COURT OF APPEAL FOR ONTARIO
DATE: 20001017
DOCKET: C29318
CARTHY, AUSTIN AND GOUDGE JJ.A.
BETWEEN: )
BARBARA BONFOCO and RONALD )
BONFOCO ) Paul J. Pape
) for the appellant
Plaintiffs )
(Appellants) )
- and - )
DR. J. RONALD DOWD and PORT )
COLBORNE GENERAL HOSPITAL ) Paul Steep and
) Daryl Ferguson
Defendants ) for the respondents
(Respondent, Dowd) )
) Heard: June 16, 2000
On appeal from the judgment of Justice M. Paul Forestell dated February 11, 1998.
GOUDGE J.A.:
[1] The appellants are husband and wife and appeal from a dismissal of their claim that the respondent, Dr. Dowd, was negligent in his treatment of Barbara Bonfoco prior to, during, and following, an operation for the removal of an ovary. The trial was a lengthy one before Forestell J., without a jury, and resulted in a judgment dismissing the claim with costs fixed at over $300,000. The claim against the hospital was dismissed on consent prior to trial.
[2] The relevant narrative begins with complaints from Ms. Bonfoco of abdominal pain. Dr. Dowd diagnosed a cystic degeneration of the right ovary with probable adhesions to the pelvic bone, consequent upon a previous hysterectomy. He advised surgery to remove the right ovary. The procedure is called an oopherectomy.
[3] In lay terms, and perhaps imperfectly expressed, this procedure commences with an incision to open the abdominal area sufficient to view the ovary and its surroundings. The most critical feature of the operation is to avoid damage to the ureters which are pencil sized tubes running from the kidney to the bladder and passing through the pelvic area behind the ovary. This case only involves one of them. In this particular situation, Dr. Dowd found, as he expected, that the right ovary was “plastered” to the pelvic bone with scarring or tissue fibrosis and that the ureter passed through that area behind the ovary. On his testimony, he could see the ureter above and below the ovary and could tell its location and that it was intact and functioning to pass urine by “tweaking” the visible portion and watching for the natural worm-like reaction to pass from one end to the other. The next step in the operation was to cut the ovary free and to insert sutures in the tissue left behind to stem any bleeding. Following a final inspection, he closed the incision.
[4] In this particular operation, the placing of two sutures caused significant subsequent problems, leading to this claim for damages. Dr. Dowd testified that on his final inspection he could see the location of the tied ends at the top of the offending sutures, but could not see how deeply they went into the fibrosa. He assured himself of the functioning of the ureter by tweaking the exposed portions before closing the abdomen.
[5] Ms. Bonfoco’s pain and discomfort continued after the operation and ten days later a further operation was conducted, the offending sutures were identified as causing a blockage of the ureter and the leakage of urine into the abdomen. A urologist was summoned to remove the sutures and repair the damage.
[6] The evidence makes it clear that the highest risk in this operation is injury to the ureter and that extreme care is required in moving it from the scene of cutting and avoiding it in stitching. On the other hand, the evidence was that injuries to the ureter occur in about 1% of such operations and that only 30% of these are discovered before closing the operation. These percentages are not accompanied with an assessment of how many such mishaps are caused by negligence, but their presentation in Te Linde’s Operative Gynecology, the acknowledged authority on the subject, is accompanied with the warning: “The venial sin is injury to the ureter; the mortal sin is failure of recognition”. This rather ominous aphorism serves, no doubt, as a justified warning to surgeons, but does not define legal responsibility either in identifying the occurrence as forgivable or in designating the failure to recognize as a mortal sin (whatever that may mean in this context). However, its message is clear and serves as a good reference point for analyzing peer review of medical standards.
[7] Several issues concerning the conduct of the trial, liability and damages were raised by the appellants in their factum. However, in the oral argument of this appeal, counsel for the appellants confined himself to two issues.
