A healthcare team is often a multi-specialty, multi-person, cooperative system. As any medical malpractice litigator knows, medical errors that lead to injury are regularly caused by the acts or omissions of more than a single healthcare provider. Indeed, much medical malpractice litigation revolves around various healthcare parties (e.g. physicians, nurses, hospital) pointing fingers at each other for systemic lapses, or failures in communication. What happens, then, when a defendant physician relies on the conduct of a non-party physician to try and avoid a finding on causation? For the defendant physician in Baines, such reliance was an unsuccessful defence strategy.
In a decision following a judge-alone trial, Justice Lack found that the defendant Emergency Room (ER) physician, Dr. Mohamed Abounaja, fell below the standard of care and caused the amputation of the plaintiff, Kamal Baines’ leg. The trial judge further considered the important implications that the Insurance Act, R.S.O. 1990, c. I.8., may have on medical malpractice cases that follow MVA injury.
Facts
On June 23, 2011, and following a significant motorcycle collision, Mr. Baines was brought by ambulance to Ajax Hospital. While in the care of the paramedics, Mr. Baines’ left leg continued to have a pulse, indicating that blood flow to the leg was intact. The defendant Dr. Abounaja was the ER physician who cared for the plaintiff during his first four hours at the hospital.
Shortly after arriving at the hospital, pulses were no longer detected in Mr. Baines’ left lower leg, indicating a vascular injury that could not be treated with the resources available at the hospital. As of 11:50 pm, the nursing record indicates that Dr. Abounaja was aware of there being no pulses in Mr. Baines’ left leg, although he makes no note of such a finding in his own notes or records. At trial, Dr. Abounaja testified that his main concern was that Mr. Baines had significant multi-system trauma, and as such, his view was that Mr. Baines required consultation from trauma specialists. He testified that his plan was to resuscitate Mr. Baines and transfer him to a trauma centre.
At 12:04 am, Dr. Abounaja made his first call to CritiCall, the provincial system that assists physicians by facilitating consultations with medical specialists on an urgent basis. According to CritiCall records, there was no notation that Dr. Abounaja ever advised the service of the fact that Mr. Baines’ leg was pulseless. Based on the information CritiCall was given, however, it connected the defendant to Dr. Bernard Lawless, the Trauma Team Leader at St. Michael’s Hospital. Once again, there is no notation that absent pulses were ever discussed with Dr. Lawless during that first call. The defendant was instructed to obtain additional investigations, and call CritiCall if there were further findings, or consult the orthopedic surgeon from his hospital.
At 1:41 am, and since CritiCall did not hear back from Dr. Abounaja, they contacted him for an update. No update was given at that time. At 2:34 am CritiCall again called Ajax Hospital for an update. CritiCall was advised that all of the investigations were clear, and that as such, Mr. Baines was going to be seen by the local orthopedic surgeon. The request for transfer was cancelled. The orthopedic surgeon was paged at 2:34 am. He spoke with the defendant and advised him that Mr. Baines needed to be transferred and that he should call CritiCall. Dr. Abounaja called CritiCall again at 2:50 am. At this juncture, the records indicate that the lack of pulse was mentioned. At 2:56 am, CritiCall facilitated a call with Dr. Lawless and the defendant again. The defendant asserted that he requested a transfer and that his request was denied by Dr. Lawless.
At 3:02 am Dr. Abounaja spoke with CritiCall once more and was connected with Dr. Lawless. Dr. Lawless advised the defendant that if a referral was to be made, it should be made from the orthopedic surgeon at Ajax to another orthopedic surgeon directly. There was no evidence that the defendant expressed any opposition to the plan proposed. After arriving at the hospital, the orthopedic surgeon spoke with Dr. Lawless directly and requested a transfer. The orthopedic surgeon testified that Dr. Lawless advised that he could not accept the transfer and advised him to speak with other physicians.
At 3:45 am the orthopedic surgeon called CritiCall, and he was connected with an orthopedic surgeon at St. Michael’s hospital. CritiCall then contacted a vascular surgeon at Toronto General Hospital, but that hospital did not have a trauma service. Another hospital was then contacted but did not have a bed available.
At 4:32 am CritiCall escalated the request for transfer, and Mr. Baines was eventually accepted for transfer at 4:46 am. Unfortunately, Mr. Baines was not accepted for transfer to a trauma hospital until it was too late, an amputation of his leg was required.
Findings on Liability
The trial judge found that Dr. Abounaja fell below the standard of care by failing to tell Dr. Lawless about the plaintiff’s pulseless, fractured limb during their initial discussion. The Court also found that Dr. Abounaja fell below the standard of care by failing to contact the orthopedic surgeon on call within 15 to 20 minutes of the plaintiff’s arrival at the hospital. Additionally, the Court found that Dr. Abounaja failed to meet the standard of care by failing to advocate for Mr. Baines in his discussions with Dr. Lawless, and by failing to escalate the matter to ensure that a transfer to a trauma center took place within an appropriate time.
On the issue of causation, the defendant acknowledged that the plaintiff’s leg was amputated because of a delay in transfer to a trauma centre, and that earlier transfer would have avoided the amputation. The Court found that had the plaintiff been operated on within 6 hours of, he would have retained his leg.
