Court of Appeal for Ontario

Date: December 6, 2019 Docket: C65404 Judges: Juriansz, van Rensburg and Paciocco JJ.A.

Between

Karen Armstrong Plaintiff (Respondent)

and

Royal Victoria Hospital, Dr. Colin Ward, Dr. Scott Powell, Dr. Jessie-Jean Weaver and Dr. Joseph A. Zadra Defendants (Appellant)

Counsel

Ronald G. Slaght, Q.C. and Sean Lewis, for the appellant Dr. Colin Ward

Ryan Breedon and Jan Marin, for the respondent Karen Armstrong

Heard: June 20, 2019

On appeal from the judgment of Justice Gregory M. Mulligan of the Superior Court of Justice, dated April 16, 2018, with reasons reported at 2018 ONSC 2439.

MAJORITY DECISION

Paciocco J.A.:

OVERVIEW

[1] In February 2010, Karen Armstrong was seriously injured during colectomy surgery performed by Dr. Colin Ward. A trial judge found Dr. Ward to have negligently caused Ms. Armstrong's injuries, and therefore liable for damages in the agreed upon amount of $1,300,000.

[2] Dr. Ward appeals the liability finding.

[3] For reasons I elaborate upon below, I agree with Dr. Ward that the trial judge erred in defining the standard of care that Dr. Ward had to meet, improperly establishing a standard of perfection. In simple terms, the trial judge effectively concluded that if Dr. Ward injured Ms. Armstrong's ureter with the cauterization tool he was employing, he would be liable. Instead, the trial judge should have determined whether Dr. Ward performed the operation in the manner that a reasonably prudent surgeon would have.

[4] On that correct measure, the trial judge's own finding was that during the surgery, Dr. Ward took the steps he described to identify and protect the ureter. These were essentially the same steps that Ms. Armstrong's own expert surgeon conceded a reasonably prudent surgeon would use. Given this finding, the trial judge should have dismissed Ms. Armstrong's action.

[5] I would therefore allow Dr. Ward's appeal, set aside the finding of liability, and dismiss the action against him.

THE MATERIAL FACTS

[6] As the result of health concerns Ms. Armstrong was experiencing, Dr. Ward surgically removed her colon. Ms. Armstrong's colon was anatomically normal, showing no signs of tumour, thickening, or other inflammation. Its removal was nonetheless medically indicated because of the symptoms Ms. Armstrong exhibited and the previous removal of part of her intestine in an ileostomy. No issue is taken with the decision to perform the colectomy. The contention is that Dr. Ward performed the surgery negligently, causing injury to Ms. Armstrong's left ureter, a tube that carries urine from her left kidney to her bladder.

[7] In February 2010, Dr. Ward performed the colectomy using laparoscopic surgery. Unlike the open method of surgery which requires a significant incision, laparoscopic surgery is "minimally invasive" and is performed through small ports in a gas inflated abdomen, with the aid of a camera and magnification. Again, no issue is taken with the decision to employ laparoscopic surgery rather than the open method.

[8] The surgery appeared to go uneventfully, with no sign that Ms. Armstrong had been injured. However, Ms. Armstrong began to develop increasingly more concerning post-operative problems. Initially, it was mild abdominal pain and a pulling sensation. By approximately ten weeks after the surgery, she began to show significant left flank pain.

[9] Further investigation revealed that Ms. Armstrong's left ureter was blocked or "strictured". The blockage was determined to be complete in that no dye could pass through it. It was "quite lengthy at about 8-10 [centimetres]", approximately one-third of the length of the ureter itself. The blockage proved to be so significant that damage was ultimately caused to her left kidney, which had to be surgically removed in October 2010.

[10] Ms. Armstrong sued Dr. Ward. The central negligence theory pursued against Dr. Ward was that he caused adhesions or scar tissue that blocked her left ureter by improperly using a cauterizing device, known as a LigaSure.

[11] A LigaSure is a surgical instrument used to fuse tissue. It is often employed during a laparoscopic colectomy to sever and seal the blood vessels and tissue connected to the part of the colon that is to be removed. After the small jaws of the device are clamped or compressed on the tissue that is to be divided, the surgeon deploys an electric current which passes through to heat those jaws in order to seal by coagulation the blood vessels in the tissue. The device can then be used to divide the tissues.

[12] It was common ground before the trial judge that thermal energy can spread beyond the jaws and is capable of damaging tissue within two millimetres. It is therefore an instrument that raises the risk that collateral injury will occur to tissue in the immediate vicinity.

[13] Ms. Armstrong contended at trial that Dr. Ward was negligent in that he either touched her left ureter with the LigaSure or brought the LigaSure too close to the ureter causing a thermal injury or heat damage. When the injury healed, the adhesions and scarring caused the blockage.

[14] The trial was held in January 2018 without a jury. Dr. Ward admitted that Ms. Armstrong sustained damages in the amount of $1,300,000. However, he did not admit negligence. He denied that he breached the standard of care expected of him as a surgeon, or that the damage Ms. Armstrong sustained was caused in fact and in law by any such breach.

[15] The four expert witnesses who testified are highly experienced and celebrated physicians. Each party called two of those experts, one surgeon, and one urologist. The surgeons focused on standard of care issues, and the urologists concentrated primarily on causation questions.

[16] The trial judge ultimately found that Dr. Ward breached the standard of care, and that this breach caused Ms. Armstrong's ureter injury in law and fact.

[17] With respect to causation, the trial judge found that Dr. Ward caused Ms. Armstrong's injury by coming within "one or two" millimetres of her ureter "causing damage leading to scar tissue and the eventual ureter blockage." This, in turn, caused the loss of Ms. Armstrong's kidney.

[18] Given that I would allow the appeal because of errors related to the standard of care, I will not set out the facts relevant to causation. I will describe only those facts material to two related but distinct elements of the tort of negligence: (1) the standard of care; and (2) whether that standard was breached.

[19] All of the expert witnesses emphasized the importance of identifying and protecting the ureter during laparoscopic colectomy surgery. They agreed that the left ureter is one of the anatomical structures that is put at risk and that must be identified and protected. There was consensus that the injury rate to ureters during colectomies is under, but possibly approaching, one percent. A reasonably prudent surgeon would therefore take steps to avoid such injury by identifying and protecting the ureter.

[20] Even Dr. Hagen, the expert surgeon called by Dr. Ward, testified that given the risk of injury to the ureter from the LigaSure, he "would try and stay away from the ureter" during the surgery.

[21] There was no controversy before the trial judge about the steps involved in conducting a laparoscopic colectomy with a LigaSure. In simple terms, the abdominal cavity is entered and the colon – a large u-shaped structure that can be up to five feet long – is identified using the laparoscopic camera. The surgeon then "mobilizes" the colon to enable it to be moved within the abdomen, which has been inflated with gas. This mobilization is done without the LigaSure by using "blunt dissection" and "cautery" to free its attachments to the peritoneum. Once mobilized in this way, the colon can be elevated toward the upper abdominal wall, a process referred to as "tenting". This enables the "retroperitoneal" structures – those in the back part of the abdomen that were under the colon, including the left ureter – to be observed with the laparoscope. The identification of the ureter can be confirmed by pinching or touching it. When this is done, unlike a blood vessel, it can be seen to contract or "vermiculate". Once identified, the ureter is "swept" or pushed away to create distance between the ureter and the colon before the LigaSure is deployed to sever and seal the blood vessels, lymphatics, and fatty tissue that remain connected to the colon. The location of the ureter is re-confirmed periodically throughout the surgery through further vermiculation. Once the connections are removed in this way, the part of the colon being removed – in this case the entire organ – can be excised and taken from the body.

[22] The expert surgeon called by the defence, Dr. Hagen, testified that the standard of care for a surgeon performing a laparoscopic colectomy would be met if these steps were taken. So, too, did Dr. Ward. They both took the position that if these steps were taken, including trying to stay a safe distance from the ureter, there would be no breach of the standard of care if the surgeon happened accidentally to come within two millimetres of the ureter with the LigaSure during the surgery.

[23] This was the point of disagreement in the testimony of plaintiff's expert, Dr. Burnstein. His evidence was that if a surgeon took these steps to identify and protect the ureter during a laparoscopic colectomy when operating on someone with an anatomically normal colon, an injury to the ureter would simply not occur.

[24] Dr. Burnstein explained that where the colon is enlarged from disease, the ureter can be obscured or it may be necessary to work close to the ureter, elevating the risk of injury. But in his personal opinion, the rate of injury should be "zero" when the colon is anatomically normal because "there should be no reason to be in the wrong place … and expose other organs to injury." He said, "it's unacceptable to be close to the ureter and put it at risk in a setting where there's no reason".

[25] Dr. Ward described the process he used during Ms. Armstrong's surgery, a process confirmed by his post-operative report. He essentially confirmed following the steps described in para. 21 above. Dr. Ward explained that when dissecting blood vessels, he would work around the colon from the right "all the way along". Although the ureter can be seen very well at the time it would be most at risk, as one moves away from the left and right colon, the ureter does not remain in the direct view of the camera.

[26] Dr. Ward expressed the confident opinion that he did not deploy the LigaSure within two millimetres of Ms. Armstrong's ureter because of the steps he took. During cross-examination, he agreed with Ms. Armstrong's counsel that he intended to keep the LigaSure far away from the ureter. He also agreed that, as anything is possible, if he did use the LigaSure within two millimetres of the ureter that was an error. But he maintained it would not be a breach of the standard of care.

[27] The evidence of Dr. Burnstein was to the contrary. In his opinion, if Dr. Ward took the steps that he described, Ms. Armstrong's injury would not have occurred. Dr. Ward must have come "unacceptably close to the ureter". He said that it is a breach of the standard of care for a general surgeon in Ontario to injure the ureter during colectomy surgery on a structurally normal colon. He explained that, in his view, where there are "no mitigating factors" such as mass or inflammation; an injured ureter is "a failure of the standard of care" which "is to identify and protect the ureter". In his view, since Ms. Armstrong had an anatomically normal colon and Dr. Ward injured her ureter, Dr. Ward breached the standard of care.

[28] The trial judge described the standard of care this way:

I am satisfied that the standard of care for a general surgeon is to identify, protect, and avoid direct contact with or close proximity to the ureter when using an energy emitting device like the LigaSure.

Based on the experts' testimony, "close proximity" means within one to two millimetres of the ureter.

[29] He then moved to whether Dr. Ward breached that standard. With respect to Dr. Ward's testimony he said:

I am satisfied that Dr. Ward took steps during this laparoscoptomy to identify and protect the ureter. He explained those steps and testified that he always kept at least five centimetres away from the ureter. But he acknowledged that the ureter was not always in camera view during this procedure.

