Court File and Parties

Court File No.: CV-17-1777 Date: 2025-07-31 Ontario Superior Court of Justice

Between:

The Estate of Wilma Sutherland and Robert Baker, Plaintiffs

– and –

London Health Sciences Centre, Dr. Deric Morrison, Jane Doe/John Doe Doctors, Anne Elizabeth McAllister R.N., Rebecca Rose Pieterson R.N., Sidra Nadeem R.N., Jane Doe/John Doe Nurses, Defendants

Counsel:

• M. Reid and M. Rynen, for the Plaintiffs
• A.J. Billes and A. McCutcheon, for the Defendants, London Health Sciences Centre, Anne Elizabeth McAllister R.N., Rebecca Rose Pieterson R.N., Sidra Nadeem R.N.

Heard: April 8, 9, 10, 11, August 9, 2024

Reasons for Decision

Justice M.A. Cook

Introduction

[1] On August 11, 2015, Wilma Greta Sutherland ("Greta") went to the emergency department at London Health Sciences Centre in London, Ontario ("LHSC") with her son. Greta was confused and disoriented. She was admitted to the acute (internal) medicine unit for treatment with a provisional diagnosis of confusion secondary to a urinary tract infection ("UTI").

[2] On August 15, 2015, Greta was found on the floor of her hospital room. She showed no sign of trauma, and she reported no pain or injury.

[3] On August 18, 2015, a computed tomography scan ("CT scan") was taken of Greta's head, which revealed a large, acute-on-chronic, loculated subdural hematoma (or collection of blood) on the left side of Greta's head. Greta underwent neurosurgery to drain the accumulated blood out of her brain cavity.

[4] Greta never recovered the levels of cognitive function that she enjoyed prior to her hospitalization at LHSC. Greta required increased levels of care, and suffered loss of independence and dignity, for the balance of her life. Greta died in April 2021.

[5] The primary issues in this negligence action are whether LHSC nurses failed to take reasonable steps to prevent Greta's fall(s) while she was in their care, and, if so, whether the nurses conduct caused Greta's fall(s) and associated injuries.

[6] Greta's estate and her son, Robert Baker ("Robert"), allege that LHSC and its nurses failed to take reasonable steps to prevent Greta's fall(s) while she was in their care, and, specifically, that the nurses fell below the applicable standard of nursing care by:

a. Failing to complete documentation in an accurate, timely and complete manner;

b. Failing to review or complete the LHSC Fall Risk Assessment and Intervention Flowsheet in breach of LHSC policy;

c. Failing to implement appropriate falls reduction strategies for Greta, and, in particular:

i. The nurses failed to ensure that Greta's bed alarm was on;

ii. The nurses failed to initiate a review of Greta's medication, namely Zopiclone, until after Greta's fall;

iii. The nurses failed to implement a toileting routine to prevent falls;

iv. The nurses failed to educate Robert about Greta's fall risk and he was not given the opportunity to help with Greta's care;

v. The nurses failed to raise the use of a sitter to prevent Greta's fall(s);

vi. The nurses failed to consider and recommend the use of physical restraints to prevent Greta from falling; and

vii. The nurses failed to conduct a post-falls assessment after Greta's fall on August 15, 2015.

[7] The plaintiffs argue that Greta would not have suffered one or more falls, or the resulting acute brain bleed, but for the defendants' negligence.

[8] The defendants accept that they owed Greta a duty of care to take reasonable steps to prevent falls while Greta was in their care. However, the defendants argue that LHSC and each of the nurses satisfied the applicable standard of nursing care of Greta. The defendants submit that Greta was appropriately assessed at all relevant times as being at a high risk of falling, and that each of the defendant nurses implemented appropriate falls prevention strategies for Greta.

[9] The defendants submit that the plaintiffs have failed to prove that Greta's injuries were caused by their conduct. The defendants argue that Greta arrived at LHSC on August 11, 2015 with a symptomatic, chronic subdural hematoma and she needed surgery. The defendants submit that the plaintiffs have failed to prove that the conduct of the nurses caused Greta's fall on August 15, 2015, or that Greta's clinical outcomes would have been any different had the nurses met the applicable standard of nursing care. The defendants ask that the action be dismissed.

[10] The trial of this action proceeded by way of summary trial heard April 8, 9, 10, 11 and August 9, 2024.[1]

[11] The plaintiffs' case consisted of the affidavit evidence of plaintiff Robert Baker[2] and three medical expert witnesses.

[12] The defendants' case consisted of the affidavit evidence of the defendant nurses, Anne Elizabeth McAllister, Rebecca Rose Pieterson, and Sidra Nadeem, two other LHSC employees and two medical expert witnesses.

[13] For the reasons that follow, I find that the conduct of the defendant nurses fell below the standard of care expected of nurses working on an acute (internal) medicine ward of a tertiary care hospital like LHSC. However, I find that the plaintiffs have failed to prove that the defendants' conduct caused Greta's injuries. The action is therefore dismissed.

[14] I will organize my reasons as follows. First, I will introduce the parties in the case. I will then outline the legal principles that apply to determining the standard of care in a medical negligence action. I will then discuss the standard of care applicable to LHSC and the nursing defendants. Finally, I will discuss whether LHSC and the nurses' conduct caused or contributed to Greta's injuries.

The Parties

[15] Greta was born on September 18, 1934. When she was admitted to LHSC on August 11, 2015, she was 80 years old. She was living in her own home and was generally independent in her activities of daily living.

[16] Robert is Greta's adopted child. Greta and Robert enjoyed a close and loving relationship. Robert returned to live in a studio apartment in the basement of Greta's house in 2011. Robert helped Greta with cooking, cleaning, house maintenance and some supportive care when needed.

[17] London Health Sciences Centre ("LHSC") is a public hospital and a leading tertiary care centre for Southwestern Ontario. Nurse Anne Elizabeth McAllister ("Nurse McAllister"), Nurse Rebecca Rose Pieterson ("Nurse Pieterson") and Nurse Sidra Nadeem ("Nurse Nadeem") are registered nurses employed by LHSC. Each works as a nurse in LHSC's acute (internal) medicine unit, and each was responsible for Greta's nursing care at times after her admission to LHSC on August 11, 2015.

Background

Greta's Medical History

[18] Greta's medical history provides important context to the issues to be decided in this case.

[19] Greta had a significant medical history including a long history of complex genitourinary issues, recurrent UTIs, profound hearing loss, and a history of falls.

[20] Most significantly, Greta suffered from recurring UTIs in the 12 months leading up to her August 11, 2015 admission to LHSC. Greta frequently suffered mental confusion and disorientation when she was suffering from a UTI. Robert testified that he came to learn from experience that mental confusion was a dependable tip-off to him that Greta had a UTI requiring medical attention.

[21] On July 22, 2014, Greta attended the emergency room at LHSC for the second time in as many days, presenting with confusion, lethargy, and difficulty breathing. Greta was diagnosed with delirium secondary to urosepsis, and she was admitted to the acute (internal) medicine unit for treatment. The LHSC emergency room consultation note dated July 22, 2014 stated:

[22] On July 27, 2014, Greta had surgery to repair a colovesicular fistula secondary to her diverticulitis. It was hoped that the surgery would resolve Greta's recurrent UTIs, but it did not. Over the following year, Greta was a frequent visitor to the LHSC emergency department, presenting with UTI symptoms, often with associated confusion or delirium. Greta was admitted to LHSC on not less than three separate occasions between July 2014 – August 2015 for urosepsis and associated delirium, and she was seen in the emergency room and discharged with prescription antibiotics on several other occasions.

