CITATION: Power v. Carroll, 2007 ONCA 232

DATE: 20070330

DOCKET: C43080

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., GILLESE and ARMSTRONG JJ.A.

B E T W E E N :

ARTHUR POWER, OLGA POWER, CRAIG POWER, ARTHUR POWER, JR. and DANIELLE POWER

Plaintiffs/

Respondents

• and -

DR. S. ED CARROLL

Defendant/

Appellant

Barbara Legate and Joni Dobson for the respondents

David Hamer for the appellant

Heard: December 13, 2006

On appeal from the judgment of Justice Steven Rogin of the Superior Court of Justice, dated January 13, 2005, with reasons reported at [2005] O.J. No. 79.

GILLESE J.A.:

[1] This is a medical malpractice case in which, after trial, a surgeon was found to have been negligent in the performance of a mediastinoscopy, an investigative procedure used to assess the stage of lung cancer.

[2] The allegations of negligence levied by the plaintiffs’ expert were either withdrawn or rejected by the trial judge. The opinions of the experts called by the surgeon were unequivocal – the surgeon met the standard of care. Nonetheless, the trial judge found negligence. He gave two reasons for his finding of negligence. Neither had been expressly pleaded. Neither had been the subject of comment by the plaintiffs’ expert. The surgeon and his expert witnesses were never given the opportunity to squarely address either.

[3] In the circumstances and for the reasons that follow, I would allow the appeal.

BACKGROUND

[4] In 1995, Arthur Power had the upper lobe of his left lung removed because of lung cancer. In January 1996, he started coughing blood.

[5] It was feared that Mr. Power’s original cancer had spread to his right lung or that a new cancer had begun in the right lung so he was referred to Dr. S. Ed Carroll. Dr. Carroll is a specialist in both general and thoracic and cardiovascular surgery. He had performed the surgery on Mr. Power’s left lung in 1995.

[6] Mr. Power underwent a CT scan of his chest. The CT scan showed a hilar mass and several shadows in the lower lobe of his right lung, justifying the concern that either a new cancer had developed in the right lung or that the cancer from the left lung had metastasized. The scan also identified a new 1.3 centimetre subcarinal lymph node that had developed since Mr. Power’s first surgery and was suspicious for cancer.

[7] The subcarinal lymph nodes are located within the mediastinum. The mediastinum is the middle portion of the chest cavity in which all thoracic organs, except the lungs, are found. CT scans which identify new nodes in the mediastinum that are greater in size than one centimetre are predictive of cancer 85 to 90% of the time.

[8] On March 15, 1996, Dr. Carroll performed a mediastinoscopy on Arthur Power. The object of the procedure was to obtain biopsies of lymph nodes in the mediastinum including, especially, a biopsy of the suspicious enlarged subcarinal lymph node.

[9] A mediastinoscopy is an investigative medical procedure used to assess the stage of lung cancer. During the procedure, a mediastinoscope – a tube with a bright fibre optic light inside it – is inserted through an incision made in the patient’s neck and down the space in front of the trachea (windpipe) into the mediastinum. Biopsy forceps are used to take biopsies of lymph nodes observed through the scope. Because the oesophagus is located almost directly behind the trachea, an unintentional biopsy of the oesophagus is a recognised risk of the procedure.

[10] Before the advent of the mediastinoscopy, a thoracotomy was the standard procedure used in the circumstances that Mr. Power faced. It was much more dangerous because a thoracotomy involves opening the chest of the patient in order to locate and biopsy suspicious lesions.

[11] The process of a mediastinoscopy is staged. The surgeon looks through the scope from the end outside the chest. Biopsy forceps are inserted through the scope and biopsies are taken from the upper and lower lymph nodes on either side of the trachea. If any appear abnormal, they are biopsied. Biopsies are done by frozen section and sent to the laboratory. The pathologist sends the results of the biopsy to the surgeon in the operating room within approximately seven to ten minutes.

[12] If any of these early biopsies tests positive for cancer, the procedure is terminated. That is because once the cancer has spread to the mediastinum, it cannot normally be cured by surgery. If, however, the nodes test negative for cancer, the scope is further advanced and additional biopsies are taken, particularly from enlarged new nodes.

