


COURT OF APPEAL FOR ONTARIO

CITATION:
Chasczewski v. 528089
    Ontario Inc.

(Whitby Ambulance Service), 2012 ONCA 97

DATE: 20120213

DOCKET: C53915

OConnor A.C.J.O., Laskin and Cronk JJ.A.

BETWEEN

John
    E. Chasczewski, Executor of the Estate of Millie Chasczewski, Deceased, John E.
    Chasczewski, Tod Chasczewski and Gary Chasczewski

Plaintiffs (Appellants)

and

528089
    Ontario Inc., operating as Whitby Ambulance Service,

William
    Cocker, F. Webster and R. Werner

Defendants (Respondents)

Allan Rouben and Amani Oakley, for the appellants

Deborah Berlach and Renée A. Kopp, for the respondents

Heard: December 16, 2011

On appeal from the judgment of Justice Mark L. Edwards of
    the Superior Court of Justice, dated May 26, 2011 with reasons reported at 2011
    ONSC 999.

Laskin
J.A.:

A.

overview

[1]

The plaintiffs appeal the summary judgment dismissing their action for
    medical malpractice.

[2]

On December 22, 1996, Frank Webster and Robert Werner, two paramedics
    with the Whitby Ambulance Service, responded to a 9-1-1 call at the home of Mr.
    and Mrs. John and Millie Chasczewski.  They were told that a woman (Mrs.
    Chasczewski) was choking and was unresponsive.

[3]

Webster and Werner arrived at the Chasczewskis home promptly, but
    remained there for at least 12 minutes before transporting Mrs. Chasczewski to
    the emergency department of the local Whitby hospital.  Sadly, she went into
    cardiac arrest while in the back of the ambulance, could not be revived, and
    was pronounced dead at the hospital.

[4]

The Chasczewski family sued the two paramedics, the ambulance service
    and its owner, William Cocker, for negligence.  They alleged that the
    paramedics ought to have transported Mrs. Chasczewski to the hospital sooner. 
    Had they done so, Mrs. Chasczewski could have been treated at the hospital
    while she still had a heart beat and would likely have survived.

[5]

The defendants brought a motion for summary judgment to dismiss the
    claim.  Edwards J. granted the motion.  He held that whether the defendants met
    the standard of care was a genuine issue requiring a trial.  However, he also
    held that even if the defendants breached the standard of care required of
    them, their breach did not cause Mrs. Chasczewskis death because she would
    have died anyway.

[6]

In holding that the issue of causation did not require a trial, the
    motion judge relied on the opinion of the defendants expert who said the
    survival rate for a person with a complete heart block who suffers a pre-cardiac
    or cardiac arrest outside the hospital was only 2.4 per cent.  The plaintiffs
    filed no response to this opinion.  The motion judge concluded that their
    failure to do so was determinative of this motion.

[7]

The Chasczewski familys main argument on appeal is that the motion
    judge erred in relying on the opinion of the defendants expert and in holding
    that the plaintiffs had an onus to respond to it. They submit that the opinion of
    the defendants expert did not address the plaintiffs theory of the case.  I
    agree with this submission.  A full appreciation of the evidence on the issue
    of causation requires a trial.  I would set aside the motion judges order and
    dismiss the motion for summary judgment.

B.

the record

[8]

The record before the motion judge was substantial.  It included medical
    reports and the affidavit of John Chasczewski, who was a firefighter and
    administered partial CPR to his wife before the paramedics arrived.

[9]

The record also included three affidavits from experts, two filed by the
    plaintiffs and one by the defendants.  The plaintiffs filed the affidavits of
    Dr. Steven Shilling, a cardiologist from Irving, Texas, with 17 years
    experience, and the affidavit of Alex Stadthagen, a paramedic and paramedic
    instructor also from Irving, Texas, with nearly 30 years experience.  Each
    appended to his affidavit an expert report prepared in 2004.

[10]

The
    defendants filed the affidavit of Dr. Douglas Munkley, a medical doctor
    specializing in emergency medicine, and, since 1986, the medical director of
    the base hospital paramedic program for the Niagara Region.  Dr. Munkley
    appended to his affidavit two reports, one prepared in August 2007, and the
    second, a supplementary report prepared in April 2008.  It was the
    supplementary report that the motion judge relied on to grant summary
    judgment.

