Court File and Parties

Court File No.: CV-17-572998 Date: 2023-08-23 Ontario Superior Court of Justice

Between: The Estate of Helen Martindale, by her Litigation Administrator, Daryl Borneman, Plaintiff – and – Dr. Bharat Bahl, Bharat Bahl Medicine Professional Corporation, Dr. Benjamin King Bun Lee, Dr. Benjamin King Bun Lee Medicine Professional Corporation, Dr. Arthur Kwok-Kwong Chiu, Dr. A. Chiu Medicine Professional Corporation and Scarborough and Rouge Hospital, Defendants

Counsel: Naphtali Silverman and Justin Linden, for the Plaintiff Sam Rogers, Ljiljana Stanic and Hannah Young, for the Defendants

Heard: November 11-25, 2022 Carole J. Brown J.

Reasons for Decision

[1] The Estate of Helen Martindale, by her Litigation Administrator, Daryl Borneman, brings this medical malpractice action against the defendants, Dr. Benjamin King Bun Lee, Dr. Benjamin King Bun Lee Medicine Professional Corporation, Dr. Arthur Kwok-Kwong Chiu, and Dr. A. Chiu Medicine Professional Corporation. The plaintiff alleges negligence in their medical treatment of her during Emergency Room attendances at the Scarborough and Rouge Hospital (“Scarborough Hospital”) on November 21 and December 31, 2014.

[2] The action has been dismissed as against the balance of the named defendants.

[3] It is the position of the plaintiff that Dr. Lee failed to properly diagnose the plaintiff when she attended at the emergency room (“E.R.”) of the Scarborough Hospital on November 21, 2014, complaining of rectal pain and what she believed were hemorrhoids, and that he further failed to consider other diagnoses and follow up with referrals for imaging.

[4] It is the position of the plaintiff that Dr. Chiu failed to take appropriate steps to investigate the plaintiff’s alleged worsening condition, to requisition a CT scan or to arrange for appropriate follow-up when he saw her on December 31, 2014.

[5] It is the position of the plaintiff that the defendant physicians failed to requisition any imaging, failed to make any referrals, failed to provide discharge instructions, failed to take any steps to advance the diagnosis of the plaintiff, and thereby breached their respective standards of care.

[6] It is the position of the plaintiff that, as a result of the alleged failures of the defendants, which delayed the actual diagnosis of the plaintiff, she had, by April 8, 2015, developed a recto-vaginal fistula. After she attended the E.R. at St. Michael’s Hospital in Toronto, she underwent an ileostomy and, by April 27, following the ileostomy, she was diagnosed with anal cancer (squamous cell carcinoma).

[7] It is the position of the defendants that anal cancer, a rare form of cancer, is difficult and challenging to diagnose and often takes time to properly diagnose. They argue that the plaintiff is not able, on a balance of probabilities, to prove that a breach by one of the defendants caused a delay in the diagnosis and treatment of the plaintiff’s anal cancer which resulted in the need for an ileostomy. Nor can the plaintiff prove, on a balance of probabilities, that but for any alleged breach of the standard of care, the plaintiff’s cancer would have been diagnosed in time to avoid the need for an ileostomy.

[8] The defendants maintain that if one of the defendant physicians is found liable, Ms. Martindale should be held contributorily negligent for failing to follow up and seek medical attention when it was needed.

The Parties

[9] The basic facts in this case are not in dispute. The plaintiff was a 60-year-old woman. Her medical history included Type II diabetes, ankle and knee issues and sciatica. She had no family history of colorectal, anal or other gastro-intestinal cancer. She had smoked 5 to 10 cigarettes per day for over 20 years. She did not drink alcohol. She died on March 6, 2022, prior to trial, for reasons unrelated to the issues in this case.

[10] The defendant, Dr. Lee, is an emergency room physician with more than 40 years of experience. He attended medical school and graduated from the University of Toronto in 1979 and completed a mixed residency. He has worked at the Scarborough Hospital since 1984 and, at the material times, practised both in the emergency department at the hospital and as a family physician in an office-based practice.

[11] The defendant, Dr. Chiu, is a general surgeon with 30 years experience. He has practiced and has had privileges at Scarborough Hospital since 1995. In addition to his hospital-based practice, Dr. Chiu maintains an office-based practice across the street from the hospital where he sees patients in consultation to arrange for tests and investigations and make referrals. It is in his private office that he follows up on patients he has seen in the E.R. For those patients he sees in the E.R. who are discharged, he usually provides instructions to follow up in his office.

[12] The evidence indicates that Dr. Chiu is regularly asked to consult on patients in the E.R. He sees patients who complain of perianal pain approximately 5 to 10 times a month. He performs diversion and stoma procedures 5 to 10 times a year, generally on an urgent basis when patients come to the E.R. in a life-threatening condition.

The Facts

[13] The plaintiff attended at the Emergency Department of the Scarborough Hospital, a community hospital, on November 21, 2014, complaining of a seven-day history of perianal pain, which she described as a hemorrhoid flareup. She had a mild fever of 38 °C. and slightly elevated pulse of 108. Her blood pressure was 113/76. Otherwise, her vital signs were normal. She complained of rectal pain of 7 on a scale of 10. Upon admission, the triage note states: “WALKED INTO ER WITH C/O HEMORRHOID FLAREUP. C/O BURNING. STATES CANNOT TAKE THE PAIN ANYMORE. HAS TRIED SITZ BATHS AND PREPARATION H. SKIN WARM AND DRY TO TOUCH. NO URINARY SYMPTOMS. LAST BM – WAS TWO DAYS AGO. HARD.” She was seen in E.R. by the defendant, Dr. Benjamin Lee, who took a history, assessed her, and concluded that she was not septic and likely had a perianal abscess. He had previously reviewed her chart and testified that where the history that she gave him was consistent with what was already written in the chart, he did not repeat that information.

[14] He conducted a visual and a physical examination of the plaintiff’s rectal area, observed a lesion in the anal area, which he described as 4 cm in diameter. It was tender to the touch, skin coloured with some surface redness. He concluded that she likely had a perianal abscess, with some infectious process based on her slight fever, slightly increased heart rate and seven-day history. He performed an incision and drainage procedure. He froze the skin with a local anaesthetic, used a scalpel to cut into the abscess with three incisions to permit collected fluid to drain. The incision produced approximately 2 cm of fluid, some blood and some yellow fluid which Dr. Lee interpreted as indicative of an early infection. He discharged the plaintiff with follow-up home nursing wound care and with instructions to follow up with a primary care practitioner in 1 to 2 weeks, which he testified was his ordinary practice. This was not noted in the E.R. notes prepared by Dr. Lee, and the plaintiff denied that she was told to follow up with a physician. She did not follow up with a physician. With respect to follow-up for the plaintiff, Dr. Lee noted that she was on fentanyl, was awaiting a knee replacement, and had been diagnosed with sciatica, based on which he understood that she had access to medical care in the community, although she did not have a family physician.

