



COURT OF APPEAL FOR ONTARIO

CITATION: Ghiassi v. Singh, 2018 ONCA 764

DATE: 20180920

DOCKET: C64628

Sharpe, van Rensburg and Brown JJ.A.

BETWEEN

Taha Ghiassi, Pouya
    Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh
    Ghiassi personally, and Taher Ghiassi

Plaintiffs (Respondents)

and

Ram Nivas Singh, Aleksander Kornecki, Doreen
    Miyako Matsui, Gurinder Singh Sangha,
Sandra Oswald
,
London Health
    Sciences Centre
, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin

Defendants (
Appellants
)

Simon Clements and Jessica DiFederico, for the
    appellants

Gavin MacKenzie, Barbara Legate, and Brooke MacKenzie,
    for the respondents

Heard: September 4, 2018

On appeal from the
    judgment of Justice Lynne Leitch of the Superior Court of Justice, dated October
    31, 2017, with reasons reported at 2017 ONSC 6541.

REASONS FOR DECISION

FACTS

[1]

The plaintiff Taha Ghiassi was born at London Health Sciences Centre
    (LHSC) on December 22, 2005. Because of his condition at birth, he was cared
    for by paediatricians and nurses in the Paediatric Critical Care Unit and
    subsequently the Clinical Teaching Unit at LHSC for several days.

[2]

At 21:00, December 25, Nurse Sandra Oswald took Tahas temperature and
    noted a change in Tahas colour. He was pink and slightly yellow, which indicated
    that he was slightly jaundiced. Taha only took 10CCs when Nurse Oswald
    attempted to bottle feed him. Nurse Oswald made a notation that Mom plans to
    nurse when able.

[3]

At 7:00, December 26, Nurse Oswald reported Tahas change in colour and
    jaundice to the incoming shift nurse. That nurse assessed Taha at approximately
    8:30. At 8:45, she took a blood sample without a physicians order and sent it
    to the lab to conduct a test to determine Tahas bilirubin level. Bilirubin is
    a waste product in the blood that is a toxin in the brain at high enough
    concentrations. An increased bilirubin concentration is associated with
    jaundice. Jaundice is common in newborns due to immaturity of the liver. The
    lab report at 10:00 indicated severe hyperbilirubinemia, a higher than normal
    level of bilirubin in the blood. The bilirubin level was only slightly less
    than the threshold for critical hyperbilirubinemia, which has the potential to
    cause long-term neurological impairment.

[4]

Phototherapy (putting the infant under lights to reduce the bilirubin
    concentration) was commenced at 11:00. Taha was still neurologically intact at
    this time. Tahas bilirubin level dropped slightly but by 15:00 he began to
    show signs of neurological damage. Further treatment proved unsuccessful and he
    developed the neurological condition kernicterus, caused by his
    hyperbilirubinemia. As a result of kernicterus, Taha suffers from severe
    deficits including dyskinetic cerebral palsy, moderate to severe hearing loss,
    visual impairment, developmental delays, and intellectual disability.

[5]

Taha, his parents, and his two older siblings commenced this action
    against LHSC, Nurse Oswald, and seven doctors involved in treating Taha.

[6]

Before the trial, the parties agreed on the damages that the plaintiffs
    sustained in the amount of $9,500,000.00. At the beginning of trial, the
    plaintiffs settled the claims against the seven doctors and the trial proceeded
    against Nurse Oswald and LHSC.

[7]

After a 12 day trial, the trial judge found that Nurse Oswald fell below
    the standard of care by failing to report to the resident pediatrician on duty
    the onset of jaundice when she noted that condition at 21:00, December 25. In
    her careful and detailed reasons, the trial judge found that but for Nurse
    Oswalds negligence, a resident would have ordered a blood test for bilirubin
    at 24:00. Relying on the timing of the introduction of phototherapy on the
    morning of December 26 after a blood test was finally done, the trial judge
    found that phototherapy to reduce Tahas level of bilirubin would have
    commenced not later than 2:15, December 26. Had that occurred, she found that Taha
    would not have developed kernicterus.

[8]

Nurse Oswald and LHSC appeal Leitch J.s findings on the issue of
    causation only. They do not quarrel with her finding that Nurse Oswald fell
    below the appropriate standard of care.

ISSUES

[9]

The appellants raise three issues in this essentially fact-driven
    appeal:

(1)

Was the trial judges finding of
    causation tainted by her error in relying on what a reasonable resident would
    have done if Nurse Oswald had reported jaundice at 21:00, December 25?

