05/14/2013 04:00 EDT | Updated 07/13/2013 05:12 EDT

Damages upheld in medical liability case; man's deadly infection not detected

TORONTO - Neither the doctors, nor the nurses, nor the paramedics could see that a bacterial infection that was ravaging Ken Wilson's body until it was too late.

Crucial opportunities that could have led to a diagnosis were missed at nearly every step of the way, the courts have found.

His family doctor sent him home saying it was a stomach flu. The emergency department doctors and nurses sent him home without noting his fever and flu-like symptoms, a judge found.

The paramedics, the court found, told him to stay home because the emergency department was full of New Year's Eve partiers. And they didn't take his vital signs because one of them forgot her glasses in the ambulance.

During the next few days, Wilson continued to get worse. He couldn't swallow. He mumbled incoherently. He didn't recognize his brother.

By the time he was taken again to the hospital — not before a new set of paramedics lectured his wife on not getting him help sooner, she said — it was too late.

The 34-year-old man was dead days later, leaving behind his high school sweetheart and their three young children in London, Ont.

He was diagnosed with infective endocarditis, an infection of the inner lining of the heart, which had spread to his brain and could not be controlled with antibiotics.

Wilson's family sued their family doctor, the emergency room doctors, St. Joseph's Health Care Centre and Thames EMS. The hospital and paramedics settled, and the trial judge awarded the Wilsons damages of $557,289.

The doctors appealed, but the Court of Appeal for Ontario upheld most of that judgment in a recent decision, except to find that the supervising ER doctor was not vicariously liable for the actions of the ER resident who treated Wilson.

That decision and the trial judgment set out Wilson's deteriorating conditions and his wife's efforts to help him in what would ultimately be his last few days alive.

The only way to diagnose the infective endocarditis is with an echocardiogram, the trial judge found after hearing from experts. That test is ordered when a person has both a fever and a heart murmur.

But the only health professional or paramedic who listened to Wilson's heart was his family physician, Dr. Ian Beck, and only indirectly. He testified he listened to Wilson's lungs and while doing so he would have been able to hear a heart murmur.

At that stage of the infection the murmur likely couldn't have been heard, the trial judge found.

Dr. Beck should, however, have ordered a follow-up appointment, Superior Court Judge Johanne Morissette said, at which time he likely would have heard the murmur and sent Wilson for an echocardiogram.

"This treatment plan would have resulted in a completely different course of action and Ken would likely be alive today," Morissette found.

How Wilson contracted the infection in late 2003 remains a mystery.

"It's a bit scary because as it turns out, what the evidence shows is that if you have a breach of your skin, some ordinary cut or opening, and you get it exposed to the wrong bacteria, it can get into your blood," the family's lawyer Dave Williams said.

The infection is difficult to diagnose, Williams said, but the expectation of health-care professionals is not that they are perfect, rather that they adhere to a standard of care.

"In this case it was the family doctor, then the ER department, then the ambulance attendants and each had an opportunity at a critical point in time," Williams said Monday in an interview.

"As we all know there are lots of people that go (to the ER) that maybe should go somewhere else, a walk-in clinic or whatever...then you get these people like Ken Wilson coming in the door, who have a sinister, deadly disease and if you don't detect it they die."

Wilson started to feel unwell on Dec. 26, 2003 and by the next day he had a fever, chills, a headache, diarrhea, lack of appetite, dizziness and fainting spells.

His wife Patricia Wilson, a registered nurse, gave him Tylenol for his fever and made him drink more fluids. But he wasn't getting any better, so she took him to Dr. Beck on Dec. 29.

Beck diagnosed him with viral gastroenteritis, commonly known as the stomach flu. He said it would take a long time for Wilson to get better and advised him to keep hydrated, the trial judge found.

The doctors said at trial that Wilson himself was 50 per cent liable for his failure to see his family doctor again, but the judge dismissed that argument.

"Ken was under the mistaken impression that he had viral gastroenteritis that he had to ride out," Morissette found.

"He fully complied with Dr. Beck's instructions to drink Gatorade and the fainting did stop the very next day...Ken was never instructed to return for a follow-up."

Early on Dec. 31, Wilson was startled awake and felt a sharp shoulder pain, Patricia Wilson told the court. Thinking he had dislocated his shoulder, he and his wife went to the hospital.

Patricia Wilson was asked to fill out a SARS screening form for her husband, the height of the SARS outbreak having just passed a few months prior.

Though she indicated on the form that he had a fever above 38 C (she had recorded it above 40 C in the previous days) and that he had been feeling feverish, the triage nurse and primary care nurse took no notes of the symptoms and didn't record Wilson's vital signs, the judge found.

The first-year internal medicine resident who assessed Wilson treated his shoulder and sent him home. At trial she couldn't recall seeing Wilson, but testified that if a SARS form was attached to his file she would have glanced at it, but only to ensure her own safety.

If she had taken note of Wilson's fever, she should have ordered vital signs to be taken and likely would have listened to his heart, the judge found.

In the early morning hours of Jan. 1, 2004, Patricia Wilson found her husband in the bathroom, unable to catch his breath. When the paramedics arrived they didn't take his pulse or blood pressure. They told him not to go to the hospital because it was New Year's Eve.

Thames EMS admitted the paramedics breached the standard of care.

Over the next few days Wilson was very weak and was finally admitted to the ICU at St. Joseph's Hospital on Jan. 5.

As he lay dying, unresponsive, the entire hospital wing was flooded with family and friends who came to say their goodbyes, the court decision notes.

Wilson died on Jan. 9 in his hospital bed with his wife — who he had known since they were 13 — curled up by his side.

He left behind three young children: a 10-year-old daughter, a six-year-old son and a six-month old daughter.