



COURT OF APPEAL FOR ONTARIO

CITATION: White v. St.
    Joseph's Hospital (Hamilton), 2019 ONCA 312

DATE: 20190425

DOCKET: C64741

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Paul White, Connor White, Carson White, Marleigh
    White, Mary Ann McConaghy, The Estate of Gerald Francis White Sr., by his
    executor Gerald Francis White, Jr., Gerald Francis White, Jr.

Plaintiffs (Appellants)

and

St. Josephs Hospital (Hamilton), 951743
    Ontario Limited, carrying on business as St. Josephs Health System, St.
    Josephs Health System, formerly, St. Josephs Healthcare System, St. Josephs
    Healthcare Foundation
,
Carol Schweinbenz
, Ved Tandan and Rohit Gupta

Defendants (
Respondents)

Paul Harte and Giuseppe Michelucci, for the appellants

Jessica DiFederico and Simon Clements, for the
    respondents

Heard: November 5, 2018

On appeal from the judgment of Justice Kim
    Carpenter-Gunn, dated November 29, 2017.

Lauwers J.A.:

[1]

The appellant, Paul White, suffered a pinhole bowel leak after a
    routine bowel surgery. The leak was a rare but well recognized risk and a
    potentially life-threatening complication. Mr. White does not argue that the
    leak came about as a result of anyones negligence.

[2]

Mr. Whites claim for damages is based on the delay in treatment because
    the leak was not detected for some time. Mr. White developed sepsis and entered
    septic shock, which required remedial surgery, a course of antibiotics, and a
    stay in the Intensive Care Unit. He later developed an unrelated bowel
    perforation that necessitated a longer hospital stay.

[3]

The trial judge dismissed the action against the hospital, Nurse Carol
    Schweinbenz, and Drs. Ved Tandan and Rohit Gupta. Mr. White appeals the
    decision only in respect of the hospital and Nurse Schweinbenz.

[4]

Mr. White largely seeks to re-litigate the trial judges factual
    findings on the basis that she made palpable and overriding errors in her
    assessment of the evidence along with some related legal errors. He asserts
    that, contrary to the evidence, the trial judge failed to make three findings:

·

Nurse Schweinbenz was negligent in her treatment of Mr. White
    during the overnight period of May 4-5, 2016, thus delaying treatment of the
    leak;

·

the hospital negligently failed to ensure that the antibiotic
    Piperacillin-Tazobactam, also known as Pip-Taz, was properly administered to Mr.
    White, which was a medication error;

·

the medication error combined with Nurse Schweinbenzs negligence
    exacerbated Mr. Whites injury and therefore caused or contributed to it.

[5]

In my view, the trial judge made no palpable and overriding errors of
    fact, or legal errors. The medical evidence supports the trial judges decision.
    I would dismiss the appeal.

A.

Did Nurse Schweinbenzs negligence delay treatment of the leak?

[6]

Nurse Schweinbenz noted that Mr. White had mottled limbs at about 6:15 a.m.
    on May 5 when she decided to give him a bath, suggesting that he was then in
    septic shock. She called for a doctor. He was resuscitated and transferred to
    the Intensive Care Unit at 8:10 a.m.

[7]

Mr. White called Valerie Neely as an expert on the nursing standard of
    care. Her evidence was that the care provided by Nurse Schweinbenz was
    appropriate up to 1:00 a.m. on May 5. Katherine Trip, the nursing expert called
    by the hospital and Nurse Schweinbenz, gave evidence that Nurse Schweinbenz met
    the standard of care throughout. The trial judge preferred the evidence of
    Nurse Trip, whom she found to be better qualified by education, training and
    experience than Nurse Neely.

[8]

Mr. White points to several abnormal changes in his condition
    overnight from the beginning of Nurse Schweinbenzs shift at 7:00 p.m. on May 4
    and into the morning of May 5. The first was a drop in his blood pressure at 10:30
    p.m. The second related to his insufficient urine output. The third related to
    his continuing pain despite medication.

