THE ESTATE OF JOSEPH QUINLAN AS REPRESENTED BY JOHN QUINLAN v. A. GERARD QUINLAN IN THEIR OWN RIGHT, 2023 NLSC 138

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Quinlan v. Eastern Regional Integrated Health Authority of Newfoundland and Labrador , 2023 NLSC 138 Date : October 19, 2023 Docket : 201501G5528 Between: THE ESTATE OF JOSEPH QUINLAN AS REPRESENTED BY JOHN QUINLAN AND A. GERARD QUINLAN IN THEIR OWN RIGHT PlaintiffS And: Eastern Regional Integrated Health Authority OF NEWFOUNDLAND AND LABRADOR First Defendant And: Catherine Mann Second Defendant Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 19, 20, 21, 25, 26, 28, 2023

Summary:

The Plaintiffs sued the Defendants, the Health Authority and a thoracic surgeon, for medical malpractice. The Plaintiffs’ claim wasdismissed with costs. Appearances: John Quinlan Appearing on his own behalf A. Gerard Quinlan Appearing on his own behalf Janet L. Carpenter, Appearing on behalf of the First Jonathan D. Dale and Defendant Julia P. Morris Robin F. Cook and Appearing on behalf of the Second Shane R. Belbin Defendant Authorities Cited: CASES CONSIDERED: Rowe (Guardian ad litem of) v. Sears Canada Inc., 2005 NLCA 65; Young v. Noble, 2017 NLTD(G) 42;Stewart v. Postnikoff, 2014 BCSC 707; Branco v.

Sunnybrook & Women’s College Health Sciences Centre (2003), 133 A.C.W.S. (3d)421, 38 C.P.C. (5th) 155 (Ont. Sup. Ct.); Alechenu v. Solomon, 2022 ONSC 4556; Kirby v. Raman, 2015 NLCA 48; Dickson v. Pinder,2010 ABQB 269; Girard v. Royal Columbian Hospital, (BC SC), 1976 CarswellBC 363, 66 D.L.R. (3d) 676 (S.C.) STATUTES CONSIDERED: Fatal Accidents Act, R.S.N.L. 1990, c. F-6; Survival of Actions Act, R.S.N.L. 1990, c. S-32; LimitationsAct, S.N.L. 1995, c. L-16.1 REASONS FOR JUDGMENT Khaladkar J.: INTRODUCTION [1] Joseph Quinlan was having difficulty breathing. His family doctor, Dr.

Major, referred him to the Second Defendant, Dr.Catherine Mann. Dr. Mann is a thoracic surgeon. She first saw Joseph Quinlan in March, 2012. He was experiencing recurrent pleuralfluid buildup, causing him breathing difficulties. These problems had been manifesting themselves for about a year, and he hadpreviously been hospitalized for congestive heart failure. Although the fluid on his lungs had been earlier drained, it had recurred. [2] Dr. Mann performed a thoracoscopy and thoracotomy on Joseph Quinlan on April 25, 2012. After discharge from theIntensive Care Unit (“ICU”) of St. Clare’s Mercy Hospital, Mr.

Quinlan was transferred to the Special Care Unit (“SCU”) on April 29,2012. [3] During his stay in the SCU Joseph Quinlan showed signs of alcohol withdrawal. He developed chest congestion and a fever.These symptoms exacerbated and, by April 30, 2012 it became apparent that Joseph Quinlan was not improving but, rather, getting

sicker. He was moved back to the ICU. He was placed on a ventilator to assist with his breathing. [ 4 ] Joseph Quinlan remained in the ICU until May 28, 2012. While there, he continued to exhibit signs of delirium and alcohol withdrawal. On May 15, 2012 Dr. Mann performed a tracheostomy. [ 5 ] On May 28, 2012 Joseph Quinlan was again transferred to the SCU, where he remained until June 27, 2012. During that time his tracheostomy tube was removed and, on June 27, 2012 he was transferred to the Miller Centre for rehabilitation. [ 6 ] After his discharge from the Miller Centre Joseph Quinlan went home for a time.

By September he was hospitalized again and, eventually, was transferred to a Special Care Home. [ 7 ] Joseph Quinlan died on October 27, 2013 at the age of 74. His autopsy revealed severe, occlusive and calcific atherosclerotic disease of all three coronary arteries. There was evidence of old transmural myocardial infarct of the anteroseptal wall of the left ventricle, as well as smaller old infarcts of the posterior wall of the left ventricle and the right ventricular wall. His heart muscle showed evidence of chronic ischemic change. His heart was enlarged as a result of chronic hypertension.

The cause of death was due to acute coronary insufficiency secondary to severe calcified and occlusive atherosclerotic coronary artery disease. [ 8 ] In layman’s terms, Joseph Quinlan had been suffering from diseases related to his arteries and heart for some time and, on October 27, 2013, he died of a heart attack. The autopsy revealed that he had scarring of the lungs, evidence of recent and old hemorrhage and buildup of fluid. [ 9 ] The Plaintiffs are brothers of the deceased. The have sued Eastern Regional Integrated Health Authority (the “Health Authority”) because, they allege, St.

Clare’s Mercy Hospital (the “hospital”) provided sub-standard care to Joseph Quinlan. They have sued Dr. Mann because they feel that she did not obtain from Joseph Quinlan a proper, informed consent and because, they feel, the medical procedure conducted by Dr. Mann resulted in Joseph Quinlan’s decline and eventual death. [ 10 ] I will outline the evidence that I heard during the trial, the positions of the parties and, eventually, my analysis. However, I have determined that the Plaintiffs’ claim must fail on a multitude of grounds for the reasons that follow. a. gerard quinlan [ 11 ] Mr.

Quinlan testified that the Quinlan family had looked after their brother, Joseph Quinlan, for a long time. He communicated with his brother, Joseph, two or three times a week. They would get together to play bingo, to play cards and at family get-togethers. Mr. Quinlan became aware that his brother Joseph was going to have a medical procedure. After it had been completed, Mr. Quinlan received a call from his sister, Sheila, as a result of which he attended the hospital and learned that Joseph Quinlan’s lung had collapsed. [ 12 ] Mr.

Quinlan’s testimony was replete with references to what other people had said to him. All of that is hearsay and I have disregarded it for the purposes of this decision – except to the extent that it is necessary under the narrative exception to make sense of what happened. In those cases I have not accepted the hearsay for the truth of the statement but, rather, as information that is necessary to advance the narrative. [ 13 ] Mr. Quinlan testified that there were a number of issues in the ICU. Dr. O’Brien had to insert a tube to keep the mucous out of Joseph Quinlan’s lungs.

Joseph Quinlan’s condition was compounded, according to Mr. Quinlan, by the fact that the Quinlan family was not allowed in the ICU. [ 14 ] Mr. Quinlan indicated that he asked one day to see Dr. Mann but she did not show up. Eventually, he demanded a meeting with Dr. Mann and she attended a family meeting with all of the Quinlan siblings in attendance. At that meeting Mr. Quinlan testified that Dr. Mann immediately took control of the meeting. She indicated that Joseph Quinlan had had a few setbacks but that he was on the mend and would have a full recovery.

He testified that there wasn’t a question that she didn’t have a rosy, upbeat answer for. He said that she only told them what they wanted to hear. [ 15 ] Mr. Quinlan testified that Joseph Quinlan was 30 days in the ICU, followed by 30 days in the SCU when he was transferred to the Miller Centre. Joseph Quinlan was a strong walker before the procedure, but had to go to the Miller Centre to build up his strength. Upon release from the Miller Centre Joseph Quinlan went home. After returning home he was unable to do the things that he had done in the past. Cooking for himself, for example, was out of the question.

Before the procedure he had been able to get on a bus to go to the mall. He was now incapable of doing that. Joseph Quinlan could only shuffle for a short distance. In the month of August, or September, of 2012 Joseph Quinlan was at his sister’s house playing cards. He was unable to stand up and go to the washroom. [ 16 ] The Quinlan family brought Joseph Quinlan back to the hospital on September 30, 2012. His medical condition had gone from worse to horrific according to Mr. Quinlan. He fell down while he was supposed to be under 24-hour watch. He lost 40-50 pounds. He wasn’t eating.

Much of the time he was unconscious or sedated. [ 17 ] On December 14, 2012, Mr. Quinlan filed a complaint against Dr. Mann with the College of Physicians and Surgeons of Newfoundland and Labrador. The document was date stamped February 14, 2013. Mr. Quinlan testified that within two weeks of the document being filed Joseph Quinlan was “thrown out of the hospital”. He testified that it was not a coincidence. He indicated that it was a reaction by the medical authorities to get Joseph Quinlan out of the hospital. [ 18 ] Mr.

