ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 5703/14 DATE: 20190904

BETWEEN:

PENNY-LEE CHAMPOUX Plaintiff

– and –

LJUDMILLA JEFREMOVA and MOHAMMED KHODABANDEHLOO Defendants

Counsel: P. Denton, for the Plaintiff L. B. Stewart, for the Defendants

HEARD: December 10, 11, 12, 13, 14 and 17, 2018 and May 30 and 31, 2019

REASONS FOR JUDGMENT

WILCOX J.

INTRODUCTION

[1] This is a medical malpractice action arising out of events that took place in 2012. Initially, there were two defendants, Dr. Ljudmilla Jefremova and Dr. Mohammed Khodabandehloo. At the outset of trial, however, counsel advised that the case had been dismissed against the defendant Khodabandehloo and the trial proceeded only with respect to the defendant Dr. Jefremova. For the reasons that follow, I also dismiss the claim against Dr. Jefremova.

CHRONOLOGY OF EVENTS

[2] The plaintiff attended at the Kirkland Lake Hospital’s (KDH) Emergency department (ER) on June 19, 2012, when she was seen by Dr. Mohammed Khodabandehloo who gave her a cortisone shot in her shoulder. She returned home.

[3] The plaintiff again attended at the ER on June 29th, 2012, where she was seen by the defendant, Dr. Ljudmilla Jefremova. Again, she returned home.

[4] The plaintiff attended at the ER for a third time on July 2, 2012, where she was seen by Dr. Edgar W. Hunt. This time she was admitted.

[5] She was operated on by Dr. Anthony Visbal on July 3, 2012, to drain an abscess, and discharged home on July 13th, 2012.

[6] She was re-admitted to hospital from August 21 to September 6, 2012 to deal with problems with abscess drainage.

[7] She was again re-admitted to hospital from September 10 to 15, 2012 for a fistulotomy and to begin a Seton procedure. The Seton procedure involved multiple visits to the hospital for adjustments until March, 2013.

[8] The abscess site was still draining on August 23, 2013.

PLAINTIFF’S TESTIMONY

[9] The plaintiff testified. Her evidence was that she was born January 30th, 1967, was 45 years of age in 2012, and was 51 at the time of trial. She and her husband, Andrew Rodgers, live in Kirkland Lake, Ontario. Their two children are grown. She has a grade 9 education and no medical training. She had been receiving ODSP benefits for diabetes and PTSD since 1998 or 1999.

[10] Her diabetes she described as “brittle”, meaning that it is hard to control. Insulin dependent, she takes a long acting form, Lantus, daily, supplemented with another, Novo Rapid, on a sliding scale as needed according to her testing. She uses a personal glucometer to test it. The target range was said to be between 4 and 8.

[11] Further health problems in 2012 included diabetic neuropathy, arthritis, post-traumatic stress and chronic pain. She was on medication for these and others including blood pressure and cholesterol. She had survived cancer twice.

[12] In cross-examination, she agreed:

1. she had been diagnosed with chronic obstructive pulmonary disease (COPD) in 2011 or 2012, but then re-diagnosed in recent months with bronchial issues, for which she uses a puffer;
2. she had arthritis in her knees, hips, shoulder and lumbar spine;
3. she had fibromyalgia, for which she is on medication;
4. she had had arthritis and fibromyalgia since her 20’s;
5. she had had sciatic nerve problems since 2011;
6. she had been diagnosed with diabetes at age 31;
7. she used street drugs prior to 2009;
8. she had anxiety, separate from the PTSD;
9. she had been diagnosed with depression for most of her life;
10. she uses both short and long acting morphine as a pain killer;
11. she uses medical marijuana for pain management, for her appetite, as sleep aid, and for her PTSD;
12. regarding her cancer, in 2005 she had had a hysterectomy due to tumours on her ovaries. In 2012, specifically in August 2012, she thought, she had had a tumour in her vaginal area;
13. her health was generally poor before June 2012; and
14. she had had further abscesses since the one in question, which were all managed by her or with antibiotics or lancing.

[13] The plaintiff is a smoker and has been for 45 years, she said. She still smoked one half pack a day.

[14] On June 19, 2012, the plaintiff had received one or two – the evidence was not clear as to which it was – cortisone injections in the area of her shoulder with respect to an injury there. Dr. Khodabandehloo gave her these. Initially, in this case, the plaintiff alleged negligence by Dr. Khodabandehloo in regards to these. However, as indicated above, the case against him was dismissed. The cortisone injections therefore only form part of the narrative and mark the point in time when the plaintiff said her blood sugars became out of control. The plaintiff alleged that her blood sugars had been out of control from about when she got the cortisone. That is, she was unable to control them with her insulin.

[15] The plaintiff had no family doctor. She explained that she uses the Family Health Team Clinic in Kirkland Lake, which is staffed by locums, as well as the ER She had been treated by Dr. Jefremova before.

[16] On June 29, 2012, the plaintiff attended at the KDH ER at about 7:00 p.m. with respect to what she called an abscess. She said that:

1. it was on the inside middle of her left buttock;
2. she had had it for four days by then;
3. it had grown rapidly and was quite large, about the size of a golf ball; and
4. it had been painful from the second day. She was not able to sit.

[17] She had had abscesses on her body before and was familiar with their treatment. Hot compresses, showers and baths would help bring them to a head were they could break and drain on their own or require medical intervention to open, drain and heal them. This one did not respond to treatment at home.

[18] She also claimed that on June 29, 2012, she had been hyperglycemic with critically high blood sugars which she could not get under control. The effects of which included:

1. feeling unwell;
2. possibly having ketones in her urine;
3. fuzzy vision;
4. irritability; and
5. dehydration.

She could not eat, she said, because it could put her into a diabetic coma as her blood sugar was already high.

[19] At the hospital, the plaintiff hoped to be admitted to get her blood sugars under control and to have the abscess lanced.

[20] At the hospital the plaintiff saw a triage nurse who did a blood sugar reading and took her vital signs. She said she told the nurse of having complaints including:

1. her blood sugar was extremely high; and
2. she had a painful abscess on her left buttocks cheek;

[21] She then saw the defendant, Dr. Jefremova.

[22] In chief, she said “I believe” that she and the defendant had discussed the plaintiff’s situation. In cross-examination, she was “fairly certain” that she had told the doctor all that was wrong with her. She was not definite on that point.

[23] The defendant then, she said:

1. looked at the abscess;
2. might have touched it;
3. said it was not ready to break;
4. gave her a prescription for antibiotics;
5. said it could be managed at home, without admission to hospital;
6. advised her to use hot baths and compresses;
7. said to increase her long acting insulin and to check her blood sugar often;
8. might have increased her sliding scale insulin; and
9. told her to come back in 72 hours.

