Baines v. Abounaja, 2023 ONSC 2078

CITATION: Baines v. Abounaja, 2023 ONSC 2078 COURT FILE NO.: 84070/13 DATE: 2023-03-31 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Kamal Kamara Baines, Onika Thompson, Kamika Thompson Baines and Kamal Baines Plaintiffs – and – Rouge Valley Hospital Ajax Site , Mohamed Abounaja, Charles Thompson, Stephen Gulland, John Doe and Jane Doe Defendant ) ) ) ) ) ) ) ) )))))) Ron Bohm, Paul Harte and Maria Damiano, Counsel for the Plaintiffs Matthew B. Lerner, Andrew M. Porter and Madison B. Robins, Counsel for the Defendant, Mohamed Abounaja ) HEARD : April 11 - 14, 19 - 22, 25 - 29, May 6, 2022 JUDGMENT Lack J.

The Action [ 1 ] This is an action in which it is alleged that Dr. Mohamed Abounaja’s medical management of his patient, Kamal Kamara Baines, was negligent. [ 2 ] At the heart of the case is Dr. Abounaja’s response on June 23 and 24, 2011 to Mr. Baines’ pulseless lower left leg. On June 23, 2011, at approximately 10:45 p.m., Mr. Baines was involved in a motorcycle accident in which he suffered injuries, including a fractured left femur (thigh bone). Paramedics took him to Ajax Hospital. Dr. Abounaja was the Emergency Room (“ER”) physician who cared for Mr. Baines during approximately his first four hours there.

Shortly after Mr. Baines’ arrival at hospital, pulses in his lower left leg could no longer be detected, indicating an interruption of blood flow. The Ajax Hospital lacked the surgical resources to repair vascular injuries. Mr. Baines was not accepted for transfer to a trauma centre, St. Michael’s Hospital, until 4:49 a.m. on June 24. He arrived at St. Michael’s Hospital at 6:15 a.m. There, he had surgery and his left leg was amputated above the knee. The Plaintiffs’ Position [ 3 ] The plaintiffs’ position is that Dr.

Abounaja fell below the applicable standard of care by failing to arrange an urgent transfer to a trauma centre for Mr. Baines’ fractured, pulseless limb at, or around, 12:16 a.m., soon after he became aware of the pulseless limb. If Dr. Abounaja had arranged for an earlier transfer, Mr. Baines would likely have had surgery to restore blood flow and repair the fracture. He would not have had his limb amputated and he would have fully recovered from his injuries from the motorcycle accident within about one year. The Defendant’s Position [ 4 ] The defendant’s position is that Dr. Abounaja met the standard of care.

For reasons unrelated to his efforts, Dr. Abounaja’s appropriate requests to transfer Mr. Baines were not accepted in time. Dr. Abounaja cannot be blamed for the unfortunate outcome. While acknowledging that an earlier transfer would have avoided the amputation of Mr. Baines’ leg, the defence says that, regardless of the time of transfer, Mr. Baines would have been left with a significant functional disability related to his injuries from the motorcycle accident. Legal Issues [ 5 ] The first legal issue is whether Dr. Abounaja, in his management of Mr.

Baines’ medical care, fell below the standard reasonably to be expected of an experienced emergency medicine physician in a modern urban community hospital in Ontario in 2011 in the assessment and treatment of a patient presenting in the circumstances of Mr. Baines. [ 6 ] The second legal issue, if he did breach that standard of care, is whether any breach caused Mr. Baines’ amputation.

[ 7 ] The third legal issue is damages. The parties have an agreement on an undisclosed quantum of damages to be awarded if Dr. Abounaja is liable. There are two matters to be considered. (

i) The first is what level of disability Mr. Baines would have been left with, apart from any negligence by Dr. Abounaja. (ii) The second is an assessment of any degree of fault of defendants who were released under a Pierringer agreement. This is required solely for purposes of assessing Dr. Abounaja’s several apportionment of fault. [ 8 ] The foregoing issues involve questions of fact, which will be set out and considered. [ 9 ] The final legal issues relate to the application of provisions in the Insurance Act , R.S.O. 1990, c. I.8 . (

i) The first is whether Dr. Abounaja may deduct the benefits, which Mr. Baines received from his automobile insurance carrier, from any award of damages arising out of these proceedings. (ii) The second is whether the claim for OHIP’s subrogated expenses should be dismissed, and the amount allocated to OHIP should be deducted from the total damages agreed upon. The Parties Mr. Baines [ 10 ] At the time of the accident in June 2011, the plaintiff, Kamal Baines, was 33 years old. Onika Thompson is Kamal’s spouse. Kamika Thompson Baines and Kamal Baines Jr. are their now adult children. [ 11 ] In June 2011, Mr.

Baines was strong and healthy. He worked at Leon’s Furniture, driving a truck and delivering products to customers. The products included furniture, electrical goods and appliances. He worked with a partner, performing a mixture of light, moderate and heavy work. For heavy work, they used either a two-wheel or four-wheel dolly. His work often required him to climb stairs. He worked six days a week, 8 to 12 hours a day. He was steady and conscientious. He had good customer service reviews. He was happy with his job. Mr.

Baines’ plan was to get his own truck and start a business doing consumer deliveries for Leon’s and for other companies like Loblaw. His wife supported his plan. [ 12 ] Mr. Baines’ other pursuits included playing soccer, basketball and football, as well as attending his children’s events. Dr. Abounaja [ 13 ] On June 23 and 24, 2011, the defendant, Dr. Mohamed Abounaja, was the ER physician who cared for Mr. Baines during approximately his first four hours at the Ajax Hospital. [ 14 ] Dr. Abounaja graduated from medical school in Tripoli, Libya in 1999.

He completed a one-year internship rotation at the Tripoli Central Hospital, a trauma centre. He worked there for two years. In 2003, he wrote examinations to qualify to practise medicine in Canada, including ones to establish that he was proficient in the English language. [ 15 ] Initially, Dr. Abounaja worked for two years as a general practitioner and ER doctor in a small town, Twillingate, Newfoundland. Then, he worked as an ER physician, part-time, in two hospitals in St. John’s, Newfoundland. [ 16 ] In 2006, Dr. Abounaja was licensed to practise medicine in Ontario and moved here.

He worked for an emergency service until May 2009 when he started working for the Rouge Valley Health System. The System operated Centenary Hospital in Scarborough and Ajax Hospital. Dr. Abounaja worked in the ER of both locations. Between the two hospitals, he usually worked 10 to 12 shifts a month, sometimes 12 to 15, but he could do up to 20. His shifts in the Ajax Hospital were usually 6 to 12 hours. In addition, he worked a half-day a week at a pain management clinic and a half-day a week at a walk-in clinic, both in Scarborough.

That was what he was doing at the relevant time in June 2011. [ 17 ] Before beginning his work with Rouge Valley, Dr. Abounaja completed emergency courses, which included Advanced Cardiac Life Support and Advanced Trauma Life Support (“ATLS”). Standard of Care [ 18 ] There is no dispute that Dr. Abounaja owed Mr. Baines a duty of care on June 23 and 24, 2011, when Mr. Baines was his patient in the ER at the Ajax Hospital. The legal issue to determine is what standard of care is applicable and whether Dr. Abounaja met that standard of care. There are factual issues that must be determined as well.

Primary Factual Issues – Standard of Care [ 19 ] The factual issues that must be determined in the context of an assessment of whether Dr. Abounaja met the standard of care are: (

i) Did Dr. Abounaja tell either CritiCall agents, or the CritiCall Trauma Team Leader, Dr. Bernard Lawless, at any time before 2:50 a.m. on June 24, 2011, that Mr. Baines had a pulseless leg and that the Ajax Hospital did not have the vascular services necessary to save a leg, and that Mr. Baines required an urgent transfer to a trauma centre?

(ii) Did Dr. Abounaja’s failure to ensure that an orthopedic specialist was present in the hospital when the CT scan results were available cause unnecessary delay? (iii) Did Dr. Abounaja fail to act promptly on the CT scan results and cause unnecessary delay? The Danger of Hindsight [ 20 ] At every step of the factual analysis, it is necessary to avoid the temptation of hindsight. Dr. Abounaja’s conduct must be judged in light of what he knew or should have known at the time he treated Mr. Baines, not in light of what happened later. [1] [ 21 ] It is particularly essential in this case to prevent Mr.

Baines’ loss of his leg from colouring the factual assessment of earlier events. The Accident and Paramedical Care – 10:45 p.m. to 11:33 p.m. [ 22 ] On June 23, 2011, at approximately 10:45 p.m., Mr. Baines was involved in a single vehicle accident. According to the Ambulance Call Report, Mr. Baines lost control of his motorcycle and struck a metal signpost with his left leg, breaking the sign in half. [ 23 ] At 11:05 p.m., paramedics arrived at the accident scene. They noted an obvious deformity to Mr. Baines’ left femur. They found that Mr.

