Court File and Parties

COURT FILE NO.: CV-12-0473 DATE: 2016 - 10-12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

FRANCINE BRETON Mr. R. Somerleigh and Mr. V. Popescu for the Plaintiff Plaintiff

• and -

HENRY STEPHEN FAIRLEY Mr. M. Sammon and Ms. A. Wheeler for the Defendant Defendant

HEARD: April 11, 12, 13, 14, 15 and 18, 2016 at Thunder Bay, Ontario Mr. Justice J.S. Fregeau

Reasons for Judgment

Introduction

[1] This is a medical malpractice action brought by Francine Breton against Dr. Henry Fairley, Obstetrician/Gynaecologist.

[2] On September 15, 2005, Dr. G. Holloway, Obstetrician/Gynaecologist, conducted a laparoscopic subtotal hysterectomy on the plaintiff. Five years later, on December 14, 2010, Dr. Fairley performed a laparoscopy and a laparoscopic assisted vaginal resection of the plaintiff’s cervix and what he determined to be the remaining portion of the plaintiff’s uterus.

[3] During the December 14, 2010 procedure, the plaintiff’s bladder was injured. A second doctor was called in for a consultation. The bladder injury was repaired by way of abdominal surgery performed by the consulting physician. Ms. Breton remained in hospital until December 19, 2010, at which time she was discharged.

[4] The quantum of damages, should Dr. Fairley be found negligent, was agreed upon prior to trial. The only issue is that of liability.

ISSUE

[5] Did Dr. Fairley breach the standard of care when he proceeded with a laparoscopy and vaginal resection of the plaintiff’s cervix and remaining uterine body on December 14, 2010?

THE EVIDENCE

THE PLAINTIFF

[6] Ms. Breton was born on July 7, 1967, and was 49 years old at the time of trial. She is the mother of three children all delivered vaginally. On August 10, 2001, the plaintiff underwent a laparoscopic tubal ligation performed by Dr. Holloway. On April 23, 2003, the plaintiff underwent a tension free vaginal tape procedure to address stress urinary incontinence.

[7] In the months following this latter procedure, the plaintiff developed a chronic vaginal discharge. Ms. Breton attempted to resolve the issue with over the counter medication but was unsuccessful. She then went to the doctor to discuss the problem.

[8] Ms. Breton resides in Long Lac, Ontario, a small community approximately 200 miles northeast of Thunder Bay, Ontario. The residents of Long Lac are serviced by a medical clinic in that community, generally staffed by a succession of doctors serving as “locums” and also by a small general hospital with an emergency department in Geraldton, another small community a short drive from Long Lac.

[9] On October 22, 2003, the plaintiff was seen by Dr. C. Bradshaw. Dr. Bradshaw noted both dyspareunia (painful sexual intercourse) and a “whitish (vaginal) discharge” as symptoms. Dr. Bradshaw diagnosed the plaintiff with a yeast infection and prescribed Diflucan. The plaintiff testified that this was ineffective in resolving her issues.

[10] The plaintiff’s problems persisted and were now accompanied by chronic pelvic pain, present on both sides of her lower abdomen, but described as worse on her left than right side. In January 2004, Dr. Bradshaw referred the plaintiff to Dr. Holloway, the referral letter noting her symptoms as chronic pelvic pain, vaginal discharge and positionally dependent dyspareunia.

[11] The plaintiff was seen by Dr. Holloway five times between January 2004 and August 2005. She was also seen many times by other doctors in both Long Lac and Geraldton during this time. Her complaints consistently included, but were not limited to, pelvic pain, vaginal discharge and dyspareunia.

[12] On August 30, 2005, Dr. Holloway wrote to Dr. Bradshaw and advised that the plaintiff presented with “significant pelvic pain…extreme dysmenorrhea (painful menstration)…dysuria (painful urination)…(and) positionally dependent dyspareunia.” Dr. Holloway informed Dr. Bradshaw that Ms. Breton “specifically requested hysterectomy. Under the circumstances this is not unreasonable.” Dr. Holloway recommended a subtotal hysterectomy to be performed laparoscopically.

[13] Dr. Holloway performed a laparoscopic subtotal hysterectomy on the defendant on September 15, 2005. Dr. Holloway’s operative report (the “Holloway Operative report”) notes his pre-operative diagnosis as “pelvic pain, suspected adenomyosis.” The Holloway Operative Report stated that the “uterine fundus was…litigated at the level of the isthmus…” and the “uterus was transected just above the level of the suture leaving about a 1 cm pedicle.”

[14] The pathology report that followed this surgery (the ‘Holloway Pathology Report”) reported the final diagnosis to be “superficial adenomyosis of the uterus”. Under the heading “Gross Description” is the following entry:

The specimen is labelled “subtotal uterus” and it consists of a portion of uterine body measuring 4 cm in length x 6 cm in width and 4 cm anteroposteriorly….The specimen weighs 51 grams …

[15] The report notes that microscopic examination confirmed that the myometrium showed “superficial foci of adenomyosis.”

[16] Ms. Breton testified that she understood that Dr. Holloway intended to leave part of her uterus after the subtotal hysterectomy. She also testified that it was her understanding that Dr. Holloway in fact did so.

[17] Ms. Breton testified that her painful menstruation was somewhat alleviated as a result of the surgery but that her other symptoms continued post-surgery. In the eight months following the September 2005 procedure, the defendant attended upon medical professionals, including emergency room attendances, 10 times because of chronic pelvic pain, vaginal discharge and dyspareunia.

[18] On January 4, 2006, the plaintiff underwent a CT scan of her abdomen and pelvic area. The report from this scan noted the following:

There is a structure seen within the midline of the pelvis, posteriorly, which has the typical appearance of the uterus. The provided clinical history is that of hysterectomy. Was there just partial hysterectomy?

[19] On February 8, 2006, the plaintiff underwent a pelvic ultrasound. The diagnostic imaging report noted that “the uterus is normal.”

[20] On June 7, 2006, the plaintiff was referred to Dr. C. Pokrant, a colleague of Dr. Fairley and also an obstetrician/gynaecologist. The referral letter to Dr. Pokrant described the plaintiff as having a “longstanding history of chronic pelvic pain and dyspareunia especially around menses.” Dr. Pokrant was also advised that the plaintiff had had a partial hysterectomy. The referring physician suggested that Dr. Pokrant “consider endometriosis.”

[21] In her November 30, 2006 clinical notes, Dr. Pokrant states “U/S and CT seen report (normal) uterus; OR report & pathology report subtotal hyst.” The plaintiff was advised by Dr. Pokrant to follow up with Dr. Holloway “to discuss her questions re OR.”

[22] Between November 2006 and June 2009, the plaintiff saw family and ER doctors on approximately 29 occasions for the same symptoms. Included within this time frame were three pelvic ultrasounds, a CT scan and a colonoscopy.

[23] On July 3, 2009, a further consultation request was made to Dr. Pokrant on behalf of the plaintiff. This request noted abdominal pain and vaginal discharge. The plaintiff had a further 11 medical attendances between July 3, 2009 and her November 16, 2009 appointment with Dr. Pokrant, all related to the same symptoms.

[24] The plaintiff was seen by Dr. Pokrant on November 16, 2009. In her consultation report to the referring physician, Dr. Pokrant advised that there had been little change in the plaintiff’s pain and vaginal discharge and that she continued to have regular menstrual cycles despite the subtotal hysterectomy in 2005. Dr. Pokrant advised that her assessment of the plaintiff’s abdomen and pelvis did not disclose a cause for the plaintiff’s pain. Dr. Pokrant had the plaintiff chart her symptoms in the hope of finding some kind of a pattern.

[25] The plaintiff had a follow up appointment with Dr. Pokrant’s resident on February 1, 2010. The resident noted that the plaintiff had right lower quadrant tenderness on examination of her abdomen. The resident further noted that the plaintiff’s symptoms were gastrointestinal in origin and not gynaecological and that her vaginal discharge was physiologic in nature. On cross examination, the plaintiff agreed that she was upset with this advice, particularly as she had undergone a colonoscopy approximately a year earlier with negative results.

[26] After several other medical appointments for essentially the same symptoms, the plaintiff was referred by Dr. Khan to Dr. Fairley on June 21, 2010. On cross examination, the plaintiff agreed that Dr. Khan recommended to her that she have the remainder of her uterus and cervix removed and that she agreed with that advice. She also agreed that she had been referred to Dr. Fairley to have a hysterectomy conducted.

[27] The plaintiff first saw Dr. Fairley on November 3, 2010. She recalled asking Dr. Fairley if “…he was going to do a hysterectomy or do the – get rid of, get rid of the rest of my uterus if that was the problem.” The plaintiff testified on direct examination that “she thought a big part of her uterus was still there” and was the cause of her ongoing problems. She also testified that it was her understanding that Dr. Fairley was “going to look to see if there – first laparoscopy and then to see if anything needed to be done, a hysterectomy possibly.”

[28] On cross examination, the plaintiff agreed her uterus had been giving her problems for years, that she understood it had not been completely removed by Dr. Holloway and that she wanted it completely removed in the hopes it would resolve her symptoms. The plaintiff also agreed that she specifically asked Dr. Fairley to do a hysterectomy.

[29] Paragraph four of Dr. Fairley’s pre-operative report, dictated on the same day he examined the plaintiff, was put to Ms. Breton on cross examination. It reads as follows:

I have agreed that we will look with laparoscopy and should it be appropriate, we will dissect from above and probably remove the cervix and what remains of the uterine body by a vaginal approach. She understands that there are risks involving in surgery including injury to other organs, including the bowel, bladders and ureters.

[30] The plaintiff agreed that she understood that Dr. Fairley would begin with a laparoscopic inspection of her abdomen to determine if a hysterectomy would be possible and safe and further to ascertain whether there was a uterus remaining. She further understood that Dr. Fairley would remove any remaining uterine body in accordance with her request if it was safe to do so. The plaintiff testified that she could not remember Dr. Fairley advising her that there was a risk that the surgery may not alleviate the pain she had been suffering.

[31] The plaintiff’s surgery took place on December 14, 2010. When she awoke after the surgery, she discovered that she had a catheter and an abdominal incision closed with staples. According to the plaintiff, in due course Dr. Fairley came to see her and explained to her that he had “nicked“ her bladder and that a second doctor had attended to repair the damage to the bladder. On cross examination, the plaintiff agreed that a bladder injury was one of the specific risks that Dr. Fairley had discussed with her prior to the surgery.

[32] Dr. Fairley’s Operative Report (the “Fairley Operative Report”) notes, under the heading “Operative Findings”:

There was a uterine body on laparascopic examination; despite this patient had previously undergone a subtotal hysterectomy. This was in keeping with the pathology report, which had reported that part of the uterine body had been removed.

