ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 26898/15

DATE: 2024-01-08

BETWEEN:

DONNA SUTHERLAND, EARLE SUTHERLAND, JONATHAN SUTHERLAND and CLIFFORD SUTHERLAND

Plaintiffs

– and –

KAREN BOOTH

Defendant

COUNSEL:

Peter Denton, for the Plaintiffs

Thor Hansell and Brieanne Brannagan, for the Defendant

HEARD: May 15, 16, 17, 18, 19, 23, 24, 25, 26, 29, 30, 31, June 1, 2, and July 31, 2023

gareau j.

reasons for judgment

overview

[1] This is an extremely tragic case. Philisha Sutherland was born on June 5, 1986. She resided with her parents, Donna and Earle Sutherland. When Earle Sutherland arrived home from work on October 17, 2013, he found Philisha unwell. When Donna Sutherland arrived home from work a short time after her husband, a decision was made to call 911 and an ambulance was dispatched which ultimately transported Philisha to the Sault Area Hospital.

[2] Philisha was handed over to the nursing staff at the Sault Area Hospital at 1716 hours or 5:16 p.m., on October 17, 2013. While she was a patient at the Sault Area Hospital, Philisha Sutherland was treated by Dr. Karen Booth, the named defendant in this action. Dr. Booth is an experienced emergency room physician. A course of treatment was followed for Philisha under the supervision and direction of Dr. Booth. At 23:20 hours or 11:20 p.m. on October 17, 2013, Philisha was discharged from the Sault Area Hospital and returned home, being transported by her mother, Donna Sutherland and a neighbour, Judy Courtier. When she arrived at home, Philisha went straight to bed.

[3] The next morning, on October 18, 2013, both Donna Sutherland and Earle Sutherland checked on Philisha. Philisha encouraged both her parents to go to work as she was feeling fine and did not require her parents at home to provide care for her. Both Donna and Earle Sutherland went to work on October 18, 2013. When they arrived home from work on October 18, 2013, after 3:00 p.m., they found Philisha at home in a bad state. Philisha was in a significantly worse condition than she was when they left her to go to work in the morning. The interior of the home was ransacked with items of furniture overturned and closet doors off the hinges. Philisha had injuries to her body, including cuts, bruises, and a large goose egg type bruise on her forehead. Again an ambulance was dispatched and Philisha was transported to the Sault Area Hospital. Upon arrival at the hospital it was determined that Philisha had severe brain swelling compressing her brain stem and that she had suffered cerebellar infarct primarily involving a medial component of the left cerebellum. Philisha was basically brain dead. She was kept on life support until October 21, 2013, at which time life support was discontinued and Philisha was pronounced dead.

[4] Dr. Karen Booth attended with Philisha on October 17, 2013 only. Dr. Booth did not provide any care to Philisha after her discharge from hospital on October 17, 2013 and certainly not on October 18, 2013.

[5] The claim before the court is brought by Philisha’s parents, Donna and Earle Sutherland, her brother, Jonathan Sutherland, and her deceased paternal grandfather, Clifford Sutherland. The claim for damages is limited to claims for loss of guidance, care and companionship under section 61 of the Family Law Act, R.S.O. C.F. 3. The allegations of the plaintiffs are that Dr. Karen Booth breached the standard of care expected of an emergency room physician in Ontario in October 2013, and that Dr. Booth’s breach of the standard of care was the actual and legal cause of the death of Philisha Sutherland thereby resulting in the damages claimed by the plaintiffs.

Determination of the Issues

[6] The issues in a medical malpractice case are determined as follows:

(a) Did Dr. Karen Both breach the standard of care applicable to an emergency room physician in October 2013?

If the court finds that Dr. Booth breached the standard of care, the court then goes on to consider the issue of causation, that is did Dr. Booth’s breach of the standard of care cause the injuries suffered by Philisha Sutherland that ultimately caused her death. If the court finds that there was no breach of the standard of care by Dr. Karen Booth, then causation is not necessary to determine. If the court finds that there was a breach of the standard of care by Dr. Booth, then the issue of causation is considered by the court. If the court finds that there was a breach of the standard of care and causation is established by the plaintiff, then the court will go on to consider the issue of damages. Damages are not considered by the court where there has been no breach of the standard of care and causation proven on a balance of probabilities by the plaintiffs.

The Law on Standard of Care

[7] To succeed in an action for medical negligence, the plaintiff bears the onus of proving, on a balance of probabilities, that the defendant breached the standard of care of a reasonable and prudent physician, with the same training and experience, having regard to all the circumstances of the case.

[8] The principle is described in the seminal case of Crits v. Sylvestre (1956), 1956 CanLII 34 (ON CA), 1 D.L.R. (2d) 502 as follows,

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standard, and if he 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.

[9] The principle is further described by the Supreme Court of Canada in Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 33 where the court stated,

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field.

[10] A physician is not negligent merely because the medical treatment lead to an unfortunate outcome. The outcome does not constitute proof of negligence. The law imposes on a physician the obligation to properly treat the patient. It does not guarantee the result: St. Jean v. Mercier, 2002 SCC 15, at para. 53.

[11] As noted at para. 34 in Neuzen, a physician’s conduct is to be assessed in light of the medical knowledge and circumstances at the time of the alleged negligence, without the benefit of hindsight. In LaPointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] S.C.J. No. 11, the court observed at paras. 27-29,

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

[12] A physician is expected to exercise reasonable judgment. An error in judgment, including one which may prove wrong or have unexpected consequences, does not amount to negligence if the medical practitioner appropriately applies clinical judgment. A physician will not be liable for an error in judgment if their judgment was exercised honestly and intelligently, in contemplation of the pertinent facts known at the time the decision was made: LaPointe at para. 29.

[13] Due to the specialized knowledge of the medical professional, expert evidence is needed in medical malpractice cases,

Actions alleging malpractice involve issues to be decided that are not within the ordinary knowledge and experience of the trier of fact. Therefore, the plaintiff requires expert evidence to prove that the defendant physician was negligent: Branco v. Sunnybrook Women’s College Health Sciences, [2003] O.J. No. 3287 at para. 8 (SCJ); McPherson v. Bernstein, [2005] O.J. No. 2162 (SCJ).

The Evidence on Standard of Care

(a) Family Members of Philisha Sutherland

Donna Sutherland

[14] Philisha was described by her mother, Donna Sutherland, as someone who was in good health. Philisha smoked cigarettes, a half a pack a day, and used cannabis. Philisha’s consumption of alcohol was minimal. As to the events of October 17, 2013, Donna Sutherland testified that she came home after her husband Earle, and arrived home at 3:45 p.m. It was reported to her by Earle that Philisha was not feeling well. It was the evidence of Donna Sutherland that when she saw Philisha, she looked pale, she was slurring her words and her eyes were “rolling back in her head”. Philisha reported to her mother than she “had a major headache” and was sick to her stomach. It was the evidence of Donna Sutherland that Philisha was wobbly on her feet, that her balance was off, and that Donna had to guide Philisha to her room.

[15] Given what Donna Sutherland observed, 911 was called. In the call to 911, Donna Sutherland reported that she suspected Philisha had a possible drug overdose. The paramedics eventually arrived at the Sutherland home and Philisha was taken to the Sault Area Hospital. Donna Sutherland testified that while Philisha was at the hospital she was in her room and only left her room for approximately ten minutes to have a cigarette. It was also the evidence of Donna Sutherland that Dr. Karen Booth did not come into Philisha’s room while she was at the hospital except when it was time to discharge Philisha and that is when she saw Dr. Booth. Donna Sutherland was pressed about that detail in cross-examination and maintained her evidence that Dr. Booth was not in Philisha’s room until it was time to discharge her from the hospital. Donna Sutherland testified that “I didn’t see her and I was in that room”. When it was suggested to her in cross-examination that it could be possible that she didn’t recall, Ms. Sutherland disagreed with that suggestion and testified that “I recall and I have never seen that woman”, referring to Dr. Karen Booth.

[16] Donna Sutherland described Philisha as being quiet in the hospital, indicating that “she didn’t say much at all”. Philisha only indicated to her mother that she had a headache and was sick to her stomach. At the time of Philisha’s discharge from hospital, Dr. Booth indicated that Philisha’s difficult was “all drug related”. It was the evidence of Donna Sutherland that she asked Dr. Booth if she was sure about that because Philisha had “a major headache” and Dr. Booth instructed her to take Philisha home and to give her Advil. It was Donna Sutherland’s evidence that Philisha was taken to the truck in the hospital parking lot by wheelchair and that she laid in the backseat all the way home. Philisha went from the truck to the house and to bed. Philisha’s arms were grabbed to get her into the home because “she was weak and wobbly and had no balance”.

[17] Philisha stayed in bed without getting up all night. In the morning of October 18, 2023, Donna Sutherland offered to stay at home but was told by Philisha that she was okay and to go to work, which Donna did, leaving the home at 7:00 a.m. the morning of October 18, 2013.

[18] In cross-examination, Donna Sutherland agreed with the suggestion that Philisha’s condition was “significantly worse” on October 18 than it was on October 17. Donna Sutherland also agreed that Philisha was walking prior to the paramedics arriving on October 17, 2023. Donna Sutherland admitted in cross-examination that she was concerned about Philisha’s drug use and in 2009 she took Philisha to see her family physician, Dr. Philip Catania, because she was concerned about drug addiction issues related to Philisha. It was Donna Sutherland’s evidence that on October 17, 2013 Philisha told her that she hadn’t used marijuana in three days but agreed that the chart note of Dr. Booth indicated that she smoked marijuana at 12:30 p.m. and Philisha told the triage nurse that she had used marijuana in the afternoon.

[19] Donna Sutherland did not recall urine or blood samples being taken from Philisha while she was at the Sault Area Hospital on October 17, 2013. Donna Sutherland did not recall any conversations with nurses while Philisha was in the hospital on October 17, 2013, and it was her evidence that there was no nurse present at the time of Philisha’s discharge from hospital on October 17, 2013. It was pointed out to Donna Sutherland in cross-examination that at her examination for discovery held on February 14, 2017 that she testified that Philisha stood up and climbed in the truck when she went home on October 17, 2013 and that there was no mention of Philisha needing assistance to get into the truck when she left the hospital.

[20] Donna Sutherland admitted in cross-examination that she didn’t recall Philisha ever telling the health care providers at the Sault Area Hospital that she had a headache and that she never heard Philisha tell Dr. Booth that she had a bad headache. In cross-examination, Donna Sutherland agreed with the suggestion put to her that if she thought Philisha was in distress in the morning of October 18, 2013 that she would not have gone to work and left Philisha alone that day and she also agreed with the suggestion that Philisha was “significantly worse” when she returned home on October 18, 2013 than she was when she left her that morning to go to work.

[21] It was made clear by the evidence of Donna Sutherland that Dr. Karen Booth was not involved in the care of Philisha Sutherland on October 18, 2013, or at any time after her discharge from hospital on October 17, 2013.

[22] Donna Sutherland has no explanation as to why there is no mention of a headache in the ambulance call report (Exhibit 1, Tab 11). She has “no clue” as to why the paramedics did not write this information down.

Earle Sutherland

[23] Earle Sutherland is Philisha’s father, who retired from Algoma Steel in June 2015. He described Philisha’s health as good and her use of cannabis as “recreational”. On October 17, 2013, Philisha told her father that she hadn’t smoked marijuana in three days. Mr. Sutherland went to work on October 17, 2013 without seeing Philisha. He came home from work at approximately 3:30 p.m. and found Philisha laying on the floor in the bathroom saying, “I’m sick, not feeling good.” It was the evidence of Earle Sutherland that 15 to 20 minutes after he came home, his wife Donna Sutherland came home and assisted Philisha in going from the bathroom to her bedroom. Earle testified that Philisha was “disoriented” and that she could not stand up by herself. Mr. Sutherland suspected a drug overdose. 911 was called. The paramedics helped Philisha onto a gurney. Philisha left the Sutherland home for the Sault Area Hospital. Earle Sutherland did not go to the hospital on October 17, 2013. He fell asleep and does not remember Philisha coming home from the hospital that night.

[24] On October 18, 2013, Earle Sutherland worked the 7:00 a.m. to 3:00 p.m. shift. Prior to leaving for work, he opened Philisha’s bedroom door and asked her how she felt. It was the evidence of Earle Sutherland that Philisha said she felt all right and that she didn’t want her father to stay at home so Mr. Sutherland went to work as scheduled. In cross-examination, Mr. Sutherland agreed that if Philisha were slurring her words he would have stayed at home. It was the evidence of Earle Sutherland that he was satisfied that Philisha was safe on October 18, 2013, and therefore went to work.

[25] Earle Sutherland did not go to the hospital on October 17, 213. He had no dealings with Dr. Karen Booth on October 17, 2013. Mr. Sutherland agreed with the proposition put to him in cross-examination that if he felt that Philisha was seriously ill on October 17, 2013, that he would have gone to the hospital to be with her. However, on October 17, 2013, Philisha was not slurring her words. She did not complain to him or to his wife about a headache. She did not have facial droop. Mr. Sutherland did not notice any issues with Philisha’s eyes on October 17, 2013.

