Court File and Parties

COURT FILE NO.: CV-17-74153 DATE: 2023-01-30 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PAMELA LEONORA HENRY, Plaintiff AND DR. MARIE CLAIRE BOIVIN RIVEROS AND KINGSWAY HEALTH CENTRE, Defendants

BEFORE: The Honourable Mr. Justice Pierre E. Roger

COUNSEL: J. Griffiths and E. Hallewick, Counsel for the Plaintiff A. McKenna & D. Blimkie, Counsel for the Defendants

HEARD: October 3 – 7, October 11 – 14, October 31 – November 2, and November 14, 2022

Reasons for Decision

Roger J.

Background

[1] This is a medical malpractice action. The plaintiff, Ms. Pamela Henry, claims that she suffers ongoing and chronic pain resulting from the defendants’ negligence. She argues that, but for the medical negligence of the defendants, she would have recovered fully from the rupture of her right Achilles tendon and would have continued to diversify and grow her therapy and consulting business.

[2] Ms. Henry is 60 years old. She interacted with the defendants on three occasions: July 29, 2015; August 8, 2015; and September 23, 2015.

[3] On July 28, 2015, Ms. Henry was exercising when she felt and heard a pop in her right ankle. It hurt and she thought that she had sprained her ankle.

[4] On July 29, 2015, she saw a chiropractor who suspected an Achilles tendon tear and told her to stabilize her leg and see a doctor. Ms. Henry attended at the defendant, Kingsway Health Centre (“Kingsway”), located in the same building as the chiropractor, as a walk-in patient and saw the defendant, Dr. Marie Claire Boivin Riveros (“Dr. Boivin’), that evening.

[5] Dr. Boivin’s notes for that consultation record that she: examined the ankle of Ms. Henry; suspected a partial Achilles tendon tear; ordered an ultrasound; recommended RICE (rest, no walking on that foot, ice, compression or immobilization, and elevation); advised Ms. Henry to use an air cast during the day; and, to return to the clinic with the results.

[6] Dr. Boivin testified that on July 29 she wanted to confirm the diagnosis and, if confirmed, to refer the patient out to a specialist. She said that as a family doctor she would not treat an Achilles tendon tear because this is for a specialist to handle. She said that she made her recommendations to prevent further damage while waiting for the diagnosis to be confirmed by ultrasound.

[7] Ms. Henry testified that much of what is noted by Dr. Boivin did not happen or is not accurate. Her lawyer argues that Dr. Boivin supplemented her notes after each of her three consultations with Ms. Henry.

[8] During her testimony, Ms. Henry denied that Dr. Boivin performed any physical assessment of her ankle during the July 29 appointment and denied being told that she needed to get an “air cast.” She said that she was told to wear a medical boot to stabilize her foot, to rest, and to return with the results of the ultrasound. She was going on a long-planned family trip to Florida and denied that she told Dr. Boivin that she had to fly “no matter what.” She did not remember being told about “RICE” but remembered that the doctor talked about a “boot”. She did not remember if the doctor described the boot but remembered the doctor telling her that she could use a boot she had from a previous injury, and to keep her foot elevated. Ms. Henry admitted that she understood that she needed to stabilize her foot, keep it elevated, and not put weight on her right leg.

[9] On August 7, 2015, Ms. Henry attended for an ultrasound. There is no dispute this was the first available appointment. The ultrasound report describes a full thickness tear at the right Achilles tendon that, at the time, measured 4 mm in length with evidence of fluid and of a hemorrhagic component.

[10] On the morning of August 8, 2015, Ms. Henry re-attended at Kingsway, as she had been instructed by Dr. Boivin.

[11] The notes of Dr. Boivin for the consultation of August 8 record that she: examined the ultrasound report; examined the ankle of Ms. Henry; made a diagnosis of a tear of the right Achilles tendon; gave a requisition for an ultrasound to be done after a month for reassessment; advised Ms. Henry to wear a well-fitting air cast to immobilize her ankle; advised Ms. Henry to avoid walking and weight-bearing on her right foot; explained to Ms. Henry to buy a proper air cast because the one she was using was given previously for a knee injury; offered a referral to an orthopaedic surgeon which was “declined”; and advised Ms. Henry to get in touch with her family doctor for future follow-up.

[12] Dr. Boivin did not remember if Ms. Henry was wearing any kind of boot at the August 8 consultation but understood that Ms. Henry was not wearing an air cast. She understood that Ms. Henry was leaving for Florida on Thursday for three weeks. She understood that Ms. Henry “declined” the referral to an orthopaedic surgeon because such a referral would likely have occurred within about a week and Ms. Henry was not willing to cancel her trip. She said that she explained to Ms. Henry that what was most important was that she needed to be immediately seen by an orthopaedic surgeon, or else, her injury could be irreversible with possible loss of ankle-foot function. She testified that the main part of her plan was to have Ms. Henry seen by an orthopaedic surgeon to manage her injury, and that she explained this to Ms. Henry. She said that Ms. Henry refused to cancel her trip, and she therefore gave Ms. Henry a requisition for a follow-up ultrasound to be done after a month, when she returned from her trip, to be available for the orthopaedic surgeon that she would eventually see. Dr. Boivin said that she told Ms. Henry to get an air cast, to avoid weight bearing, and to see her family doctor when she returned.

[13] Ms. Henry says she was told to just keep doing what she had been doing. She recalled being told that she needed a better boot. She said that as a result she went back upstairs to the chiropractor’s office to secure what she thought was a better boot.

[14] Ms. Henry testified that her Florida trip was 10-days-long and that she followed the advice of Dr. Boivin. She said that she obtained a better boot, remained as immobilized as she could (including using a wheelchair throughout her time away), and, as directed, followed up with an ultrasound after a month.

[15] On September 19, 2015, Ms. Henry underwent a second ultrasound. The report indicates that there is separation of both torn segments of the tendon by approximately 1.8 cm with fluid and hemorrhage at the tendon tear. The report also notes, “It seems that the patient appears to be non-compliant to the wear of the air-cast”.

[16] There is no dispute that by September 19, 2015, the tear had become complex, that Ms. Henry’s tendon was not properly healing, and that surgery was now her only option. The tear at her right Achilles tendon, which measured 4 mm on August 7, had separated and by September 19 the two ends of the tendon were now 1.8 cm apart.

[17] On September 23, 2015, Ms. Henry saw Dr. Boivin a final time. There are again discrepancies between what Ms. Henry says happened during that encounter and what Dr. Boivin noted and says happened. What is agreed is that Dr. Boivin initiated a referral to an orthopaedic surgeon, but she sent the request to a surgeon who did not treat this kind of injury. That orthopaedic surgeon responded to the Kingsway clinic that if the injury was acute, Ms. Henry should be referred to the emergency department of a local hospital. That information was never relayed by the Kingsway clinic to Ms. Henry. By that point, Dr. Boivin was on vacation and there is no indication that anyone at Kingsway was managing Ms. Henry’s file.

[18] Dr. Boivin testified that on September 23 Ms. Henry told her that she had returned from Florida three weeks ago. She noted that Ms. Henry went to Florida the week after the August 8 doctor’s appointment and returned three weeks ago. This supports Dr. Boivin’s version of events that Ms. Henry spent three weeks in Florida, not 10 days, because the time computes to about three weeks. Dr. Boivin noted that Ms. Henry used a cast that she had used for a previous knee injury, “not an air cast despite advice”. She noted that during her trip Ms. Henry avoided bearing weight on her right ankle but did not use a cast to immobilize her ankle because she had edema and “she feels uncomfortable wearing it.” She noted as well that during the September 19 ultrasound Ms. Henry was observed without a cast and was advised to use an air cast. Dr. Boivin reviewed the September 19 ultrasound and noted the increased separation of the Achilles tendon tear. She noted that Ms. Henry has been using an air cast since Saturday, September 19, and that she has been using crutches. She examined Ms. Henry, concluded that a complex full tear of the right Achilles tendon had occurred with separation of both segments by 1.8 cm, and ordered an urgent referral to an orthopaedic surgeon and to a sports medicine specialist in her clinic.

[19] Dr. Boivin testified that she expected Ms. Henry to be seen by a specialist within about one week. She said she did not send her to the emergency department, despite it being urgent, because they would still have referred Ms. Henry to an orthopedic surgeon, and there is usually no difference in the wait time. In the interim, she also referred Ms. Henry to a sports medicine specialist colleague and asked Ms. Henry to book that appointment. Dr. Boivin was leaving on vacation the next day and told Ms. Henry that she would not be available. Dr. Boivin said that she told Ms. Henry to continue using the air cast, avoid bearing any weight, and continue to use her crutches.

