Kennedy v. Jackiewicz, 2004 CanLII 43635 (ON CA)

DATE: 20041126

DOCKET: C40087

COURT OF APPEAL FOR ONTARIO

LASKIN, CHARRON and FELDMAN JJ.A.

B E T W E E N:

CINDA KENNEDY, NELSON KENNEDY, TRAVOR KENNEDY, TYLER KENNEDY and TRAVIS KENNEDY by his Litigation Guardian CINDA KENNEDY

Paul M. Mann and Pheroze Jeejeebhoy for the appellants

Plaintiffs

(Appellants)

• and -

Darryl A. Cruz and

Sarit E. Batner

for the respondents

ALLAN JACKIEWICZ

Defendant

(Respondent)

Heard: June 8, 2004

On appeal from the judgment of Justice Patrick R. T. Gravely of the Superior Court of Justice dated May 13, 2003.

FELDMAN J.A.:

OVERVIEW

1During surgery performed by the respondent gynaecologist on the appellant to remove her ovaries, the appellant’s colon (the bowel) was burned by the cautery instrument used, causing her significant pain and damages. The trial judge assessed the total damages, including Family Law Act claims, at $802,285.

2The trial judge determined that the respondent doctor made an error that caused the burn to the bowel, but the trial judge found he did not “have adequate evidence to say with any degree of confidence that he (the respondent) fell below the standard of care in creating the burn.” The reason for this was what turned out to be a gap in the evidence. The plaintiff’s expert gynaecologist, who gave evidence that the respondent fell below the standard of care, interpreted the respondent’s operative note as describing applying the cautery in either one of two places. However, the trial judge accepted the respondent’s evidence that his note meant that he applied in it a third location. Consequently, although the expert said that the respondent’s technique in applying the cautery was below the standard no matter which of the two locations was cauterized, he never addressed the third location. The trial judge was not prepared to treat the expert’s opinion as applicable to any location other than the two he discussed. The appeal turns on whether the trial judge’s conclusion constituted a palpable and overriding error in his appreciation of the evidence.

3In my view, although it was open to the trial judge to infer from the expert evidence that the respondent applied the cautery either with too much power or for too long, and that this would have been the case in respect of any location within the surgical field that was near the colon, it was also open to him not to draw that inference. As a result, the appeal must be dismissed.

THE FINDINGS OF THE TRIAL JUDGE

4On December 12, 1996, the respondent, who is a specialist in obstetrics and gynaecology, performed a laparoscopic bilateral oophorectomy on the appellant, in lay language, an operation to remove the appellant’s ovaries. Over the next few days the appellant suffered considerable abdominal pain, nausea, and vomiting. She returned to the hospital emergency room on December 16, and underwent further surgery. The next day the surgeon discovered a two centimetre by 0.5-to‑1 centimetre hole in the sigmoid colon and repaired it by creating a colostomy. On March 18, 1997, the colostomy was reversed. However, the appellant developed chronic, disabling pelvic pain.

5The respondent used laparoscopic surgery together with bipolar electrosurgery to remove the appellant’s right and left ovaries. Laparoscopic surgery is performed by making a small opening in the abdomen wall and inserting instruments through tubes called trocars. The abdomen is inflated and a video camera is inserted, allowing the surgical field to be viewed on a monitor. Electrosurgery uses electric current to create heat either to cut tissue or to control bleeding. The bipolar technique uses an instrument with two electrodes which either cut or coagulate in the piece of flesh between them, depending on the volume of current, the size of the electrodes, and the duration of the application. When using the bipolar technique, the surgeon has precise control and relatively low voltages can be used because the amount of flesh between the electrodes is so small.

6The respondent’s operative note described what he did as follows:

On the right side she had a trapped ovary and we were able to clear it up with cautery and laparoscopic scissors and cauterized the infundibulopelvic ligament, cut it and the ovary was removed. On the left side everything was covered up with omentum. When we cleared that up the ovary was completely adherent to the rectosigmoid. Very carefully we cleared that out. The ovary did contain a cyst of about 4 cm. During the procedure of taking it out we did break the cyst and we did put an endoloop around the infundibulopelvic ligament and cauterized the rest of the base. Thus the ovary was removed. Following that the abdomen was lavaged and suctioned out and the small incisions closed. The patient was taken to recovery room in good condition. [Emphasis added.]

7The respondent described the operation in his evidence. The trial judge found that the doctor had no specific recollection of the operation, but was testifying by interpreting his operative note and relying on his knowledge of his usual technique. Nevertheless, the trial judge accepted the doctor’s evidence, which was confirmed by Dr. Fisher, who assisted on the operation.

