Smith v. Kane, 2021 ONCA 634

COURT OF APPEAL FOR ONTARIO DATE: 20210921 DOCKET: C68095

Fairburn A.C.J.O, van Rensburg and Huscroft JJ.A.

BETWEEN

Patricia Ann Smith Plaintiff (Appellant)

and

Dr. Brenda Kane, Dr. Denny Khiet Y. Trinh, LMC Endocrinology Centres (Toronto) Ltd., Dr. Sheldon Nadal, Stephen Galperin and Dr. Michael Vizel Defendants (Respondent)

and

Dr. Robert Evans and Dr. Rubina Tahir Third Parties

Counsel: Ryan N. Naimark, Kate M. MacLeod and Courtney Madison, for the appellant Junior Sirivar and Sam B. Rogers, for the respondent

Heard: March 22, 2021 by video conference

On appeal from the judgment of Justice Arthur Gans of the Superior Court of Justice, dated January 27, 2020, with reasons reported at 2020 ONSC 329.

van Rensburg J.A.:

A. OVERVIEW

1The appellant, Patricia Ann Smith, appeals the dismissal of her action for medical malpractice against the respondent, Dr. Brenda Kane. The trial judge dismissed the action because he concluded that Ms. Smith had failed to establish that Dr. Kane fell below the standard of care of a family physician in her treatment of Ms. Smith’s right foot complaints between January and October 2008, following an injury to her ankle in November 2007.

2Ms. Smith asserts that the trial judge erred in respect of the question of standard of care – the only issue determined against her at trial. In particular, she submits that the trial judge made the following errors:

• First, she says the trial judge erred in his assessment of the expert evidence, when he (a) misapprehended the evidence of her standard of care expert; and (b) ignored an important concession by Dr. Kane’s expert.
• Second, relying on ter Neuzen v. Korn, [1995] 3 S.C.R. 674, she says the trial judge erred in failing to find a breach of the standard of care, even in the absence of expert evidence, based on his ordinary knowledge and common sense.
• Third, she says the trial judge erred in failing to find a breach of the standard of care in Dr. Kane’s alleged failure to diagnose Ms. Smith’s ongoing foot pain and swelling.

3I would reject these grounds of appeal.

4First, there was no palpable and overriding error in the trial judge’s assessment of the expert evidence. He did not misapprehend the evidence respecting standard of care: he did not overlook aspects of the evidence of Ms. Smith’s expert, nor did Dr. Kane’s expert concede that there was a breach of the standard of care.

5Second, there is no scope for the application of the principle recognized in ter Neuzen, a position taken for the first time on appeal. The trial judge and counsel recognized that expert evidence was essential in determining whether Dr. Kane breached the standard of care of a reasonable family physician in her care and treatment of Ms. Smith during the relevant period.

6Third, although this case in general terms is about delayed diagnosis, the only alleged breaches of the standard of care that were relevant, having regard to the trial judge’s findings on causation and the concession that the standard of care for a family doctor would not have required Dr. Kane to diagnose Ms. Smith’s rare foot condition, were Dr. Kane’s failure during the period between January 24, 2008 and October 24, 2008 to order repeat diagnostic imaging of Ms. Smith’s foot, and to refer Ms. Smith to an orthopaedic surgeon.

7Contrary to the appellant’s submissions, the trial judge carefully considered the evidence, had a firm grasp of the issues, and reasonably preferred the expert opinion of Dr. Kane’s expert, who opined that, although it would have been reasonable for Dr. Kane to have obtained repeat imaging of Ms. Smith’s ankle or to have made a referral to an orthopaedic specialist, it was not a breach of the standard of care for her to have failed to do so, absent evidence of a “bony problem”.

8For these reasons, elaborated on below, I would dismiss the appeal.

B. BACKGROUND

(1) Events Giving Rise to the Litigation

9In November 2007, Ms. Smith slipped and fell on some ice, injuring her ankle. She first consulted her family doctor, Dr. Kane, about the injury on December 13, 2007.

10At issue in this case was Dr. Kane’s care of Ms. Smith between January and October 2008, and in particular, in January, when Dr. Kane ordered X-rays and an ultrasound, and between July and October, when Ms. Smith was seen by Dr. Kane on three occasions.

11In December 2008, Dr. Kane referred Ms. Smith, at her request, to an orthopaedic surgeon, and in January 2009, Ms. Smith was diagnosed with Charcot foot. Charcot foot, which is often precipitated by an injury, causes a weakening of the bones in the foot. It is a rare condition that can occur in people with significant nerve damage (neuropathy), which is a known consequence of diabetes. Indeed, Ms. Smith was diagnosed with Type 2 diabetes in 1998 and she had a lengthy history of poor diabetic control.

12Unfortunately, by the time Ms. Smith was diagnosed with Charcot foot in January 2009, the only option was a below-the-knee amputation, which was carried out in March 2009.

(2) The Litigation

13Ms. Smith sued Dr. Kane and other medical practitioners. The action was dismissed before trial as against all of the defendants except Dr. Kane. Damages were agreed, and the trial proceeded on the issue of liability.

14At trial, it was alleged that Dr. Kane fell below the standard of care between January and October 2008, when Ms. Smith was suffering from undiagnosed Charcot foot. It was not asserted that Dr. Kane ought to have diagnosed Charcot foot. Rather, it was alleged that Dr. Kane had breached the standard of care of a reasonable family doctor, including by failing to order repeat diagnostic imaging of Ms. Smith’s foot, after she received the results of X-ray and ultrasound imaging at the end of January 2008, and by failing to refer Ms. Smith to an orthopaedic surgeon. Ms. Smith’s position at trial was that the additional imaging and referral ought to have taken place as early as January 2008, and in any event, before October 24, 2008.

15Ms. Smith’s testimony at trial consisted of a transcript of her evidence from an earlier trial that had resulted in a mistrial, for reasons unrelated to her evidence. There were two expert witnesses on standard of care: Dr. Cynthia Osborne, for Ms. Smith, and Dr. Geoffrey Morris, for Dr. Kane. Both were qualified as experts on the appropriate standard of care for a family physician practising in Ontario. ¹ There was also an Agreed Statement of Facts (the “ASF”) that included a statement of the agreed evidence of a number of health care practitioners who had attended Ms. Smith during the relevant period, including a podiatrist, a chiropodist, two chiropractors, and an endocrinologist. What these practitioners did and did not observe in relation to Ms. Smith’s right ankle and foot assumed some importance in the trial judge’s reasons.

16The trial judge found in favour of Ms. Smith on the issue of causation: but for the negligence of Dr. Kane, if such had been found, Ms. Smith’s leg more probably than not would have been saved had a referral to an appropriate consultant been made on or before October 24, 2008. The trial judge found that if X-rays had been taken at the end of July 2008, they would clearly have shown a marked neuropathic fracture and significant radiological deformity, compelling a referral to an orthopaedic specialist. The trial judge also concluded that there was no contributory negligence. In the end, however, the trial judge dismissed the action because he was not persuaded that Dr. Kane had breached the standard of care.

(3) Ms. Smith’s Treatment by Dr. Kane Following Her Injury

17The trial judge’s analysis of the standard of care turned on what Dr. Kane did and did not do when Ms. Smith attended at her family practice following her injury and in the next several months. What follows is a summary of Ms. Smith’s treatment by Dr. Kane during that period, including the trial judge’s observations on the evidence.

