Bauer v. Kilmurry, 2016 ONSC 7749

CITATION: Bauer v. Kilmurry, 2016 ONSC 7749

COURT FILE NO.: CV-11-00000693-0000

DATE: 2016/12/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Diane Bauer, John Bauer and Debbie Nantais

Plaintiffs

• AND –

Dr. Matthew Kilmurry, Dr. Stephen Bonney, Dr. Mohamed Hassan Hassan, Dr. Almna Masood, Dr. Nalayini Balendran, Jane Doe, John Doe and Grand River Hospital

Defendants

G. Murdoch and S. Kenney, Counsel for the Plaintiffs

T. Sutton and A. Lewis, Counsel for the Defendants

HEARD: September 12-16; 20-23; 27-30; October 4, 27,28; November 10, 2016

Judgment

Index Page

Introduction 5

1. Relevant Legal Principles 7

(1) Standard of Care Required of a Physician in Medical 7

Malpractice Cases

(2) Causation in Negligence Cases 10

(3) Scientific Precision is not Required to Prove Causation 12

But There Must be Evidence

(4) The Standard of Care in a Medical Malpractice Case Must 16

be Based on Expert Evidence From Doctors of the same level

of Expertise as the Defendant Doctor

(5) Differing Expert Opinions 18

(6) Failure to Call a Witness 19

(7) Confidentiality Between Patient and Doctor 20

(8) The Need for Expert Evidence to be Supported by the 22

Academic Community of the Expert

2. Burden on the Plaintiffs 25

3. Stomach Problems Leading to Dianne’s Admission to Hospital 26

on August 13, 2009

Damage to the Esophagus 30

4. The Operation 30

5. Events From the Surgery on August 14, 2009 to Dianne’s 36

Discharge Home and Then to the Stroke on September 21, 2009

6. The Experts on Dr. Kilmurry’s Conduct of the Operation 39

(1) Dr. Rosenthal 39

(2) Dr. Simone 40

(3) Dr. Blitz 40

7. The Reason Why the Bougie Was Stuck in Dianne’s Esophagus 41

8. Dr. Rosenthal’s Allegations of How Dr. Kilmurry Fell Below 47

the Required Standard of Care in the Performance of the Operation

(1) Surgical Emergency 48

(2) Consult With an Internist of a Haematologist 49

(3) Consult Another Thoracic Surgeon 50

(4) Take Down the Wrap 50

(5) Perform a Gastrotomy 51

(6) Dr. Kilmurry’s Use of Force to Remove the Bougie 52

Stroke September 21, 2009 52

9. Prior Incidents of Confusion 52

10. Blood Disorder 53

11. Essential Thrombocytosis (ET) 53

12. Atrial Fibrillatin (AF) 54

13. Strokes/TIAs 54

14. The Experts on the Cause of Dianne’s Stroke on 55

September 21, 2009

(1) Dr. Michel Rathbone 56

(2) Dr. David Spence 56

(3) Dr. Peter Kagoma 57

15. Position of the Plaintiffs 58

16. Position of Dr. Kilmurry 60

17. Holter Monitor Tests 61

Dianne’s Stroke Was Not Caused by ET 64

18. Dianne’s Arteries Were Clear 64

19. Dianne’s Platelet Count 65

20. Dianne’s Ingestion of Hydrea and Aspirin(ASA) From 67

September 4, 2009 to September 21, 2009

Discussion 69

21. Dr. Kilmurry’s Performance of the Operation Was Not Negligent 69

22. The Damage to Dianne’s Esophagus Did not Cause the Stroke 70

23. Result 74

Introduction

[1] Dianne Bauer (“Dianne”) had a paraesophageal hiatus hernia with a volvulus. This is a condition in which the stomach has passed through the hiatus from the abdomen, has twisted and has lodged in the thoracic cavity beside the heart. Dr. Kilmurry performed an operation on Dianne known as a nissen fundoplication on August 14, 2009 (“the operation”) at the Grand River Hospital (“GRH”) in Kitchener to correct this condition. In performing this operation he denuded her distal esophagus when he removed a bougie from her esophagus. Dr. Inculet performed an esophagectomy at London Health Sciences Centre (“LHSC”) in London on March 2, 2010 to repair the damage to Dianne’s esophagus.

[2] On September 21, 2009. Dianne suffered a right middle cerebral artery stroke that has left her totally and permanently paralyzed on her left side. The plaintiffs allege that Dr. Kilmurry was negligent in the performance of the operation. They further allege that the consequences of the negligence of Dr. Kilmurry in the performance of the operation caused the stroke.

[3] The plaintiffs commenced an action against Dr. Kilmurry on July 26, 2011 in which they seek damages against him. They also named as defendants Dr. S. Bonney, Dr. M. Hassan, Dr. A. Masood, Dr. N. Balendran and GRH. They discontinued the action against all defendants except Dr. Kilmurry. They have settled their claims for damages against Dr. Kilmurry assuming that he is only liable to them for his alleged negligence in the performance of the operation and assuming also that he is liable to them for their damages that flow from Dianne’s stroke. The issue at the trial was Dr. Kilmurry’s liability.

[4] The plaintiffs are Dianne, her husband John Bauer (“John”) and their adult daughter Debbie Nantais (“Debbie”). Diannes’s occupation was cleaning houses. John worked in construction. They worked together.

[5] The plaintiffs testified. They also called Dr. G. Rosenthal on the standard of care required of Dr. Kilmurry in the performance of the operation. They called Dr. M. Rathbone on the cause of Dianne’s stroke. They called Dianne’s friend Pat Debrusk. They read into the record passages from the examinations for discovery of Drs. Bonney, Nassan and Kilmurry. They called Dr. Inculet.

[6] Dr. Kilmurry testified. He also called Dr. M. Blitz and Dr. C. Simone on the standard of care required of Dr. Kilmurry in the performance of the operation. He called Dr. D. Spence and Dr. P. Kagoma on the cause of the stroke. He called Ms. L. Costa on procedures at GRH.

[7] On consent the parties filed relevant medical records from GRH, LHSC, St. Mary’s General Hospital, Dr. J. Robinson and Dr. J. MacEachern. Counsel for the parties provided copies of these records to the experts whom they called.

1. Relevant Legal Principles

(1) Standard of Care Required of a Physician in Medical Malpractice Cases

[8] Meeting the standard of care in a medical malpractice action requires that a physician exercise the degree of skill and care expected of a normal, prudent physician of comparable training and experience in the same circumstances. In Wilson v. Swanson 1956 CanLII 1 (SCC), 1956 Carswell BC 184; [1956] S.C.R. 804 the defendant doctor performed an operation on the plaintiff in which he removed a growth in his stomach. He did so in the belief based on the information that he had that the growth was cancerous. He removed more of his organs than would have been necessary if the growth had been benign. It was later shown to be benign. The Supreme Court of Canada held that the action was properly dismissed at trial. Justice Abbott stated the following:

43 The test of reasonable care applies in medical malpractice cases as in other cases of alleged negligence. As has been said in the United States, the medical man must possess and use that reasonable degree of learning and skill ordinarily possessed by practitioners in similar communities in similar cases, and it is the duty of a specialist such as appellant, who holds himself out as possessing special skill and knowledge, to have and exercise the degree of skill of an average specialist in his field: see Meredith, Malpractice. Liability of Doctors and Hospitals, 1956, at p. 62, and the authorities there referred to.

In a concurring judgment Justice Rand stated the following:

21 In the presence of such a delicate balance of factors, the surgeon is placed in a situation of extreme difficulty; whatever is done runs many hazards from causes which may only be guessed at; what standard does the law require of him in meeting it? What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, knowledge and judgment of the generality or average of the special group or class of technicians to which he belongs and will faithfully exercise them. In a given situation some may differ from others in that exercise, depending on the significance they attribute to the different factors in the light of their own experience. The dynamics of the human body of each individual are themselves individual and there are lines of doubt and uncertainty at which a clear course of action may be precluded.

22 There is here only the question of judgment; what of that? The test can be no more than this: was the decision the result of the exercise of the surgical intelligence professed? Or was what was done such that, disregarding it may be the exceptional case or individual, in all the circumstances, at least the preponderant opinion of the group would have been against it? If a substantial opinion confirms it, there is no breach or failure. ...

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

In Crits and Crits v. Sylvester et al. 1956 CanLII 34 (ON CA), 1956 CarswellOnt 90; [1956] O.J. No. 526 the Court of Appeal in the judgment of Justice Schroeder expressed the duty of care owed by a physician to his patient as follows:

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.

14 I do not believe that the standard of care required of a medical practitioner has been more clearly or succinctly stated than by Lord Hewart C.J. in Rex v. Bateman (1925), 41 T.L.R. 557 at 559: "If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment... The law requires a fair and reasonable standard of care and competence."

(2) Causation in Negligence Cases

[9] There has been much debate in the cases whether a plaintiff to succeed against a defendant in negligence need only prove that the plaintiff’s negligence made a material contribution to her risk of injury or whether she must prove that “but for” the defendant’s negligence she would not have been injured. In Clements v. Clements 2012 SCC 32, [2012] 2 S.C.R. 181 the Supreme Court of Canada in the judgment of Chief Justice McLachlin held that the “but for” test prevails. In this case the plaintiff was a passenger on a motorcycle driven by her husband. He tried to pass another vehicle. It was overloaded. The rear tire of the motorcycle deflated. It went out of control and crashed. The wife suffered serious injuries. She sued her husband in negligence. The only issue was whether but for the husband’s negligence the wife would have not suffered injuries. Justice McLachlan stated the following:

13 To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff's injury on the "but for" test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of "material contribution to risk of injury", without showing factual "but for" causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

42 … although Sopinka J.'s remarks in Snell (quoted above at para. 20) do not preclude it, courts in Canada have not applied a material contribution to risk test in a case with a single tortfeasor.

46 The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for" the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause [page205] of the injury, defeating a finding of causation on a balance of probabilities against anyone.

(3) Scientific Precision is not required to prove Causation But There Must Be Evidence

[10] In Snell v. Farrell 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 the plaintiff underwent a cataract operation on her right eye. After the operation she found that she had lost the sight in the eye. The doctor who performed the operation continued with it although he was aware of a retrobulbar bleed in the eye caused by his inserting a local anesthetic with a needle in the eye. In doing so he fell below the standard of care. The issue was causation. The optic nerve atrophied resulting in blindness in the eye. This could have been caused by the bleeding in the eye resulting from the doctor’s insertion of the needle in the eye or it could have been the result of the plaintiff suffering a stroke. The trial judge found the doctor liable for the plaintiff’s injuries on the ground that the onus of proof shifted to him to disprove causation which he had not done. The Court of Appeal upheld the trial judge on the ground that he had made a material contribution to the plaintiff’s injury. The Supreme Court of Canada in the judgment of Justice Sopinka upheld the trial judge. He held that the proper approach was to take a robust and pragmatic approach to the evidence. He stated the following:

29 I am of the opinion that the dissatisfaction with the traditional approach to causation stems to a large extent from its too rigid application by the courts in many cases. Causation need not be determined by scientific precision. It is, as stated by Lord Salmon in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490:

... essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.

