Among his other notes on Ms. Coville’s chart, Dr. Hersi wrote, at 8:30 p.m., that he had reviewed her chest X-ray with Radiology and it was “consistent with multifocal pneumonia”.

[52] Ms. Coville was treated with antibiotics and other medications, but her condition continued to worsen. She was intubated at 11:46 p.m. on December 25th. She was transferred to the hospital’s intensive care unit, diagnosed with sepsis.

[53] Ms. Coville passed away in the morning of December 26, 2012. In the Coroner’s Report, the medical cause of death was stated to be extensive acute bacterial pneumonia, due to infection with Streptococcus pneumoniae complicating upper respiratory infection with Influenza A. The report revealed that Ms. Coville was in the very early stage of a pregnancy at the time of her death.

FACT WITNESSES

Dr. Ian Laidley

[54] Dr. Laidley testified that he had some independent memory of assessing Ms. Coville on December 24, 2012, but not of the entire interaction. He was informed of Ms. Coville’s passing by a nurse in RAZ a couple of days after he saw Ms. Coville on December 24th and he remembered his respiratory examination of Ms. Coville was normal.

[55] Dr. Laidley testified that he does not remember seeing Ms. Coville cough. From his observation of her, she was not short of breath. She was not talking in 2-3 word sentences which would show trouble breathing. Her respiratory rate was okay. He did not see Ms. Coville vomit. Her capillary refill and heart sounds were all normal. Ms. Coville did not tell him she was congested. Dr. Laidley did not see signs of Ms. Coville having trouble breathing, difficulty speaking, spitting up phlegm, or making audible sounds while breathing.

[56] Dr. Laidley’s evidence was that he did a physical respiratory assessment on Ms. Coville and he remembered it was normal. His examination of her lungs revealed bilateral air entry with no adventitious sounds, and no cough. Dr. Laidley testified that it was his practice to do a cardiovascular examination, respiratory examination and abdomen examination on every patient he sees, unless it is a laceration case.

[57] Based on her signs, symptoms and vitals, it was Dr. Laidley’s clinical judgment that Ms. Coville had influenza. A patient can have a cough for a week with influenza. A patient can also feel warm and feverish with influenza. A patient can have a high heart rate with influenza. Dr. Laidley stated that when he looked at the triage nursing note, he saw that Ms. Coville had a sick contact at home since her child was recently over the flu, and that increases the risk of transmission of influenza, so he believed that Ms. Coville had gotten the flu from her child. Dr. Laidley also testified that body aches and pains are also common with influenza. Dr. Laidley’s information was that Ms. Coville was not immunocompromised, so she was not at an increased risk of infection.

[58] Dr. Laidley testified that, from his observations, examination, and reassessments of Ms. Coville, in his clinical judgment, he did not think that it was clinically required to order a chest X-ray and bloodwork. He testified that, because she was young, Ms. Coville being a smoker also did not warrant a chest X-ray or bloodwork without something more being present.

[59] Dr. Laidley testified that a headache, elevated heart rate, and aches and pains can all be signs of dehydration, and because of that concern, he and Dr. Sellens treated Ms. Coville with fluids. Dr. Laidley ordered a second litre of fluid because Ms. Coville’s heart rate was not normal after the first IV treatment and he thought that she was still dehydrated. When Ms. Coville’s heart rate lowered to 96 after the second IV treatment, he thought she was hydrated. As well, after the second IV treatment, Ms. Coville was urinating and patients who are severely dehydrated do not urinate; her blood pressure was not low and patients who are dehydrated can have low blood pressure; and her capillary refill was less than 2 seconds and patients who are severely dehydrated have a higher capillary refill time, because the body tries to conserve fluid in the core and shuts down the peripheral system.

[60] Dr. Laidley disagreed that he anchored on Ms. Coville’s dehydration with little regard to her respiratory concerns. He explained that her respiratory rate was 18, she was non-distressed and breathing normally, her oxygen saturation was normal, and he found her lungs had bilateral air entry with no sounds, which told him there was nothing going on in her lungs at that time. Dr. Laidley’s evidence was that all of Ms. Coville’s vital signs were normal except for her elevated heart rate and blood pressure, which he believed were due to her dehydration.

[61] Dr. Laidley testified that he understood Ms. Coville’s fever was “off and on” for a week, not persistent for a week. And that her vomiting was off and on. He stated that Ms. Coville could take pills, and drink, and was able to keep them down while she was in the Emergency Department. On cross-examination, Dr. Laidley acknowledged that the words “fever off and on” were not recorded in the hospital chart. However, at his 2018 examination for discovery, Dr. Laidley had testified that he understood Ms. Coville had “fevers off and on” and that she had “vomited off and on”.

[62] On cross-examination, Dr. Laidley stated that during his 4 years of residency, he had seen many cases of the flu and some cases of pneumonia, both bacterial and viral. Dr. Laidley agreed that bacterial pneumonia is not confined to the elderly and babies but can happen in a 26-year-old female as well. He also agreed that, where it is clinically required, if pneumonia is suspected, people will need an X-ray and blood test. Dr. Laidley acknowledged that the symptoms of fever, coughing, aches and pains, headache, and respiratory complaints are consistent with both bacterial and viral illness, and that the symptoms of bacterial pneumonia are similar to those of viral pneumonia.

[63] Dr. Laidley agreed with the cross-examiner that he diagnosed Ms. Coville with a viral illness and he believed it to be a gastro-type of flu based on her history of symptoms, her sick contacts at home, his observations of her, and her vital signs.

[64] On cross-examination, Dr. Laidley agreed that an emergency department physician must use due diligence, and employ all tests and things available, to eliminate a more serious disease or potential condition if the physician thinks it is warranted based on their clinical judgment, after assessing the patient. Dr. Laidley explained that physicians do not order chest X-rays and bloodwork on everyone who comes to an emergency department complaining of a cough and fever. Instead, emergency department physicians make decisions about ordering tests using their training, clinical judgment, observations, notes from triage, examination, vitals, and assessments. Dr. Laidley did not agree with the cross-examiner that whether it is the flu season is irrelevant to finding the right illness that requires treatment.

[65] On cross-examination, Dr. Laidley agreed that, as an emergency department physician, when taking a history from a patient, he is to immediately begin to consider a differential diagnosis and is to draw out the necessary information by asking questions of the patient. He explained that he does not write down in the chart every differential diagnosis he considers when assessing a patient.

[66] When asked if he suspected pneumonia when he assessed Ms. Coville, Dr. Laidley stated no.

[67] On cross-examination, Dr. Laidley agreed that Ms. Coville’s heart rate at 96 was at the high end but stated that it was still within the normal range.

[68] Dr. Laidley agreed with the cross-examiner that dehydration is only one symptom of a variety of different illnesses. He did not agree with the cross-examiner’s suggestion that solving the dehydration does not make the underlying issue go away; Dr. Laidley stated that it depends on what the underlying issue is.

[69] Dr. Laidley testified that he prescribed Ms. Coville the Tylenol for her aches and pains, not for fever. He agreed on cross-examination that Tylenol could have an impact on a fever. However, while Ms. Coville told Dr. Laidley that she had had a fever, she did not have a measured fever in the Emergency Department, and she was not complaining of a fever while there. By the time of discharge, Ms. Coville said she was feeling better. If she had a fever, Dr. Laidley expected that she would have said that she does not feel well, as that is the standard for people with a fever.

Dr. Catherine Sellens

[70] Dr. Sellens testified that, when she is working as the attending staff physician in the Emergency Department, she sees every patient that her medical student or resident sees. She also has her own patients to see.

[71] Dr. Sellens remembers sitting with Dr. Laidley on December 24th in the RAZ. She and Dr. Laidley were sitting in the middle where the desks were. It was pre-COVID so all the spaces were open, unless something private was happening. She and Dr. Laidley talked to each other about cases and looked around and saw the people who were there. She remembers Ms. Coville in a room just across from the nursing station.

[72] Even though it has been ten years since her interaction with Ms. Coville, Dr. Sellens testified that she remembers entering Ms. Coville’s room to check on her and speaking to Ms. Coville. They talked about Christmas and “mom stuff”. She remembers Ms. Coville saying that she was concerned she was not as ready for Christmas as she wanted to be. At that time, Ms. Coville reported that she was feeling a little better and that she had not “thrown up”. They discussed what would be done next. Dr. Sellens testified that she spent about 5 to 10 minutes with Ms. Coville, and that Ms. Coville was laying flat on her back on the bed and had no difficulty speaking in full sentences; she looked good and had good colour. Ms. Coville looked comfortable and was not in any distress. She was not using any accessory muscles, she did not look to be in pain, and she was not psychologically upset. She did not grab at her abdomen. She was not throwing up. Dr. Sellens did not observe Ms. Coville to cough. Dr. Sellens recalls hanging Ms. Coville’s second IV saline bag herself since it was empty, and it gave her an opportunity to spend time with Ms. Coville to see how she was feeling and what was happening.

[73] Dr. Sellens testified that Ms. Coville had no respiratory symptoms while in the Emergency Department on December 24th. She had a normal respiratory rate and normal oxygen saturation. Ms. Coville’s initial complaints to Dr. Sellens were about vomiting and nausea and that she felt crummy and achy. Ms. Coville did not complain about respiratory problems. In Dr. Sellens’ view, Ms. Coville did not have any respiratory problems because she was laying flat on the bed resting, with no issues.

[74] Dr. Sellens testified that vomiting is not a symptom of bacterial pneumonia. Dr. Sellens testified that she thought Ms. Coville was dry and dehydrated. Upon discharge, Ms. Coville’s heart rate was down to 96 from 134 and she had responded to the fluids. Dr. Sellens testified that a normal heart rate range for an adult is up to 100 beats. So when Ms. Coville’s heart rate went to 96, Dr. Sellens believed that she had improved and was now within a normal range, and Dr. Sellens hoped that Ms. Coville would go home and continue to improve.

[75] While she was in the Emergency Department, Ms. Coville was able to keep fluids down so Dr. Sellens felt that she could continue to do that at home. Dr. Sellens testified that when she counsels patients with nausea and vomiting, she tells them to take a little bit of fluid, have a little sip and then wait. They should not have big amounts, but rather should have constant little bits of fluid.

[76] With respect to Ms. Coville’s reported cough for a week, Dr. Sellens testified that she did not think Ms. Coville had a significant cough, stating that she never saw Ms. Coville cough while she was in the Emergency Department. The occasional cough is not necessarily anything serious. A patient could have a viral illness and have a cough from it. Ms. Coville was not coughing in the Emergency Department when Dr. Sellens saw her. She did not have shortness of breath.

[77] With respect to Ms. Coville feeling warm, Dr. Sellens testified that feeling warm is different than having a fever. There are lots of reasons why patients may feel warm. Feeling warm does not necessarily mean that the body temperature is elevated. A fever is a specific event where the temperature is more than 38 degrees Celsius. On December 24th, Ms. Coville’s temperature was taken in the Emergency Department, and it was not elevated. Dr. Sellens testified that she expects Ms. Coville did feel warm prior to coming into the Emergency Department because she was vomiting, and Ms. Coville may have felt like she had a fever and felt warm before vomiting, as that is common.

[78] Dr. Sellens testified that a consistent, actual fever for a week would be more consistent with leukemia or a process that is ongoing and continuous, for example, like a deep-seated infection. Dr. Sellens testified that Tylenol does not hide significant fevers although it can help a little bit with fever. Tylenol helps some patients with pain. If a patient had sepsis or a significant event happening, Tylenol would not hide that.

[79] With respect to Ms. Coville being a smoker, Dr. Sellens testified that Ms. Coville was only 26 years old and Dr. Sellens does not believe that smoking played a major role in this case. Ms. Coville’s smoking history did not change Dr. Sellens’ diagnosis or treatment plan.

[80] Dr. Sellens testified that Ms. Coville’s history of having a sick child at home is significant since physicians know that viral illnesses often travel through families in homes. Dr. Sellens testified that she believes the whole event involving Ms. Coville began with a viral illness.

[81] Dr. Sellens testified that low back pain and body aches are very typical of a viral illness. They are less common with a bacterial infection.

[82] Dr. Sellens testified that she did not find Ms. Coville’s complaint of a headache to be significant. She may have had a headache because she was dehydrated and dry.

[83] Dr. Sellens explained that Ms. Coville’s oxygen saturation at 97 is relevant because it is in the normal range. Ms. Coville’s capillary refill was normal. Her respiratory rate of 18 was normal when she arrived.

[84] Dr. Sellens testified that Ms. Coville did not have any co-morbid conditions. She was not immunocompromised. She did not have diabetes or any prior cancer. Ms. Coville did not have any of the kinds of conditions that would put her at an increased risk of more serious conditions or infections.

[85] Dr. Sellens testified that it was the clinical judgment of her and Dr. Laidley that Ms. Coville had no respiratory symptoms or findings, so a chest X-ray or bloodwork was not clinically required. Dr. Sellens stated that there was not anything about Ms. Coville’s presentation on December 24th that raised a concern or suspicion about pneumonia.

[86] When asked about ordering bloodwork for all patients who present with vomiting, Dr. Sellens testified that it is not practical to do so. What an emergency department physician is required to do is to decide what therapies and investigations are clinically relevant in each case. An emergency department physician cannot offer every test to each patient when it is not needed. It can also be dangerous to do so. Dr. Sellens testified that it is not routine for an emergency department physician to order bloodwork on patients like Ms. Coville. It is only when bloodwork is clinically relevant that it is ordered for a patient.

[87] Dr. Sellens did not agree with the suggestion that Ms. Coville was severely dehydrated on December 24th. She bases this on Ms. Coville having a normal level of awareness, consciousness, and normal vitals except for her heart rate. Ms. Coville walked into the Emergency Department. People who are severely dehydrated can be confused or disoriented; their blood pressure may be low and they may have an even more elevated heart rate than Ms. Coville had. Severe dehydration would not have resolved with 2 litres of fluid administered in 3 hours. Ms. Coville’s vitals were essentially normal. Dr. Sellens testified that Ms. Coville recovered fairly quickly, with not a large amount of fluid, and that “she just wasn’t severely ill”. Ms. Coville was talking to Dr. Sellens and was comfortable when laying down on the bed. There was no vomiting, no coughing. Dr. Sellens testified that if there was something else driving Ms. Coville’s high heart rate other than dehydration, Ms. Coville would not have responded to the IV fluid as she did and as quickly.

[88] In Dr. Sellens’ experience, patients who have bacterial pneumonia look unwell and are in respiratory distress. They often have a persistent cough and may be coughing up phlegm or blood sometimes. They are not laying flat on a bed like Ms. Coville did. They are usually sitting up and perched forward. They may be using their whole body to breathe. You see their shoulders move with their breaths. A person with pneumonia is working to breathe. That was not Ms. Coville. When Dr. Sellens went in and spoke with Ms. Coville, it was midway through the time Ms. Coville spent in the Emergency Department on December 24th. Dr. Sellens testified that she was assessing Ms. Coville’s respiratory condition as they were talking. And while Dr. Sellens’ respiratory assessment of Ms. Coville was informal, it was still a very important assessment. She saw Ms. Coville laying flat on the bed having no difficulty speaking, using full sentences, and in no distress. It was Dr. Sellens’ judgment that Ms. Coville had a normal respiratory assessment because she was able to do those things.

