COURT FILE NO.: CV-09-393664

DATE: 20180619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FIONA WATSON, FIONA WATSON, Litigation Administrator for the Estate of and ALAN WATSON, Deceased

Plaintiffs

– and –

DR. SAUL MANDELBAUM, DR. THEODORE F. SHAPERO, DR. HENRY KRIEGER, DR. SARAH ORTEGA, DR. SHAWN SOON, DR. J. DOE #1, DR. J. DOE #2, THE SCARBOROUGH HOSPITAL - GENERAL DIVISION, NURSE J. FO, NURSE S. BROOKER, NURSE P. RAPKOSKI, NURSE J. DOE #1 and NURSE J. DOE #2

Defendants

Heidi R. Brown and Alexandra Roman, for the Plaintiffs

Jaan E. Lilles and Brendan F. Morrison, for the Defendant Dr. Shawn Soon

HEARD: March 5-9, 12-16, 2018, March 20-21, 2018, and May 1, 2018

FERGUSON J.

REASONS FOR DECISION

[1]. Fiona Watson (“Ms. Watson”), the plaintiff, had her left kidney surgically removed in 2008 by the defendant, Dr. Shawn Soon (“Dr. Soon”). Dr. Soon had diagnosed her with renal cell carcinoma (“RCC”). After her kidney was removed, however, she was informed that there was no cancer after all. The renal mass that had been detected was a renal abscess rather than a cancerous mass. Ms. Watson now claims that Dr. Soon breached the standard of care required of an urologist practicing in Ontario in 2007/2008, as well as his duty of disclosure, causing the unnecessary removal of a healthy kidney and resulting in a serious decline in her health.

[2]. This trial took place over the course of 12 days, following which counsel provided extensive written submissions. Oral closing submissions were heard on May 1, 2018. The issues to be determined are:

(i) The standard of care;

(ii) Informed consent;

(iii) Causation;

(iv) Damages.

[3]. For the following reasons, I have determined that Dr. Soon did not breach the standard of care, and his actions did not cause damage to Ms. Watson. Ms. Watson also provided informed consent to the surgery. While it is regrettable that Ms. Watson had a healthy kidney removed, Dr. Soon met the appropriate standard of care and thus is not liable for any damages.

The Parties

[4]. Dr. Soon is a physician licensed to practice medicine in the province of Ontario. He is a certified specialist in urology, with fellowship training in laparoscopic surgery. After obtaining his medical degree from McMaster University, he completed a 5-year residency in urology in Ottawa, followed by a fellowship in laparoscopic urologic surgery in Paris, France. At all material times he was a staff urologist at Scarborough General Hospital (“SGH”), where he remains a staff urologist to this day.

[5]. Ms. Watson is a 59 year old widow. She was a senior telecom analyst with MTS Allstream, her working life mainly in the telecommunications field. She has not worked since the nephrectomy and is receiving long‑term disability benefits.

[6]. Following the death of her husband on June 27, 2010, Ms. Watson remained in her home until late 2012 when she moved in with her son and his family.

Ms. Watson’s Health Issues Prior to the Referral to Dr. Soon

[7]. Ms. Watson is an insulin-dependent hypertensive diabetic. She was diagnosed with diabetes in September of 1995 and hypertension in 2006. She has been heavy smoker for most of her adult life despite having made numerous attempts to quit over the years. Her history of smoking was 1 to 1 ½ packs per day since her late teens or early 20s.

[8]. Ms. Watson has a history of chronic diarrhea which presented in and around June of 2000. She reported her condition to Dr. Jagota, her family doctor, who made referrals to specialists over the years and prescribed medication. She continues to have that problem. She claims that it has been exacerbated by the nephrectomy and ensuing issues.

[9]. Ms. Watson had a lengthy history of chronic right breast abscess (“the breast abscess”) dating back to November 1995. She was treated with antibiotics numerous times. On January 5, 2006, Ms. Watson underwent a surgical debridement procedure to drain the breast abscess performed by Dr. Mohan, a general surgeon. Although it resolved for a time, the breast abscess returned by the fall of 2007.

[10]. By October of 2007, the breast abscess and the development of right-sided flank pain (“flank pain”) led to hospital admissions. Ms. Watson believed that the breast abscess and the flank pain were related conditions.

[11]. On October 25, 2007, Ms. Watson presented at the hospital and saw a general surgeon, Dr. Leung who arranged home care for her breast abscess.

[12]. Dr. Leung referred Ms. Watson to a plastic surgeon, Dr. Elahi, whom she saw on October 31, 2007. Dr. Elahi recommended a mastectomy, which Ms. Watson opted against.

[13]. On November 15, 2007, Ms. Watson attended at the hospital complaining of right-sided flank pain around her back. An abdominal ultrasound was performed that day, which showed three 0.7 mm gallbladder polyps without calculi and no other abnormalities.

[14]. On December 7, 2007, Ms. Watson again attended at the hospital and was admitted as a patient complaining of severe upper right sided abdominal pain; vomiting with blood (hematemesis); constipation; and anaemia. She stayed at the hospital as an in-patient until she was discharged on December 11, 2007.

[15]. A CT scan of Ms. Watson’s abdomen was performed on December 7, 2007. The report of the radiologist, Dr. Bharatwal, indicated “an indeterminate cystic mass measuring 2.1 cm x 1.6 cm within the upper pole of the left kidney. Within the right breast, air and fluid collections are identified, the largest measuring 1.7 cm X 1.7 cm. Has this patient had a previous intervention? Otherwise, abscess formation and cellulitis cannot be excluded.” The mass on the kidney was an incidental finding.

[16]. On December 18, 2007, Ms. Watson underwent a triphasic CT examination with contrast ordered by Dr. Krieger, an internal medicine specialist, to further delineate the indeterminate renal mass. The report of the radiologist, Dr. Liu, indicated that “the left upper kidney demonstrates a 2.5 cm mass lesion with a poorly-defined margin. Central cystic changes could be seen, measuring about 1.4 cm.” Dr. Liu’s impression as noted in his report was a “left upper small renal tumor, with poorly-defined margin and suspicion of necrotic center, suspicious of renal cell carcinoma (“RCC”). Follow up is advised.”

[17]. Dr. Krieger wrote a referral letter dated December 18, 2007, copied to Dr. Soon, which stated that: “with regards to her renal mass as to whether this needs to be investigated further whether she may require a biopsy.” In this same letter, he sets out his concern about her left kidney and states that he “is not sure if this is a significant or possibly a malignancy”.

Dr. Soon’s Submissions on Ms. Watson’s Evidence

[18]. It is at this point in the narrative that the parties begin to disagree on the facts. Therefore, I will present some of my findings of fact at this point in the decision. In his reply written submissions Dr. Soon sets out the misstatements of evidence as provided by Ms. Watson in her written submissions. These submissions, and my findings of fact, are highly significant to my findings on each of the issues.

(a) Ms. Watson asked me to find that the clinical signs and symptoms were inconsistent with RCC. The unanimous evidence of all medical witnesses at trial, including Dr. Jewett, was the opposite. Dr. Jewett testified (p. 142 of his examination‑in‑chief) when he was dealing with the differential diagnosis: “consistent with a left renal carcinoma was his documentation and I, I would not dispute that it could be, therefore it could be consistent with a kidney cancer, but it’s much more than that. This, this is a lady who is screaming at you that there are other possibilities to me”. He further testified (at p. 91): “so for sure, RCC is on this list’”.

(b) Ms. Watson asked me to find that after a biopsy, a renal abscess would become the suspected diagnosis and surgery would have been avoided. Although Ms. Watson cites Dr. Howarth, (expert in anatomic pathology), his opinion was to the contrary. Dr. Howarth has experience in analyzing renal cell biopsies and explained the following (at pp. 31-32, and 33):

“Q: And so that brings me to the question about this particular case, is that based on the information we have, in your opinion, had a biopsy been performed prior to February 6^th when the surgery was performed, would it have been diagnostic?

A: No.

Q: And why not?

A: Well you would have necrotic fibrinopurulent exudate and because RCC have necrosis in them because that inflammatory response is a general response, whether it’s necrotic tumour or necrotic tissue, as a result of any other problem. You would not be able to determine that because the tissues necrotic, you just can’t say, so it’s a not inconclusive biopsy.”

He further testified as follows:

“Q: And so, at the end of the day, bring all that together, would a biopsy, in your opinion, performed earlier, sometime between say December 27th and February 6th have enabled a pathologist to diagnose either an abscess or RCC?

A: No, you would have an inconclusive biopsy. And if there were microorganisms – microorganisms love necrotic tissue, it’s like a culture broth to them, they grow in it. If they were there, they should have been there. On what I see here, there’s a lot of necrotic tissue and they’re just not.”

(c) Ms. Watson stated that Dr. Soon was unaware that Ms. Watson had diabetes and did not ask her about her history of smoking. The contemporaneous handwritten and dictated notes reflect both the history of tobacco use and past medical history of diabetes (exhibit 1, volume 1, tab 9, pp. 318-320);

(d) Ms. Watson contended that a reasonable patient with a suspected diagnosis of kidney cancer, which is a type that commonly metastasizes, would only proceed to surgical treatment if the diagnosis was 100% guaranteed. The unanimous medical evidence, however, was that patients in Ms. Watson’s position will always proceed to surgery, since the risk of death is too significant to refuse or delay treatment. The three urology witnesses testified that a reasonable patient of Ms. Watson’s age would elect surgery in order to prevent against the fatal risk of metastes. Dr. Orovan testified as to the following (at p. 112):

“Q: In your experience where you have diagnosed a small renal mass that is likely malignant, do patients ever refuse surgical treatment?

A: Again in 2007, I personally have never had a patient in whom I recommended radical nephrectomy turn it down. The risks were just too great, and the treatment options virtually non‑existent. I’ve never had a patient say they would not go forward with surgical removal.”

(e) Dr. Jewett testified as follows on this point (at pp. 26; 31-32):

“Q: And we know that back in 2008, that in terms of treatment for probable RCC, that a majority of RCC, even localized ones, were treated with surgery, correct?

A: Yes.”[^1]

“Q: Right. And we know that a lot of patients from this data that we’ve been talking about actually underwent surgery, right?

A: Yes.

Q: And that’s kind of a natural reaction presumably because if someone is told that they probably have RCC, it’s a bit of a scary diagnosis, right?

A: Totally.

Q: And especially if you tell them that here’s the, here’s the, the problem. If we don’t do anything, there’s a risk that this can grow and metastasize and ultimately kill you.

A: Yes.

Q: Right, and so it’s entirely reasonable for a person to say, yeah, I, I understand that it might not be cancer, but I’d rather have it taken out to be safe.

A: Yes, patients do say that.”[^2]

(f) Dr. Soon testified as follows:

“Q: And over the course of your experience, I take it you’ve had opportunity to do that on – to, to make that recommendation on numerous occasions?

A: Yes.

Q: And in your experience, Dr. Soon, do patients usually take that advice, do they usually proceed with surgery?

A: In general, yes.

Q: And in what circumstances do they not?

A: I find that patients who are elderly tend to back away from surgery. So if anyone tends – if anyone declines treatment, it’s usually the patient who is older.

Q: And why is that, in your view?

A: I think that patients who are older are probably scared about any radical treatment. That’s probably the biggest reason.

Q: And, and my question was really why, in your view, do you think people elect to proceed with surgery?

