



COURT OF APPEAL FOR ONTARIO

CITATION: Shantry v. Warbeck, 2015 ONCA 395

DATE: 20150604

DOCKET: C58247

Cronk, Pepall and Benotto JJ.A.

BETWEEN

Melissa Anne Shantry and Taylor Anne Miller, a
    minor by her Litigation Guardian, Melissa Anne Shantry

Plaintiffs (Appellants)

and

Paul Warbeck

Defendant (Respondent)

AND BETWEEN

David Blake, Donna Miller, Harold Miller, Denise
    Post-Blake, Burkley Blake and David Blake Jr.

Plaintiffs (Appellants)

and

Paul Warbeck

Defendant (Respondent)

Paul Pape and Joanna Nairn, for the appellants

Michael Royce and Dena Varah, for the respondent

Heard: February 18, 2015

On appeal from the judgment of
    Justice Terrence A. Platana of the Superior Court of Justice, dated December
    20, 2013, with reasons reported at 2013 ONSC 7805.

Benotto J.A.:

[1]

A 22-year-old man arrived at a hospital emergency room in the early
    evening, presenting with severe back pain. Intravenous morphine throughout the
    night had little effect. In the morning, he came under the care of the
    respondent, who continued the morphine. There was still no relief. At around 5
    p.m. the respondent switched the medication to Dilaudid, a stronger opioid. By
    3 a.m. the following morning, the young man finally said he had no pain. At
    4:30 a.m., hospital staff found him not breathing. He was pronounced dead at
    5:09 a.m., less than 35 hours after he arrived at the hospital. The coroners
    investigation concluded that the cause of death was mixed-drug overdose.

[2]

The mans family brought an action in negligence alleging that the
    respondent ordered an excessive dose of Dilaudid and this caused the mans death.

[3]

The trial judge determined that the dose was appropriate in the
    circumstances and that the respondents conduct did not fall below the standard
    of care. The trial judge also rejected the coroners finding as to cause of
    death.

[4]

The family members appeal. They submit that the trial judges approach
    to liability was flawed because he addressed the standard of care before
    causation, and then wrongly rejected the coroners conclusion as to the cause
    of death. This error, they allege, led him into further error with respect to
    the standard of care.

[5]

I have concluded that the trial judge did not err in his approach to
    liability.  Nor did he err in his findings with respect to the standard of care
    and causation.  Accordingly, I would dismiss the appeal.

FACTS

[6]

On Wednesday, July 11, 2007, Shane Miller  a 22-year-old man living
    with his common-law partner Melissa Anne Shantry and their young daughter 
    slipped on a pinecone in a parking lot and fell onto his back. He lay on the
    ground for a few minutes, but then got up and went shopping with his family.
    The following Saturday, July 14, Mr. Miller did not wake up until around 5 p.m.
    Ms. Shantry testified that, he seemed out of it. He, he was mumbling about
    some dreams that he had had. Mr. Miller was lying on the couch but would jump
    up from the couch with little convulsions and jerking movements that were
    not normal. He was complaining about his back hurting and going on about ...
    his dreams. Ms. Shantry summoned Mr. Millers father to take him to the
    hospital. According to his father, Mr. Miller seemed to be in a lot of pain.

[7]

Mr. Miller arrived at the Thunder Bay Regional Health Sciences Centre at
    6:19 p.m. on Saturday, July 14, complaining of intense pain in his upper back.
    He described it as both aching and sharp between his shoulder blades and
    sometimes radiating to his lower back. He had a fever and a rapid pulse.

[8]

Mr. Miller was examined in the emergency department and administered a
    single dose of 5 milligrams (mg) of morphine intravenously at 6:50 p.m. It
    did not alleviate his pain. Mr. Miller received three more doses of morphine
    between 7:40 p.m. and 9 p.m. The total for the evening was 19-20 mg. His pain
    continued unabated.

[9]

The emergency department personnel could not determine the cause of Mr.
    Millers pain. Shortly after midnight, he was admitted to the medical ward for
    investigation. The pain and fever did not subside. He received additional doses
    of morphine throughout the night and was also started on an antibiotic. By
    morning, he was still in pain. At 8:30 a.m. on the morning of Sunday, July 15, a
    nurse assessed him and found him to be experiencing throbbing and radiating back
    pain, which he rated as 10 on a scale of 10, as well as a fever and headache.
    He was itching, vomiting, moaning, crying and restless. He was screaming in
    pain.

