COURT FILE NO.: 13-CV-19908 DATE: 20170301 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KEVIN WILLIAM SIVELL and WENDY SIVELL Plaintiffs – and – AHMED SAAD OMAR SHERGHIN and HOTEL-DIEU GRACE HOSPITAL Defendants

Counsel: Daniela M. Pacheco, for the Plaintiffs Junior Sirivar and Andrew Kalamut, for the Defendant Ahmed Saad Omar Sherghin No one else appearing

HEARD: March 14, 15, 16, 17, 18, and May 16, and 19, 2016.

REASONS FOR JUDGMENT

HOWARD J.

Overview

[1] In this medical malpractice action, the plaintiffs allege that the defendant Dr. Ahmed Sherghin, a urologist practising in Windsor, was negligent in the provision of care and treatment of his patient, the plaintiff Kevin Sivell.

[2] In particular, the plaintiffs allege that Dr. Sherghin breached the standard of care by conducting a surgical procedure known as a trans-urethral resection of the prostrate or TURP in a negligent manner, which, the plaintiffs say, rendered Mr. Sivell totally and continuously incontinent of urine.

[3] As of the date the TURP was performed in July 2008, Mr. Sivell was a 59-year-old man, who had been employed with the Windsor Police Services for some 35 years, ultimately as a Supervisor of Special Constables. He was married to the plaintiff Wendy Sivell, who is also a law enforcement officer, and with whom he had been in a loving relationship for some 20 years. He was a hard-working, active, and vibrant man.

[4] However, Mr. Sivell also had a long-standing history of prostate issues, including prostatitis (inflammation of the prostate gland), dating back to the early 1990s. Indeed, the evidence of Mr. Sivell was that he first began having symptoms when he was in his twenties. Prostatitis was diagnosed again in 1996. Prostatitis can result in the enlargement of the prostate gland.

[5] The evidence indicates that when Mr. Sivell first consulted Dr. Sherghin, he had been suffering from prostatitis and the enlargement of his prostate for several years. Mr. Sivell complained of symptoms associated with an enlarged prostate gland, including urinary urgency, frequency, and nocturia (waking up at night to urinate).

[6] It is common ground that Mr. Sivell was suffering from a condition known as benign prostatic hyperplasia or BPH, where the prostate has grown so large that it compresses the urethra, causing difficulty with the voiding of urine from the bladder. BPH commonly presents with not only such obstructive symptoms (i.e., reduced urine flow, dribbling, and hesitancy) but also irritative urinary symptoms.

[7] Accordingly, on July 15, 2008, Dr. Sherghin performed a TURP in order to remove the excess prostatic tissue that was blocking the flow of Mr. Sivell’s urine. The parties agree that, consistent with the evidence of each of their respective experts, the TURP procedure was the “gold standard” surgical intervention for BPH in 2008.

[8] Prior to undergoing the TURP, Mr. Sivell was aware of the material risk of incontinence associated with the procedure, a risk that both the plaintiffs’ and defendant’s experts agreed can occur regardless of any negligence in the execution of the procedure.

[9] The position of the plaintiffs is that Dr. Sherghin breached the standard of care in the performance of the TURP, in that, contrary to both his own intention and the recommended standard practice, Dr. Sherghin “resected far beyond where he should,” i.e., distal to the “important landmark” of the verumontanum, and, “in doing so, Dr. Sherghin damaged the external sphincter and rendered Kevin totally and continuously incontinent of urine.” [1]

[10] In particular, the plaintiffs allege that the negligence of Dr. Sherghin caused Mr. Sivell to suffer “total incontinence,” which, all parties agree, presents as constant and continuous incontinence. [2] Total incontinence may be caused by some dysfunction of the external sphincter, either neurological, muscle weakness, or damage, including, for example, suffering a transection of the external sphincter.

[11] The defendant denies that Mr. Sivell suffered from total incontinence. The defendant’s position is that “Mr. Sivell’s incontinence is not the result of a breach of the standard of care, but occurred as an unfortunate, but known, complication of the procedure that he agreed to undergo.” [3]

[12] Pursuant to a consent order dated June 10, 2013, the action against the defendant Hôtel-Dieu Grace Hospital and all cross-claims as between the defendants were dismissed without costs.

[13] In advance of trial, the parties resolved the issue of damages. The only issue before the court is liability.

[14] For the reasons that follow, I am compelled to dismiss the plaintiffs’ action. In my view, the plaintiffs have not met their evidentiary burden of establishing, on a balance of probabilities, that Dr. Sherghin breached the standard of care or that, but for the conduct of Dr. Sherghin, Mr. Sivell’s condition would not have occurred.

Factual Background

[15] I do not propose to summarize the evidence of each of the witnesses who testified before me over this seven-day trial. Both parties filed quite extensive final written argument, in which each of them provided useful summaries of the evidence of the witnesses at trial. As well, the parties jointly prepared an agreed-upon chronology of relevant events, which was filed at trial. [4] There is no need to repeat all of that detail here.

[16] That said, it is useful to review certain events in the factual background to this case, and I will then deal with the particulars of the critical evidence in the course of analyzing the legal issues.

Dr. Sherghin’s background

[17] At the time of his interactions with Mr. Sivell, Dr. Sherghin was a practising urologist with privileges at both the defendant Hôtel-Dieu Grace Hospital and Windsor Regional Hospital. Dr. Sherghin graduated from medical school in Benghazi, Libya, in 1980, and from 1980 to 1982, he completed surgical internships at various hospitals in Benghazi.

[18] Dr. Sherghin moved to Canada in 1984 and completed his residency in urology at the University of Toronto in 1989. The following year, he became a Fellow of the Royal College of Physicians and Surgeons of Canada, with a specialist designation in urology.

[19] Dr. Sherghin returned to Libya in 1991, where he practised as a urologist in Benghazi until 1997. During that same time, he also taught urology as an assistant and subsequently associate professor at the Garyounis Medical School in Benghazi.

[20] Dr. Sherghin returned to Canada in 1997 and moved to Saskatchewan, where he practised as a community urologist until 2002, at which time he moved to Windsor and continued to practise as a community urologist out of his own clinic, as well as at both the Hôtel-Dieu and Windsor Regional hospitals.

[21] The evidence of Dr. Sherghin was that he has been performing the TURP procedure since the days of his practice in Libya in the early 1990s and that he also performed the procedure during his practice in Saskatchewan. As of the time of his interactions with Mr. Sivell, Dr. Sherghin was performing approximately 25-30 TURP procedures each month. I find that at the time of his involvement with Mr. Sivell, Dr. Sherghin was an experienced urologist with considerable experience performing the TURP procedure.

Mr. Sivell’s past urological issues

[22] As referenced above, Mr. Sivell’s earliest recollection of his prostate and urinary issues dates back to when he had prostatitis sometime in his twenties (i.e., sometime in the period 1969-1979). [5] Mr. Sivell’s evidence as to his prostate health in his twenties, given in examination-in-chief, was that the first urologist he had seen was one Dr. Henderson, who diagnosed him with prostatitis, which he understood and was told involved “an enlargement of my prostate.” [6]

[23] In 1996, Mr. Sivell’s family physician referred him to the late Dr. Richard N. Boyd, a community urologist practising in Windsor. In his consultation note of April 8, 1996, Dr. Boyd recorded that Mr. Sivell suffered from “a history of recurrent prostatitis” and that, inter alia, he had previously undergone a cystoscopy.

[24] On April 12, 1996, Dr. Boyd performed a cystoscopy and noted that there was evidence of prostatitis and “early lateral lobe hypertrophy.” [7]

[25] On October 14, 1997, Dr. Boyd performed a urological examination on Mr. Sivell, noting that he suffered from occasional nocturia. [8] I note that each of the experts of both parties testified that nocturia is a symptom associated with BPH. Dr. Boyd also noted that “there is a strong family history of prostate malignancy as his father had previous prostate cancer.” [9]

[26] In 2001, Mr. Sivell’s family physician referred him to Dr. Boyd for investigation of blood in his semen. On February 23, 2002, Dr. Boyd assessed Mr. Sivell and attributed his bloody semen to prostatitis/seminal vesiculitis.

[27] On September 28, 2004, Mr. Sivell was again referred to Dr. Boyd to assess right groin pain associated with urinary urgency and pressure. Mr. Sivell recalled complaining of urinary frequency and urgency. These symptoms are consistent with BPH.

[28] In 2004, Mr. Sivell saw his family physician six times between March and November 2004 to complain of right groin pain and urinary urgency and frequency, particularly at the appointment of March 29, 2004. At his appointment on September 28, 2004, Mr. Sivell complained of urinary pressure and urgency.

[29] In early 2008, Mr. Sivell again complained of groin pain to his family physician. He testified that his groin pain symptoms in 2008 were not as bad as the symptoms of his prostatitis, which gave him the sensation of having to urinate without being able to do so. He reported having difficulty emptying his bladder when he was urinating and had symptoms of nocturia.

