Among the most time-sensitive emergencies in clinical medicine is the pulseless limb after a major fracture. Vascular injury at the fracture site can interrupt blood flow to the distal limb, and without rapid restoration of blood flow, the tissue dies. The clinical window for revascularization is short, typically measured in hours rather than days, and after that window closes, the limb cannot be saved.
Baines v Abounaja, 2023 ONSC 2078 is an Ontario trial decision in which an emergency physician’s failure to escalate the transfer of a patient with a pulseless limb caused that window to close. By the time the patient reached the operating room at the tertiary care centre, the leg was no longer salvageable. It was amputated. The trial judge found Dr. Abounaja negligent and held that, but for the breach, the amputation would not have occurred.
CritiCall and Ontario’s inter-hospital transfer system
Ontario operates a centralized service called CritiCall Ontario that coordinates urgent and emergent inter-hospital transfers, particularly from community hospitals to tertiary care centres. When a patient presents at a community hospital with a condition that requires resources the hospital does not have (vascular surgery, neurosurgery, advanced trauma services), the treating physician calls CritiCall, describes the situation, and CritiCall connects the call with the appropriate specialist at a receiving facility. The specialist decides whether to accept the transfer.
The system depends on accurate communication. The receiving specialist makes the transfer decision based on the information conveyed by the referring physician. Where the information is incomplete, the receiving specialist may not appreciate the urgency.
The facts
Mr. Baines was injured in a motorcycle accident on the night of June 1, 2011, suffering a fractured femur. He was brought to Ajax Hospital, a community hospital that does not have a vascular surgery service.
Dr. Abounaja, the emergency physician, assessed Mr. Baines. By approximately 11:40 PM, the absence of pedal pulses (palpable arterial pulses in the foot) had been documented. A pulseless limb after a femur fracture is a vascular emergency requiring urgent transfer to a centre with a vascular surgery service. Ajax Hospital was not such a centre.
Dr. Abounaja called CritiCall at 12:04 AM. He spoke with a trauma surgeon at St. Michael’s Hospital at 12:16 AM. The trial judge found, on the evidence, that Dr. Abounaja did not tell the trauma surgeon that Mr. Baines’s leg was pulseless. The patient was not transferred at that time.
What followed was a series of further calls and assessments over the next several hours:
- 2:34 AM: Dr. Abounaja reported CT scan results to CritiCall and paged the on-call orthopedic surgeon at Ajax Hospital
- 2:50 AM: Dr. Abounaja contacted CritiCall again, this time reporting the pulseless limb, and spoke to the on-call orthopedic surgeon
- 3:02 AM: Dr. Abounaja called CritiCall and spoke to the tertiary trauma surgeon. Mr. Baines was not transferred
- 3:28 AM: The on-call orthopedic surgeon personally assessed Mr. Baines, spoke to the trauma surgeon at the tertiary centre, and requested a transfer. Mr. Baines was not transferred
- 3:45 AM: The on-call orthopedic surgeon called CritiCall. After the involvement of the Medical Director of CritiCall, the transfer was finally accepted at 4:49 AM
- 6:15 AM: Mr. Baines arrived at St. Michael’s Hospital, six hours and thirty-five minutes after the pulseless limb was identified
- 9:15 AM: Surgery began. The leg was amputated. By that point, the ischemia time was nine hours and thirty-five minutes
Standard of care
The trial judge found that Dr. Abounaja breached the standard of care of a community hospital emergency physician. The breach was not a single act or omission at a single point in time. It was a failure, over the course of the night, to insist on the urgent transfer of a patient whose condition required resources Ajax Hospital did not have. Even after Dr. Abounaja learned that the trauma surgeon was not transferring the patient, he did not push back, did not escalate, and did not take issue with the plan that left a pulseless limb in a hospital without vascular surgery.
The standard of care for a community hospital emergency physician faced with a patient whose condition requires unavailable resources includes the obligation to ensure the patient gets to a centre that has those resources. That does not end with making a phone call. It includes, where necessary, escalating, pushing back, and insisting that the receiving facility appreciate the urgency.
Causation
The vascular surgery experts agreed that the window for revascularization of an ischemic limb is limited, typically around six hours for the muscle and nerve tissue most vulnerable to oxygen deprivation. Beyond that window, muscle dies, nerve becomes irrecoverable, and the limb cannot be saved.
