This clear and not ambiguous. In my view, the

This case was a jury trial of an action for medical negligence. Jordan Sacks suffered serious injuries that arose from complications after routine bowel surgery. After the surgery, an anastomotic leak occurred and caused contents of Mr. Sacks’s bowel to spill into his abdominal cavity. An anastomotic leak must be treated quickly or it can become life threatening but the discovery of the leak was delayed. Mr Sacks was in septic shock by the time treatment began. After, he was in a coma for weeks and ended up requiring amputation of both his legs and all of his fingertips. At trial, the appellants argued that the delay in Mr. Sacks’s diagnosis and treatment caused said injuries, and it was the result of errors made by the doctors and nurses who treated him at Sunnybrook Hospital. The respondents answered the delay in diagnosing and treating Mr. Sacks didn’t cause his injuries because he contracted a rare flesh eating disease in his right lower back which could not have been diagnosed or treated. They concluded that his injuries were ultimately unavoidable and not the result of anyone’s breach of a standard of care. The jury found that all the defendants breached elements of the standards of care, however, they did not find that any of this was the cause of the injuries therefore the action was dismissed. The appellants said that the trial proceeded on a mistaken understanding of the appropriate causation test that’s to be applied in a case of delayed diagnosis and treatment. Because of this mistake, the jury’s answers were ambiguous and could not form a safe basis for judgment. According to the respondents, the trial judge did engage the correct causation test and did formulate appropriate jury questions and instructions so the jury’s answers were clear and not ambiguous. In my view, the jury clearly and unambiguously accepted the defence evidence on the cause of Mr. Sack’s injuries. I agree with appellants that the jury questions and instructions may have been problematic, however, they did not affect the outcome.The appellants continued to pursue the case at trial on the basis that the entire team at Sunnybrook Hospital was at fault. Trial counsel said to the jury “based on the evidence i’m going to suggest to you that this represents a total failure of the entire healthcare team and all of its members in parts. It is a total systems failure”This case started when Mr. Sacks, a 36 year old married accountant who had Crohn’s diseased was made aware of a narrowing of his bowel by a colonoscopy. He decided to have a hemicolectomy which is an elective surgery that would remove the narrowing. The development of an anastomotic leak is a recognized complication of a hemicolectomy and can be life threatening. The surgery was performed on May 13 at Sunnybrook Hospital by Dr. Ross who was assisted by Dr. Anna Bendzak and Dr. Aliyah Kanji. There were no surgical complications and Mr. Sacks’s recovery was uneventful for the first few days. Mr. Sacks condition started to deteriorate on May 16, three days after the surgery. He complained of abdominal pain to Nurse Raye-llogu and she gave him pain medication. Later on, she informed Dr. Bendzsak and Dr. Kanji of Mr. Sacks’s severe shoulder pain; this was the first time she contacted a doctor about his pain. Dr. Kanji, under supervision of Dr. Bendzsak, prescribed morphine; she also ordered a complete blood count “NOW please” to check for a possible infectious process and other possible issues. At trial, Dr. Kanji testified that the bloodwork order was not made specifically to identify possible infection but it could be identified by the bloodwork. Nurse Raye-llogu entered Dr. Kanji’s request in the hospital computer thirty minutes later as a “STAT” order, called the lab to inform them of the order, and recorded it in the chart. Nurse Raye-llogu and Dr. Kanji then went off duty and did not check to see whether the results of the bloodwork order were available; she discussed Mr. Sacks with Dr. Bendzsak and expected the doctors on duty overnight to follow-up on the bloodwork order. Dr. Ross came in to the hospital and examined Mr. Sacks but made no notes of this examination in the chart, he also told Mr. Sacks that his pain could be typical and they should wait until the next day to see what would happen. A short while after, Nurse Li examined Mr. Sacks and saw that he was slightly tachycardic and his blood pressure was lower that the normal range; however, she did not report this to a doctor and proceeded to administer morphine. The results of the bloodwork ordered by Dr. Kanji were entered into the hospital’s computer system four and a half hours after being ordered. The lab result showed that Mr. Sacks had a white blood