[30] Accordingly, the family physician made a further referral back to Dr. Boyd, who, unfortunately, had since passed away. Mr. Sivell then requested that he be referred to Dr. Sherghin, as Dr. Sherghin had previously treated his father.

[31] In sum, based on Mr. Sivell’s medical history prior to his encounter with the defendant and, in particular, the cystoscopy performed by Dr. Boyd on April 12, 1996, I find that Mr. Sivell had been experiencing prostate hypertrophy since at least 1996.

May 15, 2008: Mr. Sivell’s first consultation with Dr. Sherghin

[32] Mr. Sivell attended a consultation appointment with Dr. Sherghin on May 15, 2008, when he met the defendant for the first time. As Dr. Sherghin testified in examination-in-chief, and Mr. Sivell admitted in cross-examination, neither gentleman has an independent recollection of what exactly was said at that first appointment. Dr. Sherghin relied on his clinical notes, which were made contemporaneously, and his usual practice.

[33] That said, it is common ground that Dr. Sherghin took a medical history from Mr. Sivell during the first consultation. It is apparent from the medical records that Dr. Sherghin noted a history of prostatitis and a “large residual,” meaning that there was a large volume of urine that remained in the bladder following urination. Dr. Sherghin also noted a history of “nocturia 1+”, “frequency ++”, and “urgency +”. [10]

[34] Dr. Sherghin also reviewed the urinalysis laboratory work, which was normal, and the ultrasound that had been performed, which indicated a pre-voiding bladder volume of 494 cc and a post-voiding bladder volume of 221 cc, meaning that barely half of Mr. Sivell’s bladder was voiding when he urinated

[35] Dr. Sherghin performed a physical examination of Mr. Sivell, which included a digital rectal examination. He noted that the prostate was large and soft, with no nodules and no tumors. Dr. Sherghin testified that his notation of “2 RO” indicates that the prostate was twice the normal size.

[36] Dr. Sherghin recommended that Mr. Sivell undergo a cystoscopy to help determine the cause of the symptoms. A cystoscopy is a diagnostic procedure that involves the insertion of a small camera up the urethra and into the lower urinary tract, allowing for the visualization of the lower urinary tract. Dr. Sherghin explained the possible risks of the procedure, and Mr. Sivell agreed to proceed with the cystoscopy.

May 28, 2008: Dr. Sherghin performs a cystoscopy

[37] On May 28, 2008, Dr. Sherghin performed the cystoscopy at Hôtel-Dieu Grace Hospital. [11]

[38] Immediately following the procedure, Dr. Sherghin prepared a handwritten note and then dictated an operative report. In his handwritten note, Dr. Sherghin recorded that Mr. Sivell had a “very, very large prostate” involving both the median and lateral lobes. In his operative report, Dr. Sherghin noted that the prostate was very large and that the lateral and median lobes were also very large. The median lobe was protruding into the bladder.

[39] I pause to note, again, that during the cystoscopy performed on April 12, 1996, Dr. Boyd identified evidence of early lateral lobe hypertrophy.

[40] Dr. Sherghin’s operative report also records that the bladder showed “severe trabeculation.” Trabeculation of the bladder refers to the thickening or strengthening of the bladder muscle over time as a result of its over-exertion in attempting to pass urine through a restricted or obstructed urethra. This can occur when the urethra is obstructed by prostate tissue, as in BPH. Put another way, Dr. Sherghin believed that Mr. Sivell’s bladder muscles had become incredibly strong through years of over-exertion in order to compensate for the long-standing blockage caused by the enlarged prostate. Dr. Sherghin testified that the trabeculation he observed during the cystoscopy was a typical sign of over-activity of the bladder. Dr. Sherghin believed that the increased strength of the bladder also rendered it “over-active”.

[41] During the cystoscopy, Dr. Sherghin also observed that the sphincter was functioning well. Dr. Sherghin testified that he was able to determine that the sphincter was contracting, as Mr. Sivell was not under deep sedation. His operative report states that Mr. Sivell had a “well-functioning external sphincter.”

[42] The external sphincter is a muscle that surrounds the urethra just below the prostate and forms part of the pelvic floor. Through contraction of the muscle, the external sphincter controls whether or not the urethra is open and, therefore, whether or not urine can flow through the urethra and out of the body. The external sphincter consists of striated muscles, which can be contracted and relaxed under voluntary control. In normal circumstances, the external sphincter is voluntarily relaxed during voiding to allow urine to pass through the urethra. As Dr. Sherghin testified, the external sphincter is the “control for incontinence.”

[43] Having performed the cystoscopy, Dr. Sherghin concluded that Mr. Sivell’s urinary symptoms were the result of an enlarged prostate. He diagnosed Mr. Sivell with BPH, which was the presumed cause of the prostate’s enlargement and obstruction of the urethra.

June 5, 2008: Follow-up appointment to discuss treatment options

[44] On June 5, 2008, Mr. Sivell attended a follow-up appointment with Dr. Sherghin to discuss the findings of the cystoscopy. Again, neither gentleman has an independent recollection of what was said; indeed, Mr. Sivell conceded on cross-examination that he does not recall attending the appointment.

[45] Dr. Sherghin testified that, consistent with his usual practice, he would have explained to Mr. Sivell that his enlarged prostate was obstructing the flow of urine, which was causing his symptoms. Mr. Sivell recalled that at some point following the cystoscopy, Dr. Sherghin advised him that he had two options to treat his obstructive urinary symptoms and nocturia: he could take prescription medication or he could undergo a surgical procedure to reduce the size of the prostate, i.e., the TURP.

[46] The TURP procedure involves inserting a specially designed resectoscope through the urethra into the bladder and prostate area. The obstructive prostate tissue is then removed by an electrocautery blade.

[47] Dr. Sherghin also prepared a drawing for Mr. Sivell, illustrating how the TURP procedure would be carried out. Dr. Sherghin testified that it is his standard practice to explain the potential risks of the TURP to the patient, which include bleeding, blood clots, infection, strictures, retrograde ejaculation, TUR syndrome, and the long-term risks of impotence and incontinence. Mr. Sivell testified that he was also provided with a brochure by Dr. Sherghin explaining the TURP procedure and the risks associated with it.

[48] Mr. Sivell then informed the doctor that he wanted to take some time to think about whether he wished to proceed with the TURP procedure. Dr. Sherghin’s clinical notes reflect this.

[49] Following the appointment with Dr. Sherghin, Mr. Sivell conducted his own research (through the internet) into the risks and benefits of the TURP. He learned that there were “a lot of risks” and, specifically, that “incontinence was a risk.” It is clear that, through either or both of his own internet research or the pamphlet he received from Dr. Sherghin, Mr. Sivell understood that there was a risk that he would be unable to control his bladder function as a result of the TURP procedure.

[50] On June 24, 2008, Mr. Sivell returned to Dr. Sherghin’s office to read and sign the informed consent form, which he signed, indicating that he understood the material risks and complications of the TURP procedure.

July 15, 2008: Dr. Sherghin performs the TURP

[51] On July 15, 2008, Mr. Sivell underwent the TURP, under spinal anaesthetic, at Hôtel-Dieu hospital. Dr. Sherghin does not have an independent recollection of performing the procedure but relies, again, on his clinical notes and usual practice.

[52] The operative report, dictated by Dr. Sherghin the same day the procedure was performed, indicates that the procedure was performed without any intra-operative complication. Dr. Sherghin testified that had anything out of the ordinary occurred during the procedure, he would have made a note of it in his operative report. The report describes the resection of the prostate from the 1 o’clock to 11 o’clock positions, from the bladder neck “up to the verumontanum” for the medial lateral lobe. The anterior lobe was then resected separately. Approximately 15 grams of prostatic tissue was removed during the procedure.

[53] Dr. Sherghin testified that he did not resect below the verumontanum during the TURP procedure. There is no mention in the operative report of a resection distal to or beyond the verumontanum.

[54] Dr. Sherghin also testified that, in certain circumstances, he does resect below the verumontanum, but it is the “very rare” patient whose circumstances require resection beyond the verumontanum. The circumstances justifying such resection are where the prostatic tissue is obstructing the urethra below the verumontanum. However, Dr. Sherghin agreed in cross-examination that Mr. Sivell’s circumstances presented no reason to resect beyond the verumontanum. Dr. Sherghin’s evidence is that he had no intention of resecting beyond the verumontanum; he resected “up to the level of the verumontanum, but not beyond that.”

[55] Mr. Sivell remained in hospital, recovering post-operatively for two days. The hospital records indicate that after his catheter was removed, Mr. Sivell complained that he was “not able to control urination” and of having “no urinary control.” Both Dr. Sherghin and Dr. Buckley (the defence expert) testified that such leakage is very common in the days or weeks following a TURP procedure, as the bladder strength overcomes the strength of the external sphincter. Dr. Sherghin’s evidence was that it would be expected that Mr. Sivell would have leakage following the procedure and the removal of the blockage, given the state of severe trabeculation of his bladder.

