Forsberg v. Naidoo, 2011 ABQB 252

Court of Queen ’ s Bench of Alberta Citation: Forsberg v. Naidoo, 2011 ABQB 252 Date: 20110715 Docket: 0203 17011 Registry: Edmonton Between: Wayne Forsberg, Shirley Forsberg, Kimberlee Berkeley, Christopher Berkeley, Her Majesty the Queen in the Right of Alberta, and Wayne Forsberg and Shirley Forsberg Carrying on Business As a Partnership Under the Name and Style of Forsberg & Forsberg Plaintiffs - and - Dr. Dadi B. Naidoo Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I.

Introduction.............................................................................................................. Page: 6 II. Issues...................................................................................................................... Page: 7 III. Duty of Care............................................................................................................ Page: 7 IV. Standard of Care................................................................................................... Page: 7 A.

Law.............................................................................................................. Page: 8

B. Evidence..................................................................................................... Page: 8 1. The progression and treatment of the bacterial infection.......... Page: 8 a. Prior to October 13, 2000................................................. Page: 9 b. October 13, 2000............................................................... Page: 9 c. October 14, 2000............................................................... Page: 9 d. Subsequent events and developments......................... Page: 10 2.

Accepted facts............................................................................. Page: 11 3. Witness testimony........................................................................ Page: 12 a. Dr. Dadi Naidoo............................................................... Page: 12 i. Background, training, and education................. Page: 13 ii. Interaction with Wayne Forsberg........................ Page: 13 iii. Antibiotic treatment.............................................. Page: 14 b. Nurse Joanne Ward......................................................... Page: 16 c.

Nurse Jonathen Kephart................................................. Page: 18 d. Maureen Dundin............................................................... Page: 18 e. Wayne Forsberg.............................................................. Page: 18 f. Shirley Forsberg.............................................................. Page: 18 4. Witness testimony - findings of fact and credibility.................. Page: 19 a. Dr. Naidoo’s credibility................................................... Page: 19 b.

Nurse Ward’s request for authorization to administer antibiotics........................................................................................... Page: 19 c. The ‘bolus’ saline transfusion......................................... Page: 20 d. The critical care line......................................................... Page: 20 5. Expert testimony - standard of care........................................... Page: 21 a. Specialist’s testimony on standard of care of a non-specialist Page: 21 b. Dr. Christopher Powell.................................................... Page: 22 c. Dr.

Robert Cameron........................................................ Page: 24 C. Was the Standard of Care Met?............................................................ Page: 25 1. Failure to adequately monitor Wayne and his treatment......... Page: 26 2. Failure to order intravenous transfusion of saline solution...... Page: 26 3. Transfer to an intensive care facility........................................... Page: 27 4. Body material sampling.............................................................. Page: 28 5. Broad-spectrum antibiotic treatment......................................... Page: 29 D.

Conclusion on Standard of Care............................................................ Page: 30 V. Injury and Causation............................................................................................ Page: 30 A. Law............................................................................................................ Page: 31 1. Injury............................................................................................... Page: 31 2. Causation..................................................................................... Page: 31

B. Evidence................................................................................................... Page: 32 1. Biological information/factual information................................. Page: 32 a. Shock................................................................................ Page: 33 b. Disseminated intravascular coagulation (“DIC”).......... Page: 33 2. Expert testimony.......................................................................... Page: 34 a. Dr. Ronald Gold............................................................... Page: 34 b. Dr.

Lindsay Nicholle......................................................... Page: 35 c. Dr. Andrew Pattullo.......................................................... Page: 37 d. Conclusion on expert testimony..................................... Page: 38 C. Analysis..................................................................................................... Page: 39 1. Earlier transfer to an Edmonton intensive care ward............... Page: 39 2. Earlier taking of blood samples................................................. Page: 39 3.

Intravenous antibiotic treatment.................................................. Page: 40 a. Limited probative value of scientific literature.............. Page: 40 b. Could early antibiotic treatment have led to Wayne’s death? Page: 43 c. Could early antibiotic treatment have reduced Wayne’s injuries?........................................................................................... Page: 45 i. Early antibiotic treatment and injury reduction - overview Page: 46 ii.

Early antibiotic treatment and injury reduction - uncontrolled clotting............................................................................... Page: 48 iii. Early antibiotic treatment and injury reduction - DIC clotting was complete............................................................... Page: 50 iv. Early antibiotic treatment and injury reduction - DIC progression and injury post-1:35 P.M..................................... Page: 51 v. Which of Wayne’s injuries were caused by negligent delayed antibiotic treatment?............................................ Page: 53 4.

Conclusion - causation................................................................ Page: 55 VI. Compensation...................................................................................................... Page: 55 A. The Claims of the Plaintiffs..................................................................... Page: 55 B. General Issues......................................................................................... Page: 56 1. Life expectancy............................................................................

Page: 56 2. “Crumbling Skull” spine and arthritis injuries............................ Page: 57 3. Gross-up calculations.................................................................. Page: 58 C. Damages.................................................................................................. Page: 59 1. General damages........................................................................ Page: 59 a. The law.............................................................................. Page: 59 b. Comparable general damage awards.......................... Page: 59 c.

Conclusion - general damages...................................... Page: 62 2. Past cost of care.......................................................................... Page: 63 a. Shirley Forsberg.............................................................. Page: 63 i. Time spent by Shirley.......................................... Page: 64 ii. Value of home care services provided by

Shirley................................................................... Page: 65 iii. Calculation of Shirley’s compensable efforts... Page: 65 b. Compensation for services rendered by Chris and Kim Berkley........................................................................................... Page: 66 3. Future cost of care....................................................................... Page: 67 a. Prosthetic Limbs.............................................................. Page: 67 i. Right arm prosthesis........................................... Page: 69 ii.

Other prostheses costs....................................... Page: 69 b. Live-in caregiver and nursing assistance...................... Page: 70 i. Live-in caregiver.................................................. Page: 70 ii. Nursing assistance.............................................. Page: 71 iii. Rehabilitation....................................................... Page: 71 iv. Conclusion on caregiver, nursing care and rehabilitation costs ............................................................................... Page: 72 4. Home renovation and moving expenses...................................

Page: 72 a. The future home............................................................... Page: 73 b. Modifications to house.................................................... Page: 73 c. Renovation costs............................................................. Page: 74 d. Moving costs.................................................................... Page: 75 5. Transportation costs.................................................................... Page: 75 6. Non-prosthetic mobility aids....................................................... Page: 75 7.

Clothing costs............................................................................... Page: 76 8. Personal supplies........................................................................ Page: 77 9. Medication costs.......................................................................... Page: 77 10. Other household equipment costs............................................. Page: 78 11. Leisure equipment costs............................................................. Page: 78 D. Loss of Domestic Services.................................................................... Page: 79 E.

Special Damages.................................................................................... Page: 80 1. Agreed special damages........................................................... Page: 80 2. Disputed special damages........................................................ Page: 80 a. Hospital travel, parking, meal and lodging costs.......... Page: 80 b. Dairy cattle and quota sales costs................................. Page: 80 c. Farm labour costs............................................................ Page: 81 d. Other miscellaneous labour costs.................................. Page: 81 e.

The unpaid myoelectric prosthesis cost........................ Page: 81 f. Household equipment..................................................... Page: 82 3. Crown special damages............................................................. Page: 82 F. Loss of Post-Injury Income...................................................................... Page: 84 1. Preliminary issues....................................................................... Page: 84 a. Credibility and character of the Forsbergs and the

Berkleys............................................................................ Page: 84 b. Wayne’s projected work history..................................... Page: 85 c. Inevitable income loss from the N. meningitidis infection............................................................................. Page: 86 2. The Forsberg dairy after 2001................................................... Page: 86 3. Law - mitigation............................................................................ Page: 88 4. Analysis.........................................................................................

Page: 89 a. Dairy income in the scenario where negligent treatment did not occur........................................................................................... Page: 90 b. Historic operation of the dairy and successor business Page: 91 c. Dairy operations when Wayne was incapacitated....... Page: 91 d. Shutting down the dairy................................................... Page: 92 e. Beef cattle as an alternative........................................... Page: 92 f. Termination of the beef cattle operation........................