(2)

Did the trial judge err by
    inferring causation in the absence of expert evidence that Taha would not have
    developed kernicterus had phototherapy been commenced at 2:15, December 26?

(3)

Did the trial judge err in
    finding that the conversation between Nurse Oswald and Tahas mother took place
    at 21:00, December 25?

[10]

It
    is common ground that the trial judges factual findings attract deference on
    appeal and can only be upset if they reveal palpable and overriding error.

ANALYSIS

(1)

Was the trial judges finding of causation tainted by her error in
    relying on what a reasonable resident would have done if Nurse Oswald had
    reported jaundice at 21:00, December 25?

[11]

The
    trial judge found that had Nurse Oswald reported the jaundice and other risk
    factors, the resident on duty that night, Dr. Saleh, or a reasonably competent
    resident, would have responded promptly and ordered blood to be drawn for a
    bilirubin test the next time Taha was handled at 24:00. In making this finding,
    the trial judge relied on the opinion of the respondents causation expert, Dr.
    Michael Marrin, that a competent resident would order a blood test at the next
    handling episode. The trial judge also treated the evidence of another resident
    who testified, Dr. Sangha, as a proxy for the evidence of Dr. Saleh, who did
    not testify. She based this on the fact that Drs. Sangha and Saleh had
    equivalent levels of knowledge and experience.

[12]

The
    appellants submit that the trial judge erred in making this finding for several
    reasons. First, Dr. Saleh was not called as a witness and without his evidence
    as to what he would have done, there was a fatal gap in the evidence required
    to prove causation. Second, Dr. Marrin testified that he thought the entire
    medical staff on the unit lacked competence and it follows that the trial judge
    erred in finding that the resident on duty would have lived up to the standard
    of a reasonably competent resident. Third, they argue that the trial judge misapprehended
    the evidence of Dr. Sangha as to when he would have ordered the blood test. It
    is the appellants position that even if Nurse Oswald had reported the jaundice
    at 21:00, the resident would not have ordered a bilirubin test until the start
    of the morning shift on December 26.

[13]

We
    do not agree with these submissions.

[14]

The
    trial judge refused to draw an adverse inference from the failure to call Dr.
    Saleh who was available to both parties. That decision is not challenged on
    appeal.

[15]

The
    combination of Dr. Marrins evidence about what a reasonably competent resident
    would have done and what Dr. Sangha said he would have done provide a
    reasonable foundation for the trial judges finding. Dr. Sangha testified that
    in the normal course he would order a bilirubin test as soon as he was made
    aware that an infant under his care was evidencing signs of jaundice. That
    corresponded to Dr. Marrins evidence of what he would expect a reasonably
    competent resident to do. While at a later point in his evidence, Dr. Sangha
    stated that in some circumstances he might wait for the next blood test to be
    taken, that evidence did not take into account the added risk factors that
    Nurse Oswald should have reported in addition to the early signs of jaundice.
    In any event, the trial judge was entitled to prefer Dr. Sanghas earlier and
    unqualified evidence that he would have ordered the test as soon as he became
    aware of the presence of jaundice.

[16]

Finally,
    we agree with the respondents that the trial judge did not err by refusing to
    adopt the appellants submission that they should escape liability by pointing
    the finger at the hypothetical negligence of a physician that might have caused
    the loss in any event.

[17]

If
    Nurse Oswald and the night resident had been cumulatively negligent, the law
    would not allow each of them to point to each others negligence to rebut a
    finding of causation. In
Sacks v. Ross
, 2017 ONCA 773, 417 D.L.R.
    (4th) 387, this court stated, at para. 116:

Generally
    speaking, with respect to delayed diagnosis medical negligence cases involving
    multiple tortfeasors, it ought not to be possible for any one of the negligent
    tortfeasors to sidestep liability on the basis that there was sufficient
    cumulative delay resulting from the negligent acts or omissions of other
    defendants so that it could not be proven under
Clements
that the
    defendants particular contribution was necessary  that the injury would
    still have been incurred but for the negligent act or omission.

[18]

Accordingly,
    it would be incongruous to permit Nurse Oswald to escape liability by pointing
    to another physicians hypothetical negligence. If an additional defendants
    actual negligence does not provide a defence in a delayed treatment case, it
    follows that the hypothetical negligence of a third party should not provide a
    defence.

(2)

Did the trial judge err by inferring causation in the absence of expert
    evidence that Taha would not have developed kernicterus had phototherapy been
    commenced at 2:15, December 26?