[9]

Mr. White submits that the standard of care required Nurse Schweinbenz to
    report the abnormal changes to the resident on call. Had she reported the
    changes, Nurse Schweinbenz testified that she "would have had to [tell the
    resident Dr. Singh] what Mr. White had done, what his vitals were, how many
    days post-op, who he was a patient of." Mr. White asserts that had the abnormal
    changes been reported, the expert evidence was that a reasonable doctor would
    have come to see him and emergency treatment would have started hours earlier.

[10]

The
    trial judge noted that Nurse Schweinbenz had reported Mr. Whites accelerated
    heart rate to Dr. Singh at 10:00 p.m. who told her to keep a close eye on him.

[11]

The
    trial judge found that Nurse Schweinbenz met the standard of care. She
    addressed each of the changes Mr. White described as abnormal. First, in terms
    of the drop in blood pressure at 10:30 p.m., Nurse Schweinbenz testified that
    she had given morphine to Mr. White one hour earlier, which she thought
    accounted for the drop in his blood pressure, and when she took the next round
    of vital signs around 4:30 a.m. his blood pressure had rebounded. The trial
    judge accepted this evidence. She also drew the inference that Dr. Singh would
    not have attended to assess Mr. White if he had been told his blood pressure at
    11:30 p.m., given that Dr. Singh did not attend when the same vitals were
    eventually reported to him by Nurse Schweinbenz at 2:00 a.m. on May 5. Moreover,
    the trial judge accepted Nurse Schweinbenzs evidence that she spoke to Mr.
    White shortly before 2:00 a.m. and he was lucid and coherent and they had a
    dialogue. The trial judge found that Nurse Schweinbenz was not required to
    insist that Dr. Singh attend and examine Mr. White, and she added that there
    was no evidence before the court as to what would have been done or how the
    outcome for Mr. White would have been different had Dr. Singh attended at that
    time.

[12]

Second,
    the evidence was that Mr. Whites urine output was at the minimum expected
    amount. The evidence also indicated that the dark colour of the urine could
    have been the result of dehydration or from blood resulting from the recent
    surgery or catheter insertion.

[13]

Third,
    there was no expert evidence to support the position that in not reporting Mr.
    Whites continued pain Nurse Schweinbenz was in breach of the standard of care.
    The trial judge found that his vital signs remained relatively stable
    overnight.

[14]

In
    my view, the trial judges findings were available to her on the evidence and
    do not constitute palpable and overriding errors. I would uphold the trial
    judges findings that Mr. White did not prove negligence on the part of Nurse
    Schweinbenz. Did the hospital negligently fail to properly administer
    antibiotics to Mr. White?

[15]

The
    evidence was equivocal regarding the administration of the first dose of Pip-Taz.
    The first order for Pip-Taz was given by Dr. Ward around the time Mr. White was
    resuscitated after 6:15 a.m. on May 5. The order called for a single dose of
    Pip-Taz. The factual issue was whether the first dose of Pip-Taz was actually given
    to Mr. White. The order has a checkmark next to it on the order form. According
    to the trial judge, this signified either that the order had been transcribed
    into the medication administration record, or that the dose had been actually
    administered.

[16]

Nurse
    Neely was asked about Dr. Wards medication order and the meaning of the checkmark
    on the order form. She testified that the checkmark meant that the order had
    been transcribed into the medication administration record. However, because
    the order does not actually appear in the medication administration record, the
    trial judge did not accept Nurse Neelys interpretation. She concluded instead
    that the checkmark meant that the Pip-Taz had been administered to Mr. White.

[17]

Mr.
    White points to a note by Dr. Christian in the chart about a medication error,
    and submits that this refers to the missed dose of Pip-Taz. However, the trial
    judge found that the more logical and contextual reading of Dr. Christians
    note is that the error was that Mr. White mistakenly got an additional dose of
    phenylephrine. The trial judge did not make a palpable and overriding error in
    this finding, which was available to her on the evidence.

