COURT FILE NO.: CV-14-509736

DATE: 20200514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Elena Stepita, Ana Pasquali, George Sekesan, Steluca Sekesan and Traian Sekesan

Plaintiffs

– and –

Bradley Dibble, Bruce Burke, Kevin Teoh, Lee Heinrich and Daniel Kim

Defendants

Ken Berger and Dominique Ménard, for the Plaintiffs

Sarit Batner and Jacqueline Cole, for the Defendants Bradley Dibble, Kevin Teoh and Lee Heinrich

HEARD: October 7-11; 15-17 and 21 to 25, 2019

reasons for DECISION

J.E. FERGUSON J.

OVERVIEW

[1] In June 2012, a mass was found in Ms. Stepita's heart after a routine echocardiogram in the course of her treatment for breast cancer. The mass could either have been thrombus (blood clot), a cancerous tumor, or a non-cancerous tumor (myxoma), but the mass could only be definitively identified based on a tissue analysis. Ms. Stepita underwent heart surgery for the removal of the mass. Her surgery and recovery were unremarkable. A tissue analysis showed the mass was thrombus.

[2] The plaintiffs bring a negligence claim on the basis that the defendant physicians involved in Ms. Stepita's heart surgery should ought to have known that her mass was likely thrombus, and therefore should have treated it medically with anticoagulants. The plaintiffs submit that the defendant physicians fell below the standard of care by misdiagnosing the mass as a myxoma, and therefore Ms. Stepita had unnecessary heart surgery.

[3] The plaintiffs also submit that the defendant physicians did not provide enough information to obtain informed consent from Ms. Stepita, by failing to disclose the possibility of the mass being a blood clot and discuss alternatives to surgery.

[4] The plaintiffs seek general damages, loss of past and future income, out of pocket costs, future care costs, and damages under the Family Law Act.

[5] Following this trial, I received written submissions from (i) the defendant physicians; (ii) Ms. Stepita; and (iii) reply submissions from the defendant physicians.

THE PARTIES

The Plaintiffs

[6] Ms. Stepita is a 56-year-old pharmacist who lives in Collingwood. She received medical care from the defendant physicians.

[7] Traian and Steluca Sekesan are Ms. Stepita’s parents. Mr. Sekesan is 78 years old and Ms. Sekesan is 75 years old. They are retired and live in Stoney Creek. They did not testify and on consent, their examination for discovery transcripts were made exhibits and comprise their evidence.

[8] George Sekesan is Ms. Stepita’s brother. He is 52 years old and lives in Toronto.

[9] Ana Pasquali is Ms. Stepita’s sister. Her claim was abandoned at the start of the trial.

The Defendant Physicians

[10] Dr. Bradley Dibble ("Dr. Dibble”) is a cardiologist practicing in Barrie at the Royal Victoria Regional Health Centre (“Royal Victoria”).

[11] Dr. Kevin Teoh (“Dr. Teoh”) is a cardiac surgeon practicing in Newmarket at the Southlake Regional Health Centre (“Southlake”).

[12] Dr. Lee Heinrich (“Dr. Heinrich”) is a cardiac anaesthetist practicing at Southlake.

[13] Drs. Bruce Burke and Daniel Kim were released from the action.

MEDICAL CHRONOLOGY

[14] The following medical chronology includes some but not all of the facts and events:

Date

Event

October 27, 2011

Ms. Stepita is diagnosed with breast cancer

November 23, 2011

Ms. Stepita undergoes a mastectomy

December, 2011

Ms. Stepita moves to Collingwood

January 2, 2012

Ms. Stepita’s oncology consultation with Dr. Rask at Royal Victoria

January 16, 2012

Ms. Stepita has a transthoracic echocardiogram (“TTE”) for assessment of left ventricular (“LV”) function before chemotherapy is administered

January 18, 2012

Ms. Stepita’s cancer is determined to be HER-2 positive and Dr. Rask initiates ACT followed by herceptin

January 23, 2012

Ms. Stepita undergoes insertion of PICC line at Royal Victoria to administer chemotherapy

February 28, 2012

Ms. Stepita undergoes port-a-cath insertion at Royal Victoria to administer chemotherapy and herceptin

March 14, 2012

Ms. Stepita undergoes TTE for assessment of LV function

May 9, 2012

Ms. Stepita concludes chemotherapy and continues on herceptin treatment

June 15, 2012

Ms. Stepita undergoes TTE for assessment of LV function

June 27, 2012

Dr. Dibble sees Ms. Stepita and performs an assessment and a transesophageal echocardiogram (“TEE”)

July 13, 2012

Dr. Teoh sees Ms. Stepita

July 16, 2012

Ms. Stepita undergoes a bilateral oophorectomy

July 25, 2012

Ms. Stepita attends Southlake for a preoperative assessment

August 1, 2012

Ms. Stepita has another TTE to assess LV function

August 9, 2012

Ms. Stepita attends an appointment with Dr. Teoh regarding proceeding by thoracotomy rather than sternotomy

August 17, 2012

Dr. Teoh performs cardiac surgery on Ms. Stepita at Southlake. Dr. Heinrich performs an intraoperative TEE prior to the cardiac surgery

August 21-22, 2012

surgical pathology confirms clot

August 24, 2012

Ms. Stepita is discharged from Southlake

January 7, 2013

Ms. Stepita attends follow-up appointment with Dr. Teoh

[15] I have never felt compelled to comment on counsel, but under the circumstances I feel that I must. Ms. Stepita’s counsel was unprepared, rude and argumentative. His conduct had an effect on the trial, making a civil trial very uncivil. Repeatedly, he challenged rulings I made. His written submissions were submitted without paragraph and page numbering, misstated evidence, and included submissions on evidence that I ruled inadmissible during the trial.

[16] Counsel for the defendant physicians, in their reply submissions, note that the plaintiffs’ closing submissions are unreliable as they contain inaccurate and misguided evidence or are based on no evidence at all. The defendant physicians have set out many examples of where the plaintiffs misstate evidence or got it completely wrong. I have reviewed the examples of such problems set out at paragraphs 4(a) to (z) and 5(a) to (u) of the defendant physicians’ reply submissions. I have carefully reviewed these examples with the transcripts and my notes and agree that the plaintiffs’ closing submissions misstated the evidence and gave incorrect evidence.

[17] The plaintiffs' closing submissions are unreliable. They also include unfounded personal attacks on counsel for the defendant physicians and totally misguided submissions that the defendant physicians falsified, lied and conspired in their record-keeping. These flagged issues will be relevant to costs.

[18] I must stress that these issues did not affect the outcome of this trial. In light of my concerns about counsel for the plaintiffs, I have made a specific effort to address the issues and the evidence without regard to counsel’s behavior. This action is dismissed with costs, payable to the defendant physicians.

EXPERT ISSUES

[19] It is trite law that an expert must be properly qualified in order to provide expert testimony. Experts must not only be qualified generally but must also be qualified to express the specific opinion proffered.[^1]

[20] Expert witnesses must be qualified to opine on the appropriate standard of care expected of a physician through the eyes of a physician with the same background and training.[^2] The consequence of this is that “medical specialists are not properly situated to opine on the standard of care of specialists in other areas”.[^3]

[21] This court has refused to admit the testimony of a proffered expert physician where their expert opinion goes to matters that are outside their training and experience.[^4] Where an expert is not appropriately qualified for the specific opinion offered, the court is to find the opinion evidence inadmissible.[^5] For example, in Reid v. Livingstone, this court found that an occupational medicine/pain management physician could not opine on the treatment of pain in an obstetrical ward, as “he had no expertise in the field of the defendants’ impugned conduct”.[^6]

[22] Whether an expert is appropriately qualified depends on where they obtained their experience. In Lucuta v. Stevens, the proposed expert had never practiced in Ontario and had worked mostly in a U.S. clinic. The court concluded that while the proposed expert possessed orthopedic credentials, he did not have “the credentials or related work experience in an Ontario hospital setting to opine on procedures and interactions between medical personnel in an Ontario hospital.”[^7]

[23] Courts in Ontario have reached the same conclusion as Lucuta and refused to admit expert opinion evidence where experts do not have the necessary expertise to opine on the standard of care in Ontario:

(a) In Hirchberg v. Branson Drug Store, this court rejected the evidence of a doctor where the evidence was “insufficient to establish his expertise regarding Canadian standards of practice, let alone those applicable to the physician defendants’ circumstances.”[^8]The Court of Appeal agreed;[^9]

(b) In Kurdina v. Gratzer, the Court of Appeal dismissed appeals from two summary judgment decisions which dismissed a claim against psychiatrists for negligence, concurring with the lower court that none of the deponents offered by the appellant were qualified to practice in Ontario or qualified to provide expert evidence on the applicable standard of care in Ontario.[^10]

EXPERT ISSUES IN THIS TRIAL

[24] In order to keep this trial moving along and completed in the allotted days, I allowed all of the experts to testify and indicated that I would receive written submissions and rule on the admissibility issues in these reasons for judgment. I am now setting out my reasoning and decisions on this issue with respect to Drs. Myers, Kelly, Hill and Crowther.

A. Dr. Myers – Cardiologist who provided opinion evidence regarding Drs. Dibble and Teoh

[25] Dr. Myers was an expert called by the plaintiffs. The plaintiffs’ submissions with respect to Dr. Myers’ opinion is that it should be admissible against both Drs. Dibble and Teoh for the following reasons:

(i) Dr. Myers was qualified to give evidence about the standard of care of the diagnosis and treatment of right atrial clots and tumors, including the proper indications for surgical management.[^11]

(ii) Regarding Dr. Myers’ opinion on the standard of care of Dr. Teoh, he is not giving opinion evidence about the surgery itself.[^12]

(iii) Dr. Myers’ testimony is admissible under R. v. Mohan[^13] which only requires that an expert acquire special or peculiar knowledge through study or experience of the matters on which he testified. There is no requirement that a specialist is limited to testifying about the standard of care in the expert’s own area of specialization. The requirements are based on the knowledge, experience and training related to the subject matter. The diagnosis and treatment of clots are subject matters on which all physicians should be aware of, and Dr. Myers demonstrated expertise in opining on the standard of care of both Drs. Dibble and Teoh on the diagnosis and treatment of clots and tumors including appropriate surgical indications.

(iv) In Robinson, Dr. Richards, an orthopaedic surgeon, was allowed to give expert evidence regarding a general practitioner on the standard of care.[^14] The admissibility of the specialist’s opinion depends on the subject matter on which that opinion is offered and the specialist’s training and experience.

(v) Clots are encountered by both physicians and surgeons and the appropriate treatment and indications of medical and surgical treatment are within the knowledge, training and expertise of both cardiac surgeons and cardiologists. The issue of weight accorded to an expert is then left to the discretion of the court.

(vi) Dr. Myers gave clear, objective, and reliable evidence that both Drs. Dibble and Teoh fell below the standard of care in failing to adequately consider the possibility that Ms. Stepita's mass was a clot, resulting in unnecessary open-heart surgery.[^15]

[26] The defendant physicians’ submissions with respect to Dr. Myers’ opinion is that it is inadmissible against Dr. Teoh for the following reasons:

(i) The only expert critical of Dr. Teoh, a cardiac surgeon, is Dr. Myers, a cardiologist who, by his own admission, is not a peer of Dr. Teoh.[^16] It is notable that the plaintiffs failed to lead any evidence from a cardiac surgeon. In these circumstances, the court is permitted and ought to infer that the plaintiffs were unable to obtain a properly qualified expert who supported their allegations against Dr. Teoh.[^17]

(ii) This court has repeatedly refused to admit the testimony of a proffered expert physician where their expert opinion goes to matters that are outside their training and experience. In fact, this court has refused to admit the testimony of Dr. Myers specifically where his opinion went to matters outside of his training and experience. In DeMarco v. Martin, Dr. Myers was precluded from opining on the standard of care of a family physician (in which he is not trained and does not practice) after he purported to do so in a report tendered for his opinion on causation.[^18]

(iii) The very same thing can be said of Dr. Myers in this case, who agreed that:

(a) physicians are divided into two categories: medical and surgical. Dr. Myers is in the “medical” category rather than the “surgical” category;[^19]

(b) he has never trained in or practiced cardiac surgery;[^20]

(c) a cardiac surgeon does not have the same training and expertise in echocardiography that a cardiologist has;[^21]

(d) the ultimate decision to go to surgery is always made by the surgeon rather than the cardiologist, and the perspective of a surgeon is different than the perspective of a cardiologist;[^22]

(e) in making a surgical decision, there are factors a surgeon considers which are beyond that of a cardiologist (though Dr. Myers could not say whether there are “many” or “some” factors, since he does not know because he is not a surgeon.);[^23]

(f) he has never been on the “receiving end” of a cardiologist’s opinion like Dr. Teoh has;[^24] and

(g) he is not a peer of Dr. Teoh.[^25]

(iv) Dr. Myers testified that the reason he is qualified to opine on the cardiac surgeon in this case is because both cardiologists and cardiac surgeons are “looking at the same material”.[^26] That is not the test.

(v) A physician is not judged to have met the standard of care solely based on the material to which he or she had access; a physician is measured against the degree of care and skill that a normal, prudent practitioner of the same experience in the same circumstances brings to bear. This is why the opinion evidence an expert offers is not informed solely by the materials they review; it is also informed by their training, education and experience.

(vi) Dr. Myers does not have the same training, education and experience as Dr. Teoh. He has never been in the position of a surgeon receiving a referral from an experienced echocardiographer and making a surgical decision. In the same breath as testifying that he is qualified to opine on whether a cardiac surgeon met the standard of care, Dr. Myers opined that there are times he has sent a patient to a surgeon and the surgeon has declined to perform surgery.[^27] This reveals what is obvious: surgeons know different things which can cause them to arrive at different conclusions. The standard of evaluating them must be elucidated by those in the know: other surgeons.

(vii) Dr. Myers’ experience of surgeons making their own (or sometimes different) decisions, together with his acknowledgement that he does not have insight into all of the factors that a surgeon considers, is telling. Dr. Myers cannot assist the court in a determination of whether Dr. Teoh’s care as a cardiac surgeon was appropriate, and his opinion ought not to be admitted or ought to be afforded no weight.

ANALYSIS

[27] Dr. Myers is not qualified to provide expert opinion evidence regarding the standard of care of Dr. Teoh. The following factors are included in my conclusion:

(a) Dr. Myers has never trained for nor performed cardiac surgery;

(b) Dr. Myers is not a peer of Dr. Teoh. Physicians are placed in two categories. In terms of physicians, Dr. Myers falls into the medical category and Dr. Teoh into the surgical category. They are in two completely different categories;

(c) the decision to proceed to surgery is always made by the surgeon;

(d) Dr. Myers has never received a cardiologist's opinion, whereas Dr. Teoh has received many such opinions.

[28] The cases provided by the plaintiffs' counsel are not persuasive. In Cheesman[^28] and Robinson, the experts proffered were specialists that had qualifications to opine on the level of care expected from a non-specialist medical practitioner. That is not the case here. Dr. Myers is a cardiologist, while Dr. Teoh is a cardiac surgeon. These are two different areas of expertise.

[29] If I am incorrect regarding the admissibility of Dr. Myers’ evidence, no weight can be placed on his opinion. Dr. Masters is qualified to opine on the standard of care regarding Dr. Teoh and I will deal with that later in these reasons.

B. Dr. Kelly – American Cardiac Anaesthetist who provided opinion evidence regarding Dr. Heinrich

[30] The plaintiffs’ submissions regarding Dr. Kelly’s evidence that Dr. Heinrich fell below the standard of care for failing to communicate the possibility of a clot on the TEE is that it is admissible for the following reasons:

(i) Dr. Kelly is highly qualified, fellowship-trained, and highly experienced in cardiovascular anaesthesia. He obtained certification and credentialing similar to Dr. Heinrich from the National Board of Echocardiography (the “board”). He is qualified by the board to diagnose and manage cardiac masses intraoperatively and the board ensures a uniform standard for the performance of intraoperative echocardiograms in both Canada and the United States. It is the same body for all cardiac anaesthetists with uniform standards across North America.[^29]

(ii) Since the same standards apply for the appropriate care of cardiac anaesthetists in Canada or the United States, Dr. Kelly has expertise in the standard of care in Ontario.[^30]

(iii) In Cacciacarro v. Makhan, an American oncologist was allowed to testify on the standard of care of a surgeon in Canada.[^31]There are cases where Canadian courts have qualified American experts without any issues whatsoever.[^32]

(iv) If the standard is the same (as proven by the credentialing by the board in both Canada and the United States), to which both Drs. Heinrich and Kelly base their standards and competence, Dr. Kelly’s evidence is clearly admissible and his evidence is to be given very strong weight.[^33]

(v) Courts have found that the locality rule should be abandoned, reflecting that standards of care and competence are uniform: “All the men practicing in a given locality might be equally ignorant and behind the times, and regard must be had to the present advanced state of the profession and the easy means of communication with, and access to the large centers of education and science”.[^34]

(vi) Similar standards of care between Canada and the United States and the reliance of similar credentialing bodies or resources including articles and studies have been relied on by many courts, based on education, training and expertise.[^35]

(vii) Dr. Kelly’s evidence was unopposed and the defendant physicians knew that they could not defend Dr. Heinrich on his failure to adequately communicate the possibility of a clot to Dr. Teoh, as their expert was not prepared to defend Dr. Heinrich on that point, so they chose not to call any expert evidence to defend Dr. Heinrich.

[31] The defendant physicians’ submissions regarding Dr. Kelly is that it is inadmissible for the following reasons:

(i) The only evidence led by the plaintiffs with respect to Dr. Heinrich’s care is that of an American cardiac anaesthetist. Quite surprisingly, Dr. Kelly, proffered for his expertise in reviewing echocardiography, did not review the intraoperative TEE. He also did not opine on Dr. Heinrich’s interpretation of the intraoperative TEE. Dr. Kelly’s opinion is limited: to the extent that Dr. Heinrich learned something new or which contradicted the preoperative differential diagnosis, Dr. Heinrich had a duty to tell Dr. Teoh; if he did not do so, then he fell below the standard of care. Dr. Kelly agreed that the surgical decision was then Dr. Teoh’s.

(ii) The challenge with Dr. Kelly’s opinion is twofold:

(a) first, Dr. Kelly is not a qualified expert and his purported evidence is a matter of fact (which is not the domain of an expert); and

(b) second, the unanimous and uncontradicted evidence is that Dr. Heinrich communicated his findings to Dr. Teoh.

(iii) There are two fatal flaws with respect to the admissibility of Dr. Kelly’s evidence:

(a) first, Dr. Kelly, is an American cardiac anaesthetist with no training, experience or certification in Ontario and is not qualified to opine on the standard of care of a cardiac anaesthetist in Newmarket in 2012. Dr. Kelly’s evidence was that he has never practiced, studied, trained or been certified in Ontario.[^36] He readily admitted that he has no experience in Canada or Ontario (attending court for his testimony was, in fact, the first time he had been to Ontario);[^37]

(b) second, Dr. Kelly’s evidence is not one which requires expert opinion at all: his opinion on whether Dr. Heinrich properly informed Dr. Teoh amounts to a factual finding, which is the domain of the trier of fact, not an expert.

(iv) That Dr. Kelly has extensive or internationally recognized experience in intraoperative echocardiography is of no moment in this case, because that is not the expertise he drew upon in reaching his opinion. He did not receive or review the films (and thus did not offer an opinion on Dr. Heinrich’s review of the echocardiography). A generous interpretation of Dr. Kelly’s opinion is that it is confined to operating room procedure; specifically, the sharing of information between a cardiac anaesthetist and a cardiac surgeon in an operating room in Newmarket in 2012 and the subsequent standards of documentation thereof. He testified that his understanding of the standard of care was informed by his review of the defendant physicians’ examination for discovery transcripts[^38], which is unsurprising given that he admitted he has never been in an operating room in Ontario nor seen any hospital charts from Ontario.[^39]

(v) This is not a case where Dr. Kelly’s echocardiography credentials enable him to offer the opinion he has given. Dr. Kelly may indeed be highly qualified in the interpretation of intraoperative echocardiography, but he did not interpret any in this case. The opinion of a physician on what ought to have and typically did transpire in a Newmarket operating room in 2012 is not within the expertise of a physician who has never practiced, trained or even seen the inside of an Ontario operating room.

ANALYSIS

[32] Dr. Kelly is not qualified to provide expert opinion evidence regarding the standard of care of Dr. Heinrich. Dr. Kelly’s opinion is strictly limited to the extent that if Dr. Heinrich learned something new or something which contradicted the preoperative differential diagnosis on the intraoperative TEE, Dr. Heinrich had a duty to tell Dr. Teoh; if he did not do so, then he fell below the standard of care. Dr. Kelly agreed that the decision to proceed to surgery was then Dr. Teoh’s. As I find below, it is clear that Dr. Heinrich communicated his findings to Dr. Teoh.

[33] It was not necessary for the defendant physicians to proceed with the evidence of their retained expert (who they called off), which is a decision I am assuming was made after hearing Dr. Kelly’s testimony. I agree that Dr. Kelly’s extensive or internationally recognized experience in intraoperative echocardiography is of no moment in this case, because that is not the expertise he drew upon in reaching his opinion. He did not receive or review the films (and thus did not offer an opinion on Dr. Heinrich’s review of the echocardiography). I further agree that a generous interpretation of Dr. Kelly’s opinion is that it is confined to operating room procedure; specifically, the sharing of information between a cardiac anaesthetist and a cardiac surgeon in an operating room in Newmarket in 2012 and the subsequent standards of documentation thereof. However, Dr. Kelly has admitted that he has never been in an operating room in Ontario nor seen any hospital charts from Ontario.[^40] Dr. Kelly is not proffering his opinion that the standards of sharing of information between a cardiac anesthetist and a cardiac surgeon in Newmarket in 2012 are deficient or negligent.[^41] Therefore, Dr. Kelly is not properly qualified. He does not have the expertise to opine on the standards of operating procedure in this case.