Furthermore, as I observed earlier, the allocation of the burden of proof is not immutable. Both the burden and the standard of proof are flexible concepts. In Blatch v. Archer (1774), 1 Cowp. 63, 98 E.R. 969, Lord Mansfield stated at p. 970:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

30 In many malpractice cases, the facts lie particularly within the knowledge of the defendant. In these circumstances, very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary….

32 These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find it preferable to explain the process without using the term secondary or evidential burden. It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. See Cross, op. cit., at p. 129. In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted.

33 The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a "robust and pragmatic approach to the ... facts" (p. 569).

In Aristorenas v. Comcare 2006 CanLII 16837 (ON SCDC), [2006] O.J. No. 2039 the plaintiff underwent a caesarean in giving birth. She later developed necrotizing fasciitis. She commenced an action against the surgeon and the treating nurses. The trial judge applied the “robust and pragmatic” approach to the evidence. He found the defendants liable. In the Court of Appeal the defendants admitted liability for negligence by delaying treatment but denied causation. The Court of Appeal in the majority judgment of Justice Rouleau allowed the appeal. He stated the following:

[54] The "robust and pragmatic" approach is not a test for causation but rather an approach to the analysis of the evidence said to demonstrate the necessary causal connection between the conduct and the injury. Importantly, a robust and pragmatic approach must be applied to evidence; it is not a substitute for evidence to show that the defendant's negligent conduct caused the injury.

56] It is important to note that Sopinka J. (in Snell) does not reduce the ultimate burden of proof from a balance of probabilities. Rather, the "robust and pragmatic" approach is adopted in evaluating the facts of the case and deciding whether they meet the civil standard. Put another way, the burden of proof is the same, but a series of facts and circumstances established by the evidence led at trial may enable the trial judge to draw an inference even though medical and scientific expertise cannot arrive at a definitive conclusion.

[75] Even assuming that the plaintiff's theory of the case is correct and that a delay in treatment can cause or materially contribute to the contracting of necrotizing fasciitis, none of the evidence led at trial addresses whether in this case it was the delay in treatment or some other factor that caused the plaintiff to contract necrotizing fasciitis. There are many theories of causation, and the evidence leaves us in a position where we do not know which one is correct or the most probable. None of the evidence provided by the parties provides a link between the negligence of the defendants and the harm suffered by the plaintiff.

76] The trial judge did not address whether the infection would have reached a "complicated" state even without the delay caused by the defendants' negligence nor did he address whether a "complicated state" is the same as the development of a specific "complication". The trial judge did not assess whether this delay caused this complication. There are many unknown factors that could have been independent causes of the necrotizing fasciitis. Eschewing scientific certainty does not eliminate the need for any evidence to support causation. If causation can be inferred in [page301] the absence of any proof, then it is indistinguishable from reversing the burden of proof, something Sopinka J. clearly disapproved of in Snell.

(4) The Standard of Care in a Medical Malpractive Case Must be Based on Expert Evidence From Doctors of the same level of Expertise as the Defendant Doctor

[11] In Hajgato v. London Health Association 1982 CarswellOnt 927, affirmed [1983] O.R. (2nd) 264 the Plaintiff developed a post-operative infection as a result of undergoing a hip operation. The infection was not diagnosed until an advanced stage. The plaintiff brought an action against the doctors who performed the operation. Justice Callaghan (as he then was) dismissed the action. In analysing the evidenced he stated the following:

36 In assessing the performance of skilled professionals, however, Courts must be cautious to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards. As it was said by Gould J., of the British Columbia Supreme Court in McLean v. Weir, 1977 CanLII 2239 (BC SC), [1977] 5 W.W.R. 609 at p. 620:

It is true that the court may accept in whole or in part or reject in whole or in part the evidence of any witness on the respective grounds of credibility or plausibility, or a combination of both. But in technical matters, unlike in lay matters within the traditional intellectual competence of the court, it cannot substitute its own medical opinion for that of qualified experts. The court has no status whatsoever to come to a medical conclusion contrary to unanimous medical evidence before it even if it wanted to, which is not the situation in this case. If the medical evidence is equivocal, the court may elect which of the theories advanced it accepts. If only two medical theories are advanced, the court may elect between the two or reject them both; it cannot adopt a third theory of its own, no matter how plausible such might be to the court. There is an evidentiary bar to opinion evidence on technical subjects from non-qualified witnesses, and an equally rigid bar against judges coming to conclusions on technical matters (other than domestic and constitutional law) founded on their own opinions rather than on evidence from qualified witnesses.

In Alakoozi v. Hospital for Sick Children, 2002 CarswellOnt 927 a child died in an operation to correct a defect in his heart as a result of not receiving a transfusion. The Estate brought an action against the surgeon. Justice MacFarland (as she then was) dismissed the action. She stated the following:

73 The plaintiffs called no evidence on the issue of standard of care. For reasons given during the course of trial, I ruled that Dr. Barr lacked the necessary qualifications, being neither a surgeon nor an otolaryngologist or more specifically a pediatric otolaryngologist, to give an opinion on whether or not Dr. Crysdale's conduct fell below the standard care in deciding not to transfuse Basir in the circumstances of this case. Dr. Barr was the only expert called by the plaintiffs. In my view, it was necessary in this case for the plaintiffs to demonstrate that Dr. Crysdale's conduct fell below the standard of care of a pediatric otolaryngologist in a similar case similarly situated. In this respect they have failed and their action must be dismissed. This is not that exceptional case to which Sopinka J. was referring in Neuzen v. Korn. In this case there are competing medical views about treatment in a complex medical case. In these situations the Supreme Court warns that courts lack the jurisdiction to choose among divergent opinions.

74 The only evidence on standard of care is that of Doctors MacRae and Rosenberg. As Sopinka J. stated in ter Neuzen v. Korn, supra, at p. 592:

As was observed in Lapointe, courts should not involve themselves in resolving scientific disputes which require the expertise of the profession. Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent.

75 Even if it were open to me to accept Dr. Barr's view over that of the other medical experts called I would not do so. Earlier in these reasons, I pointed out some of the difficulties I had with Dr. Barr's theory, such as his selective use of highest or lowest readings to support his theory and his apparent failure to consider the intravenous saline administered by Dr. Lapp and later Dr. Berdock among others.

76 In my view, there is simply no persuasive evidence of negligence on the part of either Dr. Crysdale or Dr. Lapp, his resident at the time.

(5) Differing Expert Opinions

[12] In Ball v. Amendola 2009 CanLII 55309 (ON SC), [2009] O.J. No. 4114 the plaintiff underwent an operation to repair a defect in his leg. There were complications. He underwent a total of 14 operations. He sued his surgeons. There were differing opinion from experts similarly situated to the defendant as to whether they fell below the standard of care. In dismissing the action Justice Gorman referred to the following authorities:

137 Differences of opinion are a common experience in the medical and other professions. Indeed, that is why patients are often encouraged to "get a second opinion". In Lindsay v. Freeman, [1995] O.J. No. 541 (Ont. Gen. Div.) paras. 18, 21 the court observed:

[in] the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a physician is not negligent merely because his conclusion differs from that of other professionals. The true test for establishing negligence in a diagnosis or treatment on the part of a physician is whether he has been proved guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.

138 Further, as the court stated in Pittman Estate v. Bain, [1994] O.J. No. 463 (S.C.J.) at para. 258:

Where the subject matter is one requiring expert knowledge of a specialized area, and qualified respected specialists cannot themselves reasonably agree on the appropriate conduct, common sense dictates that the court should not decide that one body of opinion is more persuasive than another. Where reasonably informed people disagree, one of them cannot be labeled negligent.

(6)Failure to Call a Witness

[13] In Parris v. Laidley 2012 ONCA 755, [2012] O.J. No. 5214 the Court of Appeal considered the principles to be followed by a trial judge in drawing an adverse inference against a party for declining to call a witness. The court stated the following:

2 Drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue.

(7)Confidentiality Between Patient and Doctor

In Burgess (Litigation Guardian of) v. Wu 2003 CanLII 6385 (ON SC), [2003] O.J. No. 4826 the estate of the deceased brought an action against his family physician. The deceased had committed suicide. The estate alleged that the family physician was negligent in his treatment of the deceased and his negligence was responsible for his death. The defense obtained a medical report from one of the deceased’s treating psychiatrists. It sought to call this psychiatrists as an expert witness. Justice Ferguson refused to permit the defense to do so. He stated the following:

70 Rule 2: A plaintiff's health care professionals have a duty to refuse to disclose information about their patient unless required to do so by law.

The court in Wells affirmed this rule at 455. I believe the way this rule was earlier stated by Craig J., in St. Louis et al. v. Feleki et al. (1990), 1990 CanLII 8087 (ON SC), 75 D.L.R. (4th) 758 at 763 (Ont. Gen. Div.) is most helpful:

In my opinion, the rule as to physician-patient confidentiality remains in force in Ontario, except where it is eroded by the Rules of Civil Procedure and ... legislation ... and the interpretation placed upon those rules by the many court decisions ... and not otherwise.

75 Before leaving this issue I wish to mention an American decision which deals eloquently and reasonably with virtually every consideration relating to the propriety of unauthorized contact between a counsel and the opposing party's health care provider: Petrillo v. Syntex Laboratories, Inc. 148 Ill. App. 3d 581 (Ill. App. Ct. 1st Dist. 1986). After discussing many issues the court concluded this way:

[122] Finally, it is true, as Tobin points out, that many courts have permitted defense counsel to engage in ex parte conferences with a plaintiff's treating physician. ... We find the reasoning of these decisions, however, to be flawed for they attempt to deal with a question of great societal importance by merely looking to a set of codified rules and procedures for the answer. Indeed, those decisions which permit ex parte conferences fail to acknowledge that a physician is ethically required not to speak to a third party regarding a patient's confidences absent patient consent. ... Moreover, a decision permitting ex parte conferences demonstrates a gross lack of regard for the confidentiality and fiduciary relationship existing between a patient and his physician. ... And finally, a decision to allow ex parte conferences neglects to take into account the modern public policy that favours the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to that relationship, ex parte conferences between defense counsel and a plaintiff's treating physician.

