DATE: 20050613

DOCKET: C39408

COURT OF APPEAL FOR ONTARIO

SIMMONS AND GILLESE JJ.A. AND HENNESSY J. (AD HOC)

B E T W E E N:

NANCY GAIL ARMSTRONG, DAVID ARMSTRONG, SCOTT BRUCE ARMSTRONG, CONNIE JUNE ARMSTRONG-KRUGER, DIANNE BOUDREAU, FREDRICK COWPER AND JUNE COWPER

Plaintiffs/Respondents

• and -

CENTENARY HEALTH CENTRE, DR. ESHRAT SAYANI, DR. PETER WALKOVICH, DR. ARNOLD TEPPERMAN, DR. MICHAEL SANDERS, DR. MICHAEL B. WILTON, DR. CAROLINE HUH, AND DR. J.E. SHERITON

Defendants/Appellants

Counsel:

Kirk F. Stevens and Brian T. Butler for the appellants Dr. Caroline Huh and Dr. J.E. Sheriton

Morton Greenglass, Q.C. for the respondents

Heard: October 14, 2004

On appeal from the judgment of Justice Lloyd Brennan of the Superior Court of Justice dated December 20, 2002 reported at [2002] O.J. No. 5011.

SIMMONS J.A.:

I. Overview

i) the Facts

[1] In June 1999, Nancy Armstrong was diagnosed with an advanced stage of clear cell ovarian cancer. Tragically, she succumbed to this deadly disease in September 2003 at the age of 53. Prior to her death, Mrs. Armstrong and her family commenced these proceedings, claiming that several doctors who treated her for abdominal pain in 1998 at Centenary Health Centre failed to diagnose ovarian cancer when they ought to have done so. The issues on appeal concern whether the trial judge erred in finding the appellants, Dr. Caroline Huh and Dr. Jack Sheriton, liable for damages arising from Mrs. Armstrong's premature death.

[2] Dr. Huh is a gynaecologist who saw Mrs. Armstrong on three occasions between June and August 1998. Dr. Huh formed a clinical impression that Mrs. Armstrong had chronic pelvic inflammatory disease with secondary adhesions in the pelvis, meaning that organs or tissues have become stuck to each other as the result of the formation of scar tissue. On the last occasion that she saw Mrs. Armstrong, Dr. Huh ordered an ultrasound and made a note that a diagnostic laparoscopy would be required if the ultrasound was abnormal.

[3] Following the ultrasound and while Dr. Huh was on vacation, Mrs. Armstrong consulted Dr. Sheriton, another gynaecologist. On September 1, 1998, Dr. Sheriton performed a diagnostic laparoscopy. During the course of this procedure, Dr. Sheriton called in a general surgeon, Dr. Mohan, to assist in dividing numerous adhesions that Dr. Sheriton observed in Mrs. Armstrong’s pelvis.

[4] Dr. Sheriton testified that he believed that Mrs. Armstrong's pain was caused by adhesions related to a prior pelvic inflammatory disease. He said that adhesions are a common cause of pelvic pain and that once they have been divided it is not unusual that the patient's symptoms are cured. When asked if the disease that caused the symptoms is also cured, Dr. Sheriton responded, “There was no disease to be found. Once the adhesions [were] lysed, the pelvic organs looked normal.”

[5] At trial, Mrs. Armstrong relied on the expert evidence of Dr. Ralph Hodd, the gynaecologist who diagnosed her cancer in June of 1999. Dr. Hodd explained that pelvic inflammatory disease can be either acute, meaning it is the result of a recent infection; or chronic, meaning the infection is gone but the inflammation remains. However, Dr. Hodd stated that, in his opinion, pelvic inflammatory disease did not fit with what he discovered in Mrs. Armstrong's pelvis when he operated in 1999. Rather, he opined that Drs. Huh and Sheriton were both negligent in failing to detect Mrs. Armstrong's cancer and that if Mrs. Armstrong’s cancer had been detected sooner, the diagnosis quite probably would have saved her life.

[6] Dr. Hodd explained that the stage and sub-stage at which ovarian cancer is discovered are significant to the prognosis for survival. In stage I ovarian cancer, the growth of malignant cells is confined to the ovaries; whereas, in stages II, III, and IV ovarian cancer, malignant cells have spread from the ovaries to other pelvic tissues, to the abdomen, or to more distant areas of the body, respectively.

[7] Further, while sub-stages I a and b ovarian cancer indicate that the ovary capsules are still intact and that cancer is confined to one (stage I a) or both (stage I b) ovaries, in sub-stage I c ovarian cancer:

▪ there is tumour on the surface of one or both ovaries; or

▪ the ovary capsule has ruptured; or

▪ there are ascites[^1] present containing malignant cells or positive peritoneal washings[^2].

[8] Dr. Hodd testified that in June 1999 pathology confirmed that Mrs. Armstrong’s cancer had progressed to stage III b. In Dr. Hodd’s view, as of May 1998, Mrs. Armstrong had at least stage I c, and possibly stage II c, ovarian cancer. In addition, he opined that Drs. Sheriton and Mohan likely failed to observe a tumour on the surface of Mrs. Armstrong's ovaries during the diagnostic laparoscopy performed on September 1, 1998.

[9] Following completion of the evidence at trial, the respondents amended their statement of claim to advance an alternative claim that Dr. Sheriton was negligent in failing to perform a hysterectomy as a remedy for chronic pelvic inflammatory disease.

[10] The appellants’ position at trial was that Mrs. Armstrong did not have detectable ovarian cancer while under their care; in the alternative, if Mrs. Armstrong did have detectable ovarian cancer, the appellants claimed that it must have progressed to a point that her prospects for survival were less than 50%.

ii) the trial judge’s findings

[11] In addition to Drs. Huh and Sheriton, the action proceeded to trial against Dr. Peter Walkovich, a general surgeon who performed an emergency appendectomy on Mrs. Armstrong on May 8, 1998. On December 20, 2002, Brennan J. dismissed the claim against Dr. Walkovich but granted judgment against the appellants.

[12] The trial judge gave extensive reasons and made numerous findings of fact. The appellants’ grounds of appeal relate, in part, to the reasonableness of the trial judge’s findings. I will highlight the portions of the trial judge’s reasons that are of particular significance to the issues on appeal.

[13] In relation to the standard of care issue, the trial judge’s findings include the following:

(a) as against Dr. Huh

▪ by July 27, 1998, laboratory tests[^3] ordered by Dr. Huh had all proved negative for active infection and had therefore demonstrated “that there was no active infectious process to explain the inflammation and adhesions in Mrs. Armstrong's pelvis, that is, no ‘pelvic inflammatory disease’ in the sense in which the term is generally understood”;

▪ while pelvic inflammatory disease may have been a reasonable working diagnosis until the negative laboratory test results were known, thereafter, it was no longer reasonable for Dr. Huh to maintain pelvic inflammatory disease as her primary diagnosis;

▪ Dr. Huh had a duty to review and revise her working diagnosis and failed to do so; and

▪ a proper differential diagnosis would have included cancer as a possible source of the inflammation known to be present in Mrs. Armstrong's pelvis.

(b) as against Dr. Sheriton

▪ Dr. Sheriton's diagnostic laparoscopy demonstrated that Mrs. Armstrong did not have pelvic inflammatory disease; and

▪ once pelvic inflammatory disease was ruled out, Dr. Sheriton had a duty to investigate the cause of the inflammation and adhesions in Mrs. Armstrong's pelvis either through laboratory analysis of tissue or fluid samples or of washings taken at the time of surgery, or by returning to the process of diagnosis following surgery, and he failed to do so.

