Epstein v. Salvation Army Scarborough Grace General Hospital
Joel Epstein and Margaret Guam, (plaintiffs/respondents), and
The Salvation Army Scarborough Grace General Hospital, Dr. D.
Fell, Dr. C.K. Gormon, Dr. J.D.W. Hamilton, Dr. C. Alvarez,
Dr. John Doe, Ms. A. Leslie, Ms. Boatswain, Ms. Baruch and Ms.
Jane Doe, (defendants/appellants)
 O.J. No. 3563
124 O.A.C. 233
91 A.C.W.S. (3d) 167
Docket No. C27736
Ontario Court of Appeal
Weiler, Austin and Charron JJ.A.
Heard: June 16 and 17, 1999.
Judgment: September 27, 1999.
Medicine -- Liability of practitioners -- Negligence -- Causation.
Appeal by the defendant doctors Hamilton, Gorman and Fell from findings of liability against them. The plaintiff Epstein sued them for damages as a result of his stay in the defendant Hospital. He had been diagnosed with diabetes at about age 10. He was insulin dependent and required careful monitoring. Between the ages of six and 35, he had over 60 admissions and attendances at hospitals and was treated for hypoglycemia on eight occasions. At 29, he attended at the emergency department of the Hospital complaining of abdominal pain. Hamilton, a general surgeon, concluded that he was suffering from an infection of the colon and admitted him for treatment with antibiotics. He arranged to have Gorman, an expert in internal medicine with expertise in the management of diabetic patients, see Epstein for his diabetes. Gorman had seen Epstein periodically over nine years. He ordered an insulin drip and gave orders to monitor his blood glucose levels four times daily. His blood glucose levels were found to be abnormally low. The insulin was discontinued on Gorman's order because of this hypoglycemic reaction to a minimal infusion of insulin. Hamilton visited Epstein on November 2, 3 and 4. His abdominal symptoms improved. On November 4, Fell, a specialist in internal medicine on call, was advised the Epstein had a blood glucose level of 16.2. He concluded that the readings were in the safe range. He was told that Epstein had exhibited uncooperative behaviour, but was not told that he was complaining of thirst or symptoms of hyperventilation. In the early hours of November 5, Epstein was saying that he was hypoglycemic. A glucometer reading of 6.9 was obtained. Fell was called again and told that Epstein was lying in bed moaning and had been agitated. His intravenous had come out but could not be put back because of his uncooperative behaviour. Fell prescribed Ativan to settle Epstein. At 6:00 a.m., Fell was notified that the glucometer was high. He ordered insulin. At 7:30 Epstein's glucose level was 69. He could not be aroused and his blood pressure was only 70. Fell ordered more insulin and went to see Epstein. Gorman was called to attend Epstein who had fallen into a hypoglycemic coma. Epstein was transferred to the intensive care unit and monitored closely. He was in a coma for about 12 days. Six medical experts testified. The trial judge found that Epstein fully recovered from his coma without significant sequelae. He found that Epstein was a very manipulative man of no credibility and rejected his testimony. He found that there was a failure of the duty of care by Hamilton, Gorman and Fell and found them liable.
HELD: Appeal allowed and action dismissed. The trial judge erred. The evidence failed to establish any nexus between the fault and the loss. The trial judge misapprehended the expert evidence. There was no evidentiary basis for the findings of fault against Hamilton, Fell and Gorman.
On appeal from the judgment of Gotlib J. dated June 18, 1997.
E. Stewart and L. Constantine, for the appellants.
R.G. Colautti and A. Thurson, for the respondents.
Reasons for judgment were delivered by Charron J.A., concurred in by Austin J.A. Separate reasons were delivered by Weiler J.A.
1 CHARRON J.A.:-- The respondent, Joel Epstein, a Type I diabetic, suffered a 12-hour period of unconsciousness caused by hyperglycemia while he was a patient in the defendant hospital in early November 1990. The respondent Margaret Gaum is his mother. The respondents brought an action in negligence for damages against the hospital, the defendant nurses and the three defendant physicians. Prior to the commencement of trial, the respondents accepted $50,000 from the hospital and the defendant nurses in full settlement of their claim against those defendants. Following a trial before Gotlib J. without a jury, Mr. Epstein and his mother recovered judgment for damages in the amounts of $40,000 and $1,000, respectively, against Drs. Gorman, Fell and Hamilton. Mr. Epstein also recovered judgment for costs fixed at $40,000 and for pre-judgment interest. The three physicians appeal against the findings of negligence, the assessment of damages, and the refusal of the trial judge to set-off, against the damage award or the costs, the respondents' $50,000 pre-trial settlement with the hospital and its employees.