[11]

None of
    the experts was cross-examined on his affidavit.  And neither of the two
    paramedics, Webster and Werner, filed affidavits on the motion.

C.

the standard of care

[12]

In this
    case, as in most medical malpractice actions, the two main issues are standard
    of care and causation: did the defendants fall below the standard of care
    required of them; and if they did, did their failure to meet the standard of
    care cause Mrs. Chasczewskis death?

[13]

The motion
    judge was presented with competing expert opinions on the standard of care, one
    from Mr. Stadthagen, who said that the paramedics breached the standard of
    care, and the other from Dr. Munkley, who said that they had met the standard. 
    Faced with these contradictory opinions, neither of which was challenged on
    cross-examination, the motion judge sensibly concluded that whether the
    defendants met the standard of care was a genuine issue requiring a trial.

[14]

The motion
    judge did not, however, set out the plaintiffs theory on how Webster and
    Werner breached the standard of care.  His failure to do so likely contributed
    to his error in addressing the issue of causation.

[15]

The
    question whether the standard of care was met should be decided before the
    question of factual causation: see
Bafaro v. Dowd
, 2010 ONCA 188, 260
    O.A.C. 70; and
Randall v. Lakeridge Health
, 2010 ONCA 537, 270 O.A.C.
    371. It must be resolved first for two reasons. First, without a finding that
    the defendant has breached the standard of care, the question of causation
    becomes moot. Second, and more important for this case, it is the defendants
    particular substandard act or omission that must be shown to have caused the
    harm; therefore, it is necessary to identify that act or omission to determine
    what, if any, connection it has to the harm at issue. In other words, causation
    can only be assessed in the context of a breach of the standard of care.

[16]

Because
    this was a summary judgment motion, the motion judge did not have to resolve
    whether the defendants breached the standard of care - indeed he correctly
    found that he could not do so on the record before him. However, he had to
    assume that the defendants breached the standard of care in the manner alleged
    by the plaintiffs, in order to decide whether causation was also a genuine
    issue requiring a trial.

(a)

The Timeline

[17]

To
    properly assess whether causation raised an issue for trial, I will set out the
    basis for the plaintiffs claim that Webster and Werner breached the standard
    of care.  Important to this assessment is the timeline for what the paramedics
    did in relation to Mrs. Chasczewskis cardiac activity.  As counsel for the
    plaintiffs aptly observed, this was a case in which minutes, if not seconds,
    were critical to Mrs. Chasczewskis chances of survival.

[18]

The motion
    judge set out at para. 4 of his reasons the following timeline of events:

Call received 12:53:22

Crew notified 12:53:36

En route to call 12:53:36

Arrived scene 12:55:48

Depart scene 13:13:32

Arrived hospital 13:17:10

[19]

From this
    timeline, he found that the paramedics remained on scene at the Chasczewski
    residence for just under eighteen minutes: see para. 5. However, because he did
    not deal with the plaintiffs theory on the alleged breach of the standard of
    care, he did not examine the timing of these events in relation to Mrs.
    Chasczewskis condition.

[20]

Based on
    the record, a timeline including this vital information is as follows:

12:53:22      911 call received

12:53:36      Webster
    and Werner leave for the Chasczewski residence

12:55:48      Webster
    and Werner arrive at the Chasczewski residence

12:56:59      Mrs.
    Chasczewski has a decreased level of consciousness and low cardiac activity,
    with a pulse rate of 8 to 10 beats per minute

13:01:02      Mrs.
    Chasczewskis heart rate is 36 beats per minute

13:07:00      Mrs. Chasczewskis cardiac activity stops

13:11:06      Mrs.
    Chasczewski suffers a cardiac arrest while in the ambulance

13:13:32      The
    ambulance crew calls into dispatch to say that they have left the scene

13:17:10      The
    ambulance arrives at the Whitby hospital emergency department; Mrs. Chasczewski
    cannot be revived and is pronounced dead

[21]

The
    evidence on what happened between 12:53 (when the paramedics arrived at the
    Chasczewski residence) and 13:07 (when Mrs. Chasczewskis cardiac activity stopped)
    is consistent throughout the record.