Baines was able to wiggle his toes, had sensation in his foot and had a good pedal pulse in the injured left leg. Pedal pulses are taken on the top of the foot. When they are present, it is an indication of blood flow through the leg at the time the pulses are taken. [ 24 ] At 11:18 p.m., the paramedics applied traction to Mr. Baines’ leg and confirmed that there was still a good pedal pulse and sensation in his left foot. [ 25 ] At 11:27 p.m., a paramedic assessed Mr. Baines’ leg again and found pedal pulses were present. Mr. Baines was experiencing right-sided abdominal pain, which increased upon palpation.

He described a sensation of needing to have a bowel movement. [ 26 ] At approximately 11:33 p.m., the ambulance transporting Mr. Baines arrived at the triage department of the Ajax Hospital. Ajax Hospital – Triage – 11:33 p.m. [ 27 ] At the Ajax Hospital, Mr. Baines was triaged by a nurse who documented pedal pulses present in his injured left leg. The task of a triage nurse is to do a quick initial assessment. The nurse classified Mr. Baines as the second most acute triage category, a high priority. Dr. Abounaja Assesses Mr. Baines – 11:40 p.m. [ 28 ] At approximately 11:40 p.m., D r.

Abounaja began the initial assessment of Mr. Baines with the assistance of ER nurse, Stephen Gulland, who was the primary nurse for Mr. Baines at Ajax Hospital. [ 29 ] Dr. Abounaja admitted that from 11:40 p.m. on June 23, he was Mr. Baines’ most responsible physician, who had overall responsibility for directing and coordinating his care and management. He continued in that role until the orthopedic surgeon, Dr. Charles Thompson, took over care approximately four hours later. [ 30 ] Dr. Abounaja testified that a nurse does the documenting as he examines a patient.

The assessment has two parts – initial assessment and secondary assessment. Nurse Gulland documented the examination in the Trauma Assessment Flow Chart. [2] [ 31 ] The Emergency Record is where the ER physician writes the story, his findings and his orders. Dr. Abounaja’s Emergency Record for Mr. Baines is found in the Joint Brief of Documents. [3] He confirmed that it is the only place, which contains his notes in this case. [ 32 ] Dr.

Abounaja’s reading of what he wrote in his Emergency Record relating to his initial assessment follows: [4] Time seen 23:40 [11:40 p.m.] Motorcyclist under the influence eth [of alcohol] Crashed into a post and broke Patient presented via EMS, conscious, oriented, complaining of leg pain On examination patient was conscious and oriented. PERL [stands for “pupil equal reactive to light” meaning the brain is functioning well]. Breathing okay, talking.

Blood pressure [no entry - explained “I did not have a reading at the time.”] Pulse between 90 and 100 [explained 100 is high] RR 20 [meaning respiratory rate, explained 20 is fast] and oxygen level 100 percent. Chest was clear. C-spine was collared [explained EMS placed a cervical collar to protect the neck]. The abdomen was tender all over. There was no laceration.

[ 33 ] It should be noted that Dr. Abounaja testified that he had seen the blood pressure in the triage notes. I could not find a blood pressure reading in the triage notes. But Nurse Gulland recorded it as 92/52 at 11:40 p.m. in the initial assessment notes. [5] [ 34 ] Dr. Abounaja testified that based on his initial assessment, he was worried by the abnormal vital signs. The patient had low blood pressure [hypotensive], fast breathing [tachypneic], and fast heart rate [tachycardic], as well as abdominal pain and tenderness from a high velocity accident on a motorcycle. Dr.

Abounaja testified that his primary concern was for Mr. Baines’ life, and he was alarmed about the possibility of a life-threatening internal bleed. He did not document that in his Emergency Record. [ 35 ] Dr. Abounaja made orders that are set out in his Emergency Record. He ordered two units of blood, cross-match [under heading “blood products”], in case he needed to give Mr. Baines blood. He explained in his testimony that O negative unmatched blood can be given to anybody quickly to save life and to restore blood pressure if there is a bleed. He also ordered a cardiac workup [under heading “lab orders”].

He ordered a complete blood count [under heading “LFT”] and a screen for alcohol [under heading “toxicology screen”]. He also ordered a “port” chest x-ray and a femur and pelvis x-ray [under heading “diagnostic imaging”]. “Port” means the x- ray machine is brought to the patient’s bed to save time. He also ordered medication to relieve Mr. Baines’ pain. [ 36 ] Dr. Abounaja testified that he performed a physical examination. His Emergency Record does not record an examination of the left leg. [ 37 ] Dr. Abounaja testified that after he finished his initial assessment, he personally imaged Mr.

Baine’s chest and femur by FAST [Focused Assessment by Sonography], a bedside ultrasound. He testified that he was looking for the source of the tenderness and for the reason why the patient was having low blood pressure. He was looking for blood, because free blood in the abdomen “mainly means there is a smashed liver or spleen.” After doing the FAST, he thought he saw some blood on the right upper side [quadrant] of the abdomen. This was a rough estimate because he is not a sonographer. But it alarmed him.

In his Emergency Record he did not document doing the FAST or any concerns arising from it. [ 38 ] The Hospital Fluid Records show that at 11:48 p.m., Mr. Baines received one litre of normal saline in the right arm, and at 11:50 p.m. one litre in the left arm. [6] Dr. Abounaja said this was given to Mr. Baines as part of the ATLS resuscitation protocol – a bolus [fast] infusion of normal saline to restore normal blood pressure or boost it. Advanced Trauma Life Support (“ATLS”) [ 39 ] “ATLS” refers to Advanced Trauma Life Support.

The evidence at trial established that it is the Canadian and internationally recognized standard for physicians dealing with trauma. ATLS protocols provide guidance to physicians in the assessment and management of trauma patients. ATLS was referred to throughout the evidence. Its guidance and protocols are relevant to a consideration of the standard of care that applied in this case. Dr. Abounaja testified that he systematically followed the ATLS protocols in providing care to Mr.

Baines throughout. [7] Absence of Pulse – 11:40 p.m. [ 40 ] During the assessment, starting at 11:40 p.m., Nurse Gulland documented the patient’s arrival, collared by EMS, airway intact, alert, yelling in pain, no apparent head trauma, no pulse left foot, Sager traction [splint] intact to the left leg [previously applied by EMS]. [8] [ 41 ] The recording also shows Mr. Baines had peripheral pulses palpable in his right and left arms and right foot, but no pulse palpable in the left foot. There is then a note by Nurse Gulland: “Dr. Abounaja aware.” This entry is timed 11:50 p.m. [ 42 ] Dr.

Abounaja was asked when he became aware that there was no pulse palpable in the left foot. He said: “So if we say I saw the patient around 11:40, by the time I did my assessment, the initial assessment, the secondary assessment, so usually around 11:55, something like that, just a few minutes before midnight.” [9] [ 43 ] Nowhere in Dr. Abounaja’s Emergency Record does he document, at any time, that the pulse in the left leg is absent. Dr. Abounaja testified that after he finished his initial assessment, he went with the nurse to do the secondary assessment.

He testified that he was planning to write down the absent pulse after, but he forgot, and he should have done it. He said that he was focusing on the life- threatening conditions according to ATLS protocol. The only references in his Emergency Record to the leg is that the patient was complaining of leg pain; diagnostic imaging of the femur was ordered; and “Diagnosis: # [broken] Femur Shaft.” [ 44 ] There is a Secondary Assessment document. [10] According to Dr. Abounaja, this is the second part of the ATLS protocol. The nurse documents as they go along. The form shows bowel sounds are absent. Dr.

Abounaja testified that this is a positive finding that indicates there might be abdominal insult or injury. The assessment shows no pulse in the left lower extremity. There was a small abrasion on the left lower extremity, which Dr. Abounaja testified was not a finding of concern. It was sutured. Dr. Abounaja does not remember that he sutured it and did not record it. [ 45 ] Dr. Abounaja testified that the secondary assessment took about 10 minutes. He said that when he was finished, his priority was the patient’s life because he had low blood pressure. Next was the left lower extremity.

The patient had a life-threatening condition and a limb- threatening condition. [ 46 ] In cross-examination, Dr. Abounaja was asked if, after he initially assessed Mr. Baines, he understood that an orthopedic consultation was required. He said that was “not quite right.” The patient was involved in a multi-system trauma. He was unstable. He needed a team of specialists. Mr. Baines’ Blood Pressure Drops – 12:01 a.m. [ 47 ] At 12:01 a.m., Nurse Gulland documented that Mr. Baines’ blood pressure was 66/50. Dr.

Abounaja referred to this in his evidence as a “sudden crash.” He said he was alarmed by the drop in blood pressure. If it continued, there would be no perfusion

[circulation] and Mr. Baines would go into a state of shock. If there is no perfusion to the vital organs, the patient arrests or dies. Dr. Abounaja testified that he suspected that Mr. Baines had a bleed from an injury to his liver, spleen or kidney. [ 48 ] As noted above, Dr. Abounaja had already given Mr. Baines two litres of normal saline. In response to the sudden drop in blood pressure, he ordered 500 cc. of Voluven to be given to Mr. Baines bolus. It was given to boost or increase blood pressure. The administration was reflected in Nurse Gulland’s notes. [11] [ 49 ] Dr.