[30] The trial judge had earlier stated, "the standard of care is breached by touching the ureter or coming within one or two millimetres of it using the LigaSure device during the laparoscoptomy". After making the comment in para. 29 above, he continued:

I accept Drs. Klotz and Burstein's evidence that Dr. Ward came within one or two millimetres of the ureter, causing damage leading to scar tissue and eventual ureter blockage… As a result, Armstrong's kidney had to be removed by a subsequent surgical procedure.

In a colectomy procedure, identification and protection of the ureter is paramount. Using a LigaSure can cause damage by heat transmission if it touches the ureter or comes within one to two millimetres. I am satisfied on the facts of this case, the plaintiff has established that Dr. Ward breached the standard of care.

ISSUES

[31] Dr. Ward advances four grounds of appeal, which can conveniently be put this way:

A. Did the trial judge err by imposing an improper standard of care?

B. Did the trial judge err in his standard of care analysis by conflating the standard of care and causation analysis?

C. Did the trial judge commit palpable and overriding error in giving weight to the testimony of Dr. Burnstein?

D. Did the trial judge err by finding that Dr. Ward caused Ms. Armstrong's injuries?

[32] In my view, the trial judge committed the first of these errors. This is enough to resolve the appeal. I will, however, address issue "B" as well, since further guidance is warranted on the role causation can play in determining whether a standard of care has been breached. I will not address issue "C", but I will make related comments about Dr. Burstein's testimony when I address issue "A". As indicated, I will not be addressing issue "D".

A. DID THE TRIAL JUDGE ERR BY IMPOSING AN IMPROPER STANDARD OF CARE?

[33] The trial judge imposed an improper standard of care when measuring Dr. Ward's liability. Put simply, he measured Dr. Ward's liability according to the goal a prudent surgeon would have when conducting the operation, rather than the means a prudent surgeon would use to attain that goal. In the circumstances of this case, this was an error of law. On the evidence before him, and given his own factual findings, he should have found that it was not proved that Dr. Ward had breached the requisite standard of care.

[34] The material question on appeal is whether the trial judge applied a proper standard of care. It is not enough, therefore, to look solely at the trial judge's articulation of the standard of care; attention must be paid to the actual reasoning employed. Even if judges speak in generic, conclusory terms, including by referring to goals or results, when describing the standard of care, this will not be an error if the trial judge's reasoning demonstrates that a proper standard of care has been employed.

[35] For example, in Paur (Committee of) v. Providence Health Care, 2017 BCCA 161, 96 B.C.L.R. (5th) 320, when describing the standard of care, the trial judge spoke only vaguely about the duty of care of a hospital to take reasonable steps to keep an impaired, suicidal hospital patient safe. Her finding of liability was nonetheless upheld on appeal. The trial judge's decision was replete with detail about the reasonable steps the standard of care required, including building ligature-proof bathrooms, effective monitoring of access to the bathrooms by suicidal patients, periodic checks on patients who are in the bathroom, and the development of patient safety policies.

[36] It follows that it would be a complete answer to this ground of appeal if, despite having stated the standard of care as a goal or result, the trial judge had gone on to identify steps that a prudent surgeon would undertake to keep from coming within one to two millimetres of ureter when using the LigaSure, which Dr. Ward failed to take. As I will explain below, the trial judge did not identify any steps beyond those he found Dr. Ward to have taken.

[37] Even though the issue on appeal has to do with the application rather than the articulation of the proper standard of care, I will begin a close examination of the trial judge's standard of care analysis by repeating his articulation of the standard of care, because this is the standard he ultimately applied:

I am satisfied that the standard of care is for a general surgeon to identify, protect, and avoid direct contact with or close proximity to the ureter when using an energy emitting device like the LigaSure.

Based on the expert's testimony, "close proximity" means within one to two millimetres of the ureter.

[38] As I will explain in more detail below, the trial judge found that Dr. Ward took steps to identify and protect the ureter. Dr. Ward was found to have failed to meet the standard of care because he came within one to two millimetres of the ureter with the LigaSure. The factual finding that he did so was made because it is only within this one to two millimetre distance that the LigaSure is capable of causing the thermal injury that Ms. Armstrong was found to have sustained. The controversial component of the standard of care that the trial judge imposed was therefore his finding that a normal, prudent surgeon would avoid direct contact or close proximity (within two millimetres) between the ureter and the LigaSure.

[39] Dr. Ward contends that it is improper and perilous to articulate and apply the standard of care in this fashion. Avoiding contact or proximity to the ureter with the LigaSure is a goal that a prudent surgeon aims to attain. Defining the standard of care by stating the goal tells us nothing about how a prudent surgeon would go about achieving that goal, which is the pertinent inquiry.

[40] Moreover, where the goal used to define the standard of care is, in essence, avoiding the injury, as it is here, the standard being imposed is strict or absolute liability since liability follows with every injury. This is not a proper measure of liability in a negligence case.

[41] Stating the standard of care in this way also invites circular reasoning and collapses the causation inquiry: Did the failure to meet the standard of care cause the injury? It did, because causing the injury is a failure to meet the standard of care.

[42] For these reasons, it is generally an error of law to use outcomes or goals as the standard of care.

[43] In Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, miners were killed by an explosion in a mine shaft during a labour dispute. Someone entered the mine to plant the trip-wired explosives that caused the deaths. Pinkerton's had been hired to provide security and they were sued in negligence for their role in failing to prevent the bomber from entering the mine shaft. The trial judge found Pinkerton's to have breached the requisite standard of care because "it had failed to ensure the entrances were properly guarded to avoid incursions". Cromwell J., who delivered the decision for the court, held that this was an error. First, this measure "required Pinkerton's to ensure there was no clandestine access to the mine" which is "an absolute duty, not a duty of reasonable care." Second, the trial judge failed to "indicate what 'properly' guarding the entrances required Pinkerton's to do": Fullowka, at para. 80.

[44] Negligence standards of care are to be measured by the behaviour that a relevant prudent person would undertake, rather than the results that prudent person would seek to attain or avoid. Gonthier J. affirmed this general imperative in an instructive Quebec civil law medical malpractice case, St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53:

The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances. To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focussing on the result rather than the means. Professionals have an obligation of means, not an obligation of result. [Citations omitted; emphasis in original.]

[45] The same general point was made in a case analogous to this one, Carlsen v. Southerland, 2006 BCCA 214, [2006] B.C.J. No. 973. In setting aside the liability finding made against a spinal surgeon who "went beyond the annulus fibrosus of the disc and cut the iliac artery and the common iliac vein" when performing a discectomy, Kirkpatrick J.A. held, at para. 15:

[I]n the trial judge's reasons, he concluded that "the simple precaution that Dr. Southerland should have taken was to ensure that he not let his instruments penetrate past the annulus fibrosus." In this respect, the trial judge improperly focused only on the result of the surgery, and not on the precise manner in which Dr. Southerland failed to meet the appropriate standard of care. In the result, he held Dr. Southerland to a standard that amounted to a guarantee. That such a standard has never been the law is exemplified in the passage from Greaves & Co. (Contractors) Ltd. v. Baynham Meikle & Partners, [1975] 3 All E.R. 99 at 103-104, [1975] W.L.R. 1096 (C.A.), per Lord Denning M.R.:

The law does not usually imply a warranty that [a professional] will achieve the desired result, but only a term that he will use reasonable care and skill. The surgeon does not warrant that he will cure the patient. Nor does the solicitor warrant that he will win the case. [Emphasis added.]

[46] I have described the bar on defining standards of care according to goals or results as a general rule because I would not rule out that there are cases where negligence alone could prevent a goal from being achieved or a positive result from being attained. Leaving a surgical tool inside a patient or removing the wrong limb during surgery might be examples. In such cases, it would be harmless in defining the standard of care as outcomes or goals instead of prudent means or behaviours; for example, by finding that it is a breach of the standard of care of a prudent surgeon to leave surgical tools inside a patient or to remove the wrong limb.

[47] So, the current question is whether the trial judge used a goal or result in defining the standard of care, without finding that the goal or desired result could only have been missed by negligent acts or omissions. In my view, he did. The trial judge measured Dr. Ward's negligence by inquiring whether Dr. Ward succeeded in not coming within two millimetres of Ms. Armstrong's ureter with the LigaSure, instead of asking whether Dr. Ward took the steps that a reasonably prudent surgeon would take. Moreover, the trial judge made no finding that it is only by negligent acts or omissions that a LigaSure can be brought within two millimetres.

[48] During the course of oral argument, the parties debated whether the trial judge actually made this error. It was posited that keeping the LigaSure more than two millimetres away from the ureter is itself a step or a behaviour that a reasonably prudent surgeon would take, not simply a goal or result. I recognize that counsel and witnesses periodically described staying more than two millimetres away from the ureter as a "step", but whether something is truly a step is a matter of substance, not semantics. By its nature, a "step" involves executing an act under one's control. I would agree that prudent surgeons would take the step of not knowingly, intentionally, and unnecessarily deploying the LigaSure within two millimetres of the ureter, or any collateral tissue for that matter. Both Dr. Ward and his expert witness, Dr. Hagen agreed to this, as well. Dr. Ward said he intended to keep the Ligature far away from the ureter. Dr. Hagen said he would try to do so. However, the trial judge did not confine his standard of care to knowing, intentional, and unnecessary deployment. His standard of care contemplates that any such deployment, whether intentional or accidental, breaches the standard of care. Avoiding accidental deployment within two millimetres of the ureter cannot fairly be described as a step that prudent surgeons would take. Instead, it is a goal or result that is to be pursued. Put otherwise, trying to maintain a safe distance is a step one takes; successfully achieving this is a goal.

[49] There was detailed evidence before the trial judge about the steps that a prudent surgeon would take to identify and protect the ureter. All of the experts agreed what the surgical steps were, and the trial judge accepted that evidence. Before describing those steps, the trial judge noted, "The experts raised no issue about the standard procedure for removing a benign colon during a colectomy." Specifically, a prudent surgeon identifies the ureter through vermiculation, and moves it away from the colon before proceeding, and rechecks the location of the ureter by periodically repeating the vermiculation, trying to avoid bringing the LigaSure within an unsafe proximity to collateral tissue. No other steps were described. Dr. Ward testified that he took these steps, and the trial judge accepted that he did. I will repeat his findings in material part:

I am satisfied that Dr. Ward took steps during this laparoscoptomy to identify and protect the ureter. He explained those steps and testified that he always kept at least five centimetres away from the ureter.

[50] What the trial judge predicated Dr. Ward's liability upon was his finding that despite having taken those steps, Dr. Ward did not succeed in keeping at least five centimetres away from the ureter but went within two millimetres of the ureter:

I accept Drs. Klotz and Burnstein's evidence that Dr. Ward came within one or two millimetres of the ureter causing damage leading to scar tissue and eventual ureter blockage.

[51] In other words, despite finding that Dr. Ward took the steps described for a prudent surgeon, the trial judge predicated liability on the result, namely, that Dr. Ward came within one to two millimetres of the ureter. In my view, this was an error, and had the trial judge properly applied the law to the facts he found, he would have exonerated Dr. Ward from liability.

