COURT OF APPEAL FOR ONTARIO
Simmons, Blair and Juriansz JJ.A.
BETWEEN
Barbara Rowlands, Normand Rowlands, and Stacie Rowlands
Plaintiffs/Respondents
and
Dr. Frederick F. Wright
Defendant/Appellant
Mary M. Thomson and Meghan K. O'Brien, for the appellant
Daniel C. Sirois, for the respondents
Heard: January 30, 2009
On appeal from the judgment of Justice Bourke C. Smith of the Superior Court of Justice dated December 18, 2007 and reported at 2007 CanLII 56090.
Simmons J.A.:
I. Overview
1Dr. Wright operated on Mrs. Rowlands laparoscopically to remove her gallbladder. During the course of the surgery, he cut Mrs. Rowland's common bile duct, mistakenly believing it was her cystic duct. Although the cystic duct must be cut in order to remove the gallbladder, the common bile duct should not be divided or removed as part of gallbladder removal surgery.
2As the parties had reached an agreement on damages, the sole issue at trial was whether, in cutting Mrs. Rowlands’ common bile duct, Dr. Wright breached the standard of care. The trial judge found that Dr. Wright used the proper techniques in his approach to identifying the cystic duct. Nonetheless, the trial judge concluded that Dr. Wright breached the standard of care.
3The main issue on appeal is whether the trial judge made a reversible legal error in addressing the standard of care issue.
4For the reasons that follow, I would allow the appeal.
II. Background
i) The surgery
5Dr. Wright is a general surgeon. On March 20, 2002 he operated on Barbara Rowlands laparascopically to remove her gallbladder. This surgery required that Dr. Wright not only identify and remove Mrs. Rowland's gallbladder, but also that he identify and remove a segment of her cystic duct and a segment of her cystic artery.
6Mrs. Rowlands was 41 years old on the date of surgery. She had had a hysterectomy at age 34 and suffered from cervical cancer in 1993. Although somewhat overweight at the time of surgery, she was otherwise healthy.
7During the surgery, Dr. Wright encountered a number of intra-abdominal adhesions (bands of scar tissue that bind together two anatomic surfaces that are normally separate from each other) resulting from her prior hysterectomy. After dissecting these adhesions, Dr. Wright reached the gallbladder and found it to be contracted, thickened and chronically scarred. He also found adhesions of the omentum (an extension of the peritoneum that enfolds one or more organs adjacent to the stomach) to the under surface of the gallbladder.
8Through further dissection, Dr. Wright reached the area known as the “triangle of Calot.” Thinking that he had identified the anatomy, Dr. Wright proceeded to clip and divide what he believed was the cystic duct and then to dissect the gallbladder from the liver bed.
9During the course of this dissection, Dr. Wright saw a ductal structure leading back to the liver. Realizing that something was wrong, Dr. Wright converted from the laparoscopic procedure to an open surgical procedure known as a laparotomy. Following conversion and further dissection, he discovered that Mrs. Rowlands had a cystic duct that was extremely short and extremely small in diameter, and that rather than cutting the cystic duct as he believed, he had actually cut Mrs. Rowlands’ common bile duct.
10As noted by the trial judge Dr. Wright proceeded thereafter in a highly professional manner. He requested the assistance of a second general surgeon, Dr. Smith, and the two surgeons repaired the common bile duct. Postoperatively, Mrs. Rowlands had a lengthy, but successful recovery.
ii) Expert evidence concerning the standard of care
11The parties called three expert witnesses at trial whom the trial judge described as “three renowned authorities on the phenomenon of biliary injury in laparoscopic surgery.” Dr. Jeffrey Barkun was called by the respondents; Dr. Eric Poulin and Dr. Suryacant Chande were called by Dr. Wright.
12Although there may have been some disagreement among the experts concerning the extent to which other techniques play a necessary role in anatomical identification during gallbladder surgery, there was no real dispute that obtaining "the critical view" reflects the standard of care in laparoscopic gallbladder removal surgery.
