The Ontario Court of Appeal recently dismissed an appeal of two physicians following a medical malpractice trial. The Court of Appeal considered and upheld the trial judge’s findings that the Defendant physicians breached the standard of care, and that their breach caused the Plaintiff’s injuries. Importantly, the ONCA upheld the trial judge’s decision of joint liability where the physician “supported” the negligent decision of the main doctor.
Brief Facts: The Plaintiff, Ms. Stevenhaagen, suffered from a congenital heart condition. In 2002, she attended the Toronto General Hospital to undergo an angioplasty. The angioplasty was performed by interventional cardiologist, Dr. Peter McLaughlin, and vascular surgeon, Dr. Yaron Sternbach.
During the angioplasty, the Plaintiff suffered an aortic rupture, causing her to bleed out. Dr. McLaughlin addressed the rupture with an endovascular repair by placing a Cook stent in the aorta. Dr. Sternbach supported his decision. Following the endovascular repair, the Plaintiff was no longer bleeding out, however, she was left in a hemodynamically unstable condition and was at increased risk of adverse outcomes.
Instead of consulting with a cardiovascular surgeon and sending Ms. Stevenhaagen to the operating room for immediate aortic repair surgery, Dr. McLaughlin sent the Plaintiff to the catheterization laboratory (“Cath lab”). Dr. Sternbach also supported this decision.
Hours later, when a cardiovascular surgeon was eventually consulted, Ms. Stevenhaagen was immediately sent for an aortic repair. Though she survived, she was left with significant injuries, including paraplegia, paralysis of the left vocal cord, brain ischemia, left arm pain syndrome, and bladder and bowel dysfunction. She spent the last decade of her life “as an invalid”.
The Trial Decision
In a judge alone trial, the trial judge concluded that the Appellants had a duty to consult with a cardiovascular surgeon as soon as Ms. Stevenhaagen suffered the aortic rupture. However, the decision to perform an endovascular approach to the emergency, inserting the Cook stent, did not fall below the standard of care. It was an appropriate response in the circumstances. Had the Appellants consulted a cardiovascular surgeon right away, they may still have decided to perform the endovascular procedure when they did.
The duty to consult a cardiovascular surgeon persisted after the emergency response to the aortic rupture. Had the Appellants consulted a cardiovascular surgeon once the Cook stent was in place, Ms. Stevenhaagen would have immediately been taken to the operating room for surgery. Dr. McLaughlin, supported by Dr. Sternbach, decided to send Ms. Stevenhaagen to the Cath lab instead. She was left in an unstable hemodynamic state that left her at increased risk of stroke and other complications for hours.
In determining whether the Appellants’ decision to send the Plaintiff to the Cath lab instead of obtaining a cardiovascular consultation, the trial judge considered whether the Plaintiff’s injuries occurred during the period of hemodynamic instability, after 12:35 p.m. until the cardiopulmonary by-pass began at 3:24 p.m.
The trial judge concluded that the Plaintiff’s neurological injuries occurred more likely than not during the period of haemodynamic instability which she experienced in the time after the Cook stent had been placed in the Cath lab, and the start of surgery in the operating room. In addition, or alternatively, her injuries occurred during or following the cardiac surgery because of her compromised state, resulting from her poor haemodynamic status going into that surgery due to the delay in moving her to the surgery following completion of the procedure in the Cath Lab.
The question of damages had been settled as between the parties.
The Appeal
The Defendants appealed the trial decision on three grounds. The Court of Appeal considered the following issues:
- Did the trial judge err in concluding that the Defendants did not meet the standard of care by failing to obtain immediate cardio surgery consult after the endovascular repair?
- Did the trial judge err by misapplying the “robust and pragmatic” approach to causation and transforming a number of possibilities into a finding of probability?
- Did the Trial Judge err in finding that Dr. Sternbach was liable for having merely “supported” the decision of Dr. McLaughlin to not arrange for arrange for a cardiovascular surgery consultation?
The Appeal was dismissed.
(1) The trial judge’s conclusion that the defendants breached the standard of care was supported by the evidence.
The Court of Appeal agreed that the trial judge gave careful and considered reasons on the standard of care being breached in the circumstances. The trial judge’s conclusions rested on ample evidence and there was no error.
An important contextual feature of the trial judge’s reasons was what he referred to as “antiquity.” There was a different standard of care in 2002 than when the trial took place in 2020. When Ms. Stevenhaagen was treated by the Appellants in 2002, the “gold standard” in these circumstances was open-heart surgery. The trial judge was fair in his approach on the failure to consult considering the standard of care expected in 2002.
(2) The trial judge correctly applied the “robust and pragmatic” approach to causation.
The Appellants submitted that the trial judge failed to make findings about when Ms. Stevenhaagen’s injuries occurred. As noted above, the decision to perform the endovascular repair instead of immediately consulting a cardiothoracic surgeon was not a breach of the standard of care. The causation question then became whether Ms. Stevenhaagen’s injuries occurred after the endovascular repair. If she sustained her injuries before or during the repair, then her injuries would not have been caused by the Appellants’ negligence.
