The court assessed the medical professional's duty to report under the Child and Family Services Act
The Ontario Court of Appeal has dismissed a medical malpractice lawsuit concerning a child who was assaulted by his biological mother the day after consulting with doctors.
The appeal was brought by the child, Tyson Rogerson, and his adoptive parents against Dr. Elyse Savaria and Dr. Nkiruka Nwebube. Tyson suffered a catastrophic injury when he was assaulted at just 16 days old. The heart of the lawsuit was the claim that the doctors had failed in their duty of care by not reporting concerns about Tyson's safety to the Children’s Aid Society (CAS), as mandated by s. 72 of the Child and Family Services Act.
The doctors saw Tyson and his mother, Cassandra Camsell, the day before the incident. Dr. Nwebube advised a follow-up visit instead of immediate hospital readmission for Tyson's slow weight gain.
At trial, the plaintiffs argued that both doctors should have suspected the risk to Tyson given the mother’s age, mental health history, and the baby's health issues. However, the trial judge found no breach of duty, stating that the doctors conducted appropriate health assessments and that a report to the CAS would not have necessarily prevented the assault.
In reviewing the trial judge’s decision, the Court of Appeal found no errors that would warrant overturning the verdict. The appeal court agreed that the trial judge applied the correct standards in assessing the doctors’ duty to report under the Child and Family Services Act and properly evaluated the causation arguments and expert evidence presented during the trial.
The appellants also contended that Dr. Savaria failed to provide complete mental health information to Dr. Nwebube, which might have influenced the pediatrician’s evaluation. However, the trial judge believed that the outcome would not have changed even with complete information, as Camsell was deemed capable of caring for Tyson at that time by multiple healthcare professionals.
Furthermore, the trial judge's findings indicated that even if a report had been made to the CAS, immediate or effective intervention would have been unlikely to prevent the tragic outcome. Expert testimony supported this conclusion, stating that the involvement of CAS would have been minimal and insufficient to alter the events that transpired. In conclusion, the Court of Appeal dismissed the appeal and affirmed the trial judge’s decision.