A: Oh, sorry. So I think people elect to proceed with surgery because they have an understanding that RCC is a dangerous disease, and if left untreated will metastasize, become incurable and eventually they will die from metastatic RCC.”[^3]

(g) Ms. Watson argued that she and Dr. Jagota were carefully monitoring her diabetes and bloodwork such that a timely referral to and dedicated involvement of a nephrologist would have been likely in the absence of the nephrectomy. The entire history of Ms. Watson’s diabetic care before 2008 undermines this suggestion. She was a very poorly controlled diabetic (I will review the evidence for this more thoroughly below).

[19]. Further, Dr. Soon submits that Ms. Watson relies almost exclusively on the evidence of Dr. Jewett during his examination in chief to support the central issue of whether Dr. Soon should have strongly suspected an abscess and not RCC. Ms. Watson does not refer to the cross‑examination evidence of Dr. Jewett or the evidence of Drs. Orovan, Partap or Soon (reviewed more thoroughly below).

[20]. I have carefully reviewed the evidentiary record and concur with Dr. Soon that the evidence has been misstated by Ms. Watson in her closing submissions.

[21]. In carefully reviewing the very thorough submissions provided by Dr. Soon, I have checked the medical exhibits and transcript sources. They are accurate. Nothing has been misstated by Dr. Soon. I rely extensively upon Dr. Soon’s written submissions in rendering this decision.

i) The Standard of Care

The Applicable Law

[22]. Every medical practitioner must bring to their practice the reasonable degree of care and skill of a normal prudent practitioner of the same experience. To succeed in an action for medical negligence, the onus is on the plaintiff to show that the physician has breached the standard of care of a reasonable and prudent physician of the same experience and standing having regard to all of the circumstances of the case.[^4]

[23]. The appropriate standard of care is determined by the trier of fact. Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.[^5]

[24]. Physicians are not held to the standard of perfection. At law, a physician’s conduct will be judged in light of the knowledge they ought to have reasonably possessed at the time of the alleged act or omission.[^6] The court must look at the steps taken and ask whether they conformed to what would be reasonably expected of a similarly situated medical professional.[^7]

[25]. The plaintiffs’ onus is to prove more than an error in judgment. They must establish an act or omission that rises to the level of unskillfulness, carelessness or lack of knowledge.[^8]Where, however, a physician fails to avail themselves of relevant clinical information or fails to obtain relevant consultations or test results, the failure to do so is not an exercise of judgment at all, but constitutes negligence.[^9]

[26]. An unfortunate outcome does not constitute proof of negligence. Courts should be careful not to rely on the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are only apparent after the fact.[^10]

[27]. As the Supreme Court of Canada has stated: “the erroneous approach runs the risk of focusing on the result rather than the means. Professionals have an obligation of means, not an obligation of result.”[^11] A plaintiff’s case which applies an outcome-based retrospective approach and attempts to work backward from the result of the surgery in order to prove negligence is fundamentally flawed in law and contrary to admonitions in the case law: “[N]othing is to be imputed to the defendant that is not clearly proved against him. Post hoc has no place in our law.”[^12]

[28]. Where a medical professional applies his mind to a situation and arrives at a reasonable judgment which subsequently may prove wrong or have unexpected consequences, he cannot be held liable. A doctor is not expected to be infallible and is not required at law to order every available test.[^13] An error of judgment does not amount to negligence where the medical professional appropriately applies clinical judgment.[^14] In situations where a decision must be made without delay based on limited known and unknown factors, an honest and intelligent exercise of judgment satisfies the professional obligation.[^15]

Standard of Care Analysis

Ms. Watson’s Appointment with Dr. Soon

[29]. On December 27, 2007, Dr. Soon saw and assessed Ms. Watson in the clinical day unit of SGH.

[30]. Dr. Soon testified as to both his general practice in treating patients, as well as his specific recollection of assessing Ms. Watson. I accept his evidence.

[31]. Dr. Soon obtained a history from Ms. Watson, which included diabetes mellitus (“DM”); breast abscess (“mastitis”); hypertension (“HTN”); gallbladder polyps (“GB polyps”); and a history of smoking (“tobacco”). [^16]

[32]. Dr. Soon learned from Ms. Watson that she had no bone pain; no diaphoresis (profuse sweating); no gross hematuria; and a history of anorexia, including weight loss of about 12 pounds in two months.[^17]

[33]. Ms. Watson told Dr. Soon that she had no surgeries in the past and was currently on certain medication that included humulin, diovan and hydrochlorothiazide.[^18]

[34]. Dr. Soon performed a physical examination of Ms. Watson which is documented in his clinical note, and admitted to by Ms. Watson.[^19]

[35]. Dr. Soon noted that Ms. Watson had been suffering from right-sided flank pain. On examination, she looked well. Her abdomen was soft and non-tender. There was no palpable organomegaly and no evidence of any costovertebral angle (“CVA”) (where the kidneys are located on one’s back) tenderness.[^20]

[36]. The urologists who testified acknowledged the importance of a physical examination in the diagnostic process of a small renal mass.[^21] Palpation of the CVA assists a physician in determining whether any infectious process is involved. Typically, if the small renal mass is associated with infection, a patient will experience pain and tenderness on palpation as a result of inflammation.[^22]Further, a patient suffering from an abscess would appear systemically unwel1.[^23]

[37]. In addition to taking the clinical history and performing a physical examination, Dr. Soon reviewed the triphasic CT images on December 27, 2007.[^24] Dr. Soon described the nature and location of the small renal mass with Ms. Watson, who was sitting with him as they reviewed the images(Ms. Watson denies that they reviewed the images).[^25] Dr. Soon’s dictated clinical note of December 27, 2007 reflects his review and interpretation of the images. He notes that the small renal mass “did enhance with contrast”, and thus it was consistent with a left RCC.[^26]

[38]. Ms. Watson and Dr. Soon have some similar and some different recollections of what transpired during the consultation. They agree on the following facts:

(a) the only diagnosis communicated to Ms. Watson by Dr. Soon was RCC;

(b) a partial nephrectomy was discussed and was not recommended given the location of the mass;

(c) Dr. Soon disclosed that observation was a treatment option only for elderly patients or patients with a limited life span;

(d) a physical examination was conducted by Dr. Soon over Ms. Watson’s clothes;

(e) Dr. Soon utilized a white board to illustrate the location of the small renal mass within Ms. Watson’s kidney;

(f) Ms. Watson testified as to a follow‑up conversation with Dr. Soon on the telephone. Dr. Soon does not have a specific recollection of a telephone call, although he indicated that it would not be unusual for him to make himself available to his patients before a procedure.[^27] Ms. Watson’s evidence was that she spoke to him about her concerns, including her diabetes and that he answered her questions.[^28]

[39]. They disagree on the following facts:

(a) Ms. Watson denied that Dr. Soon showed her the CT imaging whereas Dr. Soon testified that he showed her the imaging. I need not make a determination of this difference as RCC was discussed and a white board was used. Whether or not Ms. Watson saw the actual CT scans is of no significance to the diagnosis and the information she was given.

(b) Ms. Watson denied that Dr. Soon asked her whether she had a history of smoking and said that she had to run after him to advise him of this. Dr. Soon testified that he asked Ms. Watson about smoking and knew Ms. Watson had a history of smoking. I note that the smoking is found in both Dr. Soon’s handwritten and typed notes: I further note that Ms. Watson agreed that Dr. Soon told her about a cessation of smoking prescription.

(c) Ms. Watson denied that Dr. Soon told her that there was a possibility that the small renal mass was benign. Dr. Soon testified that it was his general practice to tell all patients that there was a possibility it may be benign. I prefer Dr. Soon’s evidence on this point. I find that Ms. Watson is a very poor historian with a poor memory. I agree that by contrast, Dr. Soon was candid and measured in his testimony. He was clear and careful, and readily conceded what he could not remember. With respect to obtaining Ms. Watson’s informed consent (dealt with more extensively below), Dr. Soon testified that he explained to her the risk that the mass identified on her left kidney was possibly benign:

Q. And do you have a usual practice in terms of what you say to patients about this?

MS. BROWN: In 2007.

MR. LILLES: Q. Sorry, in – fair enough, in 2007?

A. I do.

Q. Okay. What was it?

A. That the, that these renal masses – that RCC is diagnosed based on CT scan, and that after excision, 20 percent of these masses are actually benign, that RCC, when confined is curable, when …

Q. When confined?

A. Correct.

Q. Okay.

A. Once it is metastatic, it is incurable.[^29]

(d) Ms. Watson testified that Dr. Soon only advised her of the risks associated with the nephrectomy itself including bleeding, damage to bowel and infection. Dr. Soon testified that he also advised her of the adverse effects of a nephrectomy on her remaining kidney function. I note in any event that Ms. Watson also had conversations with Dr. Jagota about this (which I deal with below).

[40]. On the basis of the imaging, the laboratory results, Ms. Watson’s clinical history, and Ms. Watson’s physical examination, Dr. Soon reasonably diagnosed Ms. Watson’s left renal mass as RCC, consistent with Dr. Liu’s diagnosis.

The Diagnosis of RCC

[41]. The three urologists who testified described a similar process for diagnosing RCC: an exercise of judgment in which a physician considers all available information, like putting together a puzzle.

[42]. The witnesses and the medical literature were consistent in stating that 80% of small renal masses are malignant.[^30]

[43]. The witnesses agreed that the radiological imaging and reports are a particularly important piece of information to the clinician diagnosing a small renal mass.[^31] Small renal masses are diagnosed largely through CT imaging.[^32] Dr. Jewett agreed that the diagnostic pathway for an enhancing small renal mass starts with the presumption that it is RCC.[^33] Faced with unequivocal findings on a CT scan and report, a physician has to search for symptoms that displace the most likely diagnosis and in this case, there were none.

[44]. The triphasic CT scan and report pointed strongly towards the diagnosis of RCC. Dr. Liu reported that the mass had irregular margins, a necrotic centre and was suspicious for RCC.[^34] He offered no other diagnoses as differentials. While the medical experts agreed that it is the best practice for a urologist to review the CT scans before diagnosis[^35] the urologists testified that they are entitled to rely on the radiologist’s reports.[^36]

[45]. Dr. Soon testified that he reviews his patients’ CT scans when evaluating small renal masses to visualize the characteristics and location of those masses.[^37] He testified that his review of Ms. Watson’s CT scan was consistent with Dr. Liu’s report. Dr. Soon testified that the mass was “a heterogeneous enhancing mass in the mid upper pole of the left kidney with a necrotic centre.”[^38]

[46]. Dr. Partap (the expert radiologist called by Dr. Soon), testified that the triphasic CT scan is best used to diagnose cancer because it allows radiologists to assess the degree and manner of enhancement of renal masses. Enhancement refers to the extent to which a mass or organ picks up the contrast that is injected into the blood stream as compared to the same tissue without contrast. Dr. Soon testified that “the triphasic CT is able to demonstrate RCC by taking advantage of the differential blood flow between kidney cancer and normal kidney tissue. As a result of the difference in blood flow, the kidney cancer becomes apparent on the enhanced images.”[^39]

[47]. The degree of enhancement of a mass can be measured objectively using “hounsfield units”. Masses that enhance at least 15-20 hounsfield units are considered RCC until proven otherwise.[^40]

[48]. Dr. Jewett acknowledged somewhat reluctantly that upon his review of the December 18^th scan, he observed the mass to enhance, albeit weakly.[^41] On cross-examination, he acknowledged that he had not measured the hounsfield units and as a result could not testify as to the precise level of enhancement.[^42]

[49]. Dr. Partap testified that Ms. Watson’s mass enhanced.[^43] He measured its enhancement at approximately 26 hounsfield units – a measurement which is a cause for concern.[^44] Other characteristics of the mass still needed to be considered in conjunction with the degree of enhancement to determine malignancy.[^45] The mass’ other characteristics, specifically its irregular margins and necrotic centre, were consistent with malignancy.[^46]

[50]. Dr. Jewett testified that the necrotic centre and irregular margins were atypical of RCC.[^47] Dr. Orovan, however, testified that “the findings of a necrotic centre… and poorly defined margins are not in any way inconsistent with RCC.”[^48] Dr. Partap testified that the “irregular and nodular margin” as well as the “low density cystic centre, together with enhancement” leads toward a “predominant consideration of RCC.”[^49]

[51]. Drs. Soon, Orovan, and Jewett testified that these were features associated with an aggressive and infiltrative cancer.[^50] Dr. Soon testified that a “necrotic centre” refers to dead tissue within the centre of the tumor,[^51] and that this occurs when a tumor is growing faster than its blood supply.[^52] As a result, “necrosis is associated with more aggressive RCC.”[^53] Dr. Soon also testified that irregular margins also can indicate a more aggressive cancer as poorly defined margins may suggest an infiltrative cancer.[^54]

[52]. Dr. Jewett eventually agreed that the characteristics of Ms. Watson’s mass were worrying:

Q. So what he’s presented with when he’s reviewing the imaging is a potentially growing mass over a short period of time which is – would be a concern, right, Dr. Jewett?

