Brough v Yipp, 2016 ABQB 559

Court of Queen ’ s Bench of Alberta Citation: Brough v Yipp, 2016 ABQB 559 Date: 20161014 Docket: 0901 01858 Registry: Calgary Between: Jonathan Cooper Brough, Susan Ann Brough, and Jonathan Robin Brough Plaintiffs - and - Bryan Yipp, Andrew Kirkpatrick, Ann Susan Kirby, Paul MacEachern, Lanette Prediger, Mary Elizabeth MacRae and Shamir Patel Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon Table of Contents I. Introduction . 5 II. Issues . 5 III. Facts . 6 A. Background . 6 1. Agreed Statement of Facts . 6

2. Post-February 2007 . 7 B. Factual Witnesses . 7 C. Expert Witnesses . 8 1. The Plaintiffs’ Experts . 8 a. Dr. Jeffrey Singh (Neurocritical Care) 8 b. Dr. Richard Vanderlinden (Neurosurgeon) 8 c. Dr. Ole Hammerberg (Infectious Diseases) 9 d. Dr. Robert Willinsky (Neuroradiologist) 9 2. The Defendants’ Experts . 10 a. Dr. Jeanne Teitelbaum (Neurointensivist) 10 b. Dr. Gary Redekop (Neurosurgeon) 10 c. Dr. Dick Zoutman (Infectious Disease) 10 d. Dr. William Siu (Neuroradiologist) 11 IV. Analysis . 11 A. Credibility . 11 1. Dr. Kirby . 12 2. Dr. Kirby and Dr. Kirkpatrick . 12 3. Dr. Kirkpatrick . 13 4. Dr.

Kirkpatrick and Dr. MacRae . 14 5. Dr. MacEachern and Dr. Yipp . 15 6. Dr. Kirby and Dr. MacEachern . 15 7. Dr. Yipp . 16 8. Global Assertion . 16 B. Duty of Care . 16 C. Standard of Care . 16 1. The Law .. 16 a. General Principles . 16 b. Duty to Treat 17 c. Duty to Diagnose . 18 d. Duty to Chart 18 e. Duty to Consult (Refer) 18 2. Application of Law to Facts . 19 i. Dr. Susan Kirby . 19 (

A) Allegations of Negligence – Dr. Kirby . 19 (

B) Relevant Facts – Dr. Kirby . 19 (

C) Analysis of Alleged Negligence – Dr. Kirby . 22

(1) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to treat? 22

(2) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to reconsider the differential diagnosis? . 25

(3) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to communicate with other professionals involved? . 27

(4) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to consult with neurology? . 28 ii. Dr. Paul MacEachern . 29 (

A) Allegations of Negligence – Dr. MacEachern . 29 (

B) Relevant Facts – Dr. MacEachern . 29 (

C) Analysis of Alleged Negligence – Dr. MacEachern . 33

(1) Did Dr. Patel tell Dr. MacEachern at approximately 02:15 on February 9, 2007 that there was evidence of tonsillar herniation on the Second CT Scan? . 33

(2) Assuming that Dr. MacEachern was not told of the finding of tonsillar herniation, did he breach the standard of care owed to Jonathan by failing to treat, including the duty to reconsider the differential diagnosis? . 35

(3) Assuming that Dr. MacEachern was not told of the finding of tonsillar herniation, did he breach the standard of care owed to Jonathan by failing to recognize his own limitations and to chart? 41 iii. Dr. Andrew Kirkpatrick . 42 (

A) Allegations of Negligence – Dr. Kirkpatrick . 42 (

B) Relevant Facts – Dr. Kirkpatrick . 43 (

C) Analysis of Alleged Negligence – Dr. Kirkpatrick . 45

(1) Did Dr. Kirkpatrick breach the standard of care owed to Jonathan by failing to treat? 45

(2) Did Dr. Kirkpatrick breach the standard of care owed to Jonathan by failing to reconsider the differential diagnosis? . 48

(3) Did Dr. Kirkpatrick breach the standard of care owed to Jonathan by failing to consult? 49 iv. Dr. Bryan Yipp . 53 (

A) Allegations of Negligence – Dr. Yipp . 53 (

B) Relevant Facts – Dr. Yipp . 53 (

C) Analysis of Alleged Negligence – Dr. Yipp . 55

(1) Did Dr. Yipp breach the standard of care owed to Jonathan by failing to treat, including his duty to reconsider the differential diagnosis? . 55

(2) Did Dr. Yipp breach the standard of care owed to Jonathan by failing to consult? 57

(3) Did Dr. Yipp breach the standard of care owed to Jonathan by failing to guard against his own inexperience? . 58

(4) Did Dr. Yipp breach the standard of care owed to Jonathan by failing to chart? 59 v. Dr. Elizabeth MacRae . 60 (

A) Allegations of Negligence – Dr. MacRae . 60 (

B) Relevant Facts – Dr. MacRae . 60 (

C) Analysis of the Alleged Negligence – Dr. MacRae . 62

(1) Did Dr. MacRae breach the standard of care owed to Jonathan by failing to consult when she was approached, but did not do so? . 62

(2) Did Dr. MacRae breach the standard of care owed to Jonathan by failing to treat by speaking to Dr. Kirkpatrick in an assertive manner? . 62 vi. Dr. Shamir Patel 63 (

A) Allegations of Negligence – Dr. Patel 63 (

B) Relevant Facts – Dr. Patel 63 (

C) Analysis of Alleged Negligence – Dr. Patel 64 D. Injury or Loss Suffered . 67

E. Causation . 67 1. General Principles . 67 2. Plaintiffs’ Position and Defendants’ Response . 68 3. Factual Inquiry – The “But For” Test 68 a. If there had been no failure to communicate the diagnosis of tonsillar herniation, would neurosurgery have intervened earlier? . 68 b. Would earlier surgery have made a difference in Jonathan’s outcome? . 72 4. Legal Inquiry – Reasonable Foreseeability of Risk . 79 5. Material Contribution . 79 6. Conclusion – Causation . 80 F. Damages . 80 I. Introduction [ 1 ] This action concerns a remarkable young man, Jonathan Cooper Brough (“ Jonathan ”).

He contracted a form of bacterial meningitis while training as a ski instructor in Banff, Alberta. [ 2 ] The underlying action focuses on the medical care that Jonathan received at the Foothills Medical Centre (“ FMC ”) in Calgary, Alberta in 2007. Jonathan was admitted to the FMC Intensive Care Unit (“ ICU ”) on February 8, 2007 with a suspected diagnosis of meningitis. He remained at the FMC until February 17, 2007, when he was discharged, and transferred by air ambulance home to England. [ 3 ] The plaintiffs in this action are Jonathan and his parents, Susan Ann Brough and Jonathan Robin Brough (being “ Mr.

Brough ” and “ Mrs. Brough ,” respectively) (collectively, the “ Plaintiffs ”). They collectively bring this action alleging medical negligence against the defendant doctors, Drs. Bryan Yipp, Andrew Kirkpatrick, Ann Kirby, Paul MacEachern, Elizabeth MacRae, Lanette Prediger and Shamir Patel (collectively, the “ Defendants ”). [ 4 ] The Plaintiffs allege that the Defendants breached the standard of care in treating Jonathan at FMC.

The Plaintiffs submit that the Defendants ignored clear and obvious signs of raised intracranial pressure and brain herniation in the early morning hours of February 9, 2007 and, as a result, treatment was delayed. The Plaintiffs allege that but for the negligent actions of the Defendants, Jonathan would have received earlier neurological surgery, which would have resulted in a better outcome for Jonathan. [ 5 ] Tragically, Jonathan was left with irreversible brain damage.

He is now a quadriplegic and is ventilator dependant. [ 6 ] On May 31, 2016, following a non-suit application, this Court dismissed the case against Dr. Lanette Prediger. II. Issues [ 7 ] To be successful, the Plaintiffs must prove four elements on a balance of probabilities. Those elements are as follows: 1. The Defendants owed Jonathan a duty of care. 2. The Defendants breached the applicable standard of care. 3. Jonathan suffered an injury or loss. 4. The Defendants’ actions were the actual and legal cause of Jonathan’s injury or loss. III. Facts A. Background 1.

Agreed Statement of Facts [ 8 ] On January 12, 2007, Jonathan travelled to Banff, Alberta to begin a 17 week ski instructor course at Sunshine Village. During this period, Jonathan stayed at a hostel and shared a room with three other people. [ 9 ] On February 7, 2007, Jonathan felt ill, left the ski-hill early, and went to bed. He was nauseated and vomiting throughout the night.

[ 10 ] On the morning of February 8, 2007, Jonathan was found unresponsive in bed. At approximately 09:00 on February 8, 2007, he was transported by ambulance to the Banff Mineral Springs Hospital. [ 11 ] On examination at Banff Mineral Springs Hospital, Jonathan was diagnosed with suspected meningitis. He was treated with antibiotics, intubated, and transferred to FMC by ambulance.