[33] The pathology report which followed Dr. Fairley’s surgery (the “Fairley Pathology Report”) is dated December 17, 2010, and notes under the heading “Gross Description”:

The specimen jar is labelled…as “cervix”, and it consists of a cervix measuring 4.5 cm SI x 3.0 cm ML x 2.5 cm AP…

[34] The plaintiff testified on direct examination that there was no change in the level of her pelvic pain after this surgery and that her vaginal discharge and discomfort on urination were worse after the surgery than before. She testified that she was asking herself “why did I go get this surgery? I feel like I got nothing out of it kind of thing. It didn’t do anything for me.”

[35] The plaintiff had approximately 28 medical appointments for the same symptoms between January 2011 and May 19, 2013, when she once again saw Dr. Dudar. The plaintiff testified that she complained to Dr. Dudar about her chronic pelvic pain, vaginal discharge and pain in the bottom of her bladder. Dr. Dudar prescribed a boric acid vaginal suppository for the plaintiff.

[36] The plaintiff testified on direct examination that after approximately one month of the boric acid treatment, the treatment had taken“… away the discharge and the pain and I was amazed with how it worked out…but I still had my bladder problem. I still had that pain in the bottom of my bladder.”

[37] The plaintiff further testified that, at present, the pelvic pain and vaginal discharge are “gone” but that she still experiences some discomfort on urination.

[38] On cross examination, the plaintiff was referred to Dr. Khan’s clinical notes regarding her appointment with him on September 16, 2011. The plaintiff confirmed that Dr. Khan examined her that day and noted left lower quadrant abdominal pain and left suprapubic pain.

[39] The plaintiff also confirmed that she had seen another doctor at the Long Lac clinic on April 2, 2012 at which time she reported, among other things, vaginal discharge and pelvic pain on her left side. The plaintiff then confirmed on cross examination that she had seen another doctor at the Long Lac clinic on May 29, 2012, complaining of vaginal discomfort and pain on the left side of her pelvis.

[40] The plaintiff confirmed on cross examination that she had an ultrasound on May 29, 2013, and that the reported clinical history of “worsening left lower quadrant pain for two years” noted in this report was accurate. The plaintiff also agreed that she had once again attended the Long Lac clinic on June 20, 2013, complaining of vaginal discharge and chronic pelvic pain in the left lower quadrant.

[41] The plaintiff confirmed on cross examination that she saw Dr. Dudar on May 2, 2013, at which time she complained of intermittent burning, pelvic pain, left worse than right. The plaintiff agreed that Dr. Dudar prescribed boric acid suppositories to “reset the vaginal flora by bringing the pH down.” The plaintiff testified that this treatment “definitely” improved her pelvic pain symptoms.

[42] The plaintiff was then cross examined on her attendance with Dr. Prowse, a urologist, on May 30, 2014. The plaintiff confirmed that she reported to Dr. Prowse that she had been experiencing “left-sided abdominal pain which is sharp in nature and intermittent.” The plaintiff also confirmed that she told Dr. Prowse that her symptoms came to a head when she passed what appeared to be suture material through her urethra, which had occurred in or about the previous November. The plaintiff acknowledged that prior to this occurring, she had been experiencing spasms in left side of her lower abdomen. The plaintiff agreed that these symptoms improved dramatically after she passed the stitch.

[43] On re-examination, the plaintiff was referred to her May 2, 2013 visit with Dr. Dudar, summarized in Dr. Dudar’s May 19, 2013 reporting letter. The plaintiff testified that, at this time, the lower abdominal pain she was experiencing was not restricted to her left lower quadrant. She described the pain on the left side as “a stabbing pain” which she thought was at the bottom of her bladder and which she said “radiated” to the right side. She was unable to characterize the pain on her right side beyond that.

THE PLAINTIFF’S EXPERT

[44] Dr. George Arnold testified as the plaintiff’s medical expert. Dr. Arnold received his medical degree from the University of Toronto in 1986. He completed a four year residency in Obstetrics and Gynaecology in 1992 and obtained his specialty certificate in that field at that time. Dr. Arnold has conducted a busy general obstetrics and gynaecological practice at Markham Stouffville Hospital since 1992.

[45] Dr. Arnold estimated that he had performed “over a thousand” hysterectomies in the course of his practice, including subtotal and total hysterectomies, performed abdominally, laparoscopically and vaginally. He estimated that he had also performed between 50 and 60 trachelectomies (the removal of the cervix left behind after a subtotal hysterectomy). Dr. Arnold agreed that the surgery performed by Dr. Holloway in 2005 was a laparascopic subtotal hysterectomy for suspected adenomyosis. He testified that he had last done this particular procedure “about ten years ago” and that he had done “at least a dozen, probably more” in his career.

[46] In December 2014, Dr. Arnold gave up the major gynaecological surgery portion of his practice. He has continued performing gynaecological surgery on an emergency on call basis. Dr. Arnold has served on the Quality Committee with the College of Physicians and Surgeons of Ontario and, at the time of trial, served on the Obstetrical Panel and General Complaints Panel of the College.

[47] Dr. Arnold was qualified as an expert and allowed to provide opinion evidence in relation to gynaecology.

[48] In preparation for trial, Dr. Arnold reviewed a 537 page medical brief which comprised the plaintiff’s medical history from 2003 to 2013. Dr. Arnold also reviewed the report of Dr. G. Vivos, the defendant’s medical expert, the transcript of Dr. Fairley’s examination for discovery and clinical practice guidelines issued by the Society of Obstetricians and Gynecologists (“SOGC”).

[49] Dr. Arnold identified the issue in this case as being whether or not there was a reasonable clinical basis for Dr. Fairley to have agreed to proceed with the surgery in question. In addressing this issue, Dr. Arnold’s evidence on direct examination focused primarily on five areas in coming to the conclusion that the plaintiff did not have a uterus in 2010 which in turn led him to conclude that there was not a reasonable clinical basis for Dr. Fairley to have proceeded with the 2010 surgery. In Dr. Arnold’s opinion, Dr. Fairley breached the standard of care when he operated on the plaintiff in 2010.

[50] The five areas which Dr. Arnold’s evidence focused on were:

1. The 2005 Holloway Operative Report;
2. The 2005 Holloway Pathology Report;
3. The plaintiff’s history taken by Dr. Fairley in 2010 and his physical examination of her at that time;
4. Dr. Fairley’s answers on discovery;
5. The 2010 Fairley Pathology Report;

[51] Dr. Arnold noted that the pre-operative diagnosis in the Holloway Operative Report was pelvic pain and suspected adenomyosis. The intended procedure was a laparascopic subtotal hysterectomy, explained by Dr. Arnold to be the telescopic removal of the body of the uterus leaving the cervix behind. Dr. Arnold testified that his reading of the Holloway Operative Report led him to the conclusion that this was accomplished:

The uterine body fundus was then ligated at the level of the isthmus…uterus was transected just above the level of the suture leaving about a 1 cm pedicle.

[52] Dr. Arnold explained that the isthmus is the area where the uterus narrows into the cervix. He testified that this is the exact location where the uterus should be transected in this procedure. The reason for leaving a small portion of tissue (the pedicle) above the point of transection was to avoid having the sutures slip off the remaining tissue after the procedure is completed.

[53] Dr. Arnold’s review of the Holloway Operative Report led him to conclude that Dr. Holloway had removed the entire body of the plaintiff’s uterus and left her cervix. Dr. Arnold testified that, in considering the uterine body and cervix combined, in most women the uterine body “makes up a much larger amount of this whole section than the cervix does”. He further testified that the 1 cm pedicle referred to in the Holloway Operative Report referred to part of the cervix. Dr. Arnold acknowledged that the 1 cm pedicle could possibly “have a little bit of uterine tissue in it…but you’re trying to get…as best you can, the body of the uterus is taken out and the cervix is left.”

[54] Dr. Arnold testified that the Holloway Pathology Report also informed his opinion that the plaintiff’s entire uterus has been removed by Dr. Holloway. The final diagnosis entered on this report is “subtotal hysterectomy with superficial adenomyosis of the uterus.” Dr. Arnold noted the gross description on the report to be, “the specimen is labelled “subtotal uterus” and it consists of a portion of uterine body measuring 4 cm in length x 6 cm in width.” Dr. Arnold testified that “a portion of the uterine body” was a reference to the cervix and uterus and that he read this report as confirming the procedure performed by Dr. Holloway – “the uterine body was removed and the cervix was left.”

[55] In response to a question from the plaintiff’s counsel, he specifically confirmed that, in his opinion, the term “uterine body” as used in the pathology report, consists of the cervix and uterus and that removing a portion of it “is removing the uterus, leaving the cervix. So it’s entirely consistent with what was done at the time of the surgery.”

[56] Dr. Arnold was critical of both the history taken by Dr. Fairley when he examined the plaintiff in 2010 and his physical examination of her at that time. Dr. Arnold testified that his review of the plaintiff’s entire medical history, particularly that portion of it between the Holloway surgery in 2005 and the surgery performed by Dr. Fairley in 2010, led him to conclude that Dr. Holloway’s 2005 surgery did not alleviate any of the plaintiff’s symptoms. In support of this conclusion, Dr. Arnold referred to a reporting letter from Dr. Pokrant to Dr. Iskhakova (the plaintiff’s family doctor at the time) following Dr. Pokrant’s examination of the plaintiff on November 16, 2009. Dr. Arnold drew the court’s attention to the following passage from that letter:

Francine is a 42 year old woman who in 2005 had a laparoscopic sub-total hysterectomy because of pelvic pain. She states that since that time there has been little change in her pain.

[57] Dr. Arnold was of the very firm opinion that the plaintiff was suffering from chronic pelvic pain (“CPP”) and quoted the SOGC Clinical Practice Guidelines in testifying that “nowhere is the history more important than in assessing patients with chronic pain. It is crucial to get a detailed chronologic history of the problem…” Dr. Arnold then referred to Dr. Fairley’s notes from his November 3, 2010 examination of the plaintiff, which read as follows:

My uterus has been giving me problems for two years. Right lower quadrant pain. Abdominal swelling. Bloating. Also pain when needs to pass urine.

[58] Dr. Arnold concluded from this chart entry that “that’s basically it as far as his history goes…if we refer back to what’s expected, it’s not there.” In his opinion, this history did not comply with the SOGC guideline.

