Court File and Parties

COURT FILE NO.: CV-10-415744 DATE: 2020/01/27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA ANN SMITH Plaintiff

– and –

DR. BRENDA KANE, DR. DENNY KHIET Y. TRINH, LMC ENDOCRINOLOGY CENTRES (TORONTO) LTD., DR. SHELDON NADAL, STEPHEN GALPERIN and DR. MICHAEL VIZEL Defendants

– and –

DR. ROBERT EVANS and DR. RUBINA TAHIR Third Parties

COUNSEL: Ryan Naimark, Kate MacLeod and Courtney Madison, for the Plaintiff Junior Sirivar and Sam Rogers, for the Defendants

HEARD: September 23-27, October 2-4, 7, 16, 17, 2019

BEFORE: GANS J.

Reasons for judgment

Introduction[^1]

[1] Diabetes mellitus, commonly known as diabetes, is an insidious disease. It is characterized by high blood sugar levels over a long period of time, which, if left untreated, can lead to serious complications. These may include cardiovascular disease, stroke, kidney disease, severe retinal deterioration (diabetic retinopathy), peripheral neuropathy, and foot ulcerations or other manifestations of what was referred to in evidence as “diabetic feet”.

[2] Prevention and treatment or treatment once diagnosed are critical to the health and well-being of the patient. Standard modalities involve maintaining a healthy diet, regular exercise, achieving a ‘normal’ body weight and avoiding the use of tobacco. Those measures, coupled with vigilant blood pressure control, proper and constant foot and eye care are essential to avoid the ravages of this all too common disease.

[3] The plaintiff - Patricia Smith - suffered from this disease, which was in the forefront of her overall health care requirements when she first became a patient of the defendant, Dr. Brenda Kane, in the summer of 2003.

[4] This case concerns the diagnosis and treatment of Ms. Smith under the care of Dr. Kane after she presented with a “sprained” ankle in mid-December 2007.[^2]

Facts

History

[5] Ms. Smith is presently in her late 50s. She has been described by several of her attending physicians as “obese”. She was diagnosed with Type 2 diabetes in 1998 by her former family physician. She has a significant family history of diabetes, which stretches back to her grandmother and includes multiple aunts and uncles.

[6] She was, at all material times, aware of the potentially serious complications of the disease if it were not controlled. When she herself was first diagnosed with diabetes, she was made aware of the importance of physical activity, controlling or reducing her weight, stopping smoking, which she was doing at the time of her diagnosis, and the importance of glucose self-monitoring. She attended at least one diabetic education program prior to her first visit with Dr. Kane and may have been to one more program prior to the events giving rise to the matters in issue in this case in 2008.[^3]

[7] When she first attended upon Dr. Kane in 2003, it is fair to say her diabetes management was close to abysmal. Her sugar readings were well beyond the high end of acceptable, her weight was excessive by medical standards, and her activity level was very limited. She was, to say the least, a diabetic accident waiting to happen.

[8] In early 2004, Dr. Kane referred the patient to Dr. Trinh, an endocrinologist, who, for some time thereafter, assumed the medical management of Ms. Smith’s diabetes, although the time parameters within which Trinh was the “responsible” physician for her diabetes is a little unclear, particularly as events unfolded in the Fall of 2008. Suffice to say that when Ms. Smith first presented to Dr. Trinh in early 2004, he observed that her “…glycemic control is poor…likely due to her non-compliance to diabetic diet and worsening underlying insulin resistance”.[^4] This pattern of non-compliance and poor glycemic control continued throughout the next several years with but modest and sporadic improvements to the bench mark items regarded by her treating physicians and other health care professionals.

Right Foot Injuries

[9] In November 2007, Ms. Smith slipped on some ice, as I recall, in the vicinity of her apartment. She sustained a right ankle injury, which Dr. Kane described in a mid-December patient note as “plantar fasciitis” (“Second Foot Injury”).[^5]

[10] This was the second time Ms. Smith hurt her right foot while walking. She sustained an ankle injury in December 2004 (“First Foot injury”), which Dr. Kane had previously noted was in the area of the Achilles Tendon.[^6] Because the issue did not resolve itself, Ms. Smith was sent for right foot imaging in late April 2005, where it was reported that she had a “moderate-sized calcaneal spur…at the insertion of the Achilles Tendon”.[^7] She was also sent to the fracture clinic at Sunnybrook/WCH, at her request if not insistence, where the examining consultant recommended continued physiotherapy and chiropody.

[11] Apparently, the pain in her right foot persisted intermittently throughout 2005, into 2006. Regrettably, the Smith-patient file entries for this period are less than clear in setting the time parameters and the descriptors for the resolution of the First Foot Injury. Indeed, there is a mix of diagnoses from the aforesaid described calcaneal spur to plantar fasciitis and includes a description of tendonitis in the area of the leg above the foot. On balance, I believe it is more probable than not that this injury had resolved itself by the time of the occurrence of the Second Foot Injury, which is at root of the issues in this action.

[12] In the latter part of January 2008, a month after she initially attended upon Dr. Kane, because the Second Foot Injury was not then resolving and was not responding to a regiment of ice, elevation, acupuncture, and compression, Dr. Kane sent Ms. Smith for a series of two different X-rays. The X-rays, which were done two days apart by the same radiologist, provided Dr. Kane with the following information:

Moderate soft tissue swelling noted. Radiographic evidence of ankle joint effusion. No ankle fractures or subluxation noted.

On the lateral projection well corticated bony fragments noted adjacent to the anterior calcaneal margin. Old fractures or accessory ossification centres would be in the differential. Large plantar calcaneal spurs.

OPINION: NO DEFINITE ACUTE FRACTURE NOTED. ANKLES STRESS VIEWS TO ASSESS ANKLE JOINT INSTABILITY MAY BE OF BENEFIT. IN ADDITION AN ANKLE ULTRASOUND TO ASSESS THE LIGAMENTS AND TENDONS MAY BE OF BENEFIT.[^8]

[13] The distillation of the second report, of which Dr. Kane made a note in Ms. Smith’s patient file, was that there was “no fracture, some swelling in the tissue” and that Ms. Smith should continue to use ice and compression bandages, which information was communicated to Ms. Smith by Dr. Kane’s office.[^9]

[14] Cutting to the chase, the radiologist observed that there was no traumatic fracture to the right ankle, which diagnosis became the operative diagnosis throughout the balance of 2008. Regrettably, Dr. Kane was not advised that Ms. Smith had, perhaps, sustained a “neuropathic fracture” in the ankle, which I was told is characterized by a progressive degeneration of a weight bearing joint.