Page: 96 g. “Unsuccessful” mitigation............................................... Page: 96 h. Conclusion - loss of income............................................ Page: 97 G. Loss of Consortium................................................................................. Page: 98 H.

Summary of Damages............................................................................ Page: 99 VII. Costs................................................................................................................... Page: 100 I. Introduction [ 1 ] Midday on October 14, 2000, Wayne Forsberg (“Wayne”), a 61 year old Calmar area dairy farmer, arrived in the Emergency Department of the Leduc Community Hospital (“Leduc Hospital”), with his wife Shirley Forsberg (“Shirley”).

They were both concerned because Wayne felt ill, had pain in his hands, and small spots had recently developed on his hand and body which they thought might indicate meningitis. There had been a recent and well-publicized increased incidence of that disease in the Edmonton area. [ 2 ] Unfortunately, their suspicions were correct. Wayne had contracted a pathogenic bacterium, Neisseria meningitidis (“ N. meningitidis ”).

That organism was rapidly proliferating in Wayne’s bloodstream and he required immediate treatment by antibiotics to counter the infection. [ 3 ] Upon arrival at the Leduc Hospital, Wayne’s condition was immediately identified as urgent by Joanne Ward, the first nurse who examined him (“Nurse Ward”). She immediately contacted the Defendant, Dr. Naidoo, who examined Wayne and ordered some tests. However, Dr. Naidoo did not order any treatment, but made two unsuccessful attempts to perform a lumbar puncture.

Over three hours after Wayne’s arrival, the Defendant arranged for Wayne to be transferred to the Royal Alexandra Hospital (the “R.A.H.”) a tertiary treatment facility in Edmonton. When Wayne arrived at the R.A.H. he was immediately administered antibiotics by intravenous

injection. [ 4 ] Unfortunately, by this time Wayne’s condition had deteriorated as the infection spread and he was sedated into a medically induced coma. Parts of his appendages began to die. Both Wayne’s legs were amputated, one above and one below the knee. His right arm was amputated below the elbow midway along his forearm and part of his left hand was also removed. Wayne regained consciousness over a month later on November 19. [ 5 ] Wayne has since learned to use prosthetics, but his functioning remains severely impaired. He experiences ongoing discomfort and requires medication to avoid blood clots.

Post-amputation, he was no longer able to participate in the operation of the family dairy farm and ultimately the herd had to be sold. [ 6 ] Wayne and his family have sued Dr. Naidoo for negligent treatment of Wayne’s N. meningitidis infection in Action No. 0203 17011 (“the Action”). [ 7 ] When the Action was commenced Dr. Ahmed S. Hussein was also named as a co-defendant. At the time of Wayne’s infection Dr. Hussein was the Leduc Hospital infectious disease specialist, who was consulted by Dr. Naidoo on October 14, 2000. The Action against Dr. Hussain was discontinued by consent on October 4, 2010, leaving Dr.

Naidoo as the sole Defendant. II. Issues [ 8 ] Medical negligence requires proof of a number of steps. To be successful, the Plaintiffs must prove on a balance of probabilities, that: 1. Dr. Naidoo owed Wayne a duty of care; 2. Dr. Naidoo breached the applicable standard of care; 3. Wayne suffered an injury or loss; and 4. Dr. Naidoo’s actions were the actual and legal cause of the Plaintiffs’ injury or loss. (E. I. Picard and G. B. Robertson, Legal Liability of Doctors and Hospitals in Canada , 4th ed. (Toronto: Thompson Canadian Limited, 2007)). III. Duty of Care [ 9 ] Dr.

Naidoo acknowledges that he owed Wayne a duty of care.

IV. Standard of Care [10] The first issue to be determined is whether Dr. Naidoo’s treatment of Wayne breached the applicable standard of care. ThePlaintiffs argue that Dr.

Naidoo’s breach relates to a number of errors, including his failure to: 1. remain with Wayne and monitor Wayne’s condition; 2. order that intravenous saline fluids be administered in a timely manner; 3. order blood samples in a timely manner; 4. order that Wayne receive broad-spectrum antibiotics by intravenous injection; and 5. take reasonable steps to transfer Wayne to an intensive care facility for further treatment. [11] Shortly before the trial began it was admitted that Dr. Naidoo had failed to meet his required standard of care when he did notorder Wayne receive antibiotics.

What remains unresolved is at what time that failure to deploy antibiotics becomes negligent. [12] Unlike some medical malpractice actions, informed consent (or lack-thereof) is not an issue in this Action. Dr. Naidoo’snegligence, if any, flows from how he treated Wayne during the afternoon of October 14, 2000. A. Law [13] The parties generally do not disagree on the relevant law applied to evaluate whether a medical professional met his or herstandard of care when treating a patient.

The applicable standard of care is that the doctor have and apply the level of care, skill andknowledge of the average practitioner in his or her specialty: Ter Neuzen v. Korn, (SCC), [1995] 3 S.C.R. 674 at paras.32-33, 38, 127 D.L.R. (4th) 577; St-Jean v.

Mercier, 2002 SCC 15 at para. 52, [2002] 1 S.C.R. 491. [14] The defendant doctor’s conduct is tested on the basis of the knowledge and practices of a medical practitioner at the time ofthe alleged negligence: Ter Neuzen, supra, at para. 34. [15] A trial judge evaluates the standard of care of a professional with the assistance of expert evidence on the standards andpractices of that discipline: Stoddard v. Montague, 2006 ABCA 109 at para. 20, 412 A.R. 88. The Plaintiffs called Dr. Powell tocomment on the appropriate standard of care for Dr. Naidoo, while Dr. Naidoo had Dr.

Cameron testify as his expert witness on thisissue. [16] The Plaintiffs note that recent Alberta Court of Queen’s Bench decisions have concluded that a reduced standard of careshould not apply to rural medical practitioners: Skeels Estate v. Iwashkiw, 2006 ABQB 335 at paras. 74-80, 63 Alta. L.R. (4th) 26;Zazelenchuk v. Kumleben, 2007 ABQB 650 at para. 38, 430 A.R. 294. I agree, although I note that the location of a medicalprofessional is in this case relevant as Wayne required transfer to a tertiary facility. In that sense, the appropriate conduct for a rurally

located medical practitioner may not be the same as for an urban medical practitioner. That is not a reduced standard of care, but a different one. B. Evidence 1. The progression and treatment of the bacterial infection [ 17 ] The parties do not dispute the general sequence and nature of the events that led to Wayne’s visit to the Leduc Hospital, and his subsequent treatment. That said, the exact timing of the appearance of certain symptoms and of certain events remains in question. What follows is a

summary of what occurred between October 13 and late December, 2000. a. Prior to October 13, 2000 [ 18 ] In 2000 an unusual number of meningococcal meningitis infections occurred in the Edmonton area. The Capital Health Authority issued notices and bulletins to doctors and hospitals in the region and these communications described the outbreak of the infections. b. October 13, 2000 [ 19 ] After working in the fields, Wayne returned to the homestead at about 5:00 P.M. He felt ill and complained of flu-like symptoms and a stiff neck. As the evening progressed he felt worse and took several aspirins.

He felt weak and wobbly, and did not sleep well overnight. c. October 14, 2000 [ 20 ] When Wayne awoke to begin work at 4:30-5:00 A.M. he still felt ill. He thought he had the flu. Around or shortly after 11:00 A.M. Wayne and Shirley observed a few red and brown spots on Wayne’s hand, left leg and body. They were about the diameter and colour of a pencil eraser, aside from several on Wayne’s left thigh, which were a little larger. Wayne felt weak. Soon after Wayne and Shirley drove to the Leduc Hospital, which took 30 minutes.

Wayne felt worse during that trip. [ 21 ] At 1:00 P.M. the couple arrived at the Leduc Hospital emergency department. They showed the spots to Nurse Ward. The spots were somewhat larger than several hours earlier, and had darkened to a purple colour. There were also smaller red marks apparent. [ 22 ] Nurse Ward concluded that these purple marks were a medical condition called purpura, discolourations caused by bleeding under the skin. The smaller red marks were petechiae, smaller areas of bleeding under the skin that could evolve into purpura.

