CASE CENTRE · PERSONAL INJURY · MEDICAL NEGLIGENCE · FAILURE TO RECALL PATIENT · INTERNAL HERNIA

Shaw Estate v. Handler

2025 ONCA 868 Court of Appeal for Ontario December 2025

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In short: The Court of Appeal for Ontario upheld a finding that an emergency physician was negligent for not recalling a discharged patient after a radiologist's second review of her CT scan raised the possibility of a serious post-surgical hernia. The Court found that the trial judge applied the right standard of care and made enough findings to support causation of her death, and it dismissed the appeal.

The Facts

The patient, who had undergone bariatric surgery in 2012, came to a hospital emergency department in November 2015 with abdominal pain and nausea. A CT scan was first reported as showing only an ovarian cyst, and the emergency physician discharged her the next morning with advice to see her bariatric surgeon promptly. Shortly afterwards a second radiologist reported twisting of blood vessels in the mid-abdomen, findings that could be consistent with a hernia after her surgery. The physician did not contact her or ask her to return. She came back by ambulance the following day and had emergency surgery that night, which found a herniation with poor blood supply and dead bowel. She died on November 25, 2015, at the age of 34. Her husband sued. The trial judge found no breach in the decision to discharge her, since the first CT report was reassuring, but found a breach in failing to call her back for an urgent surgical consultation once the updated findings arrived, and found that this failure caused her death.

What the Court Decided

The Court of Appeal dismissed the appeal, with the panel of van Rensburg, Sossin and Gomery JJ.A. The physician argued that the trial judge had chosen a standard of care that neither the experts nor the evidence supported, and had not made the factual findings needed on causation, in particular on the timing of surgery and of the bowel's deterioration. The Court rejected both arguments. The standard of care, what a reasonable physician would have done in the circumstances, was correctly stated and well supported by the expert evidence, and the trial judge was entitled to conclude that the physician should have contacted the patient and brought her back for an urgent surgical consultation. On causation, the findings about the treatment required, when it should have happened and when surgery would have taken place were sufficient. The Court added that it was not necessary to fix the exact moment at which a window for surgery closed, because the trial judge had found it was still open when she would reasonably have been operated on. Costs of $62,500 were ordered against the physician.

Emergency medicine often involves test results that come back after the patient has left. This decision reinforces that a physician's duty does not end at discharge, and that a doctor who learns of a worrying finding may be expected to act on it by recalling the patient. It also shows how appellate courts treat causation in delayed-diagnosis cases: the trial judge must make findings about what treatment was needed and when, but need not pinpoint the last moment at which treatment could have succeeded.

Does This Affect You?

✓A test result or scan was read differently after you or a family member left the emergency department.
✓You lost a family member to a delayed diagnosis and are asking whether the care met the standard.
✓Your medical negligence claim depends on proving that earlier treatment would probably have changed the outcome.

Key Takeaways

An emergency physician who learns of an abnormal result after discharge may be expected to contact the patient and arrange urgent follow-up.
A claim can succeed on the failure to recall even where the decision to discharge, on the information then available, was reasonable.
Causation findings must be sufficient but need not identify the exact moment a window for treatment closed.

Frequently Asked Questions

Does this mean doctors are liable whenever a scan is re-read after discharge?

No. The decision turns on its facts: an updated report raised a serious possibility, the physician took no step to reach the patient, and the trial judge found that timely recall would likely have saved her. Each case depends on the evidence about the standard of care and on causation.

Was the decision to discharge the patient found negligent?

No. The trial judge found the first CT report was reassuring and that discharge on that information was not a breach. The negligence was in what happened after the new findings came in.

Case summary written for Azimi Law's Case Centre, in the firm's own words, about 2025 ONCA 868. The facts and outcome should be confirmed against the full text of the decision before publication. See the disclaimer above.