2 For the reasons that follow, I conclude that the findings of negligence against the appellants cannot stand. While it may not be necessary to do so, I also find the assessment of damages excessive. In light of my conclusions, the issue of set-off becomes moot and, accordingly, I will refrain from dealing with that issue.
The events during Mr. Epstein's hospitalization at the defendant hospital
3 As the trial judge set out the facts at considerable length in her reasons reported at (1997), 35 O.T.C. 811, I will only give a brief outline of the facts that are most relevant to this appeal.
4 Mr. Epstein was born September 23, 1961. He was 29 years old at the time of admission to the defendant hospital and 35 at the time of trial. Mr. Epstein was diagnosed with Type I diabetes at approximately age 10. In general terms, this means that he is insulin dependent and suffers from an acute form of diabetes known as diabetes mellitus which requires careful monitoring. Between the ages of 6 and 35, he suffered a myriad of conditions leading to medical treatment. The trial judge lists over 60 admissions and attendances at a variety of hospitals during that period. Mr. Epstein's attendance at emergency departments of hospitals for treatment of hypoglycaemia on eight separate occasions over the years are the only attendances relevant to this appeal. The patient's history of hypoglycaemic events is relevant because it played a role in the physician's treatment of his diabetic condition during his hospitalization in the defendant hospital.
5 Mr. Epstein attended at the emergency department of the defendant hospital on the evening of October 31, 1990 with complaints of abdominal pain. Dr. James Hamilton, a general surgeon whose particular area of interest is colo-rectal surgery, assessed Mr. Epstein on November 1, 1990. Dr. Hamilton's clinical impression was that Mr. Epstein was suffering from diverticulitis, an infection of the small sacs of the colon. Dr. Hamilton admitted Mr. Epstein to hospital for treatment with antibiotics. He arranged to have Dr. Charles Gorman see Mr. Epstein in consultation with respect to his diabetes. Dr. Hamilton had dealings with diabetic patients but did not have the expertise to manage a patient with Mr. Epstein's condition.
6 Dr. Gorman is an expert in internal medicine with particular expertise in the management of diabetic patients. Dr. Gorman first saw Mr. Epstein approximately nine years before the events in question in this litigation. From that time, he saw Mr. Epstein periodically over the years for management and follow-up of his diabetes. Dr. Gorman saw Mr. Epstein in consultation at the defendant hospital at Dr. Hamilton's request on November 1, 1990. He ordered an insulin drip and gave orders to the nurses to monitor Mr. Epstein's blood glucose levels four times daily using a glucometer. Shortly following his admission, Mr. Epstein's blood glucose levels were found to be abnormally low. Insulin was discontinued on Dr. Gorman's order because of this hypoglycaemic reaction to a minimal infusion of insulin. In light of this reaction and of Mr. Epstein's history of hypoglycaemic episodes in the past, Dr. Gorman considered it to be appropriate to discontinue Mr. Epstein's insulin and to continue to monitor his blood glucose levels. Insulin was not to be restarted without physician consultation. Dr. Gorman made the following notation to Mr. Epstein's chart on November 1: "well known to me re: diabetes and emotional status - will follow with you." The policy at the hospital at that time was that the nurses would contact the physician if a patient's blood glucose levels rose above the 12 to 14 range. Dr. Gorman did not hear from anyone at the hospital until he was urgently called in the early morning hours of November 5, 1990 to attend upon Mr. Epstein who had fallen into a hyperglycaemic coma.
7 Dr. Hamilton visited Mr. Epstein on November 2, 3 and 4. By November 4, Mr. Epstein's abdominal symptoms were improving. Dr. Hamilton testified that he would not necessarily have reviewed Mr. Epstein's diabetic record on those visits because he was relying on Dr. Gorman for the diabetic management of the patient.
8 Dr. David Fell was on call at the hospital for internal medicine between 8:00 a.m. on Sunday, November 4 and 8:00 a.m. on Monday November 5, 1990. Dr. Fell is a physician with a specialty in internal medicine and a sub-specialty in cardiology. At all relevant times, he was on active staff at the hospital as a cardiologist and internist. Dr. Fell has also had experience treating many patients with diabetes.
9 At 10:00 p.m. on November 4, Dr. Fell received a telephone call from the nurse on Mr. Epstein's ward informing him that Mr. Epstein had a blood glucose level of 16.2. Dr. Fell made further inquiries of the nurse and was informed that Mr. Epstein suffered from diabetes mellitus, that his diabetic condition was managed by Dr. Gorman and that his insulin had been discontinued by Dr. Gorman because of a significant hypoglycaemic reaction shortly following his admission to hospital. Dr. Fell was also told about Mr. Epstein's history of hypoglycaemic reactions in the past. Dr. Fell inquired about the blood glucose readings and concluded that the readings, although increasing and mildly elevated, were in the safe range. Dr. Fell also inquired about the clinical condition of the patient and was told that the patient had improved since admission, that he had exhibited uncooperative behaviour and that he had a history of emotional and behavioral problems. Dr. Fell was not told of any complaints by the patient of thirst or of any symptoms of hyperventilation. Based on the information received, Dr. Fell was concerned that the renewed administration of insulin might precipitate a hypoglycaemic reaction. Because the patient's condition was reported as stable and his blood glucose level was considered to be in a safe range, Dr. Fell told the nurse to continue to monitor Mr. Epstein's blood glucose levels but did not order insulin.