[15] Pursuant to the instruction of Dr. Lee regarding follow-up, the plaintiff began receiving home nursing care on November 22, 2014, the day after her attendance at Scarborough Hospital. This home nursing care continued every 1-2 days through the end of December and consisted of changing the dressings, assessing the wound, providing continued oversight of the wound, and making recommendations as appropriate. Pursuant to the records for the home nursing care, the nurses, upon learning that the plaintiff did not have a family physician, provided her with contact information for Health Care Connect, a service which would help her to find a family doctor. There is no evidence to indicate whether or not she contacted Health Care Connect. During all material times, she never did have a family physician.

[16] On December 28, 2014, the plaintiff received a home visit by a family doctor, Dr. Sandra Feldman, who assessed her and concluded that she may have a prolapsed mucosa. Dr. Feldman recommended that she return to the E.R. to be examined. Dr. Feldman recorded her visit. The plaintiff did not attend at the E.R. until December 31, three days later. The plaintiff testified that she did not recall any visit from a doctor at her home.

[17] On December 31, the visiting wound care nurse recommended that the plaintiff attend at the E.R for surgical assessment and wrote a note to this effect, indicating that the plaintiff needed a surgical assessment and was suffering from ‘incontinence gas + stool”. On December 31, the plaintiff again attended at the Scarborough Hospital E.R., complaining of rectal pain of 3 on a scale of 10, which was less than on November 21, although she subjectively reported that it was worse. Her vital signs were normal. The triage note stated: “C/O RECTAL PAIN X 5WKS, SAW ER MD AND WAS TOLD HEMORRHOID, SAW ANOTHER DR. AND STS IS NOT A HEMORRHOID. PT C/O PAIN AND STATES GETTING WORSE, WITH A BIG LUMP. HX ABSCESS ON PERIANAL AREA, WOUND STILL DRAINING BUT NO PACKING ANYMORE, SAW WOUND CLINIC NURSE TODAY AND SENT TO ER WITH NOTE.”

[18] She was attended by an E.R. physician, Dr. Bharat Bahl, who took her history. The plaintiff reported that she was “unable to control stool,” occasionally had blood, and “pain intermittently.” Dr. Bahl performed a physical examination, including a digital rectal examination (“DRE”), and did not feel an abscess. He concluded that there was a potential prolapsed mucosa, which was described as skin coloured on the proximal aspect and red on the distal aspect of the prolapse. He attempted to reduce the prolapse by pushing it back in but was unable to do so. He requested that a general surgeon, the defendant Dr. Arthur Chiu, attend at E.R. to consult with the plaintiff.

[19] Dr. Chiu attended at E.R. very shortly thereafter. Dr. Bahl briefed Dr. Chiu on his assessment and the plaintiff’s history and advised that he was concerned about a rectal prolapse. Dr. Chiu then took a history from the plaintiff. She advised Dr. Chiu that following the incision made by Dr. Lee, she developed constipation and had to strain herself significantly to have a bowel movement. She stated that she developed hemorrhoids and used Preparation H which seemed to have resolved the issue. However, the hemorrhoids returned and became more pronounced. She would have to strain and caused the mucosa to come out of the perianal area.

[20] Dr. Chiu then performed a top to bottom physical examination including a focused examination of the perianal area and performed a DRE. The physical examination included checking her head and neck and performing a chest examination, a cardiovascular examination, and an abdominal examination, all of which were normal. Based on the perianal examination, he concluded that the plaintiff had a prolapsed mucosa as well as a hardened area where Dr. Lee had performed the incision and drainage procedure. He recommended sitz baths, stool softener, and laxatives. Further, he requested that the plaintiff follow up in his office in 1 to 2 weeks if symptoms did not improve, and in 2 weeks in any event, and to return to the E.R if certain symptoms worsened. The plaintiff denies that he told her this. She further denies that they spoke at all. Dr. Chiu testified that this was his usual practice, and these instructions were reflected in his notes, which was dictated about 2 ½ hours later. Until that time, he had been occupied with on-call E.R. duties and surgical demands. He testified that he and the nurses would have given the plaintiff his contact information. Further, his usual practice was to take a list of those patients he had seen in the emergency room to his office and have his office staff call them to make follow-up appointments. He no longer had these lists eight years later at the time the action was commenced.

[21] The plaintiff did not follow up with Dr. Chiu in two weeks as instructed. She continued to receive home nursing care. However, on January 15, 2015, she was called by the home nursing care service and asked to attend at their clinic to have her wound re-assessed, and she declined to do so. As a result, she was discharged from home nursing care on that day. The plaintiff did not seek any further medical attention until April 8, 2015, over three months later.

[22] On April 8, 2015, the plaintiff attended at St. Michael’s Hospital E.R., a tertiary hospital, with complaints of passing stool through her vagina. She had apparently, according to medical records, become constipated again and strained herself. Following that, she began to pass stool through her vagina. She attempted to treat this on her own for more than a week, prior to attending at hospital. Later medical records suggest that she experienced an onset of discharging stool through the vagina on March 22, 2015.

[23] After examination by the E.R. physician and surgical resident, who found evidence of previous infection with expressed pus, a diagnostic impression of the rectal abscess and recto-vaginal fistula was made. The surgical consultation noted that malignancy could not be ruled out and recommended an examination under anaesthesia and a biopsy.

[24] She was admitted to hospital from April 8-12, 2015, and investigations commenced. She was referred to a colorectal surgeon for investigation and to rule out malignancy. She was diagnosed with a recto-vaginal fistula, and an ileostomy was performed on April 17, 2015.

[25] According to the plaintiff’s expert, Dr. Vasilevsky, the ileostomy was recommended due to the recto-vaginal fistula. The report of Dr. Burnstein, the colorectal surgeon at St. Michael’s Hospital, indicated that the ileostomy was recommended to divert the stool away from the vagina and to allow the plaintiff to undergo treatment for the tumor in symptomatic comfort.

[26] The pathology report of April 27, 2015 noted findings suspicious for invasive squamous cell carcinoma, but with no determinative finding at that time. She was discharged on April 29, 2015 with instructions to follow up in 3 to 4 weeks for the ileostomy and to follow up with the colorectal surgeon. She attended again at St. Michael’s E.R. on April 30, 2015 with abdominal pain and was assessed and discharged home without any change in her follow-up plan.