[24] The meeting with Dr. Jefremova lasted 15 to 20 minutes.

[25] Dr. Jefremova allegedly did not:

1. say what kind of abscess it was; or
2. advise of the risk of the abscess.

[26] According to the plaintiff, the doctor said to come back in 72 hours because it was Canada Day weekend and no one would be there to help her before that.

[27] The plaintiff agreed in cross-examination that, in-chief, she had said that the abscess was golf ball size or bigger. However, she also disagreed with the suggestion that it was less than 5 cm or about 2 inches across, alleging instead that it was about 3 inches.

[28] Also in cross-examination, the plaintiff did not recall the doctor saying to come back in as little as 48 hours or sooner if it got worse. She insisted that the doctor had said to return in 72 hours because it was Canada Day long weekend. She agreed that she could have returned to the emergency if it got worse.

[29] The plaintiff said that she had gone to the Emergency department at about 7:00 p.m. because the doctors take from 5:00 p.m. to 7:00 p.m. for dinner, so there is a good chance to be seen after that.

[30] The plaintiff was driven to the hospital by her mother-in-law, Lisa Kyle. She did not recall if Ms. Kyle was in the examining room with her. Ms. Kyle took the plaintiff home from the hospital.

[31] Between June 29 and July 2, 2012, the plaintiff:

1. took the prescription;
2. had hot baths; and
3. applied hot compresses.

However, the abscess grew rapidly and her blood sugar climbed higher.

[32] The plaintiff did not return to hospital sooner than in 72 hours because, she said:

1. she had been told that no one would be there; and
2. she was septic and therefore not lucid.

On the second point, I note that Exhibit 2B, the triage record of July 2, 2012, notes in apparent contrast that she walked into the ER and was alert.

[33] The plaintiff said that she had little recollection of July 2 or the two weeks following it, except for pieces. It was not clear how much of her evidence of this time was from her recollection, and how much was hearsay. She said that a friend realised that something was wrong, and returned her to the hospital on July 2 where a male doctor admitted her for surgery to be performed the next morning. In hospital, she said, the abscess ruptured. Two or three surgeries were required to fix it. In the first, she was operated on by Dr. Antonio Visbal. In addition, she described the abscess cavity having packing put into it, a painful process that was done twice per day initially, then daily after a seton procedure was performed. Also, she said a central line was put into her heart so that the VON could give her antibiotics after she went home.

[34] After the first surgery she was discharged to her home on July 13, 2012 but re-admitted from August 21 to September 6, 2012, because of problems with abscess drainage, and again from September 10 to 15, 2012, for a fistulotomy and to begin the seton procedure. After that, she saw Dr. Visbal each six weeks for 11 months to continue the seton procedure and for follow up, up to June, 2013.

[35] She said that the central line remained in for an estimated 6 to 8 weeks during which the VON attended to administrating her the antibiotics. Subsequently, she went on oral antibiotics.

[36] The plaintiff spoke of the effect on her apart from having to undergo the medical procedure and treatment:

1. she stayed at home for a year, mostly resting, except for doctors appointments. Now, she goes out for groceries and errands, but there is no social life. She was very sad;
2. she lost about 80 pounds from July 2 to September 11, 2012. This cause her dentures to become ill fighting. She lost strength for walking, climbing stairs and lifting;
3. her blood sugars are better but still not controlled; and
4. she felt unwell for a long time.

RE PLAINTIFF’S CREDIBILITY

[37] In cross-examination, the plaintiff said that, in the first six months of 2012, she had been trying to reduce her weight to improve her blood sugar levels. When she indicated that her goal was 160 pounds, it was pointed out that she had said at examination for discovery that the goal was 140 pounds, to which she responded that possibly her goal before she was sick was 140 pounds.

[38] In cross-examination, the plaintiff said that she, with a diabetic nurse and a nutritionist, worked towards a goal and did well, with respect to her blood sugar levels.

[39] At her examination for discovery, she had said that her blood sugar in 2012 before the abscess was perfect in that it had been between 4 and 8, “nothing over 10 really” for over a year. In cross-examination, she stood by those answers. However, defence counsel pointed out that of 376 glucometer readings from December 18, 2011 to June 18, 2012, 114 or about 30% were over 11. The plaintiff responded that with brittle diabetes she spikes high and low, which really did not explain the contradiction.

[40] The plaintiff claimed that, from June 18 when she saw Dr. Khodabandehloo to June 29, 2012, her blood sugar had been in over close to the 30’s. In cross-examination, she agreed that her glucometer readings only showed two in the thirties in that time, both on June 21. In response, the plaintiff expounded on how anything twenties is “critical”. Questioned that, despite this she had not sought medical help sooner, she offered an answer, but then withdrew it when challenged, and admitted that when she went to the hospital it was for the abscess.

[41] In chief, the plaintiff said that she could not sit down because of the abscess, but then that she sat while the nurse at the emergency room on June 29, took her blood sugar readings and while speaking with Dr. Jefremova. In cross-examination, she said she was laying on a stretcher, but when told that Dr. Jefremova would testify that the plaintiff was sitting, the plaintiff said she did not recall which it was, and that her memory was poor.

[42] The above are just some examples of where the plaintiff’s evidence was brought into question. Overall, I find the plaintiff’s credibility and reliability to be weak. I accept her broad outline of events, but am leery of her evidence beyond that. She admitted that her memory of some times was poor. Some parts of her story appear to be patched together from the information of others. At other times, whether through faulty recollections or an attempt to embellish her story to her advantage, cross-examination showed inconsistencies in it. Her idea that, in this day in age with the pressures on the medical system being well known, the doctors would take two hours for dinner seems fantastical. The idea that she would be told that there was going to be nobody in the ER to see her over the weekend is objectively unreasonable. She gave the impression at times that she was testifying for effect rather than for accuracy.

LISA KYLE’S EVIDENCE

[43] Lisa Kyle testified for the plaintiff. She is the plaintiff’s mother-in-law, had known her about 10 years, and is close to her, seeing her once or twice per week and talking on the phone a couple of times per week. She would drive the plaintiff to medical appointments and pickup prescriptions for her. She has no medical training.

[44] Regarding June 29, 2012, she knew that the plaintiff was diabetic. She recalled driving the plaintiff to the hospital because the latter was very sick and does not drive, but said she recalled nothing else of that visit. However, she answered that she sat in the waiting room with the plaintiff, but could not recall if she was present for the defendant doctor’s assessment of the plaintiff.

[45] She recalled driving the plaintiff home from the hospital on June 29, 2012. She did not talk on the telephone with her after that. She went to check on her on the afternoon of July 2, 2012, but the plaintiff was sleeping and there was no conversation. She was not providing medical care to the plaintiff.

[46] She heard from her son that the plaintiff had been admitted to hospital on July 2, 2012, but did not recall how long the plaintiff was there.

