COURT OF APPEAL FOR ONTARIO
Laskin, Feldman and Gillese JJ.A.
BETWEEN
Doreen Bafaro, Michael Archambault and Tanya Archambault
Plaintiffs (Appellants)
and
Ronald J. Dowd and Peter Willard
Defendants (Respondents)
Stanley M. Tick and Janis P. Criger, for the appellants
Sarit E. Batner and Kate Findlay, for the respondents
Heard: January 12, 2010
On appeal from the judgment of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated September 9, 2008, with reasons reported at 2008 45000.
A. INTRODUCTION
1In February 1997, the appellant, Doreen Bafaro, underwent a laparoscopically assisted vaginal hysterectomy (L.A.V.H.). Her gynecologist, Ronald Dowd, performed the hysterectomy. Eight days after her surgery, Ms. Bafaro became severely ill: her symptoms included pain, a fever, chills and rectal bleeding.
2The respondent, Peter Willard, a general surgeon, performed an exploratory laparotomy on Ms. Bafaro. He found that she had a badly infected pelvic hematoma. He also suspected that she had a hidden rectal injury so he performed a colostomy to divert Ms. Bafaro’s fecal stream.
3Two weeks after her surgery, Ms. Bafaro began to pass feces through her vagina. A barium enema showed that a part of her small bowel had adhered to her vaginal vault, and that she had developed an ileovaginal fistula – that is, a connecting tunnel between her small bowel and her vagina. Later, the fistula was surgically repaired.
4Ms. Bafaro sued Dr. Dowd and Dr. Willard for malpractice. She alleged that Dr. Dowd breached the standard of care required of him because he unnecessarily used a laparoscope. She claimed that when he used the laparoscope he burned her small bowel.
5She alleged that Dr. Willard breached the standard of care when he performed the exploratory laparotomy because he failed to examine the small bowel and, as a result, did not detect the burn injury. She claimed that the burn injury eventually caused her fistula to form.
6In lengthy and detailed reasons, the trial judge, Carpenter-Gunn J., dismissed the action. In finding that neither Dr. Dowd nor Dr. Willard was negligent, she largely preferred the expert evidence called by the doctors to that called by Ms. Bafaro. Importantly, the trial judge concluded that the cause of the fistula was an infection, not a burn injury.
7Ms. Bafaro appeals on three grounds. First, she makes a wide ranging attack on the trial judge’s findings of fact and credibility, contending that the trial judge either failed to consider or misapprehended important evidence. Second, she contends that by finding that Dr. Willard examined her small bowel, the trial judge erred in law in admitting and relying on a report Dr. Willard had sent to his insurer six weeks after he performed the laparotomy. Third, she contends that in finding that an infection, and not a burn injury, caused the fistula, the trial judge erred in law by applying the “but for” test for causation instead of the “material contribution” test.
B. THE COMPETING THEORIES
8Ms. Bafaro went to the hospital for what she no doubt thought was a routine hysterectomy. She ended up with a serious rectal injury. At trial, the plaintiffs and the defence debated how and why this injury occurred.
(1) The plaintiffs’ theory
9The plaintiffs alleged that Dr. Dowd burned Ms. Bafaro’s small bowel during the laparoscopic part of the hysterectomy. They faulted Dr. Dowd not for the burn itself, but for using a laparoscope. They claimed that the laparoscope served no useful purpose, and instead introduced a foreseeable risk of a burn injury not otherwise present.
10According to the plaintiffs, Ms. Bafaro’s burn injury caused the symptoms she experienced two weeks after her hysterectomy. Dr. Willard, however, did not detect the burn injury when he did an exploratory laparotomy. The plaintiffs claimed that he “did not run the small bowel” – in other words, he did not examine Ms. Bafaro’s small bowel thoroughly or at all.
11After the laparotomy, the burned section of Ms. Bafaro’s small bowel adhered to her vagina and eventually caused a fistula to form.
(2) The defence theory
12The defence contended that the use of a laparoscope to assist in the vaginal hysterectomy performed on Ms. Bafaro was appropriate. It made the procedure easier and safer. Moreover, Dr. Dowd did not burn Ms. Bafaro’s small bowel during the procedure.
13During the exploratory laparotomy, Dr. Willard properly examined Ms. Bafaro’s small bowel. He did not find a burn injury because there was none. After the laparotomy, Ms. Bafaro’s small bowel moved back into position in her abdomen. When that happened, part of her small bowel rested against her vaginal vault. An infection and inflammation caused a fistula to form where the small bowel and vaginal vault touched.