He was admitted to FMC at 11:06 on February 8, 2007. [ 12 ] At 13:13 on February 8, 2007, the first CT scan of Jonathan's head was completed to determine whether a lumbar puncture was contraindicated (the “ First CT Scan ”). [ 13 ] On February 8, 2007, telephone calls were exchanged between Mr. and Mrs. Brough and Dr. Turner of the Banff Mineral Springs Hospital, personnel from Jonathan's ski course, and FMC staff concerning Jonathan's condition. Mr. and Mrs.

Brough were told that Jonathan had suspected meningitis and that he had been intubated, given antibiotics, and was taken to ICU at FMC in Calgary, Alberta. [ 14 ] At 17:45 on February 8, 2007, a lumbar puncture was completed by Dr. Kirby and Dr. Yipp in ICU. It revealed turbid fluid, and 36 cms water opening pressure. They removed approximately 6 cc of cerebral spinal fluid and sent it for analysis. [ 15 ] On the night of February 8, 2007, Mr. and Mrs. Brough made arrangements to travel from their home in Minchinhampton, England to Calgary. On February 9, 2007, Mr. and Mrs.

Brough took an early morning flight from Heathrow Airport in London, England to Calgary, Alberta. England is seven hours ahead of Mountain Standard Time. [ 16 ] At 00:41 on February 9, 2007, Dr. MacEachern ordered a second stat CT scan of Jonathan's head at FMC (the “ Second CT Scan ”). [ 17 ] At approximately 02:05 on February 9, 2007, Dr. Patel began his review of the Second CT Scan of Jonathan's head. Dr. Patel annotated the images with arrows during this examination. The Second CT Scan image was available for others to review at approximately 02:13. Shortly thereafter Dr. Patel discussed the results with Dr.

MacEachern. [ 18 ] On the morning of February 9, 2007, Dr. James N. Scott, the on-call neuroradiologist responsible for supervising Dr. Patel, reviewed the Second CT Scan findings with Dr. Patel. The Second CT Scan report was dictated by Dr. Patel, and verified by Dr. Scott at 12:29. No changes to the Second CT Scan report were made by Dr. Scott. [ 19 ] The Second CT Scan report was available for others to review on the FMC computer screen at approximately 12:31 on February 9, 2007. [ 20 ] On their arrival in Calgary, Mr. and Mrs. Brough went directly from the Calgary International Airport to FMC.

Upon arriving at FMC on February 9, 2007, Mr. and Mrs. Brough were immediately escorted to see Jonathan. [ 21 ] Mr. and Mrs. Brough did not sign a written consent form, but acknowledge that they provided their consent to the surgery. [ 22 ] On February 17, 2007, Jonathan was transferred by air ambulance from FMC to Gloucester Royal Hospital in Gloucester, England. On February 18, 2007, Jonathan was admitted to Gloucester Royal Hospital. [ 23 ] Since February 18, 2007, Jonathan has received all of his ongoing medical treatment and care in England through the British National Health Service (the " NHS "). 2.

Post-February 2007 [ 24 ] Jonathan is a ventilator-dependent quadriplegic, with complete paralysis and loss of sensation from the jaw down. He has had a pacemaker since 2009 to control his heart rhythm. He is unable to breathe by himself and cannot drink, swallow, or regulate his body temperature. He is also bowel and bladder incontinent, and has no sexual function. [ 25 ] Jonathan is able to speak on his own through the ventilator and has full cognitive function. [ 26 ] Jonathan requires two 24/7 professional caregivers to assist with his care and daily routines.

Jonathan's caregivers, medical supplies and equipment are funded through a branch of the NHS, known as Continuing Health Care. [ 27 ] In 2011, Jonathan enrolled as a full-time student in a media studies degree program at Plymouth University in England. In 2014, Jonathan received a Bachelor of Media Arts (Honours) Degree from Plymouth University. [ 28 ] From 2011 to 2014, Jonathan lived in adapted student housing at Plymouth University. [ 29 ] Jonathan currently lives in a modified bungalow home near his parents. His home is owned by the estate of his late grandmother, and it is located in Minchinhampton, England.

B. Factual Witnesses [ 30 ] The Plaintiffs all testified via video teleconference at trial. Jonathan has no recollection of the February 2007 incident and, therefore, was of no assistance for the liability portion of this judgment. [ 31 ] Jonathan’s parents testified that they arrived at FMC in the late afternoon of February 9, 2007 from London, England. They met with Dr. Kirkpatrick on February 9, 2007 regarding Jonathan’s condition, and again with him and Dr. MacRae on February 10, 2007 to discuss the surgery.

[ 32 ] Mr. Brough agreed that Dr. MacRae advised them that the surgery was necessary to save Jonathan’s life, but offered no guarantees. Mrs. Brough recalled that Dr. MacRae said that without surgery Jonathan would be paralyzed and on a ventilator, but that he might improve with surgery. She also recalled Dr. MacRae stating that some irreversible brain damage may have occurred. [ 33 ] Drs. Yipp, Kirkpatrick, Kirby, MacEachern, Prediger, MacRae and Patel all testified during the trial. During February 2007, their status at FMC was as follows. 1. Dr.

Bryan Yipp was completing a one-month out-of-province medical elective at FMC. This medical elective was during his second year of internal medicine residency at the University of British Columbia. 2. Dr. Andrew Kirkpatrick was a specialist in critical care medicine and general surgery, practising at FMC. 3. Dr. Ann Susan Kirby was a specialist in internal medicine and critical care medicine, practising at FMC. 4. Dr. Paul MacEachern was a fifth year resident, having completed a three-year residency in internal medicine.

He was in his second year of respirology and was completing a four-week rotation in the ICU at FMC. 5. Dr. Lanette Prediger was a second year family medicine resident in a 4-week rotation in ICU at FMC. 6. Dr. Mary Elizabeth MacRae was a specialist in neurosurgery and neurology, practising at FMC. 7. Dr. Shamir Patel was a second-year resident in radiology, practising at FMC. C. Expert Witnesses 1. The Plaintiffs’ Experts a. Dr. Jeffrey Singh (Neurocritical Care) [ 34 ] Dr. Singh was qualified as an expert in critical care medicine and neurointensive care. [ 35 ] Dr.

Singh testified as an expert for the Plaintiff. He is a specialist in neurointensive care at the Toronto Western Hospital. He attended the University of Toronto and obtained his medical degree in 1999. He then went on to do training in internal medicine, which he completed in 2003. He did two years of training in adult critical care medicine and received his specialist certification in 2005. [ 36 ] Dr. Singh received a certification in neurocritical care in 2007, a speciality that involves patients with life-threatening brain injuries and neurological injuries.

He also has a graduate degree in clinical epidemiology and health services research. [ 37 ] In 2002/2003, Dr. Singh was the chief medical resident of the Mount Sinai Hospital and University Health Network. Currently, he holds cross-appointments at the Toronto General Hospital, the Toronto Western Hospital and the Mount Sinai Hospital. [ 38 ] All his clinical work is effectively at the Toronto Western Hospital.

He is the site director of the critical care units at the University Health Network. [ 39 ] In his role as critical care neurointensivist, he has treated patients suffering from bacterial meningitis and patients who have experienced brain herniation. b. Dr. Richard Vanderlinden (Neurosurgeon) [ 40 ] Dr. Vanderlinden was qualified as an expert in the area of neurosurgery. [ 41 ] Dr. Vanderlinden attended the University of Manitoba and obtained his medical degree in 1957. He practiced general medicine for four years and completed his residency in neurosurgery in 1967.

He became a member of the Royal College and Physicians and Surgeons of Canada in the fall of 1967. [ 42 ] From 1967 to 1987, Dr. Vanderlinden was on the staff at the Toronto Western Hospital in the division of neurosurgery. This was an active neurological practice, which included teaching medical students, interns and residents. [ 43 ] From 1987 to 2001, Dr. Vanderlinden worked at the Mississauga Hospital, and was the founding member of the Trillium Centre. From 2001 to 2010, he was senior consultant and director of the chronic pain clinic. He did pain surgery and spinal surgery. [ 44 ] Dr.

Vanderlinden retired in March 2011 from active neurosurgery work. He used ablative procedures in his work, which involved using electrodes under x-ray control to ablate or coagulate or destroy nerve endings. He retired from the chronic pain clinic in March 2011. [ 45 ] Dr. Vanderlinden is currently retired but still performs medical/legal assessments. He has been a member of the College of Physicians and Surgeons of Canada for almost 50 years. c. Dr. Ole Hammerberg (Infectious Diseases) [ 46 ] Dr.

Hammerberg was qualified as an expert for the purpose of giving opinion evidence in the areas of medical microbiology and infectious diseases.

