COURT FILE NO.: CV-16-382 (Belleville)

DATE: 20240903

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ASHLEY GUMBLEY by her litigation guardian Jessie Gumbley, MORGAN McCAFFERY by her litigation guardian Jessie Gumbley, SAVANNAH EDWARDS by her litigation guardian Jessie Gumbley, JAYDEN GUMBLEY by her litigation guardian Jessie Gumbley, JESSIE GUMBLEY, and REGINALD GUMBLEY

Plaintiffs

– and –

DENISE MARIE VASILIOU

Defendant

Paul Harte, Kristian Bonn and Maria Damiano, for the Plaintiffs

Anne E. Spafford, Stephen W. Ronan and Monika K. Steger, for the Defendant

HEARD: 8-12, 22, 23, 29-31 January and

1-2 and 6 February 2024, at Belleville

REASONS FOR DECISION

Table of Contents

The Parties. 3

Ashley Gumbley. 3

Dr. Denise Vasiliou. 4

The Witnesses. 5

Overview of Facts. 5

Ms. Gumbley is Taken to Hospital 6

Admission to Intensive Care Unit 7

Ms. Gumbley is Intubated. 9

Dr. Warner Takes Over 10

Prior Hospital Attendances. 11

Issues. 11

1. Was Dr. Vasiliou Negligent?. 11

Law.. 11

Clinical Judgment 12

Hindsight 12

Degree of Risk. 12

Duty to Consult 12

Record Keeping. 12

Usual Practice. 13

Community-Based Hospitals. 13

Evidence. 13

Overview of Allegations that Dr. Vasiliou Exercised Poor Clinical Judgment 14

Dr. Vasiliou’s Assessment and Treatment Plan. 16

Peak Flow Meter 16

Deterioration and the Decision to Intubate. 17

The Records and Dr. Vasiliou’s Workload. 19

Decision to Intubate. 20

Intubation by Most Experienced Available Clinician. 21

Ventilation. 22

Dr. Vasiliou as a Witness. 23

Analysis. 24

Adequacy of Record Keeping. 25

Consultation with Dr. Warner and the Timing of Intubation. 26

Intubation by the Most Experienced Available Clinician. 29

Post-Ventilation Monitoring. 30

Conclusion on the Issue of Negligence. 31

2. Causation. 33

Law.. 33

Evidence on Causation. 35

Hypoxemia. 36

Anisocoria. 36

Imaging Results. 37

When Did Brain Damage Occur?. 37

The Effect of Intubation Performed Earlier and/or by a More Experienced Clinician. 39

Analysis. 41

Timing of Brain Injury. 41

Intubation. 42

Conclusion on the Issue of Causation. 43

Decision. 44

MEW J.

[1] In October 2014, Ashley Gumbley was a 28-year-old mother of three, living in Toronto, with a medical history which included multiple hospital visits for asthma.

[2] As a result of an acute asthma attack on 9 October 2014, Ms. Gumbley was taken by ambulance to Toronto East General Hospital, where her symptoms became consistent with severe asthma. When these symptoms failed to abate, she was intubated and ventilated.

[3] By the time she was extubated four weeks later, it was apparent that she had suffered significant brain damage. This decision addresses the questions of:

a. Whether the defendant Dr. Denise Vasiliou, an internal medicine specialist (or “internist”), who was the physician responsible for Ms. Gumbley’s care in the hours immediately before and after her intubation, was negligent; and

b. If so, whether that negligence was the cause of Ms. Gumbley’s brain damage.

The Parties

Ashley Gumbley

[4] At the time of her hospital admission, Ms. Gumbley was sharing her home in Toronto with her fiancé, Terrance Smith, and her three children, Morgan McCaffery, Savannah Edwards and Jayden Gumbley. Along with Ashley Gumbley’s father, Reginald Gumbley, and her stepmother, Jessie Gumbley, these individuals are the plaintiffs in this action. I will refer to Ashley Gumbley as either “Ms. Gumbley” or “the plaintiff” in these reasons.

[5] Ms. Gumbley had experienced asthma for a number of years. She controlled her symptoms using a puffer. However, between 2012 and 2014, she required hospitalisation for an asthma exacerbation on a number of occasions. On one of those attendances, on 17 November 2012, at the Scarborough Hospital, Ms. Gumbley’s symptoms were sufficiently severe that she required intubation and mechanical ventilation for her asthma, and subsequent treatment in the ICU.

[6] Ms. Gumbley is now an incomplete quadriplegic. She is unable to walk and is incontinent in both bowel and bladder. She has limited vision, limited ability to speak and requires 24-hour-a-day care. Her children’s care was taken over by their maternal grandparents.

[7] In the event that Dr. Vasiliou is found to be liable for the injuries sustained by Ms. Gumbley, the damages to be awarded to Ms. Gumbley and the other plaintiffs (her family members asserting claims pursuant to the Family Law Act, R.S.O. 1990, c. F.3) have, subject to court approval, been agreed.

Dr. Denise Vasiliou

[8] Although the Toronto East General Hospital, as well as a number of other individuals involved with the plaintiff’s care, were originally named as defendants, by the time of trial, Dr. Vasiliou was the only remaining defendant.

[9] Dr. Denise Vasiliou qualified as a physician in 2001 and thereafter underwent a residency in internal medicine. She attained her specialty designation in internal medicine from the Royal College of Physicians and Surgeons of Canada in 2006. She has worked at Toronto East General Hospital (now Michael Garron Hospital), which she described as a “community academic hospital”, since 2008, although she has also undertaken locums elsewhere. She teaches at the University of Toronto.

[10] At the time of Ms. Gumbley’s admission, Dr. Vasiliou had experience in treating respiratory issues, including COPD, interstitial lung disease and asthma. Although clear severe asthma (that is, where a patient presents with symptoms that clearly meet the criteria for severe asthma) was a less common presentation, she had some experience with it.

[11] Dr. Vasiliou could not recall when, prior to 2014, she had previously dealt with an asthmatic patient requiring intubation.

[12] While Dr. Vasiliou had been trained to intubate patients and had past experience of having done so, she had not performed the procedure often enough in her practice to maintain the necessary skills, and therefore no longer considered herself the most competent person present when the decision was made to intubate Ms. Gumbley.

[13] On 9 October 2014, Dr. Vasiliou was assigned to an overnight shift in the Emergency Room for the internal medicine service, commencing at 6:00 p.m. and ending at 8:00 a.m. the following morning.

[14] Earlier in the day, Dr. Vasiliou had been working, and had accessed the hospital computer system throughout the day between 9:40 a.m. and 3:20 p.m.

[15] The routine at the hospital at that time was that there was a reduced medical staff in the hospital overnight. Dr. Vasiliou’s responsibilities as the on-duty internist included providing consultancy services to the emergency room doctors, caring for inpatients on the medical ward and dealing with medical questions from surgeons. Other staff available overnight would have included a neonatal obstetrician, an anaesthetist, general and orthopaedic surgeons and two emergency physicians. In terms of patient responsibility, if a patient in the intensive care unit had already been admitted when Dr. Vasiliou came on duty, an ICU physician would be responsible; if, however, it was decided to admit a patient to the ICU after 6:00 p.m., Dr. Vasiliou would be responsible for that patient until sign-off the following morning. During the time that there was not an ICU physician on site, one would be on call.

[16] The decision to admit the plaintiff to the ICU was made after Dr. Vasiliou came on duty and, accordingly, from approximately 7:00 p.m. on 9 October until around 1:50 a.m. on 10 October, Dr. Vasiliou was the most responsible physician (“MRP”) for Ms. Gumbley’s treatment and care.

[17] Dr. Vasiliou acknowledged that she had only a limited memory of treating Ms. Gumbley. She recalls speaking with Dr. Megan Reynolds, the emergency physician who had first seen Ms. Gumbley, speaking with family members of Ms. Gumbley about her medications, speaking with Dr. Warner (the on-call intensive care specialist), the on-duty anaesthetist, and on at least one other occasion, speaking again with Dr. Reynolds. She also recalls being shown Ms. Gumbley’s blood gases results. But, for the most part, her evidence was based on what was contained in the medical records, supplemented by what she said her normal practice would have been.

The Witnesses

[18] Such is Ms. Gumbley’s present condition that she was unable to testify. She was, however, present in court, either in person, or by videoconference, for parts of the trial. Her former fiancé and her stepmother testified, providing their perspective on events and Ms. Gumbley’s circumstances before, at the time of and following her hospitalisation.

[19] Dr. Vasiliou testified, as did Liji Joseph, one of the intensive care unit nurses on duty when Ms. Gumbley was intubated. The court also heard from Amelia Hoyt, who provided information concerning the operation of the electronic medical records system at the hospital on the evening of 9/10 October 2014 and, in particular, the effect of scheduled routine maintenance of some of the hospital’s systems, which occurred on the night of 9/10 October.

[20] As is the normal practice in clinical negligence cases, the court was assisted by a number of expert witnesses—seven in all—called by the parties. Dr. Dev Jayaraman (internal medicine), Dr. Andrew McIvor (internal medicine and respirology), Dr. Robert Chen (neurology) and Dr. Gordon Cheung (neuroradiology) were called by the plaintiffs. The defendant called Dr. Niall Ferguson (internal medicine, critical care and respirology), Dr. Brian Katchan (internal medicine) and Dr. Jason Lazarou (neurology).

Overview of Facts

[21] Many of the pertinent facts in this case are not in dispute. The court was greatly assisted by an Agreed Statement of Facts which counsel jointly submitted.

Ms. Gumbley is Taken to Hospital

[22] On 9 October 2014, at approximately 4:00 p.m., paramedics attended at Ms. Gumbley’s home following a 911 call made by Terrance Smith. She had been suffering from a cold for several days and had become increasingly short of breath in the six hours prior to the emergency call being made. Her puffers had not helped. Upon arrival, the paramedics noted audible wheezes. Ms. Gumbley was tachycardic (had a rapid pulse rate). The paramedics gave her Ventolin (the brand name for salbutamol, a bronchodilator which works by relaxing muscles around the airways so that they can open up and allow for easier breathing) at 4:03 p.m. and 4:14 p.m., which resulted in decreased respiratory difficulty.

[23] At approximately 4:30 p.m., Ms. Gumbley arrived at Toronto East General Hospital where, upon admission, she was noted to be in respiratory distress. Her history of asthma and past intubation was noted. She was seen by an emergency physician, Dr. Megan Reynolds, in the resuscitation area of the emergency department. She was able to speak. She advised Dr. Reynolds that her asthma was triggered by environmental factors, and that she was an active smoker. She said that she had been prescribed Advair (a combination of two medicines—Fluticasone and Salmeterol—used to help control the symptoms of asthma and improve breathing) and Ventolin for her asthma. She also advised that she had previously been intubated due to her asthma.

[24] A respiratory therapist working alongside Dr. Reynolds gave Ms. Gumbley additional Ventolin and Atrovent (another medication that relaxes muscles in the airways and increases airflow to the lungs) by nebuliser. Her airway was patent (open), but she had audible wheezes with poor air entry to lung bases, marked increased work of breathing, and was leaning forward and displayed intercostal indrawing (a pulling inward of the soft tissues between the ribs upon inhalation).

[25] Following her assessment of Ms. Gumbley, Dr. Reynolds ordered continuous Ventolin, intravenous fluids, intravenous magnesium and Solu-Medrol (an anti-inflammatory corticosteroid, used in the treatment of asthma to decrease airway inflammation). All of these medications were administered by 4:57 p.m. A chest x-ray was ordered and bloodwork was done. Dr. Reynolds stayed with Ms. Gumbley to monitor her for approximately 45 minutes and thereafter checked in on her periodically.

[26] While in the emergency department, Ms. Gumbley was kept in the resuscitation area and was connected to monitors that continuously monitored her heart rate, respiratory rate and oxygen saturation level.

[27] By approximately 5:05 p.m., Ms. Gumbley’s air entry had improved and her respiratory distress had lessened. By 5:40 p.m., she was able to speak in full sentences, her breathing was less laboured and her diaphoresis (sweating) had decreased. Her vitals taken at that time showed that the provided treatment appeared to have been effective.

[28] Dr. Reynolds ordered an arterial blood gas, which was performed around 5:48 p.m. (an arterial blood gases test, or ABG, uses blood drawn from an artery and measures the acid-base balance (pH) and the levels of oxygen and carbon dioxide in the blood).

[29] At some point thereafter, Dr. Reynolds requested an internal medicine consultation.

[30] Dr. Vasiliou testified that she would have briefly assessed Ms. Gumbley shortly after coming on duty at 6:00 p.m., presumably in response to the consultation request, and had asked a third-year medical resident, Dr. Andrew Kouri, to assist with Ms. Gumbley’s care (Dr. Kouri accessed Ms. Gumbley’s chart at 6:07 p.m.)

[31] Dr. Kouri and Dr. Vasiliou assessed Ms. Gumbley again at 6:50 p.m., at which time her oxygen saturation was 94% on 40% oxygen delivered via face mask. Her pulse was 138, her respiratory rate was 25 and her blood pressure was reported as 120/190. Ms. Gumbley was in mild respiratory distress, with increased effort of breathing. She was not tripoding (which occurs when a patient braces her arms on both legs, a position which can improve respiratory mechanics and may improve shortness of breath) or using accessory muscles (these are muscles other than those typically used for breathing, to provide assistance to the main breathing muscles when inhaling or exhaling) and she did not have abdominal paradox (which occurs when the chest wall or the abdominal wall moves in when taking a breath and moves out when exhaling—in other words, the opposite of normal breathing movement).

[32] Dr. Vasiliou decided to continue with the treatment that had been started by Dr. Reynolds and to transition Ms. Gumbley to Prednisone (a corticosteroid that can be used as an anti-inflammatory agent and which can be given for acute cases of asthma). She also prescribed an antibiotic, Ceftriaxone, to address Ms. Gumbley’s sputum production (a mixture of saliva and mucus coughed up from the respiratory tract).