[26] Earle Sutherland in his evidence agreed with the suggestion put to him in cross-examination that Philisha’s condition appeared “much more serious” on October 18 than it did on October 17. On October 17, 2013, Earle Sutherland asked his daughter Philisha “what are you on” but Philisha told him that she had not smoked a joint in three days. On October 17, 2013, Earle Sutherland was concerned about a possible drug overdose.

Judy Courtier

[27] Judy Courtier lives close by to the Sutherlands and saw the ambulance arrive at the Sutherland home on October 17, 2013, so she went to the Sutherland home. She drove Donna Sutherland to the Sault Area Hospital on October 17, 2013. She describes her memory of October 17, 2013 as “somewhat good”.

[28] Ms. Courtier testified that at the hospital Philisha was in a room and that Philisha looked “greyish”, that her eyes were “glossy” and that Philisha was repeating over and over that “her head was really sore”. She described Philisha as “slurring her words” and that you “could somewhat understand” what Philisha was saying. She testified that she “never saw Dr. Booth that day”. In cross-examination she was pressed on that statement and Ms. Courtier testified that she was in Philisha’s room at all times and that “I never saw Dr. Booth at all”. Ms. Courtier later testified that it is fair to say that she may not recall or that Dr. Booth was with Philisha when she had stepped out of the room.

[29] Ms. Courtier does not recall bloodwork being taken for Philisha or any nurse taking a urine sample for Philisha. It was Ms. Courtier’s evidence that Dr. Booth was not present at or before Philisha’s discharge from the Sault Area Hospital. Ms. Courtier testified that no nurse was involved in Philisha’s discharge from the hospital and that it was Donna Sutherland who assisted Philisha into the wheelchair and helped her into the truck. It was also the evidence of Judy Courtier that when they arrived with Philisha back at the Sutherland home on October 17, 2013, that Earle Sutherland helped lift Philisha out of the truck and assisted Donna Sutherland in getting Philisha inside the house.

(b) Evidence of the Nursing Staff at Sault Area Hospital

Evidence of Nurse Aaron Provenzano

[30] Aaron Provenzano was called as a witness by the plaintiffs. He has worked as a registered nurse since 2011 and on December 17, 2013, was employed as a nurse at the Sault Area Hospital. He was involved in the care of Philisha Sutherland on October 17, 2013, and received her care as of 1716 that evening. Nurse Provenzano indicated that it was difficult to get a good history from Philisha as she had a lot of nausea and vomiting when he was first involved with her. Nurse Provenzano was not in the room with Dr. Booth when she conducted her assessment of Philisha at 17:40. It is noted by Nurse Provenzano that at 17:30, Philisha was “actively vomiting” clear fluid and at 1745, Philisha was given 10 mg of Moxeran, which is an anti-dizziness medication. Nurse Provenzano indicated that when giving a urine sample he helped Philisha onto the commode because she had too much dizziness and imbalance to go to the washroom on her own. As Nurse Provenzano put it in his evidence, it is not normal that a 27-year-old woman needs help to go to the bathroom”.

[31] Nurse Provenzano does not recall seeing Philisha walk. His evidence is that he never told anyone, including Dr. Booth, that Philisha had a normal gait. Nurse Provenzano’s shift ended at 7:00 p.m. and he had noted no improvement in Philisha’s condition by the time his shift had ended. Nurse Provenzano testified that when his shift ended, his report to Dr. Booth was that he did not know what was wrong with Philisha but that it was not marijuana and that he told Dr. Booth that Philisha needed help to go to the bathroom. By the time his shift ended, Nurse Provenzano had no idea what was going on with Philisha Sutherland.

[32] In cross-examination Nurse Provenzano agreed with the suggestion that there are lots of reasons a patient has a headache, including drug intoxication. Nurse Provenzano agreed that an overdose pack and not a stroke pack was used for Philisha and that if he had concerns of a stroke, he would have made a note of it. Nurse Provenzano agreed that Philisha’s vital signs were normal and remained normal throughout his involvement with her, which tends to suggest that Philisha’s condition was improving. Nurse Provenzano indicated that he had no difficulty understanding what Philisha was saying, that she as able to communicate and was “cognitive”. When he disagreed with the suggestion put to him by counsel in cross-examination that Philisha’s brain was functioning properly, the transcript of his examination was put to him, and in particular, page 49, Question 262, wherein he indicated that Philisha was alert and “like her brain was functioning properly”. Philisha was not slurring her words. If she was, he would have made not of it. Nurse Provenzano has no recollection of Philisha saying that she had a headache. Again, if she had said this, Nurse Provenzano would have written it down. Nurse Provenzano agreed that at the time his shift ended he did not think that whatever was making Philisha ill was a stroke. He did not think that Philisha Sutherland was having a stroke.

[33] Nurse Provenzano’s shift ended at 19:00 hours on October 17, 2013. He was involved in the care of Philisha Sutherland for less than two hours. It was the evidence of Aaron Provenzano that he was at the Sault Area Hospital on October 18, 2013, and that he heard Dr. Karen Booth comment on Philisha while she was at the hospital on October 18, 2013.

Evidence of Nurse Karen Dinter

[34] Karen Dinter was called as a witness by the defendant physician. She has been licenced as a registered nurse since May 2006. From 2006 to 2013, Nurse Dinter worked as an emergency room staff nurse at the Sault Area Hospital. Ms. Dinter described working as a team with the physician with the nurse being “the eyes and ears” for the physician. As a nurse, Ms. Dinter is trained to recognize the signs and symptoms of a stroke.

[35] Nurse Karen Dinter was involved in the care of Philisha Sutherland from 19:00 hours to 23:20 hours on October 17, 2013. Nurse Dinter testified that she had a handover conversation with Nurse Provenzano and reviewed his notes. The notes did not concern her. She does not recall having a conversation with Nurse Provenzano about Philisha being incapable of using the washroom.

[36] At 1900 hours, Philisha was complaining of a headache. Philisha was lying flat in bed, was very peaceful and not agitated. There was no indication to Nurse Dinter of a severe headache and no visible clues to her that Philisha was having a severe headache, like the grabbing of her head or the closing of her eyes. It was the evidence of Nurse Dinter that the order of one gram of Tylenol suggests that the treatment is for a normal to moderate headache. Nurse Dinter had no concerns with Philisha’s ability to speak. Philisha was speaking without difficulty and without slurring. After the assessment of Philisha by Dr. Booth, Nurse Dinter spoke to Dr. Booth and advised her of the headache. The one gram of Tylenol did not have to be repeated. While under Nurse Dinter’s care, Philisha did not vomit nor did she complain of vomiting. Dr. Booth raised the issue of the elevated white blood cell count with Nurse Dinter and expressed concern about it being high. Dr. Booth wanted to know if it was trending up or down.

[37] Nurse Dinter testified that she was present at the second assessment performed by Dr. Booth on Philisha. Although she could not recall details of this assessment, Nurse Dinter testified that “what I do recall is that Dr. Booth took her time”. Nurse Dinter noted at 22:15 that Philisha was sleeping peacefully in the same position, was not moving around, was not in pain , “she was completely comfortable.” Nurse Dinter’s notation at 23:20 indicates that she disconnected the IV and that she helped Philisha get dressed and she went home with her family by wheelchair to her car. Nurse Dinter indicated in her evidence that it is not surprising that Philisha left in a wheelchair as her room was the farthest point from the front door. Nurse Dinter testified that Philisha would have had to take two or three steps to go into the wheelchair and if she had noticed any difficulties with this that she would have alerted Dr. Booth.

[38] Nurse Dinter testified that on her last attendance with Philisha Sutherland that she had no concerns about a headache, no concerns about her ability to speak and no concerns about Philisha’s ability to open her eyes, and that if she had any such concerns, she would have notified Dr. Booth about it.

[39] In total, Nurse Dinter cared for Philisha Sutherland for a total of four hours and 20 minutes on October 17, 2013. Nurse Dinter indicated in her evidence, “I had no concerns that Philisha was suffering a stroke while she was under my care.”

[40] In cross-examination, Nurse Dinter acknowledged that her documentation was poor in recording the vital signs for Philisha and that she had never witnessed a younger adult having a stroke. Nurse Dinter acknowledged that Philisha had no signs of intoxication. Nurse Dinter had no recollection of Nurse Provenzano telling her that Philisha was dizzy or needed assistance in using the bathroom.

[41] Nurse Dinter indicated in cross-examination that she did not see anything abnormal in Philisha’s presentation related to neurological issues that warrant her doing a neurological assessment. Nurse Dinter also indicated in her evidence that the bathroom would be far away so the use of a commode in a hospital room would be usual and normal. On Philisha’s discharge from hospital, Nurse Dinter could not recall whether or not she assisted in pushing Philisha’s wheelchair out to her vehicle. She testified that it was her practice to help her patients into the wheelchair and that the patient would have to be able to stand and pivot to get into a wheelchair.

(c) Evidence of Dr. Karen Booth

[42] Dr. Karen Booth is the named defendant in this action. She earned a Bachelor of Science degree from Guelph University in 1997, a Master of Science degree from the University of Toronto in 2003. Dr. Booth went on to do a residency in family medicine and emergency medicine, obtaining a certificate of special competence in emergency medicine from the College of Family Physicians of Canada. Dr. Booth joined the staff of the Sault Area Hospital in 2006, and from 2006 to 2013, practiced in the department of emergency medicine at the Sault Area Hospital. Dr. Booth has served as a preceptor with the Northern Ontario School of Medicine for residents and students training in emergency medicine.

[43] As part of her educational background, Dr. Booth indicated in her evidence that she has training in neurological medicine, including the signs and symptoms of stroke. Dr. Booth has also received training in intoxication, drug use, including marijuana use. Dr. Booth testified that intoxication is a frequent presentation in the emergency department, likely one patient per shift or a few patients per week. By contrast, strokes in younger patients is “very, very rare” and infrequently seen in the emergency department.

[44] Dr. Booth described the emergency department at the Sault Area Hospital as a “busy department” in 2013. There were approximately 60,000 patient visits per year in 2013 in the emergency department and 160 patients a day. A hospital shift for an emergency room physician was an eight to ten-hour shift with the physician being assigned to the acute care side or the walk-in side. The acute care section of the emergency room would require treatment of approximately 20 patients for each shift, whereas the walk-in clinic side would treat more patients. In 2013, there was one neurologist who did not provide complete coverage or an on-call basis. In 2013, there was a province program referred to as CritiCall where emergency room physicians could speak to various specialists who were not available at the Sault Area Hospital.

[45] On October 17, 2013, Dr. Karen Booth was working on the acute side of the emergency room at the Sault Area Hospital. Her shift started at 3:00 p.m. Dr. Booth indicated that she has no idea how many patients that she saw on October 1, 2013, and that she has “some recollection” of Philisha Sutherland.

[46] In her evidence Dr. Booth led the court through the various hospital charts set out in Exhibit 1, which she indicated that she reviewed during the course of her treatment of Philisha Sutherland. Exhibit 1, Tab 1 is the ambulance call report, which is provided for all patients brought into the hospital by ambulance and it formed part of Philisha’s medical chart. This report indicates that Philisha was placed into Nurse Aaron Provenzano’s care on October 17, 2013 at 17:16 hours, or 5:16 p.m. The information that was called into the ambulance report as indicated in the ambulance call report is that “patient found on her bathroom floor by her parents, extremely lethargic, slurred speech, unable to keep eyes open, parents suspect overdose, called 911”.

[47] The portion of the ambulance call report (Exhibit 1, Tab 1) completed by the paramedics indicates “no apparent neuro deficits”, meaning that there was no neurological abnormality observed by the ambulance paramedics with respect to Philisha Sutherland. The observation section on the ambulance call report also indicates that Philisha’s eyes were “spontaneous”, meaning that they were open. It can be gathered by Exhibit 1, Tab 1, that the paramedics who transported Philisha Sutherland to the hospital observed her verbal responses were oriented, her pupils were responsive or reactive to light and were equal – they were not asymmetric. Dr. Booth testified that asymmetric pupils can indicate “a number of neurological issues”, especially raised intercranial pressure. It was noted in the ambulance call report that Philisha was able to stand and pivot. The report notes that the final primary problem was “drug overdose”.

[48] Dr. Booth explained in her evidence that Exhibit 1, Tab 3 is the nursing record, which is generated by the triage nurses to record orders and for nurses to document their observations concerning the patient. It is a document that forms part of the patient’s chart. Exhibit 1, Tab 4 is the physician’s chart. It is a chart that is generated by the triage nurse when the patient comes into the hospital, but it serves as the physician’s template to document history, physical observations, and the treatment plan. It is the notes and handwriting of Dr. Karen Booth that appear on Exhibit 1, Tab 4, with the exception of the vital signs which are entered by the triage nurse. As to Philisha’s vital signs, it was noted by Dr. Booth in her evidence “her heartrate was low when she came in, but reassuring that it normalized quite quickly. You can see the second and third and fourth heartrate are normal range, and the remainder of them again remaining in normal limits.” Exhibit 1, Tab 6 is the “emergency department flowsheet” which the nurse documents and which is available for the treating physician to review in their treatment of a patient.

