COURT FILE NO.: CV-12-46
DATE: 2012-12-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Jane Bollman
Plaintiff
– and –
Gary Maynard Soenen
Respondent
HEARD: 2012-12-03 to -11 at Simcoe
Mr Justice Ramsay
[1] The plaintiff sues for medical malpractice. She says that her surgeon operated on her without her informed consent and that his work fell below the standard of care. She says that he performed advanced pelvic surgery without adequate training, he transected her left ureter during the course of the operation and he failed to diagnose and manage the complication properly.
[2] The standard of care is 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: Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132 (CA). The court should not rely on the perfect vision of hindsight. The doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at ¶28.
The course of treatment
[3] The plaintiff suffered from menorrhagea which was not satisfactorily resolved by endometrial ablation. She elected to have a hysterectomy. On June 23, 2008 the defendant performed a laparoscopy assisted vaginal hysterectomy (LAVH). During the course of removing the uterus, the patient’s left ureter was damaged.
[4] The plaintiff returned to the hospital emergency room on June 28, 2008 complaining of redness around the wound and abdominal pain. She had significant cellulitis, a bacterial infection, which the defendant treated with intravenous antibiotics over the next five days.
[5] She returned on July 3 by ambulance at six o’clock in the morning. She had been up all night, in pain and unable to void. Her bladder was drained and she was sent home.
[6] On Saturday July 5, 2008 the plaintiff returned to the emergency room again complaining of abdominal tenderness, urinary retention and lower abdominal distension. The emergency room doctor ordered an “urgent” CT scan for July 7, the Monday, to rule out an abscess. The defendant says that the order for a CT scan was not brought to his attention. He ordered an ultrasound.
[7] The ultrasound was performed on July 7. It revealed a 16 cm (five-inch) cystic mass with loculation, that is, compartments. A cystic mass would be fluid enclosed in tissue, as opposed to free fluid. The radiologist, Dr Chow, could not rule out an abscess. He reported no obvious free fluid in the pelvis and left open the possibility of an ovarian cyst. He recommended a CT scan in his report. The defendant discussed the ultrasound with Dr Chow. He examined the plaintiff and found no abdominal or pelvic tenderness. He diagnosed a resolving haematoma and asked the plaintiff to come to his office the next day. Since she already had an appointment for July 9, at her suggestion she went to see him on that day instead. The defendant described in testimony the fluid that the plaintiff was leaking as dark, like the colour of old blood. Nowhere is such a thing documented in his or anyone else’s notes. I do not believe him on this point. I do not see why his memory of this would be any better on this point than it is on any other subject. Here he does not have the benefit of invariable practice, upon which the rest of his testimony largely relies.
[8] On July 9, 2008 the defendant met the plaintiff in his office. He noted “abdomen soft, still draining fluid from vagina. Plan: keep Foley (catheter) in, ultrasound in one week.”
[9] The plaintiff went to the emergency room by ambulance in the late evening hours of Friday July 11, 2008, complaining of abdominal pain that was so bad that it made it difficult for her to breathe properly. She was given pain medication and released on Saturday afternoon.
[10] The plaintiff returned to the emergency room by ambulance later that evening, shortly before midnight. At 1:00 am on July 13, Dr Hitchcock, the emergency room doctor, ordered a CT scan for later in the day, leaving instructions for the defendant as to how to arrange it, since it was Sunday. The defendant chose not to proceed with a CT scan. Instead he performed a laparoscopy. He suspected an infected haematoma and he wanted to drain it. The operation was performed that day, Sunday July 13.
[11] Once the laparoscope was inserted, the defendant saw a collection of fluid that was being walled in by some scar tissue from the bowel. He removed the scar tissue and washed out the fluid. There was no haematoma or pus. Concerned that the fluid could have come from the bladder, he injected dye into the bladder. No leaks were found, but this test was not performed under optimal conditions, since the abdomen had been filled with gas. The defendant reported and testified that he could not visually identify any injury to the ureters. He could see the ureters all the way down to the uretral canal. At that point the ureters enter some dark tissue, so if there was an injury beyond that, it would not be in his view. The defendant did not perform any dye test on the ureters. He inserted a pelvic drain and finished the laparoscopy. The defendant testified that he was puzzled. He telephoned a colleague who told him that even minute uretral damage can lead to a great deal of urine leakage and that it would best be determined by a CT scan with contrast.
[12] On July 14, 2008 the defendant ordered a CT scan with contrast to determine “Are the ureters intact?” The CT scan was performed and it revealed a leak from the left ureter. The plaintiff was transferred to London where surgery was performed on July 16 to confirm the finding. The pelvic drain was removed and a kidney drain was inserted.