[27] On May 11, 2015, over one month after her first attendance at St. Michael’s E.R., the plaintiff returned to St. Michael’s on the instruction of the home nursing staff with complaints of worsening pain. On May 12, 2015, she was diagnosed with anal cancer, after examinations under anaesthesia, biopsy, three CT examinations, and consultations with several general surgeons and a colorectal surgeon. A CT scan of her abdomen and pelvis performed on May 12, 2015 showed a large necrotic mass on her lower rectum that had increased in size. On May 15, 2015, she was referred to Princess Margaret Hospital (“PMH”) for chemotherapy and radiation and was first seen in consultation at PMH on May 22, 2015. On May 28, 2015, an MRI was done that showed a large necrotic mass extending from the lower rectum to the vagina. A biopsy completed on May 29, 2015, almost 2 months after her first attendance at St. Michael’s E.R., confirmed a basaloid squamous cell carcinoma.

[28] On June 9, 2015, the plaintiff was admitted to PMH for anal cancer treatment which continued through August 7, 2015.

[29] Thus, after four attendances by the plaintiff to the emergency room, three admissions, three CTs examinations, two surgeries, a biopsy, and a consultation with the colorectal surgeon, diagnosis of anal cancer was ultimately made and confirmed almost 2 months later. This was, of course, after the plaintiff attended St. Michael’s E.R. complaining of passing stool through her vagina, such that investigation for that condition was immediately commenced.

The Evidence of the Parties and Credibility

[30] I do not intend to recount at this juncture all of the evidence of each party, which was contained in each party’s transcript of evidence or examination for discovery transcripts in the case of the plaintiff. The relevant evidence of each party has been included in this Decision in the appropriate and relevant passages throughout my analysis.

[31] I will nevertheless give my assessment of the credibility and/or reliability of each party below.

Helen Martindale

[32] The plaintiff died prior to the trial. As a result, it was agreed among the parties that her evidence on examination for discovery would be read into the record. She had testified on examination for discovery approximately four years after the events which occurred in this action. She was unable to recall the details of the attendances at the Scarborough Hospital E.R. and was not able to remember the defendant doctors, although Dr. Bahl performed an invasive DRE, as did Dr Chiu. Further, she did not recall Dr. Chiu speaking with her, although he took a personal history and did a DRE, as indicated in the medical records. She did not remember Dr. Feldman, the visiting doctor who had attended at her home and did a perianal exam and did not remember that a visiting doctor had come to her home.

[33] Her poor memory was not overly surprising, given all the medical practitioners she saw in various hospitals over the years that she was undergoing treatment, but this did make her testimony unreliable.

[34] I find that her evidence was not consistent with the medical notes and records and that her memory of the events in issue was unreliable. Where her evidence differs from that of the defendant doctors and the medical records, I prefer the latter unless stated otherwise.

Dr. Lee

[35] Dr. Lee’s evidence was straightforward and forthright. He acknowledged the gaps that existed in his memory or in his medical records without attempting to make excuses or obfuscate. His evidence was consistent throughout. There were no contradictions in his evidence in examination in chief and cross-examination. I found his evidence to be credible and reliable.

Dr. Chiu

[36] Dr. Chiu provided his evidence in a forthright and candid manner. There were no contradictions or inconsistencies in his evidence. I found his evidence to be reliable and credible.

[37] As regards the experts themselves, I will make any comments related to their testimony in the context of my analysis.

Issue

[38] The parties have agreed that the plaintiff must prove a breach of the standard of care by a defendant physician and that such breach caused a delay in the diagnosis and treatment of the plaintiff’s cancer, resulting in the need for an ileostomy. In other words, it must be proven, on a balance of probabilities, that the breach of the standard of care by one of the defendants, assessed individually, caused the plaintiff to require an ileostomy.

The Law

The Framework for Assessing Medical Malpractice Cases

[39] To succeed in a medical negligence action, the plaintiff bears the onus of proving, on a balance of probabilities, that the following four elements are present: i) the physician owed the plaintiff a duty of care; ii) the physician breached the applicable standard of care established by law; iii) the plaintiff suffered an injury or loss; and iv) the physician’s failure to comply with the applicable standard of care was the actual and legal cause of the plaintiff’s loss or injury. The test is sequential, and it must be determined by the court whether the plaintiff has proven each of the four elements in the order in which they are set forth in the test. If the plaintiff fails to prove one of the elements, in the order in which a court examines them, then the plaintiff’s action fails, obviating the need for the court to proceed on with a determination on the remaining elements: Grivicic v. Alberta Health Services (Tom Baker Cancer Centre), 2015 ABQB 811, 26 C.C.L.T. (4th) 110, at paras. 14 and 15, aff’d 2017 ABCA 246, 55 Alta. L.R. (6th) 281.

Standard of Care

[40] The standard of care owed by a physician to a patient, as defined by the Supreme Court of Canada is as follows:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in the field. The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability: ter Neuzen v. Korn, 1995 SCC 72, [1995] 3 S.C.R. 674, at para. 46.

[41] “It is the duty of a specialist, who holds himself out as possessing special skill and knowledge, to exercise the degree of skill of an average specialist in his field”: Wilson v. Swanson, 1956 SCC 1, [1956] S.C.R. 804, at p. 817; Gent v. Wilson, 1956 ONCA 128, [1956] O.R. 257, at para. 13.

[42] The standard against which a specialist’s conduct is measured is what a reasonable specialist would have done in the circumstances. A range of conduct, falling within the scope of what a reasonable specialist would have done, will satisfy the standard. If a defendant’s conduct falls within the range of what a reasonable specialist would have done in the circumstances, the defendant is not liable: DD v. Wong Estate, 2019 ABQB 171, 84 Alta. L.R. (6th) 238, at para. 200.

[43] Where competing standards are presented, the evidence must be weighed, and a determination made of the applicable standard of care. Ultimately, the applicable standard of care is determined by the trier of fact having regard to all of the expert testimony: Crawford (Litigation Guardian of) v. Penney, [2003] O.T.C. 16 (S.C.), at para. 248, aff’d 2004 ONCA 22314, 26 C.C.L.T. (3d) 246 (C.A.).

[44] A physician is not absolved of liability merely by advancing proof of one reputable school of thought in the medical community at the time of the incident. In that regard, the Court of Appeal for Ontario has stated:

The courts have recognized that the respectable minority principle does not absolve a doctor from liability and negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor’s conduct: see Kangas v. Parker and Asquith, 1976 SKQB 935, [1976] 5 WWR 25 (Sask. Q.B.) at pp. 38-39, aff’d 1978 SKCA 1814, [1978] 5 WWR 667 (Sask. CA.), Cope v. Layden [1984] A.J. No. 175 (C.A.); Kehler v. Myles, 1988 ABCA 350, [1988], 64 Alta L R. (2d) 97 (C.A.) at p. 106; leave to appeal to SCC refused (1989) 95 A.R. 236; Alakoozi v. Hospital for Sick Children (2004), 2004 ONCA 8394, 187 OAC 187 (C.A.) at paras. 5-7. As Picard and Robertson point out in Legal Liability of Doctors and Hospitals in Canada at p. 364, “were it otherwise, nearly every medical negligence case would be resolved in favour of the doctor, because they almost always involve a conflict of expert evidence.”