10 At 11:30 p.m. on November 4, a nurse contacted Dr. Hamilton at home to report that Mr. Epstein's intravenous had come out and that she was unable to start it again because of the patient's uncooperative behaviour. Dr. Hamilton was told that the patient was tolerating clear liquids. Dr. Hamilton instructed the nurse that the intravenous could be left out for the time being. He could not recall whether or not he was told that Mr. Epstein had a blood sugar of 16.2, but said that he would have deferred to his colleagues in internal medicine regarding the management of this patient's diabetes. He told the nurse to contact the internist on call if there were any further problems with Mr. Epstein.
11 At 2:30 a.m. on November 5, Mr. Epstein was maintaining that he was hypoglycaemic. A glucometer reading of 6.9 was obtained at that time. No call was made to any physician at that point. The nurse did not consider this fluctuation to be any cause for concern.
12 At 3:15 a.m. on November 5, Dr. Fell received another telephone call from a nurse on Mr. Epstein's ward. At the time, Dr. Fell was resuscitating a patient with serious cardiac problems in the emergency room. The nurse told Dr. Fell that Mr. Epstein was lying in bed moaning, avoiding eye contact and had been agitated. She told him that his intravenous had come out and that it could not be put back in because of his uncooperative behaviour. He was further advised that the most recent glucometer reading registered at 6.9. Dr. Fell was not told that Mr. Epstein had been complaining of thirst or that he was hyperventilating. Given that the previous reading had been 16.2, the present result of 6.9 reinforced to Dr. Fell that precipitous hypoglycaemia was a concern for this patient and that, had he given insulin earlier, there would have been a significant chance of having provoked a hypoglycaemic reaction. Reassured by the more recent normal blood glucose reading, Dr. Fell prescribed Ativan to help settle Mr. Epstein.
13 At 6:00 a.m. Dr. Fell was contacted by a nurse and notified that the glucometer was reading "hi". He ordered a laboratory testing of the blood glucose level and the prompt administration of 6 units of insulin. At 7:30 a.m. Dr. Fell was advised that the reported glucose level was 69. Dr. Fell was shocked to hear this and asked the nurse to check the patient's clinical status immediately. The nurse reported that the patient could not be aroused and that he had a blood pressure of only 70. Dr. Fell immediately ordered insulin at 4 units per hour and ran to the patient's bedside. He immediately instituted resuscitative measures. Dr. Gorman arrived shortly thereafter.
14 Mr. Epstein was transferred to the intensive care unit and monitored closely. He remained in a state of unconsciousness for approximately 12 hours. He responded well to treatment over the 12 hour period and eventually regained consciousness. He recovered and was transferred to the regular ward on November 7. His claim of brain damage caused by this episode was rejected by the trial judge. Mr. Epstein was found to have fully recovered from the hypoglycaemic coma without sequelae other than some bruising and leg swelling.
The expert opinion at trial
15 There was no issue at trial with respect to the treatment that Mr. Epstein received from the time he became unconscious until his recovery. The sole issue was whether the care provided by the three physicians fell below the requisite standard of care thereby resulting in the hyperglycaemic reaction which caused Mr. Epstein to be in a coma for 12 hours.
16 The determination of this issue turned entirely on the expert evidence called at trial and did not depend on Mr. Epstein's testimony. Mr. Epstein was found by the trial judge to be "a highly manipulative man" of "no credibility" and his testimony was totally rejected. Six medical experts testified at trial, including the three appellants. Drs. John William Hare, Anne Beatrice Kenshole and Peter Vertner Clarke were qualified to give expert opinion evidence in the field of endocrinology and more particularly with respect to the treatment and management of diabetes. Dr. Hare was called by the plaintiff, the other witnesses were called by the defence. Two of the appellants, Drs. Gorman and Fell, were also qualified to give opinion evidence as experts in internal medicine, including the assessment and treatment of patients with diabetes, and were each found to have "impressive medical credentials." The third appellant, Dr. Hamilton, was qualified as an expert in the area of general surgery.
17 The trial judge has reviewed the medical evidence in her reasons and, for the purpose of this appeal, it is only necessary to review this evidence as it relates to the trial judge's findings of liability.