Abounaja testified that his plan was to resuscitate Mr. Baines and then transfer him to a trauma centre. He did not document his plan in his Emergency Record. His opinion was that Mr. Baines needed a transfer because he had multi-trauma symptoms – abdominal pain, low blood pressure, a fractured femur, and no pulse in the lower left extremity. At 12:04 a.m., Dr. Abounaja made his first call to CritiCall. The only reference to CritiCall in Dr. Abounaja’s Emergency Record is “Critl called 200 am/Dr.

Thompson called.” [12] CritiCall [ 50 ] CritiCall is an initiative of the Ministry of Health, serving the entire Province of Ontario and was operating in June 2011. It is a call centre, operated around the clock. It supports physicians treating critically ill patients by facilitating their consultations with medical specialists. It receives calls from physicians with patients in the ER or admitted to acute care facilities when they need resources beyond what is available at the local hospital.

Mostly, CritiCall agents receiving the calls connect these physicians to specialists who are practicing in tertiary hospitals. A tertiary hospital is one that provides care by specialists. For trauma patients, there are specialized centres throughout the Province of Ontario. Community hospitals do not have the same resources to deal with trauma patients as trauma centres do. Trauma centres have specialists and resources available around the clock. There are two trauma centres in the Greater Toronto Area, St. Michael’s Hospital and Sunnybrook Hospital.

Each of these centres has a designated trauma team leader who is on call. ER doctors can use CritiCall to connect to these team leaders. Team leaders can authorize a patient to be transferred to the trauma centre, if necessary. [13] [ 51 ] Ajax Hospital is a community hospital. St. Michael’s Hospital, Toronto, is approximately 47 km, or 30 miles from the Ajax Hospital. Sunnybrook Hospital, Toronto, is approximately 40 km, or 25 miles from the Ajax Hospital. [ 52 ] Acronyms are used in the CritiCall records. Exhibit 3 is a list defining them.

It is important to note that in 2011 CritiCall had a “Life and Limb” policy project in effect, but only for southwestern Ontario. Consequently, where the records show “No” as the answer to the question “Is this a Life and Limb case?”, it is irrelevant to my considerations because Mr. Baines was not in the southwestern region of the Province where the pilot policy applied. Call to CritiCall – Dispatcher – 12:04 a.m. [ 53 ] When Dr. Abounaja made his first call to CritiCall at 12:04 a.m., he spoke to dispatcher, David Bailey. David Bailey’s Evidence [ 54 ] David Bailey testified.

He was a CritiCall call agent on June 24, 2011. He had worked in that capacity since June 2009. He was educated in medical terminology and had a college level certificate as a ward clerk. [ 55 ] He said that his role at CritiCall was to speak to the requesting doctor or medical delegate calling in and to collect and record demographic details, diagnostic information, details of the patient’s status and to confirm the specialty required. Based on the problem identified, CritiCall’s diagnostic tool populates a specialty. The agent confirms that is the specialty the requesting doctor is looking for.

The agent would then let the requester go. The agent would then call the closest, most appropriate hospital that offers that service. The agent would page that specialist for the requester. Then the requesting physician and specialist are patched together, and the agent remains on the call as they speak and takes notes. [ 56 ] The call between Dr. Abounaja and Mr. Bailey began at 12:04 a.m. and lasted roughly three and a half minutes. [ 57 ] Mr. Bailey does not have any specific memory of what took place during Dr. Abounaja’s call.

In testifying, he relied purely on his usual practices at the time and the CritiCall records. [14] [ 58 ] Mr. Bailey said that he relies solely on the physician at the requesting hospital (or the physician’s delegate) for the patient information that he enters on the system. He likely would have talked to Dr. Abounaja personally on the call. He recorded as follows: Clinical Comments: [The patient] Driving motorcycle. High speed collision. Hit sign and broke it with his body. Femur fracture L [left] side. Query R [right] upper quadrant injury. Alcohol on board.

Diagnosis: Multiple Injuries Initial Specialty: Trauma [15] [ 59 ] Mr. Bailey testified that he records anything identified as a mechanism of injury. He makes note of any relevant medical conditions. He would not leave out anything pertinent to the reasons for the call. He records anything identified as a possible diagnosis. He said that given two systems of injury, a femur fracture and abdominal concerns, Mr. Baines would qualify as a trauma patient.

[ 60 ] He said that if there were issues about an ischemic or pulseless leg, he would have recognized it as a significant medical condition that was imminently life-threatening. If it had been reported to him, he would have noted it. He deduced from the fact that he made no notation of ischemia, a pulseless leg, or absent pedal pulses that he was not informed of it. He is pretty much “one hundred percent certain” that he was not informed of it, or it would have been in his notes of the call. [ 61 ] Following this call, Mr. Bailey let Dr. Abounaja return to his patient and connected with Dr. Bernard Lawless. Mr. Bailey said that based on his practice, he would have given Dr. Lawless a

summary of the patient from what was in his notes. Mr. Bailey then called Dr. Abounaja back. At 12:16 a.m. he connected Dr. Abounaja and Dr. Lawless and stayed on the line. Dr. Bernard Lawless [ 62 ] Dr. Bernard Lawless was the on-call Trauma Team Leader at St. Michael’s Hospital at the time. He is a general surgeon. According to Dr. Homer Tien, a defence expert witness, Dr. Lawless is known to be a competent and experienced trauma surgeon. He has advocated for early transfer of patients. He was instrumental in designing the life and limb policy implemented by CritiCall in 2015. [16] Dr.

Abounaja’s Evidence [ 63 ] Dr. Abounaja testified that he did not remember the exact details of his discussion with the dispatcher, but he did remember the context, core and reason for the call. [ 64 ] Dr. Abounaja testified that he told the dispatcher who he was and where he was calling from. He testified that the information in the record that Mr. Bailey made is accurate, but incomplete. In addition to what is recorded, he also told the dispatcher that the patient presents with low blood pressure. His blood pressure crashed a few minutes ago. The patient has diffuse abdominal pain. He did a bedside ultrasound.

He thinks he found some blood in the right upper quadrant. There is no pulse detected in the lower extremity. He initiated CT scans. The patient has a life-threatening and limb-threatening condition. He needs transfer to a trauma centre. Events Before Consultation with Trauma Team Leader Mr. Baines’ Hemodynamic Condition [ 65 ] As noted, Mr. Baines’ blood pressure at 12:01 a.m. had dropped to 66/50. That was before the call to CritiCall at 12:04 a.m. The chart shows that by 12:07 a.m. (after the Voluven was administered), Mr. Baines’ blood pressure was 118/52. [17] [ 66 ] Dr.

Abounaja agreed that, by the time that he spoke to Dr. Lawless at 12:16 a.m., Mr. Baines was hemodynamically normalized. He still had tachycardia (pulse 122) and fast breathing (38), which Dr. Abounaja testified could be because of pain or could be impending shock. [ 67 ] Dr. Abounaja testified that before he spoke to Dr. Lawless, he had ordered a series of CT scans on head, neck and abdomen. This is confirmed by a nurse’s note at 12:15 that reads: 12:15 - 0 [absent] pedal pulse. MD ordering CT. MD aware. MD wants CT abdo [abdomen]. [18] [ 68 ] Dr.

Abounaja testified that he wanted the CT scans before he spoke to Dr. Lawless. He agreed that he knew it would take over an hour to get them done and about 15 minutes to get them read. He also acknowledged that the patient would be transferred into a distant area of the hospital for the scans. He agreed reluctantly that this showed that he thought that the patient was hemodynamically stable because part of the ATLS protocol is that a patient should only be sent for a CT scan when he is hemodynamically stable. It is further confirmed by the fact that, at 12:20 a.m., Dr.

Abounaja told the nursing staff, as recorded in the Emergency Record, to hold off giving any blood. [19] Dr. Abounaja’s First Discussion with Trauma Team Leader – 12:16 a.m. [ 69 ] At 12:16 a.m., Dr. Abounaja spoke with Dr. Lawless. Mr. Bailey stayed on the line. Mr. Bailey testified that it was his job to note all relevant portions of the communication, the key points. He is also to document the plan. The call lasted until 12:19 a.m. [ 70 ] Mr. Bailey documented the call between Dr. Abounaja and Dr. Lawless, as follows: Trauma High speed motorcycle accident. Driver went through a road sign and broke it in two.

Blood in the RUQ [right upper quadrant]. Helmet intact no sign for a head injury. Femur fracture. GCS 15 [Glasgow Coma Scale – normal]. Management provided in Ajax relayed. CT [CT scan] head, chest and abdo [abdomen] pending. Will also get a CT spine. Once the results are available then Dr. Abounaja is to call back to CritiCall. If results reveal further injury then follow up needed via CritiCall. If scans reveal nothing then Ortho [orthopedic specialist] locally should see the patient. In the space for “Final Outcome”, Mr. Bailey recorded “No”. [20]

[ 71 ] Mr. Bailey testified that if ischemia, absent pedal pulses or a pulseless leg had been discussed, he would have noted it and he is “one hundred percent certain” of that based on everything else that is documented. [ 72 ] Mr. Bailey said that normally when plans are hashed out, it’s a discussion between the two physicians. If there had been any dispute over the plan, he would have documented it because CritiCall has policies in place about that.