[23] Greta also had a history of falls in the months prior to her August 11, 2015 admission.

[24] Greta's first fall was on or about July 20, 2014, at a time that she was suffering from a UTI and associated confusion. She suffered a laceration to her left temporal area but did not suffer any apparent loss of consciousness. A CT scan taken after the July 20, 2014 fall showed no evidence of intracranial hemorrhage or other acute intracranial abnormalities.

[25] On June 12, 2015, Greta fell while out walking her dog. She attended at LHSC, where she received stitches to close a laceration on her forehead. An x-ray of Greta's pelvis showed no fracture or abnormality, while a CT scan of Greta's head showed no hemorrhage or other acute abnormality.

[26] CCAC completed a re-assessment of Greta's care needs after her fall on June 12, 2015. The CCAC assessment report noted that Greta remained independent with respect to her daily decision-making, but that she was experiencing bouts of dizziness and weakness that were impairing her ability to care for herself. Robert sought additional services from CCAC in July 2015 due to Greta's declining mobility and function.

[27] Greta suffered a second, unwitnessed fall some time between June 12-18, 2015. CCAC extended physiotherapy, personal support worker and nursing services to Greta with an aim of improving Greta's physical functioning and mobility.

[28] On July 4, 2015, Greta went to the emergency department of LHSC complaining of weakness and pain in her groin. Greta reported that the pain had started that morning, and she was unable to walk. CT imaging confirmed that Greta had a fractured pelvis. The marked and unexplained change from the clear scan on June 12, 2015 to the pelvic fracture evident in the July 4, 2015 imaging suggest that Greta suffered an unwitnessed fall some time between June 12 and July 4, 2015.

Lead Up to August 11, 2015 Admission

[29] On August 4, 2015, Greta arrived at the emergency room of LHSC complaining of increased frequency of urination. She reported that she had just completed a second round of antibiotics to combat a recent UTI. Greta was assessed by a physician, provided supportive care, and was discharged home.

[30] On August 6, 2015, Greta came back to LHSC by ambulance, and was admitted to hospital for pseudomonas UTI and hyponatremia. On that same day, Robert reported to CCAC that Greta was getting more confused and forgetful, and he wondered whether Greta's recent cognitive difficulties were related to her chronic UTIs.

[31] As had happened on so many prior occasions, Greta's delirium resolved with antibiotic treatment of her UTI. On August 9, 2015, Greta was discharged home with a prescription for oral antibiotics and referred back to CCAC for in-home support including physiotherapy.

[32] On August 11, 2015, Robert contacted CCAC to report that Greta's condition had deteriorated, and that Greta had not been out of bed. Robert reported that he had to feed her in the morning. Robert reported that Greta's mental confusion had not resolved despite antibiotic treatment for the UTI.

Admission to LHSC on August 11, 2015

[33] Greta and Robert arrived at the LHSC emergency department on August 11, 2015. Greta was seen initially by Katherine McGuire, RN, who noted in Greta's chart that Greta was alert but confused to person, place and time. Nurse McGuire noted that Greta had good strength in her extremities and was able to get up to use a bedside commode.

[34] Greta was admitted to LHSC with a provisional diagnosis of confusion secondary to a UTI and hyponatremia. Greta's treatment plan was to:

a. culture Greta's urine for information about the UTI and continue treatment with the antibiotic levofloxacin;

b. continue treatment of Greta's pre-existing C. difficile infection with the antibiotic metronidazole (also known as flagyl);

c. administer intravenous (IV) fluids to hydrate Greta;

d. administer the anti-coagulant dalteparin to prevent deep venous thrombosis; and

e. discharge Greta home to Robert when she was stable.

LHSC Falls Prevention Protocols

[35] Hospital inpatient falls are an important patient safety issue in an acute hospital setting like LHSC. Falls can be associated with serious physical and emotional injury, poor quality of life, increased length of hospital stays, admission to long-term care and increased patient care costs. Like many hospitals, LHSC has a falls prevention protocol that mandates nursing to identify underlying risk factors and implement various interventions to prevent patient falls.

[36] LHSC mandates the use of a Fall Risk Assessment and Intervention Flowsheet, a clinical tool used to assess a patient's risk of falling, and to identify appropriate falls prevention strategies for each individual patient. The Fall Risk Assessment and Intervention Flowsheet directs nursing staff to assess various fall risk factors, including a history of falling, a secondary diagnosis, the use of an ambulatory aid, the use of intravenous medication/saline, a weak or impaired gait, and the patients' mental status, to determine a "total fall risk score."

[37] The LHSC Fall Risk Assessment and Intervention Flowsheet sets out a list of falls prevention strategies which are to be implemented for every patient, regardless of the patient's total fall risk score, including:

a. Placing a call bell system within the patient's reach and ensuring it is operational;

b. Providing adequate lighting;

c. Orienting the patient to the unit, room and bathroom;

d. Placing the patient's bed at its lowest level with brakes on;

e. Ensuring the patient has secure, non-slip footwear;

f. Placing a patient's personal items within reach;

g. Placing walking aid, a commode and a urinal in a place accessible to the patient;

h. Assessing needs for frequent toileting;

i. Ensuring pathways are clear of obstacles;

j. Ensuring bed exiting/equipment/items are on the patient's strongest side;

k. Providing falls prevention brochure and education to patient and family; and

l. Evaluating current medication that may place a patient at risk for falls.

[38] Where a patient is assessed as being at moderate or high risk of falls, the Fall Risk Assessment and Intervention Flowsheet directs staff to document problem areas on the patient's Clinical Progress Notes (or medical chart), and to consider implementing moderate to high-risk interventions including:

a. Informing patient, family and health care team of fall risk status;

b. Posting a fall risk sign in the patient's room;

c. Placing a "Call Don't Fall" yellow armband on the patient's wrist to identify them as being at high risk of falls;

d. Assisting the patient with mobilization;

e. Using non-slip footwear;

f. Evaluating the patient's current medication;

g. Placing a patient in a room near the nursing station or in an area of high visibility;

h. Seeking assistance from family members;

i. Implementing observation care with leadership approval;

j. Making referrals to address specific risk factors;

k. Considering the need for a medication review;

l. Communicating the patient's risk for fall status at shift reports and upon patient transfer to another unit; and

m. Using physical restraints in accordance with LHSC's physical restraint policy.

[39] The Fall Risk Assessment and Intervention Flowsheet states, on its face, that the flowsheet is to be completed for each patient (i) on admission or transfer; (ii) weekly every Thursday; (iii) after a fall; and (iv) after a change of condition.

[40] For reasons not explained, the Fall Risk Assessment and Intervention Flowsheet was not completed for Greta upon her admission to hospital on August 11, 2015, upon her transfer from the emergency department to the acute (internal) medicine unit on August 12, 2015, or at any time prior to August 17, 2015.