[20] Ms. Henry testified that during the September 23 appointment she asked for a referral to an orthopaedic surgeon. She said that she had been to Florida for 10 days (not three weeks), admitted that she used her previous cast, and did not agree that she had previously been advised to use an air cast.

[21] Ms. Henry did not hear back from the orthopaedic surgeon and on October 7, 2015, she called her family doctor. She was instructed to either go to the emergency department or see her family doctor the following day. She went to emergency department the same day and cancelled the appointment with the sports specialist which had been scheduled for that day.

[22] On October 7, 2015, Ms. Henry attended at the emergency department. The notes of that attendance indicate that a ruptured Achilles tendon was diagnosed. The discharge instructions are noted as magnetic resonance imaging (“MRI”) and a follow-up consultation with an orthopaedic surgeon.

[23] Ms. Henry testified that she saw an orthopaedic surgeon on October 7, but there is no note from an orthopaedic surgeon on that day. Rather, the notes of the emergency attendance on October 7 indicate that the emergency doctor discussed with an orthopaedic surgeon who will see Ms. Henry as an out-patient. The MRI was conducted on October 12, 2015, and the notes and OHIP records indicate that Ms. Henry saw an orthopaedic surgeon on October 14 and 15, 2015, November 17, 2015, and next on July 26, 2016.

[24] Ms. Henry saw the orthopaedic surgeon that she had seen on October 15 again on November 17, 2015. In his letter to Dr. Boivin from that day, the orthopaedic surgeon notes that he reviewed at length with Ms. Henry the diagnosis and available options of nonsurgical versus surgical repair, and the risks and benefits of both.

[25] Ms. Henry testified that the orthopaedic surgeon asked her to think about it and to return when ready. She testified that she made an appointment to return to see the orthopaedic surgeon, but she could not remember when. She said that she consulted him before the following summer, but she did not remember when. She said that she remembers another appointment when the surgery was booked and cancelled, but she did not remember when that was or why the surgery was cancelled.

[26] As indicated above, contradicting Ms. Henry, the OHIP records indicate that the next entry or consultation with that orthopaedic surgeon after November 17, 2015, was on July 26, 2016. Ms. Henry denied that she deferred the surgery because she was unable to sell her home.

[27] On July 26, 2016, Ms. Henry’s surgery was scheduled, and the surgery occurred on December 7, 2016.

[28] Ms. Henry testified that she developed chronic pain. She testified that her condition continues to deteriorate and that her activities are extremely limited. She said that working became progressively more difficult and that she stopped working; Ms. Henry worked part time as a self-employed psychotherapist. She also claims that this incident forced her to sell her house below market value.

[29] Ms. Henry argues that although Dr. Boivin claims to have made contemporaneous notes of their encounters, most of what she recorded was noted after the appointment, often the next day. She says that Dr. Boivin’s entries contain numerous factual errors and, in some cases, record matters that were never discussed. Consequently, she argues that her evidence should be preferred where Dr. Boivin purports to record something said by Ms. Henry that Ms. Henry denied saying.

[30] In addition to her testimony, various medical records and expert reports, and some read-ins from the discovery of the defendants, Ms. Henry called as her witnesses:

• her family doctor, Dr. Ceaphi;
• an anesthesiologist and pain medicine specialist, Dr. Smith;
• a chronic pain specialist with family medicine training, Dr. Boucher;
• an orthopedic surgeon, Dr. Urovitz;
• an actuary, Ms. Burns.

[31] In addition to her testimony, various medical records and expert reports, and some read-ins from the discovery of the plaintiff, Dr. Boivin called as expert witnesses:

• a family doctor, Dr. Kuntz;
• an orthopedic surgeon, Dr. Sanders;
• a forensic accountant, Mr. McEvoy.

Issues

[32] The following issues are in dispute:

a) Did the defendants breach the standard of care required of them in the circumstances of this case? b) If yes, did their breach of the standard of care cause the plaintiff’s injuries or losses, such that negligence is established? c) Was the plaintiff contributorily negligent with respect to her injuries? d) What are the plaintiff’s damages?

Analysis

Legal Principles

[33] A plaintiff asserting a claim in negligence bears the onus of establishing: (a) that the defendant owed the plaintiff a duty of care; (b) that the defendant’s conduct breached the applicable standard of care; (c) that the plaintiff sustained damage; and (d) that the defendant caused the damage in fact (factual causation) and in law (legal causation): Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[34] There is no dispute that a duty of care was owed in this case.

[35] The standard of care of a medical practitioner is to exercise a reasonable degree of skill, knowledge and care that could reasonably be expected of a normal, prudent practitioner of the same experience and standing. The standard of care is not perfection. A defendant physician cannot be judged in hindsight, or with an outcome-based retrospective approach: Bafaro v. Dowd, 2008 ONSC 45000, at paras. 22-23, 26-31, aff’d 2010 ONCA 188; Stevenhaagen (Estate) v. Kingston General Hospital, 2020 ONSC 5020, 260 O.A.C. 70, at paras. 106, 111-112, aff’d 2022 ONCA 560; and Jendrzejczak v. Weisleder, 2013 ONSC 967, at paras. 95, 124.

[36] It is insufficient to prove that different decisions would have had a better chance of achieving a more favourable outcome. There may be other reasonable options in any given situation. Absolute right or wrong choices rarely exist. Even a finding that there were better options available than those selected will not necessarily result in a finding of negligence. Unless the chosen course of action was one which a reasonable, competent physician would not have made in the circumstances, a defendant will not be found to have breached the standard of care: Stevenhaagen, at paras. 111-112.

[37] The exercise of a physician’s reasonable degree of care may include a duty to refer the patient to a specialist or to consult a specialist: Williams v. Bowler, 2005 ONSC 27526, at paras. 239-240. It may as well include a duty to treat and to provide reasonable instructions to his or her patients.

[38] However, because of the specialized knowledge required of medical professionals, in medical negligence cases, courts should not make conclusions on whether the standard of care was breached or on causation without expert opinion evidence in support of those conclusions: Bafaro, at para. 31; Jendrzejczak, at para. 124.

[39] A breach of the standard of care is not sufficient to establish negligence. Causation is also required.

[40] Indeed, if a breach of the standard of care is established, the plaintiff, Ms. Henry, bears the onus of proving causation on a balance of probabilities, based on expert evidence. If the cause of injury is determinable, the “but for” test applies, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant. It is not sufficient to demonstrate that ‘but for’ the alleged negligence the plaintiff would have had a better chance of avoiding the adverse outcome, unless that chance surpasses the threshold of more likely than not. If the plaintiff fails to prove that the unfavourable outcome would otherwise have been avoided, causation is not established: Bafaro, at paras. 31, 44; Jendrzejczak, at paras. 118-119; Stevenhaagen, at paras. 117, 120. The “but for” test should only be relaxed in circumstances where the precise cause of the injury is unknown: Bafaro, at para. 46.

[41] In addition to factual causation, the plaintiff must establish that the defendant caused the damage in law; that the injuries suffered were foreseeable or not too remote. Whether the injury is a real risk is assessed on the standard of a reasonable person in the position of the defendant. The harm suffered must be of a kind, type, or class that was reasonably foreseeable from the defendant’s negligence: Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, at paras. 49, 55 and 59.

[42] Doctors and health professionals are required by their respective regulators to keep records of their interaction with their patients, including of their assessments, examinations, investigations, and dispositions. It is important for health care providers to make accurate and timely records of the care provided. Where a medical record fails to include a reasonably contemporaneous recording of an important event, the court may, depending on the evidence, infer that the event did not happen: Sozonchuk v. Polych, 2011 ONSC 842, at para. 91, aff’d 2013 ONCA 253.

[43] The amount of time between an important event occurring and it being documented may impact the accuracy of the medical record and, in turn, its evidentiary value. For example, information documented in a medical record immediately following an event could, depending on the evidence, be given more weight than if it was recorded later.

[44] Ultimately, the weight that is given to a note or medical record depends on the evidence, including when the note was made, what was known at the time, how the note fits with the rest of the evidence, and the credibility and reliability of the note taker.

[45] Indeed, in a case such as this, where the parties’ recollection differs significantly, the credibility and the reliability of the witnesses are important and must be carefully assessed.

[46] Credibility relates to the veracity of a witness, whereas reliability concerns the accuracy of the witness’ testimony or the witness’ ability to observe, recall, and recount the event that he or she testifies about. A witness may believe his or her evidence to be true, yet that evidence may not be reliable.

