





CITATION:
Salter v. Hirst, 2011 ONCA 609



DATE: 20110923



DOCKET: C52377



COURT OF APPEAL FOR ONTARIO



Doherty, Weiler and Laskin JJ.A.



BETWEEN



George Salter and Karen Hogan



Plaintiffs (Appellants)



and



Dr.
          Jason Hirst
, Nurse Santina Murvella, Nurse Kelly Comer, Nurse Jackie
          Logan, Nurse Carol Worgan, Nurse Molly Coughlin, Nurse Sandy
          Tomaszewski and Stevenson Memorial Hospital




Defendants (Respondent)



James L. Vigmond and Adam R. Little, for the appellants



Christopher Hubbard and Elder C. Marques, for the respondent



Heard:
September 20, 2011



On appeal from the judgment of
          Justice Margaret P. Eberhard of the Superior Court of Justice, dated June 10,
          2010.



ENDORSEMENT



[1]

This appeal raises the correctness of the trial judges decision to
    invoke Rule 52.08 of the
Rules of Civil Procedure
to overturn the jurys
    finding of negligence.  The trial judge held that there was no evidence upon
    which the jury could have found that the plaintiffs, now appellants, Mr. George
    Salter, and his wife, Karen Hogan, had successfully proved the causation
    component of the negligence test.

[2]

The appellants seek to have Eberhard J.s judgment set aside and
    judgment entered in accordance with the verdict of the jury on the basis that
    there was some evidence from which the jury could have inferred that his
    injuries were caused or contributed to by Dr. Jason Hirst.

[3]

The factual matrix of the appeal is as follows.  George Salter was
    admitted to Stevenson Memorial Hospital, Alliston, at 4:48 p.m. on Thursday,
    June 12, 2003, after attending at the emergency department with severe
    abdominal pain.  Dr. Jason Hirst was the admitting physician and his diagnosis
    was, abdominal pain not yet diagnosed.

[4]

Between June 12 and June 14, Mr. Salters condition worsened and his
    pain also increased substantially.  He was vomiting and passing blood in his
    urine and stool.  After Mr. Salter had passed a further 200 cc of blood
    rectally at 16:15 pm June 14, Nurse Tomaszewski then brought a container of Mr.
    Salters blood and stool to Dr. Hirst and asked that he be reassessed.  Dr.
    Hirst did so and decided Mr. Salter needed to be transferred to another
    facility.

[5]

Mr. Salter began to lose feeling in his lower extremities.  At 16:40 on
    June 14, he complained of severe groin pain and leg numbness.  Mr. Salter was
    given Demerol at 17:00 and transferred to Southlake Regional Health Centre in
    Newmarket at 18:15 to the care of vascular surgeon, Dr. Deepak Gupta.  He
    arrived at that hospital at approximately 19:10 and was examined at 19:50.  Dr.
    Gupta made a provisional diagnosis of aortic dissection, a life threatening
    condition with which he had no experience.  He arranged for Mr. Salter to be
    transferred to Hamilton General Hospital.  Dr. Gupta ordered a CT scan for Mr.
    Salter to take with him to Hamilton but when the ambulance arrived at Southlake
    the CT scan had not yet been done.  Given the severity of Mr. Salters
    condition, Dr. Gupta decided Mr. Salter should be transferred without it.

[6]

Mr. Salter arrived at Hamilton General Hospital at approximately three
    minutes after midnight on June 15, 2003.  He was sent directly for CT imaging
    which revealed a distal aortic occlusion or abdominal blood clot.  He was
    operated on at 2:22 a.m. and the surgery was completed at 4:25 a.m.

[7]

With the benefit of hindsight, we now know that Dr. Guptas provisional
    diagnosis was wrong.  The post-operative diagnosis was saddle embolus and
    mesenteric vein thrombosis, two rare conditions.  The lack of blood flow to Mr.
    Salters legs prior to surgery damaged them to such an extent that he lost the
    use of both of his legs.  In order to treat these problems and avoid injury,
    Mr. Salter required surgery within a six hour window of opportunity from the
    time he began to experience lower extremity symptoms.  From the time Mr. Salter
    experienced lower extremity pain and numbness until the time surgery was
    completed in Hamilton, nearly twelve hours had elapsed.

[8]

Mr. Salter sued Dr. Hirst for negligence, alleging that the doctors
    failure to transfer him sooner resulted in his paralysis.  Damages were agreed
    upon and the only issues at trial were liability and causation.

[9]

Dr. Bonn testified that Dr. Hirst was not expected to diagnose Mr.
    Salters rare condition, but that he had failed to meet the standard of care by
    not transferring Mr. Salter to another facility Friday afternoon (the best case
    scenario) or Saturday morning (the worst case scenario), instead of waiting
    until Saturday evening.  Dr. Brankston agreed that Dr. Hirst was not expected
    to diagnose Mr. Salters condition and that he failed to meet the standard of
    care by not transferring Mr. Salter to another facility on the evening of
    Friday, June 13.

