COURT OF APPEAL FOR ONTARIO

CITATION: Bollman v. Soenen, 2014 ONCA 36

DATE: 20140117

DOCKET: C56478

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Barbara Jane Bollman, Naomi Lynne Bollman and Nicholas Donald Bollman

Plaintiffs (Respondents)

and

Dr. Gary Maynard Soenen

Defendant (Appellant)

Ronald G. Slaght Q.C. and Lindsay N. Beck, for the appellant

André I.G. Michael and Jill S. McCartney, for the respondents

Heard: December 11, 2013

On appeal from the judgment of Justice James A. Ramsay of the Superior Court of Justice, dated December 13, 2012, with reasons reported at 2012 ONSC 7090.

Benotto J.A.:

OVERVIEW

[1] The appellant, Dr. Gary Maynard Soenen, is a general surgeon who performed a hysterectomy on the respondent, Ms. Barbara Jane Bollman. During the course of the operation, the respondent’s ureter was transected. The damage to the ureter was not diagnosed for three weeks. The trial judge found that the appellant met the standard of care in the performance of the operation, but that he operated on the respondent without her informed consent and was negligent in not diagnosing the damage to the ureter sooner.

[2] For the reasons that follow, the appeal is allowed and a new trial is ordered.

FACTS

[3] The appellant practices in Simcoe, Ontario. In May 2007, the respondent’s family doctor referred her to the appellant for a consultation about prolonged and heavy menstrual periods. In September 2007, the appellant treated the respondent’s condition by performing endometrial ablation, a procedure that burns tissue inside the uterus. This procedure was not “particularly effective” and the respondent remained in “a lot of pain with her periods.” The appellant thought it likely that the respondent would have to undergo a laparoscopic assisted vaginal hysterectomy (“LAVH”). After meeting with the respondent, he reported to the family physician that he had reviewed the procedure and the possible complications with Ms. Bollman and that she understood and wanted to proceed. At trial, though the appellant had no notes or specific recollection of his discussion with the respondent, he testified that his usual practice was to tell the patient of risks including bleeding; infection; and injury to the bowel, bladder, and ureter. The respondent testified that she did not recall what was discussed beyond bleeding and infection.

[4] The appellant performed the surgery on June 23, 2008, at Norfolk General Hospital in Simcoe, Ontario, and the respondent was discharged the following day. Unbeknownst to the appellant, the respondent’s ureter had been transected during surgery.

[5] On June 28, the respondent went to the emergency room of the hospital, complaining of a rash and redness in the incision. The emergency room physician and the appellant diagnosed her with abdominal wall cellulitis. She was admitted to the hospital and placed on IV antibiotics. It was agreed by the experts who testified that this was a reasonable diagnosis and treatment

[6] The respondent was discharged on June 30. She returned to the emergency room on July 3 with complaints of abdominal pain and urinary retention. A catheter was inserted to drain her bladder, and she was discharged.

[7] She returned again to the hospital on July 5 with urinary retention. Again, her bladder was drained. The emergency room physician who saw her prepared a request for a CT scan. The request stated “URGENT—MONDAY PLEASE (July 7/08),” noted that she was experiencing urinary retention and had been diagnosed with abdominal wall cellulitis, and indicated that the purpose of the scan was to rule out an abscess. The respondent was sent home the same day.

[8] The requested CT scan was not done on July 7. The appellant assessed the respondent that day at the hospital and he diagnosed a pelvic hematoma. In his view, the CT scan was not necessary. An ultrasound performed that day showed a large cystic mass behind the bladder. There was no gross free fluid in the pelvis or the abdomen that might indicate a damaged ureter. The radiologist who read the ultrasound suggested that a CT pelvic scan may give more information, but once again, a CT scan was not performed. The respondent was sent home.

[9] The respondent returned to the appellant’s office at her pre-arranged appointment on July 9. There was fluid draining from her vagina, which, in the appellant’s view, was consistent with a hematoma.

[10] On July 11, the respondent returned to the hospital with abdominal pain. Her abdominal X-rays were normal, and she was discharged. The next day, she was admitted to the hospital because of worsening pain and pelvic spasms. The next day, July 13, the appellant performed a laparoscopy, intending to drain what he believed to be an infected hematoma. However, the laparoscopy revealed that there was no hematoma. As a result, the appellant consulted a urologist, who suggested a CT scan with a dye contrast to examine the ureter. This was performed on July 14, at which point the injury to the left ureter near the bladder was revealed.

