ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-0104-00
DATE: 2011-12-31

B E T W E E N:

JENNIFER MARIE CAMPBELL and DAVID STEPHEN SCHMIDT

Robert E. Somerleigh , Nicole Crowe , for the Plaintiffs

Plaintiffs

• and -

HENRY S. FAIRLEY and RAHI VICTORY

Michael E. Royce , Dena Varah for the Defendants

Defendants

HEARD: December 12, 13, 14, 15, 16, 19 & 20 , 2011, at Thunder Bay, Ontario

Mr. Justice F.B. Fitzpatrick

Reasons For Judgment

[ 1 ] This is a medical malpractice action. The plaintiffs, Jennifer Marie Campbell and David Stevens Schmidt, allege that the conduct of the defendants, Dr. Henry S. Fairley and Dr. Rahi Victory, fell below an acceptable standard of care for specialists in obstetrics and gynecology and Ms. Campbell suffered damages as a result.

[ 2 ] On May 8, 2009 Ms. Campbell underwent a laparoscopic assisted vaginal hysterectomy (LAVH). The defendants admit that during the course of the surgery, Ms. Campbell’s right ureter was completely transected, a result which was not intended and indeed not noticed by the defendants until the next day. The parties have agreed on the amount of damages that should be awarded in the event I find that the defendants acted negligently. For reasons that follow I do not find that the defendants acted negligently and the claim should be dismissed without costs.

Background

[ 3 ] Ms. Campbell decided in February 2009 to undergo the procedure at issue in this trial after consultation with her family doctor and Dr. Fairley. At the time of the surgery, Ms. Campbell was a 39 year old woman in good health. She had a history of dysfunctional uterine bleeding. A hysterectomy was recommended by her family doctor in consultation with Dr. Fairley to remedy this painful and difficult condition.

[ 4 ] Dr. Fairley suggested that the operation be conducted laparoscopically. This involves completing the majority of the operation by inserting surgical devices through very small holes in a patient’s abdomen and pelvic area through which specialized surgical instruments are inserted to perform the surgery in a minimally invasive way. This form of surgery is not new to Canada, having been introduced in the late 1980’s. However, the instruments used to perform the actual surgery are being constantly upgraded as technology becomes more sophisticated and allows the cutting and grasping devices to become more precise. The specific instrument used to perform the actual cutting of the uterus is called the Harmonic Ace scalpel. It was first introduced into Canada in 2003.

[ 5 ] Ms. Campbell agreed to this form of procedure because the recovery time was promised to be much shorter, less pain is involved in the recovery from the operation, patients are typically in the hospital for a much shorter period and the operation causes much smaller scars.

[ 6 ] Dr. Fairley told Ms. Campbell that he was “new” to this procedure. He had performed many, many hysterectomies which involved opening the patient’s abdomen to directly access the uterus (a so called laparotomy), but he had done very few laproscopically. He did not tell her exactly how many of these operations he had performed laparoscopically but this did not matter to Ms. Campbell. She testified she would have gone forward with the operation regardless of the experience of Dr. Fairley. In fact, this operation was the fifth hysterectomy Dr. Fairley had preformed laparoscopically.

[ 7 ] It is important to understand that Dr. Fairley was not going to be doing this operation alone. Laparoscopic surgery involves three or four surgical instruments, so two surgeons are required to do the surgery. Because Dr. Fairley was new to the procedure, he had asked a person with significantly greater experience in the operation, a so called “preceptor”, the defendant Dr. Victory, to assist. The use of a preceptor to teach the surgery is an accepted medical practice in Canada. Dr. Fairley, along with another gynecologist who also was being preceptored by Dr. Victory. wanted to learn the surgery so that they could offer it to women in the Thunder Bay area.

[ 8 ] At the time of the surgery, Dr. Fairley had done four LAVH type surgeries, although he had done other work laparoscopically. Two of Dr. Fairley’s LAVHs had been preceptored by a Dr. McTavish from Winnipeg and two had preceptored by Dr. Victory who had come from Windsor.

