COURT FILE NO.: 1624/13

DATE: 20190214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wayne Skillings and Carla Skillings

Plaintiffs

– and –

Dr. Michael Lo and Dr. Patrick Colquhoun

Defendants

James Brown, for the Plaintiffs

Andrea Plumb, Fred Tranquilli and Natalie Carruthers as counsel for the Defendants

HEARD: April 3,4,5,6,9,10,11 2018;

April 27, 30 2018

Reasons for Judgment

Templeton j.

[1] This case concerns the issue of communication between doctor and patient and addresses liability only.

Clinical Background

[2] Mr. Wayne Skillings was born on February 19, 1950 and worked until his retirement in 2009. He is married to Carla Skillings.

[3] In 1999, Mr. Skillings became a patient of Dr. Lo who was a general practitioner in Windsor. Dr. Lo saw Mr. Skillings on a regular and frequent basis for the maintenance of long-term medication required to treat problematic bowel movements.

2002

[4] In April 2002, during the course of an examination of Mr. Skillings, Dr. Lo noted the presence of what he thought to be colon polyps and in early 2003 referred Mr. Skillings to Dr. Andrew Petrakos, a general surgeon in Windsor.

2003

[5] On February 4, 2003, Dr. Petrakos examined Mr. Skillings and noted a “large fixed mass in the upper rectum compatible with a malignancy”. Dr. Petrakos ordered a CAT scan of Mr. Skillings’ abdomen and pelvis.

[6] At the time, Dr. Petrakos did not think that the tumour was resectable and he discussed the possibility of the need for a colostomy with Mr. Skillings. Unfortunately, the CAT scan subsequently confirmed the presence of a bulky tumour. There was enough suspicion and clinical concern that although negative for cancer, Dr. Petrakos decided that Mr. Skillings should undergo a combination of chemotherapy and radiotherapy.

[7] In September 2003, Dr. Petrakos reassessed Mr. Skillings. The tumour was smaller but Dr. Petrakos was unsure that he could perform a sphincter saving procedure and referred Mr. Skillings to Dr. Grant, a colorectal surgeon in Toronto.

[8] On or about September 29, 2003, Dr. Grant met with Mr. Skillings and confirmed that following the treatment he had undergone with radiotherapy and chemotherapy, his tumour mass had largely resolved Mr. Skillings. Dr. Grant recommended that the next step consist of a primary resection of the rectum and reviewed the risks of a low anterior resection. These risks included infection, bleeding requiring transfusions, stroke, myocardial infarction, pulmonary embolus, pneumonia, and anastomotic leak, anastomotic dehiscence, impotence, and delayed healing of the perineal wound etc.

[9] On October 16, 2013, Dr. Grant performed surgery on Mr. Skillings that consisted of a resection with a loop ileostomy to defunction the anastomosis.

[10] Unfortunately, however, on November 20, 2003, Mr. Skillings was assessed as having developed a pelvic abscess that required drainage. A drain was inserted and Mr. Skillings recovered.

[11] Mr. Skillings did not wish to return to work until the ostomy was reversed. Dr. Grant had indicated that he would need the stoma for three to six months.

2004

[12] On January 19, 2004, Mr. Skillings returned to see Dr. Petrakos. Upon examining Mr. Skillings, Dr. Petrakos formed the view that rather than Dr. Grant’s estimate of three months, the ileostomy would likely need to be in place for six months taking into account the inflammatory reaction and abscess Mr. Skillings had incurred in his pelvis.

[13] In his report to Dr. Lo on January 19, 2004, Dr. Petrakos wrote that Mr. Skillings was “somewhat disappointed to hear this” and went on to indicate that he would be reluctant to close Mr. Skillings’ ostomy quickly.

[14] On March 25, 2004 Dr. Petrakos noted that Mr. Skillings had disclosed that his “nerves are a bit on edge regarding continued management of his ileostomy”.

[15] On April 4, 2004, Mr. Skillings underwent a gastrofin enema which revealed that at the anastomotic site, Mr. Skillings had a leak into the presacral space.

[16] On April 8, 2004, Dr. Petrakos notified Dr. Lo and told Mr. Skillings that he would not be able to close the ileostomy because of this leak.

[17] He also scheduled Mr. Skillings for a CAT scan of his chest to rule out pulmonary metastases. Dr. Petrakos recorded that Mr. Skillings was “quite upset because of the findings”.

[18] Subsequent test results revealed that the abscess located at the anastomosis in Mr. Skillings’ pelvis had decreased in size and that the fluid collection in the presacral region had also decreased but that the fistula was still present. This latter finding meant that the ileostomy could not yet be closed.

[19] Tests were conducted regularly over the following months.

2005

[20] On February 7, 2005, Mr. Skillings met with Dr. Petrakos at which time they had a long discussion about management options. Dr. Petrakos recommended that Mr. Skillings meet with Dr. Grant again for a reassessment. The dehiscence of the anastomosis with a pelvic abscess had been managed conservatively but the defect in the anastomosis had persisted unchanged for over a year.

[21] On March 1, 2005, Mr. Skillings met again with Dr. Grant in Toronto.

[22] Dr. Grant indicated that in his view, it would be reasonable to attempt to close the loop ileostomy at that time. He wrote, “[u]sually these anastomotic leaks do not cause long-term problems as the cavity is surrounded by dense scar tissue and there are no problems with infection. However, occasionally patients will develop abscesses and fistulas. The only way to know whether it will be trouble-free or not is to close the ileostomy.”

[23] He also noted that he warned Mr. Skillings that it was impossible to predict with confidence how he (Mr. Skillings) would fair after the operation. Given his problems with the ileostomy, however, he [Dr. Grant] thought it would be worth giving the ostomy closure a try. In his opinion, if the operation were unsuccessful then consideration could be given to revision anastomosis which would be technically possible but would be a very difficult procedure; or, a permanent sigmoid colostomy.

[24] On April 7, 2005, Dr. Petrakos replied to Dr. Grant and advised that he would be reluctant to close the ileostomy in view “of the persistent sinus tract out of the area of the anastomosis”. He also indicated to Dr. Grant that he had explained his concerns to Mr. Skillings and that he thought that Mr. Skillings would have the procedure done in Toronto.

[25] In or about early April, however, Mr. and Mrs. Skillings found a surgeon in the United States by dint of their own research and initiated contact with him.

[26] On April 27, 2005, Mr. Skillings met with Dr. Weaver, the Chief of Oncologic and General Surgery at Wayne State University, Detroit Medical Centre.

[27] During the course of this consultation, Dr. Weaver recommended to Mr. Skillings that he undergo a “flexible sigmoidoscopy with balloon dilation of the anastomosis” and then an “attempt to fill the fistula tract with fibrin glue”. In Dr. Weaver’s opinion, it was possible that this procedure would eventually allow the fistula tract to heal. If this procedure did not work, his suggestion was that Mr. Skillings have “the entire anastomosis redone which would be best accomplished through a trans-sacral approach”.

[28] Mr. Skillings applied for funding from OHIP for the cost of this three-step procedure recommended by Dr. Weaver. OHIP denied Mr. Skillings’ claim and Mr. Skillings decided to pay for the procedure personally.

[29] By the end of October 2005, the procedure recommended and performed by Dr. Weaver in Detroit had been completed and Mr. Skillings’ sinus tract had been successfully closed by way of an “injection of glue therapy”.

[30] On December 7, 2005, Mr. Skillings had another CAT scan.

[31] On December 22, 2005, Mr. Skillings met with Dr. Petrakos at which time they reviewed the results. The scan revealed that there was no definite fluid collection. Mr. Skillings told Dr. Petrakos that he wished to have Dr. Petrakos consider closure of his ileostomy.

[32] In his chart dated December 22, 2005, Dr. Petrakos wrote that he had explained the procedure regarding closure of the ileostomy to Mr. Skillings and, in addition, the associated risks which included a reopening the sinus tract, a recurring pelvic sepsis, or the repeated need for ostomy drainage and/or laparotomy.

[33] Dr. Petrakos further wrote that Mr. Skillings was “anxious to proceed on with the operative intervention which had been booked for February 15, 2006”.

2006

[34] On February 15, 2006 Dr. Petrakos closed the ileostomy.

[35] In June 2006, Mr. Skillings returned to work and thereafter, underwent regular colonoscopies with no clinical evidence of recurrent malignancy.

2010

[36] Unfortunately, in November 2010, Dr. Petrakos attempted a colonoscopy on Mr. Skillings but it appeared to Dr. Petrakos that carcinoma of the rectum had returned. The bowel wall bled quite easily and Dr. Petrakos was unable to find the anastomosis. In addition, there was scarring from the prior leak and Mr. Skilling appeared to have a significant infection in his pelvis.

[37] A CAT scan confirmed that there was a soft tissue mass behind the rectum.

[38] In his report on November 8, 2010 to Dr. Lo, Dr. Petrakos confirmed his findings that Mr. Skillings had a “marked inflammatory reaction with the exudate and friability in the rectum especially around the anastomosis and the lower rectum”.

[39] In Dr. Petrakos’ opinion, if this was recurring cancer, Mr. Skillings’ bowel would eventually be obstructed and a colostomy or ileostomy would be required. Dr. Petrakos wrote that “The implications of recurrent, non-resectable malignancy were discussed in detail with both he and his wife and they were obviously upset as one would expect”.

[40] On December 8, 2010, the results of an MRI indicated that there was a 6 x 3 cm fluid collection in the presacral space. Further, there was communication with the rectum.

[41] According to the evidence, this finding was abnormal and indicated that a hole in Mr. Skillings’ bowel had reopened. According to medical opinion, this occurrence would lead one to assume that there was a weakness at the anastomosis where the leak had occurred years earlier.

[42] During the course of his consultation with Mr. Skillings on December 20, 2010, Dr. Petrakos suggested that Mr. Skillings undergo a gastrografin enema. The evidence before me is that this enema would likely corroborate the preliminary opinion that there was a hole and communication between Mr. Skillings’ bowel and the presacral space.

[43] But Mr. Skillings declined to undergo this procedure apparently on the basis that he was feeling well; he wanted to go to Texas with his wife for several months; and, he wished for only conservative management at that time. He indicated to Dr. Petrakos that he wanted to be reassessed when he returned from his trip.

[44] During this same meeting, Dr. Petrakos also discussed with Mr. Skillings, the differential diagnosis of “benign” versus “malignant” disease. Notwithstanding this information, Mr. Skillings reiterated his desire for only conservative management. Mr. Skillings told Dr. Petrakos that he wanted to go away on holidays and that he would get back in touch with Dr. Petrakos when he returned or if he had any symptoms. Dr. Petrakos told Mr. Skillings that Mr. Skillings could contact him even while he was away.

