COURTNEY LEE LORENCZ, TRACY LORENCZ v. JAMES ALBERT LORENCZ, a minor suing by his litigation guardian, 2022 SKKB 258

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 258 Date: 20 22 11 25 Docket: QBG-RG-00125-2007 Judicial Centre: Regina BETWEEN: COURTNEY LEE LORENCZ, TRACY LORENCZ and JAMES ALBERT LORENCZ, a minor suing by his litigation guardian PLAINTIFFS - and - SNEHA PRABHA TALUKDAR and ROBERT BOGDEN BABCHUK DEFENDANTS Counsel: Reginald A. Watson, K.C. and Ryan D. Kitzul for the plaintiffs David E. Thera, K.C. and Richika J. Bodani for the defendants JUDGMENT MEGAW J. November 25, 202 2 INTRODUCTION [ 1 ] On February 5, 2005 James Lorencz died from complications following a heart attack he suffered on January 23, 2005.

It has been determined that he suffered from undiagnosed cardiac disease. In the months preceding his heart attack he had attended on both defendants, Dr. Babchuk and Dr. Talukdar. His surviving family brings this action pursuant to The Fatal Accidents Act , RSS 1978, c F-11 , seeking damages as a result of their allegations that the two physicians were negligent in their treatment of Mr. Lorencz and that negligence caused his death. [ 2 ] The defendant physicians deny they breached the standard of care in their treatment of Mr. Lorencz. In any event, they deny that their treatment caused the death of Mr.

Lorencz. [ 3 ] The parties have agreed that each of the defendants owed a duty of care to Mr. Lorencz in their capacity as his treating physicians. They have further agreed that the damages suffered by the plaintiffs as a result of Mr. Lorencz’s death are in the total amount of $495,643.69, inclusive of pre-judgment interest. [ 4 ] I have determined that Dr. Babchuk did not breach the standard of care owed to Mr. Lorencz and was therefore not negligent in his treatment of this individual. I have determined that Dr. Talukdar did breach the standard of care owed to Mr.

Lorencz and was therefore negligent in her treatment of this individual. However, I have further determined that the plaintiffs have failed to establish on a balance of probabilities that Dr. Talukdar’s negligence caused the death of Mr. Lorencz in these circumstances. In the result, I have determined the action must be dismissed as against both defendants. [ 5 ] My reasons follow. BACKGROUND [ 6 ] The plaintiffs in this action are the family of the late James Lorencz. Tracy Lorencz is his wife, Courtney Lee Lorencz is his daughter, and James Albert Lorencz is his son.

James Lorencz, senior, passed away on February 5, 2005 as a result of having suffered a heart attack on Janaury 23, 2005. The heart attack stopped the flow of blood to Mr. Lorencz’s brain and other vital organs with the result he would have been significantly cognitively impaired were he to survive. As well, his internal organs were significantly damaged. His family made the incredibly difficult decision to stop life support efforts.

[ 7 ] Mr. Lorencz was 49 years of age when he passed away. As a result of the examinations completed at the time he suffered his heart attack, it was learned he was suffering from cardiac disease. It was further determined that this cardiac disease was long standing, and he would have been suffering from it at the time he attended on each of the defendant physicians. [ 8 ] Mr. Lorencz was not a regular attender at the doctor’s office. In fact, he relied on his wife’s physician to also see him when needed. His wife’s physician was Dr. Talukdar. The evidence discloses that Dr. Talukdar attended on Mr.

Lorencz one time prior to the attendances which give rise to the present action. That prior attendance was in excess of four years prior to the incidences in this litigation and was on March 16, 2000. [ 9 ] It is necessary to relay Mr. Lorencz’s physical condition as it forms part of the background in determining what information was available to the physicians in this case. The evidence appears to disclose that Mr. Lorencz was what might be considered obese by medical standards. He smoked a pack of cigarettes a day and had done so for many years.

He had a family history of cardiac disease and high cholesterol. [ 10 ] On September 13, 2004 Mr. Lorencz attended at the Broadway Medical Clinic. He was seen by Dr. Babchuk who was completing a locum for Dr. Talukdar as the latter was on vacation at that time. According to the medical chart created by Dr. Babchuk at the time, he learned that Mr. Lorencz’s sister had passed away a few weeks prior to the visit and Mr. Lorencz could not relax, was agitated, had sweaty palms, night sweats, and muscle twitching. Dr. Babchuk concluded his note with the word “etc.” Dr.

Babchuk did not complete any form of physical examination or engage in any additional questioning of Mr. Lorencz. [ 11 ] On the basis of what was relayed to him, Dr. Babchuk diagnosed Mr. Lorencz as suffering from an anxiety condition. He prescribed the anti-anxiety medication Ativan. He indicated to Mr. Lorencz that he should return to see Dr. Talukdar in a few weeks. There is no indication anything further was done or discussed. [ 12 ] Mr. Lorencz’s wife, Tracy, testified that she questioned her husband after the medical visit on the reason he attended at the doctor’s office.

She testified at the trial that her husband told her that in addition to the symptoms outlined by Dr. Babchuk, he was also suffering from upper left arm pain. She indicated her husband provided this information to her after he had been to see Dr. Babchuk. [ 13 ] Mr. Lorencz completed the prescription for Ativan. When it was finished, he sought to refill the prescription over the phone. Dr. Talukdar was contacted at her office but she declined to renew the prescription over the phone. It appears that contact was made by Tracy Lorencz. Rather than authorizing a further prescription over the phone, Dr.

Talukdar arranged for Mr. Lorencz to attend to her office on November 29, 2004. The physician’s concern was that Ativan was a highly addictive medication and, accordingly, Mr. Lorencz should be slowly taken off the drug and it should be replaced with a different medication, being Xanax. It appears the purpose of the appointment was to have this medication discussion with Mr. Lorencz. [ 14 ] Mr. and Mrs. Lorencz attended together to Dr. Talukdar’s clinic on November 29, 2004. He was seen by the physician at the end of the workday while his wife remained in the waiting room during his attendance. Dr.

Talukdar completed the medical chart of her attendance with Mr. Lorencz. She indicated as follows on the chart: Nov 29 2004 Still pain + anxiety attack Taking Ativan 1 mg tid given by Dr. Babhuk Seems worry (??), all anxiety/panic attack Brother has depression Feels Depressed Try Ativan … Advised dependency on Ativan [ 15 ] The wording is taken from Dr. Talukdar’s handwriting and therefore may not be completely accurate. The first sentence after that date, however, appears to be accurate according to Dr.

Talukdar and the positions taken by the parties in the action. [ 16 ] She did not make any further inquiries of him and she did not perform any type of physical examination. There was no evidence that she engaged in any further questioning of him during this attendance. [ 17 ] Dr. Talukdar accepted the diagnosis completed by Dr. Babchuk, that Mr. Lorencz was suffering from an anxiety condition. She supplemented that diagnosis by determining he was also suffering from depression. As indicated, she changed his medication to one which was, presumably, not as addictive as Ativan.

She also provided a Burns Anxiety and Depression [Burns] checklist to have him complete and return it to her. He was to complete these forms at his home and then return them to the doctor for review. [ 18 ] Dr. Talukdar then saw Mr. Lorencz for the final time on December 22, 2004. It is unclear how this appointment was made, but presumably had been arranged at the time of the previous visit. At that time, he attended on her to return the completed Burns evaluation sheets. Dr. Talukdar tallied the numbers for the test from the responses provided.