Applicable principles of law
18 The trial judge correctly instructed herself on the law. She quoted from Crits and Crits v. Sylvester, (1956), 1 D.L.R. (2d) 502 (Ont. C.A.) at 508 on the standard of care required of a physician:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.
19 The trial judge then correctly noted various cases that reiterate the principle that an error of judgment will not constitute negligence unless that error also amounts to a failure to meet the above-noted standard of care. Differences of opinion and practice exist in the medical profession as in other professions and a physician is not negligent simply because his conclusion may differ from that of others in his profession. Finally, the trial judge correctly noted that the onus is on the plaintiff to prove a breach of the duty of care and that there must be a causal nexus between the breach and the alleged loss; that is to say, the negligence must have resulted in the alleged loss.
20 Certain additional principles must be borne in mind in the disposition of this appeal.
21 It is important that the court guard against the perfect vision of hindsight. The Supreme Court of Canada in LaPointe v. HÙpital Le Gardeur (1992), 90 D.L.R. (4th) 7 at 14 reiterates the principle that a physician is not to be judged by the result and states as follows:
In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.
22 It is also important that the court guard against reaching conclusions on technical matters outside its own competence based on personal opinions rather than on the evidence from qualified witnesses.
23 Finally, the standard of appellate review must be kept in mind. It is not the role of this court to substitute its own view of the evidence for that of the trial judge. It is trite law that this court should not interfere with the findings of fact and the conclusions of the trial judge in the absence of manifest error or unless it can be shown that the evidence cannot reasonably support the conclusion.
24 With all respect to the trial judge, it is my view that the following errors necessitate appellate intervention in this case:
(a) The evidence fails to establish any nexus between the fault, as found by the trial judge, and the loss. The trial judge failed to consider this element of causation in her determination of liability with respect to the three appellants.
(b) There is no evidence that the conduct of Dr. Gorman, on which the trial judge based her finding of fault, fell below the standard of care expected of a physician in his position.
(c) The trial judge misapprehended the expert evidence of Dr. Clarke and this error contributed in a material way to her conclusion of liability with respect to Dr. Fell.
(d) The preponderance of evidence cannot reasonably support the finding of liability against Dr. Fell.
(e) The trial judge failed to guard against appreciating the evidence with the benefit of hindsight and this error was material in her assessment of the evidence with respect to Dr. Fell.
(f) There is no evidence on the standard of care to be expected of a general surgeon in the position of Dr. Hamilton.
The trial judge's findings of liability
25 It is noteworthy, in my view, that the trial judge did not reject any of the appellants' testimony on the events that transpired or on the expert opinions that they gave. Nor did she reject any of the other expert evidence called by either party. Indeed, the record does not reveal any reason why the trial judge would have rejected any of the testimony. The trial judge's findings therefore appear to be based, and on some points are expressly stated as being based, not on the preference or acceptance of the testimony of one expert over the testimony of others but rather, on the overall preponderance of medical evidence. As will be discussed below, it is my view that the preponderance of evidence cannot reasonably support the trial judge's conclusions.
(a) Dr. Gorman
26 In dealing generally with liability, the trial judge said the following:
The Court finds that there is more involved in this case than matters of judgment. The three doctors who treated this plaintiff were extraordinarily skilled men doing a difficult job in a busy hospital. The plaintiff was a very difficult patient. Dr. Hamilton obviously made the correct diagnosis because after the administration of antibiotics, the pain and distention in the plaintiff's abdomen subsided, and his white blood cell count returned to normal. There was a failure of the duty of care of the three doctors. It lies in their handling of the information and delegation of duties on a weekend.
27 The trial judge then made the following findings with respect to Dr. Gorman:
Dr. Gorman knew much about this plaintiff, having treated him for his diabetes for a number of years. The discontinuing of insulin when his blood sugar reading was 1.8, according to the experts was appropriate. The decision not to institute a sliding scale of administration of insulin was, according to the experts, also appropriate. His instruction to the nurses was apparently to call the internist on duty if there were any problems. This too was appropriate. But Dr. Gorman knew that this was a difficult patient and that he had a difficult case of diabetes and should have alerted Dr. Fell to possible problems.. [Emphasis added.]
28 The trial judge therefore concluded as follows with respect to Dr. Gorman:
Dr. Gorman's negligence consisted of handing over a patient such as Mr. Epstein to the on call physician over the weekend without a word to warn him, when he knew or ought to have known that the on call internist would likely have a busy weekend.