[15] Had Dr. Kane been advised of this “harbinger” in as early as January 2008, I am satisfied, as the defendant conceded in argument, that the treatment Ms. Smith would have received throughout the balance of the year would have been markedly different. Of greater significance, and more probably than not, she would not have had to undergo a below knee amputation to arrest and eradicate the condition with which she was ultimately diagnosed.[^10]

[16] The disease with which she was diagnosed is called Charcot foot. It is a condition which causes a weakening of the bones in the foot that can occur in people who have significant nerve damage (neuropathy) which, as in the instant case, is a known consequence of diabetes. The bones are weakened enough to fracture, even minutely, and, with continued walking, the foot eventually changes shape, as it unfortunately did for Ms. Smith, dramatically. This malformation, depending on its severity and where along the continuum of the disease, may necessitate a below-knee amputation, as took place in the winter 2009.

First Issue

[17] The first issue with which I must grapple is whether Dr. Kane’s “diagnosis” and/or “treatment” of the Second Foot Injury from January 2008 to the time of the referral to an orthopedic specialist in early December 2008 fell below the standard of care of a reasonably competent family physician.

[18] I preface my remarks by noting that there is no suggestion that Dr. Kane should have concluded at any time during the relevant period that Ms. Smith was suffering from Charcot foot. That condition is too rare for it to be readily diagnosable by a reasonably competent family practitioner. Indeed, it was not picked up by any physician or other health care provider, including podiatrists, chiropodists, and chiropractors familiar with the condition, who saw Ms. Smith on multiple occasions throughout the balance of 2008.

[19] The first issue to resolve is whether Dr. Kane managed Ms. Smith’s care in a reasonably competent fashion after receiving and reviewing the radiological reports of Ms. Smith’s ankle in late January 2008.

[20] Dr. Kane had a busy family practice during the relevant period. On the one hand, I do not find it surprising that she could not recall with any degree of exactitude the individual visits to which her patient notes reference. On the other hand, I found her evidence more than a little troubling, if not self-serving, when she testified as to why she did or did not do undertake certain investigatory steps along the way between January and September 2008, particularly since her notes themselves do not support or reference the treatment plans about which she testified.

[21] Much of that evidence, which is underscored in some detail in the plaintiff’s written argument, sounded more of an “after the fact” rationalization than a temporal reasoned approach to Ms. Smith’s diagnosis and treatment.

[22] Putting the matter otherwise, Dr. Kane knew Ms. Smith was a ‘non-compliant’ diabetic patient who suffered an ankle injury in late November 2007, which was, first, in a different locus to the First Ankle Injury and was, secondly, manifesting itself, arguably, differently from the get-go.

[23] Yet she did not arrange for any follow-up with Ms. Smith, even after receiving a report from a retinal specialist in early February indicating that at that time Ms. Smith was experiencing “moderately severe background diabetic retinopathy in both eyes”, a condition which Dr. Kane knew could not be ignored as it could cause blindness.[^11]

[24] Dr. Kane assumed, albeit incorrectly, that Ms. Smith’s diabetic care remained under the stewardship of Dr. Trinh, the endocrinologist to whom she had been sent in mid-2003. The evidence indicates that Ms. Smith was to attend upon Dr. Trinh or his endocrinology clinic every four months. Dr. Kane knew or ought to have known from the extent and timing of the Trinh reports to her that Ms. Smith’s attendance or compliance with his insistence on self-monitoring was spotty at best throughout 2007 into the latter part of 2008 when Dr. Kane was compelled to requisition a hurry-up consult with Dr. Trinh, to which reference will be made below.

[25] While there was ‘some’ evidence that Ms. Smith was to see Dr. Kane every two months or so at her convenience, she did not reattend at Dr. Kane’s office after the Second Foot Injury until early April when she came through to the after-hours clinic and was seen by one of Dr. Kane’s on-call associates.[^12] On that visit, Ms. Smith ambulated with the aid of a cane and was assessed as having “peripheral edema-post traumatic”. She was advised, however, to follow-up with Dr. Kane.[^13]

[26] This diagnosis by Dr. Kane’s colleague, I would add, was consistent with those provided by Ms. Smith’s other non-College of Physicians and Surgeons of Ontario (“CPSO”) health care providers, including at least one podiatrist, whom she saw in mid-March, who diagnosed her with a “post ankle injury” and prescribed a wrap and hydrotherapy.[^14]

[27] She did not come back to Dr. Kane until late July, some almost seven months after her last visit. Dr. Kane was told on that visit that Ms. Smith, whom she noted as being obese, was “not active” “because of [her] foot” and that she had right foot pain and swelling.[^15]

[28] I digress to observe that each counsel attempted to put his own gloss on the notes of July 28th as supportive of the respective position of the parties. That said, I am left to struggle with my own interpretation of the events from all the patient files and the surrounding circumstances.

[29] Suffice it to say that I find the notes of that “examination”, such as they were, to be equivocal and less than helpful. What was more telling was Dr. Kane’s own testimony under cross-examination which lead me to conclude that after eight months, Dr. Kane was no further ahead in coming to grips with her patient’s Second Foot Injury condition, which she testified might then very well have been a “severe” or “bad sprain” or a Grade 2 sprain with a partial tear.[^16]

[30] Notwithstanding the passage of time, (and the absence of a noted diagnosis), Dr. Kane did not think it necessary to obtain an orthopedic consult or send Ms. Smith for some further imaging. Her rationale at trial, which was different from her testimony on discovery, seemed to be that because Ms. Smith was scheduled to see a chiropodist or podiatrist, the ankle injury would be attended to by others.[^17] I was left with the impression that the Second Foot Injury was of secondary import at that moment in time.

[31] Instead, Dr. Kane was of the view that there might be some other more “sinister” explanation for the right foot swelling, namely an ‘upstream’ abdominal tumor, for which she ordered a pelvic ultrasound.

[32] The pelvic ultrasound results were normal, of which Dr. Kane was aware in early August. However, for reasons which were not made clear in evidence, Ms. Smith did not see Dr. Kane again until late in August, at which time she presented yet again with a sore and swollen right ankle and now leg, above the area of the Achilles.

