Court of Appeal for Ontario

Date: 2017-05-17 Docket: C61604

Judges: Simmons, Pepall and Huscroft JJ.A.

Between

Barbara Jane Bollman, Naomi Lynne Bollman and Nicholas Donald Bollman Plaintiffs (Appellant/Respondent by way of cross-appeal)

and

Dr. Gary Maynard Soenen and Norfolk General Hospital Defendants (Respondent/Appellant by way of cross-appeal)

Counsel

André I.G. Michael and Kimberly N. Knight, for the appellant/respondent by way of cross-appeal

Ronald G. Slaght and Lindsay N. Beck, for the respondent/appellant by way of cross-appeal

Heard: November 17, 2016

On appeal from: the judgment of Justice Donald J. Gordon of the Superior Court of Justice, dated December 16, 2015.

Simmons J.A.:

A. Introduction

[1] In June 2008, the respondent, Dr. Gary Soenen, performed a laparoscopically assisted vaginal hysterectomy ("LAVH") on the appellant, Barbara Young (formerly Bollman).

[2] The surgery appeared uneventful and Ms. Young was discharged from hospital the following day. However, in the days and weeks following the surgery, Ms. Young experienced significant pain and complications. A little over three weeks' post-surgery, during her sixth post-operative hospital visit, a CT scan with contrast revealed an injury to her left ureter. During subsequent corrective surgery, it was determined that her left ureter was transected.

[3] Ms. Young sued Dr. Soenen for negligence. Among other things, she claimed that, as a general surgeon, he was not qualified to perform the surgery; that he did not adequately explain the risks of or alternatives to surgery, thus failing to obtain her informed consent; and that he did not meet the standard of care either in performing the surgery or in his post-operative care.

[4] The trial judge found that Dr. Soenen severed Ms. Young's left ureter during the hysterectomy. Nonetheless, he rejected Ms. Young's claims that Dr. Soenen was not qualified to perform the surgery and failed to meet the standard of care in performing it. Further, while the trial judge was not satisfied Dr. Soenen met his duty of fully informing Ms. Young about the risks of surgery and other treatment options and found that Ms. Young "met the subjective component of the test" for informed consent, he concluded that a reasonable person experiencing Ms. Young's symptoms would have chosen to proceed with the surgery had full disclosure been made. The trial judge therefore rejected Ms. Young's negligence claim based on lack of informed consent.

[5] However, the trial judge found Dr. Soenen negligent in his post-operative care. In particular, he found that Dr. Soenen's failure to consider and investigate a surgical injury on July 7, 2008 (which was a week before the date of the scan that revealed the ureteric injury) breached the standard of care. He noted that Ms. Young suffered pain and complications for an additional week and had to undergo an additional laparoscopic surgery. He concluded that both would have been avoided had Dr. Soenen ordered a CT scan with contrast on July 7, 2008. He awarded Ms. Young $35,000 in damages.

[6] Ms. Young appeals the dismissal of her claim for negligence based on lack of informed consent. Dr. Soenen cross-appeals the finding of post-operative negligence.

[7] For the reasons that follow, I would dismiss the appeal and allow the cross-appeal.

B. The Appeal

[8] As I have said, Ms. Young appeals the dismissal of her claim for negligence based on lack of informed consent. She submits that the trial judge erred in the application of the objective element of the test for informed consent in medical negligence cases. In particular, she says that having found that Ms. Young met the subjective element of the test for informed consent, the trial judge ignored expert evidence concerning available medical treatment for Ms. Young's condition and failed to weigh the relative benefits and risks of medical treatment versus surgery. Dr. Soenen disputes this claim; he also asserts that the trial judge erred in finding Ms. Young met the subjective component of the test for informed consent.

(1) Background

[9] Ms. Young developed menstrual problems in 1987 following the birth of her second child. Subsequently, in 1990, she had a dilation and curettage procedure (D&C) that provided her with some relief for many years.

