Judge finds breach of standard of care in failing to call patient back to hospital
In a medical malpractice case asserting a delayed diagnosis, the Ontario Court of Appeal affirmed a judge’s determination that a doctor breached the standard of care by failing to call the patient back to the hospital for a consultation.
In Shaw Estate v. Handler, 2025 ONCA 868, the patient experienced abdominal pain and nausea after undergoing bariatric surgery in 2012. Shortly before midnight on November 16, 2015, the patient visited a hospital’s emergency department with a complaint of severe abdominal pain.
The treating emergency room physician, who was the appellant in this case, received the on-call radiologist’s report that the patient’s abdominal computed tomography (CT) scan was normal apart from showing an ovarian cyst.
On the morning of Nov. 17, 2015, the appellant concluded that the patient’s pain had decreased and discharged her around seven hours after she had arrived at the hospital. The appellant recommended that the patient seek an expedited appointment with her bariatric surgeon.
Within an hour after discharge, a second radiologist at the hospital contacted the appellant and reported that the CT scan showed twisting blood vessels in the patient’s middle abdominal region, which could be consistent with a post-operative hernia.
The appellant took no steps to call the patient or return her to the hospital.
On the morning of Nov. 18, 2015, an ambulance returned the patient to the hospital due to her severe pain. After a referral for a surgical consultation, which wrapped up in the afternoon, a general surgeon operated on the patient that night.
The surgery revealed that the patient’s bowel showed signs of herniation and insufficient blood supply, which later resulted in tissue death. The patient passed away at the age of 34 on Nov. 25, 2015.
The patient’s husband brought a medical malpractice case alleging a delayed diagnosis. A trial proceeded on the issues of liability and damages.
On Dec. 7, 2023, Justice William LeMay of the Ontario Superior Court of Justice issued a decision finding no negligence in the appellant’s decision to discharge the patient from the hospital on the morning of Nov. 17, 2015.
However, the trial judge ruled that the appellant breached the standard of care by failing to call the patient back to the hospital for a surgical consultation after getting the updated CT scan results, with the breach leading to the patient’s death.
The judge rejected the appellant’s evidence that the patient had an improved pain level by the time of her discharge and that the information from the second radiologist indicated a low probability of a hernia.
On appeal, the appellant sought the dismissal of the medical malpractice proceedings or a new trial. He challenged the liability determination. Specifically, he alleged that the judge erred by:
- selecting a standard of care that neither the experts nor the trial evidence supported
- failing to make the necessary factual findings to prove causation, particularly regarding the timing of the surgery and the necrosis of the patient’s bowel
No reversible errors found
The Court of Appeal for Ontario dismissed the appeal and ordered the appellant to pay all-inclusive costs fixed at $62,500.
The appeal court determined that the trial judge committed no reversible error concerning the issues of standard of care or causation, employed an analytically sound approach and reasoning, and made findings fully supported by the evidence.
First, the appeal court saw no error in the judge’s analysis and application of the relevant standard of care. The appeal court ruled that the judge’s findings on the standard of care had ample support in the evidence and a clear explanation in the reasons.
The appeal court found the judge entitled to conclude that the standard of care required the appellant, upon receiving the report on the CT scan, to call the patient to check on her condition and ask her to return to the hospital for an urgent surgical consultation if necessary.
Second, the appeal court held that the judge made sufficient findings to determine causation. The appeal court rejected the appellant’s arguments that the judge failed to make factual findings on the following issues:
- what treatment the patient required and when she needed it, which would impact when the ‘window of opportunity’ to treat her condition would close
- when the surgery would have occurred if the appellant had called the patient back to the hospital
The appeal court added that the judge identified the issues as agreed by the parties and provided reasons regarding causation that responded to the trial issues and aligned with the relevant framework.