C. DISCUSSION
14Stripped to its essence, Ms. Bafaro’s claim is that when Dr. Dowd used the laparoscope he burned her small bowel, and when Dr. Willard did an exploratory laparotomy he missed the burn injury. Ms. Bafaro’s case thus rested on four planks:
Dr. Dowd was negligent because he used a laparoscope;
The laparoscope burned a section of her small bowel;
Dr. Willard was negligent because he failed to examine the small bowel; and
The burn injury caused the fistula to form.
15The trial judge made findings of fact and credibility adverse to Ms. Bafaro on each of these four planks. Ms. Bafaro’s main argument on appeal challenges these findings. She submits that the trial judge failed to consider important evidence bearing on her case, and that in some areas the trial judge misapprehended the evidence. An attack on a trial judge’s findings of fact and credibility is usually a difficult argument to maintain in an appellate court. In my opinion, it does not succeed on this appeal.
16As I will endeavour to show, albeit briefly, the trial judge’s findings are well supported in the evidence. They reflect not a disregard or misapprehension of important testimony, but rather an acceptance of the evidence given by the respondent doctors and their experts and a rejection of the evidence given by key experts called on behalf of Ms. Bafaro. Nor can it be said that the trial judge’s findings of fact and credibility are conclusory. In every case, she gave reasons for her findings of fact and for preferring the evidence of one expert to that of another.
(1) Was Dr. Dowd negligent because he used a laparoscope?
17Dr. Dowd testified that Ms. Bafaro had insufficient prolapse – that is, descent of her uterus into her vaginal canal – to feel comfortable performing the hysterectomy without a laparoscope. His testimony was supported by the opinion evidence of the defence expert, Dr. Vilos, who said that Dr. Dowd met the standard of care in doing a laparoscopically assisted vaginal hysterectomy. In Dr. Vilos’ view, the risk of a burn injury to the small bowel was miniscule.
18The trial judge accepted the evidence of Dr. Dowd and Dr. Vilos and she rejected the contrary opinion evidence of the plaintiffs’ expert, Dr. Leyland, who maintained that the laparoscope added risks without clear benefits. The trial judge described Dr. Leyland as “dogmatic” based on his refusal to recognize widely published medical literature, and found that hindsight reasoning permeated much of his evidence. She held, at para. 252: “Rather, I agree with Dr. Vilos that the benefits of the L.A.V.H. outweighed any potential risks connected with the procedure.” Ultimately, the trial judge concluded, at para. 259, “…that it was not below the standard of care to offer an L.A.V.H. to [Ms. Bafaro] given the specifics of her uterus.” I see no reviewable error in these findings.
(2) Was there a burn injury to Ms. Bafaro’s small bowel?
19Whether Dr. Dowd burned a part of Ms. Bafaro’s small bowel when he used his laparoscope was a key issue in the case. If there was no burn injury, Ms. Bafaro could not succeed in her claim.
20The trial judge mainly addressed whether Ms. Bafaro had suffered a burn injury in her analysis of factual causation – what caused the fistula – which I will come to. However, the trial judge’s reasons also show that she thought it highly unlikely Ms. Bafaro’s small bowel had been burned by the laparoscope. Again, as she was entitled to do, the trial judge accepted and relied on the evidence of Dr. Vilos. At para. 255 of her reasons, she noted:
I accept Dr. Vilos’ views with respect to the standard of care. When Dr. Vilos was given Dr. Gentle’s theory that a burn injury occurred during the L.A.V.H., Dr. Vilos indicated that the “geography does not match.” He felt that it did not make sense that there was any inadvertent touching during the procedure which may have given rise to any injury to the bowel.
(3) Did Dr. Willard examine Ms. Bafaro’s small bowel during the exploratory laparotomy?
21This was perhaps the most contentious issue at trial. The defence accepted that if Dr. Willard did not examine Ms. Bafaro’s small bowel during the exploratory laparotomy then he would have been negligent. The trial judge, however, concluded that Dr. Willard’s examination of Ms. Bafaro met the standard of care. She accepted Dr. Willard’s evidence that he examined Ms. Bafaro’s entire bowel, including her small bowel, and that he found no abnormalities or perforations on the small bowel.
22The expert evidence supported Dr. Willard’s testimony. The exploratory laparotomy took close to two hours. The experts called on this issue, including Ms. Bafaro’s expert, Dr. Colapinto, testified that examining the small bowel is part of an exploratory laparotomy, and in an exploratory laparotomy of that duration it would be inconceivable not to check the small bowel. Moreover, if Ms. Bafaro had suffered a burn injury during the hysterectomy procedure, that burn would have been obvious when Dr. Willard performed the exploratory laparotomy two weeks later.
