Case Law Hock Appeal

Hock (Next friend of) v. Hospital for Sick Children

Between
Jessica Aaren Hock, an infant under the age of eighteen years
by her next friend Arthur John Hock and the said Arthur John
Hock, plaintiffs/respondents, and
The Hospital for Sick Children, William Williams, Dr. Salter,
W. Feteith, P. Gow, D. Willson, G.C. Mullins, Jeffrey
Smallhorn, A. Gerber and Desmon Bohn, defendants/appellants

[1998] O.J. No. 336
DRS 98-07782
Docket No. C21778

Ontario Court of Appeal
Toronto, Ontario
McMurtry C.J.O., Osborne and Charron JJ.A.

Heard: February 3, 4, and 5, 1997.
Judgment: January 30, 1998.
(81 pp.)

Appeal by two doctors, Williams and Smallhorn, from a judgment finding them negligent for damages sustained by the minor plaintiff, Hock, while in their care. There was a cross-appeal by the plaintiffs from the dismissal of the action against the other defendants. Hock was born 1978 with a heart defect. Shortly after her birth, a catheterization was conducted and showed the presence of anomalous muscle bundles in her right ventricle. Surgery for this was not done until a child was four years old. In 1983, Hock was admitted to the Hospital for Sick Children for surgery. Before the operation, Smallhorn performed an echocardiogram and a catheterization, which would provide a current picture of her condition. Smallhorn concluded that Hock did not have anomalous muscle bundles in her right ventricle. Williams then performed the operation. While in the ICU, Hock had cardiac output problems. Both a catheterisation and echocardiogram suggested there was obstructive muscle in her right ventricular cavity. Another operation was performed to remove tissue from the ventricle. This alleviated her condition, but she sustained brain damage as her cardiac output had been too low for too long. An action was commenced against Williams, Smallhorn and the hospital physicians. The trial judge found that Williams was negligent as he failed to excise sufficient tissue in the first procedure and he did not pay enough attention to repeated references in Hock’s medical records to the anomalous muscle bundles. This contributed to Hock’s brain damage. Smallhorn was negligent because he failed to inform Williams of his negative findings and because he failed to consult with Williams as to the best strategy for the operation. The ICU doctors were not found to be negligent because they provided the appropriate level of care.

HELD: Smallhorn’s appeal was allowed; Williams’ appeal was dismissed. The cross-appeal against the other defendants was dismissed. Hock established that the brain damage was caused, or was materially contributed to, by Williams’ impugned conduct. There was ample evidence to support the trial judge’s main finding that Williams failed to remove obstructive tissue in the first operation. What Williams failed to do more than a mere error in judgment. The trial judge was entitled to conclude that this failure led to Hock’s brain damage since such tissue affected cardiac output. The trial judge committed no palpable or overriding error in this analysis. In Smallhorn’s case, his obligation was to perform the pre-operative procedures and to provide his opinion to Williams. He did both and had nothing to do with Hock’s care thereafter. A surgeon’s review of a patient’s chart before surgery was so fundamental that Smallhorn could reasonably assume that Williams would review Hock’s hospital records and her pre-operative angiogram. The trial judge’s relative narrow finding of breach of duty in the case of Smallhorn was questionable. Causation was not established for even if Smallhorn had discussed his opinion with Williams earlier, it would not have made a difference. There was no reason to interfere with the finding regarding other defendants as the court agreed with the trial judge’s analysis that the ICU physicians furnished proper care for Hock.

Statutes, Regulations and Rules Cited:

Courts of Justice Act, R.S.O. 1990, c. 43, ss. 134, 134(1), 134(4), 134(7).

Counsel:

Colin L. Campbell, Q.C. and Harry G. Underwood, for the appellants.
Earl Cherniak, Q.C., Kirk F. Stevens and Robert Roth, for the respondents.

The judgment of the Court was delivered by

OSBORNE J.A.:–

TABLE OF CONTENTS

OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . 3

THE TRIAL JUDGMENT . . . . . . . . . . . . . . . . . . . . .10

THE GROUNDS OF APPEAL AND THE POSITION OF THE PARTIES. . . .13

THE EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . .20

(i)

Pre-operative Investigations . . . . . . . . . . .22

       (ii) The May 26, 1983 Surgery . . . . . . . . . . . . .24

       (iii) The Pressure Readings . . . . . . . . . . . . . . 27

(iv)

The Post-Operative Period. . . . . . . . . . . . .30

(a)  General References. . . . . . . . . . . . . .30

(b)  Jessica’s Progress in the ICU . . . . . . . .32

(c)  Jessica’s May 29, 1983 Surgery (The Second Surgery). . . . . . . . . . . . . . . . . . .36

