COURT FILE NO.: CV-08-00004672

DATE: 20120716

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JO ANNE ADAMS, THOMAS BLAKELOCK AND GARRETT WILLIAM FISCHER, BY HIS LITIGATION GUARDIAN, JO ANNE ADAMS

Stephen J. MacDonald and Jill Edwards for the Plaintiffs

Plaintiffs

• and -

DR. EDWARD KENT TAYLOR AND DR. NANCY DE KLEER

David Leonard and Adam Ship, for the Defendants

Defendants

HEARD: March 26, 28, 29, April 2, 3, 4, 5, 10, 16, May 1, 2012.

REASONS FOR JUDGMENT

O’CONNOR J.

Introduction

[1] The Plaintiff, Ms. Jo Anne Adams (“Ms. Adams”), developed a lesion on the webbing between the first and second toes of her left foot. Over the course of approximately one year she saw three physicians, Dr. Alison Kelford (“Dr. Kelford”), her family doctor; Dr. Edward Kent Taylor (“Dr. Taylor”), a dermatologist; and Dr. Nancy de Kleer (“Dr. de Kleer”), a plastic surgeon. The latter two doctors are the Defendants in this action. When the lesion was removed and biopsied, it was found to be a malignant melanoma, not a benign mole, as had been diagnosed by the Defendants. Ms. Adams brings this action against the Defendants alleging negligence in the diagnosis and treatment that each provided. She alleges that they failed to meet the standard of care required of specialists in their respective fields. Her husband and son make claims under the Family Law Act for the loss of care, guidance and companionship of their wife and mother respectively, denied them by the alleged negligence of the Defendants.

Background

[2] Ms. Adams is 46 years old and is married to Thomas Blakelock. Garret William Fischer is her son.

[3] On October 11, 2006, Ms. Adams attended Dr. Kelford’s office to discuss a mole on her left foot. Dr. Kelford examined the lesion. On her chart she sketched a diagram of its location between the first two toes. She noted that it was a large, irregular and darkly pigmented nevus. Ms. Adams reported that she had had it for a year. Ms. Adams also reported that since she had commenced a running program to lose weight and improve her health, the mole would sometimes break open and ooze clear fluid. Dr. Kelford also made a notation on her chart, “r/o melanoma,” meaning rule out melanoma.

[4] In her evidence at trial, Dr. Kelford said she had been Ms. Adams’ family doctor since 1996, about ten years. She said Ms. Adams had many moles on her body and on three previous occasions she had referred her to dermatologists in the community who had removed them. When making these previous referrals she did not request the doctors to rule out melanoma. However, she was concerned about the mole between Ms Adams’ toes because she assessed it as bearing some of the characteristics of a melanoma. It was dark in colour, its borders were irregular and not well defined, and it looked more worrisome than other moles that had been removed in the past. It was “nasty”, she said.

[5] Dr. Kelford referred Ms. Adams to Dr. Taylor, a dermatologist, whose office happened to be next door to hers. She requested an appointment for Ms. Adams “ASAP”. She described the mole to him as a “darkly pigmented lesion … [that] drains serous fluid intermittently” and asked him to assess the lesion and to “r/o melanoma”. She obtained an appointment for November 3, 2006. She said that the “r/o melanoma” made it an urgent referral.

[6] Dr. Taylor is a dermatologist with approximately 25 years of clinical experience practicing in a community setting. In 2006 he was an extremely busy specialist practitioner. He would see up to 60 patients a day, about 25% of whom involved moles. At trial, he said for each appointment he takes a history from the patient, does a physical examination and decides on the appropriate treatment. Many of the referrals from family doctors include the request to rule out melanoma. However, he considers and rules out melanoma, only if appropriate, with every referral.

[7] On November 3, 2006, Dr. Taylor saw Ms. Adams and conducted a physical examination of the lesion. In his letter reporting back to Dr. Kelford he noted the lesion was “an 8mm x 6mm poorly demarcated blue-black papule.” He diagnosed it as “a melanocytic papule and probably benign”. He wrote that it is “better off than on”. However, he did not remove it himself as its location and the possibility of tendons in the area required the expertise of a plastic surgeon.

[8] After canvassing several plastic surgeons, he referred her to Dr. de Kleer for removal. Dr. de Kleer is a plastic surgeon with 10 years of experience practicing in a community setting. At trial she testified that approximately 30% of her practice consists of referrals for the assessment and management of skin lesions.

[9] Dr. de Kleer testified that her standard practice is to take the patient’s history, examine the lesion and, based on the history and examination, formulate a plan for management of the lesion.

[10] Dr. Taylor wrote in his referral note to Dr. de Kleer: “removal nevus L [left] 1^st web space”. The appointment was made with Dr. de Kleer for March 26, 2007.

[11] Dr. Taylor did not forward to Dr. de Kleer the original referral letter that he had received from Dr. Kelford, nor did he copy Dr. de Kleer on his note back to Dr. Kelford. When Dr. Kelford was advised of Ms. Adams’ March 26, 2007 appointment with Dr. de Kleer, she was concerned that it was too distant in time. She had her staff attempt to obtain an earlier date with other plastic surgeons in the community. They canvassed three other surgeons and a foot and ankle clinic in Hamilton, all of whom were either unavailable sooner than Dr. de Kleer or did not operate on feet.

[12] Dr. de Kleer first saw Ms. Adams on March 26, 2007. She reviewed the referral note and patient profile at the appointment. She then conducted a physical examination of the lesion.

[13] After the visit, she reported to Dr. Taylor, with a copy to Dr. Kelford, as follows:

Ms. Adams was evaluated with respect to the nevi in the first web space of her left foot. This has been present for at least one year. She recently caught her nail on it and therefore the surface of the skin is disrupted today. The remaining nevi has irregular shape and colour.

I have asked her to recheck in two weeks when the wound has healed, but in the meantime have made arrangements to excise this, under local anesthesia, for my next available procedure date, July the 3^rd. (emphasis added)

[14] Three weeks later, on April 17, 2007, Ms. Adams attended for a follow up assessment. Dr. de Kleer conducted a physical examination of the lesion. She reported to Drs. Taylor and Kelford:

Jo-Anne Adams was evaluated with respect to the lesion on her left foot, in the first web. This has been present for a few years, but she is unsure whether it has changed in size. It does tend to become uncomfortable, ulcerate and drain periodically.

This lesion is most consistent with a hemangioma. I have recommended excision and I have organized this under local anaesthetic.