[22]

Where
    discrepancies do exist is in the period between 13:07 and 13:17.  Perhaps the
    most important discrepancy concerns how long the paramedics remained at the
    Chasczewski residence.  The motion judge found that they stayed there for
    nearly 18 minutes.  A Ministry of Health investigation report estimated that
    the paramedic crew was on scene at the Chasczewski residence for about 12
    minutes before leaving for the hospital.  Although it is not possible on this
    record to pinpoint the precise time of departure, likely, the paramedics left
    shortly before 13:13, the time found by the motion judge, and stopped at the
    side of the road to treat Mrs. Chasczewski.  She went into cardiac arrest while
    in the back of the ambulance.  And when Webster, who was driving, called in at
    13:13, the ambulance was already en route to the hospital.

[23]

These
    discrepancies may have to be sorted out at trial.  On this appeal, we can
    safely accept three facts critical to the plaintiffs case:

·

Mrs. Chasczewski had a heart rate or cardiac activity for about
    10 minutes after the paramedics arrived at the Chasczewski residence;

·

The paramedics stayed at the Chasczewski residence for at least
    12 minutes and perhaps longer;

·

It took only about four minutes to drive from the Chasczewski
    residence to the Whitby hospital.  This figure is used in the material and is
    supported by (a) the Chasczewski residence was about four to five kilometres
    from the hospital and (b) the dispatch record shows that the ambulance drove at
    an average speed of 80 kilometres per hour

(b)

The Plaintiffs Theory of How the Defendants Breached the Standard of
    Care

[24]

In a
    nutshell, the plaintiffs theory is that the paramedics were presented with a
    classic load and go situation.  Mrs. Chasczewskis low cardiac activity made
    it imperative that she be transported to the hospital immediately.  Instead,
    for reasons largely unexplained in the record because neither paramedic gave
    evidence, Webster and Werner waited at least 12 minutes before putting Mrs.
    Chasczewski in the ambulance and taking her to the hospital.

[25]

In seeking
    to demonstrate a breach of the standard of care, the plaintiffs relied on the
    opinion of Mr. Stadthagen.  Although he practises in Texas, he reviewed the
    Basic Life Support Patient Care Standards, published by the Ontario Ministry of
    Health.  This publication set out the standards expected of paramedics at the
    time of the incident.  Mr. Stadthagen gave the opinion that these standards are
    virtually identical to those used in Texas.

[26]

Appendix
    33 to the Ministrys publication deals with load and go patients.  A load
    and go patient includes one with unstable respiratory, circulatory and/or
    neurological status or in whom instability is imminent or highly likely on the basis
    of assessment findings.  The appendix lists various medical and traumatic
    conditions characteristic of load and go patients.  Condition 7 states:

Decreased level of consciousness  serious underlying disorder
    suspect or cannot be ruled out and/or no definitive field treatment is
    available.

[27]

The Ministrys
    standards stipulate that when dealing with a load and go patient, paramedics
    should first perform appropriate primary survey interventions.  This assessment
    should take approximately two minutes unless major problems are encountered. Then,
    the patient should be put in an ambulance and transported rapidly to the nearest
    hospital.

[28]

On the
    basis of the general description of a load and go patient, and particularly condition
    7, Mr. Stadthagen was able to say that Mrs. Chasczewski was such a patient.  By
    12:56:59, immediately after their arrival, the paramedics had determined that
    Mrs. Chasczewski had a decreased level of consciousness and vital signs
    consistent with low cardiac activity.  She was obviously unstable and required
    immediate treatment.  Mr. Stadhagen gave the opinion that had she been taken to
    the hospital right after the initial two-minute assessment, as required for load
    and go patients, she would have arrived at the emergency department no later
    than 13:03, that is, while she still had a heart beat.  There, she could have
    been given an external pacemaker or the drug Atropine intravenously, either of
    which may have saved her life.

[29]

Mr. Stadthagen
    recognized that these treatment options could not be given in the field (see
    condition 7) or at the scene, and therefore had to be administered at the
    hospital.  That is because Webster and Werner, as primary care paramedics
    were not trained to apply a pacemaker or administer drugs intravenously.  Only advanced
    care paramedics are trained in these skills, and Ontario did not have advanced
    care paramedics until 1998, two years after Mrs. Chasczewski died.

