Fridays with Rogers Partners
At our weekly meeting, Jaaron Pullenayegem discussed the recent decision of the Ontario Court of Appeal in Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586, dismissing a doctor’s appeal in a medical malpractice case, and upholding the trial judge’s conclusions.
Overview
The plaintiff, Mr. Hasan, suffered a stroke and was treated by Dr. Campbell at Trillium Health Partners in Mississauga, Ontario. The trial judge found that Dr. Campbell had been negligent, stating that if he had met the standard of care, Mr. Hasan would have received timely treatment, leading to a successful recovery.
As a result of the negligence, Mr. Hasan now has severe, irreversible brain damage. Causation was the only issue considered before the Court of Appeal. The trial judge concluded that Dr. Campbell failed to consider a stroke in his diagnosis, and did not consult a neurologist or order a CT angiogram, which would have led to timely and effective treatment rather than permanent disability. The Court of Appeal agreed with the trial judge’s finding, and dismissed the appeal in favour of the plaintiff.
Facts
Mr. Hasan, a 40-year-old man, visited the emergency department at Milton District Hospital complaining of nausea and dizziness. He was diagnosed with vertigo and sent home with medication. He went to his family doctor later that day, who referred him to Trillium Health Centre with a referral note to rule out the possibility of a stroke.
The plaintiff went to Trillium, a Regional Stroke Centre, where he was assessed by nurses who noticed stroke-like symptoms and documented the referral note from his family doctor. He then met with Dr. Campbell, who did not see the referral note. Dr. Campbell conducted a physical assessment and ordered bloodwork and a CT scan. He diagnosed Mr. Hasan with vertigo and discharged him with medication.
Although Dr. Campbell thought a stroke would have been possible in his initial assessment, the CT scan didn’t show any abnormalities. He didn’t consult a neurologist or order a CT angiogram.
Mr. Hasan came back the next day via ambulance with worse symptoms. He was later intubated. A brain MRI and CT angiogram taken several days later revealed that he suffered irreversible brain damage caused by a stroke.
The test for Causation
To succeed in a medical malpractice lawsuit, the plaintiff must prove on a balance of probabilities that the defendant caused the plaintiff to suffer a bodily injury.[1] The leading Supreme Court test for causation comes from Clements v. Clements. The test requires the plaintiff to show that “but for” the defendant’s negligence, the injury would not have occurred.[2] Courts are to take “a robust and common sense” approach to the application of the test without needing scientific proof of causation.
Sacks v. Ross[3], provides a 2-step analysis when considering causation for omissions in medical malpractice cases. The first step is to determine what likely happened the moment before the defendant breached the standard of care. The second is to consider what likely would have occurred had the defendant not breached the standard of care.
If the plaintiff would have suffered the same harm despite the defendant’s breach, the but-for test for causation is not met, and the defendant cannot be held liable. However, if the plaintiff would not have suffered bodily harm but for the defendant’s breach, then the test is met, and the court must find that the defendant caused the plaintiff’s resulting injuries.
The Court reiterated that more is needed in establishing causation than for a plaintiff to show that adequate diagnosis and treatment would have given the plaintiff a chance to avoid an unfavourable outcome. The plaintiff must show that avoiding the unfavourable outcome is “more likely than not”[4].
The Issue on Appeal:
The appellant argued that the respondent did not provide evidence to show what would have happened to Mr. Hasan if Dr. Campbell had not breached the standard of care, thus failing to establish causation in the second step in the Sacks analysis.
The appellant argued that the judge could not find Dr. Campbell caused the plaintiff’s injuries simply because “some form of treatment” would be administered. Instead, the appellants argued that the plaintiff needed to show what specific treatments would have been given to Mr. Hasan and then prove that the treatments would have been successful. The plaintiffs did not provide this evidence and, therefore, did not meet their onus of proof, according to the appellants.
The Court disagreed. It highlighted that the defendant’s negligence created an evidentiary gap that the defendants cannot use to insulate themselves from liability.[5] Dr. Campbell’s breach of his standard of care resulted from not ordering proper imaging during Mr. Hasan’s first visit to the hospital. Without this imaging, it would be impossible to get the precise scientific evidence sought by the appellants to show the cause and progression of the stroke.
The Court of Appeal agreed with the trial judge’s ruling that the Court can infer causation where the defendant’s negligence prevents the plaintiff from demonstrating the link between the injury and its causation. The onus would then shift to the defendant to rebut that inference, with any uncertainty being resolved in favour of the plaintiff.
The Court of Appeal’s Decision
The first step of the Sacks test:
The Court deferred to the trial judge’s finding of fact that Mr. Hasan suffered a stroke that was discoverable had the doctor met his standard of care in consulting a neurologist or ordering a CT angiogram.
The second step in the Sacks analysis:
If Dr. Campbell had not breached his standard of care and instead consulted a neurologist or ordered a CT angiogram, Mr. Hasan would have received appropriate treatment without delay. The Court was satisfied of this conclusion without the particulars of how a neurologist would have treated Mr. Hasan. The Court concurred that it was more likely than not that Mr. Hasan had various treatment options available to him that the physicians could have employed that would have likely prevented irreversible brain damage.
Holding:
The appeal was dismissed with costs in favour of the respondent, Mr. Hasan.
Takeaways & Significance
This case clarifies and applies the test for causation in medical malpractice claims involving negligent omissions. The Court of Appeal establishes that a plaintiff need not prove the exact treatment that would have been administered nor the precise outcome of that treatment with scientific certainty.
Instead, it’s sufficient to show that some form of treatment would have been provided, and that the available options would have been more likely than not to have prevented the harm suffered. Defendants should exercise caution when trying to rely on a lack of evidence to challenge the efficacy of a proposed treatment or diagnosis. When a defendant creates an evidentiary gap by their own negligence, they cannot rely on it to insulate themselves from liability.
[1] Willick v. Willard, 2023 ONCA 792, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.
[2] Clements v. Clements, 2012 SCC 32,[2012] 2 S.C.R. 181, at para. 8
[3] 2017 ONCA 773, 417 D.L.R. (4th) 387
[4] Cottrelle v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.), at para. 25.
[5] Ghiassi v. Singh, 2018 ONCA 764, at para. 29; Goodwin v. Olupona, 2013 ONCA 259, 305 O.A.C. 245, at paras. 72-74.