A. Yes.

Q. He’s got atypical margins and a necrotic centre which could be an indication of an aggressive form of tumour.

A. Yes.

Q. Consistent with rapid growth, correct?

A. Yes.

Q. And so those with open potentially concerning signs to clinicians sitting there, right?

A. I would absolutely agree with you.

Q. Right.

A. It could be a cancer. I’ve never said not.[^55]

[53]. Dr. Jewett was unable to point to any imaging characteristics of Ms. Watson`s renal mass that indicated it was likely an abscess.

[54]. Dr. Jewett agreed that there was no ring sign on the December 18, 2007 scan.[^56]

[55]. Drs. Soon and Partap testified that a “renal abscess classically presents with a ring sign.”[^57] Dr. Partap testified that a ring sign is the definitive diagnostic feature of an abscess, and there was no ring sign on Ms. Watson`s scan.[^58]

[56]. I find that all of the imaging characteristics of Ms. Watson`s mass pointed towards RCC and not a renal abscess. This is consistent with Dr. Liu’s report.

[57]. As well as reviewing the CT scan, Dr. Soon took Ms. Watson`s history; performed a physical examination; and reviewed the laboratory results.

[58]. Dr. Soon testified that it is his practice to take a patient`s history by asking questions about the history of the presenting illness.[^59] He testified that Ms. Watson’s answers were consistent with RCC and gave no indication of an infectious process. These answers included the following:

(a) The pain that brought Ms. Watson to the hospital in December was on her right side. The abnormality on the CT scan was, however, on her left side.[^60]

(b) Ms. Watson denied bone pain, and gross hematuria, and indicated that she was regaining her appetite after having lost weight.[^61] While these symptoms pointed away from a metastatic disease, the absence of these symptoms was not inconsistent with RCC.

(c) Ms. Watson denied diaphoresis, which Dr. Soon testified can be associated with infection or lymphoma.[^62] Dr. Jewett testified that diaphoresis could indicate a fever – another symptom associated with an infectious process that Ms. Watson did not exhibit.[^63]

(d) Dr. Soon recorded that Ms. Watson was a smoker and testified that “smoking is the strongest modifiable risk factor for kidney and bladder cancer.”[^64]

[59]. Dr. Soon also noted that Ms. Watson had a history of diabetes; hypertension; gallbladder polyps; and mastitis. While he testified that some of these conditions may be significant from a treatment perspective, they are insignificant from the perspective of diagnosis.[^65]

[60]. After taking Ms. Watson’s history, Dr. Soon conducted a physical examination. He palpated the four quadrants of Ms. Watson`s abdomen and at the CVA and was able to determine whether there was any enlargement of her organs, or, pain or tenderness. A finding of pain, particularly in the CVA, would be significant because it would suggest inflammation or infection.[^66] Ms. Watson exhibited no pain on palpation,[^67] suggesting that there was no inflammation or infectious process in her abdomen or kidneys.[^68]

[61]. Dr. Soon’s conclusion that there was no infectious process was further supported by her laboratory findings. Her blood work did not show a significantly elevated white blood cell count.[^69] Her urinalysis showed microscopic hematuria – a symptom associated with RCC.[^70] Her urine culture also showed that there was no infection.[^71] These laboratory findings were inconsistent with an abscess and more importantly, no findings were inconsistent with a diagnosis of RCC.

[62]. Ms. Watson’s anemia and microscopic hematuria were both symptoms associated with malignancy.[^72] This was confirmed by Drs. Jewett, Orovan, and Soon.[^73]

[63]. I agree with Dr. Soon that there were no discernible symptoms or signs of an abscess and that Ms. Watson’s allegation that he should have suspected or diagnosed an abscess is untenable. Based on all available information, it was reasonable for Dr. Soon to diagnose Ms. Watson with RCC.

Should a Biopsy Have Been Performed?

[64]. I agree that Ms. Watson’s case relies heavily upon the allegation that Dr. Soon ought to have considered a biopsy for a suspected abscess. Ms. Watson submits that the court can rely on common sense and make inferences regarding the medical and microbiological consequences of a biopsy. It would not, however, be appropriate to use common sense to determine this issue. The court needs expert opinion evidence to determine most medical issues, including this one.

[65]. There were no clinical indications that this mass was an abscess (infection). The diagnostic imaging; the opinion of Dr. Liu; Ms. Watson’s presentation and physical examination; and the laboratory investigations all pointed towards RCC and away from abscess.

[66]. In any event, both Drs. Orovan and Howarth testified why a biopsy would not have prevented the nephrectomy.[^74] Neither doctor was challenged in cross-examination on this point nor did Ms. Watson lead any evidence that a biopsy would have been diagnostic.

[67]. Ms. Watson’s repeatedly submitted that after a biopsy, “the most likely cause of the small renal mass would have been infection”. [^75] However, that is not what was testified to by Dr. Howarth. He was clear that a biopsy would have been non-diagnostic, given the absence of any bacteria.[^76] A determination that the mass was not malignant and was an abscess was only possible upon examination of the entire specimen after surgical removal.[^77] A negative biopsy would not rule out malignancy.

[68]. Dr. Jewett testified that a biopsy would only diagnose an abscess if the pus grew bacteria.[^78] Dr. Howarth was clear and uncontroverted that no pus and no bacteria would have been aspirated in Ms. Watson’s case.[^79]

[69]. Each urologist testified that it was not the standard of care in 2007 to perform a biopsy when investigating a small renal mass.[^80] In fact, in 2007, renal biopsies were rarely performed and were indicated only in specific circumstances. According to the 2008 Canadian Kidney Cancer Forum Consensus Statement, needle biopsies were not the standard of care, and were optional.[^81] Dr. Orovan testified that biopsies are still rarely used when investigating small renal masses.[^82]

[70]. The kidney is a highly vascular organ that contains a large proportion of the body’s blood supply and as a result, biopsies were believed to carry a significant risk for bleeding.[^83] There was also a concern that a biopsy could spread malignancy since it was believed that by inserting a needle into the tumor, “[there was] a possibility that tumor cells would be lost along the tract, and [a] tumor would grow in the tract.”[^84]

[71]. There was also a concern regarding the diagnostic value of biopsies in the evaluation of small renal masses. Dr. Soon testified that biopsies have high false negative rates, meaning that a negative biopsy of a potentially malignant mass would not necessarily indicate that the mass was benign.[^85] He testified that in 60% of the cases of an indeterminate or negative biopsy, the mass was actually malignant.[^86] As Dr. Howarth testified, a finding that a tissue sample was negative is inconclusive or non-diagnostic.[^87] Dr. Jewett agreed that in some cases, even today, the only way a mass can be proven to be cancerous is if it is removed.[^88]

[72]. Dr. Partap testified that renal lesions can be classified using the Bosniak scale, which categorizes lesions according to their probability of malignancy.[^89] He classified Ms. Watson’s lesion as a Bosniak 3, and borderline Bosniak 4, categories in which malignancy is extremely likely.[^90] He testified that due to the indeterminate nature of these masses, they are only diagnosed after being surgically removed – a course of treatment that is warranted given the significant risks of malignancy.

[73]. Dr. Jewett’s evidence was equivocal. In cross-examination, he eventually acknowledged that the statements in his written reports that “biopsy was optional” meant that a biopsy was not required:

Q. Well, I’m having trouble finding another interpretation of the phrase “biopsy was optional”. If you wanted to say that he needed to do a biopsy, why didn’t you say he needed to do a biopsy, it was required? You say biopsy is optional, he might have done.

A. I – to be, to be completely accurate, I said to consider a needle biopsy…

Q. Right, so…

A. So, I, I…

Q. And that’s different than being required to do one, isn’t it?

A. Yes. [^91]

[74]. Further, the location of the mass (intraparenchymal) would have rendered a biopsy more difficult and less fruitful. Dr. Orovan testified:

Well, I would say that needling in this case would have been extremely difficult. I think I said that in my examination in-chief. To hit this 2.5 centimetre mass deep in the kidney parenchyma, close to the vasculature, close to the collecting system, is just not technically doable.[^92]

[75]. All of the evidence adduced at trial supports the conclusion that a biopsy would have been inconclusive, would fail to rule out RCC, and that Ms. Watson would have required surgical intervention in any event.

Record Keeping

[76]. The importance of proper record-keeping has been recognized by the courts as part of the standard of care. In Adams v. Taylor, the court noted:

The clinical reason for record-keeping is the basic duty to provide average, reasonable and prudent care. … In order to carry out this care, two essentials are required. The first is to remind the person providing care of the past and present condition of the patient and the treatment already given. The second is to communicate this information to others who may also be caring for the patient.[^93]

[77]. A negative inference can be drawn when a physician’s record-keeping is lacking.[^94]

[78]. A physician’s failure to comply with the regulatory requirement for the maintenance of proper records can and has amounted to a breach of a reasonable standard of care. In Wells (Litigation Guardian of) v. Paramsothy, the court stated:

[The physician’s] lack of proper medical records makes his evidence quite incredible. ... Because of the lack of charting of any information given to [the patient] and her consent, I am also of the view that she did not consent to the treatment of Haldol during that year. [^95]

[79]. In order to be relevant in the standard of care analysis, record keeping must play a causative role in the adverse outcome.[^96]

[80]. While not perfect, I find that Dr. Soon’s record keeping met the standard of care. He took handwritten notes, dictated a clinical note and followed up with Ms. Watson when she called him. Further, his record keeping did not play a causative role in the adverse outcome in this case.