23Despite this evidence supporting the trial judge’s finding that Dr. Willard properly examined the small bowel, Ms. Bafaro submits that the finding is tainted because in reaching it the trial judge relied on a piece of inadmissible evidence: Dr. Willard’s April 24, 1997 note to his counsel. I do not accept this submission.
24The facts that give rise to Ms. Bafaro’s submissions are as follows. Immediately after performing the exploratory laparotomy (on March 8, 1997), Dr. Willard dictated a brief post-operative note. In this note, he said in part that he “carefully examined the bowel for signs of perforation but could find none.” Although he did not specify in his note that he had examined the small bowel, in his evidence at trial Dr. Willard maintained that the reference in his note to “bowel” included both the large and the small bowel. The trial judge accepted Dr. Willard’s testimony.
25Several days after performing the exploratory laparotomy on Ms. Bafaro, Dr. Willard went on holidays. When he returned, he learned that Ms. Bafaro was unhappy and had transferred to another hospital. Dr. Willard called his insurer, the Canadian Medical Protective Association, who appointed legal counsel. On the advice of that counsel, Dr. Willard prepared his April 24, 1997 note, outlining what he had done during the exploratory laparotomy. This note was far more detailed than the post-operative March 8, 1997 note. In it, unlike the March 8 note, Dr. Willard said specifically that he had examined the small bowel:
We therefore next proceeded to insert a rigid sigmoidoscope and insufflate the rectum after filling the pelvis with fluid. There was no evidence of leakage of air. The fluid was therefore suctioned and we then went onto a full laparotomy examining the small bowel from the ligament of Treitz to the ileocecal valve and the colon from the cecum to the rectum. No obvious injuries to the small bowel or colon could be seen and there was no evidence of bowel content leakage.
26At para. 265 of her reasons, the trial judge found that the two notes did not differ significantly. And she accepted Dr. Willard’s explanation for why he wrote the April 24, 1997 note:
There was also much discussion as to why Dr. Willard dictated a further note dated April 24, 1997 concerning the laparotomy performed on March 8, 1997. In my view, Dr. Willard provided a plausible explanation as to why the second note was done. I find it is quite a normal procedure that when a professional negligence insurer asks for such information that a doctor would provide same. I do not find that the original operative note of March 8th, 1997 is significantly different for the second note done on April 24th, 1997. The April 24th, 1997 document simply provides more detailed information and I do not see it as self-serving. The March 8th O.R. note is much shorter given that it was dictated immediately after the surgery and before the surgeon sees the family. He confirmed, in his examination-in-chief that he did all that was described in the more detailed note of April 24th, 1997 and that he cited the direction that he examined the bowel in that order as that is the way he thinks of it even though he works in a different order. I accept this explanation.
27Ms. Bafaro contends that the April 24, 1997 note was a prior consistent statement, which was both self-serving and unreliable as Dr. Willard wrote it only after he knew a problem had arisen concerning his exploratory laparotomy. Ms. Bafaro submits that the trial judge ought not to have admitted the note, or at least ought not to have used it to confirm the reliability of Dr. Willard’s trial testimony. In making this submission, she relies on the judgment of the Supreme Court of Canada in R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, which stands for the proposition that prior consistent statements ordinarily are inadmissible because they are viewed as self-serving and lacking probative value.
28In my view, Dr. Willard’s April 24, 1997 note figured only marginally, if at all, in the trial judge’s finding that he examined the small bowel. Indeed, her findings on this issue were based on her interpretation of the March 8, 1997 post-operative note, Dr. Willard’s testimony and the expert evidence. As I read her reasons, the trial judge referred to the April 24, 1997 note to address Ms. Bafaro’s argument that it differed markedly from the post-operative note and thus undermined Dr. Willard’s trial testimony. I would not give effect to Ms. Bafaro’s submission on the note or to her challenge to the trial judge’s finding that Dr. Willard was not negligent.
(4) What caused the fistula?
29As I have said, Ms. Bafaro maintained that the fistula resulted from a burn injury to her small bowel; the defence maintained that it resulted from inflammation and an infection. The trial judge resolved this issue in favour of the defence (at para. 291): “Based on all of the evidence that was before the court, I find that the fistula was caused by inflammation and infection. It had nothing to do with a thermal injury of the small bowel.”