2011

[45] It appears that Mr. Skillings next saw a physician, namely, Dr. Lo, on March 25, 2011 and/or March 30, 2011. There was no reference to the anastomotic issue during this consultation. Mr. Skillings did not meet with Dr. Petrakos upon his return from holidays until on or about June 20, 2011.

[46] On June 17, 2011, however, Mr. Skillings did return to see Dr. Weaver in Detroit. This consultation addressed the findings of the MRI and CAT scan Dr. Petrakos had ordered in late 2010, the results of which he had discussed with Dr. Petrakos on December 20, 2010.

[47] At the conclusion of his meeting with Mr. Skillings, Dr. Weaver proposed a “trans sacral approach to remove the cystic lesion and repair the anastomotic sinus tract”.

[48] On June 20, 2011, Mr. Skillings returned to see Dr. Petrakos with the written surgical recommendation of Dr. Weaver, in hand. Dr. Petrakos reviewed the procedure proposed by Dr. Weaver and indicated that he was not certain that such an approach would be of any benefit to Mr. Skillings. Dr. Petrakos advised Mr. Skillings that he would not perform this type of surgery.

[49] Mr. Skillings asked Dr. Petrakos for a referral to someone in London. Dr. Petrakos referred Mr. Skillings to Dr. Colquhoun, a colorectal surgeon in London, for another opinion. He also ordered another CAT scan.

[50] On June 23, 2011 Mr. Skillings underwent a CAT scan of his abdomen and pelvis at the Windsor Regional Hospital. The radiologist wrote that “surgical anastomotic clips were also noted at the rectoanal junction, associated with a large, locally infiltrative mass lesion infiltrating the presacral soft tissue with an air-fluid level noted along the superior aspect of the presacral region measuring 3 x 2.5 x 4 cm present since the previous examination described above; appears to extend into the sciatic foramina on both sides, left more than right.”

[51] On June 28, 2011, Dr. Colquhoun’s medical secretary sent a letter to Mr. Skillings in Windsor indicating the time and date of his consultation with Dr. Colquhoun and instructions regarding preparation for that consultation.

[52] On August 5, 2011, Mr. Skillings met with Dr. Colquhoun at the Health Sciences Centre in London. A medical student took Mr. Skillings’ history and noted that in his/her view, Mr. Skillings needed more immediate management and that the issue was unlikely to be a recurrent malignancy.

[53] In his Consultation Note, Dr. Colquhoun recorded that Mr. Skillings had had aggressive narrowing of his anastomosis. He also noted that Mr. Skillings was having significant back and leg pain. It was Dr. Colquhoun’s opinion that Mr. Skillings’ problems were more likely “related to complications from his prior interventions than cancer recurrence”.

[54] Like Dr. Petrakos, it was Dr. Colquhoun’s opinion that Mr. Skillings needed to undergo a gastrografin enema. Dr. Colquhoun also stated that an examination under anaesthesia, to obtain a more definitive answer with respect to management would be required.

[55] Dr. Colquhoun further indicated in his Note that he would not be prepared to offer the management plan outlined by Dr. Weaver in Detroit. It was Dr. Colquhoun’s view that even after performing all of the investigations as outlined in his consultation, he may still arrive at the same opinion to not provide the nature of care recommended by Dr. Weaver.

[56] Dr. Colquhoun suggested to Mr. Skillings that it might make more sense in these circumstances for Mr. Skillings to revisit the issue regarding this type of surgical procedure with Dr. Weaver.

[57] Dr. Colquhoun further indicated in his Note, that he warned Mr. Skillings about potential bowel obstruction and advised him that should he run into these types of problems, it would probably make the most sense for Dr. Petrakos to deal with this complication. He confirmed that in his view, such a complication would likely involve some form of ostomy.

[58] To Dr. Colquhoun, Mr. Skillings appeared to understand these issues.

[59] Mr. Skillings told Dr. Colquhoun that he very much wanted to pursue the proposed treatment in Detroit but that the monetary issues with respect to this plan were too great for him to handle. He therefore definitely want to receive his medical care in Canada.

[60] At the conclusion of this Note, Dr. Colquhoun recorded that he would initiate “things” but would not be able to provide a definitive care opinion without performing the required investigations. He recommended that Mr. Skillings undergo a PET scan.

[61] Thereafter, Mr. Skillings signed a Consent form for entry into the Ontario PET Registry and a Consent form for the Ontario PET Registry Study. Dr. Colquhoun completed the Ontario PET access program request on behalf of Mr. Skillings and sent it in.

[62] The purpose of the PET scan was for a diagnosis and determination whether treatment or observation of Mr. Skillings’ medical issues were required. If the PET scan was positive, Dr. Colquhoun intended a repeat exploration of the pelvis, post low anterior resection and colostomy. If the PET scan was negative, Dr. Colquhoun’s intention was to try and preserve the anastomosis and intestinal continuity. In his opinion, the PET scan was required because the CATs, MRIs and colonoscopies done on Mr. Skillings had been inconclusive to date. Dr. Colquhoun was hoping that with the information provided by a PET scan, he would be able to differentiate scar tissue versus a recurrence of other issues.

[63] On the same day as the consultation, Dr. Colquhoun’s medical secretary sent a letter to Mr. Skillings’ address in Windsor asking Mr. Skillings to sign a Release of Information Consent Form. This Consent Form was to allow Dr. Colquhoun to obtain information from Dr. Grant regarding the surgery Dr. Grant had performed on Mr. Skillings in 2003. She also needed to contact the hospital where the surgery had been performed and was seeking to obtain the hospital records as well.

[64] Mr. Skillings signed the Consents necessary for Dr. Colquhoun to access personal and health information and returned them to Dr. Colquhoun by mail as requested.

[65] Mr. Skillings was subsequently approved for the PET scan and a whole body imaging scan was booked for Mr. Skillings at St. Joseph’s Hospital in London for August 30, 2011.

[66] The results of this scan were thereafter reviewed by the radiologist, Dr. Warrington who signed a Consultation Report on September 15, 2011.

[67] When comparing the previous CAT abdomen and pelvis scan on June 23, 2011 to the current results, Dr. Warrington noticed “increased FDG activity within the presacral space approximately 7 mm above the coloanal anastomotic suture site extending into the posterior bowel lumen”. The contiguous bowel contained increased FDG activity which extended into the bowel laterally. There was no increased activity involving the coloanal anastomotic site and there was no concerning abnormal increased activity suggesting distant metastases.

[68] In his report, Dr. Warrington posited that these findings could represent inflammation within the presacral space and elsewhere, resulting from a possible bowel leak. He went on to state that recurrent malignancy could give similar findings and was therefore not fully excluded.

[69] The PET scan showed the same results as the earlier MRI and CAT scans undergone by Mr. Skillings in November and December 2010 with respect to his bowel leak: there was a chronic perforation of the rectum.

[70] The Report was sent to Dr. Colquhoun and Dr. Lo but not to Dr. Petrakos.

[71] In Dr. Colquhoun’s file for Mr. Skillings, the Consultation Report was stamped received on September 28, 2011 and attached to the Report (which was filed in evidence at trial) was what appears to be a “sticky note” on which was written “pt to call for f/u appt.”

[72] It is at this point in time that the issue of whether there was in fact subsequent communication between Dr. Colquhoun and Mr. Skillings for a follow-up appointment arises. The evidence in this regard will be discussed below.

[73] Dr. Colquhoun had no further contact or communication with Mr. Skillings, in person, after August 5, 2011.

[74] On September 30, 2011, Mr. Skillings met with Dr. Lo at which time the PET scan results were discussed.

[75] It is with respect to this meeting with Dr. Lo that the issue with respect to the nature of the message communicated by Dr. Lo to Mr. Skillings arises. The evidence diverges with respect to what Dr. Lo said to Mr. Skillings during this meeting and will be reviewed below.

[76] In October 2011, Carla Skillings sent a letter by email to the Mayo Clinic in which she indicated that she and her husband had been to Harper Hospital in Detroit to try and solve “the problem”.

[77] She also wrote, “We have also been to London Ontario hospital and they have offered us nothing.” She confirmed that the procedure being offered in Detroit would require payment by them personally and that they were afraid of bankruptcy if the procedure required hospitalization. She indicated to the Mayo Clinic that they were hoping for a “less invasive procedure”.

[78] On October 20, 2011, the Mayo Clinic responded to Mrs. Skillings and indicated that there would be a cost concerning a review of the medical records and an appointment. The Clinic further indicated that the total cost would depend upon diagnostic testing and surgical procedures. The Skillings chose not to proceed further with the Mayo Clinic.

2012

[79] In January 2012, Mr. and Mrs. Skillings took a winter vacation in Texas. On his return from Texas in March 2012, Mr. Skillings resumed his regular contact with Dr. Lo. He felt well other than lower back pain.

[80] On November 18, 2012, however, Mr. Skillings had to be hospitalized. He had started feeling pain in his right hip that had increased throughout the day. On his admission, Mr. Skillings had surgery and was placed in acute care at the hospital where he remained from November 18, 2012 to February 6, 2013. Following his discharge from hospital, he was admitted as an in-patient to a rehabilitation facility where he stayed for therapy until April 10, 2013.

[81] Mr. Skillings had been found to have a severe necrotizing soft tissue infection. In addition, there was communication from a hole in his rectum to the soft tissues of his leg.

[82] The hospital records indicate that the necrotizing fasciitis was the result of an infection that had tracked from Mr. Skillings’ bowel into his sacrum.

Since 2013

[83] At trial, Mr. Skillings indicated that since November 2012, he has had a long and protracted recovery. He has required a number of operations to remove the sepsis including skin grafts and now has a permanent colostomy. In addition, Mr. Skillings developed deep vein thrombosis and has drop foot syndrome in both feet.

[84] Mr. Skillings still has a rectal abscess which has to be irrigated. He is able to walk for five blocks but he uses a cane to walk; he has a lot of pain in his left leg from his knee to his toes; and, he has abdominal pain from the surgery. He also has limitations with respect to sitting for periods of time as his tailbone becomes irritated.

The Complaint

[85] Mr. and Mrs. Skillings submit that Dr. Colquhoun breached the applicable standard of care by (a) failing to ensure that Mr. Skillings and his treating physicians understood the implications of Mr. Skillings chronic anastomotic leak; and, (b) failing to make recommendations for appropriate management.

