



COURT OF APPEAL FOR ONTARIO

CITATION: Fowlow v. Southlake Regional Health
Centre, 2014 ONCA 193

DATE: 20140314

DOCKET: C56387

Juriansz, Pepall and Strathy JJ.A.

BETWEEN

Anita
Brebant Fowlow, in her Personal Capacity

and as
Estate Trustee for the Estate of

Frederick
Chesley Fowlow, a Deceased; Jonathan

Frederick
Fowlow, and Jennifer Anne-Marie Fowlow

Appellants (Plaintiffs)

and

Southlake
Regional Health Centre and
Dr. Deepak Gupta

Respondent in appeal
(Defendants)

Bernie Romano, for the appellants

Erica J. Baron and Byron Shaw, for the respondent

Heard: March 4, 2014

On appeal from the judgment of Justice David G. Stinson
of the Superior Court of Justice, dated November 19, 2012.

ENDORSEMENT

[1]

This is an appeal from the trial judges dismissal of the appellants
medical malpractice action against the respondent doctor. The appellants are
the estate and family members of the respondents patient who died four days
after undergoing an axillary-femoral bypass operation performed by the
respondent.

[2]

An axillary-femoral bypass involves the insertion of an artificial blood
vessel from the axillary artery to the femoral artery in order to by-pass a
blockage. The respondent used an IMPRA Flex Thinwall graft for the procedure.
The respondent admitted that he did not read the manufacturers Information For
Use (IFU) for the graft, and that he was unaware that the IFU indicated that
the graft was not recommended for an axillary-femoral bypass. The operation
itself was uneventful. Shortly after being discharged from hospital, the
patient died from massive blood loss resulting from the detachment of the graft
from the axillary artery.

[3]

The trial judge found that the respondent failed to meet the standard of
care in several respects: by failing to inform the patient he intended to
install a graft that was expressly not recommended for the procedure and
failing to obtain the patients consent to do so, by failing to be aware of the
manufacturers IFU indicating the graft was not recommended, and by carrying
out the procedure using a graft that was not recommended. However, the trial
judge went on to find that the appellants had failed to meet their burden of
proof to establish a causal connection between the respondents failures and
the death of the patient.

[4]

In his detailed and clearly written reasons, the trial judge said the
appellants, to establish causation, had relied only on the caution in the
manufacturers IFU and the fact that the graft had become detached from the
axillary artery. He pointed out that they led no evidence as to whether the
sutures pulled through the graft, whether the sutures pulled through the
artery, whether the graft itself tore, or whether there was some combination of
these events. The trial judge observed that it was entirely possible that the
detachment of the graft had nothing to do with the quality of the graft itself,
but rather was due to the inability of the patients axillary artery to
maintain the connection. He noted, for example, that patients with advanced
arterial disease may have arteries that are particularly fragile, in which case
the artery walls are weaker and less able to withstand the disruption
associated with the bypass procedure. He added that the patient in this case
had advanced arterial disease.

[5]

In the absence of evidence connecting the detachment to the quality of
the graft, the trial judge concluded that he was unable to draw a causal link
between the respondents failures to meet the standard of care and the death of
the patient.

[6]

On appeal, the appellants submit the trial judge erred by unduly
focusing on the specific mechanism that led to the detachment. In doing so,
they say he required them to establish causation with scientific precision. They
submit he failed to apply the robust and pragmatic approach to causation set
out in
Snell v. Farrell
, [1990] 2 S.C.R. 311, and that he failed to apply
the modified objective test for causation in
Reibl v. Hughes,
[1980]
2 S.C.R. 880 in relation to the issue of informed consent. The appellants
submit it is impossible for them to prove the specific mechanism of the
detachment, and that these cases indicate that it is sufficient that they
established that the respondents use of a thin wall graft materially
contributed to the risk of detachment and that there was a relationship between
the increase in risk and the death of the patient. They also submit that the
trial judge failed to consider whether a reasonable person in the patients
position would have declined treatment, had he been informed of the use of a
not recommended graft.

[7]

We do not agree.

[8]

First, as a factual matter, the trial judge did not accept that the
appellants had established that the use of the IMPRA Flex Thinwall graft
increased the risk of detachment. He said:

Apart from the manufacturer's warning, the plaintiffs were
unable to point to any particular evidence to support the conclusion that the
disruption was due to the quality of the graft employed. They tendered no
evidence from the manufacturer to explain why the warning was included in the
IFU or to indicate any history of problems with that particular manufacturer's
graft in this type of application. It may be that other problems led to the
inclusion of the warning, such as reports of blockages or clotting or kinking
in the tube, to name a few.

[9]

Second, this is not a case for the application of the material
contribution approach. As the Supreme Court of Canada recently pointed out in
Clements
v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, the material contribution
approach may be employed where it is truly impossible to establish but for
causation, and is particularly apt for cases involving multiple tortfeasors.
Not only was there only a single tortfeasor in this case, but the appellants
had not established it was truly impossible for them to satisfy the but for
test. We agree that without evidence from the manufacturer or from a
pathologist who performed or witnessed the post-mortem examination, or at least
evidence of why these witnesses would not be helpful, the impossibility
criterion was not satisfied.

[10]

Third,
the robust and pragmatic approach does not dispense with the requirement that
plaintiffs lead some evidence of causal connection, whether the claim is based
on negligence or on breach of the duty of disclosure. Moreover, the approach is
most robustly applied in cases in which the facts lie particularly within the knowledge
of the defendant. Counsel for the appellant recognizes that the appellants in
this case were equally able to tender evidence from the manufacturer or from a
pathologist who performed or witnessed the post-mortem examination.

[11]

We
do not doubt that the trial judge engaged in a robust and pragmatic analysis of
the evidence. After his careful review, he declined to infer that the
respondents use of a graft contrary to the manufacturers recommendation and
failure to disclose were sufficient, in itself, to establish a causal link to the
patients death. We are not persuaded that he committed a reversible error.

[12]

The
appeal is dismissed. The respondents costs are fixed in the amount of $14,000
all-inclusive as agreed by counsel.

R.G.
Juriansz J.A.

S.E.
Pepall J.A.

G.
R. Strathy J.A.


