COURT OF APPEAL FOR ONTARIO
FELDMAN, CRONK and ARMSTRONG JJ.A.
B E T W E E N :
CATHERINE HASSEN
Kirk F. Stevens for the appellant
Plaintiff (Respondent)
- and -
MEHRAN ANVARI
Karl K. Beyer and Shelley M. Stanzlik
for the respondent
Defendant (Appellant)
Heard: February 5, 2003
On appeal from the judgment of Justice James C. Kent of the Superior Court of Justice dated December 5, 2001.
FELDMAN J.A.:
1The appellant surgeon was found liable for negligence in the performance of a laparoscopic hiatus hernia operation on the respondent: while making the abdominal incision, he mistakenly cut the respondent’s aorta causing a massive haemorrhage. The appellant’s position was that what occurred was an unfortunate medical misadventure. He appeals on the basis that there was neither evidence of negligence nor that he breached the standard of care, and that the trial judge wrongly found him liable based only on the fact that the mistake occurred. For the reasons that follow, I would dismiss the appeal.
FACTS
2The appellant is a general surgeon who is recognized as one of Canada’s top specialists in the field of laparoscopic surgery, and whose practice has focused on the treatment of the gastro-intestinal tract. Dr. Anvari participated in the development of the laparoscopic procedures for the Nissen fundoplication, the operation he performed on the respondent on April 29, 1997. Dr. Anvari was highly experienced in the procedure, having performed it approximately 500 times before the respondent’s operation, including two times earlier that day. He had performed laparoscopic surgery of all kinds approximately 3,000 times.
3There were at the time two recognized methods for gaining entry into the abdomen, the open or Hasson technique, and the closed or Verres needle technique. The evidence at trial was that although there was considerable ongoing debate within the relevant medical community about which was the preferable method, both methods were used and accepted at the time and both accorded with accepted standards and practice. The respondent’s expert, Dr. Walker, testified that he used the open method exclusively because he thought it was safer and a better method to use for teaching purposes. However, he agreed that the closed method was a commonly used and accepted technique.
4The trial judge described the procedure used by Dr. Anvari on the respondent and what occurred as follows:
The technique employed by Dr. Anvari was to first insert a Veress needle (see Exhibit 14) into the abdominal cavity of Catherine Hassen. Carbon Dioxide was then insufflated through that needle to inflate the abdominal cavity. Dr. Anvari then proceeded to insert a Pjunk trocar (see Exhibit 13) into the abdominal cavity. The method he used was a “blind” insertion at a point 5 centimetres above the umbilicus. The descriptive term “blind” is applied to the insertion method because the trocar is not a type through which the surgeon inserting it can see where it is heading. The trocar used had a safety shield or guard that clicked into position covering its very sharp leading/cutting edge after the inner surface of the abdominal cavity had been fully penetrated. Dr. Anvari testified that when he heard that click he inserted the trocar no farther and then removed a portion of the trocar, leaving a port into his patient’s abdominal cavity. Dr. Anvari then introduced a scope/camera through the trocar port. As that scope/camera went farther into the abdominal cavity he saw blood pooling. When he learned from the anaesthetist that the patient’s blood pressure had dropped, he elected to convert the operation to an open laparotomy. He immediately made a mid‑line incision and called a code. The anaesthetist present, Dr. James McChesney, described the situation at that point as “life threatening”. In response to the code, Dr. John D. Miller, a thoracic surgeon arrived. Doctors Miller and Anvari were able to locate the patient’s cut aorta and get the flow of her blood stopped. Dr. Miller was able to make an emergency repair to the cut aorta and Catherine Hassen’s life was saved.
5It was accepted and agreed at trial that the respondent’s aorta was cut by the blade of the trocar. Dr. Anvari did not know how the cut occurred. He had done everything the same way he always did. There was no evidence to the contrary.