[56] That is, just as Dr. Sherghin believed that the muscles in Mr. Sivell’s bladder had become larger and stronger in order to compensate for the long-standing blockage caused by Mr. Sivell’s enlarged prostate, Dr. Sherghin also believed that, conversely, the muscles in his external sphincter had been under-utilized for years and, not having had to work as hard due to his enlarged prostate, those sphincter muscles had become weaker over time as his prostate became larger in size and his bladder became stronger.

[57] Put differently, the muscles in the external sphincter had atrophied because for years their work had been done by Mr. Sivell’s enlarged prostate, i.e., the BPH.

[58] Mr. Sivell was discharged from hospital on July 17, 2008. Prior to discharge, Dr. Sherghin made an order that the nursing staff provide Mr. Sivell with absorbent pads. The doctor’s evidence was that it was not his normal practice to order an absorbent pad for a patient after a TURP.

July 2008 to February 2009: Post-TURP care and treatment

[59] Mr. Sivell was under Dr. Sherghin’s care from May 2008 to February 2009. Dr. Sherghin testified that following a TURP procedure, his usual practice is to have the patient attend at his office for post-operative follow-up appointments at four weeks after the procedure, then three months after the first appointment, and then six months after the second.

[60] I note that neither expert called by the parties was critical of Dr. Sherghin’s post-operative care. On the contrary, both experts – including the plaintiffs’ expert – opined that it met the standard of care.

[61] Mr. Sivell testified that following his discharge from hospital, he was able to pool his urine while sitting but bending or moving would cause leakage. Mr. Sivell testified that he informed Dr. Sherghin of his leakage.

[62] Mr. Sivell was asked in examination-in-chief how he managed his leakage following his discharge from hospital. He testified that he used various products, such as, adult diapers, women’s maxi-pads, and panty liners. He said that on average he used approximately five to six adult diapers and/or women’s maxi-pads per day, depending on his level of activity. At night, he placed continence pads on his bed; ultimately, he and his wife started to sleep in separate bedrooms. Mr. Sivell recalled at least four occasions where his urinary incontinence was so bad that it leaked through his maxi-pads and soiled his clothing.

[63] That said, while Mr. Sivell’s evidence spoke of extensive leakage, he did not testify as to constant, continuous, and uncontrollable incontinence.

[64] Following the TURP procedure, Mr. Sivell next saw Dr. Sherghin on July 21, 2008. During this appointment, Dr. Sherghin shared the results of the pathology report of the removed prostate tissue: happily, there was no malignancy of the tissue.

[65] Mr. Sivell has no recollection of what he said to Dr. Sherghin at the July 21st appointment. However, the contemporaneous medical records indicate that Mr. Sivell had two complaints. His first complaint was that of leaking. Dr. Sherghin noted this as “+ leakage +”. Dr. Sherghin prescribed a medication (Detrol) in order to treat the leakage. The expert evidence was that it is common for patients to experience leakage following a TURP because the bladder muscle would remain over-active or overly strong since it had been compensating for the obstruction caused by the enlarged prostatic tissue, now removed. The Detrol medication helps to reduce the over-activity of the bladder.

[66] The second complaint voiced by Mr. Sivell at the July 21st appointment was leg pain. Dr. Sherghin performed a physical examination of Mr. Sivell, noting that he showed no signs of tenderness or deep vein thrombosis. He then prescribed antibiotics to treat a possible infection and instructed Mr. Sivell to return in one month for follow-up.

[67] However, three days later, on July 24, 2008, Mr. Sivell returned to Dr. Sherghin, complaining of dysuria (a burning sensation when urinating). Mr. Sivell also complained of a pain in his scrotum and penis, and that he had passed blood clots in his urine.

[68] Dr. Sherghin does not have an independent recollection of the appointment, but his clinical notes (made contemporaneously) do not record that Mr. Sivell was complaining of leakage at this appointment. The evidence of Dr. Sherghin was that if Mr. Sivell had complained of leakage, he would have noted it in the patient’s chart, as he had done for the previous visit and in accordance with his usual practice.

[69] Dr. Sherghin examined Mr. Sivell and found an infection of the meatus (the opening of the urethra at the tip of the penis). Dr. Sherghin prescribed an antibiotic ointment to treat the infection.

[70] On August 15, 2008, Mr. Sivell attended at Dr. Sherghin’s office and complained of continued dysuria. He indicated that he was waking up twice during the night to urinate and had frequency during the day. The evidence of both Dr. Sherghin and the defence expert was that such complaints are symptomatic of bladder over-activity. The testimony of the plaintiffs’ expert did not contradict this testimony.

[71] During the August 15th appointment, Mr. Sivell did not describe any leakage or incontinence. Dr. Sherghin testified that the symptoms of urgency and nocturia described by Mr. Sivell were consistent with what a patient with severe trabeculation would experience following a TURP procedure.

[72] Dr. Sherghin prescribed Detrol to address the over-activity of the bladder and prescribed the same antibiotic ointment to continue to treat the infection of the meatus. Mr. Sivell was instructed to return for the three-month appointment or earlier should he have any concerns in the intervening period.

[73] On October 28, 2008, Mr. Sivell met with a health professional from Community Care Access Centre (“CCAC”) and completed a continence assessment form. (Following the TURP and until January 2009, Mr. Sivell was seen on a number of occasions by CCAC staff.) In this assessment, Mr. Sivell stated that he did not have to rush to the bathroom when he felt the urge to urinate and that it varied how long he could hold his urine after first feeling the urge to urinate. Mr. Sivell also noted that he felt that he could completely empty his bladder when he urinated, that he was aware of the desire to void, and that he was aware of urine being passed.

[74] In his testimony at trial, Mr. Sivell confirmed that he could hold his urine longer or shorter depending on the circumstances, testifying in cross-examination that, “[d]epending if I’m sitting. If I sit in a chair and I collect, I don’t leak, I don’t move, then yeah it would vary. I would have a lot of urine in me.” [12]

[75] The defence expert testified that the symptoms as described by Mr. Sivell are not consistent with a diagnosis of total incontinence. The plaintiffs’ expert did not consider or comment on this aspect of the evidence of Mr. Sivell at trial.

[76] On November 24, 2008, Mr. Sivell attended for his scheduled three-month follow-up appointment with Dr. Sherghin. To be clear, the next time Dr. Sherghin saw Mr. Sivell after the August 15th appointment was the November 24th appointment. The evidence is that Mr. Sivell did not see either Dr. Sherghin or his own family physician for the three-month period between August 15 and November 28, 2008. In other words, there is no evidence that Mr. Sivell complained of incontinence to either Dr. Sherghin or his family doctor during that three-month period.

[77] However, at the November 24th appointment, Mr. Sivell complained of dribbling and some urge incontinence. Dr. Sherghin’s clinical notes record “dribbling +++” and “+ urge incontinence.” Mr. Sivell did not complain of dysuria at the appointment.

[78] I pause at this juncture to describe the distinction between “urge incontinence” and “stress incontinence” that was presented in evidence. For these purposes, I am content to adopt the definition of “urge incontinence” that is set out in the Plaintiffs’ Final Argument, as follows:

Urgency is caused by contraction of the bladder with a sudden increase in pressure and is experienced as a sensation or desire to urinate. “Urge incontinence” is leaking or dribbling that may occur after a person feels that urge. Urge incontinence is typically managed with anticholinergic medication that helps to relax the bladder muscle, making the bladder muscle spasm less. [13]

[79] “Stress incontinence” may be described as follows:

Stress incontinence occurs when pressure is placed on the bladder and the external sphincter cannot hold the pressure. Stress incontinence can occur with the pressure created by physical movement, such as coughing, sneezing or jumping. Stress incontinence is not black and white, but may present in various degrees.

Stress incontinence in men is very rare and usually occurs when there is an insult or damage to the external sphincter.

All stress incontinence in a male has something to do with the external sphincter. Stress incontinence in men may be treated with the implantation of an artificial urinary sphincter. [14]

[80] Returning to the appointment on November 24, 2008, the evidence of Dr. Sherghin was that he suspected Mr. Sivell may have suffered from meatal stricture or urethral stricture. He testified that at the time he did not suspect any sphincter dysfunction due to Mr. Sivell’s description of “dribbling”; he believed that if there was any sphincter dysfunction, Mr. Sivell would have described a free flow of urine at all times.

[81] Dr. Sherghin advised Mr. Sivell that the best method to determine the cause of the dribbling and urgency would be to perform a further cystoscopy. Mr. Sivell consented.

[82] On December 2, 2008, Dr. Sherghin performed the second cystoscopy on Mr. Sivell at Hôtel-Dieu hospital without any apparent complications. In the operative report that he dictated that day, Dr. Sherghin recorded the pre-operative diagnosis as “incontinence,” in reference to Mr. Sivell’s complaints of dribbling and urgency at the November 24th appointment.

[83] Prior to performing the cystoscopy, Dr. Sherghin completed a “History and Physical” report as required by hospital policy. The report was dictated on November 29, 2008. In it, Dr. Sherghin recorded that the admitting diagnosis was “post TURP dribbling.” He explained that following the TURP, Mr. Sivell had “some element of frequency where he has been started on Detrol but recently he started dribbling a lot with some urge incontinence and nocturia.”