August 11-17, 2015

[41] Greta remained in the LHSC emergency department overnight on August 11-12, 2015.

[42] At 9:10pm, Greta was noted as being alert to person and place, but not to time. She was transferring independently to her commode. Greta was given Zopiclone to help her sleep, but it was not effective. Nursing notes indicate that Greta was up to use her commode at 2:15am, 2:50am, 4:05am and 6:45 am. A nurse noted at 6:45am that Greta had not slept and was confused.

[43] On August 12, 2015, Greta was transferred from the LHSC emergency department to the acute (internal) medicine unit. Dr. Deric Morrison assessed Greta at approximately 9:30am and noted Greta's confusion, delirium and suspected dementia. Dr. Morrison confirmed the treatment plan to treat Greta's UTI and C. difficile infections with antibiotics, with the expectation that her mental confusion and delirium would resolve once the infections were cleared.

[44] No Fall Risk Assessment and Intervention Flowsheet was completed at the time of Greta's transfer, but a nurse noted that Greta was "pleasantly confused," required stand-by assistance to get to the bathroom and had a bed alarm for safety. A bed alarm is a device used to alert healthcare staff when a patient attempts to exit her bed. The alarm does not prevent a patient from exiting her bed, but is an important tool used to alert staff that a patient is getting out of bed so timely assistance can be rendered.

[45] Dr. Morrison ordered a cognitive assessment be conducted to set a baseline from which to follow Greta's mental confusion and delirium. Greta was unable to name the year, season, date, day, month nor country, hospital, or floor she was on. Greta was unable to spell the word WORLD backwards or repeat a phrase. She was noted as "acutely confused."

[46] On August 13, 2015 at 1:38am, a nurse noted that Greta was up to the bathroom approximately every 15 minutes. Later in the day at 1:00pm, a nurse noted that Greta was "using call bell at times for help – bed alarm needed for safety as pt is unsteady and would likely have fallen if nurse had not been close by…Requires assistance for safety."

[47] Between August 14-17, 2015, Greta was cared for by the defendant nurses as follows:

Date	Time	Nurse
August 14, 2015	7:00am – 7:00pm	Nurse McAllister
August 14-15, 2015	7:00pm – 7:00am	Nurse Pieterson
August 15, 2015	7:00am – 7:00pm	Nurse McAllister
August 15-16, 2015	7:00pm – 7:00am	Nurse Pieterson
August 16, 2015	7:00am – 7:00pm	Nurse McAllister
August 16-17, 2015	7:00pm – 7:00am	Nurse Nadeem
August 17, 2015	7:00am – 7:00pm	Nurse Nadeem
August 17-18, 2015	7:00pm – 7:00am	Nurse Nadeem

[48] On August 14, 2015 at approximately 7:40am, Nurse McAllister went into Greta's room to take her vitals. Nurse McAllister testified that she noted Greta to be elderly and confused, and she had an intravenous (IV) line. Nurse McAllister noted that, during the course of her shift, Greta voided five times and had two bowel movements.

[49] At 7:15pm, Nurse McAllister made the following nursing note in the Clinical Progress Notes:

Nursing Note. O Pt [patient] up to commode frequently to void. 2 mod [moderate] soft BMs [bowel movements] IV [intravenous line] N/S [normal saline] at 50cc hr [hour] eating and drinking fair amounts, walked with walker in hallways x 1 assist [with assistance from one]. Vital signs stable.

[50] Nurse Pieterson assumed responsibility for Greta's nursing care from Nurse McAllister at 7:00pm on August 14, 2015. Nurse Pieterson was in Greta's room multiple times during the course of the overnight shift, taking vitals, giving medications, drawing blood, and assisting Greta with toileting approximately every 30 minutes.

[51] At 1:15am on August 15, 2015, Nurse Pieterson wrote a nursing note in Greta's Clinical Progress Record:

Nursing Note: S/O – VSS [vital signs stable] – afebrile. Up to commode q30 mins to void. 2 sm [small], formed BMs. IV fluid infusing. Drinking well. No C/O [complaints of] pain. Sleeping pill given with little effect. Bed alarm on at present. Resting in bed. A/P [assessment/plan]– will continue with current plan of care and alert team to changes.

August 15, 2015

[52] Nurse McAllister received Greta into her care at the nurses' shift change at 7:00am on August 15, 2015.

[53] Nurse McAllister testified that, after receiving an oral report from Nurse Pieterson, she went into Greta's room at approximately 7:30am and took Greta's vital signs. Vitals were recorded in Greta's Adult Graphic Record.

[54] At approximately 7:50am, Nurse McAllister was alerted to Greta's bed alarm going off. She went to Greta's room and found Greta sitting on the floor on her bottom, with her back against the bed and her legs on the floor.

[55] Nurse McAllister testified that she conducted a head-to-toe assessment of Greta, which revealed no signs of injury or trauma. Greta denied being in any pain and her vital signs remained unchanged since they had been first taken at 7:30am. Nurse McAllister assisted Greta into a "geri-chair", a specialized recliner chair used in hospitals to support individuals with limited mobility. Nurse McAllister called Robert to report the fall and advised the doctor on duty of the incident. Nurse McAllister's nursing note in Greta's Clinical Progress Notes states:

Nursing Note. O. Pt. found sitting on floor next to bed this morning at 07:50, pt tried to get to commode chair, bed alarm in situ, no signs of injury, pt denies being in pain, vital signs unchanged since last reading. Pt currently sitting in geri-chair. IV now d/c'd [discontinued], son called to inform him, son seems concerned and will be in later to visit. A+P [plan to] ensure bed alarm on or pt in geri-chair.

[56] At approximately 8:37am, Nurse McAllister completed an incident report (called an Event Details Report) about Greta's unwitnessed fall. Nurse McAllister reported that Greta had been previously assessed as having a high risk of falling, and that "falls preventions strategies were in place". At trial, Nurse McAllister testified that her entry that "falls prevention strategies were in place" meant that the bed alarm was on, Greta had a call bell in reach, Greta's bed was in the low position closest to the ground with three bed rails up, Greta had a commode available, and she had grippy socks to assist with ambulation.

[57] Nursing Manager Tara Caslick reviewed Nurse McAllister's Event Details Report about Greta's unwitnessed fall. On August 18, 2015, Ms Caslick noted in the Event Details Report that "the bed alarm was not on" at the time of Greta's fall. Ms Caslick testified that she did not witness the events of August 15, 2015 and she did not speak to Nurse McAllister before making her note. She could not explain why she noted that the bed alarm was not on.

[58] Nurse Pieterson took over Greta's nursing care from Nurse McAllister at 7pm on August 15, 2015. Nurse Pieterson testified that she had no specific recollection of what she discussed with Nurse McAllister at the shift change, but believed she would have received information about Greta's unwitnessed fall orally and from the Clinical Progress Notes. Nurse Pieterson testified that she would have conducted a head-to-toe assessment of Greta during her shift, and that any sign of injury would have been documented in the Clinical Progress Note. Nurse Pieterson denied that Greta had any sign of injury from the fall. Nurse Pieterson's nursing note states:

Nursing Note – S/O – VSS [vital signs stable] – afebrile. Alert but remains confused. Continues to get up q30-45 minutes to use commode. Voiding very small amounts each time. 1m, formed BM. Pt very HOH [hard of hearing]. Bed alarm on for pt safety. Sleeping pill given with little, to no effect. A/P – will continue to monitor + alert team to changes.

