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Torts - Negligence - Medical Malpractice. Shaw Estate v. Handler
In Shaw Estate v. Handler (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against "a judgment in a delayed diagnosis medical malpractice case that proceeded to trial against one defendant, the appellant, on the issues of liability and damages. The appeal concerns only the trial judge’s determination with respect to liability".
The court considered 'causation', here in this medical malpractice context:[58] The framework for determining whether causation is established in a delayed diagnosis case requires the trier of fact to (1) determine what likely happened in actuality; and (2) consider what would likely have happened, if the defendant had not breached the standard of care. And because it is not enough that adequate diagnosis and treatment would have led to a chance of avoiding the unfavourable outcome, the court must determine whether the plaintiff has proven that it was “more likely than not” that the defendant’s compliance with the standard of care would have avoided such an outcome: Hasan v. Trillium Health Centre Mississauga, 2024 ONCA 586, 499 D.L.R. (4th) 178, at para. 20, leave to appeal refused, Campbell v. Hasan, [2024] S.C.C.A. No. 402.
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[69] In some delayed diagnosis cases, including the following cases referred to by the appellant, the central causation issue will require the court to determine at what point the physician’s negligence would not have caused the patient’s injury. Depending on the evidence, the resolution of the issue will depend on determining exactly when the “window of opportunity” would have closed.
[70] In Salter v. Hirst, 2011 ONCA 609, 107 O.R. (3d) 236, leave to appeal refused, [2011] S.C.C.A. No. 503, the breach of the physician’s standard of care was in failing to promptly transfer the plaintiff to another hospital for surgery, and there was clear evidence of a six hour “window of opportunity” between the onset of the plaintiff’s lower extremity symptoms and when the surgery would be required to avoid paralysis. This court dismissed the appeal from a dismissal of the action, concluding that the trial judge was correct in finding there was no evidence that the correct diagnosis likely would have been made and successful treatment likely would have been completed within the critical six-hour period.[6]
[71] Similarly, in Barker v. Montfort Hospital, 2007 ONCA 282, 278 D.L.R. (4th) 215, leave to appeal refused, [2007] S.C.C.A. No. 299, this court allowed an appeal, as there was no medical or other evidentiary basis for the trial judge’s inference that the delay in carrying out an operation caused the death of the plaintiff’s bowel. No expert was asked for an opinion as to whether the plaintiff’s bowel had been necrotic for less than the time it would have taken to carry out the operation. Instead, the evidence was consistent with the bowel already progressing to full strangulation before surgery could have occurred,11:00 p.m. at the earliest, and there was no basis for finding on a balance of probabilities that the bowel died only after surgery would have been performed.
[72] And in Farej v. Fellows, 2022 ONCA 254, leave to appeal refused, [2022] S.C.C.A. No. 180, this court allowed an appeal and directed a new trial, in part, because the trial judge, in concluding that the physician’s decision to proceed with a vaginal delivery of the infant plaintiff rather than an emergency C-section was not the cause of the plaintiff’s injuries, had failed to make the important factual determination of the timeframe within which the emergency C-section could have been completed – in respect of which there was conflicting evidence. . Shaw Estate v. Handler
In Shaw Estate v. Handler (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against "a judgment in a delayed diagnosis medical malpractice case that proceeded to trial against one defendant, the appellant, on the issues of liability and damages. The appeal concerns only the trial judge’s determination with respect to liability".
The court considered negligence 'standard of care', here in a medical malpractice context:[39] In a medical malpractice case where standard of care is at issue, the court must determine “what a reasonable physician would have done (or not done) in order to meet the standard of care”: Levac v. James, 2023 ONCA 73, 89 C.C.L.T. (4th) 27, at para. 48. Given the complexity of medical malpractice cases, expert evidence plays an essential role in establishing the standard of care, breach of the standard of care and causation: Liu v. Wong, 2016 ONCA 366, at para. 14, leave to appeal refused, [2016] S.C.C.A. No. 264. . Gumbley v. Vasiliou
In Gumbley v. Vasiliou (Ont CA, 2025) the Ontario Court of Appeal dismissed a medical malpactice appeal, here brought against "trial judge’s causation finding that her breaches of the standard of care more likely than not caused Ms. Gumbley’s brain damage".
The court considers the law of causation, here in this medical malpractice case:[9] The trial judge’s determinations of credibility, reliability and the weight to place on expert evidence attract appellate deference in the absence of palpable and overriding error. One of the main contested issues on this appeal is whether the trial judge erred by relying on the contents of Dr. Warner’s note.
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1. The Need for a Causal Link
[15] There is no doubt that Dr. Vasiliou owed Ms. Gumbley a duty of care as her most responsible physician; she no longer contests that she breached the applicable standard of care. Did Dr. Vasiliou’s breaches cause Ms. Gumbley’s injuries?
a. The Governing Principles
[16] Chief Justice McLachlin’s statement in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8, sets the causation test in negligence cases:The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original.] [17] Chief Justice McLachlin noted, at para. 46: “A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss.” She added: “Scientific proof of causation is not required.” At paras. 9, 20, 23, and 28, she reiterated the view that the court should take “a robust and common sense” approach to the application of the test.