[84] I pause to note that, as defence counsel submitted, it is significant that Dr. Sherghin’s post-operative diagnosis of “urge incontinence” is not impugned. Again, the experts for both parties agreed that Dr. Sherghin’s post-operative treatment of Mr. Sivell met the standard of care.

[85] In performing the cystoscopy, Dr. Sherghin noted that the meatus was tight and had to be dilated in order to open up the meatal stricture. Dr. Sherghin testified that this was a painful procedure and, accordingly, Mr. Sivell was given a much higher dose of anaesthetic than he had received during his previous cystoscopy. Mr. Sivell received 2.5 mg of Versed and 300 mg of Fentanyl (three times the amount he had received during the May 28, 2008, cystoscopy).

[86] During the cystoscopy, Dr. Sherghin observed the external sphincter to be not well functioning, though it was continuing to contract. The evidence of Dr. Sherghin was that he would not expect the sphincter to be seen contracting well because of the high amount of sedation that Mr. Sivell was given for the procedure. Dr. Sherghin’s testimony on point is consistent with the opinion of the plaintiffs’ expert, who testified that the degree of sedation given to a patient affects the appearance of the functioning of the external sphincter. The defence expert agreed that the level of sedation would certainly affect the appearance of the functionality of the external sphincter (beyond the limitation that a cystoscopy provides no objective evidence of sphincter function).

[87] The cystoscopy also showed a narrowing of the bladder neck, i.e., bladder neck stenosis.

February 3, 2009: Dr. Sherghin performs the TURBN

[88] On January 23, 2009, Mr. Sivell attended at Dr. Sherghin’s office to discuss the findings of the cystoscopy. Dr. Sherghin advised Mr. Sivell of the results of the cystoscopy and the bladder neck stenosis.

[89] Dr. Sherghin recommended a procedure known as a trans-urethral resection of the bladder neck or TURBN to address the bladder neck stenosis. A TURBN is a surgical procedure that involves a surgeon resecting the proximal portion of the prostate closest to the bladder neck to remove an obstruction. Dr. Sherghin also recommended additional resection of the prostate to assist with any residual obstructions, as the bladder neck had narrowed following the resection of the prostate. Dr. Sherghin made another drawing for Mr. Sivell to explain the procedure and how it would be performed.

[90] After Dr. Sherghin discussed the potential risks and complications of the TURBN, Mr. Sivell consented to the procedure.

[91] On February 3, 2009, Dr. Sherghin performed the TURBN, together with a trans-urethral resection of the residual prostate, at Hôtel-Dieu hospital. Prior to performing the procedure, Dr. Sherghin again completed a History and Physical report as required by hospital policy. In it, Dr. Sherghin recorded that prior to seeing Dr. Sherghin, Mr. Sivell suffered from “severe frequency, nocturia, urgency and hesitancy with decrease in urinary stream.” He also recorded that Mr. Sivell had developed “some leakage” following the TURP.

[92] In the course of the procedure, Dr. Sherghin incised the bladder neck at the 7 o’clock position up to the apex of the prostate. The area resected included the bladder neck and the anterior and median lobe of the prostate, which is located around the bladder neck. Approximately 5 gm of tissue was resected during the procedure.

[93] Mr. Sivell remained in hospital for routine follow-up until his catheter was removed; he was discharged on February 5, 2009.

[94] Mr. Sivell’s last appointment with Dr. Sherghin occurred on February 26, 2009, when he attended for his scheduled follow-up appointment after the TURBN. Dr. Sherghin reviewed the pathology report from the resected tissue with Mr. Sivell, which, again, happily, indicated no malignancy.

[95] At that time, Mr. Sivell complained of dysuria, nocturia, urgency, and urge incontinence. Mr. Sivell did not complain of uncontrollable, continuous leaking or total incontinence at this appointment.

[96] Dr. Sherghin prescribed a medication (Vesicare) to treat the over-activity of Mr. Sivell’s bladder. Dr. Sherghin also instructed Mr. Sivell to undertake Kegel exercises to strength his external sphincter. This is consistent with Dr. Sherghin’s diagnosis that the leakage Mr. Sivell was describing was the result of an over-active bladder coupled with a weak external sphincter.

[97] Following the February 26th appointment, Mr. Sivell never returned to see Dr. Sherghin again.

[98] Rather, it seems that one month earlier, on January 27, 2009, Mr. Sivell had an appointment with his family doctor, during which he said that he was displeased with the care he was receiving from Dr. Sherghin, and he asked for another referral to see a different urologist.

[99] I pause here to note, and I find on the evidence, that Mr. Sivell never complained of uncontrollable, continuous leaking to Dr. Sherghin during any of the eight encounters with him following the TURP procedure. While both gentlemen’s recollection of what was said during their encounters is not entirely reliable – which is quite understandable given the passage of time – I note that the medical records and contemporaneous clinical notes do not support the contention that Mr. Sivell told Dr. Sherghin that he was experiencing uncontrollable, continuous leaking or total incontinence.

[100] Mr. Sivell attended an appointment with another urologist, Dr. Britton Tisdale, on March 31, 2009. Mr. Sivell complained that he was having “lots of leakage,” though he continued to void with abdominal straining. In his clinical notes, Dr. Tisdale recorded that Mr. Sivell complained of dripping throughout the day and noted that:

Currently, this gentleman tells me he is having lots of urine leakage. He drips throughout the day. Any increase in abdominal pressure will increase the amount of leakage. When he does void, he tells me his stream is variable. It can be fast and slow. He does occasionally void with abdominal straining. Otherwise, his urine stream does stop and start. He does usually have to strain. He always has dripping at the end of voiding.

[101] Dr. Tisdale recommended a full evaluation to determine the cause of the incontinence. Ultimately, Mr. Sivell was referred to Dr. Sidney B. Radomski in Toronto.

May to August 2009: Referral to Dr. Radomski

[102] On May 6, 2009, Mr. Sivell attended an appointment with Dr. Radomski at Toronto Western Hospital. Both parties and their experts recognize the standing and expertise of Dr. Radomski in the field of urology. Indeed, defence counsel graciously described Dr. Radomski as “the recognized provincial expert on the issue.” [15]

[103] At the May 6th appointment, Dr. Radomski performed video-urodynamic testing on Mr. Sivell, which is the study of how the bladder and urethra are performing their function of storing and passing urine. The tests performed required that Mr. Sivell’s bladder be filled with 380 cc of water. (The evidence of the defence expert was that the typical bladder can hold up to 400 cc of fluid.) Dr. Radomski’s operative note indicates that it was not until Mr. Sivell’s bladder was filled to near normal capacity that he leaked due to bladder instability. When asked to void by Dr. Radomski, Mr. Sivell did so.

[104] Dr. Radomski interpreted the test results as demonstrating over-activity of the bladder and urge leakage, rather than pure stress incontinence. The relevant portion of his operative note reads as follows:

We stress tested him and it was hard to tell but to me it appeared that he had overactivity and urge leakage rather than pure stress incontinence. I am not convinced he has pure stress incontinence, although very hard to tell. … As a result, urinary diagnosis is overactivity of the bladder which is nonneurogenic [i.e., not from a neurological cause such as a stroke]. … He has urge leakage. There is a possibility that there is stress leakage but I am less convinced. I think it is mostly urge leakage.

[105] Dr. Radomski prescribed an anticholinergic medication (Ditropan) to treat the overactive bladder resulting in urge incontinence.

[106] I pause to note that Dr. Radomski’s findings and observations from the May 6th testing do not support the contention that Mr. Sivell suffered from constant, continuous, or uncontrollable leakage; they do not support the contention that Mr. Sivell suffered from total incontinence.

[107] On August 28, 2009, Mr. Sivell returned to Toronto Western Hospital for a second round of video-urodynamic testing. Dr. Radomski performed the testing, which required that Mr. Sivell’s bladder be filled to 400 cc of fluid. During this test, Dr. Radomski observed that Mr. Sivell leaked only when he underwent Valsalva manoeuvres, which involve the straining of the abdominal muscles. Again, when Dr. Radomski asked Mr. Sivell to void, he did so, empting 355 cc without any residual urine in the bladder. Dr. Radomski interpreted the results, noting that there was “stress leakage and possible urge.”

[108] Dr. Radomski’s operative note concluded with the following summary:

In summary, this patient had a stable bladder, although it wasn’t that clear. He did have stress leakage with decreased flow. We have discussed with the patient that the urinary sphincter [is] to be the next step in management and the patient will think about this option.

[109] Again, in my view, Dr. Radomski’s findings and observations from the August 28th testing do not support the contention that Mr. Sivell suffered from constant, continuous, or uncontrollable leakage, or total incontinence.