[ 47 ] Dr. Hammerberg obtained his medical degree from the University of British Columbia in 1975. He first did a fellowship in pediatric medicine, followed by medical microbiology. He was certified by the Royal College of Physicians and Surgeons of Canada in pediatrics in 1980, and medical microbiology in 1981. [ 48 ] For many years, Dr. Hammerberg was the medical director at Microbiology Laboratory, a diagnostic laboratory in Ontario at St Joseph’s Health Centre. He was also the consultant in infectious diseases, which is the area in which he specializes.

He currently has appointments at the London Health Sciences Centre and the Children’s Hospital of Western Ontario. [ 49 ] Dr. Hammerberg is an Associate Professor in the Department of Pediatrics at the University of Western Ontario. Dr. Hammerberg has co-authored or authored 59 publications. He has not published on the diagnosis or treatment of meningococcal meningitis. [ 50 ] In 1996, Dr. Hammerberg entered private practice and focused on his community and HIV outpatient practice. He had a joint appointment through the University of Western Ontario and the above noted hospitals. [ 51 ] During his career, Dr.

Hammerberg treated many children and adults with bacterial meningitis. He has not seen any bacterial meningitis patients at the hospital for the last three or four years. d. Dr. Robert Willinsky (Neuroradiologist) [ 52 ] Dr. Willinsky was qualified as an expert for the purpose of giving opinion evidence in the area of medical imaging in neuroradiology. [ 53 ] Dr. Willinsky is a radiologist and currently works in the Joint Department of Medical Imaging at the University Health Network, Mount Sinai Hospital and Women’s College Hospital in Toronto. Dr.

Willinsky has worked in the field of diagnostic neuroradiology for approximately 30 years. For 24 of those years, he also worked in interventional neuroradiology. [ 54 ] Dr. Willinsky holds an academic appointment as a full professor in the department of medical imaging at the University of Toronto, with a cross-appointment in the department of surgery. 2. The Defendants’ Experts a. Dr. Jeanne Teitelbaum (Neurointensivist) [ 55 ] Dr. Teitelbaum was qualified in this trial as a neurointensivist to provide opinion evidence on the standard of care for critical care medicine and causation. [ 56 ] Dr.

Teitelbaum received her medical degree from the University of Montreal in 1981. She received a fellowship in critical care medicine at the Royal Victoria Hospital, McGill University. She spent a year at Johns Hopkins University which, at the time, had a new speciality called neurocritical care. She then worked in neurology and general critical care at Maisonneuve-Rosemont Hospital. [ 57 ] In 1998, Dr. Teitelbaum was working at the Montreal Neurological Institute where there was an official neurocritical care unit with dedicated staff.

She is currently a professor in neurology and critical care at the University of Montreal and McGill University. She is the co-director of the acute stroke program at Montreal Neurological Institute, and program director for neurocritical care at the Montreal Neurological Institute. [ 58 ] Dr. Teitelbaum has published research and lectured on the topic of meningitis. She also has been part of a team that is developing new strategies for treating meningitis with raised intracranial pressure. b. Dr. Gary Redekop (Neurosurgeon) [ 59 ] Dr.

Redekop was qualified as an expert in the area of neurosurgery for the purpose of giving opinion evidence on the standard of care and causation. [ 60 ] Dr. Redekop obtained his medical degree in 1987 from the University of Western Ontario. He received his fellowship from the Royal College of Physicians and Surgeons of Canada in 1993, and from the American Board of Neurological Surgery in 1998. He currently serves as the head of the department of surgery at the University of British Columbia and Vancouver General Hospital. [ 61 ] Dr.

Redekop spends approximately 60% of his time in clinical practice and instruction. c. Dr. Dick Zoutman (Infectious Disease) [ 62 ] Dr. Zoutman was qualified as an expert in the area of infectious diseases to provide opinion evidence on standard of care and causation. [ 63 ] Dr. Zoutman obtained his medical degree in 1982 from the University of Manitoba. He is a fellow of the Royal College of Physicians and Surgeons of Canada in medical microbiology, infectious diseases and internal medicine. He completed a three year clinical research fellowship in molecular biology, focusing on bacterial diseases. [ 64 ] Dr.

Zoutman was very involved in assisting the Ontario government in managing the SARS epidemic in 2003-2004. Dr. Zoutman has also worked with the World Health Organization.

[ 65 ] Dr. Zoutman treats one to two cases of neurological infection per month. He currently devotes approximately 50% of his time to clinical and laboratory work. Prior to 2011, approximately 70% of his time was dedicated to clinical work and laboratory work. d. Dr. William Siu (Neuroradiologist) [ 66 ] Dr. Siu was qualified to provide expert evidence as a neuroradiologist to provide opinion evidence on causation. [ 67 ] Dr. Siu received his medical degree in 1994 from the University of British Columbia.

He is a fellow of the Royal College of Physicians and Surgeons of Canada in diagnostic radiology, and is certified by the American Board of Radiology in diagnostic radiology and neuroradiology. Dr. Siu practices as a neuroradiologist at the Royal Columbian Hospital in British Columbia. Since 2011, he has been a clinical assistant professor at the University of British Columbia. [ 68 ] Approximately 80-90% of Dr. Siu’s time is spent on clinical work interpreting scans or performing procedures, including lumbar punctures. IV. Analysis A.

Credibility [ 69 ] The Plaintiffs question the credibility of all of the Defendants, and provided specific examples of why this Court should not consider them to be credible. This is a serious allegation and the Court will deal with both the general and specific allegations at the outset of this decision. [ 70 ] The assessment of the credibility of witnesses is an important judicial function, and it has a bearing on this Court’s decision.

The ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact to decide. [ 71 ] The probative value of the evidence tendered is determined by the plausibility of the testimony and its information value. A judge, as the trier of fact, has the authority to decide the trustworthiness of evidence, provided he or she acts reasonably.

There is no presumption that witnesses tell the truth: R v Thain , 2009 ONCA 223 at para 32 ; and R v Luciano , 2011 ONCA 89 at para 147 . [ 72 ] The Plaintiffs have made both specific and global allegations of credibility against the doctors. With regard to the specific allegations, the Court notes that some of these allegations were made without regard to the rule in Browne v. Dunn.

If counsel intends to impeach a witness by means of intrinsic evidence, they must give that witness notice of this intention: Sopinka, Lederman and Bryant, The Law of Evidence in Canada , 4 th ed (Toronto: LexisNexis, 2009) at 1184. [ 73 ] The rule in Browne v. Dunn applies to both cross-examination and closing arguments: Sopinka , at 1185. The purpose of the rule is to give the witness notice, and the opportunity to offer an explanation and to defend their own character.

There were instances at trial when Plaintiffs’ counsel did not cross-examine pursuant to this rule. [ 74 ] The Plaintiffs also alleged that the doctors were dishonest and lacking in integrity. These claims amount to fraud, which was not pled. 1. Dr. Kirby [ 75 ] The Plaintiffs allege that Dr.

Kirby is not credible because she contradicted herself by initially stating that it is rare for the ICU to see cases of meningitis, while later testifying that she was comfortable looking after meningitis because it was a common problem in the ICU. [ 76 ] The Court finds that this assertion by the Plaintiffs is based on an incomplete

summary of Dr. Kirby's evidence. The Court agrees that Dr. Kirby did make these two statements, and that they initially appear to be contradictory. [ 77 ] However, upon closer examination, it is evident that these statements are not contradictory at all. First, Dr. Kirby testified in direct examination that it was “pretty uncommon” for meningitis cases to come to the ICU. She estimated that there might be half a dozen such cases per year. [ 78 ] Second, Dr. Kirby testified that although meningitis was a common diagnosis, the majority of patients do not end up in the ICU and are treated in other medical wards.

In addition to doing critical care work, Dr. Kirby also practiced general internal medicine. In that capacity, she would take care of meningitis patients on the medical wards, where the infection was more common. [ 79 ] Based on its review of the evidence, the Court does not find a contradiction in the testimony given by Dr. Kirby. In conclusion, the Court finds that the testimony referred to by the Plaintiffs does not impact the credibility of Dr. Kirby. 2. Dr. Kirby and Dr. Kirkpatrick [ 80 ] The Plaintiffs allege that both Drs.

Kirby and Kirkpatrick cannot be considered credible because they have different memories of a conversation that occurred between them during the handover on February 9, 2007. An additional allegation was also made, that neither physician "charted that Jonathan was neurologically deteriorating [and], the statements from both physicians are self-serving". [ 81 ] In effect, the Plaintiffs allege that a difference in memory between two witnesses nine years after the event occurred is self- serving. In particular, the Plaintiffs submit that Dr. Kirby specifically recalled telling Dr.

Kirkpatrick that she had a young man with meningitis developing a fairly complicated course, and that he had been hemodynamically labile. Dr. Kirby further indicated that Dr.