6Later that day, a vascular surgeon, Dr. Mosakoski, was called to deal with a problem with the flow of blood to the patient’s legs. Dr. Mosakoski was required to reopen the patient in order to repair the aorta laceration and clear the blood vessels to the legs. She used the same incision. The trial judge paraphrased Dr. Mosakoski description of the respondent’s aorta as “next to the spinal column, a normal location, smaller in size than one would have expected and no more prominent than any other person’s.”
7The only expert witness called was the respondent’s witness Dr. Walker. There were also two expert reports filed on behalf of the appellant, one from Dr. Litwin, the Director of Minimally Invasive Surgical Services at the University of Massachusetts Medical Center, and one from Dr. Mitchell, Clinic Assistant Professor in the Surgery Department of The University of Calgary. None of the experts gave the opinion that Dr. Anvari had performed the surgery in a negligent manner. Dr. Walker testified, however, that the type of injury that occurred in this case is very rare, and that it should not happen because of all the techniques used in the procedure to minimize the risk; he acknowledged, however, that with the closed technique, the risk cannot be eliminated.
8Dr. Walker also said that although it was not possible to ascertain from the hospital records why the injury occurred, he could say that what happened was that “the sharp tip of the trocar cut through the abdominal wall and then cut into the aorta” and that “there had to be enough pressure to push the abdominal wall down to bring the trocar in the proximity of the aorta, with the sharp blade exposed.”
THE TRIAL JUDGE’S FINDINGS
9The trial judge first set out the legal principles applicable in a medical negligence case involving surgery. He referred first to the accepted concepts that all surgery has risks, so that mere misadventure must not be considered negligence: Crits v. Sylvester, [1956] O.R. 132 (C.A.); a surgeon “should not be held liable for mere errors of judgment”: Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351 at para. 29; and a bad outcome does not by itself require a finding of negligence: Dumais v. Zarnett (1996), 30 O.R. (3d) 431 (Gen. Div.), Sanders v. Sheridan, [2002] S.J. No. 403 (Sask. Q.B.). Second, he stated that the standard of care required for a specialist is higher than that for a general practitioner; a specialist must use diligence, care, knowledge, skill and caution: Gent v. Wilson, [1956] O.R. 257 at 265 (C.A.). Third, the trial judge accurately described the onus of proof, following the abolition of the res ipsa loquitur maxim by the Supreme Court of Canada in Fontaine v. British Columbia, [1998] 1 S.C.R. 424. The onus is on the plaintiff to prove that negligence by the defendant caused the plaintiff’s injury. That onus may be satisfied by circumstantial evidence that allows an inference of negligence to be made, unless the defendant negates the inference with an explanation that is at least as consistent with no negligence as with negligence.
10The trial judge then examined the circumstantial evidence of how the trocar could have cut the aorta and concluded that the following circumstances allowed an inference of negligence:
(1) the fact that the risk of injury with the operation was extremely remote: two in ten thousand;
(2) the need for diligence, care, and caution due to the following unknown and immeasurable risk factors: the extent to which the abdomen is enlarged as a result of the insufflation from the carbon dioxide; the precise location of the point of insertion of the trocar; the specific degree of pressure on the trocar; the specific angle of insertion of the trocar; any change(s) in the line of direction of the trocar; the specific distance that the trocar is inserted; the precise movement of the trocar’s safety shield;
(3) the expectation that insufflation of the abdomen would reduce the risk of injury to vital vessels;
(4) the evidence of Dr. Mosakowski regarding the aorta;
(5) the fact that nothing in the respondent’s medical history, including relatively recent chiropractic findings, indicated that the spinal column was misshapen causing it to force any vessels forward in her abdomen.
11Having drawn the inference of negligence from the evidence, the trial judge examined Dr. Anvari’s three possible explanations for the injury. The first was that the distance between the inner surface of the abdominal wall and the aorta was less than the length of the trocar blade. The only evidence to support this explanation was from Dr. Anvari, who observed the aorta as prominent, proximate to the abdominal wall and just behind the large laparotomy incision he made in order to deal with the emergency situation. The trial judge discounted this evidence on two bases: first, once the incision was made, the carbon dioxide gas would have escaped so that the effect of the insufflation would have been lost by that time, and second, Dr. Mosakowski, an independent witness, did not observe any prominence of the aorta later that day. On the latter point, the trial judge acknowledged that by that time, there could have been organ movement.