Assessment of the Evidence

[47] The overarching difficulty for the plaintiff is that Ms. Henry was not a credible or a reliable witness. Ms. Henry frequently spoke of her truth, her interpretation, and that her version of events was true at the time. She often had either a poor memory of events or made little effort to remember. Her evidence was often inconsistent, implausible, and self-serving. She was contradicted many times. While health professionals may occasionally make mistakes when charting what patients say, Ms. Henry’s frequent disagreement with what her doctors noted she told them is at best suspicious and self-serving. As well, her version of events about her pecuniary damages is not internally or externally consistent. All of this negatively impacts her credibility and reliability.

[48] Ms. Henry repeatedly disagreed with notations made in her medical record by numerous healthcare providers, including those of her own experts. For example, Dr. Smith opined that Ms. Henry could work for the foreseeable future, and her orthopaedic surgeon noted that she was non-compliant with his non-weight bearing instructions.

[49] Ms. Henry provided evidence that was inconsistent with previous statements. For example:

• During her examination in chief, Ms. Henry said that she stopped working in 2020 because the chronic pain was “devastating”. She said that she earned nothing in 2020. However, during her cross-examination she agreed that she worked and earned income in 2020, 2021, and 2022. Moreover, she provided no information about the income earned since 2020, saying that she does not know how much she earned during those years (and she has not filed her income tax returns since 2017).
• In chief, Ms. Henry said that she separated from her husband in January or February 2015. However, in her signed Family Court Application, issued on August 9, 2013, she indicated June 1, 2012, as the separation date. This is material because during her examination in chief she linked her working part time and her stated plan of ramping up her practice to work full-time starting in 2015 with their son being home with her and leaving for University in September 2015. Her income loss claim is premised on this theory.
• In chief, she said that she had not built her practice because her son was in school and that she worked part time because he was living with her at home. She said in chief that by June 2015 her son finished high school and was going off to university in Montréal in September. Further, she stated that she started to take on more clients because her son would be leaving. She implied that their son was with her and that she remembers taking on more clients in 2015 because he would be leaving for university in September. This is what she relayed to her income loss expert, and this is the working hypothesis of her income loss expert. However, in her signed Family Court Application, issued on August 9, 2013, Ms. Henry indicated that: her son is now living with the respondent father since “my husband took him from his home June 1, 2012, when we separated”; she was not seeking child support; and she was seeking liberal and generous access to her son in accordance with his wishes. In a consent divorce Order dated January 29, 2015, that Ms. Henry would have consented to and approved, the Court indicates that her son has been residing primarily with the respondent father since June 2012. During her cross-examination, when pressed on the inconsistency, Ms. Henry said that from the time of the separation, her son was living part time with her and part time with her former husband, but she did not provide more detail. She was asked about the 2015 Order which provides that her son lived primarily with his father, and her answer was unresponsive; she said that their son prepared the schedule of when he would live with her and with his dad, but she did not explain or particularize their parenting time. Yet, in a 2013 note of her family doctor, Dr. Ceapchi noted on August 6, 2013, just before Ms. Henry’s Family Court Application was issued, that Ms. Henry was seeking a divorce and that her “son […] decided to stay w dad …”.
• When confronted with documents showing that her son started university in Montréal in September 2014, not 2015, Ms. Henry changed her narrative and said that she started to ramp up her practice in 2014. Previously, she told the experts she consulted that she had started to ramp up her practice in 2015. She said that at the time she would have remembered that it had started in 2014 and said, “I can only tell you what I remember today”. She was frustrated by these questions.
• When she initially testified about what she did between her first two visits with Dr. Boivin, she claims she “couldn’t do nothing”. However, Ms. Henry then gave evidence that she did not avoid weight bearing between July 30 and August 7 because she had to get out of bed and get on with daily life.
• Ms. Henry testified that her feet were never on the ground in Florida. However, in cross-examination she admitted to frequently walking with a boot on inside the Florida rental house. She told Dr. Smith she used a walking stick while she was there. She also testified that she was in a wheelchair during the entire trip and only left the house to go to the space centre. However, Ms. Henry had previously stated on discovery that she only left the house to go to the beach and made no reference to the space centre. Ms. Henry also testified that if she went to the beach, she would have used a wheelchair. She then recanted, indicating that she would have walked to the beach with a boot on.
• Ms. Henry testified at trial that she took a taxi home on July 29, that she probably did not work between July 29 and August 7, and that she booked the follow up ultrasound on August 10 or 11, as recommended by Dr. Boivin. However, Ms. Henry admitted that at discovery, her evidence was that she drove home on July 29, attended work between July 29 and August 7, and waited to book the follow up ultrasound until after her return from Florida.

[50] Ms. Henry had a poor recollection of past medical attendances, and she admitted that her memory could be poor. Ms. Henry indicated that her memory about her visits with Dr. Boivin was “all over the place” and “sketchy” because several years had passed. She indicated that it was difficult to recall conversations from “seven years ago, four years ago, five years ago.”

[51] More problematic are the examples of Ms. Henry lacking candour, including:

• In chief she described herself as a psychotherapist, saying that she practiced psychotherapy techniques and theories. However, Ms. Henry was not entitled to practice as a psychotherapist, despite the various representations she made to others over the course of this litigation. From a professional perspective, Ms. Henry admitted that she routinely told her clients that she was a psychotherapist despite agreeing that she did not have the required credentials. Yet, in her 2013 Family Court Application she describes her employment as a part time therapist.
• She said that surgery was booked before her June 2016 appointment, but there are no records supporting this assertion. The notes and testimony of Dr. Ceapchi indicate that Ms. Henry told Dr. Ceapchi that she delayed surgery pending her moving because of the stairs in her house.
• She told Dr. Ceapchi that Dr. Smith had told her to retire immediately.
• She claimed to have attended Liquid Gym, but they have no record of her being a client.
• She advised in January 2017 that she was seeing an acupuncturist.
• Ms. Henry has not filed income tax returns or paid income taxes since 2017, despite confirming that she has earned income since 2017.

[52] By comparison, with one important exception relating to treatment that I will describe later, there are no major discrepancies in the testimony of Dr. Boivin, her version of events is otherwise, for the most part, supported by her notes, and, subject to the exception noted above, fits better with the evidence.

[53] Ms. Henry alleges several discrepancies between what was noted by Dr. Boivin and what she says Dr. Boivin told her. However, these alleged discrepancies rely on the recollection of Ms. Henry, and Ms. Henry has demonstrated that she is not a reliable nor a credible witness.

[54] Ms. Henry points out that the notes of Dr. Boivin were not all made at the time of their encounters, that some were made later, or within the next day. However, Dr. Kuntz testified that making skeleton notes and completing them within 24 hours meets the standard of care. Dr. Ceapchi agreed that making notes within 24 hours is not unusual, admitting that she also makes skeleton notes that she finishes by the end of the day. A forensic review of Dr. Boivin’s notes was completed and shows that her notes were substantially completed within a day of seeing Ms. Henry. Dr. Boivin’s notes were made at a time when Dr. Boivin could remember what she noted and would have no reason to embellish her notes. Her notes fit with the rest of the evidence that I accept, and Dr. Boivin’s reliability and credibility, subject to the exception noted above, was not otherwise successfully challenged.

[55] Even if Dr. Boivin did not document every single aspect of each encounter with Ms. Henry, this does not necessarily detract from her credibility that those events occurred. Dr. Kuntz described that it is not possible to record every detail of discussions had with patients. Even brief medical notes, documented within 48 hours, can be a more reliable representation of the medical encounter than a patient’s recollection at trial many years after the fact.

[56] When I assess the evidence, I see no reason not to accept the notes of Dr. Boivin as an accurate, albeit not necessarily complete, reflection of her encounters with Ms. Henry. Further, subject to the noted exception about treatment, when either the notes of Dr. Boivin or the recollection of Dr. Boivin conflict with the recollection of Ms. Henry, I prefer the notes of Dr. Boivin or the recollection of Dr. Boivin to that of Ms. Henry.

[57] As an aside, I note that the practice of cutting and pasting from previous notes to create a draft outline is not helpful. I understand the attraction, but from my perspective it should be avoided because it makes it more difficult for the health professional to remember, years later, what occurred at each consultation.

Did Dr. Boivin Breach the Standard of Care During the July 29, 2015 Attendance

[58] At the July 29, 2015 visit, Dr. Boivin conducted an examination and diagnosed a suspected partial Achilles tendon tear. She ordered an ultrasound to confirm the diagnosis, and instructed Ms. Henry to obtain it as soon as possible and to return with the results. To prevent further damage, Dr. Boivin instructed Ms. Henry to rest, avoid all weight bearing, and immobilize the ankle with an air cast. She emphasized the importance of immobilization and provided instructions on where to obtain an air cast. She expected the ultrasound results within about one week.

[59] I accept Dr. Boivin’s evidence that she did not tell Ms. Henry that Ms. Henry could use her previous “boot” but told her to get an “air cast”. I accept this because it is clear from the notes and evidence of Dr. Boivin, it fits with the rest of the evidence, and Ms. Henry’s evidence is not reliable nor credible. By way of one example of how Ms. Henry not obtaining an air cast at this point fits with the evidence, Dr. Ceapchi testified that over the years Ms. Henry frequently did not comply with her recommendations.

[60] I accept that during the assessment Ms. Henry advised she was flying to Florida for a three-week vacation the following week “no matter what” and that she requested a wheelchair note for the plane. I accept that she was in Florida for about three weeks because the duration of three weeks computes better and makes sense when you consider Dr. Boivin’s note of September 23, 2015, that Ms. Henry “left to the US the following week and returned three weeks ago”. As well, I note that it would have been relatively easy for Ms. Henry to retrace records of her trip, but she provided no document or particulars in support of her claim that she was away for 10 days.

[61] I accept that Dr. Boivin expressed concern to Ms. Henry that she should not travel with a suspected Achilles injury because this is apparent from her notation of what Ms. Henry stated or expressed. Dr. Boivin noted “no matter what”. This expresses a level of disagreement by the writer that the patient is not following the writer’s advice. As a result, I also believe Dr. Boivin’s narrative that she repeated this advice to Ms. Henry during the August 8 consultation, despite their being no supporting notation on August 8. It makes more sense that Dr. Boivin would still believe that flying away for three weeks with an Achilles injury was not a good idea considering her noted recommendations to immobilize and avoid walking. Dr. Boivin providing the requested note for the wheelchair during the August 8 visit also fits better with Dr. Boivin’s narrative that considering Ms. Henry’s insistence on nonetheless travelling, she attempted to limit any further injury while Ms. Henry was in transit.

[62] I accept as well Dr. Boivin’s evidence that she did not send Ms. Henry to the emergency room or refer her to an orthopaedic surgeon because she understood that they would have ordered some form of imaging which would have taken a similar amount of time.

[63] Ms. Henry confirmed that when she left the clinic on July 29, she understood that the ultrasound was required as soon as possible, that she was to return to the clinic when the ultrasound was complete, that she needed to stabilize her ankle, elevate her leg, and avoid weight bearing. I find from the evidence that between this and the next consultation, Ms. Henry did not stabilize her ankle, elevate her leg, or avoid weight-bearing; she did not obtain an air cast despite the advice of Dr. Boivin, she used an inappropriate cast, and she continued with her activities despite the advice to elevate her leg and avoid weight-bearing.

[64] Despite the above, when I consider the evidence, I find that Dr. Boivin did not meet the standard of care with respect to the care and treatment that she provided to Ms. Henry on July 29, 2015. Dr. Boivin failed to properly immobilize Ms. Henry’s foot in plantarflexion and failed to provide advice about this, or not knowing how to properly immobilize Ms. Henry’s foot, failed to refer Ms. Henry out for orthopaedic consultation. I arrive at this result from the evidence of Dr. Kuntz and Dr. Boucher.

[65] Dr. Kuntz is an experienced family doctor. Dr. Boucher completed a postgraduate program in family medicine but never practiced family medicine (he has extensive experience in chronic pain management and some in emergency medicine). However, I find that the opinion of Dr. Kuntz regarding the consultations of July 29 and August 8 is not entirely supported by the facts of this case and is not internally consistent.

[66] I do not dispute Dr. Kuntz’s opinion as to the reasonableness of confirming the diagnosis or that the time to obtain the ultrasound was also reasonable. The irresolvable weakness of Dr. Kuntz’s opinion about both the consultations of July 29 and August 8, flows from its premise that Dr. Boivin was treating Ms. Henry conservatively.

[67] With regards to the July 29 consultation, Dr. Kuntz indicates that on July 29, 2015, Dr. Boivin “initially decided to manage the case in a more conservative manner, which is an entirely appropriate approach”. However, Dr. Boivin’s consistent evidence throughout is that at no time was she treating Ms. Henry for her Achilles tear. Dr. Boivin said that it was never her intention to treat the Achilles tendon but to confirm the diagnosis, prevent further damage, and to refer Ms. Henry out once the diagnosis was confirmed. She said that it was not up to her to decide between conservative or surgical treatment because this is for the specialists to decide.

[68] Nonetheless, it is apparent from the prior section of Dr. Kuntz’s report, labelled “Analysis of the Case”, that Dr. Kuntz is referring to the acceptable option of conservative treatment of an Achilles tendon tear. In that section of her report, Dr. Kuntz explains that the treatment of an Achilles tendon rupture is not clear and that both conservative treatment/management or surgery are acceptable.

[69] This is problematic because, during her cross-examination, Dr. Kuntz agreed that if a doctor chooses to treat conservatively, that doctor needs to know how to immobilize the foot and needs to know that the patient can substantially comply with conservative management. She explained that it is normal that full compliance is difficult. However, she said that if a doctor suggests conservative management to a patient, the doctor should inquire about whether the patient can substantially comply. She explained that without substantial compliance with the recommendations conservative management will not be successful.

[70] Dr. Boivin agreed that at the time of the July 29 visit she did not know how to properly immobilize the foot of an Achilles tendon tear patient. She did not know that the foot should be immobilized in a plantarflexion position (toes pointing downward or in an equinus position) to minimize any pulling apart of the tendon’s separated extremities, and she never instructed Ms. Henry about this.

[71] On the above point, the opinion of Dr. Boucher and of Dr. Kuntz do not necessarily conflict. Dr. Boucher indicated that conservative management or treatment would have been acceptable if Dr. Boivin had properly immobilized the foot of Ms. Henry. He said that if Dr. Boivin did not know how to immobilize, she had to reach out to another doctor because immobilization was critical.

[72] Further, Dr. Kuntz contradicts herself. She indicates that an immediate consult with an orthopedic surgeon was not required on that date because of the available studies indicating that such an injury may be managed conservatively or surgically. She states, “A more conservative management approach in which the ankle is immobilized for a period of a few weeks to see if healing will take place on its own is an entirely reasonable option.” As well, when factoring into her analysis the fact that a confirming ultrasound was required, she indicates that “Dr. Boivin’s instructions to employ RICE and immobilize the ankle with an air cast while waiting for the ultrasound results, and to return with the ultrasound results to discussed management was entirely appropriate”. However, Dr. Kuntz contradicts herself on the importance of proper immobilization.

[73] Dr. Kuntz indicates in her report: that it might have been beneficial for Ms. Henry’s foot to be immobilized in a plantarflexion position in the air cast; that a family doctor might not be aware of the need for immobilization to be in a plantarflexion position; and that seeking early assistance on this point might have been helpful. It is apparent from her report that she assumed that Dr. Boivin was treating Ms. Henry conservatively as early as July 29. And, during her cross-examination, she agreed that if a doctor treats conservatively then that doctor needs to know how to immobilize. Yet, she opines that Dr. Boivin met the standard of care on July 29 by adopting a more conservative management approach in which she immobilized the ankle of Ms. Henry despite Dr. Boivin not knowing how to properly immobilize her ankle.

[74] Ms. Henry was provided no instruction about the proper immobilization position because Dr. Boivin did not know in what position the foot needed to be immobilized. Dr. Boivin’s advice on July 29 could not have been reasonable when Dr. Kuntz agrees that an admittedly important part of the required advice, how to immobilize the foot, was missing.

[75] Despite its shortcomings, I therefore prefer the opinion of Dr. Boucher that on July 29 Ms. Henry should have been properly immobilized or else referred out for orthopaedic consultation. Dr. Boucher, despite not having practiced family medicine, nonetheless has training in family medicine and his opinion on the importance of proper immobilization is not contradicted by Dr. Kuntz.

Causation: Did Dr. Boivin’s Breach of the Standard of Care on July 29 Cause the Damages

[76] It is clear from the evidence of the orthopaedic surgeons that none of the above breaches on July 29, 2015, caused or contributed to Ms. Henry’s injuries.

[77] Two orthopaedic surgeons testified. Both indicated that an Achilles tendon tear can be appropriately treated either non-surgically or surgically. Non-operative treatment involves immobilization in an equinus cast (meaning the toes point downward and extend lower than the heel or plantarflexion position) with a period of non-weight-bearing for at least six to eight weeks, followed by physiotherapy once or twice per week for four to six months. After about six weeks the tendon is healed to about 90% of its original strength and physiotherapy can start after the cast comes off. Operative repair of the tendon involves surgery with a similar period of equinus cast immobilization for six to eight weeks after which the tendon is healed to about 90% of its original strength and physiotherapy can start for the same course after the cast comes off.