[15] The excision date was arranged for July 3, 2007. About three weeks after the April 17, 2007 appointment Ms. Adams arranged to postpone the July excision to September 7, 2007 because of a planned family vacation in July. At this point, she of course had no indication from her two specialist doctors that the lesion could be anything but benign. Shortly before September 7 Dr. de Kleer postponed the date to October 2, 2007 as she was at a conference. On October 2, 2007 she surgically removed the lesion and arranged for it to be biopsied.

[16] On October 10, 2007, the pathologist confirmed the lesion was a malignant melanoma, a cancer that is often fatal. Ms. Adams then underwent a surgical procedure to amputate two toes from her left foot followed by a lengthy and difficult chemotherapy protocol. She also had three lymph nodes removed from her groin, two of which were cancerous. She then had a full groin resection to clear the area of further metastases. She developed a staph infection and was hospitalized for a week. The groin resection resulted in a full leg lymphedema. She continues to be followed by her oncologist and a dermatologist.

The Plaintiffs’ Position

[17] Ms. Adams claims damages against both of the Defendant physicians on grounds that their diagnosis and treatment of her lesion fell below the standard of care expected of a prudent dermatologist and plastic surgeon.

[18] She alleges that Dr. Taylor either misdiagnosed her lesion as being “probably benign” and failed to arrange an immediate excision, permitting it to grow, develop and eventually metastasize, or alternatively that Dr. Taylor’s referral note to Dr. de Kleer lacked proper detail and caused delay in treating the lesion.

[19] Ms. Adams alleges that Dr. de Kleer either failed to recognize on both March 26, 2007 and April 17, 2007, that the lesion had at least four suspicious features of a melanoma, thus incorrectly diagnosing it as a hemangioma, or alternatively recognized it had some “irregular” features of a melanoma, and failed to schedule immediate removal surgery.

[20] Ms. Adams claims that had either or both of the specialists correctly diagnosed the lesion, it would have been excised as early as November, 2006 or at least by April 2007, while it was still likely in the superficial spreading stage.

The Defendants’ Position

[21] The Defendants’ argue that they met the standard of care required of a specialist in each of their areas of practice. They submit that the expert witnesses upon whose opinions the Plaintiff relies to make her case, failed to prove negligence on the part of either Defendant.

[22] They argue in fact that there is overwhelming evidence that “the appearance, characteristics and location of the lesion, combined with Ms. Adams’ reported history of running and blistering, strongly pointed away from melanoma and towards a purely benign diagnosis.” Thus, the Defendants argue that the Court should accept their experts’ opinions that the diagnosis and treatment provided was reasonable and proved that both specialists met the standard of care in their areas of practice.

The Issues and The Law

[23] Expert evidence is necessary in assisting the trier of fact in determining whether or not the Defendants have breached the standard of care. In Bafaro v. Dowd, [2008] O.J. No. 3474, aff’d 2010 ONCA 188, 260 O.A.C. 70, the court held, at para. 31 that:

Actions alleging malpractice involve issues to be decided that are not within the ordinary knowledge and experience of the trier of fact. Therefore the Plaintiff requires expert evidence to prove that the Defendant physician was negligent.

The Court's findings should be based on expert evidence; and the Court should not make conclusions of breach of the standard of care or causation without expert opinion evidence in support of those conclusions.

[24] The experts in medical negligence cases are usually doctors who practice in the same area as the Defendant.

[25] The Court, as in this case, is often faced with conflicting expert testimony. It is then up to the trier of fact to determine what weight to give to the evidence. In Crawford (Litigation Guardian of) v. Penney, [2003] O.J. No. 89, Power J. stated at para. 248:

I conclude from the foregoing that indeed, the appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence. ‘There is no necessitated dismissal of a medical negligence claim simply because honest and competent experts disagree over a doctor's diagnoses and treatment’.

[26] Thus, to be successful in this action the Plaintiffs, through expert evidence, must prove that:

• Drs. Taylor and de Kleer owed Ms. Adams a duty of care;

• Drs. Taylor and de Kleer breached the standard of care;

• The Plaintiffs suffered an injury or loss; and

• The actions of Drs. Taylor and de Kleer were the actual cause of the injury or loss.

(E.I. Picard and G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 3^rd ed. (Toronto: Thompson Canadian Limited, 1996)).

Duty of Care

[27] In this case a duty of care is not in issue and is conceded. It is clear that both Drs. Taylor and de Kleer owed Ms. Adams a duty of care. The dispute focuses on the scope of that duty.

Standard of Care

[28] Those who hold themselves out as possessing special skills or abilities must practice their profession so as to meet a standard of conduct equivalent to that of a reasonably competent member of their speciality. Accordingly, the standard of care required of a specialist doctor is that of a reasonable practitioner practicing the same speciality, considering all of the circumstances.

[29] The standard of care to which Dr. Taylor and Dr. de Kleer are held is best described in Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132 at page 3:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.

[30] Thus, for Ms. Adams to succeed she must establish, on a balance of probabilities, that Drs. Taylor and/or de Kleer failed to conduct themselves as would prudent and diligent specialist physicians, in their respective disciplines of dermatology and plastic surgery, in similar circumstances.

i. The Reasonable Exercise of Clinical Judgment is Not Negligence

[31] An honest error in clinical judgment will not result in a finding of negligence unless it is one that a reasonable doctor practicing the same discipline as the Defendants would not have made in similar circumstances. Baltman J., of this Court, in Keech v. Chang, [2009] O.J. No. 1614 said at para. 69:

It is important to distinguish between an error of judgment and an act of negligence; where a practitioner conforms to the standard and recognized practice followed by members of her profession, that is cogent evidence that the reasonable care and skill required of her has been met.

[32] In Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804, the Supreme Court of Canada said at page 812:

An error of judgment has long been distinguished from an act of unskilfulness or carelessness or due to lack of knowledge. Although universally-accepted procedures must be observed, they furnish little or no assistance in solving the predicament as faced the surgeon here. In such a situation a decision must be made without delay based on limited known and unknown factors; and the honest exercise of judgment has long been recognized as satisfying the professional obligation. (emphasis added)

ii. Courts Cannot Elevate the Standard with the Benefit of Hindsight

[33] In Ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, the Supreme Court of Canada held that a physician’s conduct should be judged given the knowledge that should have reasonably been in his or her possession at the time of the alleged negligent act or omission and not knowledge gained with the benefit of hindsight. Thus, the Court should not look at an unfortunate outcome to conclude from the outcome that it was caused by negligence. It must consider and focus on the diagnosis and treatment rather than the outcome.