Quinlan testified that Joseph Quinlan died as a result of the physical and mental stress that he underwent after Dr. Mann performed the minor medical procedure. He said that Joseph Quinlan was in constant pain. He looked like a victim from Auschwitz. Mr. Quinlan is convinced that the procedure performed by Dr. Mann led to his brother’s death. He stated, in closing his direct testimony, that Joseph Quinlan was a victim of the corruption of the medical system in the Province of Newfoundland and Labrador. [ 19 ] In cross-examination by Mr. Cook, on behalf of Dr. Mann, Mr.

Quinlan indicated that he had not attended any of the meetings that Joseph Quinlan had with Dr. Mann. He was also not present at the pre-operative assessment conducted by an anesthesiologist and a

registered nurse on April 20, 2012. Similarly, he was not present at the follow-up appointment that Joseph Quinlan had with Dr. Mann on August 9, 2012. [ 20 ] Mr. Quinlan testified that his co-plaintiff, John Quinlan, was also not present at any of the meetings that were conducted between medical personnel and Joseph Quinlan. [ 21 ] Under cross-examination Mr. Quinlan agreed that at the family meeting of June 4, 2012 with Dr. Mann, she indicated that alcohol withdrawal can have unpredictable consequences.

He admitted that she told them that there’s absolutely nothing medically wrong with Joseph Quinlan, but that he was experiencing significant complications due to alcohol withdrawal. [ 22 ] Mr. Quinlan’s attention was directed, in cross-examination, to a note prepared by Tanya Clark on August 8, 2012 in which she had recorded a conversation with Joseph Quinlan regarding the provision of home care. In that conversation Joseph Quinlan had indicated that he was feeling wonderful, had no complaints or problems and he declined both a nursing visit and further homecare. In response, Mr.

Quinlan agreed that Joseph Quinlan was okay but, in his opinion, was not fully recovered. [ 23 ] Mr. Quinlan was directed to a clinic note sent by Dr. Mann on August 9, 2012 to Dr. Major. The following excerpt from page 18, Volume 1, Consent Book of Documents was read to him and, at the time, he took no objection to it: In clinic this morning, Mr. Quinlan, as well as his sister who accompanied him to this clinic appointment, report that he is feeling much better. His breathing is much improved and does not interfere with his activities.

His rehabilitation at the Miller Centre has been going very well and greatly improving his mobility. He denies any chest pain or shortness of breath. His appetite has been well and, since being discharged from hospital, he has begun to gain back most of the weight he lost during his prolonged stay. He does report some issue with eating certain types of food where it feels as though he is choking. This does not happen on a consistent basis or with any certain type of food consistency.

However, he does note that sometimes he has difficulty swallowing foods and it causes him to cough. [ 24 ] This was the last contact that Dr. Mann had with Joseph Quinlan. Mr. Quinlan indicated that his brother Joseph looked fantastic compared to what he was in the hospital, but he “wasn’t recuperating to the Joseph Quinlan of old”. [ 25 ] Mr. Quinlan testified that Joseph Quinlan was born on May 16, 1938. He was not employed in April, 2012. He was retired. He hadn’t worked for some time on account of a workplace injury. He received an old age pension – that was his sole source of income.

Joseph Quinlan had never married. In April, 2012 he was not living with anyone and he had no children. Both of his parents had predeceased him. [ 26 ] Mr. Quinlan said, in cross-examination, that the family is not calling any expert evidence (to establish liability). The Quinlan family is the expert. [ 27 ] Under cross-examination by Mr. Dale, on behalf of the Health Authority, Mr. Quinlan was asked to itemize what constituted negligence on the part of the Health Authority. Mr. Quinlan responded that the hospital was responsible for a collapsed lung at the end of April or the beginning of May.

He also indicated that Joseph Quinlan suffered a fall when he was supposed to be under 24-hour supervision. Furthermore, he indicated that Joseph Quinlan’s transfer to a nursing home (he referred to it as Joseph Quinlan being kicked out of the hospital) was not appropriate. [ 28 ] Mr. Quinlan took the position that a number of occurrences such as these compounded whatever was wrong with Joseph Quinlan that caused him to die. [ 29 ] Mr. Quinlan acknowledged that Joseph Quinlan had started the process to be admitted to a long term health care facility on October 1, 2012.

He acknowledged, further, that his brother was taken by ambulance from the hospital to the long term health care facility on February 26, 2013, having been in the hospital since September 30, 2012. [ 30 ] Mr. Quinlan confirmed that there was no expert evidence being tendered by the Plaintiffs to attest to the impropriety of discharging Joseph Quinlan from the hospital on February 26, 2013. john quinlan [ 31 ] Mr. Quinlan testified that his brother, Joseph Quinlan, walked out of his house to go to the hospital for a “minor medical procedure”. The word “operation” was never used. [ 32 ] Mr.

Quinlan indicated that Dr. Mann assured the family that there was nothing wrong. She said that he would walk out of the hospital as good as new. [ 33 ] Mr. Quinlan said that they were playing cards one night and, when Joseph Quinlan had to use the washroom, he held on to the wall. They took him back to the hospital. He was then put into the Miller Centre for rehabilitation and sent to a nursing home. [ 34 ] Mr. Quinlan said that he got a message from his sister that Joseph Quinlan had taken a turn for the worse. When Mr.

Quinlan arrived the medics were working on him, but he passed away. [ 35 ] Under cross-examination Mr. Quinlan confirmed that he had never met with Dr. Mann before the family meeting, and that that meeting was his only interaction with Dr. Mann. He also confirmed that his sister, Elizabeth Ann (“Betty”) Quinlan, went with Joseph Quinlan to his doctor’s meetings. Their sister Sheila did not attend any medical appointments. [ 36 ] In regard to the family meeting with Dr. Mann, Mr. Quinlan testified that they questioned Dr. Mann about Joseph’s condition after the medical procedure.

She said that he had a few setbacks, but eventually he would be able to walk out. She said that he needed time to recover from the setbacks.

[ 37 ] The passage from the clinic note reproduced in paragraph 23, supra , was put to Mr. Quinlan. He responded by saying that if that’s what Dr. Mann said, he couldn’t disagree with her. [ 38 ] I was advised, at the conclusion of Mr. Quinlan’s testimony that Betty Quinlan had taken a medical turn for the worse and would be unable to testify in person. The Plaintiffs wanted to introduce a statement written by Betty Quinlan – which I did not allow because it would not meet the threshold test of reliability even though, under the circumstances, it might be necessary.

I inquired of Defence counsel whether Betty Quinlan’s discovery transcript could be utilized. They wished to have medical confirmation that she was unable to testify – which was provided the following day. [ 39 ] I ruled that the transcript of the examination for discovery, including an appended statement of Betty Quinlan, could be tendered into evidence as part of the Plaintiffs’ case so long as the entire transcript was filed with the Court. The parties agreed and the transcript was marked as an exhibit. Betty quinlan [ 40 ] Ms. Quinlan testified at the examination for discovery in this matter on June 6, 2022.

She indicated that she was the sister who accompanied Joseph Quinlan to his medical appointment with Dr. Mann before he underwent his medical procedure. [ 41 ] The statement that Ms. Quinlan had signed concerning her attendance at the April 12, 2012 meeting with Joseph Quinlan and Dr. Mann, which was marked as Exhibit – EQ-2 at her examination for discovery stated, in part, as follows: Whatever medical issues Dr. Mann may have mentioned, either alcohol or smoking withdrawal, she clearly stated that if any of these occurred, they could be and would be treated. [ 42 ] During the examination for discovery Ms.

Quinlan denied that Dr. Mann had talked about smoking or alcohol withdrawal. [ 43 ] Ms. Quinlan acknowledged that she would have been the only sister of Joseph Quinlan who would have gone to meetings with Dr. Mann. However, she had no recollection of the meeting she attended with Dr. Mann on August 9, 2012. [ 44 ] That concluded the evidence for the Plaintiffs. leslie motz [ 45 ] Ms. Motz was called as a witness by the Health Authority. She is currently the Executive Vice-President and Chief Nursing Executive for the Joseph Brant Hospital in Burlington, Ontario.

She is a registered nurse who has had a wealth of experience in a variety of capacities, culminating in the responsible position she now occupies. She is a member of the College of Nurses of Ontario and is a leadership member of the Registered Nurses of Ontario. She is a member of the Canadian College of Health Leaders and the American College of Healthcare Executives. She is also a member of the College of Nurses of Ontario – member employer group. She has been qualified as an expert on a number of occasions. [ 46 ] In 2010 Ms.

Motz was the program director of the surgical program for thoracic surgery at Lakeridge Health. In that role she had to identify operational requirements – including equipment, physical resources and implement a correct continuum of care pre- operatively and post-operatively. She had oversight over the recovery unit, critical care and in-patient care. She attended to nurse training and team training, and co-led the thoracic program with the thoracic surgeon. Her responsibilities included monitoring and evaluating the thoracic care system. [ 47 ] Ms.