[122] We believe that this issue ... is best decided by relying on principles of public policy, obligations created by confidential and fiduciary relationships, and the ethical responsibilities of modern-day professionals.

[124] Accordingly, ... we rule today that discussions between defense counsel and a plaintiff's treating physician should be pursuant to the rules of discovery only.

76 I believe this statement also reflects the current law in Ontario.

(8)The Need for Expert Evidence to be Supported by the Academic Commuinity of the Expert

The courts have become wary in recent years of accepting the evidence of a witness held out as an expert which is not supported in the academic community in the field in which the witnesses purports to be an expert. A well-known example is that of Charles Smith who held himself out as an expert in pathology. His unsupported evidence led to many wrongful convictions.

In R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 the accused was a medical doctor who was charged with sexually assaulting his patients. The trial judge excluded evidence which the accused sought to introduce. This evidence was from a psychiatrist who would testify that the accused was not a member of a small group persons with characteristics likely to have committed the offences of which he was charged. The Supreme Court of Canada in this seminal case in the judgment of Justice Sopinka set the test for the admission of expert evidence – relevance, necessity in assisting the trier of fact, absence of any exclusionary rule and a properly qualified expert. Justice Sopinka expressed the following caution:

19 There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.

In R. v. Olscamp 1994 CanLII 7553 (ON SC), [1994] O.J. No. 2926 Justice Charron (as she then was) after a voir dire refused to allow the crown to present expert evidence from a psychologist of symptoms of child sexual abuse. She stated the following:

21 Dr. Wieland tends to give her evidence as if all of what she says is accepted scientific knowledge in her field even when she is offering a personal, albeit professional, opinion or view point and she generally does not volunteer a proper qualification to her statements in this respect. This tendency gives a certain scientific aura to her testimony far greater than is sustainable. The distinction between a purely personal professional opinion and more generally accepted scientific knowledge is crucial to the trier of fact who is called upon to evaluate the validity and reliability of the opinion.

22 During the course of her testimony, Dr. Wieland often referred to studies or other existing data in her field in support of her statements or opinions in a general and sweeping fashion. When asked for specifics, she usually could not provide any. When she did offer specifics, she did so without proper care as to the accuracy or completeness of her answer.

A famous and shocking case is R. v. Truscott 2007 ONCA 575, [2007] O.J. No. 3221 where the Court of Appeal held that Mr. Tuscott when he was age 14 was wrongly convicted of the murder of Lynn Harper and sentenced to death which sentence was later commuted. The Court of Appeal many years later found that he had been wrongly convicted. Crucial evidence was the time of death of the victim and the extent to which that could be determined by her stomach contents. In its judgment the Court of Appeal stated the following:

165 Before we summarize this evidence, we must comment on the evidence of the Crown's expert, Dr. Spitz, who has been a forensic pathologist for more than fifty years. Dr. Spitz provided the opinion that Dr. Penistan's determination that Lynne Harper died by 7:45 p.m. is "admirably accurate" and rests on "solid scientific foundation". It became abundantly clear during cross-examination, however, that the only basis for Dr. Spitz's opinion was his own experience in conducting autopsies and his belief arising from this experience that if stomach contents are readily identifiable at autopsy, then death must have occurred within two hours of the last meal.

165 Before we summarize this evidence, we must comment on the evidence of the Crown's expert, Dr. Spitz, who has been a forensic pathologist for more than fifty years. Dr. Spitz provided the opinion that Dr. Penistan's determination that Lynne Harper died by 7:45 p.m. is "admirably accurate" and rests on "solid scientific foundation". It became abundantly clear during cross-examination, however, that the only basis for Dr. Spitz's opinion was his own experience in conducting autopsies and his belief arising from this experience that if stomach contents are readily identifiable at autopsy, then death must have occurred within two hours of the last meal.

166 Dr. Spitz was unable to cite any recent scientific literature that would support this view. He refused to acknowledge obvious shortcomings in his opinion when these were pointed out to him in cross-examination. He refused to concede that his opinion rested on faulty assumptions and misperceptions of the available primary evidence in this case. These shortcomings could well explain why the Crown does not ask us to rely on his evidence other than in a few very minor respects. In the result, we have not placed any reliance on his evidence and we give it no further mention.

204 Drs. Pollanen, Diamant and Knight gave opinions supported by recent scientific research that the broader time range for normal gastric emptying coupled with the many variable factors that affect the digestive process make it impossible to use stomach contents to determine time of death within a narrow window. Their evidence thus resolves the debate on this issue as it played out in the Supreme Court of Canada.

2. Burden on the Plaintiffs

[14] To obtain a judgment against Dr. Kilmurry for the damages that they have suffered as a result of the injury that he caused to Dianne’s esophagus in removing the bougie by reason of his negligence, the plaintiffs must prove on a balance of probabilities that Dr. Kilmurry fell below the standard of care required of him as a thoracic surgeon in performing a nissen fundoplication to repair a paraesophageal hiatus hernia with a volvulus.

If they are successful in doing this to obtain a judgment against Dr. Kilmurry for the damages that they have suffered as a result of Dianne’s stroke on September 21, 2009 they must prove on a balance of probabilities that the consequences of the injury to the esophagus caused the stroke and “but for” the injury to her esophagus she would not have suffered the stroke.

In my view they have done neither. The action must be dismissed. My reasons follow.

3. Stomach Problems leading to Dianne’s Admission to Hospital on August 13, 2009

[15] Dianne had long experienced heartburn or gastroesophgeal reflux disease referred to as GERD. The symptoms are a burning sensation in the chest which can spread into the upper body. Dianne had learned to live with it by controlling it with over the counter remedies such as Diovol, Rolaids, Tums and swallowing baking soda. She reported her symptoms to Dr. Robinson who had been her family doctor for many years. In March, 2008 she had an X ray which showed a hiatus hernia. On May 12, 2008 Dr. Robinson advised her to have a surgical consultation with Dr. Kilmurry. She did so again on May 28, 2008 and for a third time on December 22, 2008. Dianne declined to do so.

[16] On June 22, 2009 Dianne reported to Dr. Robinson four bad episodes when food had stuck in her esphagus followed by a bubble sensation and pain. The previous night she had started to eat roast beef for dinner when she experienced pain resulting in her passing out.

[17] On August 11, 2009 after having lunch at Harvey’s with her grandson consisting of a hamburger, fries, a coke and a chocolate milkshake she experienced extreme pain in her middle body which she ranked a 10 on a scale of 1 to 10. She repeatedly vomited which did not relieve the pain. She was at home. Debbie arrived. She called an ambulance at 4:34 p.m. The ambulance attendant reported that she was grabbing her abdomen and making loud grunting noises. She arrived at the hospital at 5:09 p.m. The triage nurse reported that she was moaning with pain. She vomited and was incontinent of urine and stool. Her pain level decreased to 4 out of 10 at 7:30 p.m. but increased to 8 out of 10 by 8:30 p.m. She was given pain medication intravenously. She was given a pink lady which is a drug cocktail used to treat GERD. At 12:19 p.m. she was discharged home with a requisition for an upper GI series, also known as a barium swallow, to be completed within a week and instructions to return to hospital in the morning for an ultrasound. An upper GI series involves drinking a barium solution which coats the digestive track. An X ray then allows a doctor to see a silhouette of the esophagus and stomach. When Dianne arrived home she continued to vomit.

[18] She returned to GRH for the ultra sound the following day on August 12, 2009 at 8:42 a.m. The triage nurse recorded that Dianne had vomited 20 times. He diagnosed a hiatus hernia with GERD. He made arrangements for her to be assessed by Dr. Kilmurry for surgical intervention. He ordered that she receive a pink lady which she did at about 10:30 a.m. She was discharged home at 10:52 a.m. She phoned Dr. Robinson at 3:30 p.m. and reported her symptoms. Dr. Robinson told her to return to hospital. She called her sister Pat DeBrusk. She was vomiting water. Ms. Debrusk took her back to GRH where she arrived at 6:29 p.m. The triage nurse classified her as level 3-Urgent. She was assessed by Dr. Sashi. He admitted her to the 6th floor which is the surgical floor where she was sent at 2:17 a.m. She continued to be in pain and to vomit. She was given pain medication intravenously. She was given Ringers Lactate which is used for fluid resuscitation after prolonged vomiting.

[19] Dr. Kilmurry saw her at 7:45 a.m. on August 13. He reviewed her medical records. He thought that her symptoms showed a partial and at times complete obstruction of the stomach. She did not have a fever. There was not yet evidence of necrosis (dead tissue) of the stomach or peritonitis (inflammation of the lining of the abdominal cavity). He ordered a barium swallow to take place that day. He ordered that she be kept NPO i.e nothing by mouth. He ordered that she was to receive a solution of Ringers Lactate intravenously. A technician administered the barium swallow to Dianne at 1:30 p.m. Her pain increased. A nurse contacted Dr. Kilmurry. He ordered that she receive morphine to control her pain. Dr. Balendran who was a radiologist examined the X-ray which was taken after the barium swallow. Her report is as follows:

Findings: The esophagus is of normal calibre and outline. There are no mucosal ulcerations, strictures or stenosis seen.

The gastroesophageal junction is located at the expected location as is the fundus of the stomach. Contrast is seen to fill the fundus normally. There is however twisting of the mid body of the stomach through the esophageal hiatus with the distal body and gastric antrum being flipped through the hiatus back into the thoracic cavity. Contrast however passes through this satisfactorily. The gastroduodenal junction is pulled superiorly and is seen at the same level as the GE junction. Once again, there is satisfactory passage of contrast also through the gastroduodenal junction into the duodenum.

There is no mucosal ulcerations seen in the stomach.

Impression:

Findings are favourable for a rolling para esophageal type of hiatus hernia. The results have been conveyed to the treating physician, Dr. Kilmurry.

Rolling is not a standard term used by radiologists. Dr. Kilmurry interpreted it as meaning that the stomach’s position was changing.

Dr. Kilmurry concluded that Dianne required surgery on an urgent basis to repair a paraesophageal hiatus hernia with a volvulus. He obtained the consent of Diane to have the surgery at about 6:00 p.m. The nurses prepared a consent form which Dianne signed.

Dr. Kilmurry booked the surgery for the following day August 14.

Damage to the Esophagus

4. The Operation

[20] Dianne was taken to the operating room at 6:35 p.m. on August 14, 2009. The surgical team was comprised of Dr. Kilmurry, Dr. Bonney who was his surgical assistant, Dr. Hassan who was the anaesthetist, his fellow Dr. Masood and 3 nurses. The surgery took place between about 7:00 p.m. and 10:00 p.m. on the evening of August 14, 2009. Dianne was in intensive care after the surgery until August 21. She was discharged home on September 4, 2009.