Nurse Ward observed that the purpura and petechiae were distributed on Wayne’s body, including on his arms, back, and hands. The largest purpura were about the size of a quarter. Nurse Ward’s immediate conclusion was that Wayne had a massive infection in his bloodstream and throughout his body, a condition known as septicaemia. [ 23 ] Nurse Ward immediately measured Wayne’s blood pressure, pulse, oxygen saturation, and body temperature, and observed his breathing. His blood pressure was low, 97/52 (systolic pressure / diastolic pressure). She put an oxygen mask on Wayne as his

breathing was rapid. His body temperature (38.1°

C) and pulse (104 beats per minute) were elevated. He was pale and sweating, but had cool skin. She concluded these symptoms and the purpura could indicate septic shock, an extensive infection that was very serious and required immediate attention. She left Wayne and Shirley to fetch the only doctor in the emergency department, Dr. Naidoo. [ 24 ] Dr. Naidoo arrived within a few minutes. His estimate is that he would have first seen Wayne about five minutes after Wayne arrived at the emergency department. Dr. Naidoo obtained a history from Wayne of the illness, and proceeded to conduct a physical examination.

He observed purpura on Wayne’s arms, legs, and back, and that the largest purpura were quarter-sized. The examination took about 10 minutes and ended at around 1:30 P.M. [ 25 ] Dr. Naidoo concluded that the patient’s condition required transfer to an intensive care facility, and began making telephone calls to arrange that transfer. Dr. Naidoo’s efforts and calls continued throughout the afternoon until approximately 4:00 P.M., when the R.A.H. accepted Wayne as an intensive care patient. [ 26 ] Dr.

Naidoo ordered various tests, including blood cultures, to evaluate Wayne’s condition and to identify what, if any, foreign organisms were present in Wayne’s body; samples were taken by the Leduc Hospital at several points between 2:00 and 3:00 P.M. [ 27 ] Nurse Ward took another set of vital condition measurements at 2:55 P.M. Wayne’s blood pressure had improved, to 138/95, and his heart had slowed to 92 beats per minute. His fever remained stable, at 38.1°C, and he continued to breath rapidly (24 breaths per minute). [ 28 ] Dr. Naidoo called Dr.

Hussain, the infectious disease specialist assigned to the Leduc Hospital, to obtain advice as to how to respond to Wayne’s condition. After the telephone conversation and sometime after 3:00 P.M., Dr. Naidoo attempted two lumbar punctures to see whether an infection had spread to Wayne’s central nervous system. Both attempts failed. [ 29 ] Wayne was transferred by ambulance from Leduc to the R.A.H., and arrived at 5:05 P.M. Prior to his departure for the R.A.H. his pulse was 100 beats per minute, his blood pressure was 120/74, and he was breathing rapidly (24 breaths per minute).

Fifteen minutes prior to arriving at the R.A.H. his pulse was 96, his blood pressure was 120/70, and his breathing remained rapid. Wayne remained alert and responsive throughout this period. [ 30 ] Wayne’s condition became considerably worse soon after his arrival at the R.A.H. His blood pressure dropped to 70/40. He first received intravenous antibiotics, 2 grams of Cefitoxine, at 5:15 P.M. An additional intravenous dopamine line was set up at 5:30 P.M., followed by a femoral artery line at 6:10 P.M.

While his blood pressure subsequently improved, intensive care physicians decided that Wayne’s impaired breathing required intubation (a breathing tube inserted into the trachea to allow mechanical breathing assistance). That procedure was conducted at 6:43 P.M. d. Subsequent events and developments [ 31 ] N. meningitidis bacteria were subsequently grown from the blood samples taken in the Leduc Hospital. Similar cultures produced with blood taken at 5:40 P.M. did not identify any foreign bacteria. [ 32 ] Wayne was sedated prior to the intubation; that was the last time he was conscious until November 19, 2000.

Blood clotting and interruptions in blood supply to parts of Wayne’s body caused various tissues to die, a condition known as gangrene. A series of amputations were conducted to remove dead tissues and control possible infection: · November 2 - both legs were amputated below the knee, the right forearm and hand was entirely amputated and part of the left hand was amputated; and

· November 23 - the right leg was amputated above the knee. [3] Wayne experienced kidney and heart failure and extended lung dysfunction while hospitalized. He was transferred to the Glenrose Rehabilitation Hospital on December 27, 2000, and was discharged on March 15, 2001 after receiving rehabilitative care and the fitting of prosthetics. [4] In addition to the obvious impediments that arise from his amputations, Wayne requires ongoing medication to control anomalous formation of blood clots. He has subsequently required surgery to address blood clots and has been injured when he fell. 2.

Accepted facts [5] Much of the factual medical and scientific background to this matter is not in dispute. Wayne had a N. meningitidis infection. N. meningitidis is a pathogen that can cause disease by infecting the body, bloodstream, and the central nervous system. Most persons with N. meningitidis infections are young children (6-15 months old), though teenagers and young adults sometimes also develop the disease, particularly in educational or military residence settings. Adult infections are very rare.

Most persons develop a natural immunity to N. meningitidis early in their lives and may then carry the bacteria without undergoing any infection or injury. A N. meningitidis infection in an older individual can have very severe implications, as the bacteria grows rapidly and releases toxic materials that interfere with circulation and induce abnormal blood clotting. [6] N. meningitidis can be effectively treated with antibiotics which kill bacteria, but do not affect other organisms.

N. meningitidis is unusually sensitive to antibiotics, and can be cleared from the human body rapidly and efficiently with a single large dose of these drugs. N. meningitidis antibiotic resistance is not an issue in Canada. [7] One of the common ways N. meningitidis affects persons is by infecting their central nervous system. A bacterial infection of the membranes which cover the central nervous system is known as meningitis. A meningococcal meningitis infection is meningitis caused by N. meningitidis . Symptoms of meningitis include headache, neck stiffness, and fever.

Untreated bacterial meningitis, including meningococcal meningitis, is almost always fatal. [8] The other commonly encountered form of N. meningitidis infection is septicaemia, when a bacteria grows and divides throughout a person’s bloodstream and body. This kind of N. meningitidis infection can lead to a condition known as shock, where immune system responses disrupt circulation and cause a drop in blood pressure. A person in septic shock experiences fever, poor circulation, a drop in blood pressure, and organ dysfunction. Medical personnel typically describe the appearance of a person in shock as “toxic”.

Like meningococcal meningitis, N. meningitidis septicaemia is lethal unless treated. [9] While infection with many microorganisms can trigger shock, a unique feature of septic N. meningitidis infection is the inappropriate induction of the human body’s clotting mechanisms. Injury to the circulatory system causes blood components to bind and assemble, and form physical obstructions, blood clots, that slow and stop bleeding from internal and external wounds. N. meningitidis has the unusual capacity to trigger the abnormal and inappropriate formation of clots, which can then obstruct blood vessels.

The combination of weakened blood vessels and clot obstructions results in bleeding into surrounding tissues. Where that bleeding occurs near the skin, the released blood can be seen as the characteristic N. meningitidis petechiae and purpura. Medical personnel sometimes refer to these markings as a ‘rash’, but more accurately this is not a skin irritation but a form of internal bleeding. [10] N. meningitidis infections can occur in either the body and bloodstream (septicaemia), the central nervous system (meningitis), or both. Any form or combination of N. meningitidis infection is a medical emergency. 3.

Witness testimony

[11] Members of the Forsberg family and various medical professionals testified on what they witnessed during the development and treatment of Wayne’s infection. Dr. Naidoo’s testimony is obviously very important in understanding his actions (and inaction) during the period in which Wayne was at the Leduc Hospital. [12] Dr. Ahmed S. Hussein, the infectious disease specialist consulted by Dr. Naidoo on October 14, 2000, was not called as a witness. a. Dr. Dadi Naidoo [13] Dr. Naidoo testified in relation to his interactions with Wayne at the Leduc Hospital.

Parts of his testimony are inconsistent with that of certain other witnesses. I will comment on those discrepancies and my conclusions as to what actually transpired on October 14 after my review and analysis of the testimony of the relevant witnesses. i. Background, training, and education [14] Dr. Naidoo was trained as a doctor in South Africa, and in 2000 had practiced as a doctor for 31 years. He began work in Canada in 1984. In 2000 Dr.