The final scoring then allowed her to conclude he was suffering from both severe anxiety and moderate depression. She also advised him to return for a follow up and

complete physical examination. The evidence indicates that the physical could not be booked for perhaps in excess of two months. There is no evidence that Mr. Lorencz completed that booking or engaged in any follow up, or took any steps in that regard. [ 19 ] On January 21, 2005 Mr. Lorencz had to complete some strenuous physical activity in the form of pushing a car out of the snow, and also shovelling snow and operating the snow blower around his home. According to his wife, he exhibited signs of confusion following the snow blowing and shovelling. He completed his regular daily activities the following day.

In the early morning of the day following, he suffered what is described as a massive heart attack. [ 20 ] Mr. Lorencz was taken to the hospital where the medical staff were able to revive him and revascularize the blood flow to his heart. However, the lack of oxygen he experienced caused significant brain damage and organ failure. He was initially placed on life support. On February 4, 2005 his family determined to remove him from life support and, sadly, he passed away the next day. [ 21 ] The trial of the action heard evidence on behalf of the plaintiffs from Tracy Lorencz, Dr. De Klerk, and Dr. Iwanochko. Dr.

De Klerk provided expert opinion evidence on the standard of care with respect to family practice. Dr. Iwanochko provided expert opinion evidence on cardiology and specifically whether Mr. Lorencz’s death could have been prevented prior to the heart attack in January 2005. [ 22 ] The defendants tendered the evidence of Dr. Chernoff and Dr. Sharma. Dr. Chernoff provided expert opinion evidence regarding the standard of care for family physicians. Dr. Sharma provided expert opinion evidence on cardiology, diagnosing cardiac disease and whether the death could have been prevented by appropriate medical management.

ISSUES [ 23 ] The background provided requires the following issues to be addressed in this action: 1. What information was relayed to Dr. Babchuk at the time he attended upon Mr. Lorencz? 2. What information was relayed to Dr. Talukdar at the time she attended upon Mr. Lorencz? 3. Did the defendants, or either of them, breach the standard of care expected of a reasonably prudent family physician? 4. Did the breach of the standard of care cause the death of Mr. Lorencz? DECISION 1. What information was relayed to Dr. Babchuk at the time he attended upon Mr. Lorencz? [ 24 ] The plaintiffs assert that Dr.

Babchuk’s notes are incomplete and do not contain everything that was relayed to him by Mr. Lorencz during the attendance on September 13, 2004. The plaintiffs submit the circumstances lead to an inference that Mr. Lorencz must have told Dr. Babchuk he was experiencing upper left arm pain and the latter neglected to record this information on the medical chart. [ 25 ] The preliminary issue, therefore, is to determine what Dr. Babchuk’s available information was and whether the plaintiffs have established on a balance of probabilities that it is a reasonable inference to determine Mr. Lorencz advised Dr.

Babchuk he was experiencing upper left arm pain. The plaintiffs seek to have this inference made as a result of the trial testimony of Tracy Lorencz regarding what she testified her husband told her following his attendance on Dr. Babchuk. They seek to have Mr. Lorencz’s alleged comments to his wife admitted into evidence, even though they are hearsay, on the basis that they are part of the res gestae and, as well, pursuant to the principled approach to the receipt of hearsay evidence. And they seek to have the evidence admitted via the circuitous route through Mrs.

Lorencz. [ 26 ] The plaintiffs clarify in their response brief that they do not seek to use the alleged hearsay evidence of Mr. Lorencz to Mrs. Lorencz to assert that Mr. Lorencz, in fact, told Dr. Babchuk about the pain. Rather, the plaintiffs assert that it should be reasonably concluded he gave this information to his wife. Based on that determination, it is then reasonable to conclude that Mr. Lorencz would have relayed this same information to Dr. Babchuk during the medical appointment.

It is important to understand exactly what use the plaintiffs seek to make of this evidence and how the court is to get to its admission. [ 27 ] There are three steps that the plaintiffs seek to have the court proceed through to receive the alleged statement of Mr. Lorencz into evidence. [ 28 ] Firstly, the plaintiffs assert the testimony of Mrs. Lorencz on this issue at trial is accurate and ought to be, on a balance of probabilities, accepted by the court. This requires the court to consider Mrs.

Lorencz’s credibility and reliability both generally and specifically to this issue. [ 29 ] Secondly, the plaintiffs seek to have this hearsay statement of Mr. Lorencz to Mrs. Lorencz admitted into evidence either pursuant to a recognized exception to the hearsay rule, or pursuant to the principled approach to the receipt of hearsay evidence. If they were successful at these first two stages, it would be established for the trier of fact that Mr.

Lorencz told his wife he had arm pain after his appointment with the doctor. [ 30 ] Then the final step the plaintiffs seek to have the court take is to draw an inference that because Mr. Lorencz told his wife this information, he must also have told Dr. Babchuk this information. Again, to be clear, the plaintiffs are not asserting that Mr. Lorencz told his wife that he had relayed this particular symptom to Dr. Babchuk at the time of the appointment. [ 31 ] On the first step, the plaintiffs assert that Mrs. Lorencz’s evidence of this discussion with her husband on this

issue is accurate and should be accepted as having occurred as it was relayed by her on the witness stand. That is to say that Mrs.Lorencz’s recounting of the conversation should be accepted to be accurate, on a balance of probabilities. [32] As a result of all of the foregoing, the hearsay statement sought to be introduced does not directly implicate thedefendant, Dr. Babchuk. Rather, if it is found to have been said, it is sought to indirectly implicate this defendant. The plaintiffs are notsaying Mr. Lorencz said something directly to Dr. Babchuk.

At its core, the plaintiffs are saying, well if he told his wife, surely he musthave told the doctor as well. They suggest this is not only a reasonable inference to make, but perhaps the only available inference inthese circumstances. [33] In

summary, the plaintiffs must establish, on a balance of probabilities, that the words relied upon were said. Ifthe words were said, they must establish that they are admissible pursuant to the evidentiary rules regarding hearsay evidence. Finally,they must establish it is a reasonable inference that the words, if said, were also said to Dr. Babchuk at the time of the deceased’sattendance upon him. [34] Having identified how the hearsay statement is sought to be used, I determine the first issue involves theexamination of the reliability of the narrator of the information, that being Mrs. Lorencz.

The concern in this regard was discussed, albeitin a different context, in R v Blackman, 2008 SCC 37, [2008] 2 SCR 298. There, the Crown sought to introduce statements made by a sonto his mother in the months before he passed away. The mother, Mrs. Freckleton, had been cross-examined on the evidence which shesought to proffer. [35] In reviewing the threshold question of the reliability of the out-of-court declarations of the deceased, thedifficulties with the mother’s recounting of this evidence was discussed: [47] One of the principal submissions advanced by Mr.

Blackman in arguing against the admissibility of the statements at trial restedon the difficulties with Ms. Freckleton’s evidence. It is apparent from a review of the evidence that there were inconsistencies inMs. Freckleton’s evidence. There was also evidence that Ms. Freckleton had received information from others about the stabbingincident. The trial judge held that these factors had “nothing to do with the admission through her of the deceased’s allegeddeclarations” because she could be cross-examined on the defects in her evidence.

The majority of the Court of Appeal was of the viewthat “[t]his holding is unimpeachable” (para. 72). Cronk J.A. referred to R. v. Humaid (2006), (ON CA), 208 C.C.C.(3d) 43 (Ont. C.A.), at paras. 50-51, in support of the proposition that the quality of the mother’s evidence was not relevant to thresholdreliability. Simmons J.A. was of the view that the trial judge placed too much emphasis on the fact that Ms.

Freckleton was available forcross-examination (para. 109). [48] In Humaid, it was argued that the recipient’s credibility and the reliability of her narration of the out-of-court statementsmilitated against the admission of the hearsay evidence. Doherty J.A., in writing for the court at para. 51, rejected this argument on twobases. First, these factors “were not circumstances surrounding the making of those statements”.