Admission to Intensive Care Unit

[33] At approximately 7:00 p.m., Dr. Vasiliou made the decision to admit Ms. Gumbley to the intensive care unit, given her oxygen requirements and the frequency of monitoring that was needed. However, although the order that Ms. Gumbley be admitted to the ICU was entered into the hospital computer system at that time, Ms. Gumbley was not physically transferred to the ICU until later.

[34] The decision to admit Ms. Gumbley to the ICU meant that Dr. Vasiliou became the MRP for Ms. Gumbley’s care.

[35] At all material times, Dr. Michael Warner was the on-call critical care specialist (or “intensivist”). According to hospital policy, he was required to be on-site within 30 minutes of receiving a call for assistance.

[36] While Ms. Gumbley was under Dr. Vasiliou’s care, at no time was a peak expiratory flow meter (a handheld device that measures how well air moves out of the lungs) used to assess the severity of Ms. Gumbley’s airflow limitation. Nevertheless, it was recorded that at 7:30 p.m., Ms. Gumbley’s breathing had significantly improved. At 8:00 p.m., a nurse reported that she was awake, alert and oriented. She was in slight respiratory distress but had good air entry to bases. Her oxygen saturation was 95%.

[37] At approximately 8:15 p.m., Ms. Gumbley was up to use the bathroom on her own. By 8:40 p.m., she returned and was noted to be complaining of shortness of breath and wheezing. She was given Ventolin at 8:45 p.m. and it was noted that her oxygen saturation had dropped to 91%. At 8:50 p.m., Dr. Vasiliou was notified about Ms. Gumbley’s situation (it is not certain whether this was done during an in-person conversation or by a page). Pager records also indicate that Dr. Vasiliou was paged at 9:01 p.m. and 9:06 p.m.

[38] According to Dr. Vasiliou, at some point between 9:00 p.m. and 9:15 p.m., she would have attended the resuscitation area and assessed Ms. Gumbley. Based on her assessment, she ordered two doses of Epinephrine (a hormone and neurotransmitter used to treat allergic reactions, to restore cardiac rhythm and to control mucosal congestion, glaucoma, and asthma) for Ms. Gumbley. The first dose of Epinephrine was administered intramuscularly at 9:15 p.m. (0.3 cc). A second dose of Epinephrine was administered via a nebuliser at 9:30 p.m. (0.5 cc). In the meantime, at 9:20 p.m., Dr. Vasiliou ordered an arterial blood gas.

[39] At 9:31 p.m., Dr. Vasiliou ordered that Ms. Gumbley receive what she described as a proactive dose of Solu-Medrol, ahead of her pre-scheduled dose.

[40] At around 9:40 p.m., Ms. Gumbley was physically transferred to the intensive care unit. A note of the arterial blood gas results (which were apparently available at 9:30 p.m. but not noted until 9:40 p.m.) showed oxygen saturation at 95% with a 40% face mask, a pH of 7.28 (described by Dr. Ferguson as a developing metabolic acidosis), pCO2 (partial pressure of carbon dioxide in the blood) of 38 (regarded as “normal” but, as Dr. Jayaraman explained, worrisome for someone who is breathing hard) and bicarbonate of 17 (regarded as low).

[41] At 10:00 p.m., a nurse recorded that Ms. Gumbley was awake, alert and oriented. She was able to move all limbs and her pupils were equal and reactive. She was short of breath and wheezy with decreased air entry to bases. She was receiving 50% oxygen via face mask. Her oxygen saturation was recorded at 92% and 96%. Her pulse was 123, her respiratory rate was 25 and her blood pressure was 120/93. She was given Ventolin and Atrovent.

[42] At 10:23 p.m., Dr. Vasiliou was paged to the ICU, and subsequently saw Ms. Gumbley at approximately 10:30 p.m. with a respiratory therapist. Her pulse was 120, blood pressure approximately 108/65 and oxygen saturation at 97%. Dr. Vasiliou ordered Gravol and Ativan. Ms. Gumbley was noted to be more calm after receiving those medications.

[43] A nursing note made at 11:00 p.m. records that Ms. Gumbley’s heart rate was 130. The respiratory therapist was in to assess. Dr. Vasiliou was paged at 11:12 p.m. The nursing note records that Dr. Vasiliou’s response was to “be ready for possible intubation”.

[44] According to the agreed statement of facts, “sometime” between 11:00 p.m. and 11:30 p.m., Ms. Gumbley was noted to be awake but continued to have shortness of breath.

[45] At 11:30 p.m., Ms. Gumbley’s vital signs included a pulse of 115, blood pressure of approximately 110/45 and a mean arterial pressure of 60.

[46] No oxygen saturation values were recorded between 10:30 p.m. on 9 October and midnight. This was despite values having been recorded at 8:00 p.m., 8:21 p.m., 8:23 p.m., 8:45 p.m. and 10:00 p.m. (all readings were in the range of 92%-97%).

[47] Nurse Joseph was providing cover for a break when she made a note timed at 11:50 p.m. that Ms. Gumbley had increased shortness of breath, the respiratory therapist was at Ms. Gumbley’s bedside and Dr. Vasiliou had been paged. At 12:00 midnight, Ms. Joseph noted that Dr. Vasiliou was at the bedside and “decided to intubate”.

[48] Dr. Vasiliou’s evidence at trial was that she made the decision to intubate at 11:00 p.m., and that Ms. Joseph’s note that the decision was not made until midnight was wrong (by contrast, in her statement of defence, she pleaded that she gave the order to intubate at midnight). Dr. Vasiliou ordered Propofol (an anaesthetic and sedative), Versed (a benzodiazepine used to help a patient to relax or sleep during a surgical procedure) and Fentanyl (an opioid used for pain control).

Ms. Gumbley is Intubated

[49] Intubation occurred at, or around, 12:00 midnight and was performed by a respiratory therapist, Emily Arias. The Propofol, Versed and Fentanyl were administered intravenously during intubation. On the first two attempts, Ms. Arias was unable to insert the standard 7.5 cm endotracheal tube. On the third attempt, intubation was achieved using a smaller 7 cm tube.

[50] At 12:10 a.m., following the intubation, Ms. Gumbley was given Rocuronium (a neuromuscular blocker used to produce muscle relaxation to help facilitate ventilation of the lungs) and a Propofol infusion.

[51] Ms. Arias noted that Ms. Gumbley, once intubated, was very difficult to ventilate.

[52] At 12:23 a.m., Dr. Vasiliou ordered that an arterial line be placed to facilitate monitoring and continual blood gas sampling.

[53] At 12:30 a.m., Dr. Vasiliou dictated a note describing Ms. Gumbley’s condition for intubation, and the management thereafter.

[54] Results of an arterial blood gas performed after Ms. Gumbley was intubated indicated a pH of 6.87, pCO2 of 139, pO2 of 182, HCO2 of 24 and oxygen saturation of 97%.

[55] At 1:10 a.m., Dr. Vasiliou paged the on-call intensivist, Dr. Michael Warner, at home for advice. He recommended initiating treatment with Isoflurane (a general inhalation anaesthetic) via an anaesthetic gas machine, and asked Dr. Vasiliou to speak to the anaesthetist on call for help in setting it up. Dr. Vasiliou then contacted the on-call anaesthetist, Dr. James Kulchyk, who in turn contacted Dr. Warner for additional information. Thereafter, Dr. Warner immediately left home for the hospital.

Dr. Warner Takes Over

[56] Dr. Warner arrived at the hospital at 1:50 a.m. and took over as the MRP for Ms. Gumbley. By 2:00 a.m., Ms. Gumbley had been placed on the anaesthetic gas machine and Isoflurane was administered. This continued until 15 October 2014. Ms. Gumbley was paralysed with Cisatracurium, a neuromuscular blocker, which continued until 17 October 2014.

[57] The Isoflurane therapy improved Ms. Gumbley’s ventilation. Later the same day (10 October), Dr. Warner consulted with the on-call respirologist, Dr. Marcus Kargel, who assessed Ms. Gumbley and provided recommendations regarding ongoing treatment.

[58] Ms. Gumbley remained intubated and paralysed in the ICU on the anaesthetic machine.

[59] On the morning of 16 October 2014, it was identified that Ms. Gumbley’s pupils were asymmetrical (anisocoria). A neurology consultation was arranged to assess the issue.

[60] On 16 October 2014, Ms. Gumbley was assessed by a neurologist, Dr. Taresa Stefurak. Her right pupil was 1+ and her left was 3+, with minimal reactivity in both (i.e., not reacting to light). Her eyes were deviating forward. Dr. Stefurak could not conduct a full neurological examination because Ms. Gumbley was still on neuromuscular blocking agents for her respiratory condition. She recommended a CT scan once Ms. Gumbley was stable.

[61] On 20 October 2014, a CT scan of Ms. Gumbley’s head was performed which showed multiple hypodensities involving a number of different areas of the brain. It was determined that the CT results and Ms. Gumbley’s condition were consistent with severe neurological impairment.

[62] Further tests were undertaken, including an MRI, which Ms. Gumbley underwent on 29 October. The MRI showed evolving infarcts (death of tissue due to inadequate oxygenation) extending from the brain stem into the bilateral basal ganglia regions of the brain and beyond. On 31 October 2014, Dr. Melinda Hillmer, a critical care specialist, met with Ms. Gumbley’s family. During that meeting, the family were told:

a. The MRI showed that Ms. Gumbley had significant brain damage;

b. The MRI was most consistent with infarcts;

c. The cause of the infarcts remained elusive but Dr. Hillmer felt the infarcts occurred at the time that Ms. Gumbley was “at her sickest” and could have been related to low oxygen levels or high carbon dioxide levels, or somehow related to the anaesthetic gas that was required to treat her extremely severe asthma.

[63] Ms. Gumbley was extubated on 6 November 2014.

Prior Hospital Attendances

[64] Ms. Gumbley had required hospital treatment for asthma exacerbations on 6 March 2012, 17 November 2012, 8 April 2013, 28 July 2013 and 26 January 2014.

[65] During the 17 November 2012 admission at the Scarborough Hospital, Ms. Gumbley required intubation and mechanical ventilation for her asthma and subsequent treatment in the ICU. She was intubated 14 hours after her arrival. The last recorded blood gas done two hours prior to Ms. Gumbley’s intubation on 19 November 2012 included a normal pCO2 of 40 and a pH at 7.3. Her oxygen saturation had been worse on that occasion, with a pO2 of 52 and an oxygen saturation of 89%. She was successfully intubated by the attending physician on the second attempt.

[66] The 8 April 2013, 28 July 2013 and 26 January 2014 hospital attendances were at Toronto East General Hospital. On those occasions, the plaintiff was discharged after responding to standard therapies and did not require intubation.

Issues

[67] It is not disputed that Dr. Vasiliou owed Ms. Gumbley a duty of care, or that Ms. Gumbley has sustained damage. What remains in dispute is whether Dr. Vasiliou's conduct breached the applicable standard of care and, if so, whether the damage sustained by the plaintiffs was caused, in fact and in law, by Dr. Vasiliou's breach.

1. Was Dr. Vasiliou Negligent?

[68] To establish negligence, the plaintiff must show, on a balance of probabilities, that Dr. Vasiliou did not meet the standard of care in that her decisions and actions were not those which would have been taken by a reasonable and prudent physician of the same experience and standing, having regard to all of the circumstances of the case.

Law

[69] The classic statement of the standard of care in clinical negligence actions involving specialists is that of Schroeder J.A. in Crits and Crits v. Sylvester et al., 1956 CanLII 34 (ON CA), [1956] O.R. 132 (C.A.), at p. 143:

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 standing, 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.

[70] This standard of reasonableness is not a standard of excellence that amounts to perfection. A physician’s honest and intelligent exercise of judgment will satisfy the required standard of care: Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, at para. 86.

[71] In assessing the application of the standard of care required in the circumstances of the present case, there are a number of other guiding principles to be taken into account.

Clinical Judgment

[72] A physician’s honest and intelligent exercise of clinical judgment will satisfy the standard of care: Martindale v. Bahl, 2023 ONSC 4259, at para. 49. An error of judgment will not amount to negligence unless the error is one which a reasonable doctor would not have made in similar circumstances: Williams v. Bowler, [2005] O.T.C. 680, 2005 CanLII 27526 (S.C.), at paras. 231-236.

Hindsight

[73] As Denning L.J. said in Roe v Minister of Health, [1954] 2 Q.B. 66, at 83, [1954] 2 All ER 131 (C.A.), at 137: “[i]t is so easy to be wise after the event and to condemn as negligence that which was only a misadventure”.

[74] Courts should avoid looking at the outcome, and then criticising a physician because they failed to do something that, in retrospect, may have assisted the patient.

Degree of Risk

[75] The standard of care required by the law is care commensurate with the potential danger to the patient: Badger v. Surcan (1970), 1970 CanLII 667 (SK KB), 16 D.L.R. (3d) 146 (Sask. Q.B.), at para. 24, aff’d (1972) 1972 CanLII 804 (SK CA), 32 D.L.R. (3d) 216; Yusuf v. Kurup, 2014 ONSC 247, at para. 28.

Duty to Consult

[76] In appropriate cases the standard of care includes a duty to consult, or refer to, a professional colleague.

[77] There is no absolute test to ascertain when a doctor should refer or consult, but the cases suggest that it is indicated when, inter alia, the patient is not responding to the treatment being given, or the patient needs treatment which the doctor is not competent to give: Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60, at para. 230, citing E.I. Picard and G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 2nd ed. (Scarborough: Carswell, 1996), at p. 246.