[59] In commenting on Dr. Fairley’s November 3, 2010 physical examination of the plaintiff, as reflected in his notes of that day, Dr. Arnold once again referred to the SOGC guidelines in concluding that the physical examination was sub-standard. Dr. Fairley’s notes from this examination consisted of the following:

On examination. Cervix present. Small anteverted uterine tissue. Query tender. Patient dramatic. Info re laparoscopy, assisted, previa assisted vaginal hysterectomy. OR impression.

[60] Dr. Arnold testified that the process to be followed in trying to reach a diagnosis, particularly in a patient who has been suffering CPP for a long time, is to take a very detailed history followed by a careful physical examination in which you try to localize and reproduce the patient’s pain. Dr. Arnold was of the opinion that the history taken and the physical examination performed by Dr. Fairley did not provide enough information to assist a careful, conscientious obstetrician/gynaecologist in reaching a diagnosis and ultimately assisting the plaintiff.

[61] Dr. Arnold was further critical of the fact that none of Dr. Fairley’s notes, Pre-operative Report and Operative Report contained a diagnosis. Dr. Arnold testified that at a minimum a provisional diagnosis is fundamental to determining and discussing treatment alternatives with a patient.

[62] Dr. Arnold pointed out that Dr. Fairley had confirmed in his examination for discovery that he was aware that Dr. Pokrant and her resident were both of the opinion that the plaintiff’s CPP was not gynaecologic in nature when they had examined the plaintiff shortly prior to Dr. Fairley’s examination. Dr. Arnold pointed out that Dr. Fairley essentially agreed with that assessment in his discovery evidence:

My (Dr. Fairley’s) thoughts were that my colleagues are probably correct. I was unable to convince this patient that her pain was not likely coming from her uterus because she was convinced that it was and she wanted her uterus removed. I advised the patient that I thought also that it was unlikely that removing her uterus would resolve the issue of pain although it was hard to assess. I put it in my preoperative report…I’ve said that it is unlikely that this is the source of her pain and it’s more likely that it’s the GI tract. I explained to the patient that I was not convinced that she would benefit from having this surgery .

[63] Dr. Arnold testified that to proceed to surgery when the surgeon is not convinced that the surgery will benefit the patient falls below the standard of care. Dr. Arnold’s review of the plaintiff’s complete medical history led him to conclude that Dr. Fairley agreed with Dr. Pokrant’s diagnosis of a gastrointestinal source of the plaintiff’s pain, “and yet he then turns around and agrees to remove an organ that he doesn’t think has anything to do with what’s causing this woman’s pain.”

[64] Dr. Arnold opined that a surgeon must have a “high level of confidence” that the surgical procedure being proposed is going to cure the patient’s problem. In Dr. Arnold’s opinion, Dr. Fairley had a low level of confidence and should not have proceeded to operate on the plaintiff.

[65] Dr. Arnold was next referred to the Fairley Pathology Report. Dr. Arnold observed that the report noted the final diagnosis as “Cervix, Excision”. The gross description noted that the specimen jar was labelled “cervix” and consisted “of a cervix measuring 4.5 cm SI x 3.0 cm ML.” Dr. Arnold testified that the normal practice is for the surgeon, in this case Dr. Fairley, to identify and confirm what the tissue is that has been removed and that is being sent to pathology. Dr. Arnold was of the opinion that the microscopic examination as noted on the Pathology Report, which simply read “see diagnosis”, was in accordance with the excision of a cervix, excluding any uterine tissue.

[66] In addressing the fact that Dr. Fairley’s Operative Report stated that the defendant had observed “a uterine body” on laparoscopic examination, Dr. Arnold opined that Dr. Fairley had confused a “bulky” cervix with a small part of remaining uterus. He buttressed this opinion by once again observing that the Fairley Pathology Report did not disclose uterine tissue have being removed by Dr. Fairley.

[67] In conclusion on his direct examination, Dr. Arnold testified that, in all of these circumstances, Dr. Fairley’s 2010 surgery on the plaintiff was unnecessary and that Dr. Fairley fell below the standard of care in offering this surgery to the plaintiff. Dr. Arnold also opined that the surgery performed on the plaintiff by Dr. Fairley was not a laparoscopically assisted vaginal hysterectomy, but in fact a trachelectomy (removal of the cervix only), a procedure that Dr. Fairley had never done before. Dr. Arnold was of the opinion that the bladder injury suffered by the plaintiff during the procedure was a direct result of having this operative procedure done.

[68] At the outset of his cross examination, Dr. Arnold acknowledged that Dr. Fairley’s colleagues had taken an appropriately detailed history when the plaintiff was seen by them only months before she saw Dr. Fairley. He also agreed that Dr. Fairley had fully discussed the risks of the contemplated procedure with the plaintiff, specifically warning the plaintiff of the risk of injury to the bladder. Dr. Arnold also acknowledged that Dr. Fairley had appropriately and specifically communicated to the plaintiff that there was a risk that the surgery would not resolve her symptoms.

[69] Dr. Arnold was next cross examined on his use and understanding of the term “uterine body” as found in the Holloway Pathology Report and the term “bulky cervix” used by him in describing what he thought Dr. Fairley had observed when conducting the laparoscopy on the plaintiff in 2010.

[70] Dr. Arnold conceded that his use and understanding of the term “uterine body” was from everyday use and not derived from any pathology texts or gynaecology texts. He agreed that a number of authoritative medical textbooks refer to “uterine body” as the portion of the uterus excluding the cervix. Dr. Arnold agreed that a pathologist might use the anatomical definition of uterine body from authoritative texts as opposed to his use of the term. Dr. Arnold also conceded that he was not aware of the term “bulky cervix” being found or described in any authoritative medical textbooks. He explained that it is a term used “generally within the gynecology circle” to describe an enlargement of the tissue in one or more dimensions.

[71] Responding to general questions about the anatomy of the cervix and uterus, Dr. Arnold agreed that a normal uterine length, including the cervix, for a woman like the plaintiff is approximately 10 centimetres and the normal cervical length is 3 to 3.5 centimetres. He also agreed that the uterus portion is normally longer than the cervical portion, in the range of 6.5 to 7 centimetres.

[72] Dr. Arnold agreed that Dr. Vilos is a subspecialist in pelvic surgery and is recognized as an expert in pelvic pain throughout Canada. Dr. Arnold agreed that Dr. Vilos has significantly more practical experience with laparascopic subtotal hysterectomies than he did. He also agreed with Dr. Vilos’ proposition that a laparascopic subtotal hysterectomy “can include a variable portion of the uterus and or the cervix…”

[73] In response to questions about the plaintiff’s 2005 surgery, Dr. Arnold agreed that Dr. Holloway’s objective should have been to remove the entire uterus, leaving only the cervix behind. Dr. Arnold agreed with the proposition that if andenomyosis is the suspected cause of a patient’s symptoms and the entire uterus is not removed, the symptoms could be a continuing source of CPP. Dr. Arnold also agreed that it would have been better for Dr. Holloway to have performed a total hysterectomy in 2005 in order to eliminate any risk of leaving a portion of the uterus behind and thereby failing to fully deal with the issue.

[74] In reference to the surgery performed by Dr. Fairley on the plaintiff, Dr. Arnold agreed with the suggestion that Dr. Fairley believed he was confronted with a previous subtotal hysterectomy, incompletely done. He acknowledged that he had never “come across a situation of an improper subtotal hysterectomy being done, so I have not been in that situation.”

[75] Several general propositions found in Dr. Vilos’ expert report were put to Dr. Arnold on cross examination. He agreed with Dr. Vilos’ suggestion that adenomyosis has been associated with a tender uterus, painful periods, painful intercourse and CPP, that surgery is the generally recognized method of diagnosing and managing andenomyosis and that a hysterectomy is the “gold standard” for the relief of such symptoms. Dr. Arnold also agreed with Dr. Vilos’ statement, in reference to the Holloway Pathology Report, that the plaintiff had “both suspected and histologically proven andenomyosis”. Dr. Arnold qualified this response, stating that he disagreed with Dr. Vilos as to the significance of this finding because there did not appear to be any improvement in the plaintiff’s symptoms following the Holloway surgery. Dr. Arnold did not agree that the superficial andenomyosis reported in the Holloway Pathology Report was the cause of the plaintiff’s pain, suggesting that it may have been an “incidental finding”.

[76] Dr. Arnold agreed that Dr. Fairley had interpreted the Holloway Pathology Report to read that the plaintiff’s entire uterus had not been removed by Dr. Holloway in 2005. Dr. Arnold disagreed with Dr. Fairley’s conclusion on this issue. Dr. Arnold acknowledged that his analysis of the issue did not address the dimensions of the tissue removed by Dr. Holloway. He also agreed that if the entirety of the plaintiff’s uterus had been removed by Dr. Holloway in 2005, it should have been longer than the four centimetres noted in the Holloway pathology report.

[77] Dr. Arnold testified that the uterus is generally longer than the cervix, that Dr. Holloway removed a 4 centimeter piece of tissue in 2005 and that Dr. Fairley removed a 4.5 centimeter piece of tissue in 2010. When asked if he was suggesting that the plaintiff’s cervix was longer than her uterus, Dr. Arnold testified that the Holloway and Fairley pathology reports suggest this was the case because the Fairley Pathology Report describes the tissue removed by Dr. Fairley as cervix without uterine tissue.

[78] Dr. Arnold was reluctant to accept that the pathologist who prepared the Fairley Pathology Report may not have specifically examined the tissue in 2010 to determine if it in fact contained some uterine tissue in addition to cervical tissue. He agreed that, based on his analysis of the pathology reports, it was reasonable to assume that the plaintiff’s cervix was 4.5 centimetres in length, longer than her uterus. Dr. Arnold reluctantly conceded that four centimetres of tissue would represent a short uterus.

[79] Addressing the Holloway Pathology Report specifically, Dr. Arnold testified that his analysis focused on the wording of the report rather than the length of the specimen removed. Based on his interpretation of the term “uterine body” as including cervix and uterus, he testified that he read the Holloway Pathology Report to mean that the entire uterus was removed leaving only the cervix behind. Dr. Arnold acknowledged that three authoritative texts on anatomy, obstetrics and operative gynaecology define “uterine body” as being the body of the uterus, excluding the cervix.

[80] Dr. Arnold agreed that it would have been reasonable for Dr. Fairley to have interpreted the term “uterine body” in the Holloway Pathology Report in accordance with authoritative texts as excluding the cervix. He also agreed that if Dr. Fairley had interpreted the report in this way it would suggest that a portion of the uterus had been left behind after the Holloway surgery.

[81] Dr. Arnold further acknowledged this reading of the Holloway Pathology Report, together with various post-operative imaging done on the plaintiff after the Holloway surgery, would have provided Dr. Fairley with a reasonable basis to believe that a portion of the plaintiff’s uterus had been left behind by Dr. Holloway.