The Appellants submitted that the trial judge erred in finding that causation had been established in the circumstances. They submitted that the trial judge erred in the application of the robust common-sense approach to causation by transforming mere possibilities into proof on a balance of probabilities. They further contended that the trial judge was unduly focused on medical causation to the neglect of the factual cause of Ms. Stevenhaagen’s injuries.
The Court of Appeal rejected these submissions. There was sufficient evidence to establish on a balance of probabilities that Ms. Stevenhaagen’s injuries occurred during the period of hemodynamic instability caused by the Appellant’s delay in referring Ms. Stevenhaagen to a cardiovascular surgeon. The trial judge did not conflate probabilities and possibilities.
(a) The trial judge did not transform the standard of proof from probabilities to possibilities.
The trial judge properly identified the test for causation established in Clements v. Clements, 2012 SCC 32: “The but-for causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.”
For causation purposes, the important time was 12:35 p.m. (when the Cook stent was properly in place), or 1:05 p.m. at the latest (when the entire procedure was noted as being complete). In order for the defendants to be found liable, the plaintiffs were required to prove that Ms. Stevenhaagen’s injuries happened after these time markers.
The trial judge addressed his mind to this very issue. He referred to the “possibility” of injury at an earlier time, but he rejected that conclusion and applied the proper standard of proof. He wrote:
As both of the neurologists and some of the other witnesses acknowledged, there is a possibility that neurological damage resulted from what happened in the first two hours following the discovery of the rupture. But as I perceive the evidence, it is more likely than not that the haemodynamic instability which Julia Stevenhaagen experienced from the final deployment of the Cook stent on 18 October 2002 until 15:24, when cardiopulmonary by-pass began, caused or substantially contributed to the neurological injuries that she subsequently suffered.
(b) The trial judge properly applied the but-for test.
The Appellants submitted that the trial judge improperly focused on medical causation instead of factual causation and relied on the decision in Sacks v Ross, 2017 ONCA 773:
Regardless of whether the defendant’s breach of the standard of care is an act or an omission, the trier of fact’s cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.
There are two possible outcomes to the trier of fact’s imaginative reconstruction of reality at the second step. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. On the other hand, if the trier of fact infers from the evidence that the plaintiff would not likely have been injured without the defendant’s act or failure to act, then the but-for test for causation is satisfied: but for the defendant’s act or omission, the plaintiff would not have been injured. The defendant’s fault, which justifies liability, has been established. (paras 47-48)
The Court of Appeal was satisfied that though the trial judge did not specifically identify this framework, it was clear from his analysis that he engaged this framework. His analysis firmly focused on what happened to Ms. Stevenhaagen after the deployment of the Cook stent. Any injury that occurred before this event would not have been caused by any negligence act of the Appellants.
The evidence allowed the trial judge to conclude on a balance of probabilities that Ms. Stevenhaagen’s injuries could have been prevented had the doctors consulted with a cardiovascular surgeon promptly after the Cook stent was in place.
(3) Dr. Sternbach was liable for supporting Dr. McLaughlin’s decision to send Ms. Stevenhaagen to the Cath lab instead of obtaining a cardiovascular surgeon consultation.
Dr. Sternbach submitted that the trial judge erred in finding him liable for having merely “supported” the decision to not arrange for a consultation with a cardiovascular surgeon. He argued that there was insufficient evidence to find him liable for a decision that was Dr. McLaughlin’s to make, especially in the absence of expert evidence of Dr. Sternbach’s role.
The Court of Appeal was not impressed with this line of reasoning as the Appellants’ reasoning before the trial judge was that they did not need a cardiovascular consult because Dr. Sternbach was already there.
The Court of Appeal wrote:
The trial judge’s finding that Dr. McLaughlin was “the most responsible physician” (see paras. 182, 197) is not inconsistent with his finding at para. 215, that: “Both of them concluded that she should be sent to the CCU.” It was both possible for the trial judge to find Dr. McLaughlin in charge of the situation while also determining that Dr. Sternbach was sufficiently involved in the negligent treatment of Ms. Stevenhaagen to warrant a finding of liability.
This finding was available on the basis of Dr. Sternbach’s evidence. As he explained in cross-examination, although Dr. McLaughlin had ultimate authority in the situation, “we don’t practice medicine by usurping each other’s authorities. We interact directly. We converse. We look for consensus”.
The two physicians consulted with each other to make this decision. Dr. Sternbach played a critical role in Dr. McLaughlin’s decision to not seek a cardiovascular consultation for their hemodynamically unstable patient. It was open to the trial judge to find Dr. Sternbach sufficiently involved in the impugned decision-making to warrant a finding of liability.
Result: The appeal was dismissed and the Appellants were Ordered to pay the Respondents their costs and disbursements for the appeal.
