



COURT OF APPEAL FOR ONTARIO

CITATION: Wilson v. Beck, 2013
    ONCA 316

DATE: 20130510

DOCKET: C54124

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Patricia Wilson, personally and as Estate Trustee
    for the Estate of Kenneth Wilson, Sarah Wilson by her litigation guardian,
    Patricia Wilson, Jordan Wilson by his litigation guardian, Patricia Wilson,
    Makayla Wilson, by her litigation guardian, Patricia Wilson, Dorothy Wilson,
    Ken Wilson, and George Wilson

Plaintiffs (Respondents)

and

Dr. Ian Vincent Beck, Dr.
    Douglas Gordon D. Cram, Dr. Katherine Maria Walewski Habdank-Kossowski
,
    St. Josephs Health Care Centre and Thames EMS Inc.

Defendants (
Appellants
)

Andrea Plumb and Dara Lambe, for the appellants

Paul Bates, David B. Williams and Mana Khami, for the
    respondents

Heard: January 15, 2013

On appeal from the judgment of Justice Johanne N.
    Morissette of the Superior Court of Justice, dated July 8, 2011, with reasons
    reported at 2011 ONSC 1789.

MacPherson J.A.
:

A.

INTRODUCTION

[1]

The appellants Dr. Ian Beck, Dr. Gordon Cram and Dr. Katherine Habdank-Kossowski
    (Dr. Habdank) appeal from the judgment of Morissette J. of the Superior Court
    of Justice dated July 8, 2011, holding them liable to the
    plaintiffs/respondents for their diagnosis and treatment of the deceased,
    Kenneth Wilson.  Mr. Wilson died as a result of complications of infective
    endocarditis (IE) caused by  staphylococcous aureus bacteria (staph aureus).

[2]

Dr. Beck and Dr. Habdank were found liable in negligence.  The trial
    judge found that Dr. Cram was not negligent, but held him vicariously liable
    for the negligence of Dr. Habdank.

[3]

The appeal raises issues of vicarious liability, standard of care, and
    causation.

B.

FACTS

(1)

The parties and events

[4]

On December 22, 2003, 34-year-old Kenneth Wilson visited his family
    physician, Dr. Ian Beck, for bacterial conjunctivitis (pink eye).  Dr. Beck
    prescribed topical antibiotics for five days.

[5]

On December 26, Mr. Wilson began feeling unwell.  By December 27, he had
    a temperature of 38°C.  He began to suffer from fever, chills, headache,
    diarrhea, lack of appetite, dizziness and fainting spells.  He said his stomach
    burned when he ate or drank.

[6]

Mr. Wilsons wife, Tricia, a registered nurse, administered Tylenol
    every four hours for his fever and encouraged him to increase his fluid
    intake.  Not seeing any improvement, Mrs. Wilson called Dr. Becks office on
    December 29 and booked the first available appointment for that evening.

[7]

Dr. Beck diagnosed Mr. Wilson with viral gastroenteritis (commonly known
    as the stomach flu).  He considered a bacterial infection, but ruled it out. 
    He recommended rehydration and told Mrs. Wilson that the flu takes a long time
    to resolve.

[8]

From December 29 to 30, Mr. Wilson hydrated and took Tylenol.  He felt some
    improvement.  However, in the early morning hours of December 31, he was
    startled awake by the family cat and felt a sharp shoulder pain.  Concerned
    that he had dislocated his shoulder, Mr. Wilson asked his brother George to
    drive him to the emergency department of St. Josephs Hospital in London that
    morning.  Mrs. Wilson accompanied them.  She filled out a SARS form for her husband. 
    She checked the Yes box for these two questions: Is the patient feeling
    feverish, had shakes or chills in the last 24 hours? and Is the temperature
    above 38°C?

[9]

Mrs. Wilson advised the triage nurse about Mr. Wilsons previous
    symptoms and treatment.  The triage nurse did not record these symptoms and
    there was no evidence at trial that she spoke to anyone else about what Mrs.
    Wilson told her.  She did not take Mr. Wilsons vital signs.