[82] Dr. Fairley’s operative report, dictated on the day of the plaintiff’s surgery, noted that a “uterine body” had been observed on laparoscopic examination, consistent with the Holloway Pathology Report which indicated that a portion of the uterine body had been removed in 2005. Dr. Arnold discounted the weight of Dr. Fairley’s operative findings because of the contents of the Fairley Pathology Report. This latter report noted “cervix, excision” under final diagnosis. This report also stated that the specimen jar was labelled “cervix”. Dr. Arnold testified that, based on his knowledge of operating room procedure, Dr. Fairley would have recognized that he had removed only cervix and confirmed the labelling of the specimen jar accordingly.

[83] Given the wording of the Fairley Pathology Report, Dr. Arnold testified that while Dr. Fairley may have thought he found a uterine body, the pathologist found that only cervical tissue had been removed. Dr. Arnold conceded that there was no indication that the pathologist was asked to actually analyze the tissue sent to pathology after the Fairley surgery. He also acknowledged that the Fairley Pathology Report was incomplete and in error in other respects.

THE DEFENDANT

[84] Dr. Fairley obtained his medical degree in Scotland in 1982. He was certified to practice as an Obstetrician/Gynaecologist in the U.K by the Royal College of Obstetricians and Gynaecologists in 1990. In 1992, Dr. Fairley was certified as a specialist in obstetrics and gynaecology in Canada. He has practiced as a general obstetrician/gynaecologist in Thunder Bay since 1992. Dr. Fairley worked in the same office as Dr. Pokrant. They often saw the same patients and common charts were maintained with respect to such patients.

[85] Dr. Fairley testified that he had an independent recollection of his treatment of the plaintiff after she was referred to him in 2010. Prior to seeing the plaintiff, Dr. Fairley reviewed what he described as her “extensive chart” and “long history”, including the Holloway Operative Report, the Holloway Pathology Report, imaging reports for scans taken between 2005 and 2010 and the clinical notes of Dr. Pokrant and her resident from November 2009 and February 2010.

[86] Dr. Fairley testified that he had interpreted the Holloway Operative Report as indicating that Dr. Holloway had understood that he had done a subtotal laparoscopic hysterectomy to address a pre-operative diagnosis of pelvic pain and suspected adenomyosis. Dr. Fairley explained that the clinical significance of andenomyosis is that it can cause pelvic pain, including painful periods and pain on intercourse.

[87] Dr. Fairley testified that he reviewed the Holloway Pathology Report as part of his “due diligence” in reviewing the plaintiff’s history. Dr. Fairley interpreted this report to say that only a portion of the uterus, and not the whole uterus, had been removed by Dr. Holloway. He also noted that the dimensions of the portion of uterine body that had been removed were small. The contents of this report together with the fact that the plaintiff’s pain continued after the Holloway surgery suggested to Dr. Fairley that the 2005 surgery had been done incompletely. Dr. Fairley testified that he has never understood the term “uterine body” to mean uterus and cervix together, as suggested by Dr. Arnold.

[88] Dr. Fairley testified that the Holloway Pathology Report also confirmed adenomyosis in the tissue removed by Dr. Holloway. Dr. Fairley testified that if the whole uterus had not been removed, which is how he read this report, the portion of the uterus left behind could be responsible for the plaintiff’s ongoing pelvic pain.

[89] Dr. Fairley was next referred to various imaging reports in the plaintiff’s chart. Dr. Fairley testified that he had reviewed a January 4, 2006 CT Scan Report which stated that there is “a structure seen within…the pelvis…which has the typical appearance of the uterus.” Dr. Fairley testified that he would not expect to see that if a complete subtotal hysterectomy had been previously done. It suggested to him that the previous surgery had been done incompletely.

[90] Dr. Fairley testified that he also reviewed a February 8, 2006 pelvic ultrasound report which stated “the uterus is normal.” Dr. Fairley interpreted this to mean that uterine tissue was still present after the Holloway surgery, creating the possibility that there may be andenomyosis in the portion of uterus remaining, lending credence to the plaintiff’s express request for a full hysterectomy.

[91] Dr. Fairley was next referred to a May 14, 2009 pelvic ultrasound report which stated that “the uterus is anteverted…” Dr. Fairley testified that he read this report as providing more evidence that a portion of the plaintiff’s uterus was still present. Dr. Fairley further reviewed a June 17, 2009 trans-vaginal pelvic ultrasound report which also stated that “the uterus is anteverted…” He testified that this again suggested to him that a portion of the plaintiff’s uterus was still present.

[92] Dr. Fairley was referred to a May 15, 2009 CT scan report (abdomen with contrast; pelvis with contrast). He testified that he had also reviewed this report which made no mention of the uterus. Dr. Fairley was of the opinion that the focus of this CT scan was the bowel and potential masses in the right lower quadrant. He balanced this scan against the other imaging reports which said the uterus was still present and with the Holloway Pathology Report which suggested to him that the uterus had not been completely removed.

[93] Dr. Fairley testified that he also reviewed Dr. Pokrant’s chart entries for the plaintiff and those of her resident from November 30, 2009 and February 1, 2010. Dr. Fairley took specific notice of the fact that Dr. Pokrant wrote “ultrasound and CT scan report (normal) uterus/OR report and pathology report subtotal hysterectomy”. He testified that he understood this note to mean that Dr. Pokrant had also considered that perhaps the 2005 subtotal hysterectomy had not been completed. Dr. Fairley testified that he was “able to get a heck of a lot of information from (his) review of the chart about (the plaintiff’s) history. It had been very well detailed and I did not certainly need to redo the writing on that.”

[94] Dr. Fairley was asked about his November 3, 2010 examination of the plaintiff. Dr. Fairley testified that the visit began with the plaintiff telling him that she had had problems with her uterus for two years and wanted it out. Having reviewed her history, Dr. Fairley testified that he discussed the Holloway surgery with her and listened to the plaintiff’s complaints, including that she thought the previous hysterectomy had been incomplete and that she did not agree with Dr. Pokrant’s assessment that the source of her pain was her GI tract and not gynaecological. Dr. Fairley testified that he considered the plaintiff’s comments together with the Holloway Pathology Report which suggested the Holloway surgery was incomplete and which confirmed andenomyosis in the uterine tissue which had been removed. Dr. Fairley testified that, based on all the information he had, “I could agree with Mrs. Breton’s assessment that she needed to have her uterus completely removed.”

[95] Dr. Fairley then discussed his physical examination of the plaintiff and explained his handwritten notes of that examination, which included “? tender patient dramatic.” He explained these notes as meaning the uterus was tender on internal examination, but that he could not determine how tender she was “because she had a dramatic response to being examined.” Dr. Fairley testified that “one of the things that was very telling in Mrs. Breton’s case was that it was only the uterus that was tender…it was the uterus that was tender and I distinctly remember that. I asked Mrs. Breton if this was her pain, she said that it was. I examined other areas and they did not reproduce that pain…” Dr. Fairley testified that he had found a small uterus that was tender on palpitation.

[96] Dr. Fairley testified that he told the plaintiff that if the tenderness in her uterus was due to residual andemyosis, that pain would be gone if the rest of her uterus was removed. Dr. Fairley stated he considered the plaintiff’s general condition as two issues – one being the residual uterus and andenomyosis and related pain and the other being chronic pelvic pain. He saw removal of the residual uterus as resolving one of these two issues.

[97] Dr. Fairley was referred to his November 3, 2010 pre-operative report, dictated on the day he examined the defendant. Dr. Fairley explained a pre-operative report is created to describe the type of surgery a patient is going to have, why the surgery is being done and to provide the patient’s history to the operative team.

[98] Referring to this report, Dr. Fairley explained that he made note of the 2005 Holloway subtotal hysterectomy and the Holloway Pathology Report which said that a portion of the uterine body had been examined and showed andenomyosis. Dr. Fairley pointed out that his pre-operative report states that he had examined the plaintiff, found her cervix to be present and found what “appears to be a small uterus which is tender.” Responding to Dr. Arnold’s suggestion that he had failed to make a diagnosis of the plaintiff prior to proceeding to surgery, Dr. Fairley testified that “the diagnosis is plainly here in the pre-operative report. This is the diagnosis that we’re looking for; the presence of the uterus.”

[99] Dr. Fairley’s pre-operative report stated the following:

I have agreed that we will look with laparoscopy and should it be appropriate, we will…remove the cervix and what remains of the uterine body by a vaginal approach.

[100] Dr. Fairley testified that he determined that the weight of the medical evidence was that the plaintiff’s uterus was still present so he felt it appropriate to examine her laparoscopically to confirm if a uterine body was present. He also testified that this was discussed fully with the plaintiff. Dr. Fairley testified that he felt there had been “a quite clear clinical basis” to the plaintiff’s request for a hysterectomy – the first surgery had not been done completely, the Holloway Pathology Report showed andenomyosis and his internal examination of the plaintiff showed she was tender within her remaining uterus.

[101] Dr. Fairley was next taken through his December 14, 2010 operative report. He testified that he observed by laparoscopy a portion of the uterus that was left from the previous surgery. When asked to comment on Dr. Arnold’s suggestion that he had confused a “bulky cervix” with a remnant uterine body, Dr. Fairley testified that, “No I was not (confused). I was there. I looked at it. That’s what I saw. It’s not terribly difficult to determine whether you’re looking at just a cervix or a uterus.” Dr. Fairley’s Operative Report also noted that the “small bowel was adherent on the left side and the small bowel mesentery adherent on the left side to the fundus of the uterine body.” Dr. Fairley dealt with the adhesions and proceeded with the vaginal hysterectomy.

[102] When asked about the Fairley Pathology Report, which stated that the tissue he removed from the plaintiff was labelled “cervix”, Dr. Fairley testified that he had no recollection about how this particular sample had been labelled. He stated that “I fully suspect that I did not authorize it otherwise it would say what I said in my operative report - uterine body and cervix.”

[103] Dr. Fairley was cross examined on an entry in his pre-operative report which read, “I have examined this woman and…she has what appears to be a small uterus which is tender.” When asked if his use of the word “appears” indicated that he was not certain whether or not the plaintiff had a uterus on his examination, Dr. Fairley testified that it did not. He explained that this entry was a recognition of the conflict between the prior hysterectomy that should have removed the entire uterus and his examination, which revealed the presence of a uterus.

[104] Dr. Fairley was cross examined on his clinical notes from his examination of the plaintiff on November 3, 2010, specifically the notes which read “? tender patient dramatic”. When asked if this indicated that he was uncertain that the tenderness was coming from the uterus, Dr. Fairley explained that the plaintiff was definitely tender in the uterus but that he was unable to determine the exact level of tenderness because the patient was dramatic.