See Cleveland (Litigation Guardian of) v. Hamilton Health Sciences Corp., 2011 ONCA 244, 277 O.A.C. 178, at para. 51.

[45] Every medical practitioner must bring to the task a reasonable degree of skill and care of a normal prudent practitioner of the same experience: Gent v. Wilson, at para. 13. To succeed in an action for medical negligence, a plaintiff must prove, on a balance of probabilities, that the defendant breached the standard of care of a reasonable and prudent physician of the same experience and standing, having regard to all the circumstances of the case: Crits v. Sylvester et al, 1956 ONCA 34, [1956] O.R. 132 (C.A.), at paras. 13-14, aff’d 1956 SCC 29, [1956] S.C.R. 991.

[46] In assessing whether the standard of care has been met or breached, a finding of negligence cannot be based merely on the consequences of medical treatment to a patient: Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545, at para. 80. The case cannot be viewed from the more enlightened perspective of hindsight but must be judged from the perspective of the knowledge of the physician at the time of treatment: Brics v. Stroz, [2002] O.J. No. 1089 (S.C.), at para. 72. The analysis must be prospective, not retrospective.

[47] A physician’s usual practice is good evidence as to what likely happened if a contemporaneous record is not available or not complete: Turkington v. Lai, 2007 ONSC 48993, 52 C.C.L.T. (3d) 254, at para. 93.

[48] The standard of care does not require that a physician order every available test: Watson v. Soon, 2018 ONSC 3809, 50 C.C.L.T. (4th) 83, at para. 28. A physician is only required to order all usual tests: Wade v. Nayernouri (1978), 2 L.Med. Q. 67 (Ont. H.C), at p. 70.

Clinical Judgment

[49] A physician’s honest and intelligent exercise of judgment will satisfy the standard of care. The Ontario Court of Appeal has clarified that the standard of care expected of the medical profession must be realistic and reasonable. A physician is not the insurer of a patient’s health and well-being: Tacknyk v. Lake of the Woods Clinic, [1982] O.J. No. 170 (C.A.), at para. 29; Hacopian-Armen Estate v. Mahmoud, 2020 ONSC 4946, at para. 106.

[50] There is a clear distinction in the law between the exercise of clinical judgment and negligence. It is well-established that medical professionals cannot be held liable for exercising clinical judgment. However, a physician’s basis for exercising judgment must be properly founded and is subject to scrutiny. The court can examine the grounds upon which the judgment is exercised: Penney; Williams (Litigation Guardian of) v. Bowler, 2005 ONSC 27526, [2005] O.T.C. 680 (S.C.), at para. 232. The exercise of clinical judgment must be based on a physician’s consideration of appropriate factors and proper weight must be given by the physician to those factors: see Williams, at paras. 238 and 248.

[51] Whether a physician was negligent or simply made an error in judgment is determined on a case-by-case basis having regard to the particular facts of the case: Dean v. York County Hospital et.al., [1979] O.J. No. 348 (S.C.), at para. 42, cited with approval in Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.), at para. 28, aff’d 2010 ONCA 188, 260 O.A.C. 70 (C.A.).

[52] Proof of the standard of care requires determination of the following questions:

1. Whether Dr. Lee fell below the standard of care applicable to a community-based emergency medicine physician practising in Ontario in 2014 in his care and treatment of the plaintiff on November 21, 2014; and
2. Whether Dr. Chiu fell below the standard of care applicable to a community-based general surgeon practising in Ontario in 2014 in his care and treatment of the plaintiff on December 31, 2014.

[53] If either of the above-named defendants is found to have fallen below the standard of care, it must be determined whether, but for that breach, the plaintiff would have avoided an ileostomy.

[54] As regards the plaintiff proving on a balance of probabilities that the defendant breached the standard of care, the Supreme Court of Canada cautioned that the onus of proof is not affected by sympathetic circumstances. The Supreme Court stated as follows:

Guided by sympathy alone, my task here would have been much easier. As a judge, however, I must uphold the law and sympathy is a poor guide in such matters. Justice according to law is the only guide and justice must work for both parties engaged in litigation, plaintiffs as well as defendants.

See Lapointe v. Hopital le Gardeur, 1992 SCC 119, [1992] 1 S.C.R. 351, at p. 380.

Did Dr. Lee Meet the Standard of Care in His Treatment of the Plaintiff?

[55] A determination of whether Dr. Lee breached the standard of care requires that the plaintiff prove on the basis of expert evidence and on a balance of probabilities that Dr. Lee failed to exercise the degree of skill and care expected of a normal prudent emergency department physician practising in Ontario in 2014.

[56] The assessment of the standard of care must be based on expert evidence from an expert in the same circumstances as the defendant at the material time.

[57] In a medical malpractice action, the experts must speak on the standard that is “ordinarily possessed by practitioners in similar communities in similar cases”: Wilson, at p. 817. The assessment of standard of care of a physician should be done “through the eyes of a physician of the same background and training”: Anderson v. Nowaczynski, [1999] O.J. No. 4485, at para. 207.

[58] An expert’s evidence carries less weight where the expert does not have experience within the same care setting, such as when the expert has practised at academic, tertiary care centres rather than community hospitals: Stepita v. Dibble, 2020 ONSC 3041, at paras. 22-23; see also Bogdan v. Folman, 2013 ONSC 22, at para. 66.

[59] Two experts, Dr. Simon Kingsley on behalf of the plaintiff and Dr. Ronald McMillan on behalf of the defendant, testified at trial. Dr. Kingsley had approximately 20 years experience at the material time. He worked as a staff emergency department physician at St. Michael’s from 1999 and served as Chief of the Department of Emergency Medicine on various occasions. St. Michael’s is a tertiary care centre and academic teaching hospital in downtown Toronto with one of the largest patient volumes in the city and has a roster of 40 emergency physicians. Dr. Kingsley teaches residents and clinical fellows at St. Michael’s. He has no experience in the assessment of clinical emergency medicine outside of that context. He is qualified to practice as an emergency medicine physician by the College of Family Physicians.

[60] Dr. McMillan has practised emergency medicine since 1988 and has nearly 35 years of experience. During the relevant period, Dr. McMillan practised emergency medicine at the Etobicoke and Brampton sites of William Osler Hospital, community hospitals which at the time had similar resources, patient volumes, and patient acuity as the Scarborough Hospital. Dr. McMillan is qualified as a specialist in emergency medicine by the Royal College of Physicians and Surgeons. Dr. McMillan is also involved in numerous academic and professional roles, including involvement in the assessment of emergency medicine physicians. Since 2005, he has been a clinical assessor of emergency medicine at the College of Physicians and Surgeons of Ontario (“CPSO”) through the Quality Assurance Committee, which involves the assessment of emergency physicians in regard to standard of care in various hospital settings from rural hospitals to small community hospitals, to large urban community hospitals, to university teaching departments. Further, Dr. McMillan has served as the emergency medicine representative of the Assessor Advisory Committee of the CPSO, developing and designing quality assurance standards of practice criteria for the practice of emergency medicine. Further, he has served as an emergency medicine expert advisor to the Quality Assurance Committee at the CPSO since 2012, which involves reviewing physician emergency practices and giving an opinion with regard to standard of care.