[13] On August 18 reparative surgery was scheduled for October. The delay was necessary to enable the surrounding tissue to heal before disturbing it further. On October 20, 2008 the ureter was reimplanted successfully in open surgery. While they were at it, the surgeons removed the left ovary and Fallopian tube because of a cyst. A few days later, the kidney drain was removed, much to the relief of the plaintiff. On April 23, 2009 surgery was performed to repair an incisional hernia that had been caused by all this surgery. It was necessary to remove the plaintiff’s navel in the process.
Was the defendant qualified to perform the surgery?
[14] The plaintiff called expert testimony that called into question whether the defendant was qualified to perform an LAVH. An LAVH is an advanced gynaecological procedure that, it is said, needs to be performed by a gynaecologist, who has been trained in five-year residency programme. A gynaecology rotation during surgical residency supplemented by a weekend course in minimally-invasive techniques is not enough.
[15] The defendant is a general surgeon. He completed a three-month rotation in gynaecology during his surgical residency. After a number of years of experience in surgery, including LAVH’s, he took a weekend course at McMaster University in advanced laparoscopic procedures, including hysterectomy. When he was a surgeon in Alberta, the College of Physicians and Surgeons of Alberta permitted him to practice gynaecological surgery subject to an independent review after one year, which he completed successfully. When he came to Ontario, he was given hospital privileges by the appropriate hospitals. I have no evidence to suggest that the Ontario College has any reservations about him undertaking LAVH. He has performed 500 LAVH’s, in which he damaged the ureter of two patients, including the plaintiff. That is a rate of .04%, which compares favourably to the general incidence of ureter injury in LAVH, which is 2.2%, according to a study reported by the Society of Obstetricians and Gynaecologists of Canada.
[16] On the other hand, the plaintiff’s experts, a urologist, a general surgeon and a gynaecologist, testified that the defendant, as a general surgeon, should not have undertaken this advanced gynaecological procedure. Dr Kristina Dervaitis, the gynaecologist, testified that in her opinion, the standard of care in Canada is for a hysterectomy to be performed by a gynaecologist. She recognized that general surgeons have surgical training that is applicable in that they are taught that it is important to visualize the ureters when performing pelvic surgery. However, in her opinion, they do not have the training to allow them to decide when to perform a hysterectomy as opposed to undertaking non-surgical measures, including doing nothing and waiting for menopause or administering medicine. She notes that there is no discussion of alternative treatments in the defendant’s and the hospital’s records. I found little if any mention of alternatives in the records of the family doctor. The defendant’s assertion that alternative treatments were considered and discussed is derived from his invariable practice, not actual memory or documentation.
[17] Dr Mundle, the defendant’s expert, is a gynaecologist. In his opinion the defendant’s training and experience qualified him to undertake the surgery in question.
[18] Given the defendant’s successful history of performing LAVH’s and the fact that he does not appear to be in breach of the requirements of the statutory governing body, as well as the fact that he and other general surgeons have been given hospital privileges by the appropriate authority, I cannot say that he failed to meet the standard of care by performing the operation. He complied with the standard practice. I could find the standard practice to be negligent, but only if it does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession, that is, where the standard practice is fraught with danger: ter Neuzen v. Korn, [1995] 3 S.C.R. 74, ¶43. I have no reason to come to such a conclusion. Accordingly, the evidence on this question does not tip the balance in the plaintiff’s favour.
Battery
[19] The plaintiff testified that before she elected to undergo the LAVH the defendant reviewed with her the general potential complications, bleeding and infection, but not the specific complications, such as damage to the ureters. The defendant has no memory of the two interviews in question, but his invariable practice is to inform the patient of the specific risks of the surgery, including damage to the ureters. His only written notes refer to “complications” without any more detail.
[20] I found the plaintiff to be a highly credible witness. She testified in great detail about the course of treatment, which obviously and understandably made a vivid impression on her. She demonstrated a very good memory of the events. She was not emotional. The only time she showed emotion was when she referred to the effect of her ordeal on her mother. She did not shed any tears for herself and I perceived no bitterness in her. Furthermore, as a medical transcriptionist she understood medical technology and is not likely to have forgotten things that were said to her by reason of not having understood them in the first place. In sum I found her to be both honest and reliable.
[21] It is beyond dispute that the defendant injured the plaintiff and that he misdiagnosed the injury. In spite of these circumstances I was able to detect no hint from the defendant of any compassion for the plaintiff or regret at the outcome of the operation. Nevertheless, although the defendant’s demeanour principally manifested not-quite-concealed annoyance, I found him to be essentially credible, except that his evidence suffered from a lack of memory or adequate documentation. An event can be proven by evidence of invariable practice, but with respect to the pre-operation consultations I am not prepared to accept that the defendant followed his practice in this particular case in the face of the contradictory evidence of the plaintiff which is directly on point and which I find reliable. I find on the preponderance of the evidence that the defendant did not confer to the plaintiff any information about the risk of damage to the ureters or about alternative courses of action. Her consent to the LAVH was not informed. I believe her when she says that the defendant informed her of the general risks, but not the risk of damage to her ureters. I do not find his contrary evidence so reliable.