Motz was qualified as an expert in the field of thoracic surgery nursing, including pre-operative procedures and critical care nursing. The Plaintiffs did not question her credentials or her ability to give opinion evidence. They questioned her ability to give opinion evidence regarding hospital records that she had no hand in creating. I will deal with this issue in the Analysis

section of my decision. [ 48 ] Ms. Motz reviewed the entire medical chart of Joseph Quinlan from April 20, 2012 until June 27, 2012 when he was transferred to the Miller Centre. She indicated that there was an extensive record consisting of progress notes from doctors and nurses, physician’s orders, medication administration records, diagnostic reports from the laboratory, x-rays and CAT scans. There were also records relating to Joseph Quinlan’s attendance in the operating room and the recovery room. [ 49 ] Ms.

Motz’ opinion was that she saw nothing to suggest that there was anything untoward in the nursing care administered to Joseph Quinlan between April 25, 2012 and June 27, 2012. [ 50 ] Ms. Motz testified that the pre-operative assessment consisted of a lot of data gathering, and was concluded on April 20, 2012. The topics discussed with Joseph Quinlan included hypertension, COPD, psychosis, seizures, older head trauma, diabetes, surgeries conducted in the past – including orthopedic surgeries and surgery related to a head injury, substance abuse history – including alcohol and tobacco use.

The nursing staff indicated that Joseph Quinlan had a good understanding of the conversation he had with the nurse and that he had no outstanding questions. [ 51 ] Ms. Motz indicated that the nursing staff completed a comprehensive assessment of Joseph Quinlan that met the required standard of care. The information gathered would provide the doctors with everything that they would need, including Joseph Quinlan’s vital signs – blood pressure, body temperature, heart rate and respiratory rate. [ 52 ] Ms. Motz reviewed the operating room record for the procedure that was conducted on April 25, 2012.

She indicated that there are two defined roles for nurses in the operating room. The scrub nurse remains sterile and provides tools to the surgeon to conduct the surgery. The circulating nurse does not come into the sterile field. The circulating nurse’s job is to act as a runner, to observe and, if necessary, fetch equipment. Circulating nurses document the surgery in real time. [ 53 ] Once the procedure is concluded, the anesthesiologist determines whether the patient is stable and capable of being moved. If

so, one of the nurses accompanies the patient to the recovery room. [ 54 ] In Ms. Motz’ opinion the operating room nurses met the appropriate standard of care during Joseph Quinlan’s surgery. The documentation created by them was adequate and complete. They conducted a count of all the instruments and sponges used during the operation. At the conclusion of the surgery nothing was missing. [ 55 ] Ms. Motz reviewed the documents created while Joseph Quinlan was in the recovery room. This is a high observation unit where vital signs are monitored to ensure that the patient is waking up.

Nurses in the recovery room perform an assessment every 15 minutes. In Ms. Motz’s opinion the documentation created in the recovery room evidences that the nurses followed the appropriate protocols. They documented in a proper manner and met the appropriate standard of care. [ 56 ] From April 25, 2012 until April 29, 2012 Joseph Quinlan was in special care. This is a high observation unit since closer observation is required for, especially, thoracic surgery patients. [ 57 ] Ms. Motz testified that the nursing staff maintained an alcohol withdrawal assessment record.

This was done because alcohol withdrawal could require intervention. Withdrawal can lead to serious outcomes such as seizures. The hospital had a protocol in place regarding alcohol withdrawal and, in the case of Joseph Quinlan, monitoring for alcohol withdrawal was also ordered by Dr. Mann. [ 58 ] From April 27, 2012 to April 29, 2012 Joseph Quinlan was admitted to a SCU. His withdrawal from alcohol was well documented according to Ms. Motz. On April 27, 2012 Joseph Quinlan was exhibiting signs of alcohol withdrawal. On April 28, 2012 Mr. Quinlan had developed some chest congestion and he had a fever.

It was thought that he could be suffering from an infection. A respiratory therapist was called in. [ 59 ] In Ms. Motz’ opinion proper steps were taken by the nurse. On April 29, 2012 Joseph Quinlan was under constant observation. He was getting more ill. His fever had increased. His physician was notified. He was given more oxygen and Tylenol. He was placed in restraints. [ 60 ] On April 30, 2012 Joseph Quinlan was not improving. He was getting sicker. There was an ongoing concern with respect to his chest. The nursing staff notified Joseph Quinlan’s doctor and moved him to the ICU. [ 61 ] In Ms.

Motz’ opinion the nurses met the appropriate standard of care. They reviewed all parts of Joseph Quinlan’s chart, noted findings of abnormality and took the appropriate necessary steps. [ 62 ] On April 30, 2012 Joseph Quinlan was placed on a ventilator. The purpose of this procedure is to provide respiratory relief for a patient who cannot breathe on his own. The ventilator ensures that the required level of oxygenation is maintained. A tube is inserted into the patient’s lungs. The ventilator machine monitors the patient’s oxygenation levels. [ 63 ] Ms.

Motz indicated that nurses play a significant monitoring role when a patient is on a ventilator. The nurse is able to find abnormalities and take appropriate steps to ensure that what is necessary is done. Nurses will work in tandem with a respiratory technologist. It is the nurse’s responsibility to monitor the whole patient and, if they cannot correct something, to notify the physician. [ 64 ] Joseph Quinlan was in the ICU from April 30, 2012 until May 28, 2012. On May 8, 2012 Joseph Quinlan’s breathing tube was removed.

It was noted that he faced ongoing challenges with the amount of secretions and an inability to clear them. On May 9, 2012 Joseph Quinlan was exhibiting signs of delirium but alcohol withdrawal was improved. He was re-intubated because he was unable to breathe properly. [ 65 ] On May 12, 2012 Joseph Quinlan was exhibiting ongoing signs of delirium. He was restrained in order to keep him safe. In Ms. Motz’s opinion it was appropriate to restrain Joseph Quinlan.

She indicated that there is significant documentation surrounding this issue. [ 66 ] On May 15, 2012 Joseph Quinlan was taken to the operating room for a temporary tracheostomy. Ms. Motz indicated that this is frequently done for patients requiring air support. The tracheostomy was used for ongoing suctioning of mucous and secretions. It was necessary to reposition the tracheostomy tube to find the right fit for Joseph Quinlan’s anatomical needs. [ 67 ] In Ms. Motz’s opinion the nurses in the ICU met the appropriate standard of care. [ 68 ] On May 28, 2012 Joseph Quinlan was transferred to the SCU.

There were concerns about his level of confusion. Ms. Motz testified that the nurses in the SCU frequently monitored Joseph Quinlan and documented their findings. Based upon the documentation reviewed by Ms. Motz, she opined that the SCU nurses had met the appropriate standard of care. There was a recognition of a change in Joseph Quinlan’s status and appropriate steps were taken. In particular, the nurses noted an increase in Joseph Quinlan’s confusion.

They appropriately involved a respiratory technologist to assist in Joseph Quinlan’s care. [ 69 ] On May 31, 2012 a decrease in Joseph Quinlan’s oxygen levels was noted by the nurses in the SCU. Ms. Motz indicated that the nursing staff appropriately had Joseph Quinlan transferred to the ICU. In ICU care Joseph Quinlan was closely monitored. There was abundant documentation created by the ICU nurses. Ms. Motz indicated that the nurses in intensive care met the appropriate nursing standard.

They ensured that there was stability in Joseph Quinlan’s tracheal tube (he was not on the ventilator at the time), and saw to it that he was stabilized. [ 70 ] From June 1, 2012 until June 27, 2012 Joseph Quinlan was a resident of the SCU, when he was transitioned to the Miller Centre. Ms. Motz testified that there was ample documentation concerning his nursing care. She indicated that the level of oversight he received was greater than the standard. In Ms. Motz’s opinion Joseph Quinlan received excellent care. He was assessed and treated by a respiratory therapist. His cognitive status was beginning to improve.

He was able to cough better. He received aggressive physiotherapy and his tolerance improved. He was beginning to strengthen.

[ 71 ] Joseph Quinlan’s tracheostomy mike was removed. On June 14, 2012 Joseph Quinlan stumbled. A fall was documented on June 19, 2012. However, no intervention was required as a result of these falls. [ 72 ] Based upon a review of all of the nursing documentation from June 1, 2012 to June 27, 2012 Ms. Motz testified that the nursing staff met the appropriate standard of care. She indicated that proper actions were taken by the nursing staff and that the patient continued to improve. [ 73 ] In cross-examination Ms.