[52] I say this because at no time did the trial judge make the supplementary finding that the only way a LigaSure could be deployed within one to two millimetres of the ureter is by negligent act or omission. I recognize that Dr. Burnstein did express the opinion that the risk of injuring the ureter when proper surgical procedures are followed should be zero. Viewed simplistically, this evidence could support a finding that thermal injuries to the ureter can only happen negligently. But Dr. Burnstein's point was that if a surgeon follows the steps he described, such injury could not occur; in other words, the fact that the thermal injury occurred necessarily means that the surgeon did not follow the steps that a prudent surgeon would take. Yet this is not what the trial judge found. Contrary to Dr. Burnstein's theory, he accepted that Dr. Ward did follow these steps, but an injury nonetheless occurred. Moreover, when rehearsing Dr. Burnstein's theory, the trial judge did not adopt it but noted, "The consensus was that the risk should be less than one percent".

[53] It is understandable that the trial judge stopped short of accepting Dr. Burnstein's zero risk theory. It would have been ill-advised to have accepted it. Dr. Burnstein's zero risk theory is not supported by scientific literature.

[54] More importantly, Dr. Burnstein did not attempt to explain why accidental but non-negligent thermal injuries can be ruled out. It is obvious, for example, that surgical success depends on dexterity, yet Dr. Burnstein did not address whether an ordinary prudent surgeon would always have the dexterity to succeed in maintaining a safe distance. Nor did he address whether periodic vermiculation guarantees that a prudent surgeon could not cause unintentional injury to structures that have unexpectedly moved during surgery, a prospect that the practice of repeated vermiculation appears to contemplate.

[55] Indeed, in finding that Dr. Ward breached the standard of care, the trial judge appears to have had in mind the possibility that the ureter was injured when it could not be viewed during the surgery. When rejecting Dr. Ward's belief that he successfully stayed more than five centimeters away from the ureter, he noted Dr. Ward's admission that the ureter was unavoidably out of view of the microscope for part of the process. Yet neither Dr. Burnstein, nor anyone else, addressed whether an injury occurring in this way would be a negligent injury.

[56] A trial judge who is prepared to proceed on the basis that only negligence could cause the relevant injury is obliged to consider and rule out non-negligent causes. Only if this is done, can the trial judge properly use success as the standard of care. In determining whether this is so, the burden is not on the defendant to raise potential non-negligent causes with evidence, nor is it improper speculation for a trial judge to consider potential non-negligent causes that are open on the evidence but that the plaintiff has failed to address. A plaintiff whose liability theory is that only negligence could have caused the injury in question is obliged to demonstrate that this is so, and the trial judge is required to accept this before finding liability. That did not occur in this case.

[57] Nor can liability properly be grounded in the low risk of injury identified by the trial judge. It is a logical error to infer that since an adverse result is improbable, a defendant was negligent in causing that adverse result. Negligence needs to be proved in each specific case, unless it is established that the kind of injury in question can only occur through negligence. Yet, as explained, the trial judge never found this to be so.

[58] With respect, the trial judge erred in law in defining the standard of care. Having found that Dr. Ward took the steps that a prudent surgeon would take during this surgical procedure, the trial judge should have found that it was not proved that Dr. Ward breached the requisite standard of care.

B. DID THE TRIAL JUDGE ERR IN HIS STANDARD OF CARE ANALYSIS BY CONFLATING THE STANDARD OF CARE AND CAUSATION ANALYSIS?

[59] The trial judge addressed both standard of care and causation issues together in a continuous discussion, parsed by two headings, "Breach of the Standard of Care" and "Causation". He then, contiguously, concluded that Dr. Ward breached the standard of care and that his negligence caused Ms. Armstrong's injury. Dr. Ward argues that it was an error of law to conflate the two issues in this way.

[60] As a general rule, a trial judge should determine whether the defendant has breached the standard of care before resolving issues of causation: Snell v. Farrell, [1990] 2 S.C.R. 311; St-Jean. In Bafaro v. Dowd, 2010 ONCA 188, 260 O.A.C. 70, the plaintiff argued that a finding should be made that a burn caused his fistula, so that he could show that the defendant doctor breached the requisite standard of care by failing to detect the burn during surgery. Laskin J.A. rejected the invitation, at para. 35:

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.

[61] This practice is functional. The causation issue is moot if there has been no breach of the standard of care, and the causation issue depends upon identifying the breach, since the material question is whether "the defendant's particular substandard act or omission … caused the harm": Chasczewski Estate v. 528089 Ontario Inc. (Whitby Ambulance Service), 2012 ONCA 97, 287 O.A.C. 266, at para. 15; McArdle Estate v. Cox, 2003 ABCA 106, 327 A.R. 129, at para. 25.

[62] However, in some cases, it may be necessary to determine what happened to assess whether a defendant has breached the requisite standard of care. Where this is so, the injury may be relevant circumstantial evidence of what happened. In Meringolo (Committee of) v. Oshawa General Hospital (1991), 46 O.A.C. 260 (C.A.), leave to appeal refused, [1991] S.C.C.A. No. 115, for example, this court held that in order to resolve the negligence issue, it had to first be determined what happened in the operating room, including whether the plaintiff suffered hypoxic brain damage. Similarly, in Grass (Litigation guardian of) v. Women's College Hospital (2001), 200 D.L.R. (4th) 242, leave to appeal refused, [2001] S.C.C.A. No. 372, what caused the newborn's oxygen deprivation was relevant evidence in determining what happened in the labour room, which, in turn, had to be decided to resolve whether the standard of care had been breached.

[63] As I read these authorities, where the nature of the injury is relevant to "what happened", it is not an error to consider that injury in resolving whether the standard of care has been breached. What should be avoided is engaging such questions where they are not relevant to whether a breach has occurred. Moreover, even where the nature of the injury is relevant to whether the standard of care was breached, formal "but for" determinations should not be made until the act or omission falling short of the standard of care has been identified.

[64] In this case, given the trial judge's misconception of the standard of care, he had to resolve "what happened", specifically, whether the LigaSure was deployed within two millimetres of the ureter. The thermal injury showed that it was, since on the evidence the trial judge accepted, the LigaSure had to be brought within that range to cause the thermal injury Ms. Armstrong sustained. In other words, the thermal injury was circumstantial evidence of what happened. On the trial judge's standard of care theory, it would therefore not be improper for a trial judge to consider the injury or its relationship to what happened, before resolving whether the standard of care had been violated. Put more simply, if the standard of care the trial judge applied had been correct, it would not have been an independent error to analyse the case as he did.

[65] However, had the trial judge properly conceived of the standard of care, it would not have been necessary for him to have conflated causation and standard of care decisions. In this sense, his doing so was in error, but this error is inextricably linked to the first and adds nothing to the outcome of this appeal.

CONCLUSION

[66] I accept Dr. Ward's first ground of appeal. The trial judge erred in law in identifying and applying the standard of care. Indeed, on the findings of fact he did make, had the trial judge applied the law correctly, he would have found that Dr. Ward is not liable.

[67] I would therefore allow the appeal, set aside the finding of liability, and dismiss Ms. Armstrong's action against Dr. Ward.

[68] As agreed between the parties, costs will be awarded to Dr. Ward on this appeal in the amount of $20,000.

"David M. Paciocco J.A."

"I agree R.G. Juriansz J.A."

DISSENTING DECISION

van Rensburg J.A. (dissenting):

I. OVERVIEW

[69] I have read the reasons of my colleague, who would allow the appeal. Respectfully, I disagree with this disposition. In my view the trial judge made no reversible error in granting judgment in favour of the respondent. I would dismiss the appeal with costs to the respondent.

[70] Although the appellant described his grounds somewhat differently (both in his factum and in oral argument), I will adopt my colleague's articulation of the grounds of appeal in my dissenting reasons. The first three grounds of appeal have to do with standard of care, and there is some overlap between the grounds. In the end, Dr. Ward asserts that the trial judge erred in concluding that he was in breach of the standard of care of a reasonably competent surgeon by using the LigaSure device less than two millimetres away from Ms. Armstrong's left ureter. I disagree.

[71] In assessing whether there is an error in this case, it is important to recall that deference is owed to the trial judge on all findings other than on questions of pure law. On the first ground of appeal, in my view there was no error in how the trial judge defined and applied the standard of care. There is no basis to interfere with the trial judge's approach to the issue of standard of care. His conclusion that Dr. Ward had breached the standard of care by using the LigaSure device less than two millimetres away from Ms. Armstrong's left ureter was fully supported by the evidence. The trial judge did not apply a standard of perfection nor did he adopt a results-oriented approach.

[72] On the second ground of appeal, I reject the appellant's argument that the trial judge conflated standard of care with causation. Although my colleague would not give effect to this ground of appeal, my analysis differs from his. I will provide my reasons for dismissing this ground of appeal.

[73] I will also address the third ground of appeal identified but not addressed by my colleague. Contrary to the submission of the appellant, the trial judge did not commit any palpable and overriding error in giving weight to the opinion evidence of the respondent's standard of care expert, Dr. Burnstein.

[74] Finally, as my colleague notes, the appellant challenges the trial judge's findings on causation. I will briefly explain why I would dismiss this ground of appeal.

II. THE LIVE ISSUES AT TRIAL

[75] The issues in any action, including those alleging medical malpractice, are case-specific. And on appeal, whether there was error at first instance must be determined in the context of the live issues at trial and the positions of the parties before the trial judge. As I will explain, this case was largely about factual causation.

[76] There was no question that Ms. Armstrong suffered an obstruction or blockage of eight to ten centimetres of her left ureter, which resulted in the removal of her left kidney in a subsequent operation. It was admitted that the injury was iatrogenic: Ms. Armstrong's ureter became blocked as a result of the operation to remove her colon, an operation that was performed by the appellant, Dr. Ward.

[77] The central issue at trial was how the injury occurred. Ms. Armstrong's theory, which was ultimately accepted by the trial judge, was that a thermal injury to the ureter resulted from Dr. Ward's use of the LigaSure within two millimetres of the ureter while he was using the device to remove the colonic mesentery.

[78] By contrast, Dr. Ward's evidence was that he had not come too close to the ureter, and that was not how the injury occurred. He was confident that he had stayed five to 15 centimetres away from the ureter. His expert witnesses, Dr. Hagen and Dr. Robinette, assumed that this was the case when they offered two alternative opinions about the cause of the ureter blockage.

[79] Dr. Hagen's opinion was that Ms. Armstrong's ureter was damaged by excessive fibrosis in the retroperitoneum that caused scarring and subsequent obstruction to the ureter.