[47] She commented that the plaintiff had not been the same person physically or mentally as she was before June 29, 2012.

RE EXHIBITS

[48] A series of documents was entered into evidence within exhibit 2, including the following:

1. Tab 1 is the KDH Triage record of 19:18 (i.e. 7:18 p.m.) on 29/06/12 done by a nurse regarding the plaintiff. It shows that the plaintiff arrived “ambulatory” and her level of consciousness was “alert”. Her medications recorded included “Lantus 56 units and Novo Rapid insulin sliding scale”. The “Nurse Assessment[^1]” included references to the plaintiff’s diabetes and to an abscess. It states in a typed note “Hyperglycemia. Had cortisone injections on June 18/2012, since then sugars running high, four days ago developed an abscess on buttocks, last glucometer at 16:30 was 18.9 took insulin 8 units now sugar are 11, sugars running from 18 to 30” (sic). The triage nurse wrote “glucometer 11.6”.
2. Tab 2 is the KDH emergency record of 29/6/12 regarding the plaintiff by the defendant Jefremova. Under “Assessment” she recorded “buttock abscess/big red swollen nodule/not fluctuated. Very tender/warm”. She prescribed Cipro (an antibiotic) and indicated an increase[^2] of the plaintiff’s Lantus to 54 units, among other medications.
3. Tab 3 is the KDH emergency record dated 2/7/12 by Dr. Hunt. He noted, among other things, “uncontrolled diabetes”, “Peri-anal abscess”, “admit”, and “consultation Dr. Visbal”.
4. Tab 4 is the KDH “history and physical” report dated 2/7/12 by Dr. Edgar Hunt. It notes that the plaintiff is an insulin dependent diabetic who had come in that night complaining of feeling unwell generally and of pain in her buttocks area specifically, and that she “looks in distress although she was able to go outside to smoke”. (Exhibit 2B was the nurse’s triage record of that date. It notes also that “Pt. out for numerous cigarettes” among other things.) He noted that “her sugar levels are in the normal range of 9” but that she had “a very large abscess on her perianal area on the right side” which he felt needed to be drained by a surgeon. He admitted her for management of her abscess and her diabetes.
5. Tab 7 is the KDH “consultation” report dated 3/7/12 of Dr. Visbal to Dr. Hunt. It indicates that: i. the plaintiff presented with “a large absedated lesion in the left buttock”; ii. the plaintiff’s physical examination “demonstrated an abscess in the left gluteal region, left pararectal area”; iii. the abscess was drained; and iv. it was in fact an “ischiorectal abscess with extension up to the presacral region”.
6. Tab 8 is the detailed KDH discharge summary regarding the plaintiff for the period 27/7/12 to 13/7/12.
7. Tab 10 is the KDH discharge summary regarding the plaintiff dictated by Dr. Hunt on 13/7/12 (i.e. 10 days after the operation). It indicates that, since Dr. Visbal operated, the plaintiff had “daily dressing packing” and the wound was slowly healing. She had reached the point where she could have her dressings changed at home and was being discharged with home support.
8. Tab 11 is the KDH “operative report” of Dr. Antonio Visbal dated 29/7/12, indicating that he had operated on the plaintiff on 3/7/12 to drain an abscess. The pre-operative diagnosis was “perianal abscess”. The port-operative diagnosis was “ischiorectal and presacral abscess”.
9. Tab 13 is a note from Dr. Hunt “to whom it may concern” advising that the plaintiff “could benefit from having an apartment unit on the ground floor for medical reasons”.
10. Tab 22 the clinical notes and regards from Family Health Team, dated July 31, 2012 to June 3, 2014, include a note of August 23, 2013, stating, among other things, “Seton sinus still draining-improving”.
11. Tab 25 is a KDH “consultation” report from 4/8/12 by Dr. Visbal to Dr. Edward Jordan. In summary it advises that: i. the plaintiff was in hospital in July (2012) with septic shock secondary to her abscess; ii. he had drained the abscess. It remained poorly controlled with persistent drainage of purulent secretion; iii. the plaintiff needed further surgery to debride the ischiorectal region to open more of the drainage site; iv. investigation had shown that “she had communication to the anal canal”; and v. he would be doing a fistulotomy and Seton procedure which would take around three months to heal.
12. Tab 26 is a letter by Dr. Visbal of August 14, 2012, to doctors Nadine Henderson, George Zeman and Brian McPherson advising of his findings on an assessment of the plaintiff that day. He notes that she had “been presenting with increment of purulent secretion for the last four days” and that he “did a wound care and debridement of the left perianal abscess”. The cavity measured around 4 cm in diameter. He was re-starting her antibiotics, would re-assess her on August 30 and he would organise a colonoscopy. The plaintiff also had what appeared to be a vulvar malignancy.
13. Also at Tab 26 is Dr. Visbal’s letter of September 25, 2012, to Dr. Henderson in which he reports “she is evolving well, no signs of secretion or active infection. Seton in good condition. Stiches removed. Pathology reviewed demonstrated chronic inflammatory changes is consistent with perianal fistula. Continue antibiotics per 2 more weeks.” Also, the Seton would be tightened on October 5, 2012.
14. Tab 27 is the KDH “history and physical” record of Dr. Visbal dated 21/8/12. It indicates that he would do a colonoscopy related to the ischiorectal abscess. He noted that her abscess appeared to be not properly controlled, and that she should stay in hospital to start IV antibiotic therapy.
15. Tab 30 is the KDH “discharge summary” of 6/9/12 by Dr. Edward Jordan regarding the plaintiff’s admission of 21/8/12. It indicates that, after the perianal abscess was drained, the drainage hole closed over and the abscess continued growing. An attempt to transfer her to a facility that could give her more comprehensive care had failed. They were waiting on the return of another doctor to do the anaesthetic on the plaintiff so that the abscess could be drained again.
16. Tab 37 is the KDH “history and physical” report of Dr. Visbal of 12/10/12. It indicates that the plaintiff was admitted to hospital on September 10, 2012, for a September 11, 2012 fistuolectomy and a Seton procedure.
17. Tab 38 is the KDH “operative” record of Dr. Visbal regarding the plaintiff’s surgery on 11/9/12. It describes the fistuolectomy and Seton procedure done.
18. Tab 39, 41, 44 and 47 are KDH clinic notes of 5/10/12 and operative reports of 2/11/12, 7/12/12 and 11/2/13 regarding the plaintiff’s attendances at KDH to have the Seton adjusted by Dr. Visbal. In the last of these, Dr. Visbal indicated that the procedure was not yet complete.
19. Tab 49 is comprised of the plaintiff’s glucometer readings for December 18, 2011 to July 4, 2012.