[34] Here, the fact that Ms. Adams is now fighting a potentially fatal disease, an extremely unfavourable result, cannot be a significant factor in assessing negligence by either of the Defendants. However, if negligence is found to be the cause of an unfortunate outcome, the severity of the outcome will be reflected in quantum of damages: St.-Jean v Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491.

iii. The Standard of Care is elevated with Foreseeability of Harm

[35] As the Plaintiff points out, “the standard of care expected of a prudent physician increases with the foreseeability of harm or risk to the patient.” In Williams v. Bowler, 2005 CarsewellOnt 3419, Roccamo J. of the Ontario Superior Court quotes from Legal Liability of Doctors and Hospitals in Canada, supra, at page 115 of her judgment:

The standard of care is influenced by the foreseeability risk. As the degree of risk involved increases, so rises the standard of care expected of the doctor…The “degree of care required by law is care commensurate with the potential danger.”

iv. Specific Standard of Care with Respect to Record Keeping

[36] The importance of proper record keeping was recognized by C. Fraser J. in Rose v. Dujon, 1990 CanLII 5950 (AB KB), [1990] A.J. No. 844 with this comment:

The clinical reason for record-keeping is the basic duty to provide average, reasonable and prudent care. ... In order to carry out this care, two essentials are required. The first is to remind the person providing care of the past and present condition of the patient and the treatment already given. The second is to communicate this information to others who may also be caring for the patient.

[37] The standard of care respecting record keeping was further explored in Thibert v Zaw-Tun, [2006] A.W.L.D. 3120. The Alberta Court of Queen’s Bench found the Defendant doctor negligent for, inter alia, failing to keep and pass on to an orthopaedic specialist a complete chart of her treatment of the Plaintiff’s broken ankle. Her misdiagnosis that the ankle was merely sprained did not fall below the standard of care. However, her failure to record her treatment left the surgeon receiving the inadequate chart, in the dark about what the Defendant had seen, diagnosed and what treatment had been provided. The omitted information was necessary for the proper continuing care of the Plaintiff. At paragraph 116, the Court quotes with approval from, Legal Liability of Doctors and Hospitals in Canada, supra, at page 249:

Referring doctors have a duty to take reasonable steps to ensure that all significant information in their possession, including their own findings, opinion and diagnosis (if any), is brought to the attention of the other doctor or facility. The referring doctor plays a vital role in ensuring that there is no breakdown in the chain of communication.

[38] In Lurtz v. Duchesne, [2003] O.J. No. 1540, Justice Lalonde, of this Court, says at para. 156:

The specialist needs to have as much information from the referring doctor before a finding, that the latter has met the appropriate standard of care, can be made. The referring doctor needs to provide the specialist with information respecting the patient's history, condition and current care. (emphasis added)

[39] In the British Columbia case of Law Estate v. Simice (1994), 21 C.C.L.T. (2d) 228, aff’d 1995 CanLII 3251 (BC CA), [1996] 4 W.W.R. 672, the patient died of complications following a ruptured aneurism, after a delay of three weeks in diagnosing the aneurism. The patient had consulted his family doctor’s locum complaining of headaches, and the locum referred him to an ophthalmologist with a provisional diagnosis of acute glaucoma. However, she did not tell the ophthalmologist that she had noticed a sluggish pupil when examining the patient. The failure of a physician to include what information he/she had in a referral to a specialist amounted to negligence at law.

[40] In the Newfoundland Case of McLean v. Carr Estate (1994), 1994 CanLII 10343 (NL SC), 363 A.P.R. 271, aff’d 1996 CanLII 11078 (NL CA), [1996] N.J. No. 181, a family doctor who referred a patient to the emergency department of a hospital following a motor vehicle accident was held to have been negligent in failing to advise the hospital that the patient had been unconscious after the accident:

I find Dr. Carr was in breach of the duty he owed to Keith McLean in failing to report that Keith McLean had lost consciousness after the accident and that he was drowsy and disoriented during the examination by Dr. Carr.

[41] In Naeth v. Warburton (1992), 1992 CanLII 7982 (SK QB), 103 Sask. R. 130 (Q.B.), aff’d (1993), 116 Sask. R. 11 (C.A.), the doctor telephoned a specialist for emergency advice on how to deal with a patient suffering from an inverted uterus, placenta accrete and severe postpartum haemorrhaging. He was found negligent in not disclosing significant information during their conversation. The experts testified that a specialist who is being consulted must be given detailed information with respect to the problem.

[42] In Jennings Estate v. Gibson (1994), 96 B.C.L.R. (2d) 342 (C.A.), the family doctor referred the patient with headaches to a neurologist without telling the neurologist that the patient suffered from asthma. The neurologist prescribed beta-blocking drug for migraines which resulted in the patient’s death. Both the family doctor and the neurologist were found negligent.

[43] Finally, in order to be relevant in the standard of care analysis, record keeping must play a causative role on the adverse outcome: see Loffler v. Cosman, 2010 ABQB 177 at para. 156.

Injury or Loss

[44] The Plaintiff cannot succeed in a negligence action without proving that she has suffered a material injury or loss. In this case, injury or loss is not in issue. It is conceded that Ms. Adams’ injury or loss was a malignant melanoma, a cancer that is often fatal. Her difficult medical history thereafter is set out in para. 16 above.

Causation

[45] Once the Plaintiff has proven that both doctors breached the standard of care, she will only be successful in claiming damages if she proves the causal link between their negligence and the damage to the Plaintiffs. The Defendants’ conduct must be both the actual cause and the legal cause of the damage. That is, the Plaintiffs must show that Dr. Taylor’s and/or Dr. de Kleer’s negligence delayed the excision of the lesion which resulted in the significant health consequences that Ms. Adams now suffers.

[46] Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 is the leading authority on causation. Chief Justice McLachlin stresses that the “but for” test remains the traditional test for determining factual causation. However, there are cases in which the “material contribution” test is more applicable. There are two requirements needed to apply the material contribution test. At para. 25 the Court says:

First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.

[47] The law is clear that the Plaintiff need not prove that the Defendants’ negligence was the sole cause of her injury. As explained by Major J. in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, paras. 17 and 19:

It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring ... As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.

The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm ... It is sufficient if the defendant's negligence was a cause of the harm.

[48] The causal link between the Defendants’ negligence and the Plaintiffs’ damages can also be inferred from the circumstances of the case. In Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 Sopinka J. made it clear that in a malpractice case causation should be treated as “essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.” In considering whether the evidence adduced by a Plaintiff might result in drawing an inference adverse to the Defendant medical practitioner, Sopinka J. stated at paras. 32 to 34:

Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary.

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced.

It is not therefore essential that the medical experts provide a firm opinion supporting the plaintiff's theory of causation. Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard demanded by the law.