[89] Dr. Sellens did not take Ms. Coville’s vital signs on December 24th. Dr. Sellens explained that it is not usually the physician’s job to take the vitals of a patient, as that is a nursing application role. Dr. Sellens testified that, in addition to her and Dr. Laidley, the nursing staff was interacting with Ms. Coville as well, inserting the IV, taking vital signs, bringing the medications, and asking about urination.

[90] On cross-examination, when asked if she ever considered pneumonia with Ms. Coville, Dr. Sellens initially answered yes. But when the transcript of her discovery in 2018 was put to her, where she had answered no to that question, Dr. Sellens stated that she cannot recall if she ever considered if Ms. Coville had pneumonia. She testified that she did not have a discussion with Dr. Laidley about bacterial pneumonia.

[91] Dr. Sellens testified on cross-examination that she did consider alternative diagnoses when she was seeing Ms. Coville. Ms. Coville was not septic, not in distress, and had not demonstrated a respiratory issue. Dr. Sellens explained that she spent a significant amount of time with Ms. Coville on December 24th. Dr. Sellens testified that if Ms. Coville had something to tell her, she believes she would have said so. They had a “rapport”.

[92] Dr. Sellens testified that she and Dr. Laidley decided at the end of Ms. Coville’s Emergency Department visit, when she had recovered to the point where she could be discharged, that Ms. Coville had a viral illness. This final diagnosis of viral illness was based on their clinical judgment of what Drs. Laidley and Sellens believed Ms. Coville had. Ms. Coville was discharged and told to return to the Emergency Department if something changed.

Philip Kowch

December 24, 2012 attendance at the Emergency Department

[93] Philip Kowch testified that, in the seven days prior to December 24th, the earliest symptoms he could recall were that Ms. Coville started with a cough and it then progressed to the point where she could not keep water down. She was vomiting; every time she would take a drink, she would “pretty much go into a coughing fit” and vomit. Her complexion was going pale and her level of energy was diminishing throughout. She had started complaining about pains in her back and lower chest, and about headaches. As well, she wanted the house cool as she was getting really hot, even though it was winter time. She would have a fever and take some Tylenol and rest. As it got closer to December 24th, the coughing fits became more aggressive; Ms. Coville had low energy and spent a lot more time sleeping, and pretty much all of her conditions got worse. Her breathing got worse. She was sleeping more and complaining of headaches. She was vomiting when she would take a drink. By the 24th, she was spending most of the day in bed or on the couch in the living room.

[94] Philip Kowch testified that Ms. Coville was really passionate about Christmas. That 2012 Christmas, however, Ms. Coville did not go anywhere and she was not able to do much to prepare for the holidays. Philip set up the tree and wrapped the gifts for their daughter.

[95] While Nicole had had the flu, Philip Kowch stated that Nicole had a very limited amount of symptoms, mostly just a fever. He testified that Nicole “didn’t really have a cough or anything” and that she improved over time.

[96] Philip Kowch testified that their general rule was to wait 72 hours before bothering the emergency room. After about three days, they started getting worried about Ms. Coville not improving. On December 24th, Philip’s father, Kevin Kowch, came by fairly early, around 8:30 or 9:30 a.m. Kevin’s opinion was that they should probably be worried about Ms. Coville’s condition. Philip recalled that going to the hospital was brought up as a question by Philip and Ms. Coville and as a statement by Kevin. They figured that car would be the quickest way to get Ms. Coville to the hospital. She was already dressed. Once they received Kevin’s opinion, they got Ms. Coville down to Kevin’s car and he drove her to the hospital. Philip helped Ms. Coville through the house and then his father supported her arm and brought her to the car from there. Philip was not able to go to the hospital with them because he had to remain with Nicole.

[97] On cross-examination, Philip Kowch agreed that Ms. Coville first started having symptoms a few days before December 24th. He stated that Ms. Coville was not able to keep things down “probably a day or two before the 24th”. It got progressively worse. Philip agreed with the cross-examiner that, at his discovery, he testified that Ms. Coville was vomiting “about once a day up until the 24th”. However, at trial, he clarified this by stating “if not more”; he testified that “about once a day implies more than once a day”. And he agreed that, on December 24th, Ms. Coville was not keeping anything down; she would have a drink, start to cough, and then throw it up.

[98] Philip Kowch further testified on cross-examination that Ms. Coville’s breathing on December 24th was “like a melted milkshake … bubbly, chunky” and that she coughed stuff up, that you could hear stuff moving. She would clear it out and be fine for a bit.

Ms. Coville’s Return Home after Discharge

[99] Philip Kowch testified that Ms. Coville got home from the hospital on December 24th around 2:00 p.m. and her condition was “very much the same”. She seemed a little more talkative, but she was upset because she felt that she was not being listened to at the hospital. Philip testified that Ms. Coville told him that she went into the hospital complaining about not being able to breathe and about having these fits that were scary for her and that “they turned around and whitewashed her” telling her she has the flu, go home. After getting home, Ms. Coville was “kind of active”. They were getting ready for the next morning for Nicole to open her gifts. Ms. Coville’s energy levels started to drop off as the evening came. She ended up retiring to the bedroom early before suppertime. Philip and Nicole had dinner alone. Ms. Coville came downstairs and she was drinking mostly just water but she would end up getting into a coughing fit, would throw it up, and would then go back and lay down. She slept a good long time but she would wake up for a drink or complain of a headache, take a Tylenol or drink of water, throw up, and then go back to sleeping. It was not until early the next morning, on December 25th, that Ms. Coville “kind of got up and around”.

[100] On cross-examination, Philip Kowch agreed that when Ms. Coville came home from the Emergency Department on December 24th, for the rest of that evening, she was essentially unchanged.

December 25, 2012

[101] Philip Kowch testified on cross-examination that, when Ms. Coville woke up Christmas morning, she was worse; she had very little energy. Getting her from the bedroom to the couch downstairs was not easy. Ms. Coville laid on the couch the whole of Christmas morning while Nicole opened her gifts. There was “no reaction” from Ms. Coville when the gifts were being opened, and that was not like her because she loved Christmas. On cross-examination, when asked why he had testified at his discovery that Ms. Coville was “the same” on Christmas morning in response to the question whether Ms. Coville was worse or better on the morning of December 25th, Philip explained that “I remember it differently now”.

[102] Philip Kowch’s evidence was that his father, Kevin Kowch, and Kevin’s girlfriend came by Christmas morning fairly early and that Ms. Coville was still downstairs at the time. Philip could not recall the exact time but estimated that his father arrived probably around 8:30 or 9:30 a.m., like he did the day before. When Kevin and his girlfriend arrived, it was too much for Ms. Coville, so she went upstairs to lay down. Philip testified that his father was not over very long, maybe half an hour into the visit, when Ms. Coville woke up and came down and demanded to go back to the hospital. It felt quite urgent so Kevin drove them right away. Philip went with them to the hospital. He testified that they “pretty much” carried Ms. Coville downstairs and into the car. When they arrived at the hospital, Philip went to get a wheelchair and they unloaded Ms. Coville from the car. Philip went into the Emergency Department with Ms. Coville, and Kevin then went back to the house to help his girlfriend watch Nicole. Philip stayed at the hospital with Ms. Coville until around 10:30 or 11:00 p.m. that night when he then had to leave to go home.

[103] On cross-examination, when asked about Ms. Coville requesting to go back to the hospital, Philip Kowch stated that she was upstairs for about half an hour when something went “really wrong” and she started getting coughing fits; “she started coughing and gasping for air”. She had a really big coughing fit and it scared her, and she wanted to go to the hospital “now”. Philip described that Ms. Coville “was panicked” and “she couldn’t catch her breath”. Philip agreed with his discovery evidence that it was like Ms. Coville “went from sleeping to running for her life”.

Kevin Kowch

December 24, 2012

[104] Kevin Kowch testified that he arrived at Philip and Ms. Coville’s home at approximately 9:00 a.m. on December 24th. When he arrived, Ms. Coville was either lying down or sitting; she was quite lethargic and pale. She had a lot of trouble just to breathe, and she had a lot of coughing. Kevin was talking with Philip about work and general stuff and Ms. Coville did not really join in the conversation until she requested to go to the hospital. Kevin recalled that Ms. Coville suggested going to the hospital first and that he agreed right away. He and Philip got Ms. Coville out to Kevin’s car and Kevin drove her to the hospital. Philip helped her down the stairs and Kevin walked in front. As soon as they got into the car, Ms. Coville tried to light a cigarette but she could not get a full inhale. At that point, she started choking and coughing up stuff. That continued all the way to the hospital. Kevin described it as a “productive cough … spitting up phlegm from your lungs”. He stated that Ms. Coville was having “too rough of a time even to breathe normally” with her coughing.

[105] It took about 10 minutes to drive to the hospital. They parked in front. Kevin Kowch walked with Ms. Coville from the car into the Emergency Department, and she sat down at the triage desk. Kevin sat down in the waiting room and waited until Ms. Coville’s admission was done. Triage did not take very long. He reassured Ms. Coville that she was in the right place. He could not stay because it was Christmas Eve. He gave Ms. Coville some money so she could take a cab home and then left. Kevin did not have any further involvement with Ms. Coville on December 24th.

December 25, 2012

[106] Kevin Kowch testified that he and his girlfriend went over to Philip and Ms. Coville’s for a visit on Christmas evening. Ms. Coville immediately went upstairs to the bedroom when they arrived. Very shortly after that, Kevin and his girlfriend were getting ready to leave when Ms. Coville yelled down for Philip to call her an ambulance. Kevin said that he could get her there quicker than an ambulance. Ms. Coville needed a little bit more help down the stairs and into the car than the day before. Kevin and Philip helped her. Philip went with them to the hospital. Kevin’s girlfriend stayed behind to watch Nicole.

[107] Kevin Kowch recalled that on the car trip to the hospital, Ms. Coville tried to have a cigarette but was not successful and it “caused all kinds of problems”. They arrived at the hospital and went inside. Philip Kowch helped Ms. Coville get registered. Immediately after that, Ms. Coville was craving a cigarette so they walked out to the edge of the hospital property and she lit up a cigarette, but she started coughing and “ejecting phlegm and stuff”. It was a very laboured cough; and after she coughed, she would spit.

[108] Kevin Kowch did not stay long at the hospital on December 25th. He went back to watch Nicole with his girlfriend.

Tonya Kowch

[109] Tonya Kowch is Philip Kowch’s sister. Tonya testified that she had a good relationship with Philip, Ms. Coville and Nicole. She and Ms. Coville would take their children to the park, and Tonya would visit Ms. Coville when Philip was at work. The week prior to December 24th, she was aware that Ms. Coville was feeling ill, so no formal Christmas plans were made. They had conversations that week but did not see each other in person, they just made phone calls.

[110] Tonya Kowch attended at Ms. Coville’s on Christmas Eve to drop off presents for Nicole and to see Philip and Ms. Coville. Tonya estimates that she arrived around dinner time on December 24th. Tonya was aware that Ms. Coville had returned home earlier in the afternoon that day from being at the hospital. Tonya testified that, when she came into the house, Ms. Coville was on the couch and definitely was not feeling well. It was a short visit. Tonya estimates she was there for about 45 minutes. Ms. Coville was “very irritable” when Tonya was there because “she was not feeling good”. The only time Ms. Coville got off the couch was to go to the bathroom. Ms. Coville said that she was feeling ill. After Tonya left the house, she did not have any further communication with Ms. Coville.

EXPERT WITNESSES – STANDARD OF CARE

Dr. John Bonn – Plaintiffs’ Expert on Standard of Care

[111] The Plaintiffs called Dr. John Bonn to provide an expert opinion. Dr. Bonn was qualified as an expert in emergency medicine and to provide an opinion on the standard of care of emergency medicine physicians, and whether the care provided by Drs. Laidley and Sellens met the applicable standard.

[112] Dr. John Bonn is an experienced expert in emergency medicine. He became a member of the College of Physicians and Surgeons in Ontario (CPSO) in 1969 and retired from the practice of medicine in December 2013. He has decades of experience working in emergency medicine. In 1997, he was appointed as the Registrar of the CPSO and served for a four-year term. He was an elected member of Council for the CPSO for eight years, and he sat on many committees dealing with the quality of medicine to be provided and assessing physicians on their quality of care. Dr. Bonn has also done medical-legal consulting work for many years.

[113] It was Dr. Bonn’s opinion that Drs. Laidley and Sellens breached the standard of care by passing Ms. Coville’s symptoms off as a viral illness without performing other tests, and by failing to properly evaluate the respiratory element of her condition. In his view, the Defendants had no apparent consideration of what was causing Ms. Coville’s problem. Dr. Laidley should have been looking at a possible lung problem – pneumonia, bronchitis, or an infection going on that explained why Ms. Coville had an elevated blood pressure. Her pulse rate was high. Dr. Bonn testified that the indications on Ms. Coville’s chart show that this was more than just a simple viral illness. Dr. Laidley needed to ensure that it was not something more serious. Ms. Coville deserved more of an evaluation than what is recorded.

[114] Dr. Bonn testified that Dr. Laidley was right to order IV fluids for Ms. Coville, and Tylenol to bring down her fever and Gravol for her upset stomach. By 12:30 p.m., her pulse was still elevated at 120. She was then given a second litre of IV fluids. Dr. Laidley was concerned about Ms. Coville’s state of hydration and he properly dealt with it. Ms. Coville urinating was a good sign as it meant that the treatment was catching up to the loss.

[115] In Dr. Bonn’s view, the fact that Dr. Laidley recorded the cardiovascular results under the respiratory examination heading is indicative of how much attention Dr. Laidley was paying to Ms. Coville. In Dr. Bonn’s experience, usually the poorer the record, the poorer the care given.

[116] Dr. Bonn stated that there was no evidence in Ms. Coville’s hospital chart from December 24th of an evaluation of her respiratory tract or lungs. He testified that a physical examination of the chest/lungs is done to confirm or exclude pneumonia. However, on cross-examination, Dr. Bonn testified that he believed that Dr. Laidley had listened to Ms. Coville’s chest – as Dr. Laidley stated in his examination for discovery – but that Dr. Laidley failed to initiate any steps as a result of that examination and failed to make a note of it. Dr. Bonn’s evidence was that, if there had been an abnormality found, he assumed that Dr. Laidley would have written it down.

[117] It was Dr. Bonn’s opinion that the signs and symptoms called for a chest X-ray to be performed on Ms. Coville. He testified that he has taught physicians for years that more than just a chest examination is needed to screen or diagnose pneumonia, a chest X-ray is also needed. He cited the article, “Diagnosing Pneumonia by Physical Examination: Relevant or Relic?” (Wipf JE, et al., Arch Intern Med. 1999; 159: 1082-1087), in support of this.

[118] Dr. Bonn commented that Ms. Coville was ill and required two units of saline to bring her pulse down. But her electrolytes were not checked and there was no check of her renal function. This is important in dehydration.

[119] Dr. Bonn also testified that Ms. Coville’s history of smoking meant that the Defendants would need to ensure that nothing was happening with her lungs that was making her so sick.

[120] Dr. Bonn opined that Dr. Laidley and Dr. Sellens had anchored on the diagnosis of viral illness and did not consider anything else, without doing an appropriate clinical evaluation by way of lab work and a chest X-ray. He explained that “anchoring” is a cognitive bias that affects one’s decision-making in medicine. With this bias, the clinician makes a diagnosis at the initial presentation, and all their care and treatment is aimed at that diagnosis, and they do not consider other possibilities. In Dr. Bonn’s opinion, Dr. Laidley’s written notes indicate that he and Dr. Sellens were of the opinion that Ms. Coville had a viral illness affecting the digestive tract with vomiting and subsequent dehydration. This is confirmed by the diagnosis written by Dr. Sellens.