Motz reiterated that no mistakes were made on the basis of Joseph Quinlan’s chart and no corrective action was necessary. [ 74 ] That concluded the evidence for the Health Authority. catherine mann [ 75 ] Dr. Mann is a thoracic surgeon. She completed her residency in St. John’s in 1998 and, presently, is associated with the hospital, where she is clinical chief of thoracic surgery. She also has hospital privileges with the Health Sciences Centre and the Cancer Clinic. She is an Assistant Professor with Memorial University of Newfoundland and Labrador. [ 76 ] Dr.

Mann remembers meeting Joseph Quinlan in March of 2012. He was referred to her by Dr. Major. Mr. Quinlan was experiencing problems with recurrent pleural fluid buildup from which he had been suffering for about a year. Mr. Quinlan had been previously hospitalized on account of congestive heart failure. He had had the fluid from his right lung drained, but it had recurred. [ 77 ] Dr. Mann indicated that the fluid was symptomatic. However, Mr. Quinlan wanted the problem solved. She conducted a physical examination and determined that there was a small amount of fluid on the chest.

She wished to start off treatment with a non- invasive treatment but she indicated that she had to rule out a malignancy. [ 78 ] Mr. Quinlan was sent to a radiologist for an ultrasound and a pleural tap. In addition, she was going to perform a bronchoscopy, and discussed with Mr. Quinlan about obtaining a tissue sample from around the lesion in his lung. Dr. Mann also discussed with Mr. Quinlan the possibility of performing a thoracotomy. At the time she did not go into any great detail about the invasive procedure. She recalled that during this visit no one accompanied Mr. Quinlan. [ 79 ] Dr.

Mann testified that there are risks and benefits with any medical procedure. A pleural tap entails the administration of an anesthetic in the area to be punctured. There is a small risk of bleeding. She indicated that the radiologist would obtain the necessary consent. She only explained the procedure to Mr. Quinlan. [ 80 ] Dr. Mann discussed the bronchoscopy with Mr. Quinlan. This is a procedure that is carried out under sedation. The main risk with a bronchoscopy is from aspiration. It is necessary that the patient fast beforehand to minimize the risk. There is, as well, a small risk of bleeding. [ 81 ] Dr.

Mann indicated that it is her general practice to discuss the procedure generally with her patients, but more specifically at the time of the procedure. [ 82 ] Dr. Mann sent a Clinic Note to Dr. Major on March 17, 2012 indicating that Mr. Quinlan’s lung appeared trapped because it had been collapsed for a long time with the build-up pocket of fluid. She indicated that a thoracotomy might have to be considered to remove the tissue that had built up on Mr. Quinlan’s lung. The procedure would also provide a better sample to rule out a malignancy. (Page 57-58, Volume 1, Consent Book of Documents). [ 83 ] Dr.

Mann obtained a consent from Mr. Quinlan for the bronchoscopy procedure on March 20, 2012. (Page 46, Volume 1, Consent Book of Documents). [ 84 ] She indicated that prior to Mr. Quinlan signing the consent she would explain to him the steps involved – freezing of the throat, intravenous sedation, monitoring of oxygen and blood pressure during the procedure, a light would be introduced through Mr. Quinlan’s mouth and that a light coughing might ensue. Dr. Mann indicated that she would obtain a biopsy if she noted anything abnormal. The biopsy would be very small, and the procedure was very common. [ 85 ] Dr.

Mann indicated that there were no reservations from Mr. Quinlan. He had the capacity to understand what was being explained to him. He asked appropriate questions and had the legal capacity to sign the consent form. [ 86 ] Dr. Mann performed the bronchoscopy, which Mr. Quinlan tolerated well. She saw him again on April 12, 2012. In a clinical note dictated to Dr. Major on the same day, Dr. Mann noted as follows at page 24, Volume 1, Consent Book of Documents: I saw Mr. Quinlan and back in clinic today.

His bronchoscopy showed no evidence of malignancy and his pleural tap showed just to serous fluid again with no evidence of malignancy. He has felt a bit better since the tap and did get a liter which was suggest that the fluid is not terribly loculated. However, an x ray today shows that there is probably some reaccumulation of the fluid and I think that lower lobe is partially trapped down. I suspect that this is all benign and just on the basis of post inflammatory kind of changes trapping the lung down but I think to deal with it and also to absolutely rule out malignancy, he needs a thoracoscopy.

I think there is a fairly high chance that we would need to go on to a thoracotomy and actually decorticate that lower lobe. We discussed that today in the presence of his sister and he is agreeable to coming in to the operating room to have that done. We will get him in, in the near future. I suspect that he may have some problems with withdrawal in the postoperative period and we will have to watch him very carefully. However, I do not think there is any other way sort this out other than to take him in the operating room.

[ 87 ] Dr. Mann testified that she obtained Mr. Quinlan’s informed consent prior to embarking on the thoracoscopy/thoracotomy procedure. She stated she let the patient know exactly what the plan entailed. She stated she made him aware of the reasonable potential risks relating to the anesthetic, the risk of bleeding, infection and blood clots. She indicated that she discussed the possibility of death with decortication. In addition, she indicated that she recalled discussing the risk of alcohol withdrawal and asked Mr. Quinlan to cut down his drinking before the procedure. [ 88 ] Dr.

Mann indicated that she has a standard talk that she has with all of her patients. She advised Mr. Quinlan that a thoracoscopy procedure would usually require two or three days stay in hospital post-operatively. A thoracotomy procedure required a hospital stay of four or five days. She indicated that the timing can vary with individual patients. She also indicated that if he went into withdrawal, this could extend his stay in the hospital. [ 89 ] Dr. Mann indicated that she gave Mr. Quinlan the opportunity to ask questions.

She stated that if there were any specific questions or concerns, these would have been noted in her clinical note. However, she said that they had a good discussion and he wanted to proceed. [ 90 ] Dr. Mann testified that alcohol withdrawal can result in agitation, confusion and delirium. These symptoms require sedative medication which, in turn, interfere with the person’s ability to cough up sputum. [ 91 ] Dr. Mann indicated that the Health Authority has a protocol in place to deal with withdrawal. She indicated that it was her job to place the patient on the protocol.

Having done so, it is the nursing staff’s job to follow the mandates of the protocol. [ 92 ] Dr. Mann indicated that she would not have gone into this level of detail discussing the planned operation with Mr. Quinlan. [ 93 ] On April 12, 2012 Mr.

Quinlan signed a consent which stated, in part, as follows: I agree that the nature, extent and anticipated risks, benefits and possible outcomes of the Intervention, Administration of Blood, and use of human bone tissue authorized by this consent and alternatives to each, have been explained to me by the undersigned physician and that I am satisfied and understand the explanations given. [ 94 ] The consent was executed by Mr. Quinlan and Dr. Mann. It can be found at Page 1190, Volume 2, Consent Book of Documents. [ 95 ] Dr.

Mann testified that she would never undertake a surgical procedure without discussing reasonable risks. And while she would have said that serious complications were unlikely, she would have mentioned them. [ 96 ] She stated that she was forced to perform a thoracotomy because she was unable to see anything with the thoracoscopy incision. She found a layer of scar tissue trapping down the lung. She took samples for biopsies and performed a decertification – which allowed the lung to expand. She put in a drainage tube and closed the incision.

Her Operative Report of the procedure is located at pages 470-471, Volume 1, Consent Book of Documents. [ 97 ] The biopsies taken of the chronic inflammation scar showed that there was no cancer. Dr. Mann considered the procedure a success. Mr. Quinlan was in the recovery room initially and, then, was transferred to the SCU. He was admitted to the ICU when he went into alcohol withdrawal. He became increasingly agitated, confused and delirious. He had to be sedated and, then, couldn’t clear up his secretions. He was unable to do any physiotherapy and was struggling to breathe. [ 98 ] Dr.

Mann indicated that her role changes once the patient goes to the ICU. The physician covering the ICU makes the decisions that are necessary for the patient’s care. [ 99 ] Dr. Mann was called in to perform a tracheostomy on Mr. Quinlan. She indicated that they don’t like to leave the breathing tube in for very long because it can result in scarring around the vocal chords. [ 100 ] Mr. Quinlan was able to get off the ventilator fairly quickly after having the tracheostomy performed. [ 101 ] Dr. Mann met with Mr. Quinlan’s family on June 4, 2012. The family felt that Mr.

Quinlan ought to have been admitted a week or 10 days before the operation in order to get him off alcohol and cigarettes. Dr. Mann explained to the family that they do not have the resources to admit people pre-operatively for those reasons. She indicated that he has had serious complications related to his alcohol consumption, but that he would recover. It would be a long, slow process. [ 102 ] On June 27, 2012 Mr. Quinlan was discharged from the hospital and sent to the Miller Centre for rehabilitation. Dr. Mann would not have provided any care to him while he was at the Miller Centre.

