COURT FILE NO.: CV-12-3164-00

DATE: 20200421

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NATHAN TUNG PUI SIT and LIHONG HE

Harvey S. Consky harvey@consky.ca

Cindy Leung cindy@consky.ca

Tel.: 416-754-9962 Fax: 416-848-6998 Lawyers for the Plaintiffs

Plaintiffs

• and -

TRILLIUM HEALTH CENTRE, DR. FINE, DR. L. RIVLIN and DR. G.P. McISAAC

Eric Pellegrino epellegrino@mccarthy.ca Tel: 416-601-7637

Joseph S. Ur jur@mccarthy.ca

Tel: 416-601-8324 Fax: 416-868-0673 Lawyers for the Defendant, Dr. Leon Rivlin

Defendants

HEARD: January 20 to 22, 27, and March 4, 2020

REASONS FOR JUDGMENT

Table of Contents

Para. No

INTRODUCTION................................................................................................ 1

FACTS............................................................................................................... 4

DISPOSITION.................................................................................................. 11

EVIDENTIARY ISSUES

A Note on Credibility...................................................................................... 12

A Note on Documents

Joint Book of Documents........................................................................... 15

Use to be Made of Expert Reports.............................................................. 16

Learned Articles and Treatises................................................................... 19

FINDINGS OF FACT......................................................................................... 22

The Onset of Pain and the First Hospital Visit................................................. 23

Improvement of Pain - October 5 to 8, 2004.................................................... 25

Recurrence of Pain - October 7, 8 or 9, 2004

The Positions of the Parties....................................................................... 37

Findings Regarding Mr. Sit’s Physical Activity............................................ 42

Mr. Sit’s Return to Hospital - October 9, 2004

The Positions of the Parties....................................................................... 59

Findings Regarding Reason for Return to Hospital...................................... 65

Dr. Rivlin’s Assessment and Treatment on October 9, 2004............................ 86

The Aftermath............................................................................................... 98

ISSUE 1: STANDARD OF CARE..................................................................... 101

Positions of The Parties

Mr. Sit..................................................................................................... 102

Dr. Rivlin................................................................................................. 105

The Law on Standard of Care

Onus and Burden of Proof........................................................................ 110

Standard of Care of a Doctor.................................................................... 112

The Necessity of Expert Evidence............................................................ 114

The Law on Assessing Expert Evidence................................................... 116

Conclusions re Experts on the Standard of Care........................................... 126

ISSUE 2: CAUSATION.................................................................................... 162

Positions of The Parties

Mr. Sit..................................................................................................... 163

Dr. Rivlin................................................................................................. 170

The Law on Causation................................................................................. 172

Conclusions on Expert Evidence and Causation

The Expert Preferred................................................................................ 179

Did Mr. Sit Suffer from Intermittent Testicular Torsion?............................. 196

Urological Referral................................................................................... 204

What Would the Urologist Have Done if Consulted?................................... 205

Would a Urological Referral Have Saved the Testicle?.............................. 208

ISSUE 3: DAMAGES....................................................................................... 212

The Positions of the Parties......................................................................... 213

The Evidence.............................................................................................. 215

The Jurisprudence....................................................................................... 220

COSTS........................................................................................................... 236

Trimble J.

INTRODUCTION

[1] This case turns on the treatment Mr. Sit received from Dr. Rivlin on October 9, 2004. On that morning, Mr. Sit appeared at the emergency department of Mississauga’s Trillium Health Centre Hospital of left testicular pain. He had also attended the same emergency department twice between 9:00 p.m. on October 4, 2004 and the morning of October 5, 2004 with similar complaints.

[2] Mr. Sit argues that Dr. Rivlin was negligent when, on October 9, 2004, he confirmed the diagnosis of epididymitis from four days before, which had been aggravated by Mr. Sit engaging in sporting activities on October 8, 2004. Mr. Sit argues that he was suffering from intermittent testicular torsion, which would have been diagnosed had Dr. Rivlin performed a cremasteric reflex test, referred Mr. Sit for another ultrasound, and referred Mr. Sit for an urgent urological consult.

[3] Dr. Rivlin concedes that he owed Mr. Sit a duty of care. Therefore, the issues on this action are:

a) Did Dr. Rivlin’s conduct meet the standard of care of a reasonable emergency physician in Ontario in 2004?

b) Was the breach of the standard of care the actual and legal cause of the loss of Mr. Sit’s left testicle?

c) What is the quantum of damages?

FACTS

[4] On the morning of October 4, 2004, 12-year-old Nathan Sit experienced left testicular pain. It got worse throughout the day. He vomited from the pain. By 9:00 p.m., the pain was so severe that he went to Mississauga’s Trillium Health Centre Hospital with his mother, Ms. He. At about 11:30 p.m., he saw a doctor who diagnosed him with left testicular epididymitis, a swelling of the epididymis which sits at the top of the testicle. After confirming the diagnosis through a telephone consult with a urologist, the emergency doctor prescribed him anti-inflammatories and antibiotics and scheduled an outpatient ultrasound. He was discharged at about 2:00 a.m. on October 5, 2004.

[5] About three hours after he was discharged, Mr. Sit returned to the emergency room because the pain in his left testicle had become worse. The nurse’s note indicated that Mr. Sit was nauseated and had vomited three times since his discharge a few hours earlier. The emergency doctor ordered a Doppler ultrasound which showed that there was normal blood flow to both testicles, although the left epididymitis showed increased flow compared to the right. Based on the ultrasound and the presentation of the patient, the diagnosis of epididymitis was confirmed.

[6] On October 9, 2004, Mr. Sit saw his family doctor, Dr. Leung. Dr. Leung’s chart and referral letter to the emergency department at Trillium referred to Mr. Sit’s left testicular swelling getting worse when compared with Dr. Leung’s examination on October 5, 2004. Dr. Leung told Mr. Sit to go back to the emergency department for a reassessment and provided a referral letter.

[7] Mr. Sit returned to the hospital. The extent of his complaint of pain to the staff at the hospital is in dispute, and which I will address shortly. The emergency record shows that Mr. Sit told Dr. Rivlin that he had been running around playing soccer the day before. Based on all of the evidence before him, including the clinical examination, Dr. Rivlin diagnosed epididymitis, aggravated by Mr. Sit’s activities the day before. He told Mr. Sit to continue with his antibiotic and analgesic regimen and to be less active. He also told him to return if there was no improvement after 24 hours.

[8] On October 13, 2004, Mr. Sit saw Dr. Leung who noticed that Mr. Sit’s scrotum was still swollen and his left testicle was still enlarged. Dr. Leung arranged an ultrasound which was conducted on October 22, 2004. By that time, Mr. Sit noticed that his left testicle was cold to the touch. The ultrasound showed that there was no evidence of blood flow to the left testicle, which suggested torsion (a painful condition caused by rotation of the testicle within the scrotum such that blood supply is reduced or eliminated). Later that day, Mr. Sit saw a urologist who told him that his left testicle could not be saved. Another ultrasound done on November 4, 2004 indicated there was no blood flow to the left testicle, again suggesting torsion.

[9] On January 27, 2005, Mr. Sit’s left testicle was removed. An orchiopexy (fixing a testicle to the scrotum wall so that it cannot twist) was also done to prevent the right testicle from torting.

[10] At the heart of this lawsuit lie the following questions: What happened on October 9, 2004? What did Mr. Sit tell Dr. Rivlin? What did Dr. Rivlin do in order to reach his diagnosis? Did Dr. Rivlin’s conduct fall below the standard of care of a reasonable emergency physician in the circumstances, in Ontario, in 2004? What was that standard of care?

DISPOSITION

[11] For the reasons that follow, I dismiss Mr. Sit’s action. I conclude that Dr. Rivlin’s conduct fell within the standard of care then prevailing.

EVIDENTIARY ISSUES

A Note on Credibility

[12] As in all trials, many crucial findings of fact turn on the credibility of the witnesses.

[13] An assessment of any witness’ credibility involves an assessment of: a) the witness’ honesty (his belief in the truth of what he is saying), and b) the reliability of the witness’ evidence (his ability to remember and testify accurately). In addressing the credibility of each of the witnesses, I directed myself to the following considerations:

a) The demeanour of the witness and how he or she give his or her evidence. I note that findings of credibility should not be made on demeanour alone. There may be cultural, social, ethnic, or other reasons why a specific witness may have difficulty testifying. There are too many factors that affect a witness’ ability to testify comfortably to make demeanour the sole or most important factor in determining credibility.

b) Does the evidence make sense in light of the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition?: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152, [1952] 2 D.L.R. 354 (C.A.), at para. 11.

c) Does the evidence have an internal consistency and logical flow? R. v. C.H., 1999 CanLII 18939 (NL CA), [1999] N.J. No. 273 182 Nfld. & P.E.I.R. 32 (C.A.).

d) Is the evidence consistent with the witness’ other statements? How significant are the differences and are they adequately explained?: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.

e) Is there independent confirming or contradicting evidence?: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531.

f) Does the witness have a motivation to lie or exaggerate? The witness’ motivation to lie must be greater than his or her interest to win or lose the case: R. v. S.D., 2007 ONCA 243, 218 C.C.C. (3d) 323.

[14] In applying these factors, I find that all of the witnesses were honest. They believed what they testified to was, the truth. As will become apparent through these reasons, however, I have made findings of fact based on the reliability of witness’ evidence.

A Note on Documents

Joint Book of Documents

[15] At the beginning of trial, the parties offered a joint book of documents. They agreed that all the documents would be admissible as business records, but that any diagnoses or opinions contained in those documents were subject to proof in the normal course.

Use to be Made of Expert Reports

[16] I was provided with copies of certain experts’ reports.

[17] Unless a medical report is tendered as a medical expert’s evidence-in-chief, an expert’s report has no evidentiary value. The evidence of the expert is that which comes out of the expert’s mouth at trial in response to the questions asked. If the report is tendered at trial, it is only an aide memoire to the trial judge to permit him to follow and remember the evidence. The report is not in addition to the witness’ evidence in the witness box: White v. Chaumont, [1996] O.J. No. 2227 (Gen. Div).

[18] Inconsistencies between the viva voce evidence of an expert witness and his or her written report are the proper subject of cross-examination. However, if the expert witness was not cross-examined on an inconsistency between his or her viva voce evidence and the contents of the report, it is not open to a trial judge to place any weight in assessing the expert’s credibility on this perceived inconsistency. This is not a mere technicality, but rather a matter of trial fairness. The expert witness is entitled to be openly confronted with what may appear to be contradictions so that he or she has the opportunity to explain or clarify the apparent inconsistencies: Moore v. Getahun, 2015 ONCA 55, at para. 86.

Learned Articles and Treatises

[19] During the trial, each of the experts referred to or were cross-examined on various articles. Of what use are such learned treatises or articles?

[20] Learned articles, texts, or treatises are classic hearsay, and as such, are inadmissible. They are, however, touchstones by which one measures the expert’s opinion. In other words, these references demonstrate that others share the expert’s opinion, thereby reinforcing the expert’s credibility.

[21] Incorporating references from an article or treatise into his or her evidence does not relieve the expert from the obligation of actually expressing the view in the report or his or her evidence. By referring to and adopting a portion of a text or article, that portion of the text or article becomes part of the expert’s opinion evidence. By referring to a publication in a report or evidence, the expert does not incorporate, by reference, the entire publication into the report: Cheesman et al. v. Credit Valley Hospital et al., 2019 ONSC 5683, at para. 215.