[13] During the procedure, Dr. Carroll obtained biopsies of nodes in the left and right lower paratracheal areas and some in the subcarinal area. None tested positive for cancer. Given the negative results and, as he did not think that he had found the new enlarged subcarinal node that had been identified in the CT scan, Dr. Carroll advanced the mediastinoscope in order to locate and biopsy it. He then took a 0.7 centimetre biopsy of what he believed to be the suspicious node (the “0.7 cm Biopsy”).

[14] The 0.7 cm Biopsy turned out to be a full thickness biopsy of the oesophagus. Once this became apparent, Dr. Carroll immediately took corrective measures by performing a right thoracotomy to repair the oesophagus.[^1] During the thoracotomy, Dr. Carroll further explored the lymph nodes, including the enlarged subcarinal node that he had been searching for, and concluded they were negative for cancer. Consequently, he was able to proceed and remove the portion of Mr. Power’s right lower lung that contained the cancerous lesion.

[15] Dr. Carroll’s operative report was of significance to the trial decision. The relevant portion of that report reads as follows:

The dissection was carried down to the trachea. We could not feel enlarged nodes in the superior mediastinum. The scope was inserted. We biopsied small nodes in the left lower paratracheal position. We biopsied soft nodes in the subcarinal area and again some small soft nodes in the right lower paratracheal area. On frozen section, none of these seemed to contain tumour. The mediastinoscope was inserted further over the carina and encountered fleshy tissue which I felt might be the esophagus, or might be a soft node. Biopsy was taken from this. Unfortunately, this is a full thickness biopsy of the esophagus so this man will require an immediate right thoracotomy to close the esophagus and to remove the lesion in the right lower lobe if feasible.

[16] Mr. Power suffered terribly during his recovery from the perforation of his oesophagus.[^2]

[17] Arthur Power and his family members sued Dr. Carroll, alleging that he had been negligent in his performance of the mediastinoscopy. The family members’ claims were dismissed on consent of all parties; thus, the trial decision and this appeal are concerned only with Mr. Power’s claim.

[18] Three experts testified at trial: Dr. Robert A. Zeldin for the Powers, and Drs. F. Griffith Pearson and Timothy L. Winton for Dr. Carroll. The trial judge found all of the experts to be eminently qualified by virtue of their experience and education.

[19] All of the expert witnesses testified that the mediastinoscopy was the appropriate procedure. They also all agreed that an accurate diagnosis of Mr. Power’s condition was absolutely necessary if a proper treatment plan was to be created for him. And, they all agreed that the enlarged subcarinal node had to be identified and biopsied in order to create such a plan.

[20] In his report prior to trial, Dr. Zeldin opined that Dr. Carroll had been negligent in two ways: first, in advancing the mediastinoscope more than one centimetre below the carina; and, second, in taking the 0.7 cm Biopsy from a structure which he considered might have been the oesophagus.

[21] He withdrew the first criticism at trial.[^3]

[22] At trial, Dr. Zeldin opined that Dr. Carroll fell below the acceptable standard of care in performing the mediastinoscopy because he took the 0.7 cm Biopsy from a structure that he knew might have been the oesophagus. He also opined that Dr. Carroll should have “backed out” on encountering what he thought might be the oesophagus but that if he were not prepared to do that, he could have taken a needle aspiration of the structure.

[23] Both defence experts, Drs. Pearson and Winton, testified that Dr. Carroll’s procedure did not fall below the standard of a reasonably competent thoracic surgeon at the time of the operation. Both also testified that had they been in the circumstances that Dr. Carroll faced, they would have proceeded to take the biopsy.

[24] Drs. Pearson and Winton both testified that a needle biopsy would not have been appropriate or useful because it could lead to a false negative finding if it did not sample enough cells.

[25] They also both testified that it was appropriate for Dr. Carroll to take the 0.7 cm Biopsy even though he was not certain the structure was a node. In that regard, Dr. Pearson explained the difficulties of distinguishing, through the scope, the appearance of the anterior oesophageal wall from that of a lymph node. He explained that a surgeon does not fall below the standard of care merely because he takes a biopsy of a structure while knowing that there is some risk that it could turn out to be the oesophagus. Despite the risk of full perforation of the oesophagus, assumption of that risk is justified in order to obtain an accurate diagnosis.