[80] Dr. Robinette, while accepting that collateral thermal damage could occur when the LigaSure was used too close to a structure, believed that thermal damage to Ms. Armstrong's ureter would have resulted in a different post-operative course, with tissue necrosis, perforation of the ureter, and noticeable symptoms such as urine leak. Dr. Robinette's opinion was that collateral thermal damage from the LigaSure to surrounding fat in the retroperitoneum set off an inflammatory response that blocked the ureter.

[81] The two key questions at trial, therefore, were whether Dr. Ward, while removing the mesentery, in fact came within two millimetres of Ms. Armstrong's ureter, and whether that was the cause of the injury to the ureter. Both were decided against the appellant. In assessing the expert evidence, the trial judge had to determine whether thermal spread could occur beyond the jaws of the LigaSure device, and whether perforation, necrosis, and symptoms such as urine leak would always follow a thermal injury. These questions were also resolved against the appellant.

[82] I have spent some time outlining the key disputed questions at trial because they inform an understanding of the trial judge's reasons and the expert evidence. In contrast to the conflicting causation opinions, there was little, if any, dispute between the experts about the standard of care: in order to avoid inadvertent injury, a competent surgeon while using the LigaSure device to divide the mesentery during the removal of a benign colon was required to identify, protect and stay at least two millimetres away from the ureter. This was not a case about when a competent surgeon might, without negligence, come too close to the ureter. Nor was this a case about misadventure or about circumstances beyond the control of a surgeon. Indeed, there was no evidence in this trial to suggest that a competent surgeon using reasonable care while operating to remove a benign colon would be unable to take the necessary and important step of staying more than two millimetres away from the ureter. The evidence was to the contrary—it should have been routine.

[83] I turn now to address in detail the first issue: whether the trial judge erred in his findings with respect to standard of care.

III. ISSUES

Issue One: The trial judge did not err in his approach to and application of the standard of care

[84] The appellant makes two related arguments with respect to standard of care: first, that the trial judge improperly applied a standard of perfection; and second, that staying away from Ms. Armstrong's left ureter was the "goal" of the surgery, and that the trial judge failed to consider what reasonable "steps" were required in order to achieve that goal.

[85] In my view, the trial judge made no such errors. In any event, the real issue on this ground of appeal is whether the trial judge's findings with respect to standard of care and its breach were supported by the evidence. I conclude that they were.

[86] In general terms, the standard of care required of a medical practitioner is to exercise a reasonable degree of skill and knowledge and the degree of care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing: Crits v. Sylvester, [1956] O.R. 132 (C.A.), at pp. 142-143, aff'd., [1956] S.C.R. 991. The standard of reasonableness is not a standard of excellence that amounts to perfection. To adopt such an approach would amount to a guarantee: Carlsen v. Southerland, 2006 BCCA 214, 53 B.C.L.R. (4th) 35, at paras. 13 and 15.

[87] In any case where standard of care is at issue, the court must determine what is reasonably required to be done (or avoided) by the defendant in order to meet the standard of care: Berger v. Willowdale A.M.C. (1983), 41 O.R. (2d) 89 (C.A.), at p. 95, citing Blyth v. The Company of Proprietors of the Birmingham Waterworks (1856), 156 E.R. 1047, at p. 1049. In a medical malpractice case, the court must determine what a reasonable physician would have done (or not done) in order to meet the standard of care: Kennedy v. Jackiewicz, 2004 CarswellOnt 4914 (Ont. C.A.), at para. 20, leave to appeal refused: 2005 CarswellOnt 1669 (S.C.C.). The degree of foreseeable risk affects the determination of the standard of care: McArdle Estate v. Cox, 2003 ABCA 106, 327 A.R. 129, at para. 27.

[88] Here, the question is whether the trial judge, in his determination and application of the standard of care, held Dr. Ward to a higher standard than what could reasonably be expected of a prudent and reasonable general surgeon performing a colectomy in the circumstances of this case.

[89] I say that he did not. Dr. Ward's submission that the trial judge adopted a "results-oriented" approach to the standard of care that required a standard of perfection assumes that the trial judge concluded Dr. Ward was negligent simply because he failed to achieve the "goal" of avoiding injury to Ms. Armstrong's left ureter, or alternatively that, after concluding that Dr. Ward had taken "steps" (not all necessary steps) to identify and protect the ureter, it necessarily followed that he was not negligent. This, in my view, mischaracterizes both the trial judge's findings, and the evidence at trial.

[90] I will begin my analysis by setting out, in a summary manner, the trial judge's reasons leading to his findings on standard of care. I will then review the evidence at trial to show that it fully supports the trial judge's findings. After my review of the evidence I will go on to address two specific propositions that were put forward by the appellant in oral argument, and that are accepted by my colleague's reasons: (1) that the trial judge, after concluding that Dr. Ward "took steps" to identify and protect the ureter, ought to have found that he met the standard of care; and (2) that the trial judge erred in failing to consider the possibility that Dr. Ward, without negligence, had come too close to the ureter. I will explain why I reject these arguments, and then I will provide a summary of my reasons for dismissing this ground of appeal.

A. The Trial Judge's Findings on Standard of Care

[91] In his reasons, the trial judge reviewed the evidence respecting Ms. Armstrong's background (paras. 13-18), the surgery (paras. 19-27), the LigaSure device (paras. 28-38) and the risk of injury to the ureter using the device (paras. 39-49). He referred to Dr. Ward's account of the surgery, including admissions about the need to identify and protect the ureter (paras. 50-62). After accurately summarizing the law on standard of care (paras. 66-72), the trial judge returned to the expert evidence of Dr. Burnstein and Dr. Hagen, as well as Dr. Ward's own evidence about the need to avoid damage to the ureter and the low risk of injury to Ms. Armstrong's benign colon (paras. 73-80). At paras. 81 to 84, he set out his findings on the standard of care as follows:

I am satisfied that the standard of care for a general surgeon is to identify, protect, and avoid direct contact with or close proximity to the ureter when using an energy emitting device like the LigaSure.

Based on the experts' testimony, "close proximity to" means within one to two millimetres of the ureter . Dr. Ward testified about the steps he took to identify and protect the ureter. The experts pointed to the need to identify and protect the ureter during a colectomy. The general surgeons who testified as experts indicated that it was important for a surgeon to identify and protect a ureter when a LigaSure is being used for laparoscopic surgery.

Both urologists indicated that the LigaSure's heat energy could damage the ureter. There is a risk of injury if the LigaSure touched or came within one or two millimetres of the ureter. In some cases where a LigaSure touches a ureter, a focal point injury and immediate rupture of the ureter can result. [A] urologist could repair such damage if discovered during surgery or shortly thereafter. Both urologists testified about repairing ureters damaged through surgical misadventure. I also accept Dr. Klotz's evidence that something less than a full focal point injury resulting from the LigaSure's proximity could cause fibrosis to the ureter and that the ensuing scarring could take several weeks to enlarge from a stricture and develop into a complete blockage.

I am satisfied that, under these circumstances, it would be a breach of the standard of care for a general surgeon to touch the ureter or come within one or two millimetres of it during a routine colectomy on a benign colon. Dr. Hagen agreed that colectomies involving benign colons could be considered basic surgery for a general surgeon. [Emphasis added.]

[92] The trial judge next had to assess whether Dr. Ward had in fact used the LigaSure within two millimetres of Ms. Armstrong's left ureter, and whether he had thus breached the standard of care. He could only do this by first determining how the injury happened. After setting out the law on causation (paras. 92-94), the trial judge reviewed the expert evidence (paras. 96-108). As I have noted, both of the appellant's experts assumed that Dr. Ward had stayed centimetres away from the left ureter and proposed two alternative ways the injury might have happened. The trial judge explained why he rejected these opinions and instead accepted the opinion of the respondent's expert: that Ms. Armstrong's ureter was injured by thermal spread from the LigaSure device (paras. 109-112). It then followed that Dr. Ward had in fact, and contrary to his own evidence, used the LigaSure device within two millimetres of the ureter.

[93] Returning to the question of standard of care, the trial judge stated at para. 113:

In a colectomy procedure, identification and protection of the ureter is paramount. Using a LigaSure can cause damage by heat transmission if it touches the ureter or comes within one to two millimetres. I am satisfied that on the facts of this case, the plaintiff has established that Dr. Ward breached the standard of care. Further, the breach caused damage to the ureter leading to a stricture of the ureter. This damage required the removal of Amstrong's left kidney.

[94] I will turn now to the evidence at trial with respect to the standard of care.

B. The Evidence Fully Supported the Trial Judge's Findings on Standard of Care

[95] Here I will review the evidence of the expert witnesses and Dr. Ward with respect to standard of care. My review of the evidence will indicate:

(1) there was general agreement that the standard of care required a general surgeon to identify, protect and stay at least two millimetres away from the ureter while using the LigaSure device to dissect the colonic mesentery;

(2) staying that far away from the ureter was consistently described as a "step" and not the "goal", which was to safely remove the respondent's colon without injuring her other internal organs; and

(3) to the extent there was any disagreement, it was only in the refusal of Dr. Hagen and Dr. Ward to admit negligence on the part of Dr. Ward: that, if he had in fact come too close to the ureter, he had breached the standard of care.

(1) Evidence about the surgery and the LigaSure device

[96] Dr. Ward is a general surgeon at the Royal Victoria Hospital in Barrie who, by the time of the trial, had carried out at least 50 colectomies, either by way of open surgery or laparoscopically. This type of surgery was described by Dr. Ward's expert witness, Dr. Robinette, as "surgery 101" for a general surgeon.

[97] Injuries to the ureter from a LigaSure device are rare during a colectomy, with documented rates of 0.15% to 0.66%. The expert witnesses testified that there was a risk of injury associated with resection of a large pelvic mass, malignant neoplasms, inflammatory disease, previous operations or radiation. They were unanimous that there were no risk factors in this case as Ms. Armstrong's colon was benign and anatomically sound, and she had no other condition or inflammation that would obscure the anatomy during the operation. This was, as described by Dr. Burnstein, an "ideal setting".

[98] The LigaSure device is used extensively in a variety of types of surgery, both open and laparoscopic. It gives the surgeon a great deal of control and precision. Because the LigaSure is a heat-emitting device, and there is thermal spread beyond the jaws of the device, there is a safety issue. One of the respondent's experts, Dr. Klotz, testified that there is a lot of work to ensure safety in the development of these devices and "if you're going to rely on this [device] and it's used all over the world now, it's very successful, you need to be confident that …what you see is what you get, and you're not going to get inadvertent injury to surrounding structures." He also emphasized that surgery needs to be done under direct vision: "a skilled surgeon learns to resist the temptation to do dissection not under direct vision, because you can get into trouble…certainly in urologic surgery, you must see what you are doing all the time."