Kirkpatrick might want to see that patient sooner rather than later on rounds. [ 82 ] In contrast, Dr. Kirkpatrick did not recall her saying these specific words, and testified that Jonathan was not the first patient he saw when he started the rounds on February 9, 2007. Dr. Kirkpatrick recalled Dr. Kirby telling him that Jonathan was a very sick man with a high risk of dying, but there was nothing further that could be done other than the therapies that were already being administered. [ 83 ] During cross-examination, Dr. Kirkpatrick clarified that he did not remember the specific wording. Dr.

Kirby also may have used the terminology “critically ill” or “very sick” or a “guarded prognosis”. [ 84 ] This is not a significant discrepancy. Memories regarding events that occurred nine years ago should not be the basis for discrediting a witness. It is not surprising that memories have faded and recollections of specific conversations vary. [ 85 ] Based on its review of the evidence, the Court does not find the differences in memory between Drs. Kirby and Kirkpatrick to be lacking in credibility. Fading memories and different recollections are a fact of life.

Those factors do not impeach credibility, in and of themselves. In conclusion, the Court finds that the testimony referred to by the Plaintiffs impacts the credibility of neither Dr. Kirby nor Dr. Kirkpatrick. 3. Dr. Kirkpatrick [ 86 ] The Plaintiffs allege that Dr. Kirkpatrick's evidence "is misleading" concerning his testimony that handover was so busy it did not permit time to read the charts. The Plaintiffs advance this assertion on the basis that although Dr.

Kirkpatrick alleges that he had no time to read the charts, he had time to scan Jonathan's optic nerves for a University of Calgary research project. [ 87 ] This Court disagrees with this allegation by the Plaintiffs. The fact that Dr. Kirkpatrick had time to quickly scan Jonathan’s optic nerves for a research project does not automatically lead to the assumption that he would have had time to read the chart. This Court notes that Plaintiffs’ counsel did not cross-examine Dr.

Kirkpatrick on the proposed inference that if he had time to scan the optic nerves for the research project, he had time to read the chart sooner. [ 88 ] Given the above noted particulars, the Court accepts Dr. Kirkpatrick’s evidence that the images of the optic nerves were obtained "very quickly before starting rounds". He testified that there was no undue concern expressed to him that Jonathan was more unwell at that point than at any other point in his course, at FMC. [ 89 ] The Court also accepts Dr.

Kirkpatrick’s evidence that on handover days the incoming physicians often do not have time to read the charts until after rounds. [ 90 ] The Plaintiffs further allege that Dr. Kirkpatrick's chart entry on February 10, 2007 is "false and misleading", and that information about the tonsillar herniation was "purposely omitted". The Plaintiffs acknowledge that the chart entry on February 10, 2007 appears to be a genuine attempt to arrive at a differential diagnosis in respect of Jonathan’s medical condition. However, when Dr.

Kirkpatrick made the entry on February 10, 2007, the Plaintiffs submit that he had known for 18 hours about the tonsillar herniation and yet failed to chart it. Specifically, Dr. Kirkpatrick’s note states: ? Complicated by a spinal cord lesion – need MRI stat. pos fossa compression [ 91 ] The Court regards this “purposely omitted” comment as a particularly serious allegation. The words “false, misleading and purposefully omitted” amount to an accusation of fraud, which was not pled. Again, the Court notes that Dr.

Kirkpatrick was not cross- examined on this point, and there was no other evidence presented that it was a purposeful omission. Given those facts, the Court finds that this was not a purposeful omission. Instead, it was just a different way of explaining what was going on at the time. [ 92 ] To further reinforce the finding of the Court on this point, Dr. MacRae’s consult note of February 10, 2007 also does not specifically refer to “tonsillar herniation.” Rather, Dr. MacRae states that there is a swollen cerebellum and very tight foramen magnum. [ 93 ] The Plaintiffs submit that Dr.

Kirkpatrick gave conflicting evidence regarding his discussion with Dr. MacEachern concerning the miscommunication over the results of the Second CT Scan. According to the Plaintiffs, Dr. Kirkpatrick acknowledged at trial that he had a discussion on February 16, 2007 with Dr. MacEachern about the miscommunication over the results of the Second CT Scan, but at Questioning "denied ever speaking of the alleged error with Dr. MacEachern". This point was specifically put to Dr. Kirkpatrick during cross-examination. [ 94 ] Although the Court acknowledges that this is a contradiction, it does not affect Dr.

Kirkpatrick’s evidence. At trial, when asked about having a discussion with Dr. MacEachern on February 16, 2007, Dr. Kirkpatrick explained that he had difficulty separating an actual recollection of the conversation from everything that he had read or heard since. He also stated that he only had a general recollection of speaking with Dr. MacEachern about the case, but no specific details. He stated the following during cross-examination. …I don’t remember exactly what we spoke about. We spoke about the case in very quick passing. I remember speaking – like seeing him.

And the exact details of what we spoke about and what we didn’t speak about, I’m not – I can’t recall from what we spoke about then from having a review and read many, many hours about this case . [ 95 ] He went on to state that he had no recollection of a conversation with both Dr. MacEachern and Dr. Doig . [ 96 ] The Court finds that there was no in consistency with his eviden ce at Questioning. In particular, when asked during cross- examination whether he ever had any discussion with Dr. Yipp or Dr.

MacEachern about them having been misinformed of the results of the Second CT Scan, he answered: "Not that I recall - not that I specifically recall, no." [ 97 ] In this instance, the Plaintiffs were applying the correct process when they cross-examined Dr. Kirkpatrick on the matter. However, in this particular case, the Court finds that the attempt to impeach Dr. Kirkpatrick failed.

[ 98 ] Based in its review of the evidence, the Court does not find Dr. Kirkpatrick’s evidence to be misleading. In conclusion, the Court finds Dr. Kirkpatrick’s evidence to be consistent and credible. 4. Dr. Kirkpatrick and Dr. MacRae [ 99 ] The Plaintiffs allege that Dr. Kirkpatrick and Dr. MacRae have different recollections of their discussion on the evening of February 9, 2007 when Dr. Kirkpatrick phoned for a consult. The Plaintiffs submit that Dr. Kirkpatrick’s evidence was that he requested a neurological consult from Dr. MacRae. Dr. Kirkpatrick testified that Dr.

MacRae and he discussed how there was no role for neurosurgery in meningitis. Dr. Kirkpatrick further testified that he was not surprised at this conclusion. He accepted it as reasonable advice. [ 100 ] Dr. MacRae’s evidence was that she met with Dr. Kirkpatrick and he seemed to pondering whether he wanted the consult. Dr. MacRae recalled that she stated “either you want one or you don’t”. It was Dr. MacRae’s evidence that Dr. Kirkpatrick cancelled the consult. [ 101 ] As mentioned earlier, the Court is not surprised that, nine years later, the witness’ recollections are different.

The two versions of the event do not differ greatly. Clearly, there was a discussion as to whether a neurological consult was warranted. Although the physicians’ recollection of the conversation differs, the outcome was that there was no neurological consult. Whether Dr. Kirkpatrick conveyed to Dr. MacRae that the case involved tonsillar herniation will be discussed below, commencing at para 396. [ 102 ] Based on its review of the evidence, the Court finds that the differences in recollection do not affect the credibility of either Dr. Kirkpatrick or Dr. MacRae.

As noted above, different recollections after nine years are not unexpected. Indeed, it is a fact of life. Those differences do not impeach the credibility of either physician, in and of themselves. In conclusion, the Court finds that the testimony referred to by the Plaintiffs impacts the credibility of neither Dr. Kirkpatrick nor Dr. MacRae. 5. Dr. MacEachern and Dr. Yipp [ 103 ] The Plaintiffs allege that the evidence of Dr. MacEachern and Dr. Yipp concerning the handover on February 9, 2007 differs because Dr. MacEachern remembers it and Dr. Yipp does not. [ 104 ] Dr.

MacEachern did not recall the details of what he told Dr. Yipp. In accordance with his regular procedures, he believed that he would have relayed to Dr. Yipp the results/changes with the heart rate and blood pressure, as well as the events of the evening. He would have described the trouble that the medical team in the ICU had with Jonathan’s blood pressure, and what interventions and tests were done. He also would have mentioned to Dr. Yipp that he was concerned about Jonathan’s intracranial pressure, and asked him if he would see Jonathan sooner rather than later. He asked Dr.

Yipp to make Jonathan a priority for the day. [ 105 ] Based on its review of the evidence, the Court does not find that these fading recollections affect the credibility of either Dr. MacEachern or Dr. Yipp. This is an example of fading memories, and witnesses with different recollections of events. Those differences in recollection do not impeach credibility, in and of themselves. In conclusion, the Court finds that the testimony referred to by the Plaintiffs impacts the credibility of neither Dr. MacEachern nor Dr. Yipp. 6. Dr. Kirby and Dr.