8The respondent first described removing the right ovary. He applied bipolar cautery to the infundibulopelvic ligament below the ovary in order to cut off the blood supply to the ovary, then he cut out the ovary with laparoscopic scissors. The left ovary was more problematic. First, it was covered with omentum (a protective fat pad), which the respondent moved with scissors, revealing that the ovary contained a four-centimetre cyst and was attached to the rectosigmoid by scar tissue. The respondent freed up the ovary with scissors, but did not use cautery on the infundibulopelvic ligament because on this side, he was working too close to vital structures. Instead he tied off the infundibulopelvic ligament with an endoloop to prevent a bleeding. He cut the ovary free again using scissors. He did not cauterize the base of the cyst, as he had removed it with the scissors. Nor did he cauterize the base of the infundibulopelvic ligament, as he had successfully used the endoloop to prevent bleeding at that location. What he cauterized were small bleeders on the pelvic sidewall or broad ligament. He explained that that was what his note meant when it said that he “cauterized the rest of the base.” He said that he used no more than fifty watts of power and that he did not apply cautery to the bowel. At the end he examined everything for damage and saw none.

9An anatomic pathologist, who examined the portion of the colon with the hole in it that was removed on December 17, found evidence of thermal injury that was caused on December 12. The respondent took no issue with the pathologist’s conclusion.

10A biomedical engineer and expert in electrosurgical equipment and the effect of electrical currents on body tissue, Mr. Gentles, gave opinion evidence on the cause of the thermal injury. He found that the only probable cause of the injury in this case was “excessive electrosurgical energy applied in close proximity to the bowel, causing conduction of heat to adjacent tissue.” His evidence was uncontradicted and was accepted by the trial judge.

11Dr. Stopps was the obstetrician and gynaecologist called by the appellant as an expert on the standard of care. The trial judge accepted his conclusion as to how the injury occurred: that the size of the injury through the full thickness of the bowel wall was most compatible with either repeated coagulation or prolonged direct contact injury caused by either power that was too high or application for too long a period of time, during which the skin was picked up in the instrument and cauterized, causing charring on or near the bowel.

12The respondent offered no explanation for how the injury was caused. The trial judge concluded based on all of the expert evidence called by the appellant that, “The probable mechanism of this injury I conclude, was that Dr. Jackiewicz grasped tissue between the paddles on or close to the bowel, activated the current and held it for a long enough time that blood circulation became inadequate to move the heat away from the cauterized area thus causing thermal damage.” The burned tissue broke down over the days following the surgery, a hole opened up in the bowel and fecal contents spilled through until the colostomy was performed on December 17th.

13The trial judge then turned to the question whether the respondent had met the standard of care. The appellant’s only expert witness on the standard of care was Dr. Stopps. The respondent also had an expert witness on the standard of care, but the trial judge found that the substance of his evidence was that “accidents happen” and that it was therefore not very helpful.

14Dr. Stopps based his opinion on the operative note and other information obtained from counsel for the appellant. However, he did not read the examination for discovery of the respondent and he did not know the respondent’s interpretation of where he placed the cautery when removing the left ovary. Based on his interpretation of the operative note, Dr. Stopps postulated two possible interpretations of where the respondent placed the cautery, one, on the base of the cyst and, two, on the infundibulopelvic ligament to stop the bleeding. His opinion was that regardless of which of the two places the cautery was applied, it was either at too high a power or applied for too long. This would have been below the standard of care at either of the two locations. However, he gave no opinion about the use of cautery on the broad ligament.

15The trial judge had to determine whether, without that further piece of evidence, he could draw the inference that Dr. Stopps’ opinion on the standard of care would also apply to cautery applied on the broad ligament. First, the trial judge said that he was approaching with caution Dr. Stopps’ opinion that the respondent had not met the standard of care, because Dr. Stopps’ original view had been that the respondent had met the standard; he only changed his opinion when pressed by plaintiffs’ counsel, after reconsidering the significance of the size of the burn. However, at that point he had no further significant information upon which to base his new opinion. Second, and most importantly, the trial judge was very concerned about the gap in the evidence regarding placement of the cautery on the broad ligament and whether without that evidence, there was a factual basis in the evidence for Dr. Stopps’ opinion.

