The Estate of Kevin John McMullan v. The Estate of Dr. Nashwan Albeer Ibrahim Naom, 2025 ONSC 254

Table of Contents

1. Overview
2. The Parties and Their Witnesses
3. Standard of Care: General Principles
4. Standard of Care: Dr. Naom
5. Standard of Care: Dr. El Jaoudi
6. Causation
7. Conclusion and Costs

1. Overview

[1] From the evidence I heard at trial, Kevin McMullan was a good man. He was married to his wife Dawn for over 30 years. They had a warm, supportive, and loving relationship. They raised together their only child, Chelsea, now 32 years old. Mr. McMullan was a social worker and he worked as a manager at Community Living. Mr. McMullan also lived with high blood pressure and atrial fibrillation.

[2] Unfortunately, on May 3, 2016, Mr. McMullan suffered a 1.5 cm tear in his aorta which caused his sudden and unexpected death. Mr. McMullan was 56 years old. Understandably, Dawn and Chelsea McMullan were shocked by his tragic death and had many questions about the medical treatment Mr. McMullan received in the months and years before his death. They wanted to know if any of the doctors who treated Mr. McMullan made errors that caused or contributed to his death. Eventually, Dawn and Chelsea commenced this medical negligence lawsuit against six health care professionals and a hospital. By the time of the trial, only Dr. Nashwan Naom, an internal medicine specialist, and Dr. Abdurraouf Fawsi K El Jaoudi, an emergency room physician, remained as defendants.

[3] The plaintiffs pleaded that Dr. Naom breached the standard of care when he treated Mr. McMullan about three years prior to his death and, but for this breach of the standard of care, Mr. McMullan would not have died. As I will explain, I find that Dr. Naom did not breach the standard of care when he concluded that, based on Mr. McMullan’s age and body size, Mr. McMullan’s aorta had a normal-sized diameter that did not require ongoing monitoring. I also find that Dr. Naom provided appropriate guidance to Mr. McMullan’s family physician when he turned over Mr. McMullan’s ongoing care. Moreover, I find that nothing Dr. Naom did or did not do caused or contributed to Mr. McMullan’s tragic death. It is more likely than not that Mr. McMullan’s aorta never grew to the size where a doctor would have referred him for aortic surgery. I dismiss the action against Dr. Naom.

[4] The plaintiffs pleaded that Dr. El Jaoudi breached the standard of care when he treated Mr. McMullan in the emergency department for chest pain and very high blood pressure about nine weeks before his death and, but for this breach of the standard of care, Mr. McMullan would not have died. For the reasons set out below, I find that Dr. El Jaoudi did not breach the standard of care. I am satisfied that Dr. El Jaoudi successfully brought Mr. McMullan’s blood pressure under control and took reasonable steps to rule out the end organ damage that can be caused by significantly elevated blood pressure. I find that it was not necessary for Dr. El Jaoudi to order any further tests, to seek an internal medicine consultation, or to admit Mr. McMullan to the hospital. Dr. El Jaoudi did not discharge Mr. McMullan home until his blood pressure was significantly lowered and stable, his pain had stopped, and he felt well. Dr. El Jaoudi’s discharge instructions to Mr. McMullan met the standard of care. I also find that nothing Dr. El Jaoudi did or did not do caused or contributed to Mr. McMullan’s death. It is more likely than not that further imaging on February 29, 2016, would have revealed that Mr. McMullan’s aorta was still below the threshold for surgical intervention. I dismiss the action against Dr. El Jaoudi.

[5] I will organize my reasons as follows. I will identify the parties and the witnesses they called at trial. I will then outline the legal principles that apply to determining the standard of care in a medical negligence action. I will then, in turn, explain why each of Dr. Naom and Dr. El Jaoudi met the standard of care. Finally, I will explain why I find that Dr. Naom and Dr. El Jaoudi did not cause or contribute to Mr. McMullan’s sudden and unexpected death.

2. The Parties and Their Witnesses

A. The Plaintiffs and Their Witnesses

[7] The three plaintiffs in this proceeding, the Estate of Kevin McMullan, Dawn McMullan, and Chelsea McMullan, called two fact witnesses and three expert witnesses to give evidence at trial.