[86] Mr. and Mrs. Skillings further submit that Dr. Lo breached the applicable standard of care by (a) failing to accurately communicate the results of the PET scan during their consultation with him on September 30, 2011; and, (b) failing to ensure that Mr. Skillings was a receiving appropriate management for his bowel leak.

The Law

(a) The Standard of Care

[87] The parties agree that the standard of care for both a general practitioner and a specialist is as follows:

Every medical practitioner must bring to his/her task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. She/he is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he/she holds himself/herself out as a specialist, a higher degree of skill is required of him/her than one who does not profess to be so qualified by special training and ability.[^1]

(b) Causation

[88] Causation is established where the plaintiff has proved to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury.[^2] The general but not conclusive test for causation is the “but for” test which requires the plaintiff to show that the injury would not have occurred but for the next negligence of the defendant.[^3]

[89] In their submissions, the plaintiffs also referred to the test for causation in the context of “informed consent”.

[90] Both the Ontario Court of Appeal and the Supreme Court of Canada have addressed the test for causation with respect to whether a plaintiff would have pursued necessary treatment.

[91] In Bollman v. Soenen[^4], the Ontario Court of Appeal wrote as follows:

In Reibl v. Hughes [1980 CanLII 23 (SCC)](https://www.canlii.org/en/ca/scc/doc/1980/1980canlii23/1980canlii23.html), [1980] 2 SCR 880, the Supreme Court of Canada rejected a purely subjective test for causation in medical negligence cases alleging lack of informed consent and instead adopted a modified objective test. Under the modified objective test for causation, the court must consider whether a reasonable person in the plaintiff’s position would have declined the procedure at the time had proper disclosure been made.

One of the major reasons for adopting a modified objective test for causation, rather than a subjective test, was that a subjective test would place too high a premium on hindsight – thus creating a risk that a patient who had suffered injury would be convinced she would not have undergone the procedure had proper disclosure been made.

On the other hand, a purely objective test could place too high a premium on medical evidence, thus making it practically impossible to succeed with an action based on lack of informed consent – and also potentially ignoring the legitimate concerns of patients wishing to exercise their rights of freedom of choice.

The Supreme Court has confirmed the modified objective test as the appropriate test in two subsequent decisions: Hollis v. Birch, 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634 and Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539.

In the latter case, Cory J. described the considerations that led the court to adopt the modified objective test in Reibl v. Hughes as well as the precise contours of the test, at paras. 4-6, as follows:

Laskin C.J. … rejected the pure subjective approach to causation. He explained at p. 898 that the plaintiff’s testimony as to what he or she would have done, had the doctor given an adequate warning, is of little value:

It could hardly be expected that the patient who is suing would admit that he would have agreed to have the surgery, even knowing all the accompanying risks.

Accordingly the subjective test would necessarily cause the trier of fact to place too much weight on inherently unreliable testimony.

While an objective test would prevent an inappropriate emphasis being placed on the plaintiff’s testimony, Laskin C.J. thought that a purely objective test also presented problems. At p. 898, he discussed his paramount concern with an approach based on the actions of a hypothetical reasonable person:

... a vexing problem raised by the objective standard is whether causation could ever be established if the surgeon has recommended surgery which is warranted by the patient’s condition…. The objective standard of what a reasonable person in the patient’s position would do would seem to put a premium on the surgeon’s assessment of the relative need for the surgery and on supporting medical evidence of that need. Could it be reasonably refused?

In short, the purely objective standard might result in undue emphasis being placed on the medical evidence, essentially resulting in a test which defers completely to medical wisdom.

To balance the two problems, Laskin C.J. opted for a modified objective test for causation

The test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what the reasonable patient in the circumstances of the plaintiff would have done if faced with the same situation. The trier of fact must take into consideration any “particular concerns” of the patient and any “special considerations affecting the particular patient” in determining whether the patient would have refused treatment if given all the information about the possible risks. [Emphasis in original.]

[92] In an earlier decision[^5], the Ontario Court of Appeal framed the issue this way,

Although the trial judge headed the discussion of informed consent “Battery,” his analysis makes it clear he was speaking of a failure to disclose the risks of surgery. The proper issue is therefore informed consent. Reibl v. Hughes sets out a two-part test for informed consent. The first is subjective; the second is objective.

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 individual. The objective test is based on what a reasonable person in the respondent’s position would have done. Both the subjective and the objective criteria must be established for the respondent to prove on balance of probabilities that she is entitled to damages for the lack of informed consent.

The subjective test alone cannot be relied upon, for it imports an element of hindsight reasoning. A patient could be inclined to say that he or she would not have undergone the procedure if the risks that in fact materialized and that form the basis of the action had been known. As stated in Reibl v. Hughes, at p. 898:

[T]o apply a subjective test to causation would, correlatively, put a premium on hindsight, even more of a premium than would be put on medical evidence in assessing causation by an objective standard.

The objective test is based on reasonableness, as stated in Reibl v. Hughes, at p. 900:

In short, although account must be taken of a patient’s particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.

Here, the trial judge dealt only partially with the subjective test and not at all with the objective test.

To meet the subjective test, the respondent must establish that the material risks or treatment alternatives were not adequately disclosed and that had they been disclosed, consent would not have been given.

[93] In my view, these observations apply equally to factual circumstances such as in this case where a patient could be inclined to say that he or she would have undergone the procedure if the risks that materialized could have been avoided.

[94] The Supreme Court addressed the issue of hindsight bias in Arndt v. Smith[^6]:

A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot be accepted …

In other words, fears which are idiosyncratic, which do not relate directly to the material risk of a proposed treatment and which would often be unknown to a physician, cannot be considered. That is what ensures that the objective standard truly is based on the actions of a reasonable person. It means that a doctor will not be held responsible for damages attributable to a patient's idiosyncrasies.

The Positions of the Parties

(a) The Plaintiffs

[95] Mr. and Mrs. Skillings submit that when Dr. Colquhoun saw Mr. Skillings on August 5, 2011, he was aware that the results from the tests conducted on November 5, 2010, December 8, 2010 and June 21, 2011 contained significant findings with respect to a leak at the anastomosis. The reference to a “communication with the rectum” in the December 8, 2010 report was indicative of a hole within the rectum. These test results also revealed the presence of fluid in the presacral space and air in the presacral space and nerve roots.

[96] There is no evidence that Mr. Skillings had been told by Dr. Petrakos about the implications of the presence of fluid, the implications of a bowel leak or the significance of the findings contained in the test results.

[97] Following his initial assessment, Dr. Colquhoun performed a rectal examination. Upon the completion of a review of all of the surgical notes and pathology reports from 2003, the results of a gastrografin enema and a physical examination under anaesthesia, Dr. Colquhoun intended to develop a firm management plan for Mr. Skillings. His working diagnosis at the time of his consultation with Mr. Skillings was “a leak at the anastomosis”. He arranged for a C E A test and a PET scan to confirm the absence of cancer as this would affect his management of Mr. Skillings’ condition.

[98] It is the position of Mrs. Skillings that during her husband’s consultation with Dr. Colquhoun, Dr. Colquhoun interacted with them in a manner that could only be described as “abusive”. Dr. Colquhoun appeared uninterested in the reasons for which they had consulted with Dr. Weaver in the United States.

[99] Mr. and Mrs. Skillings left the appointment with Dr. Colquhoun on the understanding that a PET scan would follow. It was their understanding that Dr. Colquhoun or his assistant would contact them following the completion of the PET scan. After the completion of this scan, they did not receive any communication from Dr. Colquhoun or his office regarding follow-up.

[100] It is their position that Dr. Colquhoun was obliged to follow up with Mr. Skillings and the referring physician, Dr. Petrakos, with respect to the results of the PET scan.

[101] In failing to communicate with Mr. Skillings and other health practitioners in Mr. Skillings’ circle of care with respect to the implications of the anastomotic leak and ensuring that they understood those implications, he breached the standard of care. Dr. Colquhoun was further required to make recommendations for management which he failed to do.

[102] The fact that a tracking system was not formally in place at the hospital where Dr. Colquhoun worked until 2014 does not absolve him from liability for the breach.

[103] It is the position of Mr. and Mrs. Skillings that had they received appropriate communication from Dr. Colquhoun’s office regarding Mr. Skillings condition, Mr. Skillings would have seen a specialist for follow-up.

[104] With respect to Dr. Lo, it is the position of Mr. and Mrs. Skillings that they did not feel the need to personally follow up with Dr. Colquhoun because of what Dr. Lo conveyed to Mr. Skillings on September 30, 2011. It is their position that having seen the results of the PET scan, Dr. Lo informed Mr. Skillings that “everything was good” with respect to those results.

[105] Mr. Skillings was satisfied after this appointment with Dr. Lo that he did not require further management. Mr. Skillings was not instructed by Dr. Lo to follow up with Dr. Colquhoun.

[106] It is their position that Dr. Lo further breached the standard of care by failing to ensure that Mr. Skillings’ condition was appropriately managed following the September 2011 visit.

[107] Dr. Lo saw Mr. Skillings for appointments on twelve occasions prior to Mr. Skillings hospitalization in November, 2012. These visits mainly concerned Mr. Skillings’ need for prescribed medication but Dr. Lo failed to inquire as to whether or not Mr. Skillings had followed up with Dr. Colquhoun; he failed to make any efforts to ensure that Mr. Skillings was receiving appropriate management of his bowel condition; and, he failed to notify Dr. Petrakos of the results of the PET scan notwithstanding the fact that Dr. Petrakos had not been listed as a recipient of a copy of the Consultation Report.

[108] It is the position of Mr. Skillings that had he been provided with the appropriate information, and a conservative approach was feasible, he would have first attempted to manage without a colostomy under the supervision of treating physicians.

[109] However, if it was subsequently determined that this approach was not working he would have ultimately consented to a permanent colostomy. Had he been advised that he was at risk of developing necrotizing fasciitis, he would have obtained appropriate management for his condition. He would have elected to be followed and monitored while receiving conservative treatment and pursuing treatment options.

(b) The Defendants

[110] It is the position of the Defendants that Dr. Colquhoun’s management of Mr. Skillings was appropriate. Mr. Skillings was aware of the need for a follow-up appointment to discuss the PET scan results.

[111] Instead of contacting Dr. Colquhoun or returning to see Dr. Petrakos both of whom had declined to perform the trans sacral procedure suggested by Dr. Weaver to address the leak at his anastomosis, Mr. Skillings chose to seek out a fourth surgical opinion from the Mayo Clinic.