29 It is noteworthy that the trial judge found in particular that Dr. Gorman's instruction to the nurses to call the internist on duty if there were any problems was appropriate. Having made this finding, it is not at all obvious how Dr. Gorman's failure to alert that internist of possible problems can be said to fall below the standard of care to be expected of him in the absence of expert evidence to that effect. The question whether Dr. Gorman should have contacted the internist on duty was not canvassed at all with the witnesses at trial. A court should not speculate about the adequacy of professional standards in the absence of expert evidence about those standards. On the facts of this case, I agree with counsel for the appellants that the trial judge, in making this particular finding of liability, effectively imposed her own view of the standard of care to be expected from Dr. Gorman.
30 Further, I see no other support in the evidence for the finding of liability against Dr. Gorman. Dr. Hare's evidence was that generally the standard of care was not reached because "the management of this diabetes was largely ignored". Quite apart from the fact that it is difficult to find support for that general comment on the record2, Dr. Hare does not suggest that it was Dr. Gorman who was guilty of ignoring the management of the diabetes. According to the policy in force at the hospital at the time, nurses would contact a physician if a diabetic patient's blood glucose levels rose above the 12 to 14 range. No criticism of such a policy was made at trial. In fact, the evidence was that this was a very safe guideline and that a similar policy was followed at other hospitals with the precise level sometimes as high as 15. Following November 1 and until November 5, 1990 at 7:30 a.m., Dr. Gorman was not contacted by any nurse with respect to Mr. Epstein's blood glucose levels, or with respect to any other issue concerning the patient's condition. Based on this record, if there was a failure of communication, it was not a failure on the part of Dr. Gorman.
31 Finally, there is no evidence that Dr. Gorman's failure to act, as found by the trial judge, caused or contributed to the loss. The issue of causation was never addressed in the evidence and no analysis is provided by the trial judge on that element of the alleged tort.
32 Consequently, it is my view that the finding of liability against Dr. Gorman is not supported by the evidence and cannot stand.
(b) Dr. Fell
33 The trial judge made the following findings with respect to Dr. David Fell:
Dr. Fell was engaged in a cardiac emergency when the dangerous level of blood sugar readings was developing, in the early morning hours of November 5. He was correct in assuming that Dr. Gorman, by not ordering sliding scale insulin administration, wanted physician judgment before the administration of that remedy. Dr. Fell's actions, however, fell below the standard of care required of a specialist in not responding to the numbers which were furnished to him and which should have caught his attention. [Emphasis added.]
34 The trial judge then reviewed the evidence of the "numbers" furnished to Dr. Fell and the expert opinion with respect to these numbers:
That is, the 13.1 glucometer reading at 11:15 a.m. on November 4, the 12.4 reading at 4:30 p.m. on November 4, the 16.2 glucose reading at 10:00 p.m. on November 4 and the 6.9 reading at 2:15 a.m. on November 5. He did in fact, respond to the "high" reading at 6:00 a.m. on November 5, ordered the lab test which showed a glucose reading of 69, clearly an emergency situation ... Dr. Hare would have administered insulin once the reading reached 11 blood sugar being then clearly elevated. Dr. Clarke would have administered insulin for readings over 10. Dr. Kenshole said that a blood sugar reading of 15 was not clearly elevated even though a blood sugar reading of 11 could garner a diagnosis that would involve the administration of insulin. In her view at a reading of 15, the doctor should be called but she has had patients with a reading greater than 30. Where patients are insulin dependant, it is a highly individual assessment.
35 The trial judge then concluded:
This Court finds that the preponderance of medical evidence is such that clearly steps ought to have been taken by Dr. Fell which he did not do.
36 Later in her reasons, the trial judge also made the following finding concerning Dr. Fell:
Both Drs. Fell and Hamilton failed to notice and react to signs of ketoacidosis. Both being experienced specialists, they ought to have seen and acted on those signs. Notwithstanding this plaintiff's bizarre and violent behaviour in hospital, he was entitled to proper care for his diabetic condition. In fact, his treatment for diabetes fell between the slats and was not properly attended to until there was an emergency.
37 Hence, the trial judge based her finding of liability against Dr. Fell on the fact that he failed to restart the administration of insulin sooner, presumably at the time of the first call to him at 10:30 p.m. on November 4, or at the time of the second call at 3:15 a.m. on November 5. She appears to have arrived at this conclusion mainly on the basis of the glucometer readings and on other "signs of ketoacidosis" that Dr. Fell failed to respond to.
38 In my view, there are several difficulties with this finding of liability.
39 First, it is based in part of a misapprehension of Dr. Clarke's evidence that he would have administered insulin when Mr. Epstein's blood glucose level exceeded 10 when that clearly was not the opinion he gave at trial. When the complete information possessed by Dr. Fell and his course of conduct were described to Dr. Clarke, he was unequivocal in his responses that he would "not have done other than what he [Dr. Fell] did." Dr. Clarke's opinion is entirely supportive of Dr. Fell's treatment of Mr. Epstein. His statements with respect to the administering of insulin when the blood glucose reading is over 10 were given in response to a series of questions put to him in cross-examination based on the assumption that a sliding scale approach would be used.3 Dr. Clarke, however, was clearly of the view that such an approach was inappropriate in the case of a patient such as Mr. Epstein. Drs. Gorman and Kenshole shared that opinion and the trial judge held that Dr. Gorman's decision not to use a sliding scale was appropriate.