November 2009: Dr. Radomski inserts an artificial urinary sphincter

[110] On November 12, 2009, Mr. Sivell attended at Toronto Western Hospital and underwent a procedure for the insertion of an artificial urinary sphincter, performed by Dr. Radomski. An artificial urinary sphincter is a device used to replicate and replace the function of an external sphincter in men. During the procedure, a urethral cuff is implanted around the urethra, below the external sphincter. A balloon, which serves as a fluid reservoir as well as a pump, is also implanted. The device is opened and closed by patient control, by squeezing a pump implanted in the scrotum. The resting state of the device is “activated” or closed, which constricts the urethra and restricts the free flow of urine, thereby simulating a properly-functioning external sphincter.

[111] Dr. Radomski’s clinical note recorded that Mr. Sivell underwent a TURP, which left him with over-activity of the bladder and “stress urinary incontinence.” The evidence indicates that Mr. Sivell underwent the procedure without complication. He was discharged from hospital three days later, on November 15, 2009.

[112] On January 6, 2010, Mr. Sivell attended at Toronto Western Hospital, at which time Dr. Radomski activated Mr. Sivell’s artificial pump and demonstrated how to use the device. Thereafter, Mr. Sivell continued to see Dr. Radomski for routine follow-up care. Dr. Radomski’s clinical note of May 10, 2010, indicated that Mr. Sivell “does not have any problems operating the system.”

[113] On November 22, 2010, Mr. Sivell was again assessed by Dr. Radomski, at which time Dr. Radomski noted that Mr. Sivell had “very small volume urinary incontinence daily.” Dr. Radomski’s clinical note, dictated that day, recorded the following:

[The very small volume urinary incontinence] usually happens when he stands or sits down. He wears a pad daily and it gets wet, but not soaking. He has daily episodes of urgency as well. These usually do subside on their own and he does not usually have episodes of incontinence associated with this urgency. Previously performed urodynamics did document detrursor overactivity.

We are pleased with this patient’s progress. We are glad that he is using the device properly and that his incontinence is not worsening. Unfortunately, he does have some persistence of his incontinence that will likely last. It may also be related to his detrusor overactivity.

[114] Dr. Radomski’s note confirmed that the previous urodynamic testing showed detrusor (bladder) over-activity, which could account for the persistent incontinence that Mr. Sivell was experiencing. Dr. Radomski then prescribed Mr. Sivell with Detrol, the same medication that Dr. Sherghin had first prescribed to treat Mr. Sivell’s leakage following the TURP.

[115] On July 18, 2011, Mr. Sivell returned to see Dr. Radomski for a routine follow-up appointment. He told Dr. Radomski that he is “85-95% better” but that he leaks with physical activity. Dr. Radomski noted that Mr. Sivell drinks “lots of fluids because he plays a lot of sports” but feels the leakage was unchanged since the last visit. Dr. Radomski recommended a cystoscopy and video-urodynamics to determine if any further treatment was warranted.

August 17, 2011: Dr. Incze performs a cystoscopy

[116] On August 17, 2011, Dr. Peter Incze, the urologist retained by the plaintiffs to provide expert evidence at trial, performed a cystoscopy on Mr. Sivell.

[117] I deal with the observations of Dr. Incze below in the context of my analysis of the issue of the alleged breach of the standard of care by Dr. Sherghin. At this point, I merely note the timing of the cystoscopy performed by Dr. Incze because of its juxtaposition with the subsequent cystoscopy performed by Dr. Radomski some two months later, on October 25, 2011.

Post-October 2011: Dr. Radomski’s subsequent urological management of Mr. Sivell

[118] On October 25, 2011, Mr. Sivell attended at Toronto Western Hospital, and Dr. Radomski performed a further cystoscopy and video-urodynamic testing. Dr. Radomski’s clinical note recorded that Mr. Sivell has “leakage that is pretty significant on physical activity,” and so he presented for further evaluation “to make sure the device [i.e., the artificial urinary sphincter] is working adequately.”

[119] Dr. Radomski’s investigations revealed that only a few drops of urine were expelled when Mr. Sivell was asked to sit and stand multiple times. Dr. Radomski interpreted the results of the assessment as indicating that Mr. Sivell had neither stress nor urge incontinence. Dr. Radomski’s operative note recorded the following:

Inspection of the bladder was totally unremarkable and he was emptying very well. At this point urodynamic catheters were inserted into the bladder and rectum. He was then filled at a moderate rate to 401 cc. He was found to have a stable bladder and with stress testing, believe it or not, he had absolutely no stress urinary incontinence until we got him to sit and stand, sit and stand. He had a few drops. The device seems to be working very well. We then asked him to void. He voided a flow rate of 11 cc/s with a volume void of 391 cc and no residual. His voiding pressure was 16 cm of water. On videofluoroscopic imaging he had minimal stress urinary incontinence with standing up and sitting down and he emptied.

As a result, urinary diagnosis is stable bladder, normal compliance, normal sensation, he has mild stress leakage. He has an adequate flow, normal voiding pressure and empties.

[120] Dr. Radomski recommended that Mr. Sivell try to drink less fluid and avoid caffeinated beverages.

[121] Significantly, having performed a further cystoscopy only two months after the cystoscopy performed by Dr. Incze, Dr. Radomski made no note or observation of any over-resection of the bladder beyond the level of the verumontanum. Dr. Incze quite fairly acknowledged in cross-examination, and I find, that there would have been no difference in the anatomical presentation of Mr. Sivell’s prostate between the cystoscopic examination by Dr. Incze on August 17, 2011, and the examination by Dr. Radomski on October 25, 2011, two months later.

[122] On October 23, 2012, Mr. Sivell saw Dr. Radomski for a scheduled follow-up appointment. Dr. Radomski’s clinical note indicates that Mr. Sivell said his leakage “seemed a little bit worse than a year ago” and he was wearing six liners as opposed to two previously, but, as Dr. Radomski made a point of recording, Mr. Sivell “has a cold at present.” Dr. Radomski discussed possible further surgery relating to the artificial sphincter. His clinical note indicates that Mr. Sivell was “reluctant to have anything done at present, so he is going to think about it and get back to me. … My feeling is to see how he is after his cold subsides as 2 liners is not that bad. He is quite physical and that is when he leaks the most.”

[123] On October 22, 2013, Mr. Sivell saw Dr. Radomski for his next scheduled follow-up appointment. Dr. Radomski’s clinical note indicates that Mr. Sivell was “wearing a little bit less pads than previously, when he had a bad cold.” Mr. Sivell advised that he was using three or four liners per day and that he was leaking mostly during physical activity and when playing sports. Dr. Radomski again discussed the options of surgical interventions relating to the artificial sphincter, but Mr. Sivell was reluctant to proceed with further surgery.

[124] On October 21, 2014, Mr. Sivell was assessed by Dr. Radomski for his yearly follow-up appointment. At this appointment, Mr. Sivell indicated that his leakage was “a little bit worse” than the previous year, although Dr. Radomski’s clinical note indicates that Mr. Sivell said he was then wearing only two pads a day (down from the three to four liners that he was using as of October 2013). Dr. Radomski noted that previous video-urodynamic testing “did not show any significant leakage at all either stress or urge, and he had a stable bladder.” Nonetheless, Mr. Sivell indicated that he was considering revising the artificial sphincter device to insert either a tighter cuff or a double cuff. Dr. Radomski’s note indicated that he advised Mr. Sivell that should he decide to proceed with the revision procedure, Dr. Radomski “would like to repeat the urodynamic [testing] to see if he is actually worse or not.”

[125] On January 7, 2015, Mr. Sivell attended at Toronto Western Hospital for follow-up urodynamic testing by Dr. Radomski. Upon completion of the urodynamic imaging, Dr. Radomski concluded that Mr. Sivell did have some stress incontinence, “but it was very mild.” Dr. Radomski reported that Mr. Sivell had “minimal stress leakage” and “no urge leakage.” His operative note recorded the following:

He did have some bladder instability with a pressure of 25 cm of water, but he did not leak with it. He also did have stress incontinence, but it was very mild and it was at a very high leak-point pressure of over 200 cm of water.

He was then asked to void. He voided a flow rate of 13 cc/second with a volume void of 402 cc and no residual. His voiding pressure was low at 17 cm of water.

On video fluoroscopic imaging, he had minimal stress leakage. He emptied. He had no urge leakage.

As a result, our urodynamic diagnosis is an overactive bladder, which is non-neurogenic. He has normal compliance, normal sensation. He has minimal stress leakage which occurs at a very high leak point pressure. He has a normal flow, normal voiding pressure, and empties. He had no urge leakage.

[126] While I appreciate the January 7, 2015, appointment occurred years after the insertion of the artificial urinary sphincter on November 12, 2009, I would again note that it is plain that there is nothing in Dr. Radomski’s clinical notes or records of the January 2015 appointment that supports the plaintiffs’ contention that Mr. Sivell suffered from constant, continuous, or uncontrollable leakage, or total incontinence.

