On December 16, 2025, the Ontario Court of Appeal released its decision in Shaw Estate v Handler, 2025 ONCA 868, unanimously dismissing the defendant’s appeal from the trial verdict of Justice William M. LeMay. The trial decision had found a Brampton emergency physician liable for the wrongful death of a 34-year-old woman who returned to hospital with a complication of her bariatric surgery and was discharged on the basis of an initial CT scan read as essentially normal. Within an hour of discharge, a radiologist reviewing the overnight imaging contacted the physician with a corrected interpretation: the CT scan showed twisting of the mesenteric vessels, a finding consistent with the kind of post-operative hernia known to develop after the patient’s surgery. The physician took no steps to contact the patient. By the time the patient returned to hospital the next morning, the hernia had progressed to bowel ischemia. She underwent emergency surgery, developed bowel necrosis, and died a week later. The trial verdict awarded the family $1,640,026.67 in damages and $675,000 in costs. The Court of Appeal dismissed the appeal in its entirety and awarded a further $62,500 in costs on appeal. The appeal was argued for the respondents by Christopher Morrison, Paul Cahill, and Hudson Chalmers of Davidson Cahill Morrison LLP.
The Court of Appeal’s decision is doctrinally useful on two points. The first is the standard of care for follow-up by an emergency physician after the patient has been discharged and updated information about an imaging study is communicated. The Court of Appeal affirmed the trial judge’s finding that the standard required the physician to contact the patient, advise her of the new findings, and have her return for a surgical consultation if her condition had not improved. The second is the causation framework in delayed-diagnosis litigation where the “window of opportunity” doctrine has been invoked. The Court of Appeal clarified that the trial judge is not always required to make granular findings about when a window of opportunity for successful treatment closed; the question is whether the window had closed by the time the surgery would have occurred if the standard had been met. Where the evidence supports the conclusion that it had not, no further temporal precision is required.
A brief recap of the underlying case
Elisha Shaw was a 34-year-old woman. She had undergone bariatric surgery in 2012 and had a known history of post-operative abdominal pain. The general clinical literature on bariatric surgery (and on the long-term complications that can follow the rearrangement of the gastrointestinal anatomy associated with these procedures) recognizes that internal hernias are a well-known complication. The shortened and rerouted intestines can twist or become trapped in the surgically created spaces in the mesentery, producing intermittent or progressive obstruction. The clinical features of an internal hernia after bariatric surgery include severe abdominal pain that may be out of proportion to the physical findings, a high index of suspicion in any patient with prior bariatric surgery presenting with abdominal symptoms, and the use of computed tomography to look for the radiological signs (including twisting of the mesenteric vessels) that the surgical literature has identified as suggestive of the diagnosis.
Ms. Shaw presented to the emergency department at Brampton Civic Hospital shortly before midnight on November 16, 2015, with severe abdominal pain that she described as “10/10” on the standard pain scale. The treating emergency physician ordered blood work and an abdominal CT scan. The on-call radiologist read the CT scan as “essentially normal,” noting only an incidental ovarian cyst. The patient’s pain persisted at the same severity throughout her time in the emergency department. She was discharged at approximately 7:10 a.m. on November 17 with instructions to make an expedited appointment with her bariatric surgeon.
Within an hour of discharge, a Hospital radiologist whose duties included reviewing overnight CT scans contacted the treating physician. The second radiologist had identified findings on the CT scan that the first radiologist had missed: twisting of the mesenteric vessels in the middle abdominal region, consistent with a possible internal hernia. The trial judge accepted the evidence that the radiologist contacted the treating physician specifically to bring this finding to his attention.
The treating physician did not contact Ms. Shaw. He did not arrange for her to return to hospital. He did not refer her for a surgical consultation. He did nothing further.
Ms. Shaw spent the day of November 17 at home. By the following morning her pain had worsened. She returned to the hospital by ambulance, was referred for a surgical consultation, and was operated on at approximately 9:00 p.m. on November 18. The surgery confirmed an internal hernia with ischemic bowel. Repair efforts were ultimately unsuccessful. Necrosis developed in the affected bowel. She died on November 25, 2015. She left behind a husband and four young children.