[112] Mr. Skillings wanted treatment that would not result in a permanent colostomy

[113] When Mrs. Skillings wrote to the Mayo Clinic in October 2011, Mr. Skillings knew the results of the imaging tests he had undergone in November and December 2010 and June 2011; he knew the results of the PET scan after his meeting with Dr. Lo; he had been advised by Dr. Petrakos, Dr. Weaver and Dr. Colquhoun about a significant concern regarding his bowel anastomosis; and he had the experience between 2003 and 2006 of having to deal with the leak at his bowel anastomosis resulting in an abscess fluid collection in the presacral space.

[114] Notwithstanding all of this information, Mr. Skillings chose not to return to see Dr. Colquhoun who had been described by Mrs. Skillings as “nasty” and “abusive” during their consultation with him.

[115] When the Mayo Clinic appeared to be an expensive option, Mr. Skillings decided not to pursue resolution of his medical issues or other options at that time because he was not having any symptoms or concerns.

[116] Further, the evidence does not establish that if Mr. Skillings had returned to see Dr. Colquhoun after the results of the PET scan were made known, the outcome would have been different.

[117] The Plaintiffs have not establish that Dr. Calhoun breached the standard of care and have not established on a balance of probabilities that but for Dr. Colquhoun’s failure to follow up with Mr. Skillings, Mr. Skillings would have avoided the necrotizing fasciitis infection that developed in November 2012 and caused his injuries.

[118] It is further the position of the Defendants that Dr. Lo’s management of Mr. Skillings medical issues was appropriate. Mr. Skillings was told about the medical findings reflected in that the PET scan by Dr. Lo on September 30, 2011. Contrary to Mr. Skillings’ evidence, Dr. Lo did not tell Mr. Skillings that the PET scan showed that “everything was good” or that it was “completely normal”. Dr. Lo appropriately advised Mr. Skillings to follow up with Dr. Colquhoun to review the results of the PET scan before travelling south on his vacation.

[119] There was no failure on the part of Dr. Lo to advise Mr. Skillings about the PET scan findings. The Plaintiffs have not establish that Dr. Lo breached the standard of care in his management of Mr. Skillings’ medical issues.

Analysis

(a) Findings

[120] I have had the opportunity to review all of the evidence elicited in this case as well as the opportunity to observe the witnesses called to testify at trial. In a number of instances, the evidence from witnesses has been in conflict and I have been required to making findings of fact based on the credibility and reliability of the witnesses. I have done so bearing in mind the cautions set out in the caselaw and the factors related to juries in the context of the assessment of the evidence of witnesses.

[121] Dr. Lo was Mr. Skillings’ physician for over twelve years. During that time, Dr. Lo exhibited appropriate concerns for Mr. Skilling’s health and in early 2003 referred him to Dr. Petrakos, a general surgeon, to address the possibility of cancer being present in Mr. Skillings’ bowel.

[122] The existence of what was thought to be cancer in the bowel was confirmed and in October 2003, Mr. Skillings underwent chemotherapy and radiation.

[123] Unfortunately, after the resection surgery, Mr. Skillings sustained a leak at the site of the rectal anastomosis which resulted in a collection of abscessed fluid in the presacral cavity.

[124] As a result of these complications, Mr. Skillings required an ileostomy. Originally anticipated by Dr. Grant to be needed for just three months, ongoing complications required Mr. Skillings to have the ileostomy in place until February 2006.

[125] During the course of Mr. Skillings’ testimony, I formed the impression that the fact and the effect of this ileostomy was almost if not completely traumatizing for him. He appeared to me to be a man who had suffered deep negative emotional, psychological and physical effects from its existence on his body and in his life.

[126] Although Mr. Skillings recognized that the surgery had been successful in removing the tumour, the personal impact of the subsequent ileostomy was reflected in a letter he wrote to OHIP in early May 2005,

“Surgery was done in Toronto Ontario on October 16, 2003…It was a very rough surgery. I developed an infection…When I finally returned home, I underwent testing every three months to check the healing of the resection. Every time, I was faced with disappointment after disappointment hoping each time to have his ileostomy reversed. Now it has been one year and seven months since the surgery…”

[127] I further find that over time, Mr. Skillings became almost, if not actually, desperate in his search for medical treatment that would allow his ileostomy to be closed or reversed. For him, the ileostomy was so restrictive, he was unable to return to work while he had it. He described his experience in his letter to OHIP as “an ordeal that had taken an emotional and financial toll on his family”.

[128] My impression concerning Mr. Skillings’ response to the ileostomy that he required, is corroborated by the observations of his attending physicians during the course of his treatment. In April 2004, Dr. Petrakos noted that Mr. Skillings was “quite upset” at the lack of opportunity to close the ileostomy due to the ongoing leak at the bowel anastomosis. Mr. Skillings understood that the issue holding up the reversal surgery was a fistula. In 2005, Dr. Grant noted that Mr. Skillings had found it difficult to manage the ileostomy from a “psychological perspective”.

[129] Not satisfied with the responses he was receiving in Canada, Mr. Skillings looked for another surgeon independently and found Dr. Weaver in the United States. On April 27, 2005, he met with Dr. Weaver who offered a surgical fibrin glue procedure that, if successful, could eventually result in closure of the ileostomy. The challenge for Mr. Skillings was the financial cost; hence, his letter to OHIP.

[130] As indicated above, OHIP declined Mr. Skillings’ request for financial coverage of the procedure in the United States. Determined to have the ileostomy closed, Mr. Skillings opted to personally pay for and undergo the fibrin glue procedure suggested by Dr. Weaver in or about May, 2005. The injection of glue therapy successfully closed the sinus tract.

[131] When the time came for the reversal of the ileostomy in December 2005, Mr. Skillings returned to Dr. Petrakos and as noted by Dr. Petrakos, was “anxious to proceed with operative intervention”.

[132] I find that Mr. Skillings was also made aware by Dr. Petrakos of the risks of the surgery which included a reopening of the sinus tract, recurrent pelvic sepsis and a need for a repeat of either an ostomy drainage provision and/or a laparotomy. Dr. Petrakos performed the surgery.

[133] Time passed and Mr. Skillings started feeling better. He resumed working, taking vacations and his involvement in other activities such as motorcycling.

[134] I find as a fact that by 2010, Mr. Skillings was an experienced, well-informed and educated man about the medical issues he had endured; the medical issues he was facing; and/or, the medical issues he could face regarding his colo-rectal health by virtue of the weakness at the anastomosis in his body.

[135] Unfortunately, complications that required medical intervention arose once again.

[136] By the time Mr. Skillings was referred to meet with his fourth surgeon on August 5, 2011, namely, Dr. Colquhoun, I find that the following had transpired:

• Mr. Skillings had learned from Dr. Petrakos on three separate occasions in November and December 2010 that there had been a dramatic change in his health;
• on December 20, 2010, Mr. Skillings had met with Dr. Petrakos who reviewed the recent CAT and MRI test results with him;
• Mr. Skillings had learned from the results of the CAT scan and MRI that there was a fluid sac in his colon, in the presacral space;
• Mr. Skillings had learned from Dr. Petrakos that a biopsy of the rectal anastomosis showed inflammatory granulation tissue; the MRI showed a fluid collection in the presacral sac; and, notwithstanding his recollection, he was provided with the information that there was communication to the rectum;
• Mr. Skillings had learned from Dr. Petrakos that he had a soft tissue mass that, in some areas, appeared to be a fluid density;
• Mr. Skillings had learned from Dr. Petrakos that surgical management of this medical issue would likely require a colostomy;
• Mr. Shillings had told Dr. Petrakos that he wished only conservative management;
• notwithstanding this “dramatic change” as described by Dr. Petrakos in his referral letter to Dr. Colquhoun on June 20, 2011 and in the face of Dr. Petrakos’ initial belief that this problem was due to a recurring invasive malignancy in the pelvis that was quite extensive and eroding the sacrum, Mr. Skillings declined Dr. Petrakos’ proposal that he have a gastrografin enema in order to assess the leak (described as an abscess fluid collection) and further delineate the problem at the anastomosis. He did so because he was feeling well. Instead, Mr. Skillings had chosen to go on a vacation with his wife;
• Mr. Skillings had not returned to see Dr. Petrakos between December 8, 2010 and June 2011 - a period of almost six months;
• Mr. Skillings had met again with Dr. Weaver in Detroit, Michigan on or about June 17, 2011 and discussed his options regarding the chronic leak;
• Mr. Skillings had obtained a written opinion from Dr. Weaver and had learned that Dr. Weaver could perform a surgical procedure known as a “trans sacral procedure” to clear out what Dr. Weaver thought was a “chronic presacral cyst lesion” which had occurred probably due to a small hole in the rectum;
• Mr. Skillings had learned that Dr. Weaver proposed “a transacral approach to remove the “cyst” - (likely “pseudocyst”) with closure of rectum.”;
• with Dr. Weaver’s written opinion in hand, Mr. Skillings had returned to see Dr. Petrakos in June 2011 to discuss the transacral procedure with him;
• Mr. Skillings had learned that Dr. Petrakos refused to perform the procedure recommended by Dr. Weaver;
• Mr. Skillings had asked Dr. Petrakos for a referral to another surgeon for another opinion in London; and
• Dr. Petrakos had sent a referral letter on behalf of Mr. Skillings to Dr. Colquhoun in London.

[137] I accept the evidence and find that the gastrografin enema recommended by Dr. Petrakos would have provided more information regarding the extent of the leak at the anastomosis.

[138] With Dr. Weaver’s written opinion in hand, Mr. Skillings went to see Dr. Colquhoun for another opinion.

[139] It is of note that when first asked under cross-examination if he had taken Dr. Weaver’s written opinion with him to see Dr. Colquhoun, Mr. Skillings firmly stated that he did not take anything with him to Dr. Colquhoun and that Dr. Petrakos had handled the medical records flow. However, when confronted with the original opinion with accompanying envelope located inside Dr. Colquhoun’s Chart, Mr. Skillings indicated that he did not “recall” taking it.

[140] I find that during his meeting with Mr. Skillings on August 5, 2011, Dr. Colquhoun took a medical history of Mr. Skillings, performed a physical examination and conducted a flexible sigmoidoscopy, all of which was appropriate.

[141] Dr. Colquhoun could see a narrowing of the anastomosis but was unable to pass the scope through this area due to Mr. Skillings’ discomfort and the degree of narrowing at that location. He told Mr. Skillings that due to the complications Mr. Skillings had had since the surgery by Dr. Grant, he wanted to get Dr. Grant’s notes.

[142] To Dr. Colquhoun, it appeared that the presenting problems related to the anastomotic leak that had occurred in 2003; there was ongoing leak and narrowing of the bowel. But Dr. Colquhoun wanted first to rule out the concern about cancer before he addressed Mr. Skillings’ bowel issue because the surgical approaches would be very different if there was recurrent cancer.