[105] When cross examined on whether he had, during his examination of the plaintiff on November 3, 2010, considered the plaintiff’s GI tract, urinary tract, musculo-skeletal system or pelvic floor musculature, Dr. Fairley responded that he was well aware of the totality of the plaintiff’s medical issues as a result of his review of her extensive chart. He testified that, as a gynaecologist, he concentrated on two things – the CPP and the patient’s request for a hysterectomy. Dr. Fairley testified that he saw these as two separate issues, “I assessed her not so much for the CPP because that had been done for years. I assessed her with that knowledge that that was present. But then I assessed her for what she requested and I looked at the validity of that.”

[106] Dr. Fairley was cross examined on his interpretation of the Holloway Pathology Report. He testified that the Final Diagnosis of subtotal hysterectomy in the report is inconsistent with the gross description which described the specimen from the Holloway surgery as “a portion of uterine body measuring 4 cm in length…” Dr. Fairley testified that the uterine body is the part of the uterus above the level of the cervix, all of which should have been removed in a subtotal hysterectomy. He also stated that 4 cm in length is very short for a uterus. Dr. Fairley was firm in cross examination that only a portion of the body of the uterus had been removed by Dr. Holloway.

[107] Dr. Fairley was referred to the Fairley Pathology Report on cross examination and the entry “Final Diagnosis” – “Cervix, Excision”. He testified that, in his opinion, this was incorrect. He also testified that the labelling of the specimen jar as “cervix” was incorrect. Dr. Fairley testified that he did not label or direct the labelling of the specimen jar. In commenting on the length of the tissue referred to in this report (4.5 cm) Dr. Fairley felt this was correct. In comparing the length of this tissue to the length of the tissue considered in the Holloway pathology report (4 cm), Dr. Fairley testified that he had never seen a cervix that is longer than the uterine body.

[108] Dr. Fairley firmly denied, on cross examination, that he proceeded with the surgery on the plaintiff because she demanded it. He explained that he proceeded after a full evaluation of all the information in her history and chart and only after a full discussion with the plaintiff as to what he thought the likely outcome would be. He testified that he explained to the plaintiff that if the pain was coming from her uterus because of adenomyosis, that pain would be resolved. Dr. Fairley stated that he “made no promises and I gave no indication that the chronic pain would be resolved.”

THE DEFENDANT’S EXPERT

[109] Dr. Vilos obtained his medical degree from the University of Western Ontario in 1974. Dr. Vilos was certified as an Obstetrician/Gynaecologist in Canada by the Royal College of Physicians and Surgeons in 1978. He was similarly qualified in the United States in 1983. Dr. Vilos has practiced as a gynaecologist in London, Ontario since 1982. Dr. Vilos has been a professor of obstetrics and gynaecology at the Schulich Medical School in London since 1998.

[110] Dr. Vilos’ current gynaecological surgical practice includes three full days of surgery weekly in addition to major surgical procedures every second Friday, including laparoscopic subtotal hysterectomies, laparoscopic assisted hysterectomies and vaginal hysterectomies. He estimated that he had performed approximately 70 to 100 subtotal laparoscopic hysterectomies. Dr. Vilos has also taught this procedure to other physicians, including Dr. Holloway. Dr. Vilos testified that he has also completed subtotal laparascopic hysterectomies incompletely done, on a “routine” basis, about six times a year.

[111] Dr. Vilos was qualified as an expert in gynaecology and allowed to provide opinion evidence in relation to gynaecology.

[112] In preparation of his expert’s report and for trial, Dr. Vilos reviewed a brief of the plaintiff’s medical records, Dr. Fairley’s discovery transcript, excerpts from the discovery transcript of the plaintiff and two expert reports of experts previously retained by the plaintiff. He also listened to the direct and cross examination of Dr. Fairley at trial.

[113] Dr. Vilos testified that he had been asked to provide his opinion on two issues. The first was whether Dr. Fairley had breached the standard of care by agreeing to undertake a laparascopy and vaginal resection of the plaintiff’s cervix and remaining uterine body. The second was whether Dr. Fairley had chosen an inappropriate surgical procedure to do so. Dr. Vilos’ testified that the evidence he had read and heard was sufficient to allow him to formulate an opinion on these two issues. In Dr. Vilos’ opinion, Dr. Fairley had not breached the standard of care in either case.

[114] Dr. Vilos was referred to Dr. Holloway’s August 30, 2005, referral letter to the plaintiff’s family doctor and asked what he saw as the plaintiff’s gynaecological issues identified by Dr. Holloway at that time. Dr. Vilos testified that Dr. Holloway had identified the plaintiff as suffering from ongoing pelvic pain, extremely painful periods, pain on sexual intercourse and a tender uterus on physical examination. Dr. Vilos noted that the plaintiff specifically asked Dr. Holloway for a hysterectomy. Dr. Vilos felt that this request was not unreasonable and that a hysterectomy was a “good option” given these symptoms.

[115] Dr. Vilos was referred to the Holloway Operative Report which noted “suspected adenomyosis” as a pre-operative diagnosis and the intended procedure to be a laparoscopic subtotal hysterectomy. Dr. Vilos testified that, in his opinion, a total hysterectomy would have been the most appropriate procedure in 2005 because of the suspected presence of adenomyosis and chronic pelvic pain.

[116] Dr. Vilos disagreed with Dr. Arnold’s reading of the Holloway Operative Report as to whether Dr. Holloway removed the entire uterine corpus. Dr. Vilos testified that if Dr. Holloway cut one centimetre above the isthmus he necessarily left a piece of the uterus above the suture line. Dr. Vilos testified that the procedure employed by Dr. Holloway, which he referred to as a laparoscopic fundectomy, was normally utilized to reduce but not eliminate uterine bleeding in patients without CPP.

[117] Dr. Volis was next referred to the Holloway Pathology Report and the diagnosis of “superficial adenomyosis” noted therein. He testified that the use of the term “superficial” should not be interpreted to suggest that the condition was not significant and painful – “adenomyosis is associated with pain.” Dr. Vilos also testified that the final diagnosis of subtotal hysterectomy should not be taken as confirmation that the pathologist confirmed that the patient’s entire uterus had been removed. He explained that this would have been the label applied to the specimen received by the pathologist which the pathologist would not change for the purpose of his report.

[118] Dr. Vilos also testified that the pathologist’s description of the specimen as “a portion of the uterine body measuring 4 cm in length…” suggests to him that, in the pathologist’s judgment, only a part of the body of the uterus had been removed. Dr. Vilos testified that he had never seen a 4 cm uterus in a mature woman. The pathologist’s description in the Holloway Pathology Report suggested to Dr. Vilos that “a piece of the (plaintiff’s) uterus is missing here.” Dr. Vilos disagreed with Dr. Arnold’s interpretation of the term “uterine body” as meaning the cervix and uterus. In his opinion, uterine body meant the muscular part of the uterus only, excluding the cervix.

[119] Dr. Vilos testified that because Dr. Holloway left a piece of uterus behind, he did not achieve the intended result of eliminating the plaintiff’s symptoms. Dr. Vilos testified that he had come across this situation before and that the best approach, in his opinion, is to go back and remove the rest of the patient’s uterus.

[120] When asked to comment on the plaintiff’s January 4, 2006, CT Scan Report which noted a structure having the typical appearance of a uterus, Dr. Vilos testified that he read this report as confirming that a “significant” portion of the plaintiff’s uterus had been left behind by Dr. Holloway. Dr. Vilos also commented on the February 8, 2006 ultrasound report which stated that “the uterus is normal.” Dr. Vilos testified that, in his opinion, the radiologist was reporting that he had seen a piece of tissue that looked like a uterus. Dr. Vilos testified that the plaintiff’s May 14, 2009 ultrasound report, which describes the plaintiff’s uterus as “anteverted and grossly homogeneous” suggested to him that the plaintiff’s uterus was seen as normal at the time of the scan.

[121] Dr. Vilos did not read the May 15, 2009 CT Scan Report, which failed to mention the plaintiff’s uterus, as an indication that the plaintiff’s uterus had been completely removed. His understanding was that this scan had been ordered to evaluate the bowel and not the uterus and cervix.

[122] Dr. Vilos testified that the Holloway Operative Report, the Holloway Pathology Report and subsequent ultrasounds and CT scans clearly indicated to him that a portion of the plaintiff’s uterus had been left behind by Dr. Holloway. He testified that it was a reasonable and logical to further conclude that the remnant uterine tissue may have contained adenomyosis, just as the excised portion had been shown to contain.

[123] Dr. Vilos confirmed that he had read Dr. Pokrant’s Novemebr 17, 2009 consultation report to the plaintiff’s family doctor together with the February 8, 2010 consultation report of her resident, both of which Dr. Fairley had reviewed prior to examining the plaintiff in December 2010. Dr. Vilos testified that Dr. Pokrant and her resident appeared to have assumed that the Holloway surgery had removed the plaintiff’s entire uterus because they concentrated on her bowel and GI tract as the probable source of her pain.

[124] Dr. Vilos was next referred to Dr. Fairley’s notes from his examination of the plaintiff on November 3, 2010 and his pre-operative report dictated the same day. Dr. Vilos testified that he saw nothing deficient in Dr. Fairley’s notes and record keeping. He testified that the dictated and detailed pre-operative report “becomes the good record…that everyone can read…” Dr. Vilos further testified that he was easily able to understand from this record what Dr. Fairley hoped to accomplish with this surgery, namely an initial diagnostic laparoscopy to determine if there is residual uterus and, secondly completion of the hysterectomy if residual uterus is seen because of the previous diagnosis of adenomyosis.

[125] Given the plaintiff’s history of CPP, suspected and histologically proven adenomyosis and all other clinical indications, Dr. Vilos was of the opinion that Dr. Fairley had a reasonable clinical basis to proceed with the surgery he performed on the plaintiff, given that the gold standard for treatment of adenomyosis is a total hysterectomy. Dr. Vilos agreed with Dr. Fairley’s treatment plan of attempting to remove one potential source of the plaintiff’s pain.

[126] Dr. Vilos’ review of Dr. Fairley’s operative report suggested to him that Dr. Fairley followed standard procedure, both in regard to the initial laparascopic examination and the vaginal hysterectomy. The bladder injury did not suggest to Dr. Vilos that Dr. Fairley fell below the standard of care in performing the surgery. Dr. Vilos also testified that the vaginal hysterectomy procedure chosen by Dr. Fairley is the safest of all types of hysterectomies.