[10] However, in 2006, Ms. Young's symptoms worsened. By 2007, she was suffering from heavy bleeding (menorrhagia), blood clotting, vaginal pain and breast tenderness. These symptoms impacted her ability to work and her quality of life.

[11] In May 2007, she consulted her family physician, Dr. Thorogood, who referred her to Dr. Soenen. At trial, Dr. Thorogood testified that he always discussed medical management with his patients prior to referring them to a surgeon. In addition, he said that some patients had been referred back to him by Dr. Soenen in order for him to oversee their medical management.

[12] Dr. Soenen first saw Ms. Young on June 19, 2007. He reviewed an ultrasound performed in mid-May and conducted a pelvic examination. He recommended an endometrial ablation, to which Ms. Young agreed. At trial, he testified that he would only have booked this procedure after she had "declined other options", including medical management.

[13] Dr. Soenen performed the endometrial ablation on September 17, 2007. The procedure provided Ms. Young with some relief. However, on February 14, 2008, Dr. Soenen wrote to Dr. Thorogood, reporting that it was likely Ms. Young would go on to have a LAVH. In correspondence to Dr. Thorogood on March 20, 2008, Dr. Soenen said that Ms. Young continued to have significant pain and "wishes to have a hysterectomy".

[14] Dr. Soenen performed a LAVH on Ms. Young on June 23, 2008 at Norfolk General Hospital. His notes indicate the surgery was uneventful; Ms. Young was discharged from the hospital the following day.

[15] Ms. Young called Dr. Kristina Dervaitis, a gynecologist, to give expert evidence concerning the medical and surgical management of menstrual problems including hysterectomies.

[16] Among other things, Dr. Dervaitis opined that, by 2008, the Mirena intrauterine device ("IUD") had become a first line option; that Ms. Young had no contraindications for the use of it; and, in fact, "would be considered an ideal candidate" for its use.

[17] Dr. Dervaitis testified that the Mirena IUD can be inserted in a five-minute office procedure; can be removed at any time; is effective for five years; and has "very low associated risks". Moreover, it has a high rate of success in "[decreasing] menstrual flow in 90% of patients" and "70% of patients have an improvement in painful menses".

[18] Dr. Dervaitis indicated that, in any event, Ms. Young's symptoms would resolve spontaneously at menopause. She was 49 at the time of surgery – and the average age of menopause is 51.

[19] In Dr. Dervaitis's opinion "most patients would accept at least one medical management option prior to embarking upon a treatment that is much higher risk such as surgery" and that "for benign, non-cancerous, non-life-threatening" menstrual problems, a hysterectomy would be considered "a last resort."

[20] Ms. Young testified that Dr. Soenen did not discuss a referral to a gynecologist or the use of medication or an IUD, options which Ms. Young said she would have tried prior to electing surgery had they been offered. Further, while she acknowledged that Dr. Soenen advised her about the basic risks of "bleeding and infection, damage to other organs", she had no recollection of him referring to possible injury to her ureters, a term she was familiar with and would have asked for an explanation of had he mentioned it.

[21] Dr. Soenen conceded he had injured Ms. Young during the hysterectomy and that his record-keeping concerning the pre-operative advice he had given to her was "sparse". Nonetheless, he asserted that he had reviewed treatment options with Ms. Young, including medical management, as well as the risks and possibility of failure of the surgery.

(2) The Trial Judge's Reasons Concerning Informed Consent

[22] After dealing with Dr. Soenen's qualifications to perform the hysterectomy, the trial judge turned to the issue of informed consent. In his view, Reibl v. Hughes, [1980] 2 S.C.R. 880, established a two-part test for informed consent, both components of which must be established on a balance of probabilities:

i) what the patient would have agreed to if the risks were known, a subjective test; and

ii) what a reasonable person would have done, an objective test.