He was “one hundred percent certain of that.” He said if there had been any requests through CritiCall or of the doctor that were not provided for he would have documented it. [ 73 ] When the call ended, it was Mr. Bailey’s expectation that Dr. Abounaja would be calling back with the CT results. That is why he recorded that it was not a final outcome. Dr. Abounaja’s Evidence About the Call [ 74 ] Dr. Abounaja testified that what Mr. Bailey recorded about his call with Dr. Lawless is accurate, but there are parts missing. [ 75 ] Dr. Abounaja took no notes of the discussion with Dr. Lawless.

He testified that he could not recall the exact words used, but he remembered telling Dr. Lawless the scenario, the history and the findings. In his testimony, he described the call as follows: So I got on the phone with the trauma team leader. It's Dr. Abounaja here. I have a - I'm calling from Ajax. I have a high velocity motorcycle accident. The patient was thrown off his motorcycle, crashed into a pole, broke it in half, presented with low blood pressure with EMS. He's got, he still have low blood pressure. He, he got a blood pressure that crashed not too long ago. I'm resuscitating him.

He's got an abdominal pain, tender on exam. I did an ultrasound on him. I did the FAST exam, which showed some blood. He's got a fractured femur and along with the fractured femur, we could not detect any pulse in the lower extremity. So I've done CAT scans, resuscitated the patient, and I need him to be transferred to a trauma centre as this guy's got multiple systems trauma going on there. He's unstable at the moment. I need him to be transferred to a trauma centre. [21] [ 76 ] Dr. Abounaja testified that he was “one hundred percent certain” that he requested a transfer of the patient. [ 77 ] Dr.

Abounaja testified that in response, Dr. Lawless told him to complete the CT scans before transferring the patient. He also told him to add a CT scan of the cervical spine. If they showed abdominal injury or chest injury, Dr. Abounaja was to call him back for further instructions. If they showed no injuries, Dr. Abounaja was to “get your local orthopaedic to deal with a fractured femur with the pulseless leg.” [22] [ 78 ] Dr. Abounaja testified that he did not see Dr. Lawless’ response at the time as a rejection of his request for a transfer. [ 79 ] Dr. Abounaja testified that following the conversation with Dr.

Lawless, he spoke to Nurse Gulland. There is an entry in the Interdisciplinary Progress Record by Nurse Gulland. Oddly, it was written in after the 12:15 a.m. note referred to above, but bears a time of 12:10 a.m., which was before Dr. Abounaja spoke to Dr. Lawless, but appears to refer to the call. It is as follows: Dr. Abounaja aware of 0 [absent] pulse L [left] leg. Dr. Abounaja “I can’t do anything until I get the CT done.” Dr. Abounaja “I was asked at CritiCall to get the CT done before I send him.” Writer states that he was concerned that “we were wasting time, the patient needs to go to Toronto.” Dr.

Abounaja “no we can’t send him to Toronto until I get the CT.” [23] [ 80 ] Dr. Abounaja testified that he remembers the “12:10” discussion. He said it took place as soon as he hung up from talking to Dr. Lawless at 12:19 a.m. The time recorded is wrong, but otherwise, the notation is accurate. He testified that the note reflects his response to Nurse Gulland’s concerns and his view of the plan, as follows: I told him [Nurse Gulland] “I was told by the trauma team leader we will follow his instructions.

He said get the CT scan before we transfer him.” So, I was like under the impression that okay he was – they were going to do the CT and then the patient will be heading to Toronto. [24] CT Scans – 12:19 a.m. [ 81 ] Dr. Abounaja got off the phone from speaking to Dr. Lawless at 12:19 a.m. He testified that after the call it took him a couple of minutes to make the request for the CT scans. Since they did not have a CT technician present in the hospital, the radiologist, Dr.

Matthew Benjamin, had to be paged first to get the technician to come in. [ 82 ] There is a nursing note at 12:36 a.m. by Nurse Gulland. [25] It is difficult to read, but Dr. Abounaja testified that the important

part is: “patient remains alert times three, chest clear and good airways. His heart sound too was normal. His abdomen was flat, rigid. He was absent bowel signs.” Dr. Abounaja testified that this was an important finding because it raised suspicion that there must be a bleed since the abdomen is rigid and there are no bowel sounds. The note also says that there is no pulse in the left foot, no sensation. [ 83 ] The nurse’s note documents that at 12:43 a.m., Mr. Baines was off to have the CT scan. That was 24 minutes after the call with Dr. Lawless ended. [ 84 ] The next nurse’s note shows that at 12:52 a.m. Mr.

Baines was at the CT scan with Nurse Gulland. [26] His blood pressure was 124/78, pulse 100 and respiration 26. Dr. Abounaja commented in his evidence that the pulse at 100 was still alarming because it was high.

[ 85 ] The next nurse’s note shows that at 1:10 a.m., Mr. Baines had returned from CT. [27] His blood pressure was 132/78 and respiration 19. Also, at 1:10 a.m., the nurse recorded that Mr. Baines had left abdominal pain: L [left] upper quadrant abdo [abdomen] pain c/o [complaining of] tingling to upper chest as well. MD aware. L. [left] thigh swollen ++. MD informed by RN. L [left] thigh hot/hard/cold at lower limb to touch. BP [blood pressure] 133/84 P [pulse] 98 R [respiration] 31. [28] [ 86 ] There is another nurse’s note at 1:30 a.m. that Mr. Baines was seen by Dr.

Abounaja, “another portable U/S done, awaiting CT results from radiology.” [29] [ 87 ] At 2:00 a.m. the nurse recorded that the patient was complaining of “pain +++.” His blood pressure was 124/82; pulse 90; respiration 22. [30] CT Scan Results [ 88 ] After Mr. Baines’ return from CT scanning, Dr. Abounaja was waiting for the report of CT scan results from the radiologist. Reports are posted on the hospital computer. Dr. Abounaja testified that he checked the system every couple of minutes because he knew the results were urgently required. [ 89 ] Dr.

Abounaja testified that he got the preliminary report on the CT scan on the head at 1:26 a.m. The report read “nil acute” meaning no blood or broken bones. He also got a report on a portable chest x-ray at 1:27 a.m. It was normal. The radiologist had not posted the abdominal CT scan results. As a result, Dr. Abounaja asked staff to page the radiologist around the same time. He was unsure of when. At one point, he said it was around 2:00 a.m. The records show that the radiologist was paged at 1:26 a.m. Dr.

Abounaja testified that he cannot remember exactly when he learned of the radiologist’s conclusions on the remaining scans, but it was roughly before 2:30 a.m. [ 90 ] Dr. Abounaja said that he stopped checking for the results, after the radiologist was paged. He went to see other patients. It was an average night as far as he remembers, but he does not remember the details. There were about 20 patients. [ 91 ] The results of the CT scan on the thorax were posted at 1:29 a.m. and were “normal”.

The results of the CT scan on the abdomen and pelvis were posted at 1:34 a.m. and were “nil acute.” [31] On cross-examination, Dr. Abounaja said that he checked between 2:00 a.m. and 2:30 a.m. and saw that the results were there. Then he was going to call CritiCall. [ 92 ] Dr. Abounaja testified that he thinks that he did an ultrasound on the foot by Doppler, likely the abdomen too, but he is not sure. If he did, he did not note it or the results in his Emergency Record. Call from CritiCall Dispatcher – 1:41 a.m. [ 93 ] Mr. Bailey testified that he would have understood and expected that Dr.

Abounaja would call CritiCall once the CT studies were completed and resulted, to advise if assistance was still required or if the patient’s injuries would be dealt with in Ajax Hospital. When Mr. Bailey did not get a call, he called the ER at Ajax Hospital for a status update at 1:41 a.m. He spoke to a nurse. He noted that he was told that they were waiting for a report from the radiologist. [32] [ 94 ] All results were available on-line at 1:34 a.m., if anyone had checked. Second Call from CritiCall Dispatcher – 2:34 a.m. [ 95 ] Approximately 55 minutes later, at 2:34 a.m., Mr.

Bailey again called back when he had not received a call from Dr. Abounaja. According to the CritiCall records, the call was approximately one minute and fifteen seconds long. Mr. Bailey testified that what he was told, probably by Dr. Abounaja, was: Everything was negative. Ct head clear. Spine is clear and abdomen is clear. Will have ortho locally see the patient in regards to the femur. [ 96 ] Mr. Bailey recorded: “FRC [Final Request Cancelled] Req. Cancelled/ Internal Placement.” [33] [ 97 ] Mr.

Bailey testified that he was certain that if ischemia or absent pedal pulse had been mentioned on the call, he would have recorded it. He closed the record. He said that he would have done so based on the internal placement as CritiCall is not involved in the internal processes of hospitals. He said that he would never initiate that independently without direction, in this case, from Dr. Abounaja. In cross-examination, Mr. Bailey said that Dr. Abounaja was no longer asking for a transfer for this patient at this time, so that is why he would have recorded the final outcome as he did and closed off the case.