MacEachern [ 106 ] The Plaintiffs comment that it is "of interest" that both Dr. MacEachern and Dr. Kirby use the identical phrase “...should be seen sooner than later”. The Plaintiffs say no more on this particular point, leaving the Court to speculate on why they believe it is of interest. [ 107 ] Based on its review the evidence, the Court finds that the use of the same phrase does not affect the credibility of either doctor. The use of similar phrases is common within the medical profession. The Court finds that this evidence only reinforces the common understanding that Dr. MacEachern and Dr.

Kirby had about Jonathan's condition as at handover on the morning of February 9, 2007. This common understanding does not impeach the credibility of either physician, in and of itself. In conclusion, the Court finds that the similar references by these doctors impacts the credibility of neither Dr. Kirby nor Dr. MacEachern. 7. Dr. Yipp [ 108 ] The Plaintiffs allege that Dr. Yipp was evasive because he did not mention the alleged miscommunication of the Second CT Scan in the discharge

summary, which he prepared on February 15, 2007. Dr. Yipp testified during direct examination that he did not speak with Dr. MacEachern about Jonathan before he prepared the discharge

summary. Therefore, he was not aware of an issue regarding the miscommunication between Dr. MacEachern and Dr. Patel. In fact, he did not hear about this issue until just weeks before this trial commenced. Therefore, the discharge

summary as drafted on February 15, 2007 reflects the confusion between the information that the ICU team handed over on the morning of February 9, 2007 and what the Second CT Scan report stated. [ 109 ] Dr. Yipp also testified that it was one of the first discharge summaries that he had prepared. The information is dictated over the phone, and there is no opportunity to review it once it is transcribed. [ 110 ] As a final matter, the discharge

summary was dictated on February 15, 2007. The focus of the alleged negligence is what occurred on February 9 and 10, 2007. That being the case, the narrative that is in the discharge

summary is completely irrelevant to the substantive issue in this case. In conclusion, the Court finds that the alleged omission from the discharge

summary does not impact the credibility of Dr. Yipp. 8. Global Assertion

[111] In the Plaintiff’s written argument, they question the “honesty and integrity” of all of the Defendant physicians. This Courtdisagrees with this broad allegation by the Plaintiffs. The Court finds that each of the Defendant doctors gave their evidence honestly,endeavouring to tell the truth and attempting to recall the details of this case to the best of their ability. [112] These events occurred almost a decade ago. Although the Defendant physicians have a general recollection of Jonathan’s case,the specific details of each interaction and conversation are difficult to recall.

The suggestion that any of them were dishonest is withoutany support. [113] The Court also notes that none of the Defendant doctors were impeached. In conclusion, the Court finds that the treatingphysicians gave their evidence with the utmost candor, integrity and intelligence. [114] The question of the differing version of events between, first, Dr. Kirkpatrick and Dr. MacRae, and, second, Dr. Patel and Dr.MacEachern, will be discussed later in this judgment. B.

Duty of Care [115] For purposes of this litigation, the Defendants admit that they owed Jonathan a duty of care in relation to the treatment theyprovided to him at FMC in February 2007. Accordingly, the Court moves to the standard of care in respect of the Defendant physicians. C. Standard of Care 1. The Law a. General Principles [116] Since the Defendants acknowledge that they owed Jonathan a duty of care in relation to the treatment they provided to him atFMC in 2007, the Court turns next to the question of whether the Defendants’ treatment of Jonathan breached the applicable standard ofcare.

The general principles of law are not in dispute. They are outlined as follows. [117] In Wilson v Swanson, (SCC), [1956] SCR 804, the Supreme Court of Canada set out the standard of carerequired of a physician.

That is, a physician must exercise the degree of skill and knowledge which would reasonably be expected of anormal prudent practitioner of the same experience and standing, taking into account their area of specialization. [118] Although the standard of care applied to a physician should not be lowered by reason of inexperience, the case law hasestablished that a resident’s actions must be assessed against a reasonable physician with that level of training: Sharp v Hurlburt, 2007ABQB 221 at para 25. [119] To establish a breach of the standard of care in a medical negligence claim, the plaintiffs must establish, on a balance ofprobabilities, that a defendant departed culpably from the normal standard of skill, judgment or knowledge expected of a normal, prudentpractitioner of the same experience or standing in the same field: Crits v Sylvester (1956), (ON CA), 1 DLR (2d) 502(Ont CA) at 508; affirmed (SCC), [1956] SCR 991; see also ter Neuzen v Korn, (SCC), [1995] 3 SCR674 at paras 46-47. [120] It is generally accepted that when a doctor acts in accordance with standard medical practice, he or she will not be negligent.This is because it is assumed that the medical profession as a whole has adopted procedures that are in the best interest of the patient: terNeuzen, at para 51.

However, the Supreme Court acknowledges that there may be situations where the standard practice itself may befound to be negligent. This will only occur when the standard practice is “fraught with obvious risks”, such that anyone is capable offinding it negligent without the requirement for expert testimony: ter Neuzen, at para 54. b. Duty to Treat [121] The most common components of a doctor’s duty of care to a patient include the duty to diagnose, refer and treat. A doctor whohas undertaken the attendance and diagnosis of a patient has a duty to treat the patient: Justice E. Picard and Gerald B.

Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed (Toronto: Thomson Carswell 2007) at 320. The overriding principle remains thatthe doctor’s conduct must be assessed according to the standard of care of a physician in similar circumstances. [122] In considering the duty to treat question, the Court must recognize that the practice of medicine is an art, as well as a science. Asignificant degree of medical treatment depends on the exercise of judgment.

The rarity of the patient’s condition is also an importantfactor in determining whether a doctor ought to have treated a patient differently. [123] Sometimes clinical judgment will be wrong, but that does not necessarily mean that the doctor is negligent. The law requiresreasonable care, not flawlessness. Even reasonable and careful doctors make mistakes. [124] A doctor has a duty upon the formation of a doctor-patient relationship to exercise due care.

This includes the duty to perform oradminister treatment in accordance with the standard of skill expected of a professional in the same field at the time the treatment isprovided: Waap v Alberta, 2008 ABQB 544 at para 33. [125] A doctor should not be judged in hindsight. Determining negligence by focusing solely on the result of the medical treatment,rather than the manner in which it was performed, is improper. An approach that focuses on results only would impose a standard ofexcellence, which is not appropriate: Waap, at para 42.

c. Duty to Diagnose [126] A doctor is under a duty to take reasonable steps to detect signs and symptoms. The concept of a differential diagnosis is auniversally accepted rule of medicine. It applies when a doctor identifies a number of possible diagnoses consistent with the patient’ssymptoms. [127] In the course of making a differential diagnosis, a doctor is not expected to be infallible. A doctor is only expected to exercisereasonable care, skill and judgment: Picard at 301. [128] This is an area where the distinction between negligence and error of judgment is important.

A mistaken diagnosis is notnecessarily negligent. [129] Doctors are also under a duty to reconsider a diagnosis. This ties directly into the concept of differential diagnosis. A keyelement of differential diagnosis requires the elimination of the most serious conditions first. Failing to eliminate the worst potentialdiagnoses is not a mere error in judgment; it is a breach of the standard of care: Paniccia Estate v Toal, 2011 ABQB 326 at para 40;aff’d 2012 ABCA 397. d.

Duty to Chart [130] The Plaintiffs submit that there was a general failure to chart conversations amongst the physicians and departments at FMC.The Plaintiffs rely on the decision of Gemoto v Calgary Health Regional Health Authority, 2006 ABQB 740. [131] Gemoto noted that charting serves a significant clinical purpose: at para 339. The chart is the common source of informationand direction regarding the patient, and the basis for diagnosis and treatment. [132] The Gemoto case involved inadequate charting by nurses.

In that case, the defendant hospital conceded that the charting failedto meet the standard of care. [133] Health care professionals do not chart all conversations between themselves. This fact is acknowledged in Gemoto: at para 344.While physicians are under an obligation to keep adequate charts, there is no legal standard to chart every conversation between them. e. Duty to Consult (Refer) [134] In Scott v Mohan (1993), (AB KB), 142 AR 281, Justice Mason noted that the most critical factor in theduty to refer is timing. Justice Mason stated at para 58: There is a duty to refer, in certain circumstances.