[49] Dr. Karen Booth testified that she first came in to see Philisha Sutherland at 17:40 hours on October 17, 2013. She found Philisha sitting upright on the stretcher attached to the monitor at the bedside in the room. Dr. Booth indicated in her evidence that Philisha’s mom, aunt, family member, and boyfriend were in the hospital room with Philisha. Dr. Booth reported that Philisha indicated that she smoked marijuana at 12:30 at the home but denied taking any other substances. Philisha reported to Dr. Booth that she used marijuana daily. Dr. Booth was aware that Philisha was reporting increased nausea and was feeling weak. As Dr. Booth put it in her evidence, “there were reports available from the triage and paramedics that she had been feeling lightheaded and dizzy, and I wanted to find out what that meant.” Dr. Booth indicated in her evidence that Philisha reported to her feeling weak but not passing out or off balance vertigo; that was never reported by Philisha to Dr. Booth. At the time of Dr. Booth’s assessment at 17:40, Philisha was not vomiting.

[50] Dr. Booth indicated that when she was examining Philisha at 17:40, “My concern and thinking of the symptoms and you work through in my mind what’s going on with her presenting symptoms, a differential diagnosis is a term of what could be the cause of how she’s presenting.” Dr. Booth went on to testify that, “I was concerned as to whether she had an infectious cause for her symptoms; she’s nauseous, vomiting, and complaining of loose stool, that if she had an infectious gastritis like a stomach bug.”

[51] Dr. Booth described her physical examination of Philisha Sutherland as a “review of systems” which is questioning complaints from head to toe. Dr. Booth was firm and confident in her evidence that her examination of Philisha was one from her head to her toes. Dr. Booth indicated that Philisha had no headache, she had no chest pain or shortage of breath. A Glasgow Coma Scale test was performed where Philisha’s eyes, verbal communication and motor function and coordination were assessed. Philisha’s eyes spontaneously opened, she was alert and her eyes were open. Her verbal observations were noted as “oriented”, indicating that Philisha was able to talk clearly and she could answer questions put to her appropriately. Philisha’s speech was oriented and not confused. As to Philisha’s motor skills, Dr. Booth noted that she was able to coordinate and follow instructions for her motor examination. It was the evidence of Dr. Karen Booth that when she performed the Glasgow Coma Scale assessment on Philisha that she didn’t notice any abnormalities, and Philisha scored a 15 on the Glasgow Coma Scale assessment.

[52] With respect to the head and neck examination performed by Dr. Booth, Philisha “was able to coordinate a normal eye gaze and had no problems with gaze. And again, no nystagmus at the end of her gaze, either looking vertically or laterally.” Dr. Booth described that “nystagmus in an adult can be indicative of something going on in the back part of the brain or the cerebellum, so that is something to consider.”

[53] Dr. Booth testified that during her examination of Philisha, she did not slur her words, that Philisha’s words were clear and appropriate. There was absolutely no abnormal speech. Philisha’s face was not asymmetric, there was no difference between one side of her face and the other. Philisha had no signs of facial droop and Dr. Booth indicated that in none of her subsequent contact with Philisha on October 17, 2013 did she ever show signs of having facial droop.

[54] Dr. Booth testified that Philisha’s cardiovascular system appeared to be normal. She had no signs of infection or pneumonia. She had normal heartbeat signs without murmurs. Dr. Booth noted that she performed an abdominal examination of Philisha and that “There’s four quadrants or four sections to examine in the abdomen and she did not have any tenderness or masses with that examination”. It was Dr. Booth’s evidence that this type of examination rules out appendicitis or urine infections.

[55] Dr. Booth was clear in her evidence that she did conduct an examination of Philisha’s central nervous system. Dr. Booth testified that she examined Philisha’s upper extremities and lower extremities for power and motor function. Philisha was asked to raise both her arms, with palms up to the sky, and when she did this, Dr. Booth indicated “She did not have any weakness or loss of coordination, ataxia to coordinate, ataxia to coordinate to lift up her arms equally”. When Dr. Booth provided resistance, there was no weakness noted on either side. Dr. Booth did not find ataxia and she testified that if a person is ataxic, they can’t coordinate to lift up their arms equally and they sort of move all over the place. Dr. Booth testified that Philisha’s legs were examined and that she was able to raise both legs without weakness or loss of coordination and that there was strength in Philisha’s legs when resistance was applied by Dr. Booth. It was the evidence of Dr. Booth that if there were a neurological injury, Philisha would not be able to do that equally with her legs, but she was able to do so. With respect to the totality of the central nervous system examination conducted by Dr. Booth, it was her evidence that “it demonstrated that she had a normal neurological examination, not concerning for any deficit or brain injury”.

[56] In Dr. Booth’s chart note (Exhibit 1, Tab 4) the Babinski response is circled as being negative. As noted by Dr. Booth, the Babinski response is a reflex test which examines functioning from the cerebral cortex, the front part of your brain, that the nerves or track that goes from the part of our brain through the brain stem that’s at the back of the brain, down the spinal cord out to your extremities. The Babinski response test is administered by examining the base of the foot with a stimuli. Philisha’s Babinski response was negative and as Dr. Booth testified with the negative Babinski response and with her other “normal neurological examination, she did not go on to test the tendon reflexes.”

[57] It is not disputed by Dr. Karen Booth that she did not examine Philisha Sutherland’s gait – that she did not ask Philisha to get up to make an assessment of her walking. Dr. Booth provided the following explanation in examination in-chief for not conducting a gait assessment, “I did not ask her to get up and walk. She had a normal neurological examination and I did not think that was indicated or relevant.” The normal neurological examination removed neurological concerns from the differential diagnosis that Dr. Booth was considering after she completed her physical examination of Philisha Sutherland.

[58] It was the evidence of Dr. Booth, supported by her contemporaneous charting that she reassessed Philisha at 18:30, 19:30, and again at 22:00 hours on October 17, 2013, prior to discharging her from the Sault Area Hospital at 23:00 hours.

[59] Dr. Booth provided the court with an explanation for the orders that were made related to Philisha, as set out in Exhibit 1, Tab 3. Nurse Justine Rogers ordered an OD pack on Philisha. A stroke pack was available but was not ordered by the nurse. The note from Dr. Booth at 17:50 indicates that she ordered an IV of normal saline to provide fluid rehydration for Philisha. A urinalysis order was also made. Dr. Booth testified that she did not consider ordering a CT scan following her initial assessment of Philisha. Dr. Booth provided the following explanation as to why she did not order a CT scan,

She did not have any neurological abnormalities on our examination. Again, she was conscious, she was speaking normally, there was no dysarthria, she had no focal weakness or lack of coordination ataxia, and clinically her symptoms were getting better, including her nausea.

[60] Exhibit 1, Tab 9 are the summaries for the lab results ordered for Philisha. Dr. Booth testified that none of the lab results were concerning except for Philisha’s white blood cell count. It read 31,600 which concerned Dr. Booth. As she put it in her evidence, “it was abnormal, it was elevated.” Philisha’s white blood cell count was outside the normal reference range which is 4 to 11. Philisha’s was 31,600. Later on in the evening, Dr. Booth ordered a repeat of the white blood cell count lab work and this revealed that the count was at 25,000, it was still elevated but it was trending down.

[61] The results for the testing relating to opioids that the hospital could test for was negative. The urine analysis indicated that Philisha was not pregnant and that there were no signs of urinary tract infection. The urine test indicated a positive for THC, which is a component of marijuana.

[62] It was the evidence of Dr. Karen Booth that when she assessed Philisha at 17:40 and 18:30 that no headache was reported by Philisha. At the 19:30 reassessment, Philisha reported a headache. As to the headache, Dr. Booth testified that “if she had headache, so to treat it, and in the context of being in the department for a couple of hours after vomiting, possibly concern for infection again, not uncommon and even after some substance use, to have a headache.”

[63] As indicated in Exhibit 1, Tab 3, page 13, in response to the headache, Dr. Booth ordered one gram of Tylenol to be given by mouth and she repeated the order for normal saline by intravenous for hydration. It was the evidence of Dr. Booth that she would have prescribed more medication than one gram of Tylenol by mouth if Philisha Sutherland had reported to her that her headache was severe. Dr. Booth indicated that if Philisha had described the headache as severe, intravenous medication and an opiate would have been administered.

[64] When she reassessed Philisha at 22:00 hours, Dr. Booth testified that she found Philisha sleeping and her vital signs stable. Dr. Booth indicated that she found the fact that Philisha was sleeping as a reassuring sign, that she was comfortable enough to be able to sleep. Dr. Booth indicated that at that time she did a reassessment to support the discharge of Philisha from hospital. Dr. Booth found that Philisha’s condition was improving over the course of the evening and made the decision that she could be discharged from the Sault Area Hospital, which she was at 23:00 hours.

[65] At the time of her discharge from hospital, Philisha’s white blood cell count was still elevated. The last test indicated a reading of 25. When asked about whether she was concerned about the elevated white blood cell count, Dr. Booth replied as follows,

No. In context of how she was clinically, vitals had normalized with her symptoms improving, and the examination not concerning for any focus of infection and, I was reassured that it was coming down with her picture.

Dr. Booth added that it is not the usual practice to keep patients hospitalized until their white blood count is stabilized.

[66] Dr. Booth testified that Philisha Sutherland herself said that she was feeling better and wanted to go home. Dr. Booth’s impression and plan at discharge was noted to be “intoxication”. Dr. Booth testified that at the time of discharge, Philisha declined crisis addiction services and was told to follow up with her family physician as needed. It was the evidence of Dr. Booth that when she last saw Philisha prior to her discharge from hospital, Philisha was alert and sitting upright on the stretcher. She was not slurring her words and she had no difficulty communicating.

[67] Dr. Booth has no recollection of Donna Sutherland asking if she thought there might be something else going on with Philisha at the time of her discharge. On Philisha’s discharge, Dr. Booth did not call her family physician, Dr. Catania, to provide a report to him. It was the evidence of Dr. Booth that it is not he practice in the emergency department to call family physicians on a patient’s discharge as they receive a copy of all results in any event.

[68] Dr. Karen Booth testified that she had no contact with Philisha Sutherland after discharge from hospital on October 17, 2013 at 23:00 hours. Nurse Aaron Provenzano testified that Dr. Booth had a discussion with him or someone at the Sault Area Hospital concerning Philisha on October 18, 2013. Dr. Booth denies that any conversation took place. Her evidence is that she was not at the Sault Area Hospital on October 18, 2013 as it was Friday and she did not work on Fridays as she had no child care available for her children on Fridays.

[69] A great deal of time in this case was spent on the fact that Dr. Booth did not perform a gait assessment on Philisha Sutherland. The failure to do so is a main prong in the plaintiffs’ argument that Dr. Booth did not meet the standard of care expected of an emergency room physician. A great deal of time was spent in cross-examination on the issue of the gait assessment. When the matter of a gait assessment was put to Dr. Booth in cross-examination, she agreed that “in some instances” a neurological assessment will include a gait assessment which “can add additional information to the neurological examination”. Dr. Booth also conceded that it doesn’t take long to do a gait assessment, “maybe a little more than a minute”. It was Dr. Booth’s firm position that you can assume a normal neurological examination without observing the patient’s ambulation. As she explained in her evidence, “in my experience, when a patient has a normal level of consciousness, when they can coordinate to move their upper and lower extremities, I’ve not had instances where people’s gait is abnormal when the remainder of the examination does not define any abnormalities.”

[70] Dr. Booth conceded in cross-examination that she could have done a gait assessment but did not do so. As Dr. Booth testified, “From my examination, I did not feel that it was indicated at the time. Again, I have reviewed that her neurological examination did not note any deficits. So, in my practice, I did not feel that she required to get up and walk when the aspects of her neurological examination were normal and no deficits.”

[71] The reason why Dr. Booth did not do a gait assessment was challenged in cross-examination. At her examination for discovery held on July 12, 2016, Dr. Booth was asked at Question 263,

Q. Did you have her get up and walk around at all?

A. It was reported that she got up to go to the bathroom.

Further, at Question 358,

Q. Did you watch her gait?

A. No. It was reported to me she walked to the bathroom to get the urine sample, and it was documented with the paramedics that she was able to stand and move independently.

[72] It was suggested to Dr. Booth in cross-examination that there was an inconsistency in the evidence given at discovery from the evidence given by her at trial as to why she did not do a gait assessment. Dr. Booth explained that suggested inconsistency as follows,

There’s two parts. The first part is I wasn’t concerned about her gait because as we’ve talked about her neurological examination was coordinated without concern. And when I was reassessing her, I had a urine sample and it was not brought to my attention that there was any concern. So, for a patient to give a urine sample, they have to be coordinated enough to do that, to stand up to practically urinate in a woman’s case.

[73] Put simply, Dr. Booth had difficulty with the suggestion put to her on numerous occasions during cross-examination that gait testing is required in every case as part of a neurological examination. Dr. Booth does not agree with that proposition. As Dr. Booth indicated in her testimony,

In my experience when the cranial nerves, mental status, sensation and motor examination are normal, then the gait assessment would not in my practice or experience ever be just solely abnormal, when the other facets are all normal.

