



COURT OF APPEAL FOR ONTARIO

CITATION: Manary v. Strban, 2013 ONCA 319

DATE: 20130514

DOCKET: C53479

Doherty, Juriansz and Hoy JJ.A.

BETWEEN

Steve Manary and Lauren Manary by her Litigation
    Guardian, Steve Manary

Plaintiffs (Respondents)

and

Dr. Martin Strban,
Dr. Stephen D. Halmo
,
    Dr. N. Hanna, Dr. L. Singer, Dr. A. Nagpal, Grand River Hospital, Dr. John Doe
    and Nurse Jane Doe

Defendant (
Appellant
)

Sarit E. Batner and Eli D. Mogil, for the appellant

J. Greg Murdoch, Steven K. Kenney and C. Davis, for the
    respondents

Heard:  December 10, 2012

On appeal from the judgment of Justice J.C. Kent of the
    Superior Court of Justice, dated February 23, 2011.

Doherty J.A. (Dissenting):


I



overview

[1]

Christine Manary, age 28, was 36 weeks pregnant when she went to Grand
    River Hospital in Kitchener, Ontario on the evening of Thursday, August 7, 2003. 
    Ms. Manary was experiencing severe, sudden onset chest pain and shortness of
    breath.  The doctors suspected either a pulmonary embolism, a blood clot in the
    lung (PE), or an aortic dissection, a tear in the wall of the aorta.  Both
    are serious, life-threatening conditions.   The doctors ordered various tests
    and admitted Ms. Manary to the Hospital.

[2]

On Friday, August 15, the day Ms. Manary was to be discharged, she suddenly
    collapsed and died from a ruptured ascending aortic aneurism.  Fortunately, Ms.
    Manarys baby girl, Lauren, was successfully delivered by caesarian section.

[3]

Mr. Manary, on his own behalf and as his daughters litigation guardian,
    sued various doctors and nurses involved in Ms. Manarys treatment at the
    hospital.  The action went to trial against Dr. Halmo, her obstetrician, Dr.
    Strban, one of the respirologists involved in Ms. Manarys care, and Dr. Hanna,
    the radiologist who performed a CT angiogram on August 10.

[4]

Three central factual questions emerged at trial:

·

Was it medically appropriate, as of about August 10, to treat Ms.
    Manarys heart-related problems as not requiring the immediate attention of a
    cardiologist and/or transfer to a tertiary care centre?

·

Was Dr. Halmo, the doctor designated as the Most Responsible Physician
    (MRP) according to hospital protocol, entitled to rely on the respirologists
    opinion as to the appropriate treatment plan for Ms. Manarys heart-related
    problems, or was he obliged to make an independent assessment and formulate his
    own plan?

·

Would it have made any difference to the ultimate outcome if on
    or about August 10, Dr. Halmo had determined that Ms. Manarys heart-related problems
    required an immediate cardiac consultation and an immediate transfer to a
    tertiary care centre where the appropriate surgical facilities were available?

[5]

The trial judge dismissed the claim against Dr. Strban, the
    respirologist, and Dr. Hanna, the radiologist, concluding that they had met the
    required standard of care.  The trial judge, however, found Dr. Halmo, the obstetrician
    and MRP, liable.  The trial judge held that Dr. Halmo fell below the required
    standard of care by accepting Dr. Strbans treatment plan without engaging in
    an independent assessment of Ms. Manarys needs.   The trial judge held that
    had Dr. Halmo made his own assessment:

[H]e would have been driven to the conclusion that the safest
    course was an immediate transfer to a tertiary care centre where an evaluation
    of Christines enlarged aorta and immediate management of her condition would
    have been available to ensure her survival.

[6]

The parties had agreed on the quantum of damages and the trial judge
    entered judgment for the plaintiff in that amount.  He also assessed costs in
    favour of the plaintiff at $400,000.

[7]

Dr. Halmo appeals from the finding of liability and seeks leave to
    appeal the costs order.
[1]


[8]

On the appeal, counsel for Dr. Halmo launched a far-ranging attack on
    the reasons of the trial judge.  Her submissions focused mainly on two complaints. 
    First, counsel argued that the finding of liability against Dr. Halmo cannot
    stand beside the finding that Dr. Strban met the requisite standard of care. 
    The trial judge found that Dr. Halmo was negligent for failing to treat Ms.
    Manarys heart-related problems as an emergency requiring an immediate cardiac consultation
    and transfer to a tertiary care centre.  In contrast, the trial judge found
    that Dr. Strban had met the standard of care when he advised Dr. Halmo that Ms.
    Manarys heart-related problems were not an emergency and did not require an
    immediate cardiac consultation or transfer to a tertiary centre.  In effect,
    counsel for the appellant argues that the trial judge found Dr. Halmo negligent
    for relying on the reasonable advice of a qualified consulting respirologist.  Counsel
    contends that as the finding with respect to Dr. Strban is not challenged on
    appeal, the irreconcilable finding of liability against Dr. Halmo cannot stand.

[9]

Second, counsel submits that the trial judge failed to consider, much
    less make, the findings of fact necessary to draw a causal link between the
    negligence the trial judge attributed to Dr. Halmo and Ms. Manarys death.    Counsel
    contends that the plaintiff was obliged to show that but for Dr. Halmos
    negligence, Ms. Manary would have been transferred to a tertiary care centre
    and would have undergone surgery  the only treatment which could have
    prevented her death  before the morning of August 15.  Counsel submits that
    those findings could not reasonably be made on this record.

[10]

I
    would allow the appeal.  I think the appeal turns on the first of the two
    submissions outlined above.  The trial judge found that Dr. Strban met the
    applicable standard of care when he concluded that Ms. Manarys heart-related
    problems were not an emergency and could be treated by cardiac consultation a
    week or two after Ms. Manarys discharge from the hospital.  At the same time, the
    trial judge found Dr. Halmo negligent for accepting what the trial judge found
    was the reasonable course of treatment proposed by Dr. Strban.  These findings
    cannot be reconciled.  Taken together they demonstrate the application of a
    legally incorrect standard of care to Dr. Halmos conduct (the safest course
    standard), a palpable and overriding error in the trial judges fact-finding,
    or an unreasonable finding of fact.  The appeal must succeed.


II



the evidence

(a)

Ms. Manarys care in
    the hospital

[11]

From
    the time Ms. Manary arrived at the hospital on Thursday, August 7, 2013, the
    doctors suspected that Ms. Manary had a serious chest-related problem.  The
    physicians regarded PE as the most likely cause of Ms. Manarys chest pains and
    shortness of breath.  PE is common in pregnant women.

[12]

The
    treating physicians, however, also appreciated the risk of an aortic dissection. 
    An aortic dissection almost invariably causes death and must be treated as an
    emergency.  Various tests administered between August 7

and August 10
    were intended to assist the doctors in choosing between the two possible
    diagnoses. Clinical observations of Ms. Manary also played an important role in
    formulating the doctors diagnosis.