[127] Dr. Vilos strongly disagreed with Dr. Arnold’s suggestion that Dr. Fairley may have confused a “bulky cervix” for a uterine body on laparoscopic examination. He testified that Dr. Fairley, with the benefit of laparscopic magnification, was in the best possible position to confirm what he had seen during the procedure.

[128] Based on the totality of information reviewed by him and having heard the direct and cross examination of Dr. Fairley, Dr. Vilos was of the opinion that Dr. Fairley met the standard of care in all respects when he operated on the plaintiff on December 14, 2010.

[129] On cross examination, it was suggested to Dr. Vilos that the post Holloway surgery imaging available to Dr. Fairley was contradictory in regard to the presence or absence of a uterus. Dr. Vilos did not accept this suggestion, testifying that the imaging was “convincing” because the majority of the scans said the same thing, that a uterus was seen. Dr. Vilos expanded on this response, testifying that the next appropriate step would be to conduct a physical examination, which Dr. Fairley did, revealing a tender uterus on palpitation.

[130] Dr. Vilos testified on cross examination that it was Dr. Holloway’s clinical judgement to leave a piece of uterus behind during his surgery. He also testified that in a situation of suspected adenomyosis, a subtotal hysterectomy was not the correct procedure for Dr. Holloway to have done because the uterine tissue left behind could potentially continue to cause the patient pain. Dr. Vilos also testified that he read Dr. Fairley’s clinical notes as confirming that the plaintiff’s remaining uterine tissue was tender on physical examination.

[131] Dr. Vilos disagreed with the suggestion that Dr. Fairley should not have proceeded with surgery on the plaintiff because he did not have a high degree of confidence that it would resolve her issues. He testified that Dr. Fairley properly explained to the plaintiff that the completion of the hysterectomy would be unlikely to resolve all of her pain because there were multiple sources of pain. He also testified that it was reasonable for Dr. Fairley to have tried to talk the plaintiff out of the surgery. When the plaintiff then indicated that she nevertheless wanted to proceed with the surgery, Dr. Vilos testified that Dr. Fairley properly described the risks and complications to her.

[132] Dr. Vilos testified that Dr. Fairley proceeding initially with the laparoscopy examination of the plaintiff was the “right thing to do” – “this is the first time that this lady had a proper diagnostic procedure to find out what’s going on in her pelvis.” According to Dr. Vilos, an average, competent, careful and conscientious gyneacologist would have proceeded in the same fashion – “they would go in to find out what is causing the pain in this patient. That is the standard. This lady had not been diagnosed properly up until that day that Dr. Fairley put the telescope in.”

[133] Dr. Vilos was questioned on the utility of Dr. Fairley operating on the plaintiff in an attempt to relieve only one source of pain when it was apparent that there were multiple causes of her pelvic and abdominal pain. In Dr. Vilos’ opinion, it was appropriate to treat one at a time – “from the gynaecologist’s point of view, let’s eliminate the uterus as a potential source of pain.”

[134] On re-examination, Dr. Vilos testified that he had never seen a cervix longer than a uterus, as Dr. Arnold had suggested was present in this case. In his opinion, this was not a reasonable assumption. Dr. Vilos also testified that, in his opinion, based on the plaintiff’s history and symptoms, there was a clinical basis to support the plaintiff’s request that Dr. Fairley perform a hysterectomy on her – “I think it is quite reasonable to proceed with the proposed surgery.”

THE POSITIONS OF THE PARTIES

THE PLAINTIFF

[135] The plaintiff submits that Dr. Fairley should be held liable in negligence for performing this surgical procedure on the plaintiff “if a preponderance of physicians in the same specialty would not have approved or endorsed the course of action taken by the defendant which resulted in harm to the plaintiff.” The plaintiff submits that the defendant breached the standard of care in this case by proceeding with surgery that, based on a preponderance of the medical evidence, did not have a reasonable clinical basis.

[136] The plaintiff submits that the evidence establishes that Dr. Pokrant and her resident, in late 2009 and early 2010, concluded the plaintiff’s symptoms were unlikely gynaecological in origin and chose not to proceed with gynaecological surgery. Dr. Fairley was aware of their opinions from his review of the plaintiff’s history. The plaintiff further submits that Dr. Fairley essentially admitted that he felt that Dr. Pokrant and her resident were likely correct. The plaintiff submits that Dr. Arnold, the plaintiff’s medical expert, having reviewed the plaintiff’s entire history, was also of the opinion that the surgery performed by Dr. Fairley was not clinically indicated.

[137] The plaintiff relied heavily on excerpts of Dr. Fairley’s discovery evidence, read into the record at trial, in support of the submission that Dr. Fairley himself was not convinced that the plaintiff’s symptoms were gynaecological in origin and therefore not convinced that they would be resolved by the surgery he undertook.

[138] The plaintiff submits that the defendant admitted the following on discovery;

1. That he thought that Dr. Pokrant and her resident were “probably correct”;
2. That his pre-operative report stated that the source of the plaintiff’s pain was more likely her GI tract;
3. That his “best opinion is that (her pain) is…unlikely to be from the uterus”;
4. That he “elected to go along with the patient’s desire to have surgery”;
5. That he “tried to talk her out of” the surgery;
6. That he explained to the plaintiff that he “was not convinced that she would benefit from having this surgery”

[139] The plaintiff further submits that Dr. Fairley’s physical examination of the plaintiff did not provide him with any further clinical basis to proceed with the surgery. The plaintiff submits that Dr. Fairley’s notes suggest that he was unsure if the patient was in fact tender upon his manual examination. In support of this submission, the plaintiff referred the court to the following discovery evidence:

And I’ve written patient dramatic meaning that it’s very difficult to assess whether there is genuine tenderness because of the patient’s behavior during the examination.

[140] The plaintiff submits that, even assuming that there may have been a clinical basis for the defendant to have proceeded with a laparoscopic examination of the plaintiff, Dr. Fairley’s observation of uterine tissue when doing so does not support his decision to proceed with the hysterectomy. It is submitted that Dr. Fairley knew or should have known in advance of the laparoscopy the he would observe uterine tissue because the previous subtotal hysterectomy performed by Dr. Holloway necessarily left behind a portion of the plaintiff’s uterus. Having seen uterine tissue but not having seen any abnormality, the plaintiff submits that the defendant had no medical basis to proceed further, particularly where he “is operating reluctantly” and is not convinced the plaintiff’s pain is coming from her uterus.

[141] The plaintiff submits that the preponderance of the medical evidence, including the evidence of the defendant himself, fails to establish a reasonable clinical basis for Dr. Fairley to have performed a hysterectomy on the plaintiff on December 14, 2010. The plaintiff submits that the bladder injury suffered by the plaintiff during the surgery was a direct result of unwarranted surgery and the plaintiff is liable in negligence for damages suffered by the plaintiff.

THE DEFENDANT

[142] The defendant submits that the plaintiff has failed to establish that Dr. Fairley breached the standard of care. It is further submitted that the evidence in fact establishes that there were clinical indications and a reasonable medical basis for Dr. Fairley to have conducted a hysterectomy on the plaintiff in 2010.

[143] The plaintiff submits that Dr. Arnold and Dr. Vilos both agreed, based on the plaintiff’s history and symptoms up to and including 2005, that there was a reasonable clinical basis for Dr. Holloway to have proceeded with a hysterectomy for suspected adenomyosis at that time.

[144] The plaintiff submits that, because of Dr. Holloway’s provisional diagnosis of adenomyosis, the goal of the 2005 surgery should have been to remove the plaintiff’s entire uterus. The plaintiff submits that Dr. Arnold accepted this proposition. The plaintiff further submits that the evidence of Dr. Vilos suggests that it would have been preferable for Dr. Holloway to have performed a total hysterectomy and removed the plaintiff’s entire uterus and cervix in 2005 given his suspicion of adenomyosis.

[145] The plaintiff submits that the Holloway Operative and Pathology Reports confirm that Dr. Holloway did not remove the plaintiff’s entire uterus, the latter report noting that the excised tissue was 4 cm in length and was “a portion of the uterine body.”

[146] The defendant submits that the plaintiff continued to suffer symptoms consistent with adenomyosis subsequent to the Holloway surgery, resulting in her being referred to Dr. Pokrant in 2006. The defendant submits that, in 2006, Dr. Pokrant questioned the fact that an ultrasound and CT scan reported a normal uterus despite the fact that the Holloway Operative and Pathology Reports reported a subtotal hysterectomy.

[147] The defendant submits that the plaintiff continued to suffer the same symptoms for years following 2006. The defendant suggests that Dr. Pokrant and her resident failed to fully appreciate that the plaintiff’s symptoms were at least partially being caused by remaining uterine tissue when they examined her in late 2009 and early 2010. The defendant suggests that Dr. Khan referred the plaintiff to Dr. Fairley in 2010 specifically to request that he complete the hysterectomy that was incompletely done by Dr. Holloway in 2005.

[148] The defendant submits that Dr. Fairley thoroughly reviewed the plaintiff’s extensive medical history, and conducted a thorough physical examination of her. The defendant submits that Dr. Fairley was cognizant of the fact that the Holloway Pathology Report noted that only a portion of the uterine body, measuring 4 cm in length and weighing 51 grams, had been removed by Dr. Holloway and that the specimen contained adenomyosis.

[149] The defendant submits that Dr. Fairley reviewed all imaging reports in the plaintiff’s chart and noted the repeated references to a uterus, consistent with the Holloway Pathology Report which stated that only a portion of the plaintiff’s uterus had been removed. The defendant submits that Dr. Fairley’s physical examination of the plaintiff confirmed to him the presence of a small, tender uterus.

[150] The defendant submits that Dr. Fairley commenced and completed a vaginal hysterectomy only after first performing a diagnostic laparoscopy to confirm his suspicion that a significant portion of the plaintiff’s uterus remained within her abdomen. The defendant submits that the CPP which the plaintiff suffered from for years eventually resolved after Dr. Fairley completed the hysterectomy, which the plaintiff had requested that he do.

[151] The defendant submits that it was reasonable for Dr. Fairley to suspect that the 2005 hysterectomy had not been performed to completion. When the diagnostic laparoscopy confirmed this to be the case, the defendant submits that Dr. Fairley followed the correct clinical approach - complete the surgery with the reasonable prospect that this would eliminate the pain coming from the remaining uterine body.

[152] The defendant submits that the plaintiff has not led any credible or reliable evidence to establish on a balance of probabilities that Dr. Fairley breached the standard of care with respect to his decision to complete a hysterectomy in 2010 which the evidence establishes had been incompletely done five years earlier.