13Dr. Barkun described obtaining the critical view as essentially cleaning out the area of the triangle of Calot so you can see the base of the liver through it and so you can obtain the perspective necessary to determine whether there are any tubular structures going back towards the liver. Dr. Barkun said the triangle of Calot is an anatomical landmark bounded by the inferior edge of the liver on the top, the cystic duct to the patient's right, and the common hepatic duct to the patient's left.
14In Dr. Barkun's view, Dr. Wright was not successful in obtaining the critical view during laparoscopic surgery and should have converted to open surgery before cutting. Among other things he said:
[G]iven that it was possible to dissect out the cystic duct, meaning that there was a plane that allowed to give the critical view, I feel that at the time of the laparoscopic procedure the critical view was not truly obtained. It was truly obtained only after conversion occurred.
I would say in this case the judgment has to do with did I have enough of an area that was clear to be able to have the perspective to see that this 5 milimeter structure ... is the cystic duct or not especially given the fact that I realize that I've hit adhesions and scarring at every step of the way.
15Neither Dr. Poulin nor Dr. Chande shared Dr. Barkun’s opinions.
iii) Dr. Wright’s evidence
16Although he may not have used this terminology in his postoperative report, Dr. Wright's description of the surgery indicated that he used two techniques to identify the anatomy, the infundibular technique and the critical view technique. Dr. Wright testified expressly that he obtained the critical view.
III. Analysis
17The appellant submits that the trial judge made a reversible legal error by importing common sense into the assessment of whether Dr. Wright breached the standard of care. I agree with this submission.
i) The Trial Judge’s Reasons
18The trial judge correctly identified many of the legal principles relevant to determining the standard of care:
- A surgeon has a duty to conduct his practice in accordance with the conduct of a prudent and diligent surgeon in the same circumstances.
- It is generally accepted that when the doctor acts in accordance with a recognized and respected practice of the profession, he or she will not be found to have acted with negligence.
- Courts should be careful not to rely upon the perfect vision afforded by hindsight.
- The law recognizes that doctors should not be held liable for a mere error of judgment, as distinguished from professional fault.
19However, the trial judge went on to state the following:
But there is a duty on the court to weigh whether reasonable precautions readily apparent to the ordinary finder of fact have been followed, even where it appears certain a standard medical procedure was in place. Put another way, a finder of fact may use common sense in assessing the surgeon’s conduct as he followed the standard medical practice described by the experts.
In this operation, it is established by all the evidence that the defendant used the proper techniques in his approach to isolating the cystic duct before transection, including dissection and maneuvering of cameras. He then made an intra-operative decision that he had identified the two anatomical structures to be clipped and divided, the cystic duct and artery. But one might reasonably ask, what about the other vital structures inhabiting the immediate anatomical triangle, especially the bile duct?
The defendant brought to his task a high degree of skill, knowledge and experience, catalogued earlier in these reasons. At the critical time, however, he failed to adopt reasonable precautions when he transacted a duct without having a sufficiently clear view of all the vital ducts in the vicinity of the triangle. And the defendant, as I have said, was put on some notice that the necessary “critical view” might be impeded by the known hysterectomy some eight years previous, the resulting scar tissue present in the abdominal area, as well as the patient’s obesity. [Emphasis added.]
ii) Discussion
20The above-noted passages demonstrate that although he found that Dr. Wright followed the proper techniques in attempting to isolate the cystic duct, the trial judge also concluded that “common sense” required Dr. Wright to go further and identify the other anatomical structures in the area, “especially the bile duct.” Put another way, in effect, the trial judge relied on common sense to find that the then current surgical techniques were inadequate. In my opinion, on the facts of this case, the trial judge was not entitled to do so.
21Although common sense no doubt has a role to play in assessing medical negligence, it plays a limited role “where a procedure involves difficult or uncertain question of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury.”: Ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 51. In such cases, it will not generally be open to the trier of fact to find a standard medical practice negligent, subject to an exception where “a standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact”: Ter Neuzen, at para. 51.