August 17, 2015

[59] On August 17, 2015, Greta was reassessed by a physician. By this time, Greta had finished a full course of antibiotics and had no signs of continuing UTI or other infection. However, her confusion persisted. Greta was referred for a geriatric consult due to the ongoing and unexplained confusion.

August 18, 2015

[60] On August 18, 2015, Greta was assessed by internal medicine specialist, Dr. Joel Hurwitz. In his consultation note, Dr. Hurwitz noted that it did "not appear that Greta has any ongoing infectious causes of her delirium…[t]he CT could be repeated if her confusional state fails to improve". New CT images taken on August 18, 2015 revealed a large subdural hematoma on the left side of Greta's head.

[61] A subdural hematoma is bleeding underneath the dura surrounding the brain. A subdural hematoma can be caused by any number of things including, but not limited to, a head injury. Symptoms of subdural hematoma can vary and can include headache or general feelings of unwellness, confusion, falls and drowsiness.

[62] Subdural hematomas are generally divided into three phases, depending on the acuity of the bleeding. Generally, the acute phase usually lasts three to seven days. The subacute phase begins between three and seven days after the acute blood starts to break down and lasts approximately 21 days. Chronic subdural hematomas develop over the course of more than 21 days.

[63] As a subdural hematoma enters the chronic phase, a membrane forms around the blood and fluid. Liquified blood is contained in the sac. Membranes can also grow within the original sac, which results in what is called a loculated hematoma.

[64] Subdural hematomas can cause compression of the brain because there is nowhere for the blood to go. The resulting brain compression is called "mass effect". If the brain compression is significant, it can displace the affected side of the brain past the midline of the brain cavity to the other side. This is called "midline shift".

[65] Greta's neurosurgeon, Dr. Keith MacDougall, noted that "urgent intervention for the patient's subdural hemorrhage is not required at this time; although it is quite possible that the subdural hemorrhage is responsible for the patient's current cognitive status." Dr. MacDougall's treatment plan was to review Greta's CT imaging and inform the medicine team of a decision regarding management of the subdural hematoma "this week".

August 19, 2015

[66] On August 19, 2015, Dr. MacDougall performed a left-sided frontoparietal mini-craniotomy and successfully evacuated (or drained) the acute-on-chronic subdural hematoma from Greta's skull. Informed consent was obtained from Robert prior to the neurosurgery.

Post-Surgical Complications and Recovery

[67] Greta remained in hospital after her surgery for monitoring and recovery. Unfortunately, her recovery was impeded by several medical complications. On August 25, 2015, Greta went into atrial fibrillation and required intervention to restore sinus rhythm to her heart. She also developed a partial bowel obstruction which required the placement of a nasal gastric tube with intermittent suction. In the post operative period, Greta attempted to remove her nasogastric tube on several occasions and had to be placed in physical restraints for much of her post-surgical recovery.

[68] Greta's level of cognition decreased after the craniotomy. Greta's physicians considered her diminished cognition a "permanent new baseline". Greta was generally alert to time, person and place but was often confused, unable to follow conversations or understand information presented to her. Her cognitive challenges were compounded by her severe hearing loss.

Discharge from LHSC

[69] On October 9, 2015, Greta was discharged home to Robert. Greta's cognitive function did not improve. In a CCAC assessment dated October 10, 2015, nurse Lorraine Murphy assessed Greta as needing supervision with respect to her activities of daily living and remaining at a risk of falls.

[70] Greta's circumstances did not materially change between her discharge in October 2015 and her move into long-term care in 2018. In 2018, Greta suffered a burst fracture in her lumbar (L2) back, a heart attack and the onset of dementia. She continued to have UTIs and falls. Robert continued to attend to Greta with affection and concern, but he began suffering his own health challenges.

[71] Greta moved to long-term care in October 2018, and died on April 4, 2021.

Findings About Greta's Fall(s) at LHSC

[72] There is no real dispute that Greta had at least one fall while hospitalized at LHSC, being the unwitnessed fall documented by Nurse McAllister at approximately 7:50am on the morning of August 15, 2015.

[73] Nobody witnessed how Greta came to be on the floor on the morning of August 15, 2015. Greta was in her bed at 7:30am when Nurse McAllister came to her room and took her vital signs. Nurse McAllister was alerted to Greta's bed alarm going off at 7:50am.

[74] Given Greta's history of falls, her continued confusion, and Nurse McAllister's description of how she found Greta moments after being alerted to the bed alarm, I find that Greta attempted to exit her bed to the commode, slid down and landed on her buttocks.

[75] Robert gave evidence at trial that Greta had a previous fall in which Greta tried to get up from her bed, slid down to the floor and landed on her buttocks in a manner consistent with what Nurse McAllister observed on the morning of August 15, 2015.

[76] The plaintiffs invite me to find that Greta had additional falls at LHSC between August 11 – 18, 2015. They point to several entries in Greta's Clinical Progress Note suggesting that Greta may have had more than one fall. In particular:

a. on August 17, 2015, resident Dr. Sham noted in Greta's Clinical Progress Record that Greta was "often found overnight on floor overnight"; and

b. on August 18, 2015, Dr. P. Lynch stated in a Consultation Note that "frequently during her hospital stay" Greta was found to be out of bed on the floor in the morning.

[77] I find that Greta had only one fall, being the fall documented by Nurse McAllister on the morning of August 15, 2015. The notations of Dr. Sham and Dr. Lynch suggesting additional falls are unparticularized and are inconsistent with Greta's Clinical Progress Notes, and the evidence of the nurses who attended to Greta's care between August 14, 2015 – August 18, 2015. There is no evidence to suggest that Dr. Sham or Dr. Lynch personally witnessed Greta on the floor at any time. The physician's entries are hearsay reports of what others told these physicians. The entries conflict with the evidence of Nurses McAllister, Pieterson, and Nadeem, each of whom testified that Greta did not fall except as was documented by Nurse McAllister on August 15, 2015.

Issues

[78] To succeed in this action for medical negligence, the plaintiffs bear the onus of proving on a balance of probabilities that:

a. the defendant nurses owed Greta a legal duty of care;

b. the defendant nurses, or any of them, breached that duty of care by conducting themselves in a matter that fell below the applicable standard of care;

c. that the defendant nurses' breach caused Greta to suffer a bodily injury; and

d. the injury must not be too remote a result of the defendants' conduct: Willick v. Willard, 2023 ONCA 792 at para. 6, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

Law and Analysis

Duty of Care

[79] There is no dispute that the defendant nurses, Anne McAllister, Rebecca Pieterson, and Sidra Nadeem each owed Greta a duty of care appropriate to their qualifications as registered nurses working in an acute care setting. The defendant LHSC does not dispute, and I also find, that it is vicariously liable for any injuries caused by the negligent performance of the defendant nurses' professional duties.

Standard of Care

[80] The plaintiffs must establish the appropriate standard of care, and then demonstrate by a preponderance of evidence that the defendants failed to meet that standard.