FINDINGS OF FACT

[22] There are several factual issues on which the evidence was disputed and about which a finding must be made.

The Onset of Pain and the First Hospital Visit

[23] Early on October 4, 2004, Mr. Sit began to have pain in his left testicle. By 9:00 p.m., the pain was severe, perhaps an eight or nine out of ten on the analog scale, where ten is the most severe pain imaginable. He had been nauseous and had vomited. He woke his mother and told her about his pain. She took him to the hospital immediately.

[24] The emergency record’s nursing note indicates that Mr. Sit arrived at 10:30 p.m. complaining of severe pain in his left testicle. He said he vomited once. His mother reported that Mr. Sit looked pale when he reported the pain to her. He had no fever. The pain also went into his left groin area. He states that he had some swelling in his left testicle. He said that he had no urinary problems.

[25] The emergency department nurse noted that Mr. Sit’s respiration, colour, and pulse were all normal, although he looked very uncomfortable.

[26] To the doctor, Mr. Sit complained of left testicular pain beginning at 7:00 a.m. and worsening by 9:00 p.m., with vomiting one time. He had no fever. He reported a throat infection 12 weeks earlier for which he had been on antibiotics for ten days.

[27] On examination, Mr. Sit’s left testicle was slightly elevated and tender. The emergency physician had a phone consult with a urologist at about 2:00 a.m. to discuss the case. The emergency doctor diagnosed “testicular pain? Epididymitis\viral orchitis” (the latter being a viral infection causing swelling and pain in the epididymis and the testicle).

[28] At approximately 2:30 a.m. on October 5, 2004, Mr. Sit was given antibiotics and analgesics for seven days, discharged, and told to follow-up with his family doctor in one or two days. He was also told to return to the emergency department if there was any further issue or the condition worsened. Mr. Sit was also told to arrange an ultrasound of his testicle.

[29] Mr. Sit was home for about two hours before he woke his mother, again, complaining of pain. It appeared to his mother that Mr. Sit’s condition was worsening. She took him back to the emergency department.

[30] The nurse who saw him at the emergency room noted that Mr. Sit had been discharged about two hours earlier but was now complaining of increased pain in his left testicle and into his groin. He was nauseated and vomited three times since he was discharged. The nurse noted that the left testicular pain had reduced with medication that was given earlier, but that Mr. Sit had vomited three times and the pain returned.

[31] A doctor saw Mr. Sit about eight minutes after the nurse noted that he had returned to the hospital having vomited after he went home. He had continued pain in his scrotum, the diagnosis made was left scrotal pain. Mr. Sit was given further antibiotics and pain medication. He was referred to diagnostic imaging for a Doppler ultrasound of the left testicle.

[32] The ultrasound report indicated as follows:

The testicular parenchyma is normal and homogeneous bilaterally. Doppler examination shows normal parenchymal flow.

The left epididymis is enlarged with hyperemic flow. The changes are indicative of epididymitis. Two small left hydroceles are present as well.

No other significant scrotal abnormalities identified.

Of note is the presence of small reactive lymph nodes in both in inguinal regions.

[33] Based on the ultrasound, the diagnosis of epididymitis was made, and Mr. Sit was discharged at 10:00 a.m. He was given orders to follow-up with his family doctor and to continue with his medication.

[34] The ultrasound was shared with Mr. Sit’s family doctor as reflected in his notes of October 5, 2004.

Improvement of Pain - October 5 to 8, 2004

[35] Mr. Sit testified that between October 4 to 5, 2004, his pain remained severe, at eight or nine out of ten on the pain scale. He testified, however, that his pain improved on October 6, such that he only felt discomfort such that he was able to go to school on October 6, 7, and 8 as normal. Further, he had no nausea during this time.

[36] Mr. Sit saw his family physician on October 6, 2004. His family physician, Dr. Leung, noted that, “His testicular pain is improving but his L testicle stays big.” After examining Mr. Sit, Mr. Leung noted that his left testicle was still enlarged with tenderness elicited on palpation of the epididymis. In other words, his pain was improving, but the swelling continued. Dr. Leung also diagnosed epididymitis and advised that Mr. Sit had finished his antibiotics.

Recurrence of Pain - October 7, 8 or 9, 2004

The Positions of the Parties

[37] At trial, Mr. Sit admitted that after he returned to school he engaged in physical activity by running around and playing soccer. There was a dispute in the evidence about whether Mr. Sit did these activities on October 7 or 8 and the extent to which he participated in them. There was also a dispute about whether and to what extent running around and playing soccer caused the onset of or aggravation of his pain, or whether it was caused by an event of testicular torsion on October 9, 2004, which caused the pain which caused him to return to the hospital on October 9.

[38] Mr. Sit argues that he returned to the hospital on October 9, 2004 because of pain caused by spontaneous left intermittent testicular torsion that occurred earlier that day, unrelated to physical activity at school. The plaintiffs rely on Ms. He’s and Mr. Sit’s examination-in chief, which they say is clear and unequivocal.

[39] Dr. Rivlin argues that Mr. Sit’s pain began on October 8, when his physical activity aggravated his epididymitis, a fact which Dr. Rivlin noted when he saw Mr. Sit in hospital on October 9.

[40] Mr. Sit responds by saying that when he played soccer is not clear on the evidence. Dr. Rivlin’s evidence is equivocal. In his handwritten note of October 9, 2004, Dr. Rivlin noted that Mr. Sit had been “running around playing soccer yesterday”. In his consultation note to Dr. Leung, however, Dr. Rivlin said that “Approximately 36 hours prior to presenting to the emergency department, he reported running around more than he usually has been, and the following day he has been having increased swelling and pain in his scrotum and his left testicle.”

[41] The plaintiffs submit that Dr. Rivlin’s consultation note suggests that Mr. Sit reported to Dr. Rivlin that he had been running around and playing soccer on October 7, not October 8.

Findings Regarding Mr. Sit’s Physical Activity

[42] Based on all of the evidence, I find on a balance of probabilities that Mr. Sit’s physical activity occurred on October 8 and caused an aggravation of his condition and an increase in his pain that took him to the hospital on October 9.

[43] What is that evidence?

[44] Ms. He said in her examination-in-chief that on the morning of October 9, 2004, Mr. Sit complained of pain. It was so severe that he could not stand straight and had difficulty walking. She imitated the way he walked - bowlegged and hunched over at the waist. The impression she gave was that the pain Mr. Sit complained of on the morning of October 9 had its onset that day.

[45] I do not find Ms. He’s evidence-in-chief about the events of October 8-9, 2004 reliable. On cross-examination, Ms. He confirmed that Mr. Sit’s first complaint of pain was on October 9. She agreed that if he had played sports on October 8, his pain would likely be worse. She said, however, that on Friday, October 8, Mr. Sit made no complaints of pain. He made complaints of pain beginning the morning of October 9. She said that if Mr. Sit had complained about pain on Friday, October 8 she would have taken him to the hospital. She was certain his pain began on October 9. She was also certain that after school on October 8, Mr. Sit did not complain of pain.

[46] Under cross-examination, Ms. He admitted that on October 8, Mr. Sit told her that he played soccer at school that day. She also admitted that he told the family doctor and Dr. Rivlin at the emergency unit the same thing. At no point between October 5 and 9 did Mr. Sit vomit or complain of nausea. He appeared to be doing better. He was not in pain like he was on October 5.

[47] Ms. He was cross-examined on her evidence from her March 31, 2015 examination for discovery. At discovery, she said that when she drove Mr. Sit to school on the morning of Friday, October 8, he was not in pain, but when she picked him up from school, he had “a lot of pain”. Ms. He testified that she did not remember her answers on discovery. Since Ms. He is a party, I can take her evidence at discovery as an admission, which I do. Even if I did not accept her evidence at discovery as an admission, it reflects poorly on the reliability of her trial evidence.

[48] Mr. Sit testified in-chief that between October 5 and October 8, his pain gradually subsided, leaving him with a little discomfort. He moved carefully in order to not aggravate his left testicle. Mr. Sit’s counsel referred him to the October 9 emergency note which indicates that he was “running around playing soccer yesterday.” He testified that this note was accurate. He had played soccer because his pain was not that bad. However, he said that he could not play to the full extent he would have liked to.

[49] Dr. Rivlin admitted that he has no independent memory of events other than as contained in his notes.

[50] According to his handwritten notes on the October 9, 2004 emergency chart, Dr. Rivlin saw Mr. Sit at 1:30 p.m. at the request of Dr. Leung, whose referral letter said:

Patient’s L testicular swelling is getting worse when compared with examination done on October 5.04. Diagnosis is epididymitis treated Septra Ds [?] bid without relief. Please assess patient again.

[51] Dr. Rivlin, in his handwritten notation, recorded a history from Mr. Sit and/or Ms. He:

12 Y.O. M. L testicular swelling seen on Oct 5 had N of [?] Epididymitis. Started Anaprox + Septra rd. report sx after running around playing soccer yesterday.

[52] On examination, Dr. Rivlin noted that the left testicle was tender and enlarged and that the scrotum was red with mild edema. He diagnosed epididymitis. He recommended rest, with ice, and no increased activity. If Mr. Sit was not better in 24 hours, he was to return to the hospital. He was also to follow-up with his doctor within 24 hours.

[53] In his consultation note to Dr. Leung, Dr. Rivlin recorded:

However, approximately 36 hours prior to presenting to the emergency department, he reported running around more than he usually has been, and the following day he was having increasing swelling and pain in his scrotum and left testicle.

[54] Mr. Sit submits that Dr. Rivlin’s evidence as to when Mr. Sit reported the running and soccer to have taken place is inconsistent, and therefore unreliable, either as a prognosticator of when the activity occurred or its causal relationship to Mr. Sit’s reports of pain or discomfort on October 9 that took him to the doctor.

[55] I find on a balance of probabilities that Mr. Sit ran around and played soccer on October 8, 2004. I do so for the following reasons:

1. It is consistent with Mr. Sit’s evidence as to when he ran and played soccer.

2. This information appears in the history portion of Dr. Rivlin’s hand-written chart - the part of the chart where Dr. Rivlin reports what the patient reported (and, in this case, perhaps what his accompanying parent reported).

3. It is the most contemporaneously recorded history from or on behalf of Mr. Sit.

4. This information is consistent with the read-ins from Ms. He’s examination for discovery.

[56] Dr. Rivlin did not offer any explanation for the estimate given in his October 9 letter to Dr. Leung that Mr. Sit had reported to him that 36 hours prior to presenting to the emergency room, Mr. Sit reported running around and playing soccer. Given that Mr. Sit arrived at the hospital at about 11:20 a.m. on October 9, Dr. Rivlin’s 36-hour estimate would have put Mr. Sit playing soccer late on October 7.

[57] While this discrepancy may reflect poorly on the reliability of Dr. Rivlin’s memory between seeing Mr. Sit and dictating his consultation note to Dr. Leung, it does not affect the accuracy of the handwritten note Dr. Rivlin made of Mr. Sit’s complaint and history as Mr. Sit gave it.

[58] As indicated above, I find that on Friday, October 8, 2004, Mr. Sit ran around and played soccer. I find that this activity gave rise to the pain which sent him to the hospital on Saturday, October 9, 2004.

Mr. Sit’s Return to Hospital - October 9, 2004

The Positions of the Parties

[59] Mr. Sit submits that the pain he suffered on October 9, 2004, which took him to his family doctor and then to the hospital, was severe, excruciating, and likely caused by intermittent testicular torsion (“ITT”).