[13]

Dr.
    Nagpal, a respirologist who saw Ms. Manary when she arrived at the hospital on
    August 7, considered both the possibility of PE and an aortic dissection.  He thought
    PE was the likely diagnosis and started Ms. Manary on a course of Heparin, a
    blood thinner commonly used in the treatment of PE.  Dr. Nagpal also detected a
    heart murmur and ordered an echocardiogram.

[14]

The
    protocol at Grand River Hospital required that all pregnant women admitted to
    the hospital be admitted to the obstetric service even if the admission did not
    relate directly to any pregnancy-related problem. Hospital protocol also
    dictated that Ms. Manarys obstetrician, Dr. Stephen Halmo, would be designated
    as the MRP.  The MRP is the physician primarily responsible for providing a
    plan of care for a patient and coordinating that plan among the various doctors
    involved in her care.  Dr. Halmo was the MRP throughout Ms. Manarys stay at
    Grand River Hospital.

[15]

Dr.
    Halmo first saw Ms. Manary on Friday August 8 during his rounds.  He was aware
    of the circumstances surrounding her admission and the tests that had been
    administered and ordered.  Dr. Halmo was aware that PE was the suspected cause
    of Ms. Manarys problems.  Dr. Halmo assessed Ms. Manary and the
fetus.  He saw no obstetrical problems.

[16]

Dr. Halmo had relatively little experience with PE.  It was his
    practice

to rely on the chest team headed by
    the respirologists to investigate and manage PE.  The other obstetricians at
    the hospital followed the same practice.  There were no cardiologists on
    service at Grand River Hospital, but a cardiac consultation could be obtained
    from St. Marys, another Kitchener hospital.

[17]

Dr.
    Strban became involved in Ms. Manarys care on Friday, August 8. The
    echocardiogram ordered the previous day showed some left ventricular
    enlargement, mild thickening of the aortic valve, and a dilated aortic root (a
    bulge) in the ascending aorta.  There was no indication of an aortic
    dissection.

[18]

The
    echocardiogram was read by Dr. Singer, a cardiologist.  Dr. Singer was
    originally a defendant in this action and was examined for discovery.  The plaintiffs
    did not proceed to trial against Dr. Singer.

[19]

Dr.
    Strban, like Dr. Nagpal, believed that PE was the probable cause of Ms.
    Manarys problems.  He remained concerned, however, about the possibility of an
    aortic dissection because of Ms. Manarys ongoing pain.  Dr. Strban called a cardiologist
    at St. Marys to discuss the possibility of performing a transesophageal
    echocardiogram (TEE) on Ms. Manary.  A TEE is one of three tests that can detect
    an aortic dissection.  The cardiologist at St. Marys advised Dr. Strban that a
    TEE was not available.  The same cardiologist told Dr. Strban that it was unlikely
    that Ms. Manary would have remained stable for 24 hours while receiving Heparin
    if in fact she had a dissected aorta.  This information gave Dr. Strban some
    comfort that his provisional diagnosis of PE was correct.

[20]

Dr.
    Strban continued to treat Ms. Manary for PE. He continued the Heparin, and he ordered
    a Doppler ultrasound on Ms. Manarys legs.  The Doppler can provide evidence of
    PE.  The Doppler was performed on August 9 and it did not show any signs of PE.

[21]

Dr.
    Strban was away for the weekend and his colleague, Dr. Jackson, a respirologist,
    was on call.  Dr. Jackson saw Ms. Manary on Saturday, August 9 and Sunday,
    August 10.   Dr. Jackson was not sued.

[22]

Dr.
    Halmo spoke with Dr. Jackson on August 9 to be sure that she knew she had a
    patient on the obstetrical unit.  Dr. Halmo was also aware that the
    echocardiogram had shown certain abnormalities and he wanted to be clear with
    Dr. Jackson that the respirologists were pursuing those issues.  Dr. Halmo
    regarded Dr. Jackson as a very competent and highly respected physician within
    the hospital.  He trusted her to follow up on any chest-related problem.

[23]

Dr.
    Jacksons clinical note written after she had examined Ms. Manary on August 9
    included the following observations and comments:

·

Admitted Thursday evening with suspected pulmonary embolus;

·

Feeling better today; - chest pain much improved;

·

Bedside exam and echocardiogram suggests significant aortic valve
    disease with regurgitation likely aggravated by increased cardiac output in
    pregnancy;

·

Jugular venous pressure is normal;

·

No effusion;

·

Dissection seems unlikely;

·

Should have cardiology review;

·

Subacute bacterial endocarditis prophylaxis;

·

Postpartum follow-up and monitoring;

·

Plan, continue Heparin, Doppler and Tylenol 2 if analgesics
    required.

[24]

As
    of August 9 Dr. Jackson considered PE the likely diagnosis.  However, she
    remained concerned about the possibility of aortic dissection.  She explained
    that aortic valve disease and a dilated aortic root are risk factors for aortic
    dissection but they can exist without a dissection.  Dr. Jackson believed that
    Ms. Manary should have a cardiac consultation before her delivery.  Dr. Jackson
    testified:

[W]e had evidence of this significant aortic valve disease and
    we also knew that she had a dilated aortic root and that she was within a
    number of weeks of her due date and I mean,
Im not a
    cardiologist so I didnt have the expertise to really evaluate how that cardiac
    problem would influence her delivery and the way that that should be managed
    but I certainly felt that thats something that should be undertaken before she
    would be allowed to deliver
.  [Emphasis added.]

[25]

Dr.
    Jackson saw Ms. Manary on Sunday, August 10.  Ms. Manary had been in
    considerable pain throughout the evening and morning of August 9-10.  Dr.
    Jackson remained concerned about the possibility of aortic dissection.  She
    stopped the Heparin and ordered a CT angiogram, the best test available for
    identifying an aortic dissection.

[26]

Dr.
    Jackson examined the CT angiogram with Dr. Hanna on August 10.  It showed no evidence
    of aortic dissection.  It did show, as had the echocardiogram, some enlargement
    of the left side of the heart and some apparent chronic valve disease.  The CT
    angiogram also showed a large aneurism in the ascending aorta.  An aneurism is a
    bulge in the aorta.  It is not the same as a dissection of the aorta, although
    it can overlay a dissection.  The CT angiogram showed no evidence of PE.

[27]

Dr.
    Jackson was satisfied that the results of the CT angiogram excluded aortic
    dissection as a potential problem.  She decided to continue treating Ms. Manary
    for PE and ordered the Heparin recommenced.

[28]

Dr.
    Jackson explained her analysis in these terms:

[P]ulmonary embolus can be a very difficult diagnosis to prove
    or exclude and CT angiogram is not 100 per cent sensitive for pulmonary emboli
    and this woman had also been on treatment for several days so although disquieting,
    the fact that the CT angiogram was negative for obvious pulmonary embolism it
    unfortunately doesnt exclude it as a possibility and we still needed some
    explanation for this womans, you know, her ongoing symptoms.  On balance, it
    seemed to be the diagnosis that fit the picture the best, made the most sense.