[127] I would also note, and underscore, that the plaintiffs did not call Dr. Radomski as a witness at trial on their behalf, even though he was one of Mr. Sivell’s treating specialist physicians. I regard that omission as telling, especially given that, as even the defence openly acknowledged, Dr. Radomski is “the recognized provincial expert on the issue” and he actually treated and examined Mr. Sivell.

[128] Finally, I accept the submissions made by defence counsel regarding the statements made by the various doctors in relation to the Disability Tax Credit forms they respectively completed for the Canada Revenue Agency (“CRA”) at Mr. Sivell’s request, as set out in the Defendant’s Final Argument. [16]

[129] In short, I acknowledge that Dr. Radomski completed a CRA Disability Tax Credit Application form in September 2010, in which he wrote under the heading “Diagnosis” that Mr. Sivell suffered from “stress urinary incontinence” and under the heading “Effects of Impairment” that Mr. Sivell “had total urinary incontinence from May 6/2009 to November 15/2009 at which time an artificial urinary sphincter was implanted.” However, I would underscore that this is the only time that Dr. Radomski – or any health professional ever treating Mr. Sivell – ever attached the term “total incontinence” to Mr. Sivell’s circumstances. Moreover, significantly, it is not recorded as Mr. Sivell’s diagnosis but merely the subjective effect that the stress incontinence had on him, which information comes from the information provided by the patient.

[130] Further, I find that there is nothing in the clinical notes or medical records of the various health care professionals who treated Mr. Sivell to support the contention that Mr. Sivell suffered from constant, continuous, or uncontrollable leakage, or total incontinence. Accordingly, to the extent that the statements set out in the CRA Disability Tax Credit forms (which, it should be recognized, are completed for a somewhat different purpose, and at the patient’s request) are said to depart from the actual clinical notes and records, I prefer to accept the evidence reflected in the contemporaneous clinical notes and medical records of the appointments with Mr. Sivell, none of which supports the plaintiffs’ central allegation that Mr. Sivell was suffering from constant, continuous, or uncontrollable leakage, or total incontinence.

[131] Indeed, Mr. Sivell was never diagnosed with total incontinence by any of his treating physicians. I accept the submission of defence counsel that had there been damage to the external sphincter caused by over-resection during the TURP, Mr. Sivell would have experienced a continuous leak, “like a faucet that cannot be turned off,” and would not have been able to control the flow of urine and prevent leaking.

[132] During the video-urodynamic studies performed by Dr. Radomski, Mr. Sivell’s bladder was filled to either near or full capacity. Mr. Sivell then voided urine when instructed to do so by Dr. Radomski. The evidence of the defence expert, which I accept, is that an individual with total incontinence would be unable to retain fluid and then void on command. That opinion was unchallenged at trial.

[133] Having considered all of the evidence presented at trial, including, in particular, the medical records of Dr. Radomski and the plaintiff’s own evidence at trial, I find that Mr. Sivell did not suffer from constant, continuous, or uncontrollable leakage, or total incontinence.

[134] Rather, I find that Mr. Sivell had a mixture of post-operative stress and urge incontinence following the TURP procedure. This was the opinion of the expert called by the defendant, Dr. Roger J. Buckley, which I accept. [17] Dr. Buckley’s diagnosis is consistent with a multi-factorial cause of the incontinence symptoms. In reaching that conclusion, Dr. Buckley relied on Mr. Sivell’s contemporaneous subjective reported symptoms to his treating physicians and other health professionals (Dr. Sherghin, Dr. Tisdale, and the CCAC), Dr. Radomski’s records and objective video-urodynamic test results, and Mr. Sivell’s testimony at trial.

Issues

[135] There is no real disagreement between the parties that in order for the plaintiffs to succeed in their action against Dr. Sherghin, they must discharge their evidentiary burden of establishing, on a balance of probabilities, the following:

a. an act or omission of Dr. Sherghin constituted a breach of the standard of care; and b. but for that act or omission of Dr. Sherghin, Mr. Sivell would not have suffered the alleged injury.

[136] Accordingly, the central issues for determination by this court are as follows:

a. have the plaintiffs established, on a balance of probabilities, that Dr. Sherghin breached the standard of care expected of a urologist practising in Ontario in 2008; and b. if Dr. Sherghin did not meet the applicable standard of care, have the plaintiffs established, on a balance of probabilities, that, but for Dr. Sherghin’s conduct, Mr. Sivell would not have suffered his condition of incontinence.

Analysis

Standard of Care: Have the plaintiffs established, on a balance of probabilities, that Dr. Sherghin breached the standard of care expected of a urologist practising in Ontario in 2008?

[137] At the outset of consideration of the alleged breach of the standard of care by Dr. Sherghin, it is appropriate to note those areas where the parties and their experts are agreed that Dr. Sherghin’s treatment of Mr. Sivell met the standard of care.

[138] In that regard, I note that the parties’ experts agree that:

a. Dr. Sherghin met the standard of care in his pre-TURP assessment of Mr. Sivell; b. Dr. Sherghin met the standard of care in the recommendation of the TURP to Mr. Sivell to address his symptoms; c. Dr. Sherghin met the standard of care in the disclosure of the material risks of the TURP; d. Dr. Sherghin met the standard of care in the performance of the TURP as described in his operative note of July 15, 2008. (Again, Dr. Sherghin’s operative note does not indicate that he resected beyond or distal to the verumontanum.); e. Dr. Sherghin met the standard of care in his post-operative follow-up care of Mr. Sivell; f. Neither expert takes issue with Dr. Sherghin’s recommendation and performance of the TURBN to release the bladder neck stricture and the resection of residual prostate; and g. Dr. Sherghin met the standard of care of the post-operative diagnosis of urge incontinence and the treatment of that condition with medication and Kegel exercises.

[139] The plaintiff’s sole criticism relates to Dr. Sherghin intra-operative care in the performance of the TURP. The plaintiffs’ theory of the case is that Dr. Sherghin resected prostatic tissue, along the left side, below or distal to the anatomical landmark of the verumontanum and, in doing so, damaged the external sphincter, resulting in Mr. Sivell’s total incontinence.

[140] In support of their theory of negligence, the plaintiffs rely on the cystoscopy performed by their expert, Dr. Peter Incze, on August 17, 2011.

[141] I note that Dr. Incze’s cystoscopy was performed more than three years after the TURP performed by Dr. Sherghin on July 15, 2008. Further, it is not without significance that Dr. Incze performed his cystoscopy after Mr. Sivell had already undergone two other fairly major urological procedures, one of which involved resection of additional prostatic tissue and the other that inserted an artificial urinary sphincter.

[142] That aside, I am troubled by certain features of Dr. Incze’s evidence or, rather, retainer.

[143] The plaintiffs retained Dr. Incze in 2010 by way of a letter of instruction dated July 21, 2010, from the plaintiffs’ lawyer at the time – not, I would emphasize, Ms. Pacheco, who appeared as counsel for the plaintiffs at trial – which letter appears to have misstated certain critical facts and suggested conclusions to Dr. Incze consistent with the lawyer’s theory of negligence. The letter of instruction provided the following:

In summary terms, Kevin Sivell has suffered from prostate difficulties throughout his life, and in July 2008, Kevin underwent a radical prostatectomy at the hands of Dr. Sherghin. He was rendered incontinent immediately following the surgery. Dr. Sherghin performed a second surgery in February 2009 to attempt to correct the incontinence, but to no effect. Dr. Sherghin prescribed medications, which in no way diminished Mr. Sivell’s symptoms.

Mr. Sivell then consulted with urologist Dr. Radomski for a second opinion, and was advised that his sphincter had been irreversibly damaged. Mr. Sivell subsequently underwent an artificial sphincter procedure under the care of Dr. Radomski. [18]

[144] It is common ground that Dr. Sherghin performed a TURP procedure on Mr. Sivell; he did not perform a radical prostatectomy. Nobody performed a radical prostatectomy on Mr. Sivell. A radical prostatectomy, as Dr. Incze acknowledged, is a much more invasive procedure that removes the entire prostate and carries with it a much higher rate of incontinence. Where a radical prostatectomy is performed, it would be expected that prostatic tissue below the verumontanum would be removed.

[145] Further, on the central issue of whether the TURP procedure damaged Mr. Sivell’s sphincter and caused incontinence, Dr. Incze was led to believe by the letter of instruction from the plaintiffs’ former lawyers that Dr. Radomski, the acknowledged provincial expert in such issues, had actually “advised” Mr. Sivell that his sphincter had been “irreversibly damaged.” There is simply no evidence to that effect. Mr. Sivell provided no such evidence at trial, and the plaintiffs, for their own reasons, elected not to call Dr. Radomski.

[146] Dr. Incze acknowledged under cross-examination that the sole purpose of the cystoscopy he performed was to determine whether over-resection beyond the verumontanum was the cause of Mr. Sivell’s alleged total incontinence.