40 Second, the preponderance of evidence does not, as the trial judge concluded, support a finding that Dr. Fell failed to take steps that he ought to have taken, but rather supports the steps that he took. In my view, the trial judge's erroneous conclusion on this point can only be explained by her misapprehension of the testimony of Dr. Clarke. The record clearly reveals that both Dr. Clarke and Dr. Kenshole unequivocally supported the decision made by Dr. Fell. Further, Dr. Gorman indicated that while he would have given Mr. Epstein a small dose of insulin when the level of blood glucose reached 16.2, he was not at all critical of Dr. Fell. Dr. Gorman viewed this simply as a difference in judgment that, in his view, would not have changed the ultimate result. Finally, Dr. Hare was the only expert witness who was critical of Dr. Fell's decision. However, nowhere in his testimony does Dr. Hare give the opinion that the failure to re-institute the administration of insulin at an earlier point in time was something more than an error in judgment and that it constituted a breach of the standard of care to be expected of a physician like Dr. Fell. Rather, he stated that he would "quarrel" with Dr. Fell's "judgment" in failing to re-institute insulin on the evening of November 4, conceding that this was an issue "on which reasonable people can disagree."
41 Third, the evidence does not support a finding that Dr. Fell was informed of "signs of ketoacidosis" to which he failed to react. For our purposes, it is sufficient to describe ketoacidosis as a condition that occurs when there is a severe lack of insulin. It is the condition that, in this case, eventually led to Mr. Epstein's period of unconsciousness. The various signs of ketoacidosis were described by the experts at trial. Generally, they include excessive urination followed by thirst then nausea, vomiting, fatigue and in later stages, hyperventilation. However, all the experts recognized that none of these symptoms is specific to ketoacidosis and that they must be considered in context.
42 The evidence is uncontradicted that Dr. Fell was not informed of any of these signs by the nurses at the relevant times although he inquired of the patient's clinical condition at the time. A question arose at trial whether Dr. Fell should have specifically inquired whether the patient was thirsty or whether he was hyperventilating. Neither Dr. Kenshole or Dr. Clarke saw any reason why Dr. Fell would have made that specific inquiry. While it is implicit from Dr. Hare's testimony that he was of the opinion that Dr. Fell should have inquired about those specific symptoms, Dr. Hare was not aware of the information given to Dr. Fell and was not aware that Dr. Fell had inquired about the patient's clinical condition.
43 In any event, it is my view that the preponderance of evidence does not support a finding that the patient was exhibiting signs of ketoacidosis during the relevant period of time. Drs. Gorman, Fell, Kenshole, and Clarke, all experts in the field, saw no reason to suspect the onset of ketoacidosis at the time on the basis of this record and Dr. Hare expressly recognized that he was attributing the patient's symptoms to the onset of ketoacidosis through the use of a "retrospectoscope", that is with the benefit of hindsight. In addition, it is noteworthy that, during the period of time both Drs. Fell and Hamilton were called in the late evening hours of November 4, the patient was uncooperative and highly agitated. Dr. Kenshole was of the opinion that this behaviour was "completely atypical" of a ketoacidotic state. Dr. Clarke also testified that being agitated and combative was not part of ketoacidosis. Rather, he stated that one would expect the patient to be "difficult to rouse, semiconscious, stuporous, excessively drowsy." Dr. Gorman was of the same view. Dr. Hare agreed that agitation was "atypical of ketoacidosis" but, in his view, it was not inconsistent with it. Likewise, when Dr. Fell was called for the second time at 3:15 a.m., the patient was exhibiting uncooperative behaviour, was moaning and avoiding eye contact. Also, of significance at the time of the second call was the fact that Dr. Fell was informed that the last glucometer reading was 6.9. This brings us to the next point.