[29]

Although
    Dr. Jackson believed that PE was the immediate medical concern, she did
    recognize that Ms. Manary had two heart-related problems: the aneurism in the
    ascending aorta and the chronic valve disease.  Dr. Jackson believed that both
    problems would have to be assessed by a cardiologist before Ms. Manary delivered.

[30]

Dr.
    Strban returned to the hospital on Monday, August 11.  When he visited Ms.
    Manary she was feeling much better than she had been when he examined her on
    Friday, August 8.  Her chest pain was significantly reduced and she had less
    shortness of breath.  Dr. Strban attributed the improvement to the Heparin.

[31]

Dr.
    Strban also reviewed Dr. Jacksons notes and the CT angiogram.  He agreed with
    Dr. Jacksons assessment.  In Dr. Strbans view, the CT angiogram was the best
    test available for finding an aortic dissection.  The absence of any evidence
    of an aortic dissection in the CT angiogram tended to confirm his opinion that PE
    was the correct diagnosis.

[32]

Although
    the various tests administered between August 7 and 10 had not offered any
    positive proof of PE, Ms. Manarys clinical presentation and the absence of any
    indication of an aortic dissection in the CT angiogram led Dr. Strban to
    believe that PE remained the most likely cause of Ms. Manarys problems. 
    Consequently, he continued the Heparin.

[33]

Dr.
Halmo, who had been away on Sunday, August 10, also saw Ms.
    Manary on August 11.  He reviewed Dr. Jacksons notes from the weekend and was
    aware of the proposed treatment.  He also satisfied himself that there were no
    problems from an obstetrical perspective.

[34]

As of August 11, Dr. Strban had formulated a two-pronged approach for
    Ms. Manarys treatment.  First, based on his belief that PE was the likely
    cause of Ms. Manarys problems, Dr. Strban continued the administration of
    Heparin.  He planned to discharge Ms. Manary when she had learned to inject
    herself with Heparin.  Second, Dr. Strban undertook to arrange a cardiac
    follow-up for Ms. Manary after her discharge.  He anticipated that both the
    aneurism and the apparent chronic valve related problems would be addressed by
    the cardiologist.   Dr. Strban did not regard either heart-related problem as
    an emergency requiring an immediate consultation.  He did think, however, that
    both problems had to be addressed by a cardiologist before Ms. Manarys
    delivery date in about four weeks. Consequently he undertook to arrange a cardiac
    consultation within a week or two.


[35]

Dr.
    Strban testified that in formulating his treatment plan, he was aware that
    there was always a risk that an aneurism might rupture.  He did not, however,
    regard that risk as sufficiently significant to warrant an immediate consultation
    with a cardiologist.

[36]

Dr.
    Strban also did not consider performing any further test to establish or
    exclude PE.  The only other possible test was a pulmonary angiogram.  In light
    of Ms. Manarys improvement while receiving Heparin, Dr. Strban did not think
    that an intrusive test, such as a pulmonary angiogram, was warranted.  Dr.
    Strban also did not consider transferring Ms. Manary to a tertiary care centre on
    or before August 11.  In his opinion, a tertiary care centre would not have accepted
    Ms. Manary.

[37]

Dr.
    Strban spoke to Dr. Halmo on August 12 or 13.  He told Dr. Halmo that PE
    remained his diagnosis and that Ms. Manary should continue to take Heparin. 
    Dr. Strban advised Dr. Halmo that Ms. Manary would be ready for discharge later
    that week and that he would arrange an out-patient cardiology consultation within
    the next week or so.  Dr. Halmo accepted Dr. Strbans treatment plan.

[38]

Ms.
    Manary was scheduled to be released on Friday, August 15.  That morning she had
    no pain and was feeling good.  At about 11:55 a.m. she suddenly collapsed. 
    Resuscitation efforts failed.  Ms. Manarys daughter was delivered by caesarean
    section.

[39]

The
    post-mortem revealed that Ms. Manary died as an immediate consequence of the
    rupture of the aneurism in her ascending aorta.  The pathologist discovered a
    small tear or dissection of the inner wall of the aorta, about one centimetre
    distal (further from the heart) to the aneurism.  That dissection caused blood
    to travel between the inner and outer walls of the aorta toward the heart
    ultimately causing the aneurism and the rupture of the aneurism.

[40]

The
    pathologist could not indicate when the dissection occurred.  He could say that
    there was some evidence of healing around the dissection indicating that it
    must have occurred at least two or three days prior to death.

[41]

Dr.
    Strban testified that he and the other respirologists were responsible for Ms.
    Manarys chest issues, meaning her suspected PE and the heart-related
    problems.  Dr. Strban fully expected Dr. Halmo to rely on his opinion as to the
    appropriate follow up for Ms. Manarys heart-related problems.

[42]

Dr.
    Halmo testified that at Grand River Hospital, pregnant women who are admitted
    with a suspected PE come under the care of respirologists.  Dr. Halmo relied on
    the respirologists to investigate Ms. Manarys medical problems, specifically
    her suspected PE.  He had no concerns that the respirologists were not taking
    appropriate steps to investigate and treat Ms. Manarys problems.  Dr. Halmo knew
    that those problems had to be addressed by a cardiologist before Ms. Manary
    delivered and he knew that Dr. Strban was making arrangements to have a cardiac
    consultation within the next week or two.  Dr. Halmo accepted Dr. Strbans
    assessment that a cardiac consultation within a week or two of discharge was
    appropriate.  Dr. Halmo was also satisfied that there were no obstetrical
    problems preventing Ms. Manarys discharge on August 15.

(b)

The expert evidence

[43]

Several
    experts testified at trial.  They joined issue primarily on whether Ms.
    Manarys heart-related problems called for an immediate cardiac consultation
    and transfer to a tertiary care centre no later than the morning of August 11.

[44]

The
    plaintiff did not call an expert respirologist at trial.  The defence expert respirologist
    testified that the respirologists had properly identified PE as the likely
    cause of the Ms. Manarys problems and had correctly identified her heart-related
    problems as warranting a cardiac consultation on a non-emergency basis.  The
    expert also testified that in most hospitals obstetricians rely on
    respirologists or internists to diagnose and treat PE.  The expert indicated
    that she would have preferred a cardiac consultation within a week of
    discharge, but that Dr. Strbans plan, calling for a consultation within a week
    or two, was a reasonable plan and met the applicable standard of care.

[45]

Neither
    party called an expert cardiologist.  The plaintiff successfully opposed the
    defence attempt to call Dr. Singer, the cardiologist who had read the August 8
    echocardiogram. No cardiologist testified at the trial.