[10]

Through
    the morning and afternoon of Sunday, July 15, Mr. Miller continued to receive
    doses of morphine. At trial, the attending day nurse was asked to describe Mr.
    Millers pain levels:

A. He was, he was in horrible, terrible pain.

Q. Do you have a specific recollection of this patient?

A. Yeah. Like I work on [an] oncology patient clinic and I do
    see people with lots of pain and this young gentleman, he sticks with me
    because of his pain level and the young age.

Q. Okay.

A. He was in horrible pain.

[11]

Mr.
    Millers family members also testified that he was in pain that Sunday morning
    and afternoon. At 5:09 p.m., Mr. Miller said he was still in pain. He described
    throbbing in his back and rated it as an 8 on a scale of 10. The day nurse did
    not consider this to be an improvement in pain level; he was still moaning,
    crying and suffering.

Involvement of the Respondent

[12]

The
    respondent is a physician who was working as a hospitalist at the Health
    Sciences Centre. In his trial testimony, he described a hospitalists role as providing
    general medical care, guiding investigations and requesting consultations for
    patients without a family physician able to care for them in hospital.

[13]

The
    respondent first saw Mr. Miller between 9:00 a.m. and 9:30 a.m. on the morning
    of Sunday, July 15. He reviewed notes from Mr. Millers attending physicians
    and nurses, issued orders for laboratory tests and noted that Mr. Miller had a pustular
    rash, a significant fever and severe back pain. He believed that Mr. Miller had
    a serious viral infection, possibly shingles, in the discs of his backbone.

[14]

At
    around 5 p.m. that day, the day nurse told the respondent that Mr. Miller had
    received 20 mg of morphine over a four-hour period. Mr. Miller was
    clear-headed, but still in pain. The respondent changed his medication to 5-10
    mg of Dilaudid (hydromorphone) every four hours. Dilaudid is an opioid that,
    according to the appellants expert witness Dr. Alan Drummond, is 3-8 times
    more potent than morphine.

[15]

At
    5:30 p.m. Mr. Miller received his first 5 mg dose of Dilaudid. The day nurse
    recorded in her Shift Summary that, after the new drug was administered, Mr.
    Miller was in less pain. The respondent left the hospital at 9 p.m.

Mr. Millers Death

[16]

At
    9:30 p.m., Mr. Miller received another 5 mg dose of Dilaudid. The following
    morning, at 2:00 a.m., the attending night nurse found him in his room awake,
    standing and urinating on the side of his bed and the floor. He was very
    angry that he had not been administered more Dilaudid while he was sleeping so
    that he would not have to wake up in pain. He was yelling and screaming that he
    was in a lot of pain. The night nurse, along with two other nurses, changed the
    sheets and assisted Mr. Miller back into bed. The night nurse administered
    another 5 mg dose of Dilaudid at 2:30 a.m. Within 15 minutes, Mr. Miller was
    calm.

[17]

At
    around 3:00 a.m., Mr. Miller rang for the night nurse. He apologized for
    urinating on the floor and asked her to turn off the television and the lights.
    For the first time since his arrival at the hospital, he said he had no pain.

[18]

Mr.
    Miller was not seen again by the night nurse until 4:30 a.m., when he was found
    not breathing. A Code Blue was called, but Mr. Miller could not be
    resuscitated. He was pronounced dead at 5:09 am.

Summary of the Opioids

[19]

Mr.
    Miller received the following doses of morphine and Dilaudid:

·

July

14
:

·

6:50 p.m. : 5 mg morphine

·

7:40 p.m. : 2 or 3 mg morphine

·

7:50 p.m. : 2 mg morphine

·

9:00 p.m. : 10 mg morphine

·

July

15
:

·

1:00 a.m. : 10 mg morphine

·

3:00 a.m. : 5 mg morphine

·

8:20 a.m. : 5 mg morphine

·

11:30 a.m. : 5 mg morphine

·

12:25 p.m. : 5 mg morphine

·

3:40 p.m. : 10 mg morphine

·

5:30 p.m. : 5 mg Dilaudid

·

9:30 p.m. : 5 mg Dilaudid

·

July

16
:

·

2:30 a.m. : 5 mg Dilaudid

The Coroners Report

[20]

The
    tragic circumstances led to an extensive coroners investigation. In the
    Medical Certificate of Death, the investigating coroner cited mixed drug
    overdose as the immediate cause of death, more particularly unexpected
    toxicity from potent opiates/other medications. (The words opiate and
    opioid are synonymous.)