[19]

The
    central issue on this appeal is whether the trial judge erred in finding that
    it was more likely than not that Tahas kernicterus would have been prevented
    had phototherapy been initiated at 2:15 on December 26. In coming to that
    conclusion, the trial judge relied on Dr. Marrins unchallenged evidence that
    Taha would not have developed kernicterus if phototherapy had been initiated at
    either 21:00 on December 25, or 24:00 on December 26.

[20]

The
    appellants submit that as Dr. Marrin was never asked whether Tahas kernicterus
    would have been prevented had phototherapy been initiated at 2:15, the trial
    judges finding on causation amounts to speculation. They assert that the trial
    judge, in effect, could only come to that conclusion by acting as her own
    expert.

[21]

We
    disagree.

[22]

It
    is important to place this issue in the context of how this trial unfolded. As
    we have already noted, the appellants called no expert evidence on causation.
    They simply rested on the theory that the respondents had failed to prove
    causation. During the evidentiary part of the trial, the parties posed two
    conflicting theories. The respondents theory was that had Nurse Oswald
    reported jaundice at 21:00, the resident would have immediately ordered a
    bilirubin test and phototherapy would have been commenced shortly thereafter.
    The defendants took the position that it was acceptable to wait until the
    morning to do a blood test and that even if Nurse Oswald had reported the
    jaundice at 21:00, phototherapy would not have commenced until the morning. It
    was during oral argument that the appellants first advanced the argument that
    even if Nurse Oswald had reported jaundice at 21:00 on December 25,
    phototherapy would not have started until 2:15 on December 26. Only then did
    the appellants submit that in the absence of expert evidence that starting
    phototherapy at that time would have prevented Taha from developing kernicterus,
    the respondents had failed to prove causation.

[23]

The
    trial judge rejected that contention, at para. 552, on the basis of twelve
    facts she found to support her finding. Among those facts were:

·

Dr. Marrins unequivocal and certain evidence that no injury
    would have occurred if phototherapy had been initiated at 24:00 on Dec. 26;

·

That phototherapy is effective in blunting the rise and reducing
    the level of bilirubin;

·

That when phototherapy was introduced the next morning, Tahas
    bilirubin declined; and

·

That Taha was still neurologically intact at 11:00 am, December
    26 and did not exhibit signs of neurological damage until 15:00.

[24]

In
    our view, it was open to the trial judge to infer from this evidence that the
    introduction of phototherapy at 2:15 would have prevented Taha from developing
    kernicterus. This did not amount to the trial judge speculating or acting as
    her own expert. The only expert evidence available, combined with the evidence
    as to how Tahas condition progressed from the point at which jaundice first
    appeared to the point at which he began to show signs of neurological damage,
    provided a solid factual foundation for the inference the trial judge drew.

[25]

The
    appellants contention in oral argument that the respondents failure to ask
    Dr. Marrin whether phototherapy commenced at 2:15 would have been effective
    amounts to a fatal flaw is unpersuasive. The appellants called no expert
    evidence on causation and did not give the respondents or Dr. Marrin the
    opportunity to address that contention by putting it to him in
    cross-examination. The trial judges treatment of the evidence is entirely
    consistent with the principles set out in
Snell v. Farrell
, [1990] 2
    S.C.R. 311. As Sopinka J. stated, at p. 330, in the absence of evidence to the
    contrary by the defendant, an inference of causation may be drawn although
    positive or scientific proof of causation has not been adduced.

[26]

The
    appellants submit that the trial judges reliance on Dr. Marrins evidence that
    the direction of change was a rising bilirubin not a falling bilirubin and
    the rise was linear taints her finding of causation. They submit that the
    trial judge misapprehended Dr. Marrins evidence. While Dr. Marrin did testify
    that there is a linear rise in bilirubin if an infant has physiological
    bilirubin, he testified that the rise in cases of pathologic bilirubin falls
    outside of that pattern. Taha had pathological bilirubin. Because Taha had
    pathologic jaundice, the appellants argue that it is impossible to say how
    quickly his bilirubin level would have risen.

[27]

We
    disagree. First, there is nothing on the evidence to suggest that pathological
    bilirubin could have developed before 2:15 on December 26 or that Tahas
    bilirubin levels exhibited sudden or unpredictable jumps. Second, this is
    merely one fact in a long list of facts that support the trial judges
    inference. Even if the trial judge erred by relying on the linear progression
    of bilirubin, that error was not overriding or sufficient to affect the
    outcome.