[46]

The
    plaintiff called Dr. Davies, an obstetrician, to comment on the standard of
    care provided by Dr. Halmo.  Dr. Davies agreed that it was appropriate to treat
    Ms. Manary for PE when she arrived at the hospital on August 7.  He testified,
    however, that Dr. Halmo should have realized that the various tests, especially
    the CT angiogram on August 10, virtually excluded PE and that the heart-related
    problems  especially the aneurism  revealed by those tests required immediate
    and thorough investigation by the appropriate specialists.  As I understand the
    thrust of Dr. Davies evidence, it was his opinion that by no later than the
    morning of Monday, August 11 Dr. Halmo, as Ms. Manarys obstetrician and the
    MRP, should have realized that it was necessary to obtain an immediate cardiac
    consultation and to immediately transfer Ms. Manary to a tertiary care centre.

[47]

Dr.
    Davies did not agree that Dr. Halmo could rely on the treatment plan proposed
    by Drs. Jackson and Strban.  Dr. Davies believed that Dr. Halmo had sufficient
    experience with PE to second guess the respirologists.  In cross-examination of
    Dr. Davies the following exchange occurred:

Q       You
    say its a failure to meet the standard of care for Dr. Halmo with his  in his
    circumstances and the circumstances of this case not to second guess the
    respirologist with respect to the issues in this case; correct?

A       Yes.

Q       And
    would you agree it depends on the practice of the physician and the hospital in
    which hes practicing?

A       No.

Q       No, you dont agree with that?

A       No, I
    think based on his education and experience he should have the ability whether hes
    treating the patient completely for the pulmonary embolus or in conjunction
    with the cardiologist  or sorry, the chest physicians that he maintains the
    same responsibility for the patient.

[48]

Dr.
    Davies was not qualified to express an opinion on the care provided by Dr.
    Strban and the other respirologists.  Nonetheless, he testified that all of
    the doctors missed the urgency of the problem.  Dr. Davies opined that the
    treatment plan proposed by the respirologists was incorrect because that plan
    did not appreciate the urgency presented by the aneurism.

[49]

In
    Dr. Davies opinion, Dr. Halmo was negligent for not realizing that the
    respirologists proposed plan was incorrect given the emergency presented by
    the aneurism and the virtual exclusion of PE as a cause of Ms. Manarys
    symptoms.  According to Dr. Davies, Dr. Halmo should have rejected the plan
    proposed by the consulting respirologists and implemented a plan that would see
    Ms. Manary obtain an immediate cardiac consultation and an immediate transfer
    to a tertiary care centre.
[2]


[50]

Dr.
    Cowal, an obstetrician, testified as a defence expert.  In her opinion, Dr.
    Halmo met the standard of care as both the obstetrician and MPR in relying on
    the respirologists to investigate and treat Ms. Manarys heart-related problems. 
    It was unreasonable to expect that Dr. Halmo would have the same expertise in
    diagnosing and treating PE as would the respirologists.  It was, therefore,
    appropriate for him to not second guess their diagnosis and proposed plan of
    treatment.  In Dr. Cowals assessment Dr. Halmo fully met his duty to Ms.
    Manary by ensuring that the respirologists were making what they regarded as
    the appropriate treatment plan for Ms. Manarys various chest-related medical
    issues.

[51]

The
    plaintiff also called Dr. Rubin, a vascular surgeon.  He testified that Dr. Strban
    and Dr. Halmo fell below the standard of practice by failing to conduct the
    test necessary to confirm the provisional diagnosis of PE, and by failing to
    conduct the test necessary to definitely rule out an aortic dissection.  Dr.
    Rubin testified that had the proposed tests been conducted, a diagnosis of
    acute aortic dissection would have been made leading to the immediate transfer
    to a cardiac surgical unit in time to perform the necessary surgery before the
    aneurism ruptured.

[52]

The defence called a cardiovascular surgeon, Dr.
    Christakis.
In his opinion, the aneurism detected in Ms. Manarys
    ascending aorta on August 10 did not give rise to an emergency.  The risk of
    rupture was relatively low.  The aneurism could be properly treated by surgery
    before or at the time of delivery.  In his opinion, a cardiac consultation in a
    week or two after Ms. Manarys discharge would have given sufficient time to
    perform the necessary surgery.

[53]

Dr.
    Christakis opined that Ms. Manary received excellent care and that the
    appropriate tests had been done and a reasonable treatment plan formulated.  In
    his opinion, the ruptured aneurism and Ms. Manarys death were an exceedingly
    rare event that could not have been prevented.


III



THE REASONS FOR JUDGMENT

[54]

The
    trial judge recognized that the outcome of the action depended largely on
    whether the decision that Ms. Manarys heart-related problems did not require
    immediate attention from a cardiologist and transfer to a tertiary care centre
    fell below the applicable standard of care.  After a general overview of the
    evidence and a review of the applicable legal principles, the trial judge
    turned to the application of those principles to the facts as he found they related
    to each of the defendant doctors.  He found that Dr. Hanna was not negligent in
    failing to observe certain subtle findings on the CT scan.  The trial judge
    then turned to Dr. Strban.

While it would have been preferable for Dr. Strban to treat
    Christines enlarged aorta as an emergency and have her seen quickly by a
    cardiologist who would be more familiar with an enlarged aortic aneurism and
    the risk of rupturing, I am unable to conclude that his failure to do so was a
    failure to meet the required standard of practice.



Similarly, to
require Dr. Strban to treat
    Christines enlarged aorta as an emergency, given the information provided to
    him and what he observed, would be to impose an elevated standard that goes
    beyond what is reasonably required
.  [Emphasis added.]

[55]

There
    is no appeal from the trial judges finding that Dr. Strbans conduct met the
    applicable standard of care.  This is not surprising in that the plaintiff did
    not call an expert respirologist and the defence called an expert respirologist
    who defended Dr. Strbans treatment of Ms. Manary as reasonable and appropriate.

[56]

After
    finding that Dr. Strban was not negligent, the trial judge turned to Dr. Halmo. 
    He summarized the competing opinions of the experts.  As outlined above, they
    disagreed on whether Dr. Halmo was entitled to rely on the opinion of the
    respirologists.  Dr. Davies insisted that because Dr. Halmo was the MRP he was
    required to make his own assessment of the appropriate treatment for Ms.
    Manarys heart-related problems.  Dr. Cowal, the defence expert, testified that
    the respirologists had greater expertise in respect of the medical problems
    confronting Ms. Manary and that it was appropriate for Dr. Halmo to rely on
    their assessment of the appropriate course of treatment.

[57]

In
    preferring Dr. Davies evidence the trial judge said:

With great respect to the view of Dr. Cowal, she has set the
    standard of care too low.  Dr. Davies is not discussing an ideal or an
    impossibly high standard.
It is a safer standard
. 
    It is not a standard that should be avoided by the delegation of responsibility
    in a particular mode of practice.  The defence position on the division of
    responsibilities is counter-intuitive and defeats the purpose of designating an
    MRP.  If this court accepts the defence position that Dr. Halmo is to trust the
    respirology team absolutely and to chart on obstetric issues only, this court
    would be accepting that Dr. Halmo serves no function beyond that of an
    obstetrician.  Respectfully, this court does not accept that.
The standard of care of an MRP is not limited to delegating
    tasks and responsibilities to experts.  An MRP is not absolved of
    responsibility with respect to a medical condition simply because that medical
    problem is beyond the expertise of the MRP
. [Emphasis added.]