18Ms. Smith went to see Dr. Kane on December 13, 2007, complaining of right foot pain. I pause here to note that this was not the first time Ms. Smith had experienced foot pain. Ms. Smith had sustained a previous right ankle injury in 2004 and had experienced foot pain intermittently throughout 2005 and 2006. The trial judge noted that there was a mix of diagnoses, including calcaneal spur to plantar fasciitis. He concluded that the first injury had resolved by the time Ms. Smith reinjured her foot in 2007.

19Returning to the December 13, 2007 visit, Dr. Kane’s clinical note from that date noted Ms. Smith’s fall and indicated a complaint of “plantar fasciitis”. Dr. Kane also noted that Ms. Smith was using ice, alternating with heat, anti-inflammatories and orthotics.

20Ms. Smith next attended at Dr. Kane’s office on January 22, 2008. On this visit, Dr. Kane observed that there was some swelling and that Ms. Smith was in pain. Ms. Smith had gone to see Dr. Kane to ask for a note excusing her from work. Dr. Kane did not give her a note at that time, sending her for X-rays instead. The radiological report, dated January 22, 2008, stated:

Moderate soft tissue swelling noted. Radiographic evidence of ankle joint effusion. No ankle fractures or subluxation noted.

On the lateral projection well corticated bony fragments noted adjacent to the anterior calcaneal margin. Old fractures or accessory ossification centres would be in the differential. Large plantar calcaneal spurs. ²

OPINION: NO DEFINITE ACUTE FRACTURE NOTED. ANKLE STRESS VIEWS TO ASSESS ANKLE JOINT INSTABILITY MAY BE OF BENEFIT. IN ADDITION AN ANKLE ULTRASOUND TO ASSESS THE LIGAMENTS AND TENDONS MAY BE OF BENEFIT.

21After reviewing the report, Dr. Kane ordered further X-ray and ultrasound imaging, which was completed on January 24, 2008. The radiologist’s report indicated that no definite fracture was noted and identified some swelling and a ligament strain. ³ Dr. Kane instructed her nurse to call Ms. Smith to tell her that there was “no fracture, some swelling in the tissue” and to apply ice and bandage. Dr. Kane’s evidence at trial was that she had concluded, based on these reports, that there was no fracture, and that Ms. Smith had ligamental strain, which would go with a sprained ankle.

22I note that one central point of dispute at trial was whether the January 2008 imaging was inconclusive (as Dr. Osborne maintained), and therefore warranted further imaging and possibly a referral to an orthopaedic specialist. As detailed below, this point was resolved in Dr. Kane’s favour.

23Following the imaging, Ms. Smith was not seen again at Dr. Kane’s office for approximately another two months. She next attended at Dr. Kane’s office on April 7, 2008, when she was seen by Dr. Vizel, one of Dr. Kane’s on-call associates. According to the ASF, Dr. Vizel noted that Ms. Smith had swelling and tenderness on the right ankle and that she had a cane with her at that visit. He also believed that the bruising he observed was indicative of an injury, in particular that Ms. Smith had a recurrent ankle injury. His clinical note diagnosed “peripheral edema (i.e. swelling)-post traumatic” and indicated that he told Ms. Smith to follow up with Dr. Kane.

24Ms. Smith did not return to Dr. Kane’s office until July 28, 2008. Dr. Kane testified that she observed swelling in both feet and legs, although the swelling on the right side was more pronounced. She noted “no pitting edema, lymphedema”, after she had put pressure on the area that was swelling. Dr. Kane also testified that she believed Ms. Smith’s sprain was taking a long time to heal, which was consistent with the earlier injury she had sustained.

25The trial judge found that Dr. Kane’s clinical note that Ms. Smith was “not active” “because of [her] foot” and that she had right foot pain and swelling, was “equivocal and less than helpful”. Dr. Kane’s testimony about this visit was “more telling”, and led the trial judge to conclude that, after eight months, Dr. Kane was “no further ahead in coming to grips with her patient’s foot injury condition”, which she testified might then very well have been a “severe” or “bad” sprain or a Grade 2 sprain with a partial tear.

26The trial judge noted that, notwithstanding the passage of time and the absence of a “noted diagnosis” ⁴, Dr. Kane did not think it necessary to obtain an orthopaedic consult or to send Ms. Smith for further imaging. Instead, she was of the view that there might be a more “sinister” explanation for the swelling, namely, an abdominal tumour. To investigate this possibility, Dr. Kane ordered a pelvic ultrasound, which turned out to be normal.

27Ms. Smith attended again at Dr. Kane’s office on August 28, 2008, with a sore and swollen right ankle, and complaining of numbness in her right foot. Dr. Kane testified that there was bilateral swelling and that she suspected neuropathy. Dr. Kane referred Ms. Smith to a neurologist for a nerve conduction study, and she prescribed medication to bring down the swelling. She also continued to pursue the differential diagnosis of a pelvic tumour and sent Ms. Smith for a CT scan of her abdomen and pelvis in early September, which also came back negative. Dr. Kane sought out an alternative explanation for Ms. Smith’s ongoing swelling, or lymphedema, by attempting on three occasions to refer Ms. Smith to a haematologist, which requests were rejected. (The final request was refused in late October 2008 as not medically appropriate.)

28The trial judge noted that, notwithstanding that Dr. Kane had ruled out or should have ruled out the pelvic tumour as of mid-September after receiving the results of the CT scan, she did not think it necessary to send Ms. Smith for any further foot imaging or to refer her to an orthopaedic specialist. Nor did she consider referring her back to endocrinologist Dr. Denny Trinh. (Ms. Smith had been under the care of Dr. Trinh for the medical management of her diabetes since early 2004 but, as noted below, it appears that throughout 2007 and into the latter part of 2008, Ms. Smith had not been seeing him on a regular basis, if at all.)

29The nerve conduction study was conducted on October 20, 008, and the results were provided to Dr. Kane the following day: Ms. Smith was suffering from “advanced… diabetic type polyneuropathy”. Dr. Kane saw Ms. Smith that day, stressed the importance of diabetic control, and referred her back to Dr. Trinh, who saw Ms. Smith a few days later. Dr. Trinh did not note anything that indicated Charcot foot. He did not refer Ms. Smith to any other specialist or order any further testing.

30Dr. Kane next saw or spoke to Ms. Smith three times in November, focusing on her diabetic management and glycemic control. She saw her again on December 11, 2008, when Ms. Smith came in seeking an orthopaedic referral, which was ordered quickly, but not obtained until mid-January. As noted earlier, by that time it was unfortunately necessary for Ms. Smith to undergo a below-the-knee amputation.

(4) The Trial Judge’s Standard of Care Analysis

31The trial judge identified as the first issue before him whether Dr. Kane’s diagnosis or treatment of Ms. Smith’s foot injury from January 2008 to the time of the referral to an orthopaedic specialist in early December 2008 fell below the standard of care of a reasonably competent family physician. However, given his findings on causation, the relevant time period for the purpose of determining liability was January 2008 to October 24, 2008 (identified by the trial judge as the “upset date” – the date by which Ms. Smith’s leg more probably than not would have been saved if referral to an appropriate consultant had been made).