[33] Dr. Kane testified that she was of the view that this symptomology was reminiscent of the First Ankle Injury, but because Ms. Smith was now complaining of numbness in her right foot, she referred her to a neurologist for a nerve conduction study. As best as I can tell, she did not conduct a monofilament test for neuropathy, a simple test of which she was aware, at any time that Ms. Smith was her patient. She merely ‘suspected’ that Ms. Smith suffered from peripheral neuropathy. In addition, she prescribed Lasix, which she hoped would bring down the swelling.

[34] She continued to pursue the ‘differential’ diagnosis of a pelvic tumor and sent Ms. Smith for a CT scan in early September. When the results came back negative for a tumor in mid-September, she pursued or attempted to seek out an alternative explanation for Ms. Smiths’ lymphedema by attempting to obtain a referral to a hematologist, which request was rejected not once but three times as not being medically appropriate.

[35] Notwithstanding the fact that she had ruled out or should have ruled out the pelvic tumor which was her working differential - if not primary - diagnosis, as late as mid-September, Dr. Kane did not think it necessary to send Ms. Smith for any further foot imaging (MRI or X-ray) or refer her to an orthopedic specialist. Nor did she consider referring her back to Dr. Trinh, whom she testified she thought was monitoring Ms. Smith’s diabetes although there were no reports in her patient files for close to a year, when the results of the CT scan were received in mid-September.

[36] As referenced above, Dr. Kane was able to secure a neurological assessment, albeit one limited to a nerve conduction test, in the latter part of October. This exam noted that Ms. Smith was suffering from “advanced…diabetic type polyneuropathy”.[^18]

[37] Ms. Smith went into see Dr. Kane on the day the report was received - presumably because she was summoned to her office - at which time she was advised of the severity of her condition; advised yet again of the necessity to control her diabetes; and referred immediately to Dr. Trinh, to whom Dr. Kane undoubtedly realized Ms. Smith had not then seen in over a year.

[38] She went to see Dr. Trinh a few days later. Although possessed of the recently obtained neurologist’s report in which the polyneuropathy was highlighted, he did not observe any ulceration or deformity in her right ankle; observe any swelling that would have masked a deformity; or note anything that would indicate that Ms. Smith had Charcot’s foot. Indeed, the parties have stipulated that Dr. Trinh did not believe Ms. Smith had Charcot’s foot at the time of this visit on October 24th and hence did not refer her to any other specialist or order any further imaging.[^19]

[39] Dr. Kane saw or spoke to Ms. Smith three times in November. Each of these consultations focused on her diabetic management and glycemic control. She saw her again in early December when Ms. Smith came in seeking an orthopedic referral, which Dr. Kane ordered immediately, but one was not obtained until mid-January.

[40] The two orthopedic surgeons whom she saw in January and early February, Drs. Barrington and Mastrogiacomo, were of the opinion that: there was significant destruction to her mid-foot and hind-foot; that surgical reconstruction or repair was impossible; but because there was impending skin breakdown, and the impacted area was poised to ulcerate, a below-knee amputation was mandated, which took place in mid-March.

Standard of Care

[41] There is little to separate the parties on the general principles to be applied in determining whether a physician’s patient treatment falls below acceptable standards of care. The legal bromide has long since been expressed as follows:

Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing.[^20]

[42] Thereafter, however, I was hard-pressed to extract immutable propositions of law from the welter of cases with which I have been provided by both sides as underscored in their respective, well-constructed, written arguments. At the risk of oversimplifying matters, I have attempted to set out below certain instructive principles that I am of the opinion apply to the instant case:

(1) The specific facts of each case are an essential component for the determination of liability;[^21]

(2) The determination of the applicable standard of care is, to state the obvious, an obligation of the trier of fact;[^22]

(3) The trier of fact “must be cautious to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards”;[^23]

(4) The conduct of a physician must be judged through the lens of the knowledge that should have been reasonably within their possession at the time. The physician cannot be judged in hindsight;[^24]

(5) An error in judgment does not amount to negligence where the physician appropriately exercises clinical judgment;[^25]

(6) The standard is not one of perfection;[^26] and,

(7) A bad outcome does not constitute proof of negligence.[^27]

[43] There is one further proposition upon which I should instruct myself, namely that there is no absolute test to ascertain when a physician should refer a patient to a specialist or seek a consultation. The cases seem to suggest that a referral or consultation may be mandated when: (a) the doctor is unable to diagnose the patient’s condition and/or (b) the patient is not responding to the prescribed treatment.[^28]

Intersection of facts and law – Standard of Care

[44] As often happens in lawsuits, the plaintiff’s theory took on a different focus during the currency of the unfolding evidence, which was captured, succinctly, in plaintiff Counsels’ overview: A swollen, painful right foot; undiagnosed for almost 12 months; leads to a below knee amputation.

[45] In their written argument, Ms. Smith’s counsel distilled the above-stated factual matrix into a five-point legal analysis:

1. the defendant had a duty to diagnose, based on the taking of a thorough history, conducting appropriate tests, and making the necessary and requisite referrals;

2. the defendant engaged in tunnel vision and failed to reconsider an earlier diagnosis;

3. the defendant failed to refer Ms. Smith to other consultants or obtain further imaging when she knew or ought to have known that she was no further ahead in her diagnosis than she had been at first instance, some almost ten months before;

4. her patient record keeping was less than optimum;

5. cumulatively, her patient care fell below acceptable standards of a reasonably competent family practitioner.

[46] I have flip-flopped on the issue of standard of care several times, in no small measure because of the first-rate written arguments I received from both sides of the aisle. For reasons which follow, I am not persuaded that it is more probable than not that Dr. Kane’s treatment of Ms. Smith, particularly in the period from August to the end of October, fell below the standard of care of a reasonably competent family practitioner, in either not referring her to an orthopedic specialist or not having ordered repeat imaging of her right foot.

[47] I hasten to observe that I have reluctantly come to the above conclusion because through much of the trial, in particular, during Dr. Kane’s evidence itself, I was troubled by what appeared to be a period of “dithering” when Dr. Kane did not undertake a contemporaneous alternative investigation with, first and foremost, repeat imaging of the right foot. That having been said, as will be discussed below, the plaintiff’s expert evidence on this very issue was not as focused as it might have been to lead me to an alternate conclusion.

[48] My starting point, however, is to revisit, albeit but briefly the evidence of the opposing family practitioner experts, Dr. Osborne called by the plaintiff, and Dr. Morris, for Dr. Kane.

[49] I preface my remarks by noting that where the evidence of Dr. Morris conflicts with that of Dr. Osborne, the latter of whom is no doubt a first-rate practitioner, I accept that of the former over that of Dr. Osborne.