As Picard, E.I. states: The term 'refer' may mean either that the doctor confer with a colleague and then carry on treatment himself, or that the patient is passedcompletely into the care of another doctor. There is no absolute test to ascertain when a doctor should refer or consult, but the cases suggest that it is indicated when: (

i) the doctor is unable to diagnose the patient's condition; (ii) the patient is not responding to the treatment being given; (iii) the patient needs treatment which the doctor is not competent to give; (iv) the doctor has a duty to guard against his own inexperience (e.g. the student doctor); or (

v) the doctor cannot continue to treat a patient (e.g. while on vacation). [135] The guidelines outlined in Scott will be considered by this Court in its assessment of the duty to consult. 2. Application of Law to Facts i. Dr. Susan Kirby (

A) Allegations of Negligence – Dr. Kirby [136] The Plaintiffs submit that Dr. Susan Kirby breached the standard of care owed by an attending physician to a patient in the ICU.Specifically, the Plaintiffs allege that Dr. Kirby breached the standard of care by failing on four fronts, which are posed below in theform of questions. i. Did Dr. Kirby breach the standard of care owed to Jonathan by failing to treat? ii. Did Dr. Kirby breach the standard of care owed to Jonathan by failing to reconsider the differentialdiagnosis? iii. Did Dr. Kirby breach the standard of care owed to Jonathan by failing to communicate with otherprofessionals involved?

iv. Did Dr. Kirby breach the standard of care owed to Jonathan by failing to consult with neurology? (

B) Relevant Facts – Dr. Kirby [ 137 ] Dr. Kirby received her medical degree from the University of Toronto in 1983. Following medical school, she did her residency in internal medicine and, subsequently, in critical care at the University of Western Ontario. Since that time, she has worked in a number of different centres as an intensivist and critical care specialist, including Vancouver General Hospital, Rockyview Hospital in Calgary and FMC. [ 138 ] Dr. Kirby also obtained her Masters of Science in clinical epidemiology from the Harvard School of Public Health. In 2007, Dr.

Kirby was working at the ICU at the FMC. [ 139 ] Dr. Kirby estimated that she would see about one case of community acquired meningitis every couple of months in the ICU. [ 140 ] Dr. Kirby was working in the ICU on February 8, 2007. She arrived between 07:00 and 08:00 on that day. Dr. Kirby was also the attending on-call physician on the night of February 8-9, 2007. She had somewhere between eight and twelve patients under her care that day. [ 141 ] Dr. Kirby remembered Jonathan’s case, but not all the details. Jonathan arrived at FMC at approximately 11:06 on February 8, 2007. He was assigned to Dr.

Kirby’s team. [ 142 ] Dr. Kirby would have had approximately three to five junior residents on her team that day. She could not recall if Dr. MacEachern was her senior resident. She did recall that both Dr. Prediger and Dr. Yipp were part of the team. [ 143 ] Dr. Kirby ordered the First CT Scan at 11:41, which was within an hour of his arrival at FMC. Dr. Prediger entered an order for a battery of tests and directions at 11:53 that day. [ 144 ] Dr. Kirby wanted to ensure that there was nothing on the First CT Scan that contraindicated doing a lumbar puncture.

That first scan was completed at 13:13 on February 8, 2007. Dr. Kirby reviewed that CT scan and noted in the chart that she saw good grey/white matter differentiation, and good third and fourth ventricles. She noted some edema, but not enough to contraindicate a lumbar puncture. [ 145 ] According to Dr. Kirby, the First CT Scan was required to confirm Jonathan’s diagnosis. Since he had been paralyzed and sedated for the transport, the ICU physicians at FMC were not able to do their own neurological examination at this time. [ 146 ] Dr. Yipp also spoke with Dr.

Kathleen Bell, the neuroradiologist who interpreted the First CT Scan. Dr. Bell confirmed the same findings, including the presence of diffuse cerebral edema. [ 147 ] The decision was made to proceed with the lumbar puncture. The plan was to have Dr. Yipp assist with the lumbar puncture. Dr. Kirby explained that during his training, Dr. Yipp would have had some exposure to performing a lumbar puncture. [ 148 ] Dr. Kirby did not recall specifically discussing the possibility of transtentorial herniation following the lumbar puncture. [ 149 ] Dr.

Kirby explained to the Court that a lumbar puncture is an important component of the diagnostic process, and is used to determine whether it is definitively meningitis. The lumbar puncture also provided confirmation of the type of meningitis. For the most part, when patients present with a possible diagnosis of meningitis, it is ideal to obtain samples as soon as possible. [ 150 ] Dr.

Kirby testified that the Royal College of Physicians and Surgeons of Canada teaches students that a lumbar puncture is standard practice for making and confirming a diagnosis of meningitis, and for being able to adjust your antibiotic therapy accordingly. [ 151 ] In addition to performing the First CT Scan, the ICU team also assessed another major risk of the lumbar puncture, which was bleeding. When the results came back from Jonathan’s first international normalized ratio (“ INR ”) test, it was elevated. When the INR is over the normal limit, blood takes longer to coagulate.

That was a concern in Jonathan’s case, apparently because a lumbar puncture could lead to a problematic bleed. [ 152 ] Dr. Kirby testified that she ordered some fresh frozen plasma at 13:46 on February 8, 2007 to be given to Jonathan before the lumbar puncture. She explained that the plasma replaces parameters that are required for coagulation. This treatment assists in bringing coagulation back to normal.

That would reduce the risk of a problematic bleed. [ 153 ] Prior to the lumbar puncture, at both 16:00 and 16:30 on February 8, 2007, Jonathan’s clinical status was recorded to be at a Glasgow Coma Score (“ GCS ”) of 10. He had motor power in all four limbs. [ 154 ] They did not retest Jonathan’s INR because Dr. Kirby did not want to delay the lumbar puncture any longer. Dr. Kirby recalled doing the lumbar puncture with Dr. Yipp. The lumbar puncture was started at approximately 16:55 on February 8, 2007. Dr. Yipp made two attempts at the lumber puncture, but was unsuccessful. [ 155 ] It is Dr.

Kirby’s standard practice to allow the resident a couple of tries at the lumbar puncture, and then she would assist. Dr. Kirby punctured the dura on her first attempt, removing the standard amount of cerebral spinal fluid. [ 156 ] The lumbar puncture was completed by 17:45. Dr. Kirby noted that the pressure was 36 centimetres, which is above normal but certainly consistent with meningitis. The appearance of the fluid was classic for infection. The cerebral spinal fluid was sent to the lab for analysis.

Following the lumbar puncture, Jonathan’s next neurovital exam at 20:30 showed GCS of 9 and motor power times 4. [ 157 ] According to Dr. Kirby, the goal was to have Jonathan “...as awake as possible...”. Her proviso was that she did not want to interfere with his ability to be reasonably comfortable. She also did not want him moving around too much.

[ 158 ] Dr. Kirby remembered seeing on the chart that Jonathan opened his eyes to verbal commands. She recalled hearing that his left pupil was larger than his right. Dr. MacEachern also told her that both pupils were reactive, so she did not consider this an important change. [ 159 ] Dr. Kirby explained that the fact that Jonathan was no longer combative was a separate issue to the pupillary reaction. Pupillary reactions are dependent on the third cranial nerve.

Combativeness is more of a delirium stage, associated with inflammation in the brain. [ 160 ] The plan was to repeat the CT scan, and then see if any decisions were to be made after that additional information was available. At the recommendation of Dr. MacEachern and with the concurrence of Dr. Kirby, the Second CT Scan was performed at approximately 02:00 on February 9, 2007. [ 161 ] On the morning of February 9, 2007, when she was doing rounds Dr. Kirby knew that Jonathan had an “up-and-down” night in terms of his blood pressure and heart rate. [ 162 ] Dr. Kirby signed over the ICU to Dr.

Kirkpatrick on that Friday morning. The handover of the ICU would have taken approximately one hour, depending on the types of patients. [ 163 ] Her standard practice on handover was to brief the incoming attending physician on the details of each patient. Concerning each patient in the ICU, Dr. Kirby would include a review of “why they were here, what we had done while they were here, what their current issues were, and what, if anything, was still outstanding and who I may have been worried about.” [ 164 ] On February 9, 2007, Dr. Kirby recalled telling Dr.

Kirkpatrick that they had a young man who had developed a fairly complicated course, not uncommon in a meningococcal meningitis case. Dr. Kirby indicated that Jonathan had been somewhat labile overnight, and that Dr. Kirkpatrick might want to see him sooner rather than later in his rounds. [ 165 ] When asked during testimony why she did not contact neurosurgery, Dr. Kirby stated that meningitis is a pretty common problem in the ICU, so she felt comfortable looking after the patient without getting in touch with neurosurgery.

She confirmed that when Jonathan first arrived at the hospital, he had purpura which is a common symptom of neisseria meningitis. [ 166 ] During cross-examination, Dr. Kirby agreed that the increasing agitation could be a sign of almost anything, sepsis being one of them. In this situation, Jonathan was agitated every time they woke him. The agitation likely increased by 14:20 hours on February 8, 2007 when the sedation was stopped. The treating physicians wanted to see if they could obtain a better neurological assessment. [ 167 ] On further cross-examination, Dr.

Kirby testified that agitation was not a good indicator of raised intracranial pressure. She explained that Jonathan was already agitated, so agitation was not really a good way to assess if things were changing. She went on to state that agitation was a common symptom that is often seen in critically ill patients in the ICU. [ 168 ] Dr. Kirby explained that it was difficult to assess Jonathan in the first hours of treatment because he was sedated and paralyzed when he arrived at FMC. Every time they tried to wake him, he would pull at things and move around, so they had to re-sedate him.