THE STANDARD OF APPELLATE REVIEW . . . . . . . . . . . . . .38

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . .40

(i)

Overview (The significant evidence and the trial judge’s reasons for judgment). . . . . . . . . . .40

      (ii) The Duty and Standard of Care. . . . . . . . . . .52

      (iii)Causation . . . . . . . . . . . . . . . . . . . ..53

      (iv) The Liability of Dr. Williams. . . . . . . . . . .56

      (v)  The Liability of Dr. Smallhorn . . . . . . . . . .63

CROSS-APPEAL . . . . . . . . . . . . . . . . . . . . . . . .75

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . .80

[Ed. note: Page numbers refer to paper copy only.]

  1. Jessica Hock, then four years old, sustained brain damage in May 1983, when she was a patient in the Hospital for Sick Children (the “Hospital”), for surgery to repair a congenital heart defect. The trial judge, Hawkins J., found that two of the defendants, William Williams (a cardiac surgeon) and Jeffrey Smallhorn (a cardiologist) were negligent and thus liable to the plaintiffs for damages, which the parties agreed to in the form of a structured settlement. Drs. Williams and Smallhorn appeal from the trial judge’s liability findings.
  2. The trial judge dismissed the plaintiffs’ action against all other defendants. The plaintiffs cross-appeal from that decision. The successful individual defendants were engaged in Jessica’s post-operative care in the Hospital’s intensive care unit (“ICU”). The plaintiffs also cross-appeal from the dismissal of their action against the Hospital which the plaintiffs submit employed ICU doctors Bohn and Mullins, both defendants against whom the action was dismissed.
  3. Finally, the plaintiffs seek leave to appeal from the trial judge’s order that required them to pay the costs of the successful defendants with no right to add those costs to the costs to which they were entitled from the unsuccessful defendants, Drs. Williams and Smallhorn. During the appeal we were advised that counsel would settle the issue of costs, or seek leave to make further submission on that issue, once this judgment is released. I will, therefore, not address the issue of costs apart from dealing with the costs of the appeal.
  4. OVERVIEW