[34] Furthermore, parts of Dr. Kelly's opinion are not admissible because they improperly opine on issues properly left to the trier of fact. Dr. Kelly cannot opine on whether Dr. Heinrich properly communicated the possibility of a clot to Dr. Teoh.

[35] If I am incorrect regarding the admissibility of Dr. Kelly's evidence, no weight can be placed on his opinion.

C. Dr. Hill – Rehabilitation, Health and Counselling Psychologist

[36] After hearing submissions following the voir dire regarding Dr. Hill, I ruled that she could not provide an opinion on diagnoses or causation which fall within the purview of clinical and forensic psychologists. She is neither a clinical nor forensic psychologist. She is a rehabilitation, health and counselling psychologist. I was surprised to read and hear her opinions on both diagnoses and causation in this case.

[37] I am not going to repeat the attacks made on the defendant physicians’ counsel in the plaintiffs’ written submissions. They did absolutely nothing wrong. To the contrary, counsel for the plaintiffs proceeded to qualify his own expert to provide opinion evidence on which she was precluded by her college in providing. On reading the plaintiffs’ written submissions, I believe that counsel thought that I would be revisiting my ruling or perhaps just decided to forge ahead with setting out inadmissible evidence.

[38] To summarize what happened:

(i) The plaintiffs sought to tender opinion evidence from Dr. Hill with respect to Ms. Stepita’s clinical diagnoses and on the causal relationship between the surgery and Ms. Stepita’s mental health disorders. They were not permitted to do so because Dr. Hill lacks the necessary expertise in those areas.

(ii) The diagnosis of depression and/or anxiety requires expertise (and registration with the relevant regulatory body, the College of Psychologists of Ontario) as a clinical psychologist.[^42] Similarly, offering a causation opinion in legal proceedings requires expertise (and regulatory registration) as a forensic psychologist.[^43] Dr. Hill is neither.[^44]

(iii) On cross-examination of Dr. Hill on her qualifications, she acknowledged that:

(a) she does not have the professional credentials to provide a diagnosis of depression or anxiety; in fact, she is required to refer any suspected case of depression or anxiety to a clinical psychologist;[^45]

(b) despite not having credentials as a forensic psychologist and purporting to offer a causation opinion anyway, she also did not examine the patient nor document reasonable efforts she made to examine the patient, which is required by the guidelines for such opinions.[^46]

(iv) I did permit Dr. Hill to give opinion evidence on a treatment plan she recommended for Ms. Stepita based on her rehabilitation expertise. As will be seen below, that too became a huge shocking problem because Ms. Stepita’s counsel had authored the future care cost report.

D. Dr. Crowther – Cardiologist who provided opinion evidence regarding Dr. Dibble

[39] The plaintiffs challenged Dr. Crowther’s ability to provide evidence on the basis that he was biased and partisan because Dr. Crowther went to the same medical school and trained with Dr. Dibble over 25 years ago and because of partisan statements in his report.

[40] The plaintiffs’ submissions regarding Dr. Crowther, which read like a stream of consciousness between paragraphs 309 to 334 of their written submissions, are not being repeated. My ruling was that Dr. Crowther was neither biased nor partisan.

[41] The defendant physicians’ submissions accurately reflect the admissibility of Dr. Crowther’s evidence as follows:

(i) Whether there is bias or impartiality is a factual inquiry.[^47] Despite the plaintiffs’ submissions as to a “close personal relationship”, Dr. Crowther and Dr. Dibble have in fact spoken perhaps once since 1993 and have no ongoing relationship.[^48] As this court observed when the plaintiffs raised this issue during the trial, it is hard to believe that the fact that Dr. Crowther went to medical school with and had connection with Dr. Dibble in training in any way makes him unqualified.[^49]

(ii) With respect to the purported “partisan statements” in Dr. Crowther’s report, the plaintiffs identify two: first, where in summarizing the facts of the case, Dr. Crowther says “the central venous catheter is unrelated to the clot”.[^50] The plaintiffs did not cross-examine Dr. Crowther on what he means by this and it is unclear how this amounts to partisanship. Second, where Dr. Crowther states that he “would be very firm that a consultation with a hematologist was not required.”[^51] Despite being attributed to his report, this was actually from Dr. Crowther’s testimony in court.[^52] It is not a reflection of blind partisanship as the plaintiffs suggest; it is a reflection of the strength of his opinion.

STANDARD OF CARE

[42] The standard of care requires that a physician exercise the reasonable degree of care and skill of a normal, prudent practitioner of the same experience in the same circumstances.[^53] Physicians are not held to a standard of perfection.[^54] The law does not demand that physicians become guarantors of treatment results, nor does it demand infallibility.[^55]

[43] The appropriate standard of care is determined by the trier of fact. Expert evidence is required for the trier of fact to determine whether a physician has breached the standard of care, as a medical practitioner's conduct is not generally within a person's ordinary knowledge and experience.[^56] Where there are conflicting expert opinions, the trier of fact must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence.[^57]

[44] To succeed in an action for medical negligence, the onus is on the plaintiff to show that the physician has breached the standard of care of a reasonable and prudent physician of the same experience and standing, having regard to all of the circumstances of the case.[^58]

[45] The plaintiff's onus is to prove more than an error in judgment.[^59] A physician is not liable for an honest error of judgment provided they have exercised their judgment honestly and intelligently in the patient's best interests.[^60]Where, however, a physician fails to avail themselves of relevant clinical information or fails to obtain relevant consultations or test results, the failure to do so is not a mere error in their exercise of judgment, but constitutes negligence.[^61]

[46] The act of diagnosis “is, above all, an exercise of [a] physician’s judgment based on his training, experience and, perhaps, intuition.”[^62]Whether a physician has been negligent in their diagnosis or whether there has been a mere error of judgment is a fact-based inquiry determined on a case-by-case basis.[^63]A physician who acts in conformity with the standards of the profession will not be held liable for mere errors of judgment.[^64]The corollary is that a mistaken diagnosis alone is not sufficient to ground a finding of negligence.[^65]

[47] Where there are a number of different techniques available to treat the same medical condition, a physician is permitted to exercise their discretion in determining the best course of treatment for that particular patient.[^66] Negligence cannot be assumed simply because, viewed in retrospect, another course of action would have been preferable.[^67] As the court noted in Ball v. Amendola, “[d]ifferences of opinion are a common experience in the medical and other professions”.[^68] Rather, what must be found is that the course of action chosen by the defendant is not a choice which would have been made by a reasonable, competent physician in the circumstances.[^69]

[48] An unfortunate outcome does not constitute proof of negligence. The assessment of a physician’s care as against the standard cannot be retrospective. Courts should be careful not to rely on the perfect vision afforded by hindsight. Otherwise, the physician will not be assessed according to the norms of the average physician of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are only apparent after the fact.[^70]A plaintiff’s case which applies an outcome-based retrospective approach – working backwards to prove negligence based on the result – is fundamentally flawed in law and contrary to repeated admonitions in the case law.

STANDARD OF CARE ANALYSIS

A. Dr. Heinrich

[49] I note that the rambling and at times incomprehensible written submissions regarding Dr. Heinrich are based on clearly incorrect, misstated evidence alleging some sort of cover-up created by Drs. Teoh and Heinrich regarding what they saw and did not see during the surgery. Dr. Kelly opined on their interactions in the operating room and on the documentation. It has never been the role of any expert to be the finder of fact. That is left to either a judge or a jury.

[50] There is no qualified expert who opines that Dr. Heinrich fell below the standard of care in his interpretation of the intraoperative TEE. The only opinion is that if Dr. Heinrich made new or contradictory findings on the intraoperative TEE and did share his findings with Dr. Teoh, then Dr. Heinrich fell below the standard of care.

[51] Dr. Teoh was in the room for the intraoperative TEE, and he and Dr. Heinrich reviewed the images together for around 15-20 minutes. Dr. Heinrich was uncertain as to what the mass was: he thought it could be a tumor/myxoma, it could be a thrombus, or it could be a combination. Regardless, he thought it was a large, “ugly-looking” atrial mass that needed to be removed. It measured at least 4 x 3 centimeters by this time.

[52] I find that Dr. Heinrich told Dr. Teoh his findings and they talked about what they saw, because that is the point of the exercise of an intraoperative TEE. In his years of practice, Dr. Heinrich has never not shared his findings with the surgeon in a procedure like this. Both Drs. Heinrich and Teoh felt that the intraoperative TEE was consistent with the pre-surgical assessment – an unusual mass that needed to come out – and Dr. Teoh proceeded with the surgery.

[53] Similarly, both Drs. Heinrich and Teoh testified that Dr. Heinrich shared his findings of the intraoperative TEE at the time. Dr. Teoh reviewed the films alongside Dr. Heinrich in the operating room and they discussed them. Neither Drs. Teoh nor Heinrich have an independent recollection of this surgery, which is neither unusual nor surprising, but both testified that this is their invariable practice to talk during an intraoperative TEE, which is strong evidence that this is what they did in this case. This is consistent with Dr. Teoh’s operative note where he specifically describes the intraoperative TEE. The operative report was dictated the same day whereas the report of the intraoperative TEE was not finalized until the next day. Dr. Teoh was able to describe the intraoperative TEE because he reviewed it and discussed it with Dr. Heinrich.

[54] This evidence is uncontradicted. Dr. Kelly attempted to suggest that the two did not speak simply because it was not recorded in Dr. Heinrich’s note:

…There is nothing to state that Dr. Teoh was aware, or Dr. Teoh has been informed, or that this information has been communicated, surgeon aware. Um, it’s what we say in the United States.

[55] While that may be what is said in the United States, Dr. Heinrich’s evidence was that this is not something documented here in 2012. Moreover, it is unfathomable that Drs. Teoh and Heinrich stood together (so close that they were “probably touching”), reviewing the films together for about 15-20 minutes, without discussing what they were looking at. As Dr. Heinrich stated in cross-examination, reviewing the intraoperative TEE and sharing information with the cardiac surgeon is the reason he is in the room.

[56] Dr. Heinrich – like Drs. Dibble and Teoh before him – found a large, concerning mass, and shared that finding with Dr. Teoh. He felt it had to come out.

[57] The corollary of Dr. Kelly’s limited opinion is that if Dr. Heinrich did share his findings, he met the standard of care. Dr. Heinrich did share his findings; both Drs. Heinrich and Teoh agreed on this point. Accordingly, there is no basis to find that Dr. Heinrich breached the standard of care.

[58] After the surgery, Dr. Heinrich prepared a report of the intraoperative TEE. He recorded that he queried thrombus and queried tumor/myxoma with thrombus. The following day, pursuant to the hospital’s department protocol of having a second cardiac anaesthetist also review intraoperative films, Dr. Kim also reviewed the intraoperative TEE. He too, was uncertain as to what he saw on the films: he noted that the mass was suggestive of thrombus, but that cancer (i.e. malignant tumor) could not be ruled out.

[59] Dr. Teoh saw Ms. Stepita every day after the surgery while she was in the hospital. Her post-operative course was uneventful. The preliminary pathology findings were suggestive of thrombus, so Dr. Teoh requested a consultation with a hematologist, Dr. Luk, to discuss treatment with Ms. Stepita. Dr. Luk thought Ms. Stepita would benefit from anticoagulation if the final pathology findings confirmed the mass was thrombus despite the fact that it was entirely separate from the catheter.

[60] On August 22, 2012, the pathology findings confirmed an “organized thrombus”. Because it is so unusual to find a thrombus in the heart without thrombus on the catheter, Dr. Luk arranged for a CT to confirm that there was, in fact, no further mass (which would now be expected to be thrombus). Dr. Luk recommended anticoagulation to Ms. Stepita, who initially declined. In a subsequent consultation with hematologist Dr. Shafai, Ms. Stepita agreed to anticoagulation and was treated with low molecular weight heparin until the port-a-cath could be removed in 2013.

[61] Dr. Heinrich met the standard of care.

B. Dr. Teoh

[62] I have already found that Dr. Myers is not qualified to provide expert evidence regarding Dr. Teoh, or, if I am incorrect regarding admissibility, it is given no weight. In any event Dr. Masters, a cardiac surgeon, provided evidence on the standard of care regarding Dr. Teoh.

[63] I accept and rely upon the defendant physicians’ submissions regarding Dr. Masters in finding that Dr. Teoh met the standard of care, which include the following:

(i) Dr. Masters has practiced for over 30 years at the University of Ottawa Heart Institute, where he serves as the Quality Lead for the cardiac surgery program. He is a certified specialist of the Royal College of Physicians and Surgeons of Canada in cardiovascular and thoracic surgery. He has taught cardiac surgery to medical students and residents for 20 years and has served as a peer reviewer for cardiac surgeons for the College of Physicians and Surgeons of Ontario and for the College of Physicians and Surgeons of Nova Scotia.[^71]

(ii) Dr. Masters testified that Dr. Teoh met the standard of care in all aspects of his care for Ms. Stepita.[^72]

(iii) It was appropriate for Dr. Teoh to consider the opinion of the referring cardiologist Dr. Dibble, to perform an assessment of Ms. Stepita, and to remove the atrial mass.[^73]Dr. Teoh appropriately considered thrombus in his differential diagnosis, which he understood Dr. Teoh did because there are very few options for cardiovascular specialists to consider, and because the medical records specifically make reference to the location of the mass in relation to the catheter tip.[^74]Further investigation was not required.[^75]

(iv) Dr. Myers’ opinion is effectively confined to the diagnosis of the mass based on the clinical circumstances. Specifically, he testified, that it was unreasonable for Dr. Teoh (and Dr. Dibble) to conclude that Ms. Stepita’s right atrial mass was anything other than a thrombus. Dr. Myers testified that “a surgeon’s responsibility is also to review data in order to determine whether they’re going to put somebody through a cardiovascular operation”.[^76]

(v) The challenge with Dr. Myers’ opinion is that Dr. Teoh did, in fact, “review data”. He conducted an independent assessment. Dr. Myers may not have been aware of this at the time he formed his opinion, since prior to preparing his report he did not receive Dr. Teoh’s office chart[^77] nor Dr. Teoh’s examination for discovery transcript.[^78]However, Dr. Teoh in fact took the following steps so as to reach an opinion and exercise his clinical judgment:

(a) he reviewed the records sent by Dr. Dibble, including the June 15 TTE report which expressly references Dr. Dibble’s consideration of thrombus, and scheduled a prompt appointment with Ms. Stepita;[^79]

(b) he independently reviewed the June 27 TEE films;[^80] and

(c) he met with the patient to conduct a clinical assessment, including a history and physical examination.[^81]

(vi) Based on his independent review and assessment (including consideration of Dr. Dibble’s opinion, which is important),[^82]Dr. Teoh formed his opinion and developed a surgical treatment plan. He agreed with Dr. Dibble’s provisional diagnosis – that the mass was most likely myxoma (but could be something else) – and agreed that the mass was concerning because of its size, location, mobility and proximity to important heart structures. Dr. Teoh’s concern for hemodynamic disturbance and embolic risk informed his opinion that surgical resection was required.[^83]

(vii) Dr. Myers’ real criticism is, effectively, the same criticism that he makes of Dr. Dibble: that Dr. Teoh did not reach what Dr. Myers claims was a “blatant and obvious” conclusion that Ms. Stepita’s mass was thrombus. I have not found Dr. Myers’ opinion of Dr. Teoh to be admissible. In any event, the evidence of Dr. Masters prevails as follows:

(a) first, Dr. Masters is the only true peer of Dr. Teoh;

(b) second, Dr. Myers’ opinion was tainted by hindsight;

(c) third, Dr. Myers did not consider Dr. Teoh’s thinking in reaching his opinion; and

(d) fourth, Dr. Myers’ opinion that the nature of the mass was “blatant and obvious” is belied by the volume of physicians who looked at the mass and disagreed.

(viii) Drs. Teoh and Heinrich both testified that they would have discussed the findings of the intraoperative TEE before operating.[^84] Dr. Teoh said he would expect that Dr. Heinrich would tell him if something was inconsistent with the pre-surgical assessment; if Dr. Heinrich told him he was querying myxoma/tumor with thrombus or thrombus only, that would not be inconsistent with his pre-surgical assessment.[^85] Prior to surgery, Dr. Teoh agreed with Dr. Dibble’s provisional diagnosis of myxoma, but thought that the mass could be something else. Regardless, he thought that the mass “clearly needs surgical removal.”[^86]

(ix) Dr. Masters testified that the practice of cardiac anaesthetists and cardiac surgeons is to discuss the findings of an intraoperative TEE. He said the two physicians would be in very close proximity and would be communicating in respect of the imaging. The intraoperative TEE did not provide any new or contradictory information; rather, as Dr. Heinrich testified (and identified on the film itself at trial), the mass was large and concerning, having grown to at least 4 by 3 centimeters.[^87] It was appropriate for Dr. Teoh to proceed with surgery.[^88]

(x) While the plaintiffs appear to criticize Dr. Teoh for proceeding with surgery after the intraoperative TEE, no expert (not even Dr. Myers) opined that this was below the standard of care.

[64] Dr. Teoh met the standard of care.

C. Dr. Dibble

[65] The plaintiffs’ submissions regarding Dr. Dibble are repetitive and scattered throughout the 121‑page submission. The plaintiffs' allegations that Dr. Dibble was lying and misleading the court were uncalled for and without merit. Below, I reproduce certain parts of the submissions. They include the following (note that some include Dr. Teoh whom I have already found met the standard of care):

(i) Dr. Dibble admitted in his discoveries that he told Dr. Rask that he suspected a myxoma that needed surgical removal before June 20, 2012. There would be no need for him to convey this information to Dr. Rask verbally again as he would be seeing Ms. Stepita on June 27, 2012 and then sending Dr. Rask his consultation report, which duplicated the information he conveyed to her verbally and confirmed his plans that he suspected a myxoma that clearly needed surgical removal after the transesophageal echocardiogram without doing any CT scan, MRI, or any consultation with any other physician or thrombosis specialist, or commencing the appropriate anticoagulation treatment.

(ii) Although Dr. Dibble tried to lie and mislead the court about when and what he told Ms. Stepita on and before June 27, 2012, emails sent by Ms. Stepita on June 20 and 26, 2012 do not lie. These emails confirm that Ms. Stepita actually did receive the information from Dr. Dibble through Dr. Rask on June 20, 2012, that Dr. Dibble suspected a myxoma that clearly needed surgical removal. After receiving this information, Ms. Stepita communicated her fear of having to have cardiac surgery and had the panic attack and needed to leave work before seeing Dr. Dibble on June 27, 2012.[^89]

(iii) No defendant physician ever told Ms. Stepita there was even a possibility of a clot. Dr. Dibble lied in his testimony. Dr. Teoh admitted he did not disclose that there was even a possibility of a clot.

(iv) Dr. Dibble referred Ms. Stepita to Dr. Teoh for a “suspected myxoma that clearly needed surgical removal” and Dr. Teoh carelessly based his findings and treatment on Dr. Dibble’s recommendation.[^90]

(v) However, a clot, which was by far the most likely diagnosis, fell off their differential diagnosis or was not considered at all and was not considered in any of their consultations, the TEE echocardiogram report, Dr. Dibble’s office records, Dr. Dibble’s referral to Dr. Teoh, Dr. Teoh’s consultation letter to Dr. Dibble and any of Dr. Teoh’s own office records.[^91]

(vi) The desperation and spectacle of the after the fact testimony of the defendant physicians, and their unscrupulous partisan experts was a travesty of doctored evidence after the fact, as none of it is contained in the actual medical record, so they had to try to contrive something through dishonest methods and a lack of credible or reliable evidence, which is consciousness of guilt after the fact. If things actually happened, it would have been documented in the medical record.

(vii) The suspicion of a blood clot should have been obvious. It was by far the most likely possibility. The defendant physicians inadequately considered the possibility of the clot, and did not consider it as the most likely, if not overwhelmingly likely, diagnosis. The defendant physicians did not even consider the clot as even a possibility, as it fell off their differential diagnosis.

(viii) If they would have considered the clot as a possibility, they would have told Ms. Stepita about that possibility, but they never did. They would have also arranged further investigations (CT or MRI) to distinguish the clot from myxoma, consulted other specialists (thrombosis specialist, hematologist etc.) and started appropriate anticoagulation treatment.

(ix) On August 9, 2012, Dr. Teoh wrote to Dr. Dibble and stated, “I will remove her right atrial tumor[^92] through a right thoracotomy”. There was no consideration of a possible clot whatsoever and it was not part of their differential diagnosis.

(x) Dr. Dibble admits that he knew about the past to develop a plan of care, including that there was no abnormality whatsoever in the January 16, 2012 echocardiogram.[^93]Dr. Dibble then admits that he knew that Ms. Stepita had a port-a-cath when he saw her, which was inserted on February 28, 2012.[^94] That is well-known to cause blood clots and the clot appeared only after the port‑a‑cath was placed.[^95]

(xi) Drs. Teoh and Heinrich also fully accepted and knew there was nothing in the January echocardiogram and the abnormality appeared in March after the port‑a‑cath was inserted, which makes someone at increased risk of clotting along with cancer.[^96]

(xii) Dr. Dibble didn’t think that a metastasis was likely,[^97] however he knew she was on tamoxifen, had cancer and doxorubicin,[^98] along with the port-a-cath, that he knew all caused clots.