Naidoo worked as a family practitioner, but also had two emergency department shifts per week at the Leduc Hospital. [15] He testified that he was aware of meningococcal meningitis, and understood that N. meningitidis infection could involve either or both infection in the body and circulatory system (septicaemia), and the central nervous system (meningitis). This information was part of what the Defendant acknowledged was his “basic medical education”. He testified that the kind of bleeding under the skin exhibited by Wayne was a symptom of septic infection by N. meningitidis .

He was aware that bloodstream infection by N. meningitidis was a very serious condition, a potentially fatal illness with other very serious consequences, such as limb amputation. [16] Dr. Naidoo explained that in his career he had encountered meningitis while practicing in South Africa where the standard procedure was to do a lumbar puncture and see whether the cerebrospinal fluid was clear. ii. Interaction with Wayne Forsberg [17] The Defendant said he knew that an unusually large number of meningococcal meningitis cases had been identified in the Edmonton area; Dr.

Naidoo said he became aware of that from various popular media sources. While Dr. Naidoo agreed that notices of the outbreak would have been posted at the emergency ward and received by his family practice, he does not recall reading either. He explained that once he became aware of the meningitis outbreak he took steps to familiarize himself with the disease, which included a review of Rosen’s Emergency Medicine (“ Rosen’s ”), a standard emergency room reference text available via the MD Consult website operated by Alberta Health. Dr.

Naidoo agreed this was an authoritative source for proper emergency room procedure. [18] Dr. Naidoo testified Nurse Ward asked him to see Wayne, and that he immediately realized he had a patient in a very serious condition who required urgent care, “ I knew I had a very ill man ”. He noted in writing this patient was “toxic looking”, which meant Dr. Naidoo thought Wayne was in septic shock. He says he immediately ordered that Wayne receive intravenous saline fluids and priority medical testing. Dr.

Naidoo says that Wayne immediately received a high flow transfusion of intravenous saline fluids to build up his blood pressure, what the medical professionals referred to as a “bolus” of fluids. He denies evidence of Nurse Ward to the contrary and says the absence of any written instruction on that point is irrelevant; Dr. Naidoo gave that order verbally. [19] While Dr. Naidoo was uncertain as to the precise cause of Wayne’s condition, he concluded there were two more probable

explanations for his patient’s symptoms and high fever, either viral or bacterial infection. Wayne had signs that suggested meningitis and septicaemia. On cross-examination the Defendant agreed one of his initial diagnoses was meningococcal septicaemia. Dr. Naidoo did not refer to any reference material after he examined Wayne, he testified “I know what septicemia is, and I know how – how it is supposed to be managed.” [20] There is also no question that Dr.

Naidoo acknowledges that immediate treatment was appropriate for either a central nervous system infection or meningococcal septicemia due to the severe potential consequences of either. He testified that if either condition was suspected then a physician should immediately begin treatment presuming central nervous system infection or meningococcal septicemia was underway. [21] Dr.

Naidoo says that after he first examined Wayne he concluded he could not properly treat Wayne in Leduc and began his efforts to transfer Wayne to an intensive care facility by telephoning the University of Alberta Hospital intensive care ward. He testifies that his repeated calls were not returned and it was only after some difficulty Dr. Naidoo ultimately arranged for Wayne’s transfer to the R.A.H. When asked in cross-examination Dr. Naidoo testified that in October 2000 there was no central contact point, the critical care line, available to assist and coordinate this kind of transfer. [22] Dr.

Naidoo agreed that Wayne was the patient in the emergency ward with the most critical condition, and says Wayne was the focus of the Defendant’s attention while Wayne was at the Leduc Hospital. That said, Dr. Naidoo acknowledges he did not remain with Wayne throughout his stay in the emergency ward. Dr. Naidoo does not recall other patients being treated at that time, but acknowledges there were others present. iii. Antibiotic treatment [23] Treatment with antibiotics was a focus for Dr. Naidoo’s testimony and cross-examination.

As previously noted, he has admitted that Wayne should have received intravenous antibiotics during his period at the Leduc Hospital when, in fact, no such drugs were either ordered or administered. [24] Dr. Naidoo knew that broad-spectrum antibiotics were available. He agreed that he told Wayne and Shirley that he would likely order antibiotics, but denies having been asked by Nurse Ward to confirm that she mix and administer those drugs. Dr.

Naidoo also rejects Nurse Ward’s estimate that she could have deployed broad-spectrum antibiotics within 3-5 minutes, he says the process would have taken much longer. [25] Dr. Naidoo offered two explanations as to why he did not ask Nurse Ward to administer antibiotics. The first was that he was unsure of what course to take: Q. And, if I understand what you’ve just said, you weren’t quite sure at that point what the procedure was for treatment of a meningococcal septicemia patient? A. That’s correct. Yes. ... I had information.

I had -- had a basis on which I could treat, but I was not quite sure at that time what I was really dealing with. It could have been bacterial, it could have been viral, it could have been any -- anything, and I was not exact -- absolutely sure, so I had to go and think about it, talk to a specialist, and make sure that I was doing the right thing. [26] Dr. Naidoo then consulted with Dr. Hussain, who suggested that Dr. Naidoo first conduct a lumbar puncture and then treat with antibiotics. Dr. Naidoo attempted, without success, to follow that advice. [27] Delay was the second reason which Dr.

Naidoo provided to explain the failure to administer antibiotics. He testified antibiotics would have delayed Wayne’s transfer to the R.A.H.:

I did contemplate giving him antibiotics. I had written it down, but at this stage already, it meant getting the antibiotics from the pharmacy, which is on the third floor. They have to mix up the antibiotics, bring it down to us, and all this is going to cause further delay. As it is, we’ve been so delayed that I decided to send him off to the University Hospit – to the Royal Alexandra Hospital as soon as possible. [28] Presumably this explanation only relates to the period shortly before Wayne’s transfer from Leduc to Edmonton by ambulance. [29] Dr.

Naidoo commented in detail on a peculiar aspect of Wayne’s chart, a note on page 13 of his hospital chart that reads “2 grams of Cefuroxime”. Cefuroxime is a broad-spectrum penicillin type antibiotic. Dr. Naidoo explained that he made that note for his own information, after his conversation with Dr. Hussain: I made that note over there so the – that’s what I would have given him, a penicillin-based antibiotic, which is the treatment of choice for meningitis. ... I didn’t give that order. I wrote it down for my own information, so that’s what I was going to order. [30] On cross-examination, Dr.

Naidoo said he made the Cefuroxime note “long afterwards”. [31] Dr. Naidoo was asked to comment on the appropriate role of antibiotics in treatment of septicaemia. He agreed he had reviewed a passage from Rosen’s that emphasized immediate antibiotic treatment: The keys to reducing morbidity and mortality in meningococcemia are prompt recognition and immediate initiation of antibiotic therapy . Delays in initiating therapy before completion of diagnostic studies or admission to the in-patient unit should be avoided. [Emphasis added.] [32] Dr.

Naidoo explained he ordered tests in an attempt to clarify whether the observed and apparent septicaemia was of bacterial or viral origin: I know he was -- septicemia. He had some kind of an infection. If you at -- right at the bottom, I’ve got acute febrile illness, and I was thinking of a viral condition; I was thinking of a bacterial condition, and that’s why I ran those tests. That was one of his concerns. [ 33 ] Nevertheless, Dr. Naidoo agreed there were no possible negative complications which might result from treatment by antibiotics before the kind of pathogen in play had been identified: Q.

And isn’t it true, doctor, that whether the infection was viral or bacterial, it would not have been harmful to provide Mr. Forsberg with antibiotics? A. That’s correct. I agree with that.

Q. So even if it were a viral case, the antibiotics could have been given without any potential harm? A. It could have been given. Yes, sir. b. Nurse Joanne Ward [ 34 ] Nurse Joanne Ward was the first healthcare worker to see Wayne on October 14, 2000. At that time Nurse Ward had worked as a registered nurse for 30 years. She received a bachelor’s degree in nursing in 1996. [ 35 ] Nurse Ward testified that when she first examined Wayne she immediately noticed the purpura on his skin and was very well aware of what these marks indicated.

