In July 2024, the Ontario Court of Appeal released its decision in Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586, an appeal from the 2022 Superior Court judgment of Justice Tzimas. This decision provides clarity for how courts can apply the test for causation, especially in cases involving negligent omissions or delayed diagnoses.
Background
In the early hours of December 3, 2011, Mr. Syed Hasan presented to Milton District Hospital with symptoms of dizziness, nausea and vomiting. He was diagnosed with peripheral vertigo and sent home.
When Mr. Hasan’s symptoms did not improve later that morning, he visited his family doctor. She directed him to Trillium Health Partners - Mississauga Hospital, the designated Regional Stroke Centre. She gave him a referral form, asking the hospital to “please rule out organic cause (brain lesion or stroke).”
Mr. Hasan arrived at the Trillium Emergency Department, where nurses documented the referral note and that he was showing signs of a stroke. He was assessed by Dr. Campbell, who did not see the family doctor’s note. After ordering bloodwork and a CT scan, Dr. Campbell diagnosed Mr. Hasan with vertigo. Dr. Campbell discharged Mr. Hasan with a prescription to help with his dizziness, and suggested that he see his family doctor in 3-4 days or return to the ED if his condition worsened.
Overnight, Mr. Hasan’s condition deteriorated. By 3:00 AM, he discovered that he could not get out of bed. Mr. Hasan was brought back to Trillium by ambulance, where Dr. Campbell examined him again and ordered additional tests. By noon on December 4, Mr. Hasan’s symptoms had worsened to the point that he was admitted to the ICU and intubated.
On December 8, imaging revealed that Mr. Hasan had suffered a brainstem stroke. Mr. Hasan was left with permanent and serious brain damage, and required assistance with almost all activities of basic living.
Mr. Hasan and his family commenced a lawsuit against Dr. Campbell, Trillium, and several other physicians. They alleged that Dr. Campbell had breached the standard of care of an emergency physician. But for this breach, they argued, Mr. Hasan would have been assessed and treated on time, making a full recovery.
Trial Judgment
At trial, Justice Tzimas found that Dr. Campbell ought to have included a stroke in his differential diagnosis, and either consulted a neurologist or arranged for Mr. Hasan to undergo a CT angiogram. Had Dr. Campbell met the standard of care, the Court concluded, Mr. Hasan “would have been assessed and received treatment in a timely manner, which in turn would have resulted in a successful treatment and recovery.” In other words, but for Dr. Campbell’s breaches of the standard of care, Mr. Hassan would not have suffered permanent injuries.
Issue on Appeal
Dr. Campbell appealed the trial judge’s decision, arguing that the lower court had failed to properly apply the test for causation. This argument centred on the assertion that the Plaintiffs had failed to prove causation at trial, because they had not proven (1) what specific treatment Mr. Hasan would have received, absent Dr. Campbell’s breach, and (2) that the treatment would have been successful.
Decision
The Court dismissed Dr. Campbell’s appeal, upholding the lower court’s conclusions. Writing for a unanimous Court, Justice Lauwers reviewed the trial judge’s causation analysis.
The trial judge had correctly applied the prevailing approach to assessing causation, as set out in Sacks v Ross, by (1) determining what likely happened, and (2) determining what would have likely happened had Dr. Campbell not breached the standard of care.
First, in assessing what likely happened, the trial judge accepted the Plaintiffs’ theory that Mr. Hasan had suffered an embolic stroke, and rejected the Defendants’ competing theory of how the stroke came about. Justice Tzimas set out seven reasons for preferring the evidence of the Plaintiffs’ experts, who had provided comprehensive, objective explanations, over the Defendants’ experts who had attempted to minimize and ignore bad facts in order to defend their own theory.
Second, in determining what likely would have happened but for Dr. Campbell’s breach, the trial judge faced a gap in the evidence. Because Dr. Campbell had not ordered a CT angiogram, which the standard of care required him to do, the exact progression of Mr. Hasan’s stroke could not be determined.
Citing Ghiassi v Singh and Goodwin v Olupona, Justice Tzimas held that Dr. Campbell could not use an evidentiary gap of his own making to rebut the Plaintiffs’ evidence. Instead, the robust and pragmatic approach to causation allows for causation to be inferred where a Defendant’s negligence prevents a Plaintiff from demonstrating the link between their injury and its causation. This inference may nonetheless be rebutted by the Defendant.
Justice Tzimas found that, but for Dr. Campbell’s negligence, Mr. Hasan would have been assessed by a neurologist, would have received a timely CT angiogram, and would have received appropriate treatment without delay. It was not necessary, the Court held, for the Plaintiffs to establish exactly how Mr. Hasan’s treatment would have progressed. Regardless, the evidentiary gap caused by the lack of a CT angiogram made such an analysis impossible. Given that Mr. Hasan had presented with a stepwise progression of symptoms and good prognostic factors, and that the medical literature supported a successful outcome, the Plaintiffs had established causation.
The appeal was dismissed, with costs awarded to Mr. Hasan.
Conclusion
This decision reinforces the Supreme Court’s “robust and pragmatic” approach to causation, and serves as an important reminder that Defendants cannot rely on evidentiary gaps caused by their own negligence.
Bogoroch & Associates LLP has extensive experience in all aspects of medical malpractice litigation. If you think that you or a loved one may be the victim of medical malpractice, please reach out to the lawyers at Bogoroch & Associates LLP for a free consultation.