(2) Dr. Burnstein's standard of care evidence

[99] Ms. Armstrong's standard of care expert, Dr. Burnstein, testified that it is a breach of the standard of care for a surgeon during a colectomy on a benign colon to use the LigaSure within two millimetres of the ureter. He stated that, during dissection of the mesentery, minimization of the risk of injury to the other structures is paramount, whether the surgeon is using scissors, cauterization or a LigaSure device. He testified that the surgeon must identify the ureter and confirm that he is on the right plane. Dr. Burnstein described the identification and protection of the ureter as a "dynamic phenomenal". He stated:

It's not enough to identify [the ureter] at one point in the case and forget about it, identify it and you have to continue to re-identify, this sort of continual re-identification during the course of dissection to make sure that you're not getting lost, you know where you are and know where the ureter is, that you're an appropriate distance away from the ureter as you cut, sew, apply electric current, or whatever technique you're using.

[100] Dr. Burnstein stated that protection of the ureter is "not difficult for the trained surgeon" except where the anatomy is obscured when risk factors such as "resection of large pelvic masses, malignant neoplasms, inflammatory disease, previous operation, or radiation therapy" are present. A surgeon resecting an anatomically normal colon should be "well away from the retroperitoneum" and that "being only millimetres from the ureter would be unusual in the absence of a pathology that forces you that close."

[101] Dr. Burnstein contrasted the rate of injury in this type of surgery, where there is a greater ability to protect the ureter, with the higher rate in gynecological surgeries where the surgeon operates much closer to the ureter. Dr. Burnstein expressed the opinion that the rate of 0.1% to 0.6% rate of injury to the ureter that is described in the literature would include the most difficult cases. He was then asked:

Q. And then if we assume that the rate of injury to the ureter in total ranges from again, .1 percent to .6 percent, do you have a sense of what the rate of injury in the case of a benign condition like Ms. Armstrong would be?

A. It's my opinion it should be zero. You should be able to remove the normal colon from the normal abdomen without injuring other structures.

Q. Why do you say that?

A. Because the training of the surgeon includes learning how to properly mobilize the colon, properly identify and protect the retroperitoneum structures, for example, the ureters, keep them out of harm's way through the removal of the organ in the absence of being challenged by an abnormality created by the disease process there should be no reason to be in the wrong place at a time that the wrong place and expose other organs to injury.

[102] I note parenthetically that this was the context in which Dr. Burnstein offered what the appellant describes as his "zero risk" theory. Dr. Burnstein was firmly of the view, and explained why, a competent surgeon should not "be in the wrong place" and come too close to the ureter while removing a normal colon from a normal abdomen.

[103] Under cross-examination Dr. Burnstein reiterated clearly his position on standard of care when it was suggested that what he was saying was that the injury itself implied a breach of the standard of care:

Q. Now, turning to your, I'll call them, three opinions: the first one being, that injury to the ureter if there is no structural abnormality of the colon falls below the standard of care. And I take it, what you're saying and what you said in your report is that the injury implies a breach of the standard of care, correct?

A. Yes, in this context.

Q. Yes. The context being a normal structure of the colon.

A. Right. My position is, just to be clear, that the average reasonable prudent practitioner, general surgical practitioner in terms of removing a structurally normal colon in a structurally normal abdomen and peritoneum should be able to achieve the goal of colon removal without injuring other structures in this case the ureter and that injury to the ureter in removal of a structurally normal colon and a structurally normal abdomen is a failure to conduct the operation with the appropriate degree of safety, prudence, judgment, and is below the standard of care.

[104] Dr. Burnstein also described staying away from the ureter as a "step", rather than a "goal". Under cross-examination he was asked the following:

Q. Doctor Burnstein, I want you to assume that Doctor Ward will testify that a laparoscopic procedure uses a 30-degree camera angle which magnifies the operative field onto a HD screen or screens in the OR theatre which is used to identify the left ureter during the course of the colectomy. And you'll agree with me that is based on even your perhaps not personal experience but knowledge that is a reasonable statement.

A. Yes.

Q. Okay. I also want you to assume that Doctor Ward will testify that the identification of the ureter in a laparoscopic procedure uses a medial approach by retracting the colon up towards the anterior abdomen wall which is known as tenting. I then want you to assume that Doctor Ward using this medial approach identifies the left ureter and either tweaks it or pushes the structures around it to ensure it moves.

A. Yes.

Q. Stopping there, you'll agree with me that that is two reasonable steps to take in the identification of the ureter.

A. Absolutely.

Q. Those steps meet the standard of care.

A. Yes

Q. I want you to assume then that Doctor Ward will testify that once he identifies the location of the left ureter using blunt dissection he pushes away the retroperitoneal structures which would include the ureter upwards towards the head of the patient away from the colonic mesentery. And you'll agree with me that is a reasonable step.

A. Yes.

Q. And a step that meets the standard of care?

A. It does.

Q. And it is only after taking those steps that he …opens the LigaSure and using the LigaSure to divide the colonic mesentery.

A. Correct.

Q. And again, that is reasonable.

A. And within the standard.

Q. I also want you to assume that Doctor Ward will testify that when he is using the LigaSure to divide the colonic mesentery he stays away from the ureter towards the colon and again that is a reasonable step.

A. Yes.

Q. And a step that meets the standard of care.

A. It absolutely does.

[105] In this passage, Dr. Burnstein was invited to agree, and in fact agreed, that each hypothetical "step" Dr. Ward was to have taken was a reasonable step. Unfortunately, as we know, Dr. Ward did not in fact take the final reasonable step identified by his counsel, that of staying away from the ureter towards the colon while using the LigaSure device to divide the colonic mesentery.

(3) Dr. Hagen's standard of care evidence

[106] Dr. Hagen was tendered by Dr. Ward as an expert in both standard of care and causation. He estimated that he had used the LigaSure thousands of times for colectomies and other surgical procedures, and he had never had any case where a patient's ureter had been injured with the device. Like Dr. Burnstein's "zero risk" of coming too close to the ureter evidence, Dr. Hagen stated that it was not possible to cause collateral damage using the LigaSure because "you're really nowhere near the ureter, you're centimetres away…it's not possible to damage the ureter if you've identified it and…you've taken the vessels."

[107] Similar to the approach used in questioning Dr. Burnstein, the appellant's counsel took Dr. Hagen through the "steps" that Dr. Ward ought to have taken to meet the standard of care:

Q. Now, Dr. Hagen, I want you to assume that Dr. Ward, at the time of the laparoscopic colectomy, mobilized the left colon using a combination of cautery and blunt dissection and using the medial approach, Dr. Ward moved the colon upward toward the anterior abdominal wall, something he calls tenting. He then proceeded to identify the ureter visually through the laparoscope and either touched or pushed structures around the ureter to observe it move or vermiculate. Once the ureter is identified visually, using blunt dissection, he moved the retroperitoneal structures, where the ureter is located, away from the colon. Now stopping there, do those steps, are those steps reasonable in the identification and protection of the left ureter?

A. Yes.

Q. And do those steps meet the standard of care in the identification and protection of the left ureter from injury during a laparosopic colectomy?

A. Yes.

Q. I then want you to assume that once the ureter has been identified and pushed away, that Dr. Ward opened the LigaSure package and divided the colonic mesentery with the LigaSure going on the diagram you have there, Exhibit 2, from right to left, circumferentially, staying away from the ureter and near the colon. And Dr. Hagen, does that step I've asked you to assume, to divide the colonic mesentery with the LigaSure, is that a reasonable way of doing it?

A. Yes.

Q. And does that way of dividing the colonic mesentery meet the standard of care?

A. Yes.

[108] The need to stay away from the ureter was specifically addressed in Dr. Hagen's cross-examination as follows:

Q. I want to talk about the standard of care. You will agree with me, I think, that the standard of care for benign colon surgery is to identify the ureter and then stay away from the area.

A. That's correct.

Q. And you have to stay far enough away from the ureter that your instruments don't inadvertently injure.

A. Yes.

Q. Now you testified that you have, in your own practice, not seen a case in which a ureter has been injured using a LigaSure device, correct?

A. Actually, that's not totally – I have seen LigaSure injury of the ureter, yes.

Q. Okay, in your own practice?

A. No, like but I have, I have seen it in video and you know, discussing with colleagues and things like that. But I have a teaching video of that.

Q. I wish we had that. You haven't had any cases, yourself, in which your patients have been injured with a LigaSure on the ureter.

A. Not to my knowledge, no.

Q. And the reason for that is because when you are using the LigaSure device, you stay as far away from the ureter as possible.

A. That's correct.

Q. And certainly, you stay more than two millimetres away from the ureter.

A. Yes.

Q. Always.

A. Well, I would…to answer your question I would try and stay away from the ureter, you know, more than two millimetres.

Q. Right, and the reason you would do that is because you don't want to inadvertently damage the ureter with the LigaSure.

A. Yes.

[109] Dr. Hagen confirmed that it was necessary for the surgeon to stay two millimetres away from the ureter and that if the surgeon had properly identified and protected the ureter "you wouldn't have this injury". However he refused to admit that Dr. Ward might have failed to do so, or if he did that he would have breached the standard of care:

Q. …you'll agree with me if …Dr. Ward used the LigaSure device within two millimetres of the ureter either because he made a mistake with the LigaSure, he misidentified the anatomy, he got lost, whatever, if he did that, that was a breach of the standard of care?

A. I wouldn't agree with that, no.

Q. Okay, so your opinion today is that it would not be a breach of the standard of care to operate the LigaSure device within two millimetres of the ureter.

A. I would, I would qualify that in the sense that if you, you have to identify the ureter and take precautions to not, you know, to know where it is and, if you did that, it would not be a breach of the standard of care.

Q. So let's uncap this…what you're saying, I think, is if you have done that, if you have properly identified and protected the ureter, then you wouldn't have this injury.

A. Yes.

Q. And the reason you wouldn't have this injury is because you wouldn't put the LigaSure two millimetres away from the ureter.

A. Yes.

Q. Right, once you, once you know where the ureter is, you're going to stay away from it.

A. That's correct.

Q. That's what you're saying.

A. Yeah.

Q. Now what I'm asking you to assume because the court is ultimately going to have to decide what happened here.

A. Right.

Q. We don't have a time machine, we can't go back and look, I want you to assume that Dr. Klotz and Dr. Burnstein are correct and that for whatever reason, Dr. Ward used the LigaSure within two millimetres. It has to be an accident. Nobody is suggesting that he did it intentionally.

A. Right.

Q. But that he did that. And now what I'm suggesting to you is that if you assume that that is correct, that Dr. Ward breached the standard of care.

A. No, I don't agree with that.

Q. So if Dr. Ward is mistaken in his identification and protection of the ureter and as a result of that mistake, uses the LigaSure within two millimetres of the ureter, thereby causing damage to the ureter, your opinion is that would meet the standard of care, is that what you're saying?

A. Yes.

Q. All right. Well, what would be the point in trying to identify and protect the ureter? That's actually a question.

A. What's the point? The point of identifying the ureter is to avoid injuring it.

Q. And if you're using the LigaSure, which we know has a thermal spread of two millimetres – you've agreed with that already.