[10]

Dr.
    Habdank, a first year resident in internal medicine who was completing a
    rotation in emergency medicine, assessed Mr. Wilson. Dr. Habdank took a general
    history, recording that except for the complaint about his shoulder, Mr. Wilson
    was otherwise healthy.  Relying on x-rays, she diagnosed a soft tissue injury
    to the shoulder, ordered the administration of pain medication, and discharged
    Mr. Wilson once improvement was noted, with instructions to return if his
    symptoms worsened.  This diagnosis and plan were reviewed with, and approved
    by, Dr. Cram, the supervising emergency physician working in the emergency room
    that day.  Dr. Cram did not see Mr. Wilson.

[11]

After
    midnight on January 1, 2004, Mrs. Wilson found Mr. Wilson in the bathroom
    unable to catch his breath.  She called 911.  Upon the arrival of the paramedics,
    Mrs. Wilson informed them of Mr. Wilsons condition and recent history.  They
    assured her that Mr. Wilsons shortness of breath was due to his fever.  One of
    the paramedics had left her glasses in the ambulance and so did not take Mr.
    Wilsons pulse or blood pressure.  The paramedics counselled Mrs. Wilson not to
    go to the hospital because the emergency department was full of New Years Eve
    partiers.  Thames EMS Inc. admitted that the paramedics breached the standard
    of care expected of them.

[12]

From
    January 2 to 4, 2004, Mr. Wilson was generally very weak, requiring help to
    stand and go to the bathroom.  However, his fever was lower and his appetite
    returned a little.  Nevertheless, on January 5, Mr. Wilson became disoriented
    and unable to swallow his mucus.  Mrs. Wilson called Dr. Becks office and
    booked an appointment for later the same day.  When George arrived to take his
    brother to Dr. Becks office, Mr. Wilson did not recognize him.  Mrs. Wilson
    called 911.  When the paramedics arrived, they lectured Mrs. Wilson for not
    seeking medical attention sooner.

[13]

Mr.
    Wilson was taken to St. Josephs Hospital and was transferred to the ICU that
    night.  On January 6, an echocardiogram was ordered and the treating physician
    diagnosed Mr. Wilson with IE, a bacterial infection of the inner lining of the
    heart.  He was transferred to London Health Sciences Centre on January 7, where
    the physicians determined that he was not a candidate for surgery because the
    infection was out of control and the antibiotics were not working.  By January
    8, Mr. Wilson had minimal brain functionality.  Sadly, he passed away on
    January 9, 2004.

[14]

There
    are other facts relevant to the disposition of this appeal.  They are better
    dealt with in the context of the legal issues to which they relate.

(2)

The trial judgment

[15]

Two
    of the defendants entered into a Perringer Agreement with the plaintiffs, which
    resulted in the dismissal of the action against Thames EMS Inc. and St.
    Josephs Health Care Centre.  The trial proceeded against the non-settling
    doctors.

[16]

The
    trial judge stated that Dr. Beck was to be held to the standard of care of a
    prudent family doctor, Dr. Habdank to the standard of a prudent resident, and Dr.
    Cram to the standard of a prudent emergency physician.

[17]

The
    trial judge found that Dr. Beck breached his standard of care by not
    recommending a follow-up visit if Mr. Wilsons fever persisted and by providing
    a treatment plan that created a risk.
[1]

[18]

The
    trial judge found that Dr. Habdank breached her standard of care by failing to
    consider, or being wilfully blind to, all the clinical history provided by Mr.
    and Mrs. Wilson, including the history of a febrile illness (fever), shakes and
    chills documented in the SARS form.

[19]

The
    trial judge found Dr. Cram vicariously liable, as supervisor, for Dr. Habdanks
    negligence.