[8] The first concerns liability. Mr. Pape argued that the trial judge misapprehended the evidence concerning the final inspection made by Dr. Dowd at the conclusion of the operation, just prior to closing Ms. Bonfoco’s abdomen. Mr. Pape submitted that if the trial judge had properly apprehended this evidence, in evaluating Dr. Dowd’s actions against the only relevant expert evidence on standard of care, he would have found that the doctor was negligent. He further argued that, as a result of this negligence Dr. Dowd finished the operation without detecting that he had put one suture close enough to damage the patient’s ureter, and one centimetre below this, had put a second suture right around the ureter itself. The resulting strangulation or devascularization of the ureter ultimately caused the patient considerable harm.
[9] The second issue concerns damages. Mr. Pape quarrels both with the trial judge’s finding that the patient’s fibromyalgia was not caused by this surgical misadventure and with his calculation of general damages.
[10] I will deal with each of these issues in turn.
[11] The liability issue focuses on the final inspection step in the procedure used in this operation. As I have described, this step is preceded by the making of an incision in the abdomen, using retraction to create a sufficient opening or operating field in the abdomen, inspecting the ovaries, and then surgically removing the diseased ovary. Then, following final inspection, the abdomen is closed.
[12] In his evidence in chief, Dr. Dowd described his final inspection in this operation as follows:
Q. So, you say, after the ovary is removed, you proceed to a final inspection. What is encompassed in the final inspection?
A. Well, we’re, uh, inspecting the, uh, the side wall, the bib where the ovary, uh, resided. We are checking to make sure there are no bleeding points, uh, and, uh, also that the, the ureter itself is intact.
Q. Did you do so in this case?
A. Yes.
Q. And how did you check that the ureter was intact?
A. Well, at the top, one, uh, visualized it and tweaked it, gave a little squeeze with a gentle forceps, causing, uh peristalsis. And, uh, ….
Q. You say you gave it a tweak to; for what purpose?
A. To, uh, see if it would contract or cause peristalsis waves. And, uh, this tells me that the, uh, the ureter is healthy.
HIS HONOUR: I am sorry: what was the phrase you used?
A. Tweaked.
HIS HONOUR: No, no, no.
MR. ROSENHEK: Peristalsis.
A. Oh; peristalsis. Uh, P-E-R-I-S-T-A-L-S-I-S; and that’s the worm-like, uh, muscular contractions of the ureter, ….
HIS HONOUR: Yes.
A. …. uh, which normally, uh, moves urine along the ureter. And, if we can stimulate the ureter with gentle stroking or tweaking, uh, this indicates that the, uh, that the ureter that is visualized can, uh, is intact and functioning. (Emphasis added.)
MR. ROSENHEK: Q. And were you able to achieve that? Did you see that?
A. Yes.
Q. Then what, Doctor Dowd?
A. Uh, at that point, we would have, uh, closed the, uh, the, uh, abdomen and, uh, taken the retractors out and closed the abdomen.
[13] On cross-examination counsel taxed Dr. Dowd with why he did not see the offending sutures during this final inspection. In responding, Dr. Dowd elaborated on what occurred during his final inspection. The exchange is as follows:
Q. And, if you visualize the ureter, Doctor, on the occasion that you have told us the location these stitches or the sutures were found, why did you not see the sutures before closing?
A. The, uh, the upper suture was at this site. Uh, the lower suture was down in the, uh, in the area of fibrosis.
Q. The sutures were a short distance apart?
A. Yes; I think it was, uh, ….
Q. One centimetre, I think?
A. One or two centimetres.
Q. One centimetre apart?
A. That’s what he said.
Q. And they are very close together?
A. They are very close together.
Q. And you did not see them.
A. “Them”? I saw, I saw the, uh; I was able to visualize, identify it and visualize the ureter as it coursed over the pelvic brim. And then it goes down into a, uh, a bed of fibrosis.
Q. Doctor, did you see the sutures that you put in there before you closed up the abdomen? Did you, Doctor?
A. I, I saw the, uh, the upper, uh; I saw where the sutures were. But, uh, to know their exact location, of that second suture, uh, it; as I said yesterday, it, the tissues are obscured because of the, the melding of the fibrous tissue reaction.