[26] Similarly, Dr. Winton testified that proceeding to take a biopsy while knowing that there is a small chance that the tissue being biopsied is the oesophagus would be prudent, provided the surgeon had made best efforts to distinguish between the lymph node and the oesophagus. Like Dr. Pearson, he testified that it is difficult to differentiate among body structures, especially as the scope is inserted deeper into the subcarinal space. The subcarinal space is very small, so the lymph nodes are very close to the oesophagus.

[27] All three experts testified that they had unintentionally biopsied the oesophagus during a mediastinoscopy.

[28] The trial judge held that the mediastinoscopy was “absolutely necessary” in order to obtain the most accurate diagnosis. He did not view Dr. Zeldin as having opined that Dr. Carroll fell below the acceptable standard of care in performing the mediastinoscopy because he failed to perform a needle biopsy. Nonetheless, he explicitly ruled that Dr. Carroll was not negligent in failing to perform a needle biopsy rather than continuing the mediastinoscopy.

[29] The trial judge rejected the basis on which Dr. Zeldin relied, at trial, for his opinion that Dr. Carroll had been negligent, namely, continuation of the mediastinoscopy and taking a biopsy when it was possible that he might be taking the biopsy from the oesophagus. He rejected that contention, finding at para. 46 of the reasons that continuation, even in the face of the acknowledged and known risk of a full thickness perforation of the oesophagus, “was acceptable and did not fall below the standard of a normal, prudent specialist in thoracic surgery”.

[30] Nonetheless, the trial judge found that Dr. Carroll was negligent when he took the 0.7 cm Biopsy because he (1) failed to “attempt the due diligence of taking a smaller biopsy”, and, (2) “did nothing” in an attempt to differentiate between the nodes and the oesophagus before taking the 0.7 Biopsy.

[31] Dr. Carroll appeals.

THE TRIAL JUDGE’S REASONS FOR FINDING NEGLIGENCE

[32] As the trial judge’s negligence finding is central to this appeal, it is useful to consider the full text of the reasons in that regard. They are contained in paras. 46 through 51 of the reasons, set out below:

[46] … 4) Dr. Winton, the defence expert, indicated the importance of the diagnosis in order to formulate a treatment plan. The diagnosis was so important that undertaking the risk of full thickness biopsy of the oesophagus was acceptable. He qualified his evidence by saying that the doctor must perform his due diligence before proceeding. The due diligence consisted of doing everything possible to identify and distinguish the oesophagus. In addition, he testified that another way in which the due diligence could be achieved was to take a smaller biopsy than one might ordinarily take. A third way was to “tease” out the tissues in this area by separating the fat from the lymph node and from the oesophagus.

In cross-examination Dr. Winton conceded that there was nothing in the operative report to indicate that Dr. Carroll made an effort to differentiate between the oesophagus and the soft node before he took the biopsy.

Dr. Winton further said that having done his due diligence and having decided to proceed, a small biopsy would be quite appropriate. The seven-millimetre biopsy that Dr. Carroll took was, in the opinion of Dr. Winton, an appropriate size.

Dr. Winton testified after Dr. Carroll.

[47] Dr. Carroll was not asked at any time about the size of the biopsy he took which turned out to be the oesophagus. However, Dr. Carroll was asked by his counsel whether the largest specimen in the pathology report (.8 cm) was an unusual size. He answered in the negative. In my view, if the size of the specimens taken was not unusual, it indicates that Dr. Carroll did not, at any time, attempt the due diligence of taking a smaller biopsy.

[48] Further, all experts including Dr. Carroll said that the deeper the scope is inserted, the closer it comes to the oesophagus. Regardless of any difference (perceived or real) between Dr. Carroll’s evidence at trial and his operative report, I find that he did either nothing or insufficient due diligence to avoid the risk which he knew was there. On that point at trial he testified:

Well I thought there was a small possibility that this might be the oesophagus but it was likely, not certain, but very likely that this was the subcarinal node that I really wished to biopsy.

[49] He biopsied it notwithstanding that it was possible that it might have been the oesophagus. In my view, he disregarded the known risk to achieve his goal – laudable as it was – to obtain the biopsy. There was nothing in his evidence that indicated he addressed the risk once he appreciated that it was there. He did nothing in an attempt to differentiate between the nodes and the oesophagus before proceeding.