[28]

Contrary
    to the respondents submissions, this case is readily distinguishable from delayed
    treatment cases in which this court found there was no evidence of causation.
    In
Cottrelle v. Gerrard
(2003), 67 O.R. (3d) 737 (C.A.), the expert
    evidence was that the plaintiff would have lost her leg even if the defendant
    physician had not been negligent and the expert evidence at best showed loss of
    a chance: at paras. 3, 23. In
Aristorenas v. Comcare Health Services
(2006), 83 O.R. (3d) 282 (C.A.), no experts were qualified to give evidence
    about the disease in question and none of the experts testified that the delay
    in treatment increased the likelihood of contracting the disease: para. 71. In
Barker
    v. Montfort Hospital
, 2007 ONCA 282, 278 D.L.R. (4th) 215, the court found
    that the organ in question had likely died prior to the delay in treatment: at
    paras. 40-41. In
Salter v. Hirst
, 2011 ONCA 609, 107 O.R. (3d) 236,
    the plaintiffs experts led no evidence about what would have happened if the
    plaintiff had been transferred to the hospital without the delay: at paras. 12,
    15-16.

[29]

Finally,
    we agree with the respondentss submission that if there is a gap in the
    evidence about what would have happened had phototherapy been introduced at
    2:15, that gap was the product of Nurse Oswalds negligence. Her failure to
    order the test is the reason there is no data point as to the bilirubin level
    at 2:15. Nurse Oswald should not be permitted to rely on the lack of evidence
    that her own negligence produced see
Goodwin v. Olupona
, 2013 ONCA 259,
    305 O.A.C. 245, at paras. 72-74.

(3)

Did the trial judge err in finding that the conversation between Nurse
    Oswald and Tahas mother took place at 21:00, December 25?

[30]

The
    Agreed Statement of Facts states that at some point during Ms. Oswalds night
    shift on December 25, she had a conversation with Mrs. Ghiassi, Tahas mother.
    Para. 108 of the Agreed Statement of Facts states as follows:

Mrs. Ghiassi attends and asks to
    hold Taha. She asks Nurse Oswald to turn on the lights so she can see him,
    which Nurse Oswald does. She notes his nose is yellow, and he does not arouse
    from sleep. Mrs. Ghiassi asks Nurse Oswald to have his blood tested by the
    doctors in the morning, noting that she has experience with jaundice. She is
    reassured by Nurse Oswald that this is normal jaundice.

[31]

This
    conversation is important because it disclosed to Nurse Oswald several factors
    that increased the risk posed by Tahas jaundice. The trial judge found on the
    basis of the expert evidence on the standard of care that learning these
    factors should have led Nurse Oswald to report the condition to the resident.
    The timing of that conversation was contentious. Tahas mother was uncertain of
    the precise time when the conversation occurred. She testified that it could
    have been at 11:00, maybe 10:00 and later that she thought it was
    midnight11:30 or 2:00 or 1:00 or between 11:00 and 1:00 oclock up or
    down. The appellants argued that the conversation occurred slightly after
    midnight. Nurse Oswald could not recall the time the conversation occurred but
    testified that the information that she noted at 21:00 could have come from the
    information on the medical information system, the fact that Taha was having
    expressed breast milk, or because the initial nursing history obtained on
    admission indicated that Mrs. Ghiassi planned to breastfeed.

[32]

The
    trial judge found as a fact that the conversation took place at 21:00, relying
    on the notation made by Nurse Oswald at that time that Mom plans to nurse when
    able.

[33]

We
    are not persuaded by the appellants argument that this factual finding amounts
    to palpable and overriding error.

[34]

Tahas
    mother was admittedly uncertain in her evidence about the timing, but it was
    open to the trial judge on this record to infer from Nurse Oswalds note that
    the conversation took place at 21:00. Nurse Oswald made no other documentation
    of a visit or information from Tahas mother and she could not recall caring
    for Taha. The trial judge was entitled to privilege the note over the later
    times that Mrs. Ghiassi referred to given that Mrs. Ghiassi made clear that she
    did not exactly remember the time. Mrs. Ghiassis statement that it was late
    evening and that it was night and dark was also consistent with the 21:00
    timing. Moreover, the appellants conceded in oral argument that the crucial
    issue was whether or not the conversation took place before 24:00 and the
    mothers evidence was certainly consistent with that timing.

[35]

Accordingly,
    we would not give effect to this ground of appeal.

DISPOSITON

[36]

For
    these reasons, the appeal is dismissed with costs to the respondents fixed in
    the amount agreed to by the parties, $35,000 inclusive of disbursements and
    taxes.

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.