Q. Doctor, you did not see the sutures that were around or near the ….
A. All you can see is what is on the surface. You can see a knot, you can see the tails. You cannot tell precisely from looking at the pelvic sidewall where, the depth of that, the actual, precise, depth of that suture.
Q. Doctor, if you visualize the ureter, how could you not see the location of the suture?
A. I didn’t, I did not visualize the whole ureter.
Q. Thank you very much, Doctor.
A. I, I identified the whole ureter.
Q. If you identified it, how come you did not find or discover the sutures?
A. Because, I; I think I’m repeating myself here. I identified the ureter visually at the pelvic brim; I identified the ureter by palpation in the area of fibrosis. I knew that the ureter was away from the dissection, was not included in the specimen that was removed.
But, uh, it was, it’s like a snake in the grass: you can see the head, you may see the tail, but, uh, you may not see the intervening, uh, segment.
[14] The trial judge accepted this evidence and indeed reproduced this exchange in his reasons for judgment. Consequently, several things about Dr. Dowd’s final inspection are clear.
[15] First, while the doctor could see the ureter at the top of the operating field as it passed over the pelvic brim, it then went down into a bed of fibrous tissue where he could not see it.
[16] Second, the doctor did not see that he had placed the offending sutures close enough to damage the ureter (the lower stitch going right around it) because the sutures were placed at a point where the fibrous tissue prevented him from visualizing the ureter.
[17] Third, though he could not see it, Dr. Dowd located the ureter in the bed of fibrous tissue by palpation or feeling it with his fingers.
[18] Fourth, Dr. Dowd saw the tails of the offending sutures on the surface of the tissue, but did not know that they would injure the ureter because he did not know the precise depth of the sutures.
[19] Finally, although he knew where the tails were at the top of these sutures and where the ureter was right underneath, he took no further steps to ensure that the sutures had not gone deep enough to damage the ureter.
[20] It was common ground at trial that the standard of care resting on Dr. Dowd throughout this surgery was informed by the paramount importance of not damaging the patient’s ureter and even more important, recognizing that damage should it occur, before concluding the operation. Te Linde, the leading text on the subject, put it this way in a passage which was made an exhibit at trial:
Ureteral injury is one of the most common and serious complications of pelvic surgery. It is a common reason for medicolegal action by the patient. So important is this complication that it is critical for a gynecologic surgeon to become “ureter conscious” and to develop a routine method of ensuring the integrity of both ureters before concluding a major operative procedure in which there is a risk of ureteral injury. Whether by direct palpation, mobilization and inspection, ureteral catheterization or some other means of ureteral identification, the surgeon should develop some fail-safe method of evaluating the integrity of the pelvic ureter before the operative procedure is terminated.
[21] In evaluating Dr. Dowd’s actions in concluding the operation the trial judge found as follows:
Based on the experts’ evidence and accepting Dr. Dowd’s evidence of the steps taken by him in completing this surgery, it is clear that Dr. Dowd met the standard of care for an experienced gynecologist in the province of Ontario in the year 1990.
[22] He reached this conclusion after referring to the expert evidence of Dr. Murphy and Dr. Steinberg, who were called by the appellants, and Dr. O’Brien who testified for the respondent. He relied particularly, however, on the evidence of the second defence expert, Dr. Black.
[23] It is the appellants’ contention that in reaching this conclusion the trial judge misapprehended Dr. Dowd’s evidence of what he had done in the circumstances and failed to apply the only expert evidence that addressed this, namely that of Dr. Steinberg.
[24] I agree.
[25] Dr. Black’s expert opinion on the final inspection done by Dr. Dowd was quoted by the trial judge and is as follows:
Q. All right. If you then take it as a fact that Dr. Dowd assured he had hemostases (sic), that means no bleeding going along, and that he then conducted a final inspection of the operative site and the ureter and specifically relating to the ureter he visualized its course and he tweaked it or pinches it to ensure that he had peristalsis and in fact found peristalsis, can I ask you first of all tell us the significance of finding peristalsis in the ureter?