She saw him for the last time on August 9, 2012. One of his sisters was with him. At that meeting Mr. Quinlan indicated that he was feeling much better. His breathing was better than it had been before the surgery, he had gained back much of the weight that he had lost. He had some difficulty swallowing at times – a result of his intubation and tracheostomy. However, his incisions had healed nicely and Dr. Mann was happy with his chest x-ray. She noted that Mr. Quinlan would benefit from physiotherapy, but that his surgical issues were resolved.

As a result she discharged him from her practice. [ 103 ] In cross-examination Dr. Mann indicated that she discussed with Mr. Quinlan the possibility of bleeding, blood clots, adverse reaction to anesthetics and alcohol withdrawal. She stated that she would not have said anything to him about an inability to walk, to go shopping, to cook and so on. [ 104 ] Dr. Mann denied that she would have used the term “minor medical procedure”. She also denied having said that “there was nothing to worry about”. [ 105 ] Dr. Mann indicated that it is a doctor’s duty to explain reasonable outcomes.

She said that you cannot foresee everything. What happened to Mr. Quinlan was not a likely risk with the procedure that was undertaken. However, she indicated that she did discuss

withdrawal and the possible complications from that. carmine simone [ 106 ] Dr. Simone is the Vice-President of Medical Affairs at the Michael Garron Hospital in Toronto, Ontario since October, 2021. He practices thoracic surgery in that hospital, and has done so since July, 2004. He has been practicing thoracic surgery at various hospitals since July, 2006. In addition, he is an Assistant Professor, Division of Thoracic Surgery, at the University of Toronto. He has an impressive list of publications to his credit and provided the Court with a 12-page curriculum vitae.

He has been qualified as an expert thoracic surgeon on a number of occasions. [ 107 ] Dr. Simone was qualified to give expert opinion evidence in the field of thoracic surgery. His qualifications were not challenged by the Plaintiffs. They did, however, take issue with his being able to give opinions on matters for which he did not have any direct knowledge. [ 108 ] Dr. Simone provided the Court with a report. He provided the following information and opinions: The patient was seen by Dr. Mann in consultation on March 15, 2012 for a surgical opinion regarding a pleural effusion.

The patient was investigated by Dr. Mann and underwent a diagnostic thoracentesis which was negative for malignancy and for infection. The patient also underwent an elective bronchoscopy to rule out endobronchial disease. The bronchoscopy revealed no evidence of malignancy and no endobronchial pathology. The patient was then consented to undergo a diagnostic thoracoscopy, possible thoracotomy for pleural biopsy. On April 25, 2012 the patient underwent a bronchoscopy, right thoracoscopy with conversion to thoracotomy for pleural biopsy and decortication of the right lung.

His post-operative course was complicated by respiratory compromise secondary to inability to clear secretions, requiring intubation. The patient failed to wean from mechanical ventilation and he therefore underwent tracheostomy tube insertion May 15, 2012. He continued to have issues with secretions initially but did eventually succeed in getting the tracheostomy tube changed. He was then transferred to the ward and eventually discharged from hospital to a rehabilitation institution to complete his recovery. With regards to the care of the patient I highlight the following: 1.

The decision to proceed with surgical intervention was based on an acceptable work up of the presenting problem . The patient has a nonreseolving, reaccumulating right pleural effusion and imaging and medical history supported the differential diagnosis of possible malignancy. Appropriately, a diagnostic thoracentesis and bronchoscopy were performed and failed to reveal malignancy as an etiology for the pleural effusion. 2. … the consent for the procedure was properly obtained, the necessary information was conveyed and documented in the chart and supporting documents.

The conduct of the operation was well documented. A preoperative anesthesia assessment was performed. The anesthesiologist noted potential areas of concern such as diabetes, potential for excessive blood loss, perioperative pain and alcohol withdrawal. On the day of the surgery a preoperative safety checklist was completed. Intraoperative records indicate no hemodynamic instability, hypoxia or difficulties with ventilation. Post-operative monitoring in the post-operative recovery area indicated no instability and the patient was appropriately discharged from the recovery area once discharge criteria were met.

In my opinion the preoperative and perioperative conduct of Dr. Mann meets the standard of care . 3. The post-operative care of the patient was initially uneventful. On April 30, 2012 the patient suffered respiratory compromise requiring endotracheal intubation and transfer to the ICU. Notes indicated significant secretions and inability to effectively clear secretions as the main concern. On May 8, 2012, after meeting criteria for elective extubation the patient was extuabated by the ICU team.

The patient required re-intubation May 9, 2012 due to “collapse of the right lung” due to mucous plugging or inability to clear secretions. On May 12, 2012 another episode of mucous plugging was noted and therefore the decision to offer tracheostomy tube insertion was made. This is a commonly used intervention to help with pulmonary toilet or clearing of secretions. A tracheostomy tube … was inserted May 15, 2012 in the OR.

On May 31, 2012 this tracheostomy tube was changed … After making some progress the patient was deemed eligible to be transferred to a rehabilitation facility and was discharged from hospital on June 28, 2012. The decisions to intubate, extubate and offer tracheostomy tube insertion were made by the ICU physicians. These were appropriate. With regards to the tracheostomy tube insertion, Dr. Mann’s preoperative assessment, operative conduct and post-operative monitoring met the standard of care . 4.

The decision to transfer the patient to rehabilitation facility was made by the multidisciplinary team and supported by Dr. Mann. The patient transitioned to rehabilitation successfully and made significant progress as documented in the follow up note of August 9, 2012 when the patient was seen, with his sister, in the Thoracic Surgery Clinic at St. Clare’s Mercy Hospital. The patient reported feeling much improved, his breathing was improved, incisions from surgery and tracheostomy tube insertion were healing well and the patient’s appetite was improving.

His chest xray was stable from the time of discharge from hospital. After review of the documents provided, it is my opinion that the standard of care was met in all aspects of care in which Dr. Mann was involved . …

[emphasis added] [ 109 ] Dr. Simone testified that with respect to procedures such as these any number of things can happen. The risks are low, and rare, but they are not zero. Some risks, such as alcohol use, can be mitigated. However, other risks, such as heart disease, cannot be mitigated and militate against performing the surgery. [ 110 ] Dr. Simone would have recommended that Mr. Quinlan go ahead with the procedure despite his alcohol use. Complications as a result of alcohol use are unpredictable. Dr. Simone indicated that he would have a conversation with a patient like Mr.

Quinlan that there are some risks, but he would not go into great detail. The duty of the physician according to Dr. Simone is to talk about the most common events. Dr. Simone would not have told Mr. Quinlan that what happened to him would happen. He would not have discussed this at all. [ 111 ] In cross-examination Dr. Simone testified that he would not have warned a patient like Mr. Quinlan of all possible outcomes. He indicated that he talks about the most common outcomes and highlight the most severe. [ 112 ] Dr. Simone described Joseph Quinlan, a smoker and a drinker, as an average patient in Canada.

He would not agree that Joseph Quinlan’s was a special case. [ 113 ] Dr. Simone was asked about the possibility that medical records could be falsified. Initially he did not respond but, later, he said that he had no reason to believe that they were inaccurate, but he wasn’t there. the plaintiffs argued John Quinlan [ 114 ] At the family meeting with Dr. Mann she assured us that there was nothing wrong. She said that Joseph Quinlan would be going home as good as new in a few weeks. This is a David and Goliath case. We seek the truth for our slingshot. Our sister Betty was with Joseph when he met with Dr. Mann.

She said it was a minor medical procedure. The onus is on the doctor to fully inform what might happen as a result of the procedure. Dr. Mann did not do so. Expert opinion has no bearing on this case. The experts were not on the scene. We were. Expert opinion cannot have an upper hand over direct evidence. We were there for one and one-half years while Joseph was fading away. We were the experts. You don’t need eight years training to seek the truth. A. Gerard Quinlan [ 115 ] Our case started when we were told that Joseph had to get a minor procedure done, that Joseph would be out in a couple of days.

That’s all we were told. At the hospital we were told that there was nothing to worry about, that he should be out of ICU in two or three days. I couldn’t believe what we were hearing. At the family meeting with Dr. Mann she took complete control. She said that there was nothing medically wrong. She said we had a few problems but that Joseph is on the mend. She said that he would make a full recovery. She never said anything bad. It was all rosy. She had a positive answer for everything. She downplayed all the medical risk. Joseph spent another month in the hospital and then had to go to the Miller Centre. Dr.

Mann should have disclosed all the medical complications he could have suffered from. She should have disclosed what happened as a material risk. It was not done. That is why we are here today. [ 116 ] Mr. Gerard Quinlan made reference to the Law of Tort 101 and quoted the eggshell theory. I believe that he was indicating that the “thin skull” rule applied. He made reference to negligent causation and referenced the “but for” test. [ 117 ] But for the actions of Dr. Mann, Joseph Quinlan was misled into proceeding with the medical procedure. But for the fact that Dr.