[61] Further, Dr. McMillan has been actively involved in the clinical training of medical students for many years. Since 1990, he has done clinical teaching in emergency medicine for both the University of Toronto and McMaster University at the undergraduate and postgraduate levels. In this role, Dr. McMillan trains undergraduate students and emergency medicine residents and ensures that they learn to practice emergency medicine safely. He has also been a preceptor/supervisor at the Royal College of Physicians and Surgeons in emergency medicine since 2005.

[62] Based on the foregoing, I am of the view that Dr. McMillan’s background, experience and training are more similar to that of Dr. Lee than the background experience of Dr. Kingsley. Dr. McMillan’s experience was closer to and within the same care setting as that of Dr. Lee. He practised in a community hospital setting, as opposed to a tertiary, academic setting. Further, his experience in assessing emergency medicine physicians for the Quality Assurance Committee of the CPSO has exposed him to the standard of care in various hospital settings, both small community hospitals and large teaching settings. It is my view that Dr. McMillan’s expert evidence is generally more reflective of the standard of care of an emergency room physician in a community hospital in 2014.

[63] The plaintiff alleges that Dr. McMillan’s evidence was biased and should be disregarded. The plaintiff argues that Dr. McMillan failed to reference the plaintiff’s discovery evidence in his report and failed to indicate that there were factual discrepancies between the evidence of the plaintiff and that of Dr. Lee. I have carefully reviewed the transcripts of evidence, including the transcripts of Dr. McMillan, and do not find his evidence to be biased in favour of the defendants. I do not find that he failed to acknowledge or consider the evidence of the plaintiff. I accept his evidence that he read and considered the plaintiff’s evidence although he did not reference it in his report. I do, however, find some of the plaintiff’s Written Submissions do not accurately state Dr. McMillan’s testimony.

[64] I am satisfied, based on all the expert evidence, as well as the medical records and testimony of the witnesses before this Court, that Dr. Lee met the standard of care. He undertook an appropriate and reasonable assessment of the plaintiff and the complaint with which she presented. Following that assessment, he formulated a reasonable working diagnosis based on the subjective and objective clinical evidence, namely a perianal abscess. He proceeded with an incision and drainage procedure. This resulted in the drainage of some blood and yellow fluid which was consistent with the working diagnosis of an abscess. Based on what he found on the incision and drainage, including the small amount of fluid, he diagnosed the situation as the very early stages of an infection in a perianal abscess. This was consistent with the plaintiff’s presentation at the E.R. with a low-grade fever and slightly elevated heart rate. While the plaintiff alleged that the amount of fluid released was so minimal that he should have re-diagnosed the situation, Dr. Lee testified that the amount of fluid was consistent with his diagnosis of the early stages of an infection. He arranged for follow-up home nursing care for the plaintiff in order that the wound would be packed, treated, and looked after, which according to the medical records, commenced on the day after the incision and drainage. I am further satisfied based on his testimony regarding his general practice that he advised her to follow up with a medical practitioner in two weeks.

[65] Based on the transcripts, it is of note that Dr. Kingsley, in his evidence, did not address the possibility of the absence of pus being indicative of the stage of the infection, namely an early infection or abscess.

[66] I do not accept the allegations of the plaintiff that Dr. Lee fell below the standard of care by not considering other possible diagnoses beyond perianal abscess. As stated above, I find that his diagnosis and assessment were reasonable. They were consistent with the symptoms with which the plaintiff presented and the visual assessment that he did, and the results of his incisions of the abscess were also consistent with his assessment of an early infection.

[67] The plaintiff alleges that the defendants were negligent in failing to propound a proper differential diagnosis, and therefore did not properly diagnose the condition with which the plaintiff presented at Scarborough Hospital on November 21 and December 31, 2014. The plaintiff, in closing submissions, referred to the case of Williams, in which the judge found that the medical practitioner had failed to consider a leaking aneurysm among the possible explanations for her condition in time to avert a subsequent rupture. The court stated that “in dealing with a potentially life-threatening condition, a higher standard is imposed on the physician to take appropriate care in diagnosing and treating the patient.” Where a potentially life-threatening condition is included in a differential diagnosis, there is a duty on the physician to take prompt steps to confirm or rule it out with reasonable dispatch: Bergen v. Sturgeon General Hospital et al (1984), 52 A.R. 161 (Q.B.).

[68] The plaintiff also relied on Boyd v. Edington, 2014 ONSC 1130, in which the court, in commenting on the standard of care surrounding a differential diagnosis stated that “a key feature of differential diagnosis is the importance of eliminating the most serious possibility first, rather than the most probable… If doctors were to diagnose based on probability, rare and severe ailments would regularly be ignored in favour of common, non-life-threatening alternatives. When faced with symptoms that point to two or more diseases, the universally accepted system to use is a differential diagnosis that accounts for severity.”

[69] While the plaintiff alleges that “a key feature of differential diagnoses is the importance of eliminating the most serious possibility first, rather than the most probable” (Boyd, at para. 12), Dr. McMillan explained on cross-examination that there was no reason to formulate a differential diagnosis or consider alternate diagnoses where a patient presents with specific complaints. Rather, a differential diagnosis is appropriate in cases of non-specific complaints. A differential diagnosis is appropriate if a patient presents with non-specific complaints where there is no clear diagnosis and then possible conditions are listed. But that differential diagnosis is formulated only after the physician/emergency physician undertakes a history and clinical examination, formulates the differential and then undertakes certain investigations to rule out or rule in those conditions and then comes up with a provisional diagnosis. So not in every case is a differential diagnosis required nor is it the standard. In conducting a clinical assessment, the patient’s clinical presentation has to be considered. The focus of the clinical assessment is to determine whether or not the patient presented with a condition, the likelihood of which would have serious consequences.

[70] I do not accept the evidence of Dr. Kingsley that in all cases in which a new patient is assessed in the E.R., a differential diagnosis of potential illnesses and diseases that could cause the chief complaint must be made, and that the diseases on the list must all be investigated and accepted or ruled out. It was the opinion of Dr. McMillan that such a differential diagnosis would be made in situations where the symptoms could overlap with many different potential diseases.

[71] It is of note that in this case, the plaintiff presented with specific complaints, which appeared from her descriptions and from the clinical assessment to be borne out, such that there was no reason to formulate a differential diagnosis or consider alternate diagnoses. A differential diagnosis would have been appropriate had the complaints been non-specific and potentially attributable to a number of different potential conditions.