A. This is a common way in which gynecologic surgeons and urologists for that matter can test that the ureter is still functioning because if you pinch it or tweak it it will peristyles because a ureter, that’s how it moves the urine from the kidney to the bladder, by peristalsis, which is a series of contractions.
Q. If Dr. Dowd in fact did that final inspection as I’ve suggested …
A. Mmmhmm.
Q. … what is your view as to whether or not that is an appropriate final inspection?
A. That is an appropriate final inspection and would assure Dr. Dowd that the ureter is in fact functioning.
[26] This opinion is premised on Dr. Dowd being able to visualize the ureter’s course and ensuring its integrity by seeing peristalsis or the muscular contractions of the ureter.
[27] However, Dr. Dowd made it clear that while he could see the ureter as it passed over the pelvic brim, it then went down into a bed of fibrous tissue. He could not see it in the area of the offending sutures. As he said in chief, he took the existence of peristalsis as indicating simply that the ureter that is visualized is intact and functioning.
[28] Dr. Black was not asked for his opinion on the circumstances here where the ureter could not be seen for part of its course, but where the surgeon had located it by feel and found it to be under two sutures the tails of which he could see, but the depth of which were unknown to him.
[29] Dr. O’Brien, the other defence expert was also asked about the final inspection procedure, but he too was asked to assume that Dr. Dowd could visualize the ureter and see the movement caused by peristalsis throughout the ureter. He too was not asked for his opinion assuming Dr. Dowd could not see the ureter in the area of the two stitches, but located it by feel underneath the tails of the two offending stitches.
[30] The trial judge also relied on the evidence elicited in cross-examination from Dr. Murphy, an expert called by the appellants. Counsel put a series of hypothetical facts to Dr. Murphy who agreed that if those were found to be the facts then Dr. Dowd had acted appropriately.
[31] However, the assumption Dr. Murphy was asked to make concerning Dr. Dowd’s final inspection was only that he “actually inspected the ureter”. As I have recounted in connection with the defence experts, this simply does not conform to the circumstances of the final inspection that actually took place in this case. Indeed, in her evidence in chief, Dr. Murphy was clear that because of the presence of fibrous tissues, this was one case in which visualization was very important and you needed to look at the ureter and see the peristalsis in the area of that tissue to be sure of the ureter’s integrity. This lends support to the important evidence of Dr. Steinberg to which I now turn.
[32] Dr. Steinberg was the only expert to address the precise circumstances of Dr. Dowd’s final inspection. His evidence, given in chief, was as follows:
Q. And, in your professional opinion, did Doctor Dowd take the care on closing to deal with the ureter that you describe?
A. There is, there is no evidence that on closing he checked the ureter and that he checked for the integrity of the ureter. Had he in fact put these sutures around the ureter as I have suggested, they would have been readily visible to anybody who checked the ureter on closing much as they were visible to the operating surgeons ten days later.
Q. In closing, how; if you cannot visualize the ureter, how can you check to see if there are or are not sutures there?
A. Well, it’s always ideal to visualize the ureter, either through the peritoneum or, if you can’t see it through the peritoneum, dissect it. There may be times when you attempt to dissect the ureter out and, because of tumour or endometriosis or very dense scarring, you cannot. Uh, it is then appropriate, rather than causing massive hemorrhage, to roll the ureter along in your fingers, feeling like a piece of spaghetti under a piece of cloth. If one did that and saw that that structure that you rolled between your finger was in the position where there were two sutures sitting, that would indicate that you had to investigate further.
Q. And, in your professional opinion, Doctor, would a careful gynecologist, had he performed the procedure you just described, would he have discovered the two sutures?
A. Yes.
Q. And, in your professional opinion, was this done in this case?
A. There is no evidence that I have in front of me that it was done.
[33] In my view, this expert evidence of the standard of care required of Dr. Dowd given the precise circumstances he faced accords eminently with common sense. Protecting the ureter is acknowledged to be of utmost importance in this sort of operation. Where on final inspection the ureter cannot be seen for some of its length because of fibrous tissue and peristalsis and that part of the ureter cannot, therefore, be observed and where the surgeon knows by feel that the ureter is right beneath two sutures the depth of which he is uncertain of, the situation surely calls for further investigation to ensure that these sutures do not damage the ureter.