A. I agree with that, yes.

Q. And the point of identifying it is so that you can stay more than two millimetres away, isn't that right?

A. Yes.

Q. And this is a, we're talking about a general principle that applies to surgery in general, right? Anybody who is doing surgery in this area has to know about the ureter and has to take steps to protect it.

A. Right.

Q. Right. It doesn't matter whether you're a general surgeon or a urologist or an obstetrician or some other surgeon in the area, you agree with that.

A. Yes.

Q. And it doesn't matter whether you're doing it open or laparoscopically.

A. Yes.

(4) Dr. Ward's standard of care evidence

[110] Dr. Ward agreed that a surgeon was required to stay away from the ureter while using a LigaSure device to separate the mesentery during removal of the colon. He stated that a surgeon is always "checking and rechecking to make sure we know [where] the structure is as we're dividing other tissue", that in a magnified view it is hard to estimate distance, but that he was "a long way away [from the ureter]". He testified that he did not believe he was one to two millimetres away because he could see the structure very well.

[111] Dr. Ward was asked to describe the "steps" that a surgeon takes to protect against injury to the ureter during the division of the colonic mesentery with the LigaSure. He stated:

Q. So to summarize, if you could, what steps are taken to protect against injury to the ureter during the division of the colonic mesentery with the LigaSure?

A. I think there's multiple steps involved. The first is the – we see the actual structures during this operation, and I see the structures extremely well with the camera to be honest, I don't open the LigaSure until I'm safely – and I start to release – and divide it. And we identified and observed five to ten centimetres as mentioned and in this case, as would be in all the cases I have in my practice regarding the laparoscopic – that's part of my practice.

Q. Do you take any steps during the actual use of the LigaSure there and the actual division to protect against injury to the ureter?

A. It's the distance ensuring you're several centimetres away from the obstruction before deploying the device.

[112] Dr. Ward testified that he did not believe that Ms. Armstrong's ureter was injured by thermal spread from the LigaSure because he was confident that he saw the structure through this part of the operation and took steps to try and protect it:

Q. So I raised with you this theory that the heat spread, or thermal spread or heat from the LigaSure would have come into contact with approximately eight to ten centimeters of the ureter during the division of the mesentery. Do you think that happened?

A. You know, I think – I don't know Doctor Klotz. I have a great deal of respect for Doctor Burnstein. He's helped me with patients over the years, but I think anything is possible per se but I just think it's highly unlikely.

Q. Why is that?

A. The reason being is I can see the structure through this part of the operation so I can help [make] sure that a) I took the steps to try and protect it, but I can see the structures. So, it's highly unlikely that I was close enough to cause this direct injury and plus the assumption that 5 – ten centimetres without actually seeing it is highly unlikely.

[113] Under cross-examination, Dr. Ward described the standard of care. He stated:

A. …The standard of care would be to take the appropriate steps to dissect the structures that are intended.

Q. Including, ensuring that you are dissecting far enough away that if you were using the LigaSure collateral thermal damage wouldn't affect the structure.

A. Yes.

[114] Dr. Ward admitted that if he had used the LigaSure within two millimetres of Ms. Armstrong's ureter this would have been an error on his part, but he doubted that he had done so:

Q. You intended to keep the LigaSure far away from the ureter.

A. I agree.

Q. And if you were mistaken, I know you don't think you were, but if you were mistaken and the LigaSure was within two millimetres of the ureter, that was an error on your part.

A. I think anything is possible, but I think this is highly unlikely in this case.

Q. I'm going to repeat my question, I want you to listen to it and answer my question. I know you don't think this is what happened. You've already testified to that. But ultimately His Honour is going to have to decide what happened here and what I am suggesting to you is that if you did use the LigaSure within two millimetres of the ureter, if you did it and you still don't know, if you did it, that was an error on your part. Do you agree with that?

A. I agree.

[115] Dr. Ward however refused to admit that it would have been a breach of the standard of care to use the LigaSure within two millimetres of the ureter:

Q. And you'll agree that it would have been a breach of the standard of care in the context of this surgery to use the LigaSure within two millimetres of the ureter, isn't it?

A. Disagree.

(5) Dr. Robinette's standard of care evidence

[116] Although Dr. Robinette had provided reports on both causation and standard of care, he was tendered by the appellant at trial only as a causation expert. He was, however, cross-examined on his standard of care report. Dr. Robinette agreed with Dr. Hagen's opinion that the "standard of care… is to identify the ureter and then to stay away from this area". He agreed that the standard of care was to find the ureter and then to stay away from it – "far enough away from the ureter so that your instruments don't inadvertently damage it". He agreed that, if Dr. Ward inadvertently used the LigaSure within two millimetres from the ureter it was a breach of the standard of care.

(6) Conclusions about the standard of care evidence

[117] These extracts from the evidence make it clear that there was full evidentiary support for the trial judge's conclusion that the standard of care required the surgeon not only to identify and protect the structures, but to stay a safe distance—at least two millimetres—away from the ureter while using the LigaSure device. Indeed, there was little difference between the standard of care evidence of Dr. Burnstein, Dr. Hagen and Dr. Ward, except in the refusal of the latter two witnesses to admit that, if Dr. Ward had in fact come too close to the ureter, this would have been a breach of the standard.

[118] It is also apparent that, contrary to the appellant's submission to this court, staying away from the ureter was consistently described by the witnesses as a "step" that Dr. Ward should have taken, and not as his "goal". Importantly, as I discuss in some detail below, none of the witnesses in this case offered the opinion, or even suggested, that a competent surgeon using reasonable skill and care would have come within two millimetres of the ureter while operating on Ms. Armstrong's anatomically normal colon. In any event, even if there was some difference of opinion, the trial judge was entitled to accept the firm and reasoned opinion of Dr. Burnstein that a competent surgeon would have had no reason to be in the wrong place to expose other organs to injury, and ought to have been able to stay at least two millimetres away from the ureter.

C. Additional Arguments about Standard of Care

[119] I will turn now to address two specific arguments of the appellant, which are also addressed in my colleague's reasons:

1. that the trial judge, after concluding that Dr. Ward "took steps to identify and protect the ureter", ought to have concluded that he met the standard of care; and

2. that the trial judge erred in failing to consider the possibility that Dr. Ward accidentally, but without negligence, came too close to the ureter.

(1) The finding that Dr. Ward "took steps to identify and protect the ureter" did not mean he met the standard of care

[120] The appellant refers to para. 109 of the reasons, where the trial judge stated that he was "satisfied Dr. Ward had taken steps to identify and protect the ureter". The appellant contends that, based on this finding, Dr. Ward must necessarily have met the standard of care, and that the action ought to have been dismissed. My colleague, at paras. 4 and 38 of his reasons, accepts this argument. This argument can be addressed very briefly.

[121] The full text of para. 109 is as follows:

I am satisfied that Dr. Ward took steps during this laparoscoptomy to identify and protect the ureter. He explained those steps and testified that he always kept at least five centimetres away from the ureter. But he acknowledged that the ureter was not always in camera view during this procedure. As to his awareness in 2010 about the spread of thermal energy beyond the jaws of the LigaSure, he answered: "I think so, yes".

[122] At para. 110, the trial judge went on to state:

I do not accept Dr. Robinette's theory that Dr. Ward kept at least five centimetres away from the ureter and that the LigaSure caused a necrosis of fatty tissue which began an inflammatory process ultimately obstructing the ureter.

[123] While the trial judge accepted that Dr. Ward had taken "steps" to identify and protect the ureter, he did not accept that Dr. Ward had in fact stayed away from the ureter with the LigaSure while performing the operation. As the trial evidence referred to earlier demonstrates, the standard of care is not simply to take steps to identify and to protect the ureter. While the ureter must be identified and protected even before the LigaSure device is deployed, all of the expert witnesses confirmed that it was necessary to stay away from the ureter while the LigaSure device was in use. Indeed, knowing where the ureter is, and avoiding it is what "protecting the ureter" means, while the mesentery is being removed. The trial judge referred to Dr. Burnstein's evidence at para. 27, where he noted that Dr. Burnstein emphasized the importance of continually re-identifying the ureter "to make sure that you're not getting lost". And at para. 54, he referred to Dr. Ward's testimony that "[w]e're always kind of checking and rechecking to make sure we know [where] the structure is as we are dividing other tissue".

[124] As such, the reference at para. 109 to Dr. Ward having taken steps was not a finding by the trial judge that the appellant had met the standard of care. While conceding that Dr. Ward did take (some) steps to identify and protect the ureter, the trial judge was not satisfied he did everything he said he did—specifically, he did not stay five centimetres away from the ureter. Rather, the trial judge found that he came within one to two millimetres of the ureter, and that this had resulted in the injury to the ureter. In other words, Dr. Ward was not sufficiently diligent in checking and rechecking where he was when dividing the colonic mesentery, and he came too close to the ureter inadvertently.

(2) Did the trial judge err in failing to consider the possibility that Dr. Ward accidentally, and without negligence, came too close to Ms. Armstrong's left ureter?

[125] In oral argument, the appellant asserted that the standard of care at best would have been to "use reasonable efforts to" avoid Ms. Armstrong's left ureter while dividing the mesentery with the LigaSure device, and that the trial judge erred by failing to consider whether Dr. Ward accidentally, and without negligence, came too close to Ms. Armstrong's left ureter.

[126] My colleague appears to agree with this contention. He notes, at para. 47, that the trial judge made no finding that it is only by negligent acts or omissions that a LigaSure can be brought within two millimetres [of the ureter], and at para. 52, that the trial judge at no time made the supplementary finding that the only way a LigaSure could be deployed within one to two millimetres of the ureter is by negligent act or omission.

[127] With respect, there was no evidence at all in this trial to suggest that a surgeon exercising reasonable care could not have stayed two millimetres away from the ureter while using the LigaSure to remove the mesentery during Ms. Armstrong's colectomy. That was not an opinion offered by the appellant's experts, who assumed that Dr. Ward had in fact stayed centimetres away from the ureter. Nor were any of the expert witnesses questioned about how an injury could have occurred if a surgeon had taken reasonable care to identify, protect and stay away from the ureter. While at one point in his cross-examination Dr. Hagen said he would "try" to stay two millimetres away, he did not offer any evidence as to why, despite trying, he might come too close. Indeed, Dr. Hagen had never seen a LigaSure-related injury of the ureter in his own practice. And Dr. Ward did not say that he had tried to stay away from the ureter but had been unable to do so. He was confident that he had in fact stayed centimetres away from the ureter, and that he was "nowhere near" the ureter when he was using the LigaSure device.