[78] Both orthopedic surgeons indicated that a delay in treatment between July 29, 2015, and August 8, 2015, when Dr. Boivin next saw Ms. Henry, did not have any impact on Ms. Henry’s ultimate outcome. Both surgeons opined that given the results of the ultrasound on August 7, 2015, showing that the tendon extremities were only 4 mm apart, conservative treatment for her injury was still available to Ms. Henry when she attended on August 8, 2015. Consequently, both opined that any alleged delay in providing Ms. Henry with appropriate treatment on July 29, 2015, did not result in Ms. Henry’s condition worsening, nor did it have any impact on her ultimate outcome.

Did Dr. Boivin Breach the Standard of Care During the August 8, 2015 Attendance

[79] At the August 8, 2015 visit, Dr. Boivin reviewed the ultrasound results with Ms. Henry, which confirmed an Achilles tear with a 4 mm gap between tendon segments, and examined Ms. Henry’s ankle.

[80] I accept Dr. Boivin’s evidence that she told Ms. Henry not to travel, recommended cancelling the trip, and mentioned the importance of following her advice to avoid further injury and complications. I find probable that they discussed all of this and that Ms. Henry, considering the advice of Dr. Boivin against the importance of this trip, confirmed her preference to travel. This fits better with the evidence because Ms. Henry testified that the trip had been planned for several years, and she was meeting her god daughter and friends from across the globe. Dr. Boivin did not instruct Ms. Henry to attend the hospital for an orthopaedic referral because she understood that a referral at emergency would take approximately the same amount of time as a referral in the community.

[81] Given that Ms. Henry was unwilling to cancel her trip, Dr. Boivin reinforced the importance of immobilization with a proper and better fitting air cast, as Ms. Henry had advised that she had not been wearing an “air cast” in her possession from a previous injury because it was uncomfortable. On this last point, I do not accept the evidence of Ms. Henry that she regularly wore her previous boot between the visits of July 29 and August 9, because when she attended for the ultrasound on August 7 she was not wearing her boot and her explanation that she left it in the car is simply not credible considering her evidence in chief about her stated difficulties with walking. I also do not accept her explanation for not wearing it during the visit with Dr. Boivin on August 8 (that she removed it in the reception area does not make sense).

[82] Dr. Boivin further instructed Ms. Henry to avoid all weight bearing while she was away in Florida, and to follow up with her general practitioner upon her return. Dr. Boivin provided a requisition for a new ultrasound to be completed upon Ms. Henry’s return, to ensure up to date imaging would be available for the purposes of an orthopaedic referral following the trip. Dr. Boivin also provided the requested note for use of a wheelchair while flying so that Ms. Henry would not aggravate the injury by weight bearing while in transit.

[83] I accept that Dr. Boivin advised Ms. Henry that she needed to see an orthopaedic surgeon and that the referral would take about a week. Ms. Henry declined the referral because she wanted to go on a scheduled trip to Florida, for which she was departing on the following Thursday.

[84] Ms. Henry testified that an orthopaedic referral was discussed on August 8, however, she believed that she requested the referral. I do not accept this version of events considering Ms. Henry’s poor reliability and credibility and the notes and evidence of Dr. Boivin. This was an important trip to Ms. Henry, and she has a history of declining medical advice when it suits her purpose.

[85] Ms. Henry said that Dr. Boivin’s August 8 advice regarding proper immobilization prompted her to purchase a new “boot”. However, for comfort reasons, Ms. Henry purchased a cloth corset right after her visit with Dr. Boivin despite having been told that she needed a proper fitting air cast and being aware that she needed to avoid walking and weight bearing until she was again seen by a physician. This cloth corset was of no utility in immobilizing Ms. Henry’s ankle.

[86] Nonetheless, as mentioned above, I also have some difficulties with the August 8 visit.

[87] Assessing the evidence, what seems more probable is that Dr. Boivin considered that she was conservatively treating Ms. Henry. This fits better with the notes of Dr. Boivin and with the bulk of the evidence. Indeed, from her review of the medical records, this is what Dr. Boivin’s family medicine expert, Dr. Kuntz, assumed.

[88] This better explains the follow-up ultrasound “to be done after a month for re-assessment”, as well as the advice to Ms. Henry to follow-up with her family doctor. It also better explains the notation that the patient was “offered” a referral to an orthopaedic surgeon and the lack of notes confirming Dr. Boivin’s stated frustration that this allegedly urgent referral was not accepted by Ms. Henry. If Dr. Boivin thought that she was conservatively treating or managing Ms. Henry’s injury, she might not have perceived the referral to an orthopaedic surgeon for consideration of surgical management to have been urgent, explaining the notation that it was “offered” with no mention of time or of when the referral should occur. It also explains the lack of note expressing any frustration at its refusal by Ms. Henry. I do not accept Dr. Boivin’s testimony that she considered an urgent assessment by an orthopaedic surgeon to be the most important part of her advice during this visit because this is not reflected by her notes.

[89] The referral to an orthopaedic surgeon is near the end of Dr. Boivin’s notes with no indication of its stated importance or of Dr. Boivin’s stated frustration at its refusal by Ms. Henry. This also better explains why Dr. Boivin, faced with Ms. Henry’s decision to proceed with her trip to Florida, did not simply make a referral to an orthopaedic surgeon for Ms. Henry to be seen at a convenient time sooner upon her return. Dr. Sanders agreed that surgeons schedule appointments around a patient’s availability when that is required, and with the widespread use of cellular telephones to the detriment of landlines, even back in 2015, the explanation of Dr. Boivin and of Dr. Kuntz that Ms. Henry being away was an obstacle to scheduling an appointment is simply not believable. It also explains how during the next and final consultation of September 23, 2015, upon seeing that the tear had worsened, it then became urgent to Dr. Boivin that Ms. Henry be referred to an orthopaedic surgeon and sports medicine specialist.

[90] Although I accept that Dr. Boivin discouraged travel and stressed the importance of following her advice, including of seeing a surgeon, I do not accept her evidence about the stated urgency of immediately seeing a surgeon because her notes contradict this. I also accept that Dr. Boivin explained to Ms. Henry the importance of following her recommendations, including the importance of a well-fitting air cast, immobilization, and non-weight-bearing, and how non-compliance could cause irreversible damage. I accept these because they are reflected by Dr. Boivin’s notes outlining her recommendations and are consistent with conservative treatment or management of Ms. Henry. Considering these explanations, it would have been reasonable for Dr. Boivin, as it was on July 29, to assume that although Ms. Henry did not fully comply with her recommendations, she would nonetheless substantially comply.

[91] I find that treatment was then Dr. Boivin’s focus, not sending Ms. Henry to an orthopaedic consultation. She did offer an orthopaedic consultation, but not on an urgent basis.

[92] Consequently, considering the opinion of Dr. Kuntz, I find that Dr. Boivin breached the applicable standard of care with respect to the care and treatment that she provided to Ms. Henry on August 8, 2015. Namely, Dr. Boivin failed to properly immobilize Ms. Henry’s foot in plantarflexion and failed to provide advice about this, or not knowing how to properly immobilize Ms. Henry’s foot she failed to refer Ms. Henry out for an orthopaedic consultation. My analysis above with regards to Dr. Kuntz and the breach of the standard of care on July 29 apply here as well.

[93] Dr. Kuntz assumed that Dr. Boivin was treating or managing Ms. Henry’s Achilles tendon tear conservatively. Dr. Kuntz agreed that if a doctor treats conservatively then that doctor needs to know how to immobilize or else needs to refer out. Dr. Kuntz agreed, during her cross-examination, that once the diagnosis of an Achilles tendon tear was confirmed, Ms. Henry should have been referred out for an orthopaedic consultation. Dr. Kuntz agreed that doing nothing was not an option; either conservative management or a surgical approach was required. Dr. Kuntz opined that if a doctor decides to treat conservatively, that doctor needs to know how to immobilize or else needs to refer out and, said that the doctor treating the injury needs to know that the patient will substantially follow their advice.

[94] After reiterating and explaining the importance of her recommendations, it would have been reasonable for Dr. Boivin to assume that Ms. Henry would comply. However, Dr. Boivin had to refer Ms. Henry out if she was treating or conservatively managing her Achilles tendon tear because Dr. Boivin did not know how to properly immobilize the foot of an Achilles tendon tear patient. Offering a referral without more was not sufficient when Dr. Kuntz opined that proper immobilization is required if you treat conservatively.