Record Keeping

[78] It has been held that record keeping is part of the basic duty to provide adequate reasonable and prudent care so as to:

a. remind the person providing the care of the past and present condition of the patient and the treatment already given; and

b. communicate this information to others who may also be caring for the patient: Rose v. Dujon, 1990 CanLII 5950 (AB QB), at para. 139, citing Lorne E. Rozovsky and Fay A. Rozovsky, The Canadian Law of Patient Records (Toronto: Butterworths, 1984), at p. 6; see also Watson v. Dr. Shawn Soon, 2018 ONSC 3809, 50 C.C.L.T. (4th) 83, at para. 76.

[79] A physician’s failure to maintain proper records can amount to a breach of the standard of care. A finding that there has been a breach of the standard of care is not dependent on whether or not it would have changed the treatment that was provided or the clinical decisions that were made: Bendah v. Farine, 2024 ONSC 624, at para. 141.

Usual Practice

[80] When records are incomplete, it is for the trier of fact to weigh the evidence in order to determine what occurred during a particular encounter. Such a determination will be informed by the court’s assessment of the credibility and reliability of the witnesses. Evidence of a physician’s practice, habit or custom may assist in determining what likely happened if a contemporaneous record is not available or complete: Martindale, at para. 47.

Community-Based Hospitals

[81] During the course of evidence, there were frequent references to the description of Toronto East General Hospital as a “community” hospital.

[82] The Manitoba Court of Appeal recently found that a trial judge had erred in interpreting an expert opinion on the standard of a “community orthopaedic surgeon or a surgeon that is doing orthopaedic surgery” as importing a “locality” rule into the standard of care, with the result that the trial court recognised a “different and lower” standard of care as applying to a community orthopaedic surgeon: Dumesnil v. Jacob, 2024 MBCA 4, 491 D.L.R. (4th) 693, at para. 60.

[83] The fact that the Toronto East General Hospital is described as a “community” hospital (albeit still a teaching hospital affiliated with the University of Toronto), with different resources and policies to major urban hospitals such the McGill Health Centre and the Jewish General Hospital in Montréal (where Dr. Jayaraman practises), the University Health Network in Toronto (where Dr. Ferguson practises) or St. Joseph’s Healthcare in Hamilton (where Dr. McIvor practises), should have little or no bearing on the standard of care required in this case. Ensuring that the standard is met may, however, require different actions depending on the circumstance and the resources that are available. For example, if it is going to take 30 minutes before an on-call intensivist can get to a patient’s bedside to assist the on-duty internist, an awareness of that fact should inform the internist’s decision-making as to when to make the call.

Evidence

[84] The experts who testified agreed that Ms. Gumbley’s asthma attack on 9 October was severe, and that:

a. Her prior intubation in 2012 was a major risk factor for fatal asthma and the need for further intubation;

b. Severe acute asthma is a life-threatening condition;

c. Patients with a severe asthma attack require close observation, monitoring and frequent clinical assessment to see the response to treatment;

d. For patients who do not respond to initial management the most important decision is whether assisted ventilation or intubation is required;

e. The decision whether or not to intubate is a matter of clinical judgment;

f. Mechanical ventilation is not a treatment for asthma; and

g. Intubation should be undertaken by the most experienced clinician available.

Overview of Allegations that Dr. Vasiliou Exercised Poor Clinical Judgment

[85] The plaintiffs assert that Dr. Vasiliou exercised poor clinical judgment on a number of occasions while she was responsible for Ms. Gumbley’s care.

[86] Specifically, it is alleged that, faced with a patient presenting with major risk factors for a fatal outcome, who required close monitoring and potentially aggressive treatment, with a reasonable possibility of intubation, Dr. Vasiliou failed to call the readily available on-call critical care specialist.

[87] Instead, and despite having significant other patient responsibilities in the Emergency Room and elsewhere in the hospital, as well as not having the confidence to herself intubate the patient, she decided to continue to manage Ms. Gumbley herself. Having done so, Dr. Vasiliou is said to have failed to effectively continuously monitor Ms. Gumbley’s condition, ultimately failing to have Ms. Gumbley intubated sooner.

[88] Further, having had the intubation undertaken by a respiratory therapist rather than by the on-duty anaesthetist, the on-call intensivist or even one of the on-duty emergency department doctors, Dr. Vasiliou failed to ensure that Ms. Gumbley was being optimally ventilated.

[89] These errors of judgment, both viewed in isolation and cumulatively, are said to have fallen below the applicable standard of care.

[90] Dr. Vasiliou testified that she had no specific recollections of any of the treatment of, or her interactions with, Ms. Gumbley. She had no recollection of Ms. Gumbley’s intubation. Much of her evidence was based on what she would have done, referring to documentation that itself was incomplete.

[91] Nevertheless, on behalf of Dr. Vasiliou, it is submitted that she appropriately exercised her clinical judgment. She assessed Ms. Gumbley, recognised the risk factors she had for the possibility of requiring intubation and implemented a plan of care that provided continuous monitoring of Ms. Gumbley in the ICU. She and a team comprised of nurses and a respiratory therapist monitored Ms. Gumbley throughout Dr. Vasiliou’s time as MRP. Eventually Dr. Vasiliou decided to intubate Ms. Gumbley due to her fatigue, in an effort to avoid respiratory collapse.

[92] The experts on the issue of standard of care came to different conclusions on Dr. Vasiliou’s liability, depending on the party that called them.

[93] Dr. Dev Jayaraman, an internist practising at the McGill Health Centre and the Jewish General Hospital in Montréal, was of the opinion that Dr. Vasiliou’s management of Ms. Gumbley, and in particular, her failure to ensure that the plaintiff was intubated by no later than 9:40 p.m., fell below expected standards of care. Dr. Jayaraman was also critical of the decision to have a respiratory therapist attempt the intubation without appropriate backup. If intubated earlier and in a more controlled manner, and with appropriate support, the risk of Ms. Gumbley experiencing hypoxia during intubation would have been reduced. He adds that presence of an intensivist at the bedside during the intubation would have also shortened the decision time to initiate inhaled anesthetics and, accordingly, that Dr. Vasiliou should have contacted Dr. Warner to attend the hospital as soon as she made the decision to transfer Ms. Gumbley to the ICU.

[94] The plaintiffs also called Dr. Andrew McIvor, a specialist in internal medicine and respirology at St. Joseph’s Healthcare in Hamilton. Dr. McIvor is the senior author of two 2010 articles in the Canadian Medical Association Journal entitled “Management of acute asthma in adults in the emergency department: nonventilatory management”, and “Management of acute asthma in adults in the emergency department: assisted ventilation”. His opinion was that Dr. Vasiliou failed to meet the standard of care because she left Ms. Gumbley languishing without appropriate monitoring, appropriate reassessment on a proactive basis and appropriate management. He said that Dr. Vasiliou should have informed Dr. Warner about Ms. Gumbley’s condition as soon as she had undertaken her initial assessment, that Ms. Gumbley should have been intubated sooner and that the initial ventilator setting was not appropriate.

[95] The internist called by the defence, Dr. Brian Katchan, practises as a general internist and critical care specialist at North York General Hospital in Toronto. While acknowledging that Dr. Vasiliou could reasonably have made different decisions, Dr. Katchan was supportive of Dr. Vasiliou’s exercise of her clinical judgment in deciding to intubate Ms. Gumbley when she did. Nor was Dr. Katchan concerned by the use of a respiratory therapist to perform the intubation, explaining that at his own community-based hospital, respiratory therapists routinely intubate acute asthma patients in the ICU. Dr. Katchan was also supportive of Dr. Vasiliou’s decision to call Dr. Warner after she was notified of the results of the first post-intubation blood gas.

[96] A similar view on the use of respiratory therapists undertaking intubations in community hospitals was expressed by Dr. Niall Ferguson, who was qualified as an expert in internal medicine, critical care medicine and respirology. He has a particular interest in the mechanical ventilation and treatment of severe respiratory failure. Until 31 January 2024, Dr. Ferguson oversaw the running of the critical care units at the University Health Network in Toronto. He was also supportive of Dr. Vasiliou’s exercise of her clinical judgment in relation to when Dr. Vasiliou made the decision to intubate Ms. Gumbley. Referring to a list of criteria indicating the probable need for elective intubation and mechanical ventilation in acute asthma, as set out in Dr. McIvor’s article, it was Dr. Ferguson’s opinion that none of those criteria were met prior to Dr. Vasiliou’s final decision to intubate Ms. Gumbley.

Dr. Vasiliou’s Assessment and Treatment Plan

[97] Dr. Vasiliou’s assessment of Ms. Gumbley, undertaken by her and Dr. Kouri at around 6:50 p.m., was described in a comprehensive admission note dictated by Dr. Kouri. Their treatment plan required treatment with Ventolin and Atrovent, “q1h prn”, meaning that it could be given every hour at the discretion of the nurse or respiratory therapist. The plan also included continuing Solu-Medrol. Dr. Vasiliou and Dr. Kouri determined that Ms. Gumbley did not require intubation at the time. They elected to admit Ms. Gumbley to the ICU step-down unit overnight, given “her oxygen requirements and frequency of her monitoring”, where she would have direct and continuous monitoring by nurses.

[98] At this point in time, Dr. Vasiliou stated that she was not thinking that Ms. Gumbley might need intubation. While Ms. Gumbley presented with a number of risk factors that could potentially be serious—including the history of her previous intubation—there was nothing in her presentation that was telling Dr. Vasiliou it was time for an intubation.

[99] It is submitted on Dr. Vasiliou’s behalf that her plan reflected an appreciation of the seriousness of Ms. Gumbley’s situation. However, Dr. McIvor’s view was that even at the initial assessment stage, Dr. Vasiliou should have alerted the on-call intensivist (Dr. Warner) about who she had and what her plan for the patient was. Dr. Jayaraman explained that internal medicine doctors are not expected to be experts in treating severe asthmatics, but they are trained to call for help when required from a more appropriate specialist.

[100] As already noted, although Dr. Vasiliou made the decision to have Ms. Gumbley transferred to the step-down unit of ICU at 7:00 p.m., the physical transfer did not occur until 9:40 p.m. This was due to factors beyond Dr. Vasiliou’s control.

[101] Dr. McIvor was resolute in his view that Mr. Gumbley’s history of prior ventilation was significant, and that Dr. Vasiliou failed to appreciate the severity of Ms. Gumbley’s situation. In his opinion, it indicated the need for far more active observation and proactive management than Dr. Vasiliou provided. He was critical of the extent to which Dr. Vasiliou’s plan left those responsibilities to others.

Peak Flow Meter

[102] Dr. Vasiliou was questioned about why she had not measured the severity of Ms. Gumbley’s airflow limitation with a peak flow meter. She acknowledged during cross-examination that the measurement of expiratory airflow is the best means of objective assessment of the severity of an asthma attack. A peak flow meter can also be used to measure a patient’s response to treatment and as a predictor of hypercapnia (an elevation in the arterial carbon dioxide tension).

[103] It is an admitted fact that a peak flow meter was likely available in the emergency department on 9 October. Dr. Vasiliou said that she would have used a peak flow meter, but could not find one. She agreed that it would have been in Ms. Gumbley’s best interest for her to have used one: if done correctly, the information it could have provided would have been useful. She conceded that she did not asked anyone to find a peak flow meter. However, she also stated that it can be difficult to obtain peak flow readings in acute asthma situations.

[104] Dr. McIvor described the taking of peak flow tests as providing crucial measurement of whether treatment is working and what further treatment is required. Dr. Ferguson agreed that having a peak flow meter reading might have been helpful to track the trajectory of Ms. Gumbley’s condition, and that it would have been in her best interests for Dr. Vasiliou to have obtained one, or at least asked for one. But Dr. Ferguson did not see Dr. Vasiliou’s failure to use a peak flow meter as falling below the standard of care. Dr. Katchan testified that there are many ways other than using a peak flow meter to assess patients with asthma exacerbation. He does not use a peak flow meter himself and says peak flow readings would not radically change the management plan for a patient.

Deterioration and the Decision to Intubate

[105] At 8:40 p.m., following a visit to the bathroom, Ms. Gumbley’s situation appeared to have worsened. She complained of shortness of breath and wheezing. A nurse administered Ventolin and Atrovent at 8:45 p.m. Dr. Vasiliou was subsequently paged, and attended to see Ms. Gumbley at around 9:00 p.m. to 9:15 p.m. As already noted, she ordered two doses of Epinephrine. Dr. Katchan was supportive of the use of Epinephrine as an appropriate second line medication. Dr. Jayaraman did not express any concern regarding the use of Epinephrine. Furthermore, Dr. McIvor’s paper, “Management of acute asthma in adults in the emergency department: nonventilatory management”, lists Epinephrine given intramuscularly at a dose of 0.3 to 0.5 mg as a treatment option.

[106] In her testimony at trial, Dr. Vasiliou conceded that Ms. Gumbley’s condition was likely not improved by the Epinephrine and that she was actually deteriorating. By 9:30 p.m., Dr. Vasiliou said that she first started to think of the possibility of intubation, but at that time she thought the risk of intubating would outweigh the benefit. Dr. Ferguson agreed with that assessment, commenting that at that point in time, Ms. Gumbley received what was required, but added that she needed to be watched carefully to see which way her exacerbation was going.

[107] The arterial blood gas results received at 9:40 p.m. were, according to Dr. Jayaraman, “worrisome”. It is by this point, in Dr. Jayaraman’s opinion, that Ms. Gumbley should have been intubated. Indeed, his opinion was that it was not even necessary to wait for the blood gas results before making the decision to intubate. As he put it, “I am not sure what they were waiting for”. Ms. Gumbley’s breathing rate and use of accessory muscles, her normal pCO2 level and her lack of response to bronchodilators and Epinephrine were all indicators that she was getting into trouble. Furthermore, he felt that physically transferring Ms. Gumbley to the ICU at 9:40 p.m. was unnecessarily dangerous. By that point, she was not doing well, she needed intervention soon, and backup assistance in the form of an emergency room physician was readily available. As he put it, emergency rooms are acute care areas, and it is inappropriate to delay indicated treatment because you are waiting for an ICU bed. It would have taken 15-20 minutes to get set up for intubation—more than enough time to call for help and prepare appropriately.