Second, “[t]hreshold reliability standsas a substitute for cross-examination of the declarant not the narrator of the out-of-court statement.” Since the recipient of the statementwould have testified at trial, her credibility and reliability as they related to the out-of-court statements could be fully tested on cross-examination at trial. [36] The end result of this discussion was a recognition that, aside from the issue of hearsay, the trier of fact mustdetermine the accuracy of the viva voce testimony proffered by the witness at trial.

In this case that means the accuracy of Mrs.Lorencz’s testimony on this issue must be determined on the basis of the entirety of her evidence given at trial. [37] While the admissibility of the hearsay statement and the veracity or reliability of the narrator are two separateand distinct issues, they both require determination at the trial of the action. In the criminal context, the hearsay aspect may well be thesubject of a separate voir dire hearing prior to the trial proper. But the issue of the weight to be given to the narrator’s recounting is afront-and-centre issue at the trial.

In this regard, see generally the discussion in R v Humaid (2006), (ON CA), 208CCC (3d) 43 (Ont CA). [38] On the basis of all of the foregoing, and in view of the nature of the testimony given, I have determined that theinitial inquiry in this case must be whether Mrs. Lorencz has accurately recalled any discussion which she had with her husbandfollowing his attendance on Dr. Babchuk. That is to say, is she properly relaying the conversation which was had.

To determine thisissue, I must focus on both her credibility and her reliability. [39] In examining these issues, I must keep in mind that credibility is concerned with a witness’s honesty andveracity while reliability is concerned with a determination of the accuracy of a witness’s testimony. In R v Slatter, 2019 ONCA 807,382 CCC (3d) 245, the following description is of assistance in applying these two concepts:

(3) Reliability [117] Although they share certain attributes, credibility and reliability are different concepts. Credibility deals with a witness’ veracityor truthfulness, while reliability addresses the accuracy of a witness' testimony. Accuracy engages consideration of a witness' ability toaccurately observe, recall and recount: R. v. C. (H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. [118] Like credibility, reliability is a factual determination. It is within the province of the trial judge. It is the trial judge who has theopportunity to hear and observe all of the witnesses.

This reality anchors the principle that when reviewing reasons for sufficiency, anappellate court should start from a stance of deference towards a trial judge's perception of the facts [R. v. M. (R.E.), at para. 56]: The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or tothe conclusion of guilt or innocence.

Nor should error of law be found because the trial judge has failed to reconcile every frailty in theevidence or allude to every relevant principle of law. [119] In assessing the reliability of a witness’ testimony, each case must be considered on its own facts: R. v. A. (S.) (1992), 1992

7517 (ON CA), 11 O.R. (3d) 16, [1992] (Ont C.A.), at p. 23. In that case, without requiring that each factor be addressed, thiscourt listed a number of non-exhaustive factors that may be considered in appraising the reliability of a child complainant's statement in asexual assault case.

This included medical evidence, the age and immaturity of the child, the language used in the statement, the relativespontaneity of the statement, the passage of time between the statement and the alleged assaults and the absence of any details in thestatement referable to the time, place or circumstances in which the assault occurred: at pp. 22-23 O.R. Passage of time is another factorthat may be relevant to the assessment of reliability: R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, (Ont C.A.)at p. 526. [40] While the above referenced passage was given in the context of a criminal proceeding, the considerations for thecourt in this civil proceeding are identical. [41] In assessing the issues of reliability and credibility, authorities have developed many tools to assist the trier offact in considering the evidence proffered. Amongst those tools is a consideration of what the witness testified to on the witness standcompared to what the witness might have said on a previous occasion.

In R v M.G. (1994), (ON CA), 93 CCC (3d)347 (Ont CA), the court stated: [27] Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between whatthe witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minormatters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This isparticularly true in cases of young persons.

But where the inconsistency involves a material matter about which an honest witness isunlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma oftrying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. [42] The comments in the above passage focus on the issue of credibility. However, the comments are equallyapplicable to a determination of the reliability of the witness in recounting her evidence.

The point is that the court should examine andconsider what was said by the witness on previous occasion(

s) and thereby determine what to make of the evidence being given at thetime of trial. [43] In considering Mrs. Lorencz’s evidence, I state that I am not concerned here with determining whether she iscredible with respect to the evidence which she provided. I determine that she was a credible witness. This witness provided her evidencein as forthright a manner as might be expected given the difficult situation in which she found herself. There is no indication that she wasdeliberately attempting to give evidence that was not truthful or which she did not believe to be the truth as recalled by her.

I accept she isa credible witness and she was doing her best to recount truthfully that to which she was testifying. [44] However, with specific aspects of her testimony, I am compelled to determine that her evidence is not reliableand, on a balance of probabilities, cannot be accepted by the court in this matter. I explain as follows. [45] Mrs. Lorencz testified at trial that she and her husband had a conversation following his attendance on Dr.Babchuk.

In her examination-in-chief, she testified that her husband told her he was having sweats, nausea, and his arm was hurting.However, under cross-examination it was disclosed that the suggestion of arm pain had not been part of prior disclosures made by Mrs.Lorencz at times which were more immediately connected to the time of the alleged recounting. The cross-examination focused on acomplaint filed by Mrs. Lorencz with the College of Physicians and Surgeons some months after Mr.

Lorencz’s death and on a prioraffidavit sworn by her, in these proceedings, years after the action had been commenced. [46] Following the death of her husband, Mrs. Lorencz had filed a complaint with the College of Physicians andSurgeons on November 5, 2005. It was apparent from that material that she was seeking an explanation for what had happened to herhusband despite the fact that he had attended on family physicians prior to experiencing the heart attack which ultimately took his life.Mrs.

Lorencz was looking to have an inquiry completed really to determine why her husband’s health condition had not been uncoveredor diagnosed by those physicians who had recently seen him. In that complaint document she recounted what her husband had told her,and she stated: After his appointment, Jim explained to me he had been feeling nauseated and that he was sweating so badly in the night that it waswaking him up … … Jim told me he reported being nauseated. [47] There is no reference in that complaint form to Mr. Lorencz relaying symptoms of arm pain to her.

There was noreference to pain by her as she expressed her concerns over her husband’s medical treatment. [48] Then, some years after this action had been commenced, she provided an affidavit in these proceedings swornJune 3, 2016. She was referred to that affidavit in cross-examination. As relayed by her in that affidavit, she mentioned her husbandhaving relayed only the symptoms of nausea and sweating. There is no reference in that affidavit to arm pain, or pain of any sort. [49] Finally, the examination for discovery transcript of Dr.

Babchuk does not record that he was asked whether Mr.Lorencz had reported arm pain, or pain of any sort, to him. As a consequence, this defendant was never confronted with a direct assertionthat he had been told about arm pain or pain by the patient. Dr. Babchuk was given no opportunity to respond to this very significantallegation. [50] As indicated, the court has no difficulty determining that Mrs. Lorencz was credible in relaying her evidencebefore the court. There is nothing in the manner of giving that evidence or the responses provided that suggest the court should entertaina challenge to that credibility.

She was a witness to a horrendous event in the passing of her husband and it was obviously, andunderstandably, a significantly emotional occurrence that has impacted her for life. She gave her evidence in an expected manner andcredibly relayed answers to that which she was asked.

[ 51 ] I am unable to determine that her evidence is reliable on the issue of having relayed that pain was being experienced. I arrive at that conclusion based on the matters disclosed during the cross-examination of her on this point. In these circumstances, the issue of pain and whether it had been relayed to the physician were quite clearly, throughout, of significant importance. The totality of the symptoms relayed by Mr. Lorencz to his physician was of primary importance in determining whether anything ought to be done by the professional regulating body, the College of Physicians and Surgeons.