[22] I note that the plaintiff was suffering markedly from menorrhagia. She was eager to take steps to end it, even to the point of invasive procedures, and less invasive surgery had failed. She would not have opted for the “expectant” approach, that is, to do nothing. But I do not think that she was determined to have a hysterectomy without regard to the risks. I believe her when she says that if she had been offered a referral to a gynaecologist, she would have taken it, and got a second opinion. I infer that if anyone had told her that the result could be achieved otherwise, she would have chosen the less invasive medical option, particularly if she had been informed of the risk of damage to her ureters. The medical option would not have prevented her from having a hysterectomy subsequently if necessary.
[23] Accordingly I find that the defendant is liable for damages for having performed the operation without the informed consent of the plaintiff.
Performance of the operation
[24] The fact of a damaged ureter does not by itself imply negligence.
[25] The defendant testified in detail as to how he performed the procedure. He relied on his invariable practice and his operative note. The operative note does not mention that he visualized the ureters, but I accept that he did for three reasons. First, his surgical assistant, Dr Dukleow, confirmed the invariable practice of visualising the ureters before commencing a hysterectomy. Second, the defendant’s evidence on this point is not contradicted. Finally, I do not think that the absence of mention of visualising the ureters should lead me to infer that it did not take place in the circumstances. This is a basic step in any pelvic surgery and I have no reason to think that there was any trouble finding the ureters or that there was anything else remarkable about the step of visualizing the ureters. The operative note is written for the benefit of the writer and his colleagues, not the lawyers. The defendant followed the normal procedure for an LAVH. On all this evidence I am not prepared to say that the defendant fell below the standard of care in his execution of the operation.
Diagnosis of the complication
[26] At various relevant times, the plaintiff’s lab results showed the following:
Exhibit 2 Tab
Tab 29
Tab 54
Tab 75
Tab 90
Date 2008
June 19
June 28
July 7
July 13
White blood count
7.0
12
9.2
14.5
Haemoglobin
147
121
118
129
Blood urea nitrogen
3.0
5.2
7.7
Creatinine
73
76
117
[27] Doctors Radomski and Holliday, the plaintiff’s expert witnesses, a urologist and a general surgeon, were of the opinion that the defendant’s diagnosis and management of the complication fell below the standard of care, in particular because he did not order a CT scan on or shortly after July 7, 2008, and in any event before performing the laparoscopy. Dr Mundle is of the opinion that the defendant was well within the standard of care in this regard. I accept the evidence of Dr Radomski and Dr Holliday and prefer it to the evidence of Dr Mundle. Drs Radomski and Holliday are more experienced and more learned than Dr Mundle and their evidence is better grounded in the facts.
[28] Dr Mundle thought that the ureter was likely damaged indirectly, that is, either by heat from the cautery instrument or by starvation of blood supply caused by damage to blood vessels by the cautery instrument. In that case, the ureter would not have been transected immediately. It would have taken some time for the injury to develop to the point that urine flow from the kidney to the bladder was interrupted. He thought so because the plaintiff’s creatinine levels were not significantly elevated by July 7. (They were elevated by July 13.) He noted that her haemoglobin was low, which is consistent with haematoma.
[29] I prefer Dr Radomski’s conclusion that the ureter was transected during the operation. Many of the symptoms of operative complications are not specific to the particular type of complication. The laboratory results (which, by July 7 included elevated blood urea nitrogen, and indicator of a kidney problem) and the patient’s symptoms (pain, cellulitis, anuria, external fluid leakage) show that something was wrong from the start. Furthermore, I found Dr Radomski to be more credible than Dr Mundle.
[30] Whether the defendant knew it or not, a colleague ordered a CT scan on July 5. To the defendant’s knowledge, after the ultrasound the radiologist recommended a CT scan on July 7. This strengthens my confidence in Dr Radomski’s and Dr Holliday’s opinions. I accept the plaintiff’s evidence that Dr Chow, upon reading the ultrasound, ordered that she be told to stay in the hospital because she needed a CT scan. He appeared quite emphatic. Apparently the defendant talked Dr Chow out of the CT scan, but Dr Chow still recommended it in his written report. So the symptoms did not prevent two doctors from recommending a CT scan by July 7.