(c) as against both Drs. Huh and Sheriton

▪ Mrs. Armstrong had stage I clear cell ovarian cancer while under the care of Drs. Huh and Sheriton;

▪ if Dr. Hodd's view is correct, the possibility of early stage cancer as the source of the inflammation ought to have been considered;

▪ it is probable that the inflammation that was causing Mrs. Armstrong's pain and distress was also causing the continuing development of the adhesions;

▪ Dr. Mohan’s surgical report was the only record that Mrs. Armstrong’s ovaries and fallopian tubes were rendered visible, but “[t]hat they appeared healthy to him, a general surgeon, is not … diagnostic”;

▪ all other probable causes of her continuing inflammation had been “excluded” on clinical grounds; and

▪ the appellants failed in their duty to use reasonable means to detect Mrs. Armstrong's cancer.[^4]

[14] In relation to causation, the trial judge found that the survival rate exceeds 50% for patients diagnosed with stage I ovarian cancer and that Mrs Armstrong’s life expectancy would have been substantially enhanced if her cancer had been detected sooner.

[15] Relying on Snell v. Farrell, [1990] 2 S.C.R. 311, for the principle that causation need not be established with scientific precision, the trial judge concluded that Drs. Huh and Sheriton were liable for the damages suffered by the respondents and granted judgment against the appellants in the amount of $972,558.34, being the damages arising from Mrs. Armstrong’s anticipated premature death.

[16] With respect to the respondents’ alternative claim that Dr. Sheriton ought to have performed a hysterectomy as a remedy for pelvic inflammatory disease, the trial judge accepted Dr. Sheriton's evidence that, once the adhesions were lysed, Mrs. Armstrong's pelvic organs looked normal. The trial judge said, “Dr. Sheriton was under no duty to excise organs he thought were healthy”.

iii) issues on appeal

[17] The dispositive issues on appeal that I will address in detail are the following:

1. Is the trial judge’s finding unreasonable that Mrs. Armstrong had detectable stage I clear cell ovarian cancer while under the appellants’ care?

2. If Mrs. Armstrong did have detectable stage I clear cell ovarian cancer while under the appellants’ care, is the trial judge’s finding unreasonable that the survival rate exceeds 50% for patients diagnosed with stage I ovarian cancer?

3. With respect to the finding of liability against Dr. Huh, did the trial judge err by ignoring evidence that Mrs. Armstrong did not return to see Dr. Huh following an ultrasound she ordered in early August 1998?

iv) brief statement of my conclusion

[18] The third ground of appeal is a complete answer to the respondent’s claim against Dr. Huh. For reasons that I will explain, I am satisfied that it establishes a break in the chain of causation. Accordingly, based on the third ground of appeal, I would set aside the judgment against Dr. Huh and dismiss the respondents’ claim against her.

[19] As for the first and second grounds of appeal (which relate to both Dr. Huh and Dr. Sheriton), I agree that the trial judge made errors in his findings requiring a new trial, but I reject the appellants’ submissions that they justify an order dismissing the respondents’ claim. As I have already disposed of the claim against Dr. Huh, based on the first and second grounds of appeal, I would set aside the judgment against Dr. Sheriton and order a new trial of the respondents’ claim against him.

II. Background

i) 1998 treatment of Mrs. Armstrong

a) introduction

[20] Dr. Hodd testified that the vast majority of ovarian cancers are discovered through bi-manual pelvic examination, ultrasound, or direct examination of the ovaries and pelvis, and that, of the three, the latter is the best method of detection. Between March 1998 and September 1998, Mrs. Armstrong consulted several physicians, underwent three bi-manual pelvic examinations, three ultrasound examinations, and had two surgeries because of abdominal pain. However, throughout this period, none of her physicians considered ovarian cancer as a possible cause of her symptoms.

b) the May 7, 1998 ultrasound

[21] In March 1998, Mrs. Armstrong consulted Dr. Sayani (a doctor she consulted from time to time but not her regular family doctor). Dr. Sayani performed a bi-manual pelvic examination and noted that the results were normal. In addition, Dr. Sayani ordered a barium enema and prescribed an antibiotic for diverticulitis. When the pain did not subside, Mrs. Armstrong's family doctor referred her to Dr. Sanders, a gastroenterologist. Dr. Sanders ordered an ultrasound examination, which took place on May 7, 1998. As a result of the ultrasound findings, Dr. Sanders referred Mrs. Armstrong to Dr. Walkovich for an emergency appendectomy on May 8, 1998.

[22] Dr. Walkovich testified that the May 7, 1998 ultrasound report indicated fluid[^5] between loops of bowel in the lower right quadrant of the abdomen; a thickened appendix; normal uterus, ovaries, and fallopian tubes; and no fluid in the pelvis.

c) the May 8, 1998 appendectomy

[23] During the May 8, 1998 appendectomy, Dr. Walkovich found a moderate amount of fluid in the abdomen (indicating inflammation), and noticed inflammation on the surface of the appendix and in the lower right quadrant of the abdomen. He also observed abdominal adhesions.

[24] Dr. Walkovich was unable to say when the adhesions developed. He explained that adhesions can be the result of a number of different things, including previous abdominal surgery, a minor infection of the abdominal organs, or a minor trauma of some sort. However, because he divided the abdominal adhesions by passing his hand between the abdominal wall and the omentum (an apron of fat that covers the inside layer of the abdominal wall), he suspected that those adhesions had not been present for “years and years”.

[25] Dr. Walkovich also saw considerable adhesions in Mrs. Armstrong's pelvis. While he confirmed that Mrs. Armstrong’s adhesions were light in some areas, he said they were rather dense in others. When Dr. Walkovich explored the left side of Mrs. Armstrong's pelvis, he encountered what felt like a “sausage-like mass” measuring about six to seven centimetres long and about two to three centimetres in diameter. He did not suspect the mass was related to ovarian cancer, because the ultrasound showed her pelvic organs were normal.

[26] In cross-examination, Dr. Walkovich explained that a surgeon can see the “seeding” of metastatic cancer in the abdomen with the naked eye, and said that he did not encounter anything like that during Mrs. Armstrong's surgery.

d) Dr. Walkovich's clinical impression

[27] In a post-operative note, Dr. Walkovich expressed his clinical impression that Mrs. Armstrong's pelvic inflammation was the result of mild pelvic inflammatory disease or recurrent appendicitis. He explained that he used the term “mild pelvic inflammatory disease” because he did not encounter the big abscesses seen in chronic pelvic inflammatory disease. Dr. Walkovich testified that about 80-90 percent of pelvic inflammatory disease results from sexual transmission, but some cases are the result of other internal infections.

e) the pathologist's report relating to the appendectomy

[28] The pathologist's report dated May 12, 1998 indicated that Mrs. Armstrong had periappendicitis, i.e., an inflammation on the surface of the appendix, rather than acute appendicitis.[^6] The pathologist suggested, “[T]he possibility of a chronic smouldering infection external to the appendix such as in pelvic inflammatory disease should be excluded on clinical grounds”.

f) the May 28, 1998 ultrasound and referral to Dr. Huh

[29] Based on his clinical impression that she was suffering from pelvic inflammatory disease, Dr. Walkovich recommended that Mrs. Armstrong have a further ultrasound and referred her to Dr. Huh. The ultrasound was performed on May 28, 1998. The radiologist's report includes the following comments: “[U]terus, ovaries and adnexae [fallopian tubes] are normal in size and echogenicity.[^7] There is no evidence of any abnormal [fluid] collection... involving the lower right quadrant... [or] free fluid in the pelvis”.

[30] On June 4, 1998, Mrs. Armstrong returned to Dr. Walkovich's office reporting abdominal pain. Although Mrs. Armstrong had an appointment scheduled with Dr. Huh in July, Dr. Walkovich arranged for Dr. Huh to see her in the emergency department of Scarborough Centenary Hospital on June 9, 1998.

g) the June 9, 1998 appointment with Dr. Huh

[31] Dr. Huh testified that she reviewed Dr. Walkovich's post-operative note prior to meeting with Mrs. Armstrong on June 9, 1998. Because Dr. Walkovich's findings were compatible with chronic pelvic inflammatory disease and because the ultrasound results did not indicated any abnormalities in Mrs. Armstrong's ovaries, Dr. Huh did not consider the possibility of cancer. Dr. Huh explained that ultrasound can pick up items as small as three to four millimetres and that it is very sensitive in picking up small changes in the ovaries.