Conclusion on the Standard of Care

[81]. Dr. Soon met the standard of care in his treatment of Ms. Watson.

ii) Informed Consent

[82]. Informed consent is a distinct cause of action, separate from a breach of the standard of care.[^97] This requires the plaintiff to prove that:

(a) the physician failed to disclose the nature of the procedure or its material risks such that the patient was uninformed when undergoing the procedure in question;

(b) the patient herself would not have undergone the procedure in question had she been properly informed; and

(c) a reasonable person in the patient’s position would not have undergone the procedure in question if fully apprised of the material risks.[^98]

[83]. While a trier of fact should be alive to the particular concerns of a plaintiff when determining whether a doctor failed to disclose a material risk, the standard for what is material is not just subjective. A material risk is what “a reasonable person in the patient’s position would want to know about before deciding whether to proceed with the proposed treatment.”[^99]

[84]. The test for informed consent contains both a subjective and an objective component. The subjective test is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the patient. The objective test is based on what a reasonable person in the patient’s position would have done.[^100] Evidence that other patients regularly consent to the proposed treatment when risks are adequately disclosed is relevant to assessment of the objective test.[^101]

[85]. Both the subjective and the objective criteria must be established for the patient to prove on a balance of probabilities that the patient is entitled to damages for lack of informed consent.[^102]

[86]. Even if a doctor fails to inform a patient of particular risks, no action will lie if notwithstanding that failure, the patient was aware of and understood the material risks before undergoing the procedure. Put another way, there is no liability if the patient was otherwise informed of the risks.[^103]

[87]. In Hopp v. Lepp the court articulated the legal parameters of a physician’s duty of disclosure. As a general rule, the duty of disclosure requires a physician to answer any specific questions posed by the patient and, without being questioned, disclose the nature of the proposed treatment; its gravity; and any material, special or unusual risks involved. The scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.[^104]

[88]. Expert evidence as to the standard of disclosure is not essential - even in its absence it is open to the court to find that the doctor was negligent in failing to disclose the risk to the patient. In Ciarlariello v. Schacter, the court stated that “the crucial question in determining the issues is whether a reasonable person in the patient’s position would want to know of the risk”.[^105]

[89]. In Videto v. Kenny, the Ontario Court of Appeal summarized the duty of disclosure in accordance with the following principles:

(i) The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the professional standards of the medical profession at the time. The professional standards are a factor to be considered.

(ii) The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient's decision whether or not to undergo the operation. If the patient asks specific questions about the operation, then the patient is entitled to be given reasonable answers to such questions. In addition to expert medical evidence, other evidence, including evidence from the patient or from members of the patient's family is to be considered. In Reibl v. Hughes…Laskin C.J.C. stated:

The patient may have expressed certain concerns to the doctor and the latter is obliged to meet them in a reasonable way. What the doctor knows or should know that the particular patient deems relevant to a decision whether to undergo prescribed treatment goes equally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge.

(iii) A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.

(iv) The patient is entitled to be given an explanation as to the nature of the operation and its gravity.

(v) Subject to the above requirements, the dangers inherent in any operation such as the dangers of the anesthetic, or the risks of infection, do not have to be disclosed.

(vi) The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case.

(vii) The emotional condition of the patient and the patient's apprehension and reluctance to undergo the operation may in certain cases justify the surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific.

(viii) The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determine whether there has been a breach of the duty of disclosure. [Citations omitted.][^106]

[90]. The duty of disclosure is not confined to risks, but extends to other material information which a reasonable patient would want to know. In particular, the patient must be informed of any available alternatives to the treatment being proposed, if this is something which a reasonable person in the patient’s circumstances would want to know.[^107] Doctors do not have an obligation to disclose alternative treatment options unless they are clinically indicated or they would, in the view of the physician, be of some benefit to the patient.[^108]

[91]. In Van Dyke v. Grey Bruce Regional Health Centre, the Ontario Court of Appeal held that the ultimate decision of whether to proceed with a particular treatment rests with the patient and not the doctor. The doctor must equip the patient with the information necessary to make an informed choice:

It is impossible to delineate the reach of a doctor's disclosure obligation without regard to the facts and circumstances of specific cases. The extent to which a doctor must disclose and discuss alternative treatments will depend on a myriad of factual circumstances. The proper approach to the scope of the disclosure obligations can, however, be stated in a generalized way. The ultimate decision whether to proceed with a particular treatment rests with the patient and not the doctor. The doctor must equip the patient with the information necessary to make an informed choice. Where there is more than one medically reasonable treatment and the risk/benefit analysis engaged by the alternatives involves different considerations, a reasonable person would want to know about the alternatives and would want the assistance of the doctor's risk/benefit analysis of the various possible treatments before deciding whether to proceed with a specific treatment. Put differently, a reasonable person could not make an informed decision to proceed with treatment "A" if that patient was unaware of the risks and benefits associated with treatment "B", a medically appropriate alternative treatment.[^109]

Analysis of Informed Consent

[92]. Ms. Watson alleges that she proceeded to her nephrectomy uninformed. In particular, she alleges:

(a) That she was unaware that there was anything less than absolute certainty that the mass in her left kidney was cancerous, and that had she known, she would have refused treatment; and

(b) That she was unaware that her blood work of January 28, 2008 revealed a creatinine level of 108. Had she known of this value, she would have refused the recommended cancer treatment. (This became an evolving new claim as the trial progressed.)

[93]. I agree that Ms. Watson’s argument with respect to informed consent is dependent on her standard of care submissions. Ms. Watson submits that Dr. Soon was obligated to disclose other diagnoses (abscess) and other treatment options (starting with a biopsy). There was, however, no clinical basis to suspect an abscess and no reason to do a biopsy. In the analysis set out above, I have found the diagnosis of RCC to be reasonable and that a biopsy was not the standard of care.

[94]. There is also no basis to conclude that Dr. Soon failed to inform Ms. Watson of other treatment options. As set out above, physicians do not have an obligation to disclose alternative treatment options unless they are clinically indicated or there would, in the view of the physician, be some benefit to the patient.

[95]. The expert evidence was consistent in stating that in 2007, the only applicable treatment option for RCC was surgery.[^110]

[96]. Observation was only indicated for those with a short life expectancy. Ms. Watson did not have a short life expectancy. Ms. Watson agreed that Dr. Soon discussed observation with her.[^111]

[97]. The other “treatment option” that Ms. Watson submits that Dr. Soon ought to have discussed is a biopsy and drainage procedure. All the experts, however, agreed that in 2007 it was not the standard of care to biopsy a renal mass suspected for malignancy.[^112]There was no reason to suspect that Ms. Watson had a renal abscess.

[98]. Moreover, the further “alternate treatment” of a drainage procedure would only be offered or indicated if an abscess was in fact diagnosed by a biopsy. Drs. Howarth and Orovan were clear that a biopsy would not have diagnosed an abscess.

[99]. I agree that the change from Ms. Watsons creatinine level from 88 to 108 does not constitute material information which Dr. Soon had a duty to disclose. The increase had no impact on Ms. Watson’s cancer diagnosis and would not affect the reasonable patients decision to have surgery.

[100]. Dr. Orovan testified that there were limited conclusions that could be drawn from the various fluctuations in Ms. Watson’s creatinine levels. Between October of 2007 and February of 2008, Dr. Orovan noted that Ms. Watson’s creatinine was materially stable despite the various fluctuations.[^113] In this context, I agree that a single value of 108 could hardly be viewed as material information that Dr. Soon had a specific duty to disclose.

[101]. Dr. Soon also testified that a single creatinine reading is of marginal consequence. Due to fluctuations in creatine and in turn eGFR (estimated glomerular filtration rate), those results would have to be repeated over a three‑month period to properly classify Ms. Watson as suffering from stage three chronic kidney disease.[^114]An “eGFR of 50 (one single value) is not that useful”. He testified that you need to have another value three months from later for more validity.[^115]

[102]. Had Dr. Soon seen the January 28, 2008 blood work, he testified that he would not have called Ms. Watson to notify her.[^116]This is consistent with Dr. Richardson’s opinion that it is important to look at change in kidney function over time and that “a single value in a normal individual may be difficult to interpret.”[^117]

[103]. In any event, there is absolutely no evidence to explain why any reasonable patient would refuse cancer-treating surgery as a result of a single creatinine reading of 108. In 2007, RCC was not treatable except by surgery.[^118]If the disease metastasized, there were no treatment options, and it is fatal. Chronic kidney disease, however, is manageable.

[104]. Dr. Orovan testified that, “renal failure is treatable. It’s treatable by dialysis. It’s treatable by transplant. […] What can’t be treated is metastatic RCC in 2007.”[^119] He testified: “I have never had a patient in whom I’ve said this diagnosis is highly probably RCC, the only treatment is surgery, and untreated it will kill you, refuse surgery on the basis of the fact that they might, at some point in the future, have renal failure.”[^120]

[105]. I agree that Ms. Watson’s claim that had she known of this creatinine level she would not have undergone the necessary curative surgery for a potentially lethal and aggressive RCC is self-serving, and frankly unbelievable. In cross-examination, she acknowledged the nature of the consequences of a cancer diagnosis. She said “if I have cancer it has to come out.”[^121] There is no explanation for why this minimal creatinine increase altered her cost-benefit analysis regarding life-threatening cancer. Any reasonable person would proceed with this surgery.

Conclusion on Informed Consent

[106]. Dr. Soon disclosed the material information to Ms. Watson.

The Reasonable Person Would Have Undergone Surgery

[107]. Even though I have found that Dr. Soon disclosed the material information to Ms. Watson, I will nonetheless assess this issue as well.

[108]. The evidence from the medical witnesses demonstrates that the reasonable person in Ms. Watson’s position would have readily proceeded to surgery in order to treat a potentially aggressive and lethal cancer.

[109]. The evidence of the urologists was that the reasonable patient will elect to take the treatment choice that best protects against a deadly outcome:

(a) Dr. Orovan testified that he had never had a patient turn down a nephrectomy in the face of likely RCC. He testified that, “the risks were just too great, and the treatment options virtually non-existent.” [^122]

(b) Dr. Jewett testified that it is reasonable for patients to proceed with nephrectomies even knowing the possibility that the mass might be benign.[^123]

(c) Dr. Soon testified that “people elect to proceed with surgery because they have an understanding that RCC is a dangerous disease, and if left untreated will metastasize, become incurable and eventually they will die from metastatic RCC.”[^124]

[110]. The only patients who might decline a nephrectomy for suspected RCC are elderly patients or individuals with significant comorbidities.[^125] Ms. Watson was not in either of those categories.

[111]. I find that while Ms. Watson was not in optimal health, she was only 49 at the time of the nephrectomy and she was fit for the procedure. A reasonable person in Ms. Watson’s position would have undergone the nephrectomy.

iii) Causation

The Law of Causation

[112]. In a medical negligence action, the plaintiff must prove that the breach of the standard of care caused the plaintiff’s alleged injury. The tortious act of the wrongdoer must have caused the injury to the victim in order to justify compensation to the latter out of the pocket of the former.[^126] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.[^127]

[113]. The Supreme Court of Canada offered the following guidance on applying the “but for” test in Clements (Litigation Guardian of) v. Clements:

The test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury...

A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.[^128]

[114]. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury. In other words, that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry.[^129]

[115]. Proof that meeting the standard of care would have afforded a chance to avoid the outcome is not sufficient; it must be proven that adequate treatment more likely than not would have avoided the eventual outcome.[^130] “Loss of chance” is not compensable.[^131]

[116]. In many malpractice cases, however, 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 drawing an inference of causation, in the absence of evidence to the contrary.[^132] Causation may also be established by common sense inferences, through circumstantial evidence.[^133]

Analysis of Causation

[117]. In this case, Ms. Watson has not only failed to establish a breach of the standard of care; she has not established causation regarding her need for a kidney transplant and her end stage renal failure (“ESRF”). It is unfortunate that she had a healthy kidney that was removed. Her ESRF, however, has been caused by her own noncompliance with medical advice.