[143] I find that in view of this opinion, Dr. Colquhoun intended to conduct other and further tests as required and intended for Mr. Skillings to return to London for those tests.

[144] Mr. Skillings knew that Dr. Petrakos would not perform the surgery proposed by Dr. Weaver. He asked Dr. Petrakos for an opinion from someone else. I find that Mr. Skillings took Dr. Weaver’s original written proposal for transacral surgery with him to his meeting with Dr. Colquhoun. It is entirely reasonable to infer and I find that he did so in order to see if Dr. Colquhoun would perform the surgery, the cost of which would then be covered by OHIP.

[145] Dr. Weaver had suggested cutting through the muscle along the tail bone at the back to reach the rectum, cleaning the infected area and then sewing the hole shut. Like Dr. Petrakos, Dr. Colquhoun did not agree with this approach which had a high complication rate even without infection. I accept his evidence that, in his view, this procedure had nothing to do with recurrent cancer. The purpose of this procedure was to avoid any type of ostomy.

[146] I accept Dr. Colquhoun’s evidence that Mr. Skillings was keen to have this procedure and appeared to have made the appointment with Dr. Colqhoun with the expectation that Dr. Colquhoun would perform this surgery. It was very clear to Dr. Colquhoun that Mr. Skillings did not want to have a colostomy.

[147] Dr. Colquhoun testified that during their meeting, he found Mr. Skillings to have a very good appreciation of the leak and what was going on as a result of the amount of time he had had the problem and the number of doctors he had seen.

[148] Dr. Colquhoun told Mr. Skillings that he was unwilling to perform the procedure recommended by Dr. Weaver and that his opinion in this regard would be unlikely to change notwithstanding the results from the tests he wanted to administer.

[149] I accept Dr. Colquhoun’s evidence and find that Dr. Colquhoun conveyed the message to Mr. Skillings that if Mr. Skillings wanted the procedure recommended by Dr. Weaver, he should return to see Dr. Weaver. I find it highly doubtful that Mr. Skillings was accurate in his testimony when he stated that he recalled Dr. Colquhoun suggesting that he (Mr. Skillings) return to the U.S. doctor because the U.S. doctor knew more than the Canadian doctors about his condition. In my view, what was said by Dr. Colquhoun and what was heard or interpreted by Mr. Skillings as being said by Dr. Colquhoun were most likely two different things in light of the stress and tension that I infer from the evidence, existed in the consulting room that day.

[150] I accept the evidence that Mr. Skillings and his wife were upset that Dr. Colquhoun was also declining to perform the surgery proposed by Dr. Weaver. I accept Dr. Colquhoun’s evidence that Mr. Skillings was frustrated and that Dr. Colqhoun felt bad for him.

[151] I am satisfied that Dr. Colquhoun told Mr. Skillings that if his problem required surgery, management would like result in a permanent colostomy. Dr. Colquhoun’s evidence that Mr. Skillings was very reluctant about this prospect and made it clear to Dr. Colquhoun that he did not enjoy his life with an ileostomy, is consistent with the balance of the evidence before the Court with respect to this issue.

[152] To Dr. Colquhoun, Mr. Skillings who had had prior experience with an ostomy, had good perspective. It was very clear to DR. Colquhoun that Mr. Skillings was trying to avoid an ostomy.

[153] In his report, Dr. Colquhoun noted that because it would take a while to institute the investigations Dr. Colquhoun intended to pursue, he warned Mr. Skillings about a potential bowel obstruction and that he (Mr. Skillings) should consult Dr. Petrakos if he had any concerns or issues.

[154] I accept Dr. Colquhoun’s evidence as reflected in his Consultation Report dated August 5, 2011 (the same day as his meeting with Mr. Skillings) and sent to Dr. Petrakos and Dr. Lo, that Mr. Skillings appeared to understand those issues.

[155] I find it reasonable to infer from all of these circumstances that in light of Mr. Skillings’ quest for a result that would avoid an ostomy, the refusal of Dr. Colquhoun to perform the transacral surgery and the conflict and personality clash during the meeting described by Mrs. Skillings in her evidence, Mr. and Mrs. Skillings left the consultation feeling very disappointed and upset.

[156] I am also satisfied and find that by the time they left this meeting, notwithstanding their lack of memory in this regard, Dr. Colquhoun had told Mr. and Mrs. Skillings of his intention to conduct further investigations in addition to a PET scan.

[157] Mr. Skillings testified at trial that at the conclusion of his meeting with Dr. Colquhoun, the only plan in place was a PET scan. He testified that he did not know that he was to go and see Dr. Colquhoun again when the scan was completed. And he also told the Court that he did not expect to see Dr. Colqhoun after the scan was completed.

[158] But when his answers given during his Examination for Discovery (conducted over two years prior to the trial) were put to him, Mr. Skillings acknowledged that he had clearly indicated during his Discovery which was also under oath, that (a) the plan at the end of the appointment with Dr. Colquhoun was to do a PET scan; (b) he thought he would be going to back to see Dr. Colquhoun after the scan; and, (c) at the end of his appointment with Dr. Colquhoun, he was expecting to see Dr. Colquhoun again.

[159] Dr. Colquhoun’s conduct in ordering not only a PET scan but also bloodwork and a gastrografin enema with respect to Mr. Skillings during or after his meeting with them is consistent with Dr. Colquhoun’s anticipation that he would see Mr. Skillings again. It does not make sense that he would go to this effort without having communicated such to Mr. Skillings.

[160] Further, a subsequent written request was mailed to Mr. Skillings after their meeting seeking Mr. Skillings’ consent to obtain medical records. In my view, the fact and nature of this action is also indicative of Dr. Colquhoun’s intention and communication of that intention to Mr. Skillings, to remain involved in the assessment and treatment of Mr. Skillings’ medical issues.

[161] At trial, Mr. Skillings did not recall Dr. Colquhoun’s office writing to him and seeking his signed consent to obtain his medical records from Dr. Grant. Further, Mr. Skillings denied having told Dr. Lo that there would be more tests in London when he met with Dr. Lo on August 29, the day before the PET scan.

[162] And yet, the evidence is clear that Mr. Skillings signed the Consents after having received them and returned them to Dr. Colquhoun’s office; and, Dr. Lo had noted in his Chart on August 29, 2011 when he met with Mr. Skillings, that there would be further tests in London.

[163] I also note that Mrs. Skillings was not present for the entirety of the meeting with Dr. Colquhoun.

[164] In my opinion, the inconsistency in the evidence between Dr. Colquhoun on the one hand and Mr. and Mrs. Skillings on the other, is likely due to whether in the midst of their emotional turmoil and response to Dr. Colquhoun, Mr. and Mrs. Skillings actually heard or absorbed what Dr. Colquhoun had to say about the need for further tests and his intentions in this regard.

[165] I say this not to enter into the realm of speculation but because I am not prepared to find that Mr. and Mrs. Skillings were intentionally misleading or dishonest with the Court concerning what was said or not said by Dr. Colquhoun. On the other hand, I do find that I am unable to accept their evidence that Dr. Colquhoun did not tell them that Mr. Skillings needed to attend for a further appointment after the PET scan was completed in order to discuss the results with him.

[166] I am satisfied and find that Mr. Skillings was told of Dr. Colquhoun’s plan for further tests. The evidence of Mr. and Mrs. Skillings at trial that they were not aware of this is not consistent with the evidence of Dr. Colquhoun, the subsequent steps taken by Dr. Colquhoun, the admission by Mr. Skillings at his Examination for Discovery, Mr. Skillings’ return by mail of the signed consent to Dr. Colquhoun to allow Dr. Colquhoun to obtain further medical information about him or the evidence of Dr. Lo which is discussed below.

[167] My concern about the reliability of the evidence of Mr. and Mrs. Skillings in this regard and the impact their emotional reaction may have had on their ability to recall accurately, is bolstered by the fact that the frustration felt by Mr. and Mrs. Skilling during or at the conclusion of their appointment with Dr. Colquhoun, had yet to abate some time later when Mrs. Skillings wrote to the Mayo Clinic that the London hospital had offered them “nothing”.

[168] At the time this email was sent, the results of the PET scan had yet to be released or had just been released. The depth of their emotional response was palpable even at trial while Mrs. Skillings was testifying. I find it difficult to rely on her evidence with respect to what happened during the meeting with Dr. Colquhoun. Her description in her message to the Mayo Clinic was inaccurate. Dr. Colquhoun had not offered them “nothing”. He had signed the forms necessary for Mr. Skillings to have the PET scan; he had sent the forms necessary to obtain Mr. Skillings’ prior medical records; and he had reviewed the result of the scan. He had also refused to offer what the Skillings were looking for, namely, the transacral surgical procedure.

[169] Notwithstanding that Mr. Skillings did not recall the subsequent written communication from Dr. Colquhoun’s office regarding the Consent, it is clear that someone from or on behalf of this office contacted Mr. Skillings after their meeting and conveyed the time, date and location of the PET scan ordered by Dr. Colquhoun. The PET scan was completed in the afternoon of August 30, 2017 at St. Joseph’s Hospital in London.

[170] I accept the evidence of Dr. Lo that on August 29, 2011, Mr. Skillings met with Dr. Lo for a regular check up with respect to medication and during this meeting Dr. Lo asked Mr. Skillings how his trip to see Dr. Colquhoun had been.

[171] According to Dr. Lo, Mr. Skillings indicated that it was a very bad trip and that he was very disappointed with the outcome. When asked for details, Mr. Skillings indicated that he and his wife had the impression that Dr. Colquhoun had treated them very rudely. He then told Dr. Lo that Dr. Colquhoun had said that there would be more tests for him but even after those tests, he would not perform the surgery recommended by Dr. Weaver. Mr. Skillings confirmed to Dr. Lo, Dr. Colquhoun’s advice that if he wanted the transacral procedure done, he should go back to Detroit. Mr. Skillings was very disappointed with the outcome in London.

[172] In his entry with respect to this visit on August 29, 2011, Dr. Lo noted that “there will be more tests in London”. I accept Dr. Lo’s evidence that this is what Mr. Skillings had told him. As Dr. Lo explained, he does not have medical privileges in London so his written notation regarding the tests in London is not referring to tests that he may order. The only reasonable explanation is that this information came from his patient, Mr. Skillings, about what Dr. Colquhoun had said to him.