[95] Although it might have been preferable if Dr. Boivin had suggested to Ms. Henry that she use crutches, assisted Ms. Henry to secure a proper air cast, or suggested to Ms. Henry to return with the cast to ensure that it was properly fitted, there is no expert evidence that not suggesting or doing this was a breach of the applicable standard of care. Similarly, although on August 8, considering Ms. Henry’s refusal to cancel her trip, it might have been preferable if Dr. Boivin had suggested to Ms. Henry that she attend to the emergency department of a local hospital, there is no expert evidence that not doing so was a breach of Dr. Boivin’s standard of care.

Causation: Did Dr. Boivin’s Breach of the Standard of Care on August 8 Cause the Damages

[96] Dr. Sanders and Dr. Urovitz were excellent witnesses. Both answered questions frankly and honestly, whether in chief or in cross, as expert witnesses should.

[97] Dr. Sanders indicated that if Ms. Henry had accepted Dr. Boivin’s offer to see an orthopaedic surgeon at the August 8, 2015, visit and had followed her advice on the use of an air cast, then surgery would not have been required.

[98] Dr. Sanders opined that if immobilization with the air cast had been adhered to as recommended by Dr. Boivin on July 29 and August 8, Ms. Henry would not have required surgery and would have achieved a much better outcome. If Ms. Henry had used the air cast as recommended by Dr. Boivin starting about July 30, rather than by September 19, her outcome would have been significantly improved and surgery would likely have been avoided.

[99] Dr. Urovitz agreed that with proper immobilization between August 8 and September 19, the tear would probably not have gotten larger, and surgery would likely not have been required. Dr. Urovitz said that conservative treatment will usually be successful provided that the patient follows the doctor’s instructions.

[100] Importantly, Dr. Sanders opined that Dr. Boivin’s failure to immobilize Ms. Henry’s foot in plantarflexion or equinus position had no impact on her outcome. He explained that this had no impact because the separated fragments of Ms. Henry’s Achilles tendon were in close apposition (close together) as shown on the ultrasound of August 7, 2015. While an equinus cast or air cast with shoe lift (to bring the foot in plantarflexion) are commonly employed, they are used to bring the separated fragments of the Achilles tendon closer together. In this case, on August 7, there was no meaningful separation of the separated fragments of the Achilles tendon – they were 4 mm apart. In Dr. Sanders’ opinion, the use of an equinus cast or air cast with shoe lift to achieve a plantarflexion position at that point would not have brought the Achilles fragments into closer apposition as they were already essentially touching. He concludes that these methods would have had no material benefit over immobilization with an air cast as recommended by Dr. Boivin.

[101] Dr. Sanders also opined that even if Ms. Henry had been referred to the emergency department of a local hospital when she refused an orthopedic assessment on August 8, she would have essentially received the same treatment as that prescribed by Dr. Boivin – six weeks of conservative treatment. She would likely have seen an orthopaedic surgeon within one to two weeks of attending at the emergency department and the same conservative treatment would have been recommended. Moreover, even if Ms. Henry had then been properly fitted with the air cast in a plantarflexion position, or if this had been properly explained to her, it would have made no difference as the separated fragments on August 8 were in close apposition. As Dr. Urovitz said, the success of conservative treatment depends on the patient’s compliance with the advice received. Considering how Ms. Henry did not comply with the advice of Dr. Boivin, she would probably not have complied with that advice either.

[102] Ms. Henry would probably still have gone on her trip to Florida, even if she had attended at the hospital on August 8. She told Dr. Boivin that she was going on the trip “no matter what.” She testified that this was an important trip to meet friends from around the globe that had been planned for years, and she made similar comments to Dr. Smith.

[103] She also would not have avoided weight-bearing on her right leg. Ms. Henry stated that it was clear to her after each visit with Dr. Boivin that she was not supposed to weight-bear on her right leg. Despite there being no ambiguity with this advice, she did weight bear on her right leg between July 29 and August 8, and then again after the August 8 visit with Dr. Boivin.

[104] Ms. Henry’s failure to follow Dr. Boivin’s advice is not unique. Ms. Henry has a history of not following the advice of health care professionals. There are multiple documented instances where Ms. Henry refused referrals to specialists, investigations, and treatment advice from Dr. Ceapchi, physiotherapists, ER physicians, naturopaths, and even her orthopaedic surgeon’s advice to remain non-weight bearing after her surgery on December 7, 2016.

[105] Both orthopaedic surgeons agreed that by September 19, conservative treatment was no longer an option, surgery was then the only option. Dr. Sanders said that this is dramatically different. He explained that this is apparent from the ultrasound of August 7, when the extremities of the tendon are close together (4 mm) and September 19 when they have separated (1.8 cm). He opined that Ms. Henry’s failure to immobilize her ankle as recommended from July 28 to September 19 contributed to her outcome.

[106] There is no dispute that by September 19, 2015, the injury to Ms. Henry’s Achilles tendon had worsened and there was no longer an opportunity to treat the injury conservatively. However, on a balance of probabilities, the reason why Ms. Henry`s injury deteriorated was not due to any breach of the standard of care by Dr. Boivin, but rather Ms. Henry’s failure to follow Dr. Boivin’s advice, including:

• After meeting with Dr. Boivin on August 8, 2015, Ms. Henry confirmed that she understood that she needed to get a better fitting air cast and that what she had been using (the “boot” from her old knee injury) was not sufficient. Despite this advice, Ms. Henry continued to use the “boot” she had been using and a cloth ankle corset she purchased from her chiropractor on August 8, 2015, until September 19, 2015. Neither properly immobilized her ankle.
• After purchasing the cloth ankle corset (and prior to leaving for her holiday in Florida), Ms. Henry testified that she knew she had to get something “better” than the ankle corset to immobilize her ankle. She did not do so until September 19, 2015.
• Ms. Henry admitted that she did weight bear on her right leg while she was on holiday in Florida, despite the fact she was not supposed to. Despite having access to a wheelchair, Ms. Henry testified to walking around in her Florida home during her stay and walking to the beach.
• Based on the ultrasound results on September 19, 2015, compared to the results on August 7, 2015, Ms. Henry did not immobilize her ankle during that period. As confirmed by Dr. Sanders, the worsening of her injury during that time suggests that she did not comply with the advice of Dr. Boivin.

[107] As confirmed by Dr. Boucher and Dr. Kuntz, a patient who chooses not to follow a physician’s recommendation does so at their own peril.

Did Dr. Boivin Breach the Standard of Care During the September 23 Attendance

[108] On September 23, 2015, Dr. Boivin reviewed the updated ultrasound result with Ms. Henry. This identified a 1.8 cm separation between Achilles segments.

[109] Ms. Henry advised Dr. Boivin that she did not immobilize her ankle in Florida because her edema made wearing a cast uncomfortable. Dr. Boivin capitalized her note about this because she was concerned that Ms. Henry had not followed her recommendations. Dr. Boivin recommended a referral to an orthopaedic surgeon, which Ms. Henry accepted. Dr. Boivin was departing for vacation the following day, and she also referred Ms. Henry to a sports medicine specialist.

[110] I accept the evidence of Dr. Kuntz, who was supportive of the care and treatment Dr. Boivin provided to Ms. Henry on that day.

[111] Dr. Boucher did not provide an opinion as to whether Dr. Boivin met the standard of care at this visit.

[112] Therefore, I find that the plaintiff has not established that Dr. Boivin failed to meet the standard of care of a family physician on this attendance.

[113] It is not necessary to address causation because I found that a breach was not established for this visit. Nonetheless, if a breach had been established at the September 23, 2015 visit, then such a breach would not have caused or contributed to Ms. Henry’s injuries because both orthopaedic surgery experts opined that by that date, the Achilles fragments had separated and surgery was required. Whether Ms. Henry saw an orthopaedic surgeon within a day or a few weeks, the outcome would not have changed, particularly if one accepts that she had finally started wearing an air cast.

Liability of Kingsway

[114] Dr. Boivin left for vacation on September 24, 2015. Prior to leaving, she left an urgent requisition for the staff at the Kingsway to send to the orthopaedic surgeon she had selected. That surgeon’s office declined the referral because this was not the surgeon’s area of speciality and suggested a referral to the emergency department. This was never acted upon by Kingsway – either by making a new referral to a different orthopaedic surgeon or by advising Ms. Henry that she ought to attend at the emergency department. Not hearing anything, Ms. Henry, on her own initiative, attended at the Queensway Carleton Hospital on October 7, 2015, almost two weeks later.