[21] At the commencement of the operation Dr. Hassan administered the anesthetic. Dr. Kilmurry opened up Dianne’s abdomen. He used a retractor to hold back the abdominal wall so that he could work in the abdomen. He pulled the stomach through the hiatus into the abdomen. He repaired the hiatus. On Dr. Kilmurry’s direction Dr. Masood attempted to insert a 50 French Bougie into Dianne’s esophagus through her mouth. This is a hard rubber flexible instrument about 50 cm in length, 3 cm. in width and with a tapered end of about 15 cm. She lubricated it with K-Y jelly before attempting to insert it. She met resistance at the 20 centimetre mark. Dr. Hassan then took over. He withdrew the bougie and put more lubrication on it. He then inserted it to the 40 centimeter mark without difficulty. Under Dr. Kilmurry’s direction he then guided it into the abdomen where it went into the stomach. The reason for doing this is to stabilize the esophagus. This permits the surgeon to wrap the fundus of the stomach around the esophagus and to stitch it into place to prevent the stomach going back into the chest cavity through the hiatus. Dr. Kilmurry used 2-0 Ethibond sutures to place 3 stitches into the fundus. Only the top stitch also goes into the esophagus. The other 2 sutures go through both sides of the fundus to complete the wrap around the esophagus. Attached hereto is a copy of Exhibit 16 showing the bougie, the fundus, the esophagus and the stitches to illustrate this procedure. This creates a “wrap”. Dr. Kilmurry used a needle driver and a pair of forceps to complete this procedure. Dr. Kilmurry was able to feel the tissue as he was doing this. The esophagus is soft. A suture goes through the esophagus very easily. The stomach tissue is thicker but it is still fairly soft.

[22] After the fundoplication or wrap was in place Dr. Hassan attempted to remove the bougie using the same amount of force that he had used to insert it. It did not come out. Dr. Kilmurry took over. He checked the wrap by looking at the sutures and moving it around to make sure that a stitch had not gone into the bougie. He was satisfied that a suture had not gone into the bougie and that the wrap was not too tight. He decided not to take down the wrap or to open up the stomach. The bougie had to come out. He used the amount of force that was necessary to remove it from the esophagus. He was unable to quantify the degree of force that he used.

He testified in chief as follows:

Q. Did you consider whether the bougie had been caught by one of your stitches?

A. I did.

Q. And so when that came through your mind, what did you do to investigate that thought?

A. I - I looked at the wrap. I checked it, I looked at the sutures, I moved it around a bit, around the bougie, to see if it was – it appeared to be sutured to the bougie and I didn’t have any evidence of that.

Q. Pardon me?

A. I didn’t have any evidence of that.

Q. And you’ve written there in your note, or dictated, "We checked the wrap to ensure that there was no evidence of the sutures holding the bougie in place." When you say move around, what do you mean you moved it around?

A. Well, you can move the wrap a little bit. I mean it is sutured to the esophagus so it’s not going to move a huge amount and you’re not going to be able to lift it right up, but we can – we moved it around a little bit to see if it looked like the bougie was sutured in place.

Q. And what was your conclusion at the time?

A. I didn’t think it was.

Q. And in fact you’ve written there that it did not appear to be the case. You then go on to say, "Eventually I pulled very hard on the bougie myself in order to remove it." Before I get to that, why didn’t you take down the wrap?

A. I didn’t take down the wrap because I was certain that the wrap wasn’t the problem. I had placed all the sutures. I did not feel as though I had placed a suture into the bougie. I didn’t feel when I re-checked it that the bougie – that the wrap was attached to the bougie, so I didn’t think taking down the wrap would help.

Q. When you placed the sutures, do you recall there being anything unusual at the time of placing the sutures themselves?

A. No. (Transcript, September 26 p. 34 -36)

In cross examination he testified as follows:

Q. Okay. Now, in this procedure the bougie became stuck at a point in time after you had placed stitches to – in the fundoplication and into the esophagus, or placed a stitch into the esophagus?

A. Yes.

Q. Okay. And so after the fundoplication, it - just as a point in time, and you were placing your stitches that’s when the bougie – you note the bougie is stuck?

A. No, we note the bougie is stuck when we go to remove it at the end of all of the suturing.

Q. Right. Okay. So after the fundoplication is completed?

A. Yes.

Q. And a stitch catching the bougie is a real risk?

A. Not that I’m aware of.

Q. You checked for that possibility?

A. I did.

Q. All right, so when you say you’re not aware that it’s a real risk, you thought in your mind that it was a real enough risk to –

A. I was thinking of everything. I had to think of every possibility. I’ve never seen anybody catch the bougie and I’ve never heard of anybody catching the bougie.

Q. Okay. Let’s deal with this. It was a real enough risk that it actually came to your mind?

A. Yes.

Q. Right. It’s not a fanciful risk or something so remote that you wouldn’t even think of it?

A. Right.

Q. Right. And you actually said you checked for that possibility?

A. Yes.

Q. Okay. And you looked at the wrap?

A. Yes.

Q. And you manipulated the wrap?

A. Yes.

Q. Right. And when you’re doing this, you cannot see through the wrap?

A. I can see the wrap. I can see the wrap there, but I can’t see inside the esophagus or the stomach, no.

Q. Right. You don’t have x-ray vision or anything like that?

A. No, I can’t see inside.

Q. No. And you can’t see the bougie?

A. No. No.

Q. And your tests are all visual or manipulating the wrap?

A. Yes.

Q. Right. And there was nothing preventing you from undoing the wrap?

A. No, I mean my only concern was that undoing the wrap would require us to do the wrap again, and anytime – you know I mean, we have to put sutures in the wrap again to re-do it and I didn’t think that that was the best thing to do.

Q. Right. Undoing the wrap would have provided a definitive answer to whether a stitch had caught the bougie?

A. I felt I had a definitive answer. I didn’t feel a stitch had caught the bougie.

Q. Right. But you’d agree that undoing those stitches would provide a more definitive answer than your visual inspection and your manipulation?

A. I suppose it may, yes. (Transcript September 26 p. 128-131)

[23] Dr. Kilmurry decided not to do a gastrotomy which is an operation to open up the stomach. The part of the bougie that was in the stomach would have been the tapered end which was about 15 centimetres long. The bougie appeared to be stuck above where it was in the stomach. The bougie is a flexible instrument which meant that pushing it up from the bottom would not have been effective. Opening the stomach could damage part of the stomach that might be necessary to use to repair the esophagus. Opening up the stomach ran the risk of contamination. Dr. Kilmurry only used the amount of force that was necessary to remove the bougie. Dr. Bonney testified that “He didn’t rush into the final removal of the bougie.” (Transcript Examination for Discovery p 28, Q. 137)

[24] There was barium streaked on the tapered end of the bougie for about 15 centimeters. It was hard. Dr. Kilmurry described it as being caked like oatmeal. The mucosa or inner lining of the esophagus was pulled up with the bougie. Dr. Kilmurry put a gastroscope which is an instrument with a camera on it down the esophagus. It was his observation that the removal of the bougie had caused a portion of the esophagus to be denuded. This was above the wrap at a distance of about 30 to 35 centimeters down the esophagus It was Dr. Kilmurry’s opinion that the bougie had been cemented in place by barium that was in the stomach.

[25] Dr. Bonney told Dr. Kilmurry that there may be bubbling. This could indicate that there was a leak in the esophagus resulting from a perforation. To determine this Dr. Kilmurry insufflated the esophagus and stomach i.e. filled them with air. He also put a saline solution in the abdomen. If the esophagus had been perforated bubbles would appear in the saline solution. This was a test similar to putting air in an inner tube and then placing it in a pail to determine if air bubbled out of it. Dr. Kilmurry observed no bubbles coming from the wrap. He concluded that any bubbling was the result of air being trapped in the abdominal cavity.

[26] Dr. Kilmurry placed a nasogastric tube through Dianne’s nose and into her stomach. The purpose of doing this was to hold the esophageal mucosa into place to allow it to heal. He also wanted to drain the stomach to prevent vomiting. Dr. Kilmurry inspected the wrap and determined that the sutures were still in place. He decided not to suture the stomach to the abdominal wall which he often did in performing a nissen fundoplication. This was because of the danger of damaging the stomach which might be needed to repair the esophagus by performing an esophagectomy which was in fact done on March 2, 2010. Dr. Kilmurry inserted Jackson Pratt tubes into the hiatus and into the abdominal cavity. If there was a leak in the esophagus as the result of a perforation the stomach bile would come out of these tubes. There was no evidence of this.

5. Events From the Surgery to Dianne’s Discharge Home and Then to the Stroke on September 21, 2009

[27] After the surgery on August 14, 2009 Dr. Kilmurry ordered that the medication that Dianne was taking prior to her admission to hospital on August 13, 2009 be discontinued. Dianne went directly from the operating room to the Intensive Care Unit (“ICU”). On August 17 in a telephone conversation Dr. Kilmurry told Debbie that in his opinion barium had cemented the bougie to the esophagus. At the direction of Dr. Kilmurry on August 20, 2009 a technician at GRH administered an Upper GI series to Dianne. This time Dr. Kilmurry directed gastrografin be used as a contrast agent rather than barium. The objective is to observe the condition of the esophagus on an x-ray. Gastrografin is not as thick as barium and as a result it does not give as good a picture on an X ray. It is, however, better absorbed by the body. Dr. Kilmurry concluded from the X ray that there was no leakage from the esophagus and hence the esophagus had not been perforated in the operation. The X ray did show a narrowing of the esophagus or a stricture that could be related to the injury caused by pulling out the bougie.

[28] On August 20, 2009 Dr. Kilmurry discharged Dianne from the ICU. She proceeded to a room on the 6th floor of the GRH. From August 22 to August 31 Dr. Kilmurry was on vacation. Dr. Sharkey who like Dr. Kilmurry was also a thoracic surgeon at the GRH was responsible for Dianne’s care during this period. Dianne had been receiving nutrition intravenously from the time that she was admitted to the GRH on August 13. Whenever she attempted to take anything by mouth, whether liquid or soft food, she had difficulty swallowing and vomited. On August 27 Dr. Sharkey performed a gastroscopy on Dianne’s esophagus. He observed a stricture above the esophagal junction about 35 centimeters into the esophagus. He performed a dilation with a 50 French Maloney bougie which he inserted 44 centimeters into the esophagus. On September 2 Dr. Kilmurry performed another gastroscopy and dilation on Dianne. He was unable to insert the gastroscope beyond about 30 centimeters likely due to the damage to the mucosa caused by the removal of the bougie on August 14, 2009. He inserted the gastoscope twice and a bougie 4 times. He saw no evidence of a perforation of the esophagus. Dr. Kilmurry discharged Dianne home on September 4. He thought that she would continue to have difficulty swallowing and would need more dilations.