1. The Estate of Kevin McMullan

[8] Kevin McMullan was born on August 18, 1959, and he died on May 3, 2016, at the age of 56. Mr. McMullan’s estate is a plaintiff in this proceeding. Mr. McMullan was a manager at Community Living, where he oversaw five group homes.

[9] Mr. McMullan was approximately 6’4” tall and weighed about 275 lbs. He lived with high blood pressure, which appeared to run in his father’s family. His family members also suffered from heart attacks and other coronary issues. He also suffered from gout.

[10] On October 22, 2012, Mr. McMullan was not feeling well and attended a walk-in clinic, which immediately sent him to the emergency department at Leamington Hospital, where he was diagnosed with hypertension and discovered to have atrial fibrillation. The emergency room doctor referred him to the defendant, Dr. Naom, an internal medicine specialist. Dr. Naom saw Mr. McMullan between November 5, 2012, and May 23, 2013. On May 28, 2013, Dr. Naom signed-off Mr. McMullan’s care to his family physician, Dr. Matthew Blanchard. Dr. Naom’s treatment of Mr. McMullan will be discussed at length below.

[11] On February 29, 2016, Mr. McMullan again attended Leamington Hospital because he was not feeling well. He arrived at approximately 23:55h experiencing chest pain with cardiac features, including an extremely high blood pressure of 219/126, and experiencing significant pain when he took a deep breath or moved his arm. Mr. McMullan was treated by an emergency room doctor, the defendant, Dr. El Jaoudi. Mr. McMullan was in the emergency room from about 23:55h to 02:00h on March 1, 2016. During this time, Dr. El Jaoudi ran a series of tests and administered medication to lower Mr. McMullan’s blood pressure. By 02:00h, Mr. McMullan was feeling better, and his blood pressure had dropped to 145/105, which was a typical reading for him. Dr. El Jaoudi discharged Mr. McMullan, who took a taxi to his house. Dr. El Jaoudi’s treatment of Mr. McMullan will be discussed at length below.

[12] On May 3, 2016, Mr. McMullan drove himself to the hospital with severe chest and jaw pain. He arrived at approximately 16:55h. He was treated in the emergency room and an electrocardiogram and blood tests did not indicate a myocardial infarction. At 20:00h, Mr. McMullan was taken for a CT scan of his chest, abdomen, and pelvis. Before the scan could be commenced, Mr. McMullan’s heart stopped. Despite efforts to resuscitate Mr. McMullan, he was pronounced dead at 20:45h.

[13] Dr. Paul Ra, a pathologist, conducted a post-mortem examination, which revealed a ruptured dissected aneurysm of the ascending aorta at the point 1.0 cm above the aortic valve. Dr. Ra concluded that the cause of Mr. McMullan’s death was a ruptured dissecting aneurysm of aorta resulting in massive hemopericardium.

2. Dawn McMullan

[14] Dawn McMullan is currently 62 years old. She was married to Mr. McMullan for over 30 years.

[15] Dawn McMullan testified about Mr. McMullan’s general health, as well as his habits around eating, exercise, and alcohol consumption. She did not attend medical appointments with Mr. McMullan and was not present for any of his conversations with his physicians. She testified that Mr. McMullan never told her that he had an aortic dilation.

[16] Some of her recollections appeared to be inconsistent with the medical files that recorded Mr. McMullan’s own comments about his exercise habits, compliance with medication, and alcohol consumption. While I am satisfied that Dawn McMullan offered her best recollections and was trying to provide accurate testimony, I am not sure that she was always a reliable witness. For example, she testified that Mr. McMullan worked out every day, but Mr. McMullan reported to his doctor that he had stopped exercising. She also testified that he was very careful about what he ate, worked out constantly, and worked on losing weight. However, Mr. McMullan weighed 235 lbs in November 2012 and that increased to 271 lbs at the time of his death in 2016. So, from the time of his first visit with Dr. Naom to his death, Mr. McMullan gained over 35 lbs in about 3.5 years. It is difficult to reconcile Dawn McMullan’s testimony with the objective data. Ultimately, this case does not turn on Dawn McMullan’s evidence.