She concluded Wayne had a septic infection, urgently required treatment, and immediately brought this patient to Dr. Naidoo’s attention. She agreed with Dr. Naidoo that Leduc Hospital simply did not have the facilities to effectively treat and manage a patient with Wayne’s condition. [ 36 ] The timeline and events described by Nurse Ward generally align with the testimony of the Forsbergs and Dr. Naidoo, however there are a number of crucial points at which the testimony of Dr. Naidoo and Nurse Ward diverge. [ 37 ] First, Dr. Naidoo and Nurse Ward did not agree on the intravenous transfusion of saline solution.

Nurse Ward reports that about 1:30 P.M. she prepared a bag of saline fluid for transfusion once Dr. Naidoo began his examination of Wayne. She took this step and began transfusion on her own authority, but set the flow rate to a very low level, to “keep the vein open”. Nurse Ward says on Dr. Naidoo’s order she later increased that flow rate at 2:15 P.M. to 125 mL per hour. Nurse Ward denies that Dr. Naidoo initially ordered administration of the ‘bolus’ of saline, or that such a step ever occurred. [ 38 ] As was previously mentioned, Nurse Ward disagreed with Dr.

Naidoo’s estimate of the amount of time required to deploy broad-spectrum antibiotics. She said with the equipment available at that time, three to five minutes would be required between the order to administer antibiotics and the start of intravenous injection. [ 39 ] Last, Nurse Ward testified that on two separate occasions she asked Dr. Naidoo for an instruction to administer intravenous antibiotics. She believed Wayne had a septic meningitis infection. Nurse Ward testified the first occasion was at about 1:30 P.M. when she returned to Wayne with the intravenous saline bag and stand. Dr.

Naidoo said to wait, he would first call an infectious disease specialist. [ 40 ] The second occasion was after blood culture samples had been collected, about 2:35 P.M. Nurse Ward’s evidence is that Dr. Naidoo again rejected her suggestion, and said that he would wait until he had completed a lumbar puncture. [ 41 ] Nurse Ward’s shift ended at 3:00 P.M., her last interaction with Wayne was to take his vital signs at 2:55 P.M. [ 42 ] She also testified concerning the “2 grams of Cefuroxime” notation on page 13 of Wayne’s chart. Nurse Ward says that while she was on duty she had not observed that note.

Several days later, when Nurse Ward became aware of that notation she was very concerned that Dr. Naidoo had in fact written that instruction, and that she had missed the note. Nurse Ward was understandably upset at the possibility that she had missed Dr. Naidoo’s instruction even though she had constantly checked Wayne’s chart for additional orders. [ 43 ] Nurse Ward then asked Dr. Naidoo if she had missed his instruction.

She testified he stated that he had not written the Cefuroxime note as an instruction, but rather that he had later added that information, he “... just wrote that there, ... to complete the chart.”

c. Nurse Jonathen Kephart [ 44 ] Nurse Jonathen Kephart took over from Nurse Ward at 3:00 P.M. He testified that he monitored Wayne’s condition and assisted Dr. Naidoo during the two unsuccessful lumbar puncture procedures. Once the transfer to the R.A.H. was confirmed, Nurse Kephart arranged for and assisted in the ambulance transfer, however the witness had no memory of those events. [ 45 ] Nurse Kephart testified that no antibiotics were ordered while Wayne was under his supervision at the Leduc Hospital. d.

Maureen Dundin [ 46 ] In October 2000 Maureen Dundin, a nurse, was employed by the Leduc Hospital as the emergency and outpatient department patient care manager. While she did not directly interact with Wayne during his visit with the hospital she subsequently conducted what might be called an ‘after-incident investigation’ of Wayne’s treatment on October 14, 2000. The focus of that investigation was whether an order to administer antibiotics had been given but not executed. This related to the Cefuroxime note. Ms. Dundin interviewed Dr.

Naidoo and Nurses Ward and Kephart; each confirmed no order had been given. [ 47 ] This witness also commented on the procedure and resources for transfer of a patient from the Leduc Hospital to other area hospitals. Ms. Dundin testified that the critical care line to assist inter-hospital transfer was operational as of May 2000, and that information about the new care line had been broadly disseminated among hospital staff. She also indicated that previously a similar system (a “trauma line”) had been in operation for about a year. e.

Wayne Forsberg [ 48 ] Wayne’s testimony again matches the general progression of time and events reported by other witnesses. He recalls discussing the possibility of bacterial meningitis during his initial consultation with Dr. Naidoo, and confirms Nurse Ward subsequently appeared and began transfusion of saline fluids. [ 49 ] He recalls the various tests but could not confirm the timing of those events or his transfer to the R.A.H. f. Shirley Forsberg [ 50 ] Shirley was in a better position to recall the timing of the events that involved her husband.

She accompanied her husband through much of his stay in the Leduc Hospital emergency room. Her testimony again correlates well with that of other witnesses. [ 51 ] Shirley says that Dr. Naidoo was generally absent, other than when conducting his examination and for the lumbar punctures. She reports asking why antibiotics were not administered, and also being told by nurses that would require a doctor’s order.

4. Witness testimony - findings of fact and credibility [ 52 ] The testimony of the witnesses on the events at the Leduc Hospital emergency room is generally consistent. All report the same general set of tests, the deterioration of Wayne’s condition, and that no antibiotics were ordered or administered. There are, however, several points at which Dr. Naidoo’s testimony differs, particularly from that of Nurse Ward. a. Dr. Naidoo’s credibility [ 53 ] As a preliminary matter I will state my conclusion on Dr. Naidoo’s credibility.

The Plaintiffs suggest that I should view some of the Defendant’s testimony with skepticism, and note his partially contradictory testimony on how he learned of the Edmonton area meningitis outbreak. There is also the question of the peculiar Cefuroxime note on page 13 of Wayne’s chart, its meaning, and Dr. Naidoo’s intentions when he made that note. [ 54 ] One obvious

interpretation for Dr. Naidoo’s Cefuroxime note is that it was an after-the-fact attempt to conceal his admitted error in not ordering treatment with broad spectrum antibiotics. While I find Dr. Naidoo’s explanation for the Cefuroxime note peculiar, he did not testify nor appear at any time to have asserted that the notation was an instruction to administer Cefuroxime. In that sense the Cefuroxime note is essentially irrelevant, it does not matter why Dr.

Naidoo wrote that information, it neither affected Wayne’s treatment nor shifted any fault to another person. [ 55 ] A stronger basis to question certain aspects of Dr. Naidoo’s testimony exists where his testimony is neither supported by other witnesses nor by the written records of Wayne’s stay in the Leduc Hospital. I will comment in more detail on that point in the analysis which follows. [ 56 ] Therefore, I do not in general question the credibility and reliability of Dr. Naidoo’s testimony. However, I do not prefer his evidence over that of other witnesses, particularly that of Nurse Ward. b.

Nurse Ward’s request for authorization to administer antibiotics [ 57 ] Nurse Ward testified that on two occasions she asked Dr. Naidoo for instructions to administer broad spectrum antibiotics. Dr. Naidoo denies those requests occurred. I prefer the testimony of Nurse Ward over his for several reasons. [ 58 ] First, Nurse Ward was a highly experienced health worker who immediately and correctly identified Wayne’s condition. She clearly was aware that intravenous antibiotics were an appropriate response to the emergency situation.

Her choice to immediately and on her own authority arrange for intravenous transfusion of saline solution as a precursor to antibiotic treatment indicated she believed that step would immediately follow. It is only natural for a subordinate worker to inquire when their superior appears to have omitted an anticipated step for which the subordinate has prepared.

That would be equally true when her second inquiry was also rejected. [ 59 ] Second, the expert testimony which I will review shortly indicates clearly that intravenous administration of broad-spectrum antibiotics was a logical treatment step which had been omitted from Wayne’s care. Dr. Naidoo has admitted that fact. An experienced health worker would and should be expected to check with her superior when that kind of omission may have occurred. In short, it is logical that Nurse Ward would have asked Dr.

Naidoo for clearance to proceed with what was a reasonable treatment method. [ 60 ] Third, Nurse Ward’s testimony correlates with that of other witnesses. When the second request was made Dr. Naidoo allegedly replied he was going to wait until the lumbar punctures had been conducted. That explanation aligns with Dr. Naidoo’s testimony on the instructions he received from Dr. Hussain. Maureen Dundin also reports Nurse Ward said she had asked Dr. Naidoo about antibiotic treatment.