[60] All experts and Dr. Rivlin agreed that ITT is a condition in which a testicle torts (or twists) spontaneously, and just as spontaneously untorts. Torsion cuts off or reduces the blood flow to the testicle and epididymis. When the testicle torts, the patient feels a sudden onset of excruciating pain which frequently radiates into the abdomen, and which is frequently accompanied by nausea and vomiting. During this painful period, the patient’s blood pressure increases, and pulse and respiration become faster. The patient becomes pale and looks visibly unwell. Once the testicle returns to its normal position, the pain and related signs and symptoms ebb quickly.

[61] Mr. Sit said that the pain he felt on October 9, 2004 was the same sort of pain that he had before. Ms. He described how it affected Mr. Sit’s walking. Mr. Sit said that they went to Dr. Leung who said that he should be in the hospital. Mr. Sit, when examined in-chief about the pain scale estimate of three out of ten recorded by the nurse on the emergency chart for October 9, said that his pain had abated by that point. He also indicated that he did not want to be at the hospital. I infer from this that it is possible that he might have intentionally minimized his discomfort when he was asked.

[62] Mr. Sit submits that his condition on October 9, 2004 was deteriorating such that Dr. Rivlin, as a competent, prudent, emergency physician ought to have performed the cremasteric test, referred Mr. Sit for a urological consultation, and conducted another Doppler ultrasound.

[63] With respect to what took him to the hospital on October 9, 2004, Mr. Sit’s case rests on what he and his mother, Ms. He, or his father said, and an interpretation of the hospital records.

[64] Dr. Rivlin submits that Mr. Sit’s condition was not deteriorating, and that Mr. Sit was not in severe pain. Neither Mr. Sit, Ms. He, nor Mr. Sit’s father ever reported this to anyone at the emergency department, nor was the complaint of pain recorded by Dr. Leung. It was also not suggested by the physical examination. To the extent that Mr. Sit had pain at a self-reported level of three out of ten, that was explained by his physical activity the day before. Based on the information before Dr. Rivlin, Dr. Rivlin says there was no reason to refer Mr. Sit for another ultrasound or to a urologist. As to the cremasteric test, it is a non-specific test.

Findings Regarding Reason for Return to Hospital

[65] The weight of the independent, contemporaneous evidence does not support a deteriorating condition, a sudden onset of pain, pain the level submitted by Mr. Sit, or a resolution of pain consistent with ITT.

[66] On a balance of probabilities, I find that Mr. Sit, on October 9, had improved significantly since October 5. The pain in his left testicle had reduced to such an extent that he returned to school on October 6, and was able to complete full school days on October 6, 7, and 8. On October 8, he felt well enough to run around and play soccer, although not to the level he would normally have and ceasing earlier than he normally would have.

[67] I also find that to the extent that Mr. Sit suffered any increase in pain on October 9, it was a modest increase in pain caused by his running around and playing soccer on October 8. Further, I find that his pain began on October 8, and never reached the level of excruciating pain that he would have suffered had he suffered ITT of his left testicle.

[68] In making this finding, I realize that I must reject both Mr. Sit’s evidence-in-chief and that of his mother, Ms. He. However, I make these findings because the contemporaneous documented evidence contradicts Mr. Sit’s and Ms. He’s evidence at trial and leads me to this conclusion.

[69] What is that contemporaneous documented evidence?

[70] First, there is Dr. Leung’s chart.

[71] Dr. Leung did not testify. His notes and records were entered as business records. They were interspersed chronologically in Exhibit 1 with other medical records. Further, as noted above, the parties agreed that I could accept as accurate the documents contained in Exhibit 1 in all aspects, except with respect to opinions and diagnoses expressed in those documents.

[72] I accept (there being no argument or evidence to the contrary) that Dr. Leung took thorough notes. He used the standard S.O.A.P. notation process. S.O.A.P. is an acronym for Symptoms (the patient’s complaints), Observations (the examiner’s own observations made during physical examination), Applicable Diagnosis (the examiner’s diagnosis), and Prescribed Course of Action (the examiner’s recommended treatment). I accept that Dr. Leung’s notes accurately record what he was told, his observations, his diagnosis, and his prescribed course of action. Pursuant to the agreement of the parties, I do not accept Dr. Leung’s diagnoses as true. I merely accept that he made them, as noted.

[73] In his October 6, 2004 note, Dr. Leung records that Mr. Sit “complains of having left testicular pain which is throbbing in nature” which caused him to go to the hospital on October 5. He noted as well that “his testicular pain is improving but his left testicle stays a big.” On examination, Dr. Leung found the left testicle to be enlarged with tenderness when he palpated the left epididymis.

[74] I interpret this note to mean that Mr. Sit had little testicular pain absent manipulation or palpation of his testes, since Dr. Leung was only able to elicit pain on palpation of the left epididymis.

[75] In his October 9, 2004 note, Dr. Leung records that Mr. Sit “complains that his epididymitis is getting worse with increased swelling of his left testicle associated with edematous foreskin as noted.” On examination, he found there to be swelling over the entire scrotum and a tense, enlarged left testicle with edema in the foreskin. He recommended that Mr. Sit return to the emergency room for investigation of his enlarged scrotum.

[76] In his October 9, 2004 referral letter to the emergency department, Dr. Leung says that he was referring Mr. Sit because the left testicular swelling was getting worse when compared with the examination done on October 5, 2004.

[77] There is no mention in Dr. Leung’s chart or his referring letter to the hospital about Mr. Sit having left testicular pain. Therefore, I conclude that the predominant problem that sent Mr. Sit to the doctor and eventually the emergency department was the continued or increased swelling of the left testicle, and not pain.

[78] Second, there are the hospital records.

[79] The nurse’s note for October 9, 2004, indicates that the nurse saw Mr. Sit at 11:20 a.m. The note records:

L testicular swelling and pain. Dx [diagnosis] epididymitis. On Abx [antibiotics] x4 day & getting worse. Sent back in for RA [reassessment] by FD [family doctor].

[80] Mr. Sit submits that this notation supports his and Ms. He’s evidence in-chief that at the time of his presentation on October 9, Mr. Sit had increased swelling and increased pain in his left testicle.

[81] The nurse who made the note was not called to testify. Dr. Rivlin, however, testified that this portion of the October 9 emergency record is the emergency nurse’s record of the patient’s report of his reason for coming to the emergency department on October 4 and 5, and the treatment thereafter.

[82] I find on a balance of probabilities that the reference to “ pain” in the October 9, 2004 nurse’s note is not a record of Mr. Sit’s description of the pain that brought him into the emergency department on October 9. Rather, in the context of the note as a whole, the nurse’s note of “ pain” is her record of the history Mr. Sit provided of his condition that brought him to the emergency room on October 4 and 5, which resulted in his diagnosis of epididymitis and the course of antibiotics and analgesics thereafter for four days. This makes sense since the nurse then recorded that notwithstanding the four days of antibiotics, things were “getting worse” such that he was sent back in for a reassessment. What the nurse meant by “getting worse” is unclear.

[83] There is no doubt that Mr. Sit had some pain on October 9, 2004. The nurse’s note indicates left testicle pain of three out of ten. Dr. Rivlin says that this pain scale reading would have been stated by Mr. Sit.

[84] In addition to the pain scale rating, other aspects of the emergency note indicate that Mr. Sit had little or modest pain while in the emergency department. His colour and temperature were normal. He reported eating a regular diet and not vomiting or being nauseous in the 24 hours prior to his return to the hospital. His pulse, blood pressure, respiration, muscle tone and colour were also normal. In other words, he showed no outward physical signs of the severe pain that torsion would have caused.

[85] Dr. Rivlin testified that when he saw Mr. Sit, his own observations conformed to those of the nurse. In addition, on examination, he noted that Mr. Sit’s left testicle was tender, and his scrotum enlarged, red, with mild edema. There is no notation of pain other than Mr. Sit’s testicle was tender on palpation. Dr. Rivlin reported to Dr. Leung that Mr. Sit said that other than some modest discomfort, he felt well.

Dr. Rivlin’s Assessment and Treatment on October 9, 2004

[86] Generally, when a patient arrives at an emergency department, the patient goes through a seven-step process:

1. The patient is seen by a triage nurse who determines why the patient came to the emergency department. The nurse then provides an initial assessment and takes vital signs. The nurse will often ask questions about the condition identified by the patient.

2. The patient is seen by a registration clerk who obtains the patient’s OHIP card and verifies essential information.

3. A chart is printed.

4. The patient is sent to the examination area.

5. The patient is seen by a nurse in the treatment area. The nurse reviews the information obtained by the triage nurse and asks more questions about the reason for admission. That nurse also conducts a limited examination and takes vital signs.

6. The patient’s chart is placed in a chart rack.

7. The physician reviews the chart and then meets with the patient, obtains a history of the reason for the visit and identifies the chief complaint and the background for it (how it happened, how it was dealt with, and the condition at the moment). The doctor then conducts a physical examination, reaches a diagnosis and makes a recommendation for treatment. The doctor may order testing or imaging, may have a telephone consult with a specialist, or may order the patient to see a specialist.

[87] Mr. Sit went through this procedure.

[88] While Dr. Rivlin did not have any specific memory of his treatment of Mr. Sit other than what is contained in the chart, he said that his practice is that he would have reviewed Mr. Sit’s chart before seeing him. He also would have reviewed the nurse’s notes, the chief complaint identified, and the particulars about the individual patient.

[89] From this review, Dr. Rivlin would have acquired knowledge of the patient details, the nature of the complaint, and its course prior to admission. In this case, he would have been aware that Mr. Sit identified his pain at three out of ten on the analog pain scale, which Dr. Rivlin identified as mild to moderate pain. He also would have noted the vital signs such as normal respiration, blood pressure, pulse, or muscle tone, absence of nausea and vomiting, and a patient who looked reasonably comfortable with reasonable colour. Elevated vital signs, the presence of nausea and/or vomiting, and a patient who looks uncomfortable are signs that the patient is in severe pain. Mr. Rivlin likely concluded that Mr. Sit was in no significant pain.

[90] In addition, Dr. Rivlin would have had available to him, on the computer, the previous lab work and the ultrasound results.

[91] Having reviewed all of this and done an examination, Dr. Rivlin would have formed his differential diagnosis, a list of possible diagnoses that fit with the presentation by the patient. Sometimes a differential diagnosis is recorded on the chart, and sometimes it is done mentally. He then would have ruled out diagnoses from the differential diagnosis based on the evidence in front of him. If there is a question about or doubt with respect to any of the differential diagnoses, he may seek further opinion or further tests.

[92] Dr. Leung’s referring note would have also been attached to the chart, and Dr. Rivlin would have reviewed it before assessing Mr. Sit.

[93] Mr. Sit was referred to the emergency department by his family doctor. From the history, his review of the ultrasound report, the report of the analog pain scale, and Mr. Sit’s presentation, Dr. Rivlin concluded that there was no testicular torsion on October 4 or 5 because the ultrasound showed normal blood flow to both testes.

[94] He also concluded that the diagnosis of epididymitis on October 4 and 5 was correct, based on the fact that Mr. Sit reported an improvement in his symptoms thereafter, such that he could run and play soccer on October 8.

[95] Mr. Sit’s presentation, history, and analog pain scale report indicated that there was likely no torsion on October 9, 2004. His vital signs were normal, and he showed no pain behaviours. Mr. Sit reported that his appetite and eating were normal and that he had not had nausea or vomiting prior to his admittance. He told Dr. Rivlin that he felt “totally well” in the scrotal area other than some discomfort.