[121] Dr. Bonn stated that, in his experience, it is routine to order bloodwork, a complete blood count, electrolytes, and kidney function tests in Ontario’s community hospitals, and the results are usually received within 20-30 minutes. A chest X-ray is also a routine test.

[122] Dr. Bonn testified that, while the overwhelming majority of patients with symptoms similar to those of Ms. Coville on December 24th are viral illnesses and require no antibiotics, it is the role of the physician to ensure that the rare case that could have potential serious decline is not missed.

[123] Around the time of discharge, Ms. Coville’s heart rate had decreased from 134 to 96 beats per minute. Dr. Bonn opined that 96 was still elevated and stated that he would not consider her pulse rate normal given that she was very ill and required two litres of IV fluid to get her pulse down to 96. As well, Dr. Bonn testified that he did not agree that Ms. Coville’s blood pressure was “essentially normal” at 129/91. The Defendants had not “cured” the elevated blood pressure condition and what was causing it. This indicates a need to either further evaluate the patient or hold off on discharging the patient until she is feeling well and her signs and symptoms have returned to normal.

[124] On cross-examination, Dr. Bonn agreed that, aside from Ms. Coville’s complaint of cough and a history of feeling warm, the clinical constellation of her respiratory symptoms and signs, as documented in the December 24th Emergency Department record were: normal respiratory rate, normal oxygen saturation, normal capillary refill, non-distressed, no shortness of breath, and normal temperature; and that the only abnormal sign was the elevated heart rate that improved with hydration.

[125] Dr. Bonn agreed on cross-examination that a history of cough, feeling warm, aches and pains, and having a child with the flu, are all consistent with a patient having the flu.

[126] Dr. Bonn agreed with the cross-examiner that, if Ms. Coville presented to the triage nurse with symptoms of trouble breathing, needing help to ambulate, difficulty speaking, or audible breathing sounds, he would expect the triage nurse to document that. And that, if a patient was presenting as being moderately or severely ill, they would not be placed in the RAZ area if there was a choice. Dr. Bonn commented that the triage nurse classified Ms. Coville at a level of CTAS 3, and that the majority of patients in the Emergency Department now are 3s.

[127] Dr. Bonn agreed with the cross-examiner’s proposition that, given Ms. Coville’s two normal chest examinations on December 25th – one done by Dr. Hersi and the other done by a nurse – that it was more likely than not that Ms. Coville’s physical chest examination was normal on December 24th, the day prior.

[128] Dr. Bonn also agreed with the suggestion that an emergency department physician is constantly taking in information about a patient by observing them, including how the patient acts and speaks. And that one of the most important things emergency department physicians do is to observe the patient because observation, together with everything else, informs the physician’s judgment.

Dr. Eric Letovsky – Defendants’ Expert on Standard of Care

[129] The Defendants called Dr. Eric Letovsky as an expert witness. Dr. Letovsky was qualified as an expert in emergency medicine and to give opinion evidence on the standard of care that is expected of an emergency medicine physician in Ontario and whether the Defendants met that standard of care.

[130] Dr. Letovsky is a specialist in emergency medicine. He is the Chief of the Department of Emergency Medicine at Trillium Health Partners and the Emergency Lead for the Mississauga LHIN. He is also the network lead for the emergency medicine peer assessor group at the CPSO to ensure community standards of care and that physicians meet those standards. He is the former director of the Division of Emergency Medicine at the University of Toronto, Faculty of Medicine. He has practiced emergency medicine for approximately 42 years.

[131] The Plaintiffs argued that, in portions of his testimony, Dr. Letovsky testified as an advocate. While I agree that Dr. Letovsky did use some superlative forms when testifying, I nonetheless found him to be a credible and reliable witness. He was knowledgeable and fair in his testimony. In my view, he was balanced when responding to questions on cross-examination while maintaining his own opinions.

[132] In Dr. Letovsky’s view, the care given to Ms. Coville on December 24th by the Defendants met the standard for emergency medicine and it was reasonable and appropriate for them to diagnose Ms. Coville with a viral illness. He based this on his understanding that Ms. Coville had been sick with a cough for one week and fever. She complained of aches and pains all over for five days, which is typical for a viral illness such as influenza, and she had sick contacts. On December 24th, Ms. Coville was afebrile and her respiratory was normal. Her heart rate was increased but it was reasonable to suspect this was due to dehydration alone as her heart rate returned to normal after receiving two litres of fluid intravenously. With respect to Ms. Coville’s vital signs taken on December 24th, Dr. Letovsky testified as follows:

a. Neither of her blood pressures – being 126/103 and 129/91 – would have concerned him as an emergency department physician; the second reading is essentially a normal blood pressure. A low blood pressure would have concerned him because, with a fever, this could represent shock from sepsis or overwhelming infection.

b. Ms. Coville’s oxygen saturation was normal at 97. This is very significant because it is information that allows physicians to make clinical judgments especially with respiratory patients.

c. Ms. Coville did not have a measured fever. If she had had a prior fever and it was reduced by Tylenol, this would be reassuring. Tylenol helps primarily with aches and pains. If Ms. Coville had had a raging pneumonia, she would have had a fever. Tylenol would not have helped reduce a fever if Ms. Coville had bacterial pneumonia.

d. In Dr. Letovsky’s opinion, Ms. Coville’s heart rate of 96 was normal when she was discharged. Normal is 60ish to 100ish. More important was the fact that her heart rate came down to 96 because that tells him that she was dehydrated. In Dr. Letovsky’s opinion, if Ms. Coville had a severe life-threatening pneumonia or been septic, her heart rate would not have come down with two litres of fluid alone. He also does not believe Ms. Coville’s hydration was severe because her pulse came down with just two litres of fluid, so her hydration levels could not have been that bad.

[133] When asked on cross-examination about the significance of Ms. Coville’s cough, Dr. Letovsky’s evidence was as follows:

a. He did not agree that cough is more important than fever or headache. All of Ms. Coville’s symptoms would have to be taken seriously.

b. He agreed that when a cough is a presenting complaint by a patient and the reason why they went to an emergency department, it is fundamental to the analysis of the cough to do a full respiratory examination.

c. He testified that a cough, without something more, is not an indication that a chest X-ray is required. People with colds and influenza get coughs. In an emergency department, the physicians deal with probabilities not possibilities. The likelihood of a young woman who is not immunocompromised – which is key to this case – developing pneumonia after seven days of a cough is extraordinarily rare.

d. A chest X-ray could have been done if her respiratory rate was high or her oxygenation was low. A patient’s respiratory rate and oxygenation are the most critical signs of respiratory distress, even better than listening to the lungs.

e. He agreed that, in the circumstances of Ms. Coville’s presentation on December 24th, pneumonia would be included as a differential diagnosis. He further agreed that where pneumonia is suspected, then a chest X-ray and bloodwork should be ordered. But he explained that a cough, in and of itself, is not an indication of a need for a chest X-ray; a cough is “the most common … symptom in influenza and colds”.

[134] Dr. Letovsky testified that the reference to having sick contacts at home is very relevant because it suggests that the fever and cough are compatible with what Ms. Coville’s child had the week before. It pointed to a viral illness as perhaps the source of Ms. Coville’s illness and it was reassuring that the child recovered.

[135] With respect to Ms. Coville vomiting for 3 days, Dr. Letovsky testified that her hydration status would have to be assessed. Vomiting and nausea are very non-specific symptoms and can be present in a lot of conditions. Physicians see nausea and vomiting in many viral infections. It is not uncommon for influenza patients to vomit. Vomiting can also be a symptom of pneumonia. It was reassuring that Ms. Coville took Tylenol before coming to the Emergency Department and she was given oral Tylenol at the hospital, and she kept it down. There is no report of her vomiting in the Emergency Department.

[136] It was Dr. Letovsky’s evidence that, while smoking can be an instigator for pneumonias, Ms. Coville’s smoking was not a real concern because she was young and did not suffer from chronic lung disease.

[137] Dr. Letovsky testified that aches and pains for 5 days is a classic symptom of influenza. Typically, influenza patients present with fever or cough, stuffy nose, and aches and pains all over. Influenza can last a long time because there is a progression of symptoms.

[138] Dr. Letovsky explained that CTAS 3 is the classification for patients who are less ill; the general rule is they “look well”. The implication of Ms. Coville being triaged at CTAS 3 means that the triage nurse considered Ms. Coville to be looking well and not terribly ill.

[139] Dr. Letovsky’s evidence was that Ms. Coville being “alert and oriented” is very significant because it shows she is not terribly ill. Very ill patients often look unwell and may be disoriented. Septic patients, for example, have an altered level of consciousness.

[140] Ms. Coville’s cardiovascular examination was reported to be normal, no murmurs. This means that Dr. Laidley listened to heart sounds and for murmurs, looking for evidence of endocarditis. Ms. Coville’s capillary refill of less than 2 seconds shows she is profusing well and has good circulatory function. There were no signs of shock or early shock and that is a good sign in a patient with a fever. It shows she is not septic.

[141] Dr. Letovsky testified that Dr. Laidley’s discovery evidence that he found bilateral air entry with no sounds in his chest examination of Ms. Coville, shows that Dr. Laidley considered the possibility of pneumonia as part of the differential diagnosis.

[142] Dr. Laidley found Ms. Coville’s abdomen soft, with no rebound and no tenderness. Dr. Letovsky stated that this examination shows Dr. Laidley considered a number of causes for her vomiting.

[143] Regarding Dr. Laidley’s notation that Ms. Coville was non-distressed, Dr. Letovsky testified that this is probably the most important thing when assessing a patient – observing the patient to see what they look like, whether they look ill or sick, and whether they are in distress or not. The most important part of what emergency department physicians do is try to decide who looks well and who does not, because it determines where you go from there.

[144] Dr. Letovsky opined that Dr. Laidley met the standard of care required for his care and treatment of Ms. Coville. In his opinion, viral illness was an appropriate working diagnosis given Ms. Coville’s clinical history, her vital signs and the results of her physical examination by Dr. Laidley.

[145] Dr. Letovsky testified that, in his opinion, Dr. Sellens was “extremely conscientious” and was supervising the residents very carefully, especially given that she saw Ms. Coville in person and did not just rely on Dr. Laidley’s assessment of her. In his experience, it is rare for most attending staff physicians to see patients in person when the patient has been seen by a senior 4th year resident.

[146] Dr. Letovsky testified that what is key in medicine is to use clinical judgment to decide which patients are at risk of deteriorating. Patients who are most likely to deteriorate are the elderly, diabetic, and those with chronic destructive lung disease. It would not be predicted that a young, healthy patient like Ms. Coville would deteriorate. In terms of process, the emergency department physician takes the patient’s history and does a focused physical examination and, based on the physician’s assessment of those, decides on a balance of probabilities what the most likely diagnosis is, and then decides if tests should be ordered or not. He agreed that due diligence means history-taking, a full physical assessment, and a differential diagnosis that would include the most serious possibilities “within reason”.

[147] In Dr. Letovsky’s opinion, Ms. Coville was appropriately discharged on December 24th with a viral illness and with instructions to return to the Emergency Department if her symptoms worsened.

[148] On cross-examination, Dr. Letovsky accepted that the standard of care is to consider differential diagnoses, and that a differential in this case would include pneumonia, either bacterial or viral. Dr. Letovsky’s evidence was that the role of the emergency physician is to provide a reasonable differential diagnosis. Physicians are encouraged to consider multiple diagnoses. However, it is not feasible, practical or warranted to order blood tests or imaging on every patient to rule out “zebra cases” when assessing patients in an emergency department. In medicine, physicians act on probabilities – what is the likelihood of a disease in this particular patient. If the probability of pneumonia is high, then a chest X-ray should be ordered, but if the probability is low, then you do not order a chest X-ray. Dr. Letovsky testified that it is reasonableness that is the standard – what is the reasonable thing to do.

[149] In Dr. Letovsky’s opinion, Ms. Coville’s clinical presentation did not raise a concern for pneumonia. Her respiratory examination was normal and her oxygen saturation was normal. Ms. Coville was young with no past medical history, no co-morbidities, no diabetes, and no chronic lung disease. Everything pointed to a diagnosis of influenza. It was the right time of year, flu season, there was a past history of communicable disease in her immediate family, and she presented with symptoms typical of influenza.

[150] Dr. Letovsky opined that the standard of care did not require Drs. Laidley and Sellens to order an X-ray and bloodwork for Ms. Coville. In late December, emergency departments have a lot of patients come in with respiratory or upper respiratory infections, with cough and fever. The majority of patients with influenza do not get chest X-rays or bloodwork. There was nothing in Ms. Coville’s picture to suggest a “superimposed pneumonia” on December 24th or a high risk of getting pneumonia. She was otherwise a young and healthy person, without a fever, and with a normal respiratory rate and normal oxygenation and good air entry bilaterally. In pneumonia, the respiratory rate increases.

[151] As it relates to charting, Dr. Letovsky teaches physicians to be concise and precise and to document just the most relevant parts of the assessment that tell a story. It is not possible to chart everything. In Dr. Letovsky’s opinion, the history-taking by Dr. Laidley was reasonable and appropriate, and his charted notes exceeded the standard of care of emergency department physicians in Ontario. Dr. Laidley’s notes indicated the history taken and documented his assessment and two reassessments and Ms. Coville’s discharge. Dr. Laidley also noted Ms. Coville’s “last menstrual period” and “no rigidity” which shows a wide differential was considered.

[152] Dr. Letovsky stated that it is very rare for attending staff physicians like Dr. Sellens to write notes on the chart, in addition to the resident’s notes, because it usually has no added value.

EXPERT WITNESSES – CAUSATION

Dr. Ignatius Fong – Plaintiffs’ Expert on Causation

[153] The Plaintiffs called Dr. Ignatius Fong as an expert witness. On consent, Dr. Fong was qualified as an expert in infectious diseases to provide an opinion on the cause of Ms. Coville’s death and to opine on the care of emergency physicians from the perspective of an infectious disease specialist.

[154] Dr. Fong has been practicing medicine for approximately 52 years and has 46 years of experience in infectious diseases. He is on staff at St. Michael’s Hospital. His experience involves teaching internal medicine to both medical students and residents. He teaches residents on a regular basis. Dr. Fong is also a reviewer for several medical journals, including for Clinical Infectious Diseases Journal and for general internal medicine journals. He has authored and edited a number of peer-reviewed books and publications. Dr. Fong has also presented on numerous occasions, including at international meetings for infectious disease specialists.

[155] It was Dr. Fong’s opinion that Ms. Coville likely had early pneumonia on December 24th when she presented at the Emergency Department. In his opinion, the Defendants breached the standard as it relates to their care of Ms. Coville by failing to order a chest X-ray and bloodwork to rule out complications of influenza, including bacterial pneumonia, as those tests likely would have shown abnormalities and led to Ms. Coville being hospitalized and treated for influenza and pneumonia on December 24th.

[156] Dr. Fong relied on his understanding of Ms. Coville’s history that she had had influenza illness including persistent fever and cough for one week. He explained that in a young, healthy adult, one can expect that fever and chills should not normally persist more than 4 days with influenza, so the Defendants needed to rule out complications of influenza, the most common of which is bacterial pneumonia. Generally, improvement is seen after three or four days of a fever, but a person can have a persistent cough or body aches for another two weeks or so. Dr. Fong testified that if someone “has a persistent fever for more than a week, you have to suspect pneumonia and other complications”. Dr. Fong opined that a chest X-ray should have been done to see if Ms. Coville had pneumonia because “her fever was too persistent for too long for a healthy adult” with just an influenza illness.