[81] Every medical practitioner must bring to her task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. She 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 see Crits v. Sylvester (1956), O.R. 132 at 143 (C.A.), aff'd , [1956] S.C.R. 991; Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 at para. 86, aff'd 2021 SCC 1, [2021] 1 S.C.R. 3.

[82] Nursing is an independent profession with its own practices, procedures, and standards of competence. The standard of care applicable to nurses is that of an ordinary skilled person exercising and professing to have skills of a nurse reflecting the education, training, experience and knowledge of the ordinary skilled nurse: Suwary (Litigation guardian of) v. Women's College Hospital at para. 170 (Ont. Sup. Ct.). A nurse's conduct will be judged in light of the knowledge they ought to have reasonably possessed at the time of the alleged act of negligence: ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paras. 33-34. The standard is properly set according to the distinctive setting of an acute (internal) medicine unit and the team approach to care: Granger (Litigation Guardian of) v. Ottawa General Hospital, [1996] O.J. No. 2129 (Gen. Div.) at pp. 16-17.

[83] A nurse will not be held liable for a mere error in judgment, provided that the judgment was exercised honestly and intelligently. However, if the error is one that would not have been made by a reasonably competent nurse, the error amounts to negligence: Williams v. Bowler at paras. 232–235; Matthews Estate v. Hamilton Civic Hospitals at paras. 125–127.

[84] Although a departure from a hospital protocol, policy or procedure is not prima facie evidence of negligence, it can nonetheless be a factor in determining whether there has been a failure to meet the requisite standard of care. A breach of a hospital protocol, policy or procedure must be viewed in light of what was reasonable and prudent conduct in the circumstances: Latin v. Hospital for Sick Children at paras. 60-61.

[85] The standard of reasonableness is not a standard of excellence or a standard of perfection: Armstrong at para. 86. The conduct of a nurse or other medical practitioner should only be judged with knowledge that was, or ought to have been, possessed at the time of the medical treatment. Adverse outcomes in medicine are often unpredictable or unavoidable. The court must be assiduously careful to assess the conduct in question, not the outcome to the plaintiff.

[86] An important part of the standard of care is what a defendant ought reasonably to have known, seen, or done in the circumstances. In the present case, the question of what ought to have been done by a reasonable nurse to prevent falls involves a consideration of what was going on at the time of the alleged failure in assessment and treatment giving rise to Greta's undocumented fall.

[87] The deficiencies in the LHSC Clinical Progress Note complicates the Court's assessment of Greta's nursing care at LHSC. LHSC acknowledges the obvious shortcomings in the medical charting, including the absence of a completed Fall Risk Assessment and Intervention Flowsheet until after Greta's fall, the absence of entries documenting precisely what fall prevention strategies were taken by the nurses in this case.

[88] The defendants have, contrary to their duty to document, deprived the plaintiffs and this Court of useful information. If there had been diligent record keeping, the Court would have had data that would connect the nurses' risk assessment with the specific fall prevention strategies implemented. An analysis of what occurred could have proceeded by reviewing customary records along a documented timeline and it would have been possible to take an accurate snap shot of certain moments in time, without reference to the nurses' testimony about their usual practice.

Evidence of Standard of Care

[89] Evidence about the applicable standard of care was received from the nurse defendants themselves and two nursing experts. Jeanne Ernst provided expert opinion evidence on behalf of the plaintiffs. Anne Sullivan testified for the defendants. I qualified each as an expert in the standard of care applicable to a registered nurse practicing in an acute medicine unit in Ontario. Both were well educated, taught in relevant areas and had ample nursing experience in an acute care setting.

Nursing Expert Jeanne Ernst

[90] Jeanne Ernst is a registered nurse who has practiced in critical care and general medicine settings since 1991. Ms Ernst opined that the defendant nurses' care fell below the standard of care in the following ways:

a. The nurses failed to complete documentation in an accurate, timely and complete manner;

b. The nurses failed to review or complete the LHSC Fall Risk Assessment and Intervention Flowsheet, in breach of LHSC policy;

c. The nurses failed to implement appropriate falls reduction strategies for Greta, in particular:

i. The nurses failed to ensure that Greta's bed alarm was on;

ii. The nurses failed to initiate a review of Greta's medication, namely Zopiclone, until after Greta's fall;

iii. The nurses failed to implement a toileting routine to prevent falls;

iv. The nurses failed to educate Robert about Greta's fall risk and he was not given the opportunity to help with Greta's care;

v. The nurses failed to raise the use of a sitter to prevent Greta's fall(s);

vi. The nurses failed to consider and recommend the use of physical restraints to prevent Greta from falling; and

vii. The nurses failed to conduct a post-falls assessment after Greta's fall on August 15, 2015.

[91] In arriving at her opinion, Ms Ernst relied on the standards of the nursing profession, mandated by the College of Nurses of Ontario ("CNO"). Ms Ernst noted that CNO professional documentation standard is a professional standard requiring all nurses working in an acute care setting to complete patient documentation in a manner that is "accurate, timely and complete." The CNO documentation standard ensures that nurses fulfill their duty to identify issues, convey information and communicate the treatment plan to a patient's broader healthcare team.

[92] Ms Ernst noted that LHSC's Fall Risk Assessment and Intervention Flowsheet required the nurses to complete a structured falls risk assessment for Greta upon her admission to LHSC, upon transfer from the emergency department to the acute (internal) medicine unit, weekly every Thursday, after a fall, and with condition changes. In Ms Ernst's view, the failure to complete the prescribed LHSC Fall Risk Assessment and Intervention Flowsheet fell below the applicable standard of nursing care.

[93] During her testimony, Ms Ernst acknowledged that Greta's medical chart contains various entries by nursing staff that described Greta as being at a high risk of falling, and also that the nurses implemented various fall prevention strategies for Greta. For example, Ms Ernst acknowledged that LHSC nurses noted on August 12 and 13, 2015, that Greta required "bed alarms for safety" and "bed alarms needed as pt is unsteady and would likely have fallen if nurse had not been close by". Despite the chart entries, Ms Ernst opined that the nurses' failure to assess and document Greta's fall risk and implement reasonable fall prevention strategies comprised a serious failure by the nurses that placed Greta at risk. Ms Ernst opined that the standard of care required the nurses to consider Greta's specific risk factors for falling, and implement individualized fall prevention strategies including:

a. Ensuring Greta's bed alarm was on;

b. Initiating a review of the use of Zopiclone;

c. Implementing a toileting routine to accommodate Greta's need for frequent urination;

d. Educating Robert about Greta's fall risk and enlisting his involvement in fall prevention;

e. Using a sitter; and

f. Using physical restraints.

[94] Ms Ernst further opined that the defendant nurses fell below the applicable standard of care by failing to conduct a post-fall assessment after the documented August 15, 2015 fall in accordance with LHSC policy.

Nursing Expert Anne Sullivan

[95] The defence called nursing expert Anne Sullivan. Ms Sullivan opined that nursing staff met the standard of care of a nurse to take reasonable steps to assess Greta's risk for falls and implement reasonable safety interventions to prevent falls.

[96] Ms Sullivan opined that nursing staff met the applicable standard of care because Greta was identified upon her admission as being at high risk for falls, and appropriate safety interventions were put in place throughout her hospital stay in the acute (internal) medicine unit. Ms Sullivan acknowledged that use of a bed alarm was an appropriate and necessary fall prevention intervention. Ms Sullivan agreed that failing to ensure the bed alarm was on, or discontinuing its use, would constitute a breach of the applicable standard of care.

[97] Ms Sullivan opined Nurse McAllister responded appropriately to finding Greta on the floor next to her bed on the morning of August 15, 2015 by assessing her for possible injury, completing vital signs, notifying the physician and Robert of the incident, and completing an incident report. Moreover, Nurse McAllister took steps to ensure that the bed alarm stayed on, or that Greta was in a geri-chair. Since the nurses had appropriate fall prevention measures in place for Greta and were continuously monitoring and attending to her needs, the applicable standard of care was met.

[98] I cannot accept Ms Sullivan's opinion about the applicable standard of care because it is too far removed from the evidence-based patient care standard embodied in the LHSC Fall Risk Assessment and Intervention Flowsheet. The Fall Risk Assessment and Intervention Flowsheet is cogent evidence of the standard of nursing care in this case and reflects standard nursing practice at LHSC. For example, a Fall Risk Assessment and Intervention Flowsheet was completed and updated during Greta's admission to LHSC in July 2014 and during her most recent admission between August 6-9, 2015. On August 6, 2015, an LHSC emergency room nurse specifically noted Greta's mobility challenges and cognitive impairment to explain her decision to give Greta a yellow fall risk bracelet and to post a fall risk sign in Greta's room.

[99] I accept Ms Ernst's evidence that the applicable standard of nursing care required the defendant nurses to conduct an individualized assessment of Greta's risk of falling, implement reasonable falls prevention strategies reflective of Greta's particular fall risk factors, and complete timely and accurate documentation to communicate the fall risk assessment and fall prevention strategies implemented.

[100] Greta had several specific fall risk factors that a reasonable nurse working in an acute medicine unit within a hospital would need to consider in identifying appropriate fall prevention interventions including:

a. Greta's UTI and associated need for very frequent toileting;

b. Greta's documented sleeplessness;

c. the risk that administration of Zopiclone as a sleep aid might increase Greta's risk of falling; and

d. Greta's mobility impairments and poor posture for transfer; and

e. Greta's marked mental confusion.

[101] From the Clinical Progress Notes, Nurses Pieterson and McAllister were aware that Greta was up to use her commode as frequently as every 15 minutes. A need for such frequent urination meant that Greta required a nurse to provide standby assistance for toileting every 15 minutes when she was not sleeping. If Greta did not sleep during a given shift, it meant that she could have required standby assistance for toileting twenty-four or more times per shift.

[102] The LHSC Fall Risk Assessment and Intervention Flowsheet identifies UTI, urinary frequency, and delirium as contributing factors for fall risk. It further suggests establishing a toileting routine for patients with UTI and urinary frequency as fall risk factors.

[103] I agree with Ms Ernst that the applicable standard of care required LHSC nurses to implement and document a toileting routine and use a bed alarm to prevent falls (in addition to the universal fall prevention interventions used with all patients[3]). Greta had a UTI, a need for very frequent toileting and mental confusion. The Fall Risk Assessment and Intervention Flowsheet recommended a toileting routine be established as a fall prevention intervention for high risk patients with UTI and frequent urination.

[104] At the same time, I find that the standard of care did not require the defendant nurses to ask Greta's physicians to review medication or advocate for the use of physical restraints or use a sitter. There was no expert medical evidence that the prescription or administration of Zopiclone to Greta was inappropriate or contraindicated. Nor was there evidence from Greta's treating physicians that their decision to replace Zopiclone with Trazadone was related to Greta's fall on August 15, 2015. The evidence was that Zopiclone had been quite ineffective as a sleep aid to Greta; it is quite possible that the change in Greta's medication was driven by efficacy rather than Greta's risk of falls.

[105] I am not satisfied that the standard of nursing care required the LHSC nurses to advocate for the use of physical restraints. The Patient Restraint Minimization Act, 2001, S.O. 2001 c. 16 and LHSC policy mandates minimal use of restraint, only where restraint is necessary to prevent serious bodily harm. The purpose of the legislation is to minimize the use of restraints on patients and to encourage hospitals to use alternative method to restraints whenever possible: Patient Restraint Minimization Act, 2001, s. 3. Consistent with the legislation, the LHSC Use of Restraint Policy mandates that the use of restraint shall be exceptional and temporary, and limited to situations where alternative measures have been assessed as ineffective.

[106] There was no expert medical evidence that Greta's circumstances, including her advanced age, UTI and C. difficile infections, mental confusion and mobility impairments, were such that fall prevention measures short of physical restraints or a sitter would be insufficient to prevent Greta from causing serious bodily harm to herself. To the contrary, the Clinical Progress Notes suggest to me, and I find that Greta was a "pleasantly confused" geriatric patient whose UTI and associated frequent need for the toilet created a high risk of falls appropriately addressed through the use of alternative methods including a toileting schedule, the use of a call button, bed alarm, nursing assistance and the availability of a commode.

Nursing Conduct Fell Below Standard of Care

[107] The defendants have acknowledged the significant gaps in the documentation in this case. For example, it is unclear on the record what nurse or LHSC staff member was responsible for completing the Fall Risk Assessment and Intervention Flowsheet for Greta upon her admission to LHSC on August 11, 2015, or at the time Greta was transferred from the emergency room to the acute (internal) medicine unit. No explanation offered as to why the LHSC policy governing falls risk assessment was not followed by those responsible for Greta's care.

[108] There was evidence from the defendant nurses that not everything they do is charted. The nurses testified that they received and conveyed patient information through multiple channels. In particular the nurses testified that:

a. At each nursing shift change, the outgoing nurse would provide an oral report to the incoming nurse reporting key patient information;

b. Nurses conveyed information through entries in the patient's medical chart, including but not limited to the narrative Clinical Progress Notes; and

c. Nurses used Kardex, an informal patient documentation system, to communicate key patient information to one another in summary fashion.

[109] Nurse McAllister testified that she did not document all of the falls risk prevention interventions that were in place for Greta during her August 14, 2015 day shift, but believed, based on her usual practice, that for a patient like Greta who was at a high risk of falls, standard fall risk interventions included:

a. Ensuring that a call bell was within Greta's reach;

b. Having the patient wear a yellow bracelet identifying Greta as being at risk of falls;

c. Having the patient wear grippy socks;

d. Ensuring that the patient was in its lowest position closest to the floor;

e. Ensuring that three railings were up on the patient's bed;

f. Ensuring that the patient had a commode;

g. Providing the patient assistance when she required toileting and when she was ambulating;

h. Putting the patient in a geri-chair when she was out of bed; and

i. Ensuring the bed alarm on the patient's bed was on.

[110] I accept that a witness's testimony of their invariable practice is circumstantial evidence of the facts in issue. However, the failure to adequately maintain charts by the nurses is a distinct ground of negligence: Joseph Brant Memorial Hospital v. Koziol, [1978] 1 S.C.R. 491 at 497. In that case, the Supreme Court of Canada found that the failure to chart and make nurse notes between 10:00 p.m. one night and 5:00 a.m. the next morning was a "definite breach of basic record keeping in the management of the case."