[115] Ms. Henry argues that Kingsway is both directly liable and vicariously liable for the harm she suffered. As to the former, it is not disputed that Kingsway’s liability is to be determined on ordinary principles of negligence since the alleged error of its clinical staff (not acting on the fax from the surgeon’s office) was administrative in nature and the standard is that of the reasonable person. As to the latter, Ms. Henry argues that an employer is vicariously liable for its employees – in this case, that Kingsway is liable for the negligence of its administrative staff and Dr. Boivin.

[116] However, Dr. Boivin was not an employee of Kingsway. She was a self-employed independent contractor who paid an overhead to the clinic to operate her practice. Ms. Henry did not lead any evidence to challenge Dr. Boivin’s evidence on this issue or to support any allegation that Dr. Boivin was negligent in this instance. As a result, Kingsway could not be held vicariously liable for any alleged acts or omissions of Dr. Boivin.

[117] With regards to Kingsway and to its administrative staff, they knew, or ought to have known, that this was an urgent requisition to an orthopaedic surgeon and that it was declined by the surgeon with a suggested referral to the emergency department. As well, they knew, or ought to have known, that Dr. Boivin was away for about three weeks. A reasonable person should have known that following-up was required. Kingsway and its staff were, therefore, negligent in failing to follow-up.

[118] However, with regards to causation, the time between September 24 and October 7, 2015, did not contribute to the injuries that Ms. Henry claims she sustained. As indicated above, both orthopaedic surgeons opined that the Achilles fragments had separated and that surgery was now required. Consequently, the outcome would not have changed whether Ms. Henry saw an orthopaedic surgeon within a day or a few weeks of September 24, 2015.

Contributory Negligence

[119] If I had found negligence on the part of any of the defendants, I would also have found that Ms. Henry was contributorily negligent in that she contributed to her injuries by her conduct.

[120] A plaintiff contributes to their injuries when they engage in unreasonable conduct which exacerbates their injuries: Bow Valley Husky (Bermuda) Ltd v. Saint John Shipbuilding Ltd, 1997 SCC 307, [1997] 3 S.C.R. 1210, at para. 76. Patients have certain duties and responsibilities when seeking medical treatment, including: (a) a duty to provide information to the doctor; (b) to follow instructions; and (3) generally to act in their own best interests: Polera v. Wade, 2015 ONSC 821, at paras. 22-23. A plaintiff's claims for damages against a defendant are reduced by a finding of contributory negligence. If the court finds the plaintiff contributorily negligent, there is a corresponding apportionment of damages to the plaintiff according to the degree of his or her fault pursuant to section 3 of the Negligence Act, R.S.O. 1990, c. N.1.

[121] Ms. Henry denies that she was contributorily negligent. She maintains that she followed and adhered to the medical advice she received. She argues that the advice proved inadequate or was never properly communicated, and as a result she experienced a severe and negative reaction.

[122] However, I found that Ms. Henry repeatedly failed to comply with the advice received from Dr. Boivin during their appointments.

[123] I also found that Ms. Henry unnecessarily delayed her surgery for many months. This also contributed to her suboptimal outcome.

[124] After her attendance at the hospital on October 7, 2015, and initial visit with an orthopaedic surgeon, Ms. Henry saw her orthopaedic surgeon next on November 17, 2015. The surgeon’s consultation note and Ms. Henry’s testimony confirm that non-surgical and surgical repair options were reviewed, and the decision about whether to proceed with surgery was left with Ms. Henry. The surgeon prescribed ongoing physiotherapy while Ms. Henry considered her options. At the time Ms. Henry was concerned about the impact surgery would have on her work and social life.

[125] Ms. Henry testified that at her next attendance with her orthopaedic surgeon after November 17, she confirmed she would proceed with surgery. She booked the surgery that same day. OHIP records confirm that this attendance occurred more than eight months later, on July 26, 2016. A surgery order form and patient consent form were signed on July 26, 2016, while the corresponding surgical booking request form confirmed surgery would proceed on December 7, 2016. The surgery proceeded on December 7, 2016.

[126] While Ms. Henry testified that there was another appointment with her surgeon during which surgery was booked and subsequently cancelled, there is no clinical note or OHIP record showing an additional appointment between November 17 and July 26. Furthermore, no surgery order form, patient consent form, or booking request form dated before July 2016 was provided to the court. Rather, physiotherapy and physician notes between November 17, 2015, and July 26, 2016, indicate that Ms. Henry was considering deferring surgery to sell her home and that she believed she could not have surgery due to the stairs in her house. Dr. Ceapchi testified that as of May 4, 2016, it was her understanding that Ms. Henry was to call the orthopaedic surgeon to book surgery once she had moved houses.

[127] As well, Ms. Henry disagreed with pre-surgery physiotherapy notes which indicate that she had low compliance with her home exercise program and that she was reluctant to use a cane. Ms. Henry was discharged from physiotherapy in May 2016. The final physiotherapy note indicates no further treatment would be provided secondary to patient time constraints. Despite suggesting she would do so, Ms. Henry did not participate in any further physiotherapy in 2016 prior to her surgery in December.

[128] Ms. Henry’s Achilles surgery repair proceeded on December 7, 2016. Ms. Henry understood that she was not permitted to weight bear or ambulate after surgery. Despite this, the surgeon’s noted on December 22, 2016, indicates that Ms. Henry was non-compliant with post-operative instructions to remain non-weight bearing.

[129] Dr. Urovitz testified about the importance of participation in a post-surgical physiotherapy program for a minimum of four to six months to regain ankle mobility and calf muscle strength, to regain a normal gait pattern and optimize outcome. On January 27, 2017, Ms. Henry commenced physiotherapy at the hospital. Ms. Henry did not disagree with a March 2017 physiotherapy note indicating she had inconsistent attendance. In April 2017, Ms. Henry complained to the manager about her care and cancelled her physiotherapy appointment. The physiotherapist noted that Ms. Henry had no plan to rebook and would continue her care in the community, despite having engaged in less than three months of physiotherapy. Dr. Ceapchi testified that she gave Ms. Henry a referral to a private physiotherapist, however, Ms. Henry confirmed that she did not pursue physiotherapy outside the hospital. Ms. Henry testified that she then continued her post-surgical rehabilitation at Liquid Gym; however, Liquid Gym confirmed they have no record of a client named Pamela Henry and no records were produced from that gym proving her attendance.

[130] Dr. Sanders opined that the development of chronic gastrocsoleus weakness (weakness of the right leg) was substantially related to the long delay in proceeding with surgery between October 7, 2015, and December 2016. Dr. Urovitz noted that in addition to gastrocsoleus atrophy due to delayed treatment after the August 7 ultrasound, the subsequent 14-month delay in proceeding to surgery, until December 2016, resulted in further muscle atrophy, which would have negatively impacted recovery.

[131] As is apparent from the above and from the evidence, Ms. Henry consistently and repeatedly failed to follow the advice and recommendations of her health care providers and chose to delay her surgery. Assessing the evidence, I find that any damages to Ms. Henry would have been reduced by 70% based on Ms. Henry’s contributory negligence.

Damages

[132] Despite finding no negligence, I am nonetheless required to assess damages.

[133] Ms. Henry testified that she suffers from chronic pain which she refers to as an “invisible disability”. She did not provide many particulars of her chronic pain during her testimony.

[134] While Dr. Smith diagnosed Ms. Henry with chronic pain, his diagnosis was based primarily on Ms. Henry’s self-reports and testing that he carried out virtually. No objective physical examination was carried out by Dr. Smith. Given the significant issues with Ms. Henry’s credibility and reliability, I seriously question the legitimacy and extent of her stated injuries. For example, with regards to her chronic pain and its alleged impact, during her examination in chief, Ms. Henry said that she stopped working in 2020 because the chronic pain was devastating; however, during her cross-examination she agreed that she worked in 2020, 2021, and even in 2022.

[135] I found Dr. Sanders an extremely convincing witness, in that he made no apparent effort to convince. In his opinion, Ms. Henry’s knee and back pain is not causally connected to her ankle injury. According to Dr. Sanders, an Achilles tendon tear and a slow recovery can cause temporary adjacent joint dysfunction and weakness. However, in his opinion, the alleged delay related to the treatment of Ms. Henry is not long enough, or great enough, to have contributed to substantial and permanent knee dysfunction or pain. Dr. Sanders recognized that some gait dysfunction can occur after an Achilles tear and can result in a degree of temporary lower back dysfunction. That dysfunction does not, however, amount to chronic back pain. Dr. Sanders described that, for a gait disturbance from a delayed treatment of an Achilles tendon tear to cause permanent chronic back or knee pain, the gait disturbance would have to be both very pronounced and present for many years.