12The second possible explanation was that the deployment of the trocar’s safety shield/guard was delayed. The trial judge found no evidence to support this possibility, given that Dr. Anvari tested the safety mechanism before the operation and found it to be working. The trocar was not retained for testing after the operation.
13The third possible explanation was a combination of the above two. As there was no evidence to support either explanation alone, putting them together would not assist.
14The trial judge found that the explanations were nothing but speculative possibilities without evidentiary support. He therefore rejected the submission that the injury was caused by either error in judgment or medical misadventure and concluded, based on the inference from the circumstantial evidence that went unexplained, that the appellant failed to use the requisite standard of care in the operation he performed on the respondent. Specifically, the trial judge found that the circumstantial evidence established that the appellant’s feel and touch failed him, because he inserted the trocar either too far, or with too much speed or pressure, slightly off-angle or off-direction, or a combination of any of those.
STANDARD OF REVIEW
15An appellate court is to accord deference to the trial judge on findings of fact and on inferences to be drawn from the facts: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard in both cases is palpable and overriding error:
[I]f there is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it is only where the inference-drawing process itself is palpably in error that an appellate court can interfere with a factual conclusion. (p. 237)
Therefore, appellate courts are to defer to the trial judge on findings of negligence unless the trial judge has made a legal error in characterizing or applying the standard or duty of care, or a palpable and overriding error in the perception of the evidence and the inferences drawn from the evidence.
16This court’s role is therefore to determine whether the trial judge made a palpable and overriding error by drawing the inference of negligence from the evidence and in finding that there was no evidentiary support for the appellant’s explanations.
ALLEGED ERRORS BY THE TRIAL JUDGE
17The appellant submits that the trial judge made three errors of law:
(a) there was no basis for drawing an inference of negligence from the circumstances;
(b) the trial judge’s findings of negligence do not amount to negligence but only to error of judgment or medical misadventure;
(c) the trial judge failed to take into account certain critical evidence and thereby made a palpable and overriding error in his assessment of the facts.
ANALYSIS
(a) Basis for drawing the inference
18The appellant suggests that there were only three ways that the respondent’s injury could have occurred: (i) medical misadventure based on some unknown condition in the respondent’s body or a failure of the trocar such as delayed deployment of the shield; (ii) an error by Dr. Anvari in the insertion of the trocar that did not breach the standard of care; (iii) an error by Dr. Anvari that did breach the standard of care. The appellant submits that because there are two non-negligent explanations for the injury, the court was not entitled to draw the inference of negligence. He also points to the testimony of Dr. Walker that the only evidence of negligence on the record was the mishap itself, and that vascular injury does not necessarily indicate negligence.
19In my view, this submission cannot succeed. The trial judge was alive to the first two possible causes of the injury suggested by the appellant and rejected them. He was entitled to do so, based on the evidence. There was no evidence of an unknown or abnormal configuration of the respondent’s body that might have put the aorta in an unexpected position within the abdominal cavity, except for the evidence of Dr. Anvari, which was specifically rejected by the trial judge because it was contradicted by the observations of Dr. Mosakowski and the respondent’s medical history. The trial judge also discounted Dr. Anvari’s after the fact observations because he considered them self‑serving at that stage. These were findings of fact that the trial judge was entitled to make. There was evidence that the trocar was working properly and no evidence to the contrary or that it operated with a delayed deployment of the shield. There was also extensive evidence from Dr. Walker explaining that injuries of this nature are extremely rare because of the numerous precautions built into the procedure and the care with which it is performed. The trial judge was entitled to use this evidence, together with the evidence of the extreme unlikelihood of the injury occurring, to conclude that it could not have happened based on a non-negligent slip. Finally, Dr. Walker also gave the opinion that the injury occurred because the amount of pressure used was enough to push the abdominal wall down bringing the sharp end of the trocar into contact with the aorta, and that Dr. Anvari, being in control of the trocar, was responsible for the consequences of where it went. In other words, Dr. Walker offered more than just the fact of the injury as an explanation for its occurrence.