44 Fourth, the trial judge failed to consider the effect of the 6.9 reading on the overall course of action taken by Dr. Fell. This, in my view, provides a further example of the improper use of hindsight in the assessment of the evidence. The hospital records indicate that, at 2:15 a.m. on November 5, Mr. Epstein was complaining that he felt hypoglycaemic. A glucometer reading was taken at the time and it indicated 6.9, seemingly confirming that the patient's blood glucose level was going down. Dr. Fell was informed of this reading when he was called at 3:15 a.m. As indicated earlier, this reading confirmed in Dr. Fell's mind that precipitous hypoglycaemia was a real concern for this patient and that there would be a significant chance that the administration of insulin could provoke a hypoglycaemic reaction. All the experts at trial agreed that the glucometer reading of 6.9 must have been erroneous because it was simply inconsistent with the course of events in the hours that followed. However, all the experts, except Dr. Hare, testified unequivocally that they would not have had any reason to suspect that the reading was in error at the time it was taken. It is only in retrospect that they would conclude that it had to be erroneous. Dr. Hare is the only witness who testified that he would have been suspicious of the reading at the time and would have asked for another glucose check. Again, the preponderance of evidence clearly supports Dr. Fell's reliance on that reading and his judgment call at the time.
45 Finally, and perhaps more importantly, there is no evidence that the hyperglycaemic coma suffered by Mr. Epstein is causally connected to the failure to restart the insulin at the relevant times, either late November 4 or in the early hours of November 5. The trial judge does not address the element of causation in her reasons. Therefore, even if it could be said that Dr. Fell was negligent in failing to act sooner, there is no evidence to support a finding that such conduct was causally linked to the loss. Indeed, the evidence on this point supports the opposite conclusion. The issue is not canvassed at all with Dr. Hare and the other experts testified that the administration of insulin at an earlier time would not have changed what happened. Dr. Gorman testified that, in his view, the administration of insulin at the time of the 16.2 reading would "not have changed the situation." Dr. Kenshole agreed that "it would have made no difference." Dr. Clarke expressed the view that the rapid rise in Mr. Epstein's blood glucose level could not be explained simply by the lack of insulin. He thought there must have been "something else going on."
46 For these reasons, I am of the view that the finding of liability against Dr. Fell cannot stand.
(c) Dr. Hamilton
47 The trial judge essentially based her finding of liability against Dr. Hamilton on his failure to act upon the information he received from the nurse when he was called at home at 11:30 p.m. on November 4. She concluded as follows:
When Dr. Hamilton received advice from the nurse of the hyperventilation, the 16.2 glucose reading, the fact that the plaintiff was rolling from side to side and the intravenous problem, he should at that point have called Dr. Gorman, at least .... As the admitting physician, Dr. Hamilton had primary responsibility for the care of this patient. Both doctors Fell and Hamilton failed to notice and react to signs of ketoacidosis. Both being experienced specialists, they ought to have seen and acted on those signs. Notwithstanding this plaintiff's bizarre and violent behaviour in hospital, he was entitled to proper care for his diabetic condition. In fact, his treatment for diabetes fell between the slats and was not properly attended to until there was an emergency.
48 I have already indicated that, in my view, the preponderance of evidence does not support a finding that Mr. Epstein was exhibiting signs of ketoacidosis at the time the nurse called Dr. Hamilton.
49 Further, much as in the case of Dr. Gorman, there is no expert evidence as to what standard of care would be expected in the circumstances. None of the experts provided any opinion as to whether Dr. Hamilton, as a general surgeon, had met or failed to meet the standard of care required of him. There is also no evidence that Dr. Hamilton's conduct in any way caused or contributed to the loss.
50 Accordingly, there is no evidentiary basis for the trial judge's finding of fault against Dr. Hamilton.
51 For these reasons, I would allow the appeal, set aside the judgment below and dismiss the action.
52 With respect to damages, the trial judge awarded the sum of $40,000 by way of compensation for the "indignity of the coma" and "minimal" sequelae in the form of bruising and leg swelling. In light of my conclusion on the question of liability, it is not necessary to deal with the assessment of damages. I wish to note for the benefit of the parties, however, that, having regard to the jurisprudence respecting claims of this nature, it is my view that the award is grossly excessive. I would reduce it to, at most, half that award.
53 Finally, the jurisprudence on the question of set-off is minimal and far from unanimous. As a consequence, I refrain from dealing with that question now that it has become moot.
54 I would allow the appellants their costs of the trial and of the appeal.
AUSTIN J.A. -- I agree.
55 WEILER J.A.:-- I agree with Charron J.A.'s disposition of the appeal concerning Drs. Gorman, Fell and Hamilton. With respect to Dr. Fell, I agree with Charron J.A. first, that the trial judge misapprehended the evidence of Dr. Clarke with respect to when he would have restarted insulin for Mr. Epstein; second, that the trial judge erred in her conclusion that the preponderance of evidence supported a finding that Dr. Fell failed to take steps that he ought to have taken with respect to Mr. Epstein; and third, that the evidence does not support a finding that Dr. Fell was informed of signs of ketoacidosis, a stuporous condition resulting from a lack of insulin. Mr. Epstein was reported by the nurses to be agitated, not drowsy.