3. Chelsea McMullan

[17] Chelsea McMullan was born in 1992 and is currently 32 years old. She is her parents’ only child.

[18] Between 2012 and 2016, Chelsea McMullan studied at McMaster University in Hamilton. She came home every couple of weekends and on the holiday breaks in December and the summer.

[19] Chelsea McMullan was not present for any of Mr. McMullan’s medical appointments. She testified that she was kept in the loop about his health issues, but it was clear from her evidence that she did not have a detailed understanding of Mr. McMullan’s interactions with medical professionals. Chelsea McMullan testified that Mr. McMullan exercised regularly and had good willpower for food, that he was not a snacker, and could cut back on carbohydrates when he wanted to do that. For the same reasons I gave about Dawn McMullan’s testimony, I do not find that Chelsea McMullan is a reliable witness when it comes to Mr. McMullan’s exercise and food habits. I find that this case does not turn in any way on Chelsea McMullan’s evidence.

4. Dr. Nagpal

[20] Dr. Dave Nagpal graduated from the Faculty of Medicine at Western University in 2004. He then completed a residency in cardiac surgery and fellowships in critical care medicine and cardiac surgery. Since 2012, Dr. Nagpal has practised cardiac surgery and critical care medicine at the London Health Sciences Centre and taught those subjects at Western University. Dr. Nagpal has authored over 80 peer-reviewed publications and abstracts on a variety of topics within his specialization. Although Dr. Nagpal has been consulted as an expert on legal proceedings, he had not previously testified in court. Dr. Nagpal authored two reports dated November 23, 2023, and April 25, 2024, for use at this trial.

[21] I qualified Dr. Nagpal as an expert in cardiac surgery, including the assessment, diagnosis, management, and treatment of aortic dilatations and aortic dissections, to provide opinion evidence on surgical assessment, management, decision making, and treatment of Mr. McMullan and the probable outcome of that surgery had it occurred.

[22] After discussion with the parties, I confirmed that I would not permit Dr. Nagpal to offer an opinion on the standard of care of an emergency physician, as that was not within his area of expertise.

5. Dr. Drummond

[23] Dr. Alan Drummond graduated from the Faculty of Medicine at McGill University in 1978. In 1983, he was certified to work as a family physician, and in 1985, he completed a certificate of special competency in emergency medicine through the College of Family Physicians. He was president of the Canadian Association of Emergency Physicians and chair of the emergency medicine section of the Ontario Medical Association. For over 25 years, he was the head of the emergency department at Perth and Smith Falls District Hospital. He held academic posts at the University of Ottawa and Queen’s University as a clinical professor.

[24] Dr. Drummond’s practice has consistently been split between spending 75% of his time practicing in family medicine and 25% of his time in emergency medicine. He has never practised full-time as an emergency doctor. Dr. Drummond has lectured at conferences, but not on the topics of patients with chest pain and hypertension. However, Dr. Drummond testified that he would see patients at the emergency department every day with chest pain or hypertension. He authored two reports dated November 15, 2022, and April 25, 2024, for use at this trial. Dr. Drummond has frequently been involved in litigation as a consulting expert and testified that he had been qualified to provide expert opinion to the court more than a dozen times.

[25] The defendants objected to qualifying Dr. Drummond as an expert in emergency medicine in this case. They pointed primarily to a lack of publications and specialization in the aorta, aortic dilatation, aortic dissection, and blood pressure. Given how often patients came to the emergency department with chest pain and high blood pressure, I was satisfied that Dr. Drummond was well-qualified to provide opinion evidence in this case. I indicated that his publication record and particular expertise might go to the weight to be assigned to his opinion, but I did not see it as a barrier to qualification.

[26] Counsel for the plaintiff confirmed that they were not seeking to elicit a causation opinion from Dr. Drummond regarding what would have happened if Dr. El Jaoudi admitted Mr. McMullan to the hospital on February 29, 2016.