[136] In opining that Ms. Henry’s chronic back and leg pain is attributable to a gait disturbance resulting from delayed treatment of the Achilles injury, Dr. Smith relied on a paper authored by an orthopaedic surgeon, Dr. Harrington. However, Dr. Smith acknowledged in cross-examination that a plain reading of Dr. Harrington’s conclusions is that a limp must be both severe and present for years to cause chronic back or leg pain. Importantly, Dr. Smith agreed that, not only did his physical examination fail to identify a severe or pronounced limp, he did not identify any limp. Dr. Smith further agreed the only evidence of an ongoing limp was from Ms. Henry, who described feeling only a subtle limp.

[137] Dr. Smith recognized that his role as a chronic pain specialist is not to diagnose injuries, but to treat pain. It is the role of orthopaedic surgeons like Dr. Sanders and Dr. Harrington to diagnose the cause of injuries. On that basis, the more reliable evidence as to whether there is a causal connection between the delayed treatment of the Achilles injury and Ms. Henry’s alleged chronic knee and back pain is that of Dr. Sanders.

[138] I agree with the defendants that general damages should consequently be limited to residual ankle pain and weakness; the damages should not include compensation for alleged chronic pain elsewhere in the body.

[139] Considering the evidence, I would have assessed Ms. Henry’s non-pecuniary general damages at no more than $85,000.00, prior to being reduced for Ms. Henry’s contributory negligence.

[140] To establish a claim for past loss of income, the damages must be confined to actual losses and must be determined on a balance of probabilities. Damages should not be awarded by the Court filling evidentiary gaps in the plaintiff’s case. Evidentiary gaps create an inability to quantify damages and raise questions about entitlement.

[141] Ms. Henry’s gross business income remained relatively stable between 2013 and 2017. Other than her own statements, Ms. Henry led no evidence that because of her injuries she stopped seeing any client that she had been treating prior to her injury, or that she had to pass up opportunities for further work. Ms. Henry led no other evidence showing that she lost opportunities to earn income because of her injuries.

[142] Ms. Henry claims that she was transitioning from part time to full time practice as of July 2015 and that because of the negligence of Dr. Boivin, she was unable to complete her transition. However, the evidence does not support her position:

a) Ms. Henry claims that she was transitioning to a full-time practice at the time she was injured, but she provided no evidence to corroborate this. b) In addition to the lack of corroborating evidence with respect to her alleged transition, there is evidence that calls into question the legitimacy of her claim, including: i. She was mistaken as to when the transition began. ii. She associated this transition with her son’s departure to university, but it appears more probable that he left at the time of the separation in 2012. iii. She never mentioned her plan to transition to Dr. Ceapchi. iv. The gross business income she earned in 2014 and 2015 does not support her claim as to how many hours she was invoicing clients. The hours she was invoicing clients is far less than what she told Dr. Smith or Ms. Burns.

[143] Importantly, Ms. Henry made no mention of her plan to transition to full time practice in her Statement of Claim, which was prepared and filed at the end of 2017 when she should have remembered. In fact, it appears that there was no notice that Ms. Henry was pursuing the argument that she was transitioning to full time practice at the time of her injury until it was mentioned in the reports of Dr. Smith in 2020 and Ms. Burns in 2021.

[144] When confronted with her evidence from her examination for discovery in 2019, as to the basis for her loss of income claim that she had not disclosed she was transitioning to a full time practice, Ms. Henry stated, “I just told you what - at the time, what I believed that was my truth. I, I can’t say why I didn’t say anything or I didn’t tell you. I just believed that, at the time, when I answered the question, that’s what I felt at the time.”

[145] Assessing the evidence, I find that Ms. Henry has not proven, on a balance of probabilities, that she lost income in the years following her injury until the date of trial. There is little supporting documentation, no discernible difference in her gross business income pre and post-incident, and the evidence does not support that she was transitioning to any type of full-time practice.

[146] Alternatively, I would still have found that Ms. Henry has no past loss of income claim based on my finding that she was not transitioning to full time practice as I would have used her adjusted annual earnings and the “Medium” scenario outlined in Mr. McEvoy’s report.

[147] To prove a claim for future loss of income, a plaintiff needs only to demonstrate that there is a reasonable possibility of a future loss. Damages for future economic losses are hypothetical in nature and for this reason, the typical civil standard of proof on the balance of probabilities does not apply. Instead, the plaintiff must prove their future loss of income on a lower standard of proof, that the loss was a real and substantial possibility and not mere speculation.

[148] The court must consider the totality of the evidence in deciding whether the plaintiff suffered a future economic loss. The court must first decide whether there was a real and substantial possibility that the hypothetical income model put forward would have materialized. If the plaintiff meets their burden, damages are awarded proportionately to the chance that the hypothetical income model would materialize. For example, if the court found that the plaintiff was 60% likely to make the income asserted as lost, the court will award 60% of that asserted amount.

[149] While Ms. Henry has testified that she was winding down her practice and was not capable of working in any capacity, the evidence does not support this argument. Her own expert, Dr. Smith, indicated that Ms. Henry is capable of working into the future, with accommodation, and not for the same number of hours.

[150] Ms. Henry has a duty to mitigate her damages. If she has concluded that she is not able to work as a counsellor or therapist, she still has an obligation to make efforts to pursue other employment opportunities. She led no evidence of any such efforts.

[151] Assessing the evidence, I find that Ms. Henry is capable of working on a part-time basis until the retirement age of 65. I do not accept that she would have worked pass 65. The report of Ms. Burns is based on the assumptions of Ms. Henry, which I do not accept. The report of Mr. McEvoy is based on Ms. Henry’s partially provided historical information and on relevant statistical information. I prefer the report of Mr. McEvoy.

[152] Based on Mr. McEvoy’s evidence, using Ms. Henry’s annual adjusted earnings projected forward, and finding that she could continue to work on a part-time basis and that she would have retired at the age of 65, I find that Ms. Henry’s future loss of income would have totaled $27,000.00, prior to being reduced for contributory negligence.

Future Care Costs

[153] Ms. Henry did not lead any evidence that it would be necessary for her to incur future care costs, what those future care needs were or what the costs of those future care needs were. On that basis, Ms. Henry has fallen short of her onus to prove her claim for future care costs and this claim for damages would otherwise have been dismissed.

Compensation Related to the Sale of her Home

[154] Ms. Henry claims damages of $205,000.00 related to the sale of her home.

[155] There is no dispute that Ms. Henry started the process for selling her home prior to her injury. Her explanation for why she initially listed her home for sale is not believable, particularly considering her personal and financial situation at the time, the divorce Order dated January 2015, and her Family Court Application. She was very careful and not believable when she gave unresponsive answers to questions about her Family Court Application and the divorce Order, saying that her understanding at the time of the Application was discussed with that judge.

[156] The fact that the asking price for her home was reduced twice, by a total of $375,000.00, prior to her initially injuring her ankle is further evidence that Ms. Henry was actively trying to sell her home well before her injury.

[157] Furthermore, Ms. Henry has not produced any documentation with respect to the sale of her home that would assist in determining how much she earned from the sale. The appraisal she relies upon is silent with respect to what the costs would have been to Ms. Henry if her home had been sold for $1,200,000.00 rather than $995,000.00. Without this information, I cannot assess what Ms. Henry’s actual loss was.

[158] Considering the evidence, I would have awarded no damages for this.

Out of Pocket Expenses

[159] This is another example of how Ms. Henry gave conflicting evidence.

[160] The only expenses proven by Ms. Henry are some medical expenses and parking expenses totalling $655.34.

[161] Ms. Henry failed to establish that her consultation with Intuitive Consulting was due to her injury. In her testimony, Ms. Henry claimed this was related to aqua therapy. However, it was Ms. Henry’s evidence that she did aqua therapy at Liquid Gym and then at Movati gym. Correspondence from Liquid Gym confirms that it did not have a client by that name.

[162] With respect to the remainder of the out-of-pocket expenses claimed under the heading “Repairs/Maintenance of Home”, Ms. Henry has failed to establish that they occurred as a result of her injury.

Conclusion

[163] Ms. Henry’s action is dismissed.

[164] If the parties are unable to agree on costs, then: (1) within the next 15 days the defendants shall send, by email to my attention, brief written submissions not exceeding five pages, plus a costs outline, and required enclosures; (2) the plaintiff shall respond similarly within seven days of receiving the defendants’ submissions; and (3) a brief reply may be provided not exceeding two pages within three days of receiving the plaintiff’s submissions.

Released: January 30, 2023

Justice P. E. Roger