Doctor negligent but patient loses med mal claim: Fowlow v. Gupta

by John McKiggan

As a medical malpractice lawyer I am often faced with explaining the difference between proof of negligence and proof of harm. Clients find it difficult to understand how a doctor may be found to be negligent; but still not be responsible for the patients injury or death.

Fowlow v. Gupta

A perfect example is the case of Fowlow v. Gupta which was recently decided by the Ontario Supreme Court.

The claim arose from the tragic death of Mr. Fredrick Fowlow, who died on May 1, 2007, after undergoing surgery at the Southlake Regional Health Centre. The action was filed by his widow and children against the surgeon who performed the operation, Dr. Deepak Gupta.

Summary of Facts

Mr. Fowlow worked as a plumber right up until the days before his death. As a result of a heart attack, Mr. Fowlow was to undergo bypass surgery which would require the insertion of a graft to complete the by-pass. Mr. Fowlow’s surgery was postponed when it was discovered that the box containing the graft was no longer sterile. Mr. Fowlow was called back to the hospital a week later for the surgery.

Wrong Graft

Dr. Gupta used an “IMPRA Flex Thinwall” graft during the surgery. Dr. Gupta admitted that he did not know that the IMPRA graft included a warning that it was not recommended for the type of bypass procedure that Mr. Fowlow was having.

Mr. Fowlow was discharged 4 days after the operation. His wife took him to their home, he was helped into bed where he took a nap. Mr. Fowlow’s son went to the pharmacy to fill out the prescription for his dad. When he returned he found that Mr. Fowlow had suffered massive external blood loss. Tragically, he could not be resuscitated.

Graft Disconnected

An autopsy determined that the bypass tube was completely disconnected at the axillary vessel ridge. There was external blood loss through the overlying scar.


The autopsy was able to determine HOW Mr. Fowlow died: The graft detached.

The Court noted:

[35] The cause of death was determined to be the completely disconnected bypass tube, with secondary localized soft tissue hematoma and external blood loss through the overlying scar, likely complicated by an acute cardiac ischemic event.

Informed Consent

The first step in any medical mapractice claim is determining whether the patient gave “informed consent” to the medical procedure or treatment. I wrote about this in detail in a previous article: What Does Informed Consent Have To Do With My Nova Scotia Medical Malpractice Claim?

Basically, the principle of informed consent is that you can only give valid permission for medical treatment if you are provided with all of the information necessary to make an informed decision about the proposed treatment.

The Court in Fowlow found that Dr. Gupta met this standard when he informed Mr. Fowlow that there was a 3% risk of mortality (death) after the procedure. I have written about the use of statistics when discussing consent in a previous article: Informed Consent: Lies, Damned Lies and Statistics in Cancer Claims – Gilberds v. Sobey

Doctor was Negligent

The judge determined that Dr. Gupta failed to read the warning regarding the use of the graft in the particular procedure used in Mr. Fowlow’s operation.

The Court ruled that, in not reading the warning on the graft, Dr. Gupta fell below the standard of care.

In other words, Dr. Gupta was negligent.

Justice Stinson ruled that, even though Dr. Gupta failed to read the warning on the graft, Dr. Gupta properly informed Mr. Fowlow of the risks of the operation, and therefore Gupta was not liable for failure to obtain informed consent.

Negligence Isn’t Enough!

Proving that the doctor who treated you was negligent is only the first step in winning a medical malpractice case. In my article: What Do I Have to Prove to Win My Medical Malpractice Case? I outline the 4 requirements for success in a medical malpractice case.

1: Standard of Care: The claimant must prove what the standard of care is with respect to the medical procedure involved in the claim. In other words, what is the standard expected of a reasonably competent doctor (or nurse or other health professional) when conducting the medical procedure that may have caused the claimant’s injury?

2: Breach of the Standard of Care: The plaintiff must also prove that the defendant failed to meet the standard of care. In other words, that the doctor did something that a reasonably competent doctor would not have done, or the doctor failed to do something that a reasonably competent doctor would have done.

3: Causation: The plaintiff must also prove the defendant’s breach is what actually caused the plaintiff’s injuries. Even if the doctor was negligent, if the doctor’s negligence was not the actual cause of the plaintiff’s injuries, the defendant will not be found liable (responsible) for the plaintiff’s injuries.

4: Damages: Finally, the plaintiff must prove what damages or losses they have suffered as a result of the defendant’s negligence. This would include non-pecuniary damages (what is commonly referred to as “pain and suffering”) as well as the economic losses for things like ongoing medical care or loss of income.


The judge decided that although the evidence presented to the court determined that the graft failed, the evidence did not explain WHY the graft failed.

[36] … the autopsy records contain no detailed description of the mechanism by which the graft and axillary artery became detached… The evidence merely establishes that the graft was no longer attached to the axillary artery as it had been at the conclusion of the operation. The specific cause of the detachment was not addressed in the autopsy report nor directly in the evidence at trial.

Stinson J. stated that the evidence revealed that there are a number of reasons why a graft can detach.

Doctor Negligent But…

Justice Stinson stated:

[85] I have concluded that, in several respects, Dr. Gupta’s conduct fell below the standard of care. For the plaintiffs to succeed, however, they must establish a casual connection between the conduct of Dr. Gupta and the event that resulted in Mr. Fowlow’s death. In my view, they have failed to do so.

The Court concluded the Plaintiffs had failed to prove Dr. Gupta’s negligence caused Mr. Fowlow’s death.

While the Plaintiffs in Fowlow were able to establish the standard of care, prove that there was a breach of the standard, and prove that clearly there was a loss, they were not able to prove that the Doctors breach was what caused the loss.


Without proof of why the graft detached Justice Stinson wasn’t able to say that Mr. Fowlow’s death was caused by Dr. Gupta’s negligence.

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