[11] If an injury to the ureter is diagnosed within a week of the injury, the repair can be done right away and the results are usually good. By July 14 it was too late. The injury to the bladder could not be immediately repaired. The tissue surrounding the injured ureter had to be left alone to heal for a period of 3 to 6 months before reparatory surgery could be performed. A tube was inserted into her abdomen to drain the urine into a plastic bag so that the surrounding tissue could heal. In October 2008, the reparatory surgery was eventually done.

FINDINGS OF THE TRIAL JUDGE

[12] The trial judge found as a fact that the appellant, although a general surgeon, was qualified to perform the LAVH and that, in doing so, he met the standard of care. In other words, the appellant was not negligent in performing the surgery that damaged the ureter.

[13] However, the trial judge found that the appellant did not tell the respondent about the possibility of damage to the ureter and thus operated on her without her informed consent. Under a section of the reasons entitled “Battery,” the trial judge stated that although the respondent was eager to end her symptoms,

I do not think that she was determined to have a hysterectomy without regard to the risks. I believe her when she says that if she had been offered a referral to a gynaecologist, she would have taken it, and got a second opinion. I infer that if anyone had told her that the result could be achieved otherwise, she would have chosen the less invasive medical option, particularly if she had been informed of the risk of damage to her ureters.

[14] The trial judge also found that the appellant was negligent in his management of the respondent’s condition after the operation. He accepted the evidence of the respondent’s experts that the appellant should have followed through with the CT scan on or shortly after July 7, 2008. On this basis, the trial judge found that the delay in diagnosing the damage to the ureter caused the respondent to suffer more pain for a longer time and increased the physical damage done by the original injury. The trial judge found the appellant negligent for not conducting a CT scan on July 7.

[15] Damages were assessed for pain and suffering and loss of past and future income.

ISSUES

[16] There are three issues on appeal:

1. Did the trial judge err in his analysis of informed consent?

2. Did the trial judge err in finding that the appellant was negligent with respect to his delayed diagnosis of the injury to the ureter?

3. Did the trial judge err in his assessment of damages?

ANALYSIS

[17] The trial judge erred in law in his analysis of informed consent and in his failure to address causation in his determination of the appellant’s liability for negligence with respect to the delayed diagnosis. It is therefore unnecessary to address the question of damages.

(1) Informed Consent

[18] The trial judge’s determination of liability on informed consent was based on a misapprehension of the law. In the context of medical treatment, battery arises when there is no consent at all. An example would be when the wrong operation or procedure was conducted. When there is an allegation of a deficiency in the explanation of risks, the issue is that of informed consent.

[19] This distinction was clarified by the Supreme Court of Canada in Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880. At pp. 890-92, Chief Justice Laskin said:

In my opinion, actions of battery in respect of surgical or other medical treatment should be confined to cases where surgery or treatment has been performed or given to which there has been no consent at all or where, emergency situations aside, surgery or treatment has been performed or given beyond that to which there was consent.

…in my view, unless there has been misrepresentation or fraud to secure consent to the treatment, a failure to disclose the attendant risks, however serious, should go to negligence rather than to battery.

[20] Although the trial judge headed the discussion of informed consent “Battery,” his analysis makes it clear he was speaking of a failure to disclose the risks of surgery. The proper issue is therefore informed consent. Reibl v. Hughes sets out a two-part test for informed consent. The first is subjective; the second is objective.

[21] The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the individual. The objective test is based on what a reasonable person in the respondent’s position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent.

[22] The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known. As stated in Reibl v. Hughes, at p. 898:

[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.

[23] The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900 :

In short, although account must be taken of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

[24] Here, the trial judge dealt only partially with the subjective test and not at all with the objective test.

[25] To meet the subjective test, the respondent must establish that the material risks or treatment alternatives were not adequately disclosed and that had they been disclosed, consent would not have been given. The evidence here was that there was a 2% risk of damage to the ureter. The appellant testified that his standard risk conversation includes a discussion of possible injuries to the surrounding organs, including the ureter, as well as bleeding and infection. The respondent’s evidence was that she did not recall a discussion of risks beyond that of bleeding and infection. On this basis, the trial judge held as follows:

I believe her when she says that the defendant informed her of the general risks, but not the risk of damage to her ureters.

[26] Whether this is a reasonable finding on the evidence or not, it only addressed part of the subjective test. There could be no finding as to what she would have done because she was not asked what she would have done had she been told there was a 2% chance of damage to the ureter.

