In Latin et al. v. Hospital for Sick Children et. al., (January 3, 2007), Justice Lax of the Ontario Superior Court of Justice delivered a decision of importance to health care providers. In addition to providing a helpful overview of the current law on medical malpractice, Justice Lax made important rulings on issues concerning hospitals and their emergency systems. Specifically, her comments on the relevance of hospital policies, and the process of triage in the emergency room setting, will be helpful to hospitals and other care providers.


R.L. was 14 months old when she was brought to the Hospital for Sick Children (“SickKids”) emergency department on January 21, 1998 by her mother and grandfather. She had a history of cough and fever, as well as “leg stiffening” at home, which may have been febrile seizures (and which are usually benign in outcome). She was triaged by Nurse B. at approximately 1240 hours, who classified R.L. as urgent and asked that they wait in the waiting area until they could be seen by a physician. Sometime between 1255 hours and 1325 hours, R.L.’s grandfather witnessed another episode of jerking or “leg stiffening”, and R.L.’s mother brought her back to the triage nurse for re-assessment. Nurse B. did not document her re-assessment, and asked that R.L. and Ms. L. continue to wait.

At approximately 1400 hours, R.L. began a generalized tonic-clonic seizure in the emergency waiting room. She was immediately brought into the department and care was provided. The seizures progressed into status epilepticus, which was not brought under control until approximately 1535 hours.

Following her seizures, R.L. remained neurologically depressed. Over the course of her admission, it became clear that she had suffered profound brain damage. The trial centered on the cause of the brain damage, and whether it could have been avoided through earlier medical intervention. The only defendants at trial were the triage nurse, the charge nurse, and their employer, the Hospital.1

The trial lasted 36 days. As a result of the various possible causes of R.L.’s seizures and eventual outcome, the Court heard evidence from paediatric experts in emergency nursing and triage, emergency medicine, infectious diseases, neurology, neuroradiology, and critical care.


Justice Lax determined that Nurse B., the triage nurse, met the standard of care in her triage and re-assessment of R.L., and that the charge nurse, Nurse W., similarly met the standard of care in her management of the department and the prioritization of patients within the department. She also found that the most timely emergency intervention (practised then or now) would likely not have prevented the adverse outcome for R.L. The action was dismissed.

Hospital policies

Although some confusion surrounded the actual policies in place at the relevant time in the emergency department, it became clear that whichever policies were in place imposed a higher standard upon the triage nurse than was applied in actual practice at the Hospital. The relevant triage policy required that a complete set of vital signs was to be measured on every child at triage. In R.L.’s case, her respiratory rate was not measured at triage because she was crying. Her blood pressure was not measured because it was the usual practice then at SickKids that blood pressure be measured during the primary assessment once within the department.

Significant evidence was tendered both through fact and expert witnesses, as well as medical literature, that respiratory rates and blood pressures measured on crying children at triage were unreliable, and that unless specifically warranted by the presenting complaint, blood pressure measurement was reserved for the primary assessment.

Justice Lax found that although hospital policies are a helpful tool in determining the reasonable standard of care, they do not, by their content, dictate the applicable standard of care. While hospitals have a duty to establish appropriate policies to promote patient safety, departure from an established policy does not in and of itself establish negligence.

In determining the standard of care, Justice Lax found it helpful to compare SickKids’ policy to the policies at similar institutions in 1998, which did not mandate that all vitals signs be measured at triage, and which included triage categories and examples that supported Nurse B.’s acuity decision in R.L.’s case. Justice Lax held that nurses at certain institutions ought not to be held to a higher standard of care than those at other institutions simply because their employer chooses to establish high standards for their employees. To impose such higher standards on certain nurses and hospitals would, in Justice Lax’s view:

“… have the invidious effect of discouraging hospitals from developing written policies that set high standards and result in different standards at comparable hospitals.”

It has long been a concern that individual health professionals might find themselves being legally scrutinized in an unfair light if practising in a setting so focussed on improving patient safety that it is producing policies and guidelines aiming at not only a reasonable standard, but an ideal standard. While departure from Hospital policy is not a practice to be encouraged, and hospital policies should reflect a balance of excellence and reality, Justice Lax’s decision provides some legal protection to institutions who set high standards, untempered by the fear of potential liability should they not in fact be attained. This case also reinforces the need for the proper archiving and maintenance of historical policies. The unavailability of the relevant 1998 policies forced the Court to interpret prior and subsequent policies in the light of expert and fact evidence to determine what the relevant policies likely were at the time.

Triage Classification and Clinical Judgment

Justice Lax found that acuity decisions, by their very nature, fall within the realm of professional/clinical judgment. Although this is common sense to those practising in the health care field, it takes on special meaning within the legal system. The law is quite clear that the honest and intelligent exercise of judgment satisfies the professional obligation, even if, in retrospect, it can be determined that the decision was not the “correct” one. Justice Lax’s ruling in this regard will establish a helpful precedent for future lawsuits involving triage classification.


As previously noted, although all parties agreed that Nurse B. performed a reassessment on R.L., the form and content of the re-assessment were contentious. Nurse B. was criticized by the plaintiffs for not having sought R.L. out for re-assessment after one hour, and for not having recorded her re-assessment.

With regard to the need for timely reassessment of patients in the waiting room, Justice Lax found that a balance had to be struck between the roles of the triage nurse and the patient’s parents in the waiting rooms of an emergency department. Justice Lax found that, despite the gradual shift in practice regarding re-assessments between 1998 and the present,

“I do not find think that the practice required then, or necessarily now, the kind of vigilance the plaintiffs suggest for every patient in the waiting room. There surely must be some scope for the exercise of judgment so that children who require monitoring are reassessed regularly and those that don’t are brought back if a parent is concerned or is the child’s condition changes.”

Justice Lax accepted Nurse B’s evidence regarding her usual practice and elements of the mother’s recollection to conclude that Nurse B not only conducted the reassessment, but did so in accordance with a reasonable standard of care, in spite of it not having been documented. Finally, Justice Lax performed a thorough analysis of complex medical evidence to conclude that the cause of R.L.’s brain damage was likely a viral encephalitis and therefore unavoidable, even with immediate medical attention.


On all issues, Justice Lax’s pragmatic approach to the expert medical evidence exhibited an understanding on her part of the realities of practice in a busy emergency department. The decision discourages an “ivory tower” analysis of the provision of care and the use of hindsight in criticizing difficult clinical decisions.

Bill Carter, Daphne Jarvis and Kate Crawford of Borden Ladner Gervais LLP represented the Hospital and Nurses before the Superior Court.

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