She chose not to involve infectious diseases at the point because, in her opinion, they would not have added anything. [ 169 ] Dr. Kirby agreed that meningitis creates inflammation from the infection, and the edema could lead to intracranial pressure. She stated, though, that this is a very uncommon occurrence. [ 170 ] Dr. Kirby was asked during cross-examination if there was a controversy about whether a lumbar puncture disturbs the equilibrium between the brain and the spinal canal, and how much it upsets it. Dr.

Kirby agreed that she has read literature which indicates that there is a controversy over whether a lumbar puncture can lead to tonsillar herniation. [ 171 ] Dr. Kirby clarified that a lumbar puncture was still considered the primary strategy for confirming a meningitis diagnosis. Unless there was clear evidence on the CT scan of some type of abnormality that has been well associated with causing herniation or evidence of intracranial pressure, a lumbar puncture would still be indicated. (

C) Analysis of Alleged Negligence – Dr. Kirby

(1) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to treat? [ 172 ] The Plaintiffs allege that Dr. Kirby failed to treat Jonathan.

In making this allegation, the Plaintiffs focus on three matters, being the lumbar puncture, the INR and the Second CT Scan. [ 173 ] Turning first to the lumbar puncture, the Court notes that a great deal of time was spent at trial on the issue of whether the performance of a lumbar puncture in this situation would provoke tonsillar herniation. [ 174 ] The Plaintiffs have conceded that in obtaining the First CT Scan of Jonathan’s head and administering a lumbar puncture on the afternoon of February 8, 2007, Drs. Yipp and Kirby met the applicable standard of care.

However, the Plaintiffs raised the issue again in closing argument when counsel alluded to medical literature which reports that the risk of herniation can be increased by a lumbar puncture. The Plaintiffs then clarified that “it’s rather about how much intracranial pressure is acceptable when doing a lumbar puncture to avoid the risk of herniation.” [ 175 ] Since it was raised in argument, the Court will address the issue for completeness. By way of review, Dr. Singh, the Plaintiffs’ expert, agreed that Dr. Kirby and Dr.

Yipp met the standard of care with regard to the decision to proceed with a lumbar puncture following the First CT Scan on February 8, 2007. Dr. Singh agreed that these physicians properly ordered the First CT Scan to rule out any contraindications. [ 176 ] Dr. Teitelbaum, one of the Defendants’ experts, stated in her expert report, that even in the face of increased intracranial

pressure, as long as there is no focal lesion that could cause compartmentalized herniation, the lumbar puncture would not provoke or aggravate tonsillar herniation. [ 177 ] Dr. Zoutman and Dr. Siu were also experts for the Defendants. Dr. Zoutman testified that the lumbar puncture should have been performed, and that it was an appropriate step in the standard of care for purposes of making a diagnosis of meningitis. To emphasize the point, he strongly disagreed with the suggestion that a lumbar puncture should not have been performed. Further, Dr.

Zoutman was not bothered by the time span between the First CT Scan and the performance of the lumbar puncture. [ 178 ] Dr. Siu also agreed that the lumbar puncture was appropriate, and commented that doctors are entitled to rely on a clinical assessment to know if the brain has undergone a significant change between, in Jonathan’s case, the First CT Scan and the performance of the lumbar puncture. One of the reasons for that time span between the First CT Scan and the lumbar puncture was the INR level, and the associated blood coagulation concern. To address that INR concern, Dr.

Kirby gave Jonathan some fresh frozen plasma. [ 179 ] Indeed, with the exception of Dr. Hammerberg, the experts from both the Plaintiffs’ and Defendants’ side agreed that by performing the lumbar puncture, Drs. Kirby and Yipp met the applicable standard of care. Given the weight of support for the lumbar puncture, the Court finds that Drs. Kirby and Yipp met the standard of care in executing that procedure. [ 180 ] Turning second to the INR, the Plaintiffs allege that when Drs. Kirby and Yipp proceeded to do the lumbar puncture, neither of them were certain of Jonathan’s INR.

Further, the Plaintiffs are critical of the conduct of Dr. Kirby because she failed to administer both units of fresh frozen plasma before executing the lumbar puncture. [ 181 ] The Plaintiffs allude to the failure of Dr. Kirby to ensure that the fresh frozen plasma had worked, and to ensure that it was safe to perform the lumbar puncture in the circumstances. The inference underlying this argument by the Plaintiffs was that the INR may still have been high, thereby putting Jonathan in jeopardy of a problematic bleed. [ 182 ] Based on the evidence provided at trial, the Court finds that the steps which Dr.

Kirby took to administer the fresh frozen plasma were simply protective. Since there was no problematic bleed, the INR issue should be moot. [ 183 ] Further, the Court finds that the Plaintiffs’ arguments are misleading insofar as no expert testimony was given to support the allegation that it was unsafe to do the lumbar puncture in the circumstances of this INR issue. The Plaintiffs’ arguments are further eroded by the fact that the evidence of its own witnesses was supportive of the steps that Dr. Kirby took concerning the fresh frozen plasma. In particular, the Court notes that Dr.

Singh, the Plaintiffs’ own expert, testified in direct examination that the decision to give the fresh frozen plasma was prudent. Further, in cross-examination, Dr. Singh confirmed that giving Jonathan the fresh frozen plasma in the manner in which it was administered in relation to the timing of the lumbar puncture met the standard of care. [ 184 ] Given that these steps were protective and that both the Plaintiffs’ and the Defendants’ experts concurred that the decision to administer the fresh frozen plasma was appropriate, the Court finds that Drs.

Kirby and Yipp met the applicable standard of care in respect of the INR. [ 185 ] Turning third to the Second CT Scan, the Plaintiffs submit that Dr. Kirby failed to follow-up on the results of that diagnostic step. [ 186 ] With respect to the Second CT Scan, Dr. Kirby recalled that she was involved in the decision making process. She knew that Dr. MacEachern was concerned about Jonathan’s level of consciousness, which appeared to be different than it had been earlier. The change in this case was that instead of waking up and becoming agitated when sedation was stopped, Jonathan was actually less responsive.

He was more lethargic. [ 187 ] Dr. Kirby recalls hearing about the results of the Second CT Scan at some point, but she did not remember exactly when that information was communicated to her. She heard that the Second CT Scan showed slightly increased edema, but was otherwise essentially unchanged from the original. The report that the Second CT Scan was essentially unchanged from the First CT Scan was also consistent with the apparent improvement in Jonathan’s neurovitals at approximately 01:00 on February 9, 2007. [ 188 ] Dr.

Kirby testified that this information concerning the Second CT Scan came to her from Dr. MacEachern. She did not recall if the information was relayed to her in person or over the telephone. [ 189 ] Dr. Kirby did not recall reviewing the image of the Second CT Scan. Her testimony was that it was not something she would typically do, unless there had been a change. [ 190 ] Based on the information that she had at the time, she understood that there had been no change – no difference. Her evidence on this matter is consistent with Dr. MacEachern’s testimony.

Further, the Court notes that the official report from the radiologists of the Second CT Scan had not even been dictated at the time of handover. Accordingly, that radiology report was not available to her when she went off duty. [ 191 ] Dr. Singh testified that if Dr. Kirby ordered the Second CT Scan, then she should have either followed-up on it personally or signed over the follow-up to the incoming physician, Dr. Kirkpatrick. Dr. Singh testified that it was his practice to follow-up with the official radiology report, to confirm there were no changes. However, Dr.

Singh did concede that it would be appropriate to have a colleague follow-up on the results for him. [ 192 ] In

summary concerning the duty to treat in the context of Dr. Kirby, the conclusion of the Court on each of the three issues alleged by the Plaintiffs are as follows. [ 193 ] First, while the Plaintiffs had conceded the issue during the trial, in closing argument they submitted that a lumbar puncture can increase the risk of tonsillar herniation. Notwithstanding the concession during the trial, the Court considered the issue for completeness. The Court finds that the performance of the lumbar puncture on Jonathan was in accordance with a common practice of doctors in the

circumstances. That being the case, the Court finds that Dr. Kirby met the standard of care in the execution of the lumbar puncture on Jonathan. [ 194 ] Second, the Plaintiffs alluded to the failure of Dr. Kirby to ensure that the fresh frozen plasma had worked for INR purposes. The inference was that she was being reckless. The Court disagrees. It finds that the steps taken by Dr. Kirby in respect of the INR were protective, and, indeed, no problematic bleed occurred. As such, the issue is moot. Further, even Dr. Singh, one of the Plaintiffs’ experts, agreed that Dr.