[50] In the first place, I found that Dr. Osborne did not fully appreciate her duties as a Rule 53 expert. She was too argumentative, was not prepared to yield or concede ground when she should have, was reluctant to accept assumptions, which is part of the routine for experts under cross-examination and was, herself, a little wedded to her own thesis. The opposite observations can be made about Dr. Morris, and therefore I found his evidence helpful.

[51] While no doubt, as I concluded, Dr. Osborne is a first-rate practitioner, she tended to set the bar for the reasonably competent practitioners a little too high. The example that comes to mind is her insistence that Dr. Kane’s note keeping was wanting in detail and should have been more a transcription of her patient visits, which was a standard that even exceeded the recommended record keeping principles published by the CPSO.[^29] While I would have benefitted from a more detailed description of Dr. Kane’s contemporaneous observations for some of Ms. Smith’s visits, I am not persuaded that my inability to decipher Dr. Kane’s notes is the litmus test that should be applied in the circumstances. On balance, I did not think that her note-taking fell below the standard described in the CPSO Policy Statement #5-05.

[52] As well, Dr. Osborne was something of an outlier in holding firm to the view that the report of imaging that Dr. Kane received in January 2008 was “inconclusive” and therefore there should have been repeat imaging or a referral to an orthopedic specialist at that time. This position placed Dr. Osborne at odds with not only the doctors from whom I heard at trial, but even the doctors, including a treating orthopedic surgeon, who had occasion to review and comment on the January 2008 reports, albeit a year later.[^30]

[53] While not dispositive of my view of her evidence, I was a little surprised to learn that Dr. Osborne had not reviewed the first trial evidence of Ms. Smith before testifying before me, which evidence was not only long since available, but, formed part of the record before me on the consent of counsel.

[54] What was, however, of more critical import for me was the fact that Dr. Osborne did not provide me with any detailed or cogent evidence or rationale for what Dr. Kane did or failed to do in the late summer and early fall of 2008 when she seemed to be focused or fixated upon a more “sinister” explanation for the ongoing leg lymphedema.

[55] In addition, I did not hear Dr. Osborne say that it fell below acceptable standards not to contemporaneously repeat or alter foot imaging by at least mid-September, while investigating the pelvic issues, even though there was no clear evidence of a bony malformation in the right foot and ankle.

[56] The only evidence I had on this issue was that of Dr. Morris who said that it would not have been “unreasonable”[^31] to obtain further imaging in the fall of 2008, but not to do so would not have fallen below acceptable standards.

[57] Put otherwise, since her notes were less than precise, I found Dr. Kane’s evidence on what was in her mind during this period and what she was then investigating was not only a little vague but was somewhat scattered. I was more than a little troubled by the fact that by the end of August, the right foot and ankle injury which Ms. Smith had sustained sometime the previous November was no closer to being diagnosed with certainty. Indeed, my concerns were underscored by the fact that I am satisfied on the evidence that the Second Foot Injury was, as I have noted, distinguishable from the First Foot Injury.

[58] This set of circumstances, though, cannot be trumped by my filling in evidence where none exists or by venturing an opinion or drawing a conclusion for which there is no supporting medical evidence. As I stated above, I am obliged to remind myself that I cannot “… speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards”.[^32]

[59] Put otherwise, evidence that a procedure would be “reasonable” does not give rise to a conclusion that its absence would lead one to conclude that such a course of conduct fell below acceptable standards.

[60] I cannot leave this section of the judgment without noting that to find that Dr. Kane did not breach the standard of care in not referring Ms. Smith to an orthopedic specialist in the late summer or fall of 2008 or not having ordered repeat imaging begs several observations.

[61] In the first place, I am satisfied on the evidence that merely sending Ms. Smith in the late summer or early fall for a consultation with an orthopedic specialist without further imaging would not have uncovered the underlying neuropathic condition from which she was then suffering.

[62] It is clear from the ASF that none of the health care practitioners whom she saw for her ‘feet related’ issues in the period August to October observed anything close to Charcot’s foot or were of the view that Ms. Smith should have been sent for further imaging. This evidence, found in the ASF, was distilled and stipulated on consent from multiple visits to two chiropractors in August, Drs. Evans and Tahir, one chiropodist on several occasions in July and August, Mr. Galperin, one neurologist, in late October, Dr. Roussev, and her endocrinologist in late October and early January, Dr. Trinh.

[63] A review of the reports and the ASF in respect of Dr. Trinh’s evidence is very instructive.

[64] In late October 2008, after conducting a physical exam of her right leg and foot, noting that she presented using a cane, Dr. Trinh concluded that her foot care was “suboptimal” and that she suffered from dry and callused skin.[^33] He was also aware at the time of this examination that she had advanced bilateral peripheral neuropathy, having been provided with Dr. Roussev’s report.

[65] Of equal note was the fact that Dr. Trinh did not observe any ulceration or deformity of her right ankle, did not see any swelling, and concluded that there was no swelling that would have masked any deformity to suggest that she suffered from Charcot foot. He did not therefore feel compelled to send her for further imaging and did not refer her or consider sending her to any other specialist.[^34]

[66] His main objective at this visit was to get her diabetes under control, but as indicated, his observations about her legs and ankle are noteworthy.

[67] Fast forward to January 12th, 2009 when Ms. Smith, on the eve of the referral to the orthopedic specialist (Dr. Barrington), went to see Dr. Trinh. He reported to Dr. Kane that “…she likely has both diabetic neuropathy and peripheral vascular disease” and recommended that she receive a vascular surgical consult in addition to the then scheduled orthopedic consultation.[^35]

[68] While he observed that she did have swelling on both feet, he was unable to detect a foot deformity, which he stipulated in the ASF might have been masked by the swelling.[^36]

[69] Knowing that Ms. Smith saw Dr. Barrington at about 1 p.m. on January 15th, and that the imaging of her foot took place about 1 hour before that appointment, and reviewing yet again the evidence summarized above, I draw the following conclusions:

(1) Ms. Smith’s Second Foot Injury was examined by each of the health care professionals to the same or a greater extent than was undertaken by Dr. Kane during the same period;

(2) None of the health care professionals who saw Ms. Smith at the relevant time was able to detect a deformity would have caused them concern or enough concern to order or recommend further imaging;

(3) The deformity in her foot was only uncovered as a result of the imaging that was undertaken on the 15th of January on orders from Dr. Barrington.