32The trial judge summarized Ms. Smith’s position at trial as the following five points:

• Dr. Kane had a duty to diagnose, based on the taking of a thorough history, conducting appropriate tests and making the necessary and requisite referrals;
• Dr. Kane engaged in tunnel vision and failed to reconsider an earlier diagnosis;
• Dr. Kane failed to refer Ms. Smith to other consultants or to obtain further imaging when she knew or ought to have known that she was no further ahead in her diagnosis than she had been at first instance;
• Dr. Kane’s patient recordkeeping was less than optimum;
• Cumulatively, Dr. Kane’s patient care fell below acceptable standards of a reasonably competent family practitioner.

33The trial judge was critical of Dr. Kane’s evidence. He found it troubling, if not self-serving, when Dr. Kane testified about why she did or did not undertake certain steps, particularly since her clinical notes did not support or reference the treatment plans about which she testified. He noted that much of that evidence sounded like an “after-the-fact” rationalization rather than a reasoned approach to Ms. Smith’s diagnosis and treatment. He also criticized Dr. Kane’s incorrect assumption that Ms. Smith was being followed by Dr. Trinh for her diabetic care: Dr. Kane knew or should have known, from the extent and timing of Dr. Trinh’s reports to her, that Ms. Smith’s attendance or compliance with his insistence on self-monitoring was spotty at best throughout 2007 and into the latter part of 2008.

34Despite these criticisms, the trial judge was not satisfied, based on the evidence before him, that Dr. Kane breached the standard of care. He concluded, at para. 46, that, although he had “flip-flopped” on the issue of standard of care several times, he was not persuaded that it was more probable than not that Dr. Kane’s treatment of Ms. Smith, particularly in the period from August to the end of October 2008, fell below the standard of care of a reasonably competent family practitioner in either not referring Ms. Smith to an orthopaedic specialist or not having ordered repeat imaging of her right foot. (As explained below, the only alleged breaches of the standard of care that were relevant were the failure to order repeat imaging and to refer.)

35The trial judge stated that he reluctantly came to that conclusion because through much of the trial he was troubled by what appeared to be a period of “dithering” when Dr. Kane did not undertake a contemporaneous alternative investigation with, first and foremost, repeat imaging of the right foot. But he observed that the evidence of Dr. Osborne on this issue “was not as focused as it might have been to lead [him] to an alternate conclusion”: at para. 47.

36Furthermore, the trial judge noted, at para. 49, that, where the evidence of Dr. Morris conflicted with that of Dr. Osborne, he accepted Dr. Morris’s evidence. He identified the following problems with Dr. Osborne’s evidence:

• She was too argumentative, was not prepared to yield or concede ground when she should have and was reluctant to accept assumptions. (He found that the opposite observations could be made about Dr. Morris.)
• She set the bar for reasonably competent practitioners a little too high, citing as an example her criticisms of Dr. Kane’s notetaking, which the trial judge did not find fell below the recommended recordkeeping principles of the Ontario College of Physicians and Surgeons.
• She was “something of an outlier” in holding firm to the view that the report of imaging that Dr. Kane received in January 2008 was inconclusive and that therefore there should have been repeat imaging or a referral to an orthopaedic specialist at that time. This was inconsistent with the evidence of the doctors at trial, and the doctors, including a treating orthopaedic surgeon, who reviewed and commented on the January 2008 reports a year later.
• She had not reviewed Ms. Smith’s evidence from the first trial before testifying.
• Her reasoning and conclusions were influenced by the outcome of the case, as became evident during her cross-examination.

37The trial judge went on to make a number of observations at paras. 54-56 of his reasons. They are significant because they are the focus of Ms. Smith’s argument that the trial judge misapprehended parts of the expert evidence – an argument I address in my analysis below.

38The trial judge observed, at para. 54, that Dr. Osborne had not provided “any detailed or cogent evidence or rationale for what Dr. Kane did or failed to do in the late summer and early fall of 2008 when she seemed to be focused or fixated upon a more ‘sinister’ explanation for the ongoing leg lymphedema.” He also observed, at para. 55, that he did not hear Dr. Osborne say that it fell below acceptable standards not to contemporaneously repeat or alter foot imaging by at least mid‑September, while investigating the possibility of a pelvic tumour, even though there was no clear evidence of a bony malformation in the right foot or ankle. And, at para. 56, the trial judge noted that the only evidence he had on this issue was that of Dr. Morris “who said that it would not have been ‘unreasonable’ to obtain further imaging in the fall of 2008, but not to do so would not have fallen below acceptable standards.”

39The trial judge observed that he found Dr. Kane’s evidence about what was in her mind during this period and what she was then investigating to be “not only a little vague but … somewhat scattered”. He was also troubled by the fact that by the end of August, the right foot and ankle injury which Ms. Smith had sustained sometime the previous November was no closer to being diagnosed with certainty. Nonetheless, this set of circumstances could not be “trumped by [his] filling in evidence where none exists or by venturing an opinion or drawing a conclusion for which there is no supporting medical evidence”: at para. 58.

40He also made an observation relevant to Ms. Smith’s argument that the trial judge erred in ignoring a concession from Dr. Morris that it was a breach of the standard of care not to make an earlier referral to an orthopaedic surgeon. The trial judge observed that “evidence that a procedure would be ‘reasonable’ does not give rise to a conclusion that its absence would lead one to conclude that such a course of conduct fell below acceptable standards”: at para. 59.

41The trial judge also commented on other aspects of the evidence that served to buttress both his preference for the evidence of Dr. Morris to that of Dr. Osborne and his conclusion that Dr. Kane was not negligent in failing to order repeat imaging in the late summer or early fall of 2008, absent some indication that Ms. Smith had a new or different “bony problem”. The trial judge referred to the fact that none of the other health care practitioners that Ms. Smith was seeing for feet-related issues from August to October was of the view that Ms. Smith should have been sent for further imaging. Even Dr. Trinh, who was aware that Ms. Smith had advanced bilateral peripheral neuropathy and was walking with a cane, did not observe any ulceration or swelling of the right ankle and he did not send her for further imaging or refer or consider sending her to any other specialist.

42The trial judge concluded that Ms. Smith had failed to discharge the onus of establishing that Dr. Kane’s treatment of her during the summer and early fall of 2008 fell below the acceptable standard of care required of a family doctor.

C. DISCUSSION

43Ms. Smith contends that the trial judge made a number of reviewable errors. Before turning to discuss each of the grounds of appeal, I would note that the determination of whether or not a standard of care was met involves the application of a legal standard to a set of facts, which is a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless there is an extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law, reviewable on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37. A misapprehension of the evidence would justify appellate intervention where it is obvious and goes to the very core of the outcome of the case: see e.g. Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 450 D.L.R. (4th) 357, at para. 125, leave to appeal refused, [2020] S.C.C.A. No. 40. As I will explain, I am not satisfied that the trial judge made any error that would justify appellate intervention.

(1) Issue One: Did the Trial Judge Misapprehend the Expert Evidence?

(a) The Alleged Misapprehension of Dr. Osborne’s Evidence

44In submitting that the trial judge erred in misapprehending Dr. Osborne’s evidence, Ms. Smith focuses on the following passage from the trial judge’s reasons, at paras. 54-56, which she says reveals error:

What was, however, of more critical import for me was the fact that Dr. Osborne did not provide me with any detailed or cogent evidence or rationale for what Dr. Kane did or failed to do in the late summer and early fall of 2008 when she seemed to be focused or fixated upon a more “sinister” explanation for the ongoing leg lymphedema.