  5. I will refer to the evidence in more detail when I consider the issues raised in the appeal and cross-appeal. For now, I propose to set out in a general way how Jessica Hock came to be at the Hospital for Sick Children on May 23, 1983 for cardiac surgery and what happened to her while she was there.
  6. Jessica was born in Thunder Bay on June 22, 1978. She was periodically cyanotic and exhibited other signs of a heart defect. She was what is commonly referred to as a “blue baby.” As a result of what was thought from the outset to be a congenital heart defect, she was referred to Dr. Neelands, who in turn referred her to the Hospital for investigation on August 3, 1978.
  7. On August 3, 1978, she underwent a cardiac catheterization, a procedure designed to provide information about the anatomy of her heart. It involved the introduction of a catheter, through a sheath inserted into her right femoral vein, into her heart and the injection of dye to enable an x-ray moving picture (an angiogram) to be taken of her heart as it beat. As part of the process blood pressures in various regions of the heart and surrounding vessels were obtained. These may provide useful information for diagnostic purposes.
  8. In his August 3, 1978 catheterization report, under the heading “Impressions”, Dr. Culham noted the presence of anomalous muscle bundles in Jessica’s right ventricle. I will refer to his report in more detail later. He did not attach a name to Jessica’s condition, however, other physicians who were involved concluded that Jessica’s heart defect was Tetralogy of Fallot (“Tetralogy”). In general terms, the typical features of Tetralogy are:
    • a hole in the septum, (the wall between the left and right ventricles — ventricular septal defect — VSD);
    • over-riding or malalignment of the ascending aorta over the ventricular septum;
    • pulmonary stenosis and right ventricular hypertrophy.
  9. It is common ground that no two tetralogy cases are alike. They do, however, have common characteristics.
  10. In a typical Tetralogy case, since the muscles within the right ventricle are over-worked, they become thickened, or hypertrophied. Thus, the basic condition of the right ventricle in a Tetralogy case tends to worsen with time. The right ventricle becomes thick and somewhat plastic.
  11. After the catheterization of August 1978, it was apparent that Jessica required surgery. At that time surgery was not undertaken in Tetralogy cases until the patient was four or five years old. In result, Jessica was sent home to await surgical intervention when she reached that age.
  12. On March 29, 1982, Jessica’s case was discussed at a staff conference at the Hospital. It involved about 12 doctors, including 10 cardiologists. The report generated by this case conference referred to anomalous muscle bundles, among other right ventricular deficiencies. It was decided that Jessica should undergo open heart by-pass surgery in May 1983 for a total repair of her heart defects.
  13. Jessica was admitted to the Hospital on Monday, May 23, 1983 for surgery scheduled for Thursday, May 26, 1983. The admitting record referred to ventricular septal defect with pulmonary stenosis (narrowing) at the valvar and right ventricular level. The record also noted that pulmonary stenosis at the right ventricular level, “consisted mainly of anomalous muscle bundles.” This reflected the conclusions reached in 1978 following Jessica’s catheterization and in 1982 at the cardio-surgical conference.
  14. Dr. Williams, the cardiac surgeon assigned to operate on Jessica, testified that the routine in the cardiac unit of the Hospital was to meet every Monday morning to review patients who were scheduled for surgery during that week. This review would include a review of echocardiograms, angiograms, and any other pertinent information. He assumed that this meeting was held on Tuesday, May 24, 1983, since Monday the 23rd, was a holiday. The meeting would have included Dr. Williams as well as surgical residents, cardiac staff, cardiac radiologists and representatives from Intensive Care and Anaesthesia. During these meetings the angiogram is projected and a cardiac radiologist typically comments on the angiographic findings. Those in attendance have a chance to ask questions. The meetings generate no reports. Jessica’s May 24, 1983 angiogram was done after the meeting, if there was such a meeting. Dr. Williams had no independent recollection of this meeting.
  15. According to Dr. Williams, there is also a catheterization conference held each day at 8:30 a.m. This conference involves a discussion among cardiologists about patients who are scheduled for catheterization during the day and patients who have particular problems. Whether Jessica’s case was discussed at this regular morning meeting is unclear.
  16. Understandably, Dr. Smallhorn, the cardiologist responsible for Jessica’s pre-operative investigations, also had no independent recollection of these regular meetings which produced no paper record that might have refreshed his memory, or even confirmed his attendance. However, he said that he must have been present at the catheterization meeting because he was responsible for the catheterization laboratory on May 24, 1983. He testified that Jessica’s angiograms and other relevant material would have been presented to staff cardiologists and that material findings would have been discussed, likely on May 24, 1983. He said that this information would have been passed on to the surgeons.
  17. Before her surgery on May 26, 1983, Jessica underwent two pre-operative investigative procedures. On May 23rd, Dr. Smallhorn performed an echocardiogram and on May 24th he did another catheterization. These procedures were done to provide a current picture of Jessica’s heart, to give the surgeon as much information as was reasonably available about her condition.
  18. Dr. Smallhorn concluded from his May 23rd echocardiogram that there was no evidence of “anomalous muscle bundles” in Jessica’s right ventricle. His catheterization report made no mention of muscle bundles, anomalous or otherwise.
  19. On May 26, 1983, Dr. Williams, assisted by Dr. Feteih, undertook the surgical repair of Jessica’s heart defects. He took blood pressures following the surgery and thought that they were satisfactory. One of the critical factual issues at trial was what, if any, muscle was excised (cut out) or divided (cut into) during this surgery. Within a short time following surgery Jessica was taken to the Hospital’s ICU.
  20. Not long after Jessica’s arrival in the ICU, she encountered problems with her cardiac output. She developed junctional ectopic tachycardia (“JET”), a condition that ICU doctors thought was the cause of her low cardiac output. Persistent bouts of tachycardia, or JET, caused great concern among the ICU doctors and threatened Jessica’s life.
  21. Jessica’s mean arterial pressure fell to an alarming level on May 27, 1983; at 11:00 p.m. on that day a doctor and nurse in the ICU noticed signs of seizure activity. Her seizures were quickly brought under control.
  22. ICU physicians attempted to remedy Jessica’s problems in a variety of ways. I will refer to the particular steps taken later. When no meaningful improvement in her cardiac output had been made by noon on May 28, 1983, in spite of the fact that her tachycardia had ended, Dr. Pelech, a resident cardiologist, decided to perform another echocardiogram. It suggested the presence of obstructive muscle bundles in her right ventricle. Dr. Pelech contacted Dr. Smallhorn, who decided to repeat the process. His echocardiogram, done at about 2:00 p.m. on May 28th, also suggested obstructive muscle in Jessica’s right ventricular cavity.
  23. Since the possible existence of obstructive muscle in Jessica’s right ventricle provided a new explanation for her low cardiac output, Dr. Smallhorn contacted Dr. Williams who came to the hospital on Saturday evening. Notwithstanding the existence of substantial risks to Jessica, Drs. Williams and Smallhorn and ICU doctors on duty decided to have Jessica taken to the catheterization laboratory around midnight on May 28th for another catheterization. It confirmed the existence of muscle bundles in her right ventricle. Dr. Smallhorn concluded that further surgery was necessary in order to save Jessica’s life, and Dr. Williams agreed. Thus, she was rushed to the operating room at about 4:30 a.m. on Sunday, May 29, 1983. Dr. Williams divided (or completed the division of) her moderator band and excised tissue thought to be obstructive. The second surgery relieved the obstruction in Jessica’s right ventricle. Her condition improved, although not as rapidly as had been hoped. Jessica survived, but she is neurologically and developmentally impaired. Her cardiac output had remained too low for too long.
  24. THE TRIAL JUDGMENT