(xiii) Dr. Dibble also knew that the mass he saw on the echocardiograms did not change and looked similar.[^99]

(xiv) Furthermore, Dr. Dibble knew a myxoma is typically found on the septum and usually in the left atrium, which was not the location for what he was seeing on the echocardiogram with Ms. Stepita and that myxomas are uncommon.[^100]

(xv) Furthermore, Dr. Dibble did not see features that the mass was pedunculated or mobile in his TEE report.[^101]

(xvi) Dr. Dibble had obviously negligent and anchored thinking when he did not even appreciate that medications Ms. Stepita had been on shortly before he saw her caused the clot, suggesting that he believed Ms. Stepita's chemotherapy treatment was no longer relevant, which makes absolutely no sense.[^102]

(xvii) There is a clear admission of negligence that he never actually considered even the possibility of a clot and negligently prematurely dismissed a clot as even a possibility, as he does not even mention it once in his detailed consultation note to Dr. Rask on June 27, 2012 and his referral to Dr. Teoh on June 29, 2012.[^103]

(xviii) Dr. Dibble's answer to why he did not include the possibility of a clot in his comprehensive consult and referral is that “I think Dr. Teoh would know that a clot is a possibility, and that he does not need to teach him about various differential diagnos[es] might be in this case”.[^104] Dr. Dibble was negligent and made assumptions about what another physician may or may not consider without even talking to them.

(xix) Dr. Dibble also never discussed with Dr. Rask that he believed there was a possibility that there was a clot but notwithstanding he would be sending Ms. Stepita directly to surgery and used the same highly inappropriate rational that he assumed Dr. Rask would know about a clot as part of the differential diagnosis.[^105]

(xx) Dr. Teoh admits that the referral was for a myxoma or a secondary tumor.[^106] The patient was not referred to Dr. Teoh for thrombus or not even a possible thrombus. Dr. Dibble’s thinking was this was a myxoma.[^107] This is supported by the consult and referral notes of Dr. Dibble.[^108]

(xxi) At discharge, Dr. Teoh wrote: “The initial impression was that of a benign tumor, possibly a myxoma, therefore she was a candidate for exploration of right atrium and removal of mass.” There is no mention that they operated because it was a clot or that there was a possibility of a clot.[^109]This is documented clearly in the operative report and is in two different discharge summary reports.

(xxii) It speaks to the fact that they cannot defend themselves based on a failure to adequately consider the clot, so they have to try to use a shotgun approach to their defence, which has absolutely no merit and undermines their credibility.

(xxiii) The suggestion that Dr. Dibble could negligently rely on what he thought he saw is undermined by other physicians who, during the very same type of investigation TEE, like Dr. Heinrich before the surgery, and Dr. Kim who looked at the same imaging on the TEE, did not agree with Dr. Dibble that this was “a myxoma that clearly needs removal.” Dr. Dibble thought it had characteristics of a tumor, while Drs. Heinrich and Kim did not agree and included a clot.

(xxiv) There was also evidence that Dr. Dibble inappropriately exaggerated the mobility of what he said was a myxoma that clearly needs surgical removal. He failed to report anything about the mobility on the TEE on June 27, 2012, unlike Drs. Heinrich and Kim who documented it was immobile.[^110] Broad-based masses are generally immobile and it was not attached by a stalk so as to allow independent mobility of the mass on top of movement one sees when the heart is moving, which is not mobility. It goes from not reporting about mobility at all, to a bit of mobility, to the mass is mobile, with Dr. Teoh seemingly adopting the concept and further exaggerating by stating it is then quite mobile.[^111]

(xxv) Dr. Myers gave clear, objective, and reliable evidence that both Drs. Dibble and Teoh fell below the standard of care in failing to adequately consider the possibility of a clot resulting in unnecessary open-heart surgery.[^112]

(xxvi) He was eminently qualified to give standard of care evidence about the standard of care of the diagnosis and treatment of right atrial clots and tumors including the proper indications for surgical management.[^113]

(xxvii) Dr. Myers was much more qualified and by far a much more credible witness as compared to Dr. Weeks or any other defendant physician expert. Dr. Myers did formal echocardiography and transesophageal echocardiogram training in Toronto and Boston and does transesophageal echocardiograms. Dr. Weeks is not even qualified to do transesophageal echocardiograms and has never done one, and apparently Dr. Dibble claims he felt he suspected the myxoma that needed surgical removal based on so-called appearance looking at the imaging, even though Drs. Heinrich and Kim thought it looked by appearance like a clot. Dr. Weeks is not even qualified to assess transesophageal echocardiogram, and Dr. Weeks’ evidence should be given zero weight, such that the position of Dr. Dibble is not defensible by any expert evidence.

(xxviii) Dr. Myers’ expert evidence was that the clot was overwhelmingly the most likely diagnosis and that it fell off the differential diagnosis of both Drs. Dibble and Teoh, in that they both demonstrated anchored thinking. Dr. Myers’ also opined that even if they did consider it, their management was still negligent by not doing any investigation to distinguish a clot from myxoma and referring to a thrombosis specialist for anticoagulation.

“So there’s an error either in saying there is no blood clot, but there’s also, in my opinion, an error or something that fell below the standard by saying, well, it could be a blood clot, but I don’t think it is so I’m just going to send the patient for surgery. So each of those are to me troublesome.”[^114]

(xxix) Dr. Myers' evidence on standard of care was that it was inappropriate and also implausible that a clot should have been excluded from adequate consideration due to the fact that there was nothing whatsoever on the echocardiogram prior to the port-a-cath being inserted, and that it appeared only after the port-a-cath was inserted and did not change from March to June.[^115]Furthermore, the location for myxoma was not at all characteristic [of myxoma, as the mass was located] in the right atrium instead of the left and on the lateral wall rather than attached to the septum. Ms. Stepita had a number of risk factors for a clot including the port-a-cath, cancer, the chemo, tamoxifen and inflammatory bowel disease.[^116]Dr. Myers was very critical of both Drs. Dibble and Teoh for not performing any other investigations including CT, MRI or consulting with a thrombosis specialist or hematologist about nonsurgical options.[^117]

(xxx) Dr. Myers opined that there was ample time for investigation like cardiac MRI and was available to Drs. Dibble or Teoh by simply calling to arrange and was available as an option even at Southlake prior to and where the operation took place.

(xxxi) Dr. Myers also opined that, based on the record that he was referring to, this was a small clot,[^118] and surgery was done for a suspected myxoma that clearly needed surgical removal and for no other apparent indication based on the records, nor did the defendant physicians at any time prior to the surgery report anything different.

(xxxii) Dr. Myers’ opined that the accepted treatment for Ms. Stepita was medical, not surgical, treating with anticoagulation or blood thinners.[^119] Dr. Myers, as an alternative to imaging, opined that the appropriate standard of care was to provide anticoagulation and it would have shrunk the clot and would have confirmed the diagnosis and surgery was not at all indicated.[^120]

(xxxiii) Dr. Myers’ opinion evidence against both Drs. Dibble and Teoh should be given very strong weight. Dr. Myers was highly objective, knowledgeable and reputable expert and was overwhelmingly much stronger by far and much more credible than any of the defendant physicians’ experts, including Dr. Masters, who completely evaded the topic of whether or not it is appropriate to do cardiac surgery for possible blood clots.[^121]Dr. Myers’ opinion that both Drs. Dibble and Teoh’s care fell below the standard and were negligent [and] should easily meet the threshold on balance of probabilities.

[66] The defendant physicians’ submissions regarding Dr. Dibble include the following:

(i) Dr. Weeks, like Dr. Dibble, is a community cardiologist. He has been practicing cardiology for over 35 years and has held numerous senior administrative roles in hospitals in both Thunder Bay and Norfolk County, including Chief of Medicine, Chief of Cardiology and Chief of Staff. He has served as a peer reviewer for the College of Physicians and Surgeons of Ontario for a decade, providing opinions to the College on whether cardiologists are practicing in accordance with accepted standards.[^122]

(ii) Dr. Weeks is supportive of Dr. Dibble’s care in this case and has testified that it met the standard of care. Dr. Weeks gave evidence that Dr. Dibble’s differential diagnosis, which included tumor (myxoma and malignancy) and thrombus, was reasonable given the features of the mass.[^123] He agreed with Dr. Dibble’s differential diagnosis.[^124]

(iii) Dr. Weeks opined that a referral to a cardiac surgeon was appropriate and met the standard of care for two reasons: first, because there was uncertainty as to the nature of the mass and surgery is a definitive diagnosis which can inform appropriate treatment; second, the mass was concerning and it was appropriate to remove it in light of the potential complications (including embolism).[^125] Dr. Weeks testified that surgical resection was appropriate after the June 15 TTE and June 27 TEE without recourse to further diagnostic tools.[^126]

(iv) In contrast to Dr. Weeks, Dr. Myers is a cardiologist at a tertiary care centre in Toronto.[^127] His opinion in this case is confined to the view that thrombus ought to have been considered or considered more highly, and if that had been done, there would have been other steps taken.[^128]Dr. Myers conceded that his opinion was not that surgery would have necessarily been ultimately avoided, but that Dr. Dibble would have taken other steps.[^129]

(v) The plaintiffs suggested at trial that Dr. Weeks is not qualified to give opinion evidence because he did not perform TEE himself in his own practice. This is a surprising attack on an expert in a case where there is no allegation that Dr. Dibble’s performance of the June 27 TEE was below the standard of care in any manner. To the extent that there is a dispute regarding the June 27 TEE (and, as set out below, there is not), it is limited to the interpretation of the film. However, “cardiac ultrasound or echocardiography is imaging of the heart. The heart does not change just because of the procedure you do”.[^130] His substantial expertise included reviewing all echocardiography.[^131]

(vi) Further, there is not in fact any dispute in this case regarding the interpretation of the June 27 TEE. While Dr. Myers apparently was provided with and reviewed the films of the echocardiograms, he did not give the opinion that Dr. Dibble’s interpretation of the films was substandard in any manner. In fact, Dr. Myers offered no opinion on Dr. Dibble’s interpretation of the appearance of the mass at all. Rather, Dr. Myers’ opinion is that Dr. Dibble ought to have concluded the mass was thrombus based on clinical circumstances alone:

Q. And so the -- your -- the cut and thrust of your opinion isn’t about what was on the films at all. You don’t actually provide an opinion of what you see on the films. The cut and thrust of your opinion is the clinical picture, right?

A. Yes.[^132]

(vii) Dr. Myers testified that he understood that it was important to set out his concerns and criticisms in his report to the extent he had them, and that he did so.[^133] Accordingly, given that Dr. Myers reviewed the films and said nothing of Dr. Dibble’s assessment of the appearance of the mass, he must be taken to agree with it.

(viii) Both Drs. Weeks and Myers agree that Dr. Dibble met the standard of care in identifying the mass on the June 15 TTE, contacting Dr. Rask for an urgent referral, and in conducting a clinical assessment and further investigation by way of the June 27 TEE.[^134]

(ix) Drs. Weeks and Myers also agree that surgery is the appropriate treatment for a myxoma, and that where a cardiologist concludes a mass is likely myxoma, it is appropriate to refer the patient to a surgeon.[^135] Importantly, they both also agree that surgical treatment is appropriate for some known thrombus, depending on various factors like size and clinical circumstances.[^136]

(x) The issue on which they part ways is narrow: Dr. Dibble’s diagnosis and the resulting treatment recommendation.[^137]

(xi) The experts agreed that where there is a mass in the right atrium, the options are few: tumor, thrombus, and perhaps vegetation (though they agreed it was clear that this mass was not a vegetation and this was appropriately not considered in this case).[^138]

(xii) Dr. Dibble’s evidence was that thrombus is always in the differential diagnosis of a cardiac mass, as was in this case.[^139] He expressly indicated in his records that he considered thrombus:

(i) in his report of the June 15 TTE, Dr. Dibble used the word “thrombus” (stating that it was less likely);[^140]

(ii) after performing the June 27 TEE, Dr. Dibble expressly considered thrombus by advising Dr. Rask that the tip of the catheter was “separate from this mass”.[^141] The plaintiffs’ thrombus expert, Dr. Geerts, agreed that this is what is being communicated when a physician references the catheter tip:

Q. Can we agree that the reason that a physician is commenting specifically on the catheter tip is because they’re looking and thinking about thrombus?

A. Yes.

Q. And, so that is evidence to us as the reader that that, of a thought process going on in their mind?

A. Yes.[^142]

(xiii) Dr. Dibble did not use the word “thrombus” in his referral letter to Dr. Teoh because he did not need to teach Dr. Teoh – an experienced cardiovascular specialist – the differential diagnosis of an intracardiac mass. He said in his referral letter that he was “most suspicious” that the mass was a myxoma (which necessarily implies that he is less suspicious of something else, which in this case could only be thrombus). As Dr. Dibble stated on cross-examination, “When I say possible myxoma as compared to other options, he knows the other options.”[^143]

(xiv) Dr. Dibble’s expectation as to what Dr. Teoh would understand from the referral was correct. Dr. Teoh reviewed all the materials and understood that Dr. Dibble thought the mass was likely a tumor and also considered thrombus, but thought it was less likely.[^144]

(xv) Dr. Myers agreed that diagnosis is an exercise of clinical judgment.[^145] He specifically agreed that Dr. Dibble undertook an honest and intelligent exercise of clinical judgment in this case.[^146]This alone is sufficient to end the case against Dr. Dibble.

(xvi) Dr. Myers’ evidence was that in reviewing an echocardiogram, a physician is engaging in clinical judgment in interpreting what he or she sees. He testified that physicians can disagree on clinical judgment: if ten different physicians were shown images, they could all reach different opinions and they could all be reasonable.[^147]

(xvii) Despite this, Dr. Myers criticizes Dr. Dibble for not having reached the same conclusion he did. Dr. Myers claims that it was “blatant and obvious”[^148] the mass was a thrombus from the clinical circumstances, in spite of the imaging (which begs the question: why do imaging?).

(xviii) That it was “blatant and obvious” is belied by the sheer number of physicians (each of whom have each been practicing for about 25-35 years) who testified that they have never before seen a thrombus that looks like the one at issue in this case.[^149]Unlike Dr. Myers, those physicians all considered that this mass was entirely separate from the in-dwelling catheter, whereas almost all catheter‑associated thrombus are attached to it.[^150] Dr. Myers never grapples with this fact (despite it being, as Dr. Geerts stated, the most important thing to look at when assessing whether a mass is a clot or not).[^151] Instead, Dr. Myers simply says that everyone else is wrong:

Q. So you’re right and they’re all wrong, that’s your opinion?

A. My opinion about what specifically?

Q. Your opinion about the fact that anybody looking at this tumor would have known blatantly...

A. This tumor or this mass?

Q. ...or this mass would have known blatantly and obviously that it was a clot and not a myxoma?

A. I think that that's correct, anybody looking at this would have known that it was a blood clot.[^152]

(xix) When confronted with the volume of physicians who did not share his view that it was “blatant and obvious”, Dr. Myers said:

Well, you know, it’s interesting, it sounds like a numbers game and it reminds me of that aphorism, if a lot of people believe a dumb thing, it’s still a dumb thing.[^153]

(xx) In this case, Ms. Stepita’s right atrial mass was unusual. It was described variously at trial by those who looked at it as “large”[^154], “concerning”[^155], “ugly” [^156], “unusual”[^157], a “rare bird”[^158], a “zebra”[^159], and a “once-in-a-career”[^160] mass. Both of the cardiology experts who testified agreed that right atrial masses are rare phenomena.[^161]

(xxi) Nevertheless, Dr. Myers says that (a) the clinical circumstances ought to have been enough to diagnose thrombus, and (b) the pace of the growth of the mass ought to have indicated it was less likely a myxoma:

(a) With respect to clinical circumstances, there is no dispute that Ms. Stepita was prone to clotting: she had cancer, received Tamoxifen, had a port‑a‑cath, and ulcerative colitis.[^162] Dr. Dibble was aware of and considered Ms. Stepita’s clinical picture.[^163] Despite Dr. Myers’ submission that clinical circumstances pointed to a “blatant and obvious” diagnosis, Dr. Myers ultimately conceded that it is important for physicians to consider rare causes in the face of seemingly obvious diagnoses; and[^164]

(b) With respect to the growth of myxoma, Dr. Myers suggested that the mass did not grow in a manner that would be expected of myxoma, but conceded that there is very little known about the growth patterns of myxoma. He agreed that this is because “when we find them, we operate on them”.[^165]

(xxii) Accordingly, even though Ms. Stepita was prone to clotting, Dr. Dibble used his eyes and looked at the actual appearance of the mass, which is important in diagnosis.[^166]

(xxiii) Importantly, there is no dispute in this case that the appearance of the mass was most suggestive of myxoma. Not a single expert gave a contrary opinion on the appearance of the mass.

(xxiv) Dr. Dibble considered the patient’s clinical circumstances together with the appearance, size and location of the mass. He considered that Ms. Stepita was prone to clotting, but that this mass was separate from the catheter tip, which, as Dr. Geerts opined, is the most important thing to look for when considering whether a mass is thrombus.[^167] Dr. Dibble concluded that the unusual mass looked most like a myxoma, and not a single expert at trial testified otherwise.

(xxv) Dr. Dibble gave appropriate thought to all of the relevant considerations. He reached a reasonable provisional diagnosis on the basis of the information he had available to him. This was an appropriate exercise of clinical judgment in accordance with the standard of care.

(xxvi) In the circumstances, Dr. Dibble’s referral to a cardiac surgeon was a reasonable exercise of clinical judgment. He thought the mass was most likely myxoma, which the experts agree is an appropriate indication for surgery.[^168] He also thought that regardless of what the mass was, it needed to be removed: it was large,[^169] posed an embolic threat,[^170] and was at least three months old (which means that it would not likely have resolved with medical treatment).[^171] The treatment plan was appropriate and met the standard of care.

(xxvii) However, even if Dr. Dibble had found the mass was most likely thrombus (as Dr. Myers opines he ought to have), a referral to a surgeon was still appropriate. Dr. Dibble’s evidence was that he thought the mass was most likely a myxoma but that the mass required surgical removal regardless.[^172]Dr. Weeks agreed: his opinion was that the surgery was necessary both to definitively diagnose the mass and to avoid the potentially severe risks posed by the mass.[^173] Even if Dr. Dibble had thought the mass was thrombus, a cardiac surgery referral would still have been appropriate because of the risks.[^174] Dr. Weeks said that the nature of the mass presented a situation where “it had to get out.”[^175]

(xxviii) Importantly, Dr. Myers agrees that surgical treatment is appropriate even for some known thrombus (known meaning, for example, if it was attached to the in‑dwelling catheter and there was no dispute it was thrombus on the imaging), depending on various factors like size and clinical circumstances.[^176] Dr. Myers agreed that this, too, is a matter of clinical judgment.[^177]Scrutiny of his evidence reveals that he simply disagrees with Dr. Dibble’s clinical judgment in this case:

(b) Second, Dr. Myers agreed that the embolic threat of a mass is a consideration in determining appropriate treatment. He disagreed that this mass posed an embolic threat but conceded that this is a difficult (and appropriate) assessment for a physician to make.[^184]

(xxix) It was appropriate for Dr. Dibble to refer the patient for a surgeon without ordering tests or making a referral to a hematologist where it would not have altered his recommended treatment. Dr. Dibble testified that he did not order further diagnostic tests because he does not order tests that will not affect his management of a patient’s care (which Dr. Myers agreed is the main reason a doctor does a test).[^185] This included a cardiac MRI, which was not available in Barrie in 2012 in any event.[^186] Dr. Weeks agreed, testifying that it was appropriate to refer Ms. Stepita to a surgeon without resort to further diagnostic investigations or referral to a hematologist which, like with attempting other treatments, would have resulted only in delaying definitive treatment.[^187]

(xxx) Dr. Myers testified that a cardiac MRI “would have been helpful to elucidate the mass more clearly”. He also said that had Ms. Stepita been his patient (at his tertiary care centre in Toronto), he would have contacted a cardiac MRI facility to arrange for something quickly.[^188] What Dr. Myers would do if the patient were in his care, however, does not establish what the standard of care is required of a community cardiologist in Barrie in 2012. The standard of care is not determined by what an expert would himself do in a particular situation.[^189]

(xxxi) Moreover, while Dr. Myers asserted that Dr. Dibble ought to have consulted a hematologist, it is not because it is required for diagnosis. Rather, Dr. Myers’ evidence was that consultation with a hematologist is appropriate for discussing medical management of a known blood clot (which this mass was not).[^190]Notably, the only hematologist who testified in this case, Dr. Crowther, said that a hematology referral was not required and would not have altered the course of care.[^191]

(xxxii) On the narrow issues in this case where Dr. Weeks’ opinion is at odds with that of Dr. Myers, Dr. Weeks’ evidence ought to be preferred for six reasons:

(a) First, Dr. Myers is not a peer of Dr. Dibble. He is a cardiologist at a tertiary care centre, whereas Dr. Dibble (like Dr. Weeks) practices at a community hospital. Dr. Myers agreed that Dr. Dibble’s knowledge and training is from the perspective of a community cardiologist.[^192]

(b) Second, Dr. Myers’ opinion was tainted by hindsight: he knew the outcome (the mass was organized thrombus) at the time he formed his opinion.[^193]Dr. Myers agreed that his review is a different exercise than the one in which the defendant physicians were engaged at the time they provided the care at issue. He agreed that he had information that influenced his opinion.[^194]

(c) Third, unlike Dr. Myers, Dr. Weeks considered the actual appearance of the mass in reaching his opinion. Dr. Myers candidly acknowledged that his opinion was based on clinical circumstances.[^195] Notably, this cannot be reconciled with his opinion (and indeed a major tenet of the plaintiffs’ case) that further imaging of the heart (like cardiac MRI) ought to have been done to take another look at the mass[^196], since Dr. Myers was not guided in his views at all by looking at the mass on imaging.