[96] Dr. Rivlin then took a physical examination. He noted that Mr. Sit appeared to be in no distress. He showed no signs of toxicity or dehydration. His abdomen was palpated and found to be soft and normal. His left testicle was tender on palpation and enlarged. His scrotum was red with mild swelling but there was no lymph node involvement.

[97] Dr. Rivlin diagnosed epididymitis aggravated by physical activity on October 8, 2004. He advised Mr. Sit to ice his testicles and rest, with no increased activity. If, within 24 hours, he developed a fever or his scrotum did not improve, he should return to the emergency department.

The Aftermath

[98] Mr. Sit testified that he never felt any significant pain in his left testicle after October 9, 2004. Dr. Leung’s chart for October 13, 2004 recorded that Mr. Sit ate pizza and drank juice that afternoon, felt nauseous and vomited. He felt better after vomiting and had no abdominal pain. Dr. Leung’s note indicated that Mr. Sit’s scrotum was still swollen with no change in his antibiotics. There was no referral for further treatment.

[99] Mr. Sit returned to Dr. Leung on October 15, 2004. The whose chart noted that Mr. Sit had finished his antibiotics for his epididymitis, but that his left testicle was still enlarged. In his examination-in-chief, Mr. Sit said that his left testicle also felt cold, although this was not recorded in Dr. Leung’s note. On examination, Dr. Leung found the left testicle to be enlarged and “very tense, no swelling of foreskin is noted”. The diagnosis made was “? Persisting epididymitis/hydrocoel.” Dr. Leung said he would arrange an ultrasound.

[100] Another ultrasound was performed on October 22, 2004. It showed no blood flow to the left testicle. The doctor advised Mr. Sit and his mother that there was no surgical intervention that would save the testicle. The lack of blood flow was likely caused by torsion. Eventually, the testicle was removed.

ISSUE 1: STANDARD OF CARE

[101] Having made the necessary findings of fact, I turn now to the standard of care.

Positions of The Parties

Mr. Sit

[102] Mr. Sit’s position is that Dr. Rivlin failed to meet the standard of care of a reasonable emergency physician in 2004 by failing to: a) perform a cremasteric test, b) order a repeat ultrasound, and c) refer Mr. Sit to a urologist for consultation. Mr. Sit appeared at the emergency department suffering with a deteriorating testicular complaint such that Dr. Rivlin reasonably ought to have suspected left testicular torsion.

[103] Mr. Sit relies on the opinion of Dr. Berringer, an expert in emergency care, who gave the opinion that where a patient presents with a worsening clinical condition, despite being compliant with normal therapy, this should trigger a re-evaluation of the condition and re-imaging to ascertain whether the condition is progressing or whether there is now a second condition affecting the testicle. Dr. Berringer’s opinion was that Dr. Rivlin should have done something further, including having another ultrasound done, and, in any event, calling a urologist regardless of what the results of the imaging were. Any treatment of this worsening condition might require surgical intervention. In failing to repeat the ultrasound and refer the matter to a urologist, Dr. Rivlin failed to meet the standard of care.

[104] Mr. Sit also alleges that Dr. Rivlin failed to include in his differential diagnosis the possibility that Mr. Sit’s October 9 condition was caused by intermittent testicular torsion. Such a diagnosis also would have required a urological consult.

Dr. Rivlin

[105] Dr. Rivlin says that he did not breach the standard of care. Mr. Sit came to the emergency department on a referral from his family doctor. The family doctor raised the concern that notwithstanding standard treatment, the left testicle remained swollen. The history, both from the chart and from other information available to Dr. Rivlin through the hospital’s computer system, including the ultrasound which showed normal blood flow to the left testicle, indicated a diagnosis of epididymitis and a standard regimen of antibiotics and pain medication, which the patient had been following. Increasing pain was not raised either by the family doctor or by Mr. Sit as a continuing problem. The pain he reported was three out of ten on the analog scale which was explained by Mr. Sit’s physical activity on October 8.

[106] All experts, including the plaintiff’s expert, concluded that Dr. Rivlin took an appropriate background and history and did a proper examination. The only issue is with respect to whether Dr. Rivlin ought to have done the cremasteric test, made an appropriate differential diagnosis, ordered a second ultrasound, and referred Mr. Sit for a urological consult.

[107] Dr. Rivlin submits that he also met the standard of care. There is no doubt that on October 4 and 5, 2004, Mr. Sit was very unwell. He was experiencing severe pain in his left testicle that began suddenly and increased throughout the day. It caused him nausea and vomiting. An ultrasound was performed on October 5 which verified the October 4 diagnosis of epididymitis. Mr. Sit was treated with antibiotics and pain medication, which was the standard treatment. His condition improved dramatically over the next few days such that he was able to attend school as normal, and by October 8, to run and play soccer. Mr. Sit told Dr. Rivlin that he felt “totally well other than some discomfort in his scrotal area.”

[108] When Mr. Sit saw Dr. Rivlin, he had no nausea and vomiting. His pain had reduced substantially. Mr. Rivlin thought that his swelling had improved although this was an issue of some contention.

[109] Dr. Rivlin relied on the expert evidence of Dr. Foote. Dr. Foote opined that the standard of care at the time did not require Dr. Rivlin to order a repeat ultrasound since the ultrasound of October 5 was conclusive in demonstrating blood flow to the testicle, thereby confirming the diagnosis of epididymitis (as opposed to ITT). The history and complaints on October 9 indicated that Mr. Sit’s condition had improved, not deteriorated. His pain had improved substantially. He did not have nausea or vomiting. His appetite and eating were good. He was in no overt signs of distress at the hospital. All of his vital signs were normal. There was no indication of pain of the level that would suggest torsion, either at the time of the examination or leading up to the admission to the emergency department on October 9. Dr. Foote agreed with Dr. Rivlin that the increased testicular swelling was reasonably explained by Mr. Sit having engaged in physical exercise on October 8.

The Law on Standard of Care

Onus and Burden of Proof

[110] In a medical malpractice case, the plaintiff must prove all of the elements of negligence on a balance of probabilities: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804, at para. 28; Gallant-Cough v. Anderson, [2007] O.J. No. 1308 (S.C.), at para. 37. The standard of proof should not be applied too rigidly. Causation need not be determined by scientific precision: Snell v. Farrell, [1990] S.C.R. 311, at para. 29. The court must approach its task without sympathy, bias or favour for either side, no matter how sympathetic or tragic the plaintiff’s case may be: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, at para. 76.

[111] In this case, the elements of the tort that Mr. Sit must prove are:

a) Dr. Rivlin owed him a legal duty of care;

b) Dr. Rivlin breached the standard of care applicable to a community-based emergency medicine physician practicing in Ontario in 2004;

c) Dr. Rivlin’s breach of the standard of care was the actual and legal cause of his alleged injuries or loss; and

d) Mr. Sit suffered damages as a result of the breach.

Standard of Care of a Doctor

[112] There was no issue between the parties with respect to the law concerning the standard of care.

[113] The basic principles of the standard of care are as follows:

a) A physician must exercise the reasonable degree of care and skill of a normal, prudent practitioner of the same experience in the same circumstances: Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.J. No. 526 (C.A.), at paras. 13-14, aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991; ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at paras. 51, 54, 56-57; Wilson, at para. 43; Watson v. Mandelbaum, 2018 ONSC 3809, at para. 22.

As the Supreme Court of Canada stated in ter Neuzen, at para. 33:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field.

b) A physician’s conduct is to be assessed in light of the medical knowledge and circumstances at the time of the alleged negligence, without the benefit of hindsight: ter Neuzen, at para. 34.

c) Often, by the time of the trial several years after the events giving rise to the trial have transpired, the physician will have no memory of the events giving rise to the action. Therefore, evidence of a physician’s invariable or ‘usual’ practice should carry great weight as it is probable that the general course will be followed in the particular case. No fault should be inferred from a physician’s inability to recall the events in question: Belknap v. Greater Victoria Hospital Society, 1989 CanLII 5268 (BC CA), [1989] B.C.J. No. 2187 (C.A.), at para. 39.

d) A physician is not negligent merely because the medical treatment lead to an unfortunate outcome. The outcome does not constitute proof of negligence. The law imposes on a physician the obligation to properly treat the patient. It does not guarantee a result: St. Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53.

e) A court should not rely on hindsight in evaluating a physician’s exercise of professional judgment. A physician is not the insurer or guarantor of a patient’s health and well-being nor of the efficacy of the treatment. Adverse outcomes are often unpredictable or unavoidable even where the medical care has been reasonable. Negligence cannot be assumed simply because, viewed in retrospect, another course of action would have been preferable: Lapointe, at para. 28.

f) A physician is expected to exercise reasonable judgment. An error in judgment, including one which may prove wrong or have unexpected consequences, does not amount to negligence if the medical professional appropriately applies clinical judgment. A physician will not be liable for an error in judgment if their judgment was exercised honestly and intelligently, in contemplation of the pertinent facts known at the time the decision was made: Wilson, at paras. 21-23; Lapointe, at para. 29.

g) Whether a physician has been negligent in his or her diagnosis or whether there has been a mere error in judgment is determined on a case-by-case basis. A physician who acts in conformity with the standards of the profession will not be held liable for mere errors in judgment: Dean v. York County Hospital et al., [1979] O.J. No. 348 (H.C.), at para. 42. The corollary is that a mistaken diagnosis alone is not sufficient to ground a finding of negligence: Hancock Estate v. Hanton, 2003 CanLII 89026 (AB KB), [2003] A.J. No. 1719 (Q.B.), at para. 79.

h) It is an error to attribute knowledge to a physician that the physician did not have at the time: Grass (Litigation Guardian of) v. Women’s College Hospital, 2005 CanLII 11387 (ON CA), [2005] O.J. No. 1403 (C.A.), at paras. 95-98.

i) A plaintiff’s case that applies an outcome-based retrospective approach is fundamentally flawed in law. Post hoc, ergo propter hoc is a logical fallacy which does not apply in law: Gent and Gent v. Wilson, 1956 CanLII 128 (ON CA), [1956] O.J. No. 535 (C.A.), at para. 15.

The Necessity of Expert Evidence

[114] The parties agreed on the necessity of expert evidence on the issue of the standard of care and agreed on the nature of that evidence. They disagreed on the evidence given.

[115] The basic principles of law on the necessity of expert evidence on the issue of the standard of care and the nature of that evidence are:

a) The court requires expert evidence in order to determine what the standard of care is in the circumstances and whether a physician has breached the standard of care: ter Neuzen, at para. 44; Bogdon v. Folman, 2013 ONSC 222, at para. 35. Courts “must be cautious to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards”: Hajgato v. London Health Association (1983), 1983 CanLII 1687 (ON CA), 44 O.R. (2d) 264 (C.A.), at para. 36.

b) The standard of care is not determined by what an expert would have done in the situation. In Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.), at para. 36, aff’d 2010 ONCA 188, the court held:

To the extent that an expert testifies as to what he himself would do in a Situation, rather than what the standard of care requires, his testimony does not establish the standard of care nor demonstrate that the defendant doctor breached a standard of care.

c) Expert opinion on the standard of care must be provided “through the eyes of a physician of the same background and training” as the defendant, and as “ordinarily possessed by practitioners in similar communities in similar cases”: Anderson v. Nowaczynski, [1999] O.J. No. 4485 (S.C.), at para. 207; Wilson, at para. 43.

d) A physician does not breach the standard of care if they apply treatment supported by a respectable body of medical opinion, even if it is the minority opinion: Connell v. Tanner, [2002] O.J. No. 1543 (C.A.), at para. 1. It is sufficient that the physician chose a course of action which could have been made by a reasonable, competent physician in the circumstances: Wilson, at para. 22. The physician will only be found liable if no physician with ordinary skill would have pursued the treatment: Maynard v. West Midlands Regional Health Authority, [1984] 1 W.L.R. 634 (H.L.), at p. 638.