[34] The trial judge made much of the admission by Dr. Steinberg in cross-examination that if at trial Dr. Dowd was found to have done as he said on discovery that he had done, Dr. Steinberg’s opinion would have been that the proper precautions were taken. As part of this the trial judge volunteered his view that Dr. Dowd’s evidence in examination in chief and in cross-examination was the same as his examination for discovery.
[35] In my view, the trial judge erred in dealing with Dr. Steinberg’s evidence in this way. Dr. Dowd’s examination for discovery was not tendered as an exhibit and is not before this court. The trial judge was given a copy of the discovery transcript, presumably so he could follow any questions based on it. This, however, did not entitle the trial judge to make a part of the record his comparison between the transcript and the evidence he heard from Dr. Dowd. It certainly did not entitle him to take Dr. Steinberg’s admission as based on the subsequent evidence at trial quoted above that was elicited from Dr. Dowd on cross-examination about the precise circumstances of his final inspection.
[36] In summary, I conclude that in relation to the final inspection performed by Dr. Dowd, the trial judge misapprehended the evidence and erred in finding that the steps taken at this stage in concluding the surgery met the requisite standard of care. Rather, on the only expert evidence relevant to the final inspection done in the precise context of this case, Dr. Dowd did not meet the required standard of care with the result that the offending sutures were not discovered prior to closing the incision.
[37] I would, therefore, set aside the finding of the trial judge and substitute a finding of negligence.
[38] I turn then to the question of damages. The trial judge, after finding no liability, quite properly went on to assess damages. His finding is as follows:
In conclusion, the long term disability suffered by the plaintiff is not causally related to the surgery of Dr. Dowd and the only damages that could be attributed to the injury to the ureter is the additional surgery on May 13 and hospitalization from that time to June 4 which I fix at $20,000.
[39] The appellants argue first that the trial judge erred in finding that the long term disability of fibromyalgia suffered by Ms. Bonfoco is not causally related to the surgery and that taking a common sense approach and noting, in particular, the temporal link between the onset of the disability and the surgery, causation should be found.
[40] I do not agree. While the reasons of the trial judge on this issue are not fulsome, there was ample evidence on which the trial judge could properly rely in reaching his conclusion that causation had not been demonstrated. I would not interfere with this finding.
[41] Secondly, the appellants argue that the general damages awarded by the trial judge should run from May 3, 1990 the date of the operation, rather than from May 13, 1990. I agree. The earlier date marks the beginning of the patient’s pain and suffering. Applying an approximately proportional increase to the assessment made by the trial judge I would increase the general damage award by the amount of $8,000 to a total of $28,000.
[42] I would, therefore, allow the appeal, set aside the judgment below and substitute a judgment allowing the action and fixing general damages at $28,000.
[43] Taking account of the factors recited in the reasons of the trial judge in fixing costs, I would award the appellants their costs of the trial and the appeal on a party-and-party basis. If there are additional circumstances that bear on the issue of costs, the court can be spoken to.
“S.T. Goudge J.A.”
“I agree J.J. Carthy J.A.
AUSTIN J.A. (Concurring):
[44] I agree with the reasons of Goudge J.A. In view of his conclusion it is not necessary to deal with the appellants’ motion for leave to appeal the disposition of costs at trial. I cannot, however, let the occasion pass without comment despite the fact that counsel for the appellant did not touch the subject in oral argument.
[45] The trial took the whole or parts of 21 days. The action was dismissed, but the trial judge took the precaution of assessing the damages at $21,000. The defendant was awarded the costs of the action on a party-and-party basis. They were fixed by the trial judge at $70,073.98 for disbursements plus G.S.T. of $1,106.71 and fees of $225,000 plus G.S.T. of $15,750 for a total of $311,930.69.
[46] For a case involving damages at $21,000, I regard the fixing of costs at almost 15 times that amount as at least questionable. Had it been necessary to do so, I would have granted leave to appeal costs.
Released: October 17, 2000 “JJC”
“Austin J.A.”