  25. The trial, in which there was evidence of considerable complexity, took 26 court days. Daily transcripts were prepared and counsel submitted written argument. After reserving judgment, the trial judge concluded that Drs. Williams and Smallhorn, were negligent and that the plaintiffs had not established negligence in respect of the other individual defendants. He therefore dismissed the action against all defendants except Drs. Williams and Smallhorn.
  26. The trial judge’s reasons are brief. He did not refer to the evidence in any detail. When he did refer to the evidence, he emphasized the information about Jessica’s condition generated by the angiograms done on August 3, 1978 and May 24, 1983, and the cardio-surgical conference of March 29, 1982. He highlighted references made, and not made, to anomalous muscle bundles.
  27. When he considered what Dr. Williams did during Jessica’s May 26, 1983 surgery, he concluded that “… the best evidence of the procedures carried out to be the reports generated at that time.” He noted that in the reports generated by Jessica’s first surgery there was no reference to the division of her moderator band, or to the excision of any muscle or tissue. He also noted that Dr. Williams’ reporting letter to Dr. Izukawa dated May 26, 1983 also made no reference to dividing or incising Jessica’s moderator band, or to the excision of tissue and that no tissue was sent to the Hospital’s pathology department for analysis. He then concluded:
  28. I find on the balance of probability that the failure to excise sufficient tissue to correct the infundibular stenosis caused the subsequent brain damage and that insufficient attention was paid to the repeated observations in Jessica’s medical records to anomalous muscle bundles. There has been no satisfactory answer as to why the corrective surgery technique applied in the second operation [the May 29, 1983 surgery] were not applied in the first [the May 26, 1983 surgery].

  29. Quite clearly, the trial judge found that Dr. Williams did not half divide Jessica’s moderator band or remove obstructive muscle during the first operation. He concluded that Dr. Williams did not pay sufficient attention to repeated references to anomalous muscle bundles in Jessica’s medical records.
  30. When the trial judge dealt with Dr. Smallhorn’s liability, he emphasized that the purpose of the pre-operative echocardiogram and catheterization was “… to assist the surgeon [Dr. Williams] to understand the probable and possible problems to be encountered during the surgery.” He concluded that Dr. Smallhorn breached the duty of care that he owed to Jessica by not informing Dr. Williams of his “negative findings” before the May 26th surgery. Dr. Smallhorn’s findings were “negative” in that he had concluded that Jessica did not have anomalous muscle bundles in her right ventricle. This finding differed from earlier reports that referred to anomalous muscle bundles.
  31. When he dealt with causation in respect of Dr. Williams’ negligence, the trial judge expressed the opinion that Dr. Williams’ failure to excise “sufficient tissue” in the first operation was the cause of Jessica’s brain damage, I assume on the basis of evidence that Dr. Williams’ failure to excise obstructive muscle caused or materially contributed to her extended low cardiac output. The trial judge did not deal separately with causation as it related to his finding of negligence against Dr. Smallhorn. One has to assume that he found that Dr. Smallhorn’s failure to alert Dr. Williams to the earlier anomalous muscle bundle findings (not his failure to detect anomalous, or obstructive, muscle bundles) contributed to Dr. Williams’ failure to remove obstructive muscle during Jessica’s May 26th surgery.
  32. The trial judge concluded that the ICU doctors, five of whom were defendants, provided an appropriate level of care when Jessica was in the Hospital’s ICU. This conclusion is challenged on the cross-appeal. I take it from the trial judge’s brief reference to this liability issue that he found that the ICU doctors who treated Jessica had no reason to think that her low cardiac output might be attributed to residual obstructive muscle in her right ventricle. It is clear that the trial judge found that, in the circumstances, the specific remedial efforts undertaken in the ICU were appropriate in both selection and timing.
  33. Since Dr. Williams and Dr. Smallhorn were jointly represented, and did not claim over against each other, the trial judge did not apportion liability as between them.
  34. THE GROUNDS OF APPEAL AND THE POSITION OF THE PARTIES