[29] A dietician met with Dianne before she left the hospital to assist her in transitioning to eating soft foods by mouth. Dianne had much difficulty in swallowing and keeping food down in her stomach after she went home. She attended on September 10 at St. Mary’s Hospital in Kitchener where Dr. Kilmurry performed another gastroscopy and dilation. He dilated her 7 times and inserted the gastrosope three times. He thought that these procedures were successful in opening up the stricture in her esophagus. He did think that she would need further dilations. After consultation with Dianne’s family he made a referral for her to see Dr. Inculet who was a thoracic surgeon at the LHSC for another opinion. On September 14 Diane went to the emergency department at LHSC because of difficulty that she was having swallowing.

[30] On September 21, 2009 Dianne was speaking with Debbie on the phone. She noticed that Dianne’s speech was slurred. Debbie came to her house and called an ambulance which took her to GRH. It was determined that she had had a stroke. Dianne has either been in hospital or living in a long term care facility since then.

6. The Experts on Dr. Kilmurry’s Conduct of the Operation

(1) Dr. Rosenthal

[31] The plaintiffs called Dr. Rosenthal on the standard of care required by Dr. Kilmurry in the performance of the operation. He is a general surgeon. He is a staff surgeon at the Scarborough Hospital. This is not a level one thoracic centre. It refers its emergency or urgent thoracic surgery cases to either Lakeridge Hospital or Toronto East General Hospital where Dr. Simone has privileges.

(2) Dr. Simone

[32] Dr. Simone is one of the experts called by Dr. Kilmurry on the standard of care required of him in the performance of the operation. He is a thoracic surgeon. He is an assistant professor of thoracic surgery at the University Toronto. He has been a fellow with the Royal College of Surgeons of Canada (“RCSC”) since 2004. He has privileges at several hospitals including the Toronto East General Hospital which has a level one thoracic service. He had experience treating patients with paraesophageal hernias in 2009. He has managed an emergent presentation of a paraesophageal hiatal hernia approximately six to eight times a year throughout his career. Dr. Simone performs 2 to 4 emergent paraesophageal hiatal hernia surgeries each year referred directly from Scarborough Hospital where Dr. Rosenthal is a general surgeon.

(3) Dr. Blitz

[33] Dr. Blitz is a second expert called by Dr. Kilmurry on the standard of care required by him in the performance of the operation. He is a general and thoracic surgeon. He has been a fellow with the RCSC in general surgery since 2006. He has privileges at St. Joseph’s Hospital which is a level one thoracic centre. He is an assistant professor at the University of Toronto. In 2009 he had experience treating and teaching students how to treat patients with presentations comparable to Dianne’s.

[34] A level one thoracic hospital provides patients with high quality thoracic care. The GRH where Dr. Kilmurry has privileges and where he performed the operation on Dianne is a level one thoracic hospital.

7. The Reason Why the Bougie Was Stuck in Dianne’s Esophagus

[35] The stomach tissue is thick and meaty. Esophagus tissue is fragile and thin. A 50 French bougie is firm and rubbery. If a surgeon using a needle were to place a 2.0 ethibond suture into the tissue of the stomach and then the esophagus were to strike a 50 French bougie he would immediately feel it. If the top stitch in the wrap had been anchored to the bougie Dr. Kilmurry would not have been able to manipulate it. If the top suture in the wrap had gone through the bougie when the bougie was pulled out there would have been a massive injury to the stomach and the esophagus which would have resulted in holes in both the stomach and esophagus. The pulling of the bougie out of the esophagus caused a de-gloving injury which denuded the mucosa of the esophagus above the wrap.

[36] There is a standard procedure at the GRH specifically and thoracic hospitals generally for cleaning and inspecting bougies after they have been used in thoracic surgery. Ms. Costa testified in detail about this. There was no evidence of any damage to the 50 French bougie used in the operation on Dianne on August 14, 2009.

[37] Barium is a contrast agent. When it is ingested by a patient a surgeon may identify areas of concern in the esophagus with an X ray. It has an adherent quality which results in it sticking to the mucosa of the esophagus. The paraesophageal hernia would affect the motility of the esophagus. This is the function of the esophagus in pushing food down into the stomach. Barium must have remained in the esophagus and also in the stomach. The only explanation for the bougie being stuck in the esophagus is that it was being held there by the barium.

Dr. Blitz testified as follows:

Q. Based upon your review of the records, did you consider any alternative explanations to explain why the bougie became affixed in Mrs. Bauer’s esophagus?

A. Looking at the records and seeing that the bougie was as fixed as it was and then seeing that upon pulling the bougie it sounds like the whole length of mucosa came out, the mucosa being the weakest layer so if somehow the mucosa was stuck to the bougie that’s the part that would give way. What I was left with is that somehow the barium caused the mucosa to stick to the bougie. (Transcript September 30, 2016 p. 40, emphasis added)

A. Well we eliminated the suture; we eliminated a lesion; we eliminated the sub-mucosal passage; and then we have descriptions of the bougie being coated with thick barium; we have descriptions of a sock of mucosa being pulled out; we have description of potentially mucosa still being stuck to the bougie, all of which seems to point in that direction. Again, especially after having eliminated all the other causes. (transcript September 30, 2016 p. 42)

[38] On October 16, 2009 Dr. Inculet performed a gastroscopy on Dianne at the LHSC. He did so again on October 22, 2009. He observed that the fundoplication was intact.

[39] Between the operation on August 14, 2009 at the GRH and the esophagectomy at the LSC on March 2, 2010 Dianne underwent 9 dilations and gastroscopies, the first three by Drs. Sharkey and Dr. Kilmurry at GRH- August 27, September 1, September 10 and the next 6- October 16, October 22, November 9, November 30, December 14 and January 10 by Dr. Inculet at the LSC. The bougies and balloon dialtors that were used to do these dilations would pass through the esophagus and by the gastroesophageal junction. This would have the effect of disrupting the wrap. The purpose of these procedures is to open up or fracture strictures in the esophagus which were making it difficult for Dianne to swallow. They would have the effect of disrupting the wrap. This could account at least in part for their only being part of the wrap intact when Dr. Inculet did the esophagectomy on March 2, 2010.

[40] Under the direction of Dr. Kilmurry Dr. Chapin had Dianne do an Esophagus and GI Series on August 20, 2009 which is similar to the barium swallow which she did on August 13, 2009. On this occasion the radiologist which directed the procedure used gastrografin rather than barium. He did this because gastrografin is better absorbed by the body than is barium if there was a leak. Gastrografin is a liquid which Dianne drank. It went into her esophagus and then her stomach. There was no leak. This confirmed that when Dr. Kilmurry pulled the bougie out of the esophagus, the esophagus was not perforated. This in turn confirmed that a suture had not gone into the bougie.

[41] Mr. Murdoch suggested that the bougie was stuck in the stomach by barium in the stomach. He noted that Dr. Kilmurry saw barium at the tapered end of the bougie when he removed it. Dr. Blitz rejected this. He testified as follows:

In cross examination:

Q. Now if barium in this case can act like glue and can get stuck or adhere to the bougie and the barium’s in the stomach then it could trap the bougie in the stomach. Correct?

A. No. I’m not sure I understand the mechanism that would make that happen.

Q. Well you have something that I think you said has become very viscousy and can even cause impaction and to become solid ... .

A. And an obstruction. Yes.

Q. Right. And in fact in the stomach this material that could potentially act like that then if the bougie comes into contact with that, that barium, improperly prepared barium could lodge or cause the bougie to become stuck. Right?

A. No.

Q. The only portion of the bougie that has barium on it is the tapered end. Right?

A. I think that’s what I remember reading.

Q. Right. And the tapered end was in the stomach.

A. It was also the last thing pulled out through the esophagus.

Q. Right. Let’s just stick to the question. The tapered end was....

A. Well that’s the answer. Right? Yes, it was in the stomach. This isn’t this black and white thing. It doesn’t magically teleport from the stomach to outside the patient. It has to travel through the esophagus to get outside the patient.

Q. So one scenario is the barium stuck to the bougie in the stomach because we know the barium is on the bottom end, the tapered end. Right? And it stayed stuck to the bougie as it came up, as it was pulled up. That’s possible. Right?

A. And causing this damage in doing that?

Q. Just answer the question. We’re talking about barium on the bougie. Right? Barium was noted on the tapered end of the bougie. Right?

A. Yes.

Q. And that tapered end is in the stomach. Right?

A. Correct.

Q. So it’s possible that that bougie – that the barium became adhered or stuck to the bougie in the stomach. Correct?

A. It’s possible but it doesn’t quite fit the scenario.

Q. Well it’s possible because you say barium in this case can act like glue and there’s reports that it’s stuck to the bougie so if it acted like glue it got stuck to the bougie on the tapered end that had to be in the stomach then.

A. No.

Q. Okay.

A. You have to pull it through the entirety of the esophagus.

Q. So you’re saying ... .

A. And in fact you’re pulling it through the entirety of the esophagus – you have this mucosa that we see up in the back and so then it’s being, like it has to slide through that whole area.

Q. I’m not talking about the mucosa. I’m talking about barium.

A. I understand, but they’re not floating independently of each other. Right? The barium and mucosa are all in the same package so if you’re pulling the bougie out, you still have to pull the bougie out through the esophagus.

Q. Why is it – is it possible, Dr., that you could have barium become affixed to the bougie in the stomach on the tapered end of it. Right? And it would stay affixed because it acts like glue and remain affixed as it’s pulled up and being extracted.

A. Possible to have a little tiny thin bit of barium on the tip that just stays there? Sure.

Q. Where do you get that from?

A. Because that’s the only way that your scenario makes sense. (Transcript September 30 p. 128-30)

In Re-examination:

Q. … Could you just please slowly explain what you were describing when you said that the tapered end is the last thing to be pulled out and why you’d see the barium at the tapered end.

A. So if you’re pulling the bougie out through a tight esophagus and you’re withdrawing the bougie and with it is coming some of the mucosa, the mucosa being stuck and now it’s becoming a bit of an inverted sock, that stuff is still sliding along the bougie that’s further down and so the bougie on the way out can pick up all sorts of debris, barium on the way out as you’re pulling it out. It has to go through this area to get out.