16The trial judge reasoned that if the respondent was deliberately applying cautery to the remnants of the cyst on the bowel, then Dr. Stopps’ opinion about the technique would be relevant. However, the respondent did not think he had applied cautery to the bowel; therefore, the trial judge concluded that the respondent must have applied cautery to the bowel inadvertently while cauterizing the broad ligament. Unfortunately, there was no evidence about the risks of cauterizing the broad ligament in terms of potential damage to the bowel, and Dr. Stopps related his concerns about the application of cautery, in part, to the location of the application.

17The trial judge concluded that he did not have sufficient evidence relating to what the respondent actually did to find that the respondent fell below the standard of care.

ISSUE

18Did the trial judge commit a palpable and overriding error when he failed to conclude that, taken together, Dr. Stopps’ evidence and Mr. Gentles’ evidence was that the burn could not have happened unless the respondent fell below the standard of care?

ANALYSIS

19The accepted test for the standard of care expected of a physician is described in Crits v. Sylvester (1956), 1956 34 (ON CA), 1 D.L.R. (2d) 502 at 508 (Ont. C.A.) in this way:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

20The onus was on the appellant to prove that the respondent did not meet the standard of care. In order to do that, the appellant had to prove that what the respondent did or omitted to do caused the damage suffered by the appellant, and that that conduct fell below the standard of care for a physician of the respondent’s training and experience as a specialist obstetrician and gynaecologist.

21The appellant asserts that the trial judge erred in this case first by requiring the appellant to prove precisely what procedure was being performed when the injury occurred even though that information was solely within the knowledge of the respondent. I do not agree. The trial judge accepted the evidence of the respondent interpreting his clinical note as to where he applied the cautery. The trial judge was entitled to accept that evidence and to prefer the doctor’s interpretation of his own note to the interpretation of another doctor, the expert witness, Dr. Stopps.

22Having made the factual finding of what the doctor did and having found that what he did caused the burn on the bowel, the trial judge was concerned with whether that conduct by the doctor was negligent, i.e., whether it fell below the standard of care.

23The appellant says the trial judge further erred by ignoring the only evidence on the standard of care, which was that cautery must be applied at low power and in short bursts, not at too high a power level, nor for too long. However, what the trial judge focused on was that the evidence of Dr. Stopps did not go so far as to say that applications of cautery at the location identified by the respondent, that is on the broad ligament, would be negligently applied if they were at too high a power level or for too long. Dr. Stopps did not address application of cautery to the broad ligament at all. Because of that, it was open to the trial judge to find that the expert evidence led on behalf of the appellant was not sufficient to meet the onus of proof.

24The appellant also relies on Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458 at para. 16, where the court reiterated the proposition from Snell v. Farrell (1990), 1990 70 (SCC), 72 D.L.R. (4th) 289 (S.C.C.) that in some cases one can infer causation without scientific proof. The appellant says that as there was no evidence to the contrary, the trial judge should have inferred that the respondent’s application of the cautery resulted in the burn to the bowel. However, again, the trial judge did make the finding of causation. The problem was that he was not satisfied on the evidence that the doctor’s conduct, although it caused the burn, fell below the standard of care.

25In my view, the inference contended for by the appellant was open to the trial judge. Dr. Stopps made it clear that if the cautery was applied at either one of two possible places, the cautery was applied negligently. But he did not say specifically that no matter where the cautery was applied, that had to be the case. The trial judge may well have drawn an inference, where there was no evidence to the contrary and no other explanation for the injury from the respondent, that applying the cautery anywhere within the operating area required greater caution regarding power level and duration of application. But he did not draw that inference. He was not obliged to do so.

26Finally, the witness Mr. Gentles, who is not a doctor but an expert in electrosurgery and electrosurgical equipment, testified that: “… the overall conclusion which, perhaps I need just to emphasize is that when using bipolar electrosurgery laparosopically, burns that occur are always the result of an error in technique.” His evidence was accepted by the trial judge. However, this evidence, although strong, does not assist the appellant on the issue of the standard of care. This evidence supports the position that the respondent erred in his technique when applying the cautery. However, it does not add anything to the question whether the particular error was below the standard of care for a doctor of the respondent’s expertise and experience. Only Dr. Stopps could have provided that evidence, and the trial judge was not prepared to draw the inference that his evidence went that far. See Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada (Scarborough, Ont.:Carswell, 1996), at 185.

CONCLUSION

27I conclude that based on the record, the trial judge was entitled to make the findings of fact and to draw the inferences that he did, and that he was also entitled to decline to draw the inference of negligence in the circumstances that he found occurred. I would therefore dismiss the appeal with costs on the partial indemnity scale fixed at $12,000 inclusive of disbursements and G.S.T.

Signed: “Kathryn Feldman J.A.”