Shantry et al. v. Thompson et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Cronk, Pepall and Benotto, JJ.A.
• Citation: 2015 ONCA 395,(2015), 336 O.A.C. 108 (CA)
• Date: 18 February 2015
• Subject Matter: TORTS,MEDICINE

Shantry v. Thompson (2015), 336 O.A.C. 108 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.009

Melissa Anne Shantry and Taylor Anne Miller, a minor by her Litigation Guardian, Melissa Anne Shantry (plaintiffs/appellants) v. Paul Warbeck (defendant/respondent)

David Blake, Donna Miller, Harold Miller, Denise Post-Blake, Burkley Blake and David Blake Jr. (plaintiffs/appellants) v. Paul Warbeck (defendant/respondent)

(C58247; 2015 ONCA 395)

Indexed As: Shantry et al. v. Thompson et al.

Ontario Court of Appeal

Cronk, Pepall and Benotto, JJ.A.

June 4, 2015.

Summary:

A 22-year-old man (Miller) arrived at a hospital emergency room in the early evening, presenting with severe back pain. Intravenous morphine throughout the night had little effect. In the morning, he came under the care of Dr. Warbeck, who continued the morphine. There was still no relief. At around 5 p.m., Warbeck switched the medication to Dilaudid, a stronger opioid. By 3 a.m. the following morning, Miller finally said he had no pain. At 4:30 a.m., hospital staff found him not breathing. He was pronounced dead at 5:09 a.m., less than 35 hours after he had arrived at the hospital. The coroner's investigation concluded that the cause of death was mixed-drug overdose. Miller's family sued Warbeck and others in negligence, alleging that Warbeck had ordered an excessive dose of Dilaudid and this caused Miller's death.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 7805, dismissed the action. The court determined that the dose was appropriate in the circumstances and Warbeck's conduct did not fall below the standard of care. The court also rejected the coroner's finding as to cause of death. Miller's family appealed the finding that Warbeck was not negligent. They submitted that the trial judge's approach to liability was flawed because he addressed the standard of care before causation, and then wrongly rejected the coroner's conclusion as to the cause of death. They alleged that this error led him into further error with respect to the standard of care.

The Ontario Court of Appeal rejected the submissions and dismissed the appeal.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See Torts - Topic 1 and Torts - Topic 65 ].

Torts - Topic 1

Negligence - General principles - A 22-year-old man (Miller) arrived at a hospital emergency room in the early evening, presenting with severe back pain - Intravenous morphine throughout the night had little effect - In the morning, he came under the care of Dr. Warbeck, who continued the morphine - There was still no relief - At around 5 p.m., Warbeck switched the medication to Dilaudid, a stronger opioid - By 3 a.m. the following morning, Miller finally said he had no pain - At 4:30 a.m., hospital staff found him not breathing - He was pronounced dead at 5:09 a.m., less than 35 hours after he had arrived at the hospital - The coroner's investigation concluded that the cause of death was mixed-drug overdose - Miller's family sued Warbeck in negligence, alleging that Warbeck had ordered an excessive dose of Dilaudid and this caused Miller's death - The trial judge dismissed the action - The plaintiffs appealed and submitted that the trial judge erred in addressing causation after the standard of care - The Ontario Court of Appeal rejected the submission - The Supreme Court of Canada had established the requirements that had to be met to establish negligence - They were sequential and separate - The plaintiff had to demonstrate that: 1. the defendant owed a duty of care; 2. the defendant's behaviour breached the standard of care; 3. the plaintiff sustained damage; and 4. the damage was caused, in fact and in law, by the defendant's breach - The trial judge's analysis targeted each of these requirements in sequence - See paragraphs 29 to 35.

Torts - Topic 10

Negligence - Standard of care - General - [See Torts - Topic 1 ].

Torts - Topic 51

Negligence - Causation - General principles - [See Torts - Topic 1 ].

Torts - Topic 65

Negligence - Causation - Evidence and proof - A 22-year-old man (Miller) arrived at a hospital emergency room in the early evening, presenting with severe back pain - Intravenous morphine throughout the night had little effect - In the morning, he came under the care of Dr. Warbeck, who continued the morphine - There was still no relief - At around 5 p.m., Warbeck switched the medication to Dilaudid, a stronger opioid - By 3 a.m. the following morning, Miller finally said he had no pain - At 4:30 a.m., hospital staff found him not breathing - He was pronounced dead at 5:09 a.m., less than 35 hours after he had arrived at the hospital - The coroner's investigation concluded that the cause of death was mixed-drug overdose - Miller's family sued Warbeck in negligence - The trial judge dismissed the action - The plaintiffs appealed, submitting that the trial judge erred in law and fact when he rejected the coroner's determination as to Miller's cause of death - The plaintiffs' theory of causation was that a mixed overdose of morphine and Dilaudid led to respiratory depression and death - They submitted that, because they put forth extensive evidence to support their theory and Warbeck did not lead sufficient evidence to support an alternative, the trial judge was required to accept their theory of causation - The Ontario Court of Appeal rejected the submission - There was evidence that provided an adequate basis for the trial judge to conclude that the plaintiffs had failed to prove causation on a balance of probabilities - Although this was contrary to the coroner's conclusion, the coroner's conclusions were also based on a balance of probabilities - The trial judge clearly preferred Warbeck's experts' evidence on causation and rejected the plaintiffs' theory on that basis - It was open to him to do so - See paragraphs 63 to 79.

Cases Noticed:

Meringolo v. Oshawa General Hospital (1991), 46 O.A.C. 260 (C.A.), leave to appeal refused (1991), 136 N.R. 319; 50 O.A.C. 159 (S.C.C.), dist. [para. 30].

Grass v. Women's College Hospital et al. (2001), 144 O.A.C. 298; 200 D.L.R.(4th) 242 (C.A.), leave to appeal refused (2002), 293 N.R. 194; 166 O.A.C. 199 (S.C.C.), dist. [para. 31].

Cleveland v. Hamilton Health Sciences Corp. (Henderson General Division) et al. (2011), 277 O.A.C. 178; 2011 ONCA 244, refd to. [para. 34].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 34].

Ediger v. Johnston, [2013] 2 S.C.R. 98; 442 N.R. 105; 333 B.C.A.C. 1; 571 W.A.C. 1; 2013 SCC 18, consd. [para. 64].

Counsel:

Paul Pape and Joanna Nairn, for the appellants;

Michael Royce and Dena Varah, for the respondent.

This appeal was heard on February 18, 2015, by Cronk, Pepall and Benotto, JJ.A., of the Ontario Court of Appeal. Benotto, J.A., delivered the following decision for the court on June 4, 2015.