[173] Dr. Lo renewed Mr. Skillings’ prescription and asked Mr. Skillings what he was going to do in view of their disappointment with Dr. Colquhoun. Mr. Skillings told Dr. Lo that they had already made up their minds that they were going to save the money for the surgery in Detroit. In the meantime, however, they were going to take a vacation and then on his return after three or four months, they would contact Dr. Weaver to explore their options in the U.S. They had given up hope that he would be able to have the transacral procedure done in Canada.

[174] On September 30, 2011, Dr. Lo saw Mr. Skillings again. Dr. Lo told Mr. Skillings that since their last appointment, he had received the PET scan results from the hospital. During this meeting, they sat facing each other across Dr. Lo’s desk. Dr. Lo provided the report to Mr. Skillings to look at. I accept Dr. Lo’s evidence that he told Mr. Skillings that the general picture had not changed since the last report from Dr. Petrakos three or four months earlier.

[175] Dr. Lo testified that he told Mr. Skillings that there were two issues that had to be addressed: firstly, that Mr. Skillings had a possible leaky bowel according to radiology; and secondly, that there was a possible recurrence of cancer. Aware of Mr. Skillings’ prior information on August 29, 2011 that he was intending to go away for three or four months in the U.S. and in view of the findings contained in the PET scan report, Dr. Lo told Mr. Skillings to make sure that he called Dr. Colquhoun to see if it was appropriate for him to travel south for three or four months.

[176] I accept Dr. Lo’s testimony that he advised Mr. Skillings to call London about the report and “how to manage it” in the context of Mr. Skillings’ travel plans which consisted of a lengthy trip out of the country. He did not tell Mr. Skillings to call Dr. Colquhoun about the surgery but about whether it would be appropriate for him (Mr. Skillings) to travel south for three or four months in the winter.

[177] Dr. Lo knew that Dr. Colquhoun had refused to do the transacral procedure. He considered Mr. Skillings’ condition to be a “time bomb”. Dr. Lo testified that he saw himself as just a general practitioner so felt that he was not in a position to indicate one way or another whether it would be alright for Mr. Skillings to travel.

[178] Mr. Skillings said that he would do as Dr. Lo suggested.

[179] But Mr. Skillings did not follow the instruction of Dr. Lo and contact Dr. Colquhoun. Instead, he chose to leave on his holiday. He had been disappointed with Dr. Colquhoun’s refusal to perform the transacral procedure suggested by Dr. Weaver.

[180] I find that Mr. Skillings’ response or lack of compliance with Dr. Lo’s suggestion was consistent with his rejection of the recommendation by Dr. Petrakos in December 2010 for a further enema. Dr. Petrakos had also declined to perform the surgery recommended by Dr. Weaver and Mr. Skillings opted to proceed with his trip rather than following this recommendation to undergo the enema. On both of these occasions, Mr. Skillings had indicated that he was feeling well.

[181] In my view, throughout this process, Mr. Skillings exercised his right to determine the nature and the extent of the intervention of all of his treating or consulting physicians, their plans and their recommendations, in his life.

[182] I accept Dr. Lo’s evidence that he (Dr. Lo) had told Mr. Skillings to contact Dr. Colquhoun because he was concerned about what would happen if Mr. Skillings needed medical assistance while out of the country.

[183] I also find that Dr. Lo’s explanation for his memory about this particular meeting is reasonable in all of the circumstances. Dr. Lo testified that he was able to recall this particular meeting in more detail because of the arrival and contents of the PET scan report in conjunction with learning of Mr. Skillings’ plan to travel south for a number of months. Dr. Lo felt that he and Mr. Skillings were friends. He had not been involved in Mr. Skillings’ care with respect to his bowel issues but felt it necessary to say something for the first time and at this point in time given the report and his friend’s plans.

[184] Mr. Skillings did not appear concerned about what Dr. Lo said to him which did not surprise Dr. Lo because Mr. Skillings’ plans were place to save the money needed to have the transacral procedure done in Detroit. To Dr. Lo, Mr. Skillings appeared very confident that it would work for him.

[185] I further accept Dr. Lo’s evidence that Mr. Skillings understood what the PET scan revealed. This was not a new problem at all for Mr. Skillings. The problem had existed for many years to that point in time. The disappointment and frustration for Mr. Skillings was that the two Canadian surgeons would not employ the transacral surgical procedure to resolve the issue and therefore personal payment for a very expensive procedure out of the country would be required.

[186] I find that Dr. Lo testified in a straightforward manner. He had made notes of his meetings with Mr. Skillings that although brief and incomprehensible orthographically, made sense to him and were sufficient to refresh his memory to answer the questions put to him by counsel in a credible and reliable manner.

[187] While Dr. Lo and Mr. Skillings were talking together, Mr. Skillings had the PET scan results in his hands. I am unable to find that Mr. Skillings actually read the results but I am satisfied that Mr. Skillings was provided with an opportunity to read them, to review them or to, at the very least, ask Dr. Lo about them. He chose not to do so.

[188] Dr. Lo emphatically denied having told Mr. Skillings that the PET scan was completely normal or that it was “good”. I agree with Dr. Lo’s view that Mr. Skilling’s evidence that Dr. Lo had told him that “all was good” with respect to the PET scan, does not make sense. I accept Dr. Lo’s description of their relationship at the time. Mr. Skillings was a close patient he had seen almost monthly for many years; he was a personal friend; and, numerous family members of Mr. Skillings were his patients as well. There was no benefit to or reason for Dr. Lo to tell Mr. Skillings something that was incorrect or for him to lie to, as he described Mr. Skillings, his “very close patient”.

[189] On January 29, 2012, Mr. Skillings attended upon Dr. Lo and asked for sufficient medication (which was the narcotic analgesic Tylenol #3) for three months. Dr. Lo asked him why he needed it given that Mr. Skillings still had two weeks left on his current prescription. Mr. Skillings indicated that he was going south for three to four months.

[190] On March 13, 2012, Dr. Lo entered into Mr. Skillings’ chart that Mr. Skillings had returned from Texas.

[191] On his return, Mr. Skillings asked Dr. Lo for more Tylenol #3. Dr. Lo thought that he should still have 200 pills left. This was a red flag for Dr. Lo and he became concerned that Mr. Skillings had become dependent on the drug. The narcotic was losing its effect for Mr. Skillings. Over time, Dr. Lo changed the medication and other pain controls because he wanted to get Mr. Skillings off the Tylenol #3. He did not want to tell Mr. Skillings that he was an addict or had a problem because he was a friend and a close patient.

[192] Because of his concern about a drug dependency with respect to Mr. Skillings, Dr. Lo started to withdraw from the personal aspect of their relationship and move it toward a strictly professional one. He knew that he was going to have to confront Mr. Skillings about this issue. Over time, notwithstanding the efforts of Dr. Lo, Mr. Skillings was prescribed with Tylenol #3 again.

[193] In my view, Dr. Lo was not shaken on cross-examination with respect to this evidence such that his credibility or reliability undermined.

[194] I turn now then to the application of the legal issues of standard of care and causation to the facts.

Liability

(a) Dr. Colquhoun

(i) Standard of Care

[195] Having considered all of the evidence before me, I am not satisfied on a balance of probabilities that

(a) appropriate arrangements regarding the further tests that were to be administered by Dr. Colquhoun and/or a follow up appointment, were actually attempted for Mr. Skillings and communicated to Mr. Skillings by either Dr. Colquhoun personally or by his staff after receipt of the PET scan results; or that

(b) Mr. Skillings was directly contacted to make a further appointment after the PET scan results were obtained.

[196] Katherine Pereira, Dr. Colquhoun’s assistant, stated that she wrote the sticky note referred to above. According to Ms. Pereira, the note means that she called Mr. Skillings to schedule a follow-up appointment and was told that he would call back to schedule it.

[197] The note is undated, however, and it is unclear whether this call was made prior to or after the results of the PET scan. There is no evidence as to (a) what day or time the call was made; (b) what was said to the recipient of the call if anything about the need for an appointment; (c) whether the call concerned the PET scan results and/or the follow up tests; or, (d) who Ms. Pereira spoke to. There is no evidence that there was any indication to Mr. Skillings during the call that the PET scan results had been received and that Dr. Colquhoun wanted to review them with Mr. Skillings. It is Ms. Pereira’s evidence that she placed the note in Mr. Skillings’ chart after Dr. Colquhoun received the PET scan results but the evidence is not persuasive that this call was made in reference to those results.

[198] Mr. and Mrs. Skillings denied ever having received such a call or message from Dr. Colquhoun’s office. Even though I find their evidence troubling for the reasons set out above, it is enough to cause me such concern in the context of all of the other evidence with respect to this issue that I am unable to find as a fact when, where and with whom this contact was made and if this call concerned the PET scan or follow up tests or both.

[199] I acknowledge that the courts have recognized that there is no obligation on a physician to chase or search for a patient who fails to return for a follow-up where there is nothing unusual about the plaintiff’s condition[^7]. But as the experts in this case have agreed, this was a serious and complicated matter.

[200] I concur with the expert opinion of Dr. Feinberg that Dr. Colquhoun should have contacted Mr. Skillings directly upon receiving the results of the PET scan or at the very least, he should have contacted Dr. Petrakos who was the referring surgeon. Dr. Petrakos ought to have been made aware by Dr. Colquhoun that his (Dr. Petrakos’) concerns regarding cancer were misplaced and that Mr. Skillings required management for an anastomotic leak.

[201] The only evidence before me that suggest that an effort was made is the writing identified by Ms. Pereira on this sticky note which I find is vague at best.

[202] Further and, in any event, I am of the view that particularly in circumstances where Dr. Colquhoun and/or his staff knew that correspondence to Mr. Skillings dated June 28, 2011 and August 5, 2011 from the office of Dr. Colquhoun had successfully resulted in proactive responses from Mr. Skillings, a mere telephone message left at their home, if made at all, was insufficient. This is so particularly if no response was received from Mr. Skillings in a timely fashion with respect to a follow-up appointment.

[203] I accept Dr. Feinberg’s evidence that it was incumbent on Dr. Colquhoun to make an effort to reach Mr. Skillings including, if needed, further phone calls, writing a letter and/or contacting Dr. Petrakos and/or Dr. Lo for assistance.

[204] I therefore accept Dr. Feinberg’s evidence that Dr. Colquhoun did not meet the standard of care when he failed to follow up with Mr. Skillings either personally or in writing after the results of the PET scan were received by him.

(ii) Causation

[205] The next question, however, is whether Mr. and Mrs. Skillings have proved on a balance of probabilities that Dr. Colquhoun caused or contributed to the injury ultimately sustained by Mr. Skillings. In this regard, I find that the Plaintiffs have not met their onus.