[72] Further, based on the plaintiff’s complaint, there was no life-threatening condition that presented itself.

[73] As regards the plaintiff’s allegations that Dr. Lee failed to formulate a differential diagnosis or consider alternate diagnoses, I accept the evidence of Dr. McMillan that where a patient presents with specific complaints, as did the plaintiff, with her specific complaint of rectal/perianal pain and hemorrhoid flareup, it is appropriate to take a focused history and clinical examination, as was done by Dr. Lee. Moreover, Dr. Lee testified that the results of his incisions and drainage were consistent with the early beginnings of an infection, which had been his working diagnosis.

[74] Dr. McMillan further explained that there was no requirement to rule out all possible serious conditions in the emergency department, but that the necessity of doing so would be based on the patient’s clinical presentation. It is the focus of the clinical assessment to determine whether or not the likelihood of having a serious condition is high, in which case the physician would proceed with investigations for a more serious condition.

[75] The law does not require physicians to be held to a standard of practice that requires that they must always anticipate the worst but most unlikely scenario: Lee v. Southlake Regional Health Centre, 2015 ONSC 7509, para. 5. A physician is not expected to be infallible and is not required by law to order every available test: Watson, at para. 28; see also Cardy v. Trapp, [2008] O.J. No. 4547, at para. 37.

[76] I am satisfied, from Dr. Lee’s evidence, that he did give appropriate consideration to clinical findings in making the provisional diagnosis of perianal abscess. I accept Dr. McMillan’s opinion that Dr. Lee thereby met the standard of care in discharging his obligations regarding diagnosis.

Did Dr. Lee Fall Below the Standard of Care in Not Ordering an Ultrasound?

[77] I do not accept the allegations of Dr. Kingsley that Dr. Lee fell below the standard of care by not ordering an ultrasound. Dr. Lee testified that he does not perform an ultrasound for abscesses as a clinical assessment decision, as this does not provide additional information which would be of assistance to him. He further testified that he is an instructor of ultrasound for emergency medicine residents and does not teach the use of ultrasound for perianal abscesses to determine whether the drainage is complete. Further, this technique is not in the literature and is not an evidence-based practice. The evidence indicated that in a community hospital, the emergency room doctor is only able to order an ultrasound from his own offices, not from the hospital, in the absence of a life-threatening emergency.

[78] In the circumstances with which the plaintiff presented, there was no life-threatening emergency.

Did Dr. Lee Fall Below the Standard of Care in Failing to Conduct a DRE?

[79] The plaintiff further alleged that Dr. Lee fell below the standard of care by failing to conduct a DRE. However, Dr. Lee explained in testimony that the visual assessment had revealed a perianal abscess and that he did not believe a DRE was necessary at that juncture. It is of note that the two DREs conducted one month later by other physicians did not discover the plaintiff’s anal cancer or even a mass. Further, he stated that a DRE would have been unnecessarily painful for the plaintiff as she was already in pain, and he wanted to spare her that additional pain. Dr. Kingsley conceded that whether a DRE was required depended on the initial assessment and that Dr. Lee was in a better position to assess the plaintiff than he was because Dr. Lee directly interacted with her. Dr. McMillan testified that performing a DRE is a clinical judgment made by the physician and that it was reasonable for Dr. Lee not to have performed one given the plaintiff’s presentation and the provisional working diagnosis of perianal abscess. I accept Dr. McMillan’s opinion. I do not find that Dr. Lee’s decision not to perform a DRE was a breach of the standard of care. A concession by the opposing side’s expert that a decision should be left to the judgement of the physician treating the patient is significant: see e.g. Leckie v. Chaiton, 2021 ONSC 7770, at para. 101.

Did Dr. Lee Fall Below the Standard of Care by Failing to Have a Sufficient Discharge Plan?

[80] Finally, the plaintiff alleges that Dr. Lee fell below the standard of care as he did not have a sufficient plan on discharge. I am of the view that his discharge plan was reasonable and satisfactory. As previously indicated, I accept the fact that, while he did not indicate this in his discharge notes, he had indicated to the plaintiff to follow up with a primary care practitioner within two weeks, which she did not do. The jurisprudence establishes that a physician’s usual practice is good evidence of what likely happened if a contemporaneous record is not available or not complete: Turkington, at para. 93. While the evidence indicates that she did not have a family doctor, Dr. Lee knew from her medical history that she was taking fentanyl, was awaiting a knee replacement, had diabetes and likely had medical practitioners to whom she could turn. Further, he arranged for home visiting nursing to attend to her wound care and follow her progress, which did occur, and which strongly suggests that he followed his normal practice regarding providing follow up instructions. I am of the view that this was satisfactory based on all of the expert evidence. I do not accept the statement of Dr. Kingsley that if something was not written down it did not happen. The fact that an action is not charted or not fully charted, does not mean that it was not done: Power v. Carroll, 2007 ONCA 232, at paras. 57, 68, and 69. The inference that care not documented was not provided “may only be drawn if supported after a careful weighing of all the evidence.” In this case, I am not able to draw such an inference after careful consideration of all of the evidence. While the plaintiff denied that she was told by Dr. Lee to follow up with the medical practitioner in two weeks, I have found that her testimony was not reliable given her numerous lapses of memory (see credibility section).

[81] I note that Dr. Kingsley did not testify as to what Dr. Lee’s follow-up plan should have included, specifically. Also Dr. Kingsley did not receive or review the home nursing chart prior to preparing his report or giving evidence at trial. Despite this, he opined that home nursing care had nothing to do with follow-up.

[82] In contrast, Dr. McMillan testified that it was common practice for E.R. physicians, particularly in cases of perianal abscess, to order home nursing care as follow-up to assess the wound and its healing over time.

[83] I accept the evidence of Dr. McMillan and his opinion that the follow-up plan propounded by Dr. Lee met the standard of care.

[84] I do not accept the arguments of the plaintiff that due to a lack of imaging requisitioned by the defendants, there was an evidentiary gap in regard to establishing with certainty that the plaintiff would not have required an ileostomy if she was diagnosed earlier. Nor do I accept that the defendants are able to shield themselves from liability due to their own negligence in failing to requisition imaging. Again, I do not find, based on all of the evidence, that the condition with which the plaintiff presented at the E.R. on either November 21 or December 31, 2014 called for or necessitated imaging at the time. I accept the evidence of the defendants and their experts in that regard.