The trial judge found that, but for the delays caused by the breach of the standard of care, Mr. Baines would have arrived at St. Michael’s Hospital in time for revascularization to be feasible. He would have had surgery to restore blood flow. The leg would not have been amputated.
The causation chain was direct: the breach caused the delay, the delay caused the closure of the revascularization window, and the closure of the window caused the amputation.
Hospital liability
The plaintiff also pursued a claim against Lakeridge Health for the role of Ajax Hospital in the delay. The trial judge declined to find the hospital liable. While the standard of care of the hospital was established, there was insufficient evidence about who or what events underlay the delay attributable to the hospital itself. Without evidence linking the hospital’s conduct to the delay in transfer, no breach could be made out.
This is a useful reminder that institutional liability requires evidence not just that the institution had a duty, but that some specific act or omission of the institution (or of an agent for whom the institution is vicariously liable) contributed to the breach. Where the evidence focuses on the conduct of an individual physician, the hospital may not be liable on the same record.
A useful procedural point: the collateral source rule and SABS benefits
Mr. Baines’s underlying injury arose from a motor vehicle accident, and he received accident benefits under the Statutory Accident Benefits Schedule (SABS) issued under the Insurance Act. Dr. Abounaja argued that any damages award against him in the medical malpractice action should be reduced by the value of the SABS benefits Mr. Baines had already received.
The trial judge rejected the argument. The SABS deductibility rules under the Insurance Act apply to tort claims arising from the motor vehicle accident itself. Dr. Abounaja was not the tortfeasor in the motor vehicle accident; his liability arose from a separate cause of action in medical malpractice. The collateral benefits paid for the motor vehicle injuries were not, in the circumstances, deductible from the malpractice damages.
This is a useful precedent for malpractice plaintiffs whose underlying injuries arose from a motor vehicle accident but whose medical malpractice claim involves separate downstream harm caused by negligent care. The defendant medical providers cannot piggyback on the deductibility rules that apply to the original motor vehicle tortfeasor.
Damages were settled by the parties and are therefore unknown.
The doctrinal context
Baines is a useful Ontario precedent on three issues that recur in community hospital and ER negligence cases:
- The duty of an emergency physician at a community hospital to ensure that a patient whose condition requires unavailable resources is transferred to a facility that has them. The duty includes communication, escalation, and where necessary, insistence
- The application of the collateral source rule in medical malpractice claims that follow a motor vehicle accident, particularly the rule that SABS deductibility under the Insurance Act does not apply to the malpractice claim against a non-MVA tortfeasor
- The evidentiary requirements for institutional liability, particularly in a case where a finding of breach has been made against an individual physician
The case sits naturally with Fortune-Ozoike v Wal-Mart, another Ontario decision in which a community hospital ER physician failed to recognize and escalate a time-sensitive limb-threatening condition (compartment syndrome there, vascular ischemia here) and the patient lost the limb. Both cases turn on the failure of the emergency physician to take the steps required to get the patient to the resources that would have saved the limb.
Why this case matters
For plaintiffs and their counsel. Baines is a strong precedent in cases involving delayed transfer from a community hospital. The judgment articulates a clear duty to insist on transfer where the patient’s condition requires unavailable resources, and confirms that the duty does not end with making a phone call. The case also establishes a useful procedural point on the deductibility of SABS benefits from medical malpractice damages where the underlying injury was a motor vehicle accident. Counsel evaluating cases of delayed transfer from community hospitals should pay particular attention to the timeline (CritiCall logs, hospital records, physician notes) and to what was actually communicated to the receiving specialist at each stage.
For defence counsel and CMPA. The case is a reminder that the standard of care for a community hospital ER physician facing a condition outside the hospital’s resources is not satisfied by making the call. Where the receiving facility does not appreciate the urgency, the standard of care requires the referring physician to escalate. Defence counsel reviewing files of this kind should examine the documentary record of the communication carefully, including the CritiCall recordings or notes if they are available.
For emergency physicians at community hospitals. Baines is a clear instruction that the management of a patient whose condition requires unavailable resources includes responsibility for ensuring the transfer happens. That includes communicating the urgency clearly, documenting the calls, escalating when the receiving facility does not accept, and pushing back when needed. The Medical Director of CritiCall is available for escalation, and the case suggests that earlier engagement with the Medical Director might have produced an earlier transfer and a different clinical outcome.