  35. The appellants raise the issue of the reasonableness of the trial judge’s finding that both Drs. Williams and Smallhorn were negligent. They submit that these findings are not supported by the evidence. They further submit that in Dr. Williams’ case the trial judge failed to make allowance for the reasonable latitude to be accorded a surgeon in exercising his professional judgment in the course of surgery. They also take issue with the trial judge’s failure to consider evidence bearing upon the applicable standard of care, an issue the appellants contend the trial judge did not address. They further contend that the trial judge misapprehended the defence position and evidence material to it. In addition to their attack on the reasonableness of the trial judge’s findings of negligence against Drs. William and Smallhorn and their general contention that the trial judge misapprehended or failed to consider the defence position and evidence that supported it, the appellants take issue with the sufficiency of the trial judge’s reasons for judgment. They contend that his failure to make essential findings of fact and his failure to give reasons for findings that he did make, give rise to a miscarriage of justice.
  36. The appellants emphasize that the plaintiffs’ case at trial was that Dr. Smallhorn’s diagnosis (no anomalous muscle bundles) was wrong and that his error led to Dr. Williams’ failure to excise obstructive muscle in the May 26, 1983 operation.
  37. The appellants’ position is that Dr. Williams was aware of the existence of “muscle bundles” in Jessica’s right ventricle before he operated on her on May 26th, 1983. He viewed these muscle bundles to be part of the spectrum of Tetralogy of Fallot and thus he rejected the label “anomalous muscle bundles”. The appellants contend that during the May 26th surgery Dr. Williams partly divided the moderator band, in addition to closing the VSD, patching the infundibulum, removing some muscle tissue and enlarging the pulmonary valve. The appellants contend that excision and division of muscle tissue are functional equivalents and that the choice is a matter of surgical judgment.
  38. The appellants submit that Dr. Williams achieved a complete Tetralogy repair. Although Dr. Williams acknowledges that dividing the moderator band is not usually done to relieve obstruction in Tetralogy cases, the appellants submit that what Dr. Williams did during the May 26th surgery represented the reasonable exercise of surgical judgment, a feature of this case that the appellants submit the trial judge ignored.
  39. It is accepted that the cause of Jessica’s brain damage was a prolonged period of low cardiac output — an inadequate flow of blood in the post-operative period following her May 26th, 1983 surgery. One of the critical issues at trial was what caused her prolonged low cardiac output. The appellants contend that her tachycardia, or JET, a life threatening condition (20 to 50% of those who have JET do not survive) caused her low cardiac output. The appellants also submit that how much muscle tissue to excise in a Tetralogy case is a matter of surgical judgment and that without JET and other complications affecting Jessica’s already compounded and surgically traumatized right ventricle any muscle tissue left in Jessica’s right ventricle would not have caused cardiac output problems. The respondents contend that Dr. Williams’ failure to excise obstructive muscle caused Jessica’s injuries and that there was ample evidence to support the trial judge’s finding on that issue.
  40. The appellants explain the residual obstruction disclosed on the May 28th and 29th echocardiograms to catheterization on two bases. First, they submit that had Jessica not developed JET, any residual muscle that remained in her right ventricle after her May 26th surgery would not have affected her cardiac output. Second, they say that the extent of the residual muscle, part of which they contend was excised during Jessica’s May 29th surgery, was the product of the cumulative effect of the trauma caused by the first surgery, the potential for increased muscle obstruction brought about by inotropic drug therapy and swelling resulting from cardioversion and renal failure. One defence expert, Dr. Cornel, said that the combination of post-operative circumstances could have lead to what he described as “dynamic obstruction”. Such an obstruction could make an existing muscle prominent and produce on a transient basis, an obstructive muscle which, combined with other factors (including JET), could account for Jessica’s low cardiac output and her brain damage.
  41. The appellants submit that Jessica’s low cardiac output was caused by her tachycardia (however it is to be labelled), which had a direct negative impact on her cardiac output. They emphasize the fact that Jessica’s right ventricle was compromised going into her May 26th surgery, traumatized during the surgery, and aggravated to an extent by the treatment that she received in the ICU to control JET, a life threatening form of tachyarrythmia. These compounding features, according to the appellants, compel the conclusion that nothing Dr. Williams left behind at the time of the May 26th surgery caused her low cardiac output.
  42. In respect of Dr. Smallhorn, the appellants’ position is that he did not breach the duty of care that he owed to Jessica, but if he did, his failure to confer with Dr. Williams before Jessica’s May 26, 1987 surgery, as found by the trial judge, made no difference. The appellants note that the trial judge made no finding of causation in respect of Dr. Smallhorn. The causation question in respect of Dr. Smallhorn boils down to the question whether, assuming Dr. Smallhorn had a duty to confer with Dr. Williams about the “best strategy” and to alert Dr. Williams to the earlier anomalous muscle bundle findings, did Dr. Smallhorn’s breach of those related duties contribute to Dr. Williams’ failure to excise obstructive muscle on May 26th? That question cannot be answered without analyzing what Dr. Williams did, and did not do, during the May 26th surgery and then determining what, if any, connection existed between Dr. Williams’ acts or omissions, and Dr. Smallhorn’s conduct before the surgery. The appellants submit that there was no evidence to support the trial judge’s finding that Dr. Smallhorn had a duty to consult with Dr. Williams to determine the best surgical strategy. They emphasize that the plaintiffs’ case at trial was based on Dr. Smallhorn’s allegedly negligent diagnosis, not his failure to discuss the negative findings with Dr. Williams.
  43. The plaintiffs’ cross-appeal focuses on Jessica’s post-operative care. The plaintiffs submit that the trial judge failed to consider evidence going to the general issue whether the defendants (respondents in the cross-appeal) responsible for Jessica’s post-operative care acted reasonably in the circumstances by assuming, without any meaningful consultation with the surgical staff, that Jessica’s ongoing dangerously low cardiac output was caused by her tachycardia, or JET. The cross-appellants contend that mechanical causes for Jessica’s low cardiac output should have been ruled out before other treatment was undertaken, or at the very least taken into account before noon on May 28, 1983, when Dr. Pelech did the echocardiogram that suggested the presence of residual muscle bundles in Jessica’s right ventricle might explain her low cardiac output. The cross-appellants submit that the May 28th echocardiograms should have been done sooner. They rely on evidence that an echocardiogram and angiogram done on May 27, 1983 would have revealed the same obstruction indicated in the May 28th echocardiograms, and confirmed by the May 29th angiogram. The result of all of this, according to the cross-appellants, is that the second surgical intervention should have occurred earlier and before Jessica sustained “residual post-operative neurological damage”, as it was put in her discharge summary. They further submit that the particular remedial efforts undertaken in the ICU on the assumption that tachycardia, or JET, was the cause of her low cardiac output were counter-productive and thus inappropriate.
  44. The cross-appellants also raise the issue of the defence’s failure to call a number of witnesses, including Dr. Hesslein (concerning the nature, significance and frequency of Jessica’s tachycardia); Drs. Freedom, Hesslein and Zeitlin (concerning the reasonableness of the ongoing treatment Jessica received in the ICU to the point of her second surgery on May 29, 1983); and Drs. Wilson and Gerber (concerning their evaluation of Jessica’s condition on May 27, 1983). The plaintiffs submit that the trial judge (who did not refer in his reasons to witnesses who were not called) ought to have drawn an adverse inference from the defence’s failure to call some or all of the witnesses to whom I have referred above. They submit that the trial judge should have found that the evidence of these witnesses would have been adverse to the defence position in respect of the identified issues that broadly related to the adequacy of Jessica’s care in the ICU between May 26, 1983 and May 28, 1983 when she was taken from the ICU for catheterization.
  45. THE EVIDENCE