Q. Is bougie [sic] on the tip consistent with barium being in the esophagus?

A. Barium on the tip can certainly be consistent with barium in the esophagus. (Transcript September 30 p. 165)

[42] The bougie was stuck in Dianne’s Esophagus by barium in the esophagus and not by barium in the stomach. It was reasonable and in accordance with the standard of practice for a thoracic surgeon to order that a patient undergo a barium swallow before performing a nissan fundoplication. There was no reason to expect that the barium would stick to the esophagus and the bougie as happened in this case. The only explanation is that the technician who would have been employed by GRH and/or the radiologist who was likely in charge of this procedure somehow had Dianne swallow improperly prepared barium. Perhaps it is the manufacturer of the barium who is at fault. It was impossible to explore properly these issues and perhaps to find liability on the party responsible for the terrible suffering which Dianne has endured because counsel for Dianne discontinued the action against GRH and Dr. Balendran.

8. Dr. Rosenthal’s Allegations of How Dr. Kilmurry Fell Below the Required Standard of Care in the Performance of the Operation.

[43] Dr. Rosenthal had the following criticisms of Dr. Kilmurry:

1. He should have waited to further optimize Dianne before conducing the operation.

2. He should have consulted with an internist or a hematologist before proceeding with the operation.

3. He should have sought a consultation with another thoracic surgeon before pulling out the bougie.

4. He should have taken down the wrap before pulling out the bougie.

5. He should have performed a gastrostomy before proceeding to pull out the bougie.

6. He should not have used force to remove the bougie from Dianne’s esophagus.

(1) Surgical Emergency

[44] According to Dr. Blitz when Dianne first came to the emergency on August 11, 2009 she had symptoms that suggested a paraesophageal hiatus hernia with a volvulus – i.e. stomach had moved through the diaphragm via the hiatus into the chest and twisted. These symptoms were vomiting undigested food, an inability to swallow anything including saliva and pain. The upper GI series or barium swallow followed by an X ray on August 13, 2013 showed that the bottom of the stomach had folded up the top of the stomach and flipped through the hiatus into the chest. From the evidence available from the patient’s symptoms and the X ray following the barium swallow, Dr. Blitz was of the opinion that Dianne was experiencing an “increasing intermittent volvulus” that required surgery on an emergency basis. Failing to operate to correct this ran the risk of ischemia, infarction and necrosis – i.e. a dead stomach resulting from failure of blood getting to the tissues of the stomach. There are no tests that can detect ischemia or necrosis. Symptoms of ischemia or necrosis include fever, rapid heart rate and low blood pressure. If an operation is delayed and the patient’s condition deteriorates to necrosis of the stomach the surgeon when he opens up the patient will need to do a gastrostomy. This is removal of all or part of the stomach. It requires opening up the chest, removing the dead tissue, bringing the bowel up from the abdominal cavity and attaching it to the esophagus. This carries with it risk of significant morbidity which would adversely affect the patient’s life or death. Dr. Blitz and Dr. Simone agree on the above analysis.

(2) Consult with an Internist or a Haematologist

[45] Dr. Rosenthal testified that Dr. Kilmurry should have consulted with a haematologist before operating. Dianne had Essential Thrombocytosis (ET) and was taking hydrea which had been prescribed by Dr. J. MacEachern who is a haematologist. This is further discussed below. It was controlling the ET. Her platelet count was under 600 when the operation took place which is normal and what is recommended. Dianne’s lawyers had Dr. MacEachern under subpoena for the trial. They elected not to call her. Dr. Kagoma who is a haematologist testified that if he had been consulted he would not have recommended that Dr. Kilmurry do anything different than what he did.

(3) Consult Another Thoracic Surgeon

[46] Dr. Kilmurry classified the surgery as a Class B emergent surgery. It was done on a Friday evening when there was not another thoracic surgery on duty at GRH. For another thoracic surgeon to be available the surgery would have had to done during the day on a week day when the operating rooms were already scheduled for elective surgery or it would have had to displace a Class A emergency surgery where the life of the patient was at risk. The latter would have been against hospital policy and would not have been possible. Moreover both Dr. Blitz and Dr. Simone testified that they would have not done anything differently than Dr. Kilmurry did.

(4) Take Down the Wrap

[47] Dr. Blitz and Dr. Simone both testified that it would not have been reasonable for Dr. Kilmurry to take down the wrap. It would have been easy to do but was unnecessary because Dr. Kilmurry had already satisfied himself that the bougie was not caught by a stitch. Taking down the wrap would have provided confirmation that a stitch was not caught in the bougie. However, once the wrap was taken down it would be necessary to put it back in place by again putting sutures in the stomach and esophagus. The stomach had already been volvulized and incarcerated. The esophagus in particular is friable or easy to damage. The potential benefit of taking down the wrap was minimal and the risk of adverse consequences were great.

(5) Perform a Gastrotomy

[48] Dr. Rosenthal suggested that it was “worth a try” to open the stomach in an attempt to free the bougie. Both Dr. Blitz and Dr. Simone disagreed. Opening the stomach ran the risk of damaging an organ that had already been traumatized by being forced into the chest from its normal position in the stomach and had been twisted. Opening the stomach would have run the risk of contaminating the abdomen with bile and acid released from the stomach. It would have necessitated putting a large hole in the stomach. The bougie was held in place in the esophagus. It is a flexible instrument. It would not have been possible to push it out of the esophagus from the stomach. Suggesting that surgery was worth a try was not appropriate. As Dr. Blitz put it: “As a surgeon that deals with high intensity things, I’m not sure we do ‘worth a try’….We do stuff that either has the ability to work or we avoid stuff that has no ability to work.” (Transcript September 30, 2016 p. 112) The potential risks were great and the potential benefits were none.

(6) Dr. Kilmurry’s Use of Force to Remove the Bougie

[49] The bougie had to come out of Dianne’s esophagus. Both Dr. Blitz and Dr. Simone were agreed that Dr. Kilmurry used only the amount of force that was necessary to remove the bougie.

Stroke September 21, 2009

9. Prior Incidents of Confusion

[50] Dianne’s family doctor was Dr. J. Robinson for over 25 years. Dianne reported an incident to Dr. Robinson which she recorded on September 28 2006 in her notes. Her left hand became numb when she was cleaning. It lost power. She felt tingling and numbness. The sensation started in her fingers and moved up her arm. She had blurred vision and saw lightning rods. She had a bad headache.

[51] Dianne reported an incident to Dr. Robinson on Monday, October 20, 2006 that had taken place the previous day. Dr. Robinson recorded the symptoms that Dianne reported to her in her notes. It is unclear from Dr. Robinson’s notes whether she was still experiencing the symptoms. She experienced blurred vision, loss of vision, frontal headaches, seeing lightning rods, feeling dizzy and a spinning sensation.

[52] Dianne reported an incident to Dr. Robinson on June 22, 2008 that had taken place the previous day. She was a passenger in a car. Her vision had white spots. She felt a loss of power in her left arm. She had no control of her left arm. She was unable to grab a Kleenex. Her hand felt numb.

10. Blood Disorder

[53] On February 27, 2008 Dr. Robinson referred Dianne to Dr. MacEachern who was a hematologist. This was because routine blood tests showed that she had an abnormally high platelet count. Dr. MacEachern diagnosed Dianne as having Essential Thrombocytosis or ET on June 24, 2008. She prescribed hydrea at a dose of one gram daily. She sought to bring Dianne’s platelet count below 600. Blood tests showed her platelet count to be satisfactory after she began taking the hydrea.

11. Essential Thrombocytosis (ET)

[54] This is a blood disorder whereby the body produces an abnormally high number of platelets. Platelets are blood cells. They adhere to damaged blood vessels. An abnormally high number of platelets or abnormally functioning platelets may form a white thrombus or clot if there is a rough surface for the platelets to aggregate on. The cause of ET is associated with an acquired gene mutation known as Janus kinase 2 (“JAK2”). ET is managed by hematologists. ET is controlled by the drug hydrea which reduces the number of platelets in the blood. Aspirin (ASA) controls platelet function.

12. Atrial Fibrillation (AF)

[55] This is an abnormality in the rhythm of the heart causing blood to pool in the part of the heart known as the atrial appendage. Pooled blood can form red clots called red thrombi. This is treated with anticoagulants. Symptoms include heart flutters. A person with atrial fibrillation may not have symptoms.

13. Strokes/TIA

[56] An ischemic stroke occurs when there is a blockage of a blood vessel delivering blood to the brain. The blockage prevents the supply of blood to the brain which causes the death of brain tissue. A TIA or a transient ischemic attack occurs when part of the brain is deprived temporarily of its blood flow. There is a temporary impairment of function and complete recovery. The distinction between a TIA and a stroke is whether neurologic signs and symptoms resolve. Persons who suffer a TIA recover completely. Stroke impairments do not completely recover. Strokes usually have evidence of damage to the blood vessels of the brain. Strokes can be detected on a brain CT.

[57] The 3 most common strokes and their causes are the following:

1. Cardioembolic strokes- These are caused by red blood clots from the heart. This is the result of stasis or the pooling of blood in the heart caused by AF.

They can also be caused by clots forming in the leg and going to the brain through a hole in the heart which is called paradoxical embolusism.

2. Large artery disease strokes or strokes caused by Atherosclerosis. These are caused by plaque in the wall of an artery which results in platelets sticking to them. Platelets can stick to the plaque which can embolize to the brain.

3. Small Vessel disease strokes. These occur in the base of the brain. They are caused by hypertension and diabetes.

4. The Experts on the Cause of Dianne’s Stroke on September 21, 2009

[58] Three experts opined on the cause of Mrs. Bauer’s stroke. The plaintiffs called Dr. Rathbone. The defendants called Dr. David Spence and Dr. Peter Kaogma.

(1) Dr. Michel Rathbone

[59] The court qualified Dr. Rathbone as a neurologist specialist to give his opinion on the cause of the stroke that Dianne suffered on September 21, 2009. He is not a stroke neurologist. Dr. Rathbone confirmed that neurology can be subdivided into areas of specialty, of which stroke neurology is one. He has worked clinically with hematologists with respect to ET and stroke. The treatment of stroke victims is a major part of his practice. He has published articles on stroke prevention. In his practice he treats patients with migraine headaches.

(2)Dr. David Spence

[60] The court qualified Dr. Spence as stroke neurologist with a sub-specialty in stroke prevention to provide an opinion on whether Dr. Kilmurry’s care of Dianne caused her stroke on September 21, 2009. Dr. Spence obtained his medical degree from the University of Western Ontario in 1970. Dr. Spence is a fellow of the RCSC in internal medicine and neurology. Dr. Spence completed a fellowship in clinical pharmacology, which is the study of how drugs work in humans. Dr. Spence is a full professor of neurology and clinical pharmacology at the University of Western Ontario. He has given over 500 lectures in 37 countries to family doctors, neurologists, and stroke experts. Dr. Spence is on the editorial board for a number of publications relating to stroke. Dr. Spence is also a reviewer for the New England Journal of Medicine among other noteworthy publications. Dr. Spence has written two books on stroke prevention, one for the public and one for physicians. Dr. Spence has written over 400 peer-reviewed publications, including articles on atrial fibrillation, migraines and strokes. Dr. Dr. Spence is on the research and education committee and board of directors of the World Stroke Organization. He runs the course on stroke prevention, a course attended by neurologists from all over the world. In his clinical practice, Dr. Spence is a member of a stroke team. He does an urgent TIA clinic once a week. In the context of the urgent TIA clinic, he first determines if the patient suffered a stroke or a stroke mimic. Second, he determines the cause of the stroke because the best possible treatment to prevent a recurrent stroke is to determine the cause of the stroke. In his clinic he has seen over 40,000 patients. Approximately half of these have had a stroke or a suspected stroke.