For more on emergency department malpractice in Ontario, see the ER Delay practice page. For a related Ontario decision involving a missed limb-threatening emergency in a community hospital ER, see Fortune-Ozoike v Wal-Mart: A Missed Compartment Syndrome and a Preventable Amputation. For an overview of the legal process for medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: May 31, 2023
Jurisdiction: Ontario Superior Court of Justice
Citation: Baines v Abounaja, 2023 ONSC 2078 (CanLII)
Baines v Abounaja: A Pulseless Leg, a Failed Transfer, and a Preventable Amputation
A community hospital ER physician failed to insist on the urgent transfer of a patient with a pulseless limb. The trial judge found liability for the lost leg.
Among the most time-sensitive emergencies in clinical medicine is the pulseless limb after a major fracture. Vascular injury at the fracture site can interrupt blood flow to the distal limb, and without rapid restoration of blood flow, the tissue dies. The clinical window for revascularization is short, typically measured in hours rather than days, and after that window closes, the limb cannot be saved.
Baines v Abounaja, 2023 ONSC 2078 is an Ontario trial decision in which an emergency physician’s failure to escalate the transfer of a patient with a pulseless limb caused that window to close. By the time the patient reached the operating room at the tertiary care centre, the leg was no longer salvageable. It was amputated. The trial judge found Dr. Abounaja negligent and held that, but for the breach, the amputation would not have occurred.
CritiCall and Ontario’s inter-hospital transfer system
Ontario operates a centralized service called CritiCall Ontario that coordinates urgent and emergent inter-hospital transfers, particularly from community hospitals to tertiary care centres. When a patient presents at a community hospital with a condition that requires resources the hospital does not have (vascular surgery, neurosurgery, advanced trauma services), the treating physician calls CritiCall, describes the situation, and CritiCall connects the call with the appropriate specialist at a receiving facility. The specialist decides whether to accept the transfer.
The system depends on accurate communication. The receiving specialist makes the transfer decision based on the information conveyed by the referring physician. Where the information is incomplete, the receiving specialist may not appreciate the urgency.
The facts
Mr. Baines was injured in a motorcycle accident on the night of June 1, 2011, suffering a fractured femur. He was brought to Ajax Hospital, a community hospital that does not have a vascular surgery service.
Dr. Abounaja, the emergency physician, assessed Mr. Baines. By approximately 11:40 PM, the absence of pedal pulses (palpable arterial pulses in the foot) had been documented. A pulseless limb after a femur fracture is a vascular emergency requiring urgent transfer to a centre with a vascular surgery service. Ajax Hospital was not such a centre.
Dr. Abounaja called CritiCall at 12:04 AM. He spoke with a trauma surgeon at St. Michael’s Hospital at 12:16 AM. The trial judge found, on the evidence, that Dr. Abounaja did not tell the trauma surgeon that Mr. Baines’s leg was pulseless. The patient was not transferred at that time.
What followed was a series of further calls and assessments over the next several hours:
Standard of care
The trial judge found that Dr. Abounaja breached the standard of care of a community hospital emergency physician. The breach was not a single act or omission at a single point in time. It was a failure, over the course of the night, to insist on the urgent transfer of a patient whose condition required resources Ajax Hospital did not have. Even after Dr. Abounaja learned that the trauma surgeon was not transferring the patient, he did not push back, did not escalate, and did not take issue with the plan that left a pulseless limb in a hospital without vascular surgery.
The standard of care for a community hospital emergency physician faced with a patient whose condition requires unavailable resources includes the obligation to ensure the patient gets to a centre that has those resources. That does not end with making a phone call. It includes, where necessary, escalating, pushing back, and insisting that the receiving facility appreciate the urgency.
Causation
The vascular surgery experts agreed that the window for revascularization of an ischemic limb is limited, typically around six hours for the muscle and nerve tissue most vulnerable to oxygen deprivation. Beyond that window, muscle dies, nerve becomes irrecoverable, and the limb cannot be saved.