[50] His operative report also addresses this point:

… The mediastinoscope was inserted further over the carina and encountered fleshy tissue which I felt might be the oesophagus, or might be a soft node. Biopsy was taken from this.

[51] As Dr. Winton conceded in cross-examination there is nothing in this part of the report to indicate that the required due diligence was undertaken. [underlining in original]

THE ISSUE

[33] Although a number of errors are alleged, in essence, this appeal raises a single issue: did the trial judge err in finding that Dr. Carroll fell below the standard of care in taking the 0.7 cm Biopsy?

[34] To resolve that issue, I will examine both of the reasons given by the trial judge for his finding of negligence. It will be recalled that the reasons were Dr. Carroll’s failure to: (1) “attempt the due diligence of taking a smaller biopsy”, and (2) do anything in an attempt to differentiate between the nodes and the oesophagus before he took the 0.7 cm Biopsy.

ANALYSIS

Taking a smaller biopsy

[35] The trial judge concluded that Dr. Carroll was negligent because he took the 0.7 cm Biopsy when he ought to have taken a “smaller” biopsy. Three reasons lead to me to hold that this conclusion cannot stand.

[36] Recall again para. 47 of the trial judge’s reasons. It reads as follows:

Dr. Carroll was not asked at any time about the size of the biopsy he took which turned out to be the oesophagus. However, Dr. Carroll was asked by his counsel whether the largest specimen in the pathology report (.8 cm) was an unusual size. He answered in the negative. In my view, if the size of the specimens taken was not unusual, it indicates that Dr. Carroll did not, at any time, attempt the due diligence of taking a smaller biopsy.

[37] First, the trial judge’s conclusion is based on a manifestly incorrect finding of fact. The largest specimen in the pathology report was not 0.8 centimetres, as the trial judge believed. Immediately before taking the 0.7 cm Biopsy, Dr. Carroll had taken a biopsy specimen that consisted of multiple fragments, the largest of which measured 1.2 centimetres. The difference between 0.8 and 1.2 centimetres is significant, given that the question the trial judge was addressing was whether a 0.7 cm Biopsy was “small”. Clearly, the trial judge was considering the size of the specimen taken in the impugned biopsy within the context of the largest specimen that had been taken during the procedure as a whole. The larger specimen was 50% larger in size than the largest specimen that the trial judge understood had been taken.

[38] Second, there was no evidence to support the trial judge’s finding that Dr. Carroll ought to have taken a smaller biopsy. No witness testified that the biopsy taken by Dr. Carroll was not small. In fact, the expert testimony is to the contrary.

[39] On cross-examination, Dr. Pearson testified that the 0.7 cm Biopsy was “a small biopsy”:

Q. …. It would not have been an acceptable course of action to biopsy that oesophagus?

A. And I didn’t know that was your question. And I would find it, a situation in which trying to put myself in it, I’d probably take a small biopsy of what I assumed to be the anterior oesophageal wall, not anticipating that there was a risk of full thickness perforation.

Q. You would have taken a smaller biopsy than Dr. Carroll did, if you thought it was a fifty-fifty?

A. I did not say that. I said I’d have taken a small biopsy. He did take a small biopsy. Its seven millimetres in size. [emphasis added]

[40] Dr. Winton testified that the biopsy was “reasonable”, in the circumstances:

Q. All right. Now, I want you to further assume that upon taking a biopsy, that the surgeon takes what he describes as a very small biopsy, and it is a seven millimeter biopsy that is ultimately taken, and it is at that point that he realizes that it may be the oesophagus. Is that a reasonable sized biopsy to take in the circumstances where you’re not absolutely certain?

A. Yes. [emphasis added]

[41] Dr. Zeldin did not testify on the matter.

[42] And, as the trial judge noted in para. 47 of the reasons, Dr. Carroll was never asked, at any time, about the size of the 0.7 cm Biopsy, a matter on which more is said later.

[43] Third, the trial judge’s conclusion is based on an inference that was not available on the evidence. The trial judge stated that if the size of the specimens taken was not unusual, it meant that Dr. Carroll had not taken a small biopsy. The fact that specimens are not unusual in size does not necessarily mean they are not small. The size of a surgical biopsy is a highly technical and relative matter. It may be that all specimens taken in such a location are small.