In addition, I did not hear Dr. Osborne say that it fell below acceptable standards not to contemporaneously repeat or alter foot imaging by at least mid-September, while investigating the pelvic issues, even though there was no clear evidence of a bony malformation in the right foot and ankle.

The only evidence I had on this issue was that of Dr. Morris who said that it would not have been “unreasonable” to obtain further imaging in the fall of 2008, but not to do so would not have fallen below acceptable standards. [Emphasis added.]

45After noting, at para. 70, his conclusion that Dr. Kane was not negligent in failing to repeat imaging in the late summer or early fall of 2008, absent some indication that Ms. Smith had a new and different “bony” problem that was different from her December 2007 initial presentation, the trial judge observed, at para. 71, that “[r]egrettably, the plaintiff’s expert evidence covering [the period of the fall of 2008] was just too vague and imprecise to permit [him] to cross the evidentiary chasm”.

46Ms. Smith submits that, contrary to the trial judge’s observations, Dr. Osborne did explain what Dr. Kane had done and failed to do in the late summer and early fall of 2008, and that she did give the evidence that the trial judge concluded was missing.

47Before explaining why I reject this submission, it is helpful to review Dr. Osborne’s evidence.

(i) Dr. Osborne’s Evidence

48It is fair to say that Dr. Osborne identified many deficiencies in Dr. Kane’s practice and care of Ms. Smith. Among other things, Dr. Osborne was critical of Dr. Kane for her recordkeeping practices, her failure to identify that Ms. Smith was not regularly attending appointments with Dr. Trinh, the absence of detail in her various referrals, and her failure to perform certain examinations during Ms. Smith’s appointments, including neuropathic testing. Dr. Osborne asserted that Dr. Kane did not have a diagnosis for what was happening with Ms. Smith’s right foot and she ought to have ordered repeat diagnostic imaging and/or referred her to an orthopaedic specialist as early as the end of January 2008.

49It is unnecessary to detail Dr. Osborne’s evidence on each of these points, since I accept the respondent’s submission that the only relevant criticisms were about deficiencies that, had they not occurred, might have led to the timely discovery of Ms. Smith’s Charcot foot. As such, and in view of the trial judge’s causation findings, the alleged breaches of the standard of care that are relevant to this appeal are in respect of Dr. Kane’s failure to order repeat diagnostic imaging and her failure to refer Ms. Smith to an orthopaedic specialist to assist in her diagnosis and treatment of Ms. Smith. Because Dr. Kane only saw Ms. Smith in January 2008 and not for another six months, there were two relevant periods: the end of January 2008, after Dr. Kane received the results of the X-ray and ultrasound imaging, and the period between July and October 2008, when Ms. Smith returned with complaints of ankle and foot pain, and Dr. Kane noted swelling and then numbness.

50With respect to the January 2008 period, Dr. Osborne testified that the X‑rays told her that there could be a fracture, and that the imaging was “not definitive”. It was her opinion that Dr. Kane should have ordered a CAT scan or MRI, or referred Ms. Smith to an orthopaedic specialist at that time because it was a “bony problem”.

51Regarding the clinical notes from Ms. Smith’s visits between July 28 and October 21, 2008, Dr. Osborne criticized Dr. Kane for not having a diagnosis when Ms. Smith’s foot problem persisted more than eight months after the initial injury, and for not further investigating to elucidate the diagnosis. For example, with regard to the July 28 appointment, Dr. Osborne stated, “[Dr. Kane] didn’t examine the foot, per se … she doesn’t come up with a diagnosis”. And, subsequently, “Now we’re August 28th… and we haven’t got a diagnosis. And we haven’t done a neuropathic exam.”

52Dr. Osborne also criticized Dr. Kane, with reference to her clinical notes from July 28 to October 21, 2008, for “chasing a red herring” of an abdominal tumour to explain the swelling in Ms. Smith’s foot and leg, rather than directly examining the foot and ankle. Dr. Osborne stated that she did not understand why a pelvic ultrasound was ordered on July 28, 2008. Regarding Dr. Kane’s further investigations in August and September 2008, Dr. Osborne stated: “What Dr. Kane, I think, has done is gone in the wrong direction of trying to figure out why there’s swelling and pain in the ankle. You don’t do a pelvic ultrasound and a CT abdomen when you’re trying to figure out what’s going on in an ankle. It just doesn’t make any sense”. Dr. Osborne said that the ankle was the area that should have been imaged instead. Similarly, with respect to Dr. Kane’s attempt to obtain a referral to a haematologist in mid-September, Dr. Osborne stated, “these are inappropriate referrals in the first place”. With respect to the appointment on October 21, 2008, Dr. Osborne expressed the opinion that the standard of care required Dr. Kane to refer Ms. Smith to a neurologist, and an orthopaedic specialist, the latter of which “should have been done, in my opinion, months ago” because Ms. Smith still had a sore ankle.

53Toward the end of Dr. Osborne’s examination-in-chief, counsel asked her to take a look at the “big picture” for the time period from December 13, 2007 to December 11, 2008, and to opine on whether Dr. Kane fell below the standard of care. Apart from her criticisms of Dr. Kane’s recordkeeping and her failure to do neuropathic testing (which are not relevant breaches having regard to the causation findings), Dr. Osborne stated that:

• Dr. Kane fell below the standard of care in relation to not ordering additional imaging, such as an MRI or bone scan, starting as early as January 2008. The initial imaging done in January was inconclusive and further imaging could have helped elucidate the diagnosis. Additionally, the family physician is responsible for reassessing along the way, and Dr. Kane failed to do any reassessments that could have led to further imaging;
• Dr. Kane fell below the standard of care by not referring Ms. Smith to an orthopaedic specialist, starting January 2008, and going forward as time passed and the problem persisted; and
• Dr. Kane fell below the standard of care in relation to diagnosing and reassessing diagnoses from as early as December 2007, when she failed to include a diagnosis or differential diagnosis in her clinical notes.

54Under cross-examination, Dr. Osborne made certain concessions that are relevant to this appeal. First, while she insisted that Dr. Kane was required by the standard of care to order both further imaging and to make a referral to an orthopaedic surgeon if she did not know what the diagnosis was, she acknowledged that if Dr. Kane ascribed Ms. Smith’s pain to a sprained ankle, there would have been no reason to make the referral. And, when Ms. Smith returned in July and August 2008, complaining of pain at the Achilles tendon, and Dr. Kane observed swelling in both legs, it was reasonable for Dr. Kane to be considering a process other than the November 2007 injury to explain her presentation.

(ii) No Misapprehension of Dr. Osborne’s Evidence

55As noted earlier, the trial judge found in relation to causation that Ms. Smith’s condition of Charcot foot was treatable up until October 24, 2008, and that X-rays, had they been taken at the end of July, would clearly have shown a marked neuropathic fracture and significant radiological deformity, compelling a referral to an orthopaedic specialist. In view of these findings, the relevant standard of care issue in the late summer and fall of 2008 was whether it was a breach of the standard of care for Dr. Kane to have pursued the differential diagnosis of an abdominal tumour, while not continuing to investigate the foot by a referral to an orthopaedic surgeon or by ordering further imaging of the foot.