(3)Dr. Peter Kagoma

[61] The court qualified Dr. Kagoma as a hematologist to give his opinion on what he would have recommended for the treatment of Dianne between August 13 and September 4, 2009. The court also qualified him to give his opinion on whether ET caused Diane’s stroke on September 21, 2009. He obtained his medical degree from the University of Lagos in 1980. He practiced general medicine in Trinidad and Tobago between 1980 and 1983. He completed a residency in internal medicine in the U.S. and obtained an American Board of Internal Medicine Certification in 1987. Dr. Kagoma completed a hematology fellowship in the U.S. between 1987 and 1989. Dr. Kagoma then completed a residency in internal medicine at McMaster University. He became certified by the RCSC in internal medicine and hematology. Dr. Kagoma treats patients with essential thrombocytosis frequently as well as for stroke prevention.

15. Position of the Plaintiffs

[62] Dr. Rathbone testified that Dianne’s stroke was caused by the inadequate care provided to her after the operation, the dilations of her throat, her dehydration and most important the failure of her platelet count being controlled by Hydrea and her platelet function being controlled by aspirin. He testified as follows:

Q. … Would you summarize (from his report) what you have said there with respect to your opinion and, and the stroke?

A. Yes. She had stroke risk factors that we’ve discussed such as high blood pressure and cholesterol but had no events until September the 28th, 2006 and then she had what appeared to be probably a migraine, and that was also confirmed by the physician in the stroke unit, and then what this did was to indicate that she had a high platelet count, so she had ET, and that, I felt, was the key factor. Dr. Spence emphasize[sic] atrial fibrillation but that was not identified until after the stroke of September the 21st and Dr. Dr. Spence didn’t seem to recognize the thrombosis began before she had any migraine-like – thrombocytosis before she had any migraine-like or stroke-like events. Therefore, in my opinion, it was most probable that the stroke was most – was, was likely caused by her inability to take medications, Aspirin, Hydrea – particularly Hydrea, and the surgical effect on the esophagus.(emphasis added)

Q. Then your opinion are the paragraphs after the opinion, pages 8 and 9. Would you similarly go through those for His Honour and indicate what your opinion is and how you came about what it relates to?

A. She had two initial episodes. At least the first and possibly the second could have been complicated migraines. Next, she had a number of factors that predisposed her to having a stroke, including high blood pressure, high cholesterol and essentially – sorry, and essential thrombocytosis. After surgery she had brief runs of atrial fibrillation, another potential cause of stroke, but those were brief and may not have been long enough to permit a clot to form. She was unable to take her medication after surgery and it does not appear to have been appropriately restarted, because she couldn’t take it, and the difficulties for taking medications were described in discovery transcript of her daughter and her husband, and her platelets would then increase because her thrombocytosis was not being controlled and increased the probability of a stroke. The runs of atrial fibrillation are very brief and appeared too short. Even if that were the case, the clotting in the atrium would have, would have been, if not triggered, certainly predisposed to by her ET because ET is going to make blood likely to clot, and the atrial fibrillation was only found after the stroke. Therefore, in my opinion, the neurological cause of stroke was probably her ET and specifically its lack of control after surgery, and that was related to pro – following – swallowing food and fluids.(emphasis added)

MR. KENNEY: Q. And lastly you have read Dr. Spence’s opinion, and we’ve touched on it briefly, and I just want to summarize that. Dr. Spence is looking at a cardioembolic event as being responsible for the stroke, and what is your comment with respect to that?

A. Well, there was no evidence that she had any atrial fibrillation before the stroke, and the previous events that he attributed to cardioembolic events, she had no atrial fibrillation then and no evidence really that those were true transient ischemic attacks. (emphasis added, transcript September 15 pp. 104-106)

16. Position of Dr. Kilmurry

[63] Doctor Spence was of the opinion that Dianne’s stroke on September 21, 2009 was a cardioembolic stroke. It was caused by a blood clot forming in the heart and travelling to the brain. She had atrial fibrulation which caused the blood clot to form in the heart. He was of the opinion that the “prior incidents of confusion” experienced by Dianne which Dr. Robinson recorded in her notes on September 28 and October 20, 2006 and June 22, 2008 were TIAs and not migraine headaches which was the opinion of Dr. Rathbone. The holter monitor tests that she had immediately before and after her stroke were suggestive of AF. Also the holters were not in place long enough to be reliable.

[64] Dr. Robinson’s notes indicate that Dianne reported pain in multiple territories of the brain both simultaneously and consecutively which is indicative of a cardiac stroke. The symptoms Dianne reported to Doctor Robinson are more consistent with TIAs in Dr. Spence’s opinion than with migraine headache. Dr. Robinson seems to be of the opinion that Dianne may have been suffering strokes. She reported Dianne to the Ministry of Transportation by completing a form on June 23, 2008 that Dianne may have suffered a TIA and hence she was suffering a medical condition that may make it dangerous for her to operate a motor vehicle. The Ministry suspended her driver’s license on July 8, 2008. Dr. Robinson reported in another form dated September 5, 2008 referring Dianne to the secondary stroke prevention clinic that Dianne had “no control of her left hand”.

17. Holter Monitor Tests

[65] While she was at GRH Dianne had a holter monitor test starting on August 25, 2009 which recorded her heart rhythm over 46 hours. It showed what Dr. Fowlis who is the cardiologist who interpreted the report of the test called “some worrisome runs of supraventricular and ventricular tachycardia, though nonsustained.” Dr. Spence testified that this was equivalent to “atrial premature beats” and was indicative of someone who was likely to have atrial fibrillation. In support of his opinion he produced an article “Atrial Premature Beats Predict Atrial Fibrillation in Cryptogenic Stroke” published in the Stroke Journal in 2015. It stated the following:

Atrial fibrillation (AF) is the leading cardiac cause of stroke, but it frequently goes undetected and untreated in the routine management of patients with embolic ischemic stroke or transient ischemic attack (TIA). Screening for AF has typically been limited to short-duration ECG monitoring post stroke (e.g. 24 hours) and unless atrial fibrillation occurs during that period, the diagnosis is missed, highly effective anticoagulant therapy is generally not prescribed, and potentially preventable recurrent strokes can result. Longer duration ECG monitoring (eg. For 7 days, 30 days, or up to 3 years) significantly improves AF detection and treatment compared with standard care.

Frequent atrial premature beats (APBs) are an emerging risk marker that can help identify patients in sinus rhythm who are likely to have, or develop, paroxysmal AF, as shown in cohort studies of stroke patients9–13 and asymptomatic individuals. Similarly, increasing frequency or duration of nonsustained runs of atrial tachyarrhythmia have been associated with AF. (pp. 936-937)

[66] Dianne had a second holter monitor test at GRH for 44 hours commencing on September 25, 2009 and reported on September 30, 2009 after she had had the stroke on September 21, 2009. The report of that test was made by Dr. S. Sharrad who was in internal medicine. He reported that the test showed “short bursts of what looks like atrial fibrulation”.

[67] Dr. Spence testified that it is necessary for a person to wear a holter monitor for a much longer period in order to determine if the person had atrial fibrulaton. He referred to a paper entitled “Atrial Fibrulation in Patients with Cryptogenic Stroke” published in the New England Journal of Medicine on June 26, 2014. The article refers to the Embrace Study where 572 patients were randomly selected who were 55 years of age or older without known atrial fibrulation who had suffered a cryptogenic (unknown cause) ischemic stroke or TIA within the previous 6 months. It showed that where holter monitoring was conducted over 4 weeks that atrial fibrulation was detected in 16.1% of the patients.

[68] Dr. Rathbone testified that a stroke can cause AF as an explanation for the Holter Monitoring recording commencing on September 25, 2009 showing AF after Dianne’s stroke on September 21, 2009. Dr. Spence agreed that a stroke can cause AF except this was unlikely to be the cause of the AF recorded for Dianne after her stroke. He testified that where a stroke causes AF the stroke has been found to have been located in the insula of the brain. Dianne suffered a right middle cerebral artery stroke which is in a location of the brain remote from the insula. He cited 2 peer reviewed articles published in respected medical journals in support of this opinion. They are “Poststroke Atrial Fibrillation: Cause or Consequence” which was jointly written by several stroke researchers. It was published in 2014 in The American Academy of Neurology and correspondence from Dr. Spence and another stroke researcher published in 2014 in The New England Journal of Medicine.

Dianne’s Stroke Was Not Caused by ET

18. Dianne’s Arteries Were Clear

[69] Dianne had an x-ray of her arteries on September 23, 2009, 2 days after her stroke. Dr. Spence explained the medical imaging report of this x-ray as follows:

Q. Can we turn to exhibit one, volume two (b), page 74?

A. Yes.

Q. And when you refer to the normal carotid artery are you referring to this test result?

A. Yes.

Q. What is this?

A. This is a carotid ultrasound report. So they took an ultrasound machine and examined the carotid arteries with ultrasound and what this report says is that not only did she not have any narrowing of the carotid artery there was not even any plaque seen, so she did not have atherosclerosis in her carotid arteries, that meaning that she did not have – her strokes were not caused by larger artery disease.

Q. What’s the clinical significance of that in determining whether or not essential thrombocytosis caused Mrs. Bauer’s stroke?

A. Because platelets cause strokes by attaching to diseased arteries where there’s narrowing or damage and then breaking off and embolizing to the brain. So this means that her carotid arteries were normal, means that the thrombocytosis was not the cause of her stroke even if the platelet levels had been high at the time of the stroke, which they were not. (Transcript, September 28, 2009)

19. Dianne’s Platelet Count

[70] Prior to her diagnosis of essential thrombocytosis, routine Complete Blood Counts (“CBCs”) showed Dianne’s platelet count increased over time:

Date Platelet Count

September 1, 2005 404

October 2, 2006 452

August 6, 2007 608

January 29, 2008 740

May 13, 2008 893

June 24, 2008 1074

[71] On February 27, 2008, after reviewing the January 29, 2008 platelet count of 740, Dr. Robinson, Dianne’s family physician, referred her to Dr. MacEachern. On June 11, 2008, Dr. MacEachern assessed Dianne. Dr. MacEachern documented essential thrombocytosis as a differential diagnosis for Dianne’s high platelet count. She ordered a JAK 2 mutation test and other investigations to determine the cause for Dianne’s increased platelet count. On June 24, 2008, Dr. MacEachern re-assessed Dianne. Her DNA tested positive for the presence of the JAK2 mutation. Dr. MacEachern confirmed the diagnosis of essential thrombocytosis. Dr. MacEachern prescribed Hydrea at a dose of one gram daily for treatment of Dianne’s essential thrombocytosis.