It was also of primary importance in determining whether either of the physicians involved in Mr. Lorencz’s care would be determined to have been negligent. And, Mrs. Lorencz’s concern that something had been missed would have, and should have, compelled her to ensure she relayed everything which had been told to her by her husband in this regard. [ 52 ] By saying this, I am not identifying that Mrs. Lorencz would have necessarily understood the legal significance of a reference to pain on the outcome of either of the proceedings identified in the preceding paragraph.

However, such a reference would have been of significant importance to her in advancing either the complaint or the legal action. That significance is highlighted in this trial because the plaintiffs seek to have the court conclude that Dr. Babchuk was told of the pain on the basis of a conversation had between a husband and wife. [ 53 ] Rather, had these words been said, I determine it is reasonable to conclude that they would have been relayed by Mrs. Lorencz at the outset of these proceedings and, in particular, in the complaint filed just a few months after Mr. Lorencz’s passing.

This is the time frame when all of what had occurred would be expected to be uppermost in the minds of those considering the events that had occurred. She wanted to fully relay all of the available information in her possession or knowledge. The issue of pain and its importance would have been obvious to all. [ 54 ] Accordingly, Mrs. Lorencz’s present recounting of this information is not, on a balance of probabilities, reliable in these circumstances. In all of these circumstances, I determine that I am unable to accept the assertion that arm pain was relayed to Mrs.

Lorencz by her husband at the time they were discussing what had occurred at the appointment of Dr. Babchuk. The relaying of pain has become of prime importance in this litigation. It was not referred to at a time contemporaneous to the events with the physician. It was not referred to in a sworn document filed in these proceedings, and it was not put to Dr. Babchuk in his questioning. For all of these reasons, I determine I cannot, on a balance of probabilities, accept Mrs.

Lorencz’s present assertions of what she was told by her husband. [ 55 ] The evidence proffered in this case illustrates that a patient referring to pain during a medical attendance is something which causes family physicians to listen and record. There is no indication in the evidence that Dr. Babchuk would not have similarly dealt with such a recounting.

That is not to determine the doctor would necessarily have done anything differently in his attendance, but it is to say the evidence satisfies me on a balance of probabilities that a recounting of pain is something which would be expected to have been identified in the chart. Whether or not it was dealt with will be addressed further in these reasons with respect to Dr. Talukdar. [ 56 ] The foregoing paragraph, together with the fact that nothing was put to Dr. Babchuk to allow his response to the issue of pain having been identified to him, reinforces the decision that this evidence by Mrs.

Lorencz, at this stage of the proceedings, is not reliable and cannot be accepted as evidence in these proceedings. [ 57 ] In light of my determination regarding the reliability of this evidence, I decline to consider whether it would have been admissible pursuant to either a recognized exception to the rules regarding hearsay evidence, or pursuant to the principled exception to the hearsay rules. Because of the finding regarding whether it was said to Mrs. Lorencz, it is not necessary to consider this evidentiary issue. [ 58 ] In the result, I determine that what was relayed to Dr.

Babchuk was that which is set forth in the medical chart regarding Mr. Lorencz’s attendance upon him. I reproduce the words of that medical chart note: Sept 13 2004 Sister passed away 3 weeks ago, since then Can’t relax, agitated, sweaty palms, cold sweats & muscle twitching etc. Dx. Anxiety state. Rx Ativan 0/1 mgm Bios + at [ 59 ] The plaintiffs also seek to assert that the inclusion by Dr. Babchuk of the abbreviation “etc” at the end of his recording of notes, should be read in a manner adverse to him and should include perhaps this reference to pain.

I decline to read the word “etc” to mean anything more than symptoms similar to those relayed in the entirety of the note. [ 60 ] Again, the reference to pain is accepted by all of the professional witnesses to be something of note and something that a physician takes notice of. To conclude that this reference should now be taken to mean a reference to “pain” would be unwarranted speculation on the part of the court. As will be discussed in more depth further in these reasons, I must be mindful that hindsight does not guide the appropriate

interpretation to be applied to these medical entries. 2. What information was relayed to Dr. Talukdar at the time she attended upon Mr. Lorencz? [ 61 ] Dr. Talukdar saw Mr. Lorencz on two occasions. On the first occasion, she specifically recorded the words:

“still pain”. While not entirely clear from her evidence at trial, it appears she was attempting to assert the guess that the “pain” referred towas perhaps a continuation of the patient’s complaint from some years earlier of experiencing epigastric issues. She was adamant in hertestimony that this reference was not an assertion of chest pain as that would have definitely caused her to make further inquiries of thepatient. She ended that first visit with Mr. Lorencz by confirming the previous diagnosis by Dr.

Babchuk of an anxiety-related conditionand alerted the patient to the addictive concerns with the medication which had been originally prescribed. [62] Dr. Talukdar also provided to Mr. Lorencz two documents identified as the Burns index forms to be completedby him and returned to her. The information in those forms provided additional information regarding Mr. Lorencz’s health condition,both physical and mental. In particular, they provided further information concerning the issue of pain and where it was located. Theyprovided some further history of the patient. [63] The evidence is that Dr.

Talukdar did not read the entries together with the responses that were provided.Rather, she simply tallied up the score from the responses given to assess the patient’s level of anxiety or depression. It might be moreappropriate to observe that the specific responses provided by Mr. Lorencz on the two pages of the Burns index forms were notconsidered in any way by Dr. Talukdar when she took possession of these documents, beyond their impact on the mental health issues asevidenced by the score achieved. [64] The comments made in the previous

section regarding an identification of pain in a patient apply equally here.Dr. Talukdar’s notes quite clearly confirm that she was directly advised by the patient, Mr. Lorencz, that he told her he was stillexperiencing pain. While she is adamant that he did not refer to this as chest pain and she was adamant there was no indication of therebeing any indication of chest pain, the fact remains that he identified to the doctor that he was experiencing pain. Where that pain waslocated is not indicated in the chart note. [65] The material indicates further that Dr.

Talukdar was indirectly advised by the patient through the Burns indexforms that there was pain being experienced and there were other conditions evidencing potential cardiac concerns. 3. Did the defendants, or either of them, breach the standard of care expected of a reasonably prudent family physician? (

i) What is the standard of care? [66] The parties filed complete briefs following the trial of the action. They have outlined the standard of care to which a doctor must achieve. In the recent decision of Hander v Kumar, 2022 SKCA 33, 467 DLR (4th) 726 [Hander], Kalmakoff J.A.set forth the standard of care owed by a doctor: [39] The standard of care that applies when a claim in negligence is made against a physician is well-known: it is the conductexpected of a prudent and diligent doctor in the same circumstances.

In the case of a specialist, such as a neurosurgeon, “the doctor’sbehaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge,competence and skill of professionals in Canada in that field” (Ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 atpara 33 [Ter Neuzen]; see also Wilson v Swanson, (SCC), [1956] SCR 804 at 817 [Wilson]).

Meeting this standard doesnot require perfection on the part of the physician, but rather the care and skill ordinarily used by reputable specialists practicing in thesame field in similar circumstances (Quintal v Datta and Skochylas (1988, (SK CA), 68 Sask R 104 at para 72 (CA)).A mere error in judgment does not fall below the requisite standard nor, standing alone, is an unfavourable outcome sufficient to provenegligence (Wilson at 812 and 815; see also Carlsen v Sutherland, 2006 BCCA 214 at para 12, 225 BCAC 150).