Kirby’s efforts with regard to the fresh frozen plasma were prudent. That being the case, the Court finds that Dr. Kirby met the standard of care in administering the fresh frozen plasma to Jonathan. [ 195 ] Third, the Plaintiffs argue that since Dr. Kirby ordered the Second CT Scan, she should have either followed-up on it personally or signed over the follow-up to the incoming physician, Dr. Kirkpatrick. Dr. Kirby testified that she recalled hearing about the results at some point, but she did not remember the exact timing of that update.

She heard that the Second CT Scan showed slightly increased edema, but was otherwise essentially unchanged from the First CT Scan. [ 196 ] The Court accepts Dr. Kirby’s evidence on this point, and does not find the mode of communication to be significant. The important fact is that she received the information about the Second CT Scan. [ 197 ] The Court also notes with significance that handover on February 9, 2007 occurred before the radiology report concerning the Second CT Scan was even dictated, let alone available. That being the case, the Court finds that it was appropriate for Dr.

Kirby to rely on the verbal report concerning the Second CT Scan when she effected her handover to Dr. Kirkpatrick. The Court also finds that Dr. Kirby met the standard of care in respect of her conduct concerning the Second CT Scan. [ 198 ] Given all of the above, the Plaintiffs have failed to establish, on a balance of probabilities, that Dr. Kirby fell below the standard of care expected of her concerning the duty to treat. Accordingly, the Plaintiffs’ claim against Dr. Kirby on this matter fails.

(2) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to reconsider the differential diagnosis? [ 199 ] The Plaintiffs submit that Dr. Kirby breached the standard of care because she failed to reconsider the differential diagnosis before handing over Jonathan’s care to another physician. According to the Plaintiffs, Dr.

Kirby was aware that Jonathan was deteriorating neurologically, and that the CT imaging indicated that there was no apparent change between the First CT Scan and Second CT Scan. [ 200 ] The Plaintiffs’ position was that these facts did not make sense in the context of the provisional diagnosis. The Plaintiffs also submit that Dr. Kirby failed to rule out the worst potential diagnosis first. [ 201 ] Dr. Singh stated that, in his opinion, he would have expected Dr.

Kirby to hear from the ICU medical team that they had treated Jonathan with mannitol and that his blood pressure had been up and down during the prior night. He also would have expected Dr. Kirby to have re-examined the working diagnosis and radiology. [ 202 ] Dr. Kirby testified that she had never seen a case like this before. Transtentorial herniation does occur, but it is extremely rare. Tonsillar herniation is even rarer. [ 203 ] During cross-examination, Dr.

Kirby was asked whether it would have been logical to consider that it might be intracranial pressure that was contributing to Jonathan’s problem, and leading to a tonsillar herniation. She agreed that it would be logical at one point in time, but given all the other possibilities and having reviewed the chart at the time, Dr. Kirby did not think she would expect anyone to reach that conclusion in the overnight period. [ 204 ] As noted above in the context of a review of the law, failing to eliminate the worst potential diagnoses is not a mere error in judgment; it is a breach of the standard of care.

In this particular circumstance, the Plaintiffs do not refer specifically to what would be the worst diagnosis. The Court is left to speculate. While it could go in many different directions on this point, the Court will assume that the Plaintiffs are referring to tonsillar herniation as being the worst diagnosis. If that is the case, the evidence is that Dr. Kirby did take appropriate steps to rule out the worst first.

She did this by being part of the process that resulted in the ordering of the Second CT Scan. [ 205 ] The information communicated to her was that there was not much change between the First CT Scan and the Second CT Scan. That information would have been reassuring to Dr. Kirby from the perspective that there was nothing structurally visible on the Second CT Scan which would account for the deterioration in the neurological status of Jonathan. The Court also notes that the written radiology report concerning the Second CT Scan was not available for Dr.

Kirby to review because it was prepared and finalized some hours after handover had occurred on February 9, 2007. [ 206 ] Dr. Teitelbaum testified that the clinical course which Jonathan experienced overnight on February 8-9, 2007 would not have led doctors to conclude that he was suffering from tonsillar herniation. They knew they were treating increased intracranial pressure, among many other things at the same time, but they could never have known about the tonsillar herniation. As Dr.

Teitelbaum stated, the patient was infected and had high pressure in the brain at the same time. [ 207 ] As a final comment on this duty to reconsider the differential diagnosis, Dr. Teitelbaum confirmed that intensivists are the experts in the treatment of meningitis, not surgeons or neurologists. To the extent that the Plaintiffs are implying that an intensivist should have been consulted concerning Jonathan, it is important to recognize that in February 2007 the FMC did not have a dedicated neurointensive care unit. There was only one neurointensivist on staff at the time, and that was Dr. Zygun.

He was not available as a 24/7 resource, and there was no formal procedure for consulting with him at that time. The evidence was that a process for consulting the FMC intensivist became more formal sometime after this event with Jonathan, although there was no evidence or suggestion that it was because of these circumstances. [ 208 ] In

summary concerning the duty to reconsider the differential diagnosis in the context of Dr. Kirby, the Plaintiffs allege that she did not re-examine the working diagnosis or review the Second CT Scan. The Court disagrees. In addition to the rarity of the

circumstance, Dr. Kirby was involved in taking steps to reconsider the differential diagnosis by being part of the process of ordering the Second CT Scan. Further, she received information that not much had changed between the First CT Scan and the Second CT Scan. Finally, in these circumstances, Dr. Teitelbaum opined and this Court agrees that, the Defendants, which would include Dr. Kirby, could not have been expected to know about tonsillar herniation at the time of handover.

There was too much going on at that point in time, including the fact that Jonathan was infected with meningitis, the treating physicians could not perform a neuro exam because he was not conscious and the written radiology report from the Second CT Scan was not available for review because it had not been drafted yet. That being the case, the Plaintiffs failed to establish, on the balance of probabilities, that Dr. Kirby fell below the standard of care expected of her concerning the duty to reconsider the different differential diagnosis. Accordingly, the Plaintiffs’ claim against Dr. Kirby on this matter fails.

(3) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to communicate with other professionals involved? [ 209 ] The Plaintiffs submit that Dr. Kirby breached the duty to communicate with other physicians when she failed to give Dr. Kirkpatrick a complete understanding of Jonathan’s complicated course. [ 210 ] Dr. Singh testified that at times communication in the ICU occurs so often, it is not recorded in the chart. However, he stated that in Jonathan’s case because there was no review and no definitive action taken, he assumed that communication between Dr.

Kirby and the other physicians did not happen. The Court finds the comments of Dr. Singh in this context to be mere speculation. [ 211 ] Dr. Singh testified that when effecting handover to the incoming attending physician, the mode of communication is not as important as the information that is being communicated. When he is not able to do a face-to-face handover, Dr. Singh calls the fellow or the charge nurse. [ 212 ] Dr.

Teitelbaum agreed that it is the duty of the attending physician who is going off-shift to apprise the attending physician who is coming on-shift on the status of the patients and of the imaging so that the incoming attending physician knows what is happening. [ 213 ] With respect to the handover, Dr. Kirby testified that she spoke with the charge nurse prior to handover. Through that enquiry, she obtained information about Jonathan’s hemodynamic instability, and the requirement for levophed intermittently. [ 214 ] Dr. Kirby also testified that she advised Dr.

Kirkpatrick during the handover that Jonathan was developing a complicated course of meningitis, that he had been hemodynamically labile overnight, and that Dr. Kirkpatrick might want to see Jonathan sooner rather than later. The Court accepts Dr. Kirby’s evidence on this point. The Court also notes that her recollection of this communication was substantially consistent with the evidence from Dr. Kirkpatrick insofar as he testified that he believed he recalled being told that Jonathan was a very sick man, that he had a CT scan showing generalized edema, but that the scan was acceptable in the circumstances.

Again, the Court notes with significance that this handover occurred before the radiology report was even dictated, let alone available for review. [ 215 ] In

summary concerning the duty to communicate in the context of Dr. Kirby, the Plaintiffs allege that she did not provide Dr. Kirkpatrick with a complete understanding of Jonathan’s complicated situation. The Court disagrees. The evidence is that her standard procedure on handover was to brief the incoming physician on the details of each patient, and that process included a review of “why they were here, what we had done while they were here, what their current issues were, and what, if anything, was still outstanding and who I may have been worried about.” Dr.

Kirby further testified that she would go through that process with every patient. There is no evidence that Dr. Kirby deviated from her standard practice on the morning of Friday, February 9, 2007. In addition to her testimony, Dr. Kirkpatrick also recalls Dr. Kirby communicating to him that Jonathan was a very sick man, with a high risk of dying. Given all of this evidence, the Court finds that the Plaintiffs failed to establish, on the balance of probabilities, that Dr. Kirby fell below the standard of care expected of her concerning the duty to communicate with other professionals involved.

Accordingly, the Plaintiffs’ claim against Dr. Kirby on this matter fails.

(4) Did Dr. Kirby breach the standard of care owed to Jonathan by failing to consult with neurology? [ 216 ] The Plaintiffs submit that Dr. Kirby breached t

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