



COURT OF APPEAL FOR ONTARIO

CITATION: Crump v. Fiture, 2018 ONCA 439

DATE: 20180509

DOCKET: C64508

Hourigan, Benotto and Fairburn JJ.A.

BETWEEN

Jennifer
    Crump, Victoria Crump, Peter Crump and

Christopher Crump, by his Litigation
    Guardian, Victoria Crump

Plaintiffs

(Respondents)

and

Dr.
    Ali Otman Fiture
, Diane Pappas and

York Central Hospital

Defendant

(
Appellant
)

Sarit E. Batner and Carole Piovesan, for the appellant

Aleks Mladenovic and James V. Leone, for the respondents

Heard: May 4, 2018.

On appeal from the judgment of Justice Hugh K. OConnell
    of the Superior Court of Justice, dated October 3, 2017.

REASONS FOR DECISION

Introduction

[1]

The appellant, Dr. Ali Fiture,
    appeals from the trial judges judgment in a medical negligence action, wherein
    he was found to be negligent in the treatment of the respondent, Jennifer
    Crump.

[2]

For the reasons that follow, the appeal is
    dismissed.

Facts

[3]

Jennifer first complained of abdominal pain on
    May 20, 2000. At the time she was 11 years old. By the evening of May 23, she
    was still suffering from pain and her mother, Victoria Crump, took her to a walk-in
    clinic. She was seen there by Dr. Paul Woo, who concluded that she likely had
    acute appendicitis with perforation. He referred her to the emergency room at
    the local hospital.

[4]

In the emergency room, Jennifer was seen by Dr.
    Vito Sorrento, who also concluded that she potentially had appendicitis and referred
    her for a surgical consult. The appellant, a general surgeon, examined Jennifer
    at around 11:00 p.m. that evening. He concluded that she could be suffering
    from: (1) mesenteric adenitis secondary to respiratory tract infection and
    viremia; (2) menstrual pain related to cramps; or (3) early appendicitis.

[5]

The appellant did not order an ultrasound or
    admit Jennifer to the hospital. He discharged her and gave Victoria
    instructions, which will be discussed below, regarding the circumstances upon
    which Jennifer should be returned to the hospital.

[6]

The next day, May 24, Victoria took Jennifer to
    a scheduled appointment with her family doctor. The doctor instructed Victoria
    to follow the appellants advice.

[7]

Over the course of the next week, Jennifers symptoms
    remained stable. She had a mild fever, continued abdominal pain, and did not
    vomit. However, by May 30, Jennifers fever had increased so Victoria took her
    to the hospital. Due to the wait time there, Jennifer left with her mother
    without being seen by a doctor.

[8]

On May 31, Jennifer again saw her
    family doctor. Her fever had increased and she was referred to the hospital. At
    the hospital she underwent surgery. Her appendix had ruptured causing
    significant damage to her bowel.

The Trial Judges Decision

[9]

The parties agreed on the
    issue of damages. Thus, the trial was focused on whether the appellant was
    liable for Jennifers injuries.

[10]

There were four witnesses: Victoria; Dr.
    Raymond Mathews, the respondents expert witness; the appellant; and the appellants
    expert witness, Dr. Ian Soutter.

[11]

The trial judge concluded that the
    appellant had breached the requisite standard of care. He found that but for
    the appellants negligence, Jennifers appendix would not have ruptured nor
    would she have suffered the complications thereof.

Issues

[12]

The appellant submits that the trial judge
    erred in determining the standard of care of a general surgeon and in finding
    that causation had been established on a balance of probabilities. He further
    submits that the trial judges reasons were neither timely nor sufficient.

Analysis

(1)

Standard of Care

[13]

The appellant submits that Dr. Mathews
    admitted in cross-examination that the appellant met the standard of care
    required of a general surgeon at the time. In particular, he says that Dr.
    Mathews admitted that the standard of care did not require any one of: ordering
    an ultrasound, hospital admission, or scheduling a follow-up visit. Given this admission,
    the appellant submits that the trial judge erred in finding that one of those
    actions was required in the circumstances in order to meet the standard of care.
    The appellant says that this error was compounded when the trial judge essentially
    ignored Dr. Mathews admission on the basis that it was made during his
    cross-examination, when the witness was fatigued and exasperated.

[14]

We do not give effect to this argument.
    There was a divergence in the evidence between the appellant and Victoria
    regarding the appellants discharge instructions. The appellant has no
    independent recollection of treating Jennifer, but says that he told her mother
    to bring her back if she did not get better. The appellant maintains that this
    instruction accords with Dr. Matthews admission about the applicable standard
    of care.

[15]

Victorias evidence was that the instructions
    were to only bring her daughter back if her condition worsened. She says she was
    given no instruction about what to do if Jennifer did not improve.

[16]

The trial judge preferred Victorias evidence
    over the appellants on this issue. This was a finding of fact that was well
    grounded in the evidence. The appellant dictated a note, made contemporaneously
    with his examination of Jennifer, which includes the following comment: The
    mother is agreeable to monitor her at home and bring her back if she vomits,
    develops fever or more pain. Otherwise she will give her clear fluids today and
    advance her diet slowly. On Jennifers chart, he made the handwritten note:
    If problem ↑ return. There is no indication in the records that
    Victoria was told to return with Jennifer if her condition did not improve. The
    trial judge made no error in accepting Victorias version of events.