[74] Dr. Booth testified that she did a full neurological examination at 17:40 and subsequent reassessments with Philisha to review her level of responsiveness. Dr. Booth indicated in her evidence that “my neurological examination did not demonstrate any focal abnormalities or asymmetry and I did not think she had a stroke based on the examination that I did.”

[75] Dr. Booth’s working diagnosis at the time of discharge for Philisha Sutherland was not stroke but rather intoxication. Dr. Booth testified that she worked through other possibilities for Philisha’s presentation and that “after observation in the emergency department and working through other causes, yes, I did feel that those initial symptoms were related to intoxication. In an acute phase, certainly that could have been the presentation of acute use.”

[76] Dr. Booth reiterated in cross-examination that Philisha Sutherland did not report to her that she was having vertigo or light-headedness. Philisha reported to feeling weak. Dr. Booth indicated in her evidence that when Philisha reported a headache at the 19:30 reassessment that she didn’t do a further neurological examination. The headache was not reported as being severe and the treatment of Tylenol was consistent with the headache not being severe. As to why a further neurological examination was not conducted at 19:30, Dr. Booth explained, “Well, in context of my documentation at the time, she was able to speak to me, so part of the neurological examination, she was responsive, there was no dysarthria, there was no obvious change to her examination, with her eyes, how she was able to sit up, no obvious deficit. And again, reflected by what was ordered to help her with her symptoms, that seemed in keeping with a non-severe headache.”

[77] Dr. Booth conceded in cross-examination that a CT scan was available to be ordered for Philisha but none was ordered by her. In her evidence, Dr. Booth disagreed with the suggestion that a CT scan would have assisted in determining why Philisha was having a headache. Dr. Booth’s evidence was that “history, examination, causes of headache and other causes of headache besides neurological would not be picked up on a CT scan. It’s not a rule-in or rule-out test.” Dr. Booth went on in her evidence to state that a CT scan would not pick up whether a patient is having a stroke “unless there’s a very large bleed or a very large contusion or like a big bruise”. It was the evidence of Dr. Booth that because of the radiation exposure of a CT scan that “we don’t routinely order CAT scans for patients without a strong clinical indication.” Dr. Booth’s position was that “I am not going to send my patients for unnecessary scans if they don’t have a clinical indication.”

[78] As to the issue of the white blood cell count, Dr. Booth acknowledged in cross-examination, as she did in examination in-chief, that a count of 31,600 was high and “outside the reference range”. Dr. Booth repeated her evidence that the second test at 8:15 of 25,000 was still elevated but explained that Philisha’s symptoms were improving and the white blood cell count numbers were trending down, indicating that “her examination did not identify a focus of infection and that was reassuring to me.” It was Dr. Booth’s view that Philisha’s white blood cell count was high at discharge due to the fact that she had experienced nausea and vomiting.

(d) Expert Evidence

Dr. Edwin Brankston

[79] Dr. Brankston was called by the plaintiff as an expert on the issue of the standard of care expected of an emergency physician in 2013. Dr. Brankston graduated from the medical school at Queen’s University in 1976. Dr. Brankston is qualified by the College of Family Physicians with a specialty in family medicine and emergency medicine. Dr. Brankston entered practice in 1977 and worked primarily at the Oshawa Hospital. Dr. Brankston has prepared opinions and chart audits for the College of Physicians and Surgeons in Ontario involving standards of care for physicians. From 1977 to 1996, Dr. Brankston worked parttime in the Oshawa General Hospital as an emergency physician, working one or two shifts a week. From 1995 to 2007, Dr. Brankston took a 12-year hiatus from practicing emergency room medicine. He resumed his emergency room practice in 2007, working one or two shifts each week until his retirement in 2018. Dr. Brankston’s teaching at Queen’s University is in the context of family medicine and not in emergency medicine.

[80] After conducting a voir dire, Dr. Brankston was qualified as an expert to provide the court with opinion evidence and comment on standard of care issues.

[81] It was the opinion of Dr. Brankston that the defendant, Dr. Karen Booth, failed to meet the standard of care expected of an emergency room physician in 2013. Dr. Brankston reached this conclusion based on five factors, namely:

1. That Dr. Booth failed to investigate the significantly elevated white blood cell count of 31, 600;

2. That Dr. Booth incorrectly concluded the patient’s presentation on October 17, 2013 was consistent with marijuana intoxication;

3. That Dr. Booth failed to perform a thorough and acceptable neurological examination because she did not carry out a gait assessment;

4. That Dr. Booth failed to consider any other differential diagnosis to explain the patient’s clinical presentation on October 17, 2013;

5. That given this patient’s clinical presentation of neurological symptoms, Dr. Booth failed to request a non-contrast CT scan of the patient’s head.

[82] In examination in-chief these five aforementioned points were examined one at a time. Firstly, with respect to the elevated white blood cell count, Dr. Brankston testified that “certainly an elevated white blood cell count of 31,600 is a significantly elevated white blood cell count that requires clarification”. As to the ideology and cause of that elevation, Dr. Brankston indicated in his evidence that the cause of an elevated white blood cell count is infection, and in his view, insufficient inquiries were made as to the infection. Dr. Brankston did not find it a significant factor that the white blood cell count dropped from 31,600 to 25,000 as he believed that a patient on IV would lead to a dilution effect explaining the drop in the count but still leaving it as something that had to be investigated. Dr. Brankston testified that he had never seen a patient with a 31,600 white blood cell count solely on the basis of vomiting and diarrhea. It was Dr. Brankston’s opinion that Dr. Booth did not have enough information to be confident to conclude that there was no source of the infection.

[83] Secondly, with respect to the conclusion arrived at by Dr. Booth that the patient was suffering from marijuana intoxication, it was the opinion of Dr. Brankston that one toke of marijuana by a regular cannabis user would not be enough to cause intoxication. Dr. Brankston testified that marijuana intoxication is characterized in terms of behavioural changes, such as euphoria, disorientation and increased anxiety, but Philisha Sutherland didn’t exhibit any signs of this behaviour. Dr. Brankston indicated in his evidence that “with the amount of cannabis that she took, I just don’t understand how one could rationally ascribe her symptomatology and the way it evolved in the ER as being secondary to marijuana intoxication.”

[84] It was Dr. Brankston’s opinion that Dr. Booth didn’t consider a differential diagnosis. As he put it in his evidence “she really focused on the one single differential diagnosis without considering anything else in the way of possible diagnoses to explain the patient’s presentation”.

[85] Thirdly, as to Dr. Booth failing to complete a thorough neurological examination in that she did not examine the patient’s cerebellar function or observe the patient’s gait, Dr. Brankston describes Dr. Booth’s examination of Philisha Sutherland as incomplete and inadequate as there is no documentation in her notes, in either the chart or the dictated notes, of a cerebellar gait examination. Dr. Brankston indicated that because of the lethargy experienced by Philisha and the fact she was found on the floor of the shower indicated an altered level of consciousness and combined with vomiting and headache it was important to conduct a complete neurological examination because of those neurological symptoms, and this would include a gait assessment. Dr. Brankston described finger to nose testing as a form of testing the cerebellar function. It was Dr. Brankston’s view that in not doing a gait test you run the risk of missing pathology in the posterior fossa of the brain.

[86] Fourthly, Dr. Booth failed to consider any differential diagnosis. Dr. Brankston explained that a differential diagnosis comprises a list of possible diagnoses that would possibly explain a patient’s clinical presentation. In providing his opinion, Dr. Brankston stated that “it doesn’t appear to me that Dr. Booth considered any other differential diagnoses other than cannabis intoxication.” In his evidence, Dr. Brankston indicated that in order to exercise good quality judgment a physician has to have all the facts that are relevant, and in his opinion, Dr. Booth did not have all the facts. Dr. Brankston was critical of Dr. Booth for not inquiring into the patient’s headache and in not doing a cerebellar or gait assessment concluding that Dr. Booth’s neurological examination was incomplete given Philisha Sutherland’s clinical presentation. Dr. Brankston testified that in breaching the standard of care in failing to prepare a differential diagnosis you tend to increase the risk of a poor outcome for the patient.

[87] Fifthly, Dr. Brankston concludes that Dr. Booth breached the standard of care by failing to order a CT scan. It is Dr. Brankston’s view that a CT scan would rule out the presence of a brain bleed, would rule out the suggestion of increased intracranial pressure, and would help in the diagnosis of a stroke. It was Dr. Brankston’s opinion that just because the patient had a Glasgow Coma score of 15 out of 15, it does not mean there is an absence of intracranial pathology. Dr. Brankston s of the view that Philisha Sutherland’s clinical presentation was “highly suggestive of intracranial pressure” and therefore, a CT scan should have been ordered by Dr. Booth.

[88] Dr. Brankston was vigorously cross-examined on the five aforementioned conclusions reached by him. Dr. Brankston agreed with the suggestion put to him in cross-examination that the person best able to exercise clinical judgment is the physician who is in the room seeing and assessing the patient and that on October 17, 2013, Dr. Karen Booth was in a better position to say how sick Philisha Sutherland looked than he is today. Dr. Brankston also agreed with the proposition that Dr. Booth was in a better position than him to assess how Philisha followed commands, to assess abnormalities in her speech, and to assess for cognitive impairment. This all makes sense because Dr. Booth actually saw Philisha Sutherland and Dr. Brankston did not.

[89] Dr. Brankston indicated in cross-examination that his understanding in preparing his report and giving his opinion is that Dr. Booth assessed Philisha once and then re-assessed her at the time of her discharge. Dr. Brankston was referred to exhibit 1, Tab 4, page 16, which charts that Dr. Booth actually assessed Philisha five times during the evening of October 17, 2013; namely at 17:40, 18:30, 19:30, 22:00, and at her discharge at 23:00 hours. Dr. Brankston had to admit that he was wrong in his understanding about how many times Dr. Booth was involved with Philisha on October 17, 2013.

[90] With respect to the five points on which Dr. Brankston bases his opinion they were covered in detail in cross-examination. Firstly, with respect to the elevated white blood cell count, Dr. Brankston was asked about his conclusion that Dr. Booth did not inquire as to the respiratory, abdominal or urinary condition of Philisha. Dr. Booth’s dictated note was put to Dr. Brankston in which it is indicated “denied having any chest pain or shortness of breath... her chest examination noted equal air entry to both lungs with no crackles or wheezes”. Dr. Booth’s note goes on to say that “there were no urinary symptoms”. After these notes were put to Dr. Brankston, he acknowledged that Dr. Booth did ask about urinary symptoms. As to an abdominal source of infection, Dr. Booth’s note was put to Dr. Brankston which indicated “patient stated she was having loose stool...the abdominal examination was unremarkable. Her abdomen was soft and non-tender.” In this note from Dr. Booth being put to him in cross-examination, Dr. Brankston agreed that it was not fair to criticize Dr. Booth on this given what was in her dictated notes concerning the abdomen. Dr. Brankston acknowledged that infection was not the cause of Philisha Sutherland’s death.

[91] As to the second point, that Dr. Booth was incorrect in concluding that Philisha’s presentation on October 17, 2013 was consistent with marijuana intoxication, Dr. Brankston agreed that a patient’s reporting history of drug use to an emergency physician is not always accurate. Dr. Brankston also agreed that there is no real way to know the makeup of a substance that a patient has consumed. Dr. Brankston agreed with the suggestion that it is prudent for an emergency room physician not to take a patient at face value when it comes to suspected or reported drug use.

[92] The cross-examination of Dr. Brankston revealed that he had missed the evidence of the Sutherland parents that Philisha had told them she hadn’t used drugs in three days prior to October 17, 2013. Dr. Brankston was unaware of what substance Philisha Sutherland had consumed and when. When asked “How long does it take for cannabis to metabolize through Ms. Sutherland?” Dr. Brankston replied, “I don’t know. I am not familiar with the shelf life of cannabis to be honest.”

[93] In his report (page 10), Dr. Brankston stated that Dr. Booth’s opinion that Philisha had marijuana intoxication is based on the patient’s slurred speech. When it was pointed out that the medical reports didn’t state that Dr. Booth found Philisha to have slurred speech, Dr. Brankston’s response that this was “splitting hairs”. Dr. Brankston referred to the ambulance report noting that the paramedics referred to slurred speech. It was pointed out to Dr. Brankston that this was part of the history obtained not what the paramedics observed, this again was splitting hairs, as far as Dr. Brankston was concerned.

[94] Dr. Brankston’s belief was that Nurse Aaron Provenzano reported to Dr. Booth that Philisha was suffering from marijuana intoxication. When the transcript of Dr. Booth’s examination for discovery was put to Dr. Brankston, and in particular Question 192 from that transcript, Dr. Brankston conceded that he was mistaken on this acknowledging, “Okay, my mistake there.” The exchange in cross-examination was as follows,

Q. So you see your error there?

A. Yes.

Q. Based on that question 192.

A. I agree. I misinterpreted that 192 question from Dr. Booth’s transcript.

Dr. Brankston agreed in cross-examination that nowhere in Dr. Booth’s transcript does it say that Nurse Provenzano told Dr. Booth that Philisha was suffering from marijuana intoxication.