[70] In my opinion, these observations buttress my conclusion – and my preference for the evidence of Dr. Morse to Dr. Osborne – that Dr. Kane was not negligent in not ordering repeat imaging in the late summer or early Fall of 2008 absent some indication that Ms. Smith had a new or different bony “problem” which was different from her December 2007 initial presentation or the tear, which Kane acknowledged required casting.

[71] Regrettably, the plaintiff’s expert evidence covering this period was just too vague and imprecise to permit me to cross the evidentiary chasm.

[72] Furthermore, tempted as I am, I cannot and must not be driven by the tragic results of this matter as they ultimately unfolded. In this respect, the statement of the Supreme Court in LaPointe v. Hopital Le Gardeur is instructive:

[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.[^37]

[73] While not dispositive of the situation, I was of the view that the amputation, simpliciter, effected Dr. Osborne’s calculus and infused her conclusion, as became evident during her cross-examination.

[74] Again, I have reluctantly concluded that the plaintiff has failed to discharge the onus of establishing that Dr. Kane’s treatment of Ms. Smith during the summer and early fall fell below the acceptable standard of care required of a family doctor.

Causation

Legal Principles-Causation

[75] In the event it is decided that I am wrong on my conclusion in respect of the standard of care issue, and because much time and effort was spent by counsel on the issue of causation, I will render a decision on that issue at this moment in time.

[76] I preface my remarks by observing that generally, as was said by Laskin J.A. in Bafaro v. Dowd,[^38] a trial judge, or jury for that matter, should address the issue of causation after deciding the question of whether there has been a breach of the standard of care.

[77] Both sides are in agreement that the test for causation is the “but for” test which obliges the plaintiff to prove, on a balance of probabilities, that she would not have suffered the injury or loss, in the instant case, a below knee amputation, but for the defendant’s conduct in not ordering additional imaging in a timely fashion, what ever that might have been. A clear expression of that concept is found in the decision of Sharpe J.A. in Cottrelle v. Gerrard:

[C]ausation is established when the plaintiff proves, on a balance of probabilities, that the defendant caused or contributed to the injury. The generally applicable test is the “but for” test. This test “requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant” (citation omitted).[^39]

[78] I hasten to observe that in the instant case, the material contribution arm of the “but for” test is not in play, as the defendant correctly observed in her written argument.[^40] In that respect, I agree with the defendant that the material contribution test is restricted to “special circumstances” where: there are two or more tortfeasors in which, arguably, each might possibly be responsible for the loss; and the plaintiff, through no fault of her own, is unable to establish that one of the possible tortfeasors was the “but for” cause of the loss since each is alleging that the other was the responsible party.[^41]

[79] To repeat the obvious, there is but one potential tortfeasor, namely Dr. Kane. Hence the ‘expanded’ definition of the “but for” test is not mandated, as was the case in Sacks v. Ross.[^42]

[80] I also agree with the defendant that while causation need not be established with “scientific precision”,[^43] and I am permitted to apply a “robust and pragmatic” approach to the task, there must nevertheless be some “…sort of evidence (or other considerations) that indicates that the defendant was the cause of the harm suffered”.[^44] Put otherwise, “… a robust and pragmatic approach must be applied to evidence; it is not a substitute for evidence to show that the defendant’s negligence caused the injury”.[^45]

[81] With those concepts in mind, I now turn to the task at hand, namely, and assuming that Dr. Kane were negligent in not ordering repeat right foot imaging in September to the middle of October, would Ms. Smith, on a balance of probabilities, have avoided a below knee amputation. In my view, for the reasons that follow, it is more probable than not that her leg could have been saved and the below knee amputation avoided had she been sent for timely imaging.[^46]

Factual Matrix – Causation

[82] On the issue of causation, I heard from three experts, two called by the plaintiff, namely Dr. Rabinovich, an orthopedic surgeon, Dr. Mayer, a diabetic specialist, both of whose practice deals with the treatment of diabetic feet, and an orthopedic surgeon, Dr. Lalonde, called by the defence. I preface my remarks by observing that all three doctors discharged their respective obligations as Rule 53 witnesses in a first-rate fashion. Each of the three was fair, understandable, and of equal importance, patient with the Court.

[83] There was some measure of commonality among the three experts. They agreed on the description and definition of Charcot foot, the patient profile of one who suffers from the condition, and the varying stages and/or progression of the disease. To summarize but briefly the points of congruence:

• Charcot foot is characterized by a disintegration of the architecture of the foot, which progresses to a fragmentation of the bone at various aspects of the foot, leading to an eventual collapse of the foot;

• The common characteristics of a Charcot foot patient is someone who is generally: overweight, diabetic, exhibits poor glycemic control, and has a range of other medical issues, including high blood pressure and high cholesterol readings;

• The three stages of Charcot foot, once conservative treatment is successfully undertaken, are fragmentation, coalescence, and consolidation, or a return to a relatively functioning foot;

• Charcot foot is a condition that is never fully eradicated. It can be managed successfully, however, more often than not, if treated early enough along the continuum of fragmentation or deterioration;

• The conservative treatment modality requires education, immobilization, off-loading, and frequent follow-ups;

• Immobilization may take the form of a total contact cast or a CROW boot (moulded plastic boot akin to a ski-boot), which requires the patient to offload, that is, by being off their foot at, virtually, all times with the use of a one-legged scooter or similar device.

[84] It was the defendant’s initial primary position, elicited through the testimony of Dr. Lalonde, that Ms. Smith’s condition would have reached the point of “no return”, as it were, by the end of July 2008, by which I understood him to say that the lower limb could not thereafter have been saved with any form of conservative treatment.[^47]

[85] Dr. Lalonde’s conclusion was rooted to three principal components: the natural progression of the disease from its onset, which he theorized was the date of the trauma to the foot/ankle in November 2007; the location of the condition in the area of the hindfoot; and the personal characteristics of Ms. Smith, namely her obesity and her lack of glycemic control.

[86] Dealing with the first articulated principle, it was his opinion, both as a clinician, whose practice, unlike the plaintiff’s causation experts, includes but is not limited to surgical interventions, and what he referred to as the standard progression of the disease. In other words, based on his clinical experience and the literature, he would have assumed that the fragmentation phase of the disease would have reached the peak of destruction many months before the end of July and that profound deformity would have been then manifest radiographically. Furthermore, it was his opinion that there would and should have been clinical evidence of major foot deformity on July 28th when Ms. Smith was seen by Dr. Kane.

[87] As I will comment upon momentarily, X-rays, had they been taken at the end of July, would clearly have shown a marked neuropathic fracture and significant radiological deformity.

