January 06, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
The Estate of Carlo DeMarco v. Dr. Martin, 2019 ONSC 2788 (CanLII)
Date of Decision: May 3, 2019
Heard Before: Justice A.K. Mitchell
CAUSATION DEFENCE: standard of care; can average wait-times be used as a defence to causation; GP fails to refer patient to cardiac specialist; patient subsequently dies; would being referred to a cardiac specialist have saved patients life or did he die within the average wait time of the referral
Mr. Carlo DeMarco died suddenly August 21, 2011. He was 51 years old. An autopsy revealed he suffered from advanced coronary artery disease. Before he died Mr. DeMarco had attended his family doctor twice. Once six months before he died for a routine physical, and once in June 2011 with indigestion, left arm discomfort, and feeling faint. These are common signs of cardiac symptoms. At the second appointment the family doctor prepared a letter of referral to a cardiologist, enquiring about conducting a stress test. The referral was not sent.
In this action, the plaintiffs allege that the family doctor failed to make enquiries of Mr. DeMarco during the physical examination conducted on February 10, 2011 sufficient to elicit the symptomology of which Mr. DeMarco later complained in June 2011, in breach of the standard of care, and that he breached the standard of care by failing to send the stress-test referral to Dr. Wong on June 13, 2011.
The family physician denies he breached the standard of care by failing to elicit the reporting of symptoms by Mr. DeMarco at the February 2011 examination. However, Dr. Martin admits that his failure to send the referral constitutes a breach of the standard of care.
The family doctor submits that even had he sent the referral on June 13, 2011, Mr. DeMarco’s coronary artery disease would not have been diagnosed and treated prior to the events of August 20, 2011 which led to his sudden death (the “wait-time defence”).
To support his position, he relies on the cardiologist’s average wait time for conducting a stress test in the Summer of 2011 and another coronary specialist’s average wait time to conduct an angiogram and ultimately perform revascularization through stenting or surgery in the Summer of 2011. The family doctor also defends on the basis that had Mr. DeMarco’s coronary artery disease been detected and treated using medical management and/or revascularization (bypass or angioplasty) prior to August 20, 2011, Mr. DeMarco’s life would not have been prolonged because the arrhythmia which led to his death was caused by scarring on his heart muscle and not complications arising from his untreated advanced coronary heart disease (the “treatment defence”).
The plaintiffs, relatives of Mr. DeMarco, allege that the family doctor filed to conduct a proper physical exam, and that the defendant breached the standard of care. They made damage claims pursuant to The Family Law Act. Claimants have been agreed by the parties subject to the court’s approval of the settlement relating to a disabled dependent. Certain claims for past and future special damages and the economic loss claims (dependency loss claims) of have not been resolved.
The plaintiffs allege that the family doctor who failed to detect the triad of symptoms at the physical, who then failed to conduct and adequate review and charting of his assessment, and who failed to assess the cardiac risks that were present including failure to order a routine ECG.
The defendant maintained the plaintiff was not suffering from any symptoms tha would have suggested a heart condition at the first visit, and that his charting met standards of care.
Before the trial commenced, the action was dismissed against all defendants except Dr. Martin.
Justice Mitchell reviewed the standard of care and reasonableness as it applies to medical practitioners. He noted that there is no need to believe that procedures were not followed simply because they did not appear in the charting. He went on to note however that:
“a lack of charting makes it more difficult for a court to determine matters of credibility where individuals who are trained to chart did not do so. This failing, despite the opportunity to do so, makes it more difficult for a court to accept that the correct steps were followed and questions asked as it would have been logical for them to be recorded had they been done.”
Upon review of the evidence, testimony, and law Justice Mitchell determined that the defendant had not breached the standard of care in his charting or assessment practices. He noted that the victim had not displayed cardiac symptoms at his physical, nor did he present risk factors at that time.
The Defendant did however admit that he breached the standard of care in failing to send the referral letter for a cardiac assessment. He maintained that this did not cause or contribute to the victim’s death however as the wait time for an appointment at the time was longer than the time it took to have the cardiac event, and even if the victim had been seen by a cardiologist and tested and treated for coronary disease his life would have been no longer due to the nature of the heart disease.
Justice Mitchell concluded upon the review of the law on causation that the ‘but for test’ was appropriate and that the loss of chance is not compensable in medical malpractice cases. As to the wait time defence Justice Mitchell found that based on the average wait times to see a cardiologist at that time the deceased would have had his first appointment several days after his death. On this basis the plaintiffs failed to establish that ‘but for’ the family doctor’s breach Mr. DeCarlo would have been treated before he died.
Based on medical evidence from autopsy Justice Mitchell also concluded that the plaintiffs failed to establish causation. The medical evidence points to the fact that the cause of heart failure was scarring of the heart and treatment of the disease would not have prevented the fatal arrythmia.
Although damages were assessed they were not awarded.