The plaintiffs argued that had Dr. Abounaja reported that Mr. Baines had a devascularized limb to CritiCall at any time prior to 2:50 am and advised of the urgent need to transfer, Mr. Baines would not have lost his limb. They further argued that Dr. Abounaja contributed in a substantial way to the whole delay that caused the amputation to be necessary.
The defendant argued that he was not the cause of the delay and that there were key elements in the chain of causation that were speculative. The Court then applied the analytical framework described in both Sacks v. Ross and Donleavy v. Ultramar.[1] The Court concluded that Dr. Abounaja was “a cause” of the delay that resulted in the amputation of Mr. Baines’ leg.
The non-party Dr. Lawless is also “a cause” of the delay
The defence took the position that Dr. Lawless controlled the transfer of Mr. Baines at all material times, and that as such, Dr. Abounaja’s breach of the standard of care could not be the “but for” cause of Mr. Baines’ injuries. Dr. Lawless did not testify. The Court noted that there was an evidentiary void as to what he would have done had he been advised of Mr. Baines’ pulseless leg. Given Dr. Lawless’ later conduct, however, the Court inferred that had Dr. Lawless been aware of Mr. Baines pulseless leg, he would not have done anything different and likely would have refused the transfer at 12:16 am, just as he had done later. The Court determined that Dr. Lawless was also “a cause” of the delay that resulted in Mr. Baines’ amputation.
The reasoning expressed on the question of causation in this case serves as an important reminder for all personal injury litigators prosecuting or defending a case involving multiple potential causes – one cause (Dr. Lawless) does not excuse or preclude the finding of an additional cause (Dr. Abounaja). Of interest, however, is that the trial judge specifically declined to find that Dr. Lawless’ conduct was somehow negligent, as there was no expert or other evidence proffered that it was improper for Dr. Lawless to act as he did (and presumably, to be a cause of the delay). Additionally, the Trial Judge made these determinations without Dr. Lawless being a party, and without his testimony. The outcome on this issue may give future defendants pause when attempting to shift responsibility on the question of causation. Defendants may also wish to consider adding other members of the healthcare team by way of a third-party claim if they are not added at first instance.
Important points on damages
The quantum of damages, including the quantum of OHIP’s subrogated claim, was agreed to before the trial. The defence argued three distinct points to reduce the amount they would otherwise be required to pay: 1) that liability should be apportioned against the settling defendant hospital, 2) that Statutory Accident Benefits (SABS) should be deducted from the plaintiffs’ damages, and 3) that OHIP’s subrogated claim should be deducted from the total quantum agreed to. The defendant failed on all three arguments.
No evidence was called to attribute negligence to the settling defendant Hospital
The defendant argued that the Ajax Hospital, a settling defendant, was responsible for an additional 30 minutes of delay after the transfer of Mr. Baines had been initiated. The Court reasoned that although there was evidence of the required standard of care for the Hospital under such circumstances, there was no evidence as to what or who was actually responsible for the delay or how or why it occurred. As such, the Court determined that there was insufficient evidence to find a breach of the standard of care of the Hospital. The Court declined to apportion liability.
SABS are non-deductible in professional negligence claims
The defendant argued that Mr. Baines’ SABS should be deducted from the agreed quantum of damages. The Court began by re-affirming that private insurance benefits are non-deductible from personal injury tort awards at common law. The defendant argued, however, that the deductibility provisions of the Insurance Act should be applied in this circumstance. Those provisions note that SABs should be deducted in “a claim for loss or damage from bodily injury…arising directly or indirectly from the use or operation of an automobile.”
The Court rejected the defence argument. Relying on the Court of Appeal case of Hernandez v. 1206625 Ontario Inc. (c.o.b. Mr. Biggs Sports Bar & Eatery).[2] In Mr. Baines’ case, the Court found that the essence of the claim was for a loss arising from the professional negligence of the defendant physician, and that any losses occasioned by the doctor’s negligence is not properly characterized as arising from the use or operation of an automobile. The Court also noted that the parties treated the plaintiff’s injuries from the motor vehicle collision as a pre-existing condition, and that the damages were agreed to. The parties had also agreed that damages could be reduced depending on the extent of the plaintiff’s disability apart from the physician’s negligence. The Court concluded that the deduction provisions of the Insurance Act apply only to motor vehicle claims and declined to reduce the quantum of damages for the SABS paid to Mr. Baines.
OHIP’s subrogated claim is not deductible from the damages award
The defendant also took the position that OHIP’s claim should be deducted from the total damages agreed upon, arguing that OHIP has no right to subrogation under the Insurance Act and under the Health Insurance Act. On this issue, the Court noted that the parties had an agreement on damages, and that there was no right preserved by the defendant to argue for a deduction of the OHIP subrogated claim as part of that agreement. According to the Court, the agreement between the parties precluded any such deduction. Further, the Court found that the provision of the Insurance Act related to OHIP’s claim applied only to actions arising from motor vehicle negligence only. As such, no deduction was made for OHIP’s subrogated claim.
This case is under appeal.
[1] 2019 ONCA 687.
[2] 2002 O.J. No. 3667