56The trial judge found that Dr. Osborne did not provide any “detailed or cogent evidence or rationale for what Dr. Kane did or failed to do in the late summer and early fall of 2008”: at para. 54. Nor did she say that “it fell below acceptable standards not to contemporaneously repeat or alter foot imaging by at least mid-September, while investigating the pelvic issues, even though there was no clear evidence of a bony malformation in the right foot and ankle”: at para. 55.

57Having reviewed Dr. Osborne’s evidence, I reject the appellant’s submission that these comments were unfounded. As I will explain, Dr. Osborne’s opinion that repeat imaging or a referral was required was undermined by the premise of her opinion, which the trial judge did not accept.

58There is no question that Dr. Osborne expressed the opinion that there were many things that Dr. Kane did and failed to do in in the late summer and early fall of 2008. However, Dr. Osborne did not provide a detailed or cogent opinion as to why Dr. Kane should have ordered repeat imaging of the foot during that period, while Dr. Kane was investigating the possibility of a pelvic tumour. Instead, she offered a range of criticisms of Dr. Kane’s care of Ms. Smith at that time, including for having “chas[ed] the red herring of lymphedema in the right leg, looking for the zebra rather than looking for what was going on in the ankle”.

59While Dr. Osborne testified that the ankle was the area that should have been imaged, not the abdomen or the pelvis, she made it clear that this was based on her view that the initial imaging was inconclusive. To the extent that this provided a rationale for Dr. Osborne’s opinion, it was rejected by the trial judge.

60At key points in her evidence, Dr. Osborne indicated that her opinion that further imaging or a referral to an orthopaedic surgeon was required as early as January, and extending into the late summer and fall of 2008, was based on her view that the initial imaging was inconclusive or not definitive regarding the presence of a fracture or a “bony issue”. The following exchange occurred during her examination-in-chief in relation to Dr. Kane’s breach of the standard of care at the end of January 2008:

Q. Okay. And so having reviewed these two sets of imaging on January 22nd, January 24, 2008, do you have an opinion on what, if anything, should have been done after receiving this imaging?

A. Well, in my mind, if I got these imaging, I would follow, you know, the basis. They’re not definitive, they’re not definitive for me.

There is some suggestion of old fractures, so I’m going to go, you know, or the standard would be, got to go hunting.

The best way to hunt to see whether there’s fractures or they’re not fractures are to – well, two things, and you can do them simultaneously.

One would be to order a CAT scan or an MRI and a bone scan…and that would pick out whether those are fractures and whether there’s a destruction going on in the heel bone…

And if I didn’t understand that, I think the standard would be to refer to a specialist, because this patient is still, at the end of January, has a painful foot and is requesting time off work. So her life is disrupted, we still don’t have a diagnosis, and we need to figure out what’s going on.

Q. Okay. And do you have an opinion on the type of specialist that would be appropriate?

A. An orthopaedic person, definitely, who deals in ankles and feet.

Q. Can you explain why?

A. Because it’s a bony problem, so it should go to the bony doctors.

61Later in her examination-in-chief, Dr. Osborne was asked about Dr. Kane’s failure to order repeat imaging throughout the relevant period, that is, extending into the summer and fall of 2008. Again, she explained that additional imaging was required because the initial imaging was inconclusive:

Q. Okay. So looking at the big picture, Dr. Osborne, for the period of December 2007 to December 2008, do you have an opinion whether Dr. Kane fell below the standard of care in relation to additional imaging?

A. Yes. I feel she did.

Q. Can you explain why, please?

A. Well, initially the imaging done in January was inconclusive. And further imaging at that point could have been done to possibly elucidate a diagnosis and help this patient along the way. […]

62In contrast, Dr. Morris disagreed that this imaging was inconclusive. I will refer in greater detail to his evidence later in these reasons, but at this point it is sufficient to note that Dr. Morris’s opinion was that the initial imaging was not inconclusive. He said that “[a] family doctor does not read those reports as equivocal. A family doctor reads those reports as saying there’s no bony injury.” Dr. Morris was of the view that Dr. Kane had reasonably concluded that Ms. Smith had suffered a bad sprain, and that, in the absence of a “bony issue”, the standard of care did not require repeat imaging or a referral to an orthopaedic surgeon.

63Dr. Osborne’s opinion that the initial imaging was inconclusive was also contradicted by the evidence of other experts. For example, Dr. Thomas Barrington, the orthopaedic surgeon to whom Ms. Smith was ultimately referred, noted in relation to the January 2008 imaging that “there was no sign of fracture at the time”.

64Ultimately, the trial judge decided that the January imaging was definitive. At para. 52 of his reasons he described Dr. Osborne as “something of an outlier in holding firm to the view that the report of imaging Dr. Kane received in January 2008 was ‘inconclusive’ and therefore [that] there should have been repeat imaging or a referral to an orthopaedic specialist at that time.” In other words, the trial judge was not prepared to accept Dr. Osborne’s rationale for her opinion that Dr. Kane should have ordered repeat imaging in order to meet the standard of care.

65With respect to the period from July 2008 onward, when Ms. Smith’s foot pain was persisting, swelling had increased, and eventually Dr. Kane suspected neuropathy, the trial judge recognized that there was nothing to prevent Dr. Kane from having undertaken both imaging of the pelvis and the foot. However, he noted that he did not hear evidence from Dr. Osborne to explain why the foot ought to have been imaged at that time and he “did not hear Dr. Osborne say that it fell below acceptable standards not to contemporaneously repeat or alter foot imaging by at least mid-September, while investigating the pelvic issues, even though there was no clear evidence of a bony malformation in the right foot and ankle ” (emphasis added).

66This was an accurate observation. In her examination-in-chief, Dr. Osborne expressed the opinion that in July and August 2008 Dr. Kane was looking in the wrong place: she should have repeated the foot imaging because a fracture had not been ruled out. Dr. Osborne did not accept that there was no clear evidence of a bony malformation in the right ankle, and she persisted in the view that this was a “bony problem”. ⁵

67Dr. Osborne was cross-examined on her opinion that the standard of care required Dr. Kane to have referred Ms. Smith to an orthopaedic surgeon in January 2008:

Q. Your opinion is that Dr. Kane should have referred Ms. Smith to an orthopaedic surgeon on January 22nd, 2008, correct?

A. Correct.

Q. And you say that because in your view, the X-rays that Dr. Kane ordered on January 22nd, 2008, were inconclusive?

A. Yes.

Q. The follow up and the referral to the orthopaedic surgeon; those are the two concerns you have?

A. Or further imaging.

Q. As an alternative?

A. And/or, both. I mentioned she could do both at the same time.

Q. Let’s talk about what the standard requires…You’re saying the standard required Dr. Kane, as of January 22nd, 2008, to both order additional imaging and make a referral to an orthopaedic surgeon?....

A. If she didn’t know what the diagnosis was, yes.

Q. Fair enough. So in this particular case, she concluded on the basis of the imaging, that she read the report on, that there was no fracture.

If in fact that was the case, you would agree with me that Dr. Kane did not need to make a referral to an orthopaedic surgeon?

A. No, I wouldn’t agree with you, only because the patient still had a complaint. Just because it says “no definitive acute fracture”, does not mean that the patient still has pain, still has trouble walking, does have some abnormal results.

So you have to look at the patient, along with the results of the test, and come up with a logical conclusion being more testing and referral.