  46. I will set out here some of the evidence that I consider to be significant in light of what I think are the critical factual issues.
  47. To begin, I should comment briefly, and somewhat unscientifically, on the anatomy of the heart. The heart consists of four main chambers. The right atrium receives de-oxygenated blood from the body. The right ventricle receives blood from the right atrium through the tricuspid valve. Blood propelled into the right ventricle flows through the infundibulum, an outflow tract or channel, located in the main channel of the right ventricle above the apex of the ventricle. The blood proceeds through the infundibulum to the pulmonary valve, into the main pulmonary artery, which in turn branches into the right and left pulmonary arteries. Blood from the right ventricle proceeds eventually through those arteries into the right and left lungs where it receives oxygen and is relieved of carbon dioxide. The left atrium receives oxygenated blood from the lungs and the left ventricle receives blood from the left atrium, through the mitral valve. Blood is then pumped into the aorta, and on to the body where it provides nourishment.
  48. The heart is positioned with the right ventricle facing forward and almost on top of the left ventricle; that is to say the ventricles do not sit literally side to side. The infundibulum, a channel in the right ventricle through which blood flows on its journey to the lungs where it is oxygenated, is tubular and has four walls. The back wall is referred to as the infundibular septum. The infundibulum’s left side wall is referred to as the septal band and the infundibulum’s right side wall is referred to as the parietal band. The front wall is referred to as the anterior or free wall. The lower extent of the infundibular chamber is referred to as the inferior margin of the infundibular septum and at the upper extent of the infundibular chambers is the pulmonary valve.
  49. The moderator band, which is found in the main chamber of the right ventricle (below the infundibulum), arises from the septum and passes forward to attach to the front wall of the ventricle. It provides some support for the front wall of the ventricle. Trabecular muscles are located toward and in the apex (bottom) of the right ventricle. They are muscles that occur in groups which often cross each other, thus forming very small cavities. These muscles are not normally implicated in the obstruction of required blood flow within the ventricle.
  50. (i) Pre-operative Investigations