[44] In this regard, I do not accept the respondents’ argument that it was open to the trial judge to infer that the 0.7 cm Biopsy was not small given that the average size of a lymph node is 0.4 to 0.6 cm and that a 0.8 cm biopsy is, according to the appellant, not unusual. If a 0.8 cm biopsy is not unusual, it may very well be that a 0.7 cm biopsy is small. We simply do not know and there was no expert evidence to support the inference that a 0.7 cm biopsy is not small.

Differentiating between the nodes and oesophagus before taking the 0.7 cm Biopsy

[45] In finding that Dr. Carroll took no steps to distinguish the oesophagus from the node before he took the 0.7 cm Biopsy, the trial judge relied on Dr. Winton’s evidence. In particular, he relied on Dr. Winton’s “concession” that there is nothing in Dr. Carroll’s operative report to indicate that the required due diligence was undertaken.

[46] In my view, neither the trial judge’s conclusion nor his specific finding on the concession can be reconciled with Dr. Winton’s evidence.

[47] Dr. Winton unequivocally stated that Dr. Carroll met the standard of care required of a surgeon in the circumstances. He repeatedly testified that Dr. Carroll took appropriate steps to distinguish the structures. He also repeatedly testified that Dr. Carroll had done the dissection necessary to discriminate between the node and the oesophagus.

[48] Dr. Winton began by identifying the standard of care to which a surgeon in Dr. Carroll’s situation should be held. He was then asked to comment on a hypothetical fact scenario in which a surgeon is conducting a mediastinoscopy on a patient whose CT scan shows a 1.3cm node in the subcarinal area. The surgeon has biopsied nodes that were negative for cancer, but he does not believe that he has reached the 1.3cm node. The surgeon then advances the scope, and believes he has found the node but recognizes there is some risk that it may be the oesophagus.

[49] Dr. Winton testified that the surgeon should “ma[k]e the best effort they could” to delineate between the node and the oesophagus, but he emphasized that it would be “quite appropriate” for the surgeon to take a biopsy after performing his “due diligence” in distinguishing between the structures.

[50] Dr. Winton maintained that it would be appropriate to take a biopsy of a structure believed to be the 1.3cm node if the surgeon believed the risk of biopsying the oesophagus was “very small”, “less than one in ten”, or smaller than the “chances of missing an important part of the procedure [i.e., the biopsy]”.

[51] Dr. Winton later provided greater detail on how the surgeon might perform due diligence in distinguishing the oesophagus from the node. He stated that surgeons typically use “landmarks” to locate the relative positions of the carina and the nodes. Further, he explained that various other techniques may be used:

We also use … dissection with … the instruments that we have available to us, to try and tease out the tissues in this area, separate out the fat from the lymph node, from the oesophagus.

It is clear from Dr. Winton’s testimony that he considers these techniques to be standard components of the mediastinoscopy. Attempting to differentiate between the two structures is a standard component of the procedure, even though it is not always successful.

[52] During cross-examination, Dr. Winton was asked repeatedly whether Dr. Carroll’s operative note reveals that he took appropriate steps to distinguish Mr. Power’s oesophagus from his lymph nodes. Dr. Winton maintained throughout his testimony that Dr. Carroll’s notes show that he was proceeding in accordance with accepted practice, which includes distinguishing the subcarinal structures.

[53] Dr. Winton explained Dr. Carroll’s operative note as follows:

Q. You’ve had occasion to review Dr. Carroll’s operative report for the March 15^th procedure in question?

A. Yes.

Q. And from your review of that report, is there anywhere on the report that indicates that Dr. Carroll did his utmost best to identify the important landmarks in question?

A. Uh – my review of that – uh – dictation in my report suggested that I felt he had – he had – uh – proceeded in a standard fashion.

Q. Now, in that [operative] report, there’s no indication in the language Dr. Carroll used that he took any means to identify the different landmarks in the area in question, specifically, as between the oesophagus or the lymph node. Is that not right?

A. Well, he used language that – uh – I would use to describe the procedure. I don’t – uh – he’s – he’s identified that he’s in the subcarinal area, and that he is dissecting – uh - the area, and – uh – because of – uh – the nature of the findings, he’s – he’s where he should be. He’s in the subcarinal space, where he knows the node’s abnormal, and he’s encountering – what’s it say here?

