The standard of care for an emergency physician does not necessarily end when the patient is discharged from the department. If the physician later receives important diagnostic information that changes the clinical picture, the duty to act on that information continues. The expected response will depend on the situation, but the duty does not stop at the door.
Thompson v Handler, 2023 ONSC 5042, is a case I conducted alongside Hudson Chalmers for the plaintiffs. The trial took place over twelve days in Brampton in January 2023. Justice William LeMay released his decision on September 6, 2023, finding the defendant emergency physician liable for the death of a 34-year-old mother of four young children. The trial judge’s central finding was simple: the physician ought to have called the patient back to the hospital and referred her for an emergency surgical consultation. His failure to do so caused her death.
The case is the most significant emergency-medicine fatality verdict I have obtained in my recent practice and is one of the trials referenced in my recognition by Best Lawyers in Canada for medical negligence. It is also a precedent for several propositions about the continuing duty of the emergency physician, the role of the participant expert in malpractice litigation, and the management of patients with a history of bariatric surgery who present to the ER with abdominal pain.
The clinical context
Roux-en-Y gastric bypass is a surgical weight-loss procedure that reduces the size of the stomach and reroutes the small intestine to bypass a portion of the digestive tract. The procedure is effective for sustained weight loss, but it has a well-recognized long-term complication profile. One of the most serious complications is the internal hernia: the small intestine slips through a defect created by the surgery and becomes trapped, often kinking or twisting in ways that can cut off blood flow to the bowel. If the blood supply is interrupted long enough, the bowel becomes ischemic and then necrotic, and the consequences become catastrophic.
Internal hernias can present months or years after the original surgery. The clinical features can be subtle: abdominal pain (often severe and out of proportion to the physical examination findings), and sometimes pain that radiates to the back. Imaging features can include twisting of the mesenteric vessels (the blood vessels supplying the bowel), which is one of the recognized signs on CT scans.
The recognition of internal hernia as a complication of gastric bypass is well-established in the medical literature. At trial, the defence took the position that the long-term complications of gastric bypass were not well-known to ER physicians in Ontario in 2015. The trial judge expressly rejected that evidence.
The facts
Elisha Shaw was 34 years old, married, and the mother of four children aged 7, 5, 4, and 2. She had a Roux-en-Y gastric bypass in 2012. She had experienced intermittent abdominal pain in the years that followed. On the evening of November 16, 2015, the pain became severe enough that her husband Merton took her to the emergency department of Brampton Civic Hospital, part of the William Osler Health System.
She arrived at the ER at approximately 11:30 pm in a wheelchair with diffuse abdominal and back pain rated 10/10. She was triaged at CTAS level 2 (the second-highest urgency category, after the most life-threatening presentations). She was seen by the defendant Dr. Jeffrey Handler, the emergency physician on duty.
Over the next seven and a half hours, Elisha received progressively escalating analgesia: morphine in repeated doses (an initial 6 mg followed by another 4 mg), Toradol, Buscopan, and intravenous fluids. The pain did not respond. Her pain score remained at 10/10 throughout most of the night. Dr. Handler ordered a CT scan, which was performed at approximately 2:24 am. He spoke to the overnight remote radiologist, Dr. Singer-Jordan, who reported only ovarian cysts and lymph nodes, with no obstruction noted.
At approximately 7:00 to 7:15 am, Dr. Handler discharged Elisha home with a prescription for Buscopan. Dr. Handler testified that her pain had decreased by the time of discharge. The nursing notes did not corroborate any change in her pain presentation.
Shortly after the discharge, the staff radiologist Dr. Fitzgerald reviewed the same CT scan and reached a different conclusion. She identified twisting of the mesenteric vessels in the middle abdomen, a finding consistent with a mesenteric post-operative hernia and one of the known complications of gastric bypass surgery. She telephoned Dr. Handler with the new findings. Her account at trial, accepted by the trial judge, was that she contacted Dr. Handler for two purposes: to confirm he had received the CT result, and to ensure he knew about the twisted mesenteric vessels.
Dr. Handler testified that he did not recall the details of the conversation. He did not call Elisha back to the hospital. He did not arrange an urgent consultation. He did not contact a general surgeon. Elisha remained at home.