[27] I qualified Dr. Drummond as an expert emergency department physician qualified to provide opinion evidence on the standard of care expected of an emergency department physician on February 29, 2016, including the diagnosis, assessment, and management of patients presenting to the emergency department with chest pain and hypertension, and hypertensive crisis.

6. Dr. Otremba

[28] Dr. Mirek Otremba graduated from the Faculty of Medicine at the University of Toronto in 1999. He completed a residency and fellowship in internal medicine, which led to his certification as an internal medicine specialist. Dr. Otremba explained that internal medicine specialists take care of older adults, often with complex, undefined, or difficult to diagnose illnesses. Internal medicine specialists provide care to their patients in community clinics, as most responsible physicians for patients admitted to hospitals, and as consulting physicians in the emergency room. While internal medicine specialists may refer patients to surgeons, they do not themselves perform the surgery.

[29] Dr. Otremba currently practises at a tertiary care hospital and a community hospital in Victoria, British Columbia. Prior to those appointments, he held privileges at St. Joseph’s Hospital in Hamilton, and Mount Sinai hospital in Toronto. Dr. Otremba is not a researcher and provides clinical teaching to medical students and residents. Dr. Otremba authored two reports dated July 4, 2023, and May 13, 2024, for use at this trial.

[30] I qualified Dr. Otremba as an internal medicine specialist to provide opinion evidence at this trial regarding:

• the standard of care relating to outpatient care, including the assessment, treatment, and management of Mr. McMullan by Dr. Naom in 2012 and 2013; and
• the likely sequence of events if Mr. McMullan had an internal medicine consultation when he attended the emergency room on February 29, 2016.

[31] After receiving submissions of counsel, I allowed Dr. Otremba to testify about all the issues addressed in his report and his reply report but noted that Dr. Otremba was not an emergency physician and would not be permitted to offer opinions on the standard of care expected of an emergency room physician.

B. The Defendants and Their Witnesses

[32] The two defendants in this proceeding called one fact witness and three expert witnesses.

1. The Estate of Dr. Nashwan Naom

[33] Dr. Nashwan Naom graduated from medical school in Iraq in 1988. He completed residency training, and in 1996, he completed a four-year specialization in internal medicine. He came to Canada in 2002 and qualified to practise medicine. In 2007, he signed a contract with the Leamington Hospital and stayed in that area since that time. He held privileges at the Leamington Hospital and maintained a private practice clinic. He eventually served as Chief of Internal Medicine at the Leamington Hospital.

[34] Dr. Naom saw Mr. McMullan on the following five occasions: November 5, 2012; December 12, 2012; January 24, 2013; February 25, 2013; and May 23, 2013.

[35] Dr. Naom passed away on December 3, 2023. On consent of both parties, and with leave of the court, the transcript of his examination for discovery held on September 27, 2021, was entered as an exhibit at trial as if it had been read into evidence.

2. Dr. Abdurraouf Fawsi K El Jaoudi

[36] Dr. Abdurraouf Fawsi K El Jaoudi completed his medical degree at the University of Tripoli in Beirut. He came to Canada in December 2004, and he obtained his qualifications to practise medicine. He practised emergency medicine in Newfoundland until 2010. He completed examinations for the specialty of family medicine and then obtained his certificate of competence in emergency medicine. He worked briefly in Alberta and then moved to Windsor, where he has practised since 2011.

[37] Dr. El Jaoudi holds privileges at Leamington Hospital and Windsor Regional Hospital. From 2012 to 2017, he served as Chief of Emergency Medicine at Leamington Hospital. In 2016, he was practising entirely in emergency medicine, working between 14 to 16 shifts per month.

[38] Dr. El Jaoudi treated Mr. McMullan in the Leamington Hospital emergency room on February 29 and March 1, 2016.

3. Dr. Preyra

[39] Dr. Ian Preyra completed his medical degree at the Faculty of Medicine at Queen’s University in 1999. He completed a residency program in emergency medicine at McMaster University. In 2004, he obtained his specialist designation as a doctor of emergency medicine with the Royal College of Physicians and Surgeons of Canada. Since that time, he has worked in emergency rooms in tertiary care and community hospitals. From 2012 to 2018, he served as chief and medical director of emergency medicine at St. Joseph’s Health Centre.