[30]

Mr. Stadthagens
    overall opinion was that by not treating Mrs. Chasczewski as a load and go
    patient and immediately transporting her to the nearest hospital emergency
    department, the two attending paramedics, Webster and Werner, fell below the
    required standard of care.

[31]

This
    outline of the plaintiffs theory on the standard of care provides the
    necessary context for the issue of factual causation.  However, before turning
    to that issue, I will briefly address an alternative argument on the standard
    of care put forward by the defendants.  They contend that the plaintiffs filed
    no admissible evidence on the standard of care because Mr. Stadthagen neither
    worked nor was trained in Ontario. He therefore had no direct knowledge of
    Ontario standards and could not be qualified as an expert.

[32]

This
    argument has no merit.  The bar for qualifying an expert is not high. The only
    requirement is that the expert must have acquired special or peculiar
    knowledge through study or experience in respect of the matters on which he or
    she undertakes to testify:
R. v. Mohan
, [1994] 2 S.C.R. 9, at p. 25. This
    special knowledge must go beyond that of the trier of fact: see
R. v.
    Marquard
, [1993] 4 S.C.R. 223, at p. 243;
McLean (Litigation Guardian
    of) v. Seisel
(2004), 182 O.A.C. 122, at paras. 105-106.

[33]

Mr. Stadthagen
    had the requisite knowledge and expertise regarding paramedical standards of
    care in Texas. He reviewed the Ontario standards and said under oath that they
    were nearly identical to those used in Texas, where he practises.  His
    expertise on the standard of care in Ontario went beyond that of the trier of
    fact. Moreover, he was not cross-examined on his opinion or on his
    qualifications generally.  His expert opinion was therefore admissible.  Its
    weight was a matter for the motion judge.

D.

causation

(a)

Dr. Shillings Opinion

[34]

In seeking
    to show that the defendants breach of the standard of care caused Mrs.
    Chasczewskis death, the plaintiffs relied on the expert opinion of Dr.
    Shilling.  From the medical records, Dr. Shilling noted that Mrs. Chasczewski
    did not have a heart attack, but instead had a complete heart block.  As she
    did not have any heart damage, in his opinion her condition was quite treatable
    as long as the paramedics transferred her immediately to an advanced life
    support service.  The use of an external cardiac pacemaker or the
    administration of Atropine intravenously
while Mrs. Chasczewski

still
    had a pulse
would likely have saved her life.

[35]

Dr.
    Shilling considered the timeline and emphasized that after the paramedics
    arrived at the Chasczewski residence, there was a 10 minute window when Mrs.
    Chasczewski had cardiac activity.  If she had been given Atropine or an
    external pacemaker in this window of opportunity, she likely would have
    survived.  He put it this way in the body of his report:

3.  Complete
    heart block is truly an extremely treatable condition.  An external pacemaker
    almost uniformly allows one to temporarily but adequately treat this
    disturbance if it is instituted in an appropriate amount of time.  I definitely
    feel than an external pacemaker would have allowed this patient to survive if
    instituted immediately [f]or very shortly after paramedic arrival, which
    appeared to have been at 12:56 p.m.  It is definitely more difficult to state
    whether or not she would have survived if it would have been placed at 13:07,
    but nevertheless, there is a 10 minute window at that particular time frame
    when she clearly had cardiac activity and thus, in all reasonable medical
    probability, I do feel she likely would have survived.

4.
I do feel
    that the patient would have survived if she would have

arrived with a
    pulse
and received
external cardiac pacing at the time that she did
    experience a palpable pulse.
Again, it is somewhat more difficult when
    you get out into the 13:05 to 13:06 time frame, but nevertheless, patient[]s
    can certainly be salvageable with an external pacemaker. [Emphasis added.]

[36]

In the
    concluding paragraph of his report, Dr. Shilling summed up his opinion on Mrs.
    Chasczewskis chances of survival:

Basically, this patient died from compete heart block and while
    the paramedics arrived in an extremely rapid amount of time, there is certainly
    a near 10 minute gap, in which there was an adequate window of opportunity to
    give Atropine or apply an external pacemaker.  I think that in all reasonable
    medical probability, the patient was salvageable up until the time she had no
    obvious pulse.  I do believe that the medical record supports that this was the
    case up until the 13:06 time frame.