count of 1.8 which is a result considered to be abnormally low so it was entered in the computer as “CRITICAL” and marked in red, however, the critical result wasn’t reported by the lab to the ordering doctor. A hospital witness explained that even though the result was marked as “CRITICAL” in the system, the result wasn’t actually critical at the hospital campus where Mr. Sacks was being treated. Dr. Giacomantonio, an expert witness called by the plaintiffs, testified that the significant drop in the white blood cell count was a finding that should have raised alarms about infection. Neither Dr. Bendzsak nor Nurse Li followed up on the blood result overnight even though they were both on duty. Mr. Sacks complained of back pain for the first time the next day. Nurse Li called Dr. Jeffrey Singer and he prescribed a muscle relaxant and sedative. Dr. Ross returned to the hospital and learned about the bloodwork, he then believed that Mr. Sacks had an infection. Based on these results, Dr Giacomantonio (expert witness) testified that the only possible conclusion a surgeon could draw was that Mr. Sacks was septic because of an anastomotic leak and the next stop should have been the operating room. However, Dr. Ross ordered a STAT CT scan; he testified that although he believed Mr. Sacks had an infection in the morning, he wanted to identify the source of the low white blood cell count before proceeding with treatment. The CT scan confirmed the anastomotic leak a couple of hours later. Mr. Sacks was taken to the operating room to repair the leak, he was already in septic shock. Over the next few months, Mr. Sacks went into kidney failure and required multiple surgeries. He was in a medically induced coma for three months and ultimately, amputation of both of his legs and all ten fingertips was required.The core factual issue at trial was, what caused Mr. Sack’s injuries? The appellants’ explanation was that the delay in diagnosing and treating the anastomotic leak caused the injuries. The respondents’ explanation was that the delay was not material to Mr. Sacks’s outcome because he contracted a rare, unrecognized aggressive necrotizing infection in his right lower back; as a result, his injuries were unavoidable and not the result of anyone’s breach of a standard of care.These explanations faced the jury, although there were two general issues. The first issue posed the question of whether or not the trial proceeded on a correct understanding of causation in this negligence case. Usually, the test for showing causation is the “but for” test; in this test, the plaintiff must show that if it wasn’t for the defendant’s negligent act, the injury wouldn’t have occured. In this case, things were more complicated because the complaint was not about something the defendant did, but about something the defendant failed to do, the task is to consider how things would have resulted differently if the defendant had done what they were obliged to do. The second issue was whether the jury questions and instructions were legally correct. The appellants pointed out that in delayed diagnosis cases one defendant’s conduct will rarely be the sole cause. Trial counsel argued the plaintiffs don’t need to prove that a specific defendant’s negligent act was the sole cause of the injury, only that it was a cause. As long as a defendant is part of the cause of an injury, the defendant is liable. Because of that, the appellants wanted to word the jury causation question like this: “Did the failure of _____ to meet the standard of care cause or contribute to Mr. Sacks’s injuries?”. The jury found that the defendants breached elements of the standards of care, although they did not find that any of the breaches caused Mr. Sacks’s injuries. Trial counsel stated that the septic shock caused Mr. Sacks’s injuries so if the delay caused the sepsis to go to septic shock, and the septic shock caused the injuries, the delay caused the injuries. Defence counsel stated that Mr. Sacks developed an infection that was left undiagnosed and untreated and that the diagnosis is nonsense that was made up eight years after the fact in order to be able to avoid accountability for their actions. Finally, the jury that three of the defendants breached the standard of care, but not Dr. Jeffree Singer nor Nurse Pamela Raye-llogu. However, the jury didn’t find that any of the breaches caused the injuries for which Mr. Sacks claimed compensation.The jury rejected the appellants’ causation theory, not even perfect jury questions and instructions would’ve changed the verdict.The appeal was dismissed, with costs; the appellants payed $40 000 in costs to the doctors and $30 000 to the hospital defendants.


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