





CITATION:
Ortolan
v. Hotel-
Dieu
Grace Hospital, 2011 ONCA 456



DATE: 20110616



DOCKET: C51612



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Simmons and Armstrong JJ.A.



BETWEEN



Regina Ortolan, Valerie Ferraro and Alida Demarco



Plaintiffs (Respondents)



and



Hotel-Dieu Grace Hospital and
Estate of R.R.
          Anderson



Defendants (
Appellant
)



Ronald G. Slaght and Dena Varah, for the appellant, Estate of R.R.
          Anderson



Claudio Martini, for the respondents



Heard: June 2, 2011



On appeal from the judgment of Justice Joseph G. Quinn of the
          Superior Court of Justice dated January 8, 2010.



By The Court:



[1]

The appellant appeals from a judgment awarding
    damages to the respondents on account of medical malpractice arising from
    stomach surgery performed by Dr. Anderson on Mr. Francesco Ortolan on November
    26, 1999.

[2]

Following the November 26, 1999 surgery, a feeding
    tube inserted during the surgery became dislodged with the result that Mr.
    Ortolans abdominal cavity became infected, leading to his untimely death.

[3]

The narrow factual issue the trial judge had to
    determine was whether or not Dr. Anderson sutured the jejunum (small intestine)
    to the abdominal wall, one of three sutures required to be performed to meet
    the standard of care for insertion of a feeding tube.

[4]

Dr. Anderson died in 2002 before examinations for
    discovery were held.

Accordingly,
    the only direct evidence before the trial judge concerning what happened during
    the November 26, 1999 surgery was two operative notes prepared by Dr. Anderson
     one relating to the November 26, 1999 surgery and the other relating to a
    second surgery performed on December 2, 1999 after Mr. Ortolans condition
    deteriorated.

[5]

The initial operative note dated November 26, 1999
    makes no reference to any of the three necessary sutures required to meet the
    standard of care.

[6]

The trial judge seized upon this omission and
    also:

·

relied upon the evidence of the respondents expert
    to the effect that a statement by Dr. Anderson in a second operative report
    relating to a subsequent December 2, 1999 surgery  that the jejunum was attached did not mean
    sutured;

·

rejected the appellant's experts opinion that the
    December 2, 1999 reference to attached did mean sutured;

·

relied on the fact that neither expert witness had
    experienced a situation in which a properly secured feeding tube had become
    dislodged;

to
conclude that that
    the jejunum had not been sutured to the abdominal wall and that the standard of
    care had therefore been breached.

[7]

In our view, in analyzing the evidence in this way,
    the trial judge fell into error.
[8]            In the
    December 2, 1999 operative report, Dr. Anderson made the observation that the
    feeding tube had recoiled into the abdominal wall and that feed had leaked a
    little bit through
right where the
    jejunum was attached
(emphasis added).
[9]

Considered
    in context, the reasonable and obvious meaning of attached as it appears in
    the December 2, 1999 operative report is sutured.
[10]

In describing
    the
jejunum
as attached,
    Dr. Anderson was not describing a step taken during the December 2, 1999
    surgery. Rather, he was describing the situation he encountered when he re-opened
    the patient on that date. As was explained by the appellants expert, Dr.
    Anderson would have been able to make this observation by taking down the
    sutures he originally made.
The concessions made by the respondents
    expert, Dr. Colapinto, in cross-examination that when something is sutured it
    is attached and that at least one of the other two sutures necessary to meet
    the standard of care for inserting a feeding tube were performed, even though
    not referred to in the November 26, 1999 operative report, support this
    conclusion.
[11]

In all the circumstances, in our view, it was
    simply not open to the trial judge to prefer Dr. Colapintos opinion evidence
    over the only direct evidence at trial concerning the steps taken during the
    November 26, 1999 surgery.
[12]

The evidence of the experts who testified at trial
    concerning whether Dr. Anderson sutured the jejunum to the abdominal wall was
    neither direct evidence nor fact evidence; rather, it was opinion evidence
    premised largely on a review of the two operative reports.
[13]

Further, there was no physical evidence that
    supported the opinion of Dr. Colapinto that the word attached as it appears
    in the December 2, 1999 operative report does not mean sutured. In particular,
    there was no physical evidence to support the conclusion that Mr. Ortolans
    stomach cavity was infected with jejunum contents as well as feed.
[14]

Finally, as
    was noted by the respondents expert, the possibility that the jejunum could
    have attached naturally at the exact location on the abdominal wall where the
    feeding tube was located was remote in the extreme.
[15]

Moreover,
    contrary to the trial judges line of reasoning, the fact that the feeding tube
    became dislodged did not support the conclusion that Dr. Anderson failed to
    suture the
jejunum to the abdominal wall.
[16]

As noted above, in his December 2, 1999 operative
    report, Dr. Anderson observed that the feeding tube had recoiled into the
    abdominal wall. Although perhaps rare, there was no dispute that this is a
    known complication arising from insertion of a feeding tube. The fact that this
    complication occurred could not assist in determining whether Dr. Anderson
    sutured the jejunum to the abdominal wall.
[17]

Considered
    in context, in our opinion, it is unreasonable to conclude that attached as
    it appears in the December 2, 1999 operative report means anything other than sutured.
This is
    particularly so when the respondents expert, Dr.
Colapinto
,
    conceded in cross-examination that sutured and attached mean the same
    thing.
[18]

In his December 2, 1999 operative report, Dr.
    Anderson described exactly what happened in clear terms:
I realized then that [the feeding tube] had
    recoiled and gone right into the abdominal wall .
and
there was a collection the size of my fist in the abdominal wall that had
    leaked a little bit through right where the jejunum was attached
This is disappointing because the #8 feeding tube
    was sutured with
an
0
Ethibond
which is almost as big as the tube and yet even this would not hold it.
[19]

In lay
    terms, what Dr. Anderson was saying was that the outer suture attaching the
    feeding tube to the skin came undone with the result that the feeding tube slid
    into the abdominal wall and some of the feed, which was being pumped through
    the abdominal wall under pressure, leaked out where the jejunum was attached to
    the abdomen. This was an unfortunate and tragic accident that resulted in the
    untimely death of Mr.
Ortolan
, but it was not caused
    by any negligence on the part of Dr. Anderson.
[20]

In the result,
    we allow the appeal, set aside the trial judges order and substitute an order
    dismissing the action.
[21]

Costs of
    the appeal are to the appellant in the amount of $15,000 inclusive of
    disbursements and all applicable taxes as agreed upon by the parties.

Signed:           Winkler C.J.O.
Janet Simmons J.A.
Robert P. Armstrong J.A.
RELEASED: WW June 16, 2011