  51. As I have noted, in 1978 when Jessica was about six weeks old, she underwent a cardiac catheterization and angiography. Through a cut down on her right groin a catheter was guided into her right heart, pulmonary arteries and also into her left atrium and left ventricle. The report of Dr. Culham (a radiologist) noted, under the heading “Impression”:
    1. Ventricular septal defect, membramous, moderate-sized.
    2. Artrial septal defect, small.
    3. Pulmonary stenosis, valver.
    4. Query sub-valvar stenosis (pulmonary), due to anomalous muscle bundle.
  52. Jessica returned to her home in Thunder Bay after the August 3, 1978 catheterization.

  53. Jessica was examined at the Hospital on February 6, 1979, August 7, 1979, February 26, 1980 and March 3, 1981. The provisional diagnosis continued to be Tetralogy of Fallot. There were no further references to anomalous muscle bundles in the records of these examinations, but nothing in the Hospital records suggested that there was any disagreement with Dr. Culham’s anomalous muscle bundles “impression.”
  54. Jessica’s case was reviewed at a cardio-surgical conference on March 29, 1982. The conference report, signed by Dr. Izukawa, stated:
  55. At 4 weeks of age, this patient was noted to become cyanosed periodically. Cardiac catheterization on 3/8/78, revealed the presence of ventricular septal defect with pulmonary stenosis at valvar and right ventricular level. The later consisted mainly of anomalous muscle bundle. … The cineangiocardiogram suggested that this was in fact, Tetralogy of Fallot, as the pulmonary artery was positioned horizontally.

  56. It is clear that the 1982 cardiac conference took no issue with Dr. Culham’s assessment of Jessica’s 1978 angiogram. The 1982 conference report was sent to medical and cardiac records.
  57. Jessica was admitted to the Hospital on May 23, 1983 for surgery scheduled for May 26, 1983. Dr. Smallhorn performed an echocardiogram on May 23rd and a catheterization on May 24th. In his report on her echocardiogram he noted, “There was no evidence of any anomalous muscle bundles in the right ventricle.” His report of Jessica’s angiogram is silent on the subject of anomalous muscle bundles. The box for muscle bundles on the Hospital’s standard catheterization form was left blank. Dr. Moes, the cardiac radiology resident, noted in his report concerning the May 24th angiogram, “… [t]he right ventricle does show an accentuated trabeculated pattern …” An admitting note stated that her August 3, 1978 catheterization showed a ventricular septal defect and pulmonary stenosis at the valvar and right ventricular level. The note added, “[t]he latter [pulmonary stenosis at the right ventricular level] consisted mainly of anomalous muscle bundles.” A further Hospital record titled “Clinical Antenatal History” also referred to anomalous muscle bundles.
  58. (ii) The May 26, 1983 Surgery

  59. Dr. Williams was assigned to perform remedial open heart surgery on May 26th, 1983. He had no specific recollection of the details of the May 26th surgery. His evidence was based, in part, on the written records of the surgery and by his reconstruction of what he thought he did on May 26th.
  60. Dr. Williams said that before he operated on Jessica on May 26th he had reviewed her May 24th angiogram. His evidence on this point was specific, however, he acknowledged that he had no actual recollection of it. In light of the fact that more than a decade had elapsed from surgery to trial this is not surprising. In any case, in assessing Jessica’s condition before her surgery, Dr. Williams said:
  61. A. In the 1983 angiogram, the obstruction was much more severe. There was almost a pinpoint opening in the infundibular chamber. The infundibular chamber itself was quite hypoplastic — it was smaller than normal — which was quite dissimilar from the ’78 investigation, when it was relatively unobstructed and relatively well expanded.

    In addition, the outlet chamber, being hypoplastic, was also quite thin-walled. There was not a lot of muscular hypertrophy in the upper part of the infundibular chamber. And the value, the pulmonary valve, was clearly smaller than normal. The main pulmonary artery above the valve was also narrow. But the branches to the right and left lung looked normally developed.

    In addition, the — there was muscular obstruction at the infundibular level, the lower end of the infundibular level, where the septal and parietal bands were hypertrophied, enlarged, and encroaching on the channel into the infundibular chamber.