He says: “Encountered fleshy tissue”. So, he’s identified the carina. “The mediastinoscope was inserted further over the carina.” So, he has identified the relevant structure in the area, the carina, the split between the trachea and the two main airways is a – an important landmark. So – uh – it would indicate to me that he’s identified the carina. He knows he’s in the subcarinal space, and – uh – he has advanced the scope and he’s identifying fleshy tissue. And he knows that the oesophagus might be there and he knows that the lymph nodes should be there, because of the CT scan. So, I see no indication here that he hasn’t done the relevant dissection.

Q. However, in Mr. Carroll’s case – I’m sorry, Dr. Carroll’s case, if we read his operative report and in fact, the sentence that you just read a few moments ago, which is about the seventh line up from the bottom. “A mediastinoscope was inserted further over the carina, and encountered fleshy tissue, which I thought,” I’m sorry, “which I felt might be the oesophagus or might be a soft node. Biopsy was taken from this.” On a reading of this report, it would appear, would you agree with me that it would appear Dr. Carroll knew that he was taking a piece of the oesophagus?

A. No. He’s stating here, quite clearly, that he was dissecting in the appropriate area, and he came across fleshy tissue which was different than the black node that he saw earlier – uh – and one would be looking for the lymph node. It – it’s abnormal on the CT scan. It’s a new, reactive lymph node that might be reactive from inflammation, from infection or cancer. And it could be a lymph node, just as easily as it could be the oesophagus. So, he’s – he’s saying that he’s dissecting appropriately, and he’s identifying structures and he – he knows he has – uh – an abnormality that he needs to try to – uh – differentiate between cancer and non-cancer, given the implications to the patient’s management and prognosis. So, I – I don’t see anything here that says that he knew he was biopsying the oesophagus.

Q. Now, Dr. Winton, it was your opinion that Dr. Carroll utilized standard techniques in the mediastinoscopy procedure, isn’t that right?

A. Yes.

Q. And is there any indication in Dr. Carroll’s report that he used every indication possible to do his best to differentiate between the lymph node and the oesophagus?

A. I’ve always – I already answered that question for you. I – I don’t see anything in his report that suggests otherwise.

Q. … If I could refer again to Dr. Carroll’s report, at page 35. Could you please point out to us where in the report Dr. Carroll states that he tried to differentiate between the node and the oesophagus?

A. He specifically is dissecting in the area of interest. He has a CT scan wherein he knows there’s a new abnormality in the subcarinal space, which, as you have pointed out is – uh – in – in an area that’s close to the oesophagus. We’re there, whenever we do this procedure. He’s dissected it out. He’s concerned about – uh – the possibility, and he has a lymph node that – which needs to biopsied. He doesn’t quantify, but he gives a reasonable indication that he felt this was – uh – possibly the lymph node in question, and it was needing to be biopsied, so he went ahead and biopsied it.”

Q. And would you agree, Dr. Winton that your opinion that you offered this court today differs from Dr. Zeldin’s opinion in this case?

A. I – I had seen Dr. Zeldin’s written opinion. I don’t know what Dr. Zeldin testified. But, I see nothing in this report that suggests that – uh – that the procedure was done below a standard of care. And I see nothing in this report that says that this dictation was below a standard of reasonable dictation.” [emphasis added]

[54] Dr. Winton was then asked about his testimony in a previous case, Smyth v. Waterfall, [2003] O.J. No. 4541 (S.C.J.).[^4] In that case, Dr. Winton testified that a surgeon breached the applicable standard of care when he failed to take adequate care to ensure that a guide wire inserted into the plaintiff’s oesophagus was placed properly. The wire’s misplacement ultimately caused the plaintiff’s oesophagus to rupture. Dr. Winton clearly indicated during the following exchange that a mediastinoscopy is not analogous to a guide wire insertion, and that Dr. Carroll did not fall below the applicable standard of care.

Q. And in that particular case [Smyth], the doctor proceeded without knowing where the guide wire was. Is that correct?

A. Yes.

Q. And in the case before us, Dr. Carroll proceeded with his biopsy, despite his uncertainty as to whether he was biopsying a suspicious lymph node, or an important mediastinal structure. Is that not right?

A. There’s a big difference here. I – I …

Q. I understand there’s a difference factually. But, the medical principle would be the same.

A. The medical principle would be the same, yes. He would do your due diligence [sic]. You’d do your best. You use every possible – uh – mechanism to confirm what you’re doing. Yes.