[21]

A
    forensic pathologist provided a second opinion as to the cause of death. She
    concluded that the source of Mr. Millers pain and fever was likely a viral
    infection, but that the cause of death was acute mixed hydromorphone and
    morphine intoxication. These conclusions were again confirmed by another
    pathologist. The continuing investigation was overseen by the Regional
    Supervising Coroner. In all, at least eight diagnostic or analytical reports
    were written regarding the cause of Mr. Millers death.

THE TRIAL

[22]

At
    trial, the appellants argued that the respondent failed to meet the standard of
    care in two respects: by prescribing an excessive dosage of Dilaudid and by
    failing to attend personally to Mr. Miller more than once on Sunday, July 15,
    2007, relying instead on the observations of nurses. Only the first issue, the
    dosage of Dilaudid, is raised in this appeal.

[23]

The
    correct dosage of an opioid is informed by the patients status as either opioid
    naïve or opioid tolerant. Patients who are opioid tolerant can tolerate
    higher dosages because their bodies have become used to the drugs. Patients who
    are opioid naïve generally cannot tolerate higher dosages. The experts agreed
    that opioid tolerance generally develops after at least a week of regular
    doses.

[24]

Whether
    Mr. Miller was opioid tolerant or opioid naïve was the subject of extensive
    expert evidence. The appellants led expert evidence that he was opioid naïve
    and the dosage of Dilaudid was consequently too high. The respondent led expert
    evidence that, given the ineffectiveness of morphine on Mr. Millers pain, the
    dosage of Dilaudid that the respondent ordered was appropriate. The respondents
    experts testified that although Mr. Miller did not meet the strict definition
    of opioid tolerant  in that it was unlikely that he could have become tolerant
    in the span of a day or so  he nevertheless exhibited resistance to morphine
    such that the Dilaudid dosage was justified.

[25]

The
    experts also disagreed as to the cause of death. While the appellants experts
    agreed with the coroners conclusion, the respondents did not. The latter
    testified that, had Mr. Millers death been caused by an overdose of opioids,
    he would have exhibited symptoms of such an overdose before he was last
    observed alive by the night nurse at 3:00 a.m. on the night of his death.

[26]

The
    trial judge accepted the evidence of the respondents experts on both the
    dosage issue and the cause of death. With respect to the dosage of Dilaudid,
    the trial judge wrote:

All medical witnesses agreed that the proper dose is one which
    relieves pain. That being so, recognizing that the initial, and subsequent, 5
    mg dose of Dilaudid did not relieve Mr. Millers pain, and there were no
    adverse side effects observed, it is difficult for me to find that it was other
    than a proper dose.

[27]

With
    respect to causation, the trial judge rejected both the evidence of the
    appellants experts and the conclusions stated in the coroners report that a
    mixed drug overdose caused Mr. Millers death. Rather, he stated:

I consider that there is no reason for me not to accept that if
    toxicity caused the event, then it should certainly have occurred before 03:00,
    based on the clinical history of Mr. Miller from 17:30 to 03:00. I therefore
    accept [the respondents experts] evidence that it is highly improbable that
    the spectrum [of symptoms of opioid toxicity] could have occurred between 03:00
    and 4:30.

THE ISSUES ON APPEAL

[28]

The
    appellants submit that the trial judges errors began when he addressed the
    standard of care before causation. They submit that he erred in law and fact
    when he rejected the appellants evidence as to the cause of death. This error
    as to causation, they allege, led him to err in determining the standard of
    care with respect to the appropriate dosage of Dilaudid.

ANALYSIS

[29]

I
    begin by addressing the appellants submission that the trial judge erred by
    deciding the standard of care before causation. It is submitted that a finding
    that the cause of death was mixed drug toxicity  as determined by the coroner -
    would have impacted the trial judges finding on standard of care. The trial
    judge, they argue, treated causation as a throw away and then made mistakes that
    infected his determination of negligence.

[30]

The
    appellants rely on
Meringolo v. Oshawa General Hospital
(1991), 46
    O.A.C. 260 (C.A.), leave to appeal refused, 50 O.A.C. 159 (S.C.C.), to support
    the position that causation must be determined before duty of care. In that decision,
    Osborne J.A. wrote, at para. 56:

The [cause of the brain damage] is, in my view, preliminary
    to the traditional negligence causation question, that is, whether it has been
    established that a tortfeasors conduct (breach of duty) caused a plaintiffs
    injury.
In this case, before the breach of duty issue can be appropriately
    addressed, what happened in the operating room ... must be determined in order
    to provide an answer to the question, what caused the appellants brain damage,
    or, to put it more broadly, how did the appellant sustain brain damage. It is
    only after that issue is examined that the issue of the respondents alleged
    negligence should be considered. [Emphasis added.]

[31]

In
    a later case,
Grass v. Women's College Hospital
(2001), 144 O.A.C. 298
    (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 372, this court applied
Meringolo
,
    with Catzman J.A. writing, at para. 12:

[T]he trial judge in the present case disposed of the action by
    finding that the appellants had failed to establish negligence on the part of
    Dr. Weisberg
and thereby finding it unnecessary to assess the conflicting
    theories relating to causation.
In doing so, he fell into the error
    articulated in
Meringolo
. The resolution of the question of causation
    might have led to different findings of fact with respect to what transpired in
    the labour room and to a different conclusion with respect to negligence. As in
Meringolo
, the appellants were entitled to the benefit of the trial
    judge's findings with respect to causation or to his determination, on the
    basis of a consideration of all of the evidence that such findings could not be
    made, before he came to address the issue of negligence. [Emphasis added.]

[32]

In
    both
Meringolo
and
Grass
,

the trial judge had not
    resolved the factual disputes surrounding causation, and this court held that
    findings of fact about causation, had they been made, could have influenced the
    determination of whether the standard of care had been breached.

[33]

The
    concerns expressed in
Meringolo
and
Grass
are fact-specific
    and, in any event, are not at issue in this case. In each of those cases, the
    plaintiffs theory of causation was a crucial component to a determination of
    the standard of care.  In each of those cases, the trial judge, having first
    considered the standard of care, failed to address or make findings on
    causation.  This is not such a case. The trial judge here considered causation
    and rejected the appellants theory in relation to it.

[34]

That
    the trial judge addressed causation after the standard of care is not an error. 
    The Supreme Court has established that there are requirements that must be met
    to establish negligence. The requirements are sequential and separate. The
    plaintiff must demonstrate that:

1.

the defendant
    owed a duty of care;

2.

the defendants
    behaviour breached the standard of care;

3.

the plaintiff
    sustained damage; and

4.

the damage was
    caused, in fact and in law, by the defendants breach.

(See:
Cleveland
    v. Whelan
, 2011 ONCA 244, 277 O.A.C. 178, at paras. 32-33, citing
Mustapha
    v. Culligan of Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3).

[35]

The
    trial judges analysis targeted each of these requirements in sequence. I
    therefore do not agree that he erred in his approach to the standard of care
    and causation issues. He considered the standard of care first, then causation.
    I will do the same.

Standard of Care

[36]

Four
    physicians testified as expert witnesses. The experts agreed that the switch
    from morphine to Dilaudid at 5 p.m. on July 15 was appropriate. They agreed
    that Dilaudid is a more powerful opioid than morphine and that the conversion
    factor between the two is generally accepted to be 1:5. They disagreed about
    the appropriateness of the dosage of Dilaudid prescribed to Mr. Miller. The
    appellants witnesses said that Mr. Miller was opioid naïve and therefore
    should have been started at a lower dose. The respondents witnesses said that
    the dose was appropriate because Mr. Miller had not responded to increasing
    doses of morphine and this had to be taken into account in determining the
    starting dose of Dilaudid.

[37]

Dr.
    Brian Goldman and Dr. Alan Drummond testified for the appellants. Dr. David Juurlink
    and Dr. Gerald Rowland testified for the respondent.

Appellants

Expert

Evidence

[38]

Dr.
    Goldman was qualified as an expert to give an opinion with respect to the
    dosages of morphine and Dilaudid to be used. He has practised in the area of
    chronic pain management for about 10 years and has prescribed morphine and
    Dilaudid intravenously many thousands of times.

[39]

Dr.
    Goldman explained the practice of titration, by which physicians slowly
    increase opioid dosage while monitoring the patient in order to find the
    optimum dose for that particular patient. He testified that, in switching a
    patient from morphine to Dilaudid, the appropriate clinical practice is to
    start at a low dose and titrate upwards. Dr. Goldman opined that it is not safe
    to assume that, because a patient has not had an adverse reaction to morphine,
    they will not have one to Dilaudid  they are different opioids and work in
    different ways on the human body. In establishing the starting dose of
    Dilaudid, the physician should consider only the last dose of morphine, not the
    amount administered over the last four hours. In Dr. Goldmans opinion, it was
    not possible for Mr. Miller to have become tolerant to the analgesic effects of
    opioids during the less than 35 hours that he was hospitalized.