[49] This “robust and pragmatic approach” allows the Court to infer causation where it is the Defendants’ negligence that has prevented the Plaintiff from demonstrating the link between the injury and its causation. The onus then shifts to the Defendants to rebut the inference, if they can. Any uncertainty must be resolved in favour of the Plaintiffs. In Rehak v. McLennan, [1992] O. J. No. 1202, the Court says at page 4:

Lying at the root of the problem is the admitted negligence of Dr. Brooks. But for that negligence, the exact nature and consequences of the original injury would have been known. Any uncertainty of proof caused by that negligence ought to be resolved to the benefit of the injured party, not to the benefit of the tortfeasor. If necessary, I would adopt "a robust and pragmatic approach to the facts" to enable an inference to be drawn which supports the plaintiff.

[50] The burden of proof that rests on the Plaintiff in respect of her allegations that a misdiagnosis, or failure to diagnose properly in a timely manner, caused some injury remains the balance of probabilities. As put by the Court of Appeal in Cottrelle v. Gerrard, (2003), 2003 CanLII 50091 (ON CA), 67 O.R. (3d) 737 (C.A.), paras. 25 and 26:

I agree with the appellant's submission that in an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff's claim must fail. 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".

In Athey, the plaintiff proved on a balance of probabilities that the defendants' negligence caused the loss. The defendants sought to escape liability by pointing to other more significant causes for which they were not responsible. It was in that context that Athey held that if the defendant's negligence materially contributed to the occurrence of the injury, the defendant could not escape liability by pointing to other causes. However, Athey does not excuse the plaintiff from proving on a balance of probabilities that but for the defendant's negligence, the plaintiff would not have suffered the loss.

[51] Finally, in a medical negligence case, the court should have before it some expert evidence in order to find that a breach of the standard of care caused damages to the Plaintiff. As was held in Claus v. Wolfman (1999), 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673 at paras. 11-12 (S.C.J.), aff'd (2000), 2000 CanLII 22728 (ON CA), 52 O.R. (3d) 680 (C.A.):

The court ought not to be asked to make a finding that an expert or experts (the defendants) failed to meet the standard required of them by their professional peers and that their malpractice was the cause or a significant causative factor in the plaintiff's injury, in the absence of evidence of what the standard is and without the expression of even a guarded professional opinion that the defendants' conduct may have been a causal factor.

The Case Against Dr. Taylor

[52] The Plaintiff called Dr. Lynn From (“Dr. From”), an expert in dermatology. The Defendant, Dr. Taylor, called two experts, Dr. Jadranka Jambrosic (“Dr. Jambrosic”), an expert dermatologist and dermatopathologist and Dr. Howard Bargman (“Dr. Bargman”), an expert dermatologist. Each of the parties conceded the expert qualifications of the other’s expert(s). Accordingly, after brief evidence from each as to their experience and academic background, the court qualified each to give opinion evidence respecting the diagnosis and treatment of Ms. Adams.

[53] The parties agreed that the specialty areas of practice of the Defendants overlap to a considerable extent. They agreed that a dermatologist and a plastic surgeon are trained in and should be knowledgeable in the recognition of the various types of skin lesions, including moles, nevi, hemangioma and melanomas.

[54] The parties agree that in both dermatology and plastic surgery the acronym “ABCDE” represents the guidelines that are used for assessing a mole. Each of these letters reminds a treating physician of a potentially suspicious indicator of a melanoma. The letters stand for; A – asymmetry in the shape of the mole, nevus or lesion, where an irregular shape is a possible sign of a melanoma, B – borders, i.e. whether they are irregular or consistent, where irregular is a cause for concern, C – colour, i.e. whether it is a single consistent colour or several variegated colours which would raise suspicions of a melanoma, D – diameter of greater than 6 millimetres being a possible concern and E – evolution or evidence of change over time being a significantly suspicious sign.

i. Dr. From

[55] Dr. From is a recently retired dermatologist. She has an extensive history in this field. She has conducted numerous studies and written extensively, particularly respecting the recognising and treatment of melanomas. She has taught and organized examinations for medical schools training dermatologists. Dr. From is qualified to provide expert evidence in the field of dermatology and with respect to the standard of care for dermatologists practicing in Ontario.

[56] Dr. From testified that the generally accepted method of assessing and recognizing a melanoma is by applying the ABCDEs test. She was careful to say that the presence of only one of the ABCDEs would not cause concern, but that two or three would be troublesome. The more features there were, the greater the need to act quickly to remove and biopsy the lesion. Dr. From said in her report that “the most important [symptom]” or letter is “E - evidence of change or evolution of the lesion.”

[57] Dr. From acknowledged that experienced dermatologists would not necessarily go through the list of ABCDEs to check off each lettered symptom. Having looked at and assessed thousands of moles over time, they would instinctively know a suspicious lesion. An examination of it would reveal two or more of the troublesome lettered symptoms. Another melanoma-symptomatic lesion would be what dermatologists call the ‘ugly duckling’, a lesion that is quite different in appearance from other moles on the patient’s body. It is one that stands out from the rest.

[58] Dr. From reviewed the treatment letters and opinion charts of Dr. Kelford and the two Defendants. On the issue of change she said:

The fact that the lesion had been swelling and oozing and subsiding would suggest that this was clearly a changing lesion. The change could have been just due to trauma from taking up running but equally, it could be that the blistering or ulceration was overlying the melanoma which had stretched and thinned the overlying epithelium, making it more susceptible to trauma.(emphasis added).

[59] Dr. From also said that a person with many moles on their body, as in the case of Ms. Adams, would be significantly more susceptible to developing a melanoma than someone who has none or only a few. She notes that “the blue-black colour, the size of the lesion (greater than 6 mm) and the change in the lesion of pain and oozing of clear fluid would be enough for me to suggest that a biopsy should be done to rule out melanoma.” Thus, Dr. From would have removed it to be sure.

[60] She says that “as it is, both he (Dr. Taylor) and Dr. de Kleer misdiagnosed the lesion.” However, she agreed in cross-examination that the missed diagnosis by Dr. Taylor was not below the standard of care. Diagnostic skills are an art as much as a science, she said. It was not unreasonable that Dr. Taylor concluded that the changing state of the lesion, i.e. the oozing and healing cycle was caused by Ms. Adam’s running program. But so was it reasonable to conclude that it was caused by the fact it was a melanoma. Neuzen v. Korn, supra, and the many cases that follow it make it clear that an error in judgment or a misdiagnosis, provided it is carefully considered, will not constitute negligence that falls below the standard of care. Thus, she concluded, Dr. Taylor was not negligent in his diagnosis of the lesion.

[61] However, the experts all agreed that biopsy is the only definitive method of identifying whether a lesion is a melanoma or is benign. Thus, where there exist some of the suspicious indicators, the lesion must be urgently removed and biopsied.

[62] Dr. From said the description of the lesion’s behaviour as provided by Ms. Adams suggests that the lesion was thinner in the early stages when Dr. Taylor would have seen it than when excised in October 2007. Dr. From testified that had the lesion been excised in this thinner state, it may not have metastasized.

[63] Dr. From’s opinion is that Dr. Taylor was negligent and failed to meet the standard of care in his communication with both Ms. Adams and in his November 3, 2006 referral note to Dr. de Kleer for removal of the lesion. She points out that all he said in the note was “removal nevus L 1^st web space”. It was not even indicated whether the web referred to was on the hand or foot (although this would have become immediately obvious at the outset of Dr. de Kleer’s examination). There was no reference to any of the ABCDEs, or to the continuing oozing, or to his opinion of the nature of the lesion, other than it was a nevus. Dr. From says in her written report that:

[H]is referral note was inadequate as to why the patient was being referred. If a copy of his consultation letter to Dr. Kelford had been sent to Dr. de Kleer, she might have seen the patient earlier. His consult letter was very brief and if he had explained why he didn’t think it was a melanoma to the referring doctor [Dr. Kelford] who clearly thought the lesion could be melanoma, this might have shown Dr. de Kleer that there was some difference of opinion…I believe that Dr. Taylor did not demonstrate standard of care primarily in not communicating well with either the patient or the plastic surgeon.

[64] Dr. Taylor argues that there was no requirement for his referral note to Dr. de Kleer to delve into his observations of symptoms because he had come to the conclusion that the lesion was benign. In his evidence and argument to the Court, because he has no memory of Ms. Adams’ visit, he relies heavily on his usual practices to explain the dearth of information in his referral note. He said he always considers the possibility of melanoma using the ABCDEs. He said he has 25 years of experience. He always asks the patient for a history of the lesion, and he does not necessarily record the positives and negatives of it. But melanoma is always included in his differential diagnosis. He said he always asks the patient if there have been any change in the lesion over time and if not, he does not record it. Ms. Adams would have told him that she had not noticed any change, he says.

[65] He recorded on his chart, some of the information he says he always gathers – location of the lesion, its size and how long the patient has had it. However he did not send to Dr. de Kleer any of the information that he either gathered or recorded on his chart, or that he had learned from Dr. Kelford. This was information that could have assisted her in completing her differential diagnosis. The Plaintiff argues this was information vital to Dr. de Kleer in determining whether the removal sought should have been done on an urgent basis. However he sent neither a copy of this letter nor of Dr. Kelford’s referral letter to Dr. de Kleer. The cost in time and effort to fully inform the plastic surgeon versus the potential benefit begs the question as to why such a simple administrative step was not taken.

[66] In Rose v. Dujon, supra, the court emphasizes the necessity of careful record keeping for two reasons, one of which “is to communicate this information to others who may also be caring for the patient.” Further, in Thibert v. Zaw-Tun, supra, the court quotes with approval from Picard and Robertson’s Legal Liability of Doctors and Hospitals in Canada, stating that “…[R]eferring doctors have a duty to take reasonable steps to ensure that all significant information in their possession…is brought to the attention of the other doctor or facility…” And in Lurtz v. Duchesne, supra, Lalonde J., of this Court, says that “…[T]he referring doctor needs to provide the specialist with information respecting the patient’s history.” Thus, I would find that a specialist referring to another specialist is required to meet this same standard of care.

[67] The cases of Law Estate v. Simice, supra, Naeth v. Warburton, supra, McLean v. Carr Estate, supra, and Jennings Estate v. Gibson, supra, are all examples of the harm that may ensue from a referring doctor inadequately informing the doctor accepting a referral, of the full background and history of the referred patient.

[68] All the medical witnesses agreed that a significant factor in determining whether a lesion is a benign nevus or a malignant melanoma is its history of change. Dr. de Kleer had no information from either Dr. Taylor or Dr. Kelford respecting the changing appearance of the lesion. She accordingly booked Ms. Adams’ appointment for March 26, 2007, some four and a half months away. At the appointment, the paucity of information from the two previous examining doctors would have inhibited her ability to make a fully informed diagnosis or assessment, including the important issue of whether the lesion had changed over time. She had no baseline from which she could have assessed change.

[69] Ms. Adams argues the omission of this key information renders Dr. Taylor’s recordkeeping and communication as falling below the standard of care. In Dr. From’s opinion this failure in record keeping and treatment constituted negligence and failed to meet the standard of care.

ii. Dr. Jambrosic

[70] Dr. Jambrosic is a practicing dermatologist and dermatopathologist. In addition to her clinical roles, she is an Assistant Professor at the University of Toronto. She is qualified to give expert opinion evidence on the standard of care expected of a dermatologist practicing in Ontario and on the pathological assessment of pigmented lesion tissue samples.

[71] In her June 30, 2010 report, Dr. Jambrosic said that “[A]t the time of Dr. Taylor’s initial assessment in November 2006, the lesion measured 6 mm x 8 mm and was blue-black in colour and poorly demarcated. These attributes are compatible with a benign dysplastic melanocytic nevus or an early malignant melanoma.” (emphasis added). She then wrote a second report, dated September 3, 2010, indicating that her reference in the first report to the possibility that the lesion was an “early malignant melanoma” was taken out of context. She said that in June, she was retained only to give an opinion on the dermatopathology of the lesion and not on whether Dr. Taylor met the standard of care. She said the reference was to the possibility of the specific specimen submitted for pathology being either a melanocytic nevus or an early stage malignant melanoma.

[72] However, she had noted the characteristics of the lesion were as reported by Dr. Taylor in his letter to Dr. Kelford – its size, shape and poor demarcation. Whether Dr. Jambrosic made her reference to malignant melanoma only for the purpose of analyzing a specimen, or otherwise, is irrelevant. She was using Dr. Taylor’s findings. If the lesion could be a melanoma for one purpose, it could be a melanoma for all purposes. It was or should have been clear to Dr. Taylor that he was dealing with something that was possibly a melanoma. While he says he always includes the possibility of a lesion being a melanoma in his differential diagnosis, and in this case he ruled it out, why then would he be equivocal in his assessment of it to Dr. de Kleer? He said only that is was “probably benign”. Further, when writing back to Dr. Kelford, since she had specifically requested “r/o melanoma”, it should have been important to him to advise her of the reasons why he had eliminated melanoma.

[73] Because of the serious implications of a melanoma, the standard of care respecting diagnosis and treatment is elevated to an urgent level. He should have dealt with the possibility of melanoma on an urgent basis. This would involve arranging for an immediate excision. Dr. de Kleer held open operating times periodically to accommodate urgent matters.