But, when a case is re-opened, then whoever takes over the call would unclick the box because it is no longer a final outcome. Dr. Abounaja’s Evidence About the Call [ 98 ] Dr. Abounaja testified that he remembers this conversation, the main points, the core and the purpose. He testified that he

informed the agent that the CT scans were normal, and he was just following the Trauma Team Leader’s instructions to get the local orthopedic specialist to deal with the fractured femur with the pulseless leg, before transferring the patient. He testified that he never cancelled his request to have Mr. Baines transferred to a trauma centre. He said he was “100 percent sure” that he never cancelled the call. [ 99 ] On cross-examination, Dr. Abounaja agreed that at his examination for discovery, on July 15, 2015, he said that he had no specific recollection of this call.

At trial, he said that was probably true then, but now he does have a recollection. He is not sure when he discovered that he had a recollection. It was a few months prior to trial, when he looked at the CritiCall notes, his chart and the nurse’s chart. That was when he got the idea about when and what happened in that period of time, roughly. He did not correct his answer from his examination for discovery before trial. [ 100 ] On cross-examination, Dr. Abounaja testified that the only thing he does not have an explanation for is the hour before CritiCall called.

He said that is the only part that is missing in his memory. He was referring to the hour when the last results of the CT scans were available, but not retrieved. Dr. Thompson Paged – 2:34 a.m. [ 101 ] The parties are agreed that at 2:34 a.m., Dr. Charles Thompson, the on-call orthopedic surgeon at Ajax Hospital, was paged. Shortly afterward, Dr. Thompson spoke to Dr. Abounaja by phone. [ 102 ] Dr. Thompson was called as a witness by the defence to testify as a participant expert about the nature of his involvement in Mr. Baines’ care. [ 103 ] Dr.

Thompson graduated from medical school at the University of Toronto in 2002. After that, he did five years of training in orthopedics. In that context, he did some elective time as a trauma surgeon. In addition to being a general orthopedic surgeon, he also has subspecialities in hip and knee arthroplasty and revision arthroplasty procedure (meaning revisions of primary hip and knee replacements). Dr. Thompson completed his education in 2010. In 2011, he was doing on-call service as an orthopedic surgeon two or three weekends a month, covering Centenary Hospital and Ajax Hospital. [ 104 ] Dr.

Thompson testified that as an orthopedic surgeon practicing at a community hospital it is very rare for him to see vascular injuries associated with orthopedic fractures. In his entire career, he has seen three vascular injuries associated with orthopedics generally, not just fractures. Mr. Baines was the third. Of the other two, one was where a surgeon doing a knee replacement injured a blood vessel. He has not seen another since Mr. Baines’ case. He confirmed that there was no vascular surgery available at the Ajax Hospital in 2011. [ 105 ] Dr.

Thompson testified that overall, he has a strong recollection of his interaction with Mr. Baines. This is because a pulseless leg is not a common occurrence, and because of the difficulty he had getting Mr. Baines transferred to a hospital with orthopedic and vascular service. For some matters, however, he had to rely on the patient charts and the CritiCall records. [ 106 ] Dr. Thompson was at home when he got the page from the Ajax Hospital ER. He has some recollection of his discussion with Dr. Abounaja who told him about a patient with a femur fracture and no pulse. Dr. Thompson said that he told Dr.

Abounaja that if the patient has no pulse, they could not manage him. They needed to CritiCall him out. Dr. Abounaja said he would look after it. Dr. Thompson did not recall that Dr. Abounaja told him he had already called CritiCall. Dr. Abounaja’s Evidence [ 107 ] Dr. Abounaja testified that he told Dr. Thompson that he was following the instructions of the Trauma Team Leader by calling him. He told Dr. Thompson that he would call the Trauma Team Leader back and tell him that Dr. Thompson had said that the patient needed to be transferred to a trauma centre. Dr. Thompson’s Review [ 108 ] Dr.

Thompson logged into the hospital server from home and accessed Mr. Baines’ x-ray. He testified that a malalignment of a fracture can impede blood flow. However, the x-ray showed that Mr. Baines’ fracture was lined up fairly well. There was a splint in place. That strongly suggested the pulseless limb was not due to the fracture. There was a possibility that the splint was too tight, acting like a tourniquet. He also noted that there was no image of the joint above or below the break. It was necessary to make sure that there was no dislocation of the hip or knee joint causing the pulselessness.

With these concerns in mind, Dr. Thompson called the hospital at approximately 2:50 a.m. and suggested taking off the splint and applying skin traction. He also ordered x-rays of the two joints, as well as back and lateral views of the area. He then dressed and went to the hospital to see if there was something he could do to restore circulation or to get the patient transferred. At that point, he said he was not aware of any discussions that Dr. Abounaja had with CritiCall. It took him 30 to 40 minutes to get to the hospital. Call to CritiCall – Dispatcher – 2:50 a.m. [ 109 ] At 2:50 a.m. Dr.

Abounaja called CritiCall. The agent who took the call and spoke to him was Lori Hill. She testified. Ms. Hill had been a CritiCall call agent since 2007. She described her role in a similar fashion to what Mr. Bailey had said – extracting significant medical information that is being provided by the referring physician or delegate. She does not take verbatim notes. As with Mr. Bailey, Ms. Hill had no independent recollection of the call. When she testified about events, she relied on the CritiCall records that she had made and her usual practices. [ 110 ] The CritiCall records show Ms.

Hill recorded the call as a “Status Update.” She recorded the information, which Dr. Abounaja gave her about his patient as: Open femur fracture. Unable to detect dorsalis pedis. No pulses. No worries about compartment syndrome. [34]

[ 111 ] She said she would have looked at the earlier notes taken by Mr. Bailey. This note made by Ms. Hill was the first in the CritiCall records of Dr. Abounaja mentioning an absent pulse. Dr. Abounaja’s Second Call with Trauma Team Leader – 2:56 a.m. [ 112 ] Following the usual practice, Ms. Hill contacted Dr. Lawless, and patched through a call to Dr. Abounaja. She remained on the line to take notes. The patched call started at 2:56 a.m. and ended at 2:59 a.m. [ 113 ] The records show that Ms. Hill made the following notes relating to the discussion between Dr. Abounaja and Dr.

Lawless: Hemodynamically stable. CT head is fine, chest is fine. Unable to move toes, does not feel lower extremity. Fracture has been reduced and splinted. Ortho in Ajax has not seen patient, Dr. Lawless advised to have Ortho come and assess patient. Dr. Abounaja will call back if further assistance is required. [35] [ 114 ] Ms. Hill noted in the records that the outcome of the call was “patient to remain” and it was not a final outcome. [ 115 ] Ms. Hill testified that based on the documentation in the CritiCall records, Dr. Abounaja did not request a transfer during the call.

She said if he had, she would have documented it. She testified that she was very certain of that because it relates to the next step for case facilitation. She said that normal practice is, if there was no consensus between the referring physician and the consultant about a plan of management or a transfer request, it would be documented to continue case facilitation. There was an escalation procedure to deal with disputes. It involved the agent contacting the on-call CritiCall Medical Director to get involved. Dr. Abounaja’s Evidence About the Call [ 116 ] Dr.

Abounaja testified that the notes are accurate, but incomplete. He said that he told Dr. Lawless that he had spoken to the local orthopedic who said if there is no pulse, the patient needs to be transferred to a trauma center to get vascular assessment. Dr. Lawless asked him if Dr. Thompson had seen the patient. Dr. Abounaja said no, and Dr. Lawless told him to call him and tell him to see the patient and get back to Dr. Lawless before “we” transfer him. [ 117 ] Dr. Abounaja testified that Dr. Lawless denied the transfer that he requested, and this was the first time it was denied.

However, he also said that since Dr. Lawless told him what to do, it was not like he was refusing. He was not accepting at the time. Dr. Abounaja was asked on cross-examination if he was satisfied with the plan. He said: “I don’t have an answer.” [36] He agreed that he did not voice any opposition to the plan, accepted the direction that Dr. Lawless gave him, and tried to implement it. He also testified that he was not aware that CritiCall had an escalation process. [ 118 ] Dr.

Abounaja was asked on cross-examination if the fastest way to get the pulse restored could be if an orthopedic surgeon, seeing the patient quickly, could manipulate the limb and restore pulse to it. Dr. Abounaja said that was “not quite right” [37] and then testified about his own efforts. Call to CritiCall – Dispatcher – 3:02 a.m. [ 119 ] Dr. Abounaja testified that he had a conversation with Dr. Thompson after his call with Dr. Lawless ended. Then he said it was not Dr. Thompson he spoke to, but a nurse with whom Dr.

Thompson had spoken, after viewing the x-rays at home. [ 120 ] The CritiCall records show that at 3:02 a.m. Dr. Abounaja spoke to agent Lori Hill and asked to speak to Dr. Lawless. Her recording of the details is: Advised that his ortho has viewed imaging and advised that alignment is good, and that there is vascular injuries. [38] [ 121 ] At 3:05 a.m. Ms. Hill spoke to Dr. Lawless and told him the purpose of the page. She recorded his response: Ideally should be Ortho to Ortho who would be speaking. Agrees to speak with Dr. Abounaja again. [39] Dr.

Abounaja’s Third Discussion with Trauma Team Leader – 3:09 a.m. [ 122 ] At 3:09 a.m., Dr. Abounaja spoke with Dr. Lawless. Ms. Hill recorded the discussion as follows: Reiterated what Ortho has relayed. Advised that once Ortho has assessed patient, Ortho can refer to colleagues. [40] [ 123 ] Ms. Hill noted in the records that the outcome of the call was “patient to remain” and it was not a final outcome. [41] Dr. Abounaja’s Evidence About the Call [ 124 ] Dr. Abounaja testified about his last discussion with Dr. Lawless. He said: “I do remember that call.” He then seemed to repeat the conversation verbatim.

