Gumbley v. Vasiliou, 2025 ONCA 851 (CanLII)

Gumbley v. Vasiliou, 2025 ONCA 851 (CanLII)

Full Decision

Trial win by plaintiffs upheld on appeal in a catastrophic brain injury arising from the delay in calling for help and delay in treatment of an acute asthma attack. The defendant doctor did not dispute that she breached the standard of care on appeal but argued that her negligence did not cause the catastrophic brain injury.

Overview

This case stands as a clear affirmation of robust causation analysis in medical malpractice law. Both the trial judge, Justice Mew and the Ontario Court of Appeal found that the defendant’s breaches of the standard of care were the direct and probable cause of the plaintiff’s catastrophic brain injury. The decision provides a compelling narrative that links the defendant’s omissions to the harm suffered, overcoming evidentiary gaps and conflicting expert testimony through a pragmatic and common-sense approach to causation.

Background

On October 9, 2014, 28-year-old Ashley Gumbley suffered an acute asthmatic attack and was taken by ambulance to the Toronto East General Hospital. The defendant was the on-call internist, Dr. Denise Vasiliou, who made the decision to admit Ms. Gumbley to the step-down ICU for close observation. Ms. Gumbley’s symptoms quickly worsened, and she had to be intubated and ventilated around midnight. Shortly after 1:10 am on October 10, the defendant paged the on-call intensivist, Dr. Warner at home for advice. Dr. Warner left for the hospital after speaking with the defendant and took over responsibility for Ms. Gumbley’s treatment and care from the defendant. Ms. Gumbley was extubated on November 6, 2014.

It was later determined that she had suffered brain damage that had rendered her an incomplete quadriplegic who requires 24-hour-a-day care.

Ms. Gumbley, her three children and parents sued the doctors involved in her care along with the Toronto East General Hospital. By the time the trial started on January 8, 2024, all of the defendants had been released from the action except for Dr. Vasiliou. The trial was before Justice Mew and was heard on January 8-12, 22-23, 29-31 and February 1-2 and 6, 2024.

On September 3, 2024, Justice Mew released his decision, finding that Dr. Vasiliou was negligent and failed to meet the applicable standard of care which resulted in Ms. Gumbley’s catastrophic brain injury. The trial judge found that the defendant was negligent because of:

The defendant appealed the trial judge’s causation finding that her breaches of the standard of care more likely than not caused Ms. Gumbley’s catastrophic brain damage.

Issues on Appeal

The defendant argued on the appeal:

  1. That the trial judge erred by relying on the contents of Dr. Warner’s critical care note in his causation analysis because it was hearsay and second, because it was opinion evidence that should have been excluded; and
  2. That the trial judge erred because there was no evidence connecting any of her breaches to the standard of care to Ms. Gumbley’s brain injury; that he did not make the required causation findings, and he erred in law by looking at the breached “cumulatively” rather than separately to find the necessary causal link between the defendant’s negligent omissions and Ms. Gumbley’s brain injury.

The Court of Appeal rejected both of the defendant’s arguments on appeal and affirmed the trial judge’s decision.

Analysis

The Court of Appeal rejected the defendant’s argument that the trial judge had incorrectly relied on Dr. Warner’s critical care note dated October 10, 2014. Both levels of court found that Dr. Warner’s note had been appropriately submitted in the Joint Brief of Documents, on consent, and as such, was authentic and admissible as evidence of acts, transactions or events and qualified as a business record under section 35 of the Evidence Act. Dr. Warner’s note was found to be admissible to show the information had been gathered in the ordinary course of his duties.

The trial judge found that Ms. Gumbley’s brain injury occurred between 10:30 pm and midnight on October 9, 2014  while the defendant was the most responsible physician. The defendant asserted on appeal that this finding was fatally flawed because it was “anchored to” Dr. Warner’s note that the defendant argued was inadmissible opinion evidence and hearsay. The defendant argued on appeal that there was no admissible evidence that Ms. Gumbley was hypoxemic before or during intubation. The defendant further argued that it was wrong for the trial judge to draw an adverse inference against arising from the absence of documentation as to Ms. Gumbley’s blood oxygen saturation levels during that time period.

The Court of Appeal upheld the trial judge’s finding that Dr. Vasiliou was the source of the information in Dr. Warner’s note that Ms. Gumbley required intubation because of severe respiratory acidosis and hypoxemia. Having made this finding that Dr. Vasiliou was the source of this information, Dr. Warner’s note was admissible under s. 35 of the Evidence Act and as a party admission.

The Court of Appeal agreed with the trial judge that his finding that Dr. Vasiliou was the source of this information was an inference from the circumstantial evidence available to him. Moreover, as the Court of Appeal held, even if the trial judge had arrived at this finding through an adverse inference he was entitled to do so and there would be no basis to interfere.

As the Court of Appeal explained, when faced with an evidentiary gap in the defendant’s evidence, the trial judge drew a reasonable inference that the defendant was the source of this information contained in Dr. Warner’s note and therefore admissible against her as a party admission since the defendant was acting in the ordinary course of her duties and duly qualified when providing her opinion to Dr. Warner. The Court of Appeal found no fault in the trial judge relying on Dr. Warner’s note as it contained the defendant’s expert opinion, which she was qualified to provide.

On the second issue, the Court of Appeal rejected the defendant’s assertion that the trial judge failed to connect the defendant’s specific breaches of the standard of care to Ms. Gumbley’s brain injury. The Court of Appeal emphasized that in medical negligence cases, causation is a fact-driven inquiry and as such, entitles the trial judge to a great deal of deference, particularly where the trial judge is able to consider extensive and conflicting expert testimony.  

The Court of Appeal highlighted that the trial judge made two pivotal factual findings that together, satisfied the “but for” test of Clements v. Clements, 2012 SCC 32.  

First, the finding that Ms. Gumbley’s brain injury occurred when she was hypoxemic leading up to her intubation provided one necessary evidentiary causal link between the defendant’s breaches of the standard of care and Ms. Gumbley’s injury.  

Second, the other necessary link is provided by the trial judge’s finding that if the defendant had not delayed in calling the ICU specialist, Dr. Warner, for help or intubating Ms. Gumbley as soon as possible after having made that decision, then Ms. Gumbley would not have suffered a brain injury.

The Court of Appeal described this argument as not so much an argument that the trial judge erred in applying the test for causation, but in fact as an argument that he made the wrong factual finding on the evidence. The Court of Appeal found that to the contrary, the trial judge’s finding of fact on causation were supported by the expert evidence on which he chose to rely. As noted by the Court of Appeal, the trial judge’s weighing of expert evidence and findings of fact are entitled to appellate deference, especially when they involve the assessment of a large amount of complex evidence.

Finally, the Court of Appeal rejected the defendant’s argument that the trial judge added up the breaches “cumulatively” to justify his liability findings. Rather, as the Court of Appeal noted, the trial judge identified a causal link between the specific breaches of the standard of care and Ms. Gumbley’s brain injury.

The Court of Appeal held that this appeal turned not on the law of causation but on the trial judge’s factual findings and on his findings as to credibility, reliability and the weight to be accorded to expert evidence. The defendant failed to identify any palpable and overriding errors in the trial judge’s meticulous, detailed and lengthy reasons. The appeal was dismissed with costs payable to the respondents (plaintiffs) fixed at $60,000 all-inclusive.

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