The trial proceeded against the emergency physician on the issues of liability and damages. Justice LeMay found that the initial decision to discharge Ms. Shaw might have been an exercise in clinical judgment within the range of reasonable practice, but that the failure to recall her after receiving the updated CT findings fell below the standard of care of a reasonable emergency physician. He found that the breach caused her death and awarded damages and costs. The defendant emergency physician appealed.
The appellant’s grounds
The appellant did not challenge the trial judge’s finding that the initial discharge decision was not negligent. The appeal focused on two points.
First, the appellant argued that the trial judge had erred in his standard of care analysis by relying on a standard that was not articulated by any of the expert witnesses. The plaintiff’s standard of care expert, Dr. Drummond, had given evidence that included a passing reference, during cross-examination, to the possibility that a follow-up phone call to the patient (without necessarily requiring her return to hospital) might have satisfied the standard. The appellant submitted that this passage represented Dr. Drummond’s actual opinion and that the trial judge’s more demanding articulation of the standard (requiring a recall to hospital and a surgical consultation) was unsupported by the evidence.
Second, the appellant argued that the trial judge had erred in his causation analysis by failing to make sufficient factual findings to support the conclusion that the breach caused Ms. Shaw’s death. In particular, the appellant submitted that the trial judge should have determined when the “window of opportunity” for successful surgical treatment of the hernia had closed (since the hernia eventually progressed to ischemia and necrosis), and that the trial judge should have made specific findings about the timing of each step in the counterfactual chain (when the call would have been made, when Ms. Shaw would have returned to hospital, when she would have been seen by a surgeon, and when the surgery would have taken place).
The standard of care analysis
The Court of Appeal, in reasons written by van Rensburg J.A. with Sossin and Gomery JJ.A. concurring, rejected the standard of care ground on a careful reading of the expert evidence.
The applicable formulation, drawn from the Court of Appeal’s decision in Levac v James, 2023 ONCA 73, at para. 48, is that the court must determine “what a reasonable physician would have done (or not done) in order to meet the standard of care.” Expert evidence plays an essential role in establishing the standard and the breach: Liu v Wong, 2016 ONCA 366, at para. 14. The trial judge’s task was to identify the applicable standard from the expert evidence and apply it to the facts as found.
The appellant’s argument rested on a selective reading of Dr. Drummond’s evidence. The Court of Appeal disagreed with that reading. Dr. Drummond had been clear throughout his evidence, both in direct examination and on cross-examination, that an internal hernia after bariatric surgery is a “surgical disease which requires a surgical solution.” His evidence was that the standard required the treating physician, upon receiving the updated CT findings, to contact Ms. Shaw or have a nurse contact her, advise her of the new information, and arrange for her return to hospital for a surgical consultation if her condition had not improved. The passage in cross-examination on which the appellant relied was, on a fair reading of the whole of the evidence, a reference to the timing of a hospital surgical consultation (not a community follow-up with the bariatric surgeon). Dr. Drummond did not testify that a community follow-up would have met the standard, and he had been consistent throughout that the standard required a surgical consultation.
The Court of Appeal also addressed the appellant’s submission that the trial judge had failed to make essential findings about the urgency of the situation and about whether Ms. Shaw would have returned to hospital if contacted. The trial judge had found that Ms. Shaw remained in significant pain throughout her time at the hospital and at the time of discharge. He had rejected the defendant’s evidence that her pain had improved. He had necessarily and reasonably inferred from the evidence that, if Ms. Shaw had been contacted shortly after discharge and advised of the CT findings, she would have returned to hospital. There was no evidentiary basis for the contrary inference: Ms. Shaw had already followed the physician’s discharge instructions to make an appointment with her bariatric surgeon; there was no suggestion that she would have refused a recommendation to return for a surgical consultation.