[20]

On
    the causation issue, the trial judge found that an echocardiogram is the only
    way to diagnose IE.  In order for an echocardiogram to be ordered at any stage
    of Mr. Wilsons illness, he would have to have presented with both a fever,
    which was obvious throughout, and, crucially, a heart murmur.  All the experts
    agreed that in the absence of either a fever or an audible heart murmur, the
    investigations necessary to diagnose IE would not have been undertaken.  As
    expressed by the trial judge:

In order for the plaintiffs to succeed, they must establish
    that in addition to Kens fever, there was a discernable heart murmur on or
    shortly after December 29
th
, December 31
st
or January 1
st
. 
    That is the only way that the next step of ordering investigative tests would
    have led to a diagnosis of infective endocarditis.

[21]

After
    reviewing the evidence, including expert evidence and the medical literature,
    the trial judge found on the balance of probabilities (just over 50%), that on
    December 31
st
, a murmur would likely have been heard. A multitude
    of tests, including listening to his heart would have been ordered.  This
    treatment plan would have resulted in a completely different course of action
    and Ken would likely be alive today.

[22]

The
    trial judge awarded total damages of $557,289.  She apportioned liability for
    these damages as follows: St. Josephs Health Care Centre  20%; Thames EMS
    Inc.  20%; Dr. Beck  25%; and Dr. Habdank and Dr. Cram  35%.  The trial
    judge found no contributory negligence on the part of Mr. or Mrs. Wilson.

[23]

The
    appellants appeal the vicarious liability finding against Dr. Cram, the
    liability finding against Dr. Habdank, and the causation conclusion.

C.

ISSUES

[24]

The
    appellants raise three issues:

(1)

Did the trial judge err in law in
    finding Dr. Cram vicariously liable for the actions and omissions of Dr.
    Habdank?

(2)

Did the trial judge err in fact
    and law in finding a breach of the standard of care by Dr. Habdank?

(3)

Did the trial judge err in finding
    that the negligent conduct of the defendants caused Mr. Wilsons death?

D.

ANALYSIS

(1)
Vicarious
    liability  Dr. Cram

[25]

The
    trial judges analysis and conclusion on this issue are contained in a single
    sentence: Dr. Cram is only vicariously liable if Dr. Habdank is found to be
    liable.

[26]

The
    appellants contend that there was no basis for the trial judge to have held Dr.
    Cram vicariously liable for the actions of Dr. Habdank. The plaintiffs did not
    plead that Dr. Cram was vicariously liable.  Rather, the claims pleaded against
    Dr. Cram were in negligence.  As well, Dr. Crams vicarious liability was not argued
    at trial.

[27]

The
    respondents acknowledge that the possible vicarious liability of Dr. Cram was
    not an issue at trial.  They do not contend that this finding by the trial
    judge should be upheld.  This is a fair concession.  The case law is clear.  It
    is fundamental to the litigation process that lawsuits be decided within the
    boundaries of the pleadings. A finding of liability and resulting damages on a
    basis not pleaded in a Statement of Claim cannot stand, as it deprives the
    defendant of the opportunity to address that issue in the evidence at trial:
    see
Rodaro v. Royal Bank of Canada
(2002), 59 O.R. (3d) 74 (C.A.), at
    paras. 58-63.

[28]

The
    respondents assert that their claim against Dr. Cram at trial was one of direct
    liability, namely, that Dr. Cram, as the supervising physician in the Emergency
    Department, was ultimately responsible for Mr. Wilsons care.  Accordingly, if
    Dr. Habdank were negligent, so must have been Dr. Cram.

[29]

In
    my view, this is still the concept and language of vicarious liability. 
    Indeed, in their factum, after discussing the evidence relating to what they
    want to call Dr. Crams direct liability, the respondents commence their
    legal analysis by formulating the issue in this fashion:

Thus, the issue relating to Dr. Cram is this: as the attending
    physician, did he have responsibility for Dr. Habdanks failure? This issue may
    be re-formulated in the language of vicarious liability as discussed in Ontario
    medical malpractice jurisprudence.

[30]

In
    other words, the respondents attempt to keep alive the possibility of a
    finding of direct liability against Dr. Cram collapses quickly and entirely
    into the concept of vicarious liability which, they concede, was neither
    pleaded nor argued at trial.

[31]

For
    these reasons, I would allow the appeal on this ground.

(2)
Liability
     Dr. Habdank

[32]

When
    Mr. Wilson arrived at the Emergency Department on December 31, 2003, Mrs.
    Wilson completed a SARS form.  As noted earlier, she checked the Yes box for
    these two questions: Is the patient feeling feverish, had shakes or chills in
    the last 24 hours? and Is the temperature above 38°C?

[33]

The
    trial judge found as a fact that the SARS form was on Mr. Wilsons chart when
    he was assessed by Dr. Habdank.  She also found as a fact that Dr. Habdank
    would have looked at it, but only for reasons of personal safety, not as a
    clinical document relating to Mr. Wilson.  The trial judge found that this
    breached the standard of care:

That, in my opinion, is to deprive her of [an] important piece
    of clinical history associated with Kens attendance on December 31
st
,
    2003.  All experts agree that one cannot ignore historical information no
    matter how it is obtained and for what purpose.

[34]

The
    appellants contend that the trial judge erred in finding that the SARS form was
    present on the chart at the time of Dr. Habdanks assessment.  They say there
    was no evidence to support this conclusion.

[35]

I
    do not accept this submission. In her testimony, Dr. Habdank accepted that the
    SARS form could have been on Mr. Wilsons chart when she assessed him.  She
    could not recall his attendance at the hospital.  She had seen SARS forms on
    patients charts before.  Dr. Cram testified that he did not recall seeing the
    SARS form on Mr. Wilsons chart but the practice of the hospital was to keep
    all documents relating to a patient together.  It was his sense that all
    records were kept together in the Emergency Room.  Finally, the hospital
    produced its records relating to Mr. Wilson as a package, including the SARS
    form.

[36]

Taken
    together, these factors strongly support the trial judges finding on this
    issue; in any event, the finding is far removed from being a palpable and
    overriding error.

[37]

The
    appellants contend that the trial judge erred in finding that Dr. Habdank fell
    below the standard of care in failing to review the SARS form to glean any
    potential clinical information that may be contained therein.

[38]

I
    disagree.  According to the trial judge, [a]ll experts agree that one cannot
    ignore historical information no matter how it is obtained and for what
    purpose.  Dr. Habdank, Dr. Cram and Dr. Thompson all agreed that information of
    a febrile illness would have changed their entire assessment of Ken. The
    record amply supports the trial judges conclusion that Dr. Habdank failed to
    meet the standard of care.

(3)

Causation

[39]

The
    appellants contend that the trial judge erred in several respects in her
    causation analysis.

[40]

The
    trial judge engaged in an extensive discussion of the causation issue (63
    paragraphs).  A fair summary of her causation analysis would be that it is
    based on three critical findings.

[41]

First,
    the trial judge concluded that in order to establish causation, the plaintiffs
    needed to show that Mr. Wilson had both a fever and a heart murmur on or
    shortly after December 29
th
, December 31
st
or January 1
st
. 
    Only by first establishing both of those symptoms could the plaintiffs show
    that but for the defendants negligence in not listening to Mr. Wilsons heart
    sounds, they would have heard the heart murmur, ordered the appropriate tests,
    and diagnosed IE earlier.

[42]

Second,
    the trial judge agreed with the plaintiffs that Mr. Wilson never had any other
    illness besides a bacterial infection caused by staph aureus.  She disagreed
    with the defendants theory that Mr. Wilson had a viral infection upon which a
    bacterial infection was superimposed.  She thus implicitly answered her
    question of whether Mr. Wilson had IE on December 31 affirmatively, finding he
    had had IE from December 27.

[43]

Third,
    the trial judge determined that since Mr. Wilson had IE on December 27, he,
    more likely than not, had a heart murmur when he was at the Emergency
    Department on December 31.  She therefore found that but for the negligence of
    the defendants, Mr. Wilson would have been diagnosed with IE earlier than he
    was.

[44]

The
    appellants challenge two of these findings.  As causation is a factual inquiry,
    the appellants must establish that the challenged findings amount to palpable
    and overriding errors in order to succeed: see
Housen v. Nikolaisen
, 2002
    SCC 33, [2002] 2 S.C.R. 235, at paras. 10, 19;
Ediger v. Johnston
,
    2013 SCC 18, at para. 29.