[95] As to the third point, that Dr. Booth failed to carry out a complete and thorough neurological examination, it was Dr. Brankston’s opinion that Dr. Booth did not examine cerebellar function or observe Philisha’s gait. In the course of cross-examination, Dr. Brankston agreed that Philisha had no nystagmus but disagreed with the suggestion that if a patient has no nystagmus that it tends to point away from a cerebellar cause of the patient’s presentation. Dr. Brankston agreed that Philisha did not have ataxia. Dr. Brankston was asked, “If there was no ataxia when Dr. Booth had Ms. Sutherland lift, raise both her arms, that would tend to point away from a cerebellar cause of he presentation”, to which Dr. Brankston replied, “It would tend to, yes.”

[96] Dr. Brankston was then asked by Ms. Brannagan, “If there was no ataxia of Mr. Sutherland’s speech, that again would point away from a possible cerebellar cause of her presentation?”, to which Dr. Brankston replied, “I agree with that.”

[97] Then there was the following exchange between Ms. Brannagan and Dr. Brankston,

Q. Okay, and now, Dr. Brankston, if we had a situation where we have no nystagmus, no ataxia of movement, so arms and legs, and no ataxia of speech, is it fair to say that a gait – it is unlikely that a gait assessment would be the only abnormal finding pointing towards cerebellar movement?

A. You know what, I think that’s a very general question that has many possible answers and I’m not sure that I can really give a definitive answer on that.

Q. Fair enough, and so, to be fair to Dr. Booth, if she did test for the presence or absence of nystagmus, and she did ask the patient to move her limbs and she did assess he speech, those things do involve cerebellar functioning, correct?

A. Yes.

[98] With respect to the fourth point, that Dr. Booth failed to consider any other differential diagnosis to explain Philisha Sutherland’s clinical presentation on October 17, 2013, Dr. Brankston started out with the opinion that Dr. Booth was focused on a single diagnosis, intoxication, without considering anything else. Then Ms. Brannagan took Dr. Brankston to the transcript of Dr. Booth’s examination for discovery and walked him through how Dr. Booth examined Philisha and walked him through Dr. Booth’s assessment of Philisha. After this review, Ms. Brannagan suggested to Dr. Brankston that this review of what Dr. Booth did contradicts his conclusion that Dr. Booth failed to consider any other differential diagnosis, to which Dr. Brankston replied as follows,

A. Well, I think based on that – on her answer to that question 340, I would agree she’s saying on discovery that she considered all these possibilities.

Q. Can we agree that this question and answer demonstrates Dr. Booth did consider many other things in her differential diagnosis of this patient?

A. Fair enough.

Q. So, Dr. Brankston, can we agree that it was unfair of you to say that Dr. Booth did not consider other differential diagnosis?

A. It was my mistake.

[99] As to the fifth prong of Dr. Brankston’s opinion, that Dr. Booth failed to request a CT scan of Philisha’s head, Dr. Brankston admitted in cross-examination that in his report he commented on Philisha being dizzy but agreed that “I stated it incorrectly” in that he accepted that there is no documentation that Philisha was found to be dizzy while in the emergency department of the Sault Area Hospital on October 17, 2013. Dr. Brankston also agreed in cross-examination that in the initial assessment at 17:40, Philisha did not indicate that she had a headache, that the headache was first documented by Nurse Dinter at 19:10 and that there is no record of Philisha having a severe headache. When it was suggested to Dr. Brankston that the order for Tylenol, the moving of Philisha to a lower activity unit, permitting her to have food and drink would not be associated with a patient who had complained of a severe headache, Dr. Brankston responded that “I have no dispute with that”.

[100] I will comment in detail about the evidence of Dr. Brankston later in this judgment, but it is fair to say that when the cross-examination of Dr. Brankston was completed, there was not much left of his opinion.

Dr. Marco Sivilotti

[101] The defendant physician called Dr. Marco Sivilotti as an expert on the issue of the standard of care expected of an emergency room physician. The plaintiffs agreed that Dr. Sivilotti is qualified as an expert on the standard of care. The issue on the voir dire was whether Dr. Sivilotti could provide an opinion on the issue of causation, that is, when the stroke occurred. The ruling of the court on May 30, 2023 was although Dr. Sivilotti can opine on the investigation, diagnosis and course of action followed by Dr. Booth related to stroke given his experience and qualifications as an emergency room specialist, an opinion as to when the stroke occurred, that is on the causation issue, was better left to the evidence that can be given by a neurologist. The court qualified Dr. Sivilotti as an expert to provide opinion evidence in the following areas:

(a) Emergency medicine;

(b) Medical toxicology and on the standard of care an emergency room physician in Ontario in October 2013 and to give opinion evidence on the diagnosis, investigation and treatment of stroke in the emergency department as well as the diagnosis and management of intoxication in the emergency department.

[102] Dr. Sivilotti graduated from medical school at Queen’s University in 1988. He received his speciality in emergency medicine in 1994 and is U.S. board certified in emergency medicine and a fellow of the American College of Emergency Physicians since 1998. Dr. Sivilotti is a practicing emergency physician and is a full professor emergency medicine at Queen’s University in Kingston, Ontario. Dr. Sivilotti also completed training in medical toxicology at the University of Massachusetts, and since 2014, has been a fellow of the American College of Medical Toxicology. Dr. Sivilotti’s professional experience is in emergency medicine and medical toxicology. That involvement has spanned research, teaching and clinical medicine.

[103] It was Dr. Sivilotti’s evidence that as a practicing emergency room specialist he has had experience with the initial evaluation and management of stroke in the emergency department. He testified that almost every day he deals with this, although he pointed out that Philisha Sutherland had a vertebral artery dissection and cerebellar stroke, which are less common, and in fact rare with respect to vertebral artery dissection. These strokes, Dr. Sivilotti sees approximately once every five years as an emergency physician, whereas cerebellar strokes he sees approximately once a year.

[104] Dr. Sivilotti testified that the diagnosis and management of intoxication is more common than stroke in the emergency department. Dr. Sivilotti has experience with intoxication related to cannabis as an emergency room physician.

[105] Dr. Sivilotti indicated in his evidence that he prepared two reports, one dated February 6, 2018 (lettered Exhibit F), and one dated May 3, 2019 (lettered Exhibit G). Dr. Sivilotti testified that he reviewed the report of Dr. Edwin Brankston and heard his testimony at the trial and this did not change the opinion that he reached in this case. Dr. Sivilotti is of the opinion that “Dr. Booth decidedly met the standard of care of an emergency physician when dealing with this patient on October 17^th.”

[106] Dr. Sivilotti indicated that a CT scan taken when Philisha was re-admitted to the hospital on October 18, 2013 revealed that she had suffered an ischemic cerebellar stroke. Dr. Sivilotti testified that the signs a physician would expect to see in the emergency department with this type of stroke would be a disruption in the fluidity and natural movements, such as in the arms, eyes and speech muscles. An interruption of the cerebellar results in what is referred to as ataxia, which is a discoordinated and very irregular motion of the arms, legs, eye muscles and speech muscles. Dr. Sivilotti indicated that all of these things are incorporated in the front of the cerebellum, and they are all captured under the term ataxia. A disturbance of gaze is also looked for, that is the inability to track an object smoothly. An inability to coordinate speech is also looked for. Dysarthria is a loss of clear articulation in speech, an inability to coordinate speech. All of these things an emergency room physician would expect to see with the type of stroke that Philisha Sutherland suffered.

[107] The physician’s chart (Exhibit 1, Tab 4) was described by Dr. Sivilotti as “the contemporaneous physician medical record where observations and important findings are charted. It includes an opportunity for free text but also has an area where template could be used to tick off certain findings.” Dr. Sivilotti indicated in his evidence that clinical judgment is “very important” when completing these types of records. The physician’s chart provides insight as to how the physician is thinking and how their plan was formulated, and it provides some insight into what judgment was going on behind the scenes in any particular encounter. Dr. Sivilotti testified that his review of the history obtained by Dr. Booth indicates that it met the standard of care.

[108] As to Philisha’s vital signs while at the emergency department on October 17, 2013, Dr. Sivilotti describes them as “largely normal or minimally abnormal”. Dr. Sivilotti indicated that if a person was having a stroke, you expect raised or lowered blood pressure, depending on where the stroke was occurring. Philisha Sutherland did not display this, “In fact, her vital signs were almost entirely normal throughout the time. Every time they’re documented in the chart, they are well within normal limits or very close to being normal that would be of no particular significance.”

[109] Dr. Sivilotti testified that he reviewed the physical examination that Dr. Karen Booth conducted on Philisha Sutherland at the emergency department of the Sault Area Hospital on October 17, 2013. In doing so, Dr. Sivilotti reviewed the physician’s note (Exhibit 1, Tab 4) and Dr. Booth’s transcribed note (Exhibit 1, Tab 5). The examination, Dr. Sivilotti indicated was “what I consider to be a thorough assessment of multiple systems, including the neurological, but all through abnormal and so on, and this is, I must say consistent, expected and appropriate for this presentation.” Dr. Sivilotti testified that Dr. Booth’s neurological examination as discussed in the medical record based on the testimony at discovery was appropriate, sufficient and met the standard of care.

[110] Dr. Sivilotti described what Dr. Booth observed on her physical examination of Philisha and indicated that Philisha’s pupils were equal, round and reactive to light, and that “there is also implicit in the Glasgow Coma Scale an assessment of the eyes and these are open spontaneously.” Dr. Sivilotti also indicated that Dr. Booth’s “neurological exam included the fact that her pupils were not pinpoint or dilated. She had normal extraocular movements, no facial droop.” Dr. Sivilotti opined that if a patient was having a cerebellar stroke that you would expect to find abnormal gaze – the eyes would be deviated, there may be nystagmus. The pupils of the patient might not be equal, they might have too small a pupil or might have neck pain or neck stiffness. Dr. Sivilotti noted that these typical signs of a stroke were not present on Dr. Booth’s physical examination of Philisha Sutherland on October 17, 2013.

[111] Dr. Sivilotti testified that Dr. Booth’s physical examination of Philisha on October 17, 2013 included a neurological examination. Dr. Sivilotti indicated that “the neurological assessment actually begins from the moment one lays eyes on the patient. You examine their overall appearance, their level of consciousness, alterations of their consciousness, apply the Glasgow Coma Scale. See if the patient understands, if they can respond, if they are oriented.” As Dr. Sivilotti put it, “all these things require a functioning neurological system.” Dr. Sivilotti indicated that there is probably no such thing as a complete neurological examination. More often “the neurological assessment is that whole appearance and constellation of things that speak to a functioning nervous system.” Dr. Sivilotti went on to testify that “there is a long number of neurological exams that can be done and they are simply not done. What’s much more appropriate is to do a focused and appropriate neurological assessment, and that’s what we do in emergency medicine.”

[112] Dr. Sivilotti testified that the clinical judgment exercised by an emergency room physician in conducting the neurological examination was important. As he put it in his evidence, “I mean, there’s no point in examining a portion or do a manoeuvre if it seems to be highly unlikely to be contributing to any new information.” In Dr. Sivilotti’s view, the tests done by Dr. Booth ruled out a non-functioning cerebellum. Again, it was Dr. Sivilotti’s opinion that Dr. Booth met the standard of care in respect of the neurological examination she conducted of Philisha Sutherland.

[113] When asked in examination in-chief why he concluded that Dr. Booth’s neurological examination was appropriate in the absence of a gait assessment, Dr. Sivilotti responded as follows,

For two main reasons. The first is that a gait assessment is simply not required in the assessment of an intoxicated patient when they are being discharged to the company of their family. And the second is that having the other information from the rest of the assessment of the entire patient, including those aspects of the neurological exam that we talked about, the gait assessment would be unlikely to add any new information.

[114] Dr. Sivilotti testified that in the emergency department, “we rarely if ever do a gait assessment on patients that we suspect have a stroke.” Dr. Booth’s neurological examination found there was a lack of “hard neurological signs” and a “lack of overt and focal neurological deficits” that would warrant further investigation, such as a gait assessment.

[115] With respect to the blood work for Philisha Sutherland and, in particular, the elevated white blood cell count, Dr. Sivilotti agreed and acknowledged that “the first striking finding is how high her total white blood cell count is, and it consists mostly of neutrophils.” Dr. Sivilotti referred to this elevated white blood cell count as “an unexplained finding, it’s a very unusual finding, it’s quite high. Unfortunately, it’s a very non-specific finding as well, and it speaks to some systemic stress that could be from a number of things, including infection, but there are many other causes of an elevated white blood cell count. Generally, it speaks to inflammation somewhere and could be inhalation of noxious substances or repetitive vomiting. Although the white blood cell count was high, Dr. Sivilotti indicated in his evidence that “it isn’t by itself necessarily a significant finding.” Dr. Sivilotti was of the view that the white blood cell count was trending down and “that is generally a reassuring finding”. The drop in the readings was described by Dr. Sivilotti as considerable and more than a dilution, as was described by Dr. Bankston. Dr. Sivilotti testified that he could say with some confidence that if the white blood cell count was going down that it would continue to go down.