[27] The trial judge inferred that the respondent would have “chosen the less invasive medical option” had “anyone had told her that the result could be achieved otherwise” than by the surgery. There is no evidence to support this finding since she was never asked about medical options or less invasive treatments and there was no expert evidence that a medical option would have been beneficial. On the contrary, the evidence was that a hysterectomy was a reasonable treatment for her condition. Thus, there was no evidentiary basis for the trial judge to conclude that the subjective aspect of lack of informed consent was established.

[28] The trial judge did not consider the objective aspect of the test at all. The respondent was suffering from prolonged fatigue, she was past child bearing age, and she had tried other treatments without success. Had he considered the objective test the trial judge may well have concluded that a reasonable person in the respondent’s position would have consented to the surgery.

[29] The trial judge’s finding that there was not informed consent cannot stand.

(2) Delayed Diagnosis

[30] The basis for the finding of negligence in connection with the post-surgery treatment is the appellant’s failure to conduct the CT scan on July 7, 2008. There is no evidence that a CT scan should have been conducted before July 7 or that the ureter damage should have been diagnosed before that date.

[31] The trial judge found that the negligence of the appellant was based on his failure to conduct the CT scan on July 7, as requested by the emergency room physician and subsequently suggested by the radiologist. This finding presumes that the CT scan that was ordered would have revealed the damage to the ureter and that the repair could have been done sooner. Those two assumptions were not supported by the evidence.

[32] There was no evidence that the damage to the ureter would have been discovered as a result of the CT scan. None of the experts were asked if the CT scan that had been ordered would have revealed the injury. In fact, the respondent’s own expert, Dr. Radomski, stated that a CT scan “with contrast” would have been required to identify the ureters. Dr. Radomski was referred to the emergency room physician’s request for a CT scan:

Q. The, in the middle of the page under history and clinical information you’ll see that it’s written, r/o abscess, rule out abscess?

A. Yes.

Q. And you’ll agree with me there’s no mention in this record that a CT should be done to rule out a ureteric injury?

A. Correct.

Q. And I’ve learned that if you want to specifically do that with a CT scan, you’ve got to request a certain type of CT scan.

A. Yes.

Q. Okay. One with contrast?

A. Correct.

[33] Thus, it was not established that the CT scan contemplated by the emergency room physician would have revealed the damaged ureter. More importantly, even if the damage to the ureter had been diagnosed on July 7, it was already too late to perform an immediate repair. Dr. Radomski testified that if a ureter is injured during surgery and the injury is noticed at that time, the success rate for the repair is fairly good. However, after about a week, the tissue becomes swollen, fragile, and difficult to repair. After this point, the typical approach is to repair the injury 3 to 6 months later so that the tissue can heal.

[34] The one-week mark after the respondent’s surgery would have been June 30, 2008. There was no evidence that the injury to the ureter should have been discovered by that day. The trial judge concluded that the appellant should have known “something was wrong from the start” based on the respondent’s symptoms and based on her elevated blood urea nitrogen levels on July 7, which, according to the trial judge, indicated a kidney problem. However, this was a factual error. First, no expert said that the symptoms with which she presented during the one-week window for immediate repair were indicative of damage to the ureter. Dr. Radomski did not dispute the appellant’s diagnosis of abdominal wall cellulitis on June 28. Second, contrary to the trial judge’s assertion, the respondent’s blood urea nitrogen levels were within the normal range on July 7. The evidence did not support the conclusion that the appellant ought to have been aware of the injury to the ureter before July 7, let alone within the one-week window during which an early repair would have been possible.

[35] Based on the trial judge’s finding that the CT scan should have been done on July 7, and even assuming that it would have revealed the damaged ureter, the evidence is that the respondent would still have had to wait 3 to 6 months for the repair. At its highest, a diagnosis on July 7 would have caused the respondent to avoid the July 13 laparoscopy and the pain between July 7 and the diagnosis on July 14.

[36] The trial judge’s assessment of damages for pain and suffering, loss of past and future income, and the OHIP subrogated claim was based on his flawed analysis of the lack of informed consent and the delayed diagnosis of the ureter damage. Because I have concluded that his findings on these two issues cannot stand and would order a new trial on that basis, it is not necessary to address the appeal with respect to damages.

DISPOSITION

[37] The appeal is allowed and a new trial is ordered. The appellant’s costs are fixed in the amount of $20,000.00 as agreed by counsel.

M.L. Benotto J.A.”

“I agree R.G. Juriansz J.A.”

“I agree W. Hourigan J.A.”

Released: January 17, 2014