[45]

The
    law of causation in medical malpractice cases has been the subject of many
    major decisions by the Supreme Court of Canada and this court: see, for
    example,
Snell v. Farrell
, [1990] 2 S.C.R. 311;
Athey v. Leonati
,
    [1996] 3 S.C.R. 458;
Cottrelle v. Gerrard
(2003), 67 O.R. (3d) 737
    (C.A.);
Aristorenas v. Comcare Health Services
(2006), 83 O.R. (3d)
    282 (C.A.);
Clements v. Clements
, 2012 SCC 32; [2012] 2 S.C.R. 181;
Goodman
    v. Viljoen
, 2012 ONCA 896, 299 O.A.C. 257; and
Ediger
.  A fair
    reading of these decisions easily establishes that this is a complex and
    difficult area of law for appellate judges.  It should not be forgotten that
    this is also true for trial judges.

[46]

The
    Supreme Court of Canada has again recently confirmed that the standard test for
    proving causation in a negligence case is the but for test  a plaintiff must
    show on a balance of probabilities that, but for the defendants negligent act,
    the injury would not have occurred: see
Ediger
;
at para. 28,
Clements
, at
    para. 8.  In applying this test, courts may take a robust and pragmatic
    approach to the facts: see
Snell
, at pp. 328-30. Finally, by way of
    setting the jurisprudential context for this appeal, Sharpe J.A. set out the
    proper analytical framework for medical negligence cases involving an alleged
    delay in diagnosis in
Cottrelle
, at para. 25:

I agree with the appellants submission that in an action for
    delayed medical diagnosis and treatment, a plaintiff must prove on a balance of
    probabilities that the delay caused or contributed to the unfavourable
    outcome.  In other words, if, on a balance of probabilities, the plaintiff
    fails to prove that the unfavourable outcome would have been avoided with prompt
    diagnosis and treatment, then the plaintiffs claim must fail. It is not
    sufficient to prove that adequate diagnosis and treatment would have afforded a
    chance of avoiding the unfavourable outcome unless that chance surpasses the
    threshold of more likely than not.

[47]

Against
    the backdrop of this brief description of the trial judges reasoning on the
    causation issue and this summary of the relevant legal principles, I turn to
    the appellants submissions on this issue.

[48]

The
    appellants do not challenge the trial judges first finding. They agree that in
    order to establish causation, the plaintiffs had to establish that Mr. Wilson
    had both a fever and a heart murmur, especially on December 31, 2003, when he
    attended the Emergency Department at St. Josephs Hospital.

[49]

The
    appellants challenge the trial judges second and third findings. They submit
    that she erred by finding both that Mr. Wilson had IE on December 27 and that
    he had a heart murmur on December 31.

[50]

The
    trial judges ultimate conclusion on causation is summarized in three
    paragraphs in her reasons:

If on day one of the infection, only 40% of patients have an
    audible murmur, and on day ten of the infection, it is more likely than not that
    85% of patients have an audible murmur (due to the progression of the
    vegetation), then a reasonable inference can be made that on day five, or
    December 31
st
, 2003, the halfway point, there would have been more
    likely than not an audible murmur, had his heart been listened to.

This inference is especially reasonable if between 20 to 40%
    die within a two-week period, it is safe to conclude that on a balance of
    probability, from December 27
th
, 2003 to January 5
th
,
    2004 (10 days), it is more likely than not that a heart murmur would have been
    heard by no later than December 31
st
(the half-way point).

So as the disease progressed, I find that on a balance of
    probabilities (just over 50%), that on December 31
st
, a murmur would
    likely have been heard.

[51]

The
    appellants submit that there was no evidence to support a finding that Mr.
    Wilson had IE by December 27, no evidence to support a finding that a heart
    murmur was likely present on December 31, and no evidence to support the trial
    judges mathematical analysis in the above passage.

[52]

I
    will deal with each proposition in turn.