22In this case, the evidence at trial demonstrated that proper identification of the cystic duct is the Achilles heel of gall bladder surgery, whether performed laparascopically or by open surgery. Although various surgical techniques have been developed over time to attempt to address this problem, common bile duct injury resulting from its misidentification as the cystic duct remains a potential complication of gallbladder surgery, albeit a rare one.
23The expert witnesses at trial were generally agreed that the critical view technique reflects the standard of care in terms of avoiding misidentification of the cystic duct. None of the expert witnesses testified that the critical view technique requires the surgeon to identify the common bile duct before cutting. On the contrary, an article by Dr. Steven Strasberg that Dr. Barkun recognized as authoritative specifically states that “it is not necessary to expose the common bile duct” when using the critical view technique.
24Further, Dr. Poulin stated in his evidence that with the emergence of laparascopic surgery, surgeons adopted a practice of avoiding the common bile duct in order to reduce the risk of injury through devascularisation:
Historically surgeons were taught to dissect the cystic duct all the way to the junction with the common duct …when laparscopic surgery occurred a quantum change in trying to convince the surgeon to stay away from the common duct. Basically dissect infundibulum of the gallbladder and take whatever you need to make a safe application of clips on the early part, if you wish, of the cystic duct, and get out of Dodge. Stay away from the common duct, don’t devascularize the common duct, stay away from it.
25Particularly in the face of Dr. Poulin’s evidence, in my opinion, the trial judge erred by finding that Dr. Wright was required to identify the common bile duct before cutting. Isolating and identifying the common bile duct is not part of the accepted surgical technique for avoiding common bile duct injury through misidentification of the cystic duct. Further, Dr. Poulin’s evidence suggests that dissecting to the common bile duct creates its own set of risks. Dr. Poulin’s evidence belies any suggestion that identifying the common bile is an “obvious and reasonable precaution…readily apparent to the ordinary trier of fact.”
26In the face of an apparently conflicting medical opinion as to what actions were required in the circumstances, it was not appropriate for the trial judge to assess the surgeon’s conduct based on common sense.
27In my opinion, the live issue for determination by the trial judge was whether Dr. Wright went far enough in attempting to obtain the critical view. Dr. Barkun suggested that he did not. Although Dr. Wright testified that he obtained the critical view, as was pointed out by Dr. Barkun, Dr. Wright did not identify in his post-operative report the visual cues he relied on in making the assessment that he had properly identified the cystic duct.
28The fact that Dr. Wright may have used the proper techniques does not demonstrate that he went far enough in dissecting before making the decision to cut. There is a difference between using the appropriate technique and executing it properly. Based on my review of the trial judge’s reasons, he did not make a finding concerning this important issue and concerning whether Dr. Wright, in fact, obtained the critical view. Such findings are essential to determining whether Dr. Wright met the standard of care. In the circumstances, I see no option but to order a new trial.
IV. Disposition
29Based on the foregoing reasons, the appeal is allowed, the judgment below is set aside and a new trial is ordered. Costs of the appeal are to the appellant on a partial indemnity scale fixed in the amount of $15,000 inclusive of G.S.T. and disbursements.
30In addition to the main issue on appeal, the appellant requested leave to appeal the trial costs awarded to the respondents. At the oral hearing, the respondents conceded that, having expressed an intention to award partial indemnity costs to the date of the offer to settle, it appears that the trial judge awarded substantial indemnity costs throughout erroneously.
31However, having set aside the judgment below, including the costs award, it is not strictly necessary that I address the request for leave to appeal. Costs of the trial are to the appellant in the cause in an amount to be determined by the trial judge on the new trial.
RELEASED: June 22, 2009 “JS”
“Simmons J.A.”
“I agree R. A. Blair J.A.”
“I agree R. G. Juriansz J.A.”