[116] Dr. Sivilotti further indicated in his evidence that he would not have expected the white blood cell test to be done a third time or repeated until it reached normal level. Dr. Sivilotti’s view was that this is not a requirement of practice or expected as a matter of standard of care.

[117] It was also Dr. Sivilotti’s view that an elevated white blood cell count is not used clinically as a predictor of stroke. As he put it in his evidence, “no one in emergency medicine looks at the white blood cell count as a sign of a stroke”.

[118] Dr. Sivilotti is an expert in toxicology. He described the condition known as hyperemesis, which is the adverse effect of habitual cannabis use where those who use this substance experience bouts of intractable vomiting, abdominal pain and anxiety. Hyperemesis can cause an elevated white blood cell count although it is interesting to note that Dr. Booth did not diagnose Philisha Sutherland with hyperemesis but rather with intoxication.

[119] With respect to Dr. Booth’s failure to order a CT scan for Philisha Sutherland on October 17, 2013, it was the opinion of Dr. Sivilotti that the failure to do so did not breach the standard of care expected by an emergency room physician. It was Dr. Sivilotti’s evidence that a CT scan would not be ordered for a patient who did not have a focal neurological finding. Dr. Sivilotti testified that “it would be against a standard of care to do a CAT scan in someone who is intoxicated, has a headache, has vomited but no focal neurological findings.”

[120] As to Philisha developing a headache during the course of the evening at the emergency department, Dr. Sivilotti found this to be normal, to be usual, and indicated that “a headache is a fairly common symptom.” Although this is true, Dr. Sivilotti indicated clearly that a headache is not a common symptom in an ischemic cerebellar stroke. Dr. Sivilotti agreed with the suggestion that the treatment of the headache with one gram of Tylenol suggested that it was thought to be a headache by itself as opposed to something more sinister.

[121] Dr. Sivilotti indicated that the clinical records indicate that Philisha Sutherland continued to improve from the moment that she arrived at the hospital. In Dr. Sivilotti’s view, the discharge instructions received by Philisha on her discharge from the hospital, “seem entirely appropriate with what is done day in and day out for such presentations.” As to Philisha’s discharge on October 17, 2013, Dr. Sivilotti testified that “this looks very consistent with the standard of care that is applied for similar presentations every day across Ontario’s emergency departments”.

[122] Dr. Sivilotti is of the opinion that given Philisha Sutherland’s presentation in the emergency department at the Sault Area Hospital on October 17, 2013, that Dr. Karen Booth’s discharge diagnosis of intoxication was the correct diagnosis. Intoxication was described by Dr. Sivilotti as meaning the adverse effects of drugs, so any sort of noxious or unpleasant adverse effect. Dr. Sivilotti was of the view that given Philisha’s presentation, the standard of care would not require investigation for a vertebral artery dissection on October 17, 2013. Dr. Sivilotti testified that without any focal neurological findings and in the absence of a history of trauma to the neck, “it would be impossible to identify that a stroke was what was going on with Philisha Sutherland on October 17, 2013.”

[123] In cross-examination, the issue of Philisha having the onset of a headache at 1900 hours on October 17, 2013 was explored. A headache was not reported when Dr. Booth conducted her first examination of Philisha at 1740 hours. Dr. Sivilotti disagreed with the suggestion that for the evaluation of the headache a careful neurological examination is mandatory, including gait and cerebellar testing. When the medical text Tintinalli (Exhibit B) page 1376 was put to Dr. Sivilotti, he indicated that the focus of that page was a patient who presents at the emergency department with a headache, and Philisha Sutherland was not at the emergency department because of a headache. Dr. Sivilotti testified that if the patient’s presenting complaint was a headache, more invasive testing such as testing for gait and cerebellar testing would be required.

[124] Dr. Sivilotti also disagreed with the suggestion put to him in cross-examination that if there is a headache and difficulty walking that a CT scan should have been ordered.

[125] Not surprisingly, a fair amount of time was spent in cross-examination about Dr. Booth’s failure to do a gait assessment on Philisha Sutherland. Dr. Sivilotti indicated that he agreed with the observations made on page 1383 in the medical text Tintinalli that the goal of a neurological examination is to localize the central nervous system lesion and to exclude other neurological disease processes. Dr. Sivilotti’s position is that not all neurological demands are necessarily tested every time. Dr. Sivilotti pointed out as an example that sensation neglect is often a test that is not performed. The portion of the text in Tintinalli that indicates that cerebellar function is tested by observing a patient’s gait, finger to nose, and heel to shin testing was referred to Dr. Sivilotti. In his evidence, Dr. Sivilotti indicated that those are ways to test for cerebellar functioning but that they are not the only ways to test for it. Dr. Sivilotti disagreed that where a patient presents with dizziness, nausea, vomiting and a headache, that a neurological examination is required, including a gait assessment. Dr. Sivilotti testified that “I would also say, if I may, that patients who are assessed for stroke are not asked to do a gait. Assessment with a stroke patient does not include gait.” Dr. Sivilotti also pointed out that gait disturbances are caused by posterior circulation stroke, which is not what Philisha Sutherland had when she presented to the hospital on October 18, 2013. Ataxia is consistent with posterior circulation strokes.

[126] In his evidence, Dr. Sivilotti was clear concerning his views about a gait assessment not being done by Dr. Booth, “the neurological exam that was done was consistent and appropriate for what should be done for a patient who presents with symptoms related to drug intoxication. And the story in a 27-year-old to have a dissection followed by a cerebellar infarct is so extremely rare, I can’t agree with, you know, this notion that she had to walk and do all sorts of higher level neurological tests than what was done.” Dr. Sivilotti testified that if a patient arrives at the hospital with a gait disorder you do other neurological tests, but just because you are doing a neurological exam does not imply you need to do a gait assessment. Dr. Sivilotti strongly disagreed with Dr. Brankston that an adequate neurological examination requires a gait assessment.

[127] Dr. Sivilotti was asked in cross-examination, “You can’t decide, just because the symptoms fit with marijuana use, that it means the patient doesn’t have a stroke when they come in with vomiting, headache, dizziness, difficulty walking, nausea”, to which Dr. Sivilotti replied, “You can if they have no focal or hard neurological findings, yes, you can. That’s precisely the point here.”

[128] In his evidence, Dr. Sivilotti noted that a gait disturbance is not equivalent to ataxia. His evidence was that a gait disturbance is a weak predictor of a cerebral ischemia. Dr. Sivilotti testified that needing assistance going to the bathroom or needing help getting into a wheelchair to go home is different from an ataxic gait, which is one where there is falling from side to side or being unable to coordinate the legs being put in front of each other.

[129] Dr. Sivilotti also emphasized in his testimony the rarity of strokes in a 27-year-old person, “Strokes in a 27-year-old are extremely uncommon. An emergency physician might never see a stroke in a 27-year-old after 20 years of practice.”

[130] It was the evidence of Dr. Sivilotti that if Philisha Sutherland had true ataxia that the choice of an MRI rather than a CT scan would have been the better choice “because a CT scan is so poor at imaging the posterior fossa.” Dr. Sivilotti agreed that in an acute focal dysfunction some form of advanced neuroimaging would be warranted. Dr. Sivilotti agreed with the suggestion that the risk of doing a CT scan for Philisha Sutherland on October 17, 2013 was low but added “It just wasn’t indicated. Even that low risk is - when there’s no offer of benefit, I would not do it.” Dr. Sivilotti amplified his evidence on the CT scan in stating, “I’m of the opinion that the likelihood of a large cerebellar stroke that would show up on a CT scan is so close to zero that the risk of CT imaging was not warranted.”

DISCUSSION/ANALYSIS ON STANDARD OF CARE

[131] The standard of care expected of an emergency room physician is not within the common knowledge of the trier of fact. That is why expert witnesses who can provide their opinion to assist the court is so crucial in this type of case. The evidence of Dr. Karen Booth and Nurses Provenzano and Dinter provided the court with information about what was done and what was not done in the treatment of Philisha Sutherland when she was a patient at the Sault Area Hospital on October 17, 2013. The charts and records, filed as Exhibit 1, also provide the court with details of the treatment received and the course of action followed during Philisha’s stay at the hospital on October 17, 2013. This testimony and the charts and records from the Sault Area Hospital on October 17, 2013 provide a framework for the two experts called at the trial as to the standard of care. Dr. Marco Sivilotti is of the opinion that the standard of care expected by an emergency room physician was markedly met by Dr. Karen Booth in her treatment and course of action followed as it relates to Philisha Sutherland. Dr. Edwin Brankston has the opposite view. His conclusion is that Dr. Karen Booth fell below the standard of care expected of an emergency physician as it relates to Philisha Sutherland in her stay at the Sault Area Hospital on October 17, 2013.

[132] Dr. Brankston’s opinion is based on five pillars or reasons why he concludes that Dr. Booth failed to meet the standard of care. Dr. Brankston’s opinion is based on the following five conclusions reached by him:

(i) that Dr. Booth failed to investigate the significantly elevated white blood cell count of 31,600;

(ii) that Dr. Booth incorrectly concluded the patient’s presentation on October 17, 2013 was consistent with marijuana intoxication;

(iii) that Dr. Booth failed to perform a through and acceptable neurological examination because she did not carry out a gait assessment;

(iv) that Dr. Booth failed to consider any other differential diagnosis to explain the patient’s clinical presentation on October 17, 2013; and

(v) that given the patients clinical presentation of neurological symptoms, Dr. Booth failed to request a non-contrast CT scan of the patient’s head.

[133] In examination in-chief the five aforementioned factors were discussed in detail and amplified upon by Dr. Brankston. The cross-examination of Dr. Bankston by counsel Brieanne Brannagan centered on and focused on these five factors on which Dr. Brankston based his conclusion that Dr. Booth failed to meet the standard of care. Ms. Brannagan skillfully used her cross-examination like a surgeon’s scalpel, slicing away the basis for Dr. Brankston’s opinion until there was nothing left but barebone, without any flesh on the opinion and without any support for it. Dr. Brankston’s opinion is based on many erroneous facts, which he admitted he was in error on during cross-examination. Dr. Brankston was under the erroneous understanding that Dr. Karen Booth only assessed Philisha twice, the last time being at her discharge on October 17, 2013, when in fact Dr. Booth assessed Philisha five times while she was at the Sault Area Hospital on October 17, 2013. Dr. Brankston had to admit this error when confronted with this on cross-examination. Dr. Brankston took the position that Dr. Booth did not inquire into the respiratory, abdominal, or urinary condition of Philisha. After Dr. Booth’s dictated notes were put to Dr. Brankston in cross-examination, he admitted that his criticism of Dr. Booth on this point was unfair and unfounded given what was in Dr. Booth’s dictated notes. Another error by Dr. Brankston. Dr. Brankston missed the evidence of Donna Sutherland and Earle Sutherland that they were told by Philisha that she had not used drugs for three days prior to October 17, 2013. Another error by Dr. Brankston.

[134] In interpreting the ambulance report that the paramedics who attended with Philisha Sutherland had slurred speech, Dr. Brankston was in error again. The fact is that the history section of the ambulance report indicated slurred speech, which was reported by Philisha’s parents, but the paramedics who dealt with Philisha directly did not observe slurred speech. Dr. Brankston attempted to defend his position by referring to this as “splitting hairs”, that essentially was of no consequence. My view is that it is of consequence as Dr. Brankston was basing his opinion, in part, on the paramedics observing slurred speech in Philisha which was not factual. Either Dr. Brankston was sloppy in his read of the ambulance report or he does not know how to read an ambulance report. Either scenario is concerning.

[135] Dr. Brankston misinterpreted part of Dr. Booth’s examination for discovery in erroneously believing that Nurse Provenzano reported to Dr. Booth that Philisha was suffering from marijuana intoxication. When he was confronted with this error, Dr. Brankston acknowledged that he was mistaken, as he put it in his evidence, “my mistake there”. Another error by Dr. Brankston.

[136] It was Dr. Brankston’s opinion that Dr. Booth did not examine Philisha Sutherland’s cerebellar function while she was at the Sault Area Hospital on October 17, 2013. This proved to be another erroneous conclusion reached by Dr. Brankston. Dr. Brankston agreed that in having Philisha move her limbs and in assessing her speech and in testing for the presence or absence of nystagmus, that these involved tests completed by Dr. Booth to assess the cerebellar functioning of Philisha Sutherland. This evidence reflects that Dr. Brankston was in error in concluding that Dr. Booth did not conduct examinations which assessed the cerebellar functioning of Philisha Sutherland.

[137] Another basis for Dr. Brankston’s conclusion that Dr. Karen Booth failed to meet the standard of care was Dr. Brankston’s view that Dr. Booth failed to consider any other differential diagnosis, other than intoxication, in her assessment of Philisha Sutherland. During cross-examination, Dr. Brankston acknowledged that he was wrong in this conclusion. After he was walked through the examination conducted of Philisha by Dr. Booth, he was forced to acknowledge that Dr. Booth did consider many other things in her differential diagnosis of Philisha, and when asked if it was unfair of him to say that Dr. Booth did not consider other differential diagnoses, Dr. Brankston’s response was “it was my mistake”. The failure to consider differential diagnoses was a huge basis for the overall conclusion reached by Dr. Brankston that Dr. Booth failed to meet the standard of care and he had to admit that he was in error with respect to this.