[111] Given the nurses' duty to document, I place little weight on their evidence about what they say they would have done in terms of implementing falls prevention strategies particularly in circumstances where the lack of a completed Fall Risk Assessment and Intervention Flowsheet reflected a significant breach of LHSC policy. The nurses' evidence of routine and invariable practice is not easily reconciled with their duty to conduct individualized patient fall risk assessment and implement fall prevention strategies to address a patient's specific fall risk factors.

[112] I accept Nurse McAllister's evidence that most of the patients seen on the sixth floor of the acute (internal) medicine unit at LHSC were elderly patients with numerous medical conditions. They typically had at least a medium or high risk of falling. Beyond that, however, the evidence that I accept about what assessment(s) were completed and what fall prevention strategies were implemented for Greta are those that were documented in the medical records contemporaneously with the events in this case: Kolesar v. Jeffries (1974), 9 O.R. (2d) 41 (H.C.J.).

[113] Greta's Clinical Progress Notes contain a variety of entries that speak to Greta's fall risk and some of fall prevention strategies taken. As noted above, on August 12, 2015, Greta was noted to be a "pleasantly confused" geriatric patient who required standby assistance to get to the bathroom. At 1:00pm on August 13, 2015, a nursing note in Greta's Clinical Progress Note stated that Greta was using her call bell at times for help, and that a bed alarm was needed for safety because Greta was unsteady and would likely have fallen if a nurse had not been close by.

[114] Greta's Clinical Progress Notes support an inference that all of the nurses involved in Greta's care generally considered her to be at a high risk of falling even in the absence of a formal assessment. Helen Sumpter's physiotherapy assessment that Greta was at a high risk of falling was consistent with the nurses' assessment. I accept that Nurses McAllister and Pieterson were familiar with Helen Sumpter's physiotherapy assessment while providing nursing care to Greta on and after August 14, 2015.

[115] The Clinical Progress Notes also reflect the fact that some important fall prevention strategies were implemented for Greta. In particular, I find that Greta's hospital bed was equipped with a bed alarm, and that the bed alarm was on at the time of Greta's August 15, 2015 fall. Greta had a commode in her room. No other specific fall prevent interventions were documented and, for the reasons already discussed, I do not accept the nurses' evidence of their usual practice as cogent evidence of what other fall prevention interventions were used in Greta's care. In particular, I find that the nurses unreasonably failed to implement a toileting routine for Greta.

[116] I recognize that the nurses went to assist Greta frequently. Nurse McAllister testified that she typically was responsible for four patients during a daytime shift, and believed she attended Greta's room approximately twelve times over the course of her shift on August 14, and twelve times over the course of her shift on August 15. Nurse Pieterson testified that she was usually responsible for six patients on a night shift. Nurse Pieterson did not note how frequently she was in Greta's room during her shifts but noted that she assisted Greta with toileting approximately every 30 minutes when she was not sleeping. While the nurses were attentive to Greta, I find that the nurses' ad hoc approach to assisting Greta failed to meet the standard of nursing care expected.

[117] In summary, I find that the nurses' failure to assess and document Greta's specific fall risk factors and implement and document a toileting routine responsive to Greta's needs fell below the applicable standard of nursing care. This was a serious breach that undermined the fundamental goals of nursing care in the acute (internal) medicine Unit at LHSC.

Causation

[118] The plaintiffs have the onus of proving that, "but for" the defendants' breach of the standard of care, Greta would not have suffered an acute-on-chronic subdural hematoma. The Supreme Court of Canada explained the application of the "but for" test in detail in para. 8 of Clements v Clements, 2012 SCC 32:

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

[119] To succeed in proving causation, a plaintiff does not need to show that the defendant's conduct was the sole cause of the injury, just a necessary cause: Athey v. Leonati, at para. 17; Clements at para. 8.

[120] In Sacks v. Ross, 2017 ONCA 773 at paras. 46–48 and 100, the Court of Appeal explained the correct approach to determining causation in cases like this which involve allegations of omission, as opposed to an allegation of a wrongful act:

Things are more complicated where the complaint is not about something the defendant did, but about something the defendant failed to do in breach of the standard of care. 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.

[121] To establish causation in this case, the plaintiffs must prove that, but for the defendant nurses' breach of the applicable standard of nursing care, Greta would not have fallen on August 15, 2015 nor suffered an acute subdural hematoma requiring an emergency craniotomy.

Did the defendants' conduct cause or contribute to Greta's fall?

[122] As I have been instructed to do by the Court of Appeal in Sacks v Ross, I have considered the facts as they existed the moment before Greta's fall, and imagined what would have happened had the defendant nurses met the standard of care and implemented a toileting routine for Greta reflective of her need to urinate at approximate 30-minute intervals. Having done so, I find that the defendants' failure to implement a toileting routine as a fall prevention strategy was a legal cause of Greta's fall on August 15, 2015.

[123] Nurse Pieterson made the last nursing note prior to Greta's fall, at 1:38 am. Nurse Pieterson noted that Greta was up using her commode every 30 minutes, that she was on IV fluids and was drinking well and had been given a sleeping pill. Greta was resting in bed, her bed alarm was on.

[124] Nurse McAllister assumed responsibility for Greta's care at 7:00 am on August 15, 2015. She went into Greta's room until 7:30am and took Greta's vital signs. She noted Greta was elderly and confused and had an intravenous line. Nurse McAllister noted Greta's vitals in the Adult Graphic Record. There is no evidence that Nurse McAllister assisted Greta to the bathroom while in Greta's room at 7:30am.

[125] The bed alarm sounded at 7:50am. Greta fell while attempting to get to the commode.

[126] It had been at least 50 minutes, and likely longer, between the time a nurse last helped Greta to the toilet to the time of Greta's fall. The time period was substantially longer than the 15–30-minute toileting frequency documented in Greta's Clinical Progress Note.

[127] On a balance of probabilities, I find that, had Greta's nursing team implemented a toileting routine that reflected the maximum frequency with which Greta needed to urinate, Greta would not have attempted to get out of bed to use her commode without standby assistance at 7:50am. Accordingly, I find the defendants' failure to implement a toileting routine was a legal cause of Greta's fall on the morning of August 15, 2015.

Did the fall cause Greta's acute-on-chronic subdural hematoma?

[128] To succeed in their claim, the plaintiffs must prove that Greta's fall on August 15, 2015 caused the acute-on-chronic subdural hematoma discovered by CT scan on August 18, 2015. The defendants submit that the plaintiffs have failed to do so.

[129] The court received expert evidence from two neurosurgeons about the timing of Greta's subdural hematoma. Dr. Naresh Murty provided expert evidence for the plaintiffs. Dr. Julian Spears provided expert evidence for the defendants.

[130] Like the nursing experts, each of the expert neurosurgeons are highly educated and experienced neurosurgeons qualified to provide expert testimony in the cause, diagnosis, and treatment of subdural hematomas, and how Greta's clinical outcome would have differed, if at all, without the acute portion of the hematoma.