[157] Dr. Fong explained that most patients with fever have intermittent fever, so it may occur for one hour or two hours and then disappear. Here, Ms. Coville was in the Emergency Department for three-and-a-half hours and her temperature was taken once. Many patients are admitted to the hospital with infections who do not have a documented fever in the emergency department, and you only see the fever after they have been admitted. He explained that it is recommended that the patient's temperature be taken every four hours and it is only if there has been no temperature elevation for 24 hours or more that they should be considered to not have a fever.

[158] With respect to the impact of the flu season in the circumstances of Ms. Coville’s attendance on December 24th, Dr. Fong testified that, because it was flu season, it does mean that the patient likely has influenza rather than the common cold. But a physician must know that influenza alone does not explain persistent fever in a young adult of more than one week, or persistent vomiting.

[159] Relying on Ms. Coville’s reported complaint of “persistent nausea and vomiting for three days”, Dr. Fong testified that he would expect a senior resident and a staff physician to know of the complications of persistent nausea and vomiting. These would include electrolyte imbalance, metabolic acidosis and possible alkalosis, and that there is a need for blood tests to determine if these are present to correct them. To give intravenous saline alone, as Dr. Laidley did, is not adequate because one cannot correct many of the disturbances if the patient’s potassium is low. Persistent vomiting is not normal for influenza. The Defendants should have considered if Ms. Coville was pregnant, because there is a worse outcome for influenza if someone is pregnant, or if she had a bowel or gallbladder problem that caused the vomiting. Bacterial pneumonia is a major complication in influenza. Pneumococcal pneumonia is also an increased complication in smokers. A physician needs to answer these issues before they send a patient home.

[160] In Dr. Fong’s opinion, Ms. Coville should not have been discharged with “persistent vomiting” and likely a “metabolic disturbance”. He stated that it was below the standard of care to send Ms. Coville home with “persistent nausea and vomiting” and tell her to take Gravol. The vomiting was likely to persist, and Ms. Coville would likely require intravenous fluid again to stabilize.

[161] It was Dr. Fong’s opinion that Ms. Coville needed an X-ray and bloodwork done on December 24th. Bloodwork should have been done to see what her sodium and electrolytes levels were. In his view, a blood test would have shown electrolyte disturbance and likely would have shown low potassium, and a complete blood test likely would have shown an abnormality in Ms. Coville’s white blood count. Dr. Fong opined that a chest X-ray done on December 24th would more likely than not have shown early pneumonia, and that would have led to a consultation with admission service, which is usually internal medicine in the hospital, and they would have assessed Ms. Coville and decided whether to admit and treat her. Dr. Fong testified, in his view, Ms. Coville would likely have been admitted to hospital “based on electrolyte disturbances … and because she’s persistent vomiting”, and they likely would have treated her for both pneumonia and the influenza.

[162] In Dr. Fong's view, it was likely that Ms. Coville’s pneumonia on December 24th was moderate and would have been easily treatable at that stage. She had symptoms of pneumonia – cough, persistent fever for a week, nausea, vomiting and was ill – but it was likely not very severe because her respiratory rate was normal and her oxygen saturation level was normal. Dr. Fong testified that Ms. Coville’s pneumonia was not easily treatable on December 25th because she was in severe sepsis at that time.

[163] Dr. Fong did not agree with the opinion of the Defendants’ expert, Dr. Ole Hammerberg, that Ms. Coville had rapidly fulminant pneumococcal pneumonia developing after December 24th and just before her hospitalization on December 25th. Dr. Fong testified that this does not make sense to him. Rapidly progressive pneumonia is well known – it is also called “galloping pneumonia” from the 1918 influenza pandemic – and is typically only seen in severely immunosuppressed individuals or those who have had their spleen removed. Ms. Coville was neither of those. Dr. Fong also stated that he believes Dr. Hammerberg did not give an explanation for Ms. Coville’s vomiting.

[164] On cross-examination, Dr. Fong agreed that Ms. Coville’s bloodwork taken shortly after she arrived at the Emergency Department on December 25th, showed that she had a normal creatinine level of 69. The creatinine level is usually abnormal in severe dehydration. Dr. Fong said the 69 result was surprising because, in his view, she had severe dehydration and would have lost electrolytes. (Dr. Fong explained that it depended on what Ms. Coville’s base creatinine level was though. While the normal creatinine range is 50-98, that may not have been the normal range for Ms. Coville. For example, if her base was 40, then 69 could represent a worsening kidney function for her despite it being within the normal limits.) Dr. Fong agreed on cross-examination that Ms. Coville’s blood urea nitrogen (BUN) level test was also normal on the December 25th, even though it is very common for patients with dehydration to have a high BUN level. Dr. Fong explained this may reflect when the blood test was taken, for instance, after giving Ms. Coville one or two litres of saline intravenously and he does not know when the blood test was taken.

[165] Dr. Fong’s evidence was that Ms. Coville’s white blood count was low on December 25th, however, he could not predict if her white blood count would have been low on December 24th, as well.

[166] While Dr. Fong commented that Ms. Coville’s oxygen saturation of 97 was “surprisingly normal” on December 25th, that is meaningless on its own. Ms. Coville’s symptoms on December 25th were more severe and she was complaining of shortness of breath. If a patient has bilateral pneumonia, they do not necessarily have low oxygen saturation; it is a combination of the patient’s symptoms and signs at a particular time. On cross-examination, Dr. Fong agreed that on December 25th, Ms. Coville went from having an oxygen saturation of 97 and a respiration rate of 22 to requiring mechanical ventilation within a matter of hours. He also testified that he was not aware that the reason the ICU team requested an autopsy was because they were concerned about Ms. Coville’s “quick decompensation”.

[167] When asked by the cross-examiner if the presence of fever is helpful to determine if there is a bacterial infection, Dr. Fong replied that in most cases it is, but not in all cases. Dr. Fong agreed that, on December 24th, Ms. Coville’s temperature was within the normal range.

[168] Dr. Fong agreed with the cross-examiner that Dr. Hersi’s examination of Ms. Coville on December 25th found her chest/lungs to be normal, when she was assessed at approximately 5:30 p.m. after being triaged, and that she was reported to have “good air entry bilaterally” and “no wheezes”. Dr. Fong further agreed that, given that Ms. Coville’s two chest examinations on December 25th were normal, in all likelihood, her chest examination was likely normal when she was examined by Dr. Laidley on December 24th.

Dr. Ole Hammerberg – Defendants’ Expert on Causation

[169] Dr. Ole Hammerberg was called as an expert witness by the Defendants. On consent, Dr. Hammerberg was qualified as an expert in infectious diseases to provide an opinion on the cause of Ms. Coville’s death and to opine on the care of emergency physicians from the perspective of an infectious disease specialist.

[170] Dr. Hammerberg is an infectious diseases specialist. He is knowledgeable about bacterial pneumonia, including pneumococcal bacterial pneumonia, as well as viral illnesses. He worked as an infectious diseases specialist for 38 years and was also involved in teaching students and residents until he retired on July 1, 2019. Dr. Hammerberg was affiliated with McMaster University and the University of Western Ontario and their respective teaching hospitals. He is also a specialist in pediatrics and medical microbiology. Dr. Hammerberg has published papers and given numerous presentations in the field of infectious diseases.

[171] It was Dr. Hammerberg’s opinion that Ms. Coville’s death was caused by an onset of a rapidly progressive bacterial pneumonia on December 25, 2012, a couple of hours before she arrived at the Emergency Department that day. In his opinion, it is very unlikely that Ms. Coville had pneumococcal pneumonia when she presented at the Emergency Department on December 24th.

[172] Dr. Hammerberg advised that, in forming his opinion, he assumed that Ms. Coville did not have a fever for 1 week. He based this assumption on the hospital chart that indicated Ms. Coville’s complaint was of “cough for 1 week with fever”, and not “fever for one week”.

[173] Dr. Hammerberg testified that his interpretation of the charting is that the main concern of Drs. Laidley and Sellens was Ms. Coville’s vomiting and dehydration, so they provided fluids and Dr. Laidley’s follow-up with Ms. Coville noted the effects of the fluids on her status before she was discharged.

[174] Dr. Hammerberg’s evidence was that, if Ms. Coville suffered from a viral infection, then Tylenol could have helped with her fever. However, if she had a fever from pneumococcal pneumonia, then Tylenol would have been much less effective, if at all.

[175] There is no notation of any coughing in the assessment section of Ms. Coville’s chart. Dr. Hammerberg’s evidence was that, in his experience, there is no notation of a cough because a cough was likely not observed by Drs. Laidley or Sellens. Every reasonable and rational physician will consider a cough when a patient complains of a cough. He disagreed with the cross-examiner’s suggestion that because Ms. Coville’s chart is silent on the issue of a cough, it is possible Dr. Laidley did not do a respiratory examination. Dr. Hammerberg explained that it is hard to do a cardiovascular examination and listen to heart sounds and not listen to the lungs at the same time.

[176] Dr. Hammerberg testified, on cross-examination, that a fever and cough can be evidence of a possible pneumonia, but it depends on the nature of the cough and the nature of the fever. A patient can have a dry hacking cough and a fever for an hour and that is not predictive of pneumonia. Or a patient can have a high fever and productive cough with sputum which is highly predictive of pneumonia. But none of these symptoms are charted in Ms. Coville’s case on December 24th.

[177] In Dr. Hammerberg’s opinion, it is highly unlikely that Ms. Coville suffered pneumococcal pneumonia on December 24th based on her clinical appearance. She appeared well, was able to lie down flat, was afebrile, and had a normal respiratory rate. Dr. Hammerberg explained that, if a patient is in respiratory distress, the inclination is to want to sit up because, by lying flat, the lungs get further congested. Sitting up further increases the ability to breathe comfortably.

[178] On cross-examination, Dr. Hammerberg did not agree with the suggestion that a new symptom of vomiting for three days, along with the cough and fever for seven days, was a “worsening” of Ms. Coville’s condition. Dr. Hammerberg testified the vomiting was just “an additional symptom”.

[179] Dr. Hammerberg testified that, in his view, Ms. Coville’s blood pressures of 126/103 and 129/91 were not extremely high and do not suggest that she had a serious infection. If a patient has an infection like sepsis, Dr. Hammerberg would expect their blood pressure to be lower, not higher. In his opinion, Ms. Coville’s blood pressure readings reflect a patient who is not feeling well and is anxious and stressed about coming into a hospital. Her systolic pressure is normal, and her diastolic pressure is moderately elevated. Dr. Hammerberg does not see how Ms. Coville’s blood pressures on December 24th “in any way” suggested that she may have an infection.

[180] It was Dr. Hammerberg’s opinion that Ms. Coville was appropriately discharged on December 24th with a viral illness and with instructions to return to the Emergency Department if her symptoms worsened.

[181] Dr. Hammerberg testified that, if there was an underlying bacterial infection, he would not expect Ms. Coville’s heart rate to improve with two litres of saline.

[182] Dr. Hammerberg’s evidence was that viral illness and pneumococcal pneumonia are clinically distinguishable. Viral respiratory infections constitute the vast majority of community-acquired pneumonia; they are usually more insidious but less severe; they are generally self-limiting, and the patient gets better on their own without specific treatment. The process of pneumococcal pneumonia is much more severe than viral pneumonia; its onset is usually abrupt and its progression more rapid, although not as rapid as in Ms. Coville’s case. Pneumococcal pneumonia has been traditionally described in the medical literature as an abrupt onset with chest pain, cough, shortness of breath and fever. Symptoms like chest pain and dyspnea generally start early in the process of infection. Once pneumococcal pneumonia manifests, the symptoms become “fairly apparent fairly quickly”.

[183] Dr. Hammerberg agreed with Dr. Fong that there is a greater risk and severity of bacterial pneumonia in a patient with influenza.

[184] Dr. Hammerberg testified that it is highly relevant that Ms. Coville’s condition remained unchanged during the afternoon of December 24th to the afternoon of December 25th because it strongly suggests to him that she did not have pneumococcal pneumonia on December 24th. If Ms. Coville had had pneumococcal pneumonia on the 24th, Dr. Hammerberg would have expected her progression to have occurred shortly after her departure from the Emergency Department, not 24 hours later, because it would be highly unusual for pneumococcal pneumonia to remain dormant and then suddenly become fulminant.

[185] In his opinion, it is very unlikely that Ms. Coville had pneumococcal pneumonia when she presented at the Emergency Department on December 24th because her examination was normal – her respiratory examination, in particular, was normal, and she had a normal respiratory rate. She was not coughing during the assessment, and her oxygen saturation was normal. She was also afebrile. There was nothing on December 24th to suggest that Ms. Coville had pneumococcal pneumonia. If Ms. Coville had had a sustained high-grade fever or if she had been observed to cough and the cough was progressive or producing rust-coloured sputum, that would have been suggestive of pneumococcal pneumonia on December 24th.

[186] Dr. Hammerberg testified that it would be “extremely unlikely” for a patient to have pneumococcal pneumonia and have a normal respiratory rate and a normal oxygen saturation rate and be non-distressed, stating:

Because the – in pneumococcal pneumonia, the infection involves the [alveoli] sacs, and the bacteria also inflame the pleura. The [alveoli] sacs is where gas exchange occurs. In pneumococcal pneumonia, these air sacs quickly fill up with pus and fluid, and intergas(ph) exchange, and that’s reflected in the oxygen saturation. Patients usually appear well [sic] – unwell. They appear sickly. And a well-appearing patient, just overall, is not likely to have a deep-seated potentially life-threatening bacterial infection. That’s, that’s unlikely.

[187] Dr. Hammerberg explained how oxygen saturation is affected by pneumococcal pneumonia, as follows:

Well the oxygen saturation is affected by the ability of the blood being oxygenated in her lung. That process occurs in the [alveoli] sacs. The [alveoli] sacs contain the air we inhale, and the blood vessels go by the, go through the [alveoli] sacs and pick up oxygen. When the [alveoli] sacs become congested with fluid and pus, as they do in pneumococcal pneumonia, the blood that goes through the [alveoli] sacs doesn’t get oxygenated, and that in turn causes the oxygen saturation to drop.

[188] Philip Kowch’s description of Ms. Coville on December 25th gasping for air and that it was like she went from “sleeping to running for her life” suggests to Dr. Hammerberg that Ms. Coville developed pleura inflammation – inflammation of the lining around the lung – that made it difficult for her to take deep breaths. In his opinion, Ms. Coville probably started to have shallow breathing and difficulty breathing and chest pain.

[189] Dr. Hammerberg opined that Ms. Coville succumbed to a fulminant pneumococcal infection manifesting as pneumonia and sepsis, and that this event is “extremely rare for any immunocompetent patient” like Ms. Coville, since she was an otherwise healthy, young adult. He agreed with Dr. Fong that such infections are seen more often in patients who have had their spleen removed or who are immunocompromised.

[190] In Dr. Hammerberg’s opinion, Ms. Coville’s influenza likely facilitated her getting pneumococcal pneumonia, but the influenza did not play a role in her rapid deterioration and death from pneumonia. Ms. Coville’s upper respiratory tract (her nose and throat) tested positive for Influenza A; her lung tissue was negative for influenza. Dr. Hammerberg testified that this suggests that the influenza was not co-infecting her lungs with pneumococcus and contributing to her rapid decline. While Ms. Coville’s influenza pre-disposed her to pneumonia in the first place, it likely did not hinder the immune ability of her lungs to contain the pneumonia.