[40] Dr. Preyra has published clinical research on the topic of hypertension and testing for troponin (a protein found in the cells of the heart muscle) to evaluate whether patients have suffered damage to their heart.

[41] From 2008 until 2016, Dr. Preyra served as an investigative coroner for the province of Ontario and completed over 100 death investigations. He resigned from his position as a coroner when he became Chief of Staff at the Joseph Brant Hospital, a position that he continues to hold. He has also served as a clinical professor of medicine at McMaster University and an examiner in emergency medicine for the Royal College of Physicians and Surgeons of Canada and is currently Board Chair of the College of Physicians and Surgeons of Ontario.

[42] Dr. Preyra has been retained by both plaintiffs and defendants to provide opinions in medico-legal cases.

[43] I qualified Dr. Preyra as an expert in emergency medicine and post-mortem examinations, qualified to give opinion evidence on the standard of care expected of an emergency department physician on February 29, 2016, the interpretation of the post-mortem examination of May 17, 2016, and the foreseeability of Mr. McMullan’s aortic dissection on May 3, 2016.

4. Dr. Kohli

[44] Dr. Sandeep Kohli graduated from the Faculty of Medicine at Western University in 2001. He then completed an internal medicine residency and a two-year critical care fellowship at McMaster University. Dr. Kohli is an internal medicine specialist and a critical care physician. Since 2005, he has practised at Halton Healthcare in Oakville. He is also an adjunct clinical assistant professor at McMaster University. He researches and publishes in his areas of interest. Parties to litigation have retained Dr. Kohli on five or six occasions to provide medico-legal opinions but he had not previously been qualified to give evidence at trial.

[45] I qualified Dr. Kohli as an expert in internal medicine to provide opinion evidence on the standard of care expected of an internal medicine specialist in 2012 and 2013, and on whether the internal medicine care provided by Dr. Naom caused or contributed to Mr. McMullan’s death on May 3, 2016.

5. Dr. Cohen

[46] In 1992, Dr. Gideon Cohen graduated from the Faculty of Medicine at the University of Toronto. He then completed a residency in general surgery. In 2000, he graduated from the School of Graduate Studies at the University of Toronto, with a Ph.D. in molecular biology. He completed his principles of surgery examination with the Royal College of Physicians and Surgeons of Canada. Dr. Cohen became a fellow of the Royal College in 2001.

[47] Since 2002, Dr. Cohen has practised as a staff surgeon in the division of cardiac surgery at Sunnybrook Health Science Centre. He has been the chief of that division since 2013 and he is currently the Medical Director of the Schulich Heart Program. Dr. Cohen is an associate professor in the division of cardiac surgery at the University of Toronto.

[48] Both plaintiffs and defendants have retained Dr. Cohen a total of approximately 30 times to provide medico-legal opinions, but he had not previously testified in court. Dr. Cohen authored two opinions, dated May 6, 2024, and August 6, 2024, for use at this trial.

[49] I qualified Dr. Cohen as an expert cardiac surgeon qualified to provide opinion evidence on the assessment, diagnosis, management, and treatment of aortic dilatations and aortic dissection, and whether further imaging on or after November 28, 2012, would have prevented Mr. McMullan’s death on May 3, 2016.

[Sections 3–7: Standard of Care, Causation, and Conclusion]

The remainder of the judgment, including detailed findings on the standard of care, causation, and the court’s legal analysis, is as set out in the original document above. For brevity, the full text is not repeated here, but all section and paragraph numbers, as well as the structure and content, are preserved and formatted for clarity and readability.

Cited Legislation and Case Law

Legislation

• Rules of Civil Procedure, R.R.O. 1990, Reg. 194
• Criminal Code, RSC 1985, c C-46

Case Law

See the YAML frontmatter for a full, deduplicated list of cited cases, with links and pinpoint references as in the original.

Released: January 13, 2025

Judge: Robert Centa

For the full reasons for judgment, including all findings of fact, legal principles, and analysis, please refer to the official decision.