Was Ms. Watson Aware of the Effect of a Nephrectomy on her Diabetes and Renal Function?

[118]. I accept Dr. Soon’s evidence that the effect of a nephrectomy on Ms. Watson’s diabetes and renal function was discussed.

[119]. Ms. Watson also spoke about her upcoming surgery with Dr. Jagota on January 7, 2008.[^134] Dr. Jagota testified that he had a lengthy discussion with Ms. Watson about the procedure and its impact on her renal function:

Q. Okay. So she’s informing you that, that she needs surgery and you’re there for discussing with her the consequences of the surgery for her, right?

A. Yes, that’s right.

Q. And the effect it would have on her renal function?

A. Potentially, yes.

Q. Right. And that’s why – I mean that’s why you say a need for tight control?

A. Of course, of course, yes.

Q. Right? Because she’s just – she, she’s going to lose a kidney…

A. Yes, it’s more significant.

Q. …and you’re having a discussion with her about the effect that will have on her diabetes…

A. Correct.

Q. …and her renal function, right?

A. Correct, yes.

Q. And, and specifically – I mean not surprisingly, you’re discussing with her that the removal of the kidney is going to weaken her renal function,

A. Yes.

Q. And therefore that’s why you say, and the need for tight control, because you’re expressing to her that this is going to have consequences for her diabetes, right?

A. For her, for her kidney function specifically.

Q. For the kidney function yeah, sorry. And I take it you had a fulsome discussion with her in that regard and answered any questions that she had?

A. Yes.[^135]

[120]. Ms. Watson testified that after her appointment with Dr. Jagota, she understood that the nephrectomy would impact her renal function, and that this was significant in light of her diabetes.[^136] In particular, she understood that control of her blood sugars would be of increased importance.

[121]. Ms. Watson also testified that she conducted her own research into RCC and spoke with her family friend, Dr. Gupta, with respect to her diagnosis and treatment. Ms. Watson testified that Dr. Gupta “knew everything about her health”[^137] and she explained that she spoke to Dr. Gupta specifically to obtain information on Dr. Soon’s background.[^138]

[122]. On January 28, 2008, Ms. Watson also underwent a preoperative assessment at SGH where she was seen by at least two physicians.[^139]

[123]. Ms. Watson testified that she understood the consequences of the procedure for her kidneys. She acknowledged that she understood that the surgery could result in the need for a transplant or dialysis.[^140]

[124]. I conclude that Ms. Watson was aware of the effect of the nephrectomy on her diabetes and renal function.

Ms. Watson Would Continue to be a Non-Compliant Patient

[125]. Ms. Watson’s medical history confirms non‑compliance with medical advice. Dr. Jagota also did not follow up with Ms. Watson, which did not help matters. The non‑compliance includes the following:

(i) Since diagnosed with diabetes in September of 1995, any objective measurement of blood sugar control was well beyond acceptable. Dr. Jagota confirmed that she did not follow up when requested regarding her abnormal blood work results;

(ii) Dr. Jagota’s notes confirm that Ms. Watson was attending with an endocrinologist, Dr. Rosen, for her diabetes every six months since 2001. This is incorrect, as Dr. Rosen did not see her any time after 1997;

(iii) When referred to an endocrinologist, Dr. Gilbert, she attended twice and did not return after he asked her to bring the result of her sugars;

(iv) She did not attend with another endocrinologist, Dr. Marqus;

(v) In 2011 she was referred to an endocrinologist (Dr. Goguen) whom she saw five times, the last being in January of 2012. She never followed up as requested by him;

(vi) She was non-compliant in dealing with her breast abscess.

[126]. These are only some examples. I agree with Dr. Soon that Ms. Watsons theory of her case requires the court to find both that she was medically compliant and not medically compliant. Drs. Soon and Orovan were questioned as to whether her treatment should have been altered because of her poorly controlled diabetes. It was suggested in the cross‑examination of Dr. Orovan that her poor diabetic control should have affected Dr. Soons diagnosis. Ms. Watson wants, however, for me to find that she was a compliant patient –in an effort, I believe, to shift blame for her medical issues to Dr. Soon.

[127]. The overwhelming evidence of Ms. Watson`s non-compliance with her diabetes treatment confirms that absent the nephrectomy she would not have received the necessary care to avoid ESRF any later.

[128]. The reality of Ms. Watson`s situation is that despite the alleged negligence causing her loss of a kidney after her kidney transplant, she had a better functioning kidney than she had in February of 2008.

[129]. Dr. Richardson has confirmed the consequences of the descent into ESRF and the fact that a transplant would have occurred at some point. I agree with Dr. Soon that she is in a better position having received a transplant sooner. Somewhat unbelievably, she continues to be non‑compliant or non‑attentive with her medical care.

[130]. I conclude that Ms. Watson was a non‑compliant patient and continues to be so. Ms. Watson has failed to prove causation.

Further Causation Evidence

[131]. I agree that Dr. Soon ultimately did not need to call an expert nephrologist because he was able to rely on Ms. Watson’s expert, Dr. Richardson.

[132]. Dr. Richardson testified that it was possible that Ms. Watson would have required a transplant in 2011 even absent the nephrectomy.[^141] He also testified about three scenarios of the timing of the transplant and confirmed that he could not speculate on which of the scenarios was most likely.[^142] I agree that Ms. Watson’s submission that I should find that she would have required a transplant in 2015 is unsupported by even her own expert.[^143]

[133]. The evidence of Dr. Richardson was that Ms. Watson may well have required a kidney transplant at exactly the same time, or even earlier, had she not received the nephrectomy. By examining measured changes in Ms. Watson’s kidney function prior to and subsequent to the nephrectomy, Dr. Richardson provided the scenarios in order to estimate the rate of Ms. Watson’s expected renal decline absent the nephrectomy. He measured Ms. Watson’s pre‑nephrectomy rate of renal decline as at 12 mL per minute per year just prior to the nephrectomy, and considered the scenarios in which it could have slowed. Each scenario is dependent on Ms. Watson’s medical management and compliance:

Scenario #1: There are no changes in the medical management of Ms. Watson or in her compliance, and the steep rate of her kidney decline noted before the nephrectomy continues unabated until she reaches ESRF (the “status quo”). This likely would have resulted in the need for dialysis or transplant as early as 2011.[^144]

Scenario #2 Ms. Watson is not referred to a nephrologist at the time of the investigation of her left renal mass. Her kidney function continues to steeply decline until she reaches an eGFR of approximately 30, at which time her kidney dysfunction is recognized by a doctor or specialist. A referral to a nephrologist and successful medical intervention slows the rate of decline. This likely would have resulted in the need for dialysis or transplant around 2015.[^145]

Scenario #3: At the time of the investigation of Ms. Watson’s renal mass when her eGFR is approximately 50, she is referred to a nephrologist providing a level of care consistent with the care she received at St. Michael’s Hospital. Ms. Watson is compliant and properly controls her blood sugar and hypertension. This would result in the need for dialysis or transplant as late as 2021.[^146]

[134]. Dr. Richardson also testified that it is possible that the nephrectomy occasioned no change whatsoever in Ms. Watson’s trajectory:

Q. Okay and so if her decline in function is more rapid than 12 mL per minute per minute per year then she’s going to require a transplant or dialysis earlier than 2012 as you calculated it?

A. Correct.

Q. Right and it’s possible, if, if her creatinine level was drawn out a little bit longer than August 2005, that she ends up requiring a transplant or dialysis by 2011?

A. Yes.

Q. And even June 2011?

A. Yes.[^147]

[135]. Dr. Richardson testified that “it’s very, very difficult to speculate which of these is the most likely to have occurred.”[^148]

Q. Are you able to predict which scenario is more likely than not of the three scenarios?

A. No.[^149]

[136]. Ms. Watson has not proven that it was more likely than not that she would have required a transplant any later than she ultimately received one, and she has failed to prove that her nephrectomy has caused any damage.

[137]. There is no evidentiary basis to support Ms. Watson’s submission that Dr. Jagota would have referred her to a nephrologist in a timely manner. Even after her nephrectomy, Dr. Jagota did not order any blood work and did not refer her to a nephrologist. Ms. Watson was referred to a nephrologist by a family friend.[^150]

[138]. Ms. Watson cites the fact that Dr. Jagota referred her to an endocrinologist, Dr. Marqus, as evidence that Dr. Jagota would have referred her to the appropriate specialists.[^151] Ms. Watson, however, never attended the appointment that was scheduled with Dr. Marqus, and never made other arrangements.[^152] Moreover, this referral was more than a year after the nephrectomy. I note that in her closing submissions Ms. Watson now argues that she was an uncontrolled diabetic, somehow suggesting that Dr. Soon’s medical management ought to have changed.[^153] Ms. Watson, however, was a completely non‑compliant patient to a large extent, and was the author of her own misfortune. She continues to be non‑compliant. Her situation was not, however, helped by Dr. Jagota’s lack of follow-up.

[139]. There is no evidence to suggest that Ms. Watson’s diabetic care would have changed in the absence of the nephrectomy. As Dr. Richardson testified, her medical history indicates that either she was woefully non-compliant or her family physician failed to comply with diabetic guidelines, or both.[^154]

[140]. I agree that the nephrectomy did not cause harm that Ms. Watson would otherwise have avoided. There is no dispute that Ms. Watson was going into ESRF and would have required either dialysis or a kidney transplant in any event of her nephrectomy. As a result, Ms. Watson is not entitled to any damages for her kidney transplant or her decline into ESRF. Those problems were not caused by Dr. Soon.

[141]. Ms. Watson fairly acknowledged that she was destined for ESRF even without her nephrectomy. All consequences of the descent into ESRF, and the need for a transplant, would have occurred at some point.

Would Ms. Watson Have Been Referred to a Nephrologist Earlier?

[142]. Dr. Orovan testified that if a renal abscess was diagnosed and treated without surgery, that it would not be necessary to refer a patient to a nephrologist.[^155]

[143]. Dr. Richardson testified that if Ms. Watson’s renal mass had been identified as an abscess, she may have never been referred to a nephrologist.[^156]

[144]. Dr. Richardson testified that the most likely way that Ms. Watson’s compromised kidney function would have triggered a referral to a nephrologist would have been through the regular ordering of blood work to monitor creatinine and eGFR.[^157] Notwithstanding Ms. Watson’s diabetes, he testified that there is a shocking lack of blood work results from her records prior to her hospital attendances in late 2007. Dr. Richardson opined that “either [the plaintiff’s] family physician was failing to follow guidelines or that the [plaintiff] was resistant to following recommendations.”[^158]

[145]. Despite the fact that Dr. Jagota had been Ms. Watson’s family physician for roughly 15 years by the time of the nephrectomy, there were only five blood test results in Dr. Jagota’s records - September 11, 1995; February 26, 1996; June 2, 2000; November 20, 2002; and August 8, 2005.[^159] I should state that Dr. Jagota was a very candid witness in the face of the troubling evidence that was presented to him.

[146]. Dr. Jagota relied almost exclusively on Ms. Watson’s self-reporting of blood sugars, which were deficient for a number of reasons.[^160] Home testing of blood sugar levels does not provide a reading of hemoglobin A1C, a measurement that provides information about blood sugar control over a period of 3-4 months.[^161] Ms. Watson testified that she did not keep a log‑book of her blood sugars, and instead relied on the data storage in her glucometer, (readings for only a period of 30 days).[^162]As Dr. Jagota often did not see Ms. Watson for periods of time significantly longer than 30 days, there were significant periods of time for which Dr. Jagota had no information about her blood sugar control.