[23] Although he considered Ms. Young's evidence "qualified to some extent in terms of recollection", the trial judge found her to be a sincere and believable witness. Further, while he accepted that Dr. Thorogood had a discussion with Ms. Young concerning medical management and referral to a gynaecologist, it was unclear how extensive this discussion was regarding options. In any event, the duty to fully inform Ms. Young of the risks of surgery and available alternative options rested with Dr. Soenen. The trial judge was not satisfied Dr. Soenen made full disclosure to his patient. His notes were of no assistance and he provided minimal detail of what his usual practice in terms of disclosure actually was. The trial judge therefore concluded that Ms. Young met the subjective component of the test. However, in his view, it was impossible for her to meet the second component. He said:

Ms. Young was a sincere and believable witness. There is merit in much of what she says, although her evidence was qualified to some extent in terms of recollection. However, she was certain there was no discussion of [an IUD] or risk of injury to a ureter.

[T]he duty here rests with Dr. Soenen. I am not persuaded full disclosure was presented to Ms. Young.

Hence, I conclude Ms. Young has met the subjective component of the test. However, the objective branch, in my view, is impossible to achieve in this case.

Ms. Young had suffered from menorrhagia for many years. Her condition had escalated over the prior two years. Two surgical procedures had failed. She was in considerable pain and dealing with fatigue. Menorrhagia impacted her work and quality of life. Ms. Young wanted relief, a final solution. In my view, Ms. Young's stated preferences are based, in part, on hindsight. Regardless, I conclude a reasonable person experiencing Ms. Young's symptoms would have chosen a surgical solution if all treatment options and material risk, including ureteric injury, had been disclosed.

(3) Discussion

[24] As I have said, Ms. Young submits that, having found that she (Ms. Young) met the subjective element of the test for informed consent, the trial judge erred in his application of the objective element.

[25] In particular, Ms. Young contends that the trial judge failed to consider Dr. Dervaitis' uncontradicted expert evidence that medical management with a Mirena IUD was "first line" treatment carrying little associated risk and a high probability of success. Further, the trial judge failed to weigh the relative benefits and risks of medical management against the risks of a LAVH, an elective surgery and what Dr. Dervaitis described as the treatment of last resort for Ms. Young's condition. Moreover, the "first line" treatment, if successful, would not preclude subsequent surgery.

[26] Given that most patients would follow the treatment path recommended in accordance with the gynecological standard of care, Ms. Young submits that the trial judge's conclusion that she failed to meet the objective element of the test for informed consent reflects palpable and overriding error.

[27] I would not accept these submissions.

[28] In Reibl v. Hughes, the Supreme Court of Canada rejected a purely subjective test for causation in medical negligence cases alleging lack of informed consent and instead adopted a modified objective test. Under the modified objective test for causation, the court must consider whether a reasonable person in the plaintiff's position would have declined the procedure at the time had proper disclosure been made.

[29] One of the major reasons for adopting a modified objective test for causation, rather than a subjective test, was that a subjective test would place too high a premium on hindsight – thus creating a risk that a patient who had suffered injury would be convinced she would not have undergone the procedure had proper disclosure been made.

[30] On the other hand, a purely objective test could place too high a premium on medical evidence, thus making it practically impossible to succeed with an action based on lack of informed consent – and also potentially ignoring the legitimate concerns of patients wishing to exercise their rights of freedom of choice.

[31] The Supreme Court has confirmed the modified objective test as the appropriate test in two subsequent decisions: Hollis v. Birch, [1995] 4 S.C.R. 634 and Arndt v. Smith, [1997] 2 S.C.R. 539.

[32] In the latter case, Cory J. described the considerations that led the court to adopt the modified objective test in Reibl v. Hughes as well as the precise contours of the test, at paras. 4-6, as follows:

Laskin C.J. … rejected the pure subjective approach to causation. He explained at p. 898 that the plaintiff's testimony as to what he or she would have done, had the doctor given an adequate warning, is of little value:

It could hardly be expected that the patient who is suing would admit that he would have agreed to have the surgery, even knowing all the accompanying risks.

