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HEALTH CARE PROFESSIONALS - Liability (malpractice) - Negligence - Causation - Failure to diagnose - Practice and procedure

Monday, October 16, 2017 @ 8:38 AM  


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Appeal by the plaintiffs from a jury verdict in a medical negligence action. The primary plaintiff suffered serious injuries from complications arising after routine bowel surgery. An anastomotic leak resulted from a negligent surgical procedure, causing bowel contents to spill into the plaintiff's abdominal cavity. The discovery of the leak was delayed, causing the plaintiff to experience septic shock and a coma. He contracted an aggressive necrotizing infection in his lower back that led to the amputation of both legs below his knees, and all of his fingertips. The medical defendants took the position that any delay in diagnosis and treatment did not cause the plaintiff's injuries, which were unavoidable and did not result from a breach of the standard of care. The jury verdict included a finding that four of the five medical defendants breached elements of their respective standards of care, but that none of the breaches caused the injuries at issue. The plaintiffs appealed. They alleged that a mistaken understanding of the applicable causation test was reflected in the jury questions and instructions, and therefore the jury verdict could not form a safe basis for judgment.

HELD: Appeal dismissed. The jury charge did not provide the careful instructions on the reasoning process required to move through events in order to determine causation in a negligence claim involving multiple tortfeasors. Although the jury questions and instructions were problematic, the deficiencies were not material to the overall outcome. The plaintiffs' request for use of a global "but for" test in a diagnostic delay case was rejected in favour of individualized analysis, and would not have produced a different result. The jury clearly and unambiguously accepted the defence evidence on the cause of the primary plaintiff's injuries. The jury plainly found that the failure to diagnose the leak in timely fashion was not a necessary cause of the unfavourable outcome for the primary plaintiff. Perfect jury questions and instructions would not have changed the verdict.

Sacks v. Ross, [2017] O.J. No. 5171, Ontario Court of Appeal, P.D. Lauwers, C.W. Hourigan and M.L. Benotto JJ.A., October 5, 2017. TLD-October162017002