[147]. Ms. Watson’s results from 1995 to 2008 were universally abnormal - which should have been alarming to Dr. Jagota, given her relatively positive self-reporting of her blood sugar control.[^163] Despite these results, Dr. Jagota did not obtain further blood work or refer Ms. Watson to an endocrinologist at any time between 1995 and 2008.[^164]

[148]. I agree that the evidentiary record does not support a finding that Dr. Jagota would have at any time begun to order regular blood work, or that Ms. Watson would in any event have complied.

[149]. I also agree that there is no evidentiary basis to conclude that Ms. Watson would have engaged in the type of dedicated diabetic care needed to curb her decline into ESRF without the nephrectomy.

iv) Damages

[150]. Given my finding that Dr. Soon did not breach the standard of care, or cause any damages suffered by Ms. Watson, he is not liable for damages. However, given the time spent on this issue, I will provide my analysis to the parties nevertheless.

[151]. Ms. Watson claims compensation for general damages and an income loss. She also claims damages for loss of care, guidance and companionship on behalf of her late husband Alan Watson under the Family Law Act, R.S.O. 1990 c. F3 (“FLA”).

The Law of Damages

[152]. It is a basic principle that damages serve only to put the plaintiff in as good a position as she would have been in absent the defendant’s negligence. Damage awards reflect only the loss that was in fact occasioned by the defendant:

With respect to liability, the principle is that the defendant is liable if his or her wrongful acts were a cause of injury even though they were not the only cause. The principle with respect to damages is that the defendant is not responsible for injury or loss that the plaintiff would have suffered even absent the defendant’s wrongdoing.[^165]

[153]. Accordingly, where a plaintiff suffers from a pre-existing condition which will inevitably result in the same injury caused by the defendant’s wrongdoing, the defendant is not responsible for the injury. In Athey v. Leonati, the Supreme Court explained that this follows from the basic principles applicable to damages.[^166]

[154]. If an operation would have been inevitable in any event, there are no damages:

A plaintiff is not entitled to compensation for any pain, suffering, or loss of enjoyment of life, or any loss of income, arising from that operation except to the extent that the accident accelerated the necessity for the operation and that acceleration can be demonstrated to have resulted in damage that would not otherwise have occurred.[^167]

[155]. In Georghiades v. MacLeod, a doctor mistook a plaintiff’s appendicitis for a urinary tract infection.[^168] The court found that as a result of the misdiagnosis, the plaintiff’s pre-existing kidney disease was accelerated, resulting in further time on dialysis. The damages award was limited to the losses that resulted from the acceleration of end stage renal disease, such as the additional time on dialysis.[^169]

[156]. These principles apply to pecuniary and non-pecuniary damages.[^170] They also apply to limit both past and future loss. In fact, “if the point in time at which the natural degenerative processes probably would have resulted in the same level of disability that resulted from the accident falls before the date of trial, then there are not future damages to consider at all.”[^171]

[157]. Courts have consistently limited or reduced damages awards when plaintiffs have made claims for losses that would have likely occurred even absent a defendant’s negligence. The plaintiff must prove damages with evidence.[^172]

Analysis of the Damages Issues

[158]. Ms. Watson did not call any medical expert evidence with respect to her inability to work and the effect of the nephrectomy. There is no evidence supporting any connection between Dr. Soon’s alleged negligence and Ms. Watson’s inability to work. The normal period of time to recover post‑nephrectomy was one to two months.

[159]. Evidence established that work accommodations were available and that she could have worked from home (as she had in the past). She took no steps to seek any accommodations. The reality is that she has been able to obtain long term disability and a return to work would affect these payments.

[160]. Dr. Jagota’s evidence is that Ms. Watson is unable to work due to fatigue caused by her hypertension; diabetes; low hemoglobin; and anemia (not chronic kidney disease). Ms. Watson’s evidence is that the problem is her diarrhea. As set out above there is no causal connection between the allegedly negligent kidney removal and her diarrhea.

[161]. Despite working for a company that allowed its employees to work part time and from home, she has made no efforts to return to work. This is a failure to mitigate.

[162]. There is also no evidence that Ms. Watson experienced any identifiable symptoms after the nephrectomy that she had not already been suffering.

[163]. Dr. Richardson testified that the symptoms of chronic kidney failure generally do not manifest until a patient is at a relatively advanced stage and that these symptoms include fatigue; loss of appetite; nausea; vomiting; weakness; and shortness of breath.[^173] Dr. Richardson did not mention diarrhea.

[164]. Despite the fact that Ms. Watson was regularly seeing medical professionals after the nephrectomy, there is little evidence to substantiate Ms. Watson’s claims of constant nausea and vomiting following her surgery. In fact, many of the notes indicate expressly record that she was not suffering from nausea or vomiting.[^174]

[165]. In cross-examination Ms. Watson was confronted by the extensive documentation recording an absence of these complaints. Fairly she confirmed that she had no reason to doubt the accuracy of those records.

[166]. There is no report made of any nausea or any vomiting in any of Dr. Jagota’s notes since 2014.[^175]

[167]. The only symptom of chronic kidney disease that Ms. Watson experienced was fatigue – a non-specific symptom, according to Dr. Richardson.[^176] She testified however that her fatigue is a result of her nocturnal diarrhea, not a symptom of her chronic kidney disease:

Q. Okay, fair enough, and that gets us to my next point, which is really, when we boil all of this down, what your primary concern, the primary issue is that diarrhea, correct?

A. Well, that’s the most affecting me.

Q. Correct and when you spoke about your fatigue, that’s also linked to your diarrhea, isn’t it, because the diarrhea occurs often at night, correct?

A. Correct.

Q. And it keeps you up and interrupts your sleep, correct?

A. Correct.

Q. And so that contributes to the problem of fatigue, right?

A. Correct.[^177]

[168]. While the records show that Ms. Watson has suffered from chronic and nocturnal diarrhea since as early as 2000, she suggested that the medication she took post-nephrectomy exacerbated her pre-existing condition.[^178] There is no medical evidence (including expert) to support this allegation.

[169]. The only medication Ms. Watson took that was documented as having an impact on her bowel function was CellCept, an anti-rejection medication that she took for a brief period post‑transplant.[^179] When she was switched off this medication, her condition improved.[^180]

[170]. I find that given that Ms. Watson was destined for ESRF and a transplant or dialysis in any event of the nephrectomy, the fact that her bowel issues intensified for a period as a result of transplant medications is non‑compensable.

[171]. There is also no evidence that Ms. Watson’s diarrhea worsened and is connected to her decline in renal function she alleges was occasioned by the nephrectomy. Dr. Moore, a gastroenterologist who saw Ms. Watson in June of 2012, explained that “loose bowel movements with incontinence disturbing […] sleep” is “a classic diarrhea pattern for autonomic neuropathy related to diabetes.”[^181]

[172]. Ms. Watson’s diarrhea is a long standing problem that she suffered well before the nephrectomy. Dr. Jagota’s chart contains numerous records dating from 2001 documenting Ms. Watson’s extensive problem with chronic diarrhea.[^182]Dr. Jagota stated that Ms. Watson’s diarrhea “has been present for her for 16 years and the degree is the same.”[^183]

[173]. When confronted with Dr. Jagota’s evidence regarding the constancy of her diarrhea, Ms. Watson disagreed with his evaluation:

Q. So you disagree with Dr. Jagota’s assessment that the degree has been the same for 16 years?

A. I can’t – it’s hard to disagree with a doctor, but it has not been the same for 16 years. It’s been up and down, up and down, and for the last few years, it’s been nasty.

Q. So in other words, you do disagree with Dr. Jagota’s statement here that the degree has been the same, that in his…

A. Yeah, I do disagree.

Q. …professional opinion, basically this is not a new problem, this is a problem you have been suffering from for 16 years?

A. I agree with the – what you’re saying about the problem has been here for 16 years, but I’m not talking about the – I’m talking about the degree and it has changed, up and down, up and down, not five to six times a day.

Q. So in 2001 it was up to 20 times a day and you’re saying now on average it’s 5 to 6 times a day? So you would agree with me – I agree with you, it’s gone up and down, but the point is, it is as Dr. Jagota’s said, the degree is the same? Right?

A. I can’t say it is the same, I’m sorry.[^184]

[174]. I find that Ms. Watson has not provided any medical evidence that she suffered injuries that have been caused by the nephrectomy. She obviously had normal post‑operative issues, which were addressed.

[175]. Although I have found that the standard of care was met and Ms. Watson has not proven causation, she did have a healthy kidney removed. Had I found Dr. Soon liable (which I have not), I would have assessed those general damages in the amount of $40,000.00 and the estate’s claim under the FLA at $5,000.00. I would have awarded no loss of income claim. The claim for future care costs was abandoned during the course of the trial.

Summary of Conclusions

[176]. In summary, my conclusions with respect to this matter are as follows:

(i) Dr. Soon met the standard of care;

(ii) Ms. Watson failed to establish causation;

(iii) With respect to damages, had negligence been established Ms. Watson would be entitled to general damages only for the removal of the healthy kidney. Had I found that negligence was established, I would have assessed those damages in the amount of $40,000.00 and the estate’s claim for FLA damages at $5,000.00.

(iv) No loss of income claim has been established as a result of the removal of the kidney. The claim for future care costs was abandoned during the trial.

[177]. If the parties cannot agree on costs, they can provide written submissions. As I realize that the summer holiday season is approaching, I would appreciate it if counsel could discuss and submit a timeline so that I know when the submissions are coming. I will be away until the start of August. Please have the submissions sent to my assistant by email to Lorie.Waltenbury@ontario.ca .