[58]

The
    trial judge then found that Dr. Halmos decision to accept the treatment plan put
    forward by Dr. Strban fell below the applicable standard of care.

He [Dr. Halmo] did not exercise critical judgment in
    considering the path being taken by the respirologists when there was an
    alternative diagnosis that could and should have been pursued.
Given the mode of practice at Grand River Hospital at the
    relevant time the MRP was required to participate in a fuller manner by
    exercising independent critical judgment and ensuring full and complete
    communication among all treating physicians
.  While the honest and
    intelligent exercise of judgment has long been recognized as satisfying ones
    professional obligation, a failure to exercise objective and critical judgment
    can constitute negligence.  Perhaps, Dr. Halmo, given the mode of practice, was
    lulled into a belief that any responsibility beyond obstetrical care was not
    his.  That cannot be the case. The mode of practice is only workable and safe
    for the patient if the MRP is exercising his responsibility to the fullest. 
    The standard of care required of an MRP cannot be met by an implied and
    undocumented understanding or by merely delegating responsibility. [Emphasis
    added.]

[59]

The
    trial judge further elucidated the nature of Dr. Halmos negligence in this
    passage:

Had Dr. Halmo, who bore ultimate responsibility for the
    patient, not merely accepted the opinion and paths of treatment taken by the
    respirologists,
he would have been driven to the
    conclusion that the safest course was an immediate transfer to a tertiary care
    centre where an evaluation of Christines [Ms. Manarys] enlarged aorta and
    immediate management of her condition would have been available to ensure her
    survival
.  [Emphasis added.]


IV



Are the trial judges findings Demonstrably incompatible?

[60]

There
    is, of course, nothing wrong with a finding that one treating physician met the
    requisite standard of care while another did not.  The assessment of liability is
    specific to each defendant.  Nor are logic and consistency the standards
    against which trial findings are measured on appeal.  An illogical result is
    not necessarily a reversible result.  Inconsistent findings do, however, warrant
    appellate intervention where they reflect legal error, or are so demonstrably
    incompatible as to compel the conclusion that one or both findings are
    unreasonable or the product of palpable and overriding factual error.

[61]

In
    finding Dr. Halmo negligent the trial judge accepted, as he was entitled to do,
    Dr. Davies evidence.  In particular the trial judge accepted Dr. Davies
    evidence that as the MRP, Dr. Halmo was required to make his own assessment of
    the appropriate treatment plan for Ms. Manarys heart-related problems rather
    than simply accept the advice of Dr. Strban.  Acknowledging that the trial
    judge was entitled to prefer Dr. Davies evidence as to the scope of the MRPs
    role, does not, however, provide an answer to the complaint that the finding
    that Dr. Strban was not negligent is irreconcilable with the finding that Dr.
    Halmo was negligent.  Even if Dr. Halmo was required to make his own
    independent assessment as to the proper treatment of Ms. Manarys heart-related
    problems, the question remains whether his acceptance of the plan proposed by
    Dr. Strban fell below the required standard of care.

[62]

Dr.
    Davies testimony that Dr. Halmo was negligent in simply accepting Dr. Strbans
    treatment plan rested on Dr. Davies opinion that Dr. Strbans plan was incorrect
    and failed to appreciate that Ms. Manarys condition required immediate
    attention by those with the necessary cardiac expertise.  Dr. Davies opinion
    that Dr. Halmo was required to second guess Dr. Strban was based on his
    belief that Dr. Strbans opinion was wrong and that Dr. Halmo should have recognized
    that Dr. Strban had failed to appreciate the urgency of the situation.

[63]

The
    trial judge accepted that Dr. Strban met the applicable standard of care, and
    in doing so effectively rejected the premise underlying Dr. Davies opinion
    that Dr. Halmo was negligent.  Given the trial judges finding that Dr.
    Strbans proposed treatment plan was reasonable, the question should have been:
    was Dr. Halmo negligent in accepting what the trial judge found was a
    reasonable treatment plan proposed by Dr. Strban?

[64]

On
    the trial judges analysis, Dr. Strbans plan for a cardiac consultation within
    a week or two of Ms. Manarys discharge met the applicable standard of care, but
    Dr. Halmos acceptance of that reasonable treatment plan fell below the
    standard of care applicable to Dr. Halmo.  In effect, Dr. Halmo was found
    negligent for adopting a treatment plan that the trial judge found to be reasonable
    and consistent with the standard of care applicable to Dr. Strban.

[65]

Nothing
    in the evidence explains or justifies the trial judges different findings.  Those
    findings cannot be explained on the basis that Dr. Halmo had an added expertise
    and should, therefore, have seen that Ms. Manarys condition required urgent
    attention from a cardiologist at a tertiary care centre even if Dr. Strban,
    acting reasonably, could not be expected to have seen that need.  The bulk of
    the evidence indicated that Dr. Halmo had considerably less expertise in the
    treatment of the medical problems faced by Ms. Manary than did Dr. Strban.  Even
    Dr. Davies did not suggest that Dr. Halmo would be expected to have more
    expertise in the diagnosis and treatment of Ms. Manarys heart-related problems
    than did Dr. Strban.

[66]

Counsel
    for the respondent, relying heavily on the trial judges reasons, suggests that
    the different findings are explained by Dr. Halmos added obligations as the
    MRP.  Dr. Halmo was required to assess the full clinical picture and
    formulate an overall plan of care.  There is no doubt that Dr. Halmo had those
    obligations.  There is, however, no evidence that Dr. Halmo was aware of or
    should have been aware of any part of Ms. Manarys clinical picture that was
    not known to Dr. Strban.  Both doctors had equal access to and equal knowledge
    of the facts relevant to an assessment of whether Ms. Manarys heart-related
    problems should be treated as an emergency.

[67]

Nor
    can Ms. Manarys pregnancy and Dr. Halmos role as her MRP and obstetrician
    explain the trial judges different findings.  All of the doctors agreed that Ms.
    Manarys heart-related problems had to be addressed before she delivered.  The
    trial judge did not, however, suggest that Dr. Halmo was aware of or should
    have been aware of pregnancy-related issues that would require him to reject
    Dr. Strbans proposed treatment plan.

[68]

In
    considering whether the finding against Dr. Halmo can be justified based on
    pregnancy-related problems, it is important to realize that on the facts of
    this case, it was of no assistance to the plaintiff to demonstrate that by
    virtue of her pregnancy and the need to transfer her to a tertiary care centre,
    Ms. Manary should have been seen by a cardiologist before her discharge from
    the hospital.  The plaintiff could only succeed by showing that the situation
    was sufficiently urgent to necessitate her transfer to a tertiary care centre
    before August 15 so that she could undergo the necessary surgery no later than
    the morning of August 15.  Ms. Manarys most unfortunate death on August 15
    renders irrelevant questions as to whether the stage of her pregnancy dictated
    that she receive a cardiac consultation well before the week or two envisioned
    by Dr. Strban.