[74] Having subsequently been asked to assess whether Dr. Taylor met the standard of care and after “analyz[ing] all the clinical elements related to the case including a complete history as well as a physical examination,” Dr. Jambrosic’s conclusion was that Dr. Taylor had met the standard of care respecting the completeness of his referral note.

[75] However, for the reasons set out above, I disagree.

[76] Dr. Jambrosic’s dermatolopathological opinion was that the change in dimension of the lesion, an important indicator of a melanoma, from the 6 mm x 8 mm recorded by Dr. Taylor in November, 2006, to the more than 12 mm size at excision in October, 2007, likely occurred after the second visit with Dr. de Kleer in April, 2007. She said: “It is my opinion that it is more likely than not, that the melanoma developed after the patient’s last visit to Dr. de Kleer in April, over the course of the 4-6 months prior to excision of the lesion in October 2007.” She bases her opinion on a note she says Dr. Taylor made indicating there was no history of recent change in the lesion. Under cross-examination she admitted this was incorrect. Dr. Taylor had made no such note. And Dr. de Kleer, who had no information from Dr. Taylor about the size he observed in November 2006, also made no record of the size in March or April of 2007. Thus there appears to be no record from the treating specialists on the issue of change in size between November 2006 and April 2007. As Dr. Jambrosic’s opinion that the change occurred after April is based largely on it not having changed between November 2006 and April 2007, and the record is silent about size in April 2007, her opinion is severely undermined.

[77] A history of change or evolution is probably the most important of the ABCDEs when diagnosing a lesion. Dr. Taylor said nothing about size, shape, colour or anything else in his referral to Dr. de Kleer. There is no reference in Dr. de Kleer’s chart or in her letters to Drs. Taylor and Kelford as to size. Thus Dr. Jambrosic’s opinion that the almost doubling in size between November 2006 and the date of excision “…more likely than not…occurred at some point after her visit with Dr. de Kleer in April 2007” is not supported by the evidence. It is based on the assumption that Dr. de Kleer had some baseline size against which she could measure what she saw in April to determine that it had not increased in size since November 2006. Dr. Jambrosic had no idea of the size in April. Her assumption of radical change having occurred after April 2007 is an unfounded guess. Further, it is noted that the opinion of Dr. Bargman, an expert dermatologist also called by the Defendants is that “[O]ne can only speculate when the melanoma evolved.”

[78] The only evidence about change in size generally and particularly came from Ms. Adams. She said she had had the lesion for a year or more before she saw Dr. Kelford. She said she had not noticed any change in size. She had noticed and was concerned about the lesion breaking open when she ran and its’ oozing a clear liquid. Ms. Adams is of course not a trained physician. The lesion was in an awkward place, difficult for her to closely observe or measure. She was unaware of the ABCDEs or of the importance of change. This, combined with her main concern being the breaking open and oozing, renders her vague recollection of no change in size unpersuasive.

iii. Dr. Bargman

[79] Dr. Bargman is a practicing dermatologist. He is an expert qualified to give opinion evidence on the standard of care in Ontario required of practicing dermatologists.

[80] In his opinion Dr. Taylor met the standard of care. He made it clear that in his opinion most family physicians are not qualified to accurately diagnose whether a lesion is benign or cancerous. He said the request on Dr. Kelford’s referral note to Dr. Taylor to “r/o melanoma” and the use of the phrase “ASAP” is standard jargon employed to help their patient jump the queue at the dermatologist’s office. However, Dr. Kelford had referred Ms. Adams to dermatologists for removal of lesions on three previous occasions. In none of these referrals did she request the specialist to rule out melanoma. She obviously is not one of the doctors Dr. Bargman says use this phase to get an early date with the dermatologist. She actually meant for Dr. Taylor to rule out melanoma and to do it as soon as possible.

[81] Dr. Bargman said that dermatologists generally do not consider individually the ABCDEs when arriving at a diagnostic conclusion. Their experience will immediately enable them to know a malignant lesion when they see one. Their ‘gut feeling’ is usually right.

[82] What Dr. Taylor saw in November of 2006 was a mole or lesion about 6 mm x 8 mm in size, with poorly demarcated borders and a uniform blue-black colour, that broke open and oozed after Ms. Adams ran. The location of the lesion in the web space between two toes is a very rare place for a melanoma. Dr. Bargman said Dr. Taylor’s language that the lesion was “probably benign” is consistent with his having ruled out melanoma. That is, he considered melanoma on his differential diagnosis list and ruled it out. Dr. Bargman said Dr. Taylor’s diagnosis that it was a melanocytic papule and probably benign was appropriate.

[83] Dr. Bargman said that Dr. Taylor’s note taking and letter to Dr. Kelford was sufficient and met the standard of care. He had no concerns about Dr. Taylor not taking a history from which he would have learned that Ms. Adams had had three moles surgically removed at different times over the previous decade. When dealing with one lesion only, it is not necessary to take a full history, he said. Nor was he concerned that Dr. Taylor did not copy the plastic surgeon with his letter to Dr. Kelford. Nor does it concern him that Dr. de Kleer reported to Dr. Taylor that the “[T]he remaining nevi [after Ms. Adams had caught her nail on it] has irregular shape and colour.” In cross-examination, when shown Dr. Kelford’s chart wherein she reported that she saw a “large, irregular, dark and darkly pigmented nevus” he agreed that Dr. Taylor should have noted it if the lesion was irregular. He reasoned, though, that it must not have been irregular because Dr. Taylor did not note it. This bit of circuitous reasoning and implied questioning of what Dr. Kelford saw and reported speaks to this witnesses’ objectivity or lack thereof and to his credibility in his role as an expert whose purpose is to assist the Court in understanding a difficult area of medicine. An expert witness is required to be objective. He is not an advocate for the party who called him to testify. Dr. Bargman was not helpful to the Court.

Conclusion Respecting Dr. Taylor

[84] The Court had difficulty understanding how Dr. Bargman could not be concerned with Dr. Taylor’s obviously uninformative referral note to Dr. de Kleer. How was it not negligent, given the law as set out above? Further, how could taking a full history not be necessary or at least not have been helpful? How could a copy of his informative letter to Dr. Kelford not have been of some assistance to Dr. de Kleer? How could Dr. de Kleer’s letter describing the lesion as having irregular shape and colour not have raised alarm bells?

[85] Although both of Drs. Taylor and de Kleer are trained to recognize the symptoms of a melanoma, Dr. Taylor is the dermatologist, the primary specialist in skin lesions in all their forms. It was fundamentally important that he provide Dr. de Kleer with the most comprehensive of information from all his sources – Dr. Kelford, Ms. Adams and his own observations and findings - when turning her over to her.