[131] Drs. Murty and Spears agreed about many aspects of Greta's case. In particular, Drs. Murty and Spears agreed that:

a. The chronic portion of Greta's subdural hematoma most likely started on or before July 28, 2015;

b. Greta's chronic subdural hematoma was likely present when Greta was admitted to LHSC on August 11, 2015;

c. that the presence of subacute features of Greta's subdural hematoma could be explained by Greta having a fall at home between August 9, 2015 and August 11, 2015;

d. Greta's chronic subdural hematoma was likely caused by one or more falls prior to August 11, 2015;

e. Greta's mental confusion on August 11, 2015 was likely caused, at least in part, by the subdural hematoma; and

f. the acute portion of Greta's subdural hematoma likely started after Greta's admission to LHSC on August 11, 2015.

[132] While Drs. Murty and Spears agreed that the acute aspect of Greta's subdural hematoma happened after Greta was admitted to LHSC, they do not agree on the cause of the acute bleeding.

[133] Dr. Murty opined that "multiple falls" during Greta's hospitalization from August 11, 2015 onward was the "most likely" cause that contributed to the development of the acute portion of the subdural hematoma. In cross-examination, Dr. Murty acknowledged there were several factors that put Greta at risk of an acute bleed, including the risk of rebleeding in the chronic hematoma, her age, and the fact that Greta was taking anti-coagulant medication, dalteparin.

[134] Dr. Spears opined that it was impossible to determine the timing of the acute portion of the hematoma. Dr. Spears explained that, once a chronic subdural hematoma formed, further bleeding might occur spontaneously, with or without trauma.

[135] Dr. Spears' opinion is consistent with the view expressed by Greta's treating neurosurgeon. Dr. MacDougall wrote in his clinical note:

The timing of this hemorrhage cannot be accurately obtained for a few reasons. Looking at the patient's imaging history, it appears that she had a fall on June 12 of this year where she obtained films of her pelvis was well as a CT of her head. At that time, there was no pelvic fracture and there was not evidence of any hemorrhage on her CT head. Approximately a month later on July 4, films were again taken of the patient's pelvis and those revealed a pelvic fracture; however, a CT head was not performed at this time. The only CT to be done following the one on June 12 was the one performed on August 18; however apart from the fall where she suffered a pelvic fracture, she had been reported to have falls at home, and frequently during her stay in hospital, she was found to be out of her bed on the floor in the morning, all of these incidences likely associated with falls; although it is certainly possible that the fall that induced the current subdural hemorrhage occurred after August 8 when she was discharged home with a reported normal mental status. We cannot be sure of this.

[136] Having considered the evidence of Drs. Murty and Spears, I find that the plaintiffs have not proven on a balance of probabilities that Greta's fall on August 15, 2015 was what caused the acute portion of Greta's acute-on-chronic subdural hematoma.

[137] It is clear from the medical evidence that Greta was suffering from a large, membranous, loculated hematoma with midline shift when she arrived at LHSC on August 11, 2015. Greta's mental confusion was, at least in part, due to the chronic hematoma.

[138] Greta had a number of risk factors for an acute-on-chronic hematoma. Dr. Murty acknowledged in cross examination that Greta's age placed her at higher risk of an acute bleed, that the loculated chronic hematoma could have bled spontaneously, and that the anti-coagulant dalteparin administered to Greta while at LHSC significantly increased Greta's risk of acute bleeding. Greta had only one fall while at LHSC and, while the fall was certainly a possible cause of the acute bleed, there is no evidence that Greta struck her head during her fall, or that she fell to the floor with any significant force. To the contrary, Nurses McAllister and Pieterson each testified that they observed no signs of injury despite doing head to toe assessments of Greta.

[139] Considering all of the evidence, I am unable to find on a balance of probabilities that Greta's fall on August 15, 2015 caused or contributed to Greta's acute-on-chronic subdural hemorrhage. Without proof of causation, the action must be dismissed.

Would Greta's treatment or outcome have been different without the acute bleed?

[140] In the event I am wrong about the cause of the acute bleeding, I find that the plaintiffs have failed to prove that the acute portion of Greta's acute-on-chronic subdural hemorrhage changed Greta's medical treatment or outcome from what it would have been had she not had a fall.

[141] Drs. Spears and Murty agreed that Greta's acute hematoma rendered the mini-craniotomy performed by Dr. K. MacDougall under general anaesthetic the only appropriate neurosurgical option. The question is whether Greta's treatment or outcome would have been any different if she did not have the acute brain bleed as a result of the fall.

[142] Dr. Murty testified that, if Greta had not suffered an acute bleed, her chronic hematoma may have required surgery, but it could have been effectively evacuated by a more conservative burr hole procedure conducted under local anaesthetic. In a burr hole procedure, the neurosurgeon drills one or more small holes into the skull and drains the subdural hematoma through a tube. Dr. Murty testified that the burr hole procedure would be the preferred surgical approach to draining the chronic subdural hematoma because it would avoid the very serious risk of using general anesthetic.

[143] Dr. Spears disagreed. Dr. Spears was of the view that the acute bleed made no difference to the surgery that Greta needed or to her clinical outcome. Dr. Spears opined that the acute portion of the hematoma did not increase the overall mass effect of the hematoma, and that a mini-craniotomy would have remained the preferred surgical approach to ensure complete evacuation of a loculated, membranous subdural hematoma like Greta's.

[144] Dr. Murty's opinion that general anaesthetic poses significant risks to elderly patients is not disputed. However, there is no evidence that Greta's cognitive decline was attributable to general anaesthetic rather than the impact of the subdural hematoma itself.

[145] In the absence of the acute portion of the hematoma, Greta's neurosurgeon may well have elected to proceed more conservatively and attempted to evacuate the chronic hematoma using a burr hole procedure to minimize the risk of general anaesthetic. However, Dr. Murty agreed that the burr hole procedure posed some risk of incomplete evacuation and increased the likelihood that Greta might need multiple surgeries to fully evacuate the chronic hematoma. Multiple surgeries would increase Greta's risk of complications and poor outcome.

[146] Having considered all of the evidence, I accept Dr. Spears' opinion that the acute portion of Greta's acute-on-chronic subdural hematoma did not create Greta's need for neurosurgery, and it did not change the most appropriate treatment. Greta arrived at LHSC with a large membranous, loculated hematoma with significant midline shift. Greta's level of confusion suggests that the hematoma had significant mass effect even prior to the acute bleed. I am unable to find, on a balance of probabilities, that the acute portion of the hematoma changed the treatment or Greta's clinical outcomes.

Disposition

[147] For the reasons given, the action is dismissed.

[148] If the parties are unable to resolve the issue of costs, written submissions may be provided by the defendants by no later than September 15, 2025 and by the plaintiffs by no later than September 30, 2025.

Justice M.A. Cook

July 31, 2025

Footnotes

[1] The trial was adjourned from April 11, 2024 to August 9, 2024 following my ruling that the defendants had failed to disclose various CT images of Greta's head in accordance with the Rules of Civil Procedure. The CT images were admitted to evidence with leave, on terms providing the plaintiffs with a trial adjournment and related relief to remedy the prejudice caused by the late disclosure.

[2] For reasons stated on the record, part of paragraph 26 and paragraph 27 of the affidavit of Robert Baker sworn February 29, 2024 was struck following a preliminary objection raised by defence counsel at the outset of the trial.

[3] Mandated universal fall prevention interventions set out at para. 37, above.