56 Charron J.A. concludes, fourth, that the trial judge failed to consider the effect of an erroneous glucometer reading showing a blood sugar level of 6.9, on the overall course of action taken by Dr. Fell. I agree with this conclusion, particularly when it is considered with what Dr. Fell was told at the time of the preceding glucometer reading of 16.2. At that time, Dr. Fell testified he was told by the nurse that Mr. Epstein was improving; that he had no other complaints or symptoms; that he had a history of uncooperative behaviour, and emotional and behavioral problems. When the reading of 6.9 was obtained, Dr. Fell was told that Mr. Epstein was lying in bed moaning and avoiding eye contact. This symptom was consistent with Mr. Epstein's initial complaint upon admission, namely, abdominal cramps. Dr. Fell testified that, at the time he was told about the 6.9 reading, the nurse did not tell him that Mr. Epstein had been complaining of thirst and hyperventilating, two symptoms that would have been consistent with ketoacidosis.
57 It is with Charron J.A.'s final conclusion concerning Dr. Fell in paragraph 45 that I respectfully disagree. She states "... that there is no evidence that the hyperglycaemic coma suffered by Mr. Epstein is causally connected to the failure to restart the insulin at the relevant times, either late November 4 or in the early hours of November 5. The trial judge does not address the element of causation in her reasons."
58 Farrell v. Snell (1990), 72 D.L.R. (4th) 289 (S.C.C.), stands for the proposition that it is not essential to have a positive medical opinion that the plaintiff's condition was caused by the treatment in question. In Anderson and Fischer v. Wilson et. al.,  O.J. No. 2494, released July 7, 1999, at p. 13, Carthy J.A. commented that, as a result of the Supreme Court of Canada's decision, "The trial judge may apply common sense to the evidence and draw an inference that the failure to meet the required standard of competence was the cause of the injury."
59 It is implicit in the trial judge's finding of negligence against the appellant doctors that she drew the inference that the hyperglycaemic coma suffered by Mr. Epstein was causally connected to the failure to restart insulin sooner. As the trial judge explained in her reasons, diabetes mellitus, the metabolic disorder from which Mr. Epstein suffered, is caused by abnormally high blood sugar levels or hyperglycemia. Diabetes of this type requires regular insulin injections in order to reduce the level of blood sugar because the pancreas produces little or no insulin. While in the hospital, Mr. Epstein was given a small amount of insulin and he suffered a hypoglycaemic reaction, a condition in which the blood sugar level is too low. Insulin was stopped by Dr. Gorman in order for a physician to judge when to restart insulin and how much insulin to administer.
60 Dr. Hare testified that where a patient has insulin-dependent diabetes, and where insulin has been discontinued because of a low blood sugar level, once the sugar clearly rises to a normal level, the insulin should be re-instituted. In his opinion, a normal level was 11 and "... once it is above 11, it is clearly elevated and I think at that point insulin should be re-instituted." That said, by 11:30 a.m. on November 3, the readings were elevated. If insulin had not already been started, Dr. Hare would most definitely have administered it at the time the reading of 16.2 was attained on November 4. He acknowledged, however, this was a judgment call. Dr. Hare testified that the required standard of care was breached due to the inattention given to Mr. Epstein's condition from the time he had the hypoglycaemic episode on November 1 to his hyperglycaemic state on November 5. He also attributed it to the failure to obtain laboratory blood work to be certain that the glucometer readings were correct, particularly the reading of 6.9. These failures, he testified, led to Mr. Epstein's ketoacidosis.
61 Charron J.A. notes that Dr. Gorman, Dr. Kenshole, and Dr. Clarke expressed the view that the administration of five units of insulin at the time of the 16.2 reading would not have prevented Mr. Epstein from going into a hyperglycaemic coma. Their evidence does not address what would have happened had insulin been started when Mr. Epstein's blood sugar level was eleven. Nor does their evidence address what the result would have been had the glucometer reading of 6.9 been verified as being incorrect and appropriate insulin been started at that juncture.
62 In view of this, I cannot agree that there was no evidence on which to conclude that the hyperglycaemic coma suffered by Mr. Epstein was causally connected to the failure to restart insulin sooner. I do agree, however, that for the reasons earlier expressed by Charron J.A., the failure to restart insulin sooner was not due to a breach of the required standard of care by the appellant doctors. The doctors relied on the reports they received from the nurses as to Mr. Epstein's condition and symptoms. This reliance was in accordance with the established standard of care.
1 This action was tried together with a motor vehicle accident claim and the decision is indexed as Epstein v. Epstein.
2 It is noteworthy that Dr. Hare was not aware of any of the information conveyed to Dr. Fell by the nurses about Mr. Epstein's diabetic condition.
3 This approach describes the standing order of a physician with respect to the care of a diabetic patient by hospital staff in the absence of specific physician input.