(d) Fourth, Dr. Myers did not consider Dr. Dibble’s thinking in reaching an opinion criticizing the differential diagnosis. Despite agreeing that just because something is not written down does not mean that it was not considered,[^197]Dr. Myers did not review or consider the defendant physicians’ examination for discovery transcripts in preparing a report of his opinion.[^198]

(e) Fifth, Dr. Myers’ opinion that it is “blatant and obvious” that the mass was thrombus is simply not credible. Dr. Myers testified that Drs. Dibble, Teoh, Heinrich, Weeks, Masters, Crowther and even Rask were all wrong to not immediately diagnose the mass in Ms. Stepita’s heart as a thrombus. Perhaps Dr. Myers would have concluded in advance that the mass was thrombus (though it is, of course, impossible to know when he had the benefit of a known pathology diagnosis in offering that testimony); however, there are at least seven very experienced physicians who did not find it “blatant and obvious”, which is instructive.

(f) Sixth, Dr. Myers opined that physicians are required to pursue the most likely explanation.[^199] He is wrong. The courts have found negligence where physicians have persisted in treating the more probable diagnosis instead of ruling out the less likely but more severe diagnosis.[^200] If physicians “were to diagnose based on probability, rare and severe ailments would be regularly ignored.”[^201] Here, had the defendant physicians identified this “once in a career” mass, assumed it was thrombus (ignoring the imaging characteristics suggestive of a tumor) and not removed it, Ms. Stepita may well have missed a treatment window or suffered severe complications had it in fact been a tumor as its appearance suggested. The allegation would then have reasonably been that “anchored thinking” – treating the more probable diagnosis (thrombus) instead of ruling out the less likely but more severe one (myxoma) – was negligent.

[67] For the above six reasons, Dr. Weeks’ evidence is preferred over that of Dr. Myers. I accept and rely upon the defendant physicians' submissions in finding that Dr. Dibble's conduct in assessing the mass as most likely a myxoma and referral to Dr. Teoh for surgery met the standard of care of a prudent and diligent physician in the same circumstances.

[68] I do not accept the plaintiffs' submission that thrombus was inadequately considered by Dr. Dibble. I believe Dr. Dibble's evidence that thrombus is always part of the differential diagnosis when there is a cardiac mass. Further, I accept that Dr. Dibble adequately considered the possibility of a clot when he referred to thrombus as a consideration in his June 15 TTE report, and when he commented on the catheter tip being separate from the mass.

[69] I do not accept Dr. Myers' opinion that thrombus was the "most likely" or the "blatant and obvious" diagnosis, and therefore Dr. Dibble fell below the standard of care in concluding the mass was myxoma. A physician does not fail to meet the standard of care because, with the benefit of hindsight, another diagnosis would have been preferable. What must be assessed is whether a physician exercised their judgment fairly in light of what they knew or ought to have known at the time. I accept that there were several concerning features of the mass that went against the conclusion that the mass was "overwhelmingly likely" thrombus and reasonably supported a diagnosis of myxoma, including the separation of the mass from the catheter tip, the mass' appearance in imaging, and the mass' unusual size and location.

[70] Given that I find Dr. Dibble met his standard of care in concluding the mass was most likely myxoma, I also accept that the referral for surgery was a treatment decision that met the standard of care. At the time, a referral for surgery was the appropriate treatment for a suspected myxoma. Even if Dr. Dibble concluded the mass was most likely thrombus, a referral for surgery was still appropriate in light of other clinical circumstances, such as the severe risks posed by the mass's unusual location and large size, and that medication may not have sufficiently treated the mass given its age and organization. That Dr. Dibble did not refer Ms. Stepita to a hematologist or order further diagnostic tests does not displace the conclusion that he met the standard of care in referring Ms. Stepita for surgery. I accept Dr. Crowther's evidence that a referral to a hematologist was not required in these circumstances. I also accept Dr. Weeks' evidence that further diagnostic tests, like an MRI, were not necessary and would have delayed treatment.

[71] Dr. Dibble met the standard of care.

CAUSATION

[72] Even if a physician is found to have breached the applicable standard of care, a plaintiff’s claim will fail unless she can establish that the breach of the standard caused her injuries. The test for showing causation is the “but for” test.[^202] The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.[^203] The causation test is not to be applied too rigidly. It is a factual inquiry that should be assessed using ordinary common sense.[^204]

[73] Proof that meeting the standard of care would have afforded a chance to avoid the outcome at issue is not sufficient.[^205] A claim that amounts to “loss of chance” is not compensable in medical malpractice cases.[^206] The plaintiff’s burden is to show that, absent the breach, the actual outcome would likely have been materially better.[^207] As stated by the Ontario Court of Appeal:

It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of “more likely than not.”[^208]

[74] While the courts have endorsed a “robust and pragmatic” approach to the question of causation, a plaintiff is still required to prove that the injury was caused by the negligence of the defendants. The “robust and pragmatic approach” is not a substitute for factual evidence of causation.[^209]

[75] Two doctors were called on causation, Dr. Geerts for the plaintiffs and Dr. Crowther for the defendant physicians.

[76] The plaintiffs’ submissions on causation include the following:

(i) Dr. Geerts provided the necessary reliable opinion evidence that the defendant physicians’ negligence caused the unnecessary surgery.

(ii) Causation is easily met here. But for the failure to adequately consider the possibility of a clot, Ms. Stepita would have been successfully treated with anticoagulation and would not have required cardiac surgery. Even if there was uncertainty, she would have been treated with anticoagulation and this is highly successful in dissolving clots and surgery is not at all required, as once the port‑a‑cath is removed the anticoagulation would be discontinued even if a clot remained in the heart. Surgery would never have been done if the defendant physicians turned their mind to the possibility of clot.

(iii) Cardiac surgery would never be done on asymptomatic clots and would only be done extremely rarely and exceptionally in situations where there were actual hemodynamic consequences that were occurring and only with immediate emergency cardiac surgery, which was never the case with Ms. Stepita. There were no hemodynamic consequences. She was asymptomatic and there was no emergency to take her immediately for surgery (the condition had remained for five months.) There was no appropriate indication for cardiac surgery for her asymptomatic clot, which clearly falls below the standard of care and acceptable standards of medical practice. Cardiac surgery was completely inappropriate and careless. The reason the unnecessary cardiac surgery took place was a result of carelessness because the defendant physicians thought this was a myxoma that clearly needed surgical removal and they did not even consider the possibility of the clot.

(iv) Similar to Dr. Myers, Dr. Geerts, in reviewing all the materials, prospectively believed that, in these particular circumstances, a right atrial thrombus was the much more and overwhelmingly most likely diagnosis, in comparison to a myxoma. Dr. Geerts is also critical of the defendant physicians not doing any further imaging to distinguish clot from myxoma.[^210]

(v) Dr. Geerts unequivocally believed that Ms. Stepita should have had treatment with anticoagulation, not resection for this thrombus.[^211] Dr. Geerts opined that but for the inadequate differential diagnosis, unnecessary surgery was performed.[^212] Dr. Geerts opined that imaging would have, with a high probability, been successful in distinguishing clot from myxoma. Particularly, MRI is 95% successful in distinguishing clot from myxoma and was readily available in 2012. Even in the unlikely situation that one could not distinguish the clot by MRI, anticoagulation would still be given, as the clot would have reduced in size, gone away or stayed unchanged, without the need for any cardiac surgery.[^213]

(vi) Dr. Geerts believed that that the probability of Ms. Stepita having a clot was so high, he would have started anticoagulation immediately, while waiting for further diagnostic testing.[^214]

[77] The defendant physicians’ submissions on causation include the following:

(i) It is not sufficient for the plaintiffs to establish that a different provisional diagnosis of the mass or other investigative steps (like an MRI or a referral to a hematologist) would have afforded Ms. Stepita a better chance at avoiding surgery to remove her right atrial mass. They must establish that it is more likely than not the surgery would have been avoided but for the substandard care provided by the defendant physicians.[^215]

(ii) The plaintiffs have advanced various theories with respect to causation. Importantly, however, Dr. Myers conceded that it is not his opinion that surgery would have ultimately been avoided:

Q. And that's kind of the point I'm making. If you would look at the - the opinion you gave into this case, it is not -- it is not that if they had come to the clinical conclusion of a suspicion of thrombus in the way you suggest and surgery would have been avoided, it is, if they have come to the consideration that you suggest, there would have been intro steps and we would have had to see what happened next...

A. Yes.

Q. ..is that fair?

A. Yes.[^216]

(iii) Accordingly, the plaintiffs’ theory of causation requires considering the expert evidence in respect of three questions:

(a) first, if other diagnostic imaging tools had been used, or if there had been a referral to a hematologist, is it more likely than not that the mass would have been diagnosed as thrombus?

(b) second, had the mass been diagnosed as thrombus or more likely thrombus, what treatment would Ms. Stepita have received?

(c) third, had the mass been treated medically, would the treatment have likely been successful such that surgery would be avoided?

(iv) On these issues, the defendant physicians tendered evidence from Dr. Crowther, a hematologist specializing in thromboembolism. Dr. Crowther testified that in his hematology and thrombosis practice, he sees patients with right atrial masses, is involved in decisions as to whether to treat right atrial masses medically or surgically, and has himself referred patients to surgeons.[^217]

(v) The plaintiffs tendered evidence by Dr. Geerts, a respirologist specializing in thromboembolic disorders. Dr. Geerts is a Professor at the University of Toronto and practices at Sunnybrook Hospital. Notably, Dr. Geerts’ evidence was that he has only “occasionally” referred patients with atrial masses for assistance in distinguishing between potential diagnoses.[^218]He acknowledged that he does not see patients where the physicians are of the view that surgery (i.e. "resection") is the appropriate treatment and that the opinion of the echocardiographer is important:

Q. Right. So, the whole body of cases where a cardiologist is concerned and feels resection is appropriate, you don't see, that, that's gone from your vision?

A. That's correct.

Q. You would agree with me that it is important if the cardiologist reviewing that thinks, is concerned about it or thinks resection is appropriate, that’s an important piece of information?

A. Of course it’s important.

Q. Because they are the expert in, in echocardiography?

A. Yes.[^219]

(vi) Drs. Dibble and Teoh testified that they did not order other diagnostic imaging because it would not have altered their management.[^220]Dr. Crowther shared this view regarding the lack of utility of such imaging: “I cannot imagine a circumstance on those [MRI] images that would change my opinion on whether surgery was required”.[^221]Dr. Dibble also noted, importantly, that cardiac MRI was not available in Barrie in 2012 and that sending the patient for such a test would have delayed what he felt was appropriate, definitive and time-sensitive treatment.[^222]

(vii) Dr. Geerts testified that MRI testing has a very high probability of being able to distinguish clots from tumors.[^223]Dr. Crowther did not agree, and explained in his testimony that CT or MRI is used when a mass cannot be visualized effectively.[^224] In this case, however, the mass was visualized effectively. The TEE was of very high quality.[^225]The issue was not visualization; rather, it was the atypical characteristics of the mass: it was an unusual mass in an unusual place (including that it was entirely separate from the port-a-cath) with an unusual presentation, and the way to diagnose it is through tissue (i.e. surgery).[^226]Dr. Geerts ultimately acknowledged that there are situations “where it is difficult or impossible to distinguish with imaging between a thrombus and a localized cardiac tumor”.[^227]

(viii) Dr. Crowther’s opinion was that CT or MRI would not likely have indicated this mass was thrombus in 2012, or even in 2019.[^228]Dr. Crowther testified (and notably, both Dr. Weeks and Dr. Myers agreed) that pathology is the only way to make a definitive diagnosis.[^229] CT and MRI do not provide tissue.[^230]In this particular case, even the tissue analysis conducted during surgery (the frozen sections) did not indicate thrombus. Dr. Crowther’s evidence was that typically, if there is clot, it will be indicated in the frozen sections.[^231]The fact that this in‑surgery pathology did not disclose thrombus is indicative of the fact that this was very unusual.[^232] Moreover, even direct visualization in surgery indicated that the mass was atypical in appearance for a clot such that Dr. Teoh remained uncertain as to its diagnosis.[^233]

(ix) Accordingly, it cannot be said that it is more likely than not that had further imaging been ordered, the mass would have been diagnosed as thrombus.

(x) Dr. Myers opined that as a result of the alleged breach of the standard of care in the diagnosis of the mass, Ms. Stepita was denied a referral to (or consultation with) a hematologist and the use of medical (rather than surgical) treatment.[^234]

(xi) The only hematologist who testified in this case is Dr. Crowther. His opinion was that a hematology referral was not necessary and that it would not have altered Ms. Stepita’s course of care. Had a hematologist been referred this case in 2012, the standard of practice for the hematologist where there is suspected myxoma or malignancy is to refer the patient to surgery (which, as Dr. Crowther stated, is what he would have done had he been referred this patient).[^235] That myxoma or malignancy was reasonably suspected is clear from Dr. Crowther’s testimony that he – a specialist in thrombus – testified that he has never seen a clot that looks like the one described in this case[^236] and that catheter-associated thrombosis are normally attached to the catheter.[^237]

(xii) Dr. Crowther’s opinion that the patient should be referred to surgery was informed by the potential for complications from a mass such as the one Ms. Stepita had, of which there are three categories:

(a) first, the mass itself can interfere with the function of the heart;

(b) second, the mass can break off and move downstream, causing pulmonary embolism; and

(c) third, the mass can cause electrical disturbance to the heart which can lead to arrhythmia and which can cause injury or death.[^238]

(xiii) Dr. Crowther opined that even in a situation where the physicians think that there is a greater likelihood of thrombus (than was thought in this case) but cannot rule out myxoma or malignancy, surgery is still required.[^239]This is significant, because there is no dispute that the appearance of the mass was suggestive of myxoma, and no evidence that, given the appearance of the mass, a tumor could be ruled out.

(xiv) Dr. Myers testified that had the mass been diagnosed as thrombus as he asserts it ought to have been, Ms. Stepita may have been treated with thrombolytic therapy (i.e. clot busters) rather than surgery.[^240] No experts agreed with Dr. Myers that thrombolytics would have been appropriate for use on a right atrial mass.

(xv) Dr. Crowther opined that thrombolytic therapy would not be an appropriate therapy in this case. Thrombolytics are used very rarely because their high risks (including embolism and bleeding) must outweigh the benefits.[^241] Dr. Geerts agreed, and said that he, too, would not use thrombolytics in this case.[^242]

(xvi) Anticoagulation prevents new blood clots from forming, but it does not break down existing clots directly. The hope with anticoagulation is that, when used, the body can “do its own magic” and break down an existing clot through the body’s natural clot-busting agents.[^243]

(xvii) It is important to distinguish between two aspects of the plaintiffs’ theory with respect to anticoagulation:

(a) first, the plaintiffs appear to advance that Ms. Stepita ought to have been treated with a trial of anticoagulation as some sort of diagnostic tool;

(b) second, the plaintiffs advance that because the mass ought to have been diagnosed as thrombus, Ms. Stepita ought to have been simply treated with anticoagulation for months or years on the basis of that diagnosis.

(xviii) With respect to a trial of anticoagulation as some sort of diagnostic tool, there was no expert evidence at trial to support this. The plaintiffs’ own thrombosis expert, Dr. Geerts, was clear that physicians do not anticoagulate patients without reason: they would “want to feel reasonably confident that this was a thrombus before embarking on that therapy”.[^244]This is unsurprising given that the use of anticoagulation involves incurring risks, including bleeding.[^245] Dr. Crowther’s evidence was that it is not reasonable to incur those risks for a trial of anticoagulation because it could delay definitive diagnosis and lead to poor outcomes.[^246]

(xix) Even if anticoagulation had been used on this mass, the evidence is that it is unlikely that this particular thrombus would have resolved.[^247]

(xx) With the benefit of hindsight, by the summer of 2012 Ms. Stepita had a chronic, organized thrombus. The pathology obtained after the surgery confirmed it was organized,[^248]and it is undisputed that at the time it was diagnosed, it was at least three months old and up to five months old.[^249]

(xxi) Dr. Crowther testified that anticoagulation would probably not have helped the mass to disappear in this case, because it was several months old and it was organized.[^250]His evidence was that, had anticoagulation been used and had the mass not materially changed in size, surgery would have been required.[^251]Where a mass that is atypical in appearance does not change in size, the chance of it being a tumor remains, and a tissue diagnosis is required.[^252]

(xxii) Notably, Dr. Geerts did not opine that anticoagulation would have resolved this mass. In fact, he testified that as a clot increases in age and becomes more organized, the likelihood that it will resolve with the use of anticoagulation decreases.[^253]He said that the time it takes for a clot to become unlikely to resolve with anticoagulation is “in the realm of weeks or months”.[^254]

(xxiii) Moreover, Dr. Geerts testified that the objective of anticoagulation is not to make the clot go away; rather, it is to manage the condition.[^255]Where a clot does not disappear, a patient may be left with a chronic mass: whether to simply leave the patient with a chronic mass in their right atrium is a decision that would have to be made based on risk factor resolution, serial echocardiograms, and how the patient felt about it.[^256]He agreed that whether to do something about the chronic mass or not depends on, among other things, the patient’s wishes. Some patients do not wish to live with a clot in their heart.[^257]

(xxiv) Had anticoagulation been used and not resolved the mass (which is the likely outcome based on Dr. Crowther’s and Dr. Geerts’ evidence), the only available treatment was surgery.[^258]It is exceedingly unlikely that Ms. Stepita would not have pursued removal of the mass and instead have chosen to live with a chronic mass in her right atrium. Her testimony[^259]and her psychiatrist’s records[^260]reflect that she experienced great stress as a result of its presence. In fact, she specifically testified that she has anxiety, even now, knowing that the clot was in her heart for five months.[^261]

(xxv) For these reasons, the plaintiffs have not discharged their burden at establishing that but for a breach of the standard of care, Ms. Stepita is more likely than not to have avoided surgery. Rather, as a result of Ms. Stepita’s unusual, large and concerning mass, which is unlikely to have resolved with medical treatment, all roads inevitably pointed to surgery.

ANALYSIS OF CAUSATION

[78] If I am incorrect in my conclusion regarding the standard of care, I also find the plaintiffs have failed to prove causation. The plaintiffs have not shown that but for the defendant physicians' inadequate consideration of thrombus as a diagnosis, Ms. Stepita would not have undergone surgery.

[79] The plaintiffs argued that the defendant physicians did not meet the standard of care because they did not seek further diagnostic testing or refer Ms. Stepita to a hematologist to treat the mass as a blood clot. I accept that further imaging would not have altered the decision to refer to surgery for treatment. Dr. Crowther's evidence is preferred. It was the mass' characteristics that were unusual, leading to two possibilities, a tumor or a blood clot, neither of which could be definitively ruled out unless surgery was conducted to take a sample of tissue. Visualizing the clot was not the issue.

[80] I accept Dr. Crowther's opinion that even if Ms. Stepita was referred to a hematologist in 2012, the standard would have been to refer her to surgery given its presentation as a potential tumor, and given the potential risks of the mass associated with delaying surgery for other forms of treatment. Dr. Crowther is the only expert who is qualified to provide such an opinion, given that he is a hematologist with a specialty in thrombus.

[81] Even if the mass was diagnosed as thrombus, I am not persuaded that Ms. Stepita was more likely than not to choose medication as treatment, and therefore avoid surgery. The mass was three months to five months old. It posed significant health risks, including the possibility that it would detach and cause a pulmonary embolism, arrythmia, and interfere with the function of the heart. Further, the characteristics of the clot were such that medication, like anticoagulants or thrombolytics (i.e. "clot-busters"), may not be successful in treating the mass, whereas surgery could effectively get rid of the mass. I accept that the use of thrombolytics would have been a high-risk treatment and would have been inappropriate in these circumstances. I also accept that the use of anticoagulants left the risk that a mass would remain in the atrium and that surgery would still be required for treatment.

[82] The plaintiffs have not met their burden in proving causation.

[83] Informed consent is a distinct cause of action, separate from a breach of the standard of care.[^262] To establish a claim for informed consent, a plaintiff must first prove that a physician failed to adequately disclose a material risk or an indicated treatment alternative.[^263] Physicians do not have an obligation to disclose alternative treatment options unless they are clinically indicated or they would, in the view of the physician, be of some benefit to the patient.[^264] A plaintiff generally requires expert evidence to prove that those alternative treatment options were medically reasonable alternatives.[^265]

[84] Even if a plaintiff establishes that a physician failed to adequately disclose a material risk or treatment alternative, the informed consent claim will still fail if the plaintiff cannot prove the harm was caused by the procedure to which the patient consented.[^266] A plaintiff must also demonstrate on a balance of probabilities that she would not have consented to the procedure if adequate disclosure had been made.[^267]

[85] The test for informed consent contains both a subjective and objective component. The subjective component is based on what the particular patient would have agreed to if the risks were known. It will of necessity vary from patient to patient and take into account factors unique to the patient. The objective component is based on what a reasonable person in the patient’s position would have done.[^268] Evidence that other patients regularly consent to the proposed treatment when risks are adequately disclosed is relevant to assessment of the objective test.[^269]

[86] A patient’s own testimony is inherently unreliable: a patient who is bringing an action would not likely admit that she would have agreed to the procedure at issue. The Supreme Court of Canada has expressly cautioned courts against reliance on the patient’s own testimony in informed consent claims:

The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot be accepted.[^270]

[87] Rather, courts are to consider the issue objectively based on the “particular concerns” of the patient and any “special considerations affecting the particular patient.”[^271]

[88] The plaintiffs’ submissions on informed consent are as follows.

(i) On the balance of probabilities, a reasonable person in the shoes of Ms. Stepita would have wanted to know whether there was a possibility of a clot and whether there were any possible nonsurgical options to consider before consenting to invasive cardiac surgery risking death, and there were clear alternatives that were highly successful that were never disclosed. This never happened.

(ii) Ms. Stepita would have never consented to the invasive cardiac surgery if she was informed there was a possibility of a clot and possible alternatives, and this is objectively reasonable.

(iv) Ms. Stepita and any reasonable person, given the fact that MRI was 95 percent accurate, and anticoagulation is highly successful and could be discontinued after the removal of the port without any invasive cardiac surgery would never have consented to cardiac surgery.