[191] It was Dr. Hammerberg’s evidence that there is no satisfactory explanation for why Ms. Coville succumbed to the pneumonia infection. From the autopsy, there was no evidence of influenza in her lungs and no signs of damage from smoking. It is highly unusual for a pregnant patient to present with overwhelming pneumonia and die within a few hours after presentation, unless they are immunocompromised. Dr. Hammerberg opined, therefore, that the fulminant pneumococcal pneumonia and sepsis were “possibly due to other factors, including a previously unrecognized immunodeficiency”. He explained that there is no evidence that Ms. Coville was not immunocompromised because the records did not show that she had been investigated for immune deficiencies before this infection. When children and young adults develop unusually severe infections, it may be on account of a deficiency in their immune system not recognized before the event. It would not have been possible to test Ms. Coville for a congenital immunodeficiency after her death because such testing requires whole blood that cannot be obtained post-mortem.

[192] If bloodwork had been done on December 24th, Dr. Hammerberg’s opinion was that Ms. Coville’s complete blood count would not likely have differentiated a viral illness from a bacterial infection. White blood cell counts in people with influenza are often moderately abnormal. In early pneumonia, you may see the same. Since clinically it was determined that Ms. Coville had a viral infection, a moderately or mildly elevated abnormal white blood count would not have been helpful in discriminating between a viral infection and the early onset of pneumococcal pneumonia.

[193] Dr. Hammerberg’s opinion was that, if a chest X-ray had been taken on December 24th, it is possible the X-ray would have been negative for air space disease since, early on after the onset of clinical signs of pneumonia, a chest X-ray can remain negative for a few hours. The infectious process of pneumococcal pneumonia will proceed the radiologic changes that are observed on a chest X-ray.

[194] In commenting on Dr. Fong’s assertion that the “presence of normal oxygen saturation or normal respiratory rate does not rule out pneumonia”, Dr. Hammerberg stated that he disagreed with that statement in the context of Ms. Coville’s case because “we’re not talking about pneumonia in general, we’re talking about a rapidly progressive pneumococcal pneumonia that resulted in massive consolidation of both lungs”. Dr. Hammerberg testified that “a typical pneumonia can present with normal oxygen saturations, because that process does not involve the [alveoli] but the interstation(ph) between the [alveoli]. So the inflammation does not result in air space disease, especially early on, as does pneumococcal pneumonia”. In Dr. Hammerberg’s opinion, Dr. Fong’s statements do not apply to Ms. Coville’s case, which involved a severe pneumococcal pneumonia.

[195] Further, it was Dr. Hammerberg’s impression that Dr. Fong assumed the abnormal chest X-ray and the normal oxygen saturation were seen at the same time on December 25th but this is not true. The chest X-ray was done three hours after the normal oxygen saturation was noted. Shortly after the chest X-ray was done, Ms. Coville’s oxygen saturation was “grossly abnormal”.

[196] Dr. Hammerberg’s evidence was that, given her initial presentation and early pneumonia when she attended the Emergency Department on December 25th, Ms. Coville should have readily responded to antibiotics, but she did not.

FINDINGS OF FACT

[197] After carefully examining and weighing the evidence, on the balance of probabilities, I make the following findings of fact:

Cough

[198] I accept the testimony of both Drs. Laidley and Sellens that they did not observe Ms. Coville to have a cough for the three-and-a-half hours she was in the Emergency Department on December 24, 2012.

[199] While Ms. Coville complained of a history of a cough for one week, there is no notation in the hospital records of her being observed to have a cough by hospital staff on December 24th. In the hospital records, the first notation made by hospital staff of a cough being observed in Ms. Coville is at 7:50 p.m. on December 25th and it is described as a “dry cough”.

[200] I find that there is no credible and reliable evidence that establishes that Ms. Coville had an observable cough while in the Emergency Department on December 24th.

[201] I accept Dr. Hammerberg’s evidence that symptoms patients present with may be different than the symptoms they are observed with objectively in the hospital; and, Dr. Letovsky’s evidence that, in his experience, patients can come in with a cough and, while they are being assessed in emergency, they are not coughing.

[202] I decline to infer that Ms. Coville was coughing in the Emergency Department on December 24th based only on the evidence of Philip Kowch and Kevin Kowch that she was coughing prior to attending at the Emergency Department that day. Philip’s evidence tied much of Ms. Coville’s coughing fits to her taking a drink of water; and Kevin’s evidence tied some of Ms. Coville’s coughing that he witnessed to her trying to smoke a cigarette. Ms. Coville was given Tylenol orally in the Emergency Department on December 24th but there is no report by hospital staff of her coughing after drinking fluids to take that medication. And there is no evidence that Ms. Coville was trying to smoke a cigarette while inside the Emergency Department on December 24th. Neither Philip nor Kevin was with Ms. Coville while she was being assessed and treated inside the Emergency Department on December 24th so they have no direct knowledge of whether she coughed during that time or not.

[203] Tonya Kowch saw Ms. Coville after her return home from the Emergency Department on the afternoon of December 24th. In her testimony, Tonya made no mention of Ms. Coville having a cough or coughing during her visit at the apartment.

Congestion

[204] I accept the evidence of Dr. Laidley that Ms. Coville did not tell him that she had congestion.

[205] I find that there is no credible and reliable evidence that establishes that Ms. Coville had congestion while in the Emergency Department on December 24th.

[206] The only reference to “congestion” on Ms. Coville’s hospital chart is found in the typed box, under the heading “Chief Complaint” in the triage assessment, which was selected by the triage nurse from a list of pre-populated complaints that did not include an option for “cough” alone.

[207] There is no notation of “phlegm” or “sputum” or “productive cough” in the hospital records for Ms. Coville on December 24th.

[208] Dr. Bonn agreed, on cross-examination, that following Ms. Coville’s admission to the Emergency Department on December 25th, she was initially observed to have a dry cough at 7:50 p.m. and then, later on in the course of her illness that night, she was noted to have a productive cough with sputum production.

[209] Philip Kowch’s evidence was that Ms. Coville would cough up phlegm and this would clear her lungs for a bit, and Kevin Kowch’s evidence was that Ms. Coville coughed up sputum before she went into the hospital on December 24th. This could explain why Ms. Coville was not observed to cough or have congestion in the Emergency Department on December 24th.

Fever

[210] I find that Ms. Coville did not have a measurable fever while in the Emergency Department on December 24, 2012. I further find that there was no credible and reliable evidence establishing that Ms. Coville had a “persistent fever” or a “fever for one week”.

[211] While Ms. Coville complained of a history of a fever, she was afebrile when her temperature was taken in triage on December 24th.

[212] The hospital chart is not clear on how long her report of fever was: the triage note states “cough x 1 week, smoker and febrile” while Dr. Laidley’s note states “cough x 1 week with fever”. The word “persistent” is not found in either the triage nurse’s notes or in Dr. Laidley’s notes. Dr. Laidley’s evidence at trial was that he understood Ms. Coville’s fever was “off and on” for a week.

[213] In his evidence, Philip Kowch described Ms. Coville as “feeling warm” to the touch a few days before December 24th. Philip did not testify as to the temperature readings of any measured fevers taken of Ms. Coville while she was at home. I accept Dr. Sellens’ evidence that a person may feel warm when they are about to vomit but not have an actual measured fever; and Dr. Letvosky’s uncontroverted evidence that patients often think they have a fever because they feel warm and sweaty but there is no objective fever when their temperature is measured.

[214] I am unable to ascertain whether Ms. Coville had a fever and it was reduced by the Tylenol that she took before going to the Emergency Department on December 24th.

Vomiting

[215] I find that the evidence establishes that Ms. Coville had been vomiting for three days as of December 24th. However, I find that there is no credible and reliable evidence to support a finding that Ms. Coville had “persistent vomiting”.

[216] I accept Dr. Laidley’s evidence that he understood Ms. Coville to have been vomiting off and on for three days.

[217] While Philip Kowch’s evidence was that Ms. Coville was vomiting “about once a day” – which he explained implies more than once a day – “probably a day or two before the 24th, I am not persuaded that this establishes “persistent” vomiting.

[218] The evidence is that Ms. Coville did not vomit while in the Emergency Department on December 24th and that she was able to keep down the Tylenol she had taken orally, both before going to the hospital and while in the Emergency Department. I accept Dr. Hammerberg’s evidence that being able to keep oral medications down is not consistent with persistent vomiting. Dr. Bonn agreed that there was no evidence of persistent vomiting and agreed that Ms. Coville was able to keep down medication.

[219] In their testimony, neither Kevin Kowch nor Tonya Kowch made any mention of Ms. Coville vomiting when describing their respective interactions with her.

Physical respiratory examination

[220] I find that Dr. Laidley did conduct a physical respiratory examination on Ms. Coville on December 24, 2012. I base this on the following:

a. I accept Dr. Laidley’s testimony that he recalls conducting Ms. Coville’s respiratory examination and that the chest examination revealed bilateral air entry, no adventitious sounds, and no cough. He did not waver on this evidence under cross-examination.

b. I accept Dr. Laidley’s testimony that it is his standard practice to do a cardiovascular, respiratory and abdominal examination in all his patients, except in cases of laceration.

c. I accept Dr. Laidley’s testimony that, when conducting his physical examinations, his standard approach is to ask the patient to sit up and he then auscultates the front and back of the chest with his stethoscope, asking the patient to take deep breaths in and out, while he listens for adventitious breath sounds like crackles or wheezes.

d. Dr. Laidley wrote in Ms. Coville’s chart the underlined term “Resp”, in relation to a respiratory examination. I infer from this that he intended to record the results of his respiratory examination. I accept his evidence that he re-wrote the results of his cardiovascular examination of Ms. Coville beside the term “Resp” through inadvertence.

e. Dr. Bonn testified that, upon reviewing Dr. Laidley’s discovery transcript wherein Dr. Laidley stated that he listened to Ms. Coville’s chest, he had no doubt that Dr. Laidley did listen to her chest. And Dr. Bonn believed that Dr. Laidley did because he auscultated Ms. Coville’s heart, which is done by way of stethoscope, and this indicated to Dr. Bonn that Dr. Laidley also would have listened to her lungs. Dr. Bonn stated that he assumes that if Dr. Laidley “had noted any abnormality, he would have written it down”.

f. Dr. Letovsky testified that “the cardio-respiratory exam goes hand in hand in hand”.

Not in respiratory distress

[221] I accept the evidence of Drs. Laidley and Sellens that Ms. Coville was “non-distressed” while at the Emergency Department on December 24, 2012, and that she was not in respiratory distress.

[222] I find that Ms. Coville’s respiratory rate at triage on December 24th was 18 and that this is considered to be a normal level.

[223] I find that Ms. Coville’s oxygen saturation done later in the morning on December 24th was 97 and that this is considered to be a normal level.

[224] I find that there is no credible and reliable evidence establishing that Ms. Coville was having breathing problems or shortness of breath while at the Emergency Department on December 24th.

Condition improved

[225] I find that, after receiving treatment in the Emergency Department on December 24th, Ms. Coville’s condition improved and that her heart rate decreased from 134 to 96.

[226] I find that Ms. Coville advised Dr. Laidley that she was feeling better at each of the two reassessments he did. I also accept Dr. Sellens’ testimony that Ms. Coville said she was feeling a little better when Dr. Sellens spoke with her before the second IV saline treatment.

[227] I find that, at discharge, Ms. Coville’s heart rate was at 96 which falls within the range of normal, though at the high end of normal, based on the evidence of Drs. Letovsky and Hammerberg.

Condition remained essentially unchanged until the afternoon of December 25th

[228] I find that Ms. Coville’s condition remained essentially unchanged from the time she was discharged and returned home in the afternoon of December 24th until the afternoon of December 25th, a short time before she returned to the Emergency Department that day.

[229] Philip Kowch testified that he could not recall the exact time when his father, Kevin Kowch, and Kevin’s girlfriend came over to the apartment on Christmas Day; Philip estimated it was during the early morning around 8:30 or 9:30 a.m. However, Kevin testified that he and his girlfriend went over to Philip and Ms. Coville’s apartment on Christmas evening. Both Philip and Kevin testified that Kevin and his girlfriend were at the apartment only for a very short period of time – Philip estimated maybe about half an hour – when Ms. Coville requested to go back to the hospital. Ms. Coville’s hospital chart indicates that she arrived at the Emergency Department on December 25th at approximately 5:03 p.m. and that, around 5:30 p.m., Ms. Coville reported to Dr. Hersi that she had had an onset of chest pain and shortness of breath “approximately one hour ago”, which would mean around 4:00 or 4:30 p.m. I find that this timing is more compatible with the testimony of Kevin who, unlike Philip, did not express any problem recalling when he arrived at Ms. Coville’s apartment on Christmas Day.

[230] Information entered into the December 25th hospital chart at 5:26 p.m., under “Additional Hx related to presenting/chief complaint”, also indicates that: “… Pt c/o [complained of] chest pain and SOB [shortness of breath] approx. 1 hour ago. Pt states unwell with flu x4 days. Pt states seen in ER 2 days ago and given 2L of NS then sent home. Pt states felt little improvement initially but worse today. Not eating or drinking due to vomiting. …”

[231] While at trial Philip Kowch described Ms. Coville as “worse” on Christmas morning (which was different from his discovery evidence that she was essentially unchanged), his description of her in this regard was that “she had very little energy”, that getting her downstairs was not easy, and that she “laid on the couch the whole morning” as Nicole opened her gifts on Christmas morning. Notably, in Philip’s evidence, it was only after Ms. Coville had been upstairs, following the arrival of his father and girlfriend, that Ms. Coville’s condition had a significant change in that, as Philip testified, something went “really wrong”, “she started coughing and gasping for air”, “she was panicked”, and “she couldn’t catch her breath”.

[232] Thus, I find that Ms. Coville had a sudden change in her condition in the afternoon of December 25, 2012, a short while before she attended at the Emergency Department at 5:03 p.m.

ANALYSIS

[233] The Defendants have agreed that they owed a duty of care to Ms. Coville. Accordingly, my analysis begins with the standard of care.

(a) What is the applicable standard of care?

The Law

[234] The standard of care required of a medical practitioner is to exercise a reasonable degree of skill and knowledge and the degree of care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing. If the practitioner holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability: Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132, 1956 CarswellOnt 90 (Ont. C.A.), at para. 13; aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991 (S.C.C.).

[235] A higher standard is imposed on the physician to take appropriate care in diagnosing and treating the patient when dealing with a potentially life-threatening condition. The degree of care required is care commensurate with the potential danger to the patient: Williams v. Bowler, 2005 CanLII 27526 (ON SC) (Ont. S.C.J.), at para. 250.

Discussion

[236] I find that the standard of care against which the conduct of Dr. Laidley and Dr. Sellens is to be measured is that of a normal, competent and prudent emergency medicine physician, practising in the emergency department of an urban community hospital in 2012, recognizing that Dr. Laidley was a senior resident working under the supervision of Dr. Sellens as attending staff physician.

[237] I will next consider whether the Defendants have breached the standard of care.

(b) Did Dr. Laidley and Dr. Sellens breach the standard of care in their treatment of Ms. Coville on December 24, 2012?

The Law

[238] To establish a breach of the standard of care in a medical negligence claim, a plaintiff must establish, on a balance of probabilities, that the defendant failed to act in accordance with the normal care, skill, and knowledge expected of a normal, competent and prudent physician having the same experience and specialty: Crits v Sylvester (Ont. C.A.), at para. 13; ter Neuzen v. Korn, [1995] 3 S.C.R. 674 (S.C.C.), 1995 CanLII 72 (SCC), at paras. 33-40; and Ball v. Amendola, 2009 CanLII 55309 (ONSC), at para 137.

[239] Expert evidence is critical to establishing whether the standard of care has been met in medical malpractice cases as such actions involve issues to be decided that are not within the ordinary knowledge and experience of the trier of fact: Williams v. Bowler, at para. 218.

[240] Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence: Crawford (Litigation guardian of) v. Penney, [2003] O.J. No. 89 (S.C.J.), 2003 CanLII 32636 (ON SC), at para. 248; aff’d 2004 CanLII 22314 (ON CA). This is particularly so where the opinion is given by a specialist about the standard of care of a physician who does not share his/her speciality. An opinion of a specialist that is critical of the care provided by the physician may be of little weight, as a criticism of the physician would be coloured by the expert’s speciality: Williams v. Bowler, at para. 219, citing Rogin v. Shannon (1986), 37 C.C.L.T. 181 (Ont. H.C.), at 190-191.

[241] A physician’s conduct must be judged in light of the knowledge that should have been reasonably within his or her possession at the relevant time. The physician cannot be judged in hindsight: Williams v. Bowler, at paras. 229-230.

Clinical judgment

[242] Clinical judgment plays an important role in assessing whether the standard of care was breached. It is recognized that no one is perfect, and anyone can make a mistake. A physician will be held liable only if his or her diagnosis is “of such a nature as to imply an absence of reasonable skill and care” taking into consideration the ordinary level of skill in the profession: Legal Liability of Doctors and Hospitals in Canada, Picard, E. & Robertson, G. (4th ed. 2007), at 239 (citing H.L. Nathan, Medical Negligence (London: Butterworths, 1957) at 57).

[243] It is well-established that an error in judgment does not amount to negligence where the physician appropriately exercises clinical judgment: Williams v. Bowler, at paras. 231-233; Wilson v Swanson, 1956 CanLII 1 (SCC), [1956] SC.R. 804, at 812; and Adair v. Hamilton Health Sciences Corp. (2005), 2005 CanLII 18846 (ON SC), [2005] O.J. No. 2180, 2005 CarswellOnt 2180 (S.C.J.), at para. 129.

[244] Negligence is to be determined by considering the pertinent facts existing at the time of the examination and treatment that the physician knew or should have known if due care had been exercised. Negligence may result from the physician’s failure to apply the proper remedy upon correctly determining existing physical conditions or it may result from the physician’s failure to properly inform themself of these conditions. If the allegation is that the physician failed to properly inform themself, there must have been a reasonable opportunity for examination and the true physical conditions must have been “so apparent that they could have been ascertained by the exercise of the required degree of care and skill”: Wilson v Swanson, at p. 812.

[245] A physician must exercise their judgment after “weighing, assessing and evaluating such information as may be available”, which includes “the results of tests or consultations that should have been carried out. In other words, the information upon which a judgment or decision is reached must be as complete as is reasonably available and possible in the circumstances”: Crawford v. Penney (S.C.J.), at para. 229.

Duty to diagnose

[246] The duty to diagnose is one component of the standard of care. Power J. described this duty in Crawford (Litigation Guardian of) v. Penney (S.C.J.), at para. 230(b), as follows:

The duty to diagnose requires doctors to take a full history, use appropriate tests and consult or refer if necessary. They must take reasonable care to detect signs and symptoms and formulate a diagnosis using good judgment. They cannot act only on what they are told, nor ignore what they are told. Sophisticated tests and continuing knowledge of disease must be employed when appropriate. …

[247] The approach to diagnosis involves a three-step process that was described by Mason J. in Crick v. Mohan (1993), 1993 CanLII 16342 (AB KB), 142 A.R. 281 (Alta. Q.B.), at paras. 54-55, as follows:

54 All the medical practitioners who testified agreed the approach to diagnosis is a three step process. First, the doctor is required to make a differential diagnosis. This means he is required to consider all possibilities based on the history taken, the clinical exam performed and the test results obtained. From this step, the doctor is required to arrive at the second step of a presumptive or working diagnosis and design the treatment accordingly, unless a definitive diagnosis, the third step, is obtained. Where there is a definitive diagnosis, the duty then arises to treat specifically the ailment diagnosed with the best care and skill available in the circumstance.

55 In the event a definitive diagnosis is not achieved, the doctor is required during the working diagnosis step to monitor the results of the treatment prescribed for the symptoms and complaints identified and to continue development of a history by clinical tests and examinations to determine if a definitive diagnosis can be obtained or return to the first step of differential diagnosis. Where treatment, ongoing history, clinical examination and tests do not support the working diagnosis there is a duty to reconsider the matter by further differential diagnosis or consultation and referral.

[248] The concept of differential diagnosis involves identifying a number of possible diagnoses consistent with the patient’s symptoms and then arriving at the correct diagnosis by a systematic process of elimination. A key feature of differential diagnosis is the importance of eliminating the most serious possibility first, rather than the most probable: Picard, E. et al. Legal Liability (4th ed. 2007), at p. 309.

[249] In Adair, at para. 153, the trial judge emphasized that, “[w]hen faced with symptoms that point to two or more diseases, the universally acceptable system to use is a differential diagnosis that accounts for severity”.

[250] Within reason, the physician is required to carry out appropriate tests if they are indicated, and to carefully review their results; the physician should also canvas with the patient those symptoms that could be critical: Picard, E. et al. in Legal Liability (4th ed. 2007), at p. 304-305.

[251] Where there is no justification for a test, or where the test is premature, it should not be done, especially if the test involves some risk to the patient: Picard, E. et al, Legal Liability (4th ed. 2007), at p. 306.

Discussion

Information known to Drs. Laidley and Sellens

[252] The testimony of Philip Kowch and Kevin Kowch relating to Ms. Coville’s condition at home and in the car prior to her attendance at the Emergency Department on December 24th, is not of assistance to the court in determining whether the Defendants breached the standard of care. Neither Philip nor Kevin was inside the Emergency Department with Ms. Coville when she was being assessed by Dr. Laidley or Dr. Sellens. This is of great significance because it means that, when assessing Ms. Coville, the Defendants did not have knowledge of the same information that Philip and Kevin had regarding Ms. Coville’s symptoms outside of the hospital, except for what Ms. Coville herself told them.

[253] Drs. Laidley and Sellens can only make their clinical judgments based on the information actually known to them at the time of their assessment and treatment of Ms. Coville.

Chest X-ray and bloodwork

[254] The Plaintiffs submit that the applicable standard of care required Drs. Laidley and Sellens to have ordered a chest X-ray and bloodwork on December 24th to investigate the differential diagnosis of pneumonia. I do not agree.

[255] The appropriateness of a test must be based on Ms. Coville’s existing physical conditions on December 24th, including her presenting signs and symptoms, at the time of the Defendants’ assessment of her and in conjunction with the Defendants’ clinical judgment. While at the Emergency Department on December 24, 2012, Ms. Coville was afebrile; she had a normal respiratory rate, normal oxygen saturation, a normal respiratory examination, and she was non-distressed; she did not complain of chest pain or shortness of breath or productive cough; she was not observed to cough; and she was observed to be comfortable and able to carry on a conversation while laying flat on her back in the hospital bed. In total, all of these factors support that Ms. Coville’s respiratory status on December 24th was normal and not indicative of possible pneumonia. Although Ms. Coville was ill, there were no obvious signs or symptoms that pointed to an infection or pneumonia. Her presenting symptoms were not more severe than those associated with a viral illness.

[256] The opinion of Dr. Bonn, the Plaintiffs’ expert, that the Defendants did not meet the applicable standard of care relied on two main considerations: the first, that the “clinical constellation of symptoms and signs” called for a chest X-ray to be performed on Ms. Coville; and the second, that there is an accepted clinical principle that physical examination of the chest/lungs is not sufficiently accurate on its own to confirm or exclude the diagnosis of pneumonia. In my view, however, Dr. Bonn’s opinion in these regards deserves very little weight in light of the following factors:

a. Dr. Bonn incorrectly assumed that Ms. Coville was congested. He based this solely on the triage nurse’s entry “cough/congestion” showing on the hospital record. He had not understood that this was a pre-populated CEDIS menu selection and that it did not reflect an actual reported complaint of Ms. Coville. Dr. Bonn agreed that congestion was not noted anywhere else in the medical records of December 24th and that there was no note that Ms. Coville complained of a productive cough that day.

b. On cross-examination, Dr. Bonn agreed that, on December 24th, Ms. Coville had a “normal temperature, no shortness of breath, no chest pain, likely good air entry, equal, with no concerning sounds, just like on the 25th, normal respiration rate, and normal oxygen saturation”. He also agreed that Ms. Coville was documented to be alert and not in distress, and that her dehydration had been improved with the two litres of IV saline.

c. The only two signs that Dr. Bonn essentially pointed to as being of concern on December 24th were Ms. Coville’s elevated blood pressure and elevated heart rate. However, none of the other physicians who were called as witnesses testified that Ms. Coville’s blood pressure was concerningly high: Dr. Fong’s evidence was that Ms. Coville’s blood pressure was “normal”; and Dr. Letovsky and Dr. Hammerberg both testified they were not concerned by her blood pressure readings and that it would have been more concerning if Ms. Coville’s blood pressure had been low, as low blood pressure could reflect someone who had an infection. With respect to Ms. Coville’s heart rate, Dr. Bonn agreed with the cross-examiner that a pulse rate of 120 in an adult is “mildly elevated” and he acknowledged that, when called as a witness in another trial, he had testified that “a normal pulse is between about 60 and 100 beats per minute”. Dr. Bonn further agreed that Ms. Coville’s pulse responded appropriately to treatment by coming down to 96, which is less than 100. Dr. Letovsky gave evidence that the normal heart rate range is 60-ish to 100-ish, and his evidence in this regard was unchallenged in cross-examination.

d. Dr. Bonn cited the article, “Diagnosing Pneumonia by Physical Examination: Relevant or Relic?”, supra, in support of his testimony that a physical chest examination is not sufficiently accurate “on its own” to confirm or exclude the diagnosis of pneumonia. This article relates to a study specifically focused on the usefulness of the physical chest examination for diagnosing pneumonia. The participants in the study were 52 patients composed exclusively of male veterans, most of whom were in late middle age and many of whom had underlying pulmonary and cardiac diseases. The authors concluded that “[w]hen pneumonia is suspected, chest X-ray remains the best diagnostic test.” Earlier on in the article, however, the authors state that the study’s findings “suggest that a limited chest examination, in addition to obtaining vital signs and history, should be sufficient to screen for pneumonia” (emphasis added). The authors also state: “The results may not be generalized to younger, healthier patients or to women.” The following comments can be made with respect to the case before me: First, in Ms. Coville’s case, pneumonia was not suspected by Drs. Laidley and Sellens and their clinical judgment in this regard was informed, based on her vital signs and symptoms, on Dr. Laidley’s examinations, and on their observations of her. So, this article could be said to support that a chest X-ray was not required in the circumstances. Second, Dr. Laidley did a chest examination and obtained Ms. Coville’s vital signs and history. Thus, this article supports that the steps he took “should be sufficient to screen for pneumonia” in Ms. Coville. On cross-examination, Dr. Bonn ended up agreeing that the conclusion of the study’s authors – that a limited chest examination, in addition to obtaining vital signs and history, should be sufficient to screen for pneumonia – was the same opinion advanced by the Defendants’ expert, Dr. Letovsky.

e. Dr. Bonn’s opinion was that Drs. Laidley and Sellens anchored on the dehydration issue and a viral illness and failed to consider any other possible diagnoses for Ms. Coville. He cited the article, CMPA Good Practices Guide - Common Cognitive Biases (The Canadian Medical Protective Association), that discusses the concept of “anchoring” as “[f]ocusing on one particular symptom, sign, or piece of information, or a particular diagnosis early in the diagnostic process and failing to make any adjustments for other possibilities – either by discounting or ignoring them.” Under the heading “How to think better”, the article reads:

Gather sufficient information. Develop a differential diagnosis. Consider the worst case scenario. Reconsider the diagnosis if: there are new symptoms or signs; the patient without treatment is not following the natural course of the assumed illness and is not improving; the patient is not improving as expected.

However, as I find later on in this judgment, other possible illnesses were considered by Dr. Laidley in the course of his examination of Ms. Coville. Further, no new signs or symptoms arose during Ms. Coville’s time in the Emergency Department on December 24th that pointed to something different than a viral illness; and Ms. Coville was improving with treatment as expected, so there were no clinical facts that required Drs. Laidley and Sellens to reconsider the viral illness diagnosis.

[257] In light of the foregoing, I am not persuaded by Dr. Bonn’s opinion that the standard of care was not met by Drs. Laidley and Sellens. Instead, I find that Ms. Coville’s vital signs, appearance, and existing physical conditions on December 24th are more compatible with the opinion evidence of Drs. Letovsky and Hammerberg that it was reasonable to diagnose Ms. Coville with a viral illness that day, and that her presentation did not raise a concern for pneumonia, and so a chest X-ray and bloodwork were not clinically required.

[258] While Dr. Bonn’s evidence was that ordering bloodwork and chest X-rays are “simple routine tests that are done every day on a large majority of patients that present to the emergency room with indications for those tests,” I find that the standard of care is whether a test is clinically required. I accept that the clinical judgment of Drs. Laidley and Sellens was that there were no indications in Ms. Coville’s presentation on December 24th that suggested bloodwork and a chest X-ray were required, and I find that this judgment was reasonable in the circumstances. I prefer and accept the evidence of Dr. Letovsky and find that it is not standard practice for an emergency department physician to order routine chest X-rays and bloodwork to rule out pneumonia in patients complaining of having a cough and fever. Rather, some objective sign or symptom is needed for such tests to be clinically relevant, especially where the probability of pneumonia is low because the patient is young, healthy, and not immunocompromised.

[259] With respect to Dr. Fong’s opinion that Drs. Laidley and Sellens breached the standard of care because a chest X-ray and bloodwork were not ordered, this opinion is highly contingent on his assumptions that Ms. Coville had “persistent fever” and “persistent vomiting”. According to Dr. Fong, it was not reasonable for Dr. Laidley to ignore the “persistent fever” and “persistent vomiting”. However, I have found that the evidence at trial did not, in fact, establish that Ms. Coville’s fever was persistent or that her vomiting was persistent. Therefore, since the two main assumptions upon which Dr. Fong’s opinion was premised were not proven at trial, I give very little weight to Dr. Fong’s opinion that the standard of care was not met.

[260] I do not accept the Plaintiffs’ contention that an emergency department physician can only meet the standard of care if they have undertaken “thorough methodical assessment and diagnostic testing” of every one of a patient’s self-reported complaints. In my view, an emergency department physician is entitled and, indeed, is called upon to use their clinical judgment, education, training, and experience to assess a patient, and decide for themself, based on the patient’s existing physical conditions at the particular time of the assessment, what testing is appropriate in order to competently diagnose the patient.