[40]

Dr.
    Goldman opined that the 5 mg dose of Dilaudid given to Mr. Miller was an
    egregiously excessive dose of  Dilaudid compared to usual practice. As Mr.
    Millers last dose of morphine was 10 mg, the respondent should have started
    him on 1-2 mg of Dilaudid every three hours and titrated upward from there. Dr.
    Goldmans opinion was that the respondent failed to meet the standard of care
    by prescribing the 5-10 mg dose of Dilaudid every 4 hours. According to Dr.
    Goldman, the respondent did this because he mischaracterized Mr. Miller as
    being opioid tolerant when he was in fact opioid naïve.

[41]

Dr.
    Drummond was qualified as an expert in general family medicine and the dosing
    of Dilaudid. Dr. Drummond, a family physician, has a certification in emergency
    medicine, experience as an anaesthetist and 20 years service as a coroner. He
    has prescribed intravenous morphine or Dilaudid on thousands of occasions.

[42]

Dr.
    Drummonds evidence was that, in switching a patient from morphine to Dilaudid,
    the physician should start with a lower dose of Dilaudid and titrate up (or
    down) to achieve pain relief. He shared Dr. Goldmans view that it was not
    appropriate, in determining the starting dose of Dilaudid, to consider the
    amount of morphine given in the previous four hours and that a patients lack
    of response to morphine cannot justify a higher starting dose of Diluadid 
    they are two distinctly different medications.

[43]

Dr.
    Drummonds opinion was that Mr. Miller was opioid naïve and the dosage of 5-10
    mg of Dilaudid was shocking and not in accordance with the appropriate
    standard of care, which would have been to give Mr. Miller a 1-2 mg starting
    dose of Dilaudid.

Respondents

Expert

Evidence

[44]

Dr.
    Juurlink is the Director of Clinical Pharmacology and Toxicology at the
    University of Torontos Faculty of Medicine. He is board certified in both
    medical toxicology and internal medicine. He was qualified as an expert in the
    administration and the effect of opioids, in particular morphine and Dilaudid.

[45]

Dr.
    Juurlink disagreed with the appellants experts on the issue of opioid
    tolerance. Although he agreed that it is unlikely a person would become opioid
    tolerant in the span of a day or two, he stated that a person who has received
    multiple doses of morphine cannot be considered opioid naïve in the true sense.
    He said:

[W]here someone has received a drug for a day or so, you
    couldnt rightly call them naïve because you have some sense of how they have
    responded to the drug in positive or negative ways.

[46]

Dr.
    Juurlink explained that the term opioid naïve can be used in different ways.
    On the one hand, a patient who has not previously received the drug and
    therefore might experience a more dramatic effect would be considered naïve. On
    the other hand, the description naïve is not entirely accurate when a patient
    has been receiving opioids, albeit for a shorter time than that required to
    become opioid tolerant. With respect to Mr. Miller, Dr. Juurlink stated that it
    was not correct to say he was opioid naïve because he had received morphine and
    there had been no overt signs of toxicity, and minimal benefit.

[47]

Dr.
    Juurlinks testified that the morphine given to a patient before the switch to
    Dilaudid must inform the proper starting dosage of Dilaudid. He opined that, in
    this case, 5 mg of Dilaudid was a perfectly appropriate starting dose because
    Mr. Miller had received about 20 mg of morphine in the five to six hours prior
    to the switch, which had not afforded him much pain relief. He therefore
    disagreed with the appellants experts that the starting dose of Dilaudid
    should be calculated based on the last individual dose of morphine. He did
    agree that administering 10 mg would have been excessive. However, it would
    have been inappropriate and would have caused undue suffering to have
    switched Mr. Miller to an inadequate dose of 1-2 mg Dilaudid. In his view,
    the change from morphine to Dilaudid was itself an act of titration.

[48]

Dr.
    Rowland was qualified as an expert with respect to the standard of care of a
    general practitioner. He has been a general practitioner in Tillsonburg,
    Ontario since 1979, and has been on the active staff of the Tillsonburg
    District Memorial Hospital since 1980. He has treated patients with morphine
    and Dilaudid on several occasions, most recently three weeks before he
    testified. He has held a number of roles with the College of Physicians and
    Surgeons of Ontario pertaining to physician oversight and discipline, including
    having served as President of the College.

[49]

Dr.
    Rowland testified that the respondent met the standard of care. He opined that
    it would not be appropriate to determine the correct dosage of Dilaudid without
    regard to the quantities of morphine that had been administered without effect.
    That would be akin to treating the patient as though he had just come in off
    the street. The physician should give enough of the medication to relieve the patients
    pain.

[50]

Dr.
    Rowlands opinion was that the respondents order of 5 mg of Dilaudid as the
    starting dose met the standard of care and was in keeping with the principles
    of pain management with opioids. He called it a wise thing to do.

