



COURT OF APPEAL FOR ONTARIO

CITATION: Sozonchuk v. Polych, 2013 ONCA 253

DATE: 20130425

DOCKET: C54980

Winkler C.J.O., Weiler and Laskin JJ.A.

BETWEEN

Stephen Michael Sozonchuk, Margaret Rachel Moser,
    Mikelina Naomi Moser Sozonchuk, Elizabeth
    Anne Sozonchuk

Plaintiffs

and

Carol Polych
,
    University Heath Network c.o.b. as Toronto
    Western Hospital,
Ontario Best Nursing Agency Ltd.

Defendants (
Appellants
/Respondent)

Steven Stieber, for the appellants

John J. Morris, for the respondent

Heard: April 5, 2013

On appeal from the judgment of Justice Laurence Arthur Pattillo
    of the Superior Court of Justice, dated January 6, 2012.

ENDORSEMENT

Background

[1]

The appellants, Nurse Carol Polych and Ontario Best Nursing Agency
    (Best Nursing), were found to be 50 per cent liable in negligence on the
    respondent University Health Networks (UHN) crossclaim. The crossclaim was
    issued in response to an action by Mr. Sozonchuk against UHN for damages while
    he was a patient at the respondent Toronto Western Hospital (the Hospital).

[2]

Mr. Sozonchuk suffered a subarachnoid haemorrhage as a result of an
    aneurysm that burst in the interior communicating artery of his brain. On
    October 5, 2003, during or after an operation to clip the artery, Mr. Sozonchuk
    suffered a stroke. He developed complications as a result of the surgery
    including respiratory problems, a fever and bacteria in the spinal fluid, which
    required a drain. On October 8, weakness on the right side of his body was
    noted and he was diagnosed as having mild to moderate vasospasm  that is,
    bleeding around the surface of the brain.  He was treated for this with pharmacological
    therapy.

[3]

On October 17, Mr. Sozonchuk suffered an additional injury. The injury
    was noted around 2 pm when paralysis of his right side due to a stroke (hemiplegia)
    was observed. The CT scan undertaken revealed that the vasospasm had become
    severe enough that there was not enough blood to supply the brain adequately
    and a number of brain cells had been deprived of oxygen for a period of time.
    He underwent balloon angioplasty to allow more blood to flow to the brain
    because vasospasm, if untreated, can cause death.

[4]

Mr. Sozonchuk sued the Hospital and alleged that there was a delay by
    the nurses in detecting and treating his condition, which caused additional
    harm to him.  The Hospital settled Mr. Sozonchuks claim against it and pursued
    its cross-claim against Nurse Polych and her employer, Best Nursing.

[5]

The factual causation issue at trial was whether Nurse Polych, who was
    assigned to look after Mr. Sozonchuk the morning of October 17, and Nurse Benn,
    the charge nurse employed by UHN, caused or aggravated some portion of Mr. Sozonchuks
    injuries.

[6]

Based on the evidence he accepted, the trial judge made the following
    findings concerning Mr. Sozonchuks injury on a balance of probabilities:

1)

During his surgery on October 5, 2003, Mr. Sozonchuk suffered injury in
    the form of a stroke to the left side of his brain as a consequence of the
    surgery;

2)

On October 17, 2033, Mr. Sozonchuk suffered further injury to the left
    side of his brain from an ischemic stroke by  severe vasospasm;

3)

The injury Mr. Sozonchuk suffered on October 17, 2003 began to occur at
    or shortly after he became hemiplegic;

4)

Mr. Sozonchuk became hemiplegic sometime between mid morning and early
    afternoon on October 17, 2003;

5)

There was a significant delay in diagnosing Mr. Sozonchuks hemiplegia. 
    It was not diagnosed until around 2:00 pm when Nurse Potvin assessed him. 
    Thereafter he received prompt and appropriate treatment;

6)

The angioplasty was successful in arresting Mr. Sozonchuks stroke;

7)

Neither Dr. Miller nor Dr. Benoit were able to provide a firm opinion
    that the delay in obtaining the angioplasty on October 17, 2003 contributed to
    Mr. Sozonchuks injury;

8)

Drs. Miller, Benoit and Tymianski all agree that the earlier the
    assessment and treatment for vasospasm (in this case angioplasty), the more
    likely Mr. Sozonchuks ultimate deficits would have been reduced.