To summarize, Dr. Abounaja testified that he said to Dr. Lawless: “As you instructed me the CT scans were

negative and I got my orthopaedic locally to see the patient.” He then quoted to Dr. Lawless what Dr. Thompson had said: “…[D]on’t delay the transfer, get him out as soon as possible. He needs a vascular assessment, and to be treated and taken care of by the trauma centre.” [ 125 ] Dr. Abounaja said it was really frustrating because Dr. Lawless asked if Dr. Thompson came and saw the patient in person or if it was just an assessment over the phone. Dr. Abounaja told him that Dr. Thompson saw the images. Dr. Lawless said: “No, no, get Dr.

Thompson, your orthopaedic, to come and see the patient in-person before transferring the patient and let him assess the patient. If he feels the patient needs to be transferred let him call CritiCall or he can call orthopaedic.” [42] [ 126 ] There was no evidence, recorded or otherwise, that Dr. Abounaja expressed any opposition to the plan after Dr. Lawless made those comments. Dr. Thompson Arrives at Hospital [ 127 ] Dr. Abounaja said that shortly after that conversation with Dr. Lawless, Dr. Thompson arrived at the hospital. The parties agree that at approximately 3:28 a.m., Dr. Thompson was assessing Mr.

Baines in the ER. [ 128 ] Dr. Abounaja testified that when Dr. Thompson arrived, he said: “Why is the patient here? He’s supposed to be in the trauma centre.” Dr. Abounaja then told Dr. Thompson that the Trauma Team Leader said that Dr. Thompson must see the patient in person and if he feels the need for a transfer, he can call CritiCall or his orthopedic colleagues. Dr. Thompson said: “Okay, let me go and see the patient. I mean let’s get this done.” [ 129 ] Dr. Thompson recalled the discussion a bit differently. He said he saw Dr. Abounaja at the nursing station and asked if he had spoken to CritiCall. Dr.

Abounaja told him: “They said you should fix it.” Dr. Thompson asked him if he told them Mr. Baines had no pulse. Dr. Abounaja responded: “Yes I did. And they said you should fix it.” Then Dr. Thompson asked: “Did you tell them that we don’t have a vascular surgeon?” Dr. Abounaja said: “Yes. They said you should fix it.” Dr. Thompson said Dr. Abounaja became more frustrated and eventually walked away. [43] Dr. Thompson Speaks to Dr. Lawless [ 130 ] Dr. Thompson testified that he found out from the ward clerk that Dr. Abounaja had been speaking to Dr. Lawless at St. Michael’s Hospital.

He had him paged directly, rather than through CritiCall, to save time. At this point, Dr. Thompson considered that he was Mr. Baines’ most responsible physician. Dr. Abounaja had nothing further to do with Mr. Baines after approximately 3:40 a.m. [ 131 ] About 10 or 15 minutes after he arrived, Dr. Lawless returned the page. In the meantime, Dr. Thompson viewed the x-rays, which he had ordered. He also saw Mr. Baines. He saw that the leg was well aligned. Mr. Baines was out of the splint. He definitely had no pulse. [ 132 ] Dr. Thompson testified that he had a good recollection of his conversation with Dr.

Lawless. He told him: “This guy really has no pulse.” He believes Dr. Lawless asked if “you guys” could manage it there. Dr. Thompson said no because Mr. Baines had a vascular injury and needed a vascular surgeon, and it was not something they could fix. Dr. Lawless said: “I can’t take him, try ortho or vascular.” [44] [ 133 ] Dr. Thompson recalled that he told Dr. Lawless that there were no vascular services at Ajax because Dr. Lawless did not seem to be aware of that. [ 134 ] Dr. Thompson said he was surprised. Dr. Lawless’ reaction made no sense to him. He did not have a clear understanding why Dr.

Lawless would not accept Mr. Baines. He did not give a reason and Dr. Thompson did not ask. They spoke for less than a minute. Dr. Thompson did not want to waste more time talking because he felt that regardless of what he said, Dr. Lawless was not going to take Mr. Baines. Looking somewhere else would be faster. Dr. Thompson’s opinion was that since the patient had been there over three hours he needed to be transferred immediately. So, he asked that CritiCall be paged and went back to assessing Mr. Baines. Dr. Thompson’s Assessment of Mr. Baines [ 135 ] Dr.

Thompson’s contemporaneous notes were filed. [45] As well, later that morning, at 6:56 a.m., he dictated a note to supplement his hand-written note. [46] Dr. Thompson testified about his assessment, what he did and his conclusions, referring to his notes, and explaining as he went along. It is important to remember that Dr. Thompson is not a vascular surgeon. [ 136 ] Dr. Thompson testified that Mr. Baines had a femur fracture with absent doralis pulses with a transverse laceration across the knee. He had sensation above the knee. His foot was quite cold.

He had decreased sensation over the top dorsum of his foot, but had sensation on the bottom of his foot. He could not straighten his toes, but could curl them. So even though no pulse could be detected, his foot in the sense of muscles and nerves was not completely ischemic. His capillary refill was diminished, but tissues were still somehow being perfused. [ 137 ] The fractured was well-aligned. However, Dr. Thompson manipulated it to rule out the possibility that a small amount of displacement, which he saw on the lateral view from the x-rays that he had ordered, might be the problem.

The manipulation did not restore the pulse. He ruled out compartment syndrome [so much swelling in the muscle that it cuts off the blood supply]. [ 138 ] Dr. Thompson suspected that Mr. Baines might have suffered an injury to the femoral artery. If it were transected [artery cut in half], blood would flow into the leg, and it would swell up. That was not happening. So, he thought that it might be an intimal tear. The inner lining of the artery is called the intima. It is fragile and might have been torn at the time of the accident. Dr.

Thompson testified that intimal tears can propagate over time and can occlude blood flow. [ 139 ] Dr. Thompson’s conclusion was that Mr. Baines required assessment by a vascular surgeon to rule out injury to the femoral

artery. He said that Mr. Baines needed to be transferred urgently because there is a window of opportunity when there can still be viability to the muscles and nerves and the limb can be salvaged. Discussions Through CritiCall – Starting 3:45 a.m. [ 140 ] Lori Hill, the agent at CritiCall, testified that according to the records, Dr. Thompson called CritiCall at 3:45 a.m. Ms. Hill recorded: Called in. Orthopaedic Surgery. Requesting to speak with Ortho. Unable to find pulses still. [47] [ 141 ] Ms. Hill paged Dr. Jeremy Hall, an orthopedic surgeon at St.

Michael’s Hospital, at 3:48 a.m. [ 142 ] The CritiCall records show that Dr. Hall spoke to Dr. Thompson at 3:56 a.m. Another agent, Ms. Soares, was the agent listening in on that call. The record entry is: Orthopaedic Surgery. Injuries discussed. Pulse cannot be felt on left leg. Possible vascular injury. Foot is cold. In traction now. Needs vascular consult. Conclusion: CO Consult/Referred Other Specialty [48] [ 143 ] Dr. Thompson said that he recalled Dr. Hall saying that he would try to see if he could do something to help out. [ 144 ] The CritiCall records show that the agent then contacted Dr.

Tony Maloney, a vascular surgeon at Toronto General Hospital. Dr. Maloney and Dr. Thompson spoke at 4:04 a.m., with Ms. Soares listening. She recorded: Vascular Surgeon. No pulses on left leg. No trauma at the General. Conclusion: CO Consult/Check Beds. [49] [ 145 ] This is a convenient spot to mention that Dr. Thompson testified that he did not ask Dr. Maloney for a transfer. He knew that the Toronto General Hospital did not have orthopedic services, but he also knew that Mount Sinai Hospital did, and the two hospitals sometimes coordinated. Dr.

Maloney said that he would see if there was anything he could do. [ 146 ] The CritiCall records show that Dr. Maloney called back at 4:13 a.m. and Ms. Soares took the call. She recorded: Vascular Surgeon. General has no Ortho. Suggested to try Sunnybrook. Leg has been ischemic for over 4 hours. Patient needs to go to ortho ASAP. Advised to call Dr. Maloney back if there are any problems. Conclusion: CD Consult Decline/Referred Other Specialty. [50] [ 147 ] The CritiCall records show that Ms. Soares paged Dr. Robin Richards, an orthopedic surgeon at Sunnybrook Hospital, at 4:16 a.m.

He called back at 4:26 a.m. and Ms. Hill recorded: CD Consult Declined/No Beds. [51] [ 148 ] In the meantime, the records show that Dr. Maloney was so concerned about the plight of this patient that he called back to CritiCall at 4:22 a.m., 4:29 a.m. and 4:42 a.m. to urge action. CritiCall Escalates – 4:32 a.m. [ 149 ] At 4:32 a.m., Ms. Hill put out a call to Dr. Howard Clasky, the Medical Director of CritiCall. She said she would have been looking for direction.