DR. JEFREMOVA’S EVIDENCE

[49] The defendant Jefremova testified that she is a medical doctor and received her specialist certification in family medicine and her license to practice in Ontario in 2005. In June 2012, she was spliting her time between Whitby and Kirkland Lake. Part of her practice was in KDH working in the ER and elsewhere in the hospital. She also worked part time at a clinic in Kirkland Lake for patients without family doctors. She had substantial training and experience with patients with diabetes and with abscesses, including in aspirating, incizing and draining abscesses.

[50] Prior to June, 2012, she had treated the plaintiff at the clinic, recalling that it was for an abscess on her chest and for her diabetes.

[51] The defendant was the sole doctor working at the KDH ER on June 29, 2012, together with one or more nurses. Notes of her encounter that day were kept in the hospital records (Exhibit 2).

[52] Upon arrival at the hospital, the plaintiff would have registered and then been seen by a nurse who would take vital signs and a history, recorded in a triage record. Reviewing that record, she saw that the plaintiff had arrived at 7:18 p.m., walking independently and alert, with a few issues:

1. she was hyperglycemic, meaning that her blood sugar was elevated. The plaintiff reported that it had been running high, between 18 and 30 since she had a cortisone injection on June 18. It had registered at 18.9 at 4:30 p.m. The plaintiff had then taken 8 units of insulin, and the level was down to 11; and
2. the plaintiff had developed an abscess on her buttocks four days prior.

[53] There was no record of the plaintiff complaining of fuzzy vision. The defendant thought that such a complaint would have been documented. Nor was there noted that the plaintiff was irritable or dehydrated. The plaintiff had testified that her high blood sugars were affecting her in these ways on June 29, 2012, and that she had felt unwell.

[54] The record did show that the plaintiff had a medical history of diabetes, asthma, diabetic neuropathy, post-traumatic stress, and elevated blood pressure, as well as the medications that the plaintiff was taking, which the defendant explained the purposes of.

[55] The record of the vital signs showed:

1. the plaintiff’s blood pressure was 131 over 99, which the defendant said it was normal range;
2. the plaintiff’s temperature was 36.2, which the defendant said was normal range;
3. the plaintiff’s respiratory rate was 18, which the defendant said was normal;
4. the plaintiff’s oxygen saturation rate was 100%, which the defendant said was normal; and
5. the plaintiff’s heart rate was 140 beats per minute. The defendant said that that was elevated, that the normal heart rate of a healthy person was 60-100, that the plaintiff was not a healthy person, and that it got her attention.

[56] The defendant requested and reviewed the plaintiff’s hospital records from previous hospital visits to obtain baseline information before seeing the plaintiff. These indicated that the heart rate was always elevated without any cardiac issues, and her normal glucose level was between 8 and 12.5.

[57] The defendant had some recollection of seeing the plaintiff on June 29, 2012. She noted that record said that the defendant entered the exam room at 8:33 p.m., having already looked at the plaintiff’s records. She recalled that the plaintiff was sitting on the examining table. She asked questions regarding the plaintiff’s issues. She would have noted any answers and symptoms that were not already in the nursing notes. She recalled that the plaintiff was alert and oriented. She would have noted it if it was otherwise.

[58] Examination showed the “left side of the buttock cheek, middle part, has redness with slightly elevated centre”, and also that the skin was clear. That is, there were no additional lesions found. There was no discharge of fluid or pus. The elevated area, called the nodule, where pus would collect, did not have a white or yellow centre, which might be seen of pus was present. She said that the nodule was less than 5 cm in diameter because she would have documented it if it was greater than 5 cm. Five centimetres was said to be very significant to her because, according to the specialist she trained under, it affected how the abscess would be treated. She would see it again after an appropriate passage of time.

[59] In the emergency record the defendant wrote “buttock abscess/big red swollen nodule/not fluctuated…very tender/warm”.

[60] She explained that “not fluctuated” meant that the abscess was still forming and was not ready to drain. In her experience, abscesses take 5 to 7 days before being ready to drain.

[61] No rectal examination was performed because the plaintiff was sitting and had made no complaint of rectal pain to her or to the nurse. So, in her opinion, it was not necessary.

[62] Nor did she re-check the plaintiff’s vital signs because they had been within normal limits upon arrival, apart from that heart rate of 140. Just having an elevated heart rate would not indicate that the plaintiff had a generalized infection or sepsis. It could be due to other reasons such as chronic anxiety or smoking.

[63] The diagnosis recorded on the emergency record was “abscess”, with a second diagnosis of hyperglycemia (elevated blood sugars).

[64] She chose not to aspirate the abscess with a needle because:

1. a buttock is relatively large;
2. the cavity would be very deep;
3. it would take a big, heavy needle;
4. the nodule was very hard;
5. it is a painful procedure;
6. it would get a small amount of pus, if any, so it would not be successful;
7. incision and drainage usually would still be required for proper treatment; and
8. in her training with the specialist, she had learned that it is not frequently done.

[65] She had considered incision and drainage of the abscess but found that the abscess was not ready for that. If it was done too soon, it would not produce an appropriate result. It would have to be re-done, which would be very painful.

[66] She had explained this to the plaintiff, who she had treated before for abscesses, and the plaintiff clearly understood.

[67] The defendant provided the following summary to aid in understanding:

A. We have abscess, which is not ready. Five to seven days usually it’s take to have abscess formed that all pus go into a cavity. It’s like a balloon with dead cells. Healing process need to get rid of the pus, so we need incision and drainage. If the body is still fighting with infection and that cavity, as I would say, it empty, I can’t cut the skin or incision and drainage. I don’t have enough pus to relieve and heal the abscess. The general idea of treating any abscesses, to let it ripe, then 50:50 can skin be broke on it’s own - or own, and pus will get out. If not, patients require incision to get pus out. If you open early, I can get just blood flowing but no pus. (sic)

[68] She stated that she had previously incised and drained abscesses, including on the buttocks, and including abscesses that were both less than and greater than 5 cm in diameter.

[69] Asked about the treatment plan, she said that the abscess would definitely require incision and drainage when it was ready. She started the plaintiff on two antibiotics to cover a broader range of bacteria with a longer duration than for a healthy person. This was because the plaintiff had diabetes, and diabetics are immunocompromised and can be sensitive to infection. These would not cure the infection but would help “to collect the pus formation”. In addition, she discussed with the plaintiff the use of warm compresses on the affected area, with which treatment the plaintiff was familiar from treating previous abscesses, to promote pus collection in the cavity.

[70] Blood tests could have been done but were not because the plaintiff’s vital signs were stable but for the heart rate, she was not septic, and they would not have changed the defendant’s treatment approach.

[71] No ultrasound was ordered because the abscess needed time to get ready to drain, and it would not have changed the defendant’s decision to watch and wait until it was ready to be drained.