[ 61 ] Last, the failure to administer antibiotics was clearly a fact that re-emerged after Wayne’s transfer. Nurse Ward was confronted with the Cefuroxime note and the possibility that she had missed a crucial instruction to a patient’s detriment. I have no doubt that in the days following October 14, Nurse Ward reviewed every aspect of the possible use of antibiotics and her

part in the failure of the Leduc Hospital to employ that particular treatment. She had a very good reason to remember what she had said to Dr. Naidoo. She thought he had made a mistake. c. The ‘ bolus ’ saline transfusion [ 62 ] For many of the same reasons I prefer the testimony of Nurse Ward to the effect that Dr. Naidoo did not immediately order Wayne receive a rapid ‘bolus’ transfusion of saline fluids. I also note that Dr. Naidoo’s testimony is inconsistent with the notes taken by Nurse Ward. On this point I give the documentary record particular weight. d. The critical care line [ 63 ] Dr.

Naidoo made direct calls to several Edmonton hospitals during his attempts to transfer Wayne to an intensive care hospital ward. He denies that a more efficient method, the central care line, was available in October 2000. [ 64 ] Maureen Dundin reports that this service was available months before and information about it had been broadly disseminated. I prefer her testimony on this point for two reasons.

Her ‘after-incident investigation’ was specifically intended to identify what may have gone wrong with Wayne’s treatment at the Leduc Hospital, and that logically would have involved consideration of the transfer procedure. Second, Ms. Dundin was a full-time employee of the Leduc Hospital, involved in emergency care management, and better positioned to know the procedures of that health facility and of the Region. 5.

Expert testimony - standard of care [ 65 ] Both the Plaintiffs and the Defendant called an expert witness to comment on the appropriate standard of care for a rural emergency room doctor who faced a patient exhibiting the symptoms of meningitis and septicaemia, potentially caused by N. meningitidis . a.

Specialist’s testimony on standard of care of a non-specialist [ 66 ] Prior to my review of the testimony of the two doctors who provided evidence on the appropriate standard of care for the treatment of a patient such as Wayne, I will address an argument raised by the Defendant in relation to the weight which I should place on Dr. Powell’s testimony. It is suggested that Dr. Powell’s evidence was less probative as he had an additional year of emergency medicine training. Dr. Naidoo did not have that kind of background. The Defendant argues that this means Dr.

Powell had greater expertise in treating meningitis and septic shock and that experience may distort his perspective on whether Dr. Naidoo’s conduct was appropriate. [ 67 ] This question of whether a ‘specialist’ or ‘expert’ physician can comment on the standard of care of a non-specialist medical professional was recently reviewed by Shelley J. in Malinowski v. Schneider , 2010 ABQB 734 , at paras. 12-21 .

In that case the question was whether a neurosurgeon was qualified to comment on the appropriate standard of care for a chiropractor diagnosing a back injury. [ 68 ] Justice Shelley noted at para. 16 of her decision that while courts have generally concluded that the opinion of one kind of

expert was not helpful to assess the standard of care of an expert with a different area of specialization (for example, Alakoozi v. Hospitalfor Sick Children, [2002] O.T.C. 817 at para. 73, 117 A.C.W.S. (3d) 828 (Ont. Sup. Ct. J.), affirmed (ON CA), 187O.A.C. 187, 131 A.C.W.S. (3d) 762 (Ont. C.A.)), the same could not be said for an expert in a field who testified in relation to theappropriate standard of a generalist: Robinson v. Sisters of St. Joseph of the Diocese of Peterborough in Ontario (1999), (ON CA), 117 O.A.C. 331, 29 C.P.C. (4th) 184 (Ont. C.A.); Briffett v.

Gander and District Hospital (1996), (NL CA), 137 Nfld. & P.E.I.R. 271, 29 C.C.L.T. (2d) 251 (Nfld. C.A.); Quintal v. Datta (1988), (SK CA), 68 Sask.R. 104, 12 A.C.W.S. (3d) 139 (Sask. C.A.). [69] Justice Shelley also observed at para. 16 “... that one common function of a specialist expert is in educating more generalpractitioners as to what the general practitioners need to know about a topic”, and that is a fact that has been recognized by the courts:Briffett v. Gander and District Hospital, at para. 48, Lurtz v. Duchesne, [2003] O.T.C. 319 at 184, 122 A.C.W.S. (3d) 384 (Ont. Sup.Ct.

J.), varied on other grounds (ON CA), 2005, 194 O.A.C. 119, 136 A.C.W.S. (3d) 1055 (Ont. C.A.). Specialistsdevelop the guidelines which are then applied by general practitioners (para. 20). A specialist was therefore “... well suited to commenton the appropriate diagnostic and treatment regime ...” for a non-specialist who encounters a patient with a condition that falls within thespecialist’s area of expertise. [70] I agree with this approach.

Provided the ‘specialist’ provides testimony as to the appropriate conduct of a non-specialist, thenthat evidence is highly relevant and should be considered (paras. 19-20). That is precisely the situation here. Dr. Powell does haveadditional training, and has taught medical students and family physician residents on the appropriate response to management ofmeningitis and sepsis by a family physician working in a rural emergency department setting. That makes Dr. Powell very wellpositioned to comment on the standard of care expected of Dr. Naidoo. b. Dr. Christopher Powell [71] Dr.

Christopher Powell testified on behalf of the Plaintiffs on the standard of care of a rural doctor operating in an emergencyroom context, confronted with a patient with symptoms that suggested a N. meningitidis bloodstream, body, and central nervous systeminfection. Dr. Powell currently practices family and emergency medicine in High River, Alberta. He explained his practice is splitequally between those two categories. [72] Dr. Powell testified that Wayne had symptoms which suggested he had a septic infection: elevated heart beat, low bloodpressure, fever, and rapid breathing, as well the purpura markings.

Purpura suggested organs had been infected. His neck stiffness,weakness, fever, rash and headache were characteristic of meningitis. In essence, Dr. Powell confirmed that both Nurse Ward and Dr.Naidoo came to the appropriate conclusion on their diagnosis of Wayne’s state. In Dr. Powell’s opinion, when Wayne entered the LeducHospital he was in the intermediate stage of septicaemia, “severe sepsis”. [73] Identification and treatment of septicaemia was categorized by Dr. Powell as an early part of doctor medical training. This isnot specialist knowledge. It was his view that Dr.

Naidoo should not have had to consult with an infectious disease specialist. [74] Dr. Powell took issue with the treatment that followed. While he agreed that a rapid ‘focussed history’ initial investigationwas appropriate, a septic patient should then receive a ‘bolus’ of intravenous saline fluid, tests to identify the infectious bloodstreamorganism, and broad-spectrum antibiotic treatment. Dr. Powell agreed that long-term treatment in the Leduc Hospital was not feasible, acritically ill patient should be transferred to the intensive care ward of a tertiary hospital. [75] Dr.

Powell questioned the overall delay in arranging transfer of Wayne to an Edmonton intensive care ward in a tertiaryfacility. He explained his practice was that if he did not receive a return telephone call within 15 minutes he either repeated his call,called an alternative hospital, or attempted to contact a tertiary care facility emergency room physician. That said, he acknowledged hewas not familiar with the referral process in the Edmonton area; his comments were directly relevant for the Calgary region hospitals. [76] He was also critical of the fact that Dr.

Naidoo did not remain with Wayne throughout his stay in the Leduc Hospital. Dr.Powell states in his expert report that “[a]n unstable, critically ill patient such as Mr. Forsberg should have taken precedent over all otherpatients of lesser triage score.” He clarified at trial that Dr. Naidoo should have remained until at least the bolus of saline and antibioticintravenous transfusions were underway.

[ 77 ] That said, Dr. Powell’s criticism focussed principally on the delay in antibiotic treatment. He explained the connection between medical sampling (blood samples, lumbar punctures) and the timing of antibiotic treatment. Standard procedure involves first obtaining samples of patient body materials, then immediate antibiotic treatment.

The rationale for this sequence is that introduction of antibiotics into the patient’s body may confuse laboratory investigation of bacteria identified from the patient’s body fluids. [ 78 ] However, those samples will take a considerable amount of time to process and analyze, microorganisms may require time to grow. For example, blood culture may take as long as 12 to 48 hours to complete. Antibiotic resistance data usually requires 48 hours.