Accordingly the subjective test would necessarily cause the trier of fact to place too much weight on inherently unreliable testimony.

While an objective test would prevent an inappropriate emphasis being placed on the plaintiff's testimony, Laskin C.J. thought that a purely objective test also presented problems. At p. 898, he discussed his paramount concern with an approach based on the actions of a hypothetical reasonable person:

... a vexing problem raised by the objective standard is whether causation could ever be established if the surgeon has recommended surgery which is warranted by the patient's condition…. The objective standard of what a reasonable person in the patient's position would do would seem to put a premium on the surgeon's assessment of the relative need for the surgery and on supporting medical evidence of that need. Could it be reasonably refused?

In short, the purely objective standard might result in undue emphasis being placed on the medical evidence, essentially resulting in a test which defers completely to medical wisdom.

To balance the two problems, Laskin C.J. opted for a modified objective test for causation

The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any "particular concerns" of the patient and any "special considerations affecting the particular patient" in determining whether the patient would have refused treatment if given all the information about the possible risks. [Emphasis in original.]

[33] Although the trial judge expressed the test somewhat differently, I am not persuaded that he made any error in applying the test as set out and explained by the Supreme Court.

[34] Read fairly, the trial judge's reasons demonstrate that he believed Ms. Young when she said that she would have tried medical management had full disclosure been made. However, he found her evidence in that respect tainted by hindsight – and therefore unreliable.

[35] Taking account of her circumstances at the time, and assessing her situation from the perspective of a reasonable person, he concluded that what was most important was a final solution. At para. 84 of his reasons, the trial judge concluded that Ms. Young wanted relief, a final solution having had two failed surgical procedures and having experienced considerable pain and fatigue. Rather than a trial of medical management, a reasonable person who had experienced Ms. Young's symptoms over the same time frame, and with the attempts at correction she had tried, would have opted for surgery – which carried a very small risk[1] of injury to the ureters – to resolve her problem, rather than medical management, including the IUD, which might do no more than ameliorate her symptoms.

[36] I am not persuaded that the trial judge ignored, or failed to consider, Dr. Dervaitis' evidence in reaching this conclusion. He referred to her evidence about medical management when addressing the issue of whether Dr. Soenen was qualified to provide gynecological services, including hysterectomies. When addressing the issue of informed consent, the trial judge specifically noted Ms. Young's testimony that she would have tried medical management, such as an IUD, or accepted a referral to a gynaecologist – options Dr. Dervaitis had presented – had those options been disclosed by Dr. Soenen.

[37] And although the trial judge believed Ms. Young's evidence in that regard, he was not satisfied it was reliable. Rather, even in the face of her credible evidence that she would have opted for the solutions about which Dr. Dervaitis testified, he concluded that a reasonable person who had experienced the symptoms she described and who had tried the corrective measures she had tried would have opted for the LAVH.

[38] In my view, in reaching his conclusion, the trial judge considered all the evidence and applied the test for informed consent as enunciated and explained by the Supreme Court. In the absence of error, his conclusion is entitled to deference.

[39] I would therefore dismiss the appeal. In the light of this determination, it is unnecessary to address the respondent's submissions that the trial judge erred in his formulation and application of the informed consent test.

C. The Cross-Appeal

[40] As noted above, Dr. Soenen cross-appeals the trial judge's finding that Dr. Soenen's failure to consider and investigate a surgical injury on July 7, 2008 (which was a week before the date of the scan that revealed the ureteric injury) breached the standard of care. He submits that this finding relating to post-operative care is not supportable on the expert opinion evidence.

(1) Background – Post-LAVH Events

[41] Following her discharge from hospital on June 24, 2008, Ms. Young experienced significant difficulties and pain. On June 28, 2008, she went to the emergency department at the hospital. She was diagnosed with abdominal wall cellulitis and was discharged with a prescription for antibiotics.