(v) After having the clot for five months and having prior echocardiograms, Ms. Stepita would have readily agreed to have some simple anticoagulation and some follow-up echocardiograms like she was having anyway to monitor the chemo instead of having invasive cardiac surgery.

(vi) If proper disclosure would have been made, there is no way Ms. Stepita or any reasonable patient would have consented to invasive cardiac surgery and risk death. Someone like Dr. Geerts would have explained the standard and appropriate alternative treatment using simple anticoagulation and Ms. Stepita or any reasonable patient would have accepted simple anticoagulation.

[89] The defendant physicians’ submissions on informed consent are as follows.

(ii) Dr. Teoh testified that he discussed the differential diagnosis with Ms. Stepita. He told her what the physicians thought the mass was myxoma and that there was a possibility it could be something else.[^272] Because the management of myxoma is surgical resection, Dr. Teoh did not offer other alternatives.[^273] None were medically indicated.[^274]

(a) first, no expert opined that the standard of care required Dr. Teoh to disclose that the mass could be a clot: a diagnosis which he did not find to be likely;

(c) second, all experts agreed that surgery, not medical therapy, is the appropriate treatment for a suspected myxoma. [^277] No expert opined that an alternative treatment which is not appropriate for the anticipated problem at hand is required to be offered to a patient;

(d) third, the plaintiffs’ experts disagree as to which medical therapy Ms. Stepita might have had as an alternative to surgery (had the mass been thought to be likely thrombus). While Dr. Myers testified that thrombolytics (i.e. clot busters) would have been appropriate for a right atrial mass, Dr. Geerts disagreed and said anticoagulants, though he also acknowledged that they may not have resolved the mass.[^278] There is no evidence as to what alterative therapy the plaintiffs assert Dr. Teoh was obligated to discuss.

(vi) As the Supreme Court stated in Arndt, Ms. Stepita’s testimony in hindsight that she would not have agreed to surgery is not reliable.[^279] The court must consider what a reasonable patient in Ms. Stepita’s particular circumstances would have done. Ms. Stepita’s “particular circumstances” are characterized by two themes: Ms. Stepita’s consistent low risk tolerance for future health issues, and her specific concern and intolerance for the presence of a blood clot in her heart.[^280]

(vii) First, Ms. Stepita consistently demonstrated a preference for treatment, often surgical treatment, to mitigate risk:

(a) Ms. Stepita testified that she chose “the most aggressive treatments from surgical to chemo” for her breast cancer (including choosing a mastectomy over a lumpectomy because of the slightly decreased risk recurrence);[^281]

(b) Ms. Stepita elected to undergo a prophylactic bilateral oophorectomy (the removal of both of her ovaries) to allow her to take a particular drug to mitigate against the risk of cancer recurrence;[^282] and

(c) Ms. Stepita elected to undergo a month of HIV prophylaxis after the CPR incident, stating: “I was told the risk was very small, but I chose to have no risk.”[^283]

(viii) Second, Ms. Stepita testified multiple times that looking back, the fact that she walked around with a blood clot in her heart for five months caused her profound stress: she said that she could not understand how she was allowed to walk around with a blood clot in her heart for five months, and that the fact that it had not embolized and killed her was “shocking”.[^284]

(ix) In any event, Dr. Crowther’s evidence is that anticoagulation would not have been likely to resolve the mass.[^285] Dr. Geerts agreed that as a clot increases in age, it is less likely to respond to anticoagulation, and a patient may have a chronic, lifelong mass.[^286] In circumstances where the very presence of the mass caused Ms. Stepita grief such that it formed a theme of her testimony, it is more likely than not that she would have chosen its removal and not tolerated the possibility of a chronic atrial mass with its concomitant risks and stress.

ANALYSIS

[90] The plaintiffs’ informed consent claim also fails. No expert opined that the standard of care required Dr. Teoh to divulge that the mass could be a clot. That was a diagnosis Dr. Teoh did not find likely. Only Dr. Masters opined on informed consent and his opinion was that Dr. Teoh’s discussion with Ms. Stepita met the standard of practice. The experts agreed that surgery, not medical therapy, is the appropriate treatment for a suspected myxoma. No expert said that an alternative treatment which is not appropriate for the anticipated problem is required to be disclosed to the patient in these circumstances. Dr. Teoh met the full disclosure standard for informed consent set out in Reibl.

[91] Even if Dr. Teoh did not meet the standard of care in providing informed consent, I find the plaintiffs failed in proving causation.

[92] The plaintiffs submit that Ms. Stepita would not have agreed to surgery had she known that the mass could have been treated with nonsurgical alternatives, like anticoagulants. I accept this evidence. However, that is not enough to prove causation in medical negligence cases. Causation must be assessed on a modified objective test. In this case, the question is whether a reasonable person in Ms. Stepita's circumstances would have decided to proceed with medication and decline the surgery at the time had proper disclosure about the possibility of a clot had been made.[^287]

[93] I find that even if Dr. Teoh did not obtain Ms. Stepita’s informed consent (which he did), a reasonable person in her shoes would have proceeded to surgery in any event. On previous occasions, Ms. Stepita has made aggressive choices for treatment to mitigate risk. She picked the most aggressive treatment for her breast cancer (both surgery and chemotherapy choices). She had a prophylactic bilateral oophorectomy which allowed her to take a drug to mitigate the risk of cancer recurrence. I agree that it is not at all credible nor reasonable that Ms. Stepita, a person who chooses treatment paths to mitigate against health risks, would not have chosen to surgically remove a mass which could have been a tumor or cancer, especially in light of the fact that there was a chance that the medication alternatives (specifically, anticoagulants) could not completely eliminate the clot, given its age and size. The very presence of this mass caused Ms. Stepita significant stress. In all, I find that a reasonable person, in light of Ms. Stepita's previous choices for medical treatment, would more likely than not have chosen the mass' removal through surgery even if they were told the mass was a clot and there was an option to treat it with nonsurgical alternatives.

DAMAGES

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

With respect to liability, the principle is that the defendant is liable if his or her wrongful acts were a cause of injury even though they were not the only cause. The principle with respect to damages is that the defendant is not responsible for injury or loss that the plaintiff would have suffered even absent the defendant’s wrongdoing.[^288]

[95] Accordingly, where a plaintiff suffers from a pre-existing condition which will inevitably result in the same injury caused by the defendant’s wrongdoing, the defendant is not responsible for the injury. In Athey v. Leonati, the Supreme Court explained that this follows from the basic principles applicable to damages.[^289]

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

A plaintiff is not entitled to compensation for any pain, suffering, or loss of enjoyment of life, or any loss of income, arising from that operation except to the extent that the accident accelerated the necessity for the operation and that acceleration can be demonstrated to have resulted in damage that would not otherwise have occurred.[^290]

[97] These principles apply to pecuniary and non-pecuniary damages.[^291] They also apply to limit both past and future loss claims. In fact, “if the point in time at which the natural degenerative processes probably would have resulted in the same level of disability that resulted from the accident falls before the date of trial, then there are no future damages to consider at all.”[^292]

[98] Courts have consistently limited or reduced damages awards when plaintiffs have made claims for losses that would have likely occurred even absent a defendant’s negligence. The plaintiff must prove damages with evidence.[^293]

(I) General Damages

[99] If successful in proving a breach of the standard of care and causation, a plaintiff will be entitled to compensation. An award of general damages must be fair and reasonable. Fairness is gauged by prior decisions of the court.[^294]

[100] The litigation process is, indeed, stressful for all litigants. Litigation stress, however, is not compensable at law.[^295]

[101] The plaintiffs’ submissions on general damages are as follows:

(i) Ms. Stepita underwent unnecessary highly invasive cardiac surgery.

(ii) The psychological consequences on Ms. Stepita have been immense as a result. She experienced severe panic episodes and developed significant anxiety.

(iii) After the surgery, she was sent into deep depression and started to experience suicidal ideation as a result of the invasive nature of open-heart surgery.

(iv) Ms. Stepita’s recovery from the heart surgery has been very difficult. Ms. Stepita has had trouble with pain, breathing, fatigue, sleeping, and physical activity.

(v) The significant physical, cognitive, psychological, and emotional consequences she has suffered as a result of the surgery continue to interfere with her ability to function as she did pre-incident and continue to adversely impact her enjoyment of life.

(vi) In S. (E.) c. Ferenczy,[^296] in a case involving an unnecessary lung surgery, which is less invasive than cardiac surgery, $200,000.00 was awarded as general damages. In that case the plaintiff was left with a scar, exhausted, and required a leave of absence for two years. She developed anxiety and anger, became hyper-vigilant about her medical condition and fearful of infections or any illness. Her psychological condition was related not to the excision of the lung but to the medical error. Her permanent impairment was found to be 20-30%. Ms. Stepita’s situation is somewhat similar but has far worse consequences than the plaintiff in the Ferenczy case and a Toronto court in 2019 ought to award Ms. Stepita general damages in the range of $250,000-$300,000.

[102] The defendant physicians’ submissions on general damages are as follows:

(i) If successful in proving a breach of the standard of care and causation, Ms. Stepita will be entitled to compensation for having had to undergo the cardiac surgery. An award of general damages must be fair and reasonable. Fairness is gauged by prior decisions of the court.[^297]

(ii) In assessing general damages, it is important to acknowledge that there is a great deal of pain and emotional upset in Ms. Stepita’s life that is not related to the cardiac surgery.

(iii) Ms. Stepita had a right atrial mass. That itself is stressful and upsetting and carries with it material risks of morbidity and mortality.

(iv) The defendant physicians did not give her the heart mass. To the extent that the plaintiffs establish entitlement to general damages, those damages are compensatory only for the surgical method of treatment. The pain and emotional upset associated with having a heart mass, which required some form of treatment and had material associated risks, is not to be visited upon the defendant physicians.

(v) Ms. Stepita gave evidence that she experienced trauma after the surgery as a result of learning then that the mass was in her heart for several months before it was identified by Dr. Dibble in June of 2012.[^298] This, too, cannot be visited upon the defendant physicians. Ms. Stepita’s claim against Dr. Burke (who she alleged negligently missed the finding on her March of 2012 TTE) was dismissed well before this trial. Damages that arise from any purported delay in identifying the mass, or from the trauma of walking around with a clot for five months, are not properly the subject of the claims against the remaining defendant physicians.

(vi) There is no doubt that Ms. Stepita has experienced tremendous suffering in her life. Her suffering, though, is not attributable to this surgery. Rather, Ms. Stepita is a “crumbling skull” plaintiff who experienced pre-existing frailty and deteriorating conditions that would have manifested themselves in any event, even absent the heart surgery.[^299] It is important to acknowledge the situational stressors which plagued Ms. Stepita before her heart mass was identified, during her course of treatment for her heart mass, and in the years thereafter:

(a) 2005-2011: In 2005, Ms. Stepita underwent a hysterectomy for endometriosis.[^300] She experienced repeated ulcerative colitis flare-ups over the years.[^301] In 2008 and through 2009, Ms. Stepita had a major recurrence of her depressive disorder (which she has had since the 1990s), taking nearly a year either off of work or working only 2 days a week.[^302] After being the primary caretaker for her grandmother for a number of years, her grandmother passed away in 2010 and Ms. Stepita again experienced depression and anxiety.[^303] In 2011, after an unhappy marriage, Ms. Stepita and her husband separated.[^304] She was diagnosed with breast cancer and underwent a mastectomy.[^305] Ms. Stepita accepted a new job in Collingwood and moved from her house in Hamilton, which was very near her family, to live in a new city, where she had no friends, family or support system.[^306]

(b) 2012: Ms. Stepita began chemotherapy treatment in Barrie.[^307] She learned she had an aggressive form of breast cancer (HER-2 positive) that would require an additional year or so of treatment.[^308] Ms. Stepita endured chemotherapy which resulted in her experiencing profound fatigue and bone pain, weeks of flu-like symptoms following each treatment, and the use of steroids which produced symptoms of depression.[^309] In June, the right atrial mass was identified which required treatment.[^310] In July, Ms. Stepita underwent a bilateral oophorectomy (removal of both of her ovaries) so as to surgically induce early menopause as part of her cancer treatment.[^311] She then started medication, Arimidex, which also caused her depression.[^312]

(d) 2016-2019: Ms. Stepita’s course of treatment for Crohn’s disease produced a myriad of symptoms, including pain, hair loss, fatigue, and urinary tract infections.[^322] In 2017, Ms. Stepita suffered two falls leading to a suspected concussion.[^323] After experiencing ongoing ear/facial pain and obstructive sleep apnea that same year, Ms. Stepita underwent a tonsillectomy, missing weeks of work.[^324] In 2018, she was diagnosed with a liver cyst.[^325] She also began treatment for chronic upper back and bilateral shoulder strain.[^326] At work, Ms. Stepita was stressed owing to staffing shortages.[^327] She suffered a traumatic workplace incident wherein she discovered an individual in a bathroom who had suffered a stroke, and she attempted to perform CPR. This resulted in acute stress disorder, and Ms. Stepita took a medical leave for psychological treatment beginning July of 2018, returning full-time in early, 2019.[^328]

(vii) Although Ms. Stepita testified that she personally attributes her difficulties in recent years to her cardiac surgery, this is simply not borne out by the detailed records of her medical and psychological care from the last seven years. Rather, the medical records indicate that aside from stress, upset and frustration immediately after the surgery[^329], Ms. Stepita did not report in the course of her care over the ensuing years that she ruminated or dwelled on this one aspect of her complicated history.

(viii) Accordingly, to the extent that Ms. Stepita is entitled to general damages, any such award must reflect that there were many other issues in Ms. Stepita’s life which are totally unrelated to the choice of management for her right atrial mass that would have transpired in any event.

(ix) Ms. Stepita repeatedly testified that her ongoing pain and anxiety have been caused by the litigation.

(x) Ms. Stepita’s medical and psychological treatment providers also recorded over the years that Ms. Stepita reported ongoing stress caused by the litigation. Ms. Stepita has undoubtedly experienced stress in the litigation process.

(xi) The litigation process is, indeed, stressful for all litigants. Litigation stress, however, is not compensable at law.

(xii) The following prior decisions are instructive as to the quantum of general damages to which Ms. Stepita ought to be entitled if this court finds the defendant physicians were negligent:

(a) In Watson v. Soon, a mass was discovered in the plaintiff’s kidney that was diagnosed as a tumor. After the surgery, the mass was diagnosed as an abscess rather than cancer. This court concluded the defendant physicians were not negligent, but assessed general damages in the amount of $40,000;[^330]

(b) In Moss v. Zaw, the plaintiff underwent bowel and colon surgery performed after radiology findings were consistent with obstruction from cancer. The surgery was uneventful and no cancer was found. It took the plaintiff two months to recover and he was left with a 20 centimeter scar that he would not have otherwise had. The court found that there was no negligence, but assessed the plaintiff’s damages had the surgery been unnecessary in the amount of $25,000;[^331]

(d) In Whitt v. Purkin, the plaintiff underwent surgery to remove his gallbladder during which the defendant physician found a mass on the plaintiff’s duodenum. He was advised after the procedure that he had a serious form of cancer which was often fatal. The plaintiff ultimately underwent a laparotomy and was in the hospital for a week. He had to return for a second surgery for an abscess resulting from the first surgery and subsequently developed an incisional hernia. He had several hospital attendances and was unable to work full time for two years owing to his repeated hospitalizations. The court found the surgery was unnecessary and awarded the plaintiff $42,000 in general damages.[^333]

(xiii) To the extent that Ms. Stepita is entitled to general damages, it ought to be in the amount of $40,000. Damages serve only to put a plaintiff in the same position they would have been but for the defendant’s negligence.[^334] In this case, Ms. Stepita’s “original position” included a myriad of physical and mental health issues that pre‑dated her involvement with the defendant physicians (and which persisted thereafter, as they would have in any event of the heart surgery). Ms. Stepita’s testimony as to the specific sources of mental stress revealed that it is not the treatment of the mass that caused her anguish; it is the fact of the mass itself (which was not caused by the defendant physicians) and the litigation process (which is not compensable).

(xiv) In any event, this assessment of $40,000 includes valuing the mental pain and suffering of a cardiac surgery. Acknowledging mental anguish from the experience of a surgery is not, however, akin to equating the surgery as being the cause of Ms. Stepita’s leave of absence from work, nor that it has at all caused her any continuing inability to work (neither of which is supported by any evidence). Rather, $40,000 reasonably reflects the pain and unpleasantness (both physical and emotional) associated with the surgery.

[103] I have found the defendant physicians have met their standard of care. As such, the plaintiffs are not entitled to damages. As I must assess general damages in any event of my findings on liability, I assess general damages at $60,000. The factors I rely upon include the following:

(i) I accept that Ms. Stepita faced negative physical and psychological consequences as a result of having the cardiac surgery and during its recovery, especially in light of her intensive treatment for breast cancer leading up to the discovery of the clot. Furthermore, Ms. Stepita has undoubtedly faced significant difficulties with her health in the years after the surgery. However, I do not accept the plaintiffs' submissions on the extent of the damages attributable to the cardiac surgery.

(ii) I agree with the defendant physicians that the evidence shows there were a number of other stressors in Ms. Stepita's life that contributed to her condition, separate and unrelated from the cardiac surgery, including the treatment for breast cancer, ongoing health issues from 2013-2019 as listed in the defendants' submissions, and issues in Ms. Stepita's work and personal life.

(iii) The ongoing pain and anxiety caused by litigating this matter are not compensable and is not considered in the award.

(II) Income Loss

[104] Assessing pecuniary damages requires greater precision than general damages. A damages award for loss of income must be confined to actual losses, and these losses must be quantifiable.[^335] For loss of earning capacity, actuarial or economic evidence is to be used to determine proper amounts.[^336]

[105] The plaintiffs have not adduced any cogent evidence regarding the income loss (both past and future). The incomplete work records and accounting documents were of no assistance and in fact were incomprehensible. Even Ms. Stepita’s prior employer, Mr. Matthews, could be of no assistance to the court and in fact his evidence essentially put an end to all of the income claim (future claim in particular) when he advised that Ms. Stepita quit because of a spat with a co‑worker.

(III) Past Income Loss

[106] I am setting out counsel for the plaintiffs' analysis including his various tables as I cannot find any sensible or logical way to summarize them.

[107] Ms. Stepita’s submissions on her past income loss are as follows:

(i) Ms. Stepita worked through her chemotherapy while working at a higher paying job where she was hired to work 40 hours per week, which she did work for some periods.[^337] In fact, the year prior, she worked full time at a pharmacy and worked in additional pharmacies to supplement her hours. From January 1, 2012 to June 22, 2012 she had an income of $68,230.00 which is pro-rated to $143,953.47. Even if her 2011 is taken into account in a lower paying job ($94,100.00) and the average is calculated with 2012, her average annual income would be $119,026.74. Regardless, any reasonable calculation shows dramatic past income losses with either calculation based on her income tax returns in 2012 and/or 2011 moving forward to 2019.[^338]It is a matter of simple arithmetic to add up numbers to calculate income loss.[^339] Both the T4[^340]and the tax returns were accurate, so the calculation is not complicated. The employer temporarily accommodated her cancer treatment, so in reality, her actual income loss is a substantial underestimation of the actual losses as her potential earning in 2012 would be much higher given she would have needed the accommodation briefly from January 2012 to April 2012 and she lost the opportunity to return to the 40 hours per week she was originally hired to work..[^341] After the heart surgery, despite having her cancer treatment completed, she was never able to return to 40 hours per week on any consistent basis.[^342]

(ii) She was only able to earn the following income in the years following the unnecessary heart surgery:

2013 $18,233.00

2014 $8,078.00

2015 $38,280.00

2016 $101,608.00

2017 $102,002.00

2018 $68,008.34

2019 $62,681.88 (until final day September 5, 2019, excluding vacation pay).

(iii) Using the pro-rated 2012 amount of $143,953.47 this yields a past income loss of $608,783.07 based on simple arithmetic (see table below).

(iv) Using the average of 2011 and 2012 of $119,026.74 underestimates actual losses as her Collingwood salary.

(v) Simple mathematical calculations based on past income loss using either pro‑rated 2012 as base or average of income 2011 and pro-rated 2012.

Loss pro‑rated 2012

Loss average 2011 and pro‑rated 2012

2013

143,953.47-18,233.00 =

Loss $125,720.47

119,026.74-18,233.00 =

Loss $100,793.74

2014

143,953.47-8,073.00 =

Loss $135,875.47

119,026.74-8,078.00 =

Loss $110,948.74

2015

143,953.47-38,280.00 =

Loss $105,673.47

119,026.74-38,280.00 =

Loss $80,746.74

2016

143,953.47-101,608.00 =

Loss $42,345.47

119,026.74-102,608.00 =

Loss $17,481.74

2017

143,953.47-102,002.00 =

Loss $41,951.47

119,026.74-102,002.00 =

Loss $17,024.74

2018

143,953.47-68,008.34 =

Loss $75,945.13

119,026.74-68,008.34 =

Loss $51,018.40

2019

143,953.47-62,681.88 =

Loss $81,271.59

119,026.74-62,681.88 =

Loss $56,344.86

Total Past Income Loss

$608,783.07

$434,375.96

(vi) The above is based on accurate information in Ms. Stepita’s tax returns. There was no over‑reporting or under‑reporting of income by Ms. Stepita, and her employer verified the accuracy of her income and confirmed that they did not overpay or underpay her for her services.[^343] Ms. Stepita reported all of her income received and did not evade taxes. Defence counsel’s tactics are simply a nonsensical, mysterious and irrelevant diversion tactic that is not based on any air or reality or credibility.[^344]

(vii) The calculations are simple with the use of a calculator. For the defendant physicians to deny that she did not have an income loss is not based on any air of reality. The real issue is the quantum that the court believes is fair and reasonable. The reality is that her income from January 1, 2012 to June 20, 2012 is actually underestimated, as she had to attend chemotherapy in 2012 which was time limited. Also, the Collingwood job was higher paying.