[72] If she thought that the abscess required incision and drainage on June 29, 2012, she was confident that she could have done it. Therefore, she did not consult a general surgeon.

[73] Whether to admit a patient to hospital is always a consideration, she said, but she saw no reason to admit the plaintiff on that date.

[74] As for the treatment plan for the plaintiff’s hyperglycemia, the defendant knew that the plaintiff was taking long acting insulin plus additional insulin on a sliding scale, but that the plaintiff had said that her blood sugar was not under good control. However, according to the medical records, the plaintiff’s baseline was between 8 and 12.5, and her level was documented to be 11.6 in the emergency department. So, the defendant did not believe it was under perfect control because the infection could affect it, but it was not critical. It was appropriate to increase the long acting insulin on June 29, and to have the plaintiff monitor her blood sugar up to four times per day and continue using the short acting insulin on a sliding scale while dealing with other issues such as the abscess, and try to stabilize it after that.

[75] The defendant said that she had told the plaintiff, like all her patients, to return to the emergency department in 48 to 72 hours for re-assessment. Also, it was her routine to recommend to patients that they should return at any time if any of the symptoms change of or worsened. These discharge instructions were not documented because of a lack of space on the form, which space was used for more specific instructions such as regarding medications for example.

[76] Contrary to the plaintiff’s evidence that the defendant told her only to come back in 72 hours because it was Canada Day weekend and no staff would be at the ER to help, the defendant said there are doctors there 24 hours per day and that the defendant was the doctor on call for that weekend.

[77] The defendant said that her encounter with the plaintiff lasted about 22 minutes, plus the time taken to review the plaintiff’s medical records, but that she would have taken as much time as needed with the patient.

CROSS-EXAMINATION OF THE DEFENDANT JEFREMOVA

[78] In cross-examination, the defendant confirmed that, in 2012, she was familiar with:

1. anorectal abscesses, including perianal and ischiorectal abscesses and their symptoms, diagnosis and treatment;
2. type 1 diabetes and its treatment;
3. hyperglycemia and its symptoms, diagnosis and treatment; and
4. sepsis, and its symptoms, diagnosis and treatment.

[79] That familiarity resulted from her training, text books, journals, continuing medical education, consulting various medical information sources and reading various medical publications.

[80] Regarding abscesses the plaintiff indicated that:

1. an abscess is an infection;
2. an abscess includes pus, by definition;
3. left untreated, or treated inadequately, an abscess can grow bigger and lead to sepsis;
4. if an abscess gets bigger, the infection can spread and there can be more damage if it is untreated;
5. smaller abscesses are easier to treat than bigger, complicated ones;
6. a huge abscess can cause sepsis. It is questionable whether a small one can; and
7. antibiotics alone would not stop the abscess on the plaintiff’s buttocks from growing. It was expected to grow. Untreated, or treated inadequately, it might lead to sepsis. The abscess would require an incision and drainage.

[81] Regarding sepsis, the plaintiff agreed:

1. symptoms of sepsis can include confusion, lethargy, sleepiness and not drinking. However, those symptoms do not necessarily indicate the presence of sepsis;
2. sepsis can lead to organ damage and even death;
3. to diagnose sepsis, one needs two of the four SIRS criteria plus infection;
4. the SIRS criteria include: i. heart rate over 90; ii. temperature below 36 degrees or above 38 degrees; iii. a respiratory rate above 20 breaths per minute; and iv. a white blood cell count below 4,000 or above 12,000.

[82] Regarding hyperglycemia, the plaintiff agreed:

1. it means high blood sugars;
2. symptoms can include fuzzy vision, dehydration and feeling unwell; and
3. it can make someone very sick unless treated adequately.

[83] Regarding diabetic persons, the defendant agreed:

1. they are immunocompromised, so they cannot fight off infections as well as people who are not; and
2. infections can spread faster and be more dangerous in them.

[84] The entirety of the defendant’s note about the plaintiff’s hospital visit of June 29, 2012, is in the emergency record of that date (exhibit 2, tab 2). It does not include:

1. a history that she personally recorded; and
2. discharge instructions, other than about medications.

[85] Regarding the defendant’s memory of the plaintiff’s visit, plaintiff’s counsel asked a series of questions involving the defendant’s answers at her examination for discovery which was on February 20, 2015, and subsequent corrections, the defendant’s answers at trial, and various records. This was an effort to show that the defendant had no recollection of where on the plaintiff’s buttocks the abscess was. The defendant said that she had been confused about whether she was to answer based on her knowledge from the hospital visit on June 29, 2012, or from reading records of subsequent hospital visits when the plaintiff was attended to by others. She was clear however, that although she did not remember from June 29, 2012 which side the abscess was on, she did remember that it was in the middle of the buttock. That had also been her answer at discoveries.

[86] Regarding the plaintiff’s heart rate, the defendant said it is normally between 100 and 110 beats per minute, and had been as high as 120. This was apparently based on her recollection from her review of the plaintiff’s medical records on June 29, 2012. In any event, she agreed that the 140 beats per minute on June 29, was the highest it had ever been. She did not diagnose why it was that high. She agreed that the infection can cause elevated heart rates, and that an elevated heart rate is one of the signs of sepsis, being one of the four SIRS criteria.

[87] The plaintiff’s white blood cells count, another of the SIRS criteria, was not tested on June 29, 2012. It could have been, which would have taken 35-40 minutes to get the results, the defendant said.

[88] The defendant agreed that the antibiotics would not stop the abscess from growing and that, after the plaintiff went home, the abscess did get bigger. By July 2, 2012, the infection was worse and the abscess needed to be drained by a surgeon.

[89] It was pointed out to the defendant that the hospital records from July 3, 2012, showed that the plaintiff met the SIRS criteria for sepsis. She disagreed that the plaintiff had sepsis, indicating that the whole picture had to be considered, not just those vital signs.

[90] Responding to questions about the plaintiff’s allegations that on June 29, 2012, the defendant told the plaintiff to come back in 72 hours because it was Canada Day weekend and there was no one at the hospital to help her, and if that meant that the defendant had told her that there was no surgeon available, the defendant disagreed. She said that although there was no surgeon in Kirkland Lake, one was available in New Liskeard who was covering Kirkland Lake.

[91] The defendant agreed that, on June 29, 2012:

1. she knew the plaintiff was suffering from hyperglycemia and poorly controlled high blood sugars;
2. she knew that the plaintiff had had a cortisone injection on June 18, 2012, but did not think that it was causing the high blood sugars;
3. she did not order any blood work or other lab work regarding the hyperglycemia;
4. she did not diagnose the cause of the hyperglycemia;
5. she did not know the cause of the hyperglycemia although it might be due to infection;
6. she put the plaintiff on antibiotics which can cause blood sugars levels to rise, but more likely to fall;
7. she sent the plaintiff home with an infection which she expected to grow in size and which might get worse;
8. she did not check the plaintiff’s blood sugars again before sending her home;
9. it was possible that the infection would make the blood sugars, which the plaintiff was already having a hard time controlling, worse; and
10. the idea in medicine of differential diagnosis was to rule out the worst causes first, and move on from there.

However, she said, although the plaintiff had “abnormalities”, she was not very sick and she was stable to go home. The defendant did not expect anything terrible would happen nor just hope that it would not.

[92] The defendant was questioned about the plaintiff’s prescription for Lantus. The nurse’s triage record said the dose was 56 units. The defendant’s emergency record said to increase Lantus to 54 units, which appears from the records to be a decrease. The defendant agreed that it appeared so, but indicated that the records are sometimes wrong and that the plaintiff told her that she was taking 52 units and the defendant increased the dose by the usual increment of 2 units.

[93] The defendant agreed that she did not know how deep the plaintiff’s abscess was on June 29. If it was deep, the pus might not be visible at the surface of the skin. She did not aspirate it with a needle to find out how much pus was there, for reasons that she had given in chief. However, she could have had an ultrasound done, which would have taken an hour, but chose not to.

[94] As for the type of abscess the plaintiff had on June 29, the defendant agreed that records from after then refer to a perianal or ischiorectal abscess. However, on June 29, she diagnosed an abscess, but not a perirectal one, because the plaintiff was not reporting the symptoms of such. She agreed that some types of anorectal abscesses are in the buttock, as distinct from being next to the anus or rectum, but said that those would be considered if after initial abscess treatment a patient was not getting better. The plaintiff’s, she said, “was very localised in the middle of the buttock…(n)ot spread into the perianal area”. She saw no reason to diagnose a perianal or ischiorectal abscess, or any kind of anorectal abscess.

[95] Turning to the size of the abscess when she saw it, the defendant:

1. did not know if the abscess was growing fast or slowly, only that the triage record said it started 4 days ago;
2. did not recall if she had asked the plaintiff how fast it was growing;
3. would have determined the abscess was less than 5 cm in diameter by comparing it to the known size of her own hand;
4. indicated that regardless of size, an abscess has to be ready to drain; and
5. indicated that how the abscess is treated once it is incised and drained can differ depending on whether it is greater or less than 5 cm in diameter, but it also depends on the individual patient.

DR. CHRISTOPHER FERNANDES

[96] Dr. Christopher Fernandes testified for the plaintiff.

[97] He is a retired medical doctor with a specialty in emergency medicine which he has also been a professor of at the university level. He was qualified to give expert evidence as to the standard of care expected of an emergency room physician in the diagnosis treatment and progression of : i. abscesses and in particular anorectal abscesses; ii. uncontrolled blood sugars/hyperglycemia; and iii. sepsis; and in the treatment of diabetic patients with infections.

[98] Dr. Fernandes provided an opinion that the care provided by the defendant, Dr. Jefremova, on June 29, 2012 fell below the standard.

DR. STEPHEN MCMURRAY

[99] Dr. Stephen McMurray testified for the defence.

[100] He was qualified on consent as an expert witness regarding the standard of care in the same areas as was Dr. Fernandes.

[101] Dr. McMurray’s opinion was that there was not “a noticeable perirectal symptomatology” on June 29, 2012. Given that, Dr. Jefremova would not have been required to look for or consider a deeper problem like an ischiorectal abscess. Further, he said, “it would be very unusual for a buttocks abscess to be associated with a perianal abscess of one sort or another”. He saw this as a simple buttocks abscess. Overall, then, his opinion in his evidence in chief was that Dr. Jefremova met the standard of care on June 29, 2012.

[102] Plantiff’s counsel in cross-examination put to Dr. McMurray that Dr. Jefremova had formally admitted that “on June 29 the abscess was in the general perianal area or region”. That was the first that Dr. McMurray had heard of that admission. When that asked now that he knew that it was in the general perianal area did that change his general opinion as to what type of abscess it was, he said it did. He then agreed that his earlier evidence was that one of the systems of an ischiorectal is that it is painful to sit on. It was then put to him that the evidence that:

1. the plaintiff found it painful to sit;
2. there was redness; and
3. it was swollen;

was suggestive of an ischiorectal abscess, with which he agreed, except for the description of it as a buttocks abscess. Therefore, he remained unclear as to the location of the abscess. Plaintiff’s counsel insisted that it was admitted in the defendant’s Response to Request to Admit that it was in the perianal region. Dr. McMurray opined that if it was clearly a perirectal abscess or an abscess in the perianal region, it should have been incised and drained right away by the ER doctor or by a surgeon. In other words, the standard of care was different from that for a buttocks abscess.

[103] As already noted, the plaintiff’s counsel relied heavily on the Response to Request to Admit for the proposition that what the defendant was dealing with on June 29, 2012, was an anorectal abscess, whether perianal or ischiorectal, that needed immediate incision and drainage. Accordingly, he submitted, the defendant did not meet the standard of care.

[104] So, two scenarios were put to Dr. McMurray, the one he was expecting about a buttocks abscess and the one he was surprised with about a perianal abscess, eliciting two opposing opinions. The way the scenarios were put to him raised some concerns.

[105] One is the suggestion is the plaintiff found it painful to sit. As addressed elsewhere in these reasons, the evidence was that the plaintiff was sitting on June 29, 2012 at the ER, which was counter-indicative of an anorectal abscess.

[106] Another is that the plaintiff’s counsel put only part of the Request to Admit and Response to Request to Admit to Dr. McMurray, and that was somewhat inaccurate and out of context. Paragraph 10 of the Request to Admit was:

On June 29, 2012, Penny-Lee Champoux had a perianal abscess.

The Response to Request to Admit refused to admit that, stating instead that:

On June 29, 2012, Penny-Lee Champoux presented with a buttocks abscess/swollen nodule in the general perianal area.

To me, the way this unfolded was misleading and unfair to Dr. McMurray and to the defendant.

RE LOCATION OF THE ABSCESS

[107] Clearly, the location of the abscess seen by the defendant on her examination of the plaintiff on June 29, 2012, is important to determine because the standard of care differs depending on that.

[108] The plaintiff’s opening statement on December 10, 2018, referred to the plaintiff having an abscess on her buttock or buttocks when seen by the defendant on June 29, 2012. There was also reference to rectal abscesses, generally, in terms of antibiotic treatment, to the plaintiff being admitted on July 2, 2012 with a perianal abscess on her left buttock, and to her having a rectal abscess. It was equivocal as to location.

[109] The plaintiff’s evidence was that, when she went to the ER on June 29, 2012, she had an abscess in the “inside middle” of her left buttock cheek. She described it as very large, about the size of a golf ball or bigger. She said that she “could just feel it”.