[ 9 ] An LAVH can be described simply as an operation to disconnect or dissect the uterus from its supporting connective tissues and from its blood supply. The uterus is then removed from the patient. Although this is simply stated, this procedure is a complex operation that involves a great degree of skill and experience on the part of the surgeons performing the operation.

[ 10 ] As in all surgeries, it is the foremost concern of the surgeons to ensure that they do the least amount of cutting as is necessary to achieve the goals of the operation. When it comes to pelvic surgeries, surgeons are particularly concerned with damage to other organs that are around the uterus; in particular the bladder, the bowel, and the ureter. In this case, Ms. Campbell’s right ureter was completely cut through, or “transected”, during the operation by Dr. Fairley. Dr. Fairley admits to the transection. As noted above, the parties agreed at the outset of the trial that a finding of liability would have resulted in an award to Ms. Campbell and Mr. Schmidt of $82,500.00 inclusive of costs.

Analysis

[ 11 ] After considering all the evidence, I find that Dr. Fairley and Dr. Victory completed the surgery with a reasonable degree of skill and knowledge and exercised a reasonable degree of care as would have been expected from a specialist practicing gynecology in Ontario. I find that the defendants exercised the degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing as a specialist. These defendants clearly owed the plaintiff, Ms. Campbell, a duty of care. However I find that their conduct did not breach the standard of care.

[ 12 ] It is common ground that the injury occurred in Ms. Campbell’s body in a place where her right ureter could not be visualized (i.e. seen) by the surgeon in either a laparoscopic situation or in a situation where a laparotomy was performed. It is conceded by the plaintiff that this injury could have occurred in the absence of any negligence by Drs. Victory and Fairley. However, the plaintiff stressed the fact that the occurrence of this injury and the nature of the injury, a full transection of the ureter as opposed to a “nick” or small cut, together with other circumstantial evidence should lead to a finding of negligence on the part of Drs. Victory and Fairley.

[ 13 ] As the injury was not detected during the course of the surgery, it was important to determine as precisely as possible where the transection of the ureter actually occurred inside Ms. Campbell. This is because there are certain areas of the body where a reasonably prudent surgeon should not be cutting or grasping in this type of operation.

[ 14 ] The location of the injury was made more difficult to determine by the fact that it was agreed by the parties at trial that the surgeon who did the repairs did not specifically note the location of the transection. There were three medical experts called at this trial, two for the plaintiff, and one for the defence. One of the plaintiff’s medical experts, Dr. Arnold Newton, and the medical expert called by the defendants, Dr. Sari Kievs, agreed in their testimony as to the approximate location of the injury. Dr. Fairley and Dr. Victory also agreed with the location cited by these experts. The first expert witness called on behalf of the plaintiff, Dr. William Cowan opined the injury occurred in a very different region than the other medical experts and the two doctor defendants. Ultimately, during submissions, the plaintiffs indicated they agreed with the opinion of the majority of the witnesses in the matter as to the site of the injury. Dr. Cowan’s opinion as to the injury site is therefore not accepted. In my view, because Dr. Cowan’s opinion varied so differently from the other experts as to the location of the injury, which I believe was a critical fact in assessing whether these defendants met the standard of care, I have discounted much of Dr. Cowan’s opinion where it otherwise was contrary to the opinion expressed by the expert for the defendants and the direct evidence of Dr. Fairley and Dr. Victory.

[ 15 ] The location of the injury is also significant as it occurred in a spot where the ureter cannot be visualized by the surgeon. At the location of the injury in the pelvis, the ureter travels a course through the cardinal ligament on top (assuming one is looking into the pelvis from the shoulders down towards the feet) and then through the uterosacral ligament to the bladder. The cardinal ligament and the uterosacral ligament have to be cut away from the uterus in order for the uterus to be removed during an LAVH procedure. The ureter passes through these two ligaments and while the ligaments need to be cut, a surgeon must exhibit caution while making this dissection.