The call would have been to escalate because it had been some time since the original call came in and they were still looking for orthopedic surgery and vascular surgery and were being thrown back and forth between specialties. [ 150 ] At 4:34 a.m., Dr. Clasky called in and was on the line until 4:46 a.m., which included a patch with Dr. Thompson. There are no details recorded of the conversation between Dr. Clasky and Ms. Hill. The records show that at 4:38 a.m. Dr. Thompson told Dr. Clasky: Left femoral shaft fracture at midshaft. No pulses. Closed fracture, laceration over the patella.

Query patella tendon rupture. [52] [ 151 ] Dr. Thompson testified that he did not know how Dr. Clasky got involved. He had been under the impression that Dr. Hall would take the patient, not because he said he would, but because he said he would try to find a bed.

[ 152 ] Ms. Hill then paged the on-call Trauma Team Leader at St. Michael’s Hospital, Dr. Lawless, at 4:46 a.m. Dr. Lawless responded at 4:48 a.m. and accepted Mr. Baines for transfer to the ER. At 4:49 a.m., Ms. Hill notified Dr. Thompson of the transfer. The Transfer [ 153 ] Dr. Thompson testified that as soon as he heard of the transfer, he told the ward clerk to get an ambulance urgently. He wrote transfer orders and gave instructions to staff. Then he spoke to Mr. Baines.

He told him that he was trying to get everything done as urgently as he could because there was a possibility that he might lose his leg. [ 154 ] At 4:51 a.m., Ms. Hill called the triage nurse at St. Michael’s Hospital to let her know that the patient was coming to them from Ajax Hospital. [ 155 ] At 5:19 a.m., Ms. Hill called the nurse in the ER at Ajax Hospital who advised her that they were waiting for the ambulance. At 5:46 a.m., Ms. Hill again called Ajax Hospital. The nurse in the ER told her that the patient was just leaving. At 5:47 a.m., Ms. Hill called the triage nurse at St.

Michael’s Hospital with the estimated time of arrival. [ 156 ] There seemed to be general acceptance that an hour from acceptance of the transfer to departure from Ajax Hospital was a long time, but there was no reliable evidence of the cause. [ 157 ] The nursing notes from the time of Mr. Baines’ initial assessment at Ajax Hospital, including the Interdisciplinary Progress Record and the Secondary Assessment, were not copied and transmitted to St. Michael’s Hospital, but there was no reliable evidence of the cause. St. Michael’s Hospital [ 158 ] It is agreed that Mr. Baines arrived at St.

Michael’s Hospital at 6:15 a.m. So, the trip took roughly 30 minutes.

He was seen immediately by the trauma team. [53] [ 159 ] At 6:15 a.m., the orthopedic resident assessed the left lower leg and found “no palpable pulses, popliteal, DP [dorsalis pedis], PT [posterior tibialis]; no pulses with doppler; left thigh hematoma, soft; left lower leg compartments tense; possible left knee dislocation; no ankle dorsi/plantar flexion; no sensation L4/L5/S1- midcalf - laceration transverse to distally.” [54] [ 160 ] At 6:45 a.m. the vascular fellow assessed the left limb and noted: L[left] foot cool; no cap [capillary] refill; no reading on Spl 2 probe; no sensory or motor function of foot ankle; return of sensation mid shin; calf muscle compartment doughy and tense. … [T]he limb is now clinically irreversible.

This injury likely occurred at time of accident. The extent of orthopedic and neurological injury makes this limb unsalvageable. In addition there is clinically dead muscle in the calf. No benefit to attempted revascularization. Pt. seen with Dr. Campbell. Decision to proceed to 1 degree [primary] amp [amputation] by ortho. [55] [ 161 ] Dr. Campbell, the vascular surgeon, was at the bedside at 7:10 a.m. His report showed that he concurred. [56] The orthopedic surgeon also concurred. [57] Nevertheless, Dr. Campbell ordered a CT scan angiogram. It was done between 7:30 and 8:00 a.m.

The report stated: Abrupt termination of the distal superficial femoral/popliteal artery. Collaterals reconstitute the popliteal artery with a long central filling defect. This is once again occluded at the level of the trifurcation. [58] [ 162 ] At 8:10 a.m., Mr. Baines was back to the ER. [ 163 ] At 8:35 a.m., Mr. Baines was taken to the operating room and his left leg was amputated above the knee. The surgery started at 9:15 a.m. and he left the operating room around noon. [ 164 ] After the surgery, Dr.

Michael McKee, one of the orthopedic surgeons reported his intraoperative observations, including the following: Unfortunately, both the anterior, lateral and both posterior compartments appeared to be completely ischemic or dead. There was no muscle contractility. There was no blood supply whatsoever. On the skin and subcutaneous cuts, there was evidence of some venous backbleeding but no arterial flow. The entire below-knee incision level appeared to be completely avascular and ischemic.

There was some haematoma tracking down into the posterior compartment but this was merely oozing of venous haematoma and not active circulation . [59] Standard of Care - Primary Factual Issues [ 165 ] The parties agree that the central factual contest in this case is whether Dr. Abounaja told the CritiCall agent or Dr. Lawless during the call sequence from 12:04 a.m. to 12:19 a.m. about the absent pulse in Mr. Baines’ left foot, and that Ajax Hospital did not have vascular services and that he was requesting an urgent transfer of Mr.

Baines to a trauma centre. [ 166 ] The content of the discussions are questions of fact. The evidence of the experts, who testified on standard of care, has contextualized the issue and I have taken their evidence into account as it relates to this issue. Unfortunately, experts in this case weighed in on the factual determination, by expressing opinions about what they believed were the contents of the discussions. I have disregarded those views. The Failure to Call Dr. Lawless

[ 167 ] It is necessary to address the failure to call Dr. Bernard Lawless as a witness. It was not demonstrated to me that the plaintiffs undertook to call him. Either side could have called him to testify. Despite some comments from counsel, Dr. Lawless’ ability to recollect relevant events is unknown. On the issue of the contents of the call at 12:16 a.m., I do not draw an adverse inference against either side from the failure to call him as a witness. Dr.

Campbell’s Consultation Note [ 168 ] It is also necessary, as a preliminary matter, to address what evidentiary use can be made of a consultation note, which Dr. Vern Campbell prepared on June 24, 2011, at 8:29 a.m. [60] Dr. Campbell was the vascular surgeon who assumed Mr. Baines’ care at St. Michael’s Hospital. His note includes details of what he did to understand Mr. Baines’ history. The portion of the note at issue states: I reviewed the sequence of events with the Trauma staff here who had handled the call.

As far as I can tell, the initial focus was on ruling out other injuries, so CT scan of thorax and abdomen were performed first and there was actually no mention in the CritiCall conversation about concern for left leg ischemia. As far as I can tell from the conversation when the CT scan turned out to be negative and attention was then focused on the left lower leg and it was at this point that the absence of left leg pulses was identified. Ortho assessment was requested to assess if the fracture was displaced and make sure it was not causing extrinsic compression.

I am not sure from the transfer notes if an ortho assessment was actually performed, but apparently a couple of hours went by before the definitive assessment was made that this was a vascular injury. Transfer was set up, but as noted above, vascular was not called until 0645. [ 169 ] This part of the note was not referred to in evidence until the last day of the trial when it was put to Dr.

Maggisano, a defence witness, in cross-examination when counsel was probing various matters that he considered in the preparation of his expert report. [ 170 ] The plaintiffs take the position that the note is evidence that Dr. Lawless was not told about Mr. Baines’ pulseless limb until after the CT scan results were reported. The submission is that since the note was covered by the plaintiffs’ notice under s. 35(1) of the Evidence Act , R.S.O. 1990, c. E.23 , as a business record, it is subject to the statutory exception to the rule against hearsay.

As well, it is subject to an agreement of the parties relating to the documents in the Joint Book of Documents, [61] which provides: The parties agree that the documents in the Joint Book of Documents are authentic copies of the originals. To the extent that records are business records as defined by the Evidence Act, RSO 1990 c. E. 23 , they are agreed to be evidence of such acts, transactions, occurrences or events as set out in the records, without prejudice to the right of any party to lead contrary evidence.

Where the records contain a diagnosis or statement of opinion those entries are admitted to establish the fact that the author(

s) of the entry reached those diagnoses or opinions at the time, and not for the truth or accuracy of those opinions. [ 171 ] The defence objects to the admission of this report for the purpose of establishing the accuracy of the contents. They rely on the authority of Adderly v. Bremner [62] that the statement in the note is not a record of an “act, transaction, occurrence made in the ordinary course of business” with respect to Dr. Abounaja’s and Dr. Lawless’ discussions. [ 172 ] I agree with the position of the defence. Dr. Campbell’s note about what he gathered about a third-party discussion from “[t]he trauma staff” is not a record of

an act, transaction or occurrence. [ 173 ] Even if I am wrong about that, statutory exceptions to the hearsay rule may be excluded, as evidence of the truth of the contents where the indicia of necessity and reliability are lacking, in the circumstances of a case. As well, an agreement between counsel about admissibility of documents is not automatically binding on a trial judge who remains the gatekeeper of evidence at all times, as the Court of Appeal for Ontario stated in Bruno v. DaCosta. [63] [ 174 ] There seemed to be some degree of acceptance at trial that the “trauma staff” referred to in the note was Dr.