The trial judge found that, but for the delays caused by the breach of the standard of care, Mr. Baines would have arrived at St. Michael’s Hospital in time for revascularization to be feasible. He would have had surgery to restore blood flow. The leg would not have been amputated.
The causation chain was direct: the breach caused the delay, the delay caused the closure of the revascularization window, and the closure of the window caused the amputation.
Hospital liability
The plaintiff also pursued a claim against Lakeridge Health for the role of Ajax Hospital in the delay. The trial judge declined to find the hospital liable. While the standard of care of the hospital was established, there was insufficient evidence about who or what events underlay the delay attributable to the hospital itself. Without evidence linking the hospital’s conduct to the delay in transfer, no breach could be made out.
This is a useful reminder that institutional liability requires evidence not just that the institution had a duty, but that some specific act or omission of the institution (or of an agent for whom the institution is vicariously liable) contributed to the breach. Where the evidence focuses on the conduct of an individual physician, the hospital may not be liable on the same record.
A useful procedural point: the collateral source rule and SABS benefits
Mr. Baines’s underlying injury arose from a motor vehicle accident, and he received accident benefits under the Statutory Accident Benefits Schedule (SABS) issued under the Insurance Act. Dr. Abounaja argued that any damages award against him in the medical malpractice action should be reduced by the value of the SABS benefits Mr. Baines had already received.
The trial judge rejected the argument. The SABS deductibility rules under the Insurance Act apply to tort claims arising from the motor vehicle accident itself. Dr. Abounaja was not the tortfeasor in the motor vehicle accident; his liability arose from a separate cause of action in medical malpractice. The collateral benefits paid for the motor vehicle injuries were not, in the circumstances, deductible from the malpractice damages.
This is a useful precedent for malpractice plaintiffs whose underlying injuries arose from a motor vehicle accident but whose medical malpractice claim involves separate downstream harm caused by negligent care. The defendant medical providers cannot piggyback on the deductibility rules that apply to the original motor vehicle tortfeasor.
Damages were settled by the parties and are therefore unknown.
The doctrinal context
Baines is a useful Ontario precedent on three issues that recur in community hospital and ER negligence cases:
The case sits naturally with Fortune-Ozoike v Wal-Mart, another Ontario decision in which a community hospital ER physician failed to recognize and escalate a time-sensitive limb-threatening condition (compartment syndrome there, vascular ischemia here) and the patient lost the limb. Both cases turn on the failure of the emergency physician to take the steps required to get the patient to the resources that would have saved the limb.
Why this case matters
For plaintiffs and their counsel. Baines is a strong precedent in cases involving delayed transfer from a community hospital. The judgment articulates a clear duty to insist on transfer where the patient’s condition requires unavailable resources, and confirms that the duty does not end with making a phone call. The case also establishes a useful procedural point on the deductibility of SABS benefits from medical malpractice damages where the underlying injury was a motor vehicle accident. Counsel evaluating cases of delayed transfer from community hospitals should pay particular attention to the timeline (CritiCall logs, hospital records, physician notes) and to what was actually communicated to the receiving specialist at each stage.
For defence counsel and CMPA. The case is a reminder that the standard of care for a community hospital ER physician facing a condition outside the hospital’s resources is not satisfied by making the call. Where the receiving facility does not appreciate the urgency, the standard of care requires the referring physician to escalate. Defence counsel reviewing files of this kind should examine the documentary record of the communication carefully, including the CritiCall recordings or notes if they are available.
For emergency physicians at community hospitals. Baines is a clear instruction that the management of a patient whose condition requires unavailable resources includes responsibility for ensuring the transfer happens. That includes communicating the urgency clearly, documenting the calls, escalating when the receiving facility does not accept, and pushing back when needed. The Medical Director of CritiCall is available for escalation, and the case suggests that earlier engagement with the Medical Director might have produced an earlier transfer and a different clinical outcome.
For more on emergency department malpractice in Ontario, see the ER Delay practice page. For a related Ontario decision involving a missed limb-threatening emergency in a community hospital ER, see Fortune-Ozoike v Wal-Mart: A Missed Compartment Syndrome and a Preventable Amputation. For an overview of the legal process for medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: May 31, 2023
Jurisdiction: Ontario Superior Court of Justice
Citation: Baines v Abounaja, 2023 ONSC 2078 (CanLII)
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
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