(viii) As a result of the unnecessary heart surgery, she clearly had income losses as reflected in her income tax returns.

(ix) Ms. Stepita as a result of the unnecessary heart surgery lost potential bonuses.[^345]In 2015, she lost income from her bonus, as she only received $939.60 of $2,000; in 2016, received only $3,281.25 of $3,500.00, and in 2018 she only received $2,472.38 out of $4,000.00.[^346]

[108] The defendant physicians’ submissions on the past income loss are as follows:

(i) The plaintiffs have failed to adduce any cogent evidence to quantify Ms. Stepita’s claimed past income loss. All that has been produced is a series of incomplete work records and accounting documents that are not only of no assistance to this court, but that, without scrutiny, could have misled the court to believe a metric which has been demonstrated to be either be false or woefully incomplete.

(ii) Just over two weeks before the trial commenced, the parties attended a pre‑trial conference where the plaintiffs advised – for the first time – that Ms. Stepita had resigned from her employment. In light of this significant development, the pre-trial judge ordered that the plaintiffs produce her employment file forthwith. It had been requested at discovery, but the request was taken under advisement and the file was never produced.

(iii) Up until receipt of the employment file and additional income documents on October 1 and 2, 2019, the plaintiffs advanced a theory (and, curiously, continued to do so at trial) that Ms. Stepita’s notice of assessment from 2012 (which indicates employment income in the amount of $68,230)[^347] accurately represented her earnings for January through June, 2012; accordingly, they posited that her potential annual income could be quantified by simply doubling the employment income reflected on the notice of assessment.

(iv) As it turns out, Ms. Stepita’s notice of assessment for 2012 contains close to $14,000 in earnings from 2011 which were not reported until 2012.[^348]

(v) The problem with this development is twofold: first, the theory of past (and future) loss of income which the plaintiffs advanced is based on a figure used in Ms. Stepita’s notice of assessment which is not representative of her actual earnings in January to June, 2012 (and which has the effect of misleading the court as to her earning history and potential); second, the new employment records revealed inexplicable inconsistencies in Ms. Stepita’s history of hours worked and income earned.

(vi) Some examples include:

(a) two letters prepared by Ms. Stepita’s employer, Mr. Matthews, which purport to set out the hours Ms. Stepita worked in each of 2012 through 2019 contain numerous errors and inconsistencies that Mr. Matthews was unable to explain at trial. For example, one of the letters states that Ms. Stepita worked zero hours in 2015 when the evidence is that in that year she returned to work part time in the spring and full time by August or September;[^349]

(b) the income on Ms. Stepita’s 2012 notice of assessment indicates employment earnings of $68,230, but that it includes nearly $14,000 of income from 2011 as well as sick and vacation time lump sum payouts;[^350]

(c) there is a major discrepancy between Ms. Stepita’s “insurable hours” (set out on the various employment records) and the hours Ms. Stepita actually worked, which discrepancy we know exists because she did not work 2014 yet the records indicate 412.31 “insurable hours” for that year.[^351]

(vii) There are many more examples. Accordingly, even if there was evidence before this court that Ms. Stepita took time away from work for the surgery (which there is not, as she commenced a leave prior to learning of the surgery and received psychiatric treatment thereafter which none of her treating physicians and no expert attributed to the surgery), this court is left entirely unable to quantify any such loss. None of the plaintiffs’ witnesses were qualified to interpret or explain the records produced, which leaves the court to, as counsel has put it, "perform arithmetic" with inaccurate evidence and insufficient expertise.

(viii) The evidence that is discernible from the records demonstrates that Ms. Stepita, regardless of her stated intention to work 40 hours per week in Collingwood, never worked more than 36 hours per week[^352] and in fact worked on average 30-32 hours per week both before her surgery (January-June 2012) and after her surgery (she testified to returning to 32 hours a week in 2015 and remained at the level (except when she took a leave for the CPR event) until she quit in September, 2019.[^353]

(ix) These issues are not surmountable on the basis of the evidence available. A plaintiff has an obligation to lead evidence to prove their claim. As this court stated in Ellsworth v. Singer:

The plaintiffs have the onus of providing this court with cogent evidence on which to award damages. The court cannot award damages by filling evidentiary gaps in the plaintiffs’ case. This is particularly true given that damages evidence lies almost exclusively in the control of the plaintiffs… .[^354]

Evidentiary gaps not only create an inability to quantify damages, but also raise questions as to the entitlement to such damages. [^355]

(x) The plaintiffs have not established any entitlement to nor a sufficient basis upon which to award damages for past loss of income.

ANALYSIS

[109] No cogent evidence has been adduced to award any past loss of income claim. A plaintiff has an obligation to lead evidence to prove her claim. Incomplete records and accounting documents were put before the court. The other witnesses Ms. Stepita called to validate this claim were not helpful. Even her own boss, Mr. Matthews, related her resignation to a workplace spat with a colleague and could not explain all of the inconsistencies in the records including the employment documents.

[110] Ms. Stepita has not met her burden of proof in establishing her past loss of income.

(IV) Future Loss of Income

[111] The same problems exist with Ms. Stepita’s future loss of income claim. The claim also contains inadmissible evidence. I am nonetheless going to set out her submissions on her future loss of income claim (including her tables) which are as follows:

(i) Dr. Hill opined that it was necessary to reduce the number of hours Ms. Stepita can work moving forward to restore her overall function.[^356]

(ii) It is fair and reasonable that she be entitled to future income loss secondary to the unnecessary cardiac surgery.

(iii) It is clear that she developed mental health issues after the unnecessary surgery and being told she had a myxoma that needed surgical removal, well before even contemplating or commencing litigation. The litigation did not bring about her mental health symptoms. Litigation stress has no applicability to this case given the mental health injury from the unnecessary invasive heart surgery arose before litigation.

(iv) Her physicians determined that she was unfit to work as a professional pharmacist related to mental health issues after the unnecessary heart surgery, and not related to litigation stress.[^357] There was a letter sent to her employer by her physician on January 14, 2014:[^358]

I reviewed Ms. Stepita today and due to medical reasons, I have asked her to remain off indefinitely.

(v) Her statement of claim was not issued until August 6, 2014,[^359] so litigation stress has zero relevance to the case, as the mental injury had already clearly manifested itself to a severe degree and has persisted consistently irrespective of the litigation.[^360]

(vi) As a result of the mental health injury, she was forced to resign on September 5, 2019.[^361]Ms. Stepita was unable to cope with the stress related to a dispute between her and her work technician and the fear and anxiety that she was unable to fulfill her professional responsibilities to patients.[^362]

(vii) To be fair and reasonable to the defendant physicians, consistent with the evidence, Ms. Stepita is entitled to a permanent partial disability where she can be expected to do some part-time work moving forward at three days per weeks so that she is put back to the situation she was in prior to the negligence where she had a balanced life. Ms. Stepita will rely on a loss of income and bonus from 40 hours per week to 24 hours per week from 5x8 hour shifts per week to 3x8hour shifts per week. Or 60% FTE which amounts to a modest amount of approximately $1,094,496.14 (see table below) present value for future income loss to age 75 using prorated income for 2012 or alternatively averaging 2011 with prorated 2012 (to address the issue of some spill over income from 2011 to 2012) still yields substantial income loss of $655,037.89, which is likely a substantial underestimation of future income loss due to (1) higher income and increasing bonuses in Collingwood Shoppers and (2) income for 2012 is likely underestimated as she had self-limited cancer treatment from January 2012 to April 2012 where she had to take time off. Either calculation is fair and reasonable. What is clear is that she has a permanent future income partial income loss and the defendant physicians will need to compensate her for almost half of her income being only able to work 3 days out of 5 days until age 75 whatever method is used. What is absolutely clear is that she has sustained a permanent partial disability from the defendant physicians’ negligence and they are fully responsible to compensate her for her future loss of income.

(viii) Ms. Stepita lost her job secondary to anxiety and her inability to cope at work after the heart surgery and she could have demanded much higher future income loss.

Future Income Loss to age 75 base income pro-rated 2012 income

Base Salary based on Pro-rated Income 2012 (likely underestimation as time off (Jan-April 2012 chemo)

$143,953.47

Bonus

$4,500.00

Total

$148,453.47

Less Residual Earning Capacity (60%FTE) working 24 hours per week

$86,372.01

Annual Income Loss

$62,081.46

Present Value Multiplier to Age 75

17.63[^363]

Loss of Future Income, Present Value

$1,094,496.14

Future Income Loss based on average income 2011 and pro-rated 2012

Base Salary based on Pro-rated Income 2012 (likely underestimation as time off Jan-April 2012 chemo)

$119,026.74

Bonus

$4,500.00

Total

$123,526.74

Less Residual Earning Capacity (60%FTE) working 24 hours per week

$86,372.01

Annual Income Loss

$37,154.73

Present Value Multiplier to Age 75

17.63[^364]

(ix) Future pecuniary losses need not even be proven on the balance of probabilities, simply that there is a real and substantial risk or real possibility of future income loss,[^365]which is easily proven in this case. Any future quantification of future care cost or future income loss has an element of uncertainty associated with it, but it is unfair and not reasonable for the plaintiff to be denied all future income losses as Ms. Stepita is left with permanent consequences secondary to the heart surgery and ongoing permanent impairments in her function that has been consistently demonstrated and corroborated by health professions for the last 7 years, which was supported by the testimony of Ms. Stepita and her employer, who gave impartial and objective evidence on this point, and is even further corroborated and supported by Dr. Hill, based on prognosis and her expertise in rehabilitation psychology and functional restoration.

[112] The defendant physicians’ submissions on the future loss of income are as follows:

(i) The plaintiffs have similarly failed to lead any evidence to establish that Ms. Stepita has suffered any future loss of income as a result of the alleged negligence. There is no opinion from any expert which establishes that she is unable to work, nor which sets out a basis to quantify a loss of earning capacity. The plaintiffs will argue, presumably, that Ms. Stepita’s resignation from her employment prior to the trial establishes an inability to work and earn income that is caused by the alleged negligence. It does not.

(ii) First, this submission is at odds with the testimony of Ms. Stepita’s employer, Mr. Matthews, whose evidence was that Ms. Stepita resigned during a shift after a dispute with a co-worker in the lunchroom.[^366]Mr. Matthews also testified that he did not “action” Ms. Stepita’s resignation for several days so as to give her an opportunity to withdraw her resignation, which she did not.[^367]Ms. Stepita has previously taken leaves of absence from work to tend to her health and there is no evidence to suggest that this option was not available to her again if required.

(iii) Second, to the extent that the psychological assessment required by the lawsuit and Ms. Stepita’s review of the records in anticipation of the trial contributed to Ms. Stepita’s resignation, this is not caused by the alleged negligence. This amounts to litigation stress, which is not compensable.[^368]

(iv) Third, it is insufficient to submit a bald statement of entitlement to pecuniary damages such as a loss of future income or loss of earning capacity. A plaintiff is required to prove their claim.[^369]

(v) In any event, Ms. Stepita’s own evidence was that her work is rewarding and she wants to return to work.[^370] The most recent psychological records produced by the plaintiffs (specifically those of her psychologist, Mr. Perry) indicate that Ms. Stepita worked full time in the years prior to an entirely unrelated incident at work in 2018, and that she successfully returned to work full-time thereafter.[^371]The fact that Ms. Stepita left her employment a few weeks before the trial after a dispute with a co-worker is not evidence of a claim for future loss of income, let alone the cogent evidence required for the court to make a finding that she is entitled to this head of damages.

(vi) Even if the court were to conclude that Ms. Stepita has established some future loss of income (which it cannot in the absence of evidence), the plaintiffs have led no evidence to quantify this claim (and the evidence which they have produced is of no assistance for the same reasons as with respect to past loss of income. It is not open to the court to postulate a method for quantifying damages that is not supported by the evidence at trial.[^372]

ANALYSIS

[113] Counsel for Ms. Stepita, for some reason, believes that he can act as an expert and provide “evidence” in his submissions, many of which are not based on any evidence. There is no opinion evidence that Ms. Stepita has any future income loss as a result of the alleged negligence. There is no evidence that she is unable to work nor any evidence which sets out any basis to establish a loss of earning capacity. Mr. Matthews, whom Ms. Stepita called to testify, confirmed that she resigned after a dispute with a co-worker. He waited for a few days to see if she would change her mind as she is an excellent, hard-working pharmacist. He had previously given her leaves of absences to deal with health issues. However, he processed her resignation when he did not hear from her. There is no evidence that she will not be able to return to work if she so chooses.

(V) Other Claims

[114] The plaintiffs’ submissions for Ms. Stepita on these claims are as follows:

Loss of Value of Retirement and Insurance Benefits[^373]

(i) As a result of the negligence, Ms. Stepita from 2012 until the age of her retirement has suffered substantial secondary losses to her retirement benefits, including RRSP contributions by her employer,[^374]and as she will only be able to resume part-time work, and having to resign from employment, she has lost all of her insurance benefits. As the defendant physicians are required to compensate Ms. Stepita to put her in the position as if the negligence did not occur, she seeks $9,615.38 per year excluding her drug costs for a 26 year period from 2012 to 2038, which amounts to only 7.4% of her annual prorated salary in 2012, which is fair and reasonable, and totals a lump sum payment of $250,000.00.[^375] Ms. Stepita lost past and future RRSP contributions from her employer to help her plan for her own retirement, which was $2,000 per year.[^376]

Loss of Other Benefits

(ii) There was also loss of Continuing Pharmacy Education (“CPE”) $200.00/year and the College of Pharmacist annual payments of $700.00/year.[^377]Ms. Stepita claims $900.00 x 15 years = $13,500.00 for loss of CPE and license payments not factoring in increasing cost of license dues or increased CPE funding.

Future Care Costs

(iii) Patients injured through medical malpractice are entitled to compensation reasonably expected to be required in the future as a result of the injuries. Ms. Stepita is entitled to future care costs to return her to the position she would have been in if the negligence of defendant physicians had not occurred, and the entire record and evidence easily justifies future care costs in this case. Based on the totality of the evidence at the trial and Dr. Hill’s opinions and experience in developing and supervising future care plans,[^378] it all leads to the same conclusion that the defendant physicians have to compensate Ms. Stepita for care that is reasonably required from the injuries she sustained. The threshold for awarding future care costs is low and simply requires just a real and substantial possibility, which is easily met on the totality of the evidence here, including the credible testimony of Ms. Stepita, all the admissible records and all the evidence.

(iv) If the court makes findings accepting that there was a mental health injury resulting from the unnecessary heart surgery, which appears to be clearly demonstrated by the overall evidence, some future care costs should be awarded at the discretion of the court based on what is reasonably possible for future care costs to restore Ms. Stepita to the position she was in prior to the negligence.

(v) The following are reasonably possible, justified and necessary future care costs, which a person in the circumstances of Ms. Stepita would require to put her in the position she would have been in but for the negligence of the defendant physicians adjusted based to present value based on agreed multipliers.[^379]

Psychological treatment (Adjust and modify to Present value) Psychological treatment to [year] 2021 as of October 7, 2019 $23,000.00 multiplier 1.99 = $46,566.00 plus from 2021 to age 85 annually $3,000.00 multiplier 21.52 = $64,560.00 total $111,126.00 (Intense for first two years and then monthly for life).

(Payment to see Mr. Perry was $225/hr).[^380]

Medication Costs to age 85 $472,504.04 ($17,938.65/year) multiplier 26.34 based on average Vol. 6 (Compensating Ms. Stepita for her medication is particularly important given the high cost and consequence of not have a drug plan).[^381]

Physiotherapy $1060 (based on initial session $85.00 dollars with follow up $65.00/sessionx15).

Gym Equipment $4000.00 (equipment, set up and delivery).

Occupational Therapy Assessment and Treatment $3000.00 (based on rate of $150/session x 20).

Nutritional Counseling $650.00 (based on rate of nutritionist $65.00/hrx10 hours).

Regular Cleaning and Outdoor Maintenance $317,340.00 to age 75.[^382] Includes Regular Cleaning to Age 75 Annual $15,500.00 multiplier 17.63 =$275.028.00 plus outdoor maintenance to Age 75 Annual $2,400 multiplier 17.63=$42,312.00 (based on $20.00 dollars per hour 15 hours per week regular cleaning and $200/month outdoor maintenance).

Vocational Rehabilitation $3000.00 (based on rate of $100.00/sessionx30).

Transportation $21,610.00 to 2021 $3000.00 annually multiplier 1.99=5,970.00 and from 2021 to age 75 Annual $1000.00 multiplier 15.64= $15,640.00 age 75 to access and attend future care.

Relocation[^383] Moving Cost one time 2,500.00 to move outside Collingwood.

Total Present Value of Future Medical and Rehabilitation and Future Housekeeping and Maintenances Costs = $936,790.04.

[115] The defendant physicians’ submissions on this category are as follows:

(i) Loss of value of retirement and insurance benefits, loss of other benefits and future care costs are set out in the plaintiffs’ closing submissions. The plaintiffs were not permitted to lead evidence written by counsel on treatments for future care and the cost thereof. Despite being told by the court that “it is in no way admissible in any shape or form in this trial”[^384] and that “it is entirely inappropriate for counsel to write a future care cost report”,[^385] the plaintiffs continue to make submissions on the basis of that document as if it were in evidence. It is not, and these submissions must be disregarded.

[116] I note at this point that counsel for Ms. Stepita seems to have “forgotten” or is deliberately avoiding the ruling that I made after he finally acknowledged that he was the author of the proposed future care cost report. He would not answer that question until I warned him that I was getting very annoyed at him. I am not certain as to the origin of his belief that a lawyer can provide an expert opinion on which he has absolutely no qualifications. This report that he prepared on his computer was ruled inadmissible. Its admissibility cannot be re‑argued. In any event, there is no basis to revisit the ruling. There is no basis to award any future care costs as there was absolutely no evidence on future care costs and plaintiffs’ counsel is submitting inadmissible evidence. A further problem is with Dr. Hill, who could not give any opinions on causation or diagnosis. I did allow Dr. Hill to testify on treatment plans but that as well was a waste of time as the plaintiffs wanted Dr. Hill to comment on the “report” that counsel authored. This was a waste of the court’s time.

(VI) Family Law Act Damages

[117] Damages for loss of guidance, care and companionship are governed under s. 61(2)(e) of the FLA.[^386] They are assessed on a case-by-case basis.[^387]Opportunities to experience guidance, care and companionship will be informed by whether relatives lived in the same home, or even the same city, as the main plaintiff. When a mother, father, or sibling does not live in the same city as their relative, damages will be reduced accordingly.[^388]

[118] The plaintiffs’ submissions regarding the FLA damages are as follows:

(i) Each of the FLA claimants seek $50,000.00[^389] for non-pecuniary damages based on a devastating loss of a very close family relationship of brother and parents, for loss of care, companionship and consortium totaling $150,000.00.[^390] A pre-judgment interest rate of 5% should be applied to the FLA general damages. There are nominal costs being sought for food and supplies from parents $1000.00, brother $200.00[^391], gas and travel $1500.00 and parking $250.00, and the brother seeks one weeks' loss of income $6,000.00[^392], gas and travel $500.00. There has been a catastrophic impact on Ms. Stepita’s family as the mother is very worried about her.[^393]

[119] The defendant physicians’ submissions are as follows:

(i) Each of Mr. G. Sekesan and Ms. Stepita’s parents gave evidence that they see Ms. Stepita less frequently since the heart surgery.[^394] This, however, is the result of the fact that Ms. Stepita now lives in Collingwood rather than Stoney Creek near her parents’ home. While Ms. Stepita testified that she visited her parents in Stoney Creek often during the first half of 2012, her evidence was that she did so because she moved her belongings from Stoney Creek to Collingwood slowly over several months.[^395] That the FLA plaintiffs see Ms. Stepita less frequently now that she lives further away is not attributable to the defendant physicians.

(ii) Accordingly, in this case, the FLA plaintiffs have not established that they have been meaningfully deprived of the benefit of Ms. Stepita’s care, guidance or companionship. Any entitlement under the FLA, if established, would be minimal.

(iii) For example, in Watson v. Soon, a husband’s loss of care, guidance and companionship arising from the removal of his wife’s kidney for a suspected cancerous mass (which was subsequently determined to be an abscess) was assessed in the amount of $5,000.[^396] Similarly, in Ayana v. Skin Klinic, the 44-year-old main plaintiff underwent laser hair removal treatment that caused severe burns and scarring around her face and neck. The court found that she suffered psychiatric injury as a result of the procedure itself and the subsequent scarring. The court awarded her husband $3,500 and her teenaged children $500 and $5,000 for loss of care, guidance and companionship.[^397]

(iv) Here, the FLA plaintiffs are adults who do not live with (or even near) Ms. Stepita. To the extent that she has had health issues which impact her ability to see them, there is no evidence that those issues are the result of her heart surgery. Their entitlement to losses of care, guidance, and companionship, if any, ought to be less than $3,500 each.

(v) Regarding the FLA claims, plaintiffs’ counsel states that “there are nominal costs being sought for food and supplies from parents $1000.00, brother $200.00, gas and travel $1500.00 and parking $250.00, and the brother seeks one week of loss of income $6,000.00, gas and travel $500.00.”[^398] The plaintiffs cite to the transcript of Mr. Sekesan; however, there was no evidence to quantify pecuniary losses and Mr. Sekesan acknowledged that he did not, in fact, have any loss of income.[^399]

[120] As I must assess these claims despite my findings on liability, I would assess each at $2,500. The factors I rely on include the following:

(i) There was no meaningful deprivation of the benefit of Ms. Stepita's love, care and companionship.

