Salter et al. v. Hirst et al., 2011 ONCA 609

• Judge: Doherty, Weiler and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 20, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 609;(2011), 282 O.A.C. 353 (CA)

Salter v. Hirst (2011), 282 O.A.C. 353 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. SE.022

George Salter and Karen Hogan (plaintiffs/appellants) v. Dr. Jason Hirst , Nurse Santina Murvella, Nurse Kelly Comer, Nurse Jackie Logan, Nurse Carol Worgan, Nurse Molly Coughlin, Nurse Sandy Tomaszewski and Stevenson Memorial Hospital (defendants/respondent)

(C52377; 2011 ONCA 609)

Indexed As: Salter et al. v. Hirst et al.

Ontario Court of Appeal

Doherty, Weiler and Laskin, JJ.A.

September 23, 2011.

Summary:

The plaintiffs sued the defendants in medical negligence. A jury made a finding of negligence.

The Ontario Superior Court, in a decision reported at [2010] O.T.C. Uned. 3440, invoked rule 52.08 of the Rules of Civil Procedure to overturn the jury's finding of negligence. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See Torts - Topic 65 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - Salter was admitted to the hospital with severe abdominal and leg pain - He was transferred - CT imaging revealed an abdominal blood clot - He underwent surgery - The provisional prognosis was wrong - The post-operative diagnosis was saddle embolus and mesenteric vein thrombosis, two rare conditions - The lack of blood flow to Salter's legs prior to surgery damaged them to such an extent that he lost the use of both of his legs - The plaintiffs sued the defendants in medical negligence, alleging that the failure to transfer him sooner resulted in his paralysis - A jury made a finding of negligence - The trial judge invoked rule 52.08 of the Rules of Civil Procedure to overturn the jury's finding of negligence - The trial judge held that "there was 'no evidence' upon which the jury could have found that the plaintiffs ... had successfully proved the causation component of the negligence test" - The plaintiffs appealed - The Ontario Court of Appeal dismissed the appeal - The expert reports tendered afforded no evidence that negligence caused or contributed to Salter's paraplegia - The plaintiff led evidence to establish that surgery could have been conducted by within the six hour window of opportunity - However, the plaintiffs led no evidence to show that the correct diagnosis likely would have been made and successful treatment likely would have been completed before the close of the window of opportunity had Salter been transferred earlier - Accordingly, the trial judge correctly dismissed the claim pursuant to Rule 52.08.

Cases Noticed:

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142 (C.A.), refd to. [para. 14].

Counsel:

James L. Vigmond and Adam R. Little, for the appellants;

Christopher Hubbard and Elder C. Marques, for the respondent.

This appeal was heard on September 20, 2011, by Doherty, Weiler and Laskin, JJ.A., of the Ontario Court of Appeal. The following endorsement of the Court of Appeal was delivered on September 23, 2011.