[69]

Finally,
    there is nothing in Dr. Halmos role as MRP that can reconcile the results
    arrived at by the trial judge.  Clearly, as counsel for the respondent
    contends, Dr. Halmo was obliged to formulate an overall plan of care. 
    However one describes that oversight role, nothing in the evidence suggests that
    oversight extended to an obligation to disregard the reasonable opinions
    offered by specialists specifically engaged in the treatment of Ms. Manary
    because of their expertise.  Even if one accepts Dr. Davies contention that an
    MRP must second guess specialists brought in to consult on the treatment of a
    patient, Dr. Davies does not suggest that the second guessing extends to an
    obligation to reject a reasonable treatment plan proposed by a specialist
    qualified to offer that proposed treatment plan.

[70]

How
    did the trial judge arrive at these inconsistent findings?  Counsel for the
    appellant persuasively argues that the trial judges inconsistent findings are
    explained by his application of an overly rigorous standard of care to Dr.
    Halmos conduct.  Counsel submits that the trial judge improperly imposed that
    more rigorous standard because of Dr. Halmos role as the MRP.

[71]

Counsel
    relies on the following passage in the trial judges reasons:

Had Dr. Halmo, who bore ultimate responsibility for the
    patient, not merely accepted the opinion and paths of treatment taken by the
    respirologists,
he would have been driven to the
    conclusion that the safest course was an immediate transfer to a tertiary care
    centre
[Emphasis added.]

[72]

Counsel
    for the appellant submits the safest course standard is significantly higher
    than the reasonableness standard applied to Dr. Strbans conduct.  A proposed
    treatment plan may be reasonable but may not be the safest treatment available
    in the circumstances.  Counsel submits that the trial judges inconsistent
    findings indicate that Dr. Halmo was found negligent not because he failed to
    act as a reasonable obstetrician and MRP would in the circumstances, but
    because he failed to choose the safest course for Ms. Manary.

[73]

Counsels
    reading of the trial judges reasons may well explain the inconsistent results.
    If the trial judge did apply a safest course standard of care he erred in
    law.  Dr. Halmos liability had to be tested against the standard of what a
    reasonable physician in the circumstances would have done.  Those circumstances
    included the fact that Dr. Halmo was the MRP.  His role as the MRP did not,
    however, require that he follow only the safest course of treatment.  That standard
    is wholly unworkable in the real world of limited medical resources and is contrary
    to binding precedent: see
Lapointe v. Hôpital Le Gardeur
, [1992] 1
    S.C.R. 351, at p. 362.

[74]

Counsel
    for the appellant also argues that even if the inconsistent findings cannot be
    traced to a legal error, those findings cannot stand.  She argues that
    irreconcilable findings of fact that are not the product of a legal error must
    reflect reversible factual error.

[75]

I
    find support for counsels submission in
R. v. Sinclair
, 2011 SCC 40,
    [2011] 3 S.C.R. 3, at para. 21, where the Supreme Court, in the context of considering
    the reasonableness of a trial judges decision in a criminal case said:

A verdict is likewise unreasonable where the judge
draws an inference or makes
    a finding of fact essential to the verdict
if that inference or finding
    of fact is demonstrably incompatible with evidence that is neither contradicted
    by other evidence nor rejected by the trial judge.
[Emphasis added.]

[76]

Reasonableness,
    the concept most commonly used in the criminal law context to describe the
    standard of appellate review applicable to findings of fact, is also used in
    the civil context.  In
H.L. v. Attorney General of Canada
, 2005 SCC 25,
    [2005] 1 S.C.R. 401, at para. 4, Fish J., for the majority, in describing the
    standard of review applicable to appellate review of fact finding, said:

[I]t [the Court of Appeal] may substitute its own view of the
    evidence and draw its own inferences of fact where the trial judge is shown to
    have committed a palpable and overriding error
or made
    findings of fact that are clearly wrong, unreasonable or unsupported by the
    evidence.
[Emphasis added.]


[77]

The
    finding that Dr. Halmo was negligent is demonstrably incompatible with the
    finding that Dr. Strban was not negligent.  That incompatibility goes beyond an
    inconsistency between a finding of fact and other evidence that was neither contradicted
    nor rejected.  The incompatibility in this case is more fundamental in that it
    arises out of two inconsistent findings on the ultimate questions faced by the
    trial judge.

[78]

Even
    if the inconsistent findings are not the product of the legal error as alleged
    by the appellant, their demonstrable incompatibility convinces me that the
    finding against Dr. Halmo is unreasonable and warrants appellate intervention
    on that basis.  Ultimately, it does not matter whether the irreconcilable
    findings reflect legal error, a palpable and overriding error in the fact
    finding process, or an unreasonable factual finding.  In any event, the result
    cannot stand.  As the finding in respect of Dr. Strban is not challenged, it
    follows that the finding that Dr. Halmo was negligent must be set aside.


V



the causation issue

[79]

As
    I would allow the appeal for the reasons set out above, it is unnecessary to
    address the appellants causation argument.  However, for completeness, I will briefly
    indicate why I would not have given effect to that argument.

[80]

There
    was evidence from the plaintiffs experts that by no later than the morning of
    August 11 the doctors at Grand River Hospital should have treated Ms. Manarys
    condition as an emergency and obtained an immediate cardiac consultation and
    transferred Ms. Manary to a tertiary care centre.  There was also evidence from
    those experts that had Ms. Manary been transferred by August 11, it was likely
    that she would have had life-saving surgery before August 15.

[81]

The
    appellant is critical of the plaintiffs failure to call a cardiologist to
    speak to the likely course of events had Dr. Halmo requested a cardiac
    consultation.  The absence of that evidence could well have had a negative
    impact on the plaintiffs case as it related to causation.  I do not agree,
    however, that without the evidence of a cardiologist the plaintiff could not
    prove causation.

[82]

Had
    the finding that Dr. Halmo was negligent been sustainable in light of the
    finding that Dr. Strban was not negligent, the evidence of the plaintiffs
    experts was enough to demonstrate causation.  That evidence was accepted by the
    trial judge.


VI



conclusion

[83]

I
    would allow the appeal, set aside the judgment below, and dismiss the action
    against Dr. Halmo.  I do not reach Dr. Halmos application for leave to appeal
    the cost order made at trial.

D. Doherty J.A.


Juriansz and Hoy JJ.A.:

[84]

We
    would dismiss this appeal.

[85]

The
    issues concerning the responsibilities of the various doctors involved in Ms.
    Manarys care must be considered in light of the Hospitals policies. A
    representative of the Hospital introduced Exhibit 4, Policy 2-30 from the
    Hospitals Physician Manual entitled Most Responsible Practitioner/Attending
    Practitioner. The Policy Manual indicates the Policy was approved by the
    Medical Advisory Committee.