[128] Each of the experts testified that staying away from the ureter was part of the standard of care, and a necessary step. None of the witnesses posited a situation where a competent surgeon, in the context of surgery on a normal abdomen, could accidentally come too close to the ureter. Dr. Burnstein said the risk should be zero, while Dr. Hagen said "you're really nowhere near the ureter" during surgery and so "it's not possible to damage the ureter if you've identified it and…taken the vessels."

[129] My colleague characterizes Dr. Burnstein's evidence as deficient because he "did not attempt to explain why accidental but non-negligent thermal injuries can be ruled out" and that he did not address "whether an ordinary prudent surgeon would always have the dexterity to succeed in maintaining a safe distance, or whether periodic vermiculation guarantees that a prudent surgeon could not cause unintentional injury to structures that have unexpectedly moved during surgery" (at para. 54).

[130] However, none of these potential non-negligent, accidental scenarios was put to Dr. Burnstein or any of the other expert witnesses at trial. Indeed, Dr. Burstein explained why the average reasonably prudent surgeon would be able to perform this surgery without injury to the ureter. On the evidentiary record in this case, there was no question of a surgeon's potential lack of dexterity, or organs moving unexpectedly, at least in the "ideal" context of Ms. Armstrong's normal anatomy. And there was no discussion at all about whether "periodic vermiculation of the ureter" would be sufficient. Rather, the opinion of the experts and Dr. Ward himself was that the surgeon was required to "stay away from" the ureter while using the LigaSure to dissect the mesentery.

[131] And, contrary to my colleague's statement at para. 22, I see no reference in the evidence to Dr. Hagen and Dr. Ward taking the position that, if steps were taken to identify and protect the ureter and to "try" to stay a safe distance from the ureter "there would be no breach of the standard of care if the surgeon happened accidentally to come within two millimetres of the ureter with the LigaSure during the surgery."

[132] As I have already mentioned, Dr. Hagen refused to admit that Dr. Ward had come too close to the ureter, or that if he had done so, that he would have breached the standard of care. He offered no explanation as to why this was the case, given that he had agreed that a competent surgeon would identify, protect and stay away from the ureter to avoid the risk of injury.

[133] Although all of the expert witnesses agreed that it would be more difficult to avoid the ureter if the anatomy was abnormal or if there were masses, no one suggested that a competent surgeon operating in the "ideal" circumstances that Ms. Armstrong presented, could with reasonable care have come too close to the ureter, let alone suggested how this could have happened. It was not explained in Dr. Hagen's evidence, or put to the respondent's expert witnesses in cross-examination. Dr. Ward insisted that he had not come too close to the ureter, not that he had tried to stay two millimetres away, but that something had prevented him from doing so. Given the considerable amount of time spent on causation, it is telling that the experts did not opine on "non-negligent" ways that Dr. Ward could have come within two millimetres of Ms. Armstrong's ureter. It was simply not the focus of the evidence in this case.

[134] The burden of proof was on Ms. Armstrong to establish that Dr. Ward failed to meet the standard of care of a reasonably competent surgeon when her ureter was injured in the course of the laparoscopic removal of her colon. A trial judge is not obliged to consider potential non-negligent causes where there is no evidentiary foundation to do so: see, for example, Hassen v. Anvari, 2003 CarswellOnt 3436 (C.A.), at para. 9, leave to appeal refused: 2004 CarswellOnt 1768 (S.C.C.).

[135] In this case, the trial judge considered and explicitly rejected the non-negligent causes put forward by the appellant's expert witnesses. As I have explained, there was no evidence in this trial to suggest that a reasonably competent surgeon, "trying" to stay at least two millimetres away, might accidentally have injured the ureter during this particular operation. The expert evidence detailed earlier was to the contrary. The trier of fact is required to determine standard of care and its breach based on the evidence and not on speculation. The onus on a plaintiff in a medical malpractice case is not to disprove every possible theory that might be put forward by a defendant, let alone theories that are not raised at trial, but only on appeal.

[136] Finally, at para. 57 my colleague states correctly that "it is a logical error to infer that since an adverse result is improbable a defendant was negligent in causing that adverse result". I agree with that statement, but not with the balance of the paragraph. The trial judge in this case did not reason from the injury backwards; nor did he find negligence based on the low probability of risk of an injury. Rather, as the excerpt from his reasons set out at para. 91 above demonstrates, the trial judge was satisfied by the evidence, including Dr. Hagen's statement that this type of surgery was "basic surgery for a general surgeon", that under these circumstances it would be a breach of the standard of care for a general surgeon to come within one or two millimetres of the ureter during a routine colectomy on a benign colon.

Issue Two: The trial judge did not conflate standard of care and causation

[137] Dr. Ward asserts that the trial judge erred by conflating his assessment of standard of care and causation. In Dr. Ward's submission, the trial judge erred by conducting a causation analysis to determine whether a breach took place. That caused him to work backwards, focusing on the injury to conclude that Dr. Ward must have breached the standard of care. Dr. Ward contends that in a negligence action, the trial judge must determine what the standard of care is, and whether it was breached, before conducting a causation analysis. Here, according to Dr. Ward, the trial judge erred by using Dr. Klotz's causation opinion to inform his analysis of the breach of the standard of care.

[138] I agree with my colleague, at paras. 59 to 63, that typically, it makes sense for the trier of fact to consider causation only after finding a breach of the standard of care: see, for example, Bafaro v. Dowd, 2010 ONCA 188, 260 O.A.C. 70, at paras. 35-36. Determining standard of care before causation ensures that the trial judge does not wrongly reason backwards from the fact of the injury to determine that the standard of care has been breached. However, I also agree with my colleague's observation that at times the court will need to determine "what happened" (that is, the factual cause of the plaintiff's injury) in order to resolve whether the standard of care has been breached. Determining factual (and not "but-for") causation is sometimes necessary before a conclusion can be reached on whether there has been a breach of the standard of care.

[139] Indeed, this court has determined that, in some cases, it will be an error for the trial judge to fail to determine "how the injury occurred" before assessing standard of care.

[140] This was the case in Meringolo (Committee of) v. Oshawa General Hospital (1991), 46 O.A.C. 260 (C.A.), leave to appeal refused: [1991] S.C.C.A. No. 155, where a patient sustained brain damage during a bronchoscopy, leaving him in a permanent vegetative comatose state. The trial judge dismissed the negligence action against his doctors. This court overturned the decision on appeal. In allowing the appeal, this court accepted the submission that the issue of negligence ought to have been deferred until the issue of causation had first been addressed. At para. 56, Osborne J.A. observed:

…In this case, before the breach of duty issue can be appropriately addressed, what happened in the operating room on May 10, 1983 must be determined in order to provide an answer to the question, what caused the appellant's brain damage, or, to put it more broadly, how did the appellant sustain brain damage. It is only after that issue is examined that the issue of the respondents' alleged negligence should be considered.

[141] Similarly, in Grass (Litigation guardian of) v. Women's College Hospital (2001), 200 D.L.R. (4th) 242, leave to appeal refused: [2001] S.C.C.A. No. 372, the appellants' main argument was that the trial judge erred in addressing the issue of negligence before making, and without having made any determination of, the cause of an infant's injury, which occurred at birth. This court allowed the appeal and ordered a new trial. Catzman J.A. stated, at para. 12:

[T]he trial judge in the present case disposed of the action by finding that the appellants had failed to establish negligence on the part of Dr. Weisberg and thereby finding it unnecessary to assess the conflicting theories relating to causation. In doing so, he fell into the error articulated in Meringolo . The resolution of the question of causation might have led to different findings of fact with respect to what transpired in the labour room and to a different conclusion with respect to negligence. As in Meringolo , the appellants were entitled to the benefit of the trial judge's findings with respect to causation or to his determination, on the basis of a consideration of all of the evidence that such findings could not be made, before he came to address the issue of negligence.

[142] The decision in Kennedy v. Jackiewicz, 2003 CarswellOnt 1755 (Ont. S.C.), (the appeal decision is referenced above) had some similarities to the present case. After a surgeon had removed the plaintiff's ovaries, it was discovered that she had a hole in her colon. The plaintiff led expert evidence that the hole was caused by a thermal injury. The expert testified that cautery had been improperly applied either at too high power, for too long, or both.

[143] The trial judge explained that in some cases a trier of fact must determine what happened, before determining whether the surgeon fell below the standard of care, and that to do so is not an "outcome-oriented" inquiry. Gravely J. stated, at para. 6:

My inquiry then is to focus on what Dr. Jackiewicz did or failed to do and whether that was acceptable for a reasonably prudent and diligent surgeon in the same circumstances. The inquiry must not be outcome-oriented. It is nonetheless open to experts and to the court to draw inferences of fact. It may be appropriate, then, for an expert or the court to infer from the nature of the injury what it was the surgeon did. In this exercise the outcome to the patient is irrelevant. Once having determined on all the evidence what the surgeon did the inquiry shifts to the question of whether what was done falls below the standard . [Emphasis added.]

[144] As in these three cases, the trial judge in the present case had to determine "what happened", that is, how Ms. Armstrong's left ureter had been damaged, before he could reach any conclusion on whether Dr. Ward had breached the standard of care. He did not conflate standard of care and causation, or reason backwards from causation to conclude that Dr. Ward must have been negligent simply because he considered evidence as to the mechanism of the injury in his analysis of the breach of standard of care. While Bafaro tells us that the "but for" question of causation cannot be answered until the standard of care analysis is done, Meringolo, Grass and Kennedy tell us that in some cases it will be necessary to determine "what happened" before analyzing whether there has been a breach of the standard of care.

[145] In conclusion, I am not persuaded that the trial judge erred in conflating "but for" causation and the standard of care, or in dealing with standard of care and causation in the wrong order, or that he applied a results-oriented approach.

Issue Three: The trial judge did not err in relying on the evidence of Dr. Burnstein

[146] The trial judge concluded that the standard of care for a general surgeon is to identify, protect and avoid direct contact with or close proximity to the ureter when using an energy emitting device like the LigaSure (at para. 81) and that "based on the experts' testimony, 'close proximity to' means within one to two millimetres of the ureter" (at para. 82).

[147] As I have already explained, this conclusion was supported by the evidence at trial, which included—but was not limited to—the evidence of Dr. Burnstein.

[148] The appellant argues that it was a palpable and overriding error for the trial judge to give any weight to Dr. Burnstein's evidence because: (1) Dr. Burnstein does not perform laparoscopic colectomies; (2) Dr. Burnstein's opinion on the standard of care required perfection; (3) Dr. Burnstein's opinion was inconsistent with authoritative medical literature; and (4) Dr. Burnstein ultimately retreated from his initial opinion and accepted Dr. Hagen's opinion on the standard of care.

[149] With respect to the first complaint, I note that Dr. Ward did not object to Dr. Burnstein's qualification as an expert witness to provide opinion evidence on both standard of care and causation. This was an appropriate concession. Dr. Burnstein was properly qualified, having special knowledge and experience in using the LigaSure device, in performing colectomies, and in the risks of injury to other structures in the course of such surgery. His lack of specific experience with laparoscopic colectomies is a matter of weight, which was a determination for the trial judge to make.