Put another way, while body material sample analysis may be very important during the ongoing response of a patient who apparently has septicaemia, in the short term those results will not guide treatment, nor determine the near-term progression of the patient’s infection: Really, the only thing that [antibiotic treatment] might interfere with is determining what the susceptibility of that organism to antibiotics is.

So you might use that piece of information, and ... you weren’t going to get that piece of information for somewhere around two to three days anyways, so it really doesn’t change your management. [ 79 ] For a critically ill patient immediate therapy will necessarily occur without full identification and characterization of the pathogen or pathogens involved: [T]he harm in delaying the administration of antibiotics in order to first collect blood cultures far outweighed any potentially useful information that the test may have provided. [ 80 ] As a consequence Dr. Powell concluded that Dr.

Naidoo should have immediately begun antibiotic treatment if either blood samples, or the lumbar punctures, were to be delayed. Blood samples could be taken by nurses and antibiotics can be prepared and ‘predeployed’ for intravenous administration. Similarly, antibiotic treatment takes priority over arranging for patient transfer or a specialist opinion. Dr. Powell concluded antibiotic treatment should have been started within 5-10 minutes of the end of Dr. Naidoo’s first examination of his patient, and that approach is what is mandated by the relevant authorities, including Rosen’s . Dr.

Powell emphatically rejected suggestions on behalf of the Defendant that sample acquisition should have priority over timely antibiotic treatment. [ 81 ] In

summary, Dr. Powell concluded Dr. Naidoo breached his standard of care by: 1. his failure to order intravenous broad-spectrum antibiotics within 5-10 minutes of completing his first examination; 2. his failure to immediately order transfusion of a bolus of saline solution; 3. his failure to immediately obtain blood samples from Wayne after his initial examination; 4. not remaining with Wayne until antibiotic and saline transfusions were underway; and 5. not attempting to have Wayne admitted to two or more hospitals, or via transfer to an Edmonton area emergency room. c. Dr. Robert Cameron

[ 82 ] Dr. Robert Cameron provided standard of care evidence on behalf of the Defendant. His testimony aligns in many ways with the evidence of Dr. Powell, so I will highlight the points at which their opinions diverge. [ 83 ] Dr. Cameron has practiced as a doctor since 1989, and has worked in various urban and rural hospital contexts, most recently as a family and emergency room doctor in Pincher Creek, Alberta, from 1998 to the present. [ 84 ] He agreed with Dr.

Powell and the medical personnel who treated Wayne that when Wayne arrived at the Leduc Hospital his symptoms most likely represented meningococcaemia meningitis, and that Wayne had a septic infection which was an urgent condition which required transfer to a hospital better equipped to address the patient’s needs. [ 85 ] He also agreed with Dr. Powell that the appropriate treatments were provision of oxygen, intravenous saline fluids and antibiotics. Dr. Cameron would have preferred a lower rate of saline transfusion, but agreed a ‘bolus’ would not be an error and would not usually cause harm.

He too would stay with a patient until those treatments were underway and blood tests were arranged. [ 86 ] Dr. Cameron stressed that he would not administer antibiotics until blood samples were obtained to ensure any bacterial cultures obtained provided an accurate indication of pathogen’s characteristics and drug resistance. Further, his opinion was that it would be less appropriate for a nurse rather than a lab technician to collect that material, but acknowledged the supervising physician could collect blood if necessary. Dr.

Cameron would not delay antibiotics until a lumbar puncture had been completed, if for no other reason than the lumbar puncture procedure was unfamiliar to most family practitioners. Further, new diagnostic procedures were equally effective where sample bacteria had been suppressed by antibiotic treatment. [ 87 ] In Dr. Cameron’s opinion some degree of delay would be inevitable between an instruction to take blood samples and administer antibiotics, and the implementation of those procedures. He thought a 53 to 95 minute delay would not be unreasonable.

Setting up an intravenous injection may not be immediately successful and a specialist may not be immediately available for contact. While the time to prepare and administer antibiotics is five minutes, realistically, delays almost always intervene. [ 88 ] Dr. Cameron opined the commonly understood post-2000 approach to treatment of septicaemia is significantly different from that at the time Wayne was undergoing treatment for the N. meningitidis infection.

Specifically, the immediate ‘bolus’ of intravenous saline only later became a standard procedure, and post-2000 a greater emphasis was placed on early administration of antibiotics. [ 89 ] The witness also indicated he would have consulted an expert in a case such as this, as certain approaches to patient management may not be obvious to a general practitioner. In this case antibiotic selection could be an issue. That said, Dr. Cameron acknowledged that the symptoms and treatment of meningococcal septicaemia is a part of basic medical training. [ 90 ] Dr.

Cameron also commented on his experience in arranging transfer of patients to a larger tertiary hospital (in his case in Lethbridge) and reported that in 2000 significant delays were not uncommon. C. Was the Standard of Care Met? [ 91 ] Dr. Naidoo breached his duty of care if his October 14, 2000 conduct did not meet the standard of care for a rural family physician practicing in a hospital emergency room.

I conclude the Defendant did not meet that standard when he examined and treated Wayne. [ 92 ] One point which is clear from the evidence is that this case does not represent a failure to accurately diagnose Wayne’s condition. Both Nurse Ward and Dr. Naidoo correctly identified why Wayne was ill and exhibited the conditions they observed. In this sense, neither the Plaintiffs’ nor Defendant’s expert witness identified any deficiency. Therefore, the question is not whether Dr. Naidoo misunderstood the challenge he faced, but rather whether his response was or was not appropriate.

[ 93 ] The Plaintiffs identify five ways Dr. Naidoo failed to meet his standard of care in treating Wayne. I address each in turn. 1. Failure to adequately monitor Wayne and his treatment [ 94 ] The Plaintiffs allege that on October 14, 2000, Wayne was the patient in the Leduc Hospital emergency room who had the most serious condition and should have been the focus of Dr. Naidoo’s attention. The testimony of the witnesses makes clear that Dr. Naidoo did not stay physically with Wayne after he completed his initial examination. However, I find that the evidence does support, on a balance of probabilities, that Dr.

Naidoo and the other Leduc Hospital staff did periodically observe Wayne and monitor his condition. [ 95 ] Dr. Powell takes the position that Dr. Naidoo should have remained physically present until Wayne was undergoing effective treatment, which meant intravenous transfusion of saline fluid and broad-spectrum antibiotics. Dr. Cameron’s position is essentially the same. [ 96 ] Both the experts thus agree that Dr. Naidoo should have remained with Wayne until broad-spectrum antibiotics were administered. Of course, antibiotics were never administered to Wayne while he was in the Leduc Hospital.

That means any negligence by Dr. Naidoo under this heading is effectively subsumed into the question of when Dr. Naidoo ought to have ordered and implemented antibiotic treatment. 2. Failure to order intravenous transfusion of saline solution [ 97 ] Nurse Ward clearly took it upon herself to prepare and begin intravenous transfusion of saline fluids. Dr. Naidoo later ordered that flow increased to some degree. While Dr. Naidoo claims to have ordered transfusion of a ‘bolus’ of saline, I have concluded that such an order was not made and that transfusion did not occur. [ 98 ] Dr.

Powell identifies the failure to immediately transfuse the ‘bolus’ of saline as an error. Dr. Cameron agrees saline ought to have been administered, and that a ‘bolus’ would not usually have been an error. I note that both these experts explained that intravenous saline transfusion serves to stabilize and maintain blood pressure. However, none of the experts nor the medical personnel who treated Wayne saw his blood pressure as unusually low.

An emergency large-scale transfusion of saline solution was therefore not an obvious and immediate requirement. [ 99 ] Furthermore, even though Wayne did not receive high rate intravenous saline transfusion, his low blood pressure subsequently improved significantly. This, too, suggests that Wayne’s blood pressure did not warrant immediate and large-scale saline fluid transfusion. [ 100 ] I conclude that the more limited transfusion of saline ordered by Dr. Naidoo did not breach his standard of care.

While Wayne may have obtained some advantage by immediate and large scale intravenous transfusion of saline solution, he did not have the physical conditions that demanded that kind of step. 3. Transfer to an intensive care facility [ 101 ] Dr. Naidoo immediately concluded that Wayne should be transferred to a hospital with an intensive care ward that could appropriately treat Wayne’s condition. That meant a tertiary hospital in Edmonton. The experts and other medical professionals agreed Wayne needed that kind of care.