[42] Ms. Young's pain continued. She returned to the hospital by ambulance on the morning of July 3, 2008. She was unable to void. Her bladder was drained and she was sent home.

[43] On July 5, 2008, Ms. Young returned to the emergency department yet again. She had abdominal tenderness and was retaining urine. The emergency doctor submitted a requisition for an urgent CT scan, stating:

URGENT - MONDAY PLEASE (July 7/08) … post LAVH with urinary retention. Complication post-op. Abdominal wall cellulitis … R/O abscess.

[44] Ms. Young returned to the hospital on July 7, 2008. She was sent for an ultrasound. Dr. Chow, a radiologist, reported the presence of "a large loculated cystic mass and stated, in part:

With clinical history I could not rule out if this is a large abscess formation but the left ovary is not demonstrated. The other possibility of left large ovarian cyst could not be entirely excluded.

I believe CT pelvic scan may give more information.

[45] Dr. Soenen attended the emergency room to see Ms. Young. He testified that he conducted a pelvic examination, reviewed Dr. Chow's report and had a discussion with him. Although his recollection of the discussion was somewhat vague, he said they discussed "whether or not we should do a CT scan, whether it would add any further information." Dr. Soenen also reviewed a laboratory blood test report, which revealed a depressed hemoglobin level compared to the value recorded before the surgery. His diagnosis was pelvic hematoma. He discharged Ms. Young from hospital with instructions to continue taking the antibiotics.

[46] Dr. Soenen next saw Ms. Young in his office for a previously scheduled appointment on July 9, 2008. After examining Ms. Young, his diagnosis remained the same.

[47] Ms. Young continued to experience abdominal pain. She returned to the hospital emergency department on July 11, 2008. The doctor who saw her diagnosed "post-operative complication" and discharged Ms. Young with pain medication.

[48] On July 12, 2008, Ms. Young was again taken to the hospital by ambulance. The emergency doctor ordered a CT scan and Ms. Young was admitted to the hospital.

[49] Dr. Soenen saw Ms. Young the next day. The CT scan had not been performed. Dr. Soenen reviewed the blood test report and was concerned that the hematoma had become infected. He decided to drain it laparoscopically, a procedure he performed later in the day. This procedure revealed the absence of a hematoma. In his postoperative report, Dr. Soenen commented that he could not identify any ureteric injury.

[50] After a post-operative discussion with another surgeon, Dr. Soenen ordered a CT scan with contrast of Ms. Young's bladder and ureters. In the requisition, he wrote "are the ureters intact?"

[51] The CT scan with contrast was performed on July 14, 2008. It revealed an injury to Ms. Young's left ureter. She was transported immediately to the hospital in London.

[52] On July 16, 2008, a urologist performed surgery and determined that Ms. Young's entire left ureter had been transected. Although the urologist concluded that a left ureteral reimplantation could be performed, at that point it was necessary to allow for tissue healing. The corrective surgery was performed on October 20, 2008. A further surgery was required on April 23, 2009 to repair an incisional hernia.

[53] The trial judge found that Ms. Young was still experiencing physical and emotional effects of the injury at the time of trial, seven years after the surgery.

(2) The Trial Judge's Reasons Concerning Post-Operative Care

[54] After dealing with the issues of Dr. Soenen's qualifications, informed consent and surgical negligence, the trial judge turned to the question of post-operative negligence. As framed by the trial judge, the issue was differential diagnosis – and whether Dr. Soenen should have considered possible diagnoses other than hematoma on July 7, 2008 and ordered a CT scan with contrast on that day.

[55] As a starting point, the trial judge noted that Dr. Soenen accepted that by July 7, 2008, Ms. Young's post-operative symptoms had changed and that urinary retention, by then reported, was indicative of some problem in the urinary system. Nonetheless, Dr. Soenen's impression remained hematoma.

[56] Although the trial judge observed that Dr. Soenen had rejected recommendations made on July 5 and July 7 that a CT scan should be performed, he also noted that it was undisputed that a regular CT scan would not have helped and that only a CT scan with contrast would have revealed Ms. Young's injury.