[206] Before I approach this question, it is important to recognize the distinguishing features of this case as opposed to many if not the majority of medical malpractice cases in Canada. In most cases, the litigation concerns a plaintiff who was a patient of the named physician and the physician was responsible for or involved with the diagnosis and treatment of that patient.

[207] Typically, in these cases, the issues arise by reason of alleged error in the diagnosis or alleged error in the treatment, such as surgical error. In such cases, the patient completed the decision-making process as to options for treatment based on the diagnosis obtained and relied on the expertise of that physician in implementing the chosen or recommended treatment option to conclusion.

[208] Such is not completely the case here. This case falls at the beginning of the continuum of care with respect to a presenting complaint regarding the anastomosis; a problem that had earlier been resolved by Dr. Weaver.

[209] This case concerns the nature and effectiveness of communication of the information to Mr. Skillings with respect to the diagnosis of his presenting complaint and proposed treatment plan after the administration of tests.

[210] But with respect to the issue of causation, it also concerns of necessity, the next step in the spectrum which is Mr. Skillings’ response to and decision-making process regarding treatment options made known to and available to him.

[211] This is not a case concerning incorrect diagnosis or error in the implementation of surgical treatment. This case concerns the intervening step between diagnosis and implementation of treatment.

[212] As the Plaintiffs have acknowledged, the issue is whether Mr. Skillings would have pursued appropriate treatment had he been followed up after the PET scan.

[213] Every patient is involved in the decision as to options for treatment. Patients can accept or reject or seek alternatives to the recommended course of action as they see fit. The practice of obtaining Consent forms from a patient regarding the chosen treatment path reflects this right and autonomy of the patient. No reasonable physician would move the patient further along the continuum of health care without that patient’s consent to the procedures involved where possible.

[214] In this case, I find that Mr. Skillings had been provided with the information regarding his condition but was unhappy with the proposed treatment plan. I find that Mr. Skillings was a vital, researched and active participant in the next stage of the continuum toward full recovery and health. Indeed, as I have indicated, in my view, a responsible physician would not move along the continuum of Mr. Skillings’ health care without his willingness, compliance and informed consent.

[215] This is why, in this case, the evidence concerning Mr. Skillings’ conduct, attitude and responses to the information and proposed treatment plans proffered by the physicians is relevant to the issue of causation leading to the devastating infection and surgery, he had to endure.

[216] Turning then to the evidence in this regard. Firstly, on the basis of all of the evidence before me, I am not satisfied Mr. Skillings would have accepted and followed the treatment and plan of care set for him by Dr. Colquhoun, even if he had been appropriately contacted by Dr. Colquhoun for follow-up. The resentment and hostility of both Mr. and Mrs. Skillings toward Dr. Colquhoun was palpable even in the courtroom as they testified before me.

[217] In addition, I find that even before he met with Dr. Colquhoun, as I have stated, Mr. Skillings was an experienced, well-informed and educated man about the medical issues he had endured; the medical issues he was facing; and/or, the medical issues he could face regarding his colo-rectal health by virtue of the weakness at the anastomosis in his body. Mr. Skillings had, of his own volition and completely independently of the physicians who were involved in his care, sought further and other medical opinions and options all the while looking for anticipated outcomes different than the one he had been advised to consider as an outcome, namely, some form of ostomy.

[218] Throughout the course of his medical history until at least October 20, 2011 when his wife wrote to the Mayo Clinic, Mr. Skillings was an active participant in his treatment and recovery. He or his wife initiated contact with and sought an alternative course of treatment from other sources. I find that he declined an informative medical test when he was feeling well while also aware of the existence of fluid in his bowel. He met with Dr. Petrakos on three different occasions regarding the results of the tests that Dr. Petrakos had ordered and also met with Dr. Weaver – all of which consultations concerned the issue at the site of the anastomosis, his rectum and/or his bowel in general.

[219] I am entirely satisfied that notwithstanding Dr. Colquhoun’s breach of the standard of care as described above, Mr. Skillings was well aware of his condition – and the serious nature of his condition.

[220] Mr. Skillings knew that the prior leak had required surgery and an ostomy. He had had to work with an ostomy for a long period of time. He found it so debilitating that he could not work. The second diagnosis of Dr. Weaver with respect to his presenting complaint in June 2011 did not disclose new information to him. But the surgery previously performed by Dr. Weaver had been successful and resulted in closure of the ileostomy. And Dr. Weaver’s next plan for the current issue also appeared to avoid the need for an ostomy. It is entirely understandable that Mr. Skillings wanted this type of surgery.

[221] On the basis of the evidence before me, I find that Mr. Skillings’ indication that he would have been open to and complied with the necessity of a stoma – be it an ileostomy or a colostomy – if he had seen Dr. Colquhoun in a follow-up meeting, runs contrary to his previous conduct, attitude and the indication of his wishes to his previous physicians.

[222] Mr. Skillings had repeatedly displayed anxiety and disappointment at the thought of having an ostomy; he had repeatedly expressed his desire for conservative management; and, he had declined a medical procedure while knowing that he had a leak, which procedure would have assisted the treating physician. Contrary to the advice of Dr. Lo, he did not contact Dr. Colquhoun concerning whether he should be travelling to the U.S. in view of the PET scan results.

[223] My opinion is bolstered by the evidence that at some point in time either prior to or after their meeting with Dr. Colquhoun but clearly after Dr. Weaver’s proposal with respect to the trans-sacral surgery, Mr. and/or Mrs. Skillings contacted Dr. Weaver’s office yet again and posed a number of questions they wished to have answered. The response they received from Jennifer Hart on behalf of Dr. Weaver was included in the email sent to the Mayo Clinic. Ms. Hart’s response involved the question of cost and a detailed explanation of the proposed procedure as well as Dr. Weaver’s expectation. Ms. Hart wrote to the Skillings as follows:

“I do not know what the price for the surgery would be, that would come from Verda…We have seen this problem before in some of our pts., usually the fistula heals on it’s own though. Hopefully the colon would not develop another fistula after it is repaired. The incision will be over the sacral area, the “cyst” would be stapled off or cut off and the opening to colon sewn shut. Dr. Weaver does not anticipate part of the colon being removed but this is always a possibility. This approach to the rectal area, known as a trans sacral or transcoccygeal approach (Kraske) is very old but not a lot of people do it. It is not considered “high risk”. I hope this answers all your questions, you should be in touch with Verda as far as the pricing goes. “

[224] I cannot agree with the defence submission that the evidence is clear that Mr. and Mrs. Skillings were unwilling to pursue treatment outside of Canada. They may have verbally indicated that this was their position to Dr. Colqhoun and/or Dr. Petrakos but their conduct thereafter indicated otherwise.

[225] Contemporaneously with the negative reaction of the Canadian physicians to Dr. Weaver’s surgical plan, Mr. Skillings was feeling well, a health status that may well have contributed to Mr. Skillings’ lack of personal curiosity regarding the results of the PET scan regardless of the indications he said he received from Dr. Lo.

[226] Even if Dr. Lo did indicate that everything was “good” (which I find he did not), I am not satisfied that the Skillings actually relied on his indication in this regard with respect to the results of the PET scan.

[227] It is clear that notwithstanding this purported assurance from Dr. Lo, the spectre of the need for and benefit of medical intervention remained lodged in the minds of Mr. and Mrs. Skillings. Approximately two months after Mr. Skillings’ meeting with Dr. Colquhoun and one month after his meeting with Dr. Lo, Mrs. Skillings sent the above-noted email to the Mayo Clinic in the United States and sought their assistance in the hope that there would be a “less invasive procedure”. It is unclear what she meant by “less invasive procedure” but again, there was reference to the cost and a fear that the cost of the surgery and a hospital stay for Mr. Skillings could bankrupt them.

[228] The Mayo Clinic replied by email on October 20, 2011.

[229] According to an email dated December 16, 2012, Mr. Skillings’ medical file was sent to the Mayo Clinic (referred to as “Appointments, International”) in or about November 2011.

[230] On the basis of all of the evidence before me, there is little doubt that had Mr. and Mrs. Skillings been able to have afforded it, Mr. Skillings would have had the surgery proposed by Dr. Weaver in the United States.

[231] During his testimony, Mr. Skillings indicated that he did not see a copy of the PET scan report or his medical chart when his wife obtained a copy from Dr. Lo on or about September 30, 2011 to send to the Mayo Clinic. It was his understanding, however, that the PET scan was completely normal.

[232] In answer to the question as to whether Mr. Skillings thought that the fluid collection had just disappeared, he stated that he did not think that it was a problem. He knew it was there but he didn’t think it was a problem – he felt fine. He agreed with counsel that he had been living with the fluid collection since at least November 2010 and it had not really been causing him any problems. He agreed that the PET scan basically confirmed what he already knew.

[233] Mr. Skillings agreed at trial that he was trying to avoid surgery that would involve a permanent colostomy. He was looking for an alternative. He wanted to explore every possible avenue that would avoid a permanent colostomy.

[234] Mr. Skillings also testified at trial that if he had been told by Dr. Colquhoun that the only way he (Dr. Colquhoun) could reasonably treat the fluid collection and the ongoing bowel leak at the anastomosis was to do surgery that would require a permanent colostomy, he (Mr. Skillings) believes that he would have accepted that option. However, Mr. Skillings then acknowledged that during his Examination for Discovery he had indicated that if he had been told that one option for treatment would be a permanent ileostomy or colostomy, he did not know if he would have taken that.

[235] Mr. Skillings told the Court that his answer is different at trial than it was during his Discovery because of what he had been living through.

[236] Even if I were wrong in this regard and Mr. Skillings would have followed up with Dr. Colquhoun or a specialist had he known to do so after his meeting with Dr. Colquhoun and the release of the PET scan results, I agree with the submissions of the Defendants that the evidence does not establish on a balance of probabilities that the outcome for Mr. Skillings would have been different to that which he experienced over a year later.

[237] As noted by Dr. Spence in her report, Mr. Skillings was asymptomatic for over a year following his meeting with Dr. Colquhoun. Dr. Feinberg indicated in his report that it is unusual that Mr. Skillings went on for fourteen and one-half months after the PET scan before he became ill from sepsis. Although in his view, there is no question in his opinion that the necrotizing soft tissue infection related to the chronic perforation of the rectum, he also noted that most patients would have presented symptoms in a much earlier time frame.

[238] I also find that the evidence does not establish on a balance of probabilities that but for Dr. Colquhoun’s breach of the standard of care with respect to communicating with his patient upon the receipt of the PET scan results and post-consultation management, Mr. Skillings would not have had to undergo the complex surgery that was required a year later and involved the provision of a permanent colostomy.