[ 102 ] There is also consensus that delays sometimes occur during transfer of a critically ill patient from a rural hospital to a tertiary care facility. Finding an open critical care hospital bed in the Edmonton region at that time was sometimes difficult. While neither Drs. Cameron and Powell testified on how transfers are arranged to the larger Edmonton hospitals, I conclude their experiences are probably relevant to the circumstances of doctors working in the emergency room of the Leduc Hospital. [ 103 ] Thus, there was no error in Dr.

Naidoo’s conclusion, but he may have been negligent in the manner he attempted to arrange that transfer. The obvious potential negligence was not taking advantage of the critical care line service to find Wayne a bed in an Edmonton hospital. I conclude and find as a fact that the critical care line was available in October, 2000. [ 104 ] Obviously, neither of the experts could comment directly on the critical care line and its efficacy. Neither had used that service. However, there is no question that a referral coordination service such as the critical care line served a recognized need. Ms.

Dundin says the service was available and that fact had been made known to the hospital staff. [ 105 ] I conclude Dr. Naidoo was negligent when he did not attempt to transfer Wayne using the critical care line service. Delayed patient transfers clearly were and are a problem faced by rural hospitals. Dr. Naidoo himself acknowledged that fact. It is unreasonable for an emergency room physician to fail to take advantage of any procedures put in place to address the issue of transfer delays. The Defendant says the line was not available when Wayne was treated, which indicates to me that Dr.

Naidoo probably did not know the critical care line service was available, rather than he made a choice to use a less efficient method. [ 106 ] If Dr. Naidoo was not aware that the critical care line was available, then he was negligent by not keeping himself informed, as an emergency room physician, of the tools available to assist in care and transfer of his patients. Knowledge of those resources was a basic requirement for an emergency room medical professional in 2000. 4. Body material sampling [ 107 ] Dr.

Naidoo ordered two kinds of samples taken from Wayne, blood samples and cerebrospinal fluid via the lumbar punctures. Obviously, the latter was unsuccessful. The Plaintiffs allege that Dr. Naidoo took too long to order blood samples that would then be used to prepare blood cultures. The blood cultures would help clarify what pathogen, if any, was present in Wayne’s body. [ 108 ] The reason for body material sampling is clear, these samples were intended to identify and characterize what pathogen had infected Wayne. Dr.

Powell has explained and I accept that the information from these samples would not be immediately available. Test results may take up to several days. [ 109 ] The experts agreed that immediate lumbar puncture sampling was unnecessary. I note in particular Dr. Cameron’s testimony that improved diagnostic tests allow analysis of cerebrospinal fluid after antibiotic treatment. [ 110 ] The question then for body material sampling is whether Dr. Naidoo should have taken additional measures at an earlier point to ensure blood was obtained and used for blood cultures. Nurse Ward testified Dr.

Naidoo ordered blood cultures prepared at 2:35 P.M., and that technicians completed that shortly thereafter. [ 111 ] Both Dr. Powell and Dr. Cameron stated that blood culture samples should be acquired at the first opportunity. Obviously, that was not what occurred. The earliest point at which Dr. Naidoo could have ordered blood cultures was at 1:30 P.M., immediately after he examined Wayne. Dr. Naidoo testified that he was aware and concerned that Wayne’s condition could be caused by a number of different kinds of pathogenic microorganisms.

Logically, he would immediately order that the Leduc Hospital laboratory technicians take steps to investigate that question.

[ 112 ] I therefore conclude that Dr. Naidoo was negligent when he did not order blood collected and used in diagnostic blood cultures very shortly after he first examined his patient. Wayne received intravenous saline at about 1:30 P.M., which Dr. Powell indicates would facilitate immediate blood collection. I conclude that blood samples could and should have been collected shortly after that point. [ 113 ] There is a related issue and that is whether the blood collection could have occurred after intravenous antibiotic treatment had been commenced.

I will address that point as part of my analysis that follows on whether Dr. Naidoo was negligent in his failure to order intravenous administration of broad-spectrum antibiotics. 5. Broad-spectrum antibiotic treatment [ 114 ] It is clear that Dr. Naidoo should have ordered Wayne receive intravenous broad-spectrum antibiotics. The Defendant has admitted that. Both experts agreed this was an appropriate step. Nurse Ward asked on two occasions whether she could prepare and deploy antibiotics. The question is when that step should have occurred. [ 115 ] Dr.

Powell testified that antibiotics ought to be a priority step in treatment, and while it is preferable to first obtain blood samples, that antibiotic treatment should not be delayed to collect blood samples. Dr. Cameron agreed that antibiotic treatment was important but that blood culture sampling should occur first. [ 116 ] I prefer Dr. Powell’s position.

His explanation of the use of blood cultures makes clear that while the diagnostic information from these tests would be useful, those results would only be available much later, and would not affect the treatment received by Wayne in the period after his diagnosis with septicaemia. Notably, Wayne was hospitalized and under intensive care in the R.A.H. well before any of those results would have been received. [ 117 ] Second, the experts and authoritative text Rosen’s indicate that when a physician encounters what may be either septicaemia or meningitis, then treatment should presume those conditions.

Rosen’s states antibiotic treatment should take priority and occur at the first opportunity. [ 118 ] Third, all experts agreed that Wayne’s condition was a medical crisis, he was very seriously ill. Antibiotic treatment was the only mechanism identified by any expert or by the medical professionals to address Wayne’s apparent condition. [ 119 ] I therefore conclude antibiotic treatment should not have been delayed substantially for collection of blood to be used in diagnostic blood cultures. I have concluded that Dr.

Naidoo should have ordered blood collection very shortly after having completed his initial examination of Wayne, and if those samples were delayed then antibiotic treatment should have occurred prior to blood culture sampling. [ 120 ] All experts and Dr. Naidoo agreed that identification and appropriate emergency treatment of septicaemia was an element of basic medical knowledge and training. A bloodstream N. meningitidis infection, though clearly unusual, represents the kind of medical emergency that would warrant an immediate response rather than further investigation.

Any medical professional should clearly have known that was the case. [ 121 ] Last, I note Dr. Naidoo’s own testimony. He said there was no harm that could result from his patient receiving antibiotics, regardless of whether Wayne’s condition was viral or bacterial in origin. When faced with a “very ill man”, Dr. Naidoo knew that a probable cause was bacterial infection, and that there was literally nothing to lose by a very prompt attempt to treat that possible infection with antibiotics. [ 122 ] I therefore conclude that Dr.

Naidoo breached his standard of care by not ordering Nurse Ward prepare and administer broad spectrum antibiotics to Wayne shortly after Dr. Naidoo completed his initial examination. I have concluded that blood samples should

have been easily collected after the saline transfusion was initiated. If those samples were delayed for some reason past that point then antibiotic treatment should have been started in that same time frame. [ 123 ] Dr. Naidoo completed his examination sometime around 1:30 P.M. By that time Nurse Ward had successfully initiated the intravenous saline transfusion. Nurse Ward was clearly available and willing to prepare and administer broad-spectrum antibiotics, her estimate that would take 3-5 minutes correlates with the testimony of expert witness Dr. Cameron.

I therefore conclude that Wayne could and should have started to receive broad spectrum antibiotics by 1:35 P.M. at the latest, and that Dr. Naidoo was negligent when he failed to ensure antibiotic treatment occurred at that point. D. Conclusion on Standard of Care [ 124 ] I therefore conclude Dr.

Naidoo breached his standard of care when he: 1. failed to use the critical care line service to assist in a timely transfer of Wayne to a tertiary care hospital; 2. shortly after Wayne’s first examination failed to order blood samples taken for blood cultures to identify the kind of pathogen or pathogens which may have caused Wayne’s condition; and 3. failed to ensure Wayne received intravenous broad-spectrum antibiotics by 1:35 P.M. on October 14. [ 125 ] I have concluded that Dr. Naidoo was negligent, but the question remains as to whether Wayne was injured by that negligence. V.

Injury and Causation [ 126 ] There is no major dispute that the N. meningitidis infection caused Wayne severe physical impairment and had significant consequential effects on his health and work capacity. An

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