[85] I note that the plaintiff alleges certain factual assumptions as regards the defendants’ assessment of the plaintiff which are not borne out by the evidence. Among these is the fact that the plaintiff, in closing submissions, refers more than once to the plaintiff presenting with worsening pain and a worsening condition on December 31. However, the medical records and triage notes indicate that she presented on December 31 reporting pain of 3 on a scale of 10, which was lower than the pain with which she presented on November 21, which she reported to be 7 out of 10. Further, the plaintiff states that Dr. Lee did not anticipate finding pus when he did the incision and drainage. In fact, Dr. Lee stated that he did the incision and drainage because he anticipated finding pus. However, when he did not find pus, but rather found blood and yellow fluid, he modified his assessment. He indicated that the findings were consistent with the complaints with which the plaintiff presented at the E.R., namely a low-grade fever, which suggested that this was simply the beginning of an infection in the location of the abscess and was consistent with his diagnosis of perianal abscess. He thereafter requisitioned home wound care for the next month.

[86] Based on all of the above, I find that Dr. Lee met the standard of care of an emergency physician practising in Ontario in 2014.

Did Dr. Chiu Meet the Standard of Care in his Treatment of the Plaintiff?

[87] To establish a breach of the standard of care as regards Dr. Chiu, the plaintiff must prove on the basis of expert evidence and on a balance of probabilities that Dr. Chiu failed to exercise the degree of skill and care expected of a normal, prudent general surgeon practising in Ontario in 2014.

[88] The applicable standard of care is of a reasonable physician, practising in similar communities in similar circumstances. Where the expert does not have experience within the same geographical and care setting, their evidence carries less weight: Stepita, at paras. 22-23; see also Bogdan, at para. 66.

[89] Where an expert specialist opines about the standard of care of a physician who does not share the expert’s specialty, that opinion, where critical of the care provided by the physician, may be accorded little weight as the said opinion or criticism would be coloured by the expert’s specialty: Williams, at para. 219.

[90] In this case, two experts were qualified to opine on the standard of care of a general surgeon: Dr. Carol-Ann Vasilevsky for the plaintiff and Dr. John Hagan for the defendant.

[91] Dr. Vasilevsky practised her entire professional career as a colorectal surgeon at the Jewish General Hospital in Montréal, Québec, a tertiary care hospital affiliated with McGill University. She is a respected expert in her specialty of colorectal surgery.

[92] Dr. Hagan was a general surgeon, practising for more than 35 years in a community hospital setting similar to that of Scarborough Hospital. For approximately two decades, he practised at Humber River Hospital, where he served for 11 years as Division Head of General Surgery, 7 years as Chief of Surgery, and 2 years as Chief of Staff. Neither Humber River nor Scarborough Hospitals had a colorectal surgeon on staff in 2014, and any assessment for an ileostomy in the case of an anal cancer patient would have been performed by a general surgeon.

[93] Dr. Vasilevsky testified on cross-examination that she has not practised at a hospital without a colorectal surgeon in the last 30 years. She acknowledged that she was not familiar with the processes and procedures in Ontario regarding inter-hospital transfers or referrals out to other centres. She further acknowledged, in cross-examination, that Dr. Hagan’s experience at Humber River Hospital would be more similar to that of Dr. Chiu’s at Scarborough than her experience and that when considering what is within the scope of practice of a general surgeon at a hospital like Scarborough Hospital, Dr. Hagan would be in a better position to know.

[94] Based on the foregoing, it would appear that Dr. Hagan would be in a better position to opine on the standard of care of Dr. Chiu, in the specific setting in which he practised.

[95] As with Dr. McMillan, the plaintiff alleged that Dr. Hagan was biased in his opinion and failed to consider or reference the testimony of the plaintiff. Again, having reviewed the transcripts and evidence, including Dr. Chiu’s contemporaneously dictated consultation note, I do not find that Dr. Hagan was biased, or slanted against the plaintiff in his opinion, nor that he ignored the evidence of the plaintiff.

[96] The allegations of breach of the standard of care as against Dr. Chiu include that he did not provide the plaintiff with the CT requisition; that he did not have an appropriate plan for follow-up; and that he did not contribute to finding a diagnosis. It is of note, however, that Dr. Vasilevsky conceded in cross-examination that Dr. Chiu would have met the standard of care had he discharged the plaintiff with a requisition for a CT examination in the community. She opined that the plaintiff did not require admission to hospital or transfer to another hospital. Her opinion was that he fell below the standard of care because he had requested that she follow up with an office consult in the community rather than a CT examination in the community.

[97] Her opinions were based on certain incorrect or unproven factual assumptions. She assumed that the plaintiff was in severe pain, such that a DRE could not be performed, when, according to the medical records, the plaintiff rated her pain as less than 3 on a scale of 10, and DREs were performed by both Dr. Bahl and Dr. Chiu, neither of which DRE showed any rectal mass. Further, the plaintiff did not present with a life-threatening emergency. Based on these examinations, assessments, and observations, there was no reason to perform a CT scan at the hospital, which was also acknowledged by Dr. Vasilevsky, and the instruction regarding follow-up in two weeks was reasonable.

[98] While in her first report, Dr. Vasilevsky indicated that Dr. Chiu should have referred the plaintiff to a colorectal surgeon or a surgical oncologist on December 31, 2014, she provided no explanation as to why such a referral would be required in all of the circumstances. Dr. Chiu had testified that he did not arrange for such a referral as it was not indicated or required based on the plaintiff’s condition and that, in any event, he could not do so from the emergency department of the hospital in the circumstances with which she presented (no rectal mass and no life-threatening emergency), but only from his own offices. I accept that evidence.

[99] It was the opinion of Dr. Vasilevsky that Dr. Chiu did not have appropriate follow-up in requesting that the plaintiff see him in his office two weeks later and in indicating that she should return to the E.R. if she experienced severe pain, fever, chills, or severe rectal bleeding. However, Dr. Vasilevsky was unaware of the procedures and protocols in Ontario that required that, in the absence of a serious medical condition, a consulting surgeon, seeing a patient in the E.R of a community hospital, could not arrange for imaging in the community from the E.R and could not make referrals to other subspecialties. Moreover, such a referral to a colorectal surgeon or surgical oncologist was not required by the standard of care, given the complaints with which the plaintiff presented. In any event, he could only have made such a referral from his office, where he told the plaintiff to follow up. I am aware that the plaintiff denied that Dr. Chiu provided her with any follow-up instructions and also denied that Dr. Chiu spoke to her at all in the consultation, although Dr. Chiu took her medical history and performed an invasive procedure, a DRE which would have required his speaking to her. In this regard, again, I find her memory of events to be unreliable and prefer that of Dr. Chiu, supported by his medical records and evidence of his usual practice. I note that his dictated notes of the consultation also recorded his follow-up instructions to the plaintiff.