Mann misled him, Joseph Quinlan would not have consented. Dr. Mann had an obligation to explain every possibility. If Dr. Mann had told him the truth, he would not have undergone the procedure. [ 118 ] Mr. Gerard Quinlan also made reference to the latin maxim res ipsa loquitor. The Plaintiffs’ position is, and always has been, that Joseph Quinlan went into the operating theatre a well man and that afterwards he was a shell of his former self. His condition deteriorated, and continued to deteriorate until he died. The Quinlan family lays the blame for that occurrence at the feet of the Health Authority and Dr.

Mann. [ 119 ] Mr. Gerard Quinlan took the position that Dr. Simone was not in the room when Dr. Mann was obtaining Joseph Quinlan’s consent to the procedure. Dr. Simone never heard what was said. The Plaintiffs disagree with Dr. Simone’s opinion entirely. [ 120 ] Mr. Gerard Quinlan took the position that Joseph Quinlan suffered respiratory failure because of Dr. Mann’s procedure. His brother was never told about respiratory failure or spending time in the ICU. He was supposed to be home. [ 121 ] Dr. Mann gave Joseph Quinlan a glowing report on August 9, 2012.

He was improved to a degree – he was able to shuffle and move. He was the walking wounded. Joseph Quinlan was not recovered to the point he was before Dr. Mann did the procedure. In September he had a total relapse. He couldn’t walk and had to be brought back to the hospital. Instead of getting better, he got worse. [ 122 ] On December 14, 2012 we filed a complaint against Dr. Mann (with the College of Physicians and Surgeons). Ms. Motz said that she reviewed the medical records. There were 2400 pages of medical records. There should have been no medical records. We were totally misled by the staff at St.

Clare’s Mercy Hospital. Joseph Quinlan was not watched 24 hours a day. He fell down a couple of times because there was no one there. The medical records are not accurate. The statements of the experts are not based on facts. We were there. No one else. Their opinion should not count for anything. The only people who should be found credible are the people who were there. Joseph Quinlan was in the hospital for eight months. There were numerous incidents of negligent behaviour by the hospital. Two times he fell down. I never saw anyone sitting by his bed. The food was cold.

When he fell down, he was strapped to his bed for two to three weeks. The family got him on his feet again. At the end of May, 2012 I came to the conclusion that Dr. Mann’s procedure was

negligently performed. At the time he went into the ICU, when I told my sister to get a meeting with Dr. Mann. When he was in the ICU, in May, 2012, I realized that the care being given by the hospital was negligent. Joseph Quinlan was not getting any better. Dr. Mann misled Joseph. The medical staff covered up whatever mistakes Dr. Mann made from day one. One of the largest instances of negligence by the hospital – they told us that Joseph would be two or three days. We could see Joseph was getting worse. There were more medical procedures being done. On May 8th or 9th he was hooked up to life support.

The 2400 pages of medical records proved that something was wrong. The medical staff were making false, misleading statements on an ongoing basis. It was all the nurses and doctors that were saying this for three months. The minor medical procedure was the cause of everything. It was all connected. The treatment he received in the ICU is all related. the defendants argued Health Authority [ 123 ] The Plaintiffs must meet the legal test or standard. They have not overcome the burden to prove their case.

They have no expert evidence to support their claim. [ 124 ] There is no evidence of a breach of the standard of care or of causation. [ 125 ] There is no legislative authority to bring the claim. It does not meet the requirements of the Fatal Accidents Act , R.S.N.L. 1990, c. F-6 . [ 126 ] The statement of claim against the Health Authority is grounded in negligence.

There are five elements that must be proved: • Duty of care; • Standard of care; • A breach of the standard of care; • An injury; and • The injury was caused by a breach of the standard of care. [ 127 ] There is no documentary evidence to support the Plaintiffs’ claim. [ 128 ] The Plaintiffs have had the record for some time. They have been unable to reference dates or times when the Health Authority failed to meet its standard of care. [ 129 ] The evidence of the Plaintiffs did not establish a relevant standard or a breach of that standard, and whether causation existed.

The Plaintiffs could not identify anything to show that the nursing staff had done something wrong. [ 130 ] The lung collapse complained of by the Plaintiffs did not cause the death of Joseph Quinlan. [ 131 ] Mr. Quinlan fell on a couple of occasions. The Plaintiffs did not identify a specific time of the fall to link back to what the standard of surveillance should have been at that time. There is nothing in the record that shows that the nursing staff did something wrong. [ 132 ] On December 5, 2012 – one of the times that Joseph Quinlan fell – the period of surveillance was every 15 minutes.

He was checked upon at 3:30 a.m. and 3:45 a.m. The Plaintiffs did not put forward any evidence to refute that fact. Nor did the Plaintiffs put forward any evidence that that level of surveillance was inappropriate. Furthermore, there is no evidence of causation – nothing to support that the injury from the fall caused Joseph Quinlan’s death. [ 133 ] Ms. Motz testified that she reviewed the entire record. The only documents she reviewed were those of Joseph Quinlan. She was not provided with the Statement of Claim. Ms.

Motz performed an audit and concluded that the nursing care provided met with the standard of care. At each stage: pre-operative, operating room, recovery, SCU and ICU Ms. Motz testified that the nurses met the appropriate standard of care. [ 134 ] The case law indicates that judges lack the ability to decide cases of medical malpractice without the assistance of experts. In Rowe (Guardian ad litem of) v. Sears Canada Inc . , 2005 NLCA 65 , the Newfoundland and Labrador Court of Appeal granted an application for non-suit because the plaintiffs had provided no expert evidence to prove their claim.

The Health Authority contends that expert evidence is essential in medical malpractice actions. [ 135 ] In Young v. Noble , 2017 NLTD(G) 42, my colleague Justice Faour, said at paragraph 42 that while it was theoretically possible to demonstrate a breach without the assistant of expert evidence, he was unable to discern a circumstance where some expert opinion evidence would not be necessary to show whether the standard of care was met or breached. [ 136 ] The Health Authority referenced Stewart v.

Postnikoff , 2014 BCSC 707 , a medical malpractice case in which Justice Walker said, at paragraph 14: The general rule in medical malpractice cases is that the trier of fact is not in a position to assess the standard of care nor able to determine if the defendant doctor has met it without the assistance of expert evidence.

The exception, which does not apply in this case, is that expert evidence is not required where the doctor’s conduct in question involves the taking of proper precautions for something which an ordinary person is competent to determine or is a matter of common sense as opposed to a matter of technical skill or expertise: …

[ 137 ] In this case the Health Authority argued that Joseph Quinlan had a pleural effusion. In the post-operative course the nursing staff had to deal with his condition. How they dealt with it is a matter of technical skill and expertise. [ 138 ] In Branco v. Sunnybrook & Women’s College Health Sciences Centre (2003), 133 A.C.W.S. (3d) 421, 38 C.P.C (5th) 155 (Ont. Sup. Ct.) , the plaintiff had no expert witness but the defendant relied on expert testimony. At paragraph 8 of the judgment Justice Spence stated, in part, as follows: The onus of proof at trial is on the plaintiff.

In an action alleging medical malpractice, a Court may not make findings of either breach of the standard of care or causation except on the basis of expert opinion evidence to support those findings. There is no genuine issue for trial in the absence of an expert medical report establishing a breach of the standard of care and causation. Where a plaintiff fails to obtain any supportive expert reports, the Court will draw an inference that the plaintiff has been unable to obtain any expert opinion supportive of the allegations of negligence: Barber v. Mustard , [1993] O.J. No. 2872 (Ont. Gen.

Div.) at para. 9 ; Ngo v. Toronto Western Hospital , [1994] O.J. No. 250 (Ont. Gen. Div.) at paras. 2 and 3 . [ 139 ] In this case the Health Authority argued that multiple expert reports would have been required to establish the negligence of the Health Authority and Dr. Mann. [ 140 ] In Alechenu v. Solomon , 2022 ONSC 4556 , a medical malpractice action was dismissed because the plaintiff had failed to provide an expert opinion report despite being advised by the court that one was necessary for her to establish her claim.

Counsel for the Health Authority advised that, in this case, the Plaintiffs had been similarly advised by the Court to obtain expert medical evidence. [ 141 ] The Health Authority took the position that there is no expert opinion relating to cause of Joseph Quinlan’s death and, therefore, the Plaintiffs cannot prove their action. [ 142 ] In addition, Ms. Carpenter points to several other factors that the Court ought to consider. [ 143 ] Firstly, the Health Authority took the position that the Plaintiffs have no legal standing to bring this claim. The Plaintiffs are brothers of Joseph Quinlan. Under

section 4 of the Fatal Accidents Act , any action in relation to a fatality must be brought by a spouse, partner, parent or child. At the time of his death Joseph Quinlan did not have a spouse, partner or child. [ 144 ] Secondly, the Health Authority argued that the Plaintiffs have no standing to bring an action under the Survival of Actions Act , R.S.N.L. 1990, c. S-32 , since Letters of Administration on behalf of the estate of Joseph Quinlan had not been issued at the time the Statement of Claim was issued.