LEGAL PRINCIPLES

[153] The basic legal principles which apply to the issues in this trial are not in dispute.

[154] The seminal statement of the standard of care applicable in medical malpractice actions is found in the case of Crits v. Sylvester (1956), 1 D.L.R. (2d) 502 (Ont. C.A.) at paragraph 13 :

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a 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 of one who does not profess to be so qualified by special training and ability.

[155] The standard of care applicable for specialists, such as gynaecologists/obstetricians, was articulated by the Supreme Court of Canada in ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paragraph 33 :

In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behavior must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist…who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field.

[156] Expert evidence is essential in medical malpractice actions. It is well established that a plaintiff in a medical malpractice action cannot establish a breach of the standard of care without credible and reliable expert evidence supporting the alleged breach. In Reid v. Livingstone, [2004] O.J. No. 1477, at paragraph 12, Cameron J. expressed the proposition as follows:

In order to establish whether the conduct of a person engaged in a technical occupation not within the expertise of the ordinary person, such as a doctor or nurse, met the standard of care required of them…the plaintiff must provide evidence of a person qualified and experienced in the field of the conduct at issue that the defendant’s conduct in the circumstances failed to meet the standard of care the defendant owed to the plaintiff.

[157] In Lapointe v. Hospital le Gardeur, [1992] 1 S.C.R. 351 at paragraph 28 , the Supreme Court cautioned trial courts about the dangers of employing hindsight in medical negligence cases in determining whether the standard of care had been breached:

Courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

[158] In Bafaro v. Dowd, at paragraphs 28 and 29 , Madam Justice Carpenter-Gunn commented on the necessity of differentiating between errors in judgment and professional negligence:

It is trite law that medical professionals cannot be held liable for mere errors of judgment, which are distinguishable from professional fault. An error in judgment does not amount to negligence where the physician appropriately exercises clinical judgment.

Whether or not the physician was negligent or simply exercised an error in judgment will be determined on a case by case basis having regard to the particular facts in each case.

[159] A final word of caution is found in the following passage of Denning L.J. in Roe v. Minister of Health, [1954] 2 Q.B. 66 at 83 :

It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but those benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks.

DISCUSSION

[160] The plaintiff bears the onus of establishing on a balance of probabilities that Dr. Fairley breached the standard of care when he proceeded to perform a hysterectomy on the plaintiff on December 14, 2010.

[161] Medical malpractice actions inevitably involve issues outside of the ordinary knowledge and experience of triers of fact. This case is no exception. I accept the submission of the defendant that my conclusion as to whether Dr. Fairley breached the standard of care must be supported by credible and reliable expert evidence.

[162] I have concluded that the evidence, including the expert evidence of Dr. Arnold, does not establish on a balance of probabilities that Dr. Fairley breached the standard of care when he acceded to the plaintiff’s request for a hysterectomy in 2014. My reasons for that conclusion follow.

[163] Francine Breton had a lengthy and complex medical history, including fibromyalgia and myofascial, well prior to being referred to Dr. Fairley in 2010. In the years prior to being referred to Dr. Holloway in 2005, the plaintiff was also suffering from chronic pelvic pain, a persistent vaginal discharge, painful sexual intercourse, painful menstruation and painful urination.

[164] When referring the plaintiff to Dr. Holloway on January 14, 2004, Dr. Bradshaw, the plaintiff’s family doctor, advised Dr. Holloway that the plaintiff had experienced low, diffuse pelvic pain intermittently for two years as well as painful intercourse. Dr. Bradshaw advised Dr. Holloway that her pelvic examination of the plaintiff revealed mild tenderness diffusely when the uterus was palpitated.

[165] Dr. Holloway saw the plaintiff several times between January 2004 and August 2005. His June 6, 2005 clinical notes include the comment “suspect adenomyosis”. Dr. Holloway summarized his findings and opinions in an August 30, 2005 letter to Dr. Bradshaw. Dr. Holloway advised Dr. Bradshaw that the plaintiff’s symptoms included:

• Significant pelvic pain, in addition to irritable bowel syndrome;
• Extreme dysmenorrhea;
• Some dysuria; and,
• Positionally dependent dyspareunia.

[166] Dr. Holloway advised that his pelvic examination of the plaintiff showed her to be “generally tender, especially around the bladder base. Cul de sac and uterus were tender…” Dr. Holloway informed Dr. Bradshaw that the plaintiff had “specifically requested hysterectomy”, that in his opinion this request was reasonable and that he had recommended a laparoscopic subtotal hysterectomy. He also mentioned that he had explained the risks of this procedure to the plaintiff, including the risk of injury to the bladder and that she understood the risks.

[167] Dr. Vilos and Dr. Arnold agreed that Dr. Holloway, given the plaintiff’s symptoms and his suspicion that the she suffered from adenomyosis, had a reasonable clinical basis to proceed with a hysterectomy in 2005, the object of which should have been the removal of the plaintiff’s entire uterus.

[168] Dr. Vilos and Dr. Arnold also agreed that Dr. Holloway’s choice of a subtotal hysterectomy was questionable in the plaintiff’s circumstances because of the risk that a portion of uterine tissue, one suspected source of the plaintiff’s pain, would be left behind. Dr. Vilos and Dr. Arnold agreed that Dr. Holloway should have done a total hysterectomy (removal of cervix and uterus) in 2005.

[169] The opinions of the medical experts diverge from this point in time forward.

[170] The Holloway Operative Report cited Dr. Holloway’s pre-operative diagnosis as “suspected adenomyosis.” Dr. Holloway reported that the “uterine fundus was…ligated at the level of the isthmus…and transected just above the level of the suture leaving about a 1 cm pedicle.” The Holloway Pathology Report confirmed “superficial adenomyosis of the uterus.” This report described the specimen excised by Dr. Holloway as “a portion of the uterine body measuring 4 cm in length…” and weighing 51 grams.

[171] The plaintiff’s symptoms persisted after the Holloway surgery. In 2006, she was referred to Dr. Pokrant. Dr. Pokrant examined the plaintiff on November 30, 2006. Dr. Pokrant made note of the fact that she had read ultra sound and CT scan reports postdating the Holloway surgery, both of which reported a “normal uterus” despite the fact that a subtotal hysterectomy had been done by Dr. Holloway. Dr. Pokrant appeared to question this apparent contradiction and referred the plaintiff back to Dr. Holloway.

[172] After numerous medical appointments for the same symptoms between 2006 and 2009, the plaintiff was once again referred to Dr. Pokrant in the fall of 2009. Dr. Pokrant’s November 17, 2009 consultation letter to the plaintiff’s family doctor indicates that the plaintiff’s CPP symptoms were essentially unchanged despite the 2005 subtotal hysterectomy. Dr. Pokrant also reported that a May 2009 CT scan and ultrasounds from May and June 2009 “were unremarkable”, despite the fact that the May and June ultrasounds reported a normal, anteverted uterus.

[173] Dr. Pokrant and her resident followed up with the plaintiff on February 8, 2010. The resident’s February 8, 2010, consultation letter to the plaintiff’s family doctor noted that the plaintiff did not receive relief after the “partial hysterectomy”. The resident also stated that the plaintiff’s CT and ultra sounds have been “unremarkable from a gynaecological point of view”. The resident’s conclusion, presumably supported by Dr. Pokrant, was that the plaintiff’s symptoms were gastrointestinal in origin. In light of this diagnosis, Dr. Pokrant and her resident referred the plaintiff back to her family doctor “for ongoing investigations and treatment of this chronic pelvic pain.”

[174] Both experts testified on Dr. Pokrant’s November 17, 2009 consultation letter and that of her resident, dated February 8, 2010. Their opinions as to the accuracy of Dr. Pokrant’s diagnosis and that of her resident differed. This difference of opinion resulted primarily from their respective interpretations of the Holloway Pathology Report and imaging reports of the plaintiff’s abdomen after the Holloway subtotal hysterectomy, the same imaging reports analyzed by Dr. Fairley later in 2010.

[175] Five imaging reports were considered by Dr. Fairley, Dr. Arnold and Dr. Vilos:

1. CT Scan Report January 4, 2006;
2. Pelvic Ultrasound Report February 8, 2006;
3. Pelvic Ultrasound Report May 14, 2009;
4. CT Scan Report May 15, 2009; and,
5. Transvaginal Pelvic Ultrasound Report June17, 2009.

[176] Four of these five reports noted the presence of a uterus within the plaintiff’s abdomen subsequent to the Holloway surgery. The May 15, 2009 CT Scan took images of the plaintiff’s abdomen and pelvis with contrast. The “Clinical Indication” noted on the report was to rule out lower quadrant masses. This report made no mention of a cervix or uterus.

[177] Dr. Fairley testified that he noted that four of the five reports referred to a uterus, inconsistent with a previous subtotal hysterectomy completely done. He testified that he did not interpret the May 15, 2009 CT Scan, which made no mention of a uterus or cervix, as saying neither were present. His evidence was that this scan was done to look for masses within the abdomen and that the absence of a uterus would typically be noted as “uterus absent”.

[178] Dr. Vilos’ evidence as to the imaging was consistent with that of Dr. Fairley. He testified that the imaging was “convincing” because the majority of the imaging reports noted the same thing - the presence of a uterus. He was of the opinion that the imaging confirmed that a “significant” portion of the plaintiff’s uterus had been left behind by Dr. Holloway.

[179] Dr. Arnold discounted the weight of the four imaging reports which noted the presence of a uterus without providing substantive reasons for doing so. Dr. Arnold testified that the May 15, 2009 CT Scan, which did not mention a uterus, was evidence of the fact that the plaintiff did not retain uterine tissue.

[180] The weight that the medical expert’s respectively gave to these imaging reports led them to interpret Dr. Pokrant’s 2009/2010 diagnosis differently. Dr. Arnold, generally discounting the weight to be attached to post 2005 imaging which reported the plaintiff as having a uterus, focused on Dr. Pokrant’s opinion and that of her resident, that the plaintiff’s pain was gastrointestinal in origin and not gynaecological. Dr. Vilos, appropriately in my opinion, attached more significance to the imaging taken after the Holloway surgery. He noticed the disconnect between Dr. Pokrant’s November 2006 analysis questioning whether the Holloway surgery had removed the plaintiff’s entire uterus and her November 17, 2009 consultation letter which stated that the plaintiff’s CT and ultrasounds were “unremarkable” despite showing the presence of a uterus.