[32] In her meeting with Mrs. Armstrong, Dr. Huh took a history and carried out abdominal and pelvic examinations. During the pelvic examination, Dr. Huh did not palpate any masses or enlarged ovaries but found that Mrs. Armstrong's uterus and cervix were tender. She interpreted the tenderness as a sign of inflammation and therefore took cervical swabs to test for gonorrhea and chlamydia. Dr. Huh said that she formed a clinical impression that Mrs. Armstrong had chronic pelvic inflammatory disease with secondary adhesions in the pelvis.

[33] Dr. Huh described chronic pelvic inflammatory disease as “involving findings of adhesions in ... somebody complaining of pain usually with a history of prior infection in the pelvis.” She explained that the prior infection may have been many years before, that it may have caused inflammation leading to adhesions, and that, if damaged by inflammation, the fallopian tubes become more susceptible to reinfection. Dr. Huh also noted that the prior infection may have been sub-clinical i.e., the patient may not have known about it. Unlike Dr. Hodd, Dr. Huh appeared to imply that inflammation recurs as an element of the disease only when there is reinfection. However, she clarified that sexually transmitted disease need not be the source of reinfection; it can be caused, for example, by bacteria from adjacent organs.

[34] When asked about the treatment for chronic pelvic inflammatory disease, Dr. Huh said that it depends on the symptoms. She explained that one of the reasons for pain is reinfection of the tissues in which case the treatment may be with antibiotics. Another reason for pain can be adhesions in the pelvis, requiring surgical treatment to remove the adhesions. Lastly, if those other measures are not helpful, it may be necessary to remove the uterus, tubes and ovaries.

[35] In Mrs. Armstrong's case, although Dr. Huh found tenderness, she felt it was not marked tenderness. Accordingly, Dr. Huh began with two broad-spectrum antibiotics, the least radical treatment.

[36] In cross-examination, Dr. Huh explained that chronic pelvic inflammatory disease was her working diagnosis i.e., the most likely of a long list of differential diagnoses. Because she found no suspicious mass and her other findings were inconsistent with cancer, she did not consider ovarian cancer as part of her differential diagnosis.

h) the July 10, 1998 appointment with Dr. Huh

[37] On July 10, 1998, Mrs. Armstrong reported to Dr. Huh that she had finished the antibiotics and had very little pain. Dr. Huh informed Mrs. Armstrong that the tests performed on June 9, 1998 were negative. However, as a matter of precaution, Dr. Huh ordered additional tests for HIV and syphilis.

[38] Dr. Huh’s note of the July 10, 1998 visit confirms that her clinical impression was chronic pelvic inflammatory disease. Dr. Huh said that she booked a further appointment with Mrs. Armstrong for August 6, 1998 because she wanted to follow-up and make sure that Mrs. Armstrong was symptom-free.

i) the August 6, 1998 appointment with Dr. Huh

[39] On August 6, 1998, Mrs. Armstrong reported having had an episode of abdominal pain the week before, along with fever, constipation and upper respiratory symptoms. Although it was her impression that the pain episode was not related to chronic pelvic inflammatory disease, Dr. Huh ordered a further ultrasound to check for evidence of ongoing inflammation. According to Dr. Huh, she also discussed with Mrs. Armstrong the possibility of diagnostic laparoscopy to confirm the presence of chronic pelvic inflammatory disease, to assess the severity of the adhesions, and potentially also to remove adhesions.

[40] Dr. Huh made the following note of the August 6, 1998 appointment in Mrs. Armstrong's chart, “[I]mpression -- not likely related to chronic PID. Plan: ultrasound to rule out hydrosalpinx [a blocked, fluid-filled fallopian tube] and will need laparoscopy if ultrasound is abnormal”.

j) the August 14, 1998 ultrasound

[41] The sonographer’s report and the radiologist’s report of the August 14, 1998 ultrasound both indicated the likelihood of chronic pelvic inflammatory disease and fluid in the Pouch of Douglas (a crease behind the ovaries). In addition, the radiologist's report noted, “This collection is more than on our last examination of May 7, 1998 indicative of a hydrosalpinx”.

k) no further appointments with Dr. Huh after August 6, 1998

[42] Dr. Huh was on holiday from August 15 until August 24, 1998. While Dr. Huh was away, Mrs. Armstrong consulted her family doctor, Dr. Schunk. Dr. Schunk referred Mrs. Armstrong to Dr. Sheriton. Dr. Sheriton saw Mrs. Armstrong in his office on August 19, 1998. After seeing Mrs. Armstrong, he scheduled her for a diagnostic laparoscopy, which he eventually performed on September 1, 1998.

[43] Dr. Huh received the radiologist’s report of the August 14, 1998 ultrasound but did not see Mrs. Armstrong after their August 6, 1998 appointment. Dr. Huh testified that she anticipated seeing Mrs. Armstrong following the ultrasound to review the results and, if necessary, to make recommendations for further treatment. However, when she returned from her holiday, her secretary informed her that Mrs. Armstrong had called to say that she had seen another gynaecologist and was scheduled for surgery.

[44] Contrary to Dr. Huh's evidence, Mrs. Armstrong testified that after seeing Dr. Sheriton she spoke to Dr. Huh directly and Dr. Huh agreed to attend the laparoscopy. According to Mrs. Armstrong, she consulted Dr. Schunk because Dr. Huh refused to operate. However, because she (Mrs. Armstrong) did not know Dr. Sheriton, she asked Dr. Huh to attend the laparoscopy for moral support. Mrs. Armstrong testified initially that Dr. Huh told her that she would gladly assist Dr. Sheriton. Subsequently, in response to questions from the trial judge, Mrs. Armstrong conceded that she could not swear that Dr. Huh used the word “assist”. Mr. Armstrong also said that she did not learn that Dr. Huh did not attend the laparoscopy until after she was diagnosed with cancer.

l) the September 1, 1998 laparoscopy

[45] As already noted, Dr. Sheriton saw Mrs. Armstrong in his office on August 19, 1998. In addition to Dr. Schunk's referring note, Dr. Sheriton had a copy of the sonographer’s report of the August 14, 1998 ultrasound. According to Dr. Sheriton, he told Mrs. Armstrong he was planning to do a diagnostic laparoscopy to determine the cause of her symptoms and that he would perform a hysterectomy if he found severe pelvic inflammatory disease. By “severe” pelvic inflammatory disease, he meant a situation where the pelvic organs were matted together and could not be dissected or if there were other problems such as fibroids or endometriosis.

[46] During the laparoscopy, which was performed on September 1, 1998, Dr. Sheriton found considerable adhesions in Mrs. Armstrong's pelvis, involving the fallopian tubes as well as the large bowel. Because he is not an expert in bowel surgery, Dr. Sheriton called in Dr. Mohan, a general surgeon, to assist in dividing the adhesions. Dr. Sheriton testified that he operated the magnifying video camera while Dr. Mohan did the dissections. He said that once the adhesions were freed, they were able to see the ovaries and the fallopian tubes through the camera, and that both looked normal. Dr. Sheriton explained that one has to flip the ovaries one way and then the other in order to divide all of the adhesions. Accordingly, the doctors looked at the entire surface of the ovaries on both sides. Dr. Sheriton said he did not find evidence of a hydrosalpinx, or of a mass, or of anything else suggestive of ovarian cancer. He testified that he did not perform a hysterectomy because once the adhesions were freed and he could see that the pelvic organs looked normal, there was no indication to do so.