[108] Dr. Ferguson did not share Dr. Jayaraman’s concerns about the transfer to the ICU. He reasoned that once there, she would get more attention and specialised care than in the ER. He regarded Ms. Gumbley’s condition, as recorded by the ICU nurse at 10:00 p.m., as showing essentially the same clinical status as had previously been observed prior to her departure from the emergency department.

[109] Dr. Vasiliou’s evidence is that the “formal” decision to intubate Ms. Gumbley was made by her at 11:00 p.m. To the extent that there is a record of the decision having been made at this time, there is a nursing note that Dr. Vasiliou was paged at 11:12 p.m. and responded by telling the nurse to “be ready for a possible intubation”. There is no notation of Dr. Vasiliou having attended the plaintiff’s bedside at that time.

[110] Dr. Ferguson’s opinion is that at that point (i.e., 11:00 p.m.), the decision to intubate was appropriate. Ms. Gumbley’s respiratory failure was advancing, her heart rate was increasing (in the 130s), her acidosis was worsening and she was continuing to desaturate. At this time, but not before, Dr. Ferguson was of the opinion that Ms. Gumbley met the “Box 4 criteria” (a reference to a list of “clinical observations indicating probable need for elective intubation and mechanical ventilation in acute asthma” in the Canadian Medical Association Journal article “Management of acute asthma in adults in the emergency department: assisted ventilation”, co-authored by Dr. McIvor).

[111] The entries made by the respiratory therapist and the ICU nurse record that the decision to intubate was made at 12:00 midnight. The only explanation offered by Dr. Vasiliou for the discrepancy was her assertion that the note is incorrect.

[112] Dr. McIvor’s opinion was that if Dr. Vasiliou in fact made the decision to intubate at 11:00 p.m., the delay in not completing intubation until more than an hour later was inordinate. According to him, once the decision was made, intubation should have been performed as promptly as possible. By contrast, Doctor Katchan was not concerned by the delay. Dr. Katchan saw benefit in proceeding slowly and keeping an open mind about changing course. And Dr. Vasiliou stated that while the need for intubation was “urgent”, it was not “emergent”.

The Records and Dr. Vasiliou’s Workload

[113] Dr. McIvor is highly critical of Dr. Vasiliou’s lack of record keeping. He expressed concerns about the lack of any record of instructions given to the nurses or respiratory therapists, the absence of any record of having checked for pulsus paradoxus (an exaggerated drop in systolic blood pressure when a patient breathes in, which is a measure of cardiovascular compromise that can be affected by the patient’s respiratory condition) and the lack of clear definition of the plan of management and follow-up. Dr. McIvor felt that the record keeping was so poor that it was difficult to see what decisions were being made by Dr. Vasiliou. His impression was that Dr. Vasiliou’s role was more reactive than proactive: she was being called, rather than herself going to see if treatments had been started. There were unexplained periods of apparent inactivity. Furthermore, the records did not adequately indicate when Dr. Vasiliou was there with the patient or what her thought process was leading to the decision to intubate.

[114] The lack of records concerning the placing of orders for arterial blood gas tests is given as an example, either of poor record keeping, or of things which were not actually done, despite Dr. Vasiliou’s evidence that they were.

[115] In respect of the latter, Dr. Vasiliou’s evidence was that there were at least two orders that she gave for arterial blood gas that were not recorded, and for which no results were recorded.

[116] Dr. Vasiliou acknowledged that her plan of management contemplated putting in place an arterial line (a thin catheter inserted into an artery, through which arterial blood gas samples can be obtained) as soon as possible after Ms. Gumbley was moved to the ICU. Yet, it was not until 12:23 a.m. on 10 October that there is a record of Dr. Vasiliou having ordered the insertion of an arterial line, following which an arterial line was placed by a respiratory therapist within minutes of the order being given.

[117] Dr. Vasiliou testified that her usual practice when a patient is transferred is to re-familiarise herself with the chart to see if she wanted to add anything. To the extent that Dr. Vasiliou did a reassessment at that time, she acknowledged that she had not documented it. Nor did she record having ordered an arterial blood gas, although she says there would have been a discussion with the respiratory therapist.

[118] Nevertheless, at 9:55 p.m. on 9 October, computer records show that Dr. Vasiliou accessed Ms. Gumbley’s chart and placed an order for “EDV68” (this was likely a test to rule out a viral infection, although when she testified at trial, Dr. Vasiliou was not certain about what she had ordered, or why).

[119] Then, at 10:23 p.m., Dr. Vasiliou saw the patient and gave an order for Ativan. She says that she would have had a conversation with the respiratory therapist about doing an arterial blood gas. Dr. Vasiliou testified that she was informing her to do it—that it was going to get done. But she could not answer why she did not record having placed an order for an arterial blood gas while she was at the computer entering the request for Ativan.

[120] As already referenced, Liji Joseph was a contract nurse working the overnight shift in the ICU on 9 October 2014. While she has no memory of the care she provided to Ms. Gumbley, the medical records indicate that she took over Ms. Gumbley’s care at 11:50 p.m., just a few minutes prior to intubation. Ms. Joseph testified that her page to the “emerge MD” at 11:50 p.m. reflected that both she and the respiratory therapist were concerned about Ms. Gumbley’s condition. She testified that as a nurse, she would expect the doctor to inform her of any special risks or issues with a patient that they shared. If she had been given any such specific or special instructions, she would have made a note of those instructions. She would also have made a note if the doctor was physically by the patient’s bed. Ms. Joseph testified that when she wrote, “paged emerge MD” in her note at 11:50 p.m., she would not have then paged the doctor if the doctor was in the ICU.

[121] Ms. Joseph explained that if a patient’s oxygen saturation fell below 90%, an alarm would go off. The patient would then be checked by a nurse and, if necessary, the respiratory therapist would be called, or the level of oxygen would be increased. Ms. Joseph acknowledged that “alarm fatigue” can occur, when many alarms are going off at the same time. A change in the patient’s oxygen saturation rate would typically be charted, but this would depend on how busy the nurses were.

[122] Dr. Vasiliou agreed that good medical record keeping is part of giving appropriate medical care, and that it should be possible from the records to discern the physician’s thought process. She said that ideally, she would have documented every encounter she had with Ms. Gumbley. That was not possible because she was busy. At any given time when working in the emergency department on a night call, Dr. Vasiliou acknowledged that she would have several patients waiting for her attention. She is always very busy. Sometimes, not having time to go to the bathroom herself.

[123] At one point in her testimony, Dr. Vasiliou said her expectation was that her resident, Dr. Kouri, who was helping her manage the patient load that evening, would make a note. But she conceded that she did not follow up with Dr. Kouri to confirm that he had done so. She also conceded that, to the extent that changes to her plan of management of Ms. Gumbley were not recorded, anyone looking at the notes would not have known what the changes were, but added that she would have had conversations with others involved in Ms. Gumbley’s treatment, and that they would be aware of what the plan was.

Decision to Intubate

[124] All of the medical witnesses acknowledged that ventilation is not a treatment for asthma, and that there are risks associated with intubation. Dr. Katchan emphasised the importance of avoiding unnecessary intubation. Dr. McIvor put it slightly differently, but to similar effect. He said that because of the complications associated with it, mechanical ventilation is not an ideal therapy for potentially fatal asthma.

[125] As Dr. Ferguson explained, the process involves mechanically pushing air into a lung, but because of airway narrowing, expelled air may not be able to get out. This can cause “gas trapping” and impede blood flow getting back to heart, potentially resulting in cardiac arrest and sudden death. There is also a risk of infection from inserting a tube into the lung. Ventilator-induced lung injury is another risk. When an asthmatic is intubated, there is also a risk that the patient’s underlying asthma can cause breath stacking and low blood pressure.

[126] The decision as to when to intubate involves the exercise of clinical judgment. Dr. Ferguson explained the importance of not wanting to make the decision too early, but not leaving it too late. The benefits must outweigh the risks. Physicians must, he said, look out for signs of respiratory muscle fatigue, CO2 levels rising above normal, a patient’s inability to breathe on their own and oxygen levels falling.

[127] Dr. Ferguson rejected the opinions of Dr. McIvor and Dr. Jayaraman, who both felt that the difficulty of ventilating Ms. Gumbley would have been mitigated if she had been intubated earlier.

Intubation by Most Experienced Available Clinician

[128] Dr. Vasiliou’s decision to intubate Ms. Gumbley would, she says, have been made after consultation with the attending nurse and the on-duty respiratory therapist (although Dr. Vasiliou does not have a specific recollection of such discussions).

[129] As of October 2014, Dr. Vasiliou estimates that patients under her care would need to be intubated two to three times per month. Dr. Vasiliou described the staff respiratory therapists as “highly skilled”. They perform a majority of the intubations at the Toronto East General Hospital and, after hours, a respiratory therapist would be the most readily available clinician. Dr. Vasiliou’s evidence was that if she had called an ICU doctor, it would have taken “at least 30 minutes” for the doctor to be on hand. Another option would have been to call the on-duty anaesthetist, but she said that he or she would not necessarily have been available as they would likely be managing patients in the operating room.

[130] In any event, Ms. Gumbley’s intubation was not straightforward. Undertaken by a respiratory therapist, Ms. Gumbley was not successfully ventilated until the third attempt.

[131] Both Dr. Ferguson and Dr. Katchan defended the use of a respiratory therapist to perform the intubation. All of the medical witnesses recognised the expertise of respiratory therapists to perform intubations in a variety of circumstances. Indeed, in urban community hospitals such as Toronto East General Hospital, and North York General Hospital, where Dr. Katchan practises, hospital policies explicitly contemplate respiratory therapists undertaking intubation of acute asthma patients. That said, Dr. Ferguson and Dr. Katchan both agreed that it would have been reasonable in the circumstances for Dr. Vasiliou to have lined up an anaesthetist to attend, but that not having done so did not fall below the standard of care.

[132] Dr. McIvor and Dr. Jayaraman part company with the experts called by the defence on what they see as a failure by Dr. Vasiliou to take steps to have the most experienced available person on hand at the time that Ms. Gumbley was intubated, specifically the on-duty anaesthetist, who was on the premises, or the on-call intensivist, who was a phone call and 30 minutes away. Both were of the opinion that in such a high-risk situation, Dr. Vasiliou’s reliance on the respiratory therapist and her failure to even attempt to bring in the most experienced person available to assist fell below the standard of care.

[133] It also bears noting that, in an article cited by Dr. Katchan, and marked as a trial exhibit—Charles J. Blevins, “Intubating Asthma”, Common Sense 28:1 (January/February 2021), at p. 32—the author comments:

As with all critically ill intubations, it goes without saying that the rate of first pass success is directly correlated to decreased adverse events. As such, the person intubating should be the physician with the most airway management experience.

[134] Dr. Jayaraman, noting that Ms. Gumbley was not only asthmatic, but a heavier woman, said that it was predictable that there would be an increased risk of laryngospasm, bronchospasm during the intubation, hypotension and cardiovascular collapse. Because of that, it was his opinion that Dr. Vasiliou should have anticipated such potential complications, and prepared appropriately. Critically, Dr. Jayaraman’s opinion was that it would be important to have the most experienced person on hand to perform the intubation.

Ventilation

[135] Following intubation, the respiratory therapist, Emily Arias, noted that Ms. Gumbley was very difficult to ventilate.

[136] Once ventilated, Dr. Katchan explained that the normal tidal volume (the amount of air that moves in or out of the lungs with each respiratory cycle) should be 350-500 mL. Ms. Gumbley’s was 119 mL following intubation and 118 mL at 1:00 a.m. Dr. Ferguson said that a recommended respiratory rate would be 8-16 breaths per minute. The Canadian guideline, based on one of the articles co-authored by Dr. McIvor, is 8-12 breaths a minute. As the Blevins article explains (at p. 33):

Respiratory rate is arguably the most important parameter in intubated asthmatics. Status asthmaticus is a disease of obstruction, air trapping, and impaired ventilation. The main goal of intubation, in addition to alleviating fatigue and hypoxemia, is to control ventilation, and the respiratory rate is key. Not allowing for adequate expiratory time will result in “air trapping,” also known as “breath-stacking”.

[137] For the first hour that she was ventilated, as Dr. Ferguson, among others, acknowledged, Ms. Gumbley was hypoventilated (inadequately ventilated), with a high respiratory rate of 22-30 breaths per minute, and very low tidal volumes between 75 and 119 mL: she was not getting enough air in because resistance was very high; while pressures on the ventilator were adequate to high (in Dr. Ferguson’s view), the resultant tidal volumes were inadequate.

[138] Oxygen saturation is one of the other metrics that is monitored. The Blevins article states (at p. 33):

An oxygen saturation greater than 94% should be the oxygenation goal of the severe asthmatic; with an ideal range of 94-98%. Rarely will a pure asthmatic require significant FiO2 [fraction of inspired oxygen (FiO2) is the concentration of oxygen in the gas mixture] to achieve this goal, and a reasonable number should be FiO2 around 40%. However, one would not be wrong to start the ventilator at 100% FiO2 and titrate down as tolerated; this depends on pre-oxygenation and post-intubation status.

[139] In Ms. Gumbley’s case, she was maintained on 100% oxygen for at least an hour following intubation. Dr. Ferguson testified that after intubation, oxygen should be titrated to achieve at least 88% PaO2 (partial pressure of oxygen), although he also said that it would not be uncommon for a patient to be left on 100% oxygen for an hour. Dr. Warner reduced the oxygen level to 62% when he took over Ms. Gumbley’s care.