[57] The trial judge reviewed the expert evidence concerning Ms. Young's post-operative care. He noted that Dr. Ronald Holliday, a general surgeon, opined that ureteric injury should have been part of Dr. Soenen's differential diagnosis. While hematoma was a possible explanation, other explanations should have been considered. Surgery close to the ureter, in Dr. Holliday's opinion, required a CT scan with contrast to determine if there was an injury.

[58] The trial judge also observed that Dr. Sidney Radomski, a urologist, agreed with Dr. Holliday that a CT scan with contrast should have been ordered on July 7, 2008 and opined that failure to do so breached the standard of care. Dr. Radomski acknowledged that his opinion was that of a urologist.

[59] On the other hand, Dr. Nicholas Braithwaite, an obstetrician and gynecologist, opined that Dr. Soenen met the standard of care. Similarly, Dr. Michael Robinette, a urologist, agreed that the diagnosis of hematoma was reasonable and met the standard of care. He noted that all the laboratory reports supported the hematoma diagnosis at that point.

[60] While acknowledging the competing opinions concerning the standard of care, the trial judge noted that the "common theme" was the "requirement of a differential diagnosis and recognition of ureteric injury as a risk in abdominal surgery."

[61] In the trial judge's view, "Dr. Soenen was focused on hematoma throughout the post-operative stage." He found it "troubling that there was nothing else on Dr. Soenen's differential diagnosis." Moreover, having had one previous patient suffer ureteric injury during surgery, "[a]t a minimum, [ureteric injury] ought to have been on [Dr. Soenen's] differential diagnosis and investigated."

[62] Holding that the opinions of Dr. Holliday and Dr. Radomski were more persuasive, the trial judge found that Dr. Soenen breached the standard of care by failing to include surgical injury in his differential diagnosis and investigating it on July 7, 2008. Although hematoma was on the differential diagnosis, other matters should have been considered and ruled out. Both the emergency doctor and the radiologist "had alerted Dr. Soenen as to other potential causes."

[63] After setting out this finding, the trial judge also noted that Dr. Soenen had argued that the standard articulated by Dr. Radomski should not apply because Dr. Radomski is a specialist – a urologist – whereas Dr. Soenen is a general surgeon. The trial judge rejected this argument. He said Dr. Soenen is a general surgeon who holds himself out as qualified to perform gynaecological services, therefore attracting a higher standard of care. And, in any event, Dr. Halliday, a general surgeon, agreed with Dr. Radomski's articulation of the standard of care.

(3) Discussion

[64] I would accept Dr. Soenen's argument that the expert evidence read as a whole does not support the trial judge's finding that Dr. Soenen breached the standard of care.

[65] Although Dr. Holliday and Dr. Radomski gave the opinions relied on by the trial judge when testifying in-chief, during cross-examination, both acknowledged that had Dr. Soenen taken certain steps he said he had taken (performing a pelvic examination, reviewing the ultrasound and blood test reports and speaking to Dr. Chow, the radiologist) before deciding on a course of action, declining to order a CT scan on July 7, 2008 would be a reasonable decision and within the standard of care (or at least not an unreasonable decision).

[66] During cross-examination, Dr. Holliday testified as follows:

Q. Okay. And Dr. Soenen's evidence, I anticipate, will be that he indeed looked at the ultrasound report, that he spoke to the radiologist and they discussed whether it was an abscess or a hematoma and that there was no discussion of a ureteric injury and that he assessed Ms. Young. And you'll agree with me that if he did, took these three steps, he would be in a reasonable position to decide whether to order a CT scan or not, correct?