[47] Dr. Sheriton saw Mrs. Armstrong at follow-up visits on September 15, 1998 and November 15, 1998. He testified that he found no abnormalities on examination and concluded that the surgery had been successful. He said that he would have told Mrs. Armstrong that if she had any further problems to contact him or her family doctor.

ii) Dr. Mohan's evidence at trial

[48] Dr. Mohan confirmed that he was called in to assist during Mrs. Armstrong's laparoscopy because Dr. Sheriton encountered dense adhesions and wanted help mobilizing the bowel so that he could observe the pelvic organs properly. Dr. Mohan said he had no independent recollection of the surgery and was relying on his operative notes in giving evidence.

[49] Dr. Mohan testified that he and Dr. Sheriton were able to see the right fallopian tube and ovary once the adhesions on the right side of the pelvis were removed. On the left side, those organs were not readily visible until he mobilized the sigmoid colon. Dr. Mohan explained that the process of freeing up the adhesions allows you to see both sides of the ovary. His notes indicated that both ovaries appeared healthy, meaning that he did not see evidence of abnormal enlargement, unusually large cysts, endometriosis, growths or excrescenses on the surface of either ovary.

[50] When asked in cross-examination if he observed whether Mrs. Armstrong had pelvic inflammatory disease, Dr. Mohan said he saw adhesions and scar tissue in the pelvis, which could be a sequela of pelvic inflammatory disease. He speculated that the adhesions were caused either by previous surgery or previous infection and explained that sexually transmitted diseases are not the only infections that cause adhesions. Dr. Mohan testified that it would be difficult to determine the cause of the adhesions because the cause may be very remote; there is no temporal relationship between the presentation of symptoms from adhesions and the inciting episode.

iii) the expert evidence at trial

a) the respondents’ evidence

A) Dr. Hodd

[51] Dr. Hodd was permitted to give evidence as Mrs. Armstrong's treating physician and to express his opinion concerning her previous care and about matters relating to the surgical and oncological care of gynaecology patients in general. He acknowledged that he had only encountered two cases of clear cell ovarian cancer in his career and also agreed that the prospects of survival associated with ovarian cancer were not within his area of expertise.

[52] Dr. Hodd first met Mrs. Armstrong on June 14, 1999 and operated on her on June 16, 1999. On that date, he found tumours in both of her ovaries, as well as evidence of cancer in the abdomen and peritoneum. He removed her ovaries and fallopian tubes, as well as the omentum, but did not remove the uterus, as it was adhered densely to the bladder and fixed to the pelvis, and he worried that he might not be able to control the bleeding if he excised it. Following chemotherapy, he did a further operation in November of 1999 and removed her uterus at that time.

1. Dr. Hodd’s evidence concerning pelvic inflammatory disease

[53] Dr. Hodd explained that pelvic inflammatory disease generally refers to inflammatory changes in the pelvis, usually infection or inflammation of the fallopian tubes and ovaries. He said that chronic pelvic inflammatory disease is a progressive disease, which does not stop because the infection is gone. Over time, the fallopian tubes become blocked and distended, and tubo-ovarian abscesses may appear. Elsewhere, Dr. Hodd explained that there can be degrees of pelvic inflammatory disease and that if, for example, someone has extreme pelvic infection with large tubo-ovarian abscesses, the patient can become extremely ill and theoretically, can die.

[54] Dr. Hodd testified that he did not find specific evidence of pelvic inflammatory disease when he operated on Mrs. Armstrong in June of 1999, but qualified that by saying that he did not find “specific evidence of what [he] would expect from pelvic inflammatory disease, inflamed distended fallopian tubes, the usual particular findings of a lot of adhesions between tubes and ovaries, etc., that there had been a lot of previous damage”. Further, Dr. Hodd acknowledged that it was difficult to say with precision that the adhesions he observed in June of 1999 were all from inflammation due to cancer or if some were due to previous disease.

[55] However, Dr. Hodd noted that when he performed the second operation in November of 1999 following chemotherapy, “everything was cleared up very nicely...[t]here was no evidence of any tumour and there was no evidence of any inflammatory changes either.” Dr. Hodd explained that chemotherapy changes what is malignant but should not eliminate the effects of pelvic inflammatory disease. He noted that in November of 1999, Mrs. Armstrong's uterus was free of its surrounding structures such as the bladder, and said, “If that had been due to pelvic inflammatory disease chemotherapy shouldn't change that”.

[56] Dr. Hodd testified, “ [A]lthough I cannot say with absolute certainty that she could not have had some previous infection or inflammation, it is my opinion that there was not and I feel that all of the obvious inflammatory changes that did occur ... [were] secondary to the presence of the cancer”.

[57] In cross-examination, Dr. Hodd acknowledged that he did not believe the mass Dr. Walkovich had described was an ovarian cancer tumour. Rather, he concluded that it was consistent with the adhesions associated with the left ovary and fallopian tube and the omentum.

2. Dr. Hodd’s evidence concerning ovarian cancer

[58] During the course of his evidence, Dr. Hodd explained the nature of Mrs. Armstrong's cancer and the staging of ovarian cancer for treatment purposes. Dr. Hodd testified that 90 percent of ovarian cancers are epithelial (referring to a lining) in origin. He said that Mrs. Armstrong had clear cell carcinoma, a rare type of epithelial cancer accounting for five percent of all ovarian cancers.

[59] Dr. Hodd opined that, in May of 1998, Mrs. Armstrong's cancer was “at least a I c, possibly as much as a II c.” He thought that it was quite probable that Mrs. Armstrong's tumour took more than a year, perhaps as much as two years, to develop. Although he acknowledged that between September of 1998 and June of 1999 Mrs. Armstrong's cancer could have progressed from being undetectable to stage III b (the stage at which he discovered it), he disagreed that that is what occurred. In his view, the more likely scenario was that there was tumour present on one or both of Mrs. Armstrong's ovaries while Mrs. Armstrong was under the appellants’ care and that the tumour had ruptured the cortex of the ovaries, causing the formation of fluid and adhesions in response to cancer.

[60] Moreover, Dr. Hodd was not persuaded that Drs. Sheriton and Mohan had completely freed up or visualized Mrs. Armstrong's ovaries during the diagnostic laparoscopy. He opined that there was likely tumour present on a portion of her left ovary that they did not see.

[61] Using the textbook Clinical Gynecologic Oncology[^8] as his source, Dr. Hodd reviewed the five-year actuarial survival rates for all epithelial ovarian cancers grouped together. For stage I a, the survival rate is 83.5%, for stage II c it is 61.3% and for stage III b it is 29.2%.

[62] Later in his testimony, Dr. Hodd referred to an article in the March 1994 journal Obstetrics and Gynaecology Clinics of North America in which the authors reported that 75% of clear cell carcinomas are diagnosed in stage I, and as a result, the overall survival rate for this type of cancer is 50%, much better than for other types of ovarian cancer.

b) the appellants' evidence

A) Dr. Kaizer

[63] Dr. Kaizer has been a staff oncologist at Credit Valley hospital since 1985. He estimated that during that period, he has seen between 300 and 400 cases of ovarian cancer, about five percent of which, or 15 to 20 overall, were clear cell carcinomas. He testified that, based on his personal experience and his understanding of the literature, patients diagnosed with non-stage I a clear cell ovarian cancer have a 0-25% chance of surviving beyond five years. Moreover, in his view, the overall prognosis for clear cell ovarian cancer is inferior to the prognosis for the other types of epithelial ovarian cancer.

[64] On cross-examination, Dr. Kaizer was asked about the survival rate for stage I c clear cell ovarian cancer. He responded that it is an uncommon stage in an uncommon disease and that the largest series of stage I c reported cases dealt with six individuals, none of whom survived beyond five years.

[65] Dr. Kaizer opined that Mrs. Armstrong probably did not have detectable cancer in 1998. He said that the cancer could have gone from undetectable to detectable over a short number of months. In forming this opinion, Dr. Kaizer was persuaded by the fact that none of the ultrasounds revealed evidence of ovarian disease; that on direct examination of tissues, Drs. Walkovich, Sheriton and Mohan did not see anything that they identified as being cancerous; and that the pathology following Mrs. Armstrong's appendectomy was normal.