Q. And is there any indication in Dr. Carroll’s report that he used every indication possible to do his best to differentiate between the lymph node and the oesophagus?

A. I’ve always – I already answered that question for you. I – I don’t see anything in his report that suggests otherwise.

[55] After a break, Dr. Winton was asked where, in Dr. Carroll’s operative report, Dr. Carroll indicated that he had attempted to distinguish the node from the oesophagus. It was in this context that Dr. Winton said, for the first and only time, that this sentence did not reveal an attempt to distinguish the two structures. This exchange was as follows.

Q. Would you please show me where in this sentence, “I felt might be the oesophagus or might be a soft node,” and the next sentence, “Biopsy was taken from this”; where in that sentence does Dr. Carroll make an effort to differentiate between the oesophagus and the soft node before he took the biopsy?

A. Well, it doesn’t say that, no.

[56] The respondents’ counsel then concluded her cross-examination of Dr. Winton.

[57] I accept that in the last quoted part of the testimony, Dr. Winton acknowledged that Dr. Carroll’s operative note did not expressly state that Dr. Carroll made an effort to differentiate the oesophagus from the node before he took the 0.7 cm Biopsy. However, that acknowledgment does not amount to a concession that Dr. Carroll failed to make the necessary efforts at differentiation. It was a palpable and overriding error on the part of the trial judge to find that Dr. Winton effectively conceded such. To take the acknowledgment as such a concession is to consider the statement, in isolation, and to distort the true import of Dr. Winton’s testimony. That “concession” by Dr. Winton came within a body of testimony in which Dr. Winton repeatedly stated that the totality of the operative note indicated an appropriate dissection and an appropriate attempt to distinguish between the structures.

[58] Any given piece of testimony must be considered in context. Dr. Winton was clear in his testimony: he saw nothing in the operative note to suggest that Dr. Carroll had failed to do the relevant dissection. The fact that dissection was not explicitly referred to in the operative record did not detract from Dr. Winton’s unequivocal opinion that Dr. Carroll had done the necessary dissection.

[59] It is a mischaracterization of Dr. Winton’s evidence to find, as the trial judge did, that Dr. Winton conceded that the operative report did not reveal any effort to distinguish the oesophagus from the nodes. Dr. Winton was unequivocal in his assertion that Dr. Carroll followed the accepted standards of practice. He also testified that Dr. Carroll’s operative note described the mediastinoscopy in the same terms that Dr. Winton would, himself, use.

[60] Moreover, the record is incapable of supporting the trial judge’s finding that Dr. Carroll failed to take the necessary steps to differentiate between the oesophagus and the node before taking the 0.7 cm Biopsy. There is no evidence in the record to support such a finding.

[61] As previously explained, Dr. Winton unequivocally opined that Dr. Carroll had done the necessary dissection and taken the appropriate steps to distinguish between the structures.

[62] Dr. Pearson did not testify as extensively as Dr. Winton on the question of whether Dr. Carroll exercised appropriate care in distinguishing Mr. Power’s nodes from his oesophagus, before taking the 0.7 cm Biopsy. He did, however, testify that Dr. Carroll’s operative note revealed that he was proceeding appropriately. Specifically, the respondent’s counsel asked Dr. Pearson to comment on the excerpt of the note that reads:

The mediastinoscope was inserted further over the carina and encountered fleshy tissue which I felt might be the esophagus, or might be a soft node. Biopsy was taken from this.

[63] Dr. Pearson agreed that this passage indicates that Dr. Carroll biopsied tissue that he believed might be the oesophagus or might be the node. He acknowledged that the words themselves do not indicate that Dr. Carroll believed one possibility was more likely than the other, but testified that no conclusions could be drawn from the choice of wording:

Q. … And you would agree with me that there’s nothing in that report per se, which indicate[s] that the author thought the possibility of the tissue in question being the oesophagus was only a slight possibility?

A. No, but I – uh – would assume that anyone as experienced as Dr. Carroll with mediastinoscopy would know that the – uh – the odds were indeed less than ten percent, or considerably less than ten percent that it was oesophagus. I would assume that.

[64] Dr. Pearson further indicated that it is not common practice to put percentages in operative notes, and therefore no significance should be attached to Dr. Carroll’s failure to do so.