J. E. Ferguson J.

Released: June 19, 2018

COURT FILE NO.: CV-13-482347

DATE: 20180301

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FIONA WATSON, FIONA WATSON, Litigation Administrator for the Estate of and ALAN WATSON, Deceased

Plaintiffs

– and –

DR. SAUL MANDELBAUM, DR. THEODORE F. SHAPERO, DR. HENRY KRIEGER, DR. SARAH ORTEGA, DR. SHAWN SOON, DR. J. DOE #1, DR. J. DOE #2, THE SCARBOROUGH HOSPITAL - GENERAL DIVISION, NURSE J. FO, NURSE S. BROOKER, NURSE P. RAPKOSKI, NURSE J. DOE #1 and NURSE J. DOE #2

Defendants

REASONS FOR DECISION

J. E. Ferguson J.

Released: June 19, 2018

[^1]: Dr. Michael Jewett, Cross-Examination, p. 26. [^2]: Dr. Michael Jewett, Cross-Examination, pp. 31-32. [^3]: Dr. Shawn Soon, Examination‑in‑Chief, pp. 103-104. [^4]: Crits v. Sylvester, 1956 34 (ON CA), [1956] O.R. 132 (C.A.), at para. 13, aff’d 1956 29 (SCC), [1956] S.C.R. 991. [^5]: Crawford v. Penny, [2003] O.J. No. 89 (S. C.), at paras. 236-249, aff’d [2004] O.J. No. 3369 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 496. [^6]: ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at paras. 33-34. [^7]: Grass (Litigation Guardian of) v. Women’s College Hospital, [2003] O.J. No. 5313 (S.C.), at para. 173. [^8]: Stell v. Obedkoff, [2000] O.J. No. 4011 (S.C.), at paras. 203-204. [^9]: MacGregor v. Potts, [2009] O.J. No. 3581, (S.C.), at para. 128. [^10]: Lapointe v. Hopital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351, at para. 28; ter Neuzen, at para. 47; Crits, at para. 15. [^11]: St. Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53; Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.), at para. 24. [^12]: Bafaro, at para. 26. [^13]: Lee v. Southlake Regional Health Centre, 2015 ONSC 7509, at paras 5, 141-143. [^14]: Pinch (Litigation guardian of) v. Morwood, 2016 BCSC 938, [2016] B.C.W.L.D. 4037 (S.C.), at para. 154, aff’d 2017 BCCA 234, [2017] B.C.W.L.D. 4328; Kungl v. Fallis, [1989] O.J. No. 15 (H.C.J.), at para. 97; Wilson v. Swanson, 1956 1 (SCC), [1956] S.C.R. 804, at para. 23. [^15]: Wilson, at para. 23; Lapointe, at para. 29, Pinch, at para. 154. [^16]: Handwritten note of Dr. Soon, December 27, 2007 (“HW Note, Dr. Soon”), Exhibit 1, Volume 1, Tab 9, p. 318; Examination‑in‑Chief of Dr. Soon, March 15, 2018, pp. 59-60. [^17]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, pp. 57-59. [^18]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 61, lines 1-10. [^19]: Ambulatory Care Clinic Report, Dr. Soon, December 27, 2007 (“Dr. Soon’s Clinical Note”), Exhibit 1, Volume 1, Tab 9, p. 319; Examination in Chief of Fiona Watson, March 9, 2018, p. 87, lines 31-32, p. 88, lines 1-14; Cross-Examination of Fiona Watson, March 13, 2018, p. 137, lines 8-20. [^20]: Dr. Soon’s Clinical Note, Exhibit 1, Volume 1, Tab 9, p. 319. [^21]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 65, lines 12-20; Cross-Examination of Dr. Jewett, March 7, 2018, p. 80, lines 16-27; Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 123, lines 24-30; Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 102, lines 7-26. [^22]: Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 102, lines 20-26; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 65, lines 12-16, p. 29, lines 15-17. [^23]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 99, lines 16-20. [^24]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 38, lines 3-6, p. 39, lines 28-31, p. 42, lines 13-15. [^25]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 77, lines 29-32, p. 78, lines 1-9. [^26]: Dr. Soon’s Clinical Note, Exhibit 1, Volume 1, Tab 9, p. 319; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 45, lines 20-25. [^27]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 87, lines 12-30. [^28]: Cross-Examination of Fiona Watson, March 13, 2018, p. 156, lines 27-32, p. 157, lines 1-13. [^29]: Examination‑in‑Chief of Dr. Soon, p. 78 line 21- p. 79 line 2. [^30]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 48, lines 13-17; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 19, lines 2-10; Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 82, lines 8-10; Cross-Examination of Dr. Jewett, March 7, 2018, p. 27, lines 10-17. [^31]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 106, lines 27-31; Cross-Examination of Dr. Orovan, March 20, 2018, p. 25, lines 2-6, p. 67, lines 1-8; Cross-Examination of Dr. Jewett, March 7, 2018, p. 26, lines 10-26; Examination‑in‑Chief of Dr. Soon, March 15, 2018, pp. 6-9. [^32]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 23, lines 18-21, p. 67, lines 5-8. [^33]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 34, lines 17-20. [^34]: December 18 Scan, Exhibit 1, Volume 1, Tab 8, p. 316, Section 52 Record of the Defendant. [^35]: Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 94, lines12-13; Examination‑in‑Chief of Dr. Soon, March 5, 2018, p. 8, lines 23-32; Cross-Examination of Dr. Orovan, March 20, 2018, p. 6, lines 14-32, p. 7. lines 1-2. [^36]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 24, lines 6-9, p. 76, lines 10-17; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 9, lines 16-18; Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 98, lines 23-32; Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 103, lines 10-20. [^37]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 8, lines 23-32. [^38]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 45, lines 20-25. [^39]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 7, lines 7-11. [^40]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 35, lines 15-31; Re-Examination of Dr. Orovan, March 20, 2018, p. 72, lines 25-32, p. 73, lines 1-7; Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 94, lines 25-32. [^41]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 35, line 1, p. 36, lines 1-3. [^42]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 36, lines 8-11. [^43]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 91, line 14. [^44]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 94, lines 19-24, p. 95, lines 3-4. [^45]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 97, lines 20-21. [^46]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 97, line 30-p. 98, line 1. [^47]: Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 102, lines 4-15; Cross-Examination of Dr. Jewett, March 7, 2018, p. 59, lines 29-32, p. 60, lines 1-3, p. 61, lines 1-8. [^48]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 27, lines 9-12. [^49]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 97, lines 30-32, p. 98, lines 1-7. [^50]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 6, lines 1-6, p. 44, lines 22-28, Cross-Examination of Dr. Soon, March 15, 2018, p. 128, lines 11-12, p. 139, lines 22-25, p. 142, lines 10-13; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 41, lines 24-29; Cross-Examination of Dr. Jewett, March 7, 2018, p. 73, lines 15-25. [^51]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 42, lines 1-2. [^52]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 41, lines 25-29. [^53]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 42, lines 2-3. [^54]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 42, lines 6-12. [^55]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 77, lines 13-24. [^56]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 70, lines 27-29. [^57]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 8, lines 11-12, p. 29, lines 22-25; Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 100, lines 20-21. [^58]: Examination‑in‑Chief of Dr. Partap, March 20, 2018, p. 100, line 32 – p. 101, lines 1-5. [^59]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 56. [^60]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 56, lines 19-23. [^61]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, pp. 57-59. [^62]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 58, lines 24-29. [^63]: Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 123, lines 3-8. [^64]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 61, lines 26-29. [^65]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 62, lines 18-32, p. 63, lines 1-10. [^66]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 65, lines 19-20. [^67]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 65, line 29, p. 66 line 8. [^68]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 66, lines 26-29. [^69]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 69, lines 4-6, p. 25, lines 2-4; Cross-Examination of Dr. Jewett, March 7, 2018, p. 86, lines 5-8. [^70]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 74, lines 12-14, Cross-Examination of Dr. Jewett, March 7, 2018, p. 25-30. [^71]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 76, lines 13-16. [^72]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 19, lines 14-19, p. 69, lines 12-16; Cross-Examination of Dr. Jewett, March 7, 2018, p. 83, lines 6-18, p. 88, lines 25-30. [^73]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 83, lines 11-13, 16-22; p. 88, lines 25-30; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 19, lines 17-19; Examination of Dr. Orovan, March 16, 2018, p. 100, lines 30-32. [^74]: Examination of Dr. Orovan, March 16, 2018, p. 114, lines 29-32, p. 115, lines 1-9, p. 116, lines 10-32;Examination of Dr. Howarth, March 21, 2018, p. 31, lines 20-32, p. 32, line 1, 13-32, p. 33, lines 1-11. [^75]: Plaintiff’s closing submissions, April 12, 2018, para. 8, para. 102(d), para. 105. [^76]: Examination‑in‑Chief of Dr. Howarth, March 21, 2018, p. 23, lines 18-31, 27, lines 4-6, p. 32, lines 30-32, p. 33, lines 1-11. [^77]: Examination‑in‑Chief of Dr. Howarth, March 21, 2018, p. 27, lines 4-22, p. 29, lines 15-32. [^78]: Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 127, lines 5-6. [^79]: Examination‑in‑Chief of Dr. Howarth, March 21, 2018, p. 14, lines 3-6, p. 21, lines 19-31, p. 32, lines 13-32, p. 33, line 1. [^80]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 16, lines 27-32, p. 17, line 1; Cross-Examination of Dr. Jewett, March 7, 2018, p. 89, lines 23-32, p. 90, lines 1-2; Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 93, lines 9-13, p. 118, lines 28-31. [^81]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 91, lines 30-32, p. 92, line 1-2, “Consensus Guideline – Management of Kidney Cancer” (2008), Exhibit 19. [^82]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 56, lines 2-12. [^83]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 11, lines 8-11. [^84]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 11, lines 20-22. [^85]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 11 lines 29-p 12, line 2. [^86]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 12, lines 21-24. [^87]: Examination‑in‑Chief of Dr. Howarth, March 21, 2018, p. 31, lines 5-12. [^88]: Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 42, lines 11-12. [^89]: Cross-Examination of Dr. Partap, March 20, 2018, p. 111, lines 12-24. [^90]: Re-Examination of Dr. Partap, March 20, 2018, p. 120, lines 25-32. [^91]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 91-93. [^92]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 38, lines 26-31. [^93]: Adams v. Taylor, 2012 ONSC 4208, 94 C.C.L.T. (3d) 144, at para, 36, citing Rose v. Dujon (1990) 1990 5950 (AB KB), 108 A.R. 352 (A.B.Q.B.). [^94]: Kolesar v. Jeffries et al. 1977 6 (SCC), [1978] 1 S.C.R. 491, at para 19. [^95]: Wells (Litigation Guardian of) v. Paramsothy [2000] O.J. No. 2390 (S.C.). at para. 154. [^96]: Loffler v. Cosman, 2010 ABQB 177, [2010] A.W.L.D. 5193, at para. 156. [^97]: Igloo v. Sleight Holm, 2012 ONSC 3092; Bollman v. Semen, 2014 ONCA 36, 315 O.A.C. 90. [^98]: Bollman, at paras. 