[66] In response to a question from the trial judge concerning whether Mrs. Armstrong may have had undetectable cancer in May 1998, Dr. Kaizer explained that theoretically, it takes cancer a long time to reach the one millimetre level but that once it does, it may not take long to go from that level to fatal disease. He said that if Mrs. Armstrong had had microscopic cancer at the one millimetre level, one would have to have been very lucky to find it, even if her ovaries were removed. He said that you do not section the entire ovary to look at it because you would have to make about 1,000 sections to do so.

B) Dr. De Petrillo

[67] At the time of trial, Dr. De Petrillo was the coordinator of the surgical oncology program for Cancer Care Ontario and director of the gynaecologic oncology department at the University of Toronto. Dr. De Petrillo testified that during the course of his career he has dealt with about 700 cases of ovarian cancer, about 40 or 50 of which were clear cell carcinoma. He said that ovarian cancer is usually detected in the advanced stages when treatment is not effective and also noted that the prognosis for clear cell ovarian cancer is poorer than for other types of ovarian cancers.

[68] Dr. De Petrillo testified that based on his experience the probability of survival for all stage I a epithelial ovarian cancers is 80%, but for stage I clear cell carcinoma it is 63%. While the survival rate for all stage I c epithelial cancers is 73%, the survival rate for stage I c clear cell carcinoma is 46%.

[69] Like Dr. Kaizer, Dr. De Petrillo opined that Mrs. Armstrong did not have detectable ovarian cancer while under the appellants' care. He relied on the fact that Mrs. Armstrong had had a number of ultrasounds that were essentially normal and that both ovaries were described as normal after being observed during a laparoscopy. He also agreed that her cancer could have progressed from being undetectable to detectable over the course of six months.

C) Dr. Owolabi

[70] At the time of trial, Dr. Owolabi was the chief of obstetrics and gynaecology at North York General Hospital. During the course of his career, he had seen about 100 to 120 cases of ovarian cancer, three to four of which were clear cell carcinoma, and many cases of pelvic inflammatory disease.

[71] According to Dr. Owolabi, there are characteristics of different kinds of adhesions that will indicate their origin i.e., tuberculosis, ovarian cancer, endometriosis, or pelvic inflammatory disease. He opined that if the ovaries were observed during surgery and appeared to be normal and if the preceding ultrasounds revealed nothing unusual, cancer of the ovaries was effectively ruled out.[^9]

III. Analysis

i) Is the trial judge’s finding unreasonable that Mrs. Armstrong had detectable stage I clear cell ovarian cancer while under the appellants’ care?

[72] According to the appellants, the trial judge’s conclusion that Mrs. Armstrong had cancer while under the appellants’ care was premised on a finding that cancer, and not pelvic inflammatory disease, was causing her continuing inflammation and adhesions. In particular, the trial judge stated that “early stage” cancer should have been considered as a possible source of her continuing inflammation and that it was “probable that the inflammation that was causing Mrs. Armstrong’s pain and distress, was also causing the continuing development of adhesions”.

[73] The appellants submit that, contrary to the trial judge’s finding, the only reasonable basis for finding that cancer was causing Mrs. Armstrong’s inflammation and adhesions was that she had a visible tumour that had ruptured the cortex of her ovaries. However, since the trial judge provided no reasonable basis for rejecting Dr. Mohan’s evidence that, on September 1, 1998, Mrs. Armstrong’s ovaries appeared healthy, the appellants contend that the trial judge’s finding that Mrs. Armstrong had detectable stage I clear cell ovarian cancer while under the appellants’ care is unreasonable, and that the respondents’ claim should therefore be dismissed.

[74] Subject to one caveat concerning the appellants’ interpretation of the trial judge’s reasons, which I will explain later, I agree that the trial judge made certain errors in his findings. However, I do not agree with the appellants’ characterization of those errors, and I consider that it was open to the trial judge to reject Dr. Mohan’s evidence. Accordingly, rather than dismissing the respondents’ claim based on this ground of appeal, I would order a new trial.

a) Is the trial judge’s finding unreasonable that early stage cancer should have been considered as a possible source of Mrs. Armstrong’s continuing inflammation and adhesions?

[75] In his reasons, the trial judge commented, “If Dr. Hodd’s view is correct, the possibility of early stage cancer as the source of the inflammation ought to have been considered”. To the extent that this comment leaves open the possibility that stage I a or b ovarian cancer, or stage I c ovarian cancer without tumour break-through, may have been causing Mrs. Armstrong’s continuing inflammation and adhesions, I agree that it is not supported by the evidence at trial.

[76] As I read his evidence, Dr. Hodd testified that, in his opinion, Mrs. Armstrong had at least stage I c ovarian cancer with tumour break-through, and possibly as much as stage II c ovarian cancer, that it was the inflammatory reaction to the tumour that caused her adhesions and that the tumour break-through would be visible on laparoscopic inspection.

[77] In particular, in response to a specific question concerning whether there could be malignant cells in the abdomen with no visible break in the ovary capsule, he responded, “[p]robably not”. In response to a subsequent question about the progression of the disease, Dr. Hodd confirmed that any interruption by tumour to the capsule of the ovary would be visible to the naked eye. Further, when asked if it is possible that adhesions could form when the cancer is fully contained within the ovary membrane, he said, “[n]o, not likely, because there is nothing to react to”.

[78] In addition, Dr. Hodd testified that while he could not specify an exact amount of time after the onset of clear cell cancer that adhesions would begin to form, “certainly as soon as there is any rupture of tumour through the surface of the ovary then you are going to start forming adhesions to surrounding structures”.

[79] None of the other expert witnesses offered the opinion that stage I a or b, or stage I c ovarian cancer without visible tumour break-through, could have been causing Mrs. Armstrong’s continuing inflammation. On the contrary, Dr. Kaizer effectively excluded the possibility that cancer that is contained within the capsule (stage I a or b ovarian cancer) can cause inflammation. Dr. De Petrillo opined that cancer at the microscopic level (which includes stage I c ovarian cancer with the capsule intact but escaping fluids tainted with cancer cells) does not cause inflammation. Although Dr. Owolabi allowed the theoretical possibility that cancer cells in fluids escaping from an un-ruptured ovary (i.e., one of the forms of stage I c ovarian cancer) can cause inflammation, he clarified that he did not say that they could have caused the adhesions that were present in this case.

[80] I conclude that there was no evidence capable of supporting a finding that stage I a or b clear cell ovarian cancer, or stage I c ovarian cancer without tumour break-through, may have been causing Mrs. Armstrong’s continuing inflammation. Moreover, to the extent that the trial judge’s reasons leave open that possibility, I conclude that his findings are in conflict with other parts of his reasons.

[81] At para. 9 of his reasons the trial said:

Clear cell carcinoma is said to be especially aggressive. One may suppose that it generates ascites, with inflammation and related pain, at an earlier stage. It is doubtful however that the evidence was sufficient to allow me to conclude that [Mrs. Armstrong’s] symptoms in 1998 were caused by ascites generated by her clear cell carcinoma.

This appears to be a finding that the evidence was not sufficient to support a conclusion that stage I c ovarian cancer without tumour break-through was causing Mrs. Armstrong’s symptoms. It would therefore conflict with the trial judge’s finding that early stage cancer should have been considered as a possible source of the inflammation.

[82] At para. 55 of his reasons, the trial judge indicated that tissue samples taken from dense adhesions “might well” have demonstrated that Mrs. Armstrong had cancer. However, if that were the case, by definition, Mrs. Armstrong’s cancer would have progressed beyond stage I (i.e., it would indicate that malignant cells had spread to other tissues).

b) Did the trial judge unreasonably reject Dr. Mohan’s evidence that, on September 1, 1998, Mrs. Armstrong's ovaries appeared healthy?