[140] There are other ventilator settings and ventilation practices that were discussed during the course of the experts’ evidence at trial. For example, the setting of PEEP (positive end-expiratory pressure), which Dr. Ferguson agreed, in the circumstances of a severe asthmatic, is a very controversial issue. Accordingly, as Dr. Ferguson acknowledged, it would be optimal to have the most experienced person overseeing ventilation in those circumstances. Indeed, once Dr. Warner arrived, from 1:50 a.m. to 4:30 a.m. he was in constant attendance at Mr. Gumbley’s bedside, adjusting the ventilation and ultimately achieving an improvement in the acidosis and a reduction in Ms. Gumbley’s respiratory rate.

[141] In the note which she dictated at 12:31 a.m., Dr. Vasiliou recorded that Ms. Gumbley was given 120 mg of Propofol, 7 mg of Versed 7 and 75 mcg of Fentanyl, and was intubated. Her note continues:

End tidal CO2 was checked and three attempts were needed to have positive end tidal CO2 changes…Her tidal volumes are still quite low and so she will receive Rocuronium and Propofol infusion to help with her respiratory status. The patient was once more again [sic] reassessed and respiratory status was managed from 11:00 until 12:30 in the evening.

Dr. Vasiliou as a Witness

[142] Dr. Vasiliou was both polite and considerate, but at times also a difficult, and even argumentative, witness. The vagueness of many of her answers did little to allay concerns about her record keeping or the degree of her involvement with the plaintiff.

[143] Dr. Vasiliou acknowledged that she had no specific recollections of any of the treatment of, or her interactions with, Ms. Gumbley. Nor did Dr. Vasiliou recall any of her other patient encounters on 9/10 October 2014. She does recall her phone calls to Dr. Warner and Dr. Kulchyk and she remembers other “snippets” including talking to Dr. Reynolds.

[144] Dr. Vasiliou acknowledged that her notation “patient going into more respiratory distress” was not based on memory. If there had been any serious decompensation during the attempts to intubate, Dr. Vasiliou said that it would have been charted. Once the patient was ventilated and allowed to go into permissive hypercapnia, Dr. Vasiliou said that she “would” be dictating her note, would have met up with the resident, reviewed work that he had documented, reviewed with the respiratory therapist and “likely” gone back up to Ms. Gumbley.

[145] Dr. Vasiliou agreed (after some quibbling over the meaning of the term “uncomplicated”) that seeing patients with uncomplicated severe asthma, such as Ms. Gumbley, was not a regular feature of her practice. She might see a severe asthmatic requiring intubation a few times in her career. She had no experience treating a severe asthmatic with anaesthetic gases and, indeed, had never seen it happen before. Dr. Vasiliou said that she probably had not performed any intubations herself in the five years prior to 2014 (although she could not remember exactly when she had stopped doing them). She conceded that all of the emergency room physicians on duty at the hospital that evening would have had more experience intubating than she did (her expectation is that there would have been one to two emergency room physicians on duty at midnight).

[146] Dr. Vasiliou was unable to confirm what instructions she had given to the respiratory therapist with respect to the ventilator controls. She could not say what mode the ventilator was on or what instructions she might have given the respiratory therapist regarding PEEP. She agreed, however, that Ms. Gumbley was very difficult to ventilate. The plaintiff’s own spontaneous breathing overrode the ventilator in terms of her respiratory rate per minute. Dr. Vasiliou agreed with the proposition that Ms. Gumbley was, between midnight and 1:00 a.m., a very sick patient. She had never encountered that situation before.

[147] And yet, Dr. Vasiliou remembers nothing about Ms. Gumbley’s ventilation. She acknowledged that Ms. Gumbley’s ventilation had not been optimal between midnight and 1:00 a.m. She agreed that she had needed to reach out to Dr. Warner for his assistance in order to get the ventilator functioning properly.

[148] Despite the concession by Dr. Vasiliou that, between midnight at 1:00 a.m., Ms. Gumbley was not optimally ventilated, it was during that time that Dr. Vasiliou dictated her note. She was unable to say where she was when she dictated the note. She disputed whether stepping away for five minutes to make a note would have made any difference to Ms. Gumbley’s care, particularly as the respiratory therapist, who she described as more adept at operating the ventilator in any event, would have been at Ms. Gumbley’s side.

Analysis

[149] Dr. Vasiliou was clearly busy. She had worked intermittently during the day leading up to the commencement of her 6:00 p.m. shift.

[150] Dr. Vasiliou had multiple responsibilities on the overnight shift that commenced at 6:00 p.m. on 9 October 2014. As the internist on duty, she was expected to provide consultancy services to the emergency room doctors, to look after inpatients on the medical ward and to respond to questions from surgeons.

[151] There was no intensivist on duty at the hospital between 6:00 p.m. and 8:00 a.m., so Dr. Vasiliou became responsible for any patient admitted to the ICU after she came on duty—a responsibility which continued until sign-off the following morning. The plaintiff was such a patient.

[152] However, when Dr. Vasiliou paged Dr. Warner, the on-call intensivist, at 1:10 a.m. on 10 October, he was at the hospital and taking over as the MRP for Ms. Gumbley within 40 minutes.

Adequacy of Record Keeping

[153] All of the expert witnesses agreed that the initial admission note, dictated by Dr. Kouri on Dr. Vasiliou’s behalf, was thorough.

[154] Part of the challenge in determining how busy Dr. Vasiliou was on the night of 9/10 October, and how much of her time and attention was directed at Ms. Gumbley, is that the records kept by Dr. Vasiliou were sparse. She dictated a note that, by her own evidence, would have taken her five minutes, at 12:23 a.m., while the respiratory therapist was struggling to keep Ms. Gumbley adequately ventilated.

[155] Dr. McIvor’s opinion was that Dr. Vasiliou’s record keeping was so poor that it was difficult to see what decisions she was making and why she was making them.

[156] Dr. Ferguson agreed with the proposition that appropriate documentation is important. However, he said that whether documentation needs to be done in real time is less clearcut. His assumption was that Dr. Vasiliou undoubtedly had to attend to a number of patients and did not have time to document. In his opinion, the documentation was “adequate”, and it was more important for Dr. Vasiliou to focus on care. Dr. Ferguson acknowledged, however, that he did not know exactly what else was going on with Ms. Gumbley or any other patient that Dr. Vasiliou had at the time.

[157] Even appreciating that Dr. Vasiliou might have been busy, there are troubling omissions in her record keeping. She claims to have ordered arterial blood gas tests on two occasions between 9:30 p.m. and the time of intubation. An arterial puncture was required to take arterial blood, for which there must be a physician’s order. The order can either be entered by a doctor or given verbally to a respiratory therapist. The therapist would then be under an obligation to document the order. There are records that Dr. Vasiliou placed an order for EDV68 at 9:55 p.m. and for Ativan at 10:23 p.m. Yet, Dr. Vasiliou was unable to explain why did not record having placed an order for either of the arterial blood gas orders that she says she gave.

[158] Nor was Dr. Vasiliou able to explain why it was not until 12:23 a.m. on 10 October that there is a record of her having ordered the insertion of an arterial line, notwithstanding that her plan of management contemplated putting in place an arterial line as soon as possible after Ms. Gumbley was moved to the ICU (which occurred between 9:40 p.m. and 10:00 p.m.). In that regard, Dr. Vasiliou testified that her usual practice when a patient is transferred to the ICU is to re-familiarise herself with the chart at that time to see if anything needs to be added. To the extent that Dr. Vasiliou did any reassessment at the time that Ms. Gumbley was transferred to the ICU, there is no note of it.

[159] Although Dr. Vasiliou agreed that good medical record keeping is part of giving appropriate medical care and that ideally she would have documented every encounter that she had with Ms. Gumbley, on at least two occasions during her testimony, she attempted to shift the blame for inadequate record keeping onto either the respiratory therapist (in the case of the unrecorded arterial blood gas tests) or Dr. Kouri, a resident who, she said at one point during the course of her testimony, she expected to have made a note.

[160] Dr. Vasiliou’s testimony was peppered with references to “conversations” that she says she “would have” had with nurses and respiratory therapists. But there is no record of them.

[161] I agree with Dr. McIvor’s assessment that Dr. Vasiliou’s record keeping was so poor that it fell below the standard of care. I find Dr. Ferguson’s characterisation of the defendant’s record as “adequate” to be unconvincing.

[162] These concerns about Dr. Vasiliou’s record keeping are compounded by the fact that even though she testified that she had only dealt with an asthmatic requiring intubation a few times in her career, she has no recollection of intubating Ms. Gumbley. I find that difficult to comprehend given the seriousness and rarity of the events of her tenure as the MRP for the plaintiff.

[163] Even the busiest of physicians, if as invested in Ms. Gumbley’s treatment and care as Dr. Vasiliou claims to have been, would be expected to have a better recollection of the events than the defendant professes to have.

[164] I give Dr. Vasiliou’s evidence of what her usual practice would have been only limited weight, given the extent of the gaps in the records and her almost total lack of first-hand recollection.

[165] It should be acknowledged that on the night in question, there was scheduled routine systems maintenance being undertaken at the Toronto East General Hospital, as a result of which some records which would normally have been entered into the hospital computer system, had to be done manually. The nurses and respiratory therapists seem to have been able to cope with this.

[166] The IT issues at the hospital do not explain or excuse Dr. Vasiliou’s shortcomings.

[167] Aside from Dr. Vasiliou’s lack of adequate record keeping, major areas of concern arise from the evidence concerning her care for Ms. Gumbley.

Consultation with Dr. Warner and the Timing of Intubation

[168] There were clearly different resources available to Dr. Vasiliou at Toronto East General Hospital than would have been the case at one of the major downtown Toronto hospitals. One difference would be the absence of an on-duty intensive care specialist.

[169] Dr. Vasiliou said that at 9:30 p.m., coincident with her ordering an arterial blood gas, she started to consider intubation. She was hoping that Ms. Gumbley might yet respond to treatment. The physical transfer to the ICU was imminent, and she knew that the respiratory therapists preferred to intubate patients in the ICU, which she described as a more controlled setting for them. She also wanted to have the ABG results, explaining that she wanted a full picture before deciding whether the benefits of intubation would outweigh the risks.

[170] The ABG results showed metabolic acidosis. Ms. Gumbley’s pCO2 (of 38 mmHg) was a couple of points higher than what Dr. Vasiliou would expect, but she said that she would not have considered intubating based on the ABG.

[171] Ms. Gumbley’s transfer to the ICU began at 9:40 p.m. The readings taken at 10:00 p.m. were indicative of continued deterioration. At 10:30 p.m., Dr. Vasiliou said that she had not stopped being concerned about Ms. Gumbley. However, she felt that Ms. Gumbley had plateaued. Dr. Vasiliou was thinking that she needed to get some more datapoints, and if there was no improvement, she would have to think about intubation. She “would have” spoken to the respiratory therapist and given a verbal order for an ABG.

[172] Dr. Jayaraman, who trains physicians to become internal medicine specialists, testified that internal medicine physicians like Dr. Vasiliou are not expected to be experts in treating severe asthmatics. They are, however, trained to call for help when required from a more appropriate specialist.

[173] Dr. McIvor believes that Dr. Vasiliou failed to appreciate the severity of Ms. Gumbley’s situation. Her prior history of ventilation and her presentation should have raised the level of concern that intubation might be required. At a minimum, his view was that the plaintiff required far more active observation and management than Dr. Vasiliou provided. In his view, Dr. Vasiliou’s responsibilities included ensuring that the resources needed to manage the patient—such as the intensivist and/or anaesthetist—were alerted and available.

[174] In terms of Dr. Vasiliou’s appreciation of Ms. Gumbley’s situation, Dr. Katchan’s opinion was that just by virtue of putting the plaintiff in the ICU, it would have been understood that she had potentially fatal asthma.

[175] To some extent, Dr. Ferguson’s evidence supports the concerns expressed by the plaintiff’s experts. Although he was only prepared to concede that there would have been no downside to Dr. Vasiliou calling Dr. Warner in at 9:40 p.m., he acknowledged that the fact of a previous intubation made a severe exacerbation more likely.

[176] It is not as if the necessary resources were not available. To the extent that there are differences between how an internal medicine specialist in a community-based hospital versus a non-community-based hospital should deal with a situation such as that presented by Ms. Gumbley, the differences would be being particularly vigilant to risk factors that exist because of the availability of help and engaging proactively with the specialist assistance that might be needed (in this case, Dr. Warner).

[177] I accept the opinion of Dr. Jayaraman, and also that of Dr. McIvor that there was ample evidence to indicate the potential for Ms. Gumbley’s situation to worsen to a point where it became life-threatening, and that it was unreasonable for Dr. Vasiliou not to have consulted with Dr. Warner far earlier in the evening than she did. No later than 9:30 p.m. when, by her own evidence, she started to consider intubation. Instead, Dr. Vasiliou took a “wait and see” approach, hoping for the best, but not adequately preparing to meet the foreseeable risk.

[178] As will be discussed in relation to causation, the failure to consult with Dr. Warner sooner likely had a knock-on effect on the timing of Ms. Gumbley’s intubation and the personnel on hand to perform that procedure.

[179] At 10:23 p.m., Dr. Vasiliou was paged to the ICU and saw Ms. Gumbley at 10:30 p.m. There is no contemporaneous note of that attendance.

[180] At trial, Dr. Vasiliou said she made the decision to intubate the plaintiff at 11:00 p.m. It is at this time that the nurse noted a pulse of 130, that Dr. Vasiliou believes the (undocumented) ABG would have come back, that Ms. Gumbley continued to be short of breath and Dr. Vasiliou would have had enough indications to say that there had been no sustained improvement in the plaintiff’s condition. There was a risk that Ms. Gumbley could tire and become unstable. So, it was time to intubate.