[86]

The
    document states that:

IT IS THE POLICY OF THE HOSPITAL THAT:

The Most Responsible Practitioner/Attending Practitioner
    (MRP) is the practitioner most responsible for the hospital care of a
    particular patient. The MRP is responsible for writing and clarifying orders,
    and providing a plan of care, obtaining consultations as appropriate,
    coordinating care, as well as the discharge process. Staff concerns about a
    patient should be directed to the MRP.

The MRP is to maintain communication with the patients
    relatives and maintain/liaison if necessary, with consultants and family
    practitioners involved in the patients care.

The MRP will be the admitting practitioner or such other
    practitioner to whom the patient has been transferred, from time to time, in
    accordance with the Rules. There shall be only one practitioner at any one time
    referred to as the most responsible practitioner.

[87]

The
    Policy goes on to stipulate certain formal and procedural matters. A patient
    cannot be admitted unless an MRP is designated. On admission, the MRP must be
    clearly defined on the face sheet. The transfer of the MRP responsibility must
    be done in writing, on the order sheet to another practitioner. The Hospital
    representative testified that the Policy is distributed to all physicians on
    staff. The Hospital required that the physician fulfilling the MRP
    responsibility sign the face sheet that identified him or her as the MRP. Dr.
    Halmo signed the document designating him as the MRP for Ms. Manary and he
    remained the MRP from the time of her admission until her death.

[88]

At
    trial, the major issue in the respondents case against Dr. Halmo was the
    import of the Hospitals MRP Policy. As the trial judge recounts, counsel for Dr.
    Halmo put forward that there was an implied and undocumented understanding
    between physicians as to the division of their responsibilities under the
    Policy. They submitted that the implied and undocumented understanding resulted
    in coordinated, comprehensive care based on the relative expertise of the
    physicians. Ms. Manarys chart, counsel for Dr. Halmo argued at trial, made it clear
    that the respirologists were closely managing Christine's care. The argument
    advanced at trial, and repeated here, was that Dr. Halmo, as MRP, was not
    required to question the diagnosis and treatment plan that the respirologists,
    principally Dr. Strban, had instituted, or consider any alternative plan of
    care. Counsel put to the trial judge that Dr. Halmo was less expert than Dr.
    Strban in cardiac issues and that he appropriately deferred to Dr. Strbans
    plan to discharge Ms. Manary and arrange a cardiac consultation for her in a
    week or two.

[89]

The
    trial judge emphatically rejected this view of Dr. Halmos role and
    responsibilities as the MRP. He said that the defence position on the division
    of physicians responsibilities was counterintuitive. It would defeat the
    purpose of designating an MRP and mean that Dr. Halmo served no function beyond
    that of an obstetrician. He went on to find that:

The standard of care of an MRP is not limited to delegating tasks
    and responsibilities to experts. An MRP is not absolved of responsibility with
    respect to a medical condition simply because that medical problem is beyond
    the expertise of the MRP. As stated in Exhibit 4 [the MRP policy], the MRP is
    responsible for a plan of care.
That plan should address the totality of
    care
, not only obstetric issues. [Emphasis added.]

[90]

The
    Hospitals Policy Manual and the testimony of Dr. Davies provided abundant
    support for the trial judges rejection of the narrow implied and undocumented
    view of the responsibilities of an MRP advocated by Dr. Halmo.

[91]

The
    trial judge found that Dr. Halmo did not exercise critical judgment or provide
    an appropriate plan of care for Ms. Manary, and accordingly failed to fulfill
    his responsibilities as the MRP.

[92]

Before
    reviewing the basis for that finding, we state our agreement with the trial
    judges observation that a failure to exercise objective and critical judgment
    can constitute negligence. The trial judge surmised that perhaps Dr. Halmo had
    been lulled into a belief that any responsibility beyond obstetrical care was
    not his. Dr. Halmos position at trial supports that supposition. As stated,
    Dr. Halmos position at trial was not that he had fulfilled his broad
    responsibilities as MRP, but that according to the narrow implied and
    undocumented understanding of the MRP position, those responsibilities had
    been largely transferred to other physicians. However, as the trial judge
    stated The standard of care required of a MRP cannot be met by an implied and
    undocumented understanding or by merely delegating responsibility.

[93]

It
    is important to remember the hospital context in which Dr. Halmo was
    functioning at the time. There was no cardiac specialist on staff at Grand
    River Hospital. Ms. Manarys complaints of severe chest pain were addressed by
    respirologists, principally by Dr. Strban.

[94]

Dr.
    Strban, as the primary consultant, believed that Ms. Manary suffered from a
    pulmonary embolism. He was away from the hospital on August 9 and 10. On August
    11 he became aware that over the weekend Ms. Manary had experienced a
    resurgence of severe pain and that a CT angiogram, conducted August 10, had
    revealed that there was a big aneurysm in her ascending aorta. The aneurysm
    was dilated to a dimension of 6 cm x 6 cm. Nevertheless, Dr. Strban maintained
    his differential diagnosis of pulmonary embolism - a diagnosis within the realm
    of respirology, as opposed to cardiology.  He explained that he maintained that
    diagnosis, though he was concerned about the weekend pain she experienced,
    because the CT angiogram showed no dissection, and she seemed greatly improved
    from August 8. On August 11, she was not having much pain, was off oxygen, was
    walking around and looking a lot better. He attributed Ms. Manarys marked
    improvement to the treatment she was receiving for pulmonary embolism. He
    considered that Ms. Manarys cardiac issues could be addressed on an outpatient
    basis. According to Dr. Strban on August 12 or 13, he communicated his
    diagnosis to Dr. Halmo by telephone and undertook to arrange a cardiac
    consultation for her on an urgent basis within a week or two. On August 13 he
    signed off placing the entry on her chart 
ready for
    discharge home from respirology point of view
 (emphasis in original).
    Under the MRP Policy Dr. Halmo remained responsible for Ms. Manarys discharge.

[95]

The
    trial judge dismissed the respondents action against Dr. Strban. Dr. Strban
    was bound to exercise that degree of care and skill which could reasonably be
    expected of a normal, prudent practitioner of the same expertise and
    experience. We note in passing that the trial judge cited
Fish v.
    Shainhouse
, [2005] O.J. No. 4575, for the proposition that in medical
    malpractice cases expert evidence is required and the expert evidence must be a
    physician who practices in the same area and with the same degree of expertise
    as the specialist against whom negligence is alleged. The respondents did not
    call an expert respirologist as a witness.

[96]

While
    the trial judge found that Dr. Strban met the standard of care required of a
    respirologist, he found that Dr. Halmo fell short. He concluded that as an
    obstetrician and MRP, [Dr. Halmo] did not exercise that degree of care and
    skill which could reasonably be expected of a normal prudent practitioner of
    the same experience and standing as an obstetrical specialist
acting as an
    MRP
in August 2003 (Emphasis added). Dr. Halmo was required to
    participate in a fuller manner by exercising independent critical judgment.