[150] As for Dr. Ward's second argument, I have already explained in some detail that, while Dr. Burnstein was of the opinion that a reasonable surgeon in performing a colectomy on a benign colon would identify, protect and stay more than two millimetres away from the ureter, this was not a standard of perfection. Rather, it was Dr. Burnstein's opinion that a competent surgeon, by training and experience, would be able to avoid injury by staying more than two millimetres away from the ureter while using the LigaSure device in the circumstances of this case.

[151] Similarly, I do not accept the appellant's third argument: that it was a palpable and overriding error to accept Dr. Burnstein's opinion because it was inconsistent with authoritative medical literature. Indeed, the medical literature that was put to Dr. Burnstein during the trial was consistent with and supported his opinion that using the LigaSure device too close to the ureter could cause a thermal injury, and that a surgeon was required to stay a safe distance from the ureter while using the device.

[152] The focus of the criticism is again on what the appellant describes as Dr. Burnstein's "zero risk" theory, suggesting that he was advancing a standard of perfection. My colleague states, at para. 53, that Dr. Burnstein's "zero risk" theory is not supported by scientific literature, while the appellant asserts in his factum that "a zero per cent chance of ureteric injury was explicitly rejected in the accepted medical literature before the trial judge" (citing to a case study that was Exhibit 11 at trial).

[153] With respect, I disagree. I have set out earlier (at paras. 99 to 105 above) the relevant passages from Dr. Burnstein's evidence. After accepting the 0.15% to 0.66% risk of injury to the ureter during a colectomy reported in the literature (which included both open and laparoscopic surgery, and surgeries with various complicating features), Dr. Burnstein stated that there ought to have been "zero risk" of injury in the circumstances of this case, and then he explained why. Contrary to the appellant's assertion, none of the literature referred to at trial undermined Dr. Burnstein's "zero risk theory", or more importantly, his opinion that the average reasonable prudent "general surgical practitioner in removing a structurally normal colon in a structurally normal abdomen and peritoneum should be able to achieve the goal of colon removal without injuring other structures". In particular, the case study at Exhibit 11 confirmed that the ureter can be injured from thermal spread from the LigaSure device. It said nothing at all about the percentage risk of ureteric injuries, in particular in the context of a colectomy. The case study involved a patient and an operation with different circumstances and risks: the patient was an 80-year old male, with a small pelvis with relatively bulky contents, operated on both laparascopically and in open surgery for adenocarcinoma of the rectum. In discussing Exhibit 11, Dr. Burnstein reiterated his opinion that, during a colectomy that is abdominal surgery "well away from the pelvis", the ureter should not be injured.

[154] I therefore firmly reject the appellant's argument that Dr. Burnstein's opinion was contradicted by this case study: it did not undermine Dr. Burnstein's opinion that the standard of care was to identify, protect and stay away from the ureter, and that a competent surgeon ought to have been able to do so, in the circumstances of this case, without injury to the ureter. Indeed, Dr. Burnstein stated, "[I]t's my opinion based on my experience and practice and what I see in the community and I won't be able to give you a textbook that says the standard of care is not to injure the ureter. That's a well-known aspect of colon surgery; identification and protection of the ureter." While Dr. Burnstein agreed that he could not point to any textbook or literature to say that the standard of care is not to injure the ureter during a colectomy if the colon was structurally normal, he was not confronted with any literature where that had happened.

[155] Finally, I do not accept the fourth argument with respect to Dr. Burnstein's opinion. The appellant points to a particular passage in Dr. Burnstein's evidence, where he is alleged to have retreated from his opinion and in fact accepted the opinion of the appellant's expert on standard of care, Dr. Hagen, that every step Dr. Ward had taken was reasonable and met the standard of care. The passage in question is set out at para. 104 of my dissenting reasons.

[156] In this passage Dr. Burnstein indeed accepted that, Dr. Ward would have met the standard of care if he had (1) identified the left ureter by locating it on the screen in the operating theatre, and then used a medial approach, tweaking it or pushing the structures around it to ensure it moved; (2) pushed away the retroperitoneal structures, including the ureter, towards the head of the patient away from the colonic mesentery; (3) opened the LigaSure to use it to divide the colonic mesentery only after the previous steps; and (4) stayed away from the ureter towards the colon when using the LigaSure device to divide the colonic mesentery. As we have seen however, Dr. Ward did not take the final reasonable step identified by his counsel, that of staying away from the ureter while dividing the mesentery. As such the passage relied on did not undermine or otherwise affect Dr. Burnstein's opinion with respect to standard of care.

[157] For these reasons, I reject the appellant's arguments with respect to the alleged deficiencies in Dr. Burnstein's opinion evidence. In any event, there is nothing that would suggest that the trial judge in this case made a palpable and overriding error in accepting that evidence as part of his overall determination of the issue of standard of care.

Issue Four: There was no error in the trial judge's causation analysis

[158] The main, if not the entire, focus of this appeal was on standard of care. The appellant however confirmed that he continues to rely on the written arguments set out in his factum in respect of the fourth ground: that the trial judge committed a palpable and overriding error in accepting the respondent's expert evidence on causation.

[159] At trial there was no question that Ms. Armstrong's ureter injury occurred as a result of her colectomy. There was also no question that the injury to the ureter resulted in the harm that she suffered, including the removal of her left kidney, and the damages that the parties had agreed upon. The causation issue in this case was the mechanism of the injury – whether it occurred as a result of thermal spread from the use of the LigaSure device too close to Ms. Armstrong's ureter (the opinion of Dr. Klotz), or by one of the other two mechanisms proposed by Dr. Hagen and Dr. Robinette. Only the first mechanism would have entailed negligence on the part of Dr. Ward.

[160] The appellant asserts that Dr. Klotz's theory of causation, which was accepted by the trial judge, was not supported by the literature or the evidence. The appellant then points to various aspects of the evidence to assert that the trial judge ought instead to have accepted Dr. Robinette's opinion that the ureter was damaged through unavoidable abdominal scarring that expanded inside the abdomen, eventually leading to the stricture of the ureter.

[161] There was extensive evidence at trial about how Ms. Armstrong's ureter came to be injured. Indeed, as I have already observed, this was the central issue, on which there was extensive expert evidence. The trial judge's reasons review and analyze the specific opinions of the expert witnesses on this issue, and then explain why he accepted Dr. Klotz's opinion. Without question, there was evidence to support the trial judge's findings. In setting out in his factum the evidence that contradicts the trial judge's conclusion, and that supports an alternative causation theory that was rejected by the trial judge, the appellant is simply inviting this court to reconsider the evidence and to reach a different factual conclusion. For these reasons I reject this ground of appeal.

IV. CONCLUSION

[162] I have explained why, in my view, the trial judge's conclusions respecting standard of care were supported by the evidence at trial. I have also explained why I would reject the appellant's contention that the trial judge made any reversible error in his articulation and application of the standard, in addressing "what happened" before reaching his conclusion that Dr. Ward breached the standard of care, and in accepting Dr. Burnstein's opinion evidence.

[163] The issue here is whether Dr. Ward took reasonable care. Typically, this involves a consideration of what concrete action a prudent surgeon could be expected to have taken in the circumstances. This is precisely what the trial judge considered in the present case. Before he stated his conclusion on standard of care, he described the procedure to be followed, and pointed to evidence of the need to identify and reidentify the ureter so as to stay safely away from it (i.e., at least two millimetres away).

[164] Based on the evidence, the trial judge did not hold Dr. Ward to a standard that was higher than could reasonably be expected of an "average reasonable prudent practitioner" performing a colectomy where no complicating features were present. The trial judge's conclusion that a reasonably competent surgeon would have stayed two millimetres away from the ureter is fully supported by the evidence. It is not a statement of result or a "goal", but an essential step that was not taken in this case. On the evidence, this was a breach of the standard of care.

[165] In any event, whether avoiding injury to the ureter by staying at least two millimetres away while using the LigaSure is described as a "goal" or a "step" may be simply a question of semantics. Dr. Burnstein did not reduce the standard of care to just taking the proper steps. Rather, he spoke of exercising the "appropriate degree of safety, prudence, [and] judgment" in undertaking the procedure. As noted in Rowlands v. Wright, 2009 ONCA 492, 250 O.A.C. 394, a medical negligence case involving laparoscopic gallbladder removal surgery, "[t]here is a difference between using the appropriate technique and executing it properly": at para. 28.

[166] Finally, this appeal is about whether it was open to the trial judge on the evidence to find that a reasonable and prudent surgeon could reasonably be expected to stay at least two millimetres away from the ureter when removing a benign colon. In my view this conclusion, like the trial judge's conclusion about the cause of the damage to Ms. Armstrong's ureter, was available and fully supported by the evidence.

Released: December 6, 2019

"RGJ"

"K. van Rensburg J.A."

Footnotes

[1] Transcript of Proceedings, January 16, 2018, p. 11.

[2] See Appellant's Factum, at para. 2.

[3] Transcript of Proceedings, January 11, 2018, at p.15

[4] Transcript of Proceedings, January 10, 2018, at p. 14.

[5] Transcript of Proceedings, January 10, 2018, at p. 15.

[6] Transcript of Proceedings, January 10, 2019, at p. 15.

[7] Transcript of Proceedings, January 11, 2018, at p. 17.

[8] Transcript of Proceedings, January 11, 2018, at pp. 21-22, 35, and 43.

[9] Transcript of Proceedings, January 11, 2018, at p. 23.

[10] Transcript of Proceedings, January 11, 2018, at pp. 50-51.

[11] Transcript of Proceedings, January 11, 2018, at pp. 76-78.

[12] Transcript of Proceedings, January 16, 2018, at pp. 6, 33.

[13] Transcript of Proceedings, January 16, 2018, at p. 11.

[14] Transcript of Proceedings, January 16, 2018, at pp. 12-13.

[15] Transcript of Proceedings, January 16, 2018, at pp. 33-34.

[16] Transcript of Proceedings, January 16, 2018, at pp. 33-37.

[17] Transcript of Proceedings, January 12, 2018, at p. 21.

[18] Transcript of Proceedings, January 12, 2018, at pp. 21-22.

[19] Transcript of Proceedings, January 12, 2018, at p. 23.

[20] Transcript of Proceedings, January 12, 2018, at p. 46.

[21] Transcript of Proceedings, January 12, 2018, at pp. 48-49.

[22] Transcript of Proceedings, January 12, 2018, at p. 49.

[23] Transcript of Proceedings, January 15, 2018, at p. 30.

[24] Exhibit 11 was a case study entitled "Ureteric Injury due to the Use of LigaSure", from the 2013 Case Reports on Urology. See Transcript of Proceedings, January 11, 2018, at pp. 61-64.