[181] Ms. Gumbley was not, however, intubated until an hour later, an interval that is not explained. The entries made by the respiratory therapist and the ICU nurse recording that the decision to intubate was made at 12:00 midnight were described by Dr. Vasiliou as being “incorrect”. When Nurse Joseph became involved with Ms. Gumbley’s care at 11:50 p.m., just a few minutes prior to intubation, her evidence is that she would have made a note if the doctor was physically present beside the patient’s bed. Her notation “paged emerge MD” at 11:50 p.m. indicated to her that Dr. Vasiliou was not present. To similar effect, she said that she would have made a note of any special risks or issues with a patient that she was informed of by Dr. Vasiliou. There is no such note.

[182] All of the experts agree that the decision to intubate involves the exercise of critical judgment. The experts disagree about whether Dr. Vasiliou’s exercise of her judgment fell below the standard of care.

[183] Drs. McIvor and Jayaraman both expressed the opinion that by 9:40 p.m. to 10:00 p.m., there was sufficient evidence of the direction that things were going in for the decision to be made to intubate.

[184] A recurring criticism that Dr. McIvor makes of Dr. Vasiliou is that she was reactive, not proactive. He felt that she did not carry out regular clinical and objective assessment of Ms. Gumbley. Her failure to make any use of a peak flow monitor or more proactive use of arterial blood gas meant that important information that should have guided her management of the plaintiff was not available to her.

[185] Although it is submitted by the plaintiffs that Nurse Joseph’s note is indicative of the decision to intubate not being made until midnight, the parties agree that other notes indicate that the intubation (after three attempts) was completed by midnight. However, those notes include late entries made by the respiratory therapist at 3:32 a.m., so the precise timing of the intubation may not be accurately reflected.

[186] Having regard to all of the evidence, it seems likely that the decision to intubate was made at or around 11:00 p.m., despite some evidence that it may not have been until later. Once the decision was made, however, I accept the opinion of Dr. McIvor that the procedure should then have been conducted as soon as possible. Dr. Ferguson agreed. His evidence was that once the decision to intubate has been made, the judgment has been made that the benefit outweighs the risk, and it should be done as soon as possible, appreciating that it could take between 15 and 30 minutes to “pull everything together”.

[187] Both Drs. Katchan and Ferguson were supportive of Dr. Vasiliou’s exercise of clinical judgment in deciding to intubate Ms. Gumbley as described in her progress note dictated following the intubation. According to Dr. Ferguson, none of the Box 4 criteria set out in Dr. McIvor’s paper on assisted ventilation were met prior to the final decision by Dr. Vasiliou.

[188] If Dr. Warner had been called at 9:30 p.m., or even 10:00 p.m., it is probable that he would not have been physically by Ms. Gumbley’s bedside by no later than 10:30 p.m. However, and regardless of whether Dr. Warner would have been present or not, by that time, Dr. Vasiliou knew and acknowledged that:

a. Ms. Gumbley had a potentially life-threatening condition which was a medical emergency;

b. Ms. Gumbley had previously been intubated for asthma and was at risk for fatal asthma;

c. Ms. Gumbley required “essentially minute to minute constant monitoring”;

d. Ms. Gumbley was increasingly short of breath;

e. Ms. Gumbley had likely not improved following the administration of Epinephrine;

f. She did not have the skills and experience to intubate Ms. Gumbley herself;

g. She did not have significant experience in treating or ventilating an asthmatic patient requiring intubation; and

h. She already had other significant patient responsibilities in the hospital.

Intubation by the Most Experienced Available Clinician

[189] Even in the most capable hands, intubating a patient can be challenging.

[190] Respiratory therapists have specialised training to undertake this procedure. As Dr. Vasiliou testified, respiratory therapists undertake the majority of intubations at her hospital. Dr. Katchan’s evidence was to similar effect. At his hospital, the hospital’s policies explicitly contemplate respiratory therapists undertaking intubation of acute asthma patients.

[191] Drs. Katchan and Ferguson nevertheless agreed that it would have been reasonable in the circumstances for Dr. Vasiliou to have made arrangements for an anaesthetist to attend the intubation of Ms. Gumbley.

[192] One of Dr. Vasiliou’s explanations for not having arranged for an anaesthetist to attend to the intubation was that the on-duty anaesthetist might have been busy in the operating room or elsewhere. The fact is that she did not ask. She has no idea whether, had she asked the on-duty anaesthetist to attend, that the specialist would have done so. It is also fair to assume that Dr. Warner would have been at Ms. Gumbley’s bedside within 30-40 minutes if he had been summoned given that the hospital's policy required him to arrive within 30 minutes of being called in (and he did so).

[193] I agree with Dr. McIvor and Dr. Jayaraman that it was Dr. Vasiliou’s responsibility, given Ms. Gumbley’s risk factors, to have taken all reasonable steps to have the most experienced available person on hand to intubate her. This could have been either Dr. Warner, the on-duty anaesthetist or even one of the doctors in the emergency department.

[194] The views expressed by Dr. McIvor and Dr. Jayaraman in this regard are reinforced by the Blevins article, cited by Dr. Katchan.

[195] There is no evidence that Dr. Vasiliou even considered entrusting the intubation to anyone other than the on-duty respiratory therapist, let alone taking proactive steps to ascertain whether a more experienced professional was available.

Post-Ventilation Monitoring

[196] Once intubated, it was abundantly clear that Ms. Gumbley was struggling. Ventilation was not optimal. By any measure, her situation was serious. Dr. Vasiliou recognised as much and testified that after ventilation, Ms. Gumbley remained her priority, notwithstanding her other responsibilities that night.

[197] There was consensus that the adjustment of ventilator settings is challenging and can be complex. One of the reasons Dr. McIvor gave for his position that Dr. Warner should have been brought in sooner was that Dr. Warner would have been in a better position to manage ventilation, including the earlier introduction of anaesthetic gases if that was indicated.

[198] In her evidence in chief at trial, Dr. Vasiliou conceded that she may not have constantly been at Ms. Gumbley’s bedside, but she was managing her care and communicating with the respiratory therapist. However, on cross-examination, when referred to the transcript of her examination for discovery taken in 2017, she stated that after Ms. Gumbley was intubated, she would have left, and would have waited to be called for any changes, continuing that she returned an hour later when the blood gas had worsened and likely had not seen the patient in that intervening time. The respiratory therapist would have been with Ms. Gumbley throughout and was, according to Dr. Vasiliou, the resident expert on ventilator settings and, hence, the one she was relying on.

[199] The arterial line was inserted by the respiratory therapist at 12:23 a.m. The precise time of delivery of the results is not recorded (the agreed statement of facts places the time as “00:00 to 01:00”). For the first time, Ms. Gumbley’s pH had dropped below 7 and she had a pCO2 of 139, which was severe respiratory acidosis (a condition that arises from elevated carbon dioxide in the blood due to a decrease in respiratory rate, breath size or lung function). Dr. Vasiliou was informed of the results and called Dr. Warner.

[200] Dr. Ferguson was supportive of Dr. Vasiliou’s reliance on the respiratory therapist to manage the plaintiff’s mechanical ventilation. His experience is that most internists would rely on the advice of the respiratory therapist and call in a colleague if that advice was not leading to the desired result.

[201] Asked whether, if the blood gas results were available at 12:40 a.m. (after the arterial line had been inserted), but Dr. Warner was not called until 1:10 a.m., such a delay in contacting Dr. Warner would be considered sub-standard, Dr. Katchan said that he did not see that as a significant delay, and as soon as Dr. Vasiliou appreciated what was going on, she called Dr. Warner.

Conclusion on the Issue of Negligence

[202] Many of the allegations of negligence against Dr. Vasiliou relate to her decision-making. In assessing those allegations, I have reminded myself of the distinction between, on the one hand, errors of clinical judgment not amounting to negligence and, on the other, acts and omissions falling below the standard of care.

[203] I have already concluded that Dr. Vasiliou’s record keeping was sub-optimal, and this is a factor that bears upon my assessment of her decision-making and management of the plaintiff, particularly where I am left to speculate on what Dr. Vasiliou “would have” done, as opposed to what was actually done (or not done).

[204] Both Dr. Ferguson and Dr. Katchan maintained that, while there were other options available to Dr. Vasiliou, none of her decisions and, hence, the exercise of her clinical judgment, fell below the standard of care.

[205] For example, Dr. Ferguson agreed that if a physician is too busy to provide appropriate care, the physician should call for help to a physician who is readily available and who does have time to provide appropriate care. He also testified that there would have been no downside to Dr. Vasiliou calling Dr. Warner to come and take over the plaintiff’s care at 9:40 p.m. But her failure to make these choices was not, in his opinion, unreasonable.

[206] Dr. Katchan brought the perspective of an internist working in a similar community-based hospital to Toronto East General Hospital. His assessment of the reasonableness of Dr. Vasiliou’s treatment was in large measure based on his own practice. He, like Dr. Jayaraman, was testifying in court as an expert witness for the first time. The value of his assistance was somewhat tainted by an unwillingness under cross-examination to consider alternative scenarios.

[207] Where there are differences between the opinions of the experts on whether, and if so in what respects, the defendant’s discharge of her professional responsibilities fell below the standard of care, I have for the most part preferred the evidence of Dr. McIvor and Dr. Jayaraman. I found the evidence of Dr. Jayaraman, who testified that as an intensivist, he gets called in to the ICU to assist with severe asthma attacks eight to ten times a year (around a quarter of whom have to be intubated) particularly helpful. His experience training internal medicine residents was also of value.

[208] I would add that I reject the implication that, as a physician practising in Montréal, with no history of having practised in Ontario, Dr. Jayaraman was less qualified to opine on the standard of care than the defence experts.

[209] My findings on the allegations of negligence against Dr. Vasiliou are as follows:

a. Her record keeping was inadequate and fell below an acceptable standard of practice. Her evidence about what her usual practice would have been was unconvincing and did not greatly assist me in determining the facts. Her lack of almost any recollection about her interactions with Ms. Gumbley is difficult to comprehend.

b. Her failure to request assistance from Dr. Warner sooner was, in the circumstances, unreasonable, and deprived Ms. Gumbley of the opportunity to receive timely benefit of his expertise. A reasonable internist in her position would have made the request to Dr. Warner to come in by no later than 10:00 p.m.

c. It would have been reasonable to have made and executed the decision to intubate Ms. Gumbley either just before her removal to the ICU (so at 9:40 p.m.) or upon her arrival in the ICU (10:00 p.m.). I find the reasoning of Drs. McIvor and Jayaraman in this regard to be persuasive. Appreciating that, as Dr. McIvor acknowledged, the decision to intubate is a multifactorial one, had Dr. Vasiliou left the judgment call to intubate Ms. Gumbley until as late as 10:30 p.m., I would not regard her decision at such time to be an error that no reasonable doctor would have made in similar circumstances. But the delay until 11:00 p.m. (or later) was unreasonable, and fell below the standard of care.

d. Once the decision to intubate had been made, it was Dr. Vasiliou’s responsibility to ensure that it was executed as quickly as reasonably possible. Appreciating that it might take between 15-30 minutes to “pull everything together”, to quote Dr. Ferguson, the delay of as much as a full hour was unexplained and unacceptable. Dr. Vasiliou’s testimony that the need to intubate the plaintiff was “urgent but not emergent” underscores Dr. McIvor’s view that the defendant had not fully grasped the seriousness of the plaintiff’s predicament. I conclude that the defendant did not meet her responsibility as the MRP to ensure the timely implementation of the decision to intubate and, as such, did not meet the standard of care.

e. Given the correlation between decreased adverse events and the rate of first pass success in intubation, it was an unreasonable failure of clinical decision making on Dr. Vasiliou’s part not to have given any consideration to having, let alone make all reasonable attempts to have, the most experienced available physician on hand to perform the intubation.

f. It was immediately apparent that, following intubation, Ms. Gumbley was not getting adequate ventilation. As soon as Dr. Warner was consulted, steps were taken to deploy anaesthetic gases. Once Dr. Warner arrived and took over, he was in constant attendance with the plaintiff until 4:30 a.m. Some adjustments were made to the ventilator settings (although the evidence does not indicate that the changes were significant). The plaintiff’s acidosis, respiratory rate and pCO2 all improved. The plaintiff’s experts felt that Dr. Warner should have been involved prior to the plaintiff’s intubation, and had that happened, the odds of a better outcome would have improved. However, Dr. Vasiliou, by her own admission, deferred to the respiratory therapist so far as the ventilator settings were concerned. While one might question why Dr. Vasiliou would not have remained at the bedside of Ms. Gumbley after she was ventilated, given the dire straits she was in, there is no evidence that Dr. Vasiliou’s absence, or her supervision or management of the plaintiff’s ventilation between the completion of the intubation procedure and the receipt of the arterial blood gas result, fell below the standard of care. Her error was not having had someone better equipped than she was to supervise and manage not only the intubation but also the subsequent ventilation of her patient.

2. Causation

[210] Having made findings that Dr. Vasiliou was negligent, it must also be established that her negligence was causative of the outcome, meaning that but for those breaches, Ms. Gumbley would not have sustained a brain injury.

[211] Whether Ms. Gumbley developed a number of lesions in her brain is not an issue. What is disputed is what caused the lesions and when they occurred.

Law

[212] Legal causation requires the plaintiffs to prove, on a balance of probabilities, that the injury would not have occurred “but for” Dr. Vasiliou’s negligence. The onus rests on the plaintiffs to prove on a balance of probabilities that the defendant’s negligence caused the plaintiffs harm both in fact and in law: Bendah, at para. 149; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 144, at para. 11.

[213] Scientific proof of causation is not required; rather, courts are required to take a “robust and pragmatic” approach when determining whether the plaintiff has proved that the defendant’s negligence caused a loss: Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 54. However, the plaintiff will not meet this burden by demonstrating the mere possibility of a causal connection: Granger v. Ottawa General Hospital, [1996] 7 O.T.C. 81 (Gen. Div.), at para. 37.