The Court of Appeal also rejected the appellant’s submission that the trial judge had wrongly disregarded the evidence of the defence standard of care expert, Dr. Shah. The trial judge had not disregarded that evidence. He had accepted parts of it (notably the conclusion that the initial discharge decision was an exercise in clinical judgment) and rejected other parts of it (the conclusion that the standard did not require a recall after the updated CT findings). The reasons for the trial judge’s rejection of Dr. Shah’s evidence on the recall question were articulated in the trial judgment and included the trial judge’s conclusion that Ms. Shaw’s pain had not improved and that emergency physicians were generally expected to be aware of the risk of internal hernia after bariatric surgery.
On the first issue, the Court of Appeal concluded that the trial judge had made no reversible error.
The causation analysis and the “window of opportunity” doctrine
The Court of Appeal’s treatment of the second ground is the more doctrinally interesting part of the decision.
The causation framework in delayed-diagnosis litigation requires the trier of fact to determine (1) what likely happened in actuality, and (2) what would likely have happened if the defendant had not breached the standard of care, with the plaintiff bearing the burden of establishing on the balance of probabilities that compliance with the standard would have avoided the unfavourable outcome: Hasan v Trillium Health Centre Mississauga, 2024 ONCA 586, at para. 20 (leave to appeal to the Supreme Court of Canada refused).
The trial judge had identified the causation issues in the form agreed by the parties: what was the cause of Ms. Shaw’s death; what would have occurred if the appellant had acted in accordance with the standard of care; and is it more likely than not that Ms. Shaw would not have died if the standard had been met. The trial judge had answered each question. The cause of death was clear: complications of bowel necrosis flowing from the hernia. The counterfactual was that, if Ms. Shaw had been called back to hospital and seen by a surgeon on November 17, the surgeon would have ordered a laparoscopic exploration that day. The expert evidence accepted by the trial judge supported the conclusion that, on November 17, the hernia would have been at a point where there was no necrosis and that a surgical reduction of the hernia would have led to recovery without long-term complications.
The appellant’s argument was that the trial judge should have made more granular findings about the timing of the various events in the counterfactual: specifically, when the call would have been made, when Ms. Shaw would have returned to hospital, how long the surgical consultation would have taken, and when the surgery would have occurred. The appellant relied on the line of cases recognizing the “window of opportunity” doctrine: Salter v Hirst, 2011 ONCA 609; Barker v Montfort Hospital, 2007 ONCA 282; and Farej v Fellows, 2022 ONCA 254. In each of these cases, the central causation question turned on whether the necessary treatment could have been delivered within a specific time period before the patient’s condition became irreversible. The trial judge in each case was required to determine when that window closed, and the appellate court intervened where the trial judge had failed to make those findings on a sufficient evidentiary foundation.
The Court of Appeal distinguished those cases. In Shaw Estate v Handler, it was not necessary for the trial judge to determine when Ms. Shaw’s herniation had progressed to ischemia and necrosis to the point that surgery would have been too late. There was no suggestion at trial that, if Ms. Shaw had returned to hospital on November 17 and received laparoscopic surgery that day, she would not have survived. The defence causation expert, Dr. Jackson, had conceded on cross-examination that a diagnostic laparoscopy on November 17 would have significantly improved Ms. Shaw’s outcome and that she “probably wouldn’t have died.” There was no contested question about whether a window of opportunity existed on November 17; both sides effectively agreed that it did. The question was only whether the chain of events that the trial judge had to establish (the call, the return, the consultation, the surgery) would have occurred within the available window. The trial judge had accepted expert evidence that the chain of events would have taken approximately four to six hours, and there was no basis on the trial record to conclude that the window of opportunity would have closed within that time.
The Court of Appeal concluded that the trial judge had made the findings that the causation analysis required. Where the trial judge does not need to determine the precise moment when a window of opportunity would have closed (because there is no genuine question about whether the available treatment, delivered at the time it would have been delivered, would have produced a different outcome), no further temporal precision is required.