(ii) Ms. Stepita's moving from Stoney Creek, where her parents lived, to Collingwood contributed to Ms. Stepita seeing her parents less often. Ms. Stepita's move was unrelated to the surgery.

(iii) There is no evidence to quantify the pecuniary losses from the FLA plaintiffs, like food, supplies and gas. As a result, these costs cannot be awarded.

(VII) OHIP Claim

[121] The plaintiffs seek $19,432.94 to be repaid to OHIP on the basis that they are “justified”.

[122] The defendant physicians’ submissions are as follows:

(i) OHIP is pursuing a subrogated claim in the amount of $19,432.94.[^400] As with the other damages claimed, though, it is important to distinguish between the fact of the mass (which the defendant physicians did not cause) and its treatment. The only care after the surgery admission which is properly the subject of a subrogated claim is Ms. Stepita’s follow-up surgical appointment and cardiac rehabilitation. Costs of ongoing cardiac monitoring owing to Ms. Stepita’s thrombus (or Ms. Stepita’s many other medical issues) are not to be borne by the defendant physicians.

(ii) The plaintiffs led no evidence that any of the subsequent care resulted from the choice of surgical management for Ms. Stepita’s mass. Accordingly, if the defendant physicians are found liable, they ought to only be responsible for $14,207.20 of the OHIP subrogated claim (which are the costs associated with the surgery).[^401]

[123] Had liability been established, $14,207.20 is the proper amount of this claim.

(VIII) Out of Pocket

[124] Although I have not made any finding of negligence, the court notes that the defendant physicians do not dispute the plaintiffs’ claim for out of pocket expenses of $1,351.44. If I am incorrect on my finding that there is no negligence and that causation has not been made out, the plaintiffs are entitled to these out of pocket expenses.

COUNSEL FOR THE PLAINTIFFS' CONDUCT

[125] I agree with the defendant physicians’ reply submissions, where they set out the multitude of problems caused by Ms. Stepita’s counsel, including the following:

(i) It is expected that parties to litigation will disagree about the issues. It is expected that they will make vigorous, fulsome arguments as to the substance of the matters before the court. It is unacceptable, however, for those arguments to rise to the level of the inflammatory language which is pervasive throughout the plaintiffs’ closing submissions.

(ii) For instance, the plaintiffs assert that Dr. Dibble:

(a) tried to lie and mislead the court about when and what he told Ms. Stepita on and before June 27, 2012;[^402]

(b) lied in his testimony;[^403]

(d) a retrospective cover-up, and complete fabrication[^405].

(iii) The plaintiffs assert that Dr. Teoh:

(a) is evasive, manipulative;[^406]

(b) intentionally covered up [a] fact, to avoid liability;[^407]

(d) he attempts to try to deceive and mislead the court;[^409]

(e) has a complete lack of candor and demonstrates a complete lack of integrity and credibility to not admit the obvious and try to mislead the court.[^410]

(f) gave more fabrications of evidence.[^411]

(iv) The plaintiffs assert that Dr. Heinrich:

(a) gave testimony that is extremely exaggerated and contrived after the fact and inflammatory;[^412]

(b) gave testimony that is self-serving junk science;[^413]

(d) cannot be trusted to tell the truth;[^415]

(e) is trying to fabricate evidence at trial;[^416]

(f) exaggerated, after the fact to try and get sympathy from the court;[^417]

(g) fabricates the measurement [of the mass] after he was sued as he never measured it prior to the lawsuit.[^418]

(v) The plaintiffs describe the defendant physicians’ case as:

(a) some sort of circus exercise to try to score points and try to mislead the court;[^419]

(b) a colourful attempt at a retrospective cover-up of negligence after the fact;[^420]

(d) a desperate attempt to avoid liability;[^422]

(e) a bogus attempt at a cover-up;[^423]

(f) an attempt to use a shotgun approach because nothing can substantiate what they did;[^424]

(g) exaggerated, false, inflammatory statements from the defendants, who gave completely subjective, non-scientific, charlatan evidence. This speaks to the desperation of the defendants because they cannot defend their action based on the standard of care or honesty;[^425]

(h) desperate;[^426]

(i) not only negligent, but grossly negligent and reckless, and willfully blind of the obvious;[^427]

(j) completely ridiculous, offensive and substandard medical care.[^428]

(vi) The plaintiffs accuse the defendant physicians collectively of doctoring and fabricating evidence:

(a) the desperation and spectacle of the after the fact testimony of the defendant physicians, and their unscrupulous partisan experts was a travesty of doctored evidence after the fact… they had to try to contrive something through dishonest methods and a lack of credible or reliable evidence, which is consciousness of guilt after the fact;[^429]

(b) to suggest that they would have operated anyway is a colourful fabrication… that is a retrospective cover-up and desperate attempt by the defendant physicians and their experts to justify what they did to try to hide their negligence, a mere smoke screen;[^430]

(d) trying to hide, deny and mislead the court;[^432]

(e) this is essentially junk science the defendant physicians have tried to use because of their desperation in an effort to mislead the court;[^433]

(f) the defendant physicians made up things that never happened in their opening, that that Dr. Dibble told Dr. Rask it was less likely a clot – this never came out in the evidence and is a fabrication;[^434]

(g) fabrications of things that never happened.[^435]

(vii) The defendant physicians’ experts – professionals who attended at trial to assist the court – were not spared. The plaintiffs assert that they tried colourfully to retrospectively cover-up the negligence[^436] and suggested that they [spun] multiple nonsensical theories after the fact to try to get one to stick secondary to desperation.[^437] They also make submissions of dishonesty as against each of them individually.

(viii) Dr. Weeks and his opinion are described as follows:

(a) complete and utter nonsense and offensive to have so called sham experts doing this type of thing;[^438]

(b) complete [sic] deceptive and hocus pocus;[^439]

(ix) Dr. Crowther and his opinion are described as follows:

(a) tried desperately to advance multiple bogus theories;[^441]

(b) nonsensical;[^442]

(d) lying;[^444]

(e) partisan;[^445]

(f) trying to mislead and deceive the court;[^446]

(g) completely bogus and partisan nonsense;[^447]

(h) fairly useless;[^448]

(i) his expert evidence should be shredded to pieces.[^449]

(x) Dr. Masters’ and his evidence are described as follows:

(a) timid;[^450]

(b) nonsensical;[^451]

(d) trying to mislead the court;[^453]

(e) tries to deceive the court;[^454]

(f) lied to the court and is lying;[^455]

(g) outrageous, not credible and deceptive.[^456]

(xi) Counsel for the defendant physicians were, similarly, not spared from the plaintiffs’ attack, and were accused of:

(a) trying to mislead the court through junk science based on misleading bogus assertions,[^457]

(b) not calling an expert at trial to grandstand;[^458]

(c) having threatened regulatory proceedings to intimidate or silence [Dr. Hill’s] testimony to gain an advantage and influence the court;[^459]

(d) simply a nonsensical mysterious and irrelevant diversion tactic.[^460]

(xii) This conduct amounts to incivility and bullying. Drs. Dibble, Teoh and Heinrich (and the experts whom they called to testify) are respectable physicians with impeccable records and long and reputable careers. They ought not to be subjected to such attacks for merely having defended themselves in a lawsuit. This is not how the justice system operates in Ontario, and the defendant physicians will make submissions in respect of this conduct when addressing costs.

[126] All I can add is that in sixteen years of judicial work, I have never seen anything like this - a complete lack of respect for medical doctors, experienced counsel, and the court.

CONCLUSION

[127] The plaintiffs' claim, in its entirety, is dismissed.

[128] If negligence or lack of informed consent had been established, the plaintiffs would be entitled to $60,000 in general damages, $2,500 each for plaintiffs Traian Sekesan, Steluca Sekesan, and George Sekesan for the FLA claims, $14,207.20 in OHIP expenses, and $1,351.44 in out‑of‑pocket expenses.

[129] As I am certain that the parties will be unable to agree on costs, I am prepared to receive the defendant physicians’ submissions within 20 days and the plaintiffs’ responding submissions within 14 days thereafter. The defendant physicians’ response, if any, can be provided within 7 days thereafter. The submissions may be sent by email to my assistant at lorie.waltenbury@ontario.ca.

J.E. Ferguson J.

Released: May 14, 2020.

COURT FILE NO.: CV-14-509736

DATE: 20200514

ONTARIO

SUPERIOR COURT OF JUSTICE

Elena Stepita, Ana Pasquali, George Sekesan, Steluca Sekesan and Traian Sekesan

Plaintiffs

– and –

Bradley Dibble, Bruce Burke, Kevin Teoh, Lee Heinrich and Daniel Kim

Defendants

REASONS FOR DECISION

J.E. Ferguson J.

Released: May 14, 2020

[^1]: R v. Orr, 2015 BCCA 88 at para. 67.

[^2]: Anderson v. Nowaczynski, [1999] O.J. No. 4485 (S.C.J.) at para. 207.

[^3]: Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.J.) at para. 33 [Bafaro], aff'd 2010 ONCA 188.

[^4]: DeMarco v. Martin, 2019 ONSC 2788 at paras. 148, 154.

[^5]: R. v. Abbey, 2009 ONCA 624 at para. 76.

[^6]: Reid v. Livingstone, [2004] O.J. No. 1477 (S.C.J.) at para. 21.

[^7]: Lucuta v. Stevens, 2019 ONSC 1691 at paras. 16, 39.

[^8]: Hirchberg v. The Branson Drug Store, 2016 ONSC 4853 at para. 45.

[^9]: Hirchberg v. Branson Drug Store, 2017 ONCA 62 at para. 6, leave to appeal refused, 37501 (June 15, 2017).

[^10]: Kurdina v. Gratzer, 2010 ONCA 288 at para. 4, leave for appeal refused, 33731 (September 16, 2010).

[^11]: Dr. Myers Direct, October 10, 2019, pgs. 8-10, 32.

[^12]: Dr. Myers Direct, October 10, 2019, pg. 3.

[^13]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 25-26.

[^14]: Robinson v. Sisters of St. Joseph of the Diocese of Peterborough, 1999 CanLII 2199 (ON CA), 117 O.A.C. 331.

[^15]: Dr. Myers Direct, October 10, 2019, pgs. 34, 35, 40, 47-48, 58-59, 90.

[^16]: Dr. Myers Cross, October 10, 2019, p. 20, ll. 9-11.

[^17]: Galalae v. Kingston (Police Services Board), 2013 ONSC 5153 at para. 29.

[^18]: DeMarco v. Martin, 2019 ONSC 2788 at paras. 148, 154.

[^19]: Dr. Myers Cross, October 10, 2019, p. 12, ll. 25-32.

[^20]: Dr. Myers Cross, October 10, 2019, p. 12, ll. 25-32 to p. 13, ll. 1-12.

[^21]: Dr. Myers Cross, October 10, 2019, p. 13, ll. 20-31.

[^22]: Dr. Myers Cross, October 10, 2019, p. 16, ll. 31-32 to p. 17, ll. 1-4; p. 189, ll. 8-10.

[^23]: Dr. Myers Cross, October 10, 2019, p. 20, ll. 12-21.

[^24]: Dr. Myers Cross, October 10, 2019, p. 20, ll. 6-9.

[^25]: Dr. Myers Cross, October 10, 2019, p. 20, ll. 9-14.

[^26]: Dr. Myers Cross, October 10, 2019, p. 19, ll. 13-28.

[^27]: Dr. Myers Direct, October 10, 2019, p. 32, ll. 13-21; Dr. Myers Cross, October 10, 2019, p. 226, ll. 24-32.

[^28]: Cheesman et. al. v. Credit Valley Hospital et. al., 2019 ONSC 1907.

[^29]: Dr. Myers Direct, October 16, 2019, pgs. 5-9, 12-13, 16.

[^30]: Dr. Myers Direct, October 16, 2019, pgs. 35-36.

[^31]: Cacciacarro v. Makhan, 1992 CarswellONT 2434 (Gen. Div.).

[^32]: Pittman Estate v. Bain, 1994 CarswellONT 928 (Gen. Div.).

[^33]: Grivicic v. Alberta Health Services (Tom Baker Cancer Centre), 2017 ABCA 246 at para. 36, leave to appeal refused 37859 (August 9, 2018).

[^34]: Rupert v. Toth, 2006 CarswellONT 1345 (S.C.J.) at para. 108.

[^35]: See e.g. Jones-Carter v. Warwaruk, 2019 ONSC 1965 at para. 101; Fisher (Litigation Guardian of) v. Atack, 2007 CarswellONT 788 (S.C.J.), reversed 2008 ONCA 759, leave to appeal refused 32963 (October 22, 2009); Alison Vredenburgh (Session Moderator),“Cross-Border Testifying Tips: U.S. Experts in Canada and Canadian Experts in the U.S” Proceedings of the Human Factors and Ergonomics Society 2017 Annual Meeting.

[^36]: Dr. Kelly Cross, October 16, 2019, p. 34, ll. 18-32 (“Dr. Kelly Cross”).

[^37]: Dr. Kelly Cross, October 16, 2019, p. 34, ll. 32 to p. 35, ll. 1-3.

[^38]: Dr. Kelly Direct, October 16, 2019, p. 28, ll. 15-28.

[^39]: Dr. Kelly Cross, October 16, 2019, p. 35, ll. 6-10, p. 36, ll. 13-21.

[^40]: Dr. Kelly Cross, October 16, 2019, p. 35, ll. 6-10, p. 36, ll. 13-21.

[^41]: ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 at para. 55.

[^42]: College of Psychologists of Ontario (CPO) Registration Guidelines, Appendix C – Definition of Practice Areas p. 2 (Exhibit 34).

[^43]: CPO Registration Guidelines, Appendix C – Definition of Practice Areas p. 6 (Exhibit 34); American Psychologist Association Specialty Guidelines for Forensic Psychology (January 2013) p. 7 (Exhibit 37).

[^44]: Dr. Hill Qualifications Cross, October 17, 2019, p. 27, ll. 23-32 to p. 28, ll. 1-2, p. 30, ll. 25-32; College of Psychologists of Ontario Profile of Dr. Julie Hill (Exhibit 33).

[^45]: Dr. Hill Qualifications Cross, October 17, 2019, p. 26, ll. 13-26, p. 27, ll. 23-32 to p. 28, ll. 1-2; CPO Standards of Professional Conduct, p. 13 (Exhibit 36).

[^46]: Dr. Hill Qualifications Cross, October 17, 2019, p. 34 l. 8 to p. 39, l. 3; American Psychologist Association Specialty Guidelines for Forensic Psychology (January 2013) p. 15 (Exhibit 37).

[^47]: Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at para. 70.

[^48]: Dr. Crowther Qualifications Cross, October 24, 2019, p. 16, ll. 19-32.

[^49]: Dr. Crowther Qualifications Cross, October 24, 2019, p. 19, ll. 20-30 and p. 20, ll. 9-11.

[^50]: Plaintiffs' Closing Submissions at para. 320(i), pp. 80-81.

[^51]: Plaintiffs' Closing Submissions at para. 320(ii), p. 81.

[^52]: Dr. Crowther Direct, October 24, 2019, p. 27, ll. 7-11.

[^53]: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804, at p. 804; Crits and Crits v. Sylvester et al., 1956 CanLII 34 (ON CA), [1956] O.J. No. 526 (C.A.) at paras. 13-14 [Crits], aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991; ter Neuzen, supra at para. 33; Watson v. Dr. Shawn Soon, 2018 ONSC 3809 at para. 22.

[^54]: Watson, supra at para. 24.

[^55]: St-Jean v. Mercier, 2002 SCC 15 at para. 53; Felix v. Red Deer Regional Hospital Centre, 2001 ABQB 545 at para. 80.

[^56]: Bogdon v. Folman, 2013 ONSC 222 at para. 35, citing Bafaro, supra at para 31.

[^57]: Crawford (Litigation Guardian of) v. Penny, [2003] O.J. No. 89 (S.C.J.) at paras. 245, aff’d [2004] O.J. No. 3369 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 496.

[^58]: Crits at para. 13.

[^59]: Samms v. Moolla, 2019 ONCA 220 at para. 73, citing Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at p. 363.

[^60]: Samms at paras. 83, 92.

[^61]: MacGregor v. Potts, [2009] O.J. No. 3581 (S.C.J.) at para. 128.

[^62]: Dean v. York County Hospital et al., [1979] O.J. No. 348 (H.C.J.) at para. 42.

[^63]: Bafaro, supra at para. 28.

[^64]: Samms, supra at para. 73.

[^65]: Hancock Estate v. Hanton, (2003), 2003 CanLII 89026 (AB KB), 344 A.R. 221 (Q.B.) at para. 79.

[^66]: Keith v. Abraham, 2011 ONSC 2 at para. 37, citing Lapointe, supra at p. 362.

[^67]: Turkington v. Lai, [2007] O.J. No. 4418 (S.C.J.) at para. 38.

[^68]: Ball v. Amendola, 2009 CanLII 55309 (ON SC), [2009] O.J. No. 4114 (S.C.J.) at para. 137.

[^69]: Lapointe, supra at p. 353.

[^70]: Lapointe, supra at p. 361; ter Neuzen, supra at para. 47; Crits, supra at para. 15.

[^71]: Dr. Masters Direct, October 25, 2019, p. 4, ll. 28-32 to p. 5, ll. 1-6.

[^72]: Dr. Masters Direct, October 25, 2019, p. 9, ll. 3-10.

[^73]: Dr. Masters Direct, October 25, 2019, p. 12, ll. 15-32 to p. 13, ll. 1.

[^74]: Dr. Masters Direct, October 25, 2019, p. 10, ll. 8-32, p. 15, ll. 13-23.

[^75]: Dr. Masters Direct, October 25, 2019, p. 15, ll. 24-31.

[^76]: Dr. Myers Direct, October 10, 2019, p. 35, ll. 5-15.

[^77]: Dr. Myers Direct, October 10, 2019, p. 66, ll. 6-10.

[^78]: Dr. Myers Direct, October 10, 2019, p. 66, ll. 16-18.

[^79]: Dr. Teoh Direct, October 21, 2019, p. 133, ll. 19-27.

[^80]: Dr. Teoh Direct, October 21, 2019, p. 130, ll. 15-20.

[^81]: Dr. Teoh Direct, October 21, 2019, p. 134, ll. 11-26

[^82]: Dr. Teoh Direct, October 21, 2019, p. 136, ll. 10-14.

[^83]: Dr. Teoh Direct, October 21, 2019, p. 134, ll. 31-32 to p. 135, ll. 1-14.

[^84]: Dr. Teoh Direct, October 21, 2019, p. 139, ll. 11-32 to p. 140, ll. 1-10; Dr. Heinrich Direct, October 22, 2019, p. 113, ll. 30-32 to p. 114, ll. 1-6.

[^85]: Dr. Teoh Direct, October 21, 2019, p. 140, ll. 11-17.

[^86]: Dr. Teoh Direct, October 21, 2019, p. 134, ll. 30-32 to p. 135, ll. 1-14, p. 136, ll. 22-30; Consultation Letter from Dr. Teoh to Dr. Dibble dated July 13, 2012, JDB, Vol. 1, p.p. 18-19 (Exhibit 1).

[^87]: Dr. Heinrich Direct, October 22, 2019, p. 108, ll. 11-23, p. 107, ll. 17-28.

[^88]: Dr. Masters Direct, October 25, 2019, p. 13, ll. 29-32 to p. 14, ll. 1-8.

[^89]: Emails from Ms. Stepita entered into the evidence on motion.

[^90]: Transcript October 7, 2019, pg. 86.

[^91]: Vol. 1, pgs. 10, 12-13, 15, 18.

[^92]: Vol. 1, p. 60.

[^93]: Transcripts October 11, 2019, p. 94-95.

[^94]: Transcripts October 11, 2019, p. 97.

[^95]: Transcripts October 11, 2019, p. 105.

[^96]: Transcripts October 15, 2019, p. 108-109, 115-117, 137.

[^97]: Transcripts October 11, 2019, p. 100.

[^98]: Transcripts October 11, 2019, p. 101-102, 111.

[^99]: Transcripts October 11, 2019, p. 104.

[^100]: Transcripts October 11, 2019, p. 105-017.

[^101]: Transcripts October 11, 2019, p. 107.

[^102]: Transcripts October 11, 2019, p. 112.

[^103]: Transcripts October 11, 2019, p. 114-115, Vol. 1 12-13, 15.

[^104]: Transcripts October 11, 2019, p. 121.

[^105]: Transcripts October 11, 2012, p. 126-127.

[^106]: Transcripts October 15, 2019, p. 104.

[^107]: Transcripts October 15, 2019, p. 105.

[^108]: Vol. 1, p. 12-13, 15.

[^109]: Vol. 1, p. 23,61, 72, 75; Vol. 3, p. 601 discharge summary.

[^110]: Vol. 1, p. 64-65.

[^111]: Vol. 1, p. 10 (no report of mobility); p. 13 “a bit of mobile component” to p. 15 “it is mobile”, which Dr. Teoh adopts p. 18 “It is quite mobile”.

[^112]: Transcripts October 10, 2019, p. 34, 35, 40, 47-48, 58-59, 90.

[^113]: Transcripts October 10, 2019, p. 8-10, 32.

[^114]: Transcripts October 10, 2019, p. 59.

[^115]: Transcripts October 10, 2019, p. 36-39.

[^116]: Transcripts October 10, 2019, p. 36,39-40.

[^117]: Transcripts October 10, 2019, p. 40-41.

[^118]: Transcripts October 10, 2019, p. 43.

[^119]: Transcripts October 10, 2019, p. 63.

[^120]: Transcripts October 10, 2019, p. 152.

[^121]: Williams (Litigation Guardian of) v. Bowler, 2005 CarswellONT 3419 (S.C.J.).

[^122]: Examination in Chief of Dr. Weeks, October 22, 2019, p. 140, ll. 11-32 to p. 141, ll. 1-4.