[138] Dr. Brankston was in error in concluding in his report that Philisha was dizzy and acknowledged in cross-examination that “I stated it incorrectly” and that there was no documentation that Philisha was found to be dizzy while in the emergency department of the Sault Area Hospital on October 17, 2013. Again, another error acknowledged by Dr. Brankston in his evidence during cross-examination. Dr. Brankston acknowledged that the medication prescribed for Philisha with respect to her headache was consistent with a low grade headache and not with a severe headache.

[139] I was not impressed by what was left of Dr. Brankston’s opinion after cross-examination was completed. It is fair to state that Dr. Brankston’s report and opinion was unravelled to a great extent during cross-examination and the court was left with no confidence in the conclusions reached by Dr. Brankston or his opinion that Dr. Karen Booth did not meet the standard of care expected by an emergency room physician on October 17, 2013.

[140] If the only evidence the court had was the evidence of Dr. Brankston on the standard of care, the court would conclude that there was no evidence of a breach of the standard of care that the court could rely on in this case and the action would have to be dismissed. However, Dr. Brankston’s evidence is not the only evidence that the court has on the standard of care. The court also has the evidence of Dr. Marco Sivilotti. I have reviewed the evidence of Dr. Sivilotti in detail in the preceding paragraphs of these reasons and I do not intend to repeat this. Whereas Dr. Brankston’s evidence and opinion was significantly called into question during cross-examination, the same cannot be said for Dr. Sivilotti who was cross-examined at length on his reports and opinion and his opinion was not shaken during cross-examination. It was obvious from the way that Dr. Sivilotti gave his evidence that he was extremely knowledgeable with respect to emergency medicine and toxicology. It is fair to say that Dr. Brankston practiced emergency medicine on a part time basis whereas Dr. Sivilotti has immersed himself in emergency medicine fully and completely since graduating from medical school. Dr. Sivilotti has experience and expertise in toxicology. Dr. Brankston has no such experience or expertise. It is easy to conclude after hearing the evidence of both Dr. Brankston and Dr. Sivilotti and in reviewing their experience and backgrounds that as an expert witness, Dr. Sivilotti is of an appreciably better calibre than Dr. Brankston. Dr. Sivilotti was very confident in his evidence and the opinions that he reached and this confidence was not shaken or disturbed during cross-examination. The same cannot be said for Dr. Brankston. Dr. Sivilotti described the basis for his conclusions in a clear and confident manner. He was fair and balanced in his evidence. I would describe Dr. Sivilotti as a textbook expert witness. He had complete control of the cross-examination and was extremely impressive. Dr. Sivilotti’s presentation in his evidence was smooth, not disjointed. I would describe Dr. Sivilotti as being as smooth as fine Italian silk.

[141] I accept the evidence of Dr. Marco Sivilotti and prefer his evidence over the evidence of Dr. Edwin Brankston. The conclusions reached by Dr. Brankston and the foundations for the opinion reached by him are so replete with errors, misinterpretations and misunderstandings, as acknowledged by him in his evidence, that little weight can be given to the opinion that he provided to the court. It would be dangerous, even on a balance of probabilities, for the court to accept the evidence of Dr. Brankston to conclude that Dr. Karen Both failed to meet the standard of care expected of an emergency physician on October 17, 2013.

[142] Much time was spent at this trial on the issue of gait assessment and the failure of Dr. Karen Booth to examine the gait of Philisha Sutherland. On this issue, I accept the evidence of Dr. Sivilotti that Philisha Sutherland had no “hard neurological signs” pointing to any neurological defects that would require a gait assessment. Dr. Sivilotti was of the view that a gait assessment was not necessary and would unlikely add any new information to the examination by Dr. Booth which revealed no neurological concerns with Philisha Sutherland. Dr. Booth provided her evidence as to why she did not do a gait assessment. Plaintiffs’ counsel suggested that Dr. Booth did not perform a gait assessment because she erroneously believed that Philisha had walked on her own to the bathroom but the timing of this would have been long after the initial examination of Philisha at 17:40 p.m. after which Dr. Booth concluded that Philisha presented with no neurological abnormalities. I accept the explanation provided by Dr. Booth as to why she did not do a gait assessment on Philisha Sutherland which was that her neurological examination was coordinated without concern and that her experience was that “when the cranial nerves, mental status, sensation and motor examination are normal, then the gait assessment would not in my practice or experience ever be just solely abnormal, when the other facets are all normal”. It was the evidence of Dr. Sivilotti that Dr. Booth did not breach the standard of care expected by an emergency physician in not having a gait assessment performed. Dr. Sivilotti went on to opine that in the emergency department “we rarely if ever do a gait assessment on patients that we suspect have a stroke”. It was Dr. Sivilotti’s view that Dr. Booth’s neurological examination of Philisha revealed no “hard neurological signs” and a “lack of overt and focal neurological deficits” which warrant further investigation, such as a gait assessment. I accept Dr. Sivilotti’s assessment on this point.

[143] Another area that a great deal of time was spent was Philisha’s elevated white blood cell count. The evidence before me reveals that an elevated white blood cell count is usually an indication of an infection or inflammation and is not usually an indication of a stroke in a patient. As Dr. Sivilotti put it in his evidence an elevated white blood cell count is not used clinically as a predictor of a stroke. As he put it in his evidence, “no one in emergency medicine looks at the white blood cell count as a sign of a stroke”. Both Dr. Booth and Dr. Sivilotti found comfort in the fact that Philisha’s white blood cell count was trending downward. Ultimately, Philisha Sutherland died of a stroke, not as a result of an untreated infection.

[144] As to the failure of Dr. Booth to order a CT scan, it was her evidence that this testing was not warranted given the negative neurological findings and the overall presentation of Philisha at the emergency room of the Sault Area Hospital on October 17, 2013. This view is supported by Dr. Sivilotti who opined that this type of imaging would not be ordered for a patient who did not have a focal neurological finding. Not only did Dr. Sivilotti conclude that the failure to order a CT scan did not breach the standard of care expected by an emergency physician, he went on to testify that “it would be against the standard of care to do a CT scan on someone who is intoxicated, has a headache, has vomited but no focal neurological findings”.

[145] Nurses Provenzano and Dinter provided evidence of what they did in treating Philisha Sutherland in the emergency department at the Sault Area Hospital on October 17, 2013. Nurse Provenzano was involved with Philisha’s care for less than two hours on October 17, 2013. His observation was that Philisha’s condition had not improved by the time his shift ended at 7:00 p.m. The clinical notes and records (Exhibit 1) do indicate that Philisha’s condition did improve over the course of the evening and certainly after 7:00 p.m. on October 17, 2013. Although it was Nurse Provenzano’s view that Philisha was not suffering from intoxication, it was also his view that whatever was making Philisha ill, it was not a stroke. When his shift ended, Nurse Provenzano did not believe that Philisha Sutherland was having a stroke.

[146] Nurse Dinter was involved in the care of Philisha from 17:00 hours until her discharge from hospital at 23:20 hours, a number of hours longer than Nurse Provenzano cared for Philisha. Nurse Dinter testified at the time of Philisha’s discharge from hospital on October 17, 2013, that she had no concerns about a headache, no concerns about her ability to speak, and no concerns about Philisha’s ability to open her eyes. As with Nurse Provenzano, Nurse Dinter did not think that Philisha Sutherland was having a stroke on October 17, 2013. As Nurse Diner put it in her evidence, “I had no concerns that Philisha was suffering a stroke while she was under my care.”

[147] As supported by the evidence, the fact is that no health care professionals that were involved with Philisha on October 17, 2013, observed signs that she was suffering a stroke or had any neurological deficits that would point to any concern about a stroke. The paramedics who transported Philisha from her home to the Sault Area Hospital did not record any information that would point to Philisha having the signs of a stroke. In fact, the notation on the ambulance report (Exhibit 1) makes a reference to “no apparent neuro deficits”. At the hospital, both Nurse Provenzano and Dinter observed no signs in Philisha that made them conclude that she was having a stroke. In fact, it was their conclusion that Philisha was not having a stroke. Dr. Booth saw no signs that Philisha was having a stroke. Her physical examination of Philisha did not indicate any neurological deficits or anything that would indicate that Philisha was having a stroke. All of this is borne out by the clinical notes and records, the charting (Exhibit 1), and the viva voce evidence of the health care professionals that treated Philisha and were involved in her care on October 17, 2013. There was no slurred speech, no facial drooping, no ataxia, no nystagmus – no signs that would normally be present if a patient were suffering a stroke.

[148] It is true that Donna Sutherland testified that when she found Philisha at home on October 17, 2013, at approximately 3:45 p.m., that Philisha was slurring her words, that her eyes were “rolling back in her head”, and that she had a “major headache”. Philisha’s father, Earle Sutherland, did not report similar observations to the court, only that Philisha was “disoriented” and that she could not stand up by herself. Both Donna and Earle Sutherland felt that Philisha’s condition was worse on October 18, 2013 than it was on October 17, 2013. Philisha’s aunt, Judy Courtier, also testified that while at the hospital, Philisha was slurring her words, that her eyes were glossy and that she was repeating over and over again that her head was really sore. None of these observations are supported by the medical professionals that observed and treated Philisha at the Sault Area Hospital on October 17. 2013. No medical professional observed Philisha to be slurring her words. No medical professional observed Philisha to have trouble communicating. No medical professional observed anything wrong with Philisha’s eyes, her gaze, or her ability to follow movements. No medical professional observed Philisha’s eyes to be rolling back in her head. No medical professional observed Philisha to have the type of headache described by Donna Sutherland and Judy Courtier. When Philisha did report a headache at 19:00 hours, what was prescribed to her was treatment consistent with a normal to moderate headache, and nothing with the severity of the headache described by Donna Sutherland or Judy Courtier. In fact, Philisha herself never described her headache as being ongoing or severe, or on the scale indicated by Donna Sutherland and Judy Courtier in their evidence. Even if I accepted that Philisha had the symptoms described by Donna Sutherland when she was at home on October 17, 2013, these symptoms did not exist while she was at the hospital on October 17, 2013. The medical evidence and the documentary evidence (Exhibit 1) points to this fact.

[149] I have difficulty accepting entirely the evidence of Donna Sutherland and Judy Courtier. There are problems with their evidence. Donna Sutherland testified that throughout the evening of October 17, 2013, she was in Philisha’s room the entire time except for approximately ten minutes to have a cigarette, but it is also her evidence that the defendant Dr. Booth did not come into Philisha’s hospital room except to discharge Philisha. We know from the hospital records (Exhibit 1) and the testimony of others that this was not the case. Dr. Booth was in Philisha’s room and observed her on five occasions on October 17, 2013. Donna Sutherland would not accept this fact when pressed in cross-examination indicating that “I didn’t see her and I was in that room.” Donna Sutherland would not even accept the suggestion that she may not recall the number of times Dr. Booth as in the room because she couldn’t recall. Donna Sutherland’s response to that suggestion was “I recall and I have never seen that woman”, referring to Dr. Karen Booth. Donna Sutherland did not recall urine or blood samples being taken from Philisha while she was at the Sault Area Hospital on October 17, 2013, although the medical records clearly indicate that blood and urine samples were taken. It was the evidence of Donna Sutherland that there was no nurse present when Philisha was discharged from the Salt Area Hospital on October 17, 2013, but it was the evidence of Nurse Dinter that she was present at the time of discharge and would have to do things to get Philisha ready to be discharged from hospital, such as disconnecting her intravenous line. Donna Sutherland can offer no explanation why the paramedics would not record that Philisha had a headache when that information was provided to them by her.

[150] It was clear in the comments made by Donna Sutherland that she has a distinct dislike for Dr. Karen Booth. It is understandable that Mrs. Sutherland would be looking to find an explanation for the tragic death of her daughter and would be looking to try to find a reason, but also someone to blame for it. I am concerned that Donna Sutherland’s pursuit of these objectives may have clouded her recollection of events or slanted her evidence in favour of a conclusion that Dr. Booth is responsible for the death of her daughter.

[151] As with the evidence of Donna Sutherland, Judy Courtier testified that she “never saw Dr. Booth that day”, indicating that she was in Philisha’s room all the time in suggesting that Dr. Booth never came to Philisha’s room to observe, assess, and examine her. We know from the totality of the evidence involving the medical records that this is not true. Ms. Courtier does not recall bloodwork or a urine sample being taken from Philisha while she was at the Sault Area Hospital on October 17, 2013. We know from the medical evidence such samples were taken from Philisha and results provided to the medical professionals who were treating her. It was Judy Courtier’s evidence that Dr. Booth was not present at or before Philisha’s discharge from hospital and that no nurse was involved in Philisha’s discharge from hospital. We know from the evidence of Dr. Booth, Nurse Karen Dinter and the medical charts and records that these assertions by Judy Courtier are not true. It was the testimony of Judy Courtier that when she arrived home after being in the emergency room at the Sault Area Hospital on October 17, 2013, that Earle Sutherland helped lift Philisha out of the truck and get her inside the Sutherland home. This is in direct conflict with the evidence of Earle Sutherland who testified that he went to bed and does not remember Philisha coming home from the hospital on October 17, 2013. Incidentally, I might add that I do not have the same difficulty with the evidence of Earle Sutherland that I do with the evidence of Donna Sutherland and Judy Courtier. I did not find that Earle Sutherland had an agenda in his evidence or that it was slanted in a self-serving manner. I found that Mr. Sutherland gave his evidence in a forthright and thoughtful manner and that he was careful with the truth.

