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The Ontario Court of Appeal dismissed an appeal in a medical malpractice case, upholding findings that an emergency physician breached the standard of care and caused the patient’s death.
Appeal dismissed because the trial judge reasonably preferred the respondent expert evidence that the January 2008 imaging was not inconclusive and that, absent objective evidence of a new bony problem, failure to order repeat imaging or earlier referral did not fall below the standard of care; ter Neuzen exception did not apply and was not raised at trial.
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The appeal is dismissed: read in context the trial judge's jury instructions correctly explained ter Neuzen and the role of expert evidence and common sense, the error of judgment instruction was appropriate given the medical judgment exercised, the jury could reject the plaintiff expert and did so, and any imperfections did not cause a substantial wrong or miscarriage of justice; costs awarded to respondent.
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The Court upheld the trial judge's causation finding: combining unchallenged expert opinion that earlier phototherapy would have prevented injury with the observed clinical progression and contemporaneous nursing notes provided a sufficient factual foundation to infer, on the balance of probabilities, that phototherapy commenced by early morning would have averted kernicterus; appellants' failure to call contrary expert evidence and to rely on hypothetical third‑party negligence did not defeat causation.
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Appeal dismissed: although jury questions and instructions could have been improved (notably avoiding use of the word "necessary" and adding an initial factual question whether delay caused the injury), the jury unambiguously accepted the respondents' causation theory on the evidence (that an aggressive retroperitoneal necrotizing infection explained the outcome) and therefore any deficiencies were non‑prejudicial; no new global but‑for test is required.
Source excerpt
Medical negligence claim dismissed. The court found Dr. Zacharias met the standard of care and that the plaintiff did not prove delayed referral probably caused the spinal injury.
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