INTRODUCTION
On July 25, 2024, the Ontario Court of Appeal released the decision of Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586. This decision provides clear guidance on the proper approach to causation when the defendant’s negligence creates an evidentiary gap.
FACTS
The respondent, Syed Hasan, suffered from a stroke at the age of 40. He initially went to the emergency department in Milton, complaining of dizziness, nausea and vomiting. The emergency department physician diagnosed Mr. Hasan with “probable peripheral vertigo” and discharged him home. Unfortunately, Mr. Hasan’s illness persisted and he went to his family doctor later that same day. His family doctor, in turn, handed Mr. Hasan a note that read “rule out organic cause (brain lesion or stroke)” and advised him to go to the Trillium Health Centre (Mississauga) emergency department with the note.
As instructed, Mr. Hasan went to Trillium Health Centre (Mississauga) later that afternoon and was assessed by the appellant, Dr. Campbell. Dr. Campbell documented Mr. Hasan’s attendance at the Milton emergency department earlier that day, but his chart did fail to mention the family doctor’s note. Dr. Campbell ordered a CT, diagnosed Mr. Hasan with “Dizzy – Bell’s Palsy – Peripheral Vertigo” and sent him home. He did not consult a neurologist or order a CT angiogram.
Unfortunately, Mr. Hasan’s symptoms worsened overnight so he returned to Trillium Health Centre (Mississauga) the next morning, only to be assessed by Dr. Campbell again. A CT was ordered and Dr. Campbell consulted with a neurologist. However, Mr. Hasan deteriorated further, and he was intubated and admitted into Trillium.
Mr. Hasan was diagnosed with an acute infarct in his proximal basilar artery which caused significant brain damage. He requires assistance with almost all activities of daily living.
TRIAL DECISION
At trial, it was found that Dr. Campbell breached the standard of care and, “but for” his breach of the standard of care, Mr. Hasan would have been assessed by a neurologist, would have received a timely CT angiogram and he would have received treatment in a timely manner. The trial judge held that treatment would have been successful and Mr. Hasan would have recovered from the incident.
GROUNDS FOR APPEAL
Dr. Campbell’s appeal was a limited one. Dr. Campbell accepted the finding that he breached the standard of care and that “but for” the breach of the standard of care, treatment could have been started. However, he disputed the finding that the breach of the standard of care caused Mr. Hasan’s damages. Put another way, Dr. Campbell disagreed with the trial judge’s finding that timely treatment would have been successful because Mr. Hasan failed to lead evidence to enable critical findings regarding what would have happened if Dr. Campbell had not breached the standard of care. Specifically, he failed to prove the specific treatment that would have been provided and how that treatment would have changed his outcome.
LEGAL PRINCIPLES AND ANALYSIS
Justice Lauwers, writing for the court, began the analysis by outlining the elements of a medical negligence claim that a plaintiff must prove on the balance of probabilities:
(a) the defendant owed a duty of care to the plaintiff;
(b) the defendant breached the standard of care;
(c) the defendant’s breach caused the plaintiff to suffer bodily injury; and,
(d) the injury must not be too remote a result of the defendant’s conduct:
Willick v. Willard, 2023 ONCA 792, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] at para. 3.
As discussed previously, Dr. Campbell’s appeal was limited to the third element of the test – that is, did the breach of the standard of care cause the plaintiff’s injuries?
As noted by Justice Lauwers, the test for causation in negligence cases comes from Clements v. Clements – the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.[1] In assessing causation, a trial judge must take a robust and pragmatic approach” and “[s]cientific proof of causation is not required”[2]. Justice Lauwers then turned to Sacks v. Ross for guidance on the application of the “but for” test to an omission, identifying the two-step test for factual causation:[3]
- Determine what likely happened in actuality; and,
- What likely would have happened had the defendant not breached the standard of care.
- What likely happened
The trial judge found that Mr. Hasan suffered an embolic stroke, and she rejected the defence theory that this stroke was caused by perforator ischemia, caused by a dissection. The trial judge accepted the theory of Mr. Hasan because she preferred the opinions of his experts. She found them to be objective and comprehensive, they used a blind review methodology, they engaged with the competing causation theory, and they better understood the progression of Mr. Hasan’s symptoms.
The defence experts also attempted to rely on an evidentiary gap created by insufficient imaging to show the progression of Mr. Hasan’s stroke. The trial judge quashed this argument, noting that the evidentiary gap was caused by a negligent lack of imaging, and, as per Ghiassi and Goodwin, Dr. Campbell could not rely on his own negligence to support his defence.[4] The trial judge noted that in these circumstances, the court can infer causation, and the onus shifts to the defendant to rebut the inference.
Justice Lauwers rejected Dr. Campbell’s argument that the trial judge effectively created a presumption of causation in favour of Mr. Hasan. This was not a relaxation of the burden of proof on the plaintiffs and was an appropriate application of Ghiassi and Goodwin.
- What likely would have happened had the defendant not breached the standard of care?
At the second step of the analysis, the trial judge found that if Dr. Campbell met the standard of care, the respondent would have been assessed by a neurologist, received a timely CT angiogram, and received appropriate treatment (recanalization using either tPA or endovascular treatment). The trial judge also found that had Mr. Hasan been properly treated, recanalization would have been successful and he would have had a good outcome. This conclusion was supported by the imaging and clinical presentation, the respondent’s atypical vasculature that ensured good blood flow, and the medical literature on recanalization.
CONCLUSION
Justice Lauwers concluded that the trial judge’s findings were factual in nature and they were a reflection of a robust and pragmatic approach to causation. Her analysis was couched in the test from Sacks v. Ross and she correctly applied the principles from Ghiassi and Goodwin. The appeal was dismissed, and Dr. Campbell was ordered to pay costs totaling $60,000.
[1] Clements v. Clements, 2012 SCC 32 (“Clements”) at para 8.
[2] Clements at para 42.
[3] Sacks v. Ross, 2017 ONCA 773 at paras 46–48.
[4] Ghiassi v. Singh, 2018 ONCA 764 and para 29, Goodwin v Olupona, 2013 ONCA 259 at paras 72–74.
