Ontario Court of Appeal Discusses Causation & Delayed Diagnosis

The Ontario Court of Appeal recently dismissed the appeal of a nurse and a hospital, who appealed after the nurse was found to have acted below the standard of care after a newborn baby developed kernicterus that left the baby with cerebral palsy and life-long disabilities including severe hearing loss, visual impairment, and developmental delays, among other conditions.

In coming to its decision, the Court of Appeal reinforced three principles that are important to establishing a finding of causation in delayed diagnosis cases.

What Happened?

The baby in question was born at London Health Sciences (the hospital) on December 22, 2005. He was kept in the Paediatric Critical Care Unit and then the Clinical Teaching Unit for several days, and monitored by pediatricians and nurses.

At 9 p.m. on December 25, three days after the baby was born, a nurse took his temperature and noted a change in his colour. The baby was slightly yellow, which indicated some jaundice.

At 7 a.m. the next morning, the nurse from the previous evening (the nurse) reported the baby’s change in colour and jaundice to the incoming shift nurse, who then assessed the baby at approximately 8:30 a.m.

At 8:45 a.m., the incoming shift nurse took a blood sample and sent it to the lab to ascertain the baby’s bilirubin level. The lab report came back at 10:00 a.m. indicating severe hyperbilirubinemia- a higher than normal level of bilirubin in the blood. The level was slightly less than the threshold for critical hyperbilirubinemia, which has the potential to cause long-term neurological impairment.

By 11 a.m. phototherapy was commenced, and the baby was put under lights to reduce his bilirubin levels. At this stage, the baby was still neurologically intact.

By 3 p.m., the bilirubin levels had dropped slightly, but the baby began to exhibit signs of neurological damage. Additional treatment was unsuccessful, and the baby developed kernicterus.

Due to the kernicterus, the child now suffers from severe deficits including:

• Dyskinetic cerebral palsy;
• Moderate to severe hearing loss;
• Visual impairment;
• Developmental delays; and
• Intellectual disability.

The child’s family sued the hospital, the nurse, and seven doctors who had treated the baby.

Original Trial Decision

At the beginning of the trial, claims against the seven doctors were settled, and the trial proceeded against the nurse and the hospital only.

After a 12-day long trial, the trial judge found that the nurse’s actions had fallen below the standard of care due to her failure to tell the resident pediatrician on duty, that evening, about the onset on jaundice she had noticed at 9 p.m. on December 25.

Specifically, the trial judge had found that but for the nurse’s negligence, the resident physician would have ordered a blood test to measure bilirubin on the evening of the 25^th of December. Based on the amount of time between the test results coming back and phototherapy being introduced on the 26^th of December, the judge further found that had phototherapy been introduced earlier (at 2:15 a.m.), the baby would not have developed kernicterus.

The trial judge ruled that the nurse and the hospital were liable to the baby and his family for their damages (which the parties agreed prior to the start of the trial were $9.5 million).

The nurse and the hospital appealed the trial judge’s findings.

Questions on Appeal

The appeal was fact-driven, and the basis for it was the trial judge’s findings on causation, but not standard of care.

Specifically, the appeal questioned whether:

• the trial judge had erred in her finding of causation based on what a “reasonable resident” would have done had the first nurse reported the jaundice on the evening of December 25^th; or
• whether the trial judge had erred in “inferring causation in the absence of expert evidence that [the baby] would not have developed kernicterus” had phototherapy began earlier.

What Would a Reasonable Resident Have Done if Notified of the Jaundice Earlier?

The trial judge had found that if the nurse had reported the jaundice and other risk factors to the resident on duty on the night of December 25, the resident or another reasonably competent resident would have responded promptly and ordered blood to be drawn for a bilirubin test that night.

In coming to this conclusion, the trial judge had relied upon the opinion of the family’s causation expert who had said that a competent resident would have ordered a blood test that evening the next time the baby was handled.

On appeal, the nurse and hospital argued that the trial judge had erred because, among other things,  1) the resident on duty had not testified and without his testimony as to what he would have done that night there was a “fatal gap” in the evidence needed to establish causation, and 2) the family’s expert witness had testified that he thought that the entire medical staff in the unit in question had lacked competence and that it, therefore, followed that the trial judge had erred in finding that the resident on duty would have met the standard of a reasonably competent resident.