(b)

Dr. Munkleys Response and the Motion Judges Reliance on it

[37]

In an
    attempt to respond to Dr. Shillings opinion, the defendants filed Dr.
    Munkleys supplementary report.  In that report Dr. Munkley said that Mrs.
    Chasczewskis condition was not treatable, and that even if she had been given
    a cardiac pacemaker or a drug intravenously, her chances of survival were very
    slim.  In giving this opinion, he relied on a New England Journal of Medicine
    article, which put the survival rate at 2.4 per cent.  The critical part of Dr.
    Munkleys opinion, which the motion judge relied on, is as follows:

Complete heart block in the setting of prehospital cardiac
    arrest or prearrest as treated by paramedics outside of hospital has been well
    researched.  Unfortunately, it is
not
extremely
    treatable.  The survival rate in Ontario for this condition when treated by
    Advanced Care Paramedics using IV medications and external cardiac pacing was
    found to be only 2.4% (New England Journal of Medicine 351; 7 August 2004). 
    The paramedics treating Mrs. Chasczewski on December 22
nd
, 1996 were
    not trained in these skills and practiced as Primary Care Paramedics.  Even
    if they had been able to apply external pacing the chance of survival of Mrs.
    Chasczewski was very slim. [Emphasis in original.]

[38]

The motion
    judge held that the plaintiffs failure to respond to Dr. Munkleys causation
    opinion of a survival rate of 2.4 per cent was a glaring admission and fatal
    to their claim:

It is a glaring omission on the part of the plaintiffs that
    they have not addressed the opinion of Dr. Munkley as expressed in his
    affidavit on August 24, 2010, to the effect that the survival rate in the
    Province of Ontario, for someone presenting with Mrs. Chasczewskis condition
    was 2.4 percent.  This omission is particularly troubling given the fact that
    Dr. Munkley in his affidavit, specifically responded to the opinions of Dr.
    Shilling and Mr. Stadthagen.  In my opinion there was a heavy onus on the part
    of the plaintiffs to respond to Dr. Munkleys opinion.  This is especially so,
    given the fact that Dr. Shilling, in his report of June 10, 2004, specifically
    addressed the issue of causation as it related to the timelines in this
    matter.  The failure to respond to Dr. Munkleys causation opinion of a
    survival rate of 2.4 percent is, in my opinion, determinative of this motion. 
    While I accept that the plaintiffs and their counsel may have experienced
    delays in responding to the defendants motion, there can be no doubt that the
    affidavit of Dr. Munkley was in the possession of plaintiffs counsel, and
    could, and should have been responded to, particularly as it relates to the
    causation issue. I infer from the fact that Dr. Shilling does not respond to
    Dr. Munkleys causation opinion that Dr. Shilling can offer no expert evidence
    to contradict Dr. Munkleys opinion: at para. 17.

(c)

The Motion Judges Error

[39]

There are
    two reasons why it was an error for the motion judge to dismiss the plaintiffs
    claim on the basis that they did not respond to Dr. Munkleys opinion.

[40]

The main
    reason is that Dr. Munkleys opinion does not address the plaintiffs theory of
    the case.  Dr. Munkleys opinion of a 2.4 per cent survival rate rests on two
    important assumptions:

·

The patient suffered a cardiac arrest or a pre-cardiac arrest
    (which Dr. Munkley did not define but I take it to mean the absence of a heart
    beat)
outside
of the hospital.

·

An external pacemaker or Atropine was administered
by
    paramedics

after
the patient went into cardiac or pre-cardiac
    arrest.

[41]



[42]

The
    plaintiffs theory on causation does not rest on either of these assumptions. 
    Rather, the plaintiffs theory assumes that the defendants failed to comply
    with the standard of care as set out in Mr. Stadthagens opinion.  It assumes
    that but for that failure, Mrs. Chasczewski would have been immediately
    transferred to the hospital emergency department after the paramedics arrived at
    her residence, and therefore that she would not have suffered a cardiac or
    pre-cardiac arrest
outside
of the hospital.  She would have been
    treated at the hospital with an external pacemaker and or Atropine, and likely
    would have survived.  Indeed, on the plaintiffs theory, Mrs. Chasczewski would
    not even have been in the cohort studied in the New England Journal of Medicine
    article that yielded the figure of a 2.4 per cent survival rate.