The physician’sconduct is to be judged in light of the knowledge they ought to have reasonably possessed at the time of the alleged negligence, and notthrough the critical lens of hindsight or on the basis of information learned after the fact (Ter Neuzen at para 34). [67] When, as here, alternative views have been presented on whether the standard of care has been met through thetreatment of the patient, the comments in Maynard v West Midlands Regional Health Authority, [1985] 1 All ER 635 apply, at 639: My Lords, even before considering the reasons given by the majority of the Court of Appeal for reversing the findings of negligence, Ihave to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished isnot sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions,truthfully expressed, honestly held, were not preferred.

If this was the real reason for the judge’s finding, he erred in law even thoughelsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established bypreferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriatespeciality, if he be a specialist) is necessary. [68] In St-Jean v Mercier, 2002 SCC 15, [2002] 1 SCR 491, the court emphasized that it is not the ultimate outcomefor the patient which directs the inquiry of whether the standard of care has been met.

Rather, the question to be asked is whether thephysician achieved the standard as would be applied by other professionals in those circumstances: 53 The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendantbehaved as would a reasonably prudent and diligent fellow professional in the same circumstances (J.-L. Baudouin and P.Deslauriers, La responsabilité civile (5th ed. 1998), at p. 850).

To ask, as the principal question in the general inquiry, whether a specificpositive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked iswhether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the samecircumstances. The erroneous approach runs the risk of focussing on the result rather than the means.

Professionals have an obligationof means, not an obligation of result. [Emphasis in original] [69] The extent of the family physicians’ obligation to obtain information to assist in making a diagnosis has beendiscussed on a number of occasions by the courts. The following is an accurate description of the test to be applied (Wilson v Swanson,(SCC), [1956] SCR 804 (WL):

22 An error in judgment has long been distinguished from

an act of unskilfulness or carelessness or due to lack of knowledge.Although universally-accepted procedures must be observed, they furnish little or no assistance in resolving such a predicament as facedthe surgeon here. In such a situation a decision must be made without delay based on limited known and unknown factors; and thehonest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation. 23 In Rann v. Twitchell [(1900), 82 Vt. 79 at 84], the following language is used: — He is not to be judged by the result, nor is he to be held liable for an error of judgment.

His negligence is to be determined by referenceto the pertinent facts existing at the time of his examination and treatment, of which he knew, or in the exercise of due care, should haveknown. It may consist in a failure to apply the proper remedy upon a correct deter​mination of existing physical conditions, or it mayprecede that and result from a failure properly to inform himself of these conditions.

If the latter, then it must appear that he had areasonable opportunity for examination and that the true physical conditions were so apparent that they could have been ascertained bythe exercise of the required degree of 'care and skill. For, if a determination of these physical facts resolves itself into a question ofjudgment merely, he cannot be held liable for his error. This was approved in Green v. Stone [(1934), 119, Conn. 300 at 304. In DuBois v.

Decker, (1891), 130 N.Y. 325 at 330] a qualificationis introduced: — We are aware that he claimed to have waited ten days before operating, for the purpose of seeing whether the foot could not be saved,and that a physician and surgeon will not be held liable for mere errors in judgment. But his judgment must be founded upon hisintelligence.

He engages to bring to the treatment of his patient care, skill and knowledge, and he should have known the probableconsequences that would follow from the crushing of the bones and tissues of the foot. [70] The plaintiffs identify the following description as being particularly applicable here (Crick v Mohan (1993),(AB KB), 142 AR 281 (QB) at para 53 [Crick]): [53] In making a diagnosis a doctor is required to obtain a thorough history, including the heeding of the patient's complaints duringtreatment, take appropriate tests, utilize the available scientific equipment facilities and tests; and consult and obtain professionalreferrals where necessary.

All these should be examined to determine the quality of the diagnosis. [71] This discussion leads to the conclusion that a reasonably competent family physician is to make a diagnosis of apatient’s medical condition based on the facts existing at the time of which the physician knew or should reasonably have known.

Thedisclosure and discovery of the facts is driven by what the patient tells the physician. [72] Then, based on the information disclosed by the patient, the physician will proceed to engage the patient todevelop the facts upon which his/her professional ability will be engaged. [73] The standard of care does not require the physician to engage in all nature of questions. Rather, the nature of thequestions posed by the physician will be determined by the nature of the information presented by the patient.

While the expertspresented on the standard of care disagreed on what the physicians had done, they agreed that the doctor’s engagement is driven by theinformation presented by the patient. It is therefore not the case that every patient visit results in an open-ended inquiry by the physician.Rather, the physician inquiry is driven by the disclosures made. [74] The visits by Mr. Lorencz were designed to be brief attendances and not complete physical examinations.Complete examinations take longer and must be booked as such to set aside the right amount of time during the work day to allow forcompletion.

These regular visits deal with patient complaints. A physician is not expected as part of the applicable standard of care to gobeyond those complaints or concerns. (ii) Was the standard of care achieved in this case? [75] The plaintiffs tendered the evidence of Dr. De Klerk to opine on the standard of care applicable here and hisview that each of the family physicians failed to achieve the standard of care. The defendants tendered the evidence of Dr. Chernoff, whoopined the opposite. [76] Dr. De Klerk opined that both of the defendants failed to achieve the standard of care required of a familyphysician.

He testified that the physicians were required to complete a deferential diagnosis. This means that they were required to obtaininformation through both listening to the patient and asking pertinent questions based on that information received. These questions,spurred by the manner in which the patient presents, would include family and personal history. [77] Based on the need to engage in a differential diagnosis, Dr. De Klerk held the opinion that each of thephysicians here were professionally obligated to do more during each of their attendances on Mr. Lorencz.

He held the view they werespecifically obligated to ask questions spurred on by the presenting symptoms, and through questioning form a complete personal andfamily history. He concludes that if that differential diagnosis had been completed, the need for further testing with respect to cardiacdisease would have been made clear. The conclusion is based on the risk factors which would have been disclosed during the positiveand negative questioning. In the end result, according to him, the cardiac disease would have been found in time to complete thenecessary surgery and Mr.

Lorencz would not have suffered the massive heart attack which ultimately led to his death. [78] Dr. Chernoff, however, was of the view that both physicians achieved the standard of care because the diagnosisultimately made was in accordance with the presenting complaints, as he understood those to be. The diagnosis by Dr. Babchuk of ananxiety state was determined to be appropriate given the information relayed to the physician during the attendance. Similarly, a

confirmation of that diagnosis by Dr. Talukdar was opined to be appropriate, given the understanding of the information relayed. [79] While each of the experts in this area arrived at different opinions, as indicated in the previous

section theirdetermination of standard of care is driven by the same starting point: what were the presenting symptoms or complaints of the patientwhen interviewed by the physician? [80] It is apparent that Dr. De Klerk’s opinion on the failure to achieve the necessary standard of care is driven byhis understanding of the disclosure of arm pain, or pain simpliciter, by Mr. Lorencz to each of Dr. Babchuk and Dr. Talukdar. In the caseof Dr.

Babchuk, I reiterate that there is no accepted evidence before the court that there were any such reports of pain by the patient. [81] What must be taken from the entirety of the foregoing is the admonition in the Crick decision that there must bea “… heeding of the patient’s complaints…”. The evidence of those experts presented at this trial was to the effect that the patient’spresenting concerns will drive the inquiries to be made by the physician. Thus, in the case of Dr.

De Klerk, his testimony as to the needto ask both positive and negative questions is informed by what the patient has told the physician when asked what he is both there forand what is bothering him. The same may be taken from the evidence of Dr. Chernoff. [82] With the removal of the suggestion that Mr. Lorencz had told Dr. Babchuk of the presence of pain, it appears hedescribed to this physician the presence of anxiety-related symptoms. On the other hand, he described for Dr.