[53]

In
    my view, there was evidence to support the trial judges finding that Mr.
    Wilson had IE by December 27, 2003.  Dr. John Jordan, a doctor called by the
    defence and qualified to give expert testimony on family medicine, testified in
    cross-examination that Mr. Wilsons presentment was compatible with a bacterial
    infection from the start.

[54]

Dr.
    Harry Rakowski, a cardiologist since 1976, testified as an expert witness for
    the plaintiffs.  His opinion was that Mr. Wilson had a bacterial infection, endocarditis,
    throughout his illness.  In his examination-in-chief, he said:

Q.      And can you tell us in relation to the Emergency Room
    standard of care of the physicians at that time what your analysis was?

A.      My analysis was that the standard of care was not met
    by either Dr. Habdank or Dr. Cram.

Q.      All right, and can you tell us what you took into
    account in arriving at that, in terms of Mr. Wilsons, what was relevant to his
    presentment and what they did and didnt do?

A.      So, I looked at a patient who went from being sick,
    visiting the family doctor, going to the Emergency Department, and then dying
in
    a 14 day course
, and that throughout that course there was really never
    any evidence that he was anything but sick. So, its not as though for a very
    short of time he was  its likely that he was healthy.  Heres someone who you
    know ends up having staph aureus endocarditis.  We know that
that organism
    typically is associated with you having bacteria in the bloodstream throughout
    the course of when  when you start to get sick to the end
, especially
    without antibiotic therapy.
And so, I have to believe that he was sick
    throughout, and not only sick, but quite sick.... He came in with concerns of
    an infection that initially were called viral, but in point of fact, you have
    to consider that he had
endocarditis
throughout the whole course
and he then comes to the Emergency Department.          [Emphasis and
    underlining added.]

[55]

In
    my view, there was also evidence to support the trial judges finding that Mr.
    Wilson probably had a heart murmur on December 31, 2003.  The trial judge
    clearly obtained the 40% and 85% figures she cited in the first paragraph set
    out above from Douglas P. Zipes,
Braunwalds Heart Disease: A Textbook of
    Cardiovascular Medicine
(Philadelphia: Elsevier Saunders, 2005), which was
    Exhibit 20 at trial.  The textbook states, at p. 1637: Heart murmurs are heard
    in 30 to 45 percent of patients on initial evaluation and are ultimately heard
    in 75 to 85 percent as a consequence of intracardiac damage.  This quote was
    properly in evidence because it was put to Dr. Rakowski in cross-examination
    and he accepted it, after some explanation, saying so I agree with that.

[56]

It
    is true that there were other studies in evidence with different percentages
    for heart murmurs at both initial evaluation and in the late stages of the
    disease.  It is also true that the trial judge was critical of Dr. Rakowskis
    testimony with respect to the percentage of cases in which a heart murmur could
    be detected at early presentation.  However, that does not detract from the
    fact that the relevant extract from the
Braunwald
text, a leading text
    in the field, was introduced into evidence, placed before an expert, and the
    expert agreed with it.  The trial judge then accepted and applied those
    conclusions, as she was entitled to do.

[57]

Once
    the appellants first and second no evidence propositions are rejected, the
    third no evidence proposition  there was no evidence to support the trial
    judges mathematical analysis in the passage set out above  falls away
    automatically.  The numbers the trial judge employed as book ends, i.e. that 40%
    of patients have an audible heart murmur at the onset of IE and 85% have a
    heart murmur ten days into the disease, are firmly grounded in the evidence. 
    Her ultimate conclusion  a heart murmur was likely (on a balance of
    probabilities) present when Mr. Wilson attended the Emergency Department on
    December 31, 2003  is a fair extrapolation from the book end numbers.  In any
    event, it is far removed from being a palpable and overriding error.

E.

disposition

[58]

I
    would dismiss the appeal.

[59]

The
    respondents are entitled to their costs of the appeal which I would fix at
    $75,000 inclusive of disbursements and HST.

Released: May 10, 2013 (J.C.M.)

J.C. MacPherson J.A.

I agree. E.A. Cronk J.A.

I agree. S.E. Pepall J.A.





[1]
The appellants do not challenge this finding in this appeal.