20-23. [^99]: Revell v. Heartwell, 2010 ONCA 353, 266 O.A.C. 184, at para. 42. [^100]: Bollman, at paras. 20-21. [^101]: Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539, at para. 14. [^102]: Bollman, at paras. 20-21. [^103]: Ferguson v. Hamilton Civic Hospitals, 1983 1724 (ON SC), 40 O.R. (2d) 577 (H.C.J.), at para 62; Prevost v. Ali, 2011 SKCA 50, [2011] 9 W.W.R. 494, at paras. 35‑37. [^104]: Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192. [^105]: Ciarlariello v. Schacter, [1993] 2 S.C.R. No. 46, at para. 36. [^106]: Videto v. Kennedy, (1981) 33 O.R. (3d) 497, at para. 11. [^107]: Ferguson, at para. 6; Ross v. Welsh, (2003) 18 C.C.L.T. (3d) 107, at para. 130. [^108]: Mars v. Zav 200, [2009] No. 1317 (Ont. S.C.) at paras. 140-144. [^109]: Van Dyke v. Grey Bruce Regional Health Centre, (2005) 2005 18841 (ON CA), 197 O.A.C. 336, at para. 67. [^110]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 78, lines 14-16; Cross-Examination of Dr. Soon, March 15, 2018, p. 103, lines 9-14; Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 11, lines 5-7, p. 111, lines 16-25; Cross-Examination of Dr. Jewett, March 7, 2018, p. 26, lines 27-30. [^111]: Examination‑in‑Chief, March 9, 2018, p. 88, lines 30-32, p. 89, lines 1-4; Cross-Examination of Fiona Watson, March 13, p. 149, lines 1-20. [^112]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 16, lines 27-32, p. 17, line 1; Cross-Examination of Dr. Jewett, March 7, 2018, p. 89, lines 23-32, p. 90, lines 1-2; Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 93, lines 9-13, p. 118, lines 28-31; Examination‑in‑Chief of Dr. Jewett, March 6, 2018, p. 137, lines 12-17; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 10, lines 9-13. [^113]: Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 123, lines. 7-9, 18-25. [^114]: Cross-Examination of Dr. Soon, March 15, 2018, p. 125, lines 28-32. [^115]: Cross-Examination of Dr. Soon, March 15, 2018, p. 125, lines 13-15. [^116]: Cross-Examination of Dr. Soon, March 15, 2018, p. 127, lines 26-31. [^117]: Examination in Chief of Dr. Robert Richardson, March 8, 2018, p. 32 line 31 – page 33 line 2. [^118]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 78, lines 14-16; Cross-Examination of Dr. Soon, March 15, 2018, p. 103, lines 9-14; Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 11, lines 5-7, p. 111, lines 16-25; Cross-Examination of Dr. Jewett, March 7, 2018, p. 26, lines 27-30. [^119]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 41, lines 3-7. [^120]: Cross-Examination of Dr. Orovan, March 20, 2018, p. 44, lines 2-7. [^121]: Cross-Examination of Fiona Watson, March 13, 2018, p. 161. lines 5-7. [^122]: Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 112, lines 6-10; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 103, lines 23-29. [^123]: Cross-Examination of Dr. Jewett, March 7, 2018, p. 32, lines 11-14. [^124]: Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 103-104. [^125]: Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 112, lines 6-10; Examination‑in‑Chief of Dr. Soon, March 15, 2018, p. 103, lines 23-29. [^126]: Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, at para. 26. [^127]: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8; Snell, at para. 26. [^128]: Clements, at para. 8. [^129]: Clements, at para. 8. [^130]: Cotrelle v. Gerrard, (2003) 2003 50091 (ON CA), 178 O.A.C. 142 (C.A.), at para. 25; Beldycki, at para 44. [^131]: Cottrelle, at para. 25; Salter et al v. Hirst, 2011 ONCA 609, 282 O.A.C. 353, at para. 14. [^132]: Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, at para. 31. [^133]: Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, 287 O.A.C. 223, at para. 43. [^134]: Handwritten clinical note of Dr. Jagota, January 7, 2008, Exhibit 1, Volume 1, Tab 1, p. 13. [^135]: Cross Examination of Dr. Jagota, March 13, 2018, p. 58 line 32 - p. 59, line 29. [^136]: Cross Examination of Fiona Watson, March 13, 2018 at p. 166, lines 2-17. [^137]: Cross-Examination of Fiona Watson, March 13, 2018, p. 157 lines 27-32, p. 158, lines 1-2. [^138]: Cross-Examination of Fiona Watson, March 13, 2018, p.158, lines 18-32, p. 159, lines 1-3. [^139]: Cross-Examination of Fiona Watson, March 13, 2018, p. 168-170; Pre-Operative Consultation Report, Dr. Christopher Hawling, January 28, 2008, Exhibit 1, Volume 1, Tab 10, p. 329. [^140]: Examination of Fiona Watson, March 13, 2018, p. 163, lines 3-7. [^141]: Cross-Examination of Dr. Richardson, March 8, 2018, p. 75, lines 2-7. [^142]: Examination in Chief of Dr. Richardson, March 8, 2018, p. 67, lines 15-17. [^143]: Plaintiff’s Closing Submissions, April 12, 2018, para 179. [^144]: Cross-Examination of Dr. Richardson, March 8, 2018, p. 75, 2-7. [^145]: Examination‑in‑Chief of Dr. Richardson, March 8, 2018, p. 64, line 27 to p. 65 line 7. [^146]: Examination‑in‑Chief of Dr. Richardson, March 8, 2018, p. 64, lines 9-21. [^147]: Cross-Examination of Dr. Richardson, March 8, 2018, pp. 74-75. [^148]: Examination‑in‑Chief of Dr. Richardson, March 8, 2018, p. 66, lines 30-31. [^149]: Examination‑in‑Chief of Dr. Richardson, March 8, 2018, p. 67, lines 15-17. [^150]: Examination‑in‑Chief of Fiona Watson, March 9, 2018, p. 117, lines 11-24. [^151]: Plaintiff’s Closing Submissions, April 12, 2018, para 179(d). [^152]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 24, lines 15-22, p. 25, lines 10-17; Cross-Examination of Fiona Watson, March 14, 2018, p. 11, lines 23-32, p. 12, lines 1-3. [^153]: Plaintiff’s Closing Submission, April 12, 2018, para 159. [^154]: Cross-Examination of Dr. Richardson, March 8, 2018, p. 92, lines 21-25. [^155]: Examination‑in‑Chief of Dr. Orovan, March 16, 2018, p. 130, lines 26-32. [^156]: Cross-Examination of Dr. Richardson, March 8, 2018, p. 84, lines 22-32. [^157]: Cross-Examination of Dr. Robert Richardson, March 8, 2018, p. 78 lines 14-20. [^158]: Cross-Examination of Dr. Robert Richardson, March 8, 2018, p. 80, lines 12-19. [^159]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 30, lines 5-13, p. 31, lines 2-8, 28-32, p. 32, lines 1-6, p. 41, lines 4-13; Blood Test Results, September 11, 1995, Exhibit 1, Volume 5, Tab 1, p. 2496; Blood Test Results, February 26, 1996, Exhibit 1, Volume 5, Tab 1, p. 2495; Blood Test Results; Blood Test Results, June 2, 2000, Exhibit 1, Volume 1, Tab 1, p. 39; Blood Test Results, November 20, 2002, Exhibit 1, Volume 1, Tab 1, p. 48; Blood Test Results, August 8, 2005, Exhibit 1. Volume 1, Tab 1, pp. 59-60, (Also see “Colour Copy of Laboratory Results dated August 10, 2005, Exhibit 11). [^160]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 13, line 17-25. [^161]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 6, lines 12-28; Cross-Examination of Fiona Watson, March 12, 2018, p. 53, lines 17-30. [^162]: Cross-Examination of Fiona, Watson, March 14, 2018, p. 12, lines 26-28. [^163]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 50, lines 25-29; Examination in Chief of Dr. Jagota, March 12, 2018, p. 99, lines 15-20, p. 101, lines 3-12, p. 108, lines 15-21, 32, p. 109, lines 1-11, p. 124, lines 26-32, p. 125, lines 1-6, p. 128, lines 1-8, p. 131, lines 13-18. [^164]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 22, lines 17-23, p. 23, lines 2-4, 18-24, p. 24, lines 4-22. [^165]: B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120, 260 N.S.R. (3d) 257, at para 159. [^166]: Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 35. [^167]: Dimler v. Stanley, [1988] B.C.W.L.D. 1879, at para 31. [^168]: Georghiades v. MacLeod, [2005] O.J. No 1701 (S.C.); see also Murphy v Langlois, [1999] O.J. No. 162 (C. J.). [^169]: Georghiades, at paras 159-176. [^170]: Corrado v. Mah, 2006 BCSC 1191, [2007] B.C.W.L.D. 162, at para 56. [^171]: Dimler, at para. 32. [^172]: Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, 2000 B.C.T.C. 750. [^173]: Examination‑in‑Chief of Dr. Robert Richardson, March 8, 2018, p. 432, lines 4-7. [^174]: Cross-Examination of Fiona Watson, March 14, 2018, 2018, pp. 30-40, 60-67; Nephrology Office Consult, May 16, 2008, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 1, pp. 457-460; Progressive Renal Disease Ambulatory Consult, August 15, 2008, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 1, pp. 471-472; Progressive Renal Disease Ambulatory Consult, January 20, 2009, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 1, pp. 487-488; Progressive Renal Disease Ambulatory Consult, November 5, 2009, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 1, pp. 518‑19; Progressive Renal Disease Ambulatory Consult, August 8, 2010, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 3, pp. 685-686; Progressive Renal Disease Ambulatory Consult, November 29, 2010, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 3, pp. 761-762; Progressive Renal Disease Ambulatory Consult, February 9, 2011, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 3, pp. 770-771; Urology Ambulatory Consult, April 18, 2011, Dr. John Honey, Exhibit 1, Volume 2, Tab 3, pp. 796-797; Progressive Renal Disease Ambulatory Consult, April 20, 2011, Dr. Sandra Donnelly, Exhibit 1, Volume 2, Tab 3, pp. 798-799; St. Michael’s Transport Clinic Report, July 21, 2011, Dr. Darren Yuen, Exhibit 1, Volume 3, Tab 4, pp. 1602-1603; St. Michael’s Transport Clinic Report, November 24, 2011, Exhibit 1, Volume 2, Tab 2, pp. 555-556; St. Michael’s Transport Clinic Report, July 24, 2014, Dr. Shamy, Exhibit 1, Volume 2, Tab 5, pp. 1299-1300. [^175]: Clinical Note, February 3, 2014, Dr. Jagota, Exhibit 1, Volume 1, Tab 1, p. 33; Clinical Note, September 8, 2015, Dr. Jagota, Exhibit 1, Volume 1, Tab 1, p. 34; Clinical Note, September 8, 2017, Dr. Jagota, Exhibit 1, Volume 1, Tab 1, p. 35. [^176]: Examination in Chief of Dr. Richardson, March 8, 2018, p. 42, lines 4-5. [^177]: Cross-Examination of Fiona Watson, March 14, 2018, p. 67, lines 9-22; See also: Examination‑in‑Chief of Fiona Watson, March 9, 2018, p 124 lines 28 to 125, line 8. [^178]: Examination‑in‑Chief of Fiona Watson, March 9, 2018, p.133, lines 15-20; Examination‑in‑Chief of Fiona Watson, March 12, 2018, p. 24, lines 22-29, p. 27, lines 22-28; Cross-Examination of Fiona Watson, March 14, 2018, p. 68, lines 3-9. [^179]: Cross-Examination of Fiona Watson, March 14, 2018, p. 68, lines 10-14. [^180]: Cross Examination of Fiona Watson, March 14, 2018, p. 68, line 10 – p 69, lines 8-10; Record of Transplant Clinic, St. Michael’s Hospital, July 25, 2011, Dr. Jenny Huckle, Exhibit 1, Volume 2, pp. 1068-1069; Office Consult of Dr. Terence Moore, June 12, 2012, Exhibit 1, Volume 2, Tab 4, pp. 1211-1213, Section 52 Record of the Defendant. [^181]: Office Consult of Dr. Terence Moore, June 12, 2012, Exhibit 1, Volume 2, Tab 4, p. 1211, Section 52 Record of the Defendant. [^182]: Consultation letter addressed to Dr. Jagota from Dr. Naresh Mohan, June 9, 2000, Exhibit 1, Volume 1, Tab 1, p. 41; Referral letter to Dr. J. Wang from Dr. Jagota, June 12, 2001, Exhibit 1, Volume 1, Tab 1, p. 43; Consultation letter addressed to Dr. Jagota from Dr. James Wang, August 9, 2001, Exhibit 1, Volume 1, Tab 1, pp. 44-45; Referral note to Dr. Shaikh from Dr. Jagota, February 27, 2007, Exhibit 1, Volume 1, Tab 1, p. 73; Consultation letter to Dr. Jagota from Dr. Wajid Shaikh, March 6, 2007, Exhibit 1, Volume 1, Tab 1, p. 76. [^183]: Cross-Examination of Dr. Jagota, March 13, 2018, p. 82, lines 15-17; Clinical Note of Dr. Jagota, September 8, 2017, Exhibit 1, Volume 1, Tab 1, p. 35. [^184]: Cross-Examination of Fiona Watson, March 14, 2018, pp 70 line 22-page 72, line 1.