[97]

As
    we read his reasons, the trial judge found that Dr. Halmos significant failing
    occurred no later than the morning of August 11. On the morning of Saturday,
    August 9, Dr. Halmo called the respirologist on duty, Dr. Jackson, to discuss
    getting a cardiology consultation. After she examined Ms. Manary on August 9,
    Dr. Jackson noted on her chart that she should have a cardiology review. In
    his morning rounds on August 11, Dr. Halmo read the notes on Ms. Manarys
    chart, including the indication that the August 10 CT scan disclosed a big
    aneurysm on Ms. Manarys ascending aorta. Later on August 13, Dr. Strban noted
    on Ms. Manarys chart that she needed a cardiology consult OPD  that is
    through the outpatient department. According to Dr. Halmo, he had no discussions
    with Dr. Strban until August 13.

[98]

The
    trial judge accepted the evidence of Dr. Davies that the enlarged aorta
    warranted attention and that an MRP had a duty to consult if he did not
    understand the cardiac findings. The trial judge concluded, as we read his
    reasons, that Dr. Halmo, who bore ultimate responsibility for the patient,
    should have exercised independent critical judgment and concluded that
    immediate, expert cardiac consultation, beyond what the chest team at the
    Hospital could provide, was required and should have arranged a transfer to a
    tertiary care center where an evaluation of her enlarged aorta and immediate
    management of her condition could be carried out.

[99]

If,
    as Dr. Strban believed, the pain that Ms. Manary had been experiencing in the
    hospital was not cardiac-related, the large aneurysm was nonetheless a clear
    and significant cardiac problem beyond the expertise of the respirologists that
    would have to be addressed before delivery. The trial judges reasons must be
    assessed in the context of the record. As Dr. Davies testified, one can never
    predict exactly when a baby is coming. According to Dr. Cowal, the defences
    obstetrical expert, 90 percent of patients deliver within 37 to 41 weeks. And,
    as Dr. Cowal testified, a prudent obstetrician would know that the stresses of
    labour and delivery could cause a tear, a bleed or a dissection of an aneurysm.
    Ms. Manary  who had been in severe pain for several days, who suffered from
    gestational diabetes, and whose pre-pregnancy weight was 215 pounds - was fast
    approaching her 37
th
week. Grand River Hospital lacked the
    facilities to look after high-risk obstetrical patients, such as Ms. Manary.
    Dr. Christakis, the cardiovascular surgeon called by the defence, conceded that
    the possibility of an early delivery would be left to the obstetrician to
    evaluate.

[100]

We are not
    troubled by the fact that the trial judge found Dr. Strban met the standard of
    care applicable to a respirologist and at the same time found Dr. Halmo failed
    to meet the standard of care applicable to an obstetrician and MRP. We regard
    the argument that these two findings are logically incompatible to be but a
    variation of the argument rejected at trial  that the implied undocumented
    working relationship between physicians at the hospital allowed Dr. Halmo, the
    MRP, to delegate Ms. Manarys care to the chest team at the hospital and
    relieved him from his obligations MRP to exercise independent judgment and
    oversight. Certainly, the chest team had greater expertise in cardiac issues
    than did Dr. Halmo. We do not understand the trial judge to say that the MRP
    was required to exercise greater expertise than the respirologists. He stated
    the case turned on the determination of the standard of practice for an
    obstetrician
functioning as an MRP
 (emphasis added). Under the MRP
    policy, Dr. Halmo was responsible for obtaining consultations as appropriate,
    for coordinating care, and for a plan of care that addressed the totality of
    care, not just obstetric issues. Dr. Halmo had different expertise and
    different responsibilities than Dr. Strban. For example, it was for Dr. Halmo,
    as an obstetrician functioning as an MRP, and not Dr. Strban, to factor in both
    the timing of delivery, and the fact that delivery should not occur at the Grand
    River Hospital. The trial judge found that had Dr. Halmo recognized and
    exercised his responsibility as MRP, he would have sought an immediate transfer
    to a tertiary care centre where an evaluation of Ms. Manarys enlarged aorta
    and immediate management of her condition would have been available upon
    reading the note describing the result of Ms. Manarys CT scan. In our view,
    when read in context, the trial judge did not improperly test Dr. Halmos
    conduct against a safest course standard of care. The trial judge was clear
    that he found that Dr. Halmo fell short of the standard of care because as an
    obstetrician and MRP, he did not exercise that degree of care and skill which
    could reasonably be expected of a normal prudent practitioner of the same experience
    and standing as an obstetrical specialist acting as an MRP in August 2003.

[101]

In regard to
    causation, the trial judge was satisfied had Dr. Halmo not abdicated his
    responsibility as MRP. The cardiac evaluation of Ms. Manary, her transfer to a
    tertiary care centre where additional expertise and facilities were available,
    and the necessary surgery could have been completed days before Ms. Manarys
    untimely death on August 15, 2003. Dr. Rubins testimony supports that finding.

[102]

Finally, we are
    satisfied the trial judges reasons adequately explain to Dr. Halmo why he was
    found negligent. His implied and undocumented understanding that he had limited
    responsibilities as MRP was rejected. He failed in his actual MRP
    responsibilities to exercise judgment and provide a plan of care for Ms.
    Manary.

[103]

We would dismiss
    the appeal.

[104]

The appellant
    appealed the trial judges award of costs arguing that the judge failed to
    consider the divided success of the case and offers to settle made by Dr.
    Strban and Dr. Hanna. He argues that the trial judge focussed on the reasonable
    expectations of the parties as to what a lawyer would have to do to prepare for
    this kind of litigation to the exclusion of other factors.

[105]

The standard for
    interfering with a trial judges costs award on appeal is a high one. We are
    not persuaded there is any basis for doing so in this case. If Doctors Strban
    and Hanna had been let out of the action, the trial would have been much the
    same. The same experts would still have been required as part of the case
    against the defendant, Dr. Halmo as he argued that he was entitled to rely on
    the respirologists.

[106]

Our attention
    was not drawn to any offer to settle made by all defendants that the trial
    judge failed to consider.

[107]

We would dismiss
    the appellants costs appeal.

[108]

We would fix the
    respondents costs of the appeal in the amount of $40,000 plus disbursements
    and applicable taxes.

R.G.
    Juriansz J.A.

Alexandra
    Hoy J.A.

Released: May 14, 2013





[1]
Counsel for Manary initially cross-appealed from the finding that Dr. Hanna,
    the radiologist, and Dr. Strban, the respirologist, were not negligent.  The cross-appeal
    was not pursued.



[2]
Dr. Davies was also critical of Dr. Halmos failure to make daily progress
    notes in Ms. Manarys chart.  He stressed that the notes are essential to
    effective communication.  As I do not see the quality of Dr. Halmos notes, or
    the effectiveness of the communication among the doctors, as ultimately
    relevant to the finding of liability against Dr. Halmo, I will not address that
    part of the evidence.