Approximately twenty-four hours later, on the morning of November 18, 2015, Elisha’s condition had deteriorated to the point that an ambulance had to be called. She was taken back to Brampton Civic. By 5:00 pm, a general surgical consultation determined that an urgent laparoscopy was needed. The surgery began at approximately 9:00 pm. The findings were a herniated, twisted bowel with signs of ischemia. The procedure was converted to a laparotomy. The hernias were undone, but the bowel had to be observed to see whether it would re-perfuse. A second surgery the next day found that portions of the small bowel had become necrotic, and a substantial resection was performed. Elisha was transferred to Humber River Regional Hospital. Her condition continued to deteriorate. She died on November 25, 2015.
The standard of care
The trial judge found that Dr. Handler fell below the standard of care. The central finding, at paragraph 183 of the decision:
I conclude that Dr. Handler ought to have called Ms. Shaw back to the hospital and referred her to one of the surgeons on duty for an emergency consultation. Dr. Handler’s failure to do this was not a mere matter of judgment. Dr. Handler was mistaken in his view that Ms. Shaw’s symptoms had improved, and he had either missed or ignored the fact that Ms. Shaw’s pain was radiating into her back. Dr. Handler compounded these errors by brushing off the telephone call that he received from Dr. Fitzgerald outlining that Ms. Shaw had another one of the symptoms indicative of a hernia.
The trial judge identified three concrete errors:
- A factual error about the symptom trajectory. Dr. Handler believed Elisha’s pain had improved by the time of discharge. The contemporaneous nursing notes did not support that view, and the trial judge did not accept it.
- A failure to recognize a clinical sign. The pain radiating into Elisha’s back was a recognized feature of an internal hernia. Dr. Handler missed or ignored it.
- A failure to act on Dr. Fitzgerald’s call. When the staff radiologist communicated findings consistent with an internal hernia, Dr. Handler did not act on that information.
The trial judge also addressed the literature on gastric bypass complications. None of the experts disagreed with the basic clinical propositions: that complications can present months or years after the original surgery, that bowel hernias are a known long-term complication, and that abdominal pain disproportionate to objective findings is a recognized feature. The trial judge concluded that these propositions were well-known to emergency physicians in Ontario in 2015. The defence position to the contrary was rejected.
Causation
The trial judge addressed causation at paragraphs 225 and 226:
My reasons for reaching this conclusion are founded in the fact that, if the laparoscopic surgery had taken place on November 17th, 2015 instead of November 18th, 2015, the hernias would have been undone at a point when there was no necrosis in the bowels and the bowels would have still been healthy enough that necrosis would not have developed. Ms. Shaw’s condition would have been reversed by timely intervention and there would have been no need to resect any portion of her bowels.
As a result, I am of the view that, but for Dr. Handler’s negligence in not following up with Ms. Shaw, Ms. Shaw would not have died. Dr. Handler’s negligence caused Ms. Shaw’s death and, therefore, he is liable for the damages that flow from that negligence.
The causation analysis turned on a 24-hour window. If Dr. Handler had called Elisha back after Dr. Fitzgerald’s call on the morning of November 17, an emergency surgical consultation would have led to a laparoscopy that day. The bowel was still viable on November 17. By the time Elisha was actually operated on (the evening of November 18), the bowel had become ischemic, and the deterioration that followed was progressive and ultimately fatal.
This is what causation analysis often looks like in ER-fatality cases: a clinical timeline in which a window of opportunity for intervention is missed, and the consequences of the missed window are the death the plaintiff complains of.
Damages
The damages awarded by the trial judge were:
- $40,000 to the estate for Elisha’s pain and suffering before her death
- $100,000 to her husband for loss of care, guidance, and companionship under the Family Law Act
- $85,000 to each of her four children for loss of care, guidance, and companionship under the Family Law Act, totalling $340,000
- $13,404.20 for funeral expenses
- $1,502.10 to the Ministry of Health for OHIP-funded medical costs
- Pre-judgment interest at 5% per annum on the FLA awards
- A loss-of-dependency claim, with the specific amount to be calculated by the parties based on the trial judge’s findings
The FLA awards reflect both the scale of the loss (a young mother of four with a long expected lifetime of caregiving and family contribution) and the calibration of recent Ontario precedents. The $85,000 per child figure is at the upper end of the typical range for younger children at the time of loss. The case is likely to be cited going forward in FLA damage assessments involving the loss of a parent of young children.
