The appellants appealed the dismissal of their medical malpractice action against the respondent gynaecologist.
During a laparoscopic bilateral oophorectomy, the appellant's colon was burned by a cautery instrument.
The trial judge found that the respondent caused the burn but concluded there was insufficient evidence to find he fell below the standard of care, as the appellants' expert did not address the specific location where the respondent testified he applied the cautery.
The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to decline to draw an inference of negligence given the gap in the expert evidence.