Section 2 of the Survival of Actions Act mandates that causes of action shall be for the benefit of the estate, and

section 4 states that only damages resulting in monetary loss are recoverable. There can be no action for general damages. The Health Authority said that Joseph Quinlan was not employed. There is no evidence of monetary loss and, therefore, no damages. On this basis the Plaintiffs’ claim cannot succeed. [ 145 ] The Health Authority took exception with the Plaintiffs’ characterization that Joseph Quinlan was “thrown out of the hospital”. On October 1, 2012 the Quinlan family began the process of applying for long term care on behalf of Joseph Quinlan. The Health Authority said that Mr.

Quinlan was discharged from the hospital when a Level III placement became available for him. [ 146 ] The Plaintiffs could have discovered any of the Health Authority’s staff who provided care to Joseph Quinlan had they chosen to do so. However, the Health Authority is unable to defend against hanging allegations with nothing to substantiate them. [ 147 ] The Plaintiffs’ allegation that hospital staff covered up is a serious one to make against persons who have a duty to provide care. There are no specific details of a cover up, how it came about, who was involved.

There is nothing to hack up the allegation, and it has no basis. [ 148 ] The Health Authority requested that the claim against it be dismissed with costs. Dr. Mann [ 149 ] Dr. Mann has filed a comprehensive brief. Nothing raised in the evidence during trial changes the core of her position. Her brief is predicated on the assumption that the medical records are accurate. The common law on that issue applies – the records should be accepted for the truth of their contents. [ 150 ] The Plaintiffs allege that Dr. Mann’s care and treatment of Joseph Quinlan fell below the standard of care. They further allege that Dr.

Mann failed to obtain informed consent from Joseph Quinlan. [ 151 ] The burden of proof is on the Plaintiffs. There is no reverse onus. Dr. Mann is not obligated to prove anything. [ 152 ] Dr. Mann took no issue with the fact that she had a duty of care towards Joseph Quinlan. The Plaintiffs need to prove that Dr. Mann breached the standard of care, that she failed to obtain Joseph Quinlan’s informed consent and that the breach, or breaches, caused the estate to suffer damages. [ 153 ] Dr.

Mann took the position that the Court must measure a physician’s actions objectively against the reasonable peers of the medical practitioner. So long as a doctor has acted in accordance with a practice accepted by a reasonable body of the doctor’s peers, she is not negligent. [ 154 ] Dr. Mann said that the standard of care for performing a thoracoscopy or thoracotomy can only be determined with expert opinion evidence.

Her counsel referred me to a number of cases in which failure to adduce expert opinion evidence in support of the allegations of negligence resulted in the matter being disposed of summarily. [ 155 ] Mr. Cook also referred me to Young v. Noble . He indicated that the only evidence before the Court concerning the standard of

care is that which was put forward through Dr. Simone – who stated that Dr. Mann met the standard of care both with respect to the procedure she undertook and in her post-operative care of Joseph Quinlan. [ 156 ] Dr. Mann argued that if there was a breach, it must have caused damages. In Kirby v. Raman , 2015 NLCA 48 , the Newfoundland and Labrador Court of Appeal discussed the concept of causation.

Justice Rowe, for the whole court, at paragraph 66, indicated that in medical malpractice cases, “the Plaintiff must prove, on the balance of probabilities, that either: but for the defendant’s actions, the Plaintiff’s injuries would not have occurred; or the Defendant’s actions materially contributed to the Plaintiff’s injuries.” [ 157 ] Dr. Mann argued that a bad outcome does not necessarily mean that causation is proved. Expert evidence is required to make those connections. [ 158 ] Dr.

Mann pointed out that the results of an autopsy, found at page 2471, Volume 3, Consent Book of Documents, are inconsistent with the proposition that Dr. Mann’s actions caused Joseph Quinlan’s death. Dr. Denic, who performed the autopsy, concluded that Joseph Quinlan died as a result of heart failure due to coronary artery disease. It is incumbent upon the Plaintiffs to make the connection between Joseph Quinlan’s cause of death and Dr. Mann’s treatment of him. She argued that they have failed to do do. [ 159 ] The Plaintiffs took no issue with Dr. Denic’s findings.

There is no evidentiary basis to support the proposition that Dr. Mann’s breach caused either Joseph Quinlan’s post-operative problems or his death. [ 160 ] Dr. Mann said, with respect to the issue of consent, that there is a factual dispute as to what was actually discussed and a legal dispute with respect to what Dr. Mann was required to disclose for the purpose of obtaining Joseph Quinlan’s consent. [ 161 ] In Dickson v.

Pinder , 2010 ABQB 269 , the court outlined, at paragraph 68, the following key facts that a medical practitioner must disclose to her patient: 1. the medical practitioner’s diagnosis of the patient’s condition; 2. the prognosis of that condition with and without medical treatment; 3. the nature of the proposed medical treatment; 4. the risks associated with the proposed medical treatment; and 5. the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives. [ 162 ] Dr. Mann argued that the evidence of Dr. Simone aligned with the legal test set out in Dickson v.

Pinder . [ 163 ] Dr. Mann stated that none of A. Gerard Quinlan’s contentions with respect to what was discussed between Dr. Mann, Joseph Quinlan and Betty Quinlan is admissible. It is all hearsay. The only evidence put forward by the Plaintiffs on the question of consent is that of Betty Quinlan – marked as Exhibit EQ-2. [ 164 ] Dr. Mann took the position that the transcript tendered into evidence is not an accurate representation of what might have happened during a cross-examination with the witness present. A number of points would have been made.

For example, whether or not she was present at the March 12, 2012 appointment. Similarly, she would have been cross-examined as to her recall concerning the pre- operative meetings. [ 165 ] At the discovery Betty Quinlan took the position that Dr. Mann did not discuss any risks or potential complications that could occur (page 21 of EQ-2), that no discussion occurred with respect to withdrawal symptoms (page 23 of EQ-2) and that Dr.

Mann did not explain that the procedure would be performed under a general anesthetic (page 18 of EQ-2). [ 166 ] In a written statement that Betty Quinlan had prepared – which is appended to EQ-2, she stated that Dr. Mann explained some of the possible medical issues that may arise if Joseph Quinlan were to proceed to undergo the procedure. She acknowledged in the statement that Dr. Mann knew that Joseph Quinlan drank beer and she said Dr. Mann told him to drink just one beer the day before the procedure was to be done. She indicated that Dr.

Mann advised that if alcohol or smoking withdrawal issues arose, they could and would be treated. [ 167 ] Joseph Quinlan executed a consent form (Page 1190, Volume 2, Consent Book of Documents) in which he agreed that the nature of the procedure had been explained to him and that he understood the risks and benefits. [ 168 ] At pages 380-383, Volume 1, Consent Book of Documents, it was noted by the nurse obtaining the patient history prior to surgery that Joseph Quinlan possessed a good understanding of the reasons for his admission and the procedure he was going to undergo. [ 169 ] Dr.

Mann took issue with the Plaintiffs’ contention that she is obligated to explain every possible outcome. She says that is not consistent with the legal standard. Expert evidence is permissible to outline to the Court what is required to gain an informed consent. Dr. Simone confirmed that it would not be normal to tell patients they may end up in the ICU, rehabilitation or lose physical strength. Dr. Simone testified that he would tell a patient that the procedure would improve their health.

[ 170 ] Alcohol withdrawal is unpredictable. You don’t know how a person will react, which makes it difficult to give estimates of what problems might be encountered. Dr. Mann said that what was suffered by Joseph Quinlan was too remote a risk to be discussed with him. [ 171 ] Dr. Simone testified that a short general statement – that severe consequences, including death, are possible is sufficient. [ 172 ] Dr. Mann argued that the test for informed consent has two stages. In the first stage if she provided the necessary disclosure for the procedure, the inquiry ends.

In the second stage, if she failed to provide the necessary disclosure, then the Plaintiffs must prove that a reasonable person would not have gone ahead with the procedure. [ 173 ] All medical procedures have risks. The procedure being performed on Joseph Quinlan was not unusual or risky. It is a procedure that is regularly performed. Joseph Quinlan had undergone many medical procedures. Dr. Simone testified that Dr. Mann took appropriate steps to diagnose Mr. Quinlan’s shortness of breath. The only option was the medical procedure. Joseph Quinlan was concerned about his shortness of breath and wanted to fix it.