[17]

It is in the context of this finding that Dr.
    Mathews alleged admission needs to be considered. The question put to Dr.
    Mathews was:

Q. And so it would have been appropriate to
    give a discharge instruction which essentially puts the mother in charge; I
    want you to look at her. And this is what I want you to look for and if shes
    not better, I want you to bring her back, right? Thats what youre saying. If
    shes not better the following morning to return for reassessment, an
    ultrasound, thats what you say, right?

A. Right.

[18]

The factual premise underlying the question
    was not established, i.e. that Jennifer was to be brought back to the hospital
    the next morning if she was not feeling better. Therefore, there was no
    admission and the trial judge made no error in not relying upon the alleged
    admission.

[19]

We are also not persuaded that the trial
    judge erred in finding that the appellant should have prioritized appendicitis
    as a top drawer consideration in his differential diagnosis. That finding was
    also supported by the evidence. The appellants expert provided an opinion that
    the likelihood of appendicitis was very low. However, his expert report did not
    withstand cross-examination. The trial judge found that it was unreliable given
    that Dr. Soutter demonstrated a surgical bias to support the appellant.
    Further, he found that Dr. Soutter failed to mention a critical distinction
    between sets of studies that were relied upon in giving his opinion and that he
    cherry-picked statistics. Dr. Mathews evidence was that had he seen Jennifer
    on May 23, he probably would have operated on her that evening.

[20]

In our view, the trial judge made no
    palpable and overriding error in finding that the appellant fell below the
    requisite standard of care for a general surgeon as at the relevant time.

(2)

Causation

[21]

The appellant submits that the trial judge
    erred by relying solely on a different ranking of differential diagnosis as a
    basis for finding causation. This is not a fair reading of the trial judges
    reasons. In his reasons, the trial judge states:

Dr. Fiture fell below the standard of care of
    a similarly situated surgeon in his assessment of Jennifer Crump and also in
    his discharge instructions. Causation has been established. But for the
    negligence of Dr. Fiture, Jennifer Crump would not have suffered the issues
    that befell her when she was eventually operated on by Dr. Lee.

[22]

It is clear that the trial judge did not
    exclusively base his causation finding on the differential diagnosis, as he
    also relied on the finding that the appellant was negligent in his discharge
    instructions.

[23]

The appellant also argues that the trial
    judge erred in not taking into account that when Jennifers family doctor
    examined her on May 24, the doctor did not diagnose appendicitis or refer her
    to the hospital.

[24]

We would not give effect to this
    submission. The trial judge accepted Victorias evidence that she was told by
    the family doctor to follow the appellants advice. He also explicitly relied
    on Dr. Matthews evidence regarding causation, which he found to be
    uncontradicted. Dr. Matthews testified that in the circumstances a family
    doctor would defer to the advice given by a surgeon and he was of the view that
    Jennifer needed to be seen in a follow up visit by a surgeon, not a family
    doctor.

[25]

The appellants submission also ignores Dr.
    Soutters evidence that had Jennifer returned to the hospital either the next
    day or a day or two after, there was a likelihood that a diagnosis of
    appendicitis would have been made.

[26]

In summary, the causation finding was
    available to the trial judge on the evidence. There is no basis for appellate
    interference.

(3)

Timeliness and Sufficiency of Reasons

[27]

The appellant notes that the last witness
    testified at trial in May 2015 but that the reasons were not released until
    October 2017. He submits that in addition to being untimely, the reasons are
    also insufficient to permit appellate review.

[28]

We start with the sufficiency of the
    reasons. In our view, the reasons, when read in the context of the trial
    record, permit appellate review. While there are parts of the reasons that would
    have benefitted from a more detailed analysis, this court was able to
    understand the trial judges conclusions on the issues and how he reached them.

[29]

We are sympathetic to the appellants
    complaint about the timeliness of the reasons. Written submissions were filed
    in August 2015 and the reasons were not released until over two years later in
    October 2017. Although the reasons were released after what can only be
    described as an inordinate delay, we conclude that, in the context of this
    case, the delay did not impede the trial judges ability to fairly decide the
    case. This conclusion, however, should not be understood as excusing the delay.
    Litigants are entitled to a timely judicial determination and that did not
    occur here.

Disposition

[30]

The appeal is dismissed.

[31]

The respondents seek their costs of the
    appeal on a full indemnity or substantial indemnity basis. They submit that
    costs on a higher scale are justified because the appellant engaged in a
    scorched earth litigation strategy that increased costs. We are not satisfied
    that the manner in which the the appellant conducted the appeal warrants
    increased costs. On a partial indemnity basis, the appellant seeks costs in
    excess of $105,000. In our view, this amount is excessive. We award partial indemnity
    costs to the respondents in the all-inclusive sum of $80,000.

C.W. Hourigan J.A.

M.L. Benotto J.A.

Fairburn J.A.