Talukdar pain-relatedsymptoms, and he presented to her the forms which confirmed additional information suggesting possible cardiovascular issues. [83] On the basis of the foregoing analysis, I am unable to accept the standard of care with respect to Dr. Babchuk asoutlined by Dr. De Klerk requiring questioning centred on cardiovascular issues or testing in that vein. The suggestion of pain beingpresented by Mr. Lorencz has not been proven at this trial. The evidence that is before the court is that based on the information providedby Mr. Lorencz to Dr.

Babchuk, the latter proceeded reasonably in diagnosing an anxiety condition and prescribing the medication whichhe did. [84] If it is being suggested that a deferential diagnosis in all presenting cases requires the physician to obtain acomplete history, ask complete questions and complete appropriate testing, I am unable to conclude that is what the law requires. Thestandard of care expected of physicians is to act reasonably in the circumstances and reasonably seek information relating to thepresenting conditions. It does not require them to do everything and anything during that single visit in the office.

In Cardy v Trapp,[2008] OJ No 4547 (QL) (Sup Ct) at para 37, the court stated as follows: [37] It would be wrong to require a physician to practice to a standard that anticipated a worse case scenario as the risk and elevate thestandard of practice accordingly. We know the standard of practice applied has a degree of risk. We know now that additionalcommunication and checks could have prevented the delay in obtaining a diagnosis. But the court must be careful not to rely upon theperfect vision afforded by hindsight. See Lapointe v.

Hospital LeGardeur, 1992 [SCJ No. 11, 28]. [85] This approach lends itself to the claim being advanced against Dr. Babchuk. He was provided with certaininformation by the patient and on the basis of that information he made a diagnosis. It should be mentioned at this stage that none of theexperts called questioned Dr. Babchuk’s diagnosis and, indeed, it appears this diagnosis may be accepted as appropriate in thesecircumstances as presented by the patient. [86] With the benefit of what actually occurred on Janaury 21, 2005 and the state of Mr.

Lorencz’s cardiac disease, itis easy to surmise that had more been done in the visit with Dr. Babchuk, it may well be that Mr. Lorencz’s life could have been saved. 28 See also: Tremblay c. Claveau, [1990] R.R.A. 268 (C.A.), at p. 271; Cloutier c. Hôpital le centre hospitalier de l'UniversitéLaval (CHUL), (QC CA), [1990] R.J.Q. 717 (C.A.), at p. 721; and Vigneault c. Mathieu, (QC CA),[1991] R.J.Q. 1607, 39 Q.A.C. 223 (C.A.), at pp. 1614-1615 [R.J.Q.]. As the judgment from Hôpital général de la région de l'Amiante,supra, indicates, courts should be careful not to rely upon the perfect vision afforded by hindsight.

In order to evaluate a particularexercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne inmind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the samecircumstances, but rather will be held accountable for mistakes that are apparent only after the fact. [87] In the result, I determine that Dr.

Babchuk did not breach the applicable standard of care in these circumstances.The action must therefore stand dismissed as against him. [88] There was some discussion with the witnesses on whether the appropriate criteria for anxiety were appliedaccording to the Diagnostic and Statistical Manual of Mental Disorders [DSM-5]. It appears Dr. Babchuk was not familiar with thismanual. As well, it may be that manual sets forth specific criteria in order to arrive at a diagnosis of anxiety disorder.

It is unclear what,if anything, is to be done with this discussion. [89] There is no evidence before the court that a diagnosis by Dr. Babchuk of a generalized anxiety state was wrong,based on the presenting complaints. There is further no evidence before the court that a diagnosis of generalized anxiety can only bemade if the criteria outlined in DSM-5 are present.

Finally, there is no evidence before the court to suggest a family physician cannotmake a diagnosis of generalized anxiety without considering this manual. [90] As a result, I find I am unable to consider the effect of DSM-5 on the diagnosis which was made. [91] I then turn to the actions of Dr. Talukdar. Her actions fall to be determined differently from those of Dr.Babchuk. As indicated, she was told specifically of a continuation of pain.

At the subsequent attendance, she was provided with theBurns index forms with several of the answers indicating issues regarding pain and the possible presence of cardiovascular issues. Shemade no further inquiries and did not engage in any positive or negative questioning of the deceased to elicit a deferential diagnosis.

Indeed, there is nothing in the evidence to indicate there were any inquiries made by this physician to in any way heed the information being provided to her directly by the patient or to delve further into that information. [ 92 ] As indicated, during this physician’s testimony she went to some lengths to assert that she was not specifically told Mr. Lorencz was experiencing chest pain. She was adamant that had she been advised of that she would, of course and obviously, have taken further steps to determine what was happening to allow her to arrive at an appropriate diagnosis.

She seemed to be suggesting the continuation of pain was most likely connected to the patient’s visit some years earlier with gastro-intestinal issues. Alternatively, she guessed the pain referred to other areas of the patient’s body or mind. Her evidence in this regard was difficult to follow and appeared to be little more than the post-event justification of her actions regarding this patient. But, regardless of that, it is quite clear she was told about pain by this patient.

The post-justification really just confirms the importance of questioning at the time the information is initially provided. [ 93 ] The test to determine whether the standard of care has been achieved is not to have the physician act only on the specific information relayed or identified by the patient. That means it is not incumbent on the patient to specifically relay that he has been experiencing chest pains to invite inquiries and questioning to arrive at that deferential diagnosis as explained by Dr.

De Klerk and to determine if a referral to a specialist is in order. [ 94 ] Rather, in heeding the patient’s information, the standard of care from the evidence of those experts tendered at this trial, and from the authorities cited, is to then compel the attending physician to engage in positive and negative questioning to elicit information upon which an informed diagnosis could be made. Dr. Talukdar heard there was ongoing pain. It appears to be the case that she did nothing with that information and did not ask any further questions of the patient.

She perhaps made an assumption of what the patient was referring to. The expert evidence called makes it clear assumptions do not satisfy the standard of care and specific questioning is in order to deal with that which is relayed by the patient. [ 95 ] Indeed, Dr. Talukdar’s guesses at what the reference to “pain” might mean are confirmation of what the standard of care is for a family physician. She is compelled to inquire of the patient and engage in questioning to develop information upon which she can then make a diagnosis. This she did not do.

The evidence indicates that she did not even begin to attempt to engage in questioning. Having been told of the existence of pain, there is nothing on the medical chart to indicate any form of inquiry or discussion to flesh out what this reference meant. As well, there is nothing from Dr. Talukdar’s testimony to suggest she had such a discussion and perhaps failed to record it. [ 96 ] The point, of course, is not to now attempt to determine what the reference to pain means.

Rather, the point is that having been given certain information, the standard of care compels the family physician make inquiries regarding that information. This she failed to do. [ 97 ] The responses on the Burns index forms fall into the same category. They provided information from the patient. Whether or not they paint a picture of cardiovascular issues or concerns is not the inquiry to be made by the court.

Rather, the inquiry is as to whether they provide information that compels a reasonable family physician to make further inquiries: to engage in the positive and negative questioning with the patient. [ 98 ] The information on these forms, according to the evidence tendered at trial, would alert a family physician to concerns regarding potential heart issues. Dr. Talukdar did not review any of this information and therefore did not consider it in any substantive way when arriving at her diagnosis.

And yet, the whole point of using these forms was to better inform her in making her medical diagnosis, being anxiety and depression. [ 99 ] Returning again to her explanation, her seeming indication that the pain was reference to the earlier gastro difficulties cannot be supported by the evidence. There is no basis on the material to conclude this was, in fact, the pain to which the patient was referring. There is no indication that over the intervening three plus years that he had continued to experience this type of pain.