[^123]: Dr. Weeks Chief, October 23, 2019, p. 1, ll. 13-20, p. 3, ll. 26-32 to p. 4, ll. 1-3.

[^124]: Dr. Weeks Chief, October 23, 2019, p. 3, ll. 26-32 to p. 4, ll. 1-3.

[^125]: Dr. Weeks Chief, October 23, 2019, p. 10, ll. 14-32 to p. 11, ll. 1-14.

[^126]: Dr. Weeks Chief, October 23, 2019, p. 7, ll. 17-30 to p. 8, ll. 1-12.

[^127]: Dr. Myers Cross, October 10, 2019, p. 91, ll. 20-23.

[^128]: Dr. Myers Cross, October 10, 2019, p. 90, ll. 10-29 ,224, ll. 10-14.

[^129]: Dr. Myers Cross, October 10, 2019, p. 223, ll. 8-32.

[^130]: Cross Examination of Dr. Weeks, October 23, 2019, p. 12, ll. 20-32.

[^131]: Re-examination of Dr. Weeks on Qualifications, October 22, 2019, p. 148, ll. 30-32 to p. 149, ll. 1-23.

[^132]: Dr. Myers Cross, October 10, 2019, p. 99, ll. 20-25.

[^133]: Dr. Myers Cross, October 10, 2019, p. 65, ll. 16-26.

[^134]: Dr. Weeks Chief, October 23, 2019, p. 4, ll. 4-22; Dr. Myers Cross, October 10, 2019, p. 83, ll. 12-22.

[^135]: Dr. Weeks Chief, October 23, 2019, p. 7, ll. 14-32 to p. 8 l. 1; Dr. Myers Cross, October 10, 2019, p. 71, ll. 2-16.

[^136]: Dr. Weeks Chief, October 23, 2019, p. 8, ll. 21-32 to p. 9, ll. 1-4; Dr. Myers Cross, October 10, 2019, p. 108, ll. 23‑27.

[^137]: Dr. Myers Cross, October 10, 2019, p. 71, ll. 22-32 to p. 71 ll. 1-7 ,108, ll. 30-32.

[^138]: Dr. Weeks Chief, October 23, 2019, p. 3, ll. 26-32 to p. 4, ll. 1-3; Dr. Myers Cross, October 10, 2019, p. 73, ll. 30‑32 to p. 74, ll. 1-2; Dr. Geerts Cross, October 15, 2019, p. 54, ll. 7-10.

[^139]: Dr. Dibble Chief, October 21, 2019, p. 35, ll. 27-31.

[^140]: TTE Report of June 15, 2012, JDB, Vol. 1, p. 3 (Exhibit 1).

[^141]: Consultation Letter from Dr. Dibble to Dr. Rask dated June 27, 2012, JDB, Vol. 1, p. 13 (Exhibit 1).

[^142]: Dr. Geerts Cross, October 15, 2019, p. 52, ll. 15-21. See also Dr. Geerts cross, October 15, 2019, p. 68, ll. 28-32.

[^143]: Dr. Dibble Cross, October 21, 2019, p. 43, ll. 1-7.

[^144]: Dr. Teoh Chief, October 21, 2019, p. 130, ll. 30-32 to p. 131, ll. 1-9.

[^145]: Dr. Weeks Chief, October 23, 2019, p. 58, ll. 32 to p. 59, ll. 1-14; Dr. Myers Cross, October 10, 2019, p. 75, ll. 1‑16.

[^146]: Dr. Myers Cross, October 10, 2019, p. 198, ll. 7-14.

[^147]: Dr. Myers Cross, October 10, 2019, p. 76, ll. 11-27.

[^148]: Dr. Myers Cross, October 10, 2019, p. 80, ll. 10-14.

[^149]: Dr. Dibble Chief, October 21, 2019, p. 54, ll. 11-14; Dr. Teoh Chief, October 21, 2019, p. 143, ll. 25-27; Dr. Crowther Chief, October 24, 2019, p. 32, ll. 11-13; Examination in Chief of Dr. Masters, October 25, 2019, p. 12, ll. 11-14.

[^150]: Dr. Crowther Cross, October 24, 2019, p. 44, ll. 1-6.

[^151]: Dr. Geerts Cross, October 15, 2019, p. 81, ll. 17-27.

[^152]: Dr. Myers Cross, October 10, 2019, p. 86, ll. 1-10.

[^153]: Dr. Myers Cross, October 10, 2019, p. 78, ll. 15-20.

[^154]: Dr. Dibble Chief, October 21, 2019, p. 31, ll. 27-31; Dr. Teoh Chief, October 21, 2019, p. 135, ll. 11-15; Dr. Heinrich Chief, October 22, 2019, p. 107, ll. 17-18, p. 114, ll. 20-21, p. 115, ll. 1; Dr. Heinrich Cross, October 22, 2019, p. 126, ll. 5-7.

[^155]: Dr. Dibble Chief, October 21, 2019, p. 29, ll. 28-29; Dr. Teoh Chief, October 21, 2019, p. 136, ll. 25-30.

[^156]: Dr. Heinrich Chief, October 22, 2019, p. 107, ll. 17-18; Dr. Heinrich Cross, October 22, 2019, p. 126, ll. 5-7.

[^157]: Dr. Crowther Chief, October 24, 2019, p. 64, ll. 21-26.

[^158]: Dr. Dibble Chief, October 21, 2019, p. 42, ll. 13-14.

[^159]: Dr. Dibble Cross, October 21, 2019, p. 65, l. 20 to p. 66, l. 2

[^160]: Dr. Dibble Chief, October 21, 2019, p. 65, ll. 20-32 to p. 66, ll. 1-2.

[^161]: Dr. Weeks Chief, October 23, 2019, p. 16, ll. 5-6; Dr. Myers Cross, October 10, 2019, p. 159, ll. 13-17.

[^162]: Dr. Myers Chief and Cross, October 10, 2019, p. 39, ll. 21-32 to p. 40, ll. 1-21.

[^163]: Dr. Dibble Cross, October 21, 2019, p. 107, ll. 7-11.

[^164]: Dr. Myers Cross, October 10, 2019, p. 146, ll. 2-4.

[^165]: Dr. Myers Cross, October 10, 2019, p. 126, l. 31-32 to p. 127, ll. 1-2.

[^166]: Dr. Geerts Cross, October 15, 2019, p. 44, ll. 17-24.

[^167]: Dr. Geerts Cross, October 15, 2019, p. 81, ll. 17-27.

[^168]: Dr. Weeks Chief, October 23, 2019, p. 8, ll. 3-15; Dr. Myers Cross, October 10, 2019.

[^169]: Dr. Dibble Chief, October 21, 2019, p. 32, ll. 30-32 to p. 33, ll. 1-4.

[^170]: Dr. Dibble Chief, October 21, 2019, p. 38, ll. 21-27 ; Dr. Dibble Cross, October 21, 2019, p. 111, ll. 24, 32 to p. 112, ll. 1-2.

[^171]: Dr. Dibble Chief, October 21, 2019, p. 39, ll. 20-26; Dr. Dibble Cross, October 21, 2019, p. 68, ll. 14-23; Dr. Geerts Cross, October 15, 2019, p. 61, ll. 22-31.

[^172]: Dr. Dibble Chief, October 21, 2019, p. 39, ll. 14-26; Dr. Dibble Cross, October 21, 2019, p. 99, ll. 10-13.

[^173]: Dr. Weeks Chief, October 23, 2019, p. 7, ll. 30-32 to p. 8, ll. 1-12.

[^174]: Dr. Weeks Chief, October 23, 2019, p. 8, ll. 21-28.

[^175]: Dr. Weeks Chief, October 23, 2019, p. 58, ll. 32 to p. 59, ll. 1-14.

[^176]: Dr. Myers Cross, October 10, 2019, p. 109, ll. 1-12.

[^177]: Dr. Myers Cross, October 10, 2019, p. 109, ll. 13-15.

[^178]: Dr. Myers Cross, October 10, 2019, p. 108, ll. 23-28.

[^179]: Dr. Myers Cross, October 10, 2019, p. 93, ll. 1-16, p. 150, ll. 16-22.

[^180]: Dr. Myers Cross, October 10, 2019, p. 136, ll. 23-32 to p. 137, ll. 1-4, p. 159, ll. 13-17.

[^181]: Dr. Myers Cross, October 10, 2019, p. 150, ll. 24-25.

[^182]: Dr. Myers Cross, October 10, 2019, p. 171, ll. 3-22.

[^183]: Dr. Geerts Cross, October 15, 2019, p. 65, ll. 30-32 to p. 66, ll. 1-7.

[^184]: Dr. Myers Cross, October 10, 2019, p. 129, ll. 6-11.

[^185]: Dr. Myers Cross, October 10, 2019, p. 164, ll. 1-4.

[^186]: Dr. Dibble Chief, October 21, 2019, p. 41, ll. 12-15.

[^187]: Dr. Weeks Chief, October 23, 2019, p. 7, ll. 26-29, p. 10, ll. 27-32 to p. 11, ll. 1-9; Dr. Weeks Chief, October 23, 2019, p. 10, ll. 14-20.

[^188]: Dr. Myers Cross, October 10, 2019, p. 91, ll. 7-14.

[^189]: Dowd, supra at para. 36.

[^190]: Dr. Myers Chief, October 10, 2019, p. 47, ll. 11-15.

[^191]: Dr. Crowther Chief, October 24, 2019, p. 27, ll. 7-17; p. 29, ll. 3-10.

[^192]: Dr. Myers Cross, October 10, 2019, p. 91, ll. 23-29.

[^193]: Dr. Myers Cross, October 10, 2019, p. 79, ll. 3-9.

[^194]: Dr. Myers Cross, October 10, 2019, p. 79, ll. 4-10; p. 81, ll. 7-17

[^195]: Dr. Myers Cross, October 10, 2019, p. 99, ll. 20-25.

[^196]: Dr. Myers Chief, October 10, 2019, p. 40, ll .22-32.

[^197]: Dr. Myers Cross, October 10, 2019, p. 73, ll. 4-6.

[^198]: Dr. Myers Cross, October 10, 2019, p. 66, ll. 16-18.

[^199]: Dr. Myers Cross, October 10, 2019, p. 86, ll. 15-20.

[^200]: Campbell v. Roberts, 2014 ONSC 5922 at para. 90.

[^201]: Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada 4th ed. (Toronto: Carswell, 2007) at pp. 299-311.

[^202]: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 at para. 46; Watson, supra at para. 112.

[^203]: Clements, ibid at para. 8; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 at para. 26.

[^204]: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 16.

[^205]: Watson, supra at para. 115.

[^206]: Salter v. Hirst, 2011 ONCA 609 at para. 14, leave to appeal refused, 34536 (July 19, 2012).

[^207]: Laferrière v. Lawson, [1991] S.C.R. 541, at p. 605; Salter, ibid at paras. 14-15.

[^208]: Cottrelle v. Gerrard, 2003 CarswellONT 4154 (C.A.) at para. 25.

[^209]: 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; see also Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193 at paras. 5, 10.

[^210]: Trial Transcript October 15, 2019, pgs. 19, 20

[^211]: Transcript October 15, 2019, pg. 19

[^212]: Transcript October 15, 2019, pg. 20

[^213]: Transcript October 15, 2019, pgs. 20, 22

[^214]: Transcript October 15, 2019, pg. 38

[^215]: Cottrelle, supra at para. 25.

[^216]: Dr. Myers Cross, October 10, 2019, p. 223, ll. 21-32.

[^217]: Dr. Crowther Direct, October 24, 2019, p. 10, ll. 1-6; Dr. Crowther Cross, October 24, 2019, p. 69, ll. 1-14.

[^218]: Dr. Geerts Direct, October 15, 2019, p. 6, ll. 6-14.

[^219]: Dr. Geerts Cross, October 15, 2019, p. 40, ll. 2-14.

[^220]: Dr. Dibble Direct, October 21, 2019, p. 41, ll. 3-11; Dr. Teoh Direct, October 21, 2019, p. 134, ll. 26-32.

[^221]: Dr. Crowther Cross, October 24, 2019, p. 81, ll. 5-13.

[^222]: Dr. Dibble Cross, October 21, 2019, p. 58, ll. 9-26.

[^223]: Dr. Geerts Direct , October 15, 2019, p. 21, ll. 21-32 to p. 22, ll. 1-4.

[^224]: Dr. Crowther Direct, October 24, 2019, p. 33, ll. 26-32 to p. 34, ll. 1-9.

[^225]: Dr. Crowther Direct, October 24, 2019, p. 34, ll

OVERVIEW

THE PARTIES

The Plaintiffs

The Defendant Physicians

MEDICAL CHRONOLOGY

EXPERT ISSUES

EXPERT ISSUES IN THIS TRIAL

A. Dr. Myers – Cardiologist who provided opinion evidence regarding Drs. Dibble and Teoh

(iii) The very same thing can be said of Dr. Myers in this case, who agreed that:

(a) physicians are divided into two categories: medical and surgical. Dr. Myers is in the “medical” category rather than the “surgical” category;[^19]

(b) he has never trained in or practiced cardiac surgery;[^20]

(c) a cardiac surgeon does not have the same training and expertise in echocardiography that a cardiologist has;[^21]

(d) the ultimate decision to go to surgery is always made by the surgeon rather than the cardiologist, and the perspective of a surgeon is different than the perspective of a cardiologist;[^22]

(e) in making a surgical decision, there are factors a surgeon considers which are beyond that of a cardiologist (though Dr. Myers could not say whether there are “many” or “some” factors, since he does not know because he is not a surgeon.);[^23]

(f) he has never been on the “receiving end” of a cardiologist’s opinion like Dr. Teoh has;[^24] and

(g) he is not a peer of Dr. Teoh.[^25]

(iv) Dr. Myers testified that the reason he is qualified to opine on the cardiac surgeon in this case is because both cardiologists and cardiac surgeons are “looking at the same material”.[^26] That is not the test.

ANALYSIS

(a) Dr. Myers has never trained for nor performed cardiac surgery;

(b) Dr. Myers is not a peer of Dr. Teoh. Physicians are placed in two categories. In terms of physicians, Dr. Myers falls into the medical category and Dr. Teoh into the surgical category. They are in two completely different categories;

(c) the decision to proceed to surgery is always made by the surgeon;

(d) Dr. Myers has never received a cardiologist's opinion, whereas Dr. Teoh has received many such opinions.

B. Dr. Kelly – American Cardiac Anaesthetist who provided opinion evidence regarding Dr. Heinrich

(a) first, Dr. Kelly is not a qualified expert and his purported evidence is a matter of fact (which is not the domain of an expert); and

(b) second, the unanimous and uncontradicted evidence is that Dr. Heinrich communicated his findings to Dr. Teoh.

(b) second, Dr. Kelly’s evidence is not one which requires expert opinion at all: his opinion on whether Dr. Heinrich properly informed Dr. Teoh amounts to a factual finding, which is the domain of the trier of fact, not an expert.

ANALYSIS

C. Dr. Hill – Rehabilitation, Health and Counselling Psychologist

(a) she does not have the professional credentials to provide a diagnosis of depression or anxiety; in fact, she is required to refer any suspected case of depression or anxiety to a clinical psychologist;[^45]

(b) despite not having credentials as a forensic psychologist and purporting to offer a causation opinion anyway, she also did not examine the patient nor document reasonable efforts she made to examine the patient, which is required by the guidelines for such opinions.[^46]

D. Dr. Crowther – Cardiologist who provided opinion evidence regarding Dr. Dibble

STANDARD OF CARE

STANDARD OF CARE ANALYSIS

A. Dr. Heinrich

B. Dr. Teoh

(ii) Dr. Masters testified that Dr. Teoh met the standard of care in all aspects of his care for Ms. Stepita.[^72]

(a) he reviewed the records sent by Dr. Dibble, including the June 15 TTE report which expressly references Dr. Dibble’s consideration of thrombus, and scheduled a prompt appointment with Ms. Stepita;[^79]

(b) he independently reviewed the June 27 TEE films;[^80] and

(c) he met with the patient to conduct a clinical assessment, including a history and physical examination.[^81]

(a) first, Dr. Masters is the only true peer of Dr. Teoh;

(b) second, Dr. Myers’ opinion was tainted by hindsight;

(c) third, Dr. Myers did not consider Dr. Teoh’s thinking in reaching his opinion; and

(d) fourth, Dr. Myers’ opinion that the nature of the mass was “blatant and obvious” is belied by the volume of physicians who looked at the mass and disagreed.

(x) While the plaintiffs appear to criticize Dr. Teoh for proceeding with surgery after the intraoperative TEE, no expert (not even Dr. Myers) opined that this was below the standard of care.

C. Dr. Dibble

(i) in his report of the June 15 TTE, Dr. Dibble used the word “thrombus” (stating that it was less likely);[^140]

(b) With respect to the growth of myxoma, Dr. Myers suggested that the mass did not grow in a manner that would be expected of myxoma, but conceded that there is very little known about the growth patterns of myxoma. He agreed that this is because “when we find them, we operate on them”.[^165]

(b) Second, Dr. Myers agreed that the embolic threat of a mass is a consideration in determining appropriate treatment. He disagreed that this mass posed an embolic threat but conceded that this is a difficult (and appropriate) assessment for a physician to make.[^184]

(a) First, Dr. Myers is not a peer of Dr. Dibble. He is a cardiologist at a tertiary care centre, whereas Dr. Dibble (like Dr. Weeks) practices at a community hospital. Dr. Myers agreed that Dr. Dibble’s knowledge and training is from the perspective of a community cardiologist.[^192]

CAUSATION

(i) Dr. Geerts provided the necessary reliable opinion evidence that the defendant physicians’ negligence caused the unnecessary surgery.

(vi) Dr. Geerts believed that that the probability of Ms. Stepita having a clot was so high, he would have started anticoagulation immediately, while waiting for further diagnostic testing.[^214]

(ii) The plaintiffs have advanced various theories with respect to causation. Importantly, however, Dr. Myers conceded that it is not his opinion that surgery would have ultimately been avoided:

(iii) Accordingly, the plaintiffs’ theory of causation requires considering the expert evidence in respect of three questions:

(a) first, if other diagnostic imaging tools had been used, or if there had been a referral to a hematologist, is it more likely than not that the mass would have been diagnosed as thrombus?

(b) second, had the mass been diagnosed as thrombus or more likely thrombus, what treatment would Ms. Stepita have received?

(c) third, had the mass been treated medically, would the treatment have likely been successful such that surgery would be avoided?

(ix) Accordingly, it cannot be said that it is more likely than not that had further imaging been ordered, the mass would have been diagnosed as thrombus.

(x) Dr. Myers opined that as a result of the alleged breach of the standard of care in the diagnosis of the mass, Ms. Stepita was denied a referral to (or consultation with) a hematologist and the use of medical (rather than surgical) treatment.[^234]

(xii) Dr. Crowther’s opinion that the patient should be referred to surgery was informed by the potential for complications from a mass such as the one Ms. Stepita had, of which there are three categories:

(a) first, the mass itself can interfere with the function of the heart;

(b) second, the mass can break off and move downstream, causing pulmonary embolism; and

(c) third, the mass can cause electrical disturbance to the heart which can lead to arrhythmia and which can cause injury or death.[^238]

(xvi) Anticoagulation prevents new blood clots from forming, but it does not break down existing clots directly. The hope with anticoagulation is that, when used, the body can “do its own magic” and break down an existing clot through the body’s natural clot-busting agents.[^243]

(xvii) It is important to distinguish between two aspects of the plaintiffs’ theory with respect to anticoagulation:

(a) first, the plaintiffs appear to advance that Ms. Stepita ought to have been treated with a trial of anticoagulation as some sort of diagnostic tool;

(b) second, the plaintiffs advance that because the mass ought to have been diagnosed as thrombus, Ms. Stepita ought to have been simply treated with anticoagulation for months or years on the basis of that diagnosis.

(xix) Even if anticoagulation had been used on this mass, the evidence is that it is unlikely that this particular thrombus would have resolved.[^247]

ANALYSIS OF CAUSATION

INFORMED CONSENT

(ii) Ms. Stepita would have never consented to the invasive cardiac surgery if she was informed there was a possibility of a clot and possible alternatives, and this is objectively reasonable.

(iv) Ms. Stepita and any reasonable person, given the fact that MRI was 95 percent accurate, and anticoagulation is highly successful and could be discontinued after the removal of the port without any invasive cardiac surgery would never have consented to cardiac surgery.

(v) After having the clot for five months and having prior echocardiograms, Ms. Stepita would have readily agreed to have some simple anticoagulation and some follow-up echocardiograms like she was having anyway to monitor the chemo instead of having invasive cardiac surgery.

(iii) There are 3 issues in respect of the plaintiffs’ informed consent claim:

(a) first, no expert opined that the standard of care required Dr. Teoh to disclose that the mass could be a clot: a diagnosis which he did not find to be likely;

(b) indeed, the only expert in this case who opined on informed consent in this case was Dr. Masters, whose opinion is that Dr. Teoh’s discussion with Ms. Stepita met the standard of practice.[^275] Surgeons are not required to disclose diagnoses that they believe to be remote;[^276]

(c) second, all experts agreed that surgery, not medical therapy, is the appropriate treatment for a suspected myxoma. [^277] No expert opined that an alternative treatment which is not appropriate for the anticipated problem at hand is required to be offered to a patient;

(v) Should this court find that Dr. Teoh did not obtain Ms. Stepita’s informed consent, a reasonable person in Ms. Stepita’s position would have proceeded to surgery in any event.

(vii) First, Ms. Stepita consistently demonstrated a preference for treatment, often surgical treatment, to mitigate risk:

(a) Ms. Stepita testified that she chose “the most aggressive treatments from surgical to chemo” for her breast cancer (including choosing a mastectomy over a lumpectomy because of the slightly decreased risk recurrence);[^281]