Q. Focusing on the referral. If Dr. Kane had ascribed Ms. Smith’s ankle pain to plantar fasciitis, in light of the previous history, you’d agree with me that the standard wouldn’t require her, in that circumstance, to refer her to an orthopaedic surgeon on January 22nd, 2008?

[discussion of plantar fasciitis]

And, if Dr. Kane had ascribed Ms. Smith’s pain to a sprained ankle with the belief that the X-ray showed no fracture, she would not have referred Ms. Smith to an orthopaedic surgeon?

A. No.

Q. So you’re agreeing with my statement?

A. Yes.

Q. And so the crux of your opinion really then is that the results of the X-ray were inconclusive, such that in your view, they required further investigation; is that fair?

A. Yes. [Emphasis added.]

68I have carefully reviewed Dr. Osborne’s evidence, including specifically the passages drawn to the court’s attention in oral argument. There is no indication that Dr. Osborne expressed the opinion that it was a breach of the standard of care for Dr. Kane to have failed to repeat foot imaging while investigating the pelvic issues even though there was no clear evidence of a bony malformation in the right foot and ankle. To the contrary, she insisted that the earlier imaging was inconclusive and that because of this, and because Dr. Kane had no working diagnosis from the outset, that further imaging ought to have been done. She expressed the opinion that Dr. Kane was following a red herring and that she ought not to have done the pelvic imaging. She did not offer the opinion that even if there was no clear evidence of a bony malformation in the right foot and ankle, the standard of care required further imaging of the foot. As the trial judge observed, at para. 56, the only evidence he had on that issue was from Dr. Morris who said that it would not have been unreasonable to obtain further imaging in the fall of 2008, but not to do so would not have fallen below acceptable standards.

69In conclusion, the trial judge did not misapprehend Dr. Osborne’s evidence.

(b) Dr. Morris’s Alleged Concession

70In oral submissions on appeal, the appellant argued that the trial judge ignored a concession from the respondent’s expert, Dr. Morris, that it was a breach of the standard of care for Dr. Kane not to have made a referral to an orthopaedic surgeon well before she did so in December 2008.

71The appellant asserts that the concession was made during the following exchange with the trial judge at the end of Dr. Morris’s cross-examination:

COURT: Would it not have been reasonable for Dr. Kane or – let me put it this way, for a family practitioner to have called for an ortho referral well before that date, well before December [2008]?

WITNESS: It’s not an unreasonable thought, and in the end, it was the right thing to do. It just wasn’t something that seemed required as she went along. But it’s not an unreasonable idea.

COURT: Okay. I think I said would it not have been reasonable as opposed to not unreasonable, a double negative.

Would it not have been the preferred practice or acceptable practice, however the term is ultimately going to be tried about in this.

WITNESS: Yes.

COURT: The appropriate standard of care.

WITNESS: Yes.

COURT: And the position for Dr. Kane after running aground several times now, and at the end of October when we see bilateral neuropathy and still issues and noncompliance.

WITNESS: Yes.

COURT: For her at that juncture to have reached out to somebody else at that point in time?

WITNESS: It would have been reasonable.

RE-EXAMINATION BY [RESPONDENT’S COUNSEL]:

Q. Just on His Honour’s last series of questions, Doctor.

You told His Honour in response to his questions that it would have been reasonable to do that.

My question to you, Doctor, did the standard require that?

A. I think the standard requires you to make your best judgment all the time with regard to any problem that the patient presents to you. And sometimes we get it wrong. Sometimes you chase down the wrong direction looking for it.

So I think the standard required that Dr. Kane paid careful attention to what her patient was telling her and what she was finding on examining the patient and responding as best she thought she should. So I think that’s what the standard requires.

THE COURT: That’s doublespeak, though, respectfully, Doctor.

At the end of October, if you’re the reasonable man on the clock who monitors for docs…at the end of October and you have not got an answer for all the matters that are fussing you…what would you have done.

THE WITNESS: I think an orthopaedic referral is not a bad idea at all. It’s a reasonable thought because you’re at a stand…you don’t know where you’re going next.

THE COURT: At an impasse?

THE WITNESS: Yes, at an impasse.

72The respondent asserts that the argument that this was a concession that the standard of care had been breached is made for the first time on appeal, and ought not to be considered. She contends that, in any event, when this passage is considered in context it is simply an acknowledgment that it would have been “reasonable” for such a referral to have been made at that time.

73While there is no indication that Ms. Smith’s trial counsel argued, based on this passage, that Dr. Morris had made a concession about the need for an orthopaedic referral, there was extensive discussion about what was meant by the term “reasonable” in another passage. Specifically, in Dr. Morris’s cross-examination, he acknowledged that it would have been “reasonable” for Dr. Kane to have considered further imaging of the foot at the end of July if she thought it was a local foot problem, and that if the images showed a fracture, to have then referred Ms. Smith to an orthopaedic surgeon. The appellant’s counsel argued that this meant that Dr. Morris was saying that there had been a breach of the standard of care, while the respondent’s counsel argued to the contrary.

74At the outset of the parties’ closing submissions, the trial judge invited counsel to specifically address a number of questions, including how he should interpret Dr. Morris’s evidence that certain steps were “reasonable” in relation to the standard of care. Referring to the questions put by the appellant’s counsel to Dr. Morris, “was it reasonable for [Dr. Kane] to do X, Y, and Z at a particular moment in time?”, the trial judge said “I don’t know what ‘reasonable’ means. Does it mean not a breach of the standard of care, or that it was a breach of the standard of care not to do something?”

75The appellant’s counsel attempted to address this concern as follows:

MR. NAIMARK: Dr. Morris does agree that it would have been reasonable to refer to an orthopaedic surgeon on July 28, 2008, and in all subsequent dates.

COURT: That’s why I’m having trouble with this reasonable thing, and maybe [respondent’s trial counsel] confused the matters with what he did.

COURT: I mean, all of that stuff I took him to say, it would have been reasonable.

But I guess the question that wasn’t asked of him was: “Would it have been in breach of the standard of care not to do something?” And that wasn’t asked.

MR. NAIMARK: So, well –

COURT: All that stuff is reasonable. Yeah, that’s reasonable, but that doesn’t fall below the standard of care.

MR. NAIMARK: Well, we argue that it does.

COURT: I know what you argue. But that question wasn’t asked. And that’s what I’m having difficulty with.

76For his part, Dr. Kane’s counsel submitted that the trial judge should not take “any of that cross-examination evidence as being evidence by Dr. Morris that Dr. Kane in any way in the course of those questions breached the standard of care.” He asserted that Dr. Morris’s evidence was clear and unequivocal that Dr. Kane met the standard of care and that Dr. Morris “quite reasonably accepted that a physician may have adopted a different course, but that is not the same as saying Dr. Kane was unreasonable or fell below the standard of care in what she actually did”.

77Ultimately, the trial judge accepted that Dr. Morris’s acknowledgment that it would have been reasonable for Dr. Kane to have done something did not mean that her failure to take that step was a breach of the standard of care. He stated, at para. 59, that “evidence that a procedure would be ‘reasonable’ does not give rise to a conclusion that its absence would lead one to conclude that such a course of conduct fell below acceptable standards”. The trial judge did not equate an acknowledgment that something was reasonable with its absence constituting a breach of the standard of care.