The doctrinal lessons
Thompson v Handler stands for several propositions.
The standard of care for an ER physician extends past the discharge. When a physician receives important diagnostic information after the patient has left the department, the duty to act on that information continues. The expected response will depend on the situation, but in this case the expected response was a callback to the hospital and an urgent surgical consultation.
Missed clinical features are not protected by the “judgment call” defence. Where a clinical feature was discoverable on the examination and history that was actually conducted, and where a reasonable physician would have noticed and acted on it, the failure to do so is a breach of the standard of care. It is not a matter of judgment in the protected sense.
Communications from radiologists and other staff are not optional inputs. Dr. Fitzgerald’s call to Dr. Handler was a communication from a staff radiologist who had reviewed the same CT scan and reached a different conclusion. The trial judge’s characterization that Dr. Handler “brushed off” that call is doctrinally significant. Inter-physician communications about active patients must be acted on.
The participant expert can carry significant weight. Dr. Fitzgerald was a treating clinician who gave evidence at trial as a participant expert. Her testimony about the substance of her conversation with Dr. Handler, and about what her CT findings meant clinically, was accepted by the trial judge. Participant experts (physicians who were directly involved in the care) are governed by a different evidentiary framework than retained experts and can be a particularly effective source of evidence about what was communicated, what was understood, and what was clinically meaningful.
The long-term complications of gastric bypass are within ordinary ER knowledge. The trial judge expressly found that the well-known long-term complications of gastric bypass, including internal hernia and bowel ischemia, were known to emergency physicians in Ontario in 2015. Defendants in similar future litigation will not be able to argue that this body of knowledge was inaccessible.
The Notable Cases sub-series
This site’s Notable Cases sub-series collects cases I have conducted that are representative of the substantive areas in which I practice. The other cases currently in the sub-series:
- Woods v Jackiewicz: a $11.5 million jury verdict in a birth injury case involving cerebral palsy
- Knight v Lawson: a surgical injury case in which the claim ultimately failed at causation, conducted as plaintiff counsel
- Thompson v Handler (this case): an ER fatality involving an internal hernia after gastric bypass
Together, the three cases illustrate the range of substantive areas in which I work — birth injury, surgical injury, and emergency medicine — as well as the range of outcomes. Woods was a major plaintiff verdict on complex medicine. Thompson was a focused trial win on a narrower clinical question. Knight was a thoughtful loss on causation that I include in the library because honest accounts of what is hard about this work are part of how prospective clients can make sense of what they are asking for.
Why this case matters
For families. The combination of facts here — a young woman with four small children, a known surgical history, a presentation that was clinically explicable, a CT result that was reread overnight, and a phone call from a senior radiologist that did not produce action — is the kind of pattern that recurs in ER-fatality litigation. If your family has been in this kind of situation, the documents that matter are the chart, the imaging report, the imaging itself, and any record of inter-physician communications. The medical literature, the diagnostic guidelines, and the standard-of-care framework are the basis for any claim, and the work has to be done carefully.
For physicians. Thompson is a difficult case to read for emergency physicians because the underlying error was a phone call that was not acted on. The doctrinal lesson is that information received after a patient leaves the department is still actionable. The risk-management response is to have a clear protocol for handling new diagnostic information, to document the receipt and the disposition of any inter-physician communications, and to call patients back when the information requires it.
For lawyers. The case is a useful reference on three points. The continuing duty of the ER physician after discharge is the doctrinal centerpiece. The participant expert analysis (Dr. Fitzgerald’s role as an inter-departmental communicator turned witness) is a useful illustration of how participant experts can carry the day. And the FLA damages, particularly for the young children, are a benchmark for similar future cases involving the loss of a parent of young children.
For more on the substantive area of emergency-medicine litigation, see the emergency room delay practice page and Five Dangerous Diagnoses Missed in Ontario Emergency Rooms. For the broader framework of medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Media coverage
- Toronto father wins years-long lawsuit against GTA doctor ruled to have caused wife’s “untimely” death (CP24)
- Ontario Superior Court finds Brampton doctor liable for negligence resulting in patient’s death (Canadian Lawyer)
Decision Date: September 6, 2023
Trial Judge: The Honourable Justice William LeMay
Jurisdiction: Ontario Superior Court of Justice