30In making this finding, the trial judge once again relied principally on the evidence of Dr. Vilos. She summarized his opinion at para. 285 of her reasons:
Dr. Vilos said that fistulas can occur either because of trauma to an area or infection. Dr. Vilos stated that infection is the most common cause of fistula. It was his view that because the vagina vault was not closed until March 20th, 1997, it made it easier for the bacteria to travel as they only had to go through one wall. I note from Dr. Gagic’s evidence that as of March 20th, 1997 the pelvis continued to be infected. Dr. Vilos said that this infection likely caused the fistula. I accept this evidence. He said that the plaintiff’s theory of the thermal injury causing the fistula was extremely unlikely. In order for the plaintiff’s theory to hold up, it would require that the exact portion of the injured bowel namely about one centimetre out of 600 centimetres to have directly attached and adhered to the small vaginal stump after the necessary exploratory laparotomy. It was his view that the rectal bleeding that Ms. Bafaro had could have been a result of taking two Advil every four hours at the time which she presented at the hospital on March 8, 1997. I accept his theory in this regard.
31Conversely, the trial judge did not accept the evidence of Dr. Wilson and Dr. Gentles, two experts for Ms. Bafaro, who gave the opinion that a burn injury had caused the fistula to form. She gave cogent reasons for rejecting their evidence. Dr. Wilson “made a number of erroneous assumptions and factual errors in forming his opinion.” Indeed, Dr. Wilson conceded that parts of his expert reports were wrong and misleading and that he had made mistakes. The trial judge rightly concluded that his evidence was to be given little weight. Dr. Gentles was inconsistent in his report and in his evidence on the mechanism by which the laparoscope could have burned the small bowel. The trial judge concluded that his evidence was not helpful.
32I see no basis to challenge the trial judge’s finding of factual causation or her assessment of the expert evidence that grounded her finding. However, Ms. Bafaro puts forward a legal argument to challenge the trial judge’s causation finding. She submits that the trial judge applied the wrong legal test: she applied the “but for” test when she should have applied the “material contribution” test.
33Ms. Bafaro fairly points out that when her fistula was repaired a sample was taken and sent for laboratory examination. Unfortunately, the sample was lost, thus preventing a pathological determination of the cause of the fistula. In the light of the lost sample, Ms. Bafaro argues that the trial judge placed too heavy a burden on her to prove causation. The parties had put forward two competing causes of the fistula: burn and infection. Ms. Bafaro maintains that the trial judge should have determined causation by the approach taken by the Supreme Court of Canada in Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311. In that case, Sopinka J. cautioned that in many instances the burden on a plaintiff to prove causation is too rigidly applied. Thus, he wrote at para. 29 that “causation need not be determined by scientific precision.” At pp. 328-29, Sopinka J. explained:
In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.
34Ms. Bafaro submits that had the trial judge applied the approach to causation taken in Snell, she should have inferred that a burn injury caused the fistula. I do not accept Ms. Bafaro’s submission for three reasons. First, because the trial judge found that neither doctor was negligent, the issue of causation became immaterial. The trial judge recognized this to be so. Although she did begin her reasons by saying that she would apply the “but for” test for causation, by the end of her reasons she correctly noted that the question of causation had become academic as she found that neither doctor had breached the standard of care.
35Second, Ms. Bafaro’s submission wrongly conflates the issues of standard of care and causation, or at least asks the court to determine factual causation before determining whether the standard of care was breached. Ms. Bafaro seeks to use the Snell approach to causation to find that a burn injury caused the fistula, and then to use this finding to demonstrate that Dr. Willard breached the standard of care because he did not detect the burn during the exploratory laparotomy. This submission intermingles standard of care and causation. Yet, the two issues are quite separate. Moreover, the question whether the standard of care was breached should be decided before the question of factual causation. In other words, the issue of factual causation arises after the trier of fact has found that the defendant breached the standard of care. That is evident from Snell itself, where Sopinka J.’s entire discussion of causation was predicated on an uncontested finding of negligence against the doctor.
36The distinction between standard of care and causation, and the necessity to determine the former before the latter, is also evident in the recent Supreme Court of Canada judgment on causation, Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. There, McLachlin C.J. held, at para. 25, that the “material contribution” test is an exception that may only replace the standard “but for” test if two requirements are met.
First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.
37Even if the lost fistula sample satisfies the first requirement, the second requirement – that the defendant breached a duty of care owed to the plaintiff – has not been met. On the trial judge’s findings, which I would uphold on appeal, neither Dr. Dowd nor Dr. Willard breached a duty of care owed to Ms. Bafaro.
38Third, even if one were to decide the issue of factual causation before the issue of standard of care, and even if one were to take the Snell approach to causation, Ms. Bafaro cannot succeed on this ground of appeal. On the trial judge’s findings of fact, which are well supported by the evidence, there was no burn injury.
39I would dismiss the appeal with costs fixed at $33,000, all inclusive, if demanded by the respondents.
RELEASED: Mar 12, 2010
“JL” “John Laskin J.A.”
“I agree K. Feldman J.A.”
“I agree E.E. Gillese J.A.”