78The appellant does not take issue with that conclusion, but argues, essentially, that in Dr. Morris’s exchange with the trial judge, he went further: it should be read as a concession that Dr. Kane breached the standard of care when, in the fall of 2008, she did not refer Ms. Smith to an orthopaedic surgeon.

79I disagree.

80Much of the force is removed from the alleged concession when it is considered in the context of the parties’ submissions and the trial judge’s conclusion about the meaning of the word “reasonable” in Dr. Morris’s cross‑examination. While he was prepared to admit that it would have been reasonable for Dr. Kane to have taken certain steps, that admission did not amount to an opinion that the steps were required by the standard of care.

81Moreover, Dr. Morris’s alleged concession in cross-examination must be considered in the context of the totality of his trial evidence. His other evidence was unequivocal that the standard of care did not require a referral to an orthopaedic surgeon by October 21, 2008. For example, in his examination-in-chief he gave the following answers:

Q. Dr. Osborne testified that Ms. – Dr. Kane ought to have ordered repeat imaging at various instances. In your opinion, did the standard of care require Dr. [Kane]…to order any imaging on July 28, 2008?

A. No, I don’t think so.

Q. Why is that?

A. Dr. Kane ordered the initial imaging some weeks after the injury in November 2007.

That is long enough for any fracture that might be present to become evident.…

So by the time she did the X-rays and the ultrasound in January 2008, any bony injury would have been clear. And there was a report of no bony injury.

Q. Doctor, in your opinion, was a request for consultation with an orthopaedic surgeon required on this date [October 21, 2008]?

A. So that’s a version of what you asked me earlier about the imaging, and the answer is pretty much the same, which is, from Dr. Kane’s point of view, she knows this isn’t a bony problem. That’s why she took X-rays. Two within two days of each other, and they came back not showing a bony problem according to the X-ray reports.

So it seems there’s no indication for an orthopaedic referral.

82Dr. Morris gave similar testimony later in his examination-in-chief:

Q. Dr. Morris, in relation to Dr. Osborne’s opinion that Ms. Smith required a referral to an orthopaedic surgeon or further imaging, in your opinion, when, if at all, was such a referral required?

A. So we’re going at this for the third time, and my answer to that hasn’t changed, that Dr. Kane had done imaging, X-rays specifically, in January of 2008, no bony injury. Fine. Okay.

Now we have ongoing trouble. We have to look somewhere else. There isn’t any reasonable reason to send the patient to an orthopaedic surgeon in the absence of a bony – an evident bony problem.

83Under cross-examination Dr. Morris accepted that it would have been “reasonable” for Dr. Kane to have ordered repeat imaging in July and August 2008, but he said that he would not have done so. In his re-examination he explained:

Q. In the course of asking you questions about repeat imaging in July and, I believe, in August, my friend put to you whether or not it would have been a reasonable thing to do, and you indicated it was a reasonable thing to do, but you wouldn’t have done it. Why not?

A. So I explained earlier that a reasonable physician could conclude that if they hadn’t seen the patient in six months that this was not a major issue for them. And in the absence of [a] history of reinjury, there’s really no reason to think that a bony injury is going to show up on a repeat X-ray.

So the real reason – the real thing to ask yourself is, if you see this lady, and it still hurts, and yes, it hurt in April – it hurt in January, it hurt in April, and now it hurts in July, but there’s no reinjury, why would there be a bony problem now when there wasn’t six months earlier?

84The trial judge accepted Dr. Morris’s evidence on this point, stating, at para. 70 of his reasons: “Dr. Kane was not negligent in not ordering repeat imaging in the late summer or early Fall of 2008 absent some indication that Ms. Smith had a new or different bony ‘problem’ which was different from her December 2007 initial presentation or the tear, which Kane acknowledged required casting”.

(c) Conclusion on Issue One

85I would not give effect to the appellant’s first ground of appeal. The trial judge did not misapprehend or overlook parts of Dr. Osborne’s evidence, nor did he ignore a concession by Dr. Morris with respect to the standard of care.

86As I have explained, it was fair for the trial judge to say that the only evidence he had on the issue of whether it fell below acceptable standards not to contemporaneously repeat foot imaging by at least mid-September, while investigating the pelvic issue, even though there was no clear evidence of a bony malformation in the right foot and ankle, was the evidence of Dr. Morris.

87The evidence of the appellant’s expert, Dr. Osborne, was not sufficient, and, in any event, for reasons the trial judge explained, he preferred the expert opinion evidence of the respondent’s expert, Dr. Morris.

88In the end, although the trial judge had concerns about the care that Ms. Smith had received when her foot was not further investigated while Dr. Kane was pursuing the potential of an abdominal tumour, he was not persuaded by the expert evidence that this amounted to a breach of the standard of care, which was a conclusion that was open to him on the evidence.

(2) Issue Two: Did the Trial Judge Err in Not Relying on “Ordinary Knowledge and Common Sense” to Find a Breach of the Standard of Care?

89The appellant submits that the trial judge erred in law in concluding that because he did not have specific evidence from Dr. Osborne, he could not find a breach of the standard of care. The appellant relies on ter Neuzen, in which the Supreme Court held that an exception exists to the well-established principle that expert evidence is required to find a breach of the standard of care in cases of professional negligence. The court held that where an impugned practice is “fraught with obvious risks”, and where the matter can be easily understood by an ordinary person with no medical expertise, it is open to the trier of fact to determine the applicable standard of care, which might not align with the standard practice in the profession: at paras. 41, 43, 51.

90In the appellant’s submission, expert evidence was not required to make a finding of negligence in this case since the issues at trial were not overly technical, but instead concerned basic functions of family doctors to make assessments and referrals. The appellant submits in her factum that “[a] family doctor’s failure to make any diagnosis at all for over 12 months is the type of behaviour that comes with such obvious risks that an ordinary person is capable of finding it negligent”. She asserts that where the court finds expert evidence is lacking, the trial judge must then consider whether he is able to infer on a common-sense basis, based on his ordinary knowledge and experience, that the conduct was negligent.

91The respondent points out that the appellant did not raise this argument at trial, including in opening submissions where trial counsel referenced expert evidence that would be called on the standard of care. Further, no objection was raised towards the end of trial, in response to the trial judge’s suggestion that findings of breach of the standard of care had to be made in respect of the expert evidence because “it can’t be [the trial judge] on the standard of care”. The respondent also submits that this is not a case where the ter Neuzen exception applies, given the complexity of the issues.

92This ground of appeal can be dealt with briefly.

93First, the fact that this argument was not raised at trial is fatal to its success in this appeal. Generally, this court will not entertain entirely new issues on appeal for fairness reasons: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Whitby (Town) v. G&G, 2020 ONCA 654, at para. 9. Moreover, having presented and argued the case at trial on the basis that the standard of care depended on expert evidence (which is the typical approach in medical malpractice cases), it is not open to the appellant, after the trial judge rejected her expert evidence, to say for the first time on appeal, that the trial judge did not need expert evidence to decide the standard of care issues in this case.