[18] Instances of medical malpractice fall into two categories in causation analysis, or a combination of the two. The first are instances in which the doctor does something that should not have been done – acts of commission: see e.g., Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, rev’d Armstrong v. Ward, 2021 SCC 1, [2021] 1 S.C.R. 3 (surgeon used a tool that caused adhesions and scarring, blocking patient’s ureter); Dallner v. Gladwell, 2024 ONSC 6557 (surgeon applied excessive degree or duration of force or stretch to patient’s arm during surgery); and Kotorashvili v. Lee, 2024 ONSC 1495 (surgeon prematurely removed a clavicle implant plate from the patient’s body). The second category comprises instances in which the doctor fails to do something that should have been done – acts of omission: see e.g., Aristorenas v. Comcare Health Services (2006), 2006 CanLII 33850 (ON CA), 83 O.R. (3d) 282 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 487 (treating physician and nurses failed to adequately and promptly treat post-surgery infection); Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused, [2017] S.C.C.A. No. 491 (diagnosis and treatment of anastomotic leak in patient was delayed); Beldycki Estate v. Jaipargas, 2012 ONCA 537, 295 O.A.C. 100 (radiologist failed to see visible lesion in patient’s liver on CT scan); and Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586, 499 D.L.R. (4th) 178, leave to appeal refused, Campbell v. Hasan, [2024] S.C.C.A. No. 402 (treating physician failed to consult with neurologist and order brain imaging for patient in timely manner).
[19] Dr. Vasiliou’s breaches of the standard of care are acts of omission. The required chain of reasoning was set out in Sacks, at paras. 46-48, and in Hasan, at para. 16, citing Sacks. The trier of fact’s thought process in determining factual causation has two steps. The first is to determine what likely happened in actuality. The second, explained at para. 48 of Sacks, is to consider what likely would have happened had the defendant not breached the standard of care:There are two possible outcomes to the trier of fact’s imaginative reconstruction of reality at the second step. On the one hand, if the trier of fact draws the inference from the evidence that the plaintiff would likely have been injured in any event, regardless of what the defendant did or failed to do in breach of the standard of care, then the defendant did not cause the injury. On the other hand, if the trier of fact infers from the evidence that the plaintiff would not likely have been injured without the defendant’s act or failure to act, then the “but for” test for causation is satisfied: but for the defendant’s act or omission, the plaintiff would not have been injured. The defendant’s fault, which justifies liability, has been established. [20] The trial judge cited the test in Sacks at para. 217 of his reasons.
[21] I agree with Dr. Vasiliou that, as Laskin J.A. noted in Chasczewski v. 528089 Ontario Inc. (Whitby Ambulance Service), 2012 ONCA 97, 287 O.A.C. 266, at para. 15, the test for causation stipulates that “it is the defendant’s particular substandard act or omission that must be shown to have caused the harm; therefore, it is necessary to identify that act or omission to determine what, if any, connection it has to the harm at issue.”
[22] In other words, as Rouleau J.A. observed in Aristorenas, at para. 54:The “robust and pragmatic” approach is not a distinct test for causation but rather an approach to the analysis of the evidence said to demonstrate the necessary causal connection between the conduct and the injury. Importantly, a robust and pragmatic approach must be applied to evidence; it is not a substitute for evidence to show that the defendant’s negligent conduct caused the injury. . Hasan v. Trillium Health Centre (Mississauga)
In Hasan v. Trillium Health Centre (Mississauga) (Ont CA, 2024) the Ontario Court of Appeal dismisses a medical malpractice appeal:[12] To succeed in a medical malpractice lawsuit, the plaintiff must prove, on a balance of probabilities, that: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached the standard of care; (c) the defendant’s breach caused the plaintiff to suffer a bodily injury; and (d) the injury must not be too remote a result of the defendant’s conduct: 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. . Hemmings v. Peng
In Hemmings v. Peng (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a medical malpractice case, here where a pregnant patient had a heart attack during surgery resulting in brain damage.
Here the court sets out the negligence standard of care for medical specialists:[30] The trial judge articulated the proper standard of care against which to assess the acts and omissions of Dr. Padmore, an obstetrician: his conduct must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence, and skill expected of professionals in Canada in that field – that is the degree of skill of an average specialist in the field: ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 33. . Levac v. James
In Levac v. James (Ont CA, 2023) the Court of Appeal briefly states an essential element of medical malpractice:[48] In a medical malpractice case, the court must determine what a reasonable physician would have done (or not done) in order to meet the standard of care: Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 at para. 87, per van Rensburg J.A. (dissenting), rev’d 2021 SCC 1 for the reasons of van Rensburg J.A. In my view, it was open to the trial judge, relying on the expert evidence, the evidence of nurses who worked with Dr. James, and Dr. James’ own evidence, to conclude that he breached the applicable standard of care by not consistently using an aseptic technique.
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