The Court of Appeal disagreed with these arguments, noting that:

• the combination of the expert witness’ evidence about what a reasonably competent resident would have done and what the proxy for the resident on duty said he would have done provided a reasonable foundation for the trial judge’s finding;
• the trial judge was entitled to accept the proxy’s evidence that he would have ordered the bilirubin test as soon as he became aware of the presence of jaundice.
• The trial judge did not err by refusing the accept the nurse’s and hospital’s submissions that they should escape liability by pointing the finger at the hypothetical negligence of a physician who may have caused the baby’s injuries in any event;

The Court of Appeal noted, with respect to this last point, that even if the nurse and the resident (who was not a party to the lawsuit) had been “cumulatively negligent”, an earlier Court of Appeal decision would not permit them to point the finger at one another to avoid their own liability. The Court noted,

If an additional defendant’s actual negligence does not provide a defence in a delayed treatment case, it follows that the hypothetical negligence of a third party should not provide a defence.

Did the Trial Judge Err in Inferring Causation in the Absence of Expert Evidence About Whether the Baby Would Have Developed Kernicterus if Phototherapy Had Begun Earlier?

The trial judge had concluded that it was more likely than not that the baby’s kernicterus would have been prevented if the phototherapy had started earlier. This conclusion had been reached based on the unchallenged evidence of the expert witness who testified about the onset of the kernicterus.

On appeal, the nurse and the hospital argued that this finding amounted to speculation since the questions about what would have happened had the baby been treated at various times had not been specific enough (essentially, the trial judge heard from the expert on whether the neurological deficits would have been avoided if phototherapy had begun at 9 p.m. or 12 a.m. but, the trial judge had found, as a fact, that treatment would have been started at 2:15 a.m. the next morning – a period for which the expert had not testified about).

The Court of Appeal disagreed, noting that the only expert evidence available, combined with the evidence about how the baby’s condition progressed from the point at which jaundice first appeared to the point at which he began to show signs of neurological damage provided a “solid factual foundation for the inference the trial judge drew.” The nurse and the hospital did not call any expert evidence on causation and did not cross-examine the expert witness on what would have happened had the phototherapy commenced at 2:15 a.m.

The Court of Appeal pointed to a Supreme Court decision which had established that “in the absence of evidence to the contrary by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.”

The lack of a bilirubin reading at 2:15 a.m. (which may have provided more clarity about what the impact of treatment would have been at that time) was a result of the nurse’s own negligence. Her failure to order the test is the reason there is no data point as to the bilirubin level at 2:15. A person found to have been negligent should not be permitted to rely on the lack of evidence that her own negligence produced (an important principle that was previously established in an earlier Court of Appeal decision).

The Court of Appeal dismissed the appeal and ordered the costs of the appeal to be paid by the nurse and the hospital to the parents of the baby.

Three Key Principles

In coming to its conclusion, and based on earlier case law, the court reinforced three important principles about causation:

1. Parties found negligent in a delayed diagnosis case cannot escape liability by pointing the finger at one another;
2. Where there is no evidence to the contrary, an inference of causation can be made even though positive or scientific proof of causation has not been presented;
3. A party accused of negligence should not be allowed to rely on a lack of evidence that arose due to his or her negligence.

This decision serves to highlight how complex and technical medical malpractice claims can be. They are litigated much differently than other cases and often include powerful players with infinite resources such as hospitals, insurance companies (HIROC), and the Canadian Medical Protective Association (CMPA). They frequently revolve around extremely technical and nuanced legal and medical issues.

These lawsuits often take years to resolve and the stakes are enormous. A properly-run case often requires retaining numerous highly-qualified medical experts an also demands lawyers who understand both the law and medical science.

At Sommers Roth & Elmaleh, our Toronto medical malpractice lawyers are highly knowledgeable about Canada’s medical system. Unlike most other personal injury firms, medical malpractice is virtually all we do. We are often successful in cases that other law firms refuse to take or believed will be unsuccessful.

We are regularly consulted by influential members of the legal profession on difficult medical malpractice cases in Canada and internationally. We are frequently mentioned in the media, and are very well respected by our peers, and the medical community. We challenge the medical profession to uphold its standards and quality of care to the public.

If you have been affected by hospital error, doctor error, delayed diagnosis, misdiagnosis or any other types of medical malpractice anywhere in Canada contact us for a free consultation. You pay us nothing unless we win. Call us at 1-844-777-7372 or contact us online.