[88] But, if I understood Dr. Lalonde’s evidence correctly, he was somewhat surprised that the health care practitioners who saw Ms. Smith from the end of July to late October, which included two chiropractors, one chiropodist, neurologist, and her endocrinologist, did not see the deformity, clinically, which he would have then expected to be severe.[^48]

[89] The flip side of this last-mentioned proposition, which conversely featured prominently in my analysis on standard of care, is the very fact that others of her health care practitioners, all of who were familiar with Charcot foot, saw no marked deformity in her foot at the relevant time. Hence, I think it is more probable than not that the progression of the disease in the instant case did not follow the timeline hypothesized by Dr. Lalonde.

[90] To revisit the suggested timeline of the disease, after considering the evidence of each of Drs. Rabinovich and Mayer, I am satisfied on a balance of probabilities that the bench mark date should be founded on Dr. Trinh’s examination of Ms. Smith on October 24th. In that regard, an excerpt from the ASF bears repeating:

On October 24, 2008, Dr. Trinh examined Ms. Smith’s foot and observed dry, callused skin. At that appointment, he did not observe any ulceration or deformity in her right ankle. He did not see any swelling. There was no swelling on her right ankle that would have masked a deformity. Dr. Trinh did not observe anything that would indicate that Ms. Smith had Charcot’s foot. Dr. Trinh did not believe Ms. Smith had Charcot’s foot.[^49]

[91] In other words, and notwithstanding Dr. Lalonde’s own experience in treating Charcot both conservatively and surgically, I prefer the evidence of Dr. Rabinovich that Ms. Smith’s Charcot was treatable as at October 24th, 2008.

[92] Not to be seemingly repetitive, the clinical evidence in the period August to October belies Dr. Lalonde’s conclusion on the extent of the destruction to the end of July, if not the end of August. I am satisfied there was, therefore, to use Dr. Rabinovich’s term, enough bony stock to undertake the conservative treatment program about which the three causation experts described.

[93] Dr. Lalonde was also of the opinion that the conservative modality would not likely be successful because of the location of the Charcot in her hindfoot and because of certain of Ms. Smith’s personal characteristics, namely her obesity and poor glycemic control.

[94] In this respect, I prefer the evidence of Dr. Mayer to that of Dr. Lalonde. First, the former is a diabetic foot specialist, as opposed to being an experienced, albeit well-respected, orthopedic surgeon who deals in other orthopedic issues and not simply the ‘diabetic’ foot.

[95] Secondly, both experts would agree that, regrettably, overweight, if not obese, non-compliant patients are the norm and not the exception to those who are treated conservatively. As Dr. Mayer said, the past is not necessarily a predictor of the future. And as I understood from Dr. Lalonde’s evidence, compliance is a relative concept. It is not binary, which I took to be an important observation, if not concession.

[96] Dr. Mayer’s ‘on-the-ground’ statistics, the results about which he spoke in respect of patients at his clinic, buttressed the journal articles filed in evidence. I was not persuaded that because the site of the injury was in the hindfoot, the dire results of amputation were preordained. If there is a 10-30% likelihood of amputation with hindfoot patients, then the obverse should hold true, namely there is a 70-90% likelihood of success with that patient cohort. This permits me to conclude that more probably than not, with proper care, the foot could have be saved, regardless of the situs of the disease.

[97] I also accept Dr. Mayer’s proposition that stabilization, off-loading, and education feature more prominently in the circumstances when a patient is confronted with the impending consequence of an amputation, rather than it merely being a ‘threat’ described along the diabetic treatment continuum.

[98] But in any event, it is clear from the A1c readings obtained in January 2009, that Ms. Smith had made unparalleled strides in bringing her glycemic numbers under control, a most compelling ‘personal’ factor, indicative of a change in her behaviour, a fact which was conceded by Dr. Lalonde during his cross-examination.

[99] On balance, I am persuaded that it is more probable than not that had Ms. Smith been directed to the appropriate conservative treatment specialists her chance of saving her foot would have been achieved.

[100] That last observation leads me to the ‘secondary’ argument advanced by the defendant, namely that there was not enough time even if a diagnosis of radiographic destruction had been made on or about October 24th to secure the appropriate treatment. Surficially, I would observe that this argument is not without merit.

[101] The starting point for the defendant’s position is that the plaintiff would have had to initiate her treatment by October 24th, at the latest. If I accept that as the upset date, then the defendant argues that the plaintiff would have had to obtain an appointment with a specialist weeks earlier, which the defendant suggests is easier said than done, based on the timelines of referrals to other specialists to whom Ms. Smith was sent in the months leading up to her ultimate appointment with Dr. Barrington in early January, 2009.

[102] In other words, it is the Defendant’s position that if one uses the timelines established in evidence to obtain appointments in the Fall of 2008 with Drs. Trinh, Roussev, and Barrington, then, all other things being equal, the plaintiff would not have been seen in a timely enough fashion by anyone capable of placing her on the protocol advocated by Drs. Rabinovich or Mayer.

[103] There is, in my opinion, a fallacy to this argument tied to the timelines generated by Dr. Kane, herself, in not providing any of the proposed consultants to whom she referred Ms. Smith with either an urgent request for an appointment or sufficient information to describe an urgent situation.

[104] If I accept the fact, as was Dr. Lalonde’s opinion, that with the normal progression of Charcot, radiographic imaging at the end of July would have revealed a neuropathic fracture with significant deformity, then I dare say Dr. Kane would have been more inclined, if not compelled, to enter into a “hurry-up offence’’ to insure that Ms. Smith was seen by the appropriate specialist.[^50] The images would have been clearly worse, on the Lalonde theory as the weeks, if not months, marched on.

[105] Put otherwise, if at any time in the Fall, Dr. Kane had a radiologist’s report that described the condition of Ms. Smith’s foot as Dr. Lalonde suggested would have been the case at the end of July, then clearly she, Dr. Kane, would have been compelled to canvass the orthopedic or Charcot clinic waterfront to ensure that this now emergent situation was attended to with dispatch. To that end, I am not persuaded that causation could only have been established if a referral had been made sometime before September 24th. That seems to be too precise if not too arbitrary a date.

[106] It is safe to conclude from the evidence that an X-ray, at least, if not an MRI, could have been secured in a day or so after a requisition were submitted. I think it is also safe to conclude from even the evidence of Dr. Morris, even without a ‘robust and pragmatic approach’ to the evidence overall, which I believe I am entitled to take in the circumstances, that had Dr. Kane described the issues revealed in the radiographic reports in detail and expressed the urgency of the situation, including that the patient was a diabetic who had extreme bilateral neuropathy, among other issues, she could have secured a referral to clinics that undertook conservative Charcot treatment.[^51]

[107] Indeed, it would appear that there was one such clinic at the Women’s College Campus of the Sunnybrook & Woman’s College Health Science Centre under the stewardship of Dr. R.G. Sibbald, with which Centre Dr. Kane was associated and to whom Ms. Smith had been referred before for other matters.

[108] I am therefore satisfied that the plaintiff has met the standard required of her in establishing that but for the negligence of Dr. Kane, if such had been found, her leg more probably than not would have been saved had a referral to an appropriate consultant been made on or before October 24th, 2008.

Contributory Negligence

[109] Mercifully, the parties settled the issue of damages before trial and I was left to decide “merely” the issues above, which were complicated in and of themselves.[^52] Nevertheless, the defendant asserted that Ms. Smith was contributorily negligent and asked that I apportion her liability at 50%.

[110] At its simplest, the defendant asserts that the plaintiff: (1) failed to act as reasonably prudent patient and that (2) this failure is the factual and proximate cause of her injuries. Respectfully, and notwithstanding the fact that I asked counsel to further brief this issue post oral argument, I am not persuaded the defendant has met the onus of establishing the defence of contributory negligence on either of the two branches set out above.[^53]

[111] It is my opinion that while Ms. Smith may not have been a particularly “compliant” diabetic patient, and there is evidence of a few missed appointments with Dr. Trinh, this conduct did not amount to unreasonable patient behaviour.[^54] The reasonable patient standard is not so high that missing some medical appointments necessarily leads to a finding that the patient fell below the standard of care, particularly when there was nothing to suggest that there was any harm in doing so.[^55] However, even if Ms. Smith’s conduct fell below that standard, none of that conduct amounted to a factual or proximate cause of the amputation.

[112] If Dr. Lalonde’s evidence of Charcot progression is accepted, even if the timeline is as rapid as he originally suggested, then there would be precious little that Ms. Smith could have done to stem the tide of the disease’s progression by way of glycemic control or further medical attention. On the evidence, the only way her leg could have been saved would have been to “off-load” and “stabilize” early in the piece, a treatment modality that was not within the ken of a reasonable patient or a reasonable diabetic patient.

[113] As described twice above in each of the two “negligence” sections, Ms. Smith saw all manner of health care professionals in the period from July-October, and not one of them picked up the neuropathic fracture. And, as I have said before, the extent or even the fact of her foot’s fragmentation would not have been diagnosed without further imaging.

[114] Finally, I am at a loss to understand how “but for” any of the alleged “missed” appointments or lack of diabetic vigilance this would have altered the unfortunate outcome visited upon Ms. Smith in March 2009.

[115] I therefore, without hesitation, agree with the plaintiff’s submission that there is no factual or legal foundation in support of any finding of contributory negligence on the part of Ms. Smith.

[116] Judgment will follow in terms of these written reasons.

[117] I urge the parties to resolve the issue of costs associated with this matter, whether it is limited to the trial before me or includes the earlier trial that did not proceed to judgment before one of my colleagues. If agreement on costs is not reached, I may be contacted by email to provide a timeline for the receipt of written submissions.

GANS J.

Released: January 27, 2020

COURT FILE NO.: CV-10-415744 DATE: 2020/01/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICIA ANN SMITH Plaintiff

– and –

DR. BRENDA KANE, DR. DENNY KHIET Y. TRINH, LMC ENDOCRINOLOGY CENTRES (TORONTO) LTD., DR. SHELDON H. NADAL, STEPHEN GALPERIN and DR. MICHAEL VIZEL Defendants

– and –

DR. ROBERT EVANS and DR. RUBINA TAHIR Third Parties

REASONS FOR JUDGMENT

GANS J.

Released: January 27, 2020

[^1]: The main action was discontinued against all the defendants except for Dr. Kane. Prior to the aforesaid discontinuance, the defendants, Drs. Kane, Trinh, and Vizel, issued third-party claims against Drs. Evans and Tahir as defendants. Two of the original defendants, Dr. Nadel and Mr. Galperin, were also the subject of cross-claims advanced by Dr. Kane. The former cross-claim has been stayed pending resolution of this action. The cross-claim against Mr. Galperin and the third-party claim against Drs. Evans and Tahir have been settled.

[^2]: The use of the term “sprain” is my word, at least at this point in the judgement. Counsel provided me with Joint Books of Documents (“JBDs”), as well as chronologies and Agreed Statements of Facts (“ASF”). The JBDs contained the relevant clinical notes and records of Ms. Smith maintained at Dr. Kane’s office. Counsel also had the clinical notes originally prepared by Dr. Kane transcribed. I am not only obliged to counsel for their co-operation throughout the trial but for the fact that both sides attempted to make the mass of material adduced in evidence not only manageable but searchable. The electronic data base with which I was furnished was invaluable.

[^3]: I presided over a retrial. I did not hear from Ms. Smith directly but had the benefit of her evidence, which was presented in the form of her transcript evidence at the first trial. Counsel also excerpted what they each considered were the relevant portions of her evidence in the ASF and in their respective arguments.

[^4]: JBD, Vol. 1, at p. 236.

[^5]: JBD, Vol. 1, at p. 177.

[^6]: See JBD, Vol. 1, at p. 164.

[^7]: JBD, Vol. 1, at p. 44.

[^8]: JBD, Vol. 1, at p. 43.

[^9]: JBD, Vol. 1, at p. 42.

[^10]: I hasten to observe a few things: (1) The diagnosis of a neuropathic fracture is not easily made. Hence, no fault is being levelled at the radiologist at first instance. (2) It is, by definition, a difficult diagnosis to make and is left to orthopedic surgeons and experts in diabetic feet to more readily identify. I heard from two orthopedic specialists and one expert in the treatment of diabetic feet, each of who was able to identify this phenomenon from the January 2008 images, which I was told was a difficult diagnosis to make from the images, simpliciter.

[^11]: JBD, Vol. 1, at p. 114.

[^12]: I use the adjective ‘some’ because my recollection is that it was only Dr. Kane, without a note to corroborate the statement, who testified that she had set this time tranche herself. She did not tell me that this was a standard protocol that she used with diabetic patients, even those whose diabetic care was supposedly being managed by others.

[^13]: See JBD, Vol. 1, at p. 17: Exhibit 3; ASF, at paras. 7-12.

[^14]: ASF, at para. 3. The ASF also makes it clear that she was seen by at least one chiropractor in the spring and early summer of 2008 on several occasions. None of the non-CPSO practitioners was concerned that Ms. Smith was suffering from anything as sinister as Charcot’s foot.

[^15]: JBD, Vol. 1, at p. 16.

[^16]: Trial transcript - October 4, 2019, at pp. 1573-75.

[^17]: See Trial transcript - October 2, at p. 1119, lines 6-9.

[^18]: JBD, at pp. 103-105, Roussev Report.

[^19]: See ASF, at paras. 36-39.

[^20]: Crits v. Sylvester (1956), 1956 34 (ON CA), 1 D.L.R. (2d) 502 (Ont. C.A.) at 508, aff'd 1956 29 (SCC), [1956] S.C.R. 991 [Crits]. See more recently the decision of Sproat, J. in Boyd v. Edington, 2014 ONSC 1130, 237 A.C.W.S. (3d) 1054 [Boyd] from which decision I have liberally ‘borrowed’ the general legal principles applicable to medical malpractice cases.

[^21]: See Gent v. Wilson, 1956 128 (ON CA), [1956] O.R. 257 at 265-66 (C.A.).

[^22]: See Williams (Litigation Guardian of) v. Bowler, 2005 27526 (ON SC), [2005] O.J. No. 3323, at para. 228 (Ont. S.C.) [Williams].

[^23]: Hajgato v. London Health Association, [1982] O.J. No. 2564, at para. 36 (Ont. H.C.), aff’d (1983) 1983 1687 (ON CA), 44 O.R. (2d) 264 (C.A.) [Hajgato]. See also Crawford (Litigation Guardian of) v. Penney, [2003] O.J. No. 89 (Ont. S.C.), at para. 248 [Crawford].

[^24]: See Crits, as cited in Williams, at para. 229.

[^25]: See Boyd, at para. 13(a).

[^26]: See ibid, at para. 13(b).

[^27]: See ibid, at para. 13(g).

[^28]: See Williams, at para. 239; Crawford, at para. 230.

[^29]: See Exhibit 26, CPSO, “Policy Statement #5-05, Medical Records” (2006).

[^30]: See, in particular, the Report of Dr. Barrington, February 5th, 2009, where he reviews the January 2008 images and concludes that there “was no sign of fracture at the time”: JBD, Vol. 1, at p. 329.

[^31]: Trial transcript – Day 9, at pp. 1839-56.

[^32]: Hajgato, at para. 36 — see note 23, above.

[^33]: JBD, Vol. 1, at p. 205-08.

[^34]: See ASF, at paras. 38-39; JBD, Vol. 1, at p. 205-08.

[^35]: JBD, Vol. 1, at pp. 202-203.

[^36]: See ASF, at para. 40.

[^37]: 1992 119 (SCC), [1992] S.C.J. No. 11, at para. 28.

[^38]: 2010 ONCA 188, 260 O.A.C. 70, at paras. 34-36 [Bafaro].

[^39]: 2003 50091 (ON CA), [2003] O.J. No. 4194, at para. 24 (Ont. C.A) [Cottrelle].

[^40]: See Defendant’s written argument, at paras. 206-12.

[^41]: Clements v. Clements, 2012 SCC 32, 2 S.C.R. 181, at paras. 28, 46 [Clements].

[^42]: 2017 ONCA 773, 417 D.L.R. (4th) 387.

[^43]: Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, at para. 30.

[^44]: Aristorenas v. Comcare Health Services, 2006 33850 (ON CA), [2006] O.J. No. 4039 (Ont. C.A.), at para. 63 [Aristorenas].

[^45]: Ibid, at para. 54.

[^46]: In arriving at the above conclusion, I am mindful of the defendant’s concern that I not fall victim to the “loss of chance” doctrine, described more fully at paras. 218-20 of her written argument.

[^47]: Plaintiff’s counsel argues that the July 28th date was ‘pushed back’ as a result of his cross-examination of Dr. Lalonde to the end of August. I’m not persuaded that this conclusion can be drawn from the evidence since the assumptions that Dr. Lalonde was asked to make did not completely mirror Ms. Smith’s then current condition as it specifically avoided describing her as obese, which might be a variable of some moment. In the final analysis, whether Dr. Lalonde was at the end of July or the end of August as the point of non-salvageability is of no moment since I have rejected his “natural progression” proposition.

[^48]: See Transcript, October 4th, at pp. 1568-71. I had the advantage of being provided with daily transcripts of the evidence, albeit in rough-format, which I re-read when preparing this and other portions of the judgment. I found Dr. Lalonde’s evidence on who should have seen what and when to be a little confusing. I dare say this group should have included Dr. Kane, as well. This topic was not mined by plaintiff’s counsel, which begs a range of other questions not within my purview as the trial judge, some might say regrettably.

[^49]: ASF, at para. 39. See also JBD, Vol.1, at p. 205.

[^50]: Whether the imaging would have revealed the “extensive destructive change involving the hindfoot” as was reported in the January 15th report upon which Dr. Barrington relied was not canvassed in evidence: JBD, Vol. 1, at pp. 321-22.

[^51]: Although I did not hear this evidence, I think I would be safe to infer that the clinic with which Dr. Barrington was associated, namely at the Toronto East General Hospital, would be equipped to undertake conservative treatments if such were available at the Ottawa Hospital, with which Dr. Lalonde was associated.

[^52]: The damages in the instant case were settled with the assistance of my colleague, D. Wilson, J. This was not the first of the cases over which I presided where Wilson J. was able to get the parties to “yes” on damages, issues which simply confound trial judges, extend - unnecessarily - trial time, and for which there is scant appellate assistance.

[^53]: For the basic principles of contributory negligence, see Ellen I. Picard & Gerald B. Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed. (Toronto: Thomson Carswell, 2017), at pp. 467-68; Polera v. Wade, 2015 ONSC 821, 250 A.C.W.S. (3d) 516, at paras. 22-23, aff’ed 2015 ONCA 895 [Polera].

[^54]: I agree with plaintiff’s counsel that the evidence of whether Ms. Smith was to, on her own, report to Dr. Kane every few months for diabetic or other checkups was, at best, scanty. Her patient records do not support this notion. Respectfully, this argument impales Dr. Kane on a two-edged sword. If Dr. Kane was insisting on more frequent attendances, she should have noted same in the patient records.

[^55]: See Polera, at para. 25.