[152] Having considered all of the evidence and for the aforementioned reasons, I find that the defendant, Dr. Karen Booth, did not breach the standard of care expected of an emergency physician on October 17, 2013. The action against the defendant, Dr. Karen Booth, is dismissed on this basis.

ANALYSIS OF CAUSATION

[153] Although my finding on the issue of standard of care does not require me to comment on the issue of causation, I wish to add that if I am incorrect regarding the standard of care, I also find that the plaintiffs have failed to prove causation. The plaintiff must show on a balance of probabilities that “but for” the defendants negligent act, the death of Philisha Sutherland would not have occurred. The Supreme Court of Canada in Clements v. Clements, 2012 SCC 32 addressed the issue of causation in para. 8 as follows,

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities having regard to all the evidence, her action against the defendant fails.

[154] On the issue of causation, the court had the benefit of the expert opinion evidence of Dr. Bryan Young and Dr. David Spence, both neurologists. Dr. Young was called by the plaintiffs and Dr. Spence was called by the defendant. It was the opinion of Dr. Young that Philisha Sutherland suffered a stroke on October 17, 2013, and that stroke was not detected by Dr. Booth which ultimately resulted in Philisha’s death on October 18, 2013. Dr. David Spence has a contrary view. He is of the opinion that Philisha did not have a stroke on October 17, 2013, and that Dr. Booth could not detect what Philisha did not have. It is Dr. Spence’s opinion that Philisha’s stroke did not occur until October 18, 2013.

[155] Both Dr. Young and Dr. Spence are experienced neurologists. As far as experience and recognition is concerned, it is not unfair to conclude that Dr. Spence has the advantage. The primary focus of Dr. Young throughout his career has ben epilepsy. The primary focus of Dr. Spence in his career has been stroke and the prevention of stroke. Dr. Spence has published extensively on this subject, having written over 600 peer reviewed publications and a book for the general public titled “How to Prevent Your Stroke”. Dr. Spence is recognized not just nationally but internationally as an expert in stroke and stroke prevention. This fact was recognized by Dr. Young who acknowledged that Dr. Spence has more extensive experience than him in treating, researching and writing about patients with stroke.

[156] From the evidence it was clear that Dr. Young based his opinion that Philisha Sutherland suffered an ischemic stroke of the vertebrobasilar system on October 17, 2013 on certain assumptions that in fact did not exist or were misinterpreted by him. He relied more on the information from family members about Philisha’s condition prior to her arrival at the hospital than he did on the clinical record of Philisha’s stay at the hospital. Some of the information relied upon by Dr. Young to reach his conclusions in his report dated July 11, 2019, were clearly erroneous. Dr. Young had Philisha collapsing on the bathroom floor at home. In none of the records does it indicate that Philisha “collapsed” on the bathroom floor at her home. When this error was pointed out to Dr. Young in cross-examination, his response was “No – pardon me – I suppose it was an assumption on my part that she was on the floor and that she collapsed or deliberately went down on the floor.” Dr. Young had Philisha rarely opening her eyes because her headache was so bad and having slurred speech throughout her stay at the hospital. Dr. Young assumed the development of a severe headache. Dr. Young assumed persistent inability of Philisha to stand or walk from 1:30 to 23:00 hours. Dr. Young assumed persistent slurred speech. Dr. Young assumed that Philisha was vertiginous while in the hospital. Dr. Young assumed that Philisha was ataxic while at the hospital. None of these assumptions that Dr. Young relied upon in preparing his July 11, 2019 report or in concluding that Philisha Sutherland had a stroke on October 17, 2013 are borne out by the clinical records concerning Philisha’s stay at the Sault Area Hospital on October 17, 2013.

[157] On page 4 of his July 11, 2019 report (Exhibit M), Dr. Young states that “according to Ms. Sutherland’s mother, Donna Sutherland, Philisha had persistent headache and slurred speech during her stay in ER.” Dr. Young goes on to say on page 4 of his report that “I see no reason to doubt/discount the testimony given by Donna Sutherland, who obviously knew her daughter extremely well.” Again, Dr. Young relies on information that is not only not supported by the medical record from Philisha’s stay at the Sault Area Hospital, but is directly contrary to what is in that medical report.

[158] In his evidence, Dr. Young resisted agreeing with obvious or reasonable suggestions put to him. For example, he refused to agree with the suggestion that the orders given for Philisha’s headache (Tylenol) is not consistent with orders for someone who reported a major headache. To this suggestion put to him in cross-examination, Dr. Young responded, “I’m not sure. I think she – Dr. Booth thought she was capable of eating or drinking, although I don’t think Philisha actually did eat or drink, except for the Tylenol.” To his credit, Dr. Young did agree with the suggestion that with a large cerebellar stroke you would not expect to see Philisha’s symptoms improve over the ten hours subsequent to 1:30 p.m. The clinical records (Exhibit 1) confirm that Philisha’s condition and symptoms did in fact improve during her stay at the Sault Area Hospital on October 17, 2013.

[159] As with Dr. Brankston, Dr. Young appeared to be confused about how to read an ambulance report. Dr. Young believed that the paramedics observed slurred speech in Philisha but in fact this is in the incident history portion of the ambulance report and not what the paramedics observed during their interaction with Philisha. Dr. Young conceded this error during his cross-examination.

[160] As with Dr. Brankston, Dr. Young was in error as to how many times Dr. Booth spoke to Philisha Sutherland during her stay in hospital. Dr. Young indicated in his report that Dr. Booth only spoke to Philisha once prior to her discharge from hospital when in fact Dr. Booth was involved with Philisha a total of five times from the time she was admitted to the Sault Area Hospital on October 17, 2013 until the time that she was discharged from hospital.

[161] Although he relied on comments by Donna Sutherland over the documented evidence in the medical reports, Dr. Young conceded in cross-examination that there may be reasons to doubt the accuracy of “some” of the recollections of Donna Sutherland.

[162] In cross-examination, Dr. Young agreed that there is no evidence of trauma or a fall related to Philisha Sutherland on October 17, 2013, but that there is clear evidence of Philisha suffering significant trauma on October 18, 2013. The following question was put to Dr. Young: “Q. So, I’ll put it to you, Dr. Young, that with Philisha having suffered the significant injuries we knew she did on October 18^th, that this is the kind of trauma that could certainly cause a vertebral artery dissection, right?” To which Dr. Young replied, “Potentially, yes.”

[163] The defendant was critical of Dr. Young’s report and evidence for not paying enough attention to the medical record, preferring the evidence and information from collateral sources, such as Donna Sutherland. The plaintiffs were critical of Dr. David Spence for paying too much attention to the medical record and not enough attention to collateral sources. Dr. Spence was very clear in his evidence that he only considered the medical record. As he put it in cross-examination, “I’m basing my opinion on what I see in the medical record and not what Donna Sutherland said unless it is corroborated in the medical record.”

[164] If I had to make a choice, I would prefer an opinion based on the medical documentation and how Philisha Sutherland presented at the Sault Area Hospital over an opinion which relied on information from collateral sources, some of which has proved to be inaccurate and all of it is not supported by what the health care professionals observed in their interactions with Philisha Sutherland at the Sault Area Hospital.

[165] Dr. Spence was firm and certain in his opinion. This was not shaken in cross-examination. Dr. Spence’s opinion is that Philisha Sutherland had not suffered a stroke prior to her discharge from hospital on October 17, 2013. As Dr. Spence stated in his evidence, “She did not have symptoms or signs that would indicate the presence of a stroke. Her neurological exam was essentially normal. The only symptoms she had were weakness, nausea, vomiting and diarrhea.” Dr. Spence went on further to indicate that all the findings reported by Dr. Booth in testing done by her on October 17, 2013 indicate that Philisha Sutherland was not having a stroke.

[166] As with Dr. Bryan Young, Dr. David Spence was asked about the trauma that Philisha Sutherland suffered on October 18, 2013. With respect to this on page 3 of his report, Dr. Spence states that, “Given the evidence of recent trauma, and the location of the thrombus in the vertebral artery (originating in the C1 level) on the balance of probabilities it is most likely the cerebellar infarction was caused by vertebral artery trauma that occurred after Ms. Sutherland was discharged from the emergency department on October 17, 2013.” Dr. Spence amplified this in his viva voce evidence at trial indicating that his opinion is that Philisha suffered a vertebral artery injury on the 18^th. Dr. Spence testified that, “I think that’s the most likely explanation for her presentation and progression based on the lump on the forehead and the location of the clot at C1.”

[167] On the issue of causation, I prefer the evidence of Dr. David Spence over the evidence of Dr. Bryan Young. Dr. Spence is more qualified to give an opinion on stroke. He is internationally recognized as an expert on stroke and stroke prevention. Dr. Young’s area of experience and expertise is primarily in epilepsy. Dr. Young’s opinion is based to a large extent on collateral information, which has been proved to be unreliable to some extent. Dr. Young’s opinion is based on many assumptions which are in fact erroneous. Dr. Spence was firm, definite and confident in his opinion. The evidence of Dr. Spence was not called into question during cross-examination. The same cannot be said for Dr. Young. The plaintiffs allege that Dr. Spence is biased. I did not find him to be biased. I found him to be unshakable and confident in his opinion. There is a difference.

[168] Both Dr. Young and Dr. Spence were examined on the trauma suffered by Philisha Sutherland on October 18, 2013. The trauma was described by both of them as significant. The Sutherland home was found to be ransacked, with items of furniture overturned and closet doors off the hinges. Philisha was found injured on October 18, 2013, with cuts, bruises, and a large goose egg type of bruise on her forehead. It is noted by Dr. Ip in his emergency note dated October 18, 2013, that “of significance there are a large number of bruises on her forehead, shoulder, her left knuckle and her right and left knee” (Exhibit 1, Tab 15). How Philisha sustained these injuries remains a mystery. This has never been explained or investigated. Given the overall improvement in Philisha’s condition on October 17, 2013, compared with the state her parents found her in on October 18, 2013, my view is that it is more likely than not that Philisha suffered trauma to her body that led to the stroke on October 18, 2013. I am of the view that Dr. David Spence’s opinion about that makes a great deal of sense.

[169] For all of the aforementioned reasons, I find that the plaintiffs have not met their burden in proving causation and that the action against Dr. Karen Booth fails on this ground as well.

DAMAGES

[170] The claim for damages is brought by the plaintiffs under section 61 of the Family Law Act, R.S.O. c. F.3. Donna Sutherland and Earle Sutherland are the parents of Philisha Sutherland. Jonathan Sutherland is Philisha’s brother, and Clifford Sutherland is Philisha’s grandfather who died four and a half years after Philisha’s death. Although the claim against the defendant is dismissed, I wish to comment briefly on the issue of damages. Given the totality of the evidence led at the trial, including the relationship that the plaintiffs had with Philisha and considering the jurisprudence with respect to section 61 claims, I would assess the damages as follows:

Donna Sutherland $75,000.00

Earle Sutherland $75,000.00

Jonathan Sutherland $40,000.00

Clifford Sutherland $20,000.00

CONCLUSION

[171] The plaintiffs’ claim, in its entirety is dismissed.

[172] If a breach of the standard of care and causation had been established, the plaintiffs would have been entitled to a global award of damages totalling $210,000 broken down among the plaintiffs as indicated in the previous paragraph.

[173] I reach this conclusion with sympathy and sensitivity to the loss suffered by the Sutherland family. Philisha was a vibrant person with much of her life ahead of her. She was a valued family member and had a close, loving relationship with her parents, her brother, and her Grandfather. The natural order of things is disturbed when a child dies before their parents. The pain of the Sutherland family remains and this was obvious when Donna, Earle, and Jonathan testified at the trial. I am certain that Donna, Earle, and Jonathan still believe that Dr. Karen Booth is responsible for the death of Philisha but this is not borne out by the evidence or the application of the law. I can only wish for the Sutherland family that they can find peace even if they are unable to find acceptance.

COSTS

[174] The parties are urged to agree on costs. If the parties are not able to agree on costs by February 8, 2024, then the court will receive written submissions on the issue of costs. The defendant’s submissions will be due by February 22, 2024, and the plaintiffs’ submissions will be due by March 7, 2024. There shall be no right of reply. The written submissions are to be no longer than five typed pages, excluding bills of costs.

Gareau J.

Released: January 8, 2024

COURT FILE NO.: 26898/15

DATE: 2024-01-08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DONNA SUTHERLAND, EARLE SUTHERLAND, JONATHAN SUTHERLAND and CLIFFORD SUTHERLAND

• and -

KAREN BOOTH

REASONS FOR JUDGMENT

Gareau J.

Released: January 8, 2024