This clarification is doctrinally useful. The “window of opportunity” doctrine is sometimes deployed by defendants to argue that a causation analysis cannot be completed without precise determination of when irreversible harm occurred. The Court of Appeal’s decision in Shaw Estate v Handler clarifies that the doctrine applies where the timing of irreversibility is contested. Where the available expert evidence supports the conclusion that the necessary treatment, delivered at the time it would reasonably have been delivered, would have produced a successful outcome, the trial judge is not required to engage in artificial precision about exactly when the window would have closed.
Disposition
The Court of Appeal dismissed the appeal in its entirety. The trial verdict, the damages award of $1,640,026.67, and the trial costs of $675,000 were all upheld. The Court of Appeal awarded a further $62,500 in costs on appeal, all-inclusive.
Why this case matters
For patients who attend an emergency department and are discharged on the basis of imaging that is later reinterpreted, the lesson is that the duty of care does not end at the moment of discharge. Where the diagnostic information that informed the discharge decision is updated, the treating physician’s duty to act on the updated information remains. A patient who has been discharged is entitled to expect that, if updated information becomes available within a clinically reasonable period of time and that information is material to the discharge decision, the physician will take steps to address it. The principle is doctrinally important because the discharge from an emergency department creates a strong presumption, both in the patient’s mind and in the clinical workflow, that the relevant clinical questions have been resolved. Shaw Estate v Handler confirms that this presumption can be rebutted by subsequent information, and that the treating physician is responsible for ensuring that the rebuttal is acted on.
For emergency physicians, the case clarifies the standard of care for follow-up after discharge. The standard is not satisfied by a recommendation that the patient seek outpatient care in the community when the new information requires more urgent action. The standard requires the physician to weigh the new information against the patient’s clinical situation at the time of discharge and to act accordingly. Where the new information suggests a surgical disease that requires a surgical solution, the standard generally requires a surgical consultation, which in most cases means recalling the patient to hospital. The case also illustrates that the operative documentation of the discharge decision and of the response to subsequent information is doctrinally important: a documented response that addresses the new information and explains the clinical reasoning is significantly more defensible than the absence of any response.
For the broader practice of medical malpractice litigation in Ontario, Shaw Estate v Handler contributes two doctrinal points worth noting. The application of the Levac v James and Liu v Wong framework to a standard-of-care argument that turned on selective passages of expert testimony is a useful authority on the appellate review of expert evidence. The clarification of the “window of opportunity” doctrine in light of Hasan v Trillium, Salter v Hirst, Barker v Montfort, and Farej v Fellows is a useful contribution to the causation literature in delayed-diagnosis cases. The decision joins a line of recent Ontario Court of Appeal authorities clarifying the proper appellate scrutiny of trial-level causation findings in medical malpractice litigation, including the Court of Appeal’s earlier decision in Hacopian-Armen Estate v Mahmoud, 2021 ONCA 545 (clarifying the foreseeability framework in delayed-cancer-diagnosis cases) and the appeal in Woods v Jackiewicz, 2020 ONCA 458 (affirming the trial judge’s findings on standard of care and causation in an obstetric negligence case).
The trial decision, Shaw v Handler, 2023 ONSC 5042 (CanLII), is summarized separately as a separate post.
Decision Date: December 16, 2025 (heard May 12, 2025)
Court: Court of Appeal for Ontario
Docket: COA-24-CV-0072
Panel: van Rensburg J.A. (writing), Sossin and Gomery JJ.A.
Citation: Shaw Estate v Handler, 2025 ONCA 868 (CanLII)
Trial Decision: Shaw v Handler, 2023 ONSC 5042 (CanLII), per Justice William M. LeMay (December 7, 2023). Trial damages award: $1,640,026.67 plus costs of $675,000. Appeal costs: $62,500.
Counsel for the respondents on appeal: Christopher I.R. Morrison, Paul J. Cahill, and Hudson Chalmers