    And again, as it was evident in the ’78 angiogram, the trabecular portion was quite hypertrophied …

  62. Dr. Williams testified that on May 26th he incised Jessica’s infundibulum past the valve into the main pulmonary artery. He patched her ventricular septal defect (the hole in her heart) and looked for an atrial septal defect. He found none. He said that he half-divided her moderator band and patched her infundibulum in order to make the narrowed channel larger. In the end, the hole in Jessica’s heart had been patched and her right ventricle outflow tract had been made more efficient by enlarging it. This latter aspect of the surgery involved surgical adjustment and expansion of her pulmonary valve and her infundibulum. The incision in her infundibular chamber extended up to the pulmonary valve and down to a point about one centimetre below the lower end of the infundibular septum (below the os infundibulum — the mouth of the infundibulum). The total length of the incision was about 3.5 centimetres from the pulmonary valve.
  63. As I have said, the moderator band is a muscle band located below the infundibulum. Dr. Williams testified that it was not possible to inadvertently divide it. He disagreed with Dr. Carr, the plaintiffs’ main expert witness, who had suggested in his evidence that Dr. Williams might have inadvertently divided Jessica’s moderator band. However, Dr. Williams acknowledged that the division of the moderator band is not a usual procedure in this kind of surgery. The moderator band is not typically obstructive since it is situated below the narrowest point in the right ventricle and generally runs parallel to the flow of blood in the right ventricle.
  64. Dr. Williams could not recall when he half divided Jessica’s moderator band during the May 26th surgery. He thought it was probably after he had patched her ventricular septal defect and looked for a suspected (but non-existent) atrial septal defect. He said, “I think I divided half of the moderator band trying to preserve its function while leaving some of the muscle mass which was encroaching on the right outflow tract.”
  65. (iii) The Pressure Readings

  66. When he had completed his May 26th surgery, Dr. Williams used a needle catheter to measure pressures in Jessica’s right ventricle and pulmonary artery. He did this to confirm that pressure in Jessica’s right ventricle was at an acceptable level, that is that he had achieved a full repair of Jessica’s Tetralogy defects. He looked for the presence, or absence, of an acceptable pressure gradient across the area of repair. In theory, if there was a significant difference in systolic pressure from one relevant area to another, this might well point to the existence of an obstruction.
  67. The procedure of taking post-surgical pressures is somewhat intrusive and irritating. In layman’s terms, it involves plunging a pressure needle into the patient’s surgically repaired, closed heart. Thus, according to Dr. Williams, surgeons thus do not take unnecessary pressure readings. When Dr. Williams undertook this process on May 26, 1983, he obtained a right ventricular pressure recorded as 34. It was accepted by all concerned, including Dr. Williams, that this reading was wrongly recorded and that the proper reading was 43, consistent with the anesthetist’s record. Jessica’s May 26th pulmonary artery pressure was 33. The pressure gradient was satisfactory and no further readings were taken. The pulmonary artery — right ventricular pressure gradient suggested that there was no lingering obstruction with which to be concerned. This assumes that the pressure taken in Jessica’s right ventricle on May 26th was taken below any residual obstructive muscle. Dr. Carr made this clear in his evidence. He emphasized that there was an obstruction “just below” Jessica’s os infundibulum and that a pressure taken above that level would not be revealing.
  68. Dr. Cornell, a defence expert, testified that post-operative pressures of 43 in Jessica’s right ventricle and 33 in the pulmonary artery indicated that Dr. Williams had achieved a good repair. To put it another way, the pressures would suggest that there should be no concern about the existence of any residual obstructive muscle.
  69. I should note here that a quite different story in respect of pressures emerged from the May 28, 1983 post-operative catheterization. The two pressures taken revealed a pressure gradient of 44 between the apex and the infundibulum. Dr. Smallhorn accepted that this gradient suggested that there was a residual obstruction in Jessica’s right ventricle. In summary form, the pressure readings from before Jessica’s first surgery to after her second surgery, are set out in the chart below. [See Note 1 below]

  70.    Note 1:  There are 2 procedures for obtaining blood pressure measurements in the heart and surrounding blood vessels:

    (1) Cardiac Catheterization
    – used in pre-op investigations
    – the catheter is inserted into a blood vessel in
    the leg and threaded up into the heart.  It also
    contains the camera for the angiography.
    (2) Needle catheterization
    – performed at end of surgery, after incision into
    heart is closed
    – a needle is plunged into the heart or the
    pulmonary artery.

    Pressure
    Location PRE-OP Surgery 1 Surgery 2

                  3-Aug-78  24-My-83  26-My-83   28-My-83  29-My-83

    PA 14 13 33 28 X/E

    RV systemic 94 34 (?43) 40 (Inf.) 26 (Inf.)

    84 (Apex) 32 (Apex)

    Gradient 81 1 (?10) 44 6

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