[181] In November 2009 and February 2010, Dr. Pokrant and her resident apparently assumed the Holloway surgery had removed the plaintiff’s entire uterus. They therefore concluded that her symptoms could not be gynaecological in origin. Dr. Arnold appeared comfortable with this conclusion. Dr. Vilos was not. Dr. Vilos was of the opinion that Dr. Pokrant, in 2009, did not remember that she had questioned the appearance of a uterus in the plaintiff’s 2006 imaging reports. He was also of the opinion that her resident, who commented that the plaintiff’s imaging was “unremarkable from a gynaecological point of view”, failed to analyze strong evidence that the plaintiff had uterine tissue remaining and that this was one possible source of the plaintiff’s pain.

[182] Dr. Fairley felt that Dr. Pokrant and her resident were “probably correct”. However, he kept his mind open to the possibility that they were not and/or that there were multiple sources of the plaintiff’s pain, remnant uterine tissue being one possible source.

[183] Having heard the medical experts testify on the imaging reports, I prefer the evidence of Dr. Vilos over that of Dr. Arnold as to the significance of this evidence. Dr. Arnold attached no weight to the fact that four of five imaging reports after the Holloway surgery reported the presence of a uterus. He gave no substantive reasons for why he chose to discount what I perceive to be cogent evidence.

[184] Not surprisingly, the plaintiff’s symptoms continued. She was referred to the defendant on June 21, 2009, after Dr. Khan suggested that she undergo another hysterectomy to remove the remaining portion of her uterus. The plaintiff agreed that Dr. Khan recommended that she have the remainder of her uterus and cervix removed and that this was the reason she had been referred to Dr. Fairley. Dr. Fairley first saw the plaintiff on November 3, 2010. He testified that he had an independent recollection of his meeting with the plaintiff and I accept his evidence on this point.

[185] Dr. Arnold was critical of both the history Dr. Fairley took of the plaintiff and his physical examination of her. Dr. Arnold apparently failed to consider that Dr. Fairley may have reviewed the plaintiff’s lengthy medical history prior to physically meeting with her.

[186] Dr. Fairley testified that he read and analyzed the plaintiff’s entire history including the Holloway Operative and Pathology Reports, all of Dr. Pokrant’s notes and consultation letters and the imaging reports from scans taken after the Holloway surgery. Dr. Vilos, who heard Dr. Fairley’s direct and cross examination, saw nothing deficient in the history Dr. Fairley took. He testified that Dr. Fairley’s detailed pre-operative report, dictated on the same day as the plaintiff’s physical examination, allowed him to easily discern what Dr. Fairley hoped to accomplish; first, a diagnostic laparoscopy to determine if the plaintiff retained uterine tissue and, second, completion of the hysterectomy if uterine tissue was seen because of the previous diagnosis of adenomyosis.

[187] The Holloway Pathology Report was commented on extensively at trial. Dr. Fairley noted that the tissue removed by Dr. Holloway was described as “a portion of the uterine body measuring 4 cm in length…” and that Dr. Holloway’s suspicion of adenomyosis had been confirmed by the pathologist. Dr. Fairley testified that the term “uterine body” is anatomically understood to mean the uterus not including the cervix. Dr. Fairley’s reading of the Holloway Pathology Report led him to suspect that Dr. Holloway had failed to remove the plaintiff’s entire uterus. Dr. Vilos agreed with Dr. Fairley’s interpretation of the term “uterine body” as used in this report. He was also of the opinion that the Holloway Pathology Report was more evidence that the plaintiff’s entire uterus had not been removed by Dr. Holloway.

[188] Dr. Arnold’s interpretation of the Holloway Pathology Report was fundamentally different. Dr. Arnold interpreted the term “uterine body” as encompassing the entirety of the uterus and cervix. He testified that he read this report as confirmation that Dr. Holloway had removed the entire uterine body and left only the cervix behind.

[189] Dr. Arnold acknowledged that his interpretation of the term “uterine body” was not supported by any authoritative medical or gynaecological textbooks. He also conceded that a number of authoritative medical textbooks refer to “uterine body” as the portion of the uterus excluding the cervix.

[190] The defendant submits that the fundamental point on which Dr. Arnold and Dr. Vilos disagreed is whether or not Dr. Holloway removed the plaintiff’s entire uterus in 2005. The defendant further submits that Dr. Arnold’s medically incorrect interpretation of the term “uterine body” led him to erroneously conclude that Dr. Holloway had removed the plaintiff’s entire uterus in 2005, leaving only the cervix behind, eliminating a reasonable gynaecological clinical basis for the 2010 surgery. I accept the defendant’s submission on this point.

[191] Dr. Arnold’s credibility and the reliability of his evidence was seriously undermined as a result of his testimony on this issue. His interpretation of the term “uterine body” was, simply put, medically incorrect. To the extent that this led him to conclude that the Holloway Pathology Report confirmed that Dr. Holloway had removed the plaintiff’s entire uterus in 2005, I reject his conclusion.

[192] The weight of the evidence suggests that Dr. Fairley also conducted a thorough physical examination of the plaintiff on November 3, 2010, including an external abdominal examination and an internal pelvic examination. He testified that upon internally examining the plaintiff, he felt the plaintiff’s cervix and a small uterus which was tender on palpitation. Dr. Fairley was cross examined on his clinical notes, the suggestion being put to him that he was not certain if the plaintiff’s uterus was tender because of her dramatic reaction to the examination. Dr. Fairley explained, credibly in my opinion, that he was questioning the degree of tenderness, not the fact of whether or not there was any tenderness. Dr. Vilos testified that Dr. Fairley’s physical examination of the plaintiff was complete and to standard.

[193] I accept the evidence of Dr. Fairley as to his review of the plaintiff’s medical history and as to the extent of his physical examination of her. I do not accept Dr. Arnold’s suggestion that Dr. Fairley’s conduct in this regard was substandard. I accept the evidence of Dr. Vilos that the history taking and physical examination were complete and to standard.

[194] From his review of the plaintiff’s complete medical history and his physical examination of her, Dr. Fairley concluded that there was a clinical basis to support the plaintiff’s request that he complete a hysterectomy which appeared to have been incompletely done by Dr. Holloway in 2005. He proceeded with the vaginal hysterectomy on December 14, 2010 after first performing a diagnostic laparoscopy and confirming the presence of a remaining uterine body.

[195] Dr. Arnold and Dr. Vilos disagreed as to whether or not there was a reasonable clinical basis for Dr. Fairley to have proceeded with this surgery in 2010. Dr. Arnold was of the opinion that there was an insufficient clinical basis for Dr. Fairley to have even proceeded with the diagnostic laparoscopy, let alone the hysterectomy. This opinion was substantially based on Dr. Arnold’s erroneous interpretation of the Holloway Pathology Report and Dr. Arnold’s unsubstantiated discounting of the weight to be attached to the imaging taken between 2006 and 2010. In my opinion, the reliability of Dr. Arnold’s evidence and opinion is questionable.

[196] Dr. Vilos’ opinion was that Dr. Fairley unquestionably had a reasonable clinical basis to operate. He was further of the opinion that Dr. Fairley was correct in proceeding initially with the diagnostic laparoscopy to confirm his suspicions that a portion of the plaintiff’s uterus remained within her pelvis. Once the laparoscopy confirmed the presence of a uterus, Dr. Vilos testified that the proper course of action was to continue with the vaginal hysterectomy – the “gold standard” for treatment of adenomyosis.

[197] Dr. Arnold’s and Dr. Vilos’ experience with the clinical situation confronting Dr. Fairley differed significantly and, in my opinion, materially. Dr. Arnold agreed that the Holloway surgery was a laparoscopic subtotal hysterectomy for suspected adenomyosis, a procedure that he had done “at least a dozen” times, most recently “about ten years ago.” Dr. Arnold accepted that Dr. Fairley was confronted with what he believed to be a previous subtotal hysterectomy incompletely done. Dr. Arnold candidly conceded that he had never “come across a situation of an improper subtotal hysterectomy being done, so that I have never been in that situation.” Dr. Vilos, on the other hand, as part of his clinical practice, is confronted with and completes laparoscopic subtotal hysterectomies incompletely done on a “routine” basis, approximately six times annually.

[198] Dr. Arnold came to the conclusion that Dr. Fairley did not have a high level of confidence that this surgery would alleviate the plaintiff’s symptoms and that he therefore should not have proceeded as he did. My understanding of the totality of Dr. Fairley’s evidence, including the portions of his discovery evidence read into the record at trial, together with the evidence of Dr. Vilos, leads me to a different conclusion.

[199] Dr. Fairley candidly and properly advised the plaintiff that he was doubtful that completion of the hysterectomy would eliminate all of her pain, given her medical history. However, Dr. Fairley concluded that there was a reasonable clinical basis to believe that some of the plaintiff’s pain was coming from her remaining uterine tissue and that removal of that tissue would eliminate that source of pain. Having fully and properly explained the risks of the procedure to the plaintiff, including bladder injury, Dr. Fairley proceeded with the diagnostic laparoscopy and then completion of the hysterectomy.

[200] The final point of contention between the experts was their interpretation of the Fairley Pathology Report. This report noted the “Final Diagnosis” as being “Cervix, Excision”. It noted that the specimen jar was labelled as “cervix” and consisted of a cervix measuring 4.5 cm in length.

[201] Dr. Arnold cited these notations in support of his opinion that the plaintiff did not retain any uterine tissue when Dr. Fairley operated on her and that he removed only cervix and not uterus. Dr. Fairley testified that he had no recollection as to how this sample had been labelled. He testified that “I fully suspect that I did not authorize it otherwise it would say what I said in my operative report – uterine body and cervix.” Dr. Arnold conceded on cross examination that pathology labelling could not displace a surgeon’s contemporaneously dictated findings in an operative report. Dr. Vilos placed no weight on the Fairley Pathology Report, testifying that in his experience it was not uncommon for nurses to label a specimen without the surgeon’s confirmation.

[202] I agree with Dr. Vilos that little or no weight should be given to the Fairley Pathology Report.

[203] Dr. Vilos was firmly of the opinion that Dr. Fairley’s 2010 treatment plan and surgical procedures were clinically supported. I accept his evidence on this fundamental issue.

CONCLUSION

[204] The plaintiff has failed to establish on a balance of probabilities that Dr. Fairley’s decision to proceed with the hysterectomy requested by the plaintiff breached the standard of care. The plaintiff’s action is dismissed.

[205] If the parties cannot agree on costs, they shall file written submissions as to costs for my consideration. Costs submissions shall not exceed five pages, exclusive of Bills of Costs. The defendant’s costs submissions shall be filed within 14 days of the release of this decision; the plaintiff’s within 14 days thereafter. If costs submissions are not filed within these timelines, costs shall be deemed to be resolved.

The Hon. Mr. Justice J.S. Fregeau Released: October 12, 2016