[110] The triage record of June 29, 2012 completed by a registered nurse at the ER notes “abscess on buttocks”.

[111] The defendant recalled examining the plaintiff’s buttocks on June 29, 2012 in the ER. She testified in chief that there was a slightly elevated area less than 5 cm in diameter at the “left side of the buttock cheek, middle part”.

[112] The defendant’s emergency records of that visit refers to a “buttock abscess”.

[113] The defendant was cross-examined at some length with respect to the plaintiff’s presentation on June 29, 2012. She said that the plaintiff had an abscess that was very localised in the middle of the buttock, not spread into the perianal area. The plaintiff did not have complaints which would indicate an anorectal abscess of any kind. In particular, the plaintiff did not complain of rectal pain.

[114] The defendant agreed that ischiorectal abscesses can form in the middle of the buttock, but she had never seen that in her practice. It was, she said, in the back of her mind, but she would not put that diagnosis on it on June 29, 2012. That would take further investigation. Her choice would be a CT scan or an ultrasound. However, she had previously indicated that further investigation would be premature.

[115] Dr. McMurray opined that “patients who have mature perianal, ischiorectal, or other perineal abscess will not sit down because of the pain”. The evidence as to whether the plaintiff was sitting during the June 29, 2012 ER visit comes from several sources. The plaintiff was inconsistent in chief as to whether she was sitting, and admitted in cross-examination that she did not recall. Lisa Kyle, who took the plaintiff to the ER on June 29, 2012, testified that she and the plaintiff were sitting in the waiting room. Dr.Jefremova’s evidence was that on June 29, 2012, the plaintiff was sitting on the examining table. The evidence, then, is that the plaintiff was able to sit on June 29, 2012. This is inconsistent with there having been a mature abscess in the perineal area.

[116] On July 2, 2012, when the plaintiff returned to the ER, she was seen by Dr. Edgar W. Hunt. He noted that she had “a very large abscess on her perianal area on the right side” and referred her for a surgical consultation.

[117] The surgeon, Dr. Anthonio L. Visbal, reported that physical examination demonstrated an abscess in the left gluteal region[^3], left pararectal area. After operating, he identified it as “an ischiorectal abscess with extension up to the presacral region”. In other records, he refers to it as a perianal abscess.

[118] The defendant’s written closing submissions contain at paragraphs 185 through 215 an extensive and detailed summary of the references to the location of the abscess that was seen by the defendant on June 29, 2012. This shows that the location was referred to in the pleadings, in the emergency room records, at discoveries and at trial, including by the plaintiff’s counsel, as being on the buttock.

[119] The plaintiff’s written closing submissions also addressed the location of the abscess. One submission is that in none of the subsequent notes from subsequent treating physicians is there a reference to a buttocks abscess. Other terms were used, including perianal, ischiorectal, and pararectal. However, these referred to the same abscess that the defendant saw on June 29, 2012. I would reject this argument that it was other than a buttocks abscess because the issue is the location and type of the abscess when the defendant saw it on June 29, 2012. She did not have the assistance of hindsight from what it subsequently turned out to be.

[120] The plaintiff argued that the experts said that a buttock abscess could be in the general perianal area so that the defendant calling it a buttock abscess does not preclude it being in the perianal area. That might be so, but it does not mean that it in fact was in the perianal area.

[121] The plaintiff’s counsel also argued that the plaintiff would not be expected to use terms such as perianal to describe the location of the abscess. That, too, might be so, although the plaintiff has an extensive medical history and used some medical terms in her testimony. Anyway, she placed the location to be near the middle of her buttock or a little bit inside of that. If it was notably closer to the anus than to the middle of the buttock area, she could have indicated that in common anatomical or lay terms.

[122] This Response to Request to Admit became the subject of a defence motion for an order granting leave to withdraw or clarify the admission. It was argued by other counsel for the defendant based on the affidavit of the defendant’s trial counsel, Ms. L. Stuart. The Stuart affidavit stated that the defence’s position throughout was that the plaintiff presented on June 29, 2012, with a buttock abscess/swollen nodule in the middle of her buttock cheek, although she was subsequently found to have an ischiorectal abscess. Furthermore, she said, the evidence of both the plaintiff and the defendant had always been that, on June 29, 2012, the abscess was on the plaintiff’s buttock cheek. The affidavit contained a lengthy review of the evidence on point. Consequently, she admittedly had not put her mind to the implication of the Response to Request to Admit.

[123] Plaintiff’s counsel closed his case on December 12, 2018 without referring to the Response to Request to Admit, but had it entered without objection as an exhibit on December 14, prior to the examination in chief of the defence expert, Dr. McMurray. Defence counsel did not focus on it until plaintiff’s counsel used it in the cross-examination of Dr. McMurray, at which point it became clear to defence counsel that, in her opinion, plaintiff’s counsel was mischaracterising the response. The motion was brought consequently.

[124] Counsel for the defendant on the motion, Mr. D. Dow, submitted that the main issue was one of interpretation of the response and that only if the court accepted the plaintiff’s counsel’s interpretation would the question of whether leave should be granted to withdraw the admission to be dealt with. Ultimately, I found that it was a matter of the interpretation to be given to the response to be done after the trial submissions and, therefore, did not consider further the request to withdraw the admission.

[125] Given the evidence on point, including:

1. the numerous references to the abscess being on the buttocks, including by the plaintiff herself in her testimony, as compared to any of the several ways of describing an abscess in the anorectal area;
2. the lack of complaint of pain in the relevant area;
3. the plaintiff’s ability to sit;
4. the explicit denial in the defendant’s testimony that it was a perirectal abscess when she saw it at the emergency room, in response to which I note that the plaintiff’s counsel did not cross-examine her on her alleged admission in the Response to Request to Admit;
5. the explicit refusal in the Response to Request to Admit to admit that it was a perianal abscess;
6. the timing of the plaintiff’s use of the Response; and
7. the lack of any definition of the “general perianal area”;

it is asking too much in seeking to have that imprecise expression accepted as proof on the balance of probabilities that the plaintiff presented to the ER with anything more serious than an abscess on her buttocks.

[126] Plaintiff’s counsel forcefully submitted that the response should be taken as proof that the abscess seen by the defendant on June 29, 2012, was of a type and location such that it should have been treated immediately.

[127] In this regard, I echo the comments of James J. in Fulton v. Birn[^4] in which he said “that there is a bias in the judicial system to have cases disposed of on the merits”. To decide this case in the plaintiff’s favour on the basis of the Response, such as it is, would be to decide it on the basis of one interpretation of the Response, the one favouring the plaintiff, without regard to the evidence that that interpretation would not be the correct one. That would be to decide the case on other than its merits.