[ 16 ] The method by which the surgeon protects the ureter at this stage in the procedure was described by all the experts called, as well as by Dr. Fairley and Dr. Victory, as “hugging” the cervix. The cervix is the portion of the uterus which is connected to the vagina. This “hugging” action can best be explained as keeping the scalpel instrument as close to the cervix as possible in the area where it is known that the ureter comes closest to the surgical field, (the surgical field being the area of the body where the surgeon is cutting).

[ 17 ] It was observed by all the experts called that the general area of the injury is a place in the body where a surgeon can “get in trouble” if they allow their scalpel to wander too far afield. It was also common in the testimony of all the medical experts and Dr. Fairley and Dr. Victory that it is the surgeon’s duty first, foremost and finally to protect the ureter in the course of this operation.

[ 18 ] In order to carry out this primary duty of protecting the ureter, the medical experts all agreed that once the procedure commenced, it was incumbent on the surgeons to identify the actual location and course of the ureter in the pelvic area. This is done by observing the action of the ureter known as peristalsis. This is a worm like movement of the ureter which occurs every five or ten seconds depending on the volume of urine being excreted from the kidney. During the opening phases of an operation peristalsis would typically occur a number of times. It would also be observable during the operation. At the completion of the operation surgeons again look to observe peristalsis in the ureter to ensure it is still functioning and it has not been damaged in the course of the procedure. It was conceded by all the expert witnesses that peristalsis can be observed even in the case of a damaged ureter.

[ 19 ] In this matter, both Dr. Fairley and Dr. Victory testified that they observed peristalsis both at the beginning of the procedure, during the course of the procedure and at the end of the procedure. For them, this indicated that the ureter had not been damaged and there was no cause for concern. Nothing in Ms. Campbell’s pelvic area or in her medical history gave either of the surgeons concern that Ms. Campbell’s ureter had the possibility of being in an area where they had been grasping and cutting during the course of the performance of the LAVH.

[ 20 ] All the medical witnesses indicated that pathologies in the pelvic area such as pelvic disease and other circumstances can cause the course of the ureter to move into a region where it would not normally be encountered in the course of surgeons performing a hysterectomy. All the medical experts testified that the usual warning signs were not present in Ms. Campbell.

[ 21 ] However, the theory of the defence was that, in this case, a transection of the ureter was unavoidable because Ms. Campbell’s anatomy was aberrant. It was aberrant in that her ureter passed so close to her cervix that the surgeons could not have avoided cutting it. The defence also argued that neither Dr. Fairley nor Dr. Victory could have anticipated cutting it, as Ms. Campbell’s anatomy in that part of her body presented as normal, thereby not alerting even gynecological specialists such as Dr. Victory and Dr. Fairley to the possibility of this surgical misadventure.

[ 22 ] None of the medical experts raised any issues or found any fault with the actions of the doctors during the “closing” portion of the operation. Dr. Fairley and Dr. Victory testified as to their observation of peristalsis at the end of the operation. Both Dr. Fairley and Dr. Victory testified candidly that they did not know they transected the ureter during the operation. Dr. Fairley dictated an operative note immediately after the operation. At the end of the note he stated “there are no inter operative complications noted.” He was quite clear in his evidence that he did not know the ureter had been transected. Both he and Dr. Victory were adamant that peristalsis was evident at the end of the operation and there was nothing otherwise to indicate to these two surgeons that they had actually injured the ureter.

[ 23 ] The plaintiff asked the court to draw different inferences from the evidence of both the two doctor defendants and the plaintiff’s medical experts, particularly Dr. Newton. The plaintiffs argued that circumstances during the operation and following the operation could only lead to a conclusion that, despite Dr. Fairley’s evidence to the contrary, at or about the time of the conclusion of the operation, he had a suspicion that a ureteric injury had occurred during the operation. Correspondingly, his failure to deal with it prior to completing the operation constituted negligence on his part in addition to the negligence arising from the act of the cutting or transecting the ureter.