But more importantly, as discussed, there was no inquiry from the physician to attempt to determine why the pain was being experienced. [ 100 ] Questions regarding the pain, the taking of a family history due to the experiencing of pain, the presenting condition of the patient as a reasonably heavy smoker who was considered medically to be obese, would have, according to the evidence at trial, been the result of that questioning.

And, that result would have compelled the physician to refer this individual on for further testing or consultation with a cardiologist specialist. [ 101 ] As a result of all of the foregoing, I must conclude that Dr. Talukdar did not meet the standard of care expected of a reasonably prudent family physician carrying on her practice in Regina, Saskatchewan with respect to Mr. Lorencz. CAUSATION [ 102 ] The next step in the inquiry is to determine whether Dr. Talukdar’s breach of the standard of care caused the death of Mr. Lorencz. As the defendants have asserted, liability is not established because Mr.

Lorencz died from a cardiovascular event. The breach of the standard of care must be causally connected to the death to find liability. The corollary of this statement is that a finding of a breach of the standard of care is not sufficient, in and of itself, to ground a finding of liability on the physician. [ 103 ] The plaintiffs advance a theory on causation that if the physician had performed her duties up to the standard of care required, a referral would have been made for Mr.

Lorencz to a cardiologist where his advanced cardiovascular disease would have been discovered and appropriate surgical intervention completed. This theory takes essentially two forms: either the patient should have been referred for emergency examination, or there was sufficient time for him to have obtained an appointment with a cardiologist. There was also some discussion at trial regarding the family physician doing her own testing to determine whether there were cardiovascular concerns. [ 104 ] The test to be applied for determining causation in a medical malpractice claim is the but-for test. In the recent

decision of Hander, Kalmakoff J.A. stated: [40] The legal test for causation applicable to claims of medical negligence is the “but-for” test (Benhaim v St. Germain, 2016SCC 48 at para 45, [2016] 2 SCR 352; see also St. Jean v Mercier, 2002 SCC 15, [2002] 1 SCR 491, and Snell v Farrell,(SCC), [1990] 2 SCR 311). Under this test, the plaintiff bears the burden of showing that, but for the negligent act or omission of thedefendant, the injury would not have occurred.

This test recognizes that compensation for negligent conduct should only be made wherethere is a substantial connection between the injury and the defendant’s conduct (Resurfice Corp. v Hanke, 2007 SCC 7 at paras 20–23,[2007] 1 SCR 333; Clements v Clements, 2012 SCC 32 at para 46, [2012] 2 SCR 181; Ediger [2013 SCC 18, [2013] 2 SCR 98] atpara 28). This does not mean that the defendant’s negligence need be the sole cause of the plaintiff’s injury in order for a claim tosucceed.

Causation will be made out under the but-for test if the defendant’s negligence caused the whole of the injury, or if itcontributed in some not insubstantial or immaterial way to the injury the plaintiff sustained (Stacey Estate v Lukenchuk, 2020 SKCA55 at para 78, [2020] 8 WWR 668; Donleavy v Ultramar, 2019 ONCA 687 at para 72, 60 CCLT (4th) 99). [105] That test was earlier expanded upon by Sopinka J. in Snell v Farrell, (SCC), [1990] 2 SCR 311(WL) at para 30: 34 The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, aninference of causation may be drawn although positive or scientific proof of causation has not been adduced.

If some evidence to thecontrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe,what Lord Bridge had in mind in Wilsher [Wilsher v Essex Area Health Authority, [1988] 1 All ER 871 at 881] when he referred to a“robust and pragmatic approach to the ... facts” (p. 881). [106] As indicated, the evidence here discloses that had Dr. Talukdar engaged in making a deferential diagnosis anddetermined to have Mr.

Lorencz obtain a further medical consultation with a specialist, the options which might have been available inthis regard would have been to make a referral on an emergent basis or to make a referral to a cardiologist for further consultation. Theevidence tendered through the expert opinions in this regard is not entirely clear, but the following is what appears from that evidence. [107] The evidence of each or Dr. Iwanochko and Dr. Sharma was that an emergent referral would only have beenmade if the patient was exhibiting serious and immediate symptoms during the attendance on the family physician. While Dr.

Iwanochkoidentified there are a wide range of indicators for emergency or urgent cardio care, he outlined some of the important symptoms whichwould go into making an emergency referral. These included: chest pain or other worrisome symptoms, shortness of breath, heart racing,palpitations, and patient passing out. There is no evidence to suggest that any of these factors were present when Mr. Lorencz attendedbefore Dr. Talukdar. [108] In cases where such emergency conditions were not present, the patient would then be referred on a more routinebasis.

That means the patient would be referred for an appointment with a cardiologist. That appointment would be down the road atsome point in time. [109] The evidence of Dr. Sharma was that a referral appointment to a cardiologist could take months, in the absence ofa need for an urgent attendance. The final attendance by Dr. Talukdar was in the third week of December and the cardiovascular eventwas in the third week of January. [110] Dr. Iwanochko does not practice in Saskatchewan. He gave no indication in his testimony that he was aware ofwait times or when a regular specialist appointment could be made.

He opined that if the cardiovascular disease had been diagnosedbefore the heart attack, appropriate medical steps could have been taken to prevent the January event from occurring. But the question is,when could Mr. Lorencz have been examined. [111] In The Estate of Carlo DeMarco v Dr. Martin, 2019 ONSC 2788, [DeMarco], the issue of delays in time to see aspecialist was commented upon as follows: [68] The test of causation is the “but for” test.

The “but for” test is a factual inquiry, and applies to single and multi-cause injuries.The plaintiffs must demonstrate, on a balance of probabilities, that “but for” the defendant’s conduct, the plaintiffs would not havesuffered the injury or loss. In other words, the defendant’s negligence was necessary to bring about the harm. [69] Where the “but for” test is unworkable, courts have adopted a material contribution test to determine causation. This test is anexception to the “but for” test and is only to be used in special circumstances as follows: (

a) where the plaintiff establishes that the loss would not have occurred “but for” the negligence of two or more tortfeasors, eachpossibly in fact responsible for the loss; and (

b) where the plaintiff through no fault of their own, is unable to show that any one of the possible tortfeasors in fact was the necessaryor “but for” cause of the injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding ofcausation on a balance of probabilities against anyone. [70] These are not the circumstances of this case as there is only one potential tortfeasor – Dr. Martin.

As such, causation in thiscase must be established according to the “but for” test. [71] The plaintiffs submit that the “but for” test must be applied in a robust, common sense fashion. Such that, there is no need forscientific evidence of the precise contribution the defendant’s negligence made to the injury. Evidence connecting the breach of the dutyto the injury or loss suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probablycaused the loss.

[72] In Aristorenas, [Aristorenas v Comcare Health Services, (ON CA), [2006] O.J. No. 4039 (C.A.)] the Courtof Appeal explained the proper application of the robust and pragmatic approach set out by the Supreme Court in Snell as follows: Snell and other cases have recognized that it is important to require that the plaintiff provide some sort of evidence (or otherconsiderations) that indicates that the defendant was the cause of the harm suffered.

In Snell, Sopinka J. at p. 336 S.C.R., 299 D.L.R.,disapproved of permitting the plaintiff to “simply prove that the defendant created a risk that the injury which [page 297] occurred wouldoccur”. In Fairchild v. Glenhaven Funeral Services Ltd., [2002] 3W.L.R. 89, [2002] 3 All E.R. 305 (H.L.), Lord Roger of Earlsferryprovided this caution about applying the “robust and pragmatic” approach at [para. 150]: [E]ven though it is always for the judge rather than for the expert witness to determine matters of fact, the judge must do so on the basisof the evidence, including the expert evidence.