94Where the ter Neuzen exception is considered by an appellate court, typically the possible application of the exception was before the trial court and is not raised for the first time on appeal. (See, for example, Samms Estate v. Moolla, 2019 ONCA 220, an appeal from a jury verdict, where, although there was expert evidence on the standard of care of a family doctor, the parties agreed that the jury should be instructed in line with the ter Neuzen exception. The issue was whether the trial judge erred in his instruction. See also Nattrass v. Weber, 2010 ABCA 64, 316 D.L.R. (4th) 666, reversing 2008 ABQB 259, 444 A.R. 303, and McCann v. Hyndman, 2004 ABCA 191, 354 A.R. 35, affirming 2003 ABQB 693, 23 Alta. L.R. (4th) 113.)

95In any event, in this case the trial judge reasonably accepted that expert evidence on the standard of care was necessary, when he stated, at para. 58, that he could not “[venture] an opinion or [draw] a conclusion for which there is no supporting medical evidence”. Citing Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (S.C.), at para. 34, aff’d (1983), , 44 O.R. (2d) 264 (C.A.), he stated, “I am obliged to remind myself that I cannot ‘…speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards’”. The trial judge reasonably relied on such a proposition because he was of the view that the issues were sufficiently complex in this medical malpractice case that expert evidence was necessary.

96Indeed, it would have been an error in the circumstances for the trial judge to have inferred negligence by relying on his “common sense”. This case is similar to Rowlands v. Wright, 2009 ONCA 492, 250 O.A.C. 394 where, in allowing an appeal in a medical malpractice case where there were competing expert opinions on standard of care, this court observed: “[i]n the face of an apparently conflicting medical opinion as to what actions were required in the circumstances, it was not appropriate for the trial judge to assess the surgeon’s conduct based on common sense”: at para. 26. In this case, as in Rowlands, the exception in ter Neuzen had no application.

(3) Issue Three: Did the Trial Judge Err in Failing to Find a Breach of the Standard of Care in Dr. Kane’s Failure to Diagnose?

97Finally, the appellant submits that the trial judge’s standard of care decision was unreasonable because he “failed to consider the primary duty of a family doctor to diagnose”. She interprets the trial judge to have found as a fact that Dr. Kane failed to have a diagnosis at various points in Ms. Smith’s care. In her submission, it was an error, reviewable for correctness, for the trial judge not to conclude, on the basis of that finding, that Dr. Kane breached the standard of care.

98According to the appellant, a family doctor is obliged to make a referral where they cannot come to a diagnosis. The appellant relies on excerpts from Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Carswell, 2017), where the authors state the following, at p. 377:

Having undertaken the care of a patient, a doctor is under a duty to make a diagnosis, and to advise the patient of it. If the doctor cannot come to a diagnosis after a reasonable period of time, he or she has a duty to refer the patient to others who can.

In the discussion that follows, the authors cite examples of cases where physicians have been found to be negligent for failure to diagnose.

99The respondent submits that the trial judge considered the argument that Dr. Kane failed in her duty to diagnose, but rejected it based on the evidence in this case. Dr. Kane reiterates that the parties agreed that she was not expected to diagnose Charcot foot, specifically, and asserts that she did in fact have differential diagnoses at the relevant times. (For example, in January, as a result of the imaging evidence, Dr. Kane concluded that there was no bony issue and that the patient had swelling and a sprained ankle – this constituted a diagnosis.) Finally, she argues that there is no freestanding duty to diagnose that triers of fact must apply in each case without regard to the particular facts, and that it would have been an error for the trial judge to find a breach of a standard of care based on general principles drawn from prior medical malpractice cases.

100I would not give effect to this ground of appeal.

101First, I do not accept the appellant’s submission that the trial judge found that Dr. Kane failed to have a diagnosis at all relevant times. The appellant pitches the point too high in stating, “[The trial judge] makes findings confirming there was no diagnosis made”. On my reading of his reasons, the trial judge’s statements to this effect are qualified. For example, at para. 30, the trial judge refers to “the absence of a noted diagnosis” (emphasis added) in relation to the July 28 appointment; and, at para. 57, the trial judge states that “the right foot and ankle injury… was no closer to being diagnosed with certainty ” (emphasis added) in relation to the care of Ms. Smith by the end of August. The trial judge makes no explicit finding that Dr. Kane failed to have any diagnosis or differential diagnoses at these times.

102To the contrary, the trial judge appears to have recognized that there was some sort of diagnosis during the relevant time period. For example, at para. 13, he observed that Dr. Kane made a note in Ms. Smith’s patient file that there was “no fracture, some swelling in the tissue” in January 2008, and, at para. 14, he states, “the radiologist observed that there was no traumatic fracture to the right ankle, which diagnosis became the operative diagnosis throughout the balance of 2008 ”.

103Second, I agree with the respondent that it is unhelpful for the appellant to attempt to fit this case into other medical negligence decisions, where a breach of the standard of care was based on a failure to diagnose. As this court stated in Gent and Gent v. Wilson, [1956] O.R. 257 (C.A.), at p. 265, “[e]ach case must, of course, depend upon its own particular facts”. Alleging a breach of a standard of care “in the air” and without relating it to what occurred in a particular case does little to advance the analysis.

104Although this case was in general terms about the delay in diagnosing Ms. Smith’s condition of Charcot foot, it was agreed that the standard of care for a family doctor would not have required Dr. Kane to have diagnosed or even suspected this condition. The standard of care issue, in the context of the case, including the trial judge’s causation findings, was what steps Dr. Kane ought to have taken as part of the standard of care of a reasonable family physician, that would have assisted in the timely diagnosis of Charcot foot. While the alleged failure to diagnose was not itself a breach of the standard of care, it was relevant to the failure to refer and to repeat imaging. The argument at trial was that the referral to an orthopaedic specialist and repeat imaging were steps that Dr. Kane should have taken in circumstances where, in the summer and fall of 2008, she did not have a diagnosis for Ms. Smith’s ongoing pain and swelling in her foot. In other words, in the context of this case the failure to diagnose in itself could not have been a breach of the standard of care, in view of the concession that Dr. Kane could not reasonably have diagnosed Charcot foot, and the causation findings.

D. DISPOSITION

105For these reasons, I would dismiss the appeal. In accordance with the parties’ agreement on costs, I would award costs of the appeal in favour of the respondent in the all-inclusive amount of $24,000 plus HST, only if demanded.

Footnotes

1. 1Dr. Osborne was qualified to address the standard of care as it relates to a family physician practising in Ontario from 2007 to 2009, whereas Dr. Morris was qualified with respect to the years 2003-2009. However, nothing turns on this difference.
2. 2Calcaneal spurs (bony outgrowths on the heel bone) were identified in the April 2005 imaging following Ms. Smith’s first ankle injury.
3. 3The trial judge noted that the radiologist who interpreted the 2008 imaging observed that there was no traumatic fracture to the right ankle. Three of the causation experts at trial (two orthopaedic specialists and an expert in diabetic feet), on reviewing the imaging, were able to identify a “neuropathic fracture”, which is characterized by a progressive degeneration of a weight-bearing joint. The trial judge noted that such a diagnosis, which would have been a harbinger of Charcot foot, was not easily made – and that there was no criticism of the radiologist for not having identified this condition.
4. 4Although Dr. Kane testified about her diagnoses, she frequently did not include a diagnosis in her clinical notes.
5. 5The appellant’s counsel asserts that once Dr. Kane saw that there was a “partial tear”, this should have led to repeat imaging. However, no such evidence was given by Dr. Osborne, who rested her opinion about repeat imaging on the assumption that a fracture had not been ruled out.