[83] At para. 65 of his reasons, the trial judge referred to Dr. Mohan's surgical report and, in particular, to Dr. Mohan's specific notation: “[W]e were able to observe both ovaries and they appear healthy.” At para. 66 of his reasons, the trial judge concluded, “[t]his is the only record that the ovaries and tubes were indeed rendered visible...[t]hat they appeared healthy to him, a general surgeon, is of course not diagnostic, and Dr. Mohan had no responsibility to form a gynaecological opinion.”

[84] Assuming that Mrs. Armstrong must have had a visible tumour, the appellants contend that, absent an adverse credibility finding, the trial judge’ made an unreasonable finding when he rejected Dr. Mohan’s evidence as “not diagnostic”.

[85] I disagree. In my view, it was open to the trial judge to reject Dr. Mohan's observations as “not diagnostic” for a variety of reasons, including the following:

▪ the trial judge's own assessment of Dr. Mohan's qualifications and testimony;

▪ the trial judge's assessment of Dr. Hodd's competing evidence that Mrs. Armstrong did not have pelvic inflammatory disease but did have at least stage I c clear cell ovarian cancer with tumour break-through; and

▪ the facts that Dr. Mohan was not the gynaecologist in charge of the procedure, was not responsible for making a gynaecological diagnosis, and did not make a note of viewing the entire surface of both ovaries.

[86] However, while I consider that it was open to the trial judge to reject Dr. Mohan’s evidence, I agree that the trial judge’s explanation for doing so was insufficient. One of the major conflicts in the evidence at trial was Dr. Sheriton’s and Dr. Mohan’s testimony that they observed the entire surface of both of Mrs. Armstrong’s ovaries and that her ovaries appeared normal as compared to Dr. Hodd’s opinion that Mrs. Armstrong had at least stage I c ovarian cancer with tumour break-through. In the face of this conflict in the evidence relating to an important issue, the trial judge’s conclusory statement that Dr. Mohan’s opinion was not diagnostic is not a sufficient basis for resolving this issue: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, and Waxman v. Waxman, [2004] O.J. No. 1765 (C.A.).

[87] More importantly however, when examined in the context of the whole of the trial judge’s reasons, in my view, it is not clear what the trial judge found in relation to Dr. Sheriton’s and Dr. Mohan’s evidence.

[88] In particular, the trial judge found that because Dr. Sheriton believed Mrs. Armstrong’s pelvic organs were healthy, he did not breach the standard of care by failing to excise her pelvic organs on account of pelvic inflammatory disease. By making this finding the trial judge at least implied that he accepted Dr. Sheriton and Mohan’s evidence that they observed the complete surface of the ovaries and that the ovaries appeared healthy.

[89] On the other hand, when dealing with the issue of whether the appellants were negligent in failing to diagnose cancer, the trial judge made the findings that Dr. Mohan’s surgical report was the only record indicating that Mrs. Armstrong’s ovaries were rendered visible and that Dr. Mohan’s opinion was not diagnostic. The trial judge therefore discounted the evidence of both Dr. Sheriton and Dr. Mohan, at least implying that he rejected it.

[90] In my view, this apparent contradiction in the trial judge’s reasons is sufficient on its own to justify an order for a new trial.

ii) Is the trial judge’s finding unreasonable that the survival rate exceeds 50% for patients diagnosed with stage I ovarian cancer?

[91] Turning to causation, the trial judge made the following specific findings concerning the survival rates for ovarian cancer:

▪ there is some difference of opinion about the prospects of survival for more than five years when clear cell ovarian cancer is detected at an early stage, but there is no doubt that early detection carries better prospects of successful treatment and therefore survival;

▪ actuarial statistical data for all classes of ovarian cancer demonstrate that the survival rate exceeds 50 % for patients diagnosed at stage I[^10];

▪ clear cell cancer is reported to have somewhat better survival rates than the entire category of ovarian cancers, largely because it is more often discovered at an earlier stage; and

▪ Mrs. Armstrong's life expectancy would have been substantially enhanced if her cancer had been detected sooner.

[92] The appellants contend that in order to find them liable the trial judge was required to determine that it was more likely than not that Mrs. Armstrong would have survived for more than five years if the appellants had detected her cancer. Further, they submit that there was no evidence capable of supporting that conclusion and that the trial judge’s finding was therefore unreasonable.

[93] I agree that the issue the trial judge was required to determine was whether it was more likely than not that Mrs. Armstrong would have survived for more than five years if the appellants had detected her cancer. There was no issue at trial that the medical standard for a cancer cure is survival for five years. Moreover, the causation issue in this case is governed by Cottrelle et. al. v. Gerrard (2003), 67 O.R. (3d) 737 (C.A.), leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 549, in which this court confirmed at para. 25 that “it is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of ‘more likely than not.’”

[94] I also agree that the trial judge erred by failing to determine the specific sub-stage to which Mrs. Armstrong's cancer had progressed. The trial judge’s reasons imply that he was unable to do so. For example, the trial judge commented that during the laparoscopy no fluid was collected and no washings were submitted for cytology. However, as already noted, the only reasonable basis for the trial judge's conclusion that cancer was causing Mrs. Armstrong's continuing inflammation was that her cancer had progressed to at least stage I c with tumour break-through.

[95] I do not accept the appellants’ submission that there was no evidence at trial capable of supporting the trial judge’s finding that “clear cell cancer is reported to have somewhat better survival rates than the entire category of ovarian cancers, largely because it is more often discovered at an earlier stage.”

[96] In his testimony, Dr. Hodd referred to an article (“the Clinics of North America article”) which set out the following conclusion:

Most clear cell carcinomas (75%) are stage I disease, which is why the overall survival for these tumors is 50% (much better than for serous and undifferentiated carcinomas).

[97] The appellants submit that the 50% survival rate identified in the second line of the Clinics of North America article refers to stage I clear cell ovarian cancer. I disagree. In my view, read in context the 50% survival rate refers to the overall survival rate for clear cell cancer. Accordingly, there was an available inference that the survival rate for stage I clear cell cancer is more than 50%.

[98] However, I agree that the trial judge erred by misapprehending or ignoring the appellants' evidence concerning cancer survival rates. As already noted, Dr. Kaizer testified that patients diagnosed with non-stage I a clear cell ovarian cancer have a 0-25% chance of surviving beyond five years. In addition, Dr. De Petrillo opined that the probability of survival for stage I c clear cell ovarian cancer is 46%. Moreover, Dr. Kaizer challenged the reliability of the Clinics of North America article's conclusion, noting that the findings were not supported by a wealth of other literature, that the study results relied on were not set out, and that the opinions expressed did not distinguish between the sub-stages of stage I clear cell ovarian cancer.

[99] Apart from noting that “there is some difference of opinion about the prospects of survival for more than five years when clear cell ovarian cancer is detected at an early stage”, the trial judge did not mention the testimony of Drs. Kaizer and De Petrillo or give reasons for rejecting their opinions. In my view, their evidence went farther than expressing “some difference of opinion”; it contradicted the Clinics of North America article’s conclusion, upon which the trial judge relied that the overall survival rates for clear cell cancer are much better for other types of cancer and challenged its reliability. Particularly given the significance of the survival rates issue to the outcome of the trial, the trial judge was not entitled to simply adopt the article's conclusion without a more analytical reference to the appellants’ experts’ evidence.

[100] Accepting that Mrs. Armstrong’s cancer must have progressed to at least stage I c, I agree that the trial judge erred by failing to make a finding concerning the evidence that was adduced relating to the applicable survival rate for that specific sub-stage. However, while I also agree that the trial judge erred by relying on statistical evidence of the overall survival rates for ovarian cancer without referring more extensively to the evidence of Drs. Kaizer and De Petrillo, I cannot foreclose the possibility of the trial judge reasonably rejecting their evidence and holding that the evidence relating to overall survival rates for ovarian cancer was properly applicable.