[86] Several times in evidence Dr. Taylor said he did not do or record something because, it was “not necessary”. As examples, he did not take a full history of Ms. Adams’ previous mole problems and removals and he does not record everything of what every patient tells him, because “skeleton notes” are all that is necessary.

[87] Dr. Taylor said that he assumed Dr. de Kleer’s March 27, 2007 letter reporting “…the remaining nevi has irregular shape and colour” was a typographical error. Therefore he saw no reason to intervene. One wonders why he would assume an error when the wording is clear and unequivocal. At the least he should have checked with Dr. de Kleer as to whether it was a typographical error or if she actually saw these symptoms of a melanoma, because if she did, it must be removed immediately.

[88] While it may be argued that each of the above observations taken individually may not have caused Dr. Taylor’s conduct to fall below the standard of care, cumulatively his actions and non-actions raise serious concerns. They paint a picture of an extremely busy practitioner under pressure to serve a large bank of referrals and patients, totalling some 60 a day, doing the minimum necessary with each to get through his day.

[89] I find that Dr. Taylor met the standard of care when diagnosing Ms. Adams, in that he considered melanoma as one of the possible types of skin lesions in his differential diagnosis. After he had read Dr. de Kleer’s letter of March 27, 2007 in which she described it as having irregular shape and colour, he should have been particularly aware of the necessity to rule out melanoma. He should have arranged for excision and biopsy of the lesion on an urgent basis as this was the only sure method of ruling out melanoma.

[90] I agree with Dr. From’s opinion that Dr. Taylor also failed to demonstrate the necessary standard of care by not adequately communicating his findings to either Ms. Adams or Dr. de Kleer. Had he fully informed either of Dr. de Kleer and Ms. Adams, as he did with Dr. Kelford, and had he insisted Dr. de Kleer act urgently, the tragedy that has befallen Ms. Adams may have been averted.

[91] The faulty record keeping has materially contributed to Ms. Adams’ adverse outcome. Dr. Taylor’s negligence caused delay in excising the lesion. This is clear from Dr. From’s written report where she said that if the consultation letter to Dr. Kelford had been sent to Dr. de Kleer, she might have recognized the urgency and seen Ms. Adams earlier. I agree with Dr. From that had the referral letter described the lesion with more detail and explained why Dr. Taylor did not think it was a melanoma, this might have shown Dr. de Kleer that there was some difference of opinion. Dr. de Kleer was not given the proper tools needed to assess the lesion. Before meeting Ms. Adams in March 2007, Dr. de Kleer only had the referral note from Dr. Taylor to rely on.

[92] Dr. Taylor exposed Ms. Adams to a risk of injury and she eventually suffered from that injury. It is true that Dr. Taylor’s negligence was not the sole cause of her injury, but the Plaintiff need not prove that: see Athey, supra.

[93] The Plaintiffs, through expert testimony, have proven that Dr. Taylor’s negligence caused or materially contributed to Ms. Adams’ damages.

The Case Against Dr. de Kleer

[94] The Plaintiff called Dr. Arnis Freiberg (“Dr. Freiberg””), an expert in plastic surgery. The Defendant, Dr. de Kleer, called Dr. Wayne Carman (“Dr. Carman”), an expert in plastic surgery. Again, each of the parties conceded the expert qualifications of the other’s expert. Accordingly, after brief evidence from each as to their experience and academic background, the court qualified each to give opinion evidence respecting the diagnosis and treatment of Ms. Adams.

i. Dr. Freiberg

[95] Dr. Freiberg is qualified as an expert in plastic surgery to give opinion evidence concerning melanomas, their diagnosis and treatment. He was qualified to give expert evidence respecting the standard of care expected of a plastic surgeon when diagnosing and treating a melanoma. He has enjoyed a long and impressive career in his discipline. Although recently retired from performing surgery, he still serves as a consultant at the University Health Network in Toronto. He has been qualified to give expert opinion evidence in court on several occasions in the past.

[96] Dr. Freiberg reviewed the records of Drs. Kelford, Taylor and de Kleer and the reports of the expert doctors called by the Defendants. He noted that the specialties of dermatology and plastic surgery overlap, in that a fellow in each discipline would have received training in the diagnosis of a melanoma.

[97] He said Dr. Kelford provided a succinct and accurate summary of her treatment of Ms. Adams. Her referral to Dr. Taylor was appropriate. It contained the note “ASAP”, meaning the referral was on an urgent basis. She also requested Dr. Taylor “rule out melanoma.”

[98] In his reply note to Dr. Kelford, Dr. Taylor described the lesion as “an 8mm x 6mm poorly demarcated blue-black papule” and diagnosed it as a “melanocytic papule and probably is benign”. He then referred Ms Adams to Dr. de Kleer for the removal. He generally removes lesions himself. However, given the location of the lesion in the webbing between two toes and the difficulty that location presented, he felt that the procedure required the expertise of a plastic surgeon. Dr. Freiberg said it was “appropriate” that he made this referral. Unfortunately, as noted above, Dr. Taylor’s referral note to Dr. de Kleer contained none of the information he had provided to Dr. Kelford, nor of his own observations as set out in his chart. Dr. Freiberg said that the note was “not helpful” as it was very brief, stating only “Removal Nevis (sic) L 1^st web space” and did not express any urgency. In his opinion, “This resulted in the first delay, as Dr. de Kleer had no reason to book the consultation any earlier…” than March 26, 2007, some four months after her consultation with Dr. Taylor. He supported Dr. From’s opinion that Dr. Taylor’s referral note to Dr. de Kleer was inadequate.

[99] Dr. Freiberg said that the differential diagnosis for this lesion, being asymmetrical, deep bluish/black in colour and in an unusual location was a short list that included blue nevus, hemangioma and melanoma. Based on the bluish-black colour, there were clear warning signs for both the dermatologist and plastic surgeon. Melanoma should have been high on the list of differential diagnosis because of the colour.

[100] Dr. Freiberg said that the appropriate thing to do in this situation would be to remove the lesion as soon as possible as the only way to determine it was not a melanoma was to remove and biopsy it. By not removing the lesions within an urgent timeframe, Dr. Freiberg found that Dr. de Kleer fell below the standard of care. He says that early treatment likely would have made a difference in this case. Timing was important because melanoma can be an unpredictable and aggressive tumour and should be dealt with sooner rather than later.

[101] He did agree, however, that if Dr. de Kleer did consider a differential diagnosis including melanoma, and ruled it out, but simply failed to record it on her chart, she was not negligent.

[102] Dr. Freiberg concluded that Dr. de Kleer fell below the standard of care on March 26 and April 17 by not documenting the size and colour of the lesion. These are very important features that would have enabled Drs. Kelford and Taylor, to whom she reported on March 26, to compare with their notes and records for the all important factor of “E- evolution or evidence of change.” Dr. de Kleer said there was no need to document the characteristics of the lesion in order to assess whether it had changed because she was going to take it off.