[51]

Dr.
    Rowland agreed with Dr. Juurlink that the 20 mg of morphine administered in the
    four hours prior to the first dose of Dilaudid was the appropriate amount upon
    which to base the conversion to Dilaudid. He stated:

[O]ver the previous four hours he had 20 milligrams of
    morphine. By all of the clinical experience that I have had, that is the
    appropriate figure to use when calculating a conversion, not the 10 milligrams
    given an hour and a half before or whatever. So  the equivalent dose would be
    4 milligrams, it wasnt effective, it wasnt showing adverse effect[s], it was
    reasonable to increase the dosage [to 5 mg] at that point in time.

[52]

Although
    Dr. Rowland described Mr. Miller as opioid tolerant in his report, he
    testified that he was using this phrase in a clinical, rather than
    pharmacological sense:

What I was attempting to do  was to indicate what was
    happening clinically rather than strictly physiologically or pharmacologically
    to Mr. Miller.... [W]hat was happening was that he was resistant to the pain
    relieving effects of the morphine that he was originally administered and that
    was what I was intending to imply. I was not intending to imply that he had
    developed opioid-tolerance for whatever reason previous to his arrival at the
    hospital.

[53]

Dr.
    Rowland said that Mr. Miller demonstrated resistance to morphine. He was not
    receiving effective pain relief and he was not showing any of the adverse side
    effects of opioid over-dosage, such as sedation or the loss of sensorium.

Trial

Judges

Conclusions

[54]

The
    trial judge accepted the respondents expert evidence. He concluded that the
    respondent had met the standard of care and that the dosage of Dilaudid was
    appropriate.

[55]

The
    appellants submit that the trial judge found that Mr. Miller was opioid
    tolerant and that this was an error. They point to this statement in the
    reasons: I accept Dr. Juurlinks evidence that an inference can be drawn that Mr.
    Miller was opioid tolerant.

[56]

When
    the trial judges reasons are read in their entirety, it is clear that he was
    using the term not in the strict definition but in accordance with the
    qualifications explained by Drs. Juurlink and Rowland. He recognized that a
    person cannot become opioid tolerant in the amount of time that Mr. Miller had received
    morphine. However, he also accepted the respondents expert evidence that the prior
    doses of morphine should inform the starting dose of Dilaudid. In doing so, the
    trial judge was not, as the appellant submits, making a finding that Mr. Miller
    was opioid tolerant. Rather, he was speaking in a different sense, as is
    evident when the sentence the appellants seize upon is set out in its full
    context. The trial judge wrote:

I find it reasonable to find that Mr. Miller was not
    necessarily, in the
strict definition
, opioid naïve at the time Dilaudid
    was administered, and therefore, as the evidence of Drs. Goldman and Drummond
    is based on him being naïve, their evidence should be given less weight than
    that of Drs. Rowland and Juurlink. I accept Dr. Juurlinks evidence that an
    inference can be drawn that Mr. Miller was opioid tolerant. [Emphasis added.]

[57]

To
    further demonstrate this point, the trial judge acknowledged later in his
    reasons that Mr. Miller was not technically opioid tolerant:

Regardless of the
strict definition
, I can only find
    that with no reaction of pain relief from the morphine, it is clear that it was
    having no effect on Mr. Miller. From a non-medical perspective, that suggests
    to me that his body was, in fact, tolerant to the morphine and he could not be
    considered opioid naïve when the Dilaudid was administered. [Emphasis added.]

[58]

The
    appellants argue that the above statements by the trial judge show that he
    erroneously conflated opioid tolerance with analgesic effect. Yet, it clearly was
    open to the trial judge to accept the evidence of Dr. Juurlink and Dr. Rowland
    that the dosages of morphine and their lack of effect on Mr. Miller properly
    informed the starting dosage of Dilaudid. The fact that Mr. Miller had been
    receiving morphine and that it had not been effective in relieving his pain was
    information that the respondent properly could use in establishing the starting
    dose of Dilaudid. The appellants and respondents witnesses specifically spoke
    to the need to treat the individual. As the trial judge wrote:

What is apparent from the evidence, and as acknowledged by all
    of the medical witnesses, is that treatment involving the use of opiates is
    highly individualized. It is a matter of clinical judgment and physicians can
    differ in clinical judgment.

[59]

All
    the medical witnesses agreed that the proper opioid dose is one which relieves
    pain.

[60]

The
    appellants submit that [t]he threshold standard of care issue in this case was
    whether [Mr. Miller] was opiate naïve or whether he was opiate tolerant. This,
    they submit, determines the appropriate dosage of Dilaudid.