[147] In these circumstances, I am concerned that Dr. Incze’s view of Mr. Sivell’s symptoms was shaped by the manner in which he was retained by the plaintiffs’ former counsel. I am concerned by the very real and very troubling prospect that Dr. Incze was prevented from conducting an objective examination because his letter of instruction asked him, in effect, to work backwards from an ultimate conclusion, i.e., that Mr. Sivell’s sphincter was damaged. This smacks of precisely the same “erroneous approach” that the Supreme Court of Canada said in St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, must be avoided. [19] I am concerned that Dr. Incze may not have considered any other outcomes outside of the mistaken parameters set for him by the plaintiffs’ former lawyers when performing his assessments. I am concerned that Dr. Incze may have perceived his task as requiring that he confirm the outcome given to him by Mr. Sivell’s former counsel.

[148] In this regard, I accept the following submissions of defence counsel as set out in the Defendant’s Final Argument:

The instructing letter started by incorrectly classifying the procedure that was performed on Mr. Sivell as a “radical prostatectomy”. It then provided Dr. Incze, under the guise of fact, the very conclusion that the defendants now contest in this litigation: that Mr. Sivell was rendered incontinent by irreversible damage to his sphincter caused by Dr. Sherghin’s care. In framing the instruction in this manner, plaintiffs’ counsel collapsed Dr. Incze’s objective inquiry and confused the issue by asking whether a specific positive act (i.e. the TURP’s damage to the sphincter) constituted a fault. As a consequence, Dr. Incze’s opinion is tainted with “hindsight bias”. Specifically, Dr. Incze performed an investigative cystoscopy to “help determine whether or not the incontinence was caused by [Mr. Sivell’s] TURP that could have extended beyond the usual margins.” Significantly, having concluded that operative note described a procedure that met the standard of care, Dr. Incze set about to establish that Dr. Sherghin did not, in fact, do what he describes in his operative note. [20]

[149] Moreover, Dr. Incze testified that from the time he was retained until well after he had written his first report, he did not understand, nor was he even aware of, his duties as an expert to be fair, objective and non-partisan, and to assist the court. [21] Compounding these concerns, the foundational reports underlying Dr. Incze’s opinions are not compliant with Rule 53 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Dr. Incze did not state in his expert report the documents upon which he relied to prepare it. At trial, he was unable to identify with any particularity those documents that he reviewed prior to preparing his report. Moreover, Dr. Incze did not complete a Form 53 before he completed his final report and was unaware of what his role as an expert entailed with respect to assisting the court by providing objective and unbiased evidence. See generally White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 192, where the Supreme Court of Canada held that expert witnesses have a duty to give fair, objective, and non-partisan opinion evidence and that they must be aware of and able and willing to carry out this duty. If the expert does not meet this threshold requirement, his or her evidence should not be admitted (at para. 10).

[150] In these circumstances, it strikes me that there is merit in defence counsel’s submission that Dr. Incze, in essence, worked backwards from the conclusion that the TURP caused Mr. Sivell’s incontinence. As the court held in Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.J.), aff’d 2010 ONCA 188, 260 O.A.C. 70, a plaintiff’s case that “applies an outcome-based retrospective approach and attempts to work backwards from the result of surgery in order to prove negligence is fundamentally flawed in law and contrary to admonitions in the case law.” [22] I accept the following submissions of defence counsel:

Dr. Incze set out to prove that Mr. Sivell’s incontinence was caused by damage to the sphincter, which in turn was a result of over-resection of the prostate. According to Dr. Incze, “it was very clear that the incontinence was caused by the TURP extending past the recognized margins and that caused damage to the external sphincter.” However, Dr. Incze conceded that he saw no damage to the external sphincter during the cystoscopy. He also conceded that his conclusions on this point were deduced from Mr. Sivell’s symptoms as described by Mr. Sivell himself. It is important to note that Dr. Incze did not consider Mr. Sivell’s trial evidence, which differed significantly from the evidence upon which he appears to have based his opinion.

Having been (incorrectly) advised in the initial retainer letter that Mr. Sivell had been told that his external sphincter had been “irreversibly damaged,” it is not surprising that Dr. Incze worked backwards to prove that that was the case. However, it is significant that he did not actually see any damage to the sphincter.

Accordingly, Dr. Incze’s analysis began on the false assumption that Mr. Sivell was totally incontinent, and had been totally incontinent since the performance of the TURP. [As explained in my reasons above], Mr. Sivell’s own testimony does not support that assumption.

[151] Further, leaving aside these foundational concerns about the perceived parameters of Dr. Incze’s inquiry, I also have concerns regarding the observations made by Dr. Incze during his cystoscopic examination of Mr. Sivell on August 17, 2011. In that regard, I accept the following submissions of defence counsel:

A cystoscopy is a visual inspection of the urinary bladder including the external sphincter. Dr. Incze performed a cystoscopy on Mr. Sivell in August of 2011. He took no pictures of Mr. Sivell’s anatomy during the cystoscopy. At trial, he relied completely on his memory and his records of the cystoscopy to opine as to whether Dr. Sherghin met the standard of care.

Dr. Incze testified that following the cystoscopy on August 17, 2011, he first wrote a handwritten operative note in which he noted that Mr. Sivell’s right prostatic lobe had been resected beyond the verumontanum to the external sphincter. He then acknowledged a subsequently dictated operative note that same day noted that “on the left, this area was wide open and resected and no tissue was seen at the verumontanum or distal to it towards the sphincter.” Dr. Incze ultimately had to concede based on the foregoing that he is unable to say with any degree of certainty which side of Mr. Sivell’s prostate was resected beyond the verumontanum.

There is no reliable evidence available to the Court of any alleged resection of prostatic tissue below the verumontanum. The absence of any below-verumontanum resection is entirely consistent with the findings of Dr. Radomski, who two months after Dr. Incze’s cystoscopy, performed his own cystoscopy and made no mention at all of any over-resection of the prostate. [23]

[152] On the latter point, I would underscore that when Dr. Radomski performed his cystoscopy on October 25, 2011 – a mere two months after Dr. Incze performed his cystoscopy on August 17, 2011 – Dr. Radomski noted no evidence of over-resection of the prostate, on either the left side, the right side, or any side of the prostate – as Dr. Incze indicated he observed two months earlier. There is no such notation in Dr. Radomski’s records whatsoever. I do not accept that Dr. Radomski would have completely failed to make any mention of such a significant factor as evidence of an over-resected prostate to the point that it compromised the external sphincter when he was specifically examining the patient for the causes of his incontinence. I do not accept that Dr. Radomski would have failed to note an over-resection of the prostate if that was the actual condition of the patient. The inference I would draw is that there was no resection of the prostate to the extent Dr. Incze described in his 2011 cystoscopy note. That is entirely in keeping with Dr. Sherghin’s operative report for the TURP procedure of July 15, 2008.

[153] Put another way, the plaintiffs’ theory of the case requires a finding that Dr. Sherghin did not perform the surgery in the manner described in his contemporaneous operative note. The operative note for the TURP was dictated on the same day as the procedure was performed, as is Dr. Sherghin’s usual practice. It was created in the absence of any threat of litigation. I accept it as the best evidence of what Dr. Sherghin did that day.

[154] At the end of the day, in these circumstances, I am simply not comfortable or confident in relying upon the opinion of Dr. Incze in order to ground a finding of negligence against Dr. Sherghin, given especially the instructions that were given to Dr. Incze at the outset of his retainer. I find that, on a balance of probabilities, the plaintiffs have not established that Dr. Sherghin resected Mr. Sivell’s prostate beyond the verumontanum.

[155] There is no question that what befell Mr. Sivell was most unfortunate, to say the least. However, it must also be remembered that an adverse patient outcome does not mean that the conduct of the treating physician fell below the applicable standard of case. [24] See Crits v. Sylvester, [1956] O.R. 132 (C.A.), aff’d, [1956] S.C.R. 991. See also Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.J.), at para. 25 (S.C.J.).

[156] In sum, I conclude that the plaintiffs have failed to discharge their evidentiary burden of establishing that it is more likely than not that Dr. Sherghin breached the standard of care in his performance of the TURP procedure.

Causation: If Dr. Sherghin did not meet the applicable standard of care, have the plaintiffs established, on a balance of probabilities, that, but for Dr. Sherghin’s conduct, Mr. Sivell would not have suffered his condition of incontinence?

[157] Even though I have found that the plaintiffs have failed to establish a breach of the standard of care, I proceed to consider the question of causation.

[158] At the outset of the analysis, it is appropriate to recall the words of McLachlin C.J.C. in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181:

On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury. That link is causation. [25]

[159] The plaintiffs must establish, on a balance of probabilities, that it is more likely than not that, but for Dr. Sherghin’s conduct, Mr. Sivell would not have suffered his condition of incontinence.

[160] The critical role played by the “but for” test was explained by McLachlin C.J.C. in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333:

The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone.” [26]

[161] While causation is a question of fact that should be approached with common sense and, as Sopinka J. held in Snell v. Farrell, [1990] 2 S.C.R. 311, in a “robust and pragmatic” manner, [27] the robust and pragmatic approach does not shift the burden of proof away from the plaintiff. Rather, the plaintiff must establish an evidentiary foundation for finding that there is a causal nexus between the plaintiff’s injury and the defendant’s conduct.