The Law on Assessing Expert Evidence

[116] In this case, I heard the testimony of the following experts with the following qualifications:

a) Dr. Ross Berringer, for the plaintiff, as an expert in emergency medicine and the standard of care in acute scrotum cases such as the plaintiffs.

b) Dr. Dinesh Samarasekera, for the plaintiff, as a pediatric and adult urologist with expertise regarding the diagnosis and treatment of infant urological conditions such as intermittent testicular torsion, and whether Mr. Sit’s testicle could have been saved.

c) Dr. John Foote, for the defendant, as an expert in emergency medicine qualified to give an opinion on the standard of care of emergency medicine physicians in Ontario, and in particular on the care and treatment provided by Dr. Rivlin to Mr. Sit.

d) Dr. Gerald Brock, for the defendant, as an expert in urology qualified to give an opinion on the issue of causation in this case and what urologists expect with respect to urological consult from referring emergency doctors.

[117] In this case, neither side objected to the other side’s experts being qualified. The only disagreement was with respect to the specifics of the areas or breadth of the individual expert’s qualification.

[118] In R. v. Biddersingh, 2020 ONCA 241, at para. 37, the Court of Appeal set out the approach to examining the admissibility of expert evidence:

In determining whether expert evidence is admissible, the trial judge must engage in the two-stage test adopted by the Supreme Court of Canada in White Burgess, Langille, Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. At the first stage, the trial judge must determine whether the threshold requirements of admissibility are met: a) the evidence must be logically relevant; b) it must be necessary to assist the trier of fact; c) it must not be subject to any exclusionary rule; d) the expert must be properly qualified, including being willing and able to fulfil their duty to the court; and e) for any opinions based on novel science or science used for a novel purpose, the underlying science must be reliable: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 47-48; White Burgess, at para. 23. If these requirements are met, the trial judge must advance to the second stage, in which they are required to fulfil a “gatekeeping role”: Abbey, at paras. 48, 53; White Burgess, at paras. 20, 24. As the gatekeeper, the trial judge must determine whether the benefits of the evidence outweigh its potential risks, considering such factors as legal relevance, necessity, reliability, and absence of bias: Abbey, at para. 48; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.

[119] This step is unnecessary here, as neither side contested the admissibility of any expert’s evidence. The question this court faces is the weight to be placed on the evidence of the witnesses.

[120] In evaluating the evidence of competing experts and deciding which expert’s opinion to accept over another’s, the court must evaluate the expert as any other witness as described above. In addition, however, the court must apply the following three-step process:

[121] Step 1: Qualifications and Impartiality - at this stage, the court should consider the qualifications of each expert witness, examine the experts’ training and experience, and consider their level of competence in the field in which they were qualified to give an opinion: Vescio (Litigation guardian of) v. Garfield, [2007] O.J. No. 2624 (S.C.), at para. 102.

[122] The court must also consider whether the expert was impartial, or whether he or she appeared to unreasonably favour the party who called him or her as a witness. An expert's lack of independence and impartiality goes not only to the admissibility of the expert’s evidence, but also to the weight to be given to that evidence once it is admitted: White Burgess, Langille, Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 45.

[123] Step 2: Assessment of Evidentiary Basis for the Opinion - at this stage, the court must examine the facts and assumptions upon which the expert relied on to form their opinion: D.M. Drugs Ltd. (c.o.b. Harris Guardian Drugs) v. Bywater (c.o.b. Parkview Hotel), 2013 ONCA 356, at paras. 40, 48.

[124] Step 3: Examining the Whole of the Opinion - at this stage, the court must examine and evaluate the opinion itself, as a whole. Did the expert consider all relevant information and give it appropriate emphasis in reaching the conclusion?: D.M. Drugs Ltd., at paras. 40, 48.

[125] In assessing the weight of competing experts’ opinions, like any other evidence, the trier of fact is entitled to accept or reject any part or all of the evidence in order to determine how much weight to give any expert’s evidence: Biddersingh, at para. 66. The court, however, must accept or reject an expert’s opinion on a given issue as a whole. The court is not entitled to pick and choose among various aspects or portions of the expert’s opinion on a given issue and fashion a new opinion from those aspects or portions that the court prefers from each experts’ opinion. Generally, the court does not have the expertise to determine whether the expert is right or wrong in their opinion: Cornell, at para. 1; ter Neuzen, at para. 51. Where the court does this, it would, in effect, assume the role of the expert.

Conclusions re Experts on the Standard of Care

[126] On the standard of care, there were two experts: Dr. Ross Berringer for Mr. Sit and Dr. John Foote for Dr. Rivlin. Both doctors are highly experienced emergency physicians. Both gave their evidence in a direct fashion without any apparent bias or impartiality. For the reasons that follow, however, I give the evidence of Dr. Foote greater weight than that of Dr. Berringer on the issue of the standard of care. The reasons for this are several.

[127] First, I find Dr. Foote’s expertise greater and more pertinent than that of Dr. Berringer.

[128] Dr. Berringer is a physician with 35 years of clinical experience in emergency medicine from British Columbia. He received his M.D. in 1980 from the University of British Columbia and did his general internship in British Columbia. He did his emergency medicine residency at University Hospital in Jacksonville, Florida. He has worked as an emergency physician since 1985 in Vancouver. He is a member of the College of Family Physicians of Canada and a Fellow of the Royal College of Physicians and Surgeons of Canada

[129] Since 1986, Dr. Berringer has had an appointment as clinical instructor, then assistant professor, at the University of British Columbia in Vancouver. Since 2014, he has held the office of assistant professor at the University of Ottawa. In his teaching capacity, he teaches and instructs on the policies, procedures and protocol surrounding taking a history, examining, and testing patients. He teaches with respect to the standard of care in terms of its current application and its application in 2004.

[130] From 1985 to 2006, Dr. Berringer practiced in the emergency department at St. Joseph’s Hospital in Vancouver. From 2007 to 2015, he was an emergency physician at the Ottawa Hospital. In 2016, he returned to Vancouver to continue his practice.

[131] In his examination-in-chief, Dr. Berringer said that the standard of care in 2004, which he taught, was, in effect, a national standard of care. It would have been comparable between Ottawa and Vancouver. He conceded in examination-in-chief, however, that up until 2004, he had no experience with the sort of condition that Mr. Sit suffered from.

[132] In cross-examination, Dr. Berringer conceded the following:

a) Until 2006, his experience was only in British Columbia (subject to his time in Jacksonville, Florida). He had no experience in Ontario. He was licensed only in British Columbia and only saw patients in British Columbia. Having never studied, taught, or practiced emergency medicine in Ontario, he had no experience in Ontario until after 2006.

b) The standard of care in 2004 did not require an emergency doctor to make the diagnosis of intermittent testicular torsion, the condition that Mr. Sit advanced as causing his condition on October 9, 2004.

c) The standard of care in 2004 did not require an emergency physician to administer the cremasteric reflex test.

[133] For 20 years, Dr. Foote has been a full-time emergency physician in Ontario. He received his M.D. from the University of Toronto in 1993, completed his residency in family medicine at St. Joseph Health Center in 1995, and completed his emergency medicine fellowship in 1999 at the University of Toronto, receiving a certificate of special competence in emergency medicine.

[134] Between 1996 and 2000, Dr. Foote practiced part-time as a family physician. In addition, he had a number of overlapping emergency medicine appointments. Between 1996 and 2000, Dr. Foote was also a staff physician in the Department of Emergency Medicine at the St. Joseph’s Health Center in Toronto. Between 1996 and 2011, he was a staff physician at the Department of Emergency Medicine at the Credit Valley Hospital in Mississauga. From 2002 to present, he has been a staff physician at the Schwartz Reisman Emergency Centre at Mount Sinai Hospital on a part-time and then full-time basis. Since 2016, he has been the Assistant Director and Director of Education at the Mount Sinai Emergency Centre.

[135] In addition to his academic and employment achievements, Dr. Foote has been a peer reviewer for the Canadian Journal of Emergency Medicine (2006 to 2010), was a member of the accreditation committee of the Canadian College of Family Physicians (2009 to 2012) and was national chair of the Canadian College of Family Physicians’ Emergency Residency Program Director’s Committee (2009 to 2014). He has been the chair of the Emergency Medicine Committee of the College of Family Physicians of Canada since 2015.

[136] While both Dr. Berringer and Dr. Foote are highly qualified doctors, overall, Dr. Foote’s credentials and experience are more impressive and germane. More importantly, his experience has been almost exclusively in Ontario, whereas Dr. Berringer’s experience in Ontario is limited only to after 2006, after the issues in this case arose.

[137] The second reason for preferring the evidence of Dr. Foote over Dr. Berringer is that the facts underlying Dr. Berringer’s opinion have not been proved. Dr. Berringer testified that his opinion that a repeat ultrasound and referral to a urologist on October 9 were required because Mr. Sit had a worsening clinical condition compared to October 5. Dr. Berringer referred to Mr. Sit’s condition on October 9 variously as “worsening epididymitis” and “significant worsening in the condition over the ensuing four days”. He testified in-chief, “I mean, his major deficiency here is that, that this kid having worsening clinical condition, and it was not improving with appropriate therapy, antimicrobial therapy” (see transcript, Dr. Berringer’s testimony, p. 22, line 32 to p. 23, line 3).

[138] I have already found that Mr. Sit’s condition was not significantly worsening on October 9. Rather, his complaint on October 9 comprised of some discomfort and persistent swelling, both of which were caused by his physical activity on October 8.

[139] In his cross-examination, Dr. Berringer eventually conceded that his referral to the “worsening condition” between October 5 and October 9 was regarding Mr. Sit’s left testicular swelling. Dr. Berringer also conceded that on October 9, Mr. Sit had improved in that:

a) He had no vomiting or nausea.

b) He had no fever or chills.

c) There was no change in his urinary habits.

d) His pain had improved.

e) Only his testicular swelling had increased.

[140] Dr. Berringer did not address Dr. Rivlin’s consult note to Dr. Leung in which Dr. Rivlin reported that Mr. Sit said that he felt “totally well other than some discomfort in his scrotal area.”

[141] Finally, in cross-examination, Dr. Berringer was ambiguous as to whether Mr. Sit’s testicular swelling could be aggravated by the physical activity he undertook on October 8. In cross-examination, he conceded that the only worsening sign that existed on October 9 was the increased swelling, but indicated that, “I would not be comfortable ascribing the worsening solely to exercise without excluding other processes” (see transcript, Dr. Berringer’s testimony, p. 39, line 14 to p. 40, line 32, and p. 41, line 1 to p. 42, line 5).

[142] Dr. Rivlin submits that Dr. Berringer’s evidence with respect to a urological consult is not evidence of the standard of care. Rather, his evidence was merely what he would have done in the circumstances which, according to the case law, is not evidence of the standard of care.

[143] I do not accept this argument. It is based on reading Dr. Berringer’s statements in isolation. In context, however, notwithstanding that he phrased his evidence that he would have made a urological referral, Dr. Berringer was clearly referring to what he considered the standard of care.

