Barker et al. v. Montfort Hospital et al., 2007 ONCA 282

• Jurisdiction: Ontario
• Judge: Weiler, Blair and Rouleau, JJ.A.
• Date: 19 October 2006
• Citation: 2007 ONCA 282,(2007), 223 O.A.C. 201 (CA)
• Court: Court of Appeal (Ontario)

Barker v. Montfort Hospital (2007), 223 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. AP.078

Andrea Barker and Derek Stack (plaintiffs/respondents) v. Montfort Hospital, Dr. A. Rappaport, Dr. H. Zihni Dervish, Dr. Benoit St- Jean, and Jane Doe, nurses charges with the care of the plaintiff Andrea Barker and employed by the Montfort Hospital (defendants/appellant)

(C44873; M34278; 2007 ONCA 282)

Indexed As: Barker et al. v. Montfort Hospital et al.

Ontario Court of Appeal

Weiler, Blair and Rouleau, JJ.A.

April 18, 2007.

Summary:

The plaintiff sued a surgeon, alleging medical malpractice which caused her to lose five feet of small intestine.

The Ontario Superior Court in a decision reported [2006] O.T.C. 1, allowed the action, and awarded damages of $129,745 to the plaintiff and $100,000 to the plaintiff's husband respecting his claim under the Family Law Act. The surgeon appealed.

The Ontario Court of Appeal, Weiler, J.A., dissenting, allowed the appeal, holding that the trial judge erred in concluding that the breach of the standard of care caused the loss of the section of the small intestine.

Evidence - Topic 1591

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Hospital records - [See Medicine - Topic 4242 ].

Evidence - Topic 1593

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Hospital - Nurses notes - [See Medicine - Topic 4242 ].

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - Around midnight on April 4, 2000, the plaintiff attended an emergency room with abdominal pain and was diagnosed with a urinary tract infection and sent home - Later that evening she returned to the emergency room, was diagnosed with a bowel obstruction, and a surgeon was called - The surgeon ordered that the plaintiff be admitted to the hospital and conservative measures were instituted - Early in the morning of April 5, the surgeon saw the patient for the first time - The plaintiff was observed by nurses for the rest of the day - On April 6, at 8:00 a.m. the plaintiff had an x-ray which indicated peritonitis, requiring surgery - The surgery was performed at 1:00 p.m. - During surgery, a section of her small bowel was found to have died and had to be removed - She sued the surgeon, alleging that his care fell below the standard expected of the surgeon - The Ontario Court of Appeal dismissed the plaintiff's action, holding that, although the surgeon breached the standard of care in not coming to the hospital to see the plaintiff when called by the nurses and in failing to operate sooner, the trial judge erred in concluding that the breach of the standard of care caused the loss of the section of the small intestine - Applying the "but for" test, the evidence did not support a finding that the negligent delay in operating caused the loss of any additional bowel.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The plaintiff sued a surgeon, alleging medical malpractice which caused her to lose five feet of small intestine - The trial judge held that the surgeon was negligent - The surgeon appealed arguing that the trial judge erred in using the hospital records and notes to base his finding of negligence - The Ontario Court of Appeal rejected this ground of appeal - The court held that the notes were recorded observations made by the nurses and were admitted and relied upon by the trial judge as business records under s. 35 of the Evidence Act - The trial judge was entitled to conclude, based on the notes and the expert evidence, that the plaintiff's condition deteriorated overnight and that the standard of care required surgery and because that was not done, the surgeon breached the applicable standard of care - The court stated that those findings were entitled to deference by the appeal court - See paragraphs 23 to 34.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4241.2 ].

Medicine - Topic 4250

Liability of practitioners - Negligence or fault - Failure to diagnose an illness or condition (incl. wrong diagnosis) - [See Medicine - Topic 4241.2 ].

Cases Noticed:

Rodaro et al. v. Royal Bank of Canada et al. (2002), 157 O.A.C. 203; 59 O.R.(3d) 74 (C.A.), dist. [para. 21].

Grass v. Women's College Hospital et al. (2005), 196 O.A.C. 201; 75 O.R.(3d) 85 (C.A.), dist. [para. 21].

TSP-Intl Ltd. et al. v. Mills et al. (2006), 212 O.A.C. 66 (C.A.), dist. [para. 21].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 27, footnote 2].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 67 O.R.(3d) 737 (C.A.), refd to. [para. 49].

Hanke v. Resurfice Corp. et al. (2007),  404 A.R. 333; 357 N.R. 175; 2007 SCC 7, refd to. [paras. 51, 102].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [paras. 51, 63].

Sentilles v. Inter-Caribbean Shipping Corp. (1959), 361 U.S. 107, refd to. [para. 87].

Law Estate v. Ostry et al., [1994] B.C.T.C. Uned. 755; 21 C.C.L.T.(2d) 228 (S.C.), affd. (1995), 67 B.C.A.C. 89; 111 W.A.C. 89; 27 C.C.L.T.(2d) 127 (C.A.), refd to. [para. 89].

Law Estate v. Simice et al. - see Law Estate v. Ostry et al.

Counsel:

Marc J. Somerville, Q.C., and Daniel Boivin, for the appellant, Dr. H. Zihni Dervish;

James McMahon, for the respondents.

This appeal was heard on October 19, 2006, before Weiler, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was released on April 18, 2007, when the following opinions were filed:

Rouleau, J.A. (Blair, J.A., concurring) - see paragraphs 1 to 60;

Weiler, J.A., dissenting - see paragraphs 61 to 106.