[261] I am satisfied that there was no objective evidence on December 24th to indicate that pneumonia ought to have been more fully investigated in Ms. Coville by way of a chest X-ray and bloodwork. I conclude that the Defendants did not fall below the applicable standard of care by not ordering a chest X-ray and/or bloodwork for Ms. Coville that day.

Diagnosis of viral illness

[262] The consideration of differential diagnoses must also be based on Ms. Coville’s existing physical conditions on December 24th, including her presenting signs and symptoms, at the time of the Defendants’ assessment of her and in conjunction with the Defendants’ clinical judgment. Dr. Laidley’s notes indicate that he checked Ms. Coville for nuchal rigidity, which relates to the differential of meningitis; he asked about her last menstrual period which relates to pregnancy; he checked her abdomen for possible causes of her vomiting; and he did a cardiovascular examination. Despite not observing a cough or a measured fever, I find that the possibility of an illness like pneumonia was investigated by Dr. Laidley when he assessed Ms. Coville. He considered her existing physical conditions, symptoms, vital signs and performed a physical examination, including a respiratory examination whereby he found her lungs to have bilateral air entry with no adventitious sounds. I accept the evidence of Dr. Letovsky that Dr. Laidley’s examination of Ms. Coville indicates that he was investigating a number of possible causes for Ms. Coville’s symptoms, including whether there was a problem or issue with her lungs.

[263] The Plaintiffs submit that Dr. Sellens’ evidence on Ms. Coville’s presentation is entirely reliant on what Dr. Laidley told her, except for the 5-10 minute conversation she had with Ms. Coville about Christmas while sitting on Ms. Coville’s hospital bed, and that this does not meet the standard of care applicable to an attending staff physician in the Emergency Department. I do not agree. Dr. Sellens consulted with Dr. Laidley at least twice to discuss Ms. Coville’s condition, treatment plan and response to same; and Dr. Sellens met with Ms. Coville herself and spent some time talking with her and observing her. Dr. Sellens was available in the Emergency Department to be kept updated by the nurses and Dr. Laidley while Ms. Coville was in the Emergency Department on December 24th. Dr. Sellens testified that she was working in the RAZ where Ms. Coville was situated, and she could observe Ms. Coville as she was moving around dealing with other patients. Dr. Sellens was involved in decision-making about the treatment plan for Ms. Coville and the decision to discharge her, based on how Ms. Coville had responded to treatment. While Dr. Sellens did obtain information about Ms. Coville from Dr. Laidley, I find that she did not simply adopt what he told her and his diagnosis. Dr. Sellens used her own clinical judgment in diagnosing Ms. Coville with a viral illness based on the information at hand and her own independent observations and assessment of Ms. Coville. None of the expert witnesses testified that the standard of care required Dr. Sellens to repeat Dr. Laidley’s assessment. I accept Dr. Letovsky’s uncontroverted evidence that a 4th year emergency medicine resident, like Dr. Laidley, is one year away from graduating and is typically “afforded a lot of independence and autonomy”; and that it is more common for attending staff physicians not to go in on their own and see a patient who has been seen by the senior resident who “has had a lot of training”. Based on the foregoing, I accept the evidence of Dr. Letovsky that Dr. Sellens was “extremely conscientious” in her conduct as attending staff physician with Ms. Coville on December 24th.

[264] I do not accept the Plaintiffs’ submission that Dr. Laidley and Dr. Sellens ignored Ms. Coville’s chief presenting complaint of a cough for one week. Dr. Laidley noted Ms. Coville’s complaint of a cough in his own hand-written assessment notes on her chart and he did a respiratory examination. The clear evidence of both Dr. Laidley and Dr. Sellens was that, on December 24th, they did not observe that Ms. Coville had a cough. Since the Defendants did not observe a cough, that will reasonably inform their clinical judgment in making the decisions they did regarding Ms. Coville’s care and treatment.

[265] I do not accept the Plaintiffs’ submission that the best evidence on Ms. Coville’s fever is the history that she reported to the triage nurse and to Dr. Laidley, and that that history can only be interpreted in one way, that Ms. Coville had fever for one week. None of the notes on Ms. Coville’s chart indicated “fever for one week”. The objective evidence established that Ms. Coville had no measured fever on December 24th while at the Emergency Department. The Plaintiffs contend that Dr. Laidley clearly understood Ms. Coville’s history to be “a cough and a fever for a week”, pointing to Dr. Laidley’s testimony at his examination for discovery which was read in at trial. However, I do not agree that that is a fair conclusion to reach. Other evidence given by Dr. Laidley at his discovery was also read in at trial by the Defendants wherein Dr. Laidley testified that he had explained to Dr. Sellens that Ms. Coville was “complaining of a cough for a week with fevers off and on”. Dr. Laidley was clear in his testimony at trial that he understood Ms. Coville’s vomiting had been off and on for three days and that her fever had been off and on for a week.

[266] The Plaintiffs argue that, on December 24th, the oxygen saturation reading was taken by a nurse at 12:36 p.m., which was after Dr. Laidley’s first reassessment, and that Dr. Sellens testified that she did not refer to computerized records in 2012. The Plaintiffs contend therefore, that the normal oxygen saturation reading could only have been considered by the Defendants at discharge. This disregards Dr. Sellens’ evidence. At trial, Dr. Sellens testified that the nurses also report to her and she receives ongoing verbal reports about patients. She stated that there is a lot of verbal information that is shared between the Emergency Department staff and the physicians that is not formally documented. I accept Dr. Sellens’ evidence in this regard and her statement that the nurses would have told her how Ms. Coville was doing, including if Ms. Coville’s vitals were not good.

[267] I am not persuaded of the Plaintiffs’ argument that the Defendants anchored on a viral illness and neglected to consider other diagnoses when assessing Ms. Coville. The evidence of both Drs. Laidley and Sellens confirms that they each understood the importance of differential diagnosis. Dr. Laidley’s notes indicate that he was considering possible causes for Ms. Coville’s symptoms, including meningitis, a life-threatening condition. He took a complete history, did a physical examination, and ordered a treatment plan according to the provisional diagnosis of viral illness based on a consideration of Ms. Coville’s history, vital signs and presentation. After making this initial diagnosis, Dr. Laidley reassessed Ms. Coville twice and both times she showed an improvement, and both times she told him that she was feeling better. Given Ms. Coville’s measurable improvement and given that her heart rate and blood pressure were trending down, and given that there were no new signs or symptoms, there was no reason to consider that the diagnosis of viral illness was wrong. Dr. Laidley consulted with Dr. Sellens as he was required to do. He spoke with Ms. Coville at discharge to give her instructions. On each occasion that he spoke with Ms. Coville, he had the opportunity to observe her and could monitor how she was doing. For her part, Dr. Sellens also personally observed Ms. Coville and she did not see Ms. Coville cough or have trouble talking or breathing, including while laying flat on her bed; Dr. Sellens also found Ms. Coville to be non-distressed. Dr. Sellens’ observations informed her clinical judgment that there was no concern with Ms. Coville’s respiratory condition on December 24th.

[268] I find that Dr. Laidley and Dr. Sellens were not faced with any indications that pneumonia was a real possibility on December 24, 2012. In combination with her vital signs, Ms. Coville’s bilateral air entry with no adventitious sounds, her non-distressed presentation, her normal respiratory rate, her normal oxygen saturation, and her lack of cough and fever all pointed away from pneumonia infection. There was no change in Ms. Coville’s condition during the time she was in the Emergency Department on December 24th that one can point to and say that the Defendants should have revisited their working diagnosis of viral illness.

[269] I am satisfied that, given Ms. Coville’s vital signs, observed symptoms, and improvement with treatment on December 24th, there was nothing indicating a risk of infection or pneumonia that day. I conclude that the Defendants’ care and treatment of Ms. Coville, and their diagnosis of viral illness, both provisional and final, did not fall below the applicable standard of care.

Charting issues

Failure to record respiratory examination

[270] The Plaintiffs and their experts criticized Dr. Laidley’s failure to record the results of his physical respiratory examination of Ms. Coville on December 24th in her hospital chart. I do find that there has been a technical breach in the standard of care by Dr. Laidley in failing to record the results of this examination in Ms. Coville’s chart as such information was relevant to her care and treatment.

[271] Dr. Laidley admitted that this was a failure on his part but testified that he might have been distracted when writing and that he wrote the cardiovascular examination results down a second time through inadvertence.

[272] Given that I have found that Dr. Laidley did perform a physical respiratory examination of Ms. Coville on December 24th, I accept that his failure to record the results of that examination on her chart was an inadvertent omission. For reasons that are detailed later on when dealing with causation, I am satisfied that this breach is of no consequence.

Documenting differential diagnosis

[273] I do not accept the Plaintiffs’ contention that an emergency department physician is required to document every differential diagnosis that they consider on a patient’s hospital chart. None of the expert witnesses testified that that was the standard. Dr. Bonn did testify that, in his opinion, the charting on December 24th was “not quite up to the standard” he would expect in a case like this but the only substantive reason he gave was Dr. Laidley’s failure to document a respiratory examination. I accept the evidence of Dr. Letovsky, which I find compelling, that it is impossible for an emergency department physician to document everything that they discuss with a patient and that it is the most relevant parts of a patient’s assessment that need to be documented, in a concise and precise manner.

[274] Thus, I find that documenting every differential diagnosis that an emergency department physician ends up eliminating when assessing a patient would not be practical, useful or necessary. I conclude that an emergency department physician need only note their relevant findings on a patient’s hospital chart. I am satisfied that Dr. Laidley did this with the exception of the results of Ms. Coville’s physical respiratory examination.

Attending Staff Physicians

[275] The Plaintiffs take issue with the fact that Dr. Sellens did not chart any of her own observations or assessment of Ms. Coville from December 24th. I do not find that this falls below the applicable standard. None of the expert witnesses testified that that was the standard. In this regard, I accept the uncontroverted evidence of Dr. Letovsky that it is “very, very rare for attending physicians to document their own notes” because they usually listen and talk to the residents, and there is typically no added value to documenting the attending staff physician’s assessment as it is usually the same as the resident’s.

Conclusion on Standard of Care

[276] With the exception of Dr. Laidley’s failure to chart the results of his physical respiratory examination of Ms. Coville, I find that Dr. Laidley and Dr. Sellens each applied the normal, competent and prudent care, skill and judgment required of an emergency medicine physician in an urban hospital, on December 24, 2012. Dr. Laidley and Dr. Sellens assessed Ms. Coville’s condition using sound clinical judgment and they reasonably concluded that a diagnosis of viral illness should take priority in the differential diagnosis.

[277] I conclude that, excepting Dr. Laidley’s charting omission, the Plaintiffs have failed to prove on a balance of probabilities that the Defendants’ conduct fell below the standard of care expected of them with respect to their care and treatment of Ms. Coville in the Emergency Department on December 24, 2012.

(c) Did any breach of the standard of care by Dr. Laidley and Dr. Sellens cause Ms. Coville’s death?

[278] I will now proceed to consider the issue of causation.

The Law

[279] The onus is on the Plaintiffs to establish “but for” causation. As the Supreme Court of Canada explained in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R., 181, at paras. 6, 8-9, a plaintiff must not only prove negligence on the part of the defendant but also that the defendant’s negligence (breach of the standard of care) caused the injury. To satisfy this test then, the Plaintiffs must show on a balance of probabilities that “but for” the Defendants’ negligence, Ms. Coville’s death would not have occurred.

[280] The court must apply the “but for” test in a “robust common sense fashion”. The Plaintiffs do not need “scientific evidence of the precise contribution the [Defendants’] negligence made to the injury”. Rather, causation is essentially a question of fact that “can best be answered by ordinary common sense”: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 (S.C.C.), 1990 CarswellNB 82, at para. 30.

[281] If there is no causation, there can be no liability even if there has been a breach in the standard of care: Crawford v. Penney, at para. 214.

[282] It is not enough to prove that the patient would have had a chance at avoiding the outcome “unless that chance surpasses the threshold of ‘more likely than not’”: Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (Ont. C.A.) at paras. 36-38.

[283] Plaintiffs who cannot meet the burden of the “but for” causation test may be able to recover on the basis of a defendant’s material contribution to risk of the injury actually suffered. However, it is only where the “but for” test is unworkable, due to evidential factors beyond the plaintiff’s control, that the “material contribution to risk of injury” test is applicable: Clements, at paras 13-16. This is not such a case.

The Parties’ Theories

Plaintiffs’ theory

[284] The Plaintiffs’ theory of causation, supported by Dr. Fong’s opinion evidence, is that Ms. Coville had treatable pneumonia when she presented at the Emergency Department on December 24, 2012, which progressed and ultimately caused her death in the early morning of December 26, 2012. The Plaintiffs have summarized Dr. Fong’s opinion as follows:

a. Ms. Coville had pneumonia on December 24th while at the Emergency Department.

b. If a blood test had been done on December 24th it likely would have shown: electrolyte disturbance, low potassium, abnormality in Ms. Coville’s white blood count, and her kidney function may have been affected.

c. If a chest X-ray had been done, it likely would have shown early pneumonia.

d. Abnormal testing would lead to admission service, which is usually internal medicine.

e. Had testing been done, internal medicine likely would have treated Ms. Coville for pneumonia and for influenza.

f. At the time Ms. Coville attended at the Emergency Department on December 24th, her pneumonia was likely not very severe, as her respiratory rate was normal, and so it would have been easily treatable at that time if it was recognized.

[285] The Plaintiffs submit that they have proven their case that Dr. Laidley and Dr. Sellens breached the standard of care owed to Ms. Coville on December 24, 2012, between 10:00 a.m. and 1:30 p.m. and that, but for that breach, Ms. Coville would not have died less than two days later. Based on all the evidence, foundational factual determinations, and resulting expert opinions, the Plaintiffs submit that it is more likely than not that Ms. Coville developed pneumonia before she was discharged from the Emergency Department on December 24th. The pneumonia was early and treatable at that stage. Had appropriate diagnostic testing been completed, such as chest X-rays and bloodwork, these would have produced abnormal findings and led to life-saving treatment.

Defendants’ theory

[286] It is the theory of the Defendants, supported by Dr. Hammerberg’s opinion evidence, that Ms. Coville did not have pneumonia on December 24, 2012, but that she developed “a rapidly progressive fulminant bacterial pneumonia” on December 25th in the few hours before she re-attended at the hospital that day. Therefore, if Drs. Laidley and Sellens had ordered bloodwork and/or a chest X-ray on December 24th, this would not have led to a diagnosis of bacterial pneumonia and there would have been no change in Ms. Coville’s care and treatment. Further, given Ms. Coville’s lack of clinical response to treatment with IV antibiotics following her diagnosis of pneumococcal bacterial pneumonia on December 25th, the evidence does not establish that her clinical outcome would have been different if she had been treated 24 hours earlier. Accordingly, the Defendants submit that the Plaintiffs have failed to meet the burden of proving, on a balance of probabilities, that “but for” the actions of Drs. Laidley and Sellens and their decision not to order a chest X-ray and bloodwork, Ms. Coville would not have died.

Discussion

[287] For the purposes of determining the issue of causation, I adopt and rely upon all of my findings previously made and set out in the portion of this judgment dealing with the issue of whether there has been a breach of the standard of care.

Failure to properly chart did not cause Ms. Coville’s death

[288] Earlier, I found that there was a technical breach in the standard of care by Dr. Laidley for failing to record the results of his physical respiratory examination of Ms. Coville on December 24th in her hospital chart.