[162] Indeed, in Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 (C.A.), our Court of Appeal held that the robust and pragmatic approach should not be used as a means of making findings of fact in the absence of evidence that the defendant’s negligence caused the plaintiff’s injury. The majority held:

The “robust and pragmatic” approach is not a distinct 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. [28]

[163] As the Court of Appeal held in Rothwell v. Raes (1990), 2 O.R. (3d) 332 (C.A.), the onus on the plaintiff is not discharged “simply by demonstrating that there is the possibility of some causal connection.” [29]

[164] In the instant case, there are two critical findings that underscore the causation analysis.

[165] First, there is the condition of Mr. Sivell’s bladder. I have found that, consistent with the cystoscopy performed by Dr. Boyd on April 12, 1996, and Mr. Sivell’s own evidence that he was told he had an enlarged prostate when he was in his twenties, Mr. Sivell had been experiencing symptoms of an enlarged prostate for decades. As a result, his bladder had become severely trabeculated, as Dr. Sherghin observed and noted during the cystoscopy he performed on May 28, 2008. This was caused by the many years of over-exertion in order to compensate for the long-standing blockage caused by his enlarged prostate. It also caused the bladder to become over-active.

[166] Second, there is the condition of Mr. Sivell’s external sphincter. I find that, just as the muscles in Mr. Sivell’s bladder had become larger and stronger in order to compensate for the long-standing blockage caused by the enlarged prostate, conversely, the muscles in Mr. Sivell’s external sphincter had been under-utilized for years. I find that, Mr. Sivell’s sphincter muscles not having had to work as hard due to his enlarged prostate, they had atrophied, and the external sphincter had become weakened over time.

[167] I accept the opinion of Dr. Buckley on the cause of Mr. Sivell’s incontinence. Dr. Buckley testified that the cause of Mr. Sivell’s post-TURP mixed incontinence was a result of the pressure imbalance between the severely trabeculated bladder that was causing bladder over-activity, coupled with a weakened external sphincter due to years of under-utilization due to Ms. Sivell’s BPH.

[168] In sum, as Dr. Buckley somewhat colourfully explained, Mr. Sivell’s enlarged prostate, which had been growing for decades, had effectively acted as a “plug” to the urethra, preventing the unintentional flow of urine. Once the plug, i.e., the obstruction caused by the enlarged prostate, was removed during the TURP procedure, the pre-existing conditions led to Mr. Sivell experiencing incontinence.

[169] Dr. Buckley’s evidence was that, typically, the mechanisms preventing incontinence are the bladder neck (also known as the internal sphincter), the prostate, and the external sphincter. The external sphincter is furthest of those three from the bladder. As Mr. Sivell’s prostate became enlarged, it began to act as a plug, effectively taking on a more prominent role in Mr. Sivell’s continence, rendering the external sphincter redundant. The limited use of external sphincter muscle began to weaken it – as both Dr. Buckley and Dr. Incze testified will occur when a muscle of this nature is under-utilized. When the TURP and TURBN were performed, and the obstructive tissue removed, the now weakened external sphincter was the only continence mechanism remaining to withstand the pressure of the severely trabeculated bladder. As Dr. Buckley explained in his testimony, the pressure variance between the strong bladder and the weak sphincter is what caused Mr. Sivell’s incontinence, and I so find.

[170] I agree with the submission of defence counsel that given the other explanation for the perceived injury to Mr. Sivell’s external sphincter (i.e., its atrophy over the years), and given further the existence of what I have found is the more likely cause for Mr. Sivell’s incontinence, the plaintiffs are left to rely on the mere possibility that the TURP performed by Dr. Sherghin caused Mr. Sivell’s incontinence. However, again, our Court of Appeal held in Rothwell v. Raes (1990), 2 O.R. (3d) 332 (C.A.), a mere possibility is not enough to discharge the plaintiffs’ onus on causation.

[171] In sum, the plaintiffs have not adduced sufficient evidence to establish that it is more likely than not that Mr. Sivell’s incontinence was caused by Dr. Sherghin’s alleged negligence. As a result, even if I had found that Dr. Sherghin breached the standard of care, I am not satisfied that the breach caused Mr. Sivell’s injury.

Conclusion

[172] For all of these reasons, and notwithstanding the able argument of Ms. Pacheco, the action of the plaintiffs is dismissed with costs.

[173] If counsel are unable to agree on the question of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. the defendant shall deliver his submissions within twenty (20) days following the release of these reasons; b. the plaintiffs shall deliver their submissions within twenty (20) days following service of the defendant’s submissions; c. the defendant shall deliver his reply submissions, if any, within five (5) days following service of the plaintiffs’ submissions; d. if any party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue.

[174] On a final note, I commend both counsel for the professional, courteous, and cooperative manner in which they conducted this trial. They were each of enormous assistance to the court.

Original Signed by “Howard J.”

J. Paul R. Howard Justice

Released: March 1, 2017

Footnotes

[1] Plaintiffs’ Written Submissions, dated June 15, 2016, at para. 6; and see para. 9 [Plaintiffs’ Final Argument]. [2] Ibid., at para. 35 and evidentiary references cited therein. [3] Final Written Argument of the Defendant, Ahmed Saad Omar Sherghin, dated May 18, 2016, at para. 26 [Defendant’s Final Argument]. [4] Chronology (exhibit “A”), filed March 14, 2016, updated and filed May 16, 2016. [5] Mr. Sivell was born on May 28, 1949. See Transcript of the Examination for Discovery of Kevin Sivell, held October 24, 2012, Q. 131, read-in at trial. [6] Transcript of Proceedings at Trial, March 14, 2016, examination-in-chief of Kevin Sivell, p. 4, ll. 20-26. Dr. Henderson had performed a cystoscopy: see Joint Trial Brief, vol. 1, tab 4, p. 2. [7] Joint Trial Brief, vol. 1, tab 4, p. 4. [8] At that same appointment in October 1997, Dr. Boyd performed a digital rectal examination of Mr. Sivell and noted his “prostate is very small rectally.” On this point, I accept the explanation of the defence expert, as summarized in the Defendant’s Final Argument, at para. 39, that, “the digital examination can only feel the outside of the prostate, and provides no insight into the growth of the prostate inwards.” Accordingly, I give little weight to the 1997 observation that the patient’s prostate presented as “very small rectally.” The same considerations apply to Dr. Boyd’s digital rectal examinations of Mr. Sivell in 2002, in respect of which I accept and adopt the explanation set out in the Defendant’s Final Argument, at para. 41. [9] Joint Trial Brief, vol. 1, tab 4, p. 8. [10] Dr. Sherghin explained his practice of using the plus-sign (+) in his notes as a rough indicator of the severity of the symptoms described. [11] Neither of the experts was critical of the manner in which Dr. Sherghin performed the cystoscopy. [12] Transcript of Proceedings at Trial, March 14, 2016, cross-examination of Kevin Sivell, p. 63, l. 7. [13] Plaintiffs’ Final Argument, at para. 31; and see evidentiary references set out therein. [14] Ibid., at paras. 32-34; and see evidentiary references set out therein. [15] Defendant’s Final Argument, at para. 12. [16] Defendant’s Final Argument, at paras. 132-139. [17] Dr. Buckley is Chief of Urology at North York General Hospital in Toronto. [18] Letter of instruction, dated July 21, 2010, from Duncan Embury to Dr. Peter Incze (exhibit no. 9) [emphasis added]. [19] St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53. [20] Defendant’s Final Argument, at para. 209. [21] Compounding these concerns, the foundational reports underlying Dr. Incze’s opinions are not compliant with Rule 53 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Dr. Incze did not state in his expert report the documents upon which he relied to prepare it. At trial, he was unable to identify with any particularity those documents that he reviewed prior to preparing his report. Moreover, Dr. Incze did not complete a Form 53 before he completed his final report and was unaware of what his role as an expert entailed with respect to assisting the court by providing objective and unbiased evidence. See generally White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 192, where the Supreme Court of Canada held that expert witnesses have a duty to give fair, objective, and non-partisan opinion evidence and that they must be aware of and able and willing to carry out this duty. If the expert does not meet this threshold requirement, his or her evidence should not be admitted (at para. 10). [22] Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.J.), at para. 26, aff’d 2010 ONCA 188, 260 O.A.C. 70. [23] Defendant’s Final Argument, at paras. 159-161 [emphasis in the original]. [24] See Crits v. Sylvester, [1956] O.R. 132 (C.A.), at pp. 9-10, aff’d, [1956] S.C.R. 991. See also Bafaro v. Dowd, at para. 25 (S.C.J.). [25] Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 6 [emphasis omitted]. [26] Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 23. [27] Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 330, quoting Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557 (H.L.), at p. 569 per Lord Bridge. [28] Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 (C.A.), at para. 54. [29] Rothwell v. Raes (1990), 2 O.R. (3d) 332 (C.A.), at p. 335, leave to appeal refused, [1991] 1 S.C.R. xiii (note).