[101] In my view, it was open to the trial judge to assess the reliability of the appellants’ experts’ evidence taking account of the paucity of available data and to consider whether, in that context, the actuarial statistics concerning the overall survival rates for ovarian cancer were a more reliable measure. Further, the Clinics of North America article provided at least some evidence that the overall survival rate for stage I clear cell ovarian cancer surpasses the threshold of “more probable than not”. However, it was for the trial judge to assess the reliability of the whole of this evidence, and he failed to do so.

iii) Did the trial judge err by ignoring evidence that Mrs. Armstrong did not return to see Dr. Huh following the August 14, 1998 ultrasound?

[102] Even if Dr. Huh breached the standard of care relating to diagnosis, I conclude that the trial judge erred by ignoring the evidence that Mrs. Armstrong did not return to see Dr. Huh following the August 14, 1998 ultrasound and by failing to hold that there was a break in the chain of causation.

[103] As already noted, at the time of ordering the August 14, 1998 ultrasound, Dr. Huh indicated that Mrs. Armstrong would require a laparoscopy if the ultrasound was abnormal. According to Dr. Huh, upon her return from vacation, she received a telephone message indicating that Mrs. Armstrong had consulted Dr. Sheriton and that Dr. Sheriton would be performing a laparoscopy. Although Mrs. Armstrong testified that she asked Dr. Huh to attend the laparoscopy for moral support, Mrs. Armstrong’s evidence does not undermine Dr. Huh’s claim that she learned of Dr. Sheriton’s involvement when she returned from vacation. Moreover, Mrs. Armstrong did not claim that she asked Dr. Huh to attend the procedure for a medical purpose. In the face of this evidence, I see no basis for the respondents’ suggestion that Dr. Huh abandoned Mrs. Armstrong. In any event, the trial judge did not make that finding.

[104] Dr. Hodd testified that direct examination of the pelvic organs is the best method of detecting cancer. Although he also testified that transvaginal (as opposed to pelvic) ultrasound would have been a preferable diagnostic procedure, and that a laparotomy should have been performed rather than a laparoscopy, the trial judge did not make those findings. Further, although the trial judge noted that Dr. Huh did not perform bi-manual pelvic examinations on Mrs. Armstrong’s second and third visits, he made no findings concerning the likely outcome of such examinations nor did he find that a negative outcome should have changed Dr. Huh’s plan to proceed to a diagnostic laporoscopy. Accordingly, given that Dr. Huh learned that Dr. Sheriton was going to carry out a diagnostic laparoscopy (the procedure she planned in the event of a negative ultrasound report), I conclude that the trial judge ignored evidence creating a break in the chain of causation and I see no basis for holding that any breach of the standard of care by Dr. Huh was a material contributing factor to any injury that Mrs. Armstrong suffered.

iv) Other grounds of appeal

[105] In addition to the dispositive issues, the appellants raised three other issues on appeal. Although it is not strictly necessary that I deal with these issues, I will comment briefly on the first two because of their importance to the parties.

[106] First, Dr. Huh raised an issue that the trial judge’s finding was unreasonable that she (Dr. Huh) breached the standard of care by failing to revise her working diagnosis after receiving the negative laboratory results.

[107] I agree that the trial judge appears to have analyzed the standard of care issue in relation to Dr. Huh on the basis that her working diagnosis was acute, rather than chronic, pelvic inflammatory disease.[^11] I also agree that, in the face of substantial evidence to the contrary, the trial judge failed to properly explain his finding. In addition, since all of the medical witnesses agreed that infection is not a necessary component of chronic pelvic inflammatory disease, there was no evidence capable of supporting the trial judge’s finding that negative laboratory results could rule it out.

[108] However, the trial judge’s findings in relation to the standard of care issue were not limited to his conclusion that Dr. Huh ought to have revised her working diagnosis upon receiving the negative laboratory results. Rather, they included findings that Dr. Huh’s original working diagnosis of pelvic inflammatory disease was reasonable and that once she had received the negative laboratory results, a proper differential diagnosis would have included cancer as a possible source of the inflammation known to be present in Mrs. Armstrong's pelvis.

[109] The trial judge’s error in interpreting Dr. Huh’s working diagnosis as meaning acute pelvic inflammatory disease affects not only his finding that Dr. Huh should have revised her working diagnosis, but also his finding that it was reasonable. In order to fully determine this ground of appeal, this court would have to make a finding concerning the reasonableness of Dr. Huh’s original diagnosis. As that finding is more properly made by a trial judge, and as it is unnecessary that I determine this ground of appeal, I decline to do so.

[110] Second, Dr. Sheriton raised an issue that the trial judge’s finding is unreasonable that the diagnostic laparoscopy ruled out pelvic inflammatory disease. I agree that Dr. Sheriton was consistent in testifying that the adhesions that he and Dr. Mohan saw were the sequela of a prior chronic pelvic inflammatory disease and that Dr. Sheriton’s comment that once the adhesions were lysed, “there was no disease to be found” was not an assertion that Mrs. Armstrong had never had pelvic inflammatory disease. However, on my review of the record, the implication of Dr. Sheriton’s reference to “a prior pelvic inflammatory disease” in relation to Mrs. Armstrong’s ongoing inflammation is unclear. Because I consider that Dr. Hodd’s evidence was capable of supporting a finding that Mrs. Armstrong did not have chronic pelvic inflammatory disease, and that at most the trial judge’s erroneous interpretation of Dr. Sheriton’s evidence could bolster the decision to order a new trial, it is unnecessary that I analyze this issue further.

[111] Finally, the appellants also raised an issue concerning whether the trial judge erred by failing to apply a contingency to the damages he awarded to take account of Mrs. Armstrong's chances for survival. In light of my conclusions concerning the second ground of appeal, it is unnecessary that I deal with this issue.

v) Caveat concerning the appellants’ interpretation of the trial judge’s reasons.

[112] Contrary to the appellants’ submissions, the respondents contend that the trial judge did not find either that Mrs. Armstrong’s cancer was detectable between June and September 1998 or that cancer was causing Mrs. Armstrong’s inflammation and adhesions. Rather, the respondents say that the trial judge found only that once pelvic inflammatory disease was ruled out the appellants had a duty to continue investigating the cause of the inflammation and adhesions and would likely have found cancer had they done so.

[113] At the appeal hearing the parties did not make submissions highlighting their differing interpretations of the trial judge’s reasons or addressing which interpretation is correct. For reasons that I will explain, even if the respondents’ interpretation is correct, that would not change my proposed disposition of this appeal. It is therefore unnecessary that I determine which interpretation is correct.

[114] Dealing with the third ground of appeal relating to Dr. Huh, the disputed findings (that Mrs. Armstrong had detectable stage I ovarian cancer while under the appellants’ care and that cancer was causing Mrs. Armstrong’s inflammation and adhesions) have no bearing on whether there was a break in the chain of causation. Accordingly, whichever interpretation of the trial judge’s reasons is adopted, Dr. Huh is entitled to an order dismissing the respondents’ claim against her.

[115] As for the first and second grounds of appeal, if the respondents’ interpretation is correct and the trial judge did not make a finding that Mrs. Armstrong’s cancer was detectable between June and September 1998, the trial judge’s reasons must be sustainable assuming that her cancer was detectable during that period and also assuming that it was not. For the following reasons, I conclude that the trial judge’s reasons are not sustainable based on either assumption.

a) the respondents’ interpretation of the trial judge’s reasons, assuming Mrs. Armstrong’s cancer was detectable

[116] Assuming that Mrs. Armstrong’s cancer was detectable because tissue samples or washings taken during the laparoscopy from sources external to the ovaries would have revealed cancerous cells (meaning that Mrs. Armstrong’s cancer had progressed to at least stage I c), as I have explained, the trial judge misapprehended or ignored the appellants’ experts’ evidence concerning stage I c survival rates. Further, if Mrs. Armstrong’s cancer was detectable because visual examination during the laparoscopy would have revealed a macroscopically detectable abnormality, as I have explained, the trial judge failed to give sufficient reasons for rejecting Dr. Mohan’s evidence that on September 1, 1998, Mrs. Armstrong’s ovaries appeared healthy.