[128] Based on all of the evidence, I find that on June 29, 2012, at the ER, the plaintiff presented with and the defendant was dealing with an abscess located near the middle of the plaintiff’s left buttock cheek.

LAW

[129] This action is framed in negligence. “To succeed in an action for medical negligence, the plaintiff bears the onus of proving, on a balance of probabilities, that the defendant breached the standard of care of a reasonable and prudent doctor with the same training and experience, having regard to all the circumstances of the case”.[^5]

[130] A leading case on the standard of care is Crits v. Sylvester[^6]. It states at paragraph 13:

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

[131] In deciding whether the standard of care has been met or not there is a requirement for expert evidence. As stated in Bafaro v. Dowd at paragraph 31:

[31] Due to the specialized knowledge of the medical profession, expert evidence is needed in medical malpractice cases:

Actions alleging malpractice involve issues to be decided that are not within the ordinary knowledge and experience of the trier of fact. Therefore the Plaintiff requires expert evidence to prove that the Defendant physician was negligent. Branco v. Sunnybrook & Women’s College Health Sciences Centre, [2003] O.J. No. 3287 at para. 8 (S.C.J.); McPherson v. Bernstein [2005] O.J. 2162 (S.C.J.)

Where the issues to be decided involve diagnostic or clinical skills and are not within the ordinary knowledge and experience of the trier of fact, …, the Court’s findings should be based on expert evidence; and the Court should not make conclusions of breach of the standard of care or causation without expert opinion evidence in support of those conclusions. ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at paras. 38-40; McPherson v. Bernstein, [2005] O.J. No. 2162 at para. 106 (S.C.J.); Martins v. Wolfman, [2003] O.J. No. 766 at paras. 7-9, 19 (S.C.J.).

[132] As explained in Legal Liabilities of Doctors and Hospitals in Canada, 5th edition, page 287:

A judge or jury is in no position to compare the conduct of the doctor to that required of the “reasonable practitioner” without expert evidence. The court needs such information in order to decide whether the defendant acted according to “approved practice,” failed to meet the standard of care, or only made an “error of judgment.” The experts are usually doctors who practice the same specialty as the defendant or who are specialised in the medical area in issue.

[133] At page 502, the same text says:

Without evidence from experts, the court is not in a position to assess whether the defendant physician was negligent, except in those relatively rare cases where the court is in as good a position as a medical expert to determine what ought to have been done. Therefore, save in those exceptional cases, a court should not find a physician …negligent in the absence of expert evidence, … .

[134] The defendant doctor must be judged according to the standards of and information available at the time. As stated in Bafaro v. Dowd at paragraph 30:

[30] A defendant doctor cannot be judged in hindsight, as the conduct of a physician must be judged in light of the knowledge that should have been reasonably within his or her possession at the time of the alleged act of negligence. Courts must not, with the benefit of hindsight, judge too harshly doctors who acted in accordance with the prevailing standard of care at the time of the accident. In LaPointe v. Hopital le Gardeur, 1992 CanLII 119 (SCC), [1992] S.C.J. No.11 at paras. 27-29 it was said:

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

ANALYSIS

[135] On the issue of standard of care, both Dr. Fernandes and Dr. McMurray had impressive credentials including their education and experience.

[136] Dr. Fernandes’ clinically experience was in large hospitals with an emphasis on academic settings. He had had a focus on quality of care at times. Research, publishing and teaching at the university level formed a large part of his professional experience.

[137] Dr. McMurray’s experience covered a range of sizes of hospitals and their associated emergency departments, including one similar to KDH. He had been involved in quality assurance and clinical quality improvement efforts within hospitals, in quality assurance at the College of Physicians and Surgeons of Ontario, and in doing peer assessments for that college, including in the emergency department context. In addition, he had been involved in the teaching of medical students.

[138] Dr. Fernandes was unclear where the abscess in question was and how big it was. This was a criticism he made of Dr. Jefremova’s notes of June 29, 2012, although Dr. Hunt’s ER record of July 2, 2012, similarly referred to a “huge buttock abscess” without more by way of measurement, location or description. When asked in cross-examination, he agreed that an abscess in the middle of the buttock was not at the anus nor at the rectum. His evidence was with respect to anorectal abscesses such as perianal and ischiorectal ones, and the standard of care for their treatment. The location of the abscess in question when the defendant, Dr. Jefremova, saw it on June 29, 2012, has been dealt with elsewhere in these reasons.

[139] I was favourably impressed with Dr. McMurray’s evidence and prefer it to Dr. Fernandes’s. Meaning no disrespect to Dr. Fernandes who has impressive credentials, as noted above, I found Dr. McMurray’s experience to be more closely related to the situation in this case. Also, I was impressed with the apparent practicality of his approach to scenarios such as the defendant was confronted with on June 29, 2012, as compared to what I saw to be the more academic approach of Dr. Fernandes. Furthermore, I find that Dr. McMurray’s initial opinion was based on the facts as found, specifically about the location of the abscess when the defendant, Dr. Jefremova, saw it on June 29, 2012.

[140] Consequently, I am not persuaded that the defendant Dr. Jefremova failed to meet the standard of care on June 29, 2012 and would dismiss the claim against her.

COSTS

[141] If the parties are unable to agree as to costs, the defendant has 30 days to file costs submissions limited to 3 pages, double spaced. The plaintiff has 15 days after that to file costs submissions, also limited to 3 pages, double spaced.

The Honourable Justice James A. S. Wilcox

Released: September 4, 2019

[^1]: The defendant Jefremova said that the typed portion under “Nurse Assessment” is patient-reported. [^2]: The triage record, above, gave the plaintiff’s Lantus dose as 56 units. If that was so, 54 units would have been a decrease. [^3]: Dr. McMurray, when he was asked about some of the terms in Dr. Visbal’s notes, explained that the gluteal region would be the buttock region. “Para” he said, refers to “in the vicinity of” as opposed to “peri” which means “right beside” so that pararectal would be in the vicinity of the rectal area. [^4]: An apparently unpublished ruling on April 4, 2019 in the Superior Court of Justice at Pembroke, Ontario in a case involving the respective firms of counsel for both sides in the present matter. [^5]: Bafaro v. Dowd, [2008] O.J. No. 3474, aff’d 2010 ONCA 188, [2010] O.J. No. 979 [^6]: (1956), 1956 CanLII 34 (ON CA), 1 D.L.R. (2d) 502 (ONCA), aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991

COURT FILE NO.: 5703/14 DATE: 20190904

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PENNY-LEE CHAMPOUX Plaintiff

– and –

LJUDMILLA JEFREMOVA and MOHAMMED KHODABANDEHLOO Defendants

REASONS FOR JUDGMENT

WILCOX J.

Released: September 4, 2019