[144] Dr. Foote’s opinion, on the other hand, is supported by the facts as I have found them.

[145] Dr. Foote, and all other experts, stated that Dr. Rivlin acted appropriately when he reviewed the chart, reviewed the records available to him on the hospital computer, took a history from Mr. Sit and examined him. Mr. Sit’s position is that Dr. Rivlin failed to meet the standard of care by failing to do the cremasteric reflex test, perform a second ultrasound, and refer Mr. Sit to a urologist. Dr. Foote says that in the circumstances, none of these were required by the standard of care in 2004.

[146] Dr. Foote testified that Dr. Rivlin was faced with the following clinical picture on October 9, 2004:

a) A diagnosis on October 4 and 5 of epididymitis, which was clearly supported by the clinical picture recorded in the records of October 4 and October 5, and by an ultrasound on October 5, which showed plentiful blood supply to the left testicle.

b) On October 9, 2004, a patient who:

i. Suffered no nausea or vomiting;

ii. Had normal pulse, blood pressure, respiration, temperature, and colour;

iii. Did not appear in any distress;

iv. Did not complain of pain, and stated that his pain was at a three on an analog scale of ten;

v. Said that he felt almost normal except for some scrotal discomfort;

vi. Carried a referral letter from his family doctor who identified only worsening left testicular swelling as the reason for the consult; and

vii. Did not complain of any significant pain.

[147] According to Dr. Foote, Dr. Rivlin did a detailed history and appropriate examination. His decisions were appropriate and logical, as were his instructions for aftercare. Given the signs, Dr. Rivlin’s diagnosis and treatment were reasonable.

[148] All experts and Dr. Rivlin agreed that the signs and symptoms of testicular torsion are the sudden onset of acute severe scrotal pain and swelling, usually accompanied by nausea and vomiting. Pulse and respiration are rapid and blood pressure is higher. The patient is usually pale and looks obviously unwell. On examination, the scrotum is very painful. If and when the torsion ends, there is a rapid gradual decline in pain and swelling.

[149] On October 9, 2004, Mr. Sit complained of none of these symptoms other than modest pain and swelling. According to Dr. Foote, both of these were adequately explained by his physical activity on October 8.

[150] Dr. Rivlin clearly went through all of the signs and symptoms which are relevant to differential diagnoses of torsion, testicular cyst, and hernia, among other things. In light of the history and the findings on examination, I find that there was no need for Dr. Rivlin to consult a specialist or order any further ultrasound when the examination supported the diagnosis of aggravation of epididymitis by physical activity. Unnecessary tests or consults would have fallen below the standard of care, according to Dr. Foote.

[151] Dr. Foote opined that the standard of care in 2004 also did not require a repeat ultrasound on October 9, 2004. Dr. Rivlin had a definitive ultrasound that was five days old. It clearly and specifically showed good blood flow to both testicles, swelling and the presence of epididymitis. The clinical features on October 9 did not show a deterioration in Mr. Sit’s condition. Rather, they showed an improvement in his pain and nausea. There was also a reasonable explanation for the swelling.

[152] For the same reason that no ultrasound was required, a urological consult was also not required on October 9, 2004.

[153] With respect to the cremasteric reflex test, Dr. Foote described it. It is a test done at the bedside where the doctor strokes or scratches the scrotum or the inside of the thigh on the affected side and, if the reflex is in tact, the scrotum will pull up on that side.

[154] Dr. Brock said, however, that the cremasteric reflex test, however, was not part of the standard of care in 2004. It is a non-specific test for torsion or epididymitis. It was largely replaced by an ultrasound which, in this case, was done on October 5. Further, when the patient has a swollen scrotum, the test is not helpful. The absence of the cremasteric reflex does not indicate epididymitis or torsion. It is hard to see the reflex with a swollen testicle. Dr. Berringer agreed with this assessment.

[155] In any event, I note that no doctor administered the cremasteric test to Mr. Sit, including the emergency doctors on October 4 and 5, Dr. Leung at any time, or his treating urologists after October 9.

[156] Mr. Sit argued strongly that the court should accept the evidence of Dr. Brock (the urologist called by the defendant) and Dr. Samarasekera (the urologist called by the plaintiff) with respect to the cremasteric reflex test. Their evidence was that a cremasteric reflex test could have been done and would have been of assistance in diagnosing torsion. Therefore, Mr. Sit urges me to accept the urologists’ evidence on the cremasteric test and find Dr. Rivlin liable for failing to meet the standard of care.

[157] Mr. Sit, citing Hodgins v. Nepean Hydro-Electric Commission, 1975 CanLII 31 (SCC), [1975] S.C.J. No. 86, at paras. 40-42 and Pittman Estate v. Bain, [1994] O.J. No. 463 (Gen. Div.), at paras. 262, 271-276, argues that the law cannot permit doctors to hide behind a deficient standard of care, fail to take an obvious precaution or test, or ignore the opinions of medical and scientific experts. It is important for the court to keep in mind the purpose of the “respectable body of opinion” principle, which is to arm the court with the information necessary to determine whether the defendant acted in a similar professional capacity with comparable skill and knowledge.

[158] This argument is of no assistance for two reasons. First, neither urologist was qualified to opine on the standard of care of an emergency physician. Second, both of the experts qualified to opine on the standard of care said that the cremasteric reflex test was not part of the standard of care in 2004. It is not appropriate for the court to ignore the properly qualified evidence in favour of evidence from doctors not qualified and accepted to speak on the standard of care, in order to ignore that standard of care.

[159] During the trial, Mr. Sit argued that he may have been suffering from ITT, a condition in which the vessels supplying blood to the testicle become twisted, cut off blood supply, and then spontaneously un-twist.

[160] Dr. Foote’s view was that in 2004, the standard of care did not require an investigation by an emergency physician of intermittent testicular torsion. Today, ITT is a very rare diagnosis, and in 2004, it was almost unheard of. It would not have been on the emergency doctor’s radar at that time. It is also controversial with respect to its incidence.

[161] Dr. Foote testified that with ITT, one would expect the patient to show the same signs and symptoms as with testicular torsion, except that one would have a resolution. The patient fluctuates between terrible pain and resolution as the testicle’s blood supply twists and un-twists. There is no evidence in this file of any such intermittent torsion.

ISSUE 2: CAUSATION

[162] In order to establish causation, Mr. Sit must prove that:

a) He suffered from ITT;

b) Had he been referred to a urologist, the urologist would have made the diagnosis of ITT;

c) The urologist would have surgically intervened to prevent further torsion events; and

d) The testicle would have been viable at that point.

Positions of The Parties

Mr. Sit

[163] Mr. Sit’s argument on causation is simple. Based on Mr. Sit’s evidence, he suffered excruciating testicular pain on October 4, 5, and 9, 2004. Aside from discomfort, he suffered no other episodes of similarly severe pain.

[164] It was determined that the cause of the pain on October 4 and 5 was epididymitis as confirmed by the ultrasound.

[165] Mr. Sit submits, therefore, the only other time he experienced excruciating pain was October 9. The cause of the pain was intermittent testicular torsion, and because of Dr. Rivlin’s failure to conduct the cremasteric test, obtain an ultrasound, and/or call for a urological consult on October 9, Mr. Sit’s intermittent testicular torsion was never diagnosed and therefore a urologist could never perform the orchiopexy on the left testicle thereby preventing it from becoming twisted again. Dr. Rivlin therefore failed to meet the standard of care.

[166] All doctors agreed that the left testicle was still viable as of the time of the ultrasound on October 5, 2004. All doctors also agreed that if there was torsion that persisted over six hours, the testicle would no longer be viable.

[167] Mr. Sit argues that he suffered from ITT, which explained his fluctuating pain between October 4 and October 9 and the nurse’s note on October 9 of “ pain”. Although there was no ultrasound done on October 9 that can assist in proving that Mr. Sit’s left testicle infarct was caused by intermittent torsion. It is more likely than not that had an ultrasound taken place on October 9, 2004, it would have shown a worsening condition, or that Mr. Sit’s left testicle had some form of compromised blood flow because October 9 was the last time that he complained of pain. Therefore, it stands to reason that it was the episode of torsion on October 9 that caused Mr. Sit to ultimately lose his left testicle.

[168] Mr. Sit argues that Dr. Rivlin did not appreciate the time sensitivity of Mr. Sit’s condition on October 9. Had he realized the time sensitivity of the condition, he would not have recommended that Mr. Sit go home and return in 24 hours if there was no improvement. Instead, he would have made an immediate referral to a urologist.

[169] Dr. Samarasekera expressed the opinion that ITT was a clinical diagnosis and that a patient complaining of testicular pain should always be examined by a urologist. He explained that a urologist would likely err on the side of surgical exploration because the downside of such exploration is relatively low. He also said that it is likely that a urologist would have performed a surgical exploration and fixed the testes to prevent them from twisting.

Dr. Rivlin

[170] Dr. Rivlin argues that Mr. Sit has not proven any of the four elements he must prove in order to succeed on the issue of causation. He argues that the court should accept the expert opinion of the urologist that Dr. Rivlin called, Dr. Brock, over the opinion of the urologist Mr. Sit called, Dr. Samarasekera.

[171] Further, Dr. Rivlin submits that the evidence supports the findings that: a) Mr. Sit did not suffer from ITT, b) no emergency doctor would have made the referral to a urologist, and c) no urologist would have done the exploratory or fixation surgery.

The Law on Causation

[172] In addition to establishing a breach of the standard of care, the plaintiff must also establish that the breach likely caused the plaintiff’s injury. If a breach of the standard of care did not cause the injury on a balance of probabilities, the physician is not liable: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 6.

[173] The onus is on the plaintiff on the “but for” test: Clements, at para. 8.

[174] The “but for” test is not a rigid test. As the Supreme Court of Canada said in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 66, in cases of causal uncertainty, both parties must establish facts in the absence of complete information. In those cases, the court must address the issue of how that evidentiary difficulty ought to be distributed between parties when the gap in evidence is caused by the negligence of one party. In such cases, the court must balance two considerations: a) ensuring that defendants are held liable for injuries only where there is a substantial connection between the injuries and their fault, and b) preventing defendants from benefitting from the uncertainty created by their own negligence. That balance was struck in Snell v. Farrell by: a) permitting the court to draw an adverse inference, if necessary, and b) by saying the proof is not on a scientific basis, but a common-sense basis, leaving the decision on whether to draw that inference to the trial judge as part of the fact-finding process.

[175] Benhaim does not apply in this case. There is no allegation that there is an insufficiency of evidence caused by Dr. Rivlin’s negligence.

[176] In cases such as this case involving the allegation that Dr. Rivlin’s negligence delayed proper medical diagnosis and treatment which led to the loss of the testicle, the “but for” test requires the plaintiff to establish that “but for” the delay, the plaintiff would not have suffered the unfavourable outcome: White v. St. Joseph’s Hospital, 2019 ONCA 312, at para. 25. In other words, the plaintiff must prove a link between the delay in diagnosis and the injuries through expert evidence as to what likely would have happened if an earlier diagnosis was made, how that would have led to treatment, and whether treatment would have avoided the unfavourable outcome: White, at para. 41; Salter v. Hirst, 2011 ONCA 609, at para. 16, leave to appeal refused, [2011] S.C.C.A. No. 503.

[177] The court must not draw an inference on causation where the plaintiff could have led evidence about the effects of the breach but did not do so: Jackson v. Kelowna General Hospital, 2007 BCCA 129, at para. 20, leave to appeal refused, [2007] S.C.C.A. No. 212. The burden of proof of causation remains with the plaintiff and any inference drawn must be rooted in expert evidence and not based on speculation: Cheung v. Samra, 2018 ONSC 3480, at para. 52, aff’d 2018 ONCA 923; Salter, at para. 85.