[61]

I
    disagree. By framing the issue in this way, the appellants ignore the evidence,
    accepted by the trial judge that Mr. Miller was treated as opioid naïve on his
    admission and that, by 5 p.m. on the following day, there was additional
    information upon which to base the dosage. That is, whether one characterizes
    Mr. Millers clinical response to morphine as tolerant or resistant, it is
    undisputed that morphine was having little to no analgesic effect. The trial
    judge accepted the evidence of two highly qualified expert witnesses that,
    based on Mr. Millers lack of response to morphine, including no symptoms of
    respiratory depression, the respondents prescription for a starting dose of 5
    mg of Dilaudid met the standard of care. This finding was open to the trial
    judge and, in my view, does not evince any palpable and overriding error.

[62]

In
    summary, the trial judge clearly understood the divergence in the medical
    evidence and accepted the opinions of Dr. Juurlink and Dr. Rowland in concluding
    that the respondents Dilaudid prescription did not fall outside the reasonable
    range of judgment calls that would be made by a prudent and diligent
    hospitalist in similar circumstances. I see no basis on which to interfere with
    this determination.

Causation

[63]

The
    appellants submit that the trial judge erred in law and made factual errors
    when he rejected the coroners determination as to Mr. Millers cause of death.
    The appellants theory of causation was that a mixed overdose of morphine and
    Dilaudid led to respiratory depression and death.

[64]

The
    appellants submit that, because they put forth extensive evidence to support their
    theory and the respondent did not lead sufficient evidence to support an
    alternative, the trial judge was required to accept the appellants theory of
    causation. By rejecting their theory, the appellants argue, the trial judge
    erred in law. They rely on
Ediger v. Johnston
, 2013 SCC 18, [2013] 2
    S.C.R. 98, to support the following submission in their factum:

If the experts for [the] plaintiff and the defendant have
    conflicting theories [of causation], the court must consider if the defendant
    has introduced sufficient evidence to displace the plaintiffs theory of
    causation  not just another theory but evidence in support of that theory.

[65]

I
    do not read
Ediger
to support the appellants submission. The Supreme
    Court of Canadas decision in that case makes it clear that the drawing of
    inferences against a defendant is permissive, not mandatory. As Rothstein and
    Moldaver JJ. wrote for the court, at para. 36:

The trier of fact
may
, upon weighing the evidence, draw
    an inference against a defendant who does not introduce sufficient evidence
    contrary to that which supports the plaintiffs theory of causation. [Emphasis
    added.]

[66]

The
    burden nonetheless remains with the plaintiff, as stated at para. 39:

Faced with  conflicting expert testimony on the feasibility of
    [the plaintiffs theory of causation] and evidence of other potential causes,
    it was incumbent upon [the trial judge] to weigh the evidence before her and
    determine
whether [the plaintiff] had proven causation on a balance of the
    probabilities
. [Emphasis added.]

[67]

Dr.
    Juurlink testified about the cause of death and disagreed with the coroners
    conclusion that a mixed opioid overdose was the cause. He described the
    spectrum of predictable features that a person exhibits before dying of an
    opioid overdose:

[T]he person would initially become sleepy. They would then 
    and might be rousable, but they would then effectively be asleep and then
    unrousable. In conjunction with that their breathing would slow. It might
    still be a deep breath, but it would tend to slow, 10, 8, 6 breaths per minute.
    And these things happen invariably before someone dies of opioid toxicity. And
    so the primary reason why I disagree  with the coroner and the others  is
    that it seems very clear to me from reviewing the record that [Mr. Miller] did
    not exhibit those features. I cannot envision  any way in which someone dies
    of an opioid overdose without exhibiting those features.

[68]

Dr.
    Juurlink later stated:

Even 30 minutes after he is given his final dose of opioid, [Mr.
    Miller] is communicative. He is apologetic. He seems rational. People who are
    about to die of opioids cannot be roused. They cannot be awakened. And so the
    picture [of Mr. Miller] is vastly different from the picture of a patient who
    is about to succumb to the accumulative effects of opioids administered in the
    hours beforehand.

[69]

Dr.
    Juurlink rejected the suggestion that Mr. Miller could have progressed through
    the full spectrum of symptoms of an opioid overdose in the time in which he was
    unobserved, between 3:00 a.m. and 4:30 a.m., on the day of his death. In his
    opinion, had Mr. Miller died of an opioid overdose from the Dilaudid
    administration, some of the toxicity symptoms would have manifested themselves
    earlier that night. He said:

[N]ot only would he have been expected to die fairly soon, at
    least some of the signs of toxicity would manifest before that and as far as I
    can tell they didnt.