[18]

Dr.
    Ward later made an order that Pip-Taz be given every six hours on May 5,
    post-operation. This was superseded by an order made by Dr. Christian at 1:50 p.m.,
    after Mr. Whites return from surgery. The trial judge interpreted Dr.
    Christians order for Pip-Taz as requiring it to be given eight hours later at 10:00
    p.m. that evening. According to the trial judge, the medication record shows
    that he was given the next dose of Pip-Taz at 12:00 a.m. Mr. Whites counsel
    conceded at trial that a two hour delay would be 
de minimis
.

[19]

The
    parties disagree about whether the order required the antibiotics to be
    administered 8 hours after the order was made, or 8 hours after the first dose
    was administered (around 8:00 a.m.). The appellants took the position that Mr.
    White ought to have received the antibiotics every 8 hours, being 8:00 a.m., 4:00
    p.m., and 12:00 a.m. They argued that the trial judge erred in concluding,
    without any expert evidence, that the order meant that the second dose ought to
    have been given to Mr. White 8 hours after the order was made: 10:00 p.m.

[20]

The
    respondents argued that the trial judge correctly interpreted the order to mean
    that the dose ought to be administered every 8 hours after the order was made.
    They note that the trial judge contrasted the order with other orders which
    stated that actions ought to occur now. The respondents also took the
    position that if this order was in error (presumably because drugs ought to be
    administered every 6-8 hours after the first dose which ostensibly occurred
    around 8:00 a.m.), then this would fall on the prescribing physician, not the
    nurse or hospital who were merely carrying out the order.

[21]

According
    to the infectious disease expert called by the doctors, Dr. Tina Mele, when the
    blood culture results became available around 11:00 a.m. on May 8, it became
    clear that Pip-Taz was not the most effective medication for Mr. White. Dr. Mele
    testified that Mr. White had therefore not been appropriately treated by an
    antibiotic until May 8, when he was switched to Meropenem. Mr. White does not
    allege that Pip-Taz was negligently prescribed. Dr. Mele took the view that, at
    best, the Pip-Taz might have partially treated the infection since the strain
    of bacteria was partially sensitive to that drug.

[22]

In
    my view, the trial judges finding that the first dose of Pip-Taz was
    administered to Mr. White after his resuscitation at about 6:15 a.m. on May 5
    was available to her on the evidence and does not constitute a palpable and
    overriding error.

[23]

The
    trial judge interpreted Dr. Christians order as requiring that the second dose
    of Pip-Taz be administered around 10:00 p.m., 8 hours after the order was
    written. The trial judge interpreted the order in this way because nothing on
    the form suggested that the order of Pip-Taz needed to be administered
    immediately; she contrasted this with other parts of his order which expressly
    stated that they were to be carried out now. This interpretation was
    available to her on the evidence and does not constitute a palpable and
    overriding error.

B.

Did the alleged negligence exacerbate Mr. Whites injury and therefore
    cause or contribute to it?

[24]

Regardless
    of the findings on the standard of care, the trial judges findings on
    causation preclude a finding of negligence on the part of either Nurse
    Schweinbenz or the hospital.

[25]

In
    an action for delayed medical diagnosis and treatment, a plaintiff must
    establish that the delay caused or contributed to the unfavourable outcome:
Sacks v. Ross
, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal to SCC
    refused, 2018 CarswellOnt 10678-10679, at para. 117;
Beldycki Estate v.
    Jaipargas
, 2012 ONCA 537, 295 O.A.C. 100, at para. 44.
The
    phrase caused or contributed originates in the
Negligence Act
,
R.S.O. 1990, c. N.1, at s. 1,
and is the normative test applied by this court, as set out in
Sacks v. Ross
,
    at para. 117, and embodied in the but for test prescribed by the Supreme
    Court in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.
In other words, but for the alleged delay would the plaintiff have suffered
    the unfavourable outcome? (Nothing in
Sacks v Ross
revived the material
    contribution to injury test.) The trial judge found that Mr. White failed to
    prove that the delay in treatment caused or contributed to his injuries. She
    noted: 
Dr
.
Fong
    was not able to articulate what injury he says was avoidable. The trial judge stated:
    "Dr. Fong agreed that most of Mr. White's outcome was unavoidable. The
    court finds this evidence is devastating to the plaintiffs' case."