[100] Further, I do not find that either doctor fell below the standard of care as regards instructions for follow-up given to the plaintiff. Dr. Lee admitted that he did not write down in his consultation note that she was told to follow up with the medical practitioner in two weeks. However, he testified that he did tell her to follow up in two weeks by seeing a medical practitioner, and that was his normal practice. Dr. Chiu did write down his follow-up instructions in his consultation note. In both cases, Ms. Martindale denied that either doctor told her to follow up within two weeks. I find her evidence throughout to be unreliable as regards what occurred in her consultations and what she was told. While the plaintiff states that there was no evidence to indicate that she was not compliant with the medical advice she received and with her scheduled appointments, I note that, in addition to not following up with the instructions of Drs. Lee and Chiu, she did not immediately follow the advice of Dr. Feldman, who visited her at home on December 28, 2014; indeed, the plaintiff did not recall any visit from a doctor at her home. Further, she was contacted by the visiting nurses who performed her wound care and asked to attend at a reassessment of her treatment, which she declined to do. I prefer the evidence of Drs. Lee and Chiu as regards their follow-up instructions.

[101] Based on all of the above, I do not find that Dr. Chiu fell below the standard of care.

[102] I am satisfied, based on the conditions with which she presented at the E.R. on November 21 and December 31, 2024, that the standard of care did not require imaging to be done or requisitioned at the hospital.

[103] While it is the position of the plaintiff that Drs. Lee and Chiu each should have diagnosed and investigated the plaintiff’s presenting condition as cancer, I note, based on all of the evidence, that there was nothing that would have suggested cancer in the November 21, 2014 attendance or in the December 31, 2014 attendance at Scarborough Hospital. Further, given the constellation of factual conditions with which she presented, her history, including the fact that no one in her family had ever had colorectal, anal or other gastro-intestinal cancer, and given the clinical assessment, there was additionally nothing to suggest cancer as a potential cause of her complaint.

Causation

[104] In this case, I have not found that either Dr. Lee or Dr. Chiu was in breach of a standard of care, and therefore need not determine the issue of causation.

[105] Nevertheless, I will make a few comments as regards causation, below.

[106] Causation must be specifically linked to the act or omission said to have breached the standard of care: Chasczewski v. 528089 Ontario Inc., 2012 ONCA 97, 287 O.A.C. 266, at para. 15.

[107] As explained by the Supreme Court of Canada:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

See Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.

[108] The defendant can defeat an inference of causation by adducing evidence that the plaintiff’s injury would have occurred in any event, regardless of the defendant’s breach of the standard of care: Clements, para. 11.

[109] The plaintiff must establish that the injury would have been avoided “but for” the breach: Salter v. Hirst, 2011 ONCA 609, 107 O.R. (3d) 236, at paras. 14-16, leave to appeal to S.C.C. refused, 2011 CarswellOnt 13661. It is not sufficient for the plaintiff to speculate about what could have happened but for the physician’s actions, or by simply demonstrating the possibility of some causal connection: Rothwell v. Raes, 1990 ONCA 6610, 2 O.R. (3d) 332 (C.A.), at para. 8.

[110] The plaintiff asserts that an evidentiary gap was created by the defendants’ failure to requisition imaging such that an adverse inference should be drawn against the defendants. The alleged breaches of the standard of care supported by expert evidence are the failure to order an ultrasound on November 21, 2014 and the failure to provide a requisition for a community CT scan on December 31, 2014.

[111] However, I have already found that neither of the defendants breached the standard of care. Further, based on the plaintiff’s presentation, no imaging was called for or necessary at those times. As previously indicated, Dr. Chiu could not, in these circumstances, have had imaging done at the E.R. as there was no life-threatening emergency.

[112] Five experts were qualified to provide evidence regarding causation. Significant time was spent on attempting to determine on what date, absent any breach of the standard of care, the plaintiff’s anal cancer would have been diagnosed, when treatment would have been commenced, and, if said treatment had been commenced on that date, whether her ileostomy would have been avoided.

[113] As I have found no breach of the standard of care on the part of either Dr. Lee or Dr. Chiu, the issue of causation does not arise. The comments made herein are therefore obiter.

[114] Based on the evidence before this Court, including the evidence of the five experts called on causation, the plaintiff did not prove, through expert evidence, any breach of the standard of care, absent which the need for an ileostomy would have been avoided. Nor did the plaintiff establish, through expert evidence, that the ileostomy would have been avoided if the standard of care had been met or how it would have been avoided.

[115] No expert evidence was presented on behalf of the plaintiff which would connect any alleged breach by Dr. Lee with an earlier pathway to diagnosis. As regards Dr. Chiu, even if he had provided the plaintiff with a requisition for a CT scan in the community, the evidence indicates that the diagnosis date would not have been until March 16, 2015, at the earliest which would not have allowed the plaintiff to avoid an ileostomy. The evidence, both expert and factual, indicates that by January 2015, the plaintiff had indications for an ileostomy, including incontinence, obstruction, and pain. I accept the defendant’s timeline of the earliest possible treatment date, which the evidence indicates to be March 22, 2015. This was based on the evidence presented for ordering a CT scan in the community, performing said scan, conducting a biopsy, and obtaining results thereof prior to the recto-vaginal fistula having formed.

[116] Based on all the evidence presented, I have found that there was no breach of the standard of care by either of the defendant doctors. Moreover, I am satisfied that the diagnosis of anal cancer could/would not have been made prior to development of a recto-vaginal fistula which required an ileostomy.

[117] Based on all of the evidence, including all of the expert evidence before this Court, I do not find on a balance of probabilities that there was justification for a CT scan earlier in November or December of 2014, nor that such a scan would have identified a suspected malignancy as urged by the plaintiff.

[118] While the plaintiff has recognized that no one can state with absolute certainty whether the plaintiff would have required an ileostomy if she was diagnosed prior to her recto-vaginal fistula developing, they state that this is because there was an evidentiary gap created by the failure of the defendants to requisition imaging. As I have already stated above, I find that there was no medical professional reason for ordering imaging in November or December when the plaintiff attended at the Scarborough E.R. I do not find that either defendant doctor was negligent in failing to requisition imaging given the circumstances with which she presented.

Contributory Negligence

[119] I have found that the plaintiff did not follow all instructions. I have found that she was told by Dr. Lee to follow-up within two weeks to see a physician in the community, but failed to do so. I have further found that she was told by Dr. Chiu to follow-up within two weeks at his offices but did not do so. I have found that the visiting doctor, Dr. Feldman, who visited the plaintiff’s home on December 28, advised her to go to the ER, but that she failed to do so for three days thereafter. She was requested by the visiting nurses to attend at their offices for a re-assessment of her wound, but failed to do so, such that the wound care ceased. She did not further attend at hospital until April 8, one week after she began to have bowel movements through her vagina. Had I found there to be negligence on the part of Dr. Lee or Dr. Chiu, which I did not find, and had I found that said negligence caused her ileostomy, which I did not find, I would have found her to be contributorily negligent, and would have found that contributory negligence to be 40%.

Released: August 23, 2023 C.J. Brown J.