[178] The court must take a robust and pragmatic approach to the question of causation. A plaintiff, however, is still required to prove that the injury was caused by the negligence of the defendant. The robust and pragmatic approach is not a substitute for factual evidence of causation: Aristorenas v. Comcare Health Services (2006), 2006 CanLII 33850 (ON CA), 83 O.R. (3d) 282 (C.A.), at paras. 54, 63-64, leave to appeal refused, [2006] S.C.C.A. No. 487; Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193, at para. 10.

Conclusions on Expert Evidence and Causation

The Expert Preferred

[179] I heard expert evidence on the issue of causation from:

a) Dr. Dinesh Samarasekera, a urologist called by the plaintiff and qualified as an expert urologist in 2004 with respect to the diagnosis and treatment of urgent urological conditions such as intermittent testicular torsion and whether the testicle could have been saved.

b) Dr. Gerald Brock, a urologist called by the defendant and qualified as an expert in urology in 2004 to give opinions on issues of causation in this case and what urologists expect in urological consult from referring doctors.

[180] Dr. Samarasekera received his M.D. from the University of British Columbia in 2007 and completed his urology residency at the University of British Columbia in 2012. From 2012 to 2014, he completed his fellowship in laparoscopic and robotic surgery at the Cleveland Glickman Urologic and Kidney Institute.

[181] He is on the active staff of the Surrey Memorial Hospital in British Columbia as an adult and pediatric urologist. He is also a clinical instructor in Urological Sciences at the University of British Columbia. In that capacity, he instructs emergency doctors and residents in emergency urology on urology issues on a daily basis.

[182] Dr. Samarasekera is well published, listing 35 publications in his curriculum vitae, none of which, by their titles, suggest they involve cases such as Mr. Sit’s.

[183] On cross-examination, Dr. Samarasekera conceded:

a) he did not receive his M.D. designation, let alone his urological specialty until after the events in this case had transpired.

b) he has no formal expertise or experience in emergency medicine aside from a two-month rotation in emergency medicine as part of his residency to become a doctor.

c) he was not an expert in the standard of care of emergency physicians.

d) he has no training in Ontario, no medical degree in Ontario, and has not practised in Ontario.

[184] Dr. Brock is a urologist with 30 years of experience. He received his M.D. from McGill in 1986 and completed his urology residency in 1991. In 1993, he completed his specialist training in neuro-urology. He remained at McGill as an associate professor in the Division of Urology until 1998 when he returned to Ontario. Since then, he has been a full-time professor in the Department of Surgery, Division of Urology, with a special interest in erectile dysfunction, reconstructive urology, and infertility. He has published more than 200 peer-reviewed scientific papers, 20 book chapters, and received more than 20 national and international research prizes in the last 25 years, although none, on their face, address situations such as Mr. Sit’s.

[185] Dr. Brock has a clinical practice in urology at St. Joseph’s Healthcare in London, Ontario. He sees approximately 150 patients per week with all manner of urologic complaints. On average, Dr. Brock sees five to ten patients a year with testicular torsion, and 50 to 100 patients a year with epididymal pain or epididymitis. Dr. Brock said that torsion is an extremely rare diagnosis, and that he has only seen five or six cases of ITT in his roughly 30 years of practice.

[186] Academically, Dr. Brock has spent most of his career in the education and training of medical students in urology. He is a full-time professor in both the Department of Surgery (Division of Urology) and the Department of Obstetrics and Gynecology (Division of Urogynecology) at the Schulich School of Medicine and Dentistry at Western University. There, he conducts clinical research and educates and trains medical students and residents.

[187] Dr. Brock has served in several prominent roles within the Canadian Urological Association, including as Chair of its Guideline Committee (which sets guidelines for treatment of urologic issues), the Chair of its Office of Education (which identifies education needs and creates urologic education programs for urologists and other physicians), and as President. As President, he worked with the Royal College of Physicians and Surgeons of Canada to design and develop the entrance examinations for physicians seeking a speciality in urology, and with the College of Physicians and Surgeons of Ontario to review the practices of urologists and provide opinions on whether they are meeting requisite standards. Finally, Dr. Brock is a Section Editor for the Canadian Urological Association Journal.

[188] Dr. Brock conceded that 75% of his practice deals with men’s health and fertility and only 25% of his practice deals with general urology matters.

[189] Dr. Brock conceded that he has never written any scholarly articles or book chapters that deal with acute scrotum difficulties with minors.

[190] Dr. Brock was cross-examined at length on various pieces of literature dealing with the cremasteric reflex, ultrasounds, and the frequency of epididymitis in minors. Throughout this cross-examination, Dr. Brock stood his ground, conceding what was necessary. For example, he was examined on an article by Dr. Rabinowitz which appeared in the Journal of Urology and suggested that the cremasteric reflex was an important part of diagnostic testing. He recognized the Journal of Urology as a credible journal. However, he distinguished the reference as being only of historical interest at it concerned events which occurred 20 years before Mr. Sit’s case. Dr. Brock said that in the 20 years between the cases looked at by Dr. Rabinowitz and Mr. Sit’s case, the cremasteric reflex test was determined to be insensitive, non-specific and was not recommended in 2004.

[191] Dr. Brock was also cross-examined on an article by Dr. Schubert published in Canadian Family Physician. He did not know Dr. Schubert and did not recognize the publication as authoritative and explained why.

[192] Dr. Brock was cross-examined extensively on a footnote in the article by Dr. Schubert which referred to an article by Kadish and Bolte entitled, “A Retrospective Review of Pediatric Patients with Epididymitis, Testicular Torsion, and Torsion of Testicular Appendages.” That article was referred to in an article that Dr. Brock relied on by Walder and Schmidbauer. Dr. Brock testified that just because an article is cited does not mean that the citing author agrees with the entirety of the cited article. One has to look at the citation to see what the citing author is referring to. It may be cited, as it was by Dr. Brock, as a reference in their work.

[193] He was also cross examined on an article by Kadish and Bolte. Dr. Brock had never seen it, nor did he consider it authoritative, and explained why. In any event, it concerned cases in 1994 to 1996, studied retrospectively, ten years before the incident before the court.

[194] Notwithstanding that Dr. Brock did not know the Kadish and Bolte article or consider it to be authoritative, he was cross-examined on the opinion expressed in that article that “numerous textbooks and articles have cited how epididymitis is rare and that testicular torsion is the most common diagnosis in pre-pubertal males.” Dr. Brock said that this section did not reflect the intention, purpose or conclusions of the authors. Dr. Brock also pointed out that the conclusion of the article was that epididymitis was the most common diagnosis in children - 71%.

[195] On balance, on urological matters, I prefer the evidence of Dr. Brock to that of Dr. Samarasekera. Dr. Samarasekera is an excellent surgeon and clinician. His practice is as an adult and pediatric urologist. Notwithstanding this, I cannot give significant weight to his evidence for several reasons:

a) Foremost, Dr. Samarasekera was not in practice as a doctor until 2007 and as a urologist until 2012. Therefore, he is not qualified or positioned to give evidence with respect to what a urologist would have done, the diagnosis the urologist would have made, and the treatment a urologist would have recommended in 2004. I was given no evidence from which I could conclude that the diagnosis, prognosis, or conduct of a urologist in 2012 was the same or similar to a urologist in 2004;

b) His education (except for his fellowship in laparoscopic and robotic surgery) was completed solely in British Columbia. He has practiced solely in British Columbia and has never practiced in Ontario;

c) His opinion is based on an incorrect assumption or reading of the documents, namely that when Mr. Sit went to the emergency department on October 9, he was suffering from a significant increase in pain or had suffered a significant increase in pain shortly before arriving. The nurse’s note of October 9 notes a pain level of three out of ten. Nowhere in the nurse’s or doctor’s notes is there any report of any significant pain at the time of the admission or before. Dr. Rivlin notes that Mr. Sit told him that he was fine except for some lingering discomfort and swelling, a fact that Mr. Sit did not challenge.

d) Under cross-examination, during the course of ten or eleven questions, Dr. Samarasekera agreed that the only symptom still persisting on October 9 was swelling of the left testicle. He also agreed that a reasonable explanation for the swelling was that Mr. Sit was running around and playing soccer on October 8 which aggravated the pre-existing swelling of the testicle caused by the epididymitis. Notwithstanding these concessions, however, Dr. Samarasekera persisted with the theory that Mr. Sit had ITT, when the factual basis for the diagnosis did not exist.

e) Dr. Samarasekera’s opinion with respect to the cause of the pain that led to hospital visits on October 4 and 5 was confusing. On the one hand, he seemed to suggest that ITT may have been an issue. Later, however, in a long discussion over what would appear on an ultrasound, he ultimately concluded that the October 5 ultrasound was definitive for the diagnosis of epididymitis.

Did Mr. Sit Suffer from Intermittent Testicular Torsion?

[196] As indicated above, the plaintiff’s theory is that between October 4, when he first felt the onset of left testicular pain, and October 22, when he was told that his left testicle could not be saved, he suffered from ITT. Mr. Sit alleges that Dr. Rivlin mis-read the evidence and failed to include in, or improperly exclude from his differential diagnosis the diagnosis of ITT. Had he included ITT as part of his differential diagnosis, he would have ordered an ultrasound and/or a urological consult.

[197] I do not accept that Mr. Sit suffered from ITT or that it should have been included in Dr. Rivlin’s differential diagnosis for two reasons.

[198] First, the facts of this case do not support the conclusion that Mr. Sit suffered from ITT. All of the experts agreed that the signs and symptoms of ITT are a sudden onset of pain (when the testicle enters into torsion) which is severe and excruciating. The pain is accompanied by swelling. The pain is also usually accompanied by nausea and vomiting. When the patient is suffering from this pain, the signs are obvious in terms of accelerated respiration and pulse and elevated blood pressure. The patient is obviously unwell. When the testicle torsion ends, the pain reduces fairly quickly, and all of the other signs and symptoms reduce accordingly.

[199] In this case, Mr. Sit’s position with respect to what caused the hospital visits on October 4 and 5 is unclear. Dr. Samarasekera suggests that the pain at those times was as a result of ITT. At trial, however, Mr. Sit’s position was that the conduct of the doctors and hospital was correct, and that he had epididymitis as diagnosed.

[200] The plaintiff’s position with respect to his October 9 admission is based on the oral evidence of Ms. He and Mr. Sit that the pain he suffered on October 9, which resulted in Mr. Sit going to the doctor, was of sudden onset and continued through to his admission into the emergency department. For reasons already set out, I do not find their oral evidence on this point persuasive or reliable.

[201] Mr. Sit urges me to accept the interpretation that the reference on the October 9 nurse’s note to “ pain” as meaning Mr. Sit came to the hospital because of increased pain that day. As I have already indicated, I find that the reference to “pain” refers to the nurse’s record of Mr. Sit’s description of the condition that brought Mr. Sit to the emergency room on October 4 and 5, not October 9.

[202] Based on this finding, I found that when Mr. Sit entered the emergency department on October 9, he was suffering modest discomfort which he rated as three out of ten on the analog pain scale. His main concern was the continued swelling, which I found was reasonably explained by his physical activity on October 8. I also found that he did not mention an escalation or spike in his pain as the reason for his admission, not to Dr. Leung, the emergency nurse, or Dr. Rivlin.