[26]

Counsel
    for the appellants argues that these words show the trial judge misapplied the legal
    test for causation, and effectively required him to establish that the
    respondents negligence was the most significant cause of the harm.

[27]

I
    would not give effect to this argument. The trial judge was not setting out the
    legal test, but was simply making a finding about the evidence.

[28]

Dr.
    Mele, testified that, analyzed in retrospect, by 4:10 p.m. on May 4 Mr. White
    was showing early stages of acute respiratory distress syndrome associated with
    sepsis. That condition results in an inflammatory cascade leading inevitably to
    remedial surgery for source control, and the administration of antibiotics. Dr.
    Mele testified that once the cascade set in, Mr. White needed corrective
    surgery (source control), antibiotics, and admission to the Intensive Care Unit
    for life support measures. Even if he had been taken to the operating room at 4:10
    p.m. on May 4 and the antibiotic had been switched from Pip-Taz to Meropenem
    thereafter, Mr. Whites outcome would not have been different.

[29]

Dr.
    Meles evidence was largely substantiated by the testimony of the infectious
    disease expert called by the appellants, Dr. Fong. He testified that unless
    appropriate antibiotics had been started by 5:00 p.m. on May 4 and source
    control over the leak had been achieved by 6:00 p.m. (through surgery,
    presumably), most of Mr. Whites outcome could not have been avoided.

[30]

The
    evidence of both Dr. Mele and Dr. Fong was that the sepsis cascade was underway
    before Nurse Schweinbenz came on shift on May 4, at 7:00 p.m. Dr. Mele further
    stated that Mr. Whites outcome could not have been avoided. To the extent that
    Dr. Fongs evidence contradicted this statement when he stated that most, but
    not all of the outcome was unavoidable, the trial judge was clear that she
    preferred Dr. Meles evidence and that she found Dr. Fong to be evasive and not
    of assistance to the court.

[31]

Dr.
    Meles expert testimony is that the septic shock made initial admission to the
    ICU for life saving measures inevitable. In my view, this is supported in her
    testimony at pp. 49-51 of the May 25 transcript. First, she was asked whether
    sepsis that has caused organ injury or failure can be treated without the ICU.
    Dr. Mele said it could not. She was then asked at what point admission to the
    ICU was inevitable. She replied: so after reading the medical chart, in my
    opinion, we know for a definite fact that he had evidence of multiple organ
    failure and septic shock at 7:15 a.m. in the morning of May 5th.

[32]

Dr.
    Mele noted that the inflammatory cascade does not occur instantaneously but
    develops over time. Thus, she concluded that no intervention after 4:10 p.m. on
    May 4 would have made any difference in the outcome, and by the outcome she
    meant admission to the ICU.

[33]

In
    the end, she testified that the bulk of the 70 day ICU stay was caused by the
    unrelated bowel perforation.

[34]

Accordingly,
    the trial judge found that Mr. White had failed to establish that, but for the
    alleged delay in treatment, his injuries would not have occurred. In
    particular, the trial judge found that "there is no evidence before this court
    articulating what specific injury Mr. White suffered that could have been
    avoided". She added:

The court finds there is no evidence to suggest that Mr.
    White's outcome would have been different if the surgery had been done six
    hours after 23:30 on May 4, or six hours after 02:00 or six hours after 04:30
    on May 5, as compared to the actual surgery time which was 11:45. That is, a
    surgery done six hours after at 05:30, 08:00 or 10:30 would not have had a
    different outcome.

[35]

The
    trial judge stated:

Based on Dr. Mele's complete
    review of the medical records, her opinion was the reason Mr. White remained in
    the ICU for 70 days was actually related to the bowel perforation he suffered
    following the second surgery. That is, it was not related to the anastomotic
    leak that was found on May 5. The court agrees that the protracted stay in ICU
    was caused by unrelated events. The court finds that prior to the second
    surgery, Mr. White's stay in the ICU would likely have been uneventful. This
    evidence was not challenged.