[117] Absent positive washings or tissue samples taken from a source external to the ovaries or an abnormality detectable upon visual inspection or by ultrasound, in my view, there is no basis for concluding either that Mrs. Armstrong’s cancer was detectable or that Dr. Sheriton breached the standard of care by failing to remove Mrs. Armstrong's ovaries. In particular, although Dr. Hodd testified that it would have been appropriate to biopsy Mrs. Armstrong's ovaries even if they appeared healthy, he gave no evidence contradicting Dr. Kaizer’s evidence that up to 1,000 sections could be necessary to find a microscopic tumour.[^12] Moreover, the respondents did not challenge the trial judge’s finding that Dr. Sheriton was not required to excise organs that he believed were healthy.

b) the respondents’ interpretation of the trial judge’s reasons, assuming Mrs. Armstrong’s cancer was not detectable

[118] Assuming Mrs. Armstrong's cancer was not detectable on September 1, 1998, in the absence of specific evidence establishing that Dr. Sheriton would probably have discovered Mrs. Armstrong's cancer in time to save her life, a conclusion that Dr. Sheriton was negligent would be speculative.

IV. Disposition

[119] Based on the foregoing reasons, I would set aside the judgment against the appellants, dismiss the claim against Dr. Huh, and order a new trial of the claim against Dr. Sheriton. In addition, I would award costs of the appeal to the appellants on a partial indemnity scale fixed in the amount of $25,000 inclusive of disbursements and applicable G.S.T.

RELEASED: June 13, 2005 “JS”

“Janet Simmons J.A.”

“I agree E.E. Gillese J.A.”

“I agree P.C. Hennessy J. (ad hoc)”

Appendix ‘A’

▪ The term pelvic inflammatory disease usually conveys to members of the medical profession that a woman’s pelvic organs, the ovaries and fallopian tubes, are inflamed as a result of sexually transmitted infection such as gonorrhea or chlamydia. [para. 27].

▪ Dr. Huh testified that she told Ms. Armstrong she had ruled out a current venereal infection upon receiving negative results of gonorrhea and chlamydia swabs she submitted to the laboratory. Tragically, Ms. Armstrong did not understand that, if she was told. She believes her doctors persisted in that belief. And it appears she may be right. [para. 28].

▪ Dr. Huh saw Ms. Armstrong first on June 9, 1998 at the emergency department of the Centenary Health Centre…She testified that she thought Ms. Armstrong had pelvic inflammatory disease caused by infection, and she took vaginal swabs to test for gonorrhea and chlamydia. [para. 31].

▪ The cultures from the swabs taken June 9 returned negative findings, indicating there was no currently active infection…They proved that she did not have the suspected infection when she first saw Dr. Huh. The antibiotic action of the medications she prescribed could not have been responsible for the relief from pain Nancy reported on July 10. [para. 33].

▪ At the July 10 visit, Dr. Huh made a mistaken diagnosis of chronic pelvic inflammatory disease with secondary pelvic adhesions, meaning she thought the adhesions were caused by venereal infection… [para. 34].

▪ On July 10 Dr. Huh noted her impression “chronic p.i.d. No pain now. Suggest HIV, VRDL. Do not recommend hysterectomy at present. To use condoms.” The notation “suggest HIV, VRDL” meant that she recommended blood tests for HIV and syphilis. Blood was drawn from both [Mr. and Mrs. Armstrong], and the tests were performed for that purpose, with negative results. Dr. Huh testified that she recommended the use of condoms not as a safeguard from infecting each other but because of the discussion she and Mrs. Armstrong had about the use of sex toys. I am unable to accept this evidence. The syphilis screening test is stamped received July 15, HIV test result indicates “date reported 27 July 1998”. I find Dr. Huh would have recommended condom use at least until the latter report was received… [para. 35].

▪ The negative lab tests on these blood samples and the swabs taken June 9 showed that there was no active infectious process to explain the inflammation and adhesions in [Mrs. Armstrong's] pelvis, that is no “pelvic inflammatory disease” in the sense in which the term is generally understood. While it may have been a reasonable working diagnosis until the results were known, thereafter it was no longer reasonable to keep it as the primary diagnosis. Dr. Huh appears to have believed that the antibiotic medications she had prescribed had brought a venereal infection under control, while the reality can only be that there was no such infection present to begin with, as the lab tests proved. Dr. Huh had a duty to recognize that in change the working diagnosis… there was recurring inflammation, but it was not caused by infection, much less venereal infection. Its cause was not properly investigated. Still no differential diagnosis was postulated. [para. 36].

▪ Another visit was arranged for August 6. Dr. Huh noted that Mrs. Armstrong had abdominal pain the previous week, with constipation. She had also had fever, which Dr. Huh attributed to an upper respiratory infection (URI). She noted “O/E abdo benign - meaning on examination she found no abnormality of the abdomen.… [para. 38].

▪ She noted “I (for impression)-not likely related to chronic P.I.D… Dr. Huh's “impression” was that Ms. Armstrong's distress was not related to her chronic P.I.D. but she did not record whether she thought of any alternative… [emphasis added] [para. 39].

[^1]: Ascites refer to an accumulation of fluid in the peritoneal cavity. Their presence in small amounts is normal as their purpose is to lubricate the surfaces of internal organs. The inability of organs to absorb ascites indicates disease.

[^2]: Peritoneal washings refer to collections of fluid taken during surgery when malignancy is suspected; the peritoneal cavity is washed with saline solution, which is then sent to pathology to test for the presence of cancer cells.

[^3]: The tests included vaginal swabs for gonorrhea and chlamydia taken by Dr. Huh on June 9, 1998, and blood tests for HIV and syphilis carried out after a July 10, 1998 appointment with Dr. Huh.

[^4]: In addition to the foregoing findings, the trial judge made other findings concerning breaches of the standard of care. For example, the trial judge found that Dr. Sheriton breached the standard of care because he did not conduct tests which were reasonable in light of what he knew or should have known and he did not report on the results of Mrs. Armstrong’s surgery to those who might have helped her. In my view, however, the findings that are most relevant to the trial judge’s ultimate determination of liability and to the issues on appeal are those set out above.

[^5]: Depending on the quantity, fluid can be an indicator of inflammation.

[^6]: As noted by the trial judge, this means that Mrs. Armstrong did not actually have appendicitis.

[^7]: One of the appellants’ experts, Dr. Owolabi, explained that ultrasound creates images based on a wavelength of light and a resulting echo. It is the echo that is traced out as an image and that shows the structure’s consistency.

[^8]: P. J. Di Saia & W. T. Creasman, Clinical Gynecologic Oncology, 5th ed. (St. Louis, MO: J. B. Mosloy & Co., 1997).

[^9]: The appellants called one other expert witness at trial, Dr. Marcaccio, the chief of surgery with the Hamilton Health Sciences Corporation. His evidence related primarily to whether Dr. Walkovich’s treatment of Mrs. Armstrong met the standard of care of a practising general surgeon.

[^10]: The trial judge relied on the following survival statistics set out in Di Saia & Creasman, supra: stage I a-83.5%; Stage I b- 79.3% and stage I c-73.1%.

[^11]: The portions of the trial judge's reasons that illustrate this approach are set out in appendix ‘A’.

Although Dr. Hodd agreed with a suggestion by the trial judge that the term pelvic inflammatory disease is somewhat of a code for sexually transmitted disease, Dr. Hodd did not suggest that meaning is confined to current infections. On the contrary, he specifically explained that laboratory cultures for sexually transmitted disease would almost certainly be negative in cases of chronic pelvic inflammatory disease unless there was a reinfection.

[^12]: Dr. Kaizer referred specifically to a tumour that was one millimetre in size.