[214] A clear and succinct articulation of the “but for” test was provided in Donleavy v. Ultramar Ltd., 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at paras. 62 and 72 (also cited by Wilson J. in Bendah, at para. 158):

The “but for” test is generally applied in establishing causation in the tort of negligence. It requires a plaintiff to prove, on a balance of probabilities, that without the negligence of one or more of the defendants, the injury would not have occurred. A defendant’s negligence is thus a necessary factor to bring about the injury…

…Causation is made out under the “but for” test if the negligence of a defendant caused the whole of the plaintiff’s injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained. Causation requires a “substantial connection between the injury and the defendant’s conduct”[.]

[215] As Professor Knutsen has written, the “but for” test is not an easy test to apply: Erik S. Knutsen, “Coping with Complex Causation Information in Personal Injury Cases” (2013) 41 Adv. Q. 149, at 151. He continues:

To fulfill the causation requirement, the test forces us to ask: if the defendant had not breached the standard of care, would the plaintiff have suffered the specific harm she suffered that could be attributable to the defendant’s at-fault behaviour? So we must think about the state of affairs where the defendant met the applicable standard of care, and then ask whether or not the plaintiff would still have suffered a particular brand of harm that may have flowed from the defendant’s conduct.

[216] I have found that Dr. Vasiliou was negligent because of her failure to call Dr. Warner sooner—by 9:30 p.m. or 10:00 p.m. at the latest; her failure to make the decision to intubate Ms. Gumbley earlier (by 10:30 p.m. at the latest); having made the decision to intubate, her failure to execute it as soon as possible; and, her failure to ensure that the most experienced clinician available undertook the intubation and managed the subsequent ventilation of Ms. Gumbley.

[217] All of these findings of negligence reflect omissions on the part of Dr. Vasiliou. This presents an evidentiary challenge for courts. As the Court of Appeal explained in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, at para. 46:

When what is in issue is not the defendant’s act, but an omission, the trier of fact is required to attend to the fact situation as it existed in reality the moment before the defendant’s breach of the standard of care, and then to imagine that the defendant took the action the standard of care obliged her to take, in order to determine whether her doing so would have prevented or reduced the injury. Even though this exercise is bounded significantly by the actual facts, it counts as “factual” because the task is to consider how the events would actually have unfolded had the defendant taken the action she was obliged to take.

[218] In an action for delayed medical diagnosis and treatment, the plaintiff’s onus is to establish that but for the delay, the plaintiff would not have suffered the unfavourable outcome.

[219] Part of the challenge in this case is the absence of evidence as to Ms. Gumbley’s precise oxygen saturation status in the 90 minutes prior to intubation, which I find to be a result of either Dr. Vasiliou’s failure to document, or have documented, the results for the two ABG orders that she says she gave, or because of her failure to order the ABGs at all.

[220] It has been held that in some circumstances, where a defendant’s negligence is the cause of an absence of evidence, an adverse inference of causation may be drawn against the defendant. As this court found in Fleury (Estate) v. Kassim, 2022 ONSC 2464, 82 C.C.L.T. (4th) 211, at para. 112:

Whether an inference of causation is warranted, and how it is to be weighed against the evidence, are matters for the trier of fact. However, a court must be cautious in this approach in order to avoid creating a consequential reversal of the burden of proof. Benhaim v. St. German [sic], 2016 SCC 48 at para 42 and 66-67.

[221] To similar effect, in Hanson-Tasker v. Ewart, 2023 BCCA 463, the court stated, at para. 80:

…in cases of negligently-created causal uncertainty where a plaintiff adduces some evidence of causation, it is open to a trial judge to draw a causal inference unfavourable to the defendant that serves to discharge the plaintiff’s burden of proof: Benhaim at para. 42. The inference operates as something of a counterweight, offsetting the imbalance and consequent unfairness that may arise, particularly when a defendant seeks shelter in the evidentiary vacuum created by their own negligence and relies on the burden of proof shouldered by the plaintiff to defeat the claim. The underlying policy goal seeks to balance two considerations: (1) ensuring that defendants are held liable for injuries only where there is a substantial connection between the injuries and their fault; and (2) preventing defendants from benefiting from the uncertainty created by their own negligence: Benhaim at para. 66.

[222] Causation cannot be based on uninformed speculation. Nor is it sufficient to prove that a patient would have had a better chance to avoid the outcome at issue had the physician met the standard of care. It must still be proved that treatment which met the standard of care more likely than not would have avoided the eventual outcome. It is not sufficient to prove that adequate treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not”: Cottrelle v. Gerrard (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.), at para. 25.

Evidence on Causation

[223] There is no consensus, either between the treating physicians or the expert witnesses, on the exact cause or the timing of Ms. Gumbley’s brain injury.

[224] During the days and weeks following Ms. Gumbley’s ventilation, she was assessed, investigated and cared for by a variety of specialists and medical personnel at the Toronto East General Hospital.

[225] By agreement between the parties, the opinions expressed by the plaintiff’s treating physicians are being tendered only as part of the factual matrix, rather than for the truth or accuracy of those opinions.

[226] In cases such as this, where causation is a critical issue, the court is heavily reliant on expert opinions from specialists in their respective fields. Despite their undoubted expertise, and their commitment to provide opinion evidence that is fair, objective and non-partisan, there was considerable disagreement among the experts on the issue of causation.

Hypoxemia

[227] In a critical care note dictated by Dr. Warner, he recorded that: “Around midnight, [Ms. Gumbley] required intubation because of severe respiratory acidosis and hypoxemia”. Dr. Warner was not called as a witness. His note was dictated at 5:08 p.m. on the same day that he had taken over as MRP for Ms. Gumbley.

[228] Dr. Vasiliou could not say where Dr. Warner would have got that information from. She had a conversation with him, but cannot recall word for word what was said. However, she felt comfortable saying that she did not tell Dr. Warner that Ms. Gumbley had been hypoxemic, noting that in her own note, she had used the term desaturation.

[229] Drops in oxygen saturation below 90% would typically have been recorded, according to Nurse Joseph, although this would depend on how busy the nurses were. “Alarm fatigue” could also occur. The lack of oxygen saturation values between 10:30 p.m. and 12:00 a.m. on 10 October could also possibly be a reflection of the scheduled downtime for the electronic medical record system. And, as already discussed, if arterial blood gases were ordered, the results were not recorded.

[230] In the absence of records of Ms. Gumbley’s oxygenation levels, the most reasonable inference is that Dr. Vasiliou was, in fact, the source of Dr. Warner’s note that, at around midnight, Ms. Gumbley had required intubation because of, inter alia, hypoxemia (Dr. Ferguson explained that the terms “hypoxia” and “hypoxemia” are often used interchangeably; “hypoxemia” means low levels of oxygen in the blood, whereas “hypoxia” is a more generic term for low levels of oxygen supply to the tissues).

Anisocoria

[231] The first indication that Ms. Gumbley suffered neurological damage was on 16 October 2014 when anisocoria (unequal pupil size) was observed for the first time. This came soon after she experienced a number of other symptoms, including increased urinary output and recently diagnosed diabetes insipidus (a condition where the kidneys excrete a large amount of fluid when the antidiuretic hormone (ADH) required by the kidneys is deficient). Up to that point—between 9 October and 15 October—the pupils reacted to light symmetrically; at times being non-reactive, sluggish or reactive to light.

Imaging Results

[232] A neurology consultation note on 20 October 2014 from Dr. Rossen Roussev summarised the result of a CT scan of Ms. Gumbley’s brain:

CT scan has been performed showing the appearance of multiple infarcts including an infarct in the pons and unusually at the corpus callosum. Osmotic myelinolysis was also considered as a possibility however the patient was not hyponatremic and has not been subject to rapid electrolyte correction.

This lady presents with severe neurological impairment, dilated left pupil, progressive dilatation of the right pupil and decreasing pupillary reaction. On ophthalmoscopic examination she has papilledema. Her CT scan has demonstrated multiple infarcts raising the possibility of embolic source or perhaps with the increased intracranial pressure consideration could be given to a veno occlusive disease.

[233] Dr. Jeff Mandelcorn reported the findings of Magnetic Resonance Imaging (MRI) undertaken on 29 October:

There is evidence of mild restricted diffusion within the mid left pons, medial left cerebral peduncle, extending into the bilateral basal ganglia regions abutting the bilateral internal capsules right greater than left, also involving the splenium of the corpus callosum.

There is abnormal T2/FLAIR signal seen within the left medial inferomedial cerebellum, left mid pons, left medial cerebral peduncle extending into the bilateral thalami abutting the posterior limbs of the internal capsules, a focus within the right-sided external capsule, and involving the splenium of the corpus callosum. Other punctate foci of predominantly deep white matter signal extending in the frontoparietal regions toward the vertex are seen.

When Did Brain Damage Occur?

[234] As already referenced, Dr. Hillmer felt that the brain damage occurred at the time that Ms. Gumbley was "at her sickest" and could have been related to low oxygen levels or high carbon dioxide levels, or somehow related to the anaesthetic gas that was required to treat her extremely severe asthma.

[235] Dr. Robert Chen, a neurologist, was called by the plaintiffs. He works as an attending neurologist at the University Health Network in Toronto and is a full professor of medicine (neurology) at the University of Toronto.

[236] His opinion was that Ms. Gumbley’s brain injury was most likely caused by the combination of hypoxia, together with the severe acidosis and hypercarbia that she suffered on 9 October 2014 prior to intubation.

[237] Dr. Chen acknowledged that the absence of documentation regarding oxygen saturation between 10:30 p.m. and midnight made it less easy to determine the likely cause of Ms. Gumbley’s brain injury, but in coming to his opinion, he derived assistance from Dr. Warner’s reference to the plaintiff’s severe respiratory acidosis, and the note dictated by Dr. Vasiliou at 12:31 a.m. on 10 October, which referred to Ms. Gumbley continuing to desaturate.

[238] Dr. Chen explained that hypoxia is well known to cause brain injury: brain cells need an oxygen supply to create energy. Without oxygen, the brain cells swell and eventually die. The other conditions—acidosis and hypercarbia—added to the stress placed on these cells, making them more vulnerable to other types of injury. The MRI imaging was consistent with cytotoxic edema, which would be indicative of metabolic insult. Dr. Chen reiterated that in his view it was the combination of metabolic disturbances that likely caused the plaintiff’s injury.

[239] Dr. Gordon Cheung is a neuroradiologist, who was called as an expert witness by the plaintiff. He was the only neuroradiologist to testify. In the course of preparing his opinion, he first did a blind review of the diagnostic imaging of head imaging for Ms. Gumbley. Only then did he review the reports of, inter alia, Dr. Lazarou, Dr. Pelz (a neuroradiologist retained by the defendant, but ultimately not called as a witness) and Dr. Chen, as well as the medical records and diagnostic reports.

[240] Dr. Cheung described the lesions on Ms. Gumbley’s brain as bilateral and relatively symmetrical, which could have been caused by anoxia (absence or deficiency of oxygen), hypoxia or hypoxic-ischemic events, cardiac arrythmia, reduced blood flow to the brain, reduced blood oxygen or energy to the brain, carbon monoxide poisoning or toxic and other metabolic events. Specifically, his opinion was that the pattern of injury demonstrated on the brain injury was consistent with a combination of hypoxic, metabolic and toxic injuries.

[241] Based on his review of the MRI images of Ms. Gumbley’s brain taken on 29 October 2014, Dr. Cheung opined that the injuries observed occurred at least several days, if not a week or more, prior to the imaging. In his opinion, the imaging would be consistent with an injury having occurred on 9 or 10 October and, taking into account the clinical data, including the documented references to hypoxia, oxygen desaturation, metabolic abnormalities and elevated carbon dioxide, his opinion was that the injury likely occurred on 9 or 10 October. That said, Dr. Cheung did not rule out the possibility that the injury had occurred later than that, for example, on 15 October—i.e., the day before anisocoria was observed.

[242] The defendant called Dr. Jason Lazarou, a general neurologist at Mount Sinai Hospital in Toronto and an educator at the University of Toronto. Dr. Lazarou stated that he did not know what the cause of Ms. Gumbley’s brain injury was. However, he believed the injury occurred somewhere between 15 and 16 October, albeit on what he conceded was very limited clinical evidence.

[243] Dr. Lazarou explained that asymmetric pupils can be a sign of brain lesion. His opinion was that the asymmetrical pattern of brain injury was not consistent with hypoxia or with hypercarbia (an elevation in the arterial carbon dioxide tension). It would take about four minutes for a brain injury to start developing after complete interruption of oxygen. If there was a decrease in oxygen, it would have taken much longer for brain damage to develop. He saw no evidence in the records that would suggest hypoxia had occurred.

[244] Dr. Lazarou also indicated that, typically, hypoxia would affect the basal ganglia area of the brain in a symmetrical fashion. In Ms. Gumbley’s case, Dr. Lazarou noted that the areas of the brain affected were the left pons, left cerebral peduncle, the internal capsule (more on the right than on the left side), the splenium of the corpus callosum, the left cerebellum and the basal ganglia bilaterally, but not symmetrically. The cerebellum is most often involved in hypoxic brain injury, although damage to the pons area is possible. In both cases, the injury would be expected to be symmetrical. The corpus callosum is rarely involved in a hypoxic injury.

[245] In addition, the diagnosis of diabetes insipidus could suggest damage to the hypothalamus, which is part of the brain responsible for the delivery of ADH. However, on cross-examination, Dr. Lazarou acknowledged that records of urinary output subsequent to 16 October would not be indicative of brain injury.

[246] While he maintained that one possible cause of the brain damage was ischemic stroke, Dr. Lazarou was prepared to defer to the opinion of Dr. Cheung that the brain imaging was also highly unusual for stroke. He also acknowledged that he had not, in the reports that he prepared, made reference to a critical care note authored by Dr. Warner which recorded that Ms. Gumbley had required intubation because of severe respiratory acidosis and hypoxemia. Nor had he mentioned Dr. Hillmer’s view that the brain damage occurred at the time that Ms. Gumbley was “at her sickest” because he did not agree with it.