[203] Based on all of the evidence, there is no doubt that Mr. Sit’s left testicle became torted at some point before October 22. Based on the evidence before me, however, I do not find that Mr. Sit had ITT at any time up to and including October 9, or that if he did, it was not a diagnosis suggested by on all of the evidence available to Dr. Rivlin on October 9.

Urological Referral

[204] In order for Mr. Sit to establish causation, he must demonstrate, on a balance of probabilities, that he ought to have been referred to a urologist by the emergency department. In light of my findings above, Mr. Sit has not persuaded me that a reasonable emergency physician in these circumstances and with Mr. Sit’s presentation would have referred the matter to a urologist. I make this factual finding independent of any finding with respect to the standard of care, also accepting Dr. Foote’s opinion that an emergency physician would not have requested a urology consultation on the facts of this case.

What Would the Urologist Have Done if Consulted?

[205] In order to succeed in causation, Mr. Sit must satisfy me, on a balance of probabilities, that had the urological referral been made, the urologist would have done something to stop the ITT, such as putting in a surgical stitch between the torted testicle and the side of the scrotum, to prevent the testicle from twisting.

[206] Dr. Samarasekera’s evidence was that because epididymitis is very uncommon in boys of Mr. Sit’s age, a urologist, when faced with a 12-year-old with acute testicular pain, would likely have aired on the side of caution, surgically explored the scrotum, and done the stitch to prevent torsion. Dr. Samarasekera said that any child complaining of severe testicular pain should always be referred to a urologist, and any urologist, on viewing Mr. Sit’s condition on October 9, would have concluded that he was not responding to conventional therapy.

[207] For reasons already expressed, I accept Dr. Brock’s opinion that a urologist, when reviewing Mr. Sit, whose main complaint was a persistence of swelling, would not have done any exploratory surgery. The swelling is a non-specific finding that could arise from a number of things such as a delayed reaction to an acute event or an infection. Dr. Brock’s view was that had a urologist been consulted, the urologist would have treated Mr. Sit in the same way as Dr. Rivlin. For the reasons stated, I accept Dr. Brock’s evidence over Dr. Samarasekera’s.

Would a Urological Referral Have Saved the Testicle?

[208] All of the evidence is that if a testicle is in torsion for between four to six hours, it is no longer salvageable. Dr. Samarasekera expressed the opinion that if Mr. Sit had an orchiopexy on October 9 following a urological consult, it is likely that the testicle would have been saved.

[209] Dr. Samarasekera conceded that if Mr. Sit’s pain on October 4 and 5 had been caused by torsion, by the time of October 5, the torsion would have existed for over 12 hours and the testicle would not have been salvageable. Dr. Samarasekera ultimately conceded that because of a pain score of three out of ten on October 9, there was no active torsion at that time.

[210] Dr. Samarasekera conceded that if Mr. Sit was in acute torsion from the time of the onset of his symptoms on October 8 when he played soccer and remained so until the morning of October 9, then there was no chance of salvaging his testicle when Dr. Rivlin saw him. Based on Ms. He’s evidence of Mr. Sit’s presentation on the morning of October 9, it is the plaintiff’s position that Mr. Sit was in pain from October 8 through to the visit to Dr. Leung on October 9.

[211] For the foregoing reasons, I dismiss Mr. Sit’s action against Dr. Rivlin.

ISSUE 3: DAMAGES

[212] In the event that I am mistaken as to my disposition of this action, I now address what I would have awarded Mr. Sit in general damages had I found this case in his favour.

The Positions of the Parties

[213] Mr. Sit, relying on Campbell v. Allegheny University Hosp. – Hahnemann Div., 2002 WL 34669982 (2002), submits that general damages should be assessed at $50,000 to $75,000 due to the loss of his left testicle. Dr. Rivlin, relying on Bolianatz v. Edmonton Police Services, 2002 ABQB 284, submits that they be assessed at $21,024 to $37,635.

[214] General damages are to be assessed on the facts of each case.

The Evidence

[215] Mr. Sit is a quiet, modest, almost shy young man of 28 years. He gave his evidence in a careful and thoughtful manner, befitting my impression of him.

[216] Mr. Sit’s loss of his left testicle has affected him adversely in several ways:

a) When his dead left testicle was removed, as a precautionary measure, the surgeon performed an orchiopexy, which is a surgical fixation of the testicle by placing a surgical stitch between the testicle and the scrotum wall torsion of the right testicle.

b) As a result of the orchiopexy, he has to be careful and wear only certain underwear and certain clothes. He must also sit carefully because sometimes the stitch to his right testicle pulls. When the stitch pulls, he feels pain at a six or seven out of ten. He is afraid of ripping that stitch. He must also keep his scrotum hair-free as scrotal hair aggravates the pulling of the stitch.

c) He was advised by his doctors to be very careful with rough play for fear of damaging his remaining testicle. Therefore, he avoided all rough play at school and avoided sports that he used to play such as basketball and soccer. When he does play them, he plays them wearing an athletic cup.

d) He has to be careful of temperatures. Accordingly, in the summer, he must wear tighter underwear than in the winter when he wears looser underwear.

e) He is embarrassed by the loss of his left testicle. He does not want to become the subject of a joke. Mr. Sit once told a friend whom he played football with about his situation. Others found out, laughed at him, and joked about his situation. Now, none of his friends know his circumstances. While his embarrassment has improved over time, it remains.

f) He finds having one testicle intimidating with respect to new sexual or romantic partners. He feels he has to tell them about his situation in advance of any sexual activity. This too is intimidating and embarrassing.

[217] In cross-examination, Mr. Sit conceded that notwithstanding his loss of the left testicle:

a) His doctors have advised that his fertility is not affected, and that the loss of his left testicle would not affect his ability to father children.

b) His doctors have not told him to avoid physical activity and sports, but merely to wear an athletic cup if he engages in athletic activity.

c) He has not seen a psychiatrist or psychologist, has never been diagnosed with any psychiatric or psychological illness that was caused or exacerbated by the loss of his left testicle, and has not been told to have any psychiatric or psychological treatment or medication.

d) He has been advised that he can have a prosthetic testicle implanted. He has not done so, but the option remains available to him.

[218] There was little evidence at trial as to the effects on Mr. Sit should he lose his right testicle in the future. It is common knowledge, however, that whenever an individual loses one of a pair of organs, the individual can often function without impairment and lead a normal life. It stands to reason that having lost one testicle, Mr. Sit’s ability to lead a normal life with normal function depends solely on the remaining testicle remaining healthy and fully functional.

[219] In Mr. Sit’s case, he has suffered the pain of surgery to remove the left testicle and will likely continue to suffer the inconveniences he described caused by the fixation of the right testicle. Significantly, however, while he can function normally with one testicle, the loss of the other is serious and must be reflected in damages.

The Jurisprudence

[220] Bensler J. in Bolianatz was understated when he said that cases assessing damages which are similar to Mr. Sit’s are scant.

[221] I do not consider the Campbell case helpful in assessing general damages for the following reasons:

a) It is a Pennsylvania jury decision.

b) The case report provided is a mere summary of the jury’s verdict, providing no reasoning behind the damages set.

c) The jury’s award was $8,500,000, not in keeping in any way with Canadian approaches to damages.

[222] The Canadian case law is more instructive.

[223] In Bolianatz, a police officer kicked the plaintiff in the groin during an attempt to stop a fight between the plaintiff and another individual. That kick caused one of Mr. Bolianatz’s testicles to rupture. While he did not lose the testicle, he required surgery removal of testicular tissue, leaving the ruptured testicle 25% the size of the unruptured testicle. Bensler J. awarded $15,000 as general damages, in 2002.

[224] At paragraph 45 of Bolianatz, Bensler J. referred to two cases that he considered in assessing damages, one from Ontario involving a scrotal injury which resulted in one of the plaintiff’s testicles remaining smaller than the other, and one from British Columbia in which the child had the testicle completely removed due to a doctor’s negligence.

[225] The British Columbian case that Bensler, J. referred to was Ballendine v. Dodds, [1999] B.C.J. No. 1386 (S.C.), which I have found instructive.

[226] In Ballendine, a 13-year-old boy came to the hospital at 11:30 a.m. on a Thursday complaining of pain in his testicle which radiated into his abdomen. After seven and a half hours of waiting, he was seen by a doctor. Due to a miscommunication between the doctor and the boy’s father (which Rowan, J. determined to be the doctor’s fault), the doctor diagnosed appendicitis, prescribed antibiotics, and sent the child home with instructions to return if the pain did not approve. By the time the doctor saw the child, the testicle was not salvageable.

[227] The next day, the boy returned to Hospital complaining that the pain had returned. At that point, he was diagnosed with epididymitis, given another prescription, and sent home with instructions to return if the situation did not improve. He returned on the next Monday. It was determined that his one testicle had torted by 720 degrees, was dead, and had to be removed.

[228] At paragraph 40 of Ballendine, Rowan J.’s total analysis of his assessment of general damages was the following:

There will be judgment against Dr. Warkentin in the sum of $25,000 and the action against Drs. Dodds, Causton and Tam will be dismissed.

[229] It appears that general damages may have been agreed to.

[230] In Bolianatz, Bensler J. also referred to Houkaykan v. Michaud, [1989] O.J. No. 765 (H.C.), a decision of Trainor J. in which he fixed general damages at $20,000 for a scrotal hematoma which resulted in one of the plaintiff’s testicles being permanently smaller than the other and in a fixed position with pain on palpation. The plaintiff’s chronic pain from the injury prevented him from doing physical labour for over a year.

[231] Trainor J. did not provide reasons for his assessment of general damages at $20,000. His Lordship found the Plaintiff to have very poor credibility. Based on that, it may be that he did not accept the extent of the Plaintiff’s evidence concerning his pain and suffering. For example, Trainor J. awarded only a further $20,000 for loss of income.

[232] My own on-line research turned up the case of J.N. v. Horton, 2010 ABQB 767 which neither party put to this court. In that case, a police officer kicked the 22-year-old plaintiff in the groin after the plaintiff allegedly called the defendant police officer a name. The plaintiff suffered significant, debilitating and chronic pain in his testicles thereafter. The court awarded $120,000 in general damages based on the court’s assessment of chronic pain cases because of the dearth of cases involving testicular injury.

[233] Because of its factual similarity to this case, I find the Ballendine case the most instructive. I consider the assessment of general damages at $25,000 for the loss of a testicle, however, low, even for 1999. Further, the award in Ballendine must be adjusted for inflation.

[234] The Bank of Canada’s inflation calculator (https://www.bankofcanada.ca/rates/related/inflation-calculator/) calculates the value of $100 in 1999 to be $150 in 2020 based on 21 years at an annual average inflation rate of 1.95%.

[235] Having determined the inflationary difference between 1999 and today, and considering Ballendine to be a low award, had I found Dr. Rivlin liable, I would have fixed Mr. Sit’s general damages at $45,000, plus pre-judgment interest.

COSTS

[236] If the parties cannot agree on who should pay whom costs, and in what amount, either party may schedule a 30-minute conference call to be held at between 8:30 and 9:00 any morning I am sitting to determine whether costs should be addressed orally, in writing, or both, and to create a timetable for the necessary steps. This conference call may be arranged by providing my administrative assistant with 5 agreed-upon dates for the conference call. The assistants are Kim Williams (Kimberly.Williams@ontario.ca) and Cheryl Ferguson (Cheryl.Ferguson3@ontario.ca).

Trimble J.

Released: April 21, 2020