CITATION: Salter v. Hirst, 2011 ONCA 609

DATE: 20110923

DOCKET: C52377

COURT OF APPEAL FOR ONTARIO

Doherty, Weiler and Laskin JJ.A.

BETWEEN

George Salter and Karen Hogan

Plaintiffs (Appellants)

and

Dr. Jason Hirst, Nurse Santina Murvella, Nurse Kelly Comer, Nurse Jackie Logan, Nurse Carol Worgan, Nurse Molly Coughlin, Nurse Sandy Tomaszewski and Stevenson Memorial Hospital

Defendants (Respondent)

James L. Vigmond and Adam R. Little, for the appellants

Christopher Hubbard and Elder C. Marques, for the respondent

Heard: September 20, 2011

On appeal from the judgment of Justice Margaret P. Eberhard of the Superior Court of Justice, dated June 10, 2010.

ENDORSEMENT

[1]              This appeal raises the correctness of the trial judge’s decision to invoke Rule 52.08 of the Rules of Civil Procedure to overturn the jury’s finding of negligence.  The trial judge held that there was “no evidence” upon which the jury could have found that the plaintiffs, now appellants, Mr. George Salter, and his wife, Karen Hogan, had successfully proved the causation component of the negligence test.

[2]              The appellants seek to have Eberhard J.’s judgment set aside and judgment entered in accordance with the verdict of the jury on the basis that there was some evidence from which the jury could have inferred that his injuries were caused or contributed to by Dr. Jason Hirst.

[3]              The factual matrix of the appeal is as follows.  George Salter was admitted to Stevenson Memorial Hospital, Alliston, at 4:48 p.m. on Thursday, June 12, 2003, after attending at the emergency department with severe abdominal pain.  Dr. Jason Hirst was the admitting physician and his diagnosis was, “abdominal pain not yet diagnosed.”

[4]              Between June 12 and June 14, Mr. Salter’s condition worsened and his pain also increased substantially.  He was vomiting and passing blood in his urine and stool.  After Mr. Salter had passed a further 200 cc of blood rectally at 16:15 pm June 14, Nurse Tomaszewski then brought a container of Mr. Salter’s blood and stool to Dr. Hirst and asked that he be reassessed.  Dr. Hirst did so and decided Mr. Salter needed to be transferred to another facility. 

[5]              Mr. Salter began to lose feeling in his lower extremities.  At 16:40 on June 14, he complained of severe groin pain and leg numbness.  Mr. Salter was given Demerol at 17:00 and transferred to Southlake Regional Health Centre in Newmarket at 18:15 to the care of vascular surgeon, Dr. Deepak Gupta.  He arrived at that hospital at approximately 19:10 and was examined at 19:50.  Dr. Gupta made a provisional diagnosis of aortic dissection, a life threatening condition with which he had no experience.  He arranged for Mr. Salter to be transferred to Hamilton General Hospital.  Dr. Gupta ordered a CT scan for Mr. Salter to take with him to Hamilton but when the ambulance arrived at Southlake the CT scan had not yet been done.  Given the severity of Mr. Salter’s condition, Dr. Gupta decided Mr. Salter should be transferred without it. 

[6]              Mr. Salter arrived at Hamilton General Hospital at approximately three minutes after midnight on June 15, 2003.  He was sent directly for CT imaging which revealed a distal aortic occlusion or abdominal blood clot.  He was operated on at 2:22 a.m. and the surgery was completed at 4:25 a.m.

[7]              With the benefit of hindsight, we now know that Dr. Gupta’s provisional diagnosis was wrong.  The post-operative diagnosis was saddle embolus and mesenteric vein thrombosis, two rare conditions.  The lack of blood flow to Mr. Salter’s legs prior to surgery damaged them to such an extent that he lost the use of both of his legs.  In order to treat these problems and avoid injury, Mr. Salter required surgery within a six hour window of opportunity from the time he began to experience lower extremity symptoms.  From the time Mr. Salter experienced lower extremity pain and numbness until the time surgery was completed in Hamilton, nearly twelve hours had elapsed.

[8]              Mr. Salter sued Dr. Hirst for negligence, alleging that the doctor’s failure to transfer him sooner resulted in his paralysis.  Damages were agreed upon and the only issues at trial were liability and causation.

[9]              Dr. Bonn testified that Dr. Hirst was not expected to diagnose Mr. Salter’s rare condition, but that he had failed to meet the standard of care by not transferring Mr. Salter to another facility Friday afternoon (the best case scenario) or Saturday morning (the worst case scenario), instead of waiting until Saturday evening.  Dr. Brankston agreed that Dr. Hirst was not expected to diagnose Mr. Salter’s condition and that he failed to meet the standard of care by not transferring Mr. Salter to another facility on the evening of Friday, June 13.