[289] There is no evidence that anyone relied on Dr. Laidley’s chart notations made on December 24th in a manner such that his failure to record the results of his physical respiratory examination of Ms. Coville caused any issues or problems in her care or treatment. Dr. Laidley performed the physical respiratory examination himself and so he was fully informed of the results of that examination. He used that information when applying his clinical judgment to diagnose, care and treat Ms. Coville, and to advise and consult with Dr. Sellens about Ms. Coville’s condition, care and treatment.

[290] Accordingly, I find that the technical breach of the standard of care by Dr. Laidley in this regard did not cause Ms. Coville’s death.

More likely than not Ms. Coville did not have pneumonia on December 24th

[291] I have carefully balanced all of the testimony and I conclude that it is more likely than not that Ms. Coville did not have bacterial pneumonia on December 24, 2012.

[292] The opinion of the Plaintiffs’ expert, Dr. Fong, that Ms. Coville had bacterial pneumonia on December 24th, was based primarily on his assumption that she had a persistent fever for a week before attending the Emergency Department that day. Dr. Fong testified how pneumonia generally progresses, as follows:

In influenza, there are two types of pneumonia [that] can occur. There is a viral pneumonia from the influenza itself, which usually occur [sic] in the first five days. So when the patient comes in – they comes [sic] in with fever and shortness of breath, and they do an X-ray and see a diffuse pattern. That’s usually from the virus. But if the patient – most patients don’t develop the influenza viral pneumonia, but they get better – start to get better in three to five days; the fever goes away; the cough persists. But if you have a bacterial pneumonia, what happens is the fever persists after five to – three to five – after four or five days. So this should be looked for, and this should be – once you see that it’s imperative – you cannot just say based on clinical aspect, patient have viral illness without ruling out a bacterial infection. And without doing – ruling a bacterial infection without a chest X-ray does not make sense. You cannot just say, Oh, it’s a viral illness by itself. So it has to be – a viral illness is fine; we know she had a viral – but it’s the complications of the viral illness that you have to rule out, which is the pneumonia [indiscernible] persistent fever and cough, and this was never done. …

[293] I do not accept the Plaintiffs’ contention that the bacterial pneumonia progression as described by Dr. Fong is more consistent with Ms. Coville’s illness progression, and that it is more likely than not that pneumonia was present prior to Ms. Coville’s discharge at 1:30 p.m. on December 24th. I have already found that Dr. Fong’s assumption that Ms. Coville had a persistent fever for a week was not proven as a fact at the trial. Accordingly, this drastically reduces the weight I give to Dr. Fong’s opinion that Ms. Coville had pneumonia on December 24, 2012. I have also already found as a fact that Ms. Coville had a sudden change in her condition in the afternoon of December 25, 2012. Dr. Hammerberg’s evidence was that Ms. Coville’s shortness of breath and chest pain on December 25th suggests to him “that that is close to the time that the process of a pneumococcal pneumonia began. That is a sign of, of plural [sic] inflammation”.

[294] Dr. Fong did not agree with Dr. Hammerberg’s theory of an unusual rapidly progressive pneumonia, possibly due to some immune deficiency, because such illness is “well described in patients who had their spleen removed … or a severe immunosuppression” and Ms. Coville had neither of those. The Plaintiffs point out that Dr. Hammerberg agreed with Dr. Fong that fulminant pneumonia is most often associated with previous splenectomy and immunosuppression; and that Dr. Hammerberg testified that “it is extremely rare for any immunocompetent patient, a patient with a normal immune system to succumb this quickly to pneumococcal pneumonia”. The Plaintiffs contend that the much more likely explanation is that the pneumonia did not progress as rapidly as Dr. Hammerberg suggests, starting around 2:00 p.m. on December 25th, but rather, the pneumonia began progressing prior to 10:00 a.m. on December 24th. I do not agree.

[295] I find that Dr. Hammerberg’s theory of a rapidly fulminant pneumococcal pneumonia onsetting on the afternoon of December 25th is much more compatible with the evidence of Ms. Coville’s existing physical conditions on each of December 24th and December 25th at the Emergency Department and with the progression of her illness over those two days.

[296] I accept Dr. Hammerberg’s uncontroverted evidence that it is “highly unusual for pneumococcal pneumonia to remain dormant and then suddenly become fulminant” and his opinion that, if Ms. Coville had had undetected pneumococcal pneumonia on December 24th, the progression of the disease would have occurred shortly after her departure from the Emergency Department and not 24 hours later. I also accept the evidence of Dr. Hammerberg that it would be “extremely unlikely” for a patient to have pneumococcal bacteria pneumonia and have a normal respiratory rate and a normal oxygen saturation, and not be distressed. He testified that, once pneumococcal pneumonia manifests, then the symptoms “become fairly apparent fairly quickly”. In my view, this is supported by how Ms. Coville’s illness progressed on December 25th.

[297] The Plaintiffs’ theory is also inconsistent with Dr. Hammerberg’s uncontroverted testimony about how pneumococcal pneumonia treats the lungs. Dr. Fong did not provide any explanation as to the difference between how viral pneumonia and bacterial pneumonia treat the lungs. I accept as cogent and compelling Dr. Hammerberg’s evidence that it was highly unlikely that Ms. Coville’s pneumonia onset was while she was in the Emergency Department on December 24th, based on her clinical appearance, her being able to lie down flat, her being afebrile, and her having a normal respiratory rate of 18.

[298] In the result, I prefer and accept the testimony of Dr. Hammerberg on a balance of probabilities that the sudden change in Ms. Coville’s condition on December 25th indicates the onset of the pneumococcal pneumonia, as I find that it is rationally connected to Ms. Coville’s clinical course based on the evidence adduced at trial.

[299] Given the Coroner’s finding that Ms. Coville was positive for Influenza A in her upper respiratory tract (throat) and not in her lung tissue, which was positive for pneumococcus only, it was Dr. Hammerberg’s opinion that, while the Influenza A likely triggered Ms. Coville getting pneumococcal pneumonia on December 25th, it did not impair the immune system in her lungs to deal with that pneumonia and so did not play a role in her rapid decline and demise. He explained that his theory differs from Dr. Fong’s opinion which was that Ms. Coville’s pneumococcal pneumonia was fulminant and rapid on account of the influenza co-infection. Dr. Hammerberg opined that Ms. Coville’s underlying Influenza A infection in her upper respiratory tract is not an adequate explanation for her demise from pneumococcal pneumonia. He was also of the opinion that none of Ms. Coville’s smoking history, acetaminophen level, or very early pregnancy provided a satisfactory explanation for why she succumbed to the pneumonia. As a result, Dr. Hammerberg suggested that Ms. Coville possibly had an unknown immunodeficiency, such as a complement deficiency, which had not previously affected her. His evidence was that “there are numerous congenital immunodeficiencies that do not show any signs of disease or of compromise until a, a [sic] patient comes in with that first overwhelming infection”.

[300] Dr. Fong gave no explanation for Ms. Coville’s rapid progression and death some 15 hours after she was reported to have had a normal respiratory rate and normal oxygen saturation. Dr. Fong also conceded, after being referred to the autopsy request form on cross-examination, that the ICU team who had been caring for Ms. Coville was questioning the existence of an underlying disease to explain Ms. Coville's “quick decompensation”.

[301] Considering the evidence in its totality, I find that on a balance of probabilities Ms. Coville did not have bacterial pneumonia on December 24, 2012 when she attended at the Emergency Department.

Diagnosis of pneumonia not more likely if chest X-ray and bloodwork done

[302] It is the Plaintiffs’ position that if Drs. Laidley and Sellens had met the standard of care, the likely outcome of a chest X-ray and bloodwork would have been that Ms. Coville would not have been discharged on December 24th and, on a balance of probabilities, she would have been diagnosed with pneumonia that day.

[303] Dr. Fong opined that, from his review of the December 24th hospital notes, the Defendants should have suspected “severe electrolyte disturbance” in Ms. Coville, as well as possibly pneumonia. He opined that if a chest X-ray and bloodwork had been done, they should have led to Ms. Coville’s admission and treatment in the hospital for electrolyte disturbance and pneumonia.

[304] I find that the following factors considerably weaken Dr. Fong’s opinion in this regard:

a. The primary assumption underpinning Dr. Fong’s opinion about possible pneumonia in Ms. Coville on December 24th is that Ms. Coville had a “persistent fever for more than a week”. I have already found on a balance of probabilities that she did not have a persistent fever for a week.

b. Dr. Fong’s evidence was effectively that, on December 24th, a chest X-ray on Ms. Coville would likely have shown early pneumonia and her bloodwork may have shown abnormalities, which may have led to admission services being called, which likely would have been Internal Medicine, who may have admitted her to the hospital and then they may have discovered and treated the pneumonia in time. There are simply too many contingencies for this to be accepted as a compelling theory. It is too speculative.

c. Dr. Fong did not explain why he believed a chest X-ray would likely have shown early pneumonia in Ms. Coville. The extent of his evidence in this regard was as follows:

… And if a chest X-ray was done I think she would have shown pneumonia. Whether she'd have shown small patches, not as severe as the day after, but it would likely have shown – more likely than not have shown early pneumonia. …

d. Dr. Fong did not testify that the bloodwork would have diagnosed pneumonia but only that it is likely some abnormalities would have been found in Ms. Coville’s blood. But his opinion in this regard was primarily premised on Ms. Coville having had “persistent vomiting”, which I have already found on a balance of probabilities she did not have when she attended at the Emergency Department on December 24th. And, on cross-examination, Dr. Fong agreed that Ms. Coville’s bloodwork done on December 25th indicated that her creatinine and BUN levels were within the normal limits. Given that Ms. Coville’s condition was poorer on December 25th, I infer from this on a balance of probabilities that her creatinine and BUN levels would have also been within the normal limits the day prior, on December 24th. So I am not persuaded that it is more likely than not that Ms. Coville’s bloodwork on December 24th would have shown abnormalities that would have led to her being hospitalized that day.

[305] On the other hand, I have considered the evidence of Dr. Hammerberg and find it to be more logical and persuasive that, on December 24th, Ms. Coville’s complete blood count “would not likely have shown the profound neutropenia encountered the next day” and, further, that “a moderately or mildly elevated abnormal white blood cell count would not have been helpful … [i]n discriminating between the underlying viral infection and the early onset of pneumococcal pneumonia”. And that if Ms. Coville did have pneumonia on December 24th, it would not likely have been detectable by a chest X-ray because early after the onset of clinical signs, a chest X-ray can remain negative for a few hours as “the infectious process of pneumococcal pneumonia can or will precede the radiologic changes that are observed by chest X-ray”.

[306] Thus, I find that the Plaintiffs have failed to prove on a balance of probabilities that, if Drs. Laidley and Sellens had obtained either a chest X-ray or bloodwork on December 24th, the results would have led to a diagnosis of bacterial pneumonia that day.

Not established that Ms. Coville’s death would have been prevented with earlier treatment

[307] It is the Plaintiffs’ position that, if Ms. Coville had been diagnosed with pneumonia on December 24th, on a balance of probabilities, she would have received antibiotic treatment that day and her life would have been saved. Dr. Fong opined that Ms. Coville’s pneumonia was “moderate” and “easily treatable” when she attended the Emergency Department on December 24th based on her vital signs and presentation at the time, including her normal oxygen saturation. The Plaintiffs contend that the evidence of some normal vital signs, relied upon by the Defendants in defence of there being no need for a chest X-ray or bloodwork, supports that Ms. Coville’s pneumonia was easily treatable on December 24th. They submit that, if the court accepts on a balance of probabilities that Ms. Coville was suffering from pneumonia on December 24th, there is no evidence contrary to Dr. Fong’s opinion that it was easily treatable.

[308] For their part, the Defendants submit that the Plaintiffs have failed to put forward sufficient evidence that, if Ms. Coville had been diagnosed with bacterial pneumonia and prescribed antibiotics on December 24th, this would have prevented her death. Instead, the Defendants contend that the evidence shows that Ms. Coville’s pneumococcal pneumonia was not easily treatable by antibiotics on December 25th even though she had a normal respiratory rate and normal oxygen saturation when she attended at the Emergency Department that day.

[309] Both Dr. Fong and Dr. Hammerberg testified as to the progression and quick deterioration of Ms. Coville’s condition after being admitted to the Emergency Department on December 25th, as established by the hospital records from that day. I prefer and accept the testimony of Dr. Hammerberg that the course of Ms. Coville’s infectious process was “exceedingly and highly unusually rapid”, and that Ms. Coville’s pneumonia was happening so rapidly that “multiple antibiotics and aggressive … intervention did not save her, could not save her”, as I find that it is compatible and consistent with the events of that day. Dr. Fong did not provide any reasonable explanation for Ms. Coville’s rapid decline from a normal respiratory rate, normal oxygen saturation, and normal chest examinations to death in less than 15 hours despite appropriate medical treatment, including the use of antibiotics, on December 25th.

[310] Accordingly, I find that there is no evidence to support on a balance of probabilities that earlier treatment with antibiotics would have prevented Ms. Coville’s death.

Conclusion on Causation

[311] Based on all of the evidence led at trial, I am satisfied on the balance of probabilities that:

a. Ms. Coville did not present with bacterial pneumonia at the Emergency Department on December 24, 2012 but that she developed a rapid fulminant bacterial pneumonia some time during the afternoon of December 25, 2012, a few hours before she arrived at the Emergency Department that day.

b. A chest X-ray and bloodwork would not have revealed bacterial pneumonia in Ms. Coville on December 24th and would not have resulted in treatment for that pneumonia.

c. It has not been established that Ms. Coville’s death would have been prevented with earlier treatment.

[312] In the result, I conclude that the Plaintiffs have not proven that, but for the failure of Dr. Laidley and Dr. Sellens to order a chest X-ray and bloodwork tests on December 24, 2012, it is more likely than not that bacterial pneumonia would have been detected in Ms. Coville and would have directed the necessary treatment such that she would not have succumbed. Therefore, the Plaintiffs have not met their onus on the issue of causation.

DISPOSITION

[313] The Plaintiffs have failed to prove on a balance of probabilities that Dr. Laidley and Dr. Sellens breached the standard of care, with the exception of Dr. Laidley’s failure to chart the results of Ms. Coville’s physical respiratory examination, or that any breach in the standard of care by Dr. Laidley and Dr. Sellens caused Ms. Coville’s death.

[314] The action against the Defendants, Dr. Laidley and Dr. Sellens, is dismissed.

[315] I commend counsel for their effective and thorough preparation of this difficult case.

COSTS

[316] If the parties are unable to agree on costs, then submissions may be made as follows:

a. By August 8, 2023, the Defendants shall serve and file their written costs submissions, not to exceed three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers; and

b. The Plaintiffs shall serve and file their responding costs submissions of no more than three pages, double-spaced, together with a draft bill of costs and copies of any pertinent offers, by August 22, 2023; and

c. The Defendants’ reply submissions, if any, are to be served and filed by August 29, 2023 and are not to exceed two pages.

d. If no submissions are received by August 29, 2023, the parties will be deemed to have resolved the issue of the costs and costs will not be determined by me.

MacNEIL J.

Released: July 19, 2023

COURT FILE NO.: CV-14-50938

DATE: July 19, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE ESTATE OF ASHLY MICKEY LYNN COVILLE, Deceased et al.

Applicants

• and –

HAMILTON HEALTH SCIENCES CORPORATION et al.

Respondents

REASONS FOR JUDGMENT

Justice MacNeil

Released: July 19, 2023