[ 24 ] The plaintiff points to a number of circumstances from which it asks the court to draw the conclusion that Dr. Fairley and Dr. Victory acted negligently.

[ 25 ] It was conceded by the plaintiff, that as a matter of law, an unfortunate outcome in and of itself does not constitute proof of negligence. I was referred to the decision of the Supreme Court of Canada in St. Jean v. Mercier, 2002 SCC 15 , [2002] S.C.J. No. 17 at para 53 , which states:

“To ask, as the principle question of the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for reasonable, prudent and diligent surgeon in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Surgeons have an obligation of means not an obligation of results.”

[ 26 ] The plaintiff however, points to the decision of the Ontario Court of Appeal in Hassen v. Anvari, 2003 , [2003] O.J. 3543, when confronted by the question raised by an admitted unfortunate outcome. From my reading of that case, the Court of Appeal acknowledged the established legal concept that all surgery has risks so that mere misadventure must not be considered negligence. The Court in Hassen also dealt with the onus of proof in a medical malpractice case and stated that the onus is on the plaintiff to prove that negligence by the defendant caused the plaintiff’s injury. That onus may be satisfied by circumstantial evidence that allows an inference of negligence to be made, unless the defendant negates the inference with an explanation that is at least as consistent with no negligence as with negligence.

[ 27 ] In this case, the plaintiff argued that the following circumstantial evidence should lead to a conclusion of negligence;

1. The fact of the injury;

2. The fact that these types of injury are rare and the risk of injury at the location where it occurred was remote;

3. The fact that all experts and the doctors agreed that there was a need for extreme care in the location where the injury occurred because the ureter is not capable of being visualized at that location;

4. The fact that all experts and the doctors agreed that, for this operation, there was a clear expectation that a reasonably competent surgeon would “hug” the cervix at that location so as not to damage the ureter;

5. The fact that the plaintiff’s anatomy was understood to be normal and she did not have any histories of prior surgery or procedures nor did she have any pathologies that would have altered the location of her ureter or drawn her right ureter closer than normal to the side of her cervix;

6. The fact that there was no mention of aberrant anatomy in the surgical note provided by Dr. Fairley post operatively;

7. The fact that Dr. Fairley was a relatively inexperienced surgeon and he actually cut the ureter in question;

8. The fact that the median distance, from the medical literature put before the court, indicated that the ureter is expected to be centimeters from the cervix and this distance should have allowed sufficient room to prevent such an injury;

9. The fact that the plaintiff claims that Dr. Fairley did not advise her until the next day that she had suffered a ureteric injury;

10. The fact that Dr. Fairley ordered a creatinine test which, while it can be indicative of ureteric injury, also can be indicative of other things not specific to ureteric injuries;

11. The fact of Ms. Campbell’s claims that following her second surgery to correct the ureteric injury, Dr. Fairley had a discussion with her concerning a consent document she signed previously;

12. The allegation by the plaintiffs, that the morning after Ms. Campbell’s surgery, Dr. Fairley met with her and only checked her right kidney and did not inspect her left kidney nor her abdomen.

13. The time booked and expended for the actual operation;

14. The defendants claim that the ureter was aberrant only applied in respect to the very area where the ureter was transected as opposed to other areas in the pelvis which could have been visualized.

[ 28 ] As noted above I have not found that the defendants acted negligently in this matter. In coming to this conclusion I have considered the arguments of the plaintiff as noted above and I will deal with these various arguments in turn.

[Content continues exactly as provided through paragraph 64.]

The Hon. Mr. Justice F.B. Fitzpatrick

Released: January 31, 2012

COURT FILE NO.: CV-10-0104-00

DATE: 2011-12-31

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: JENNIFER MARIE CAMPBELL and DAVID STEPHEN SCHMIDT Plaintiffs - and – HENRY S. FAIRLEY and RAHI VICTORY Defendants REASONS FOR JUDGMENT Fitzpatrick J.

Released: January 31, 2012

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