[43]

More
    significant, Dr. Munkleys opinion does not give effect to the 10 minute window
    of opportunity on which Dr. Shilling relied.  Webster and Werner arrived at the
    Chasczewski residence at 12:55:48; Mrs. Chasczewski had a heart beat until approximately
    13:07 at which time she was presumably in pre-cardiac arrest; she went into
    cardiac arrest at 13:11.  In Dr. Shillings opinion if she had been treated
before
13:07, that is before she went in to pre-cardiac or cardiac arrest, she likely
    would have survived.

[44]

Dr.
    Shillings opinion does not rest on advanced care treatment by the paramedics,
    only that Mrs. Chasczewski be given advanced care treatment before 13:07.  If
    effect is given to Mr. Stadthagens opinion on the standard of care, Mrs.
    Chasczewski should have been at the emergency department of the Whitby hospital
    no later than 13:03.  Inferentially, once there, she could have been given
    advanced care treatment  either an external pacemaker or Atropine  in a
    hospital setting, by a doctor
-
before 13:07.

[45]

Thus, Dr.
    Munkleys opinion, and his reliance on a 2.4 per cent survival rate, does not
    respond at all to the plaintiffs theory of the case. Indeed, Dr. Munkley did
    not give any opinion on Mrs. Chasczewskis chance of survival if she had
    arrived at the hospital with a heartbeat. And he gave no opinion on her
    probability of survival had the cardiac arrest occurred at the hospital.

[46]

There is a
    second reason why the motion judge ought not to have accepted Dr. Munkleys
    opinion as determinative of the motion.  Dr. Munkleys opinion was based on a
    statistic from a study reported in an article in a scholarly journal.  Dr.
    Munkley did not even append the article to his affidavit, and therefore we do
    not know the details of the parameters or assumptions underlying the study. 
    Denying the plaintiffs their day in court on the basis of a statistic in a
    single study, which is not even in the record, is unsatisfactory.

[47]

Moreover,
    the courts have cautioned against the use of statistics to decide causation in
    a given case.  Gonthier J. expressed this caution in
Laferrière v. Lawson
,
    [1991] 1 S.C.R. 541, at pp. 606-607, where he noted the difference between
    scientific and legal standards of proof and emphasized that legal causation
    need not be determined by scientific precision. A judges duty is to assess the
    evidence of causation on the whole, not to remain paralysed by statistical
    abstraction.  The motion judges reliance on the statistic used by Dr. Munkley
    is precisely the type of fixation the court warned against.

[48]

Causation
    is a very difficult issue in this case.   It is, as I have said, an issue where
    minutes, even seconds, may have mattered.  The expert evidence on the issue was
    conflicting; the evidence on the timing of key events was unclear; and the
    evidence of key witnesses was absent. On the record before him, the motion
    judge could not have had a full appreciation of the issue of causation.
    Causation is a genuine issue requiring a trial.  I would therefore set aside
    the summary judgment granted by the motion judge and dismiss the defendants
    motion.  Both the standard of care and causation are genuine issues requiring a
    trial.

E.

conclusion

[49]

This is an
    old case.  Mrs. Chasczewski died over 15 years ago.  Shortly after her death,
    Mrs. Chasczewskis family filed a complaint about the treatment she received
    both with the Ministry of Health and the Coroners Office.  The Ministry and
    the Coroner investigated the complaint, and each concluded that the care Mrs.
    Chasczewski received was appropriate.

[50]

Nonetheless,
    the Chasczewski family is entitled to a trial of their allegations against the
    defendants.  The evidence bearing on both the issues of the standard of care
    and causation cannot be fully appreciated on the record before the motion judge. 
    I would allow the appeal, set aside the summary judgment granted by the motion
    judge and substitute an order dismissing the defendants motion for summary
    judgment.  The parties may make brief submissions in writing on the costs of
    the appeal and the motion within two weeks of the release of the courts
    reasons.

Released: Feb. 13, 2012                     John Laskin
    J.A.

DOC                                                      I
    agree Dennis OConnor A.C.J.O.

I
    agree E.A. Cronk J.A.