[65] In summary, Dr. Pearson’s testimony supports the view that Dr. Carroll performed the surgery in accordance with accepted standards in all regards, including making appropriate efforts to differentiate nodes from oesophagus when taking the 0.7 cm Biopsy.

[66] Dr. Zeldin gave no evidence on these matters.

[67] There was no evidence before the trial judge to suggest that Dr. Carroll should have done something further during the dissection process to differentiate between the oesophagus and the node.

[68] The respondent’s argument on this issue is essentially that, in the absence of specific language in the operative note detailing the steps Dr. Carroll took to determine whether the questionable structure was the oesophagus or a node, it was open to the trial judge to infer that none were taken. I do not agree that this inference was available on the record. None of the experts testified that the absence of this detail in the operative note suggests that no steps were taken to distinguish the structures. In fact, as outlined in detail above, Dr. Winton made the opposite assertion: he testified that Dr. Carroll’s note indicates that he did take appropriate steps to distinguish the structures. Similarly, Dr. Pearson testified that it could be assumed that Dr. Carroll had taken the appropriate steps.

[69] Further, although Dr. Carroll and the experts agreed that the purpose of an operative note is to record important events, it is apparent that such notes routinely omit details of the standard steps common to all similar procedures. Without expert evidence that the absence of greater detail in the operative note indicates that Dr. Carroll did not take appropriate steps to distinguish the structures and in the face of expert evidence that the note and procedures met the appropriate standard of care, it was unreasonable for the trial judge to draw such an inference.

[70] As no inference of negligence was available, this meets the respondents’ contention that the burden had shifted to the appellant to disprove negligence. Unlike Hassen v. Anvari, 2003 1005 (ON CA), [2003] O.J. No. 3543 (C.A.), leave to appeal to S.C.C. refused, 30044 (April 29, 2004), the onus on the respondents, as plaintiffs, had not been discharged by circumstantial evidence.

CONCLUSION

[71] The allegations of negligence against Dr. Carroll, by the respondents’ expert, were either abandoned or rejected by the trial judge. Dr. Carroll’s experts unequivocally opined that he met the standard of care. For the reasons already given, there was no evidence on which Dr. Carroll could have been found to have fallen below the requisite standard of care.

[72] This raises the question of whether it was an error of law for the trial judge to craft his own allegations of negligence. As I have explained, neither of the two reasons given by the trial judge for a finding of negligence, can stand. Strictly speaking, therefore, I need not answer this question. Nonetheless, procedural fairness considerations prompt me to make the following observation.

[73] The two reasons given by the trial judge for finding negligence were not expressly pleaded nor had they been commented on by the plaintiffs’ expert. The result is that the factual matters underlying those allegations were never squarely addressed either with Dr. Carroll or his expert witnesses. In my view, in those circumstances, it was unfair to then decide those issues against Dr. Carroll. Fairness dictates that a defendant should have notice of the particular allegations against him and an opportunity to meaningfully respond to those allegations.

DISPOSITION

[74] Accordingly, I would allow the appeal, set aside the trial judgment and dismiss the action with costs of the appeal to the appellant, if sought, fixed at $25,000, inclusive of GST and disbursements.

[75] If the appellant wishes to pursue costs of the trial, brief written submissions on the same are to be filed with the Court within fourteen days of the date of release of these reasons. The respondents have a further seven days within which to file responding submissions.

RELEASED: March 30, 2007 (“RRM”)

"E. E. Gillese J.A."

"I agree R. Roy McMurtry C.J.O."

"I agree Robert P. Armstrong J.A."

[^1]: The plaintiffs/respondents took no issue with Dr. Carroll’s performance of the thoracotomy or his follow-up care.

[^2]: The trial judge found it unnecessary to say anything further on this matter as the parties had agreed on damages prior to trial. The trial was on the issue of liability alone.

[^3]: During his examination-in-chief, Dr. Zeldin resiled from his written opinion that the mediastinoscope should not be advanced more than a centimetre below the carina if the surgeon sees abnormal tissue and stated that he was no longer of the opinion that Dr. Carroll had been negligent in so doing.

[^4]: In Smyth, Cavarzan J. dismissed the plaintiff’s claim on the basis that the applicable limitation period had expired.