A reasonable person, argues Dr. Mann, would have undergone the procedure. [ 174 ] On the question of damages, Dr. Mann adopted the position of the Health Authority. There is no evidence that any damages were suffered in this action. [ 175 ] In addition to adopting the Health Authority’s position concerning the Fatal Accidents Act and the Survival of Actions Act , Dr. Mann said that the Plaintiffs failed to bring their action within the limitation period set out in sections 5 (b), 13(2) and 14(1) of the Limitations Act , S.N.L. 1995, c. L-16.1 . [ 176 ] A.

Gerard Quinlan indicated that a complaint was filed against Dr. Mann on December 14, 2012. This contained the same facts as the claim against Dr. Mann in the present action. He also indicated that he was aware of Dr. Mann’s negligence when Joseph Quinlan was admitted to the ICU at the end of May, 2012. The Statement of Claim in this matter was not filed until October 23, 2015. [ 177 ] Dr.

Mann seeks her costs of the action. rebuttal John Quinlan [ 178 ] There was a failure to inform. [ 179 ] Betty Quinlan was present and her evidence is that there was a failure to inform. [ 180 ] Expert evidence should not be accepted over direct evidence. [ 181 ] The onus is on the doctor to fully inform and, in this case, she did not do so. A. Gerard Quinlan [ 182 ] We told the truth. Dr. Mann fudged the truth. The medical records prove that the letter of complaint was correct. [ 183 ] Non-disclosure of the risk is a matter for the trier of fact. Professional standards are a matter to be considered.

However, we were there. No one else was there. [ 184 ] Our letter of complaint at that time proves that we were right. issues 1. Does the Plaintiffs have standing pursuant to the Fatal Accidents Act or the Survival of Actions Act ? 2. Is all or part of the Plaintiffs’ claim barred by the Limitations Act ? 3. Have the Plaintiffs established liability against either or both of the Defendants, namely: the requisite standard of care, a breach of that standard and a causal connection between the breach and the subsequent injury? 4.

Have the Plaintiffs established that Joseph Quinlan did not provide informed consent to the surgical procedure performed by the Second Defendant? 5. Are there any compensable damages? analysis [ 185 ] The loss of a loved one is difficult to bear. All counsel expressed their condolences to the Plaintiffs on the loss that they had suffered. I do so now on behalf of the Court. [ 186 ] At the conclusion of the Plaintiffs’ case counsel for the Health Authority was about to make an application for a non-suit.

I did not grant it because I wanted to ensure that there was a full record before the Court for the benefit of any appellate scrutiny. In the event that there is an appeal, the Court of Appeal will have the benefit of all of the evidence from expert witnesses that would otherwise be lacking. 1. Does the Plaintiffs have standing pursuant to the Fatal Accidents Act or the Survival of Actions Act ?

(

a) Fatal Accidents Act [ 187 ] Section 3(1) of the Fatal Accidents Act states as follows: Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default would have entitled the party injured to maintain an action and recover damages, then the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured. [emphasis added] [ 188 ] The Fatal Accidents Act makes a tortfeasor liable for damages caused to a deceased victim.

However, in order to do so it is a pre- condition that the death must have been caused by a wrongful act, neglect or default. If the legal representatives cannot get over this causation hurdle, no action lies. [ 189 ]

Section 4 of the Fatal Accidents Act states as follows: An action under this Act is for the benefit of the spouse, partner, parent and child of the person whose death is caused, and is brought by and in the name of the executor or administrator of the person deceased. [ 190 ] In order to sustain an action on behalf of the estate of deceased person, the action must be for the benefit of the spouse, partner, parent and child of that person. [ 191 ] I heard evidence from A.

Gerard Quinlan that his deceased brother, Joseph Quinlan, had never married, had no children and was not in any relationship at the time of his death. He was predeceased by his parents. I accept that evidence. [ 192 ] This action is barred by the Fatal Accidents Act inasmuch as there are no persons for whose benefit the action may be brought. [ 193 ] It is important to note that the action would be barred even if it could be established that there was negligence on the part of the Defendants and causation could be established. (

b) Survival of Actions Act [ 194 ]

Section 2 of the Survival of Actions Act states as follows: Actions and causes of action (

a) vested in a person who has died; or (

b) existing against a person who has died, shall survive for the benefit of or against his or her estate. [ 195 ]

Section 7 of the Survival of Actions Act requires that there must be a representative of the estate – an executor, administrator or a person appointed by the Court to represent the estate – in whose name the action is to be brought. [ 196 ] In this case the Style of Cause references: BETWEEN: THE ESTATE OF JOSEPH QUINLAN as represented by JOHN QUINLAN and A. GERARD QUINLAN in their own right PLAINTIFFS [ 197 ] The Statement of Claim is signed by A. Gerard Quinlan and John Quinlan.

After the name of each is inserted “Plaintiff’s Brother”. [ 198 ] The Survival of Actions Act does not contemplate claims being brought by siblings on behalf of a deceased person’s estate. They must be appointed by the Court as executors or administrators. [ 199 ] John Quinlan and A. Gerard Quinlan did apply for Letters of Administration and, eventually, on April 3, 2018 were appointed as administrators. It was only at that time that they gained standing to commence a claim on behalf of the estate of their deceased brother. [ 200 ] I find that John Quinlan and A.

Gerard Quinlan had no legal capacity to bring an action against the Defendants in their own capacity representing the estate and without the benefit of Letters of Administration.

[ 201 ] Furthermore,

Section 5 of the Survival of Actions Act provides as follows: Where a cause of action survives under this Act, the period within which an action may be taken shall be determined by the Limitations Act . [ 202 ] This provides a convenient segue into the next issue. 2. Is all or part of the Plaintiffs’ claim barred by the Limitations Act ? [ 203 ]

Section 5 of the Limitations Act states as follows: Following the expiration of 2 years after the date on which the right to do so arose, a person shall not bring an action (

a) for damages in respect of injury to a person or property, including economic loss arising from the injury whether based on contract, tort or statutory duty; (

b) for damages in respect of injury to person or property including economic loss arising from negligent misrepresentation and professional negligence whether based on contract, tort or statutory duty; [ 204 ] The legislation stipulates that an action for a tort based upon professional negligence must be brought within two years after the date on which the right to bring an action arose. Sections 13 and 14 of the Limitations Act ameliorate the rule in

section 5 by providing as follows: Time for cause of action

(1) Except as otherwise provided in this Act, the common law rules respecting the time at which a cause of action arises continue to apply.

(2) Where in an action for damages (

a) the claim is for the breach of a duty of care founded in contract, tort or statutory duty; and (

b) the damages claimed are in respect of personal injury or property damage including (

i) economic loss, (ii) negligent misrepresentation, or (iii) professional negligence that cause of action is considered to arise and the limitation period commences to run on the date on which damage first occurs. Postponement of running of time

(1) Notwithstanding

section 13, in an action (

a) for personal injury;

(

b) property damage; (

c) professional negligence; (

d) for relief from the consequences of a mistake; (

e) under the Fatal Accidents Act ; and (

f) for a non-fraudulent breach of trust, the limitation period fixed by this Act does not begin to run against a person until he or she knows or, considering all circumstances of the matter, ought to know that he or she has a cause of action.

(2) The burden of proving that the running of the limitation period has been postponed or suspended under this

section is on the person claiming the benefit of that postponement or suspension. [ 205 ] A. Gerard Quinlan filed a complaint against Dr. Mann on December 14, 2012 to the College of Physicians and Surgeons. He testified that it was mistakenly date stamped by the College of Physicians and Surgeons on February 14, 2013. He said that the hospital discharged his brother two weeks later – say February 28, 2013. [ 206 ] By February 28, 2013 the Quinlan family knew, or ought to have known, that Joseph Quinlan had a cause of action.

Under the Limitations Act the action should have been commenced on or before February 28, 2015. It was not commenced until October 23, 2015 – five days before the second anniversary of Joseph Quinlan’s death. [ 207 ] I can surmise that the Quinlan family thought that they had two years following their brother’s passing to commence their action against the Health Authority and Dr. Mann. He alludes to this in a “Disclaimer to be included with this legal document” – which is Appended to the Statement of Claim (being the legal document referred to.

In that disclaimer he states: It may not be prepared correctly but as long as the relevant facts can be read, it will have to do. It is repetitious because there was no time to proof read the document to the perfection that it needed to be in. However, it was more important to have something included than left out. [ 208 ] I find that the Statement of Claim was issued outside of the time limited by the Limitations Act . The entire claim against both Defendants is, therefore, statute barred. 3.

Have the Plaintiffs established liability against either or both of the Defendants, namely: the requisite standard of care, a breach of that standard and a causal connection between the breach and the subsequent injury? [ 209 ] The Plaintiffs led no expert evidence establishing the standard of care, a breach of that standard or evidence that the breach resulted in the injury, and eventual death, of Joseph Quinlan. [ 210 ] This was despite bein

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