[239] In other words, notwithstanding the breach of the standard of care with respect to communication with Mr. Skillings after the results of the PET scan were made known to Dr. Colquhoun, I am not satisfied that Mr. Skillings would or could have avoided the necrotizing fasciitis infection that ultimately developed in November 2012 and caused his injuries.

[240] Mr. Skillings was his own strong advocate. He had demonstrated in the past that he was capable of seeking and acting independently of prevailing medical opinion. As noted by Dr. Feinberg, Mr. Skillings had had a very complex illness over a number of years. Dr. Colquhoun saw him only on one occasion. Dr. Feinberg writes that “if [Dr. Colquhoun] had followed up on the testing as he indicated in his clinic note, the seriousness of Mr. Skillings’ infection and duration of disability would most probably have been less.”

[241] The difficulty is that this statement presupposes the compliance of the patient with respect to the testing and treatment plan.

[242] The challenge in this case is contained in Dr. Feinberg’s next statement, “If Dr. Colquhoun had followed up on the investigations which he had ordered, Mr. Skillings would still have ended up with a permanent colostomy but it is most probable that the necrotizing soft tissue infection and prolonged rehabilitation would have been avoided.”

[243] Apparently, Dr. Colquhoun would have been obliged to disclose the predictability of a permanent colostomy to Mr. Skillings even on completion of the investigations and given the position of Mr. Skillings at the time of his consultation with Dr. Colquhoun and shortly thereafter, in my view, the likelihood of Mr. Skillings agreeing to and complying with this treatment plan would have been unlikely based on the evidence before me.

[244] Dr. Feinberg’s conclusion that “if Dr. Colquhoun had brought Mr. Skillings back to his clinic or communicated the results of his conclusions, the perforation would have been addressed earlier and the episode of sepsis in November 2012 could most probably have been avoided”, presupposes a willingness on behalf of Mr. Skillings to communicate with Dr. Colquhoun and/or at the very least demonstrate an ongoing willingness to hear and understand Dr. Colquhoun’s conclusions. In my view, there is little if any probative and/or credible and reliable evidence before me that satisfies me on a balance of probabilities that such would have been the case in this instance. Mr. Skillings was very disappointed with the outcome of his initial visit with Dr. Colquhoun and did not return to see Dr. Colquhoun concerning his travel plans contrary to the recommendation of Dr. Lo.

[245] Finally, in my view, although I agree with the Plaintiffs’ submission that a reasonable person, properly informed, would not have elected to have the transacral procedure, I am also of the view that a reasonable person, properly informed and educated as to his condition as Mr. Skillings was, would not have rejected or delayed the gastrografin enema which would had further delineated and informed him and his medical team as to the current state and extent of his/her condition.

[246] In my view, the evidence is clear that contrary to the position that would have been adopted by a reasonable person, properly informed, Mr. Skillings would have elected the transacral procedure but for the lack of access to this procedure free of charge in Canada.

[247] Further a reasonable person, properly informed, knowing that the desired procedure was not available in Canada and potentially unattainable financially, would not have delayed pursuing contact with medical personnel in his/her circle of care for months at a time knowing that there was a leak at the anastomosis that had previously lead to the need for an ileostomy.

[248] For these reasons, namely, (a) Mr. Skillings’ decision-making process regarding his treatment options, his negative reaction to Dr. Colquhoun and his subsequent conduct as described herein between his meeting with Dr. Colquhoun and the onset of necrotizing fascitiis; and (b) the length of time that Mr. Skillings was asymptomatic following his meeting with Dr. Colqhoun, I cannot find that but for Dr. Colquhoun’s failure to meet the standard care with respect to communication following his one meeting with Mr. Skillings, the injury sustained by Mr. Skillings would not have occurred.

(b) Dr. Lo

(i) Standard of Care

[249] Dr. Cathy Risdon provided an expert opinion for the Plaintiffs with respect to Dr. Lo. In her report, Dr. Risdon wrote that Dr. Lo’s care of Mr. Skillings raised several concerns:

• the quality of his medical record keeping; and
• his management of test results.

[250] In her report, Dr. Ridson opined that Dr. Lo had a duty to track the timeline and key aspects of the care of Mr. Skillings’ cancer surveillance and post-operative care following the original bowel surgery. In her view, “his medical records did not adequately support that duty”.

[251] Dr. Risdon was also of the opinion that Dr. Lo fell short of a reasonable standard of care in failing to communicate and/or ensure follow-up for a critical investigation ordered by another specialist. If Dr. Lo was not sure of the significance of the findings of the PET scan, he also had a duty to seek consultation from a physician with more specialized knowledge in the interpretation of the PET scans.

[252] I have had the benefit of reading all the reports and notes of Dr. Lo and hearing his evidence at trial as well as the evidence of Mr. Skillings.

[253] I accept Dr. Risdon’s evidence regarding the standard that should be maintained by a family doctor with respect to medical records that allow for the effective provision of medical care. The CPSO has addressed this issue and clearly, Dr. Lo did not apply the SOAP system at all times, if at all, with respect to his professional note-taking or record keeping.

[254] On the other hand, I am entirely satisfied that with respect to Mr. and Mrs. Skillings, Dr. Lo’s notes were sufficient to communicate and record presenting symptoms or complaints, diagnosis and the treatment plan.

[255] Dr. Lo had no difficulty in understanding his notes and records with respect to Mr. Skillings and was able to both read and relay with detail, confidence and substance, his written recordings to Mr. and Mrs. Skillings, counsel and the Court. I am entirely satisfied and agree with the opinion of Dr. Spence that changing the specifics of Dr. Lo’s note-taking or manner of notations “would not have affected the outcome of Mr. Skillings’ illness”.

[256] With respect to the second basis of the opinion that Dr. Lo fell below the standard of care with respect to Mr. Skillings, I note that Dr. Lo appropriately made a referral regarding Mr. Skillings’ bowel issues in a timely and appropriate fashion to Dr. Petrakos. Neither Dr. Lo nor Dr. Petrakos were involved in the decision of Mr. Skillings to seek other medical advice. Notwithstanding this lack of consultation or notice, both physicians agreed to continue to see him and did so. Dr. Petrakos looked after the bowel issues and Dr. Lo looked after Mr. Skillings’ other medical issues.

[257] I am satisfied and find that Dr. Lo recognized Mr. Skillings intention to retain his autonomy and independence regarding treatment option but did inquire about results of Mr. Skillings’ consultation with the next and fourth surgeon to be consulted regarding the bowel issues. Dr. Lo’s notes and/or evidence reflect this inquiry and his instructions regarding the need to contact Dr. Colquhoun again concerning the pending vacation.

[258] Dr. Lo was not a referring physician to any of the surgeons other than Dr. Petrakos. All correspondence and communication regarding Mr. Skillings’ bowel issues transpired directly among the surgeons as required with copies to Dr. Lo. Dr. Lo was not involved in any diagnostic analysis or formulation of treatment plans regarding Mr. Skillings.

[259] It is reasonable to infer from the fact of and the contents of the email to the Mayo Clinic, that Mr. and Mrs. Skillings knew that medical intervention was required and beneficial. The problem for them was the cost of the intervention they had chosen but could not obtain in Canada. They were so knowledgeable that they understood the significance of Mr. Skillings’ medical records and the results of the PET scan to a physician who might treat Mr. Skillings in the U.S. and particular enough that they sent an outline of the proposed treatment plan.

[260] I accept the evidence of Dr. Spence who wrote in her report, “As a family doctor, Dr. Lo was responsible to provide care to the patient by regular visits and checkups, by testing appropriately and arranging needed referrals”.

[261] I find that Dr. Lo instructed Mr. Skillings to contact Dr. Colquhoun albeit for reasons other than Dr. Colquhoun’s treatment plan but Mr. Skillings chose not to comply. Over the twelve ensuing visits with Dr. Lo, Mr. Skillings did not seek advice or request any additional information regarding his bowel issues.

[262] On the basis of all of the evidence before me, I find that I concur with Dr. Spence’s conclusion that in addition to what Mr. Skillings had indicated to Dr. Lo, Dr. Lo “reasonably assumed based on his patient’s previous pattern of managing his health problems by arranging a self-referral to Dr. Weaver when he was concerned and adopting a watch and wait approach when he was not concerned (even when he had possibly abnormal imaging) that Mr. Skillings was actively able to direct his own style of conservative management of his health…With no concern raised by the patient and a PET scan result that was really not very different from the imaging over the past many years, Dr. Lo would not have been expected to pursue any further assessments”.

[263] For these reasons, I am unable to find that Dr. Lo breached the standard of care with respect to his maintenance of Mr. Skillings’ health.

(b) Causation

[264] As noted by Dr. Spence, it was another year from the time of the PET scan in 2011 before Mr. Skillings developed a problem with infection.

[265] Even if I were wrong about the standard of care, for all of the reasons set out above, I cannot find that but for Dr. Lo’s failure to meet the standard care with respect to assurance that Mr. Skillings was receiving appropriate management, the injury sustained by Mr. Skillings would not have occurred.

Conclusion

[266] I find that Dr. Colquhoun breached the standard of care with respect to his exercise of the higher degree of care and skill which could reasonably be expected of a specialist regarding follow-up with Mr. Skillings after the results of the PET scan were received.

[267] I find that Dr. Lo did not breach the standard of care that is required of a normal, prudent practitioner of the same experience and standing.

[268] Even if I were wrong with respect to Dr. Lo and, in any event with respect to Dr. Colquhoun, I find that Mr. and Mrs. Skillings have failed to satisfy the subjective and the objective criteria as outlined above with respect to the issue of causation which must be established for them to prove on balance of probabilities that they are entitled to damages for the failures alleged as against these doctors.

[269] For all of these reasons, this action is dismissed.

[270] The parties may make written submissions with respect to costs if they are unable to reach a settlement in that regard.

Justice L. C. Templeton

Templeton J.

Released: February 14, 2019

COURT FILE NO.: 1624/13

DATE: 20190214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Wayne Skillings and Carla Skillings

Plaintiffs

– and –

Dr. Michael Lo and Dr. Patrick Colquhoun

Defendants

REASONS FOR JUDGMENT

Templeton J.

Released: February 14, 2019

[^1]: Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132 [^2]: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 [^3]: Horsley v. MacLaren, [1972] S.C.R. 411 [^4]: 2017 ONCA 391 [^5]: 2014 ONCA 36 [^6]: [1997] 2 S.C.R. 53 [^7]: Patmore(Guardian ad litem of) v. Weatherston, 1999 Carswell 594