[10]

Although there was conflicting evidence from the respondents experts at
    trial, the jury found that Dr. Hirst had failed to meet the standard of care by
    not deciding to transfer Mr. Salter sooner.  The jury also found that Dr.
    Hirsts decision not to transfer Mr. Salter sooner caused his paraplegia.

[11]

On the issue of causation, the appellants relied on the reports of two
    vascular surgeons, Dr. Gupta and Dr. Lossing.  The defence chose not to call
    any expert evidence to counter the issue of causation.

[12]

The trial judge s reasons focus on the fact that the reports of these
    two vascular surgeons, which were filed at trial, make no mention of what would
    likely have transpired in terms of CT scans, diagnoses and surgical options had
    Mr. Salter been transferred to Southlake Hospital under the care of Dr. Gupta
    sooner.  She concluded that there was no evidence to suggest what earlier,
    leisurely investigation would have shown.  As a result, the trial judge held
    that the appellants failed to provide any evidence upon which a jury could have
    found, on a balance of probabilities, that Dr. Hirsts delay in transferring
    Mr. Salter caused

his paralysis.

[13]

The appellants argue that the evidence of Doctors Lossing and Gupta
    supports the inference that if Dr. Gupta had had the opportunity for a more
    leisurely examination and had had time to review the results of a CT scan, he
    would likely have identified the blood clots and carried out the appropriate
    surgery in time to save Mr. Salters legs.  Dr. Guptas report does not say
    this.  It only states that he ordered a CT scan, that CT technicians come from
    Newmarket and the surrounding areas and were expected to be able to report to
    Southlake within, at most, one hour of being called, and that a CT scan
    generally takes 35 to 45 minutes to complete and a further ten minutes to
    receive the results.  The report also says that Dr. Gupta could perform surgery
    to treat a saddle embolus and portal vein thrombosis.  The evidence indicated
    an operating room was available.  With respect to Dr. Lossings report, Mr.
    Salter relies on the following passages and asks us to draw the inference that
    had a CT scan been done the blood clots would have been apparent and he would
    have had surgery :

Given the time frame of a 10 hour delay after the
    onset of lower extremity symptoms it is my opinion that this gentleman suffered
    the long-term consequences of a significant delay in the management of his
    acute arterial ischemia resulting in permanent paralysis.  In other words, if
    this gentleman had an immediate CT scan or had been taken to the operating room
    immediately after the onset of his lower extremity symptoms, these actions, in
    all probability would have reduced the chances of long-term permanent
    paralysis.

In conclusion, it is most probable this patients
    long-term unfortunate sequelae of paralysis was the result of the prolonged
    delay of his definitive treatment.  Treatment within 6 hours of the onset of
    his lower extremity symptoms at 1640 hours on Saturday June 14
th
would have, on the balance of probabilities, prevented his paralysis.

[14]

We agree with the trial judge that the reports tendered afford no
    evidence that Dr. Hirsts negligence caused or contributed to Mr. Salters
    paraplegia.  There is no issue that  loss of a chance is not compensable in
    medical malpractice cases.  The plaintiff must prove on the balance of
    probabilities that, but for the doctors negligence, the unfavourable outcome
    would have been avoided with prompt diagnosis and treatment:
Cottrelle v.
    Gerrard
, [2003] O.J. No. 4194 (C.A.) at paras. 25, 36.

[15]

Neither Dr. Gupta nor Dr. Lossings report addresses causation as such.  The
    appellants led evidence to establish that surgery
could
have been
    conducted by Dr. Gupta within the six hour window of opportunity.  However, the
    appellants led no evidence to show that the correct diagnosis likely
would
have
    been made and successful treatment likely would have been completed before the
    close of the window of opportunity had Mr. Salter been transferred earlier.

[16]

Dr. Lossings report only says that Mr. Salters paraplegia is the
    result of prolonged delay before receiving treatment.  While we know that Dr.
    Hirst was negligent in not transferring Mr. Salter sooner, we do not know
    whether that delay caused or contributed to his current condition.  It was
    within the power of the appellants to lead evidence from Drs. Gupta and Lossing
    regarding what likely would have happened if Dr. Hirst decided to transfer Mr.
    Salter sooner, how an earlier diagnosis likely would have been made and led to
    surgery within the six hour window of opportunity. They did not do this.

[17]

Accordingly, the trial judge correctly dismissed the claim pursuant to
    Rule 52.08 and the appeal is dismissed.

[18]

By agreement, costs of the appeal are fixed in the amount of $20,000.  We
    award those costs to the respondent, Dr. Hirst, if demanded.

Doherty J.A.

K.M. Weiler J.A.

John Laskin J.A.