[103] Dr. Friedberg would expect a prudent, careful plastic surgeon to provide a description of the size, colour and appearance of the lesion.

[104] Dr. Freiberg also testified if Dr. de Kleer had observed and dictated the words “irregular shape and colour”, then she would have failed to meet the standard of care in the treatment that followed.

ii. Dr. Carman

[105] Dr. Carman is a community practicing plastic surgeon with 21 years experience. He was qualified to give opinion evidence on plastic surgery and the standard of care applicable to plastic surgeons.

[106] He simply accepted Dr. de Kleer’s evidence that her reference in her March note to an irregular shape and colour was a transcription error and that she had really said “regular”. In cross-examination he agreed that if the letter as written is what she said and meant, then, she should have had real suspicions that it was a melanoma. He also agreed that nothing in her records except the “over one year history of the lesion” points to it being benign, although he said that, if benign, she would not have been likely to record the benign characteristics of it. In his opinion Dr. de Kleer’s April diagnosis that the lesion was “most consistent with a hemangioma” was incorrect.

Conclusions Respecting Dr. de Kleer

[107] On March 26, 2007 Dr. de Kleer observed a lesion that had an “irregular shape and colour.” Her note to Drs. Taylor and Kelford describing the lesion stated so.

[108] At her examination for discovery, Dr. de Kleer brought to the attention of her counsel that the above italicized sentence was incorrectly transcribed by her transcription service. She said what she dictated was “[The] remaining nevi has a regular shape and colour.” (emphasis added) She obtained the tape of dictation from her transcribing service, which she says clears up the ‘error’.

[109] For the following reasons, I disagree there was an error in transcription.

[110] The description of irregular shape is consistent with Dr. Kleford’s observations. She had noted in her chart and testified at trial that the lesion was an irregular shape. In her note to Dr. Taylor she said the mole was “poorly demarcated” i.e. irregular. Dr. Taylor did not send Dr. Kelford’s note to Dr. de Kleer. Yet, Dr. de Kleer also saw a poorly demarcated or irregular shaped lesion, as she reported.

[111] The colour of the lesion was dark. Dr. Kelford described it as such and Dr. Taylor specifically mentions it is blue-black in colour.

[112] Dr. de Kleer testified that when taking the patient’s history she normally records only abnormalities, pertinent findings and those of the ABCDEs of the lesion that are clinically significant. These five symptoms are discussed above. She said she does not record unremarkable features. However, if the shape and colour of the nevus were unremarkable i.e. “regular”, why would she include a sentence in her report to Dr. Taylor describing it as having a regular shape and colour?

[113] Dr. de Kleer had several opportunities to discover and correct the ‘error’ made in March, 2007. The first opportunity was when she saw Ms. Adams again on April 17, 2007. If during this visit she had observed the lesion had a “regular shape and colour” one would have expected her to catch the March 26, 2007 mistake in the letter in her file and correct the note at that time.

[114] The second opportunity was in preparation for her examination for discovery. Then, during the discovery, when specifically questioned about it, she did not mention that what was typed was actually an error. She only brought it to the attention of her counsel after the completion of the examination. One might infer that it was Plaintiffs’ counsel’s line of questioning that drew her attention to the fact that an irregular shape and colour are indices of a melanoma.

[115] Perhaps the most cogent reason why I do not accept her explanation is the tape itself. It was played in court, at which time I heard her say “irregular”. The tape was entered as an exhibit. Counsel invited the Court to listen to it. I have done so numerous times, with the volume enhanced. It is clear she said “irregular”.

[116] These “irregular” characteristics are clearly those of a possible melanoma. She may have attributed the changes evidenced by the lesion breaking open, oozing clear liquid and then healing to Ms. Adams’ running program. But change is also a clear indication of a melanoma. Dr. From said that the change equally “…could be that the blistering or ulceration was overlying the melanoma which had stretched the thinned epithelium, making it more susceptible to trauma.”

[117] Having available Drs. Kelford’s and Taylor’s records and observations may also have helped in creating some sense of urgency in her diagnosis and treatment. Nevertheless there was an obligation on her, as a specialist trained to recognize symptoms of a melanoma, having seen clear signs of a possible melanoma, to recognize it as such and remove it immediately.

[118] The law provides that the honest exercise of judgment satisfies the professional obligation and is not negligent. However, if the error is one that a reasonable doctor practicing in the same discipline would not have made in similar circumstances, then the conduct falls below the standard of care and is negligent. Wilson v. Swanson, supra.

[119] Here, Dr. Freiberg’s opinion is that her lack of urgent action fell below the standard of care. And the Defendant’s own expert, Dr. Carman, agreed that if she had observed an irregular shape and colour, (as her note says she did), these characteristics should create a real suspicion that it was a melanoma.

[120] I find that Dr. de Kleer’s conduct fell below the standard of care expected of a plastic surgeon in the circumstances of this matter. She failed to act after observing an irregular shape and colour in this lesion.

[121] The Plaintiffs have proven that Dr. de Kleer was negligent and that the negligence contributed to Ms. Adams’ negative outcome.

[122] It is clear from the evidence of all the physicians at trial that the objective when dealing with melanoma is to recognize it early and to treat it, that is, excise it early. Dr. de Kleer was negligent in leaving a growing dangerous lesion on Ms. Adam’s skin, thus allowing it to develop into a melanoma, if it had not already done so.

[123] Like Dr. Taylor, Dr. de Kleer made it impossible for the Plaintiffs to show whether the lesion had metastasized earlier. The inability to prove the causal link between the Defendants’ negligence and the Plaintiff’s damages is a direct result of the Defendants’ failure to act appropriately. Dr. de Kleer’s breach materially contributed to Ms. Adams’ tragic outcome.

[124] The Court can also infer, by using the robust and pragmatic approach, that the Defendant’s negligence caused the condition to become more serious. It is logical that Ms. Adams’ condition worsened as a result of not removing the lesion. There is no evidence to the contrary.

The Result

[125] Judgment for the Plaintiffs against both Defendants in the amount(s) of damages agreed upon prior to trial.

Damages and Judgment

[126] The quantum of damages agreed upon has not been disclosed to the Court. The parties shall submit to the Court a form of judgment for signing and issuance. If they are unable to agree on the form and content of the judgment, each shall provide the Court with their version accompanied by brief written submissions, within 30 days of the date of these reasons.

Costs

[127] If the parties are unable to agree on costs, they shall present their bills of costs and written submissions, limited to ten pages, within 30 days of the date of these reasons.

O’CONNOR J.

Released: July 16, 2012