The mere application of “common sense” cannot conjure up a proper basis for inferringthat an injury must have been caused in one way rather than another. [73] A defendant can defeat an inference of causation by advancing some evidence that the plaintiff’s loss would have occurrednotwithstanding the defendant’s breach of the standard of care.

As stated by the Supreme Court of Canada in Clements [Clements vClements, 2012 SCC 32, [2012] 2 SCR 181]: Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident wouldhave happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in anyevent, inevitable.

As Sopinka J. put it in Snell, at p. 330: The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, aninference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to thecontrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept [that “all evidence isto be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to havecontradicted” (Blatch v.

Archer (1774), 1 Cowp. 63, 98 E.R. 969, at p. 970)]. This is, I believe, what Lord Bridge had in mindin Wilsher [Wilsher v Essex Area Health Authority, [1988] 1 All ER 871] when he referred to a “robust and pragmatic approach to thefacts” (p. 569). [74] Loss of chance is not compensable in medical malpractice cases. Proof that “but for” the defendant’s actions the plaintiff hada better chance of avoiding the outcome does not establish causation.

The plaintiff must prove on a balance of probabilities, that theoutcome would have been avoided. [75] The Ontario Court of Appeal in Cottrelle [Cottrelle v Gerrard (2003), (ON CA), 233 DLR (4th) 45 (OntCA] explained this principle as follows: …[I]n an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused orcontributed to the unfavourable outcome.

In other words, if, on a balance of probabilities, the plaintiff fails to prove that theunfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff’s claim must fail. It is notsufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless thatchance surpassed the threshold of more likely than not. [Footnotes omitted] [112] There, the court determined the but-for causation test had not been established and stated: [127] Although the “wait-time” defence was raised by Dr.

Martin, it remains the plaintiffs’ burden to establish that “but for” Dr.Martin’s failure to send the referral to Dr. Wong, Mr. DeMarco would have received treatment of his advanced coronary artery diseasethrough revascularization prior to August 20, 2011. [128] I find that Mr. DeMarco would not have received treatment of his coronary artery disease prior to August 20, 2011. Therefore,the plaintiffs have not established on a balance of probabilities that, if the referral note had been sent by Dr. Martin to Dr. Wong on June13, 2011, Mr.

DeMarco would have received revascularization of his coronary artery disease before the events of August 20, 2011. [129] Consequently, the plaintiffs have failed to establish that “but for” Dr. Martin’s admitted breach of the standard of care, Mr.DeMarco’s coronary artery disease would have been treated before the events of August 20, 2011. [113] I have determined that had a deferential diagnosis been engaged by Dr. Talukdar, the applicable standard of carewould have caused a referral of Mr. Lorencz on for further consultation.

The extent of the evidence at trial was that such a referral couldtake weeks or months in Saskatchewan. There was no more precise evidence tendered to show exactly when a referral could have beenhad assuming Dr. Talukdar had started the wheels in motion for such referral at the time of even her first visit in December. [114] I am left with the rather imprecise estimate of such a referral taking weeks or months. Regrettably, on the basis ofthis evidence I am unable to conclude on a balance of probabilities that Mr.

Lorencz would have been able to see the specialist, have thenecessary investigations completed, and arrive at the necessary medical opinions prior to his cardiac event on January 23, 2005. I mustdetermine that the plaintiffs have failed to establish such causation on a balance of probabilities.

In the words of DeMarco at para 74: “…The plaintiff must prove on a balance of probabilities, that the outcome would have been avoided.” [115] Even applying the robust and pragmatic approach encouraged by the Supreme Court of Canada, the trial court isnot entitled to speculate on an outcome in the absence of evidence allowing for such a conclusion. For the court to conclude Mr. Lorenczwould have been able to obtain a referral appointment to a cardiac specialist would be little more than speculation based on the evidencetendered at the trial of this matter. [116] I have considered whether Dr.

Talukdar’s obtaining of a deferential diagnosis might have caused Mr. Lorencz to

act differently and thereby have, possibly, remained healthy pending the referral to the cardiologist. By this I mean, could it be held that had Dr. Talukdar made the appropriate cardiac diagnosis and discussed the issue with Mr. Lorencz, he might have either adjusted his lifestyle or refrained from doing that physically demanding activity in the days preceding his cardiac event. [ 117 ] I have concluded that to consider those events would similarly enter into the realm of speculation based on the evidence tendered at this trial.

There is no evidence presented that the physical events of the days preceding the cardiac event caused the cardiac event. [ 118 ] It might be that Mr. Lorencz’s physical exertion in the days preceding January 23, 2005, led to his heart attack, but none of the expert physicians were asked to opine on this. Furthermore, there is no evidence before the court that a change in lifestyle by Mr. Lorencz would have had any impact on the cardiac event which ultimately took his life in the time period prior to the January event. [ 119 ] The opinion of Dr. Iwanochko and Dr.

De Klerk involved the advisability of referring the patient for an ECG which possibly could have shown an abnormal result. Dr. De Klerk testified that the ability of a family physician to complete an ECG test occurs in his area of the province. [ 120 ] The expert evidence does not establish that an ability to complete an ECG is part of the expected standard of care for a family physician in Saskatchewan.

As well, the evidence does not establish that it is regularly expected for family physicians to have access to ECG machines for testing. [ 121 ] Furthermore, on this issue, it is less than clear from the evidence of Dr. Iwanochko what an ECG result would have shown. On the state of the evidence, I find I am unable to conclude it is more likely than not that the result would have been abnormal, in any event. [ 122 ] Dr. Iwanochko testified that Mr. Lorencz ought to have been provided with certain medications to combat his cardiovascular difficulties.

I do not dispute that those suggested medications would be such as to be prescribed for a patient with cardiovascular issues. I also do not dispute Dr. Iwanochko’s obvious expertise in the area of cardiology. However, the issue is whether his suggestions are part of the expected standard of care for a family physician practicing in Saskatchewan. [ 123 ] The standard of care of a family physician was opined upon by Dr. De Klerk and Dr. Chernoff. Neither of those experts provided the opinion that the medications indicated by Dr. Iwanochko should be prescribed as part of the standard of care.

Rather, as indicated, their opinions centered on what engagement the family physician ought to have and then what steps they ought to take. [ 124 ] Dr. Iwanochko is an expert in cardiology. He is certainly qualified to speak to those things which will aid in the treatment of cardiac disease. He was not tendered as an expert on the standard of care of a family physician. And, he did not connect his comments to a standard of care. [ 125 ] In

summary, the court accepts there are many things that could have been done for this patient. Dr. Iwanochko’s suggested medical approach is an example of those things. However, it is not evidence of an opinion of the standard of care. Again it was not presented as such at the trial of this matter. CONCLUSION [ 126 ] As a result of all of the foregoing, I conclude Dr. Talukdar breached the standard of care expected of a family physician. However, I have further determined, on the basis of the evidence tendered at this trial, that breach did not cause the death of Mr. Lorencz.

In the result, the action must be dismissed. [ 127 ] Leave is granted to the parties to make submissions on the issue of costs, should they determine that to be necessary. [ 128 ] I would be remiss if I did not express appreciation for the job which counsel did in presenting this case for the court’s consideration. The focussing of counsel on the ultimate issues allowed the evidence to be specific and direct. The trial briefs provided by the parties were of considerable assistance to the court in arriving at this decision. Thank you. J. M.T. MEGAW