[72] Following the June 24, 2008 appointment with Dr. MacEachern, Dianne began taking Hydrea and her platelet count began to fall. CBCs showed her platelet count prior to the operation to be the following:

July 8, 2008 893

July 22, 2008 460

September 10, 2008 281

October 27, 2008 263

July 29, 2009 228

[73] During Dianne’s admission to GRH between August 13, 2009 and September 4, 2009, her platelet count was as follows:

August 13, 2009 249

August 14, 2009 212

August 15, 2009 224

August 16, 2009 207

August 16, 2009 191

August 17, 2009 190

August 18, 2009 218

August 19, 2009 253

August 20, 2009 256

August 21, 2009 288

August 24, 2009 372

August 27, 2009 405

August 31, 2009 371

September 3, 2009 326

From the time that she went into GRH on August 13, 2009 Dianne’s platelet count was always below 600, the therapeutic goal set by Dr. MacEachern. Dianne’s platelet count was above the lab reference range of 400 only once. The Plaintiffs did not call a hematologist to suggest that any of the platelet counts were a concern or materially increased Dianne’s risk of stroke caused by a white clot produced by ET. Dr. Kagoma confirmed that these levels were not concerning.

In his opinion nothing needed to be done to treat Dianne’s platelet count. It was his opinion that Dianne’s platelet count did not contribute to her stroke on September 21, 2009.

20. Dianne’s Ingestion of Hydrea and Aspirin(ASA) From September 4, 2009 to September 21, 2009

[74] The evidence is that hydrea controls platelet count and that aspirin controls platelet function. Dr. Kilmurry ordered that Dianne’s medication be discontinued after the surgery on August 14, 2009. He ordered that her medication be restarted when she went home on September 4, 2009. Dianne, Debbie and John all testified that Dianne continued to have difficulty swallowing after she came home on September 4, 2009 until she had the stroke on September 21, 2009. A pharmacist explained to her that she could take the hydrea which came in the form of a large capsule by dissolving the contents in a glass of water and drinking the water. On September 23, 2009 a doctor at the LHSC noted that the stroke occurred when she was taking ASA. Another doctor on October 14, 2009 at the LHSC noted that when Dianne had the stroke she was not taking hydrea but that she was taking ASA. On November 12, 2009 Dr. MacEachern noted that Dianne told her that she was not taking hydrea when she had the stroke but she was taking aspirin. The evidence is that Dianne was taking ASA between September 4, 2009 and September 21, 2009. Therefore any abnormal platelet function was being treated at the time of her stroke. Dianne’s physicians discontinued ASA following her stroke on September 21, 2009 and prescribed anti-coagulants. They do not target platelets. They are only recommended to prevent a cardiac stroke. The evidence is that she was not taking hydrea at the time of her stroke. However the evidence is that her platlelet count was likely normal at the time of her stroke and that she was taking aspirin which would control platelet function. Hence her ET was under control at the time of her stroke on September 21, 2009.

Discussion

21. Dr. Kilmurry’s Performance of the Operation Was Not Negligent

[75] Dianne required an operation to repair the paraesophageal hiatus hernia with a volvulus which afflicted her. There was no point in waiting. To do so ran the risk of necrosis of the stomach which would have put her at much greater risk. There would also have been no point in waiting until Dr. Kilmurry could consult with another surgeon or a hematologist. They would have had nothing to offer that Dr. Kilmurry had not thought of himself. Dr. Kilmurry used only the amount of force necessary to remove the bougie. He did not use an excess of force.

[76] When Dr. Hassan could not remove the bougie from Dianne’s esophagus Dr. Kilmurry took over the responsibility for doing this. It was entirely appropriate that he do so since he was in charge of doing the operation. He checked the wrap by manipulating it. It did not appear that a stich had passed into the bougie. He thought rightly that it was highly unlikely that it had done so. It would have taken considerable force for the needle that he was using to do the stitching to penetrate the bougie. He would have certainly felt it strike the bougie. He elected to not take down the wrap. There would have been no point in his doing so. Doing this and then redoing the wrap would have further damaged the stomach and the esophagus. He also rejected performing a gastrostomy to open up the stomach. This would have run the risk of contaminating the abdomen. This would also not have advanced the objective of removing the bougie. It was the tapered end of the bougie that was in the stomach. It would not have been possible to push it out of the esophagus by gaining access to it in the stomach.

[77] Doctors Bitz and Simone testified that Dr. Kilmurry did not fall below the standard of care in performing the operation. Dr. Rosenthal testified that he did. The opinions of Doctors Bitz and Simone are accepted by the court. Both are thoracic surgeons as is Dr. Kilmurry whereas Dr. Rosenthal is a general surgeon. Most important their reasons for rejecting the criticisms of Dr. Rosenthal of Dr. Kilmurry performance of the operation are compelling.

[78] The plaintiffs have failed to prove on a balance of probabilities that the performance of the operation by Dr. Kilmurry fell below the standard of care required of him.

22. The Damage to Dianne’s Esophagus Did not Cause the Stroke

[79] Assuming that Dr. Kilmurry was negligent in performing the operation I consider whether his alleged negligence caused the stroke. For him to be liable to the plaintiffs in negligence the onus is on them to prove on a balance of probabilities that “but for” his negligence Dianne would not have suffered the stroke.

[80] Their position advanced by Dr. Rathbone is that Dianne’s ET caused her stroke in the setting of her other stroke risk factors. The hydrea that she was taking before the operation to control the ET was discontinued at the time of the operation on August 14, 2009. It was not started again until September 4, 2009 when she went home. She had great difficulty in keeping anything down in her stomach from September 4 until September 21, 2009 when she had the stroke. This was because of the injury that she suffered to her esophagus when Dr. Kilmurry removed the bougie. The argument of the plaintiffs is that she was not taking the hydrea which controls the number of platelets and the aspirin which controls platelet function. This resulted in her having the stroke which was caused by the injury to her esophagus. Her platelet count was well within the appropriate range while she was in hospital and when she was released on September 3, 2009. It is unlikely that her platelet count would have dramatically increased between September 3, 2009 and September 21, 2009. Moreover the evidence is that she was taking aspirin which controlled platelet function when she had the stroke.

[81] Dr. Kilmurry has advanced an alternate theory through Dr. Spence as to the cause of Dianne’s stroke. It is his theory that she had atrial fibrillation. It was this that likely caused the stroke. This condition can cause a clot in the heart that can travel to the brain and result in a stroke. Dr. Spence is of the opinion that what I have called “incidents of confusion” reported by Dianne to Dr. Robinson on September 28, 2006; June 22, 2008 and October 20, 2008 were TIAs and not migraine headaches which is the opinion of Dr. Rathbone. The holter monitors showed only brief episodes of AF. However Dr, Spence advanced the theory that a holter monitor in place for only a brief period can fail to detect AF. In Dr. Spence’ opinion the stroke cannot have been caused by ET. Dianne’s stroke was likely a cardioembolic stroke – a blood clot travelling from the heart caused by AF. There is evidence that Dianne had AF before she suffered the stroke. It is my opinion based on the evidence that Dianne likely suffered a cardioembolic stroke cause by atrial fibrulation in accordance with Doctor Spence’s evidence.

[82] The plaintiffs allege through Dr. Rosenthal that Dr. Kilmurry should have consulted a haematologist before proceeding with the operation because of Dianne’s known condition of ET. However the evidence is that her ET was well controlled by the medication prescribed by Dr. MacEachern of hydrea and aspirin. Dr. Kgoma testified if he had been consulted that he would not have advised that Dr. Kilmurry do anything other than what he did. The plaintiffs did not call Dr. MaxEachern, a haematologist, although they had her under summons. I draw an inference pursuant to the case law that her evidence would not have advanced their case.

[83] Dr. Spence supported his opinions with peer reviewed medical academic literature. Mr. Kenney in response to an objection by Ms. Lewis that Dr. Rathbone was expressing an opinion without it being based on medical academic literature of which the defence had been given notice said the following:

“Dr. Rathbone has a lot of knowledge within his head and it probably includes many articles and research that he’s read or done himself” (Transcript September 15 p. 78)

This is the approach to expert evidence that was taken in some courts that led to the terrible injustices in the cases involving Charles Smith and in Truscott. I agree with counsel for Dr. Kilmurry that this is not the appropriate approach. The opinion of a medical expert may contradict the opinion of another medical expert on a complicated medical issue which is far beyond the understanding of the court. Where that expert supports his opinion with peer reviewed academic medical literature and the other expert does not produce such literature the court must prefer the opinion of the former. I refer to the passages from Mohan, Olscamp and Truscott referred to above. There is the evidence regarding Dianne’s blood count referred to above. I find the evidence of Dr. Spence compelling. I accept his evidence and opinion over that of Dr. Rathbone. I am of the opinion on a balance of probabilities that Dianne’s stroke was cardioemblic. It was caused by a blood clot in the heart that embolized to the brain. It had nothing to do with ET and nothing to do with the damage to her esophagus.

[84] The plaintiffs have failed to prove on a balance of probabilities that but for the injury to Dianne’s esophagus sustained on August 14, 2009 she would not have suffered the stroke on September 21, 2009.

23. Result

[85] The plaintiff’s action is dismissed. Dr. Kilmurry may make written submissions on costs by January 13, 2017. The plaintiffs may have 10 days to respond and Dr. Kilmurry may have 5 days to reply.

P.B. Hambly J.

Released: December 19, 2016

CITATION: Bauer v. Kilmurry, 2016 ONSC 7749

COURT FILE NO.: CV-11-00000693-0000

DATE: 2016/12/19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Diane Bauer and John Bauer

Plaintiffs

• AND –

Debbie Nantais, Dr. Matthew Kilmurry, Dr. Stephen Bonney, Dr. Mohamed Hassan Hassan, Dr. Almna Masood, Dr. Nalayini Balendran, Jane Doe, John Doe and Grand River Hospital

Defendants

REASONS FOR JUDGMENT

P.B. Hambly J.

Released: December 19, 2016