20The appellant also takes issue with the trial judge’s reference to the case of Miles v. Judges (1997), 37 C.C.L.T. (2d) 160 (Ont. Gen. Div.), which involved a similar procedure. The trial judge noted the comment by Philp J. that the surgeon in that case had misused force or miscalculated direction when he pierced the patient’s vessels, located against the spine, with the trocar. The appellant points out that the facts in Miles were wholly distinguishable. Again, the trial judge made that very observation when he noted the case “with interest”.
(b) Whether the findings of the trial judge amount to negligence
21The appellant submits that the findings made by the trial judge regarding the rarity of injury, the need for the surgeon to exercise care because of unknowns, the expectation that the insufflation would reduce the risk of injury, the evidence of Dr. Mosakowski about the normal position of the aorta, and the lack of evidence of other abnormality, cannot give rise to an inference of negligence and are consistent with non-negligent error essentially because they do not rule it out.
22Again, however, the appellant in my view, misapprehends the process followed by the trial judge in considering all of the evidence.
23The trial judge used the evidence referred to by the appellant in para [21] when he considered the non-negligent explanations, and found it to be some evidence that weighed against those explanations. His finding of negligence, which is supported by the evidence of Dr. Walker and by the fact of the injury in all the circumstances, was that the appellant inserted the trocar too far, either because he did it too fast, too hard, or in the wrong direction. He was entitled to make that finding as an inference from all of the circumstances and made no error in doing so.
(c) Was there misapprehension of the evidence?
24The appellant submits that the trial judge erred by failing to deal with what happened to the safety shield on the trocar, even if the appellant did use too much force. He suggests that either the trocar did not perform as designed or it continued to meet resistance after going through the abdominal wall, i.e. the aorta was adjacent to the wall (the abnormal position theory). I agree that the trial judge did not explicitly provide an explanation for why the trocar shield failed to protect the respondent. However, it is implicit in his finding and conclusion that the speed or pressure or direction used by the appellant was such that the safety shield did not have the opportunity to deploy completely before the aorta was cut.
25The second allegation of misapprehension concerns the evidence of Dr. Mosakowski. The appellant submits that there was evidence from both Dr. Mosakowski and Dr. Anvari that the position of the internal organs had changed following the procedure so that any observations of Dr. Mosakowski were not relevant. However, the trial judge specifically noted that by the time Dr. Mosakowski worked on the respondent, some organs may have moved. The trial judge was also fully cognizant of the fact that the effect of the insufflation would have dissipated both at the time Dr. Anvari used the laparotomy incision to open the respondent and when Dr. Mosakowski reopened the patient, so that both were observing the aorta without the distance created by the infusion of the gas. The appellant also questions what Dr. Mosakowski intended in her evidence regarding the respondent’s spine not being crooked and the effect on the position of the aorta.
26My reading of the reasons of the trial judge satisfies me that he was fully cognizant of all of the nuances of this evidence and that he made no error in his apprehension of that evidence.
27Finally, the appellant submits that the trial judge erred by failing to refer to the evidence of the nurse and anaesthetist, who both said they noticed and heard nothing unusual about the insertion of the trocar either from Dr. Anvari or from the surgical resident doctors. Counsel submits that no memory of anything unusual is strong evidence that nothing out of the ordinary occurred. A trial judge is not obliged to mention every piece of evidence. The trial judge heard and considered all the evidence. He clearly did not agree with the appellant’s submission as to the cogency or relevance of this evidence, and was certainly entitled to do so. It is not the function of this court to reweigh the evidence or to second-guess the findings of fact made by a trial judge: see Housen, supra.
CONCLUSION
28I would dismiss the appeal with costs, fixed on the partial indemnity scale at $30,000 for fees and disbursements inclusive of G.S.T.
Signed: “K. Feldman J.A.”
“I agree E.A. Cronk J.A.”
“I agree Robert P. Armstrong J.A.”