[247] Importantly, in my view, Dr. Lazarou acknowledged an absence of reported hypoxia was important to his conclusions and, hence, conceded that he would reconsider his opinion if there was evidence that Ms. Gumbley had experienced hypoxia before or during intubation.

The Effect of Intubation Performed Earlier and/or by a More Experienced Clinician

[248] Dr. McIvor’s opinion was that if the plaintiff had been intubated earlier, she would have recovered, although he conceded that the plaintiff may still have required the assistance of anaesthetic gases during ventilation.

[249] Dr. Jayaraman felt it was likely that the plaintiff experienced hypoxia during intubation. He, too, felt it was likely that if she had been intubated earlier, she would have made a full recovery and the need for treatment with anaesthetic gases would have been reduced.

[250] In Dr. Chen’s opinion, an earlier intubation would likely have avoided these severe metabolic disturbances and, hence, avoided the brain injury which the plaintiff sustained.

[251] Ms. Gumbley’s previous experience of intubation with a successful recovery at Scarborough General Hospital was seen by both Dr. McIvor and Dr. Jayaraman as the likely outcome if Dr. Vasiliou had met the standard of care. As Dr. McIvor put it, the care she received made a difference to the outcome. Whether she would still have needed anaesthetic gases or not, his opinion was that more timely treatment with the appropriate professionals deployed to care for Ms. Gumbley would have produced an outcome similar to her prior intubation. Instead, what occurred was, as he put it, “more like salvage treatment”. He added that the expected morbidity and mortality numbers associated with severe asthma have come down in recent years, and that the sort of outcome experienced by Ms. Gumbley is now extremely rare. Dr. Jayaraman said that in his practice, he had not seen brain injury in an asthmatic.

[252] Dr. McIvor was challenged on his comparison with the outcome from the Scarborough intubation. The plaintiff had followed a similar course on that occasion. During both attendances, Ms. Gumbley: (1) had an acute asthma exacerbation, (2) initially responded to treatment, (3) was admitted to the ICU but did not go up because of limited bed availability, (4) worsened after going to the bathroom, (5) was treated with further medications but did not improve, (6) was anxious and received Ativan, (7) had a blood gas completed a number of hours before intubation that showed metabolic acidosis, (8) was moved prior to intubation, (9) deteriorated further and was intubated, and (10) was intubated following multiple attempts.

[253] Dr. McIvor maintained that the difference in outcome was a reflection of a more regimented and proactive approach to Ms. Gumbley’s treatment. Furthermore, Dr. Vasiliou had the benefit of knowing about the history of the Scarborough intubation.

[254] Dr. Ferguson felt that the comparison with what had occurred in Scarborough was of limited assistance. The main explanation for the difference in outcomes was that Ms. Gumbley had a worse exacerbation of her asthma in 2014. He had looked at the brain imaging and did not see any direct correlation between the alleged delays in treatment and the brain injury. He agreed with Dr. Lazarou that Ms. Gumbley’s injury abnormalities were not characteristic of diffuse anoxic injury. He disagreed with Dr. Chen’s opinion. Dr. Ferguson’s view was that if there had been significant hypoxemia prior to and at the time of intubation, it would have been charted.

[255] Dr. Katchan agreed that the intubation of Ms. Gumbley was life saving but was not prepared to concede that if it had occurred earlier, the outcome would have been different. He agreed that it would have been reasonable for Dr. Vasiliou to have requested the assistance of an anaesthetist, but disagreed that if an anaesthetist had been available and present for intubation, it would have made a material difference to the outcome.

[256] Dr. Katchan’s view was that it was unlikely that anaesthetic gases would have been introduced sooner, even if an intensivist had been at Ms. Gumbley’s bedside, until arterial blood gas results came in. Dr. Katchan recognised that the plaintiff’s asthma got worse with the intubation procedure—worsening bronchospasm is, he said, a risk of intubation, and that risk was not a function of being intubated at midnight instead of, say, 9:30 p.m. He added that just looking at the patient, one would not realise the degree of abnormality until seeing the blood gas results. If Dr. Warner had been present for intubation, Dr. Katchan’s opinion is that it would not have changed anything, as he would not have initiated the introduction of anaesthetic gases before seeing the blood gas results.

Analysis

[257] There are a number of factors, occurring in combination or in isolation, that witnesses say could have affected the outcome. The timing of intubation, who it was done by, whether there were periods of hypoxia (whether recorded or not), closer monitoring by Dr. Vasiliou, earlier direct involvement of Dr. Warner, when the brain injury occurred and who was there to manage ventilation.

Timing of Brain Injury

[258] Dr. Chen’s opinion is that the plaintiff’s injury was caused by a combination of hypoxia, severe acidosis and hypercarbia, which occurred on 9 October 2014 prior to intubation, whereas Dr. Lazarou was unable to articulate a definitive cause of Ms. Gumbley’s brain injury, but ruled out hypoxia as a potential cause. His opinion was that the injury most likely occurred on 15 or 16 October.

[259] Dr. Cheung, who was the only neuroradiologist to testify, said that the imaging was consistent with an injury having occurred on 9 or 10 October, but he could not rule out the possibility that the injury occurred later than that, for example, shortly before Ms. Gumbley’s anisocoria was first observed.

[260] Dr. Lazarou conceded that it would change his opinion if, in fact, there was evidence of hypoxia before Ms. Gumbley was intubated. He also acknowledged that his report had made no mention of Dr. Warner’s note that Ms. Gumbley had required intubation because of severe respiratory acidosis and hypoxemia. And he had not mentioned Dr. Hillmer’s suggestion that brain damage had occurred at the time that Ms. Gumbley was “at her sickest” because he did not agree with it.

[261] Dr. Lazarou’s opinion on causation was predicated upon an assumption that there was no evidence of hypoxia. However, I have found that, as recorded in Dr. Warner’s note, Ms. Gumbley was intubated because of severe respiratory acidosis and hypoxemia, which occurred at some point between 10:30 p.m. and midnight on 9 October 2014.

[262] Furthermore, to the extent that he rejected hypoxia or hypercarbia as potential causes of Ms. Gumbley’s brain injury, Dr. Lazarou appears to have considered these potential causes separately. By contrast, Dr. Chen’s opinion was that it was a combination of hypoxia, together with severe acidosis and hypercarbia, that was most likely responsible for the brain injury.

[263] It cannot be said with absolute certainty that one of these well respected and highly qualified specialists is right and the other is wrong. However, Dr. Chen’s opinion benefits from a review of evidence that Dr. Lazarou did not consider. Furthermore, I find Dr. Chen’s conclusion that a combination of factors caused the injury, a theory that Dr. Lazarou did not fully consider, to be well founded.

[264] For those reasons, where the opinions of Dr. Chen and Dr. Lazarou diverge, I prefer the evidence of Dr. Chen.

[265] As a result, I am satisfied on a balance of probabilities that Ms. Gumbley’s brain injury occurred between 10:30 p.m. and midnight on 9 October.

Intubation

[266] Having so found, I turn to the question of whether, if Ms. Gumbley had been intubated sooner, and by the most appropriate person, it is more likely than not that she would not have suffered a brain injury.

[267] Factors which the plaintiffs say would have affected Ms. Gumbley’s outcome include:

a. Earlier direct involvement by Dr. Warner;

b. Earlier intubation

c. Intubation carried out by the most experienced available clinician.

[268] Dr. Ferguson put the difference in outcome from Ms. Gumbley’s prior intubation at Scarborough General Hospital down to the fact that Ms. Gumbley’s presentation at Toronto East General Hospital was with a worse exacerbation of her asthma than when she had attended at Scarborough General, whereas Dr. McIvor put the difference in outcomes down to the quality of treatment—as he described it—a more regimented and proactive approach when she visited the Scarborough General Hospital which, in his opinion, is what should have occurred at Toronto East General.

[269] The evidence of Ms. Gumbley’s prior intubation at Scarborough General Hospital the previous year is at least indicative of the possibility that she could, once again, have been successfully intubated without long term deleterious effects. But no two severe asthma attacks are the same.

[270] The experts also expressed divergent views on the consequences, if any, of the lack of evidence concerning (a) Ms. Gumbley's blood gases between 9:30 p.m. and her intubation at or around midnight on 9 October; and, (b) her oxygen saturation levels between 10:30 p.m. and intubation.

[271] Dr. McIvor saw Dr. Vasiliou's failure to seek more specialist assistance sooner as symptomatic of Dr. Vasiliou's reactive approach. Dr. Jayaraman, who, like Dr. Warner, is an intensivist, testified that if he had been called, he would have made the decision to intubate at 9:30 p.m.

[272] Dr. Warner did not testify, so what he would have done is a matter of speculation. But I find Dr. Jayaraman’s evidence helpful in determining what Dr. Warner’s likely response would have been. And what is known is that once Dr. Warner was called, he responded quickly and decisively.

[273] The plaintiffs put forward in argument what they call the counter factual. They submit that had Dr. Vasiliou called upon Dr. Warner, he would have responded and come to the hospital within 30 minutes. There is no reason to believe that he would not have followed the standard Canadian asthma guidelines and provided aggressive treatment. He would have watched Ms. Gumbley “like a hawk” and if aggressive treatment was not successful in improving Ms. Gumbley’s condition, he would have moved quickly to intubate and ventilate Ms. Gumbley. Ms. Gumbley would not have experienced nearly two hours of sub-optimal ventilation. She may not have required anaesthetic gases.

[274] I accept that submission. It is supported by both the evidence and logic.

[275] Even if Dr. Warner had not been called when he should have been, if Dr. Vasiliou had made the decision to intubate Ms. Gumbley sooner, and in accordance with the standard of care, the catastrophic outcome that occurred would likely have been avoided.

[276] That likelihood would have been even greater if intubation had been undertaken by the available anaesthetist.

Conclusion on the Issue of Causation

[277] For the plaintiffs to establish causation, as discussed above, it is not sufficient in law to prove that the plaintiff would have had a better chance to avoid the outcome had, for example, intubation been performed sooner, or been successful on the first or second attempt, rather than the third. Rather, the evidence must show that it is “more likely than not” that Dr. Vasiliou’s negligence caused, or in some not insubstantial or immaterial way, contributed to Ms. Gumbley’s brain injury.

[278] In assessing whether the plaintiffs have met their burden of proof, I have found it helpful to consider the effects of the defendant’s breaches both in isolation and cumulatively.

[279] I find that if Dr. Vasiliou had not failed in her duty to call Dr. Warner sooner, Dr. Warner would have been on hand by 10:00 p.m. or 10:30 p.m. at the latest. Arterial blood gases would have been ordered and both the orders and the results would have been recorded.

[280] Dr. Warner’s earlier involvement would likely have led to a decision to intubate sooner.

[281] With the exception of Dr. Katchan, the consensus of the experts expressing an opinion is that the decision to intubate, once made, would and should have been implemented as soon as possible. Even if preparations for possible intubation had not already been made, intubation should have occurred in no more than 20-30 minutes. Thus, even if Dr. Warner had not been called in, but Dr. Vasiliou had, as she should have, made the decision to intubate at 10:00 p.m., or at the latest 10:30 p.m., Ms. Gumbley would have been intubated at least an hour sooner than she was.

[282] Had Dr. Warner been involved sooner, I find that there would more likely than not have been timely and appropriately recorded arterial blood gas results and oxygenation levels to better inform the important clinical decisions that had to be made. This too, is something that should have happened even if Dr. Vasiliou had not brought in Dr. Warner.

[283] Furthermore, had intubation been undertaken by Dr. Warner or an anaesthetist, it is possible that fewer passes would have been required, and that the attendant risks of each attempt, and the need for anaesthetic gases to be introduced, would either have been avoided altogether or would have been addressed on a more timely basis.

[284] It can not, of course, be said with complete confidence that if Ms. Gumbley had been intubated earlier, whether by Dr. Warner or by the most experienced available clinician, that her brain injury would have been avoided. Nor can it be definitively said that if intubation had been undertaken by an intensivist or an anaesthetist, that intubation would have been successful on the first or second attempt, rather than the third, and whether that would have made any difference.

[285] What can be said, and what in my view becomes clear when the evidence of the effect of Dr. Vasiliou’s several breaches of the standard of care are looked at cumulatively, is that the balance of probabilities tips in favour of her negligence being the most likely cause of Ms. Gumbley’s injuries.

[286] Multiple chances of a better outcome were lost because of the several breaches of the standard of care that occurred. This case involves more than the loss of a possibility or even a series of possibilities. Taking a robust and pragmatic view of the evidence, there was a catalogue of failures, which, viewed together, more likely than not resulted in the plaintiff’s brain injury.

[287] Had the defendant met the applicable standard of care, I find on a balance of probabilities that Ms. Gumbley would not have suffered brain damage. Rather, as Drs. McIvor and Jayaraman testified, it is more likely than not that after a period of hospitalisation, she would have been discharged and carried on living a normal life.

Decision

[288] For the foregoing reasons, the plaintiffs shall have judgment against the defendant, subject to this court’s approval of the agreed upon amount of damages.

[289] I will provide further directions if the parties are unable to agree on costs.

[290] I would be remiss in not acknowledging the professionalism and expertise of all counsel. Their preparation and presentations were superb.

Graeme Mew J.

Released: 3 September 2024

COURT FILE NO.: CV-16-382 (Belleville)

DATE: 20240903

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ASHLEY GUMBLEY by her litigation guardian Jessie Gumbley, MORGAN McCAFFERY by her litigation guardian Jessie Gumbley, SAVANNAH EDWARDS by her litigation guardian Jessie Gumbley, JAYDEN GUMBLEY by her litigation guardian Jessie Gumbley, JESSIE GUMBLEY, and REGINALD GUMBLEY

Plaintiffs

– and –

DENISE MARIE VASILIOU

Defendant

REASONS FOR decision

Mew J.

Released: 3 September 2024