[31] The ultrasound showed a large cystic mass. Dr Radomski testified that a haematoma would be solid rather than fluid. He also said that fluid could be walled in by tissue. The cystic fluid aside, Dr Radomski thought that the external leakage of fluid by itself indicated a CT scan. I accept this.
[32] I find that the defendant should have ordered a CT scan on July 7 and that his omission to do so fell below the standard of care. To the extent that the defendant’s and Dr Mundle’s evidence contradicts Dr Radomski and Dr Holliday on this point, I reject the former and accept the latter.
[33] Even more so should the defendant have ordered a CT scan on July 13 before embarking on what would prove to be a futile laparoscopy. By July 13 he had knowledge of elevated creatinine levels and marked abdominal tenderness, and a CT scan had been recommended by a colleague yet again. These symptoms were consistent with haematoma and infection, but not exclusively. A differential diagnosis should have been considered, as Dr Radomski and Dr Holliday said. I do not accept the defence argument that Dr Radomski looked at the result and reasoned back in hindsight. I take his evidence as a whole to say that he looked at the situation from the point of view of the defendant at the time of the impugned diagnosis. I took his answers to cross-examination about hindsight to mean that he thinks that looking back with hindsight serves to confirm rather than undermine his opinion.
[34] The defendant’s rigidity and lack of imagination led him to subject the plaintiff to an operation that proved futile. There were symptoms that pointed to haematoma, infection and ureter damage, but he unreasonably excluded consideration of ureter damage, which occurs twice as commonly as haematoma in these procedures.
[35] The defendant performed a laparoscopy, which revealed fluid walled in by scar tissue, but no infection and no haematoma. Surprised, he was left to look for bladder and ureter injury without a plan and in less than ideal conditions. I accept Dr Radomski’s characterization of the investigation as haphazard.
[36] Since the laparoscopy eliminated haematoma and infection, ureter injury was the obvious remaining suspect, but the defendant was still baffled. Until he finally ordered and received the results of a CT scan, his single-mindedness remained invincible.
[37] The delay in diagnosing the complication caused the plaintiff to suffer more pain for a longer time. It also increased the physical damage done by the injury. More scar tissue adhered to the abdomen and more tissue necrotized. The repair of the injury became more involved. I find the defendant liable for negligence in his diagnosis and management of the complication.
Summary on liability
[38] I find that the defendant performed the surgery without the plaintiff’s informed consent and that he fell below the standard of care in diagnosing and managing the injury to her ureter.
Damages
[39] The plaintiff’s pain and suffering were extreme. The pain from the operation was intense and prolonged. Given the nature and function of the affected organs, it was also distressing and horrifying. At some point this woman discovered that she had been leaking urine into her own body. She had to wear a tube to drain the product of her kidney into a plastic bag for three months, which in itself was painful, as were its insertion and removal. She was required to undergo a laparoscopy (in addition to the unnecessary one performed by the defendant) and two reparative surgeries, one to reimplant the ureter and one to repair the incisional hernia.
[40] She has lost considerable enjoyment of life. She is simply not able to do the things she used to do. She went from being an essentially healthy woman, albeit with severe menorrhagia and a few relatively minor ailments, to a partly disabled person. She cannot sit for any length of time without discomfort. She no longer has the stamina to work full time, particularly on a set schedule, so she has given up her dream of employment in a hospital. She has continuing flank pain and fatigue. She has numerous abdominal scars, and no navel. I award her damages for pain and suffering fixed at $100,000.
[41] I accept the plaintiff’s evidence about her past income and her past and continuing efforts to increase her efficiency, and therefore her earning ability, at medical transcription. I accept her evidence about the effect of the consequences of her injury on her ability to earn money. I think that if she had not undergone the operation the plaintiff’s 2008 income would have been only about $5,000 more than she actually made, because she was still taking care of her elderly aunt until the end of 2008. But I also think that she would have worked full time from home and earned about $10,000 a year more than she did in 2009, 2010, 2011 and 2012. I award $45,000 for loss of past income.
[42] I also think that the plaintiff would have achieved her goal of full time employment in a hospital by now, and that for the next seven years, that is, until age 60, she would have earned $20,000 a year more than I expect her to earn in the present circumstances. Accordingly I award $140,000 for loss of future income.
Order
[43] I find for the plaintiff and award:
a. $100,000 for pain and suffering with prejudgment interest from September 11, 2009;
b. $45,000 for loss of past income;
c. $140,000 for loss of future income; and
d. $63,065.72 for medical expenses on OHIP’s subrogated claim.
[44] The parties may make brief written submissions to costs within 30 days.
J.A. Ramsay J.
Released: 2012-12-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Barbara Jane Bollman and Gary Maynard Soenen
REASONS FOR JUDGMENT
Mr Justice J.A. Ramsay
Released: 2012-12-13