Lawless, but there was no evidence of that from Dr. Campbell, who was not called as a witness. Dr. Lawless was not called as a witness, and why not is unknown. Necessity is not made out. The note is tentative. Twice the author repeats “as far as I can tell.” The specific source of his information is not named, and the reliability of that source cannot be determined. Reliability overall is not made out.

The particular concerns raised by this hearsay, which are not satisfied, make it inadmissible. [ 175 ] For these reasons, the report is not admissible to prove the content of the discussions and I have not considered it on the issue. Primary Factual Issues – Analysis and Finding [ 176 ] The discussions through CritiCall on June 24, 2011, between 12:04 a.m. and 12:19 a.m., took place nearly 11 years before the trial. [ 177 ] David Bailey had no specific recollection of his discussions with Dr. Abounaja or of the discussions between Dr. Abounaja and Dr. Lawless, which he monitored.

His testimony was based solely on CritiCall policy, his contemporaneous notes and his usual practice. He had a duty to take notes and record any relevant medical conditions. He was trained and experienced. He understood the significance of an ischemic leg as an imminently life-threatening condition. He testified that, based on his training, knowledge and practice, if Dr. Abounaja had mentioned Mr. Baines’ ischemic leg, he would have recorded it. He did not record it. From that he deduced that Dr. Abounaja did not tell him, or Dr. Lawless, about Mr. Baines’ ischemic leg. He was certain of that. [ 178 ] Mr.

Bailey did not record that Dr. Abounaja informed him or Dr. Lawless that the Ajax Hospital did not have vascular services available. [ 179 ] Mr. Bailey did not record any dispute over the plan that Dr. Lawless proposed. He said that if there had been a dispute, he

would have recorded it because CritiCall had policies for that. [ 180 ] Dr. Abounaja acknowledged that the CritiCall records were accurate, but incomplete. He testified to significant and detailed memories of the two calls. [ 181 ] Dr. Abounaja testified that he does not remember the exact details of his discussions with Mr. Bailey, but he does remember the context, the core and the reason for the calls. He testified that he told Mr. Bailey that he detected no pulse in Mr. Baines’ lower left leg. He told him that Mr. Baines had a life-threatening and limb-threatening condition. He told him that Mr.

Baines needed an urgent transfer to a trauma center. [ 182 ] Dr. Abounaja testified that he could not recall the exact words used, but remembered telling Dr. Lawless the scenario, the history and the findings. This included that he could not detect any pulse in the lower extremity of the left leg with the fractured femur. He needed the patient to be transferred urgently to a multiple systems trauma center. He said he was 100 percent certain he requested a transfer of the patient. [ 183 ] The defence position was that it cannot be inferred from Dr. Lawless’ failure to accept a transfer of Mr.

Baines at the time that he was not told about the pulses. Dr. Lawless subsequently refused a transfer when he knew about them. I accept that. [ 184 ] The defence argued that it is unlikely that Dr. Lawless and Dr. Abounaja did not discuss the pulses. Counsel referred to the evidence of Drs. Tien, Lindsay and McMillan that trauma team leaders invariably ask questions about the patient’s status, including the neurovascular status of a fractured limb. They ask about the availability of relevant specialist services at the referring hospital, according to Dr. Lindsay.

In my view, it seems unlikely that those questions were asked here in light of Dr. Thompson’s evidence that Dr. Lawless asked him: “Can’t you guys fix it?” and Dr. Thompson’s evidence he seemed unaware that there were no vascular services at Ajax Hospital. [ 185 ] The cross-examination of Mr. Bailey focused on details discussed that he did not include in his recordings. For example, he did not record all details of the investigation relating to the suspected abdominal issue. But, I note that he did record suspected blood in the upper quadrant and that Dr.

Abounaja relayed in the discussion the management that he provided in Ajax. [ 186 ] The defence also argued that it makes no sense to conclude that Dr. Abounaja did not request a transfer. There was evidence from the expert witnesses, Drs. Greenway, Tien, Lindsay and McMillan, that the only reason why an ER physician would call CritiCall for a trauma patient is to speak to a trauma team leader to request transfer to a trauma centre. I accept that evidence. But Mr. Bailey’s evidence was not that Dr. Abounaja had called for some other purpose. His evidence was simply that if Dr.

Abounaja had expressed any dispute about the plan formulated during the call, which effectively was not to transfer Mr. Baines at the time, he would have recorded it. From that and the nature of the plan and Dr. Abounaja’s failure to object to it, the plaintiffs say it can be inferred that urgency was not Dr. Abounaja’s priority. [ 187 ] Dr. Abounaja’s recollection of events seemed unlikely. Most of the expert witnesses testified that his notetaking was substandard. He admitted it. He made no note about the purpose or content of his calls to CritiCall.

In fact, the only reference in his notes is: “Critl called 200 am/Dr. Thompson called.” There was no call to or from CritiCall at 2:00 a.m. Dr. Abounaja never recorded a pulseless limb in his notes or a plan of management for it. He made no note of a request for transfer or a rejection of a request for transfer. The only note (apart from the CritiCall records) that was contemporaneous was a nurse’s note after the 12:19 a.m. discussion, where, in response to the nurse’s concerns about wasting time, Dr. Abounaja was reported to say: “I was asked at CritiCall to get the CT done before I send him.” [ 188 ] Dr.

Abounaja’s actions were more consistent with what was in the CritiCall notes than what he told the nurse. The CritiCall notes recorded the plan as: “[I]f scans reveal nothing then Ortho locally should see the patient.” At 2:34 a.m. when Dr. Abounaja returned Mr. Bailey’s second call, he is reported in the CritiCall records to have said: “[E]verything was negative. Will have ortho locally see the patient in regards to the femur.” Dr. Abounaja then paged orthopedic surgeon Dr. Thompson at 2:34 a.m. According to Dr. Thompson Dr. Abounaja did not tell him that he had been in touch with CritiCall. [ 189 ] Dr.

Abounaja’s vivid recollections seem unlikely. After Dr. Abounaja handed care of Mr. Baines over to Dr. Thompson, he had nothing further to do with him. He testified that his expectation was that Mr. Baines would receive the care he needed. He could not recall when he next heard about Mr. Baines. He was served with the Statement of Claim sometime after June 2013. He said that he was shocked to receive it. He admitted that he would have seen about 5,000 patients between June 2011 and June 2013. Since then, another nine years have elapsed. [ 190 ] Dr. Abounaja showed some significant failures of recollection.

His evidence about receiving the last of the final CT scan results was inaccurate and confusing, even with the benefit of hospital records. He said that he paged the radiologist around 2:00 a.m. It was, in fact, 1:26 a.m. At first, he said he had been checking for the results every couple of minutes. He said he got the results about 2:30 a.m. When presented with the evidence that they were available at 1:34 a.m., he said he stopped checking for them every few minutes after he paged the radiologist. [ 191 ] At his examination for discovery on July 15, 2015, Dr.

Abounaja testified that he had no recollection of the second call from Mr. Bailey at 2:34 a.m., looking for information about the CT scan results. However, his evidence at trial was that he now remembered it. He remembered it a few months before trial. But he did not correct his discovery evidence before trial. He said that his memory was revived looking at records. However, the CritiCall records were the only ones documenting the call. [ 192 ] Mr. Bailey was conscientious in doing his job. When Dr. Abounaja had not called CritiCall with the results of the CT scan, Mr.

Bailey called twice at 1:41 a.m. and 2:34 a.m. to follow up. In my view, Mr. Bailey’s evidence was reliable. The records he made were contemporaneous. I find them to be reliable. They do not support Dr. Abounaja’s version of events. Dr. Abounaja’s testimony was unreliable and at times incredible. [ 193 ] I find that Dr. Abounaja did not tell David Bailey, or Dr. Lawless, or anyone at CritiCall during the call sequence from 12:04

a.m. to 12:19 a.m. that Mr. Baines had a pulseless leg. He also did not tell them that Ajax Hospital did not have vascular services to save a pulseless leg. He expressed no opposition to the plan that Dr. Lawless provided during their discussion, inherent in which were lengthy delays. From this, I infer that he did not press for an urgent transfer. [ 194 ] For the same reasons, I accept David Bailey’s evidence that at 2:34 a.m., following his discussion with Dr. Abounaja, he closed the record on the case on the basis that the request for transfer had been cancelled and he would never have done that without Dr.

Abounaja’s direction. I do not accept Dr. Abounaja’s evidence that he did not cancel the request. Dr. Abounaja’s recent recollection of the call is unlikely. Standard of Care – The Legal Principles [ 195 ] The standard of care required of a medical practitioner is to exercise a reasonable degree of skill and knowledge and the degree of care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing: see Crits v. Sylvester. [64] [ 196 ] The standard of reasonableness is not a standard of excellence that amounts to perfection.

A physician’s honest and intelligent exercise of judgment will satisfy the standard of care: Armstrong v. Royal Victoria Hospital . [65] The plaintiff must show that any lapse is more than an error in judgment. It must rise to the level of unskilfulness, or carelessness or lack of knowledge. [ 197

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