[70]

Dr.
    Juurlink also opined that the post-mortem levels of Dilaudid in Mr. Millers
    blood were too low to suggest an overdose.

[71]

Dr.
    Rowland testified that, in his experience, adverse effects from intravenous
    opioids are usually seen within 20 minutes after administration. His view was
    that monitoring a patient 15-30 minutes after administration of Dilaudid for
    signs of over-sedation, such as loss of alertness or breathing difficulties,
    was a completely reasonable approach as adverse side effects would be
    detectable in this time period.

[72]

This
    evidence provided an adequate basis for the trial judge to conclude that the
    appellants had failed to prove causation on a balance of the probabilities. Although
    this was contrary to the conclusion of the coroner, I note that the coroners
    conclusions were also based on a balance of probabilities and not a higher
    standard of proof. The trial judge clearly preferred the evidence of the
    respondents experts on causation and rejected the appellants theory on that
    basis. In my view, it was open to him to do so.

[73]

In
    this case, most of the facts underlying the respondents attack on the
    appellants theory of causation were not in dispute: (i) Mr. Miller presented
    with excruciating pain and fever before a single opioid had been administered;
    (ii) the pain continued unabated until shortly before his death; and (iii) Mr.
    Miller was never observed with symptoms of respiratory depression after two 5
    mg doses of Dilaudid, nor in the 30 minutes after the third, tragically final,
    dose. In my view, it was open to the trial judge on these undisputed facts, given
    the respondents expert evidence, to reject the appellants theory of
    causation.

[74]

The
    appellants argue that the trial judge made two factual errors that undermine
    his findings on causation. First, the trial judge wrote that Mr. Miller came
    into the hospital after 2 days of acute pain. The appellants correctly point
    out that Ms. Shantrys evidence was that Mr. Miller was in acute pain for less
    than 2 hours on July 14, 2007 before arriving at the emergency room. The
    appellants argue that the trial judges factual error underlay his inference
    that Mr. Miller died from a significant pre-existing medical issue.

[75]

I
    would reject this submission. When Mr. Miller arrived at hospital, and
    throughout his time there, it was clear that he was very ill, possibly with a
    viral infection. He was in excruciating pain and had a fever. The trial judges
    rejection of the appellants theory as to cause of death does not depend upon
    Mr. Miller being in pain for two days. The respondents theory of causation 
    an unidentified condition, possibly a viral infection  was in no way dependent
    on a finding that he was in pain for days prior to his arrival at the hospital.

[76]

The
    second factual error alleged was that the trial judge wrote that Mr. Millers clinical
    presentation did not accord with death by overdose, as there were no symptoms
    of overdose up until 3 a.m. on the night of his death. This statement, it is
    argued, ignores the evidence that an adverse reaction to Dilaudid could occur 20
    minutes to 3.5 hours after a dose. Mr. Miller was last observed alive by the
    night nurse about 30 minutes after his third dose of Dilaudid, meaning that his
    death occurred squarely within the time range indicated in the medical
    evidence. The appellants submit that, by making his impugned comment, the trial
    judge ignored or forgot about the last dose of Dilaudid.

[77]

I
    would reject this submission. The trial judges statement is supported by the
    evidence of Dr. Juurlink, who rejected the suggestion that an adverse reaction
    to Dilaudid could have taken place after 3 a.m. Dr. Juurlink said this:

Its extraordinarily improbable because it presupposes that all
    of his toxicity manifested, all of the harmful effects that Ive described to
    you earlier manifested after a delay not just following the final dose of
    [Dilaudid], but after an even more considerable delay after the first and
    second doses. So it would  be tantamount to suggesting that all of the
    toxicity of all of the opioids he had received in the 12 to 24 hours before he
    died was somehow brought to bear on him in this period after the delay that
    youve just outlined and that is very difficult for me to accept.

[78]

This
    evidence supports the trial judges implicit conclusion that the effects of an
    overdose would have manifested by 3 a.m. on the day of Mr. Millers death.

[79]

I
    conclude that the trial judge did not err in his finding on causation.

DISPOSITION

[80]

I
    do not agree that the trial judges approach to liability was flawed. Nor do I
    accept that he erred in his determinations of the standard of care and
    causation.

[81]

I
    would dismiss the appeal. The parties advised the court that they would resolve
    costs on their own.

Released: S.E.P.  June 4, 2015

M.L. Benotto J.A.

I agree E.A. Cronk
    J.A.

I agree S.E. Pepall
    J.A.