[36]

With
    respect to the alleged failure to properly administer antibiotics, the trial
    judge noted that the respondents experts testified that a missed or delayed
    dose of Pip-Taz had no effect on the Mr. Whites outcome. Specifically, she
    looked at Dr. Salits testimony; he testified that any errors in antibiotic
    management on May 5 would have no contributory effect because Mr. White was
    already in septic shock at 6:00 a.m. on May 5.

[37]

The
    trial judge also pointed to Dr. Meles testimony that even if Mr. White had
    been taken to the operating room and been switched to the proper antibiotic
    coverage by 4:10 p.m. on May 4, there would be no difference in outcome.
    Indeed, when asked specifically whether the delay of the administration of
    Pip-Taz resulted in Mr. Whites complications, Dr. Mele said:

I cant imagine how one missed
    dose of pip-tazo would have been the direct result of
any of his ensuing
    complications
. Sepsis is such a complex inflammatory cascade that it was
    already well underway in progress at that time. (Emphasis added)

The trial judge went on to reject Dr. Fongs argument
    that the delay in administering the antibiotics caused ICU myopathy or ICU
    neuropathy in favour of Dr. Meles evidence in which she testified she had
    never seen any support in medical literature suggesting that ICU myopathy or
    neuropathy are related to the timing of antibiotics.

[38]

In
    my view, the trial judges findings were available to her on the evidence and
    do not constitute palpable and overriding errors.

[39]

Moreover,
    these findings show that the trial judge was not confused about the proper test
    for causation. She was not requiring Mr. White to establish that the respondents
    negligence was the most significant cause of harm. On the contrary, the
    findings of the trial judge were that the plaintiff had failed to establish any
    harm, because Mr. Whites outcome would have been no different whether or not
    the alleged negligence occurred.

[40]

Appellants
    counsel argued forcefully that he merely had to establish a causal connection
    between the alleged breach of the standard of care and Mr. Whites injury;
    there was no need to establish a connection between the injury and a particular
    loss, since damages had been agreed by the parties. However, the trial judge
    did not require proof of particular pecuniary loss. As mentioned above, the
    trial judges findings were that Mr. Whites
injuries
, not his pecuniary
    loss, were unavoidable; Mr. White was already in septic shock and his injuries
    were inevitable
before
the alleged negligence occurred.

[41]

Appellants
    counsel is correct that there was evidence that delay in treatment can have
    adverse consequences on a patients outcome. What is missing here is an actual
    link between the delay in diagnosis and treatment, and Mr. Whites injuries.
    The trial judge rejected Dr. Fongs evidence that the delay in treatment caused
    some harm to Mr. White. She preferred the respondents expert evidence on this
    point. These findings were open to her on the evidence and do not disclose a
    palpable and overriding error.

[42]

In
    oral argument, the appellants stressed that their agreement with the respondents
    as to damages meant that they only had to prove some harm in order to
    establish causation. I do not think the parties made such an agreement. During
    the proceedings below, on November 27, 2017, Mr. Clements for the hospital
    said, The plaintiff makes the statement that the plaintiffs burden was only
    to prove that the negligent conduct likely caused some harm... My submission is
    thats not the law That standard is too low. Mr. Harte did not object, as one
    would expect had there been an agreement that the appellants only had to prove
    some harm in order to establish causation. The agreement was solely with
    respect to the quantum of damages. I agree with appellants counsel that there
    was no need to link Mr. Whites injury with any particular pecuniary loss. But,
    as explained above, the appellants did not established that the alleged
    negligence caused or exacerbated Mr. Whites injuries.

C.

Disposition

[43]

For these reasons I would dismiss the appeal.

[44]

As
    agreed by the parties, the respondents are entitled to costs of $20,000 all-inclusive.

Released: P.L. April 25, 2019

P. Lauwers J.A.

I agree. C.W. Hourigan
    J.A.

I agree. G. Pardu
    J.A.