[10]         Although there was conflicting evidence from the respondent’s experts at trial, the jury found that Dr. Hirst had failed to meet the standard of care by not deciding to transfer Mr. Salter sooner.  The jury also found that Dr. Hirst’s decision not to transfer Mr. Salter sooner caused his paraplegia.

[11]         On the issue of causation, the appellants relied on the reports of two vascular surgeons, Dr. Gupta and Dr. Lossing.  The defence chose not to call any expert evidence to counter the issue of causation.

[12]         The trial judge’ s reasons focus on the fact that the reports of these two vascular surgeons, which were filed at trial, make no mention of what would likely have transpired in terms of CT scans, diagnoses and surgical options had Mr. Salter been transferred to Southlake Hospital under the care of Dr. Gupta sooner.  She concluded that there was “no evidence to suggest what earlier, leisurely investigation would have shown.”  As a result, the trial judge held that the appellants failed to provide any evidence upon which a jury could have found, on a balance of probabilities, that Dr. Hirst’s delay in transferring Mr. Salter caused his paralysis.

[13]         The appellants argue that the evidence of Doctors Lossing and Gupta supports the inference that if Dr. Gupta had had the opportunity for a more leisurely examination and had had time to review the results of a CT scan, he would likely have identified the blood clots and carried out the appropriate surgery in time to save Mr. Salter’s legs.  Dr. Gupta’s report does not say this.  It only states that he ordered a CT scan, that CT technicians come from Newmarket and the surrounding areas and were expected to be able to report to Southlake within, at most, one hour of being called, and that a CT scan generally takes 35 to 45 minutes to complete and a further ten minutes to receive the results.  The report also says that Dr. Gupta could perform surgery to treat a saddle embolus and portal vein thrombosis.  The evidence indicated an operating room was available.  With respect to Dr. Lossing’s report, Mr. Salter relies on the following passages and asks us to draw the inference that had a CT scan been done the blood clots would have been apparent and he would have had surgery :

Given the time frame of a 10 hour delay after the onset of lower extremity symptoms it is my opinion that this gentleman suffered the long-term consequences of a significant delay in the management of his acute arterial ischemia resulting in permanent paralysis.  In other words, if this gentleman had an immediate CT scan or had been taken to the operating room immediately after the onset of his lower extremity symptoms, these actions, in all probability would have reduced the chances of long-term permanent paralysis.

In conclusion, it is most probable this patient’s long-term unfortunate sequelae of paralysis was the result of the prolonged delay of his definitive treatment.  Treatment within 6 hours of the onset of his lower extremity symptoms at 1640 hours on Saturday June 14^th would have, on the balance of probabilities, prevented his paralysis.

[14]         We agree with the trial judge that the reports tendered afford no evidence that Dr. Hirst’s negligence caused or contributed to Mr. Salter’s paraplegia.  There is no issue that “ loss of a chance” is not compensable in medical malpractice cases.  The plaintiff must prove on the balance of probabilities that, but for the doctor’s negligence, the unfavourable outcome would have been avoided with prompt diagnosis and treatment:  Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.) at paras. 25, 36. 

[15]         Neither Dr. Gupta nor Dr. Lossing’s report addresses causation as such.  The appellants led evidence to establish that surgery could have been conducted by Dr. Gupta within the six hour window of opportunity.  However, the appellants led no evidence to show that the correct diagnosis likely would have been made and successful treatment likely would have been completed before the close of the window of opportunity had Mr. Salter been transferred earlier.

[16]         Dr. Lossing’s report only says that Mr. Salter’s paraplegia is the result of prolonged delay before receiving treatment.  While we know that Dr. Hirst was negligent in not transferring Mr. Salter sooner, we do not know whether that delay caused or contributed to his current condition.  It was within the power of the appellants to lead evidence from Drs. Gupta and Lossing regarding what likely would have happened if Dr. Hirst decided to transfer Mr. Salter sooner, how an earlier diagnosis likely would have been made and led to surgery within the six hour window of opportunity. They did not do this.

[17]         Accordingly, the trial judge correctly dismissed the claim pursuant to Rule 52.08 and the appeal is dismissed.

[18]         By agreement, costs of the appeal are fixed in the amount of $20,000.  We award those costs to the respondent, Dr. Hirst, if demanded.

“Doherty J.A.”

“K.M. Weiler J.A.”

“John Laskin J.A.”