[7]

The trial judge ultimately found that the two nurses were jointly
    responsible for the delay in diagnosis and treatment of Mr. Sozonchuks
    vasospasm and that this delay exacerbated Mr. Sozonchuks injuries.

[8]

Nurse Polych and Ontario Best Nursing appeal this finding of fact. This
    is the sole ground of appeal.  The appellants concede that Nurse Polych fell
    below the standard of care and that the trial judge applied the correct test
    for causation.

Argument and Analysis

[9]

The appellants submit that the time frame Dr. Miller gave as to when the
    additional injury took place was so broad as to make it impossible for the
    trial judge to determine whether the negligence of Nurse Polych exacerbated the
    injuries suffered by Mr. Sozonchuk. In chief, Dr. Miller testified that, from
    the appearance of the CT scan, Mr. Sozonchuks condition was typical of
    patients who have been without adequate blood supply to the brain for a period
    of one to three hours at the time.  In cross-examination he stated, [T]hose
    times are not very precise, theyre speculation.  But I dont think it would be
    eight hours, and it could be a half an hour. Accordingly, the appellants
    submit that the trial judges finding of fact that Mr. Sozonchuk suffered a
    stroke or became hemiplegic sometime between midmorning and early afternoon on
    October 17, 2003 is unreasonable.

[10]

Having
    regard to the evidence as a whole, there was evidence upon which the trial
    judge could make the finding he did.  There was evidence that:

·

Both Dr. Miller and Dr. Benoit were of the opinion that the
    damage to Mr. Sozonchuks brain probably occurred within minutes to an hour
    from when he became hemiplegic or paralyzed on the right side of his body;

·

Between 10:30 and 12:30 p.m. Nurse Polych became more concerned
    about Mr. Sozonchuks condition and that sometime in late morning or early
    afternoon, she spoke to Nurse Benn about it;

·

Nurse Benn agreed to page a doctor;

·

When Nurse Practitioner Potvin saw the patient around 1:45 p.m.
    she noticed that he was hemiplegic on his right side and at 2:10 p.m. paged
    both doctors on call and ordered a CT scan; and

·

When Dr. Tymianski examined Mr. Sozonchuk around 3 p.m. and asked
    Nurse Polych how long Mr. Sozonchuk had been hemiplegic, he was unable to
    obtain an answer.

[11]

The
    doctors were unanimous in stating that the longer vasospasm, or a decrease in
    the flow of blood to the brain, exists, the greater the likelihood of damage.

[12]

The
    trial judge also held that Nurse Polychs duty of care was not discharged when
    she notified Nurse Benn of her concern respecting Mr. Sozonchuk. She was
    obligated to ensure Mr. Sozonchuk received the care he required and, in the
    absence of a timely response after speaking with Nurse Benn, to go over her
    head to get a doctor to see him. This holding was not challenged. Thus, there
    was a basis on which the trial judge could conclude that Nurse Polychs
    continuing negligence after the time period Mr. Sozonchuk became hemiplegic
    exacerbated the harm to him.

[13]

The
    evidence, viewed as a whole, and the trial judges holding on Nurse Polychs
    duty of care, taken together, support the trial judges finding.

[14]

The
    appellants also submit that there was merely a chance that Mr. Sozonchuks
    injuries were aggravated by Nurse Polych and loss of a chance is not
    compensable. In support of this submission the appellants rely on the evidence
    of Dr. Miller to the effect that if the angioplasty had been done sooner,
    [t]here may have been a chance that the damage to the brain would have been
    less.

[15]

We
    disagree with this submission. This was not a loss of a chance case. Dr.
    Miller was never asked to quantify whether the chance of exacerbation was
    more probable than not.  The further question he was asked was whether it was
    correct that if the procedure had been done earlier, the death to the brain
    cells may have been eliminated or been prevented.  His answer was: Correct.

[16]

The
    appellant also relies on the evidence of Dr. Benoit to the effect that had the
    angioplasty been undertaken sooner, the effect on Mr. Sozonchuks impairment
    would not have been significant. However, Dr. Benoit clarified his answer and
    stated that this effect could still have translated into a major impact on Mr.
    Sozonchuks ability to function.

[17]

Accordingly,
    the appeal from the cross-claim is dismissed.

[18]

Costs
    are agreed in the amount of $25,000, inclusive of any taxes and disbursements,
    and are payable to UHN.

Warren K. Winkler C.J.O.

Karen M. Weiler J.A.

John Laskin J.A.