A. Yes.

Q. And if he took those steps, not ordering a CT scan would be a reasonable decision?

A. Yes.

Q. And if he took those steps, not ordering a CT scan would also meet the standard of care?

A. Yes.

[67] Dr. Radomski acknowledged that, although it was not what he would have done, not ordering a CT scan would not be unreasonable and his comments about what he would have done did not reflect the standard of care:

Q. And I want you to assume that Dr. Soenen reviewed the ultrasound report, spoke with the radiologist, and he assessed Ms. Young. And I also want you to assume that once these three steps were carried out, he decided that a CT scan was not indicated. You'll agree with me that that decision, not to order a CT scan, if those steps were taken was reasonable?

A. I think that it's an option. It's not something in my opinion I would've done.

Q. Are you saying it's unreasonable?

A. No. I said it's not, it's an option, but it's not something that I would have, would have done.

Q. Okay. So let's first get in the answer to my question.

A. Okay.

Q. Was it a reasonable thing to do?

A. I don't think it was an unreasonable thing to do.

Q. Okay. And whether you would do it or not, you'll agree with me is not the standard of care, right? It's not what a personal choice or option you would have taken as a urologist on that day. The standard of care doesn't represent just what you would do, right?

A. Correct.

Q. Okay. And I guess, again I'm not being critical of you, but you come at this today, and in particular what should or should not have been done as a urologist. It's self-evident, right?

A. Correct.

Q. Someone whose practice is focused on the urinary tracts in part?

A. Correct.

Q You don't come at it in the perspective of general surgeon because you're not, right?

A. Correct.

[68] In the narrative section of his reasons, the trial judge accepted that Dr. Soenen performed a pelvic examination on Ms. Young on July 7, 2008 and reviewed Dr. Chow's ultrasound report and the blood test report. Although he did not find specifically that Dr. Soenen discussed the ultrasound report with Dr. Chow, Dr. Soenen's evidence in that respect was not challenged in cross-examination. Moreover, the trial judge did not reject it.

[69] Considering the evidence as a whole, in my view, the trial judge's conclusion that Dr. Soenen fell below the standard of care is not supported by the expert evidence. Once told of the steps Dr. Soenen had taken before deciding on a course of action, the experts upon whom the trial judge relied essentially acknowledged that Dr. Soenen's decision not to order a CT scan on July 7, 2008 did not breach the standard of care. Although Dr. Radomski's acknowledgment was not as clear as that of Dr. Holliday, he did agree that not ordering a CT scan was "an option" and that his [Dr. Radomski's] choice of options did not reflect the standard of care.

[70] The trial judge did not advert to this evidence in his reasons. He also provided no basis for rejecting it or for concluding that the initial opinions of Drs. Holiday and Radomski had not been significantly qualified in cross-examination. In the circumstances, I conclude that the trial judge's finding that Dr. Soenen breached the standard of care in his post-operative care was not reasonably supported by the evidence.

[71] Dr. Soenen advanced an additional argument that causation was not made out, given the likelihood the ureteric transection was the result of a burn injury which would not have crystalized by July 7, 2008. Given my conclusion set out above, it is unnecessary that I address this issue.

[72] I would therefore allow the cross-appeal, set aside the trial judge's judgment and dismiss the action against Dr. Soenen.

D. Disposition

[73] Based on the foregoing reasons, I would dismiss the appeal, allow the cross-appeal, set aside the trial judge's judgment and dismiss the action against Dr. Soenen. I would award costs of the appeal and cross-appeal, if demanded, on a partial indemnity scale fixed in the agreed upon amount of $10,000 inclusive of disbursements and HST. If the parties are unable to agree on costs of the proceeding below, they may make brief written submissions within 30 days of the date of the release of this judgment.

Released:

"GH" "Janet Simmons J.A."

"MAY 17 2017" "I agree S.E. Pepall J.A."

"I agree Grant Huscroft J.A."

[1] When discussing whether Dr. Soenen was negligent, the trial judge noted that Dr. Soenen had performed 400 to 500 LAVHs by 2008 and that only two of his patients, including Ms. Young, had suffered ureteric injury. The trial judge said, "[t]his rate is said to be well within the accepted statistical range."