COURT FILE NO.: CV-12-461940

DATE: 2020-08-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Armen Hacopian-Armen as litigation administrator for the estate of Armineh Hacopian-Armen, deceased, Armen Hacopian-Armen as estate trustee for the Estate of Vrijouhi Casper, deceased and Armen Hacopian-Armen, personally

Plaintiffs

– and –

Dr. Haider Mahmoud, Dr. Hassan Deif, Dr. Neil Isaac and North York General Hospital

Defendants

Paul J. Cahill, for the Plaintiffs

Kosta Kalogiros, Akiva Stern, for the Defendants

HEARD: January 13, 14, 15, 16, 17, 20, 21, 22, 2020

CAROLE J. brown j.

REASONS FOR DECISION

Overview

[1] The Plaintiffs bring this action against Dr. Haider Mahmoud, for his allegedly negligent medical treatment of the plaintiff, Armen Hacopian-Armen from May 25, 2009 to August 24, 2011, when she died. The action is brought by her brother, Armen Hacopian-Armen, on her behalf and on behalf of their mother, Vrijouhi Casper, who had lived with Ms. Hacopian-Armen. Ms. Hacopian-Armen cared for her mother, who was under a disability at all material times, and is now also deceased. The action has been dismissed as against Dr. Hassan Deif, Dr. Neil Isaac and North York General Hospital.

[2] Ms. Hacopian-Armen had heavy, prolonged bleeding, with blood clots, during her menstrual periods, which lasted approximately two weeks per month from 2004. She had been diagnosed with fibroids in 1999, and complained of heavy, prolonged periods from July 2004. In 2009, her family doctor, Dr. Avedis Bogosyan, referred her to the defendant, Dr. Haider Mahmoud, a specialist in obstetrics and gynecology, regarding her fibroids.

[3] She consulted with Dr. Mahmoud over a period of two years. During that time, he did not conduct an endometrial biopsy and did not detect any malignancy in her uterus. He outlined her options, namely menorrectomy, hysterectomy or a uterine fibroid embolization to shrink the fibroids. She decided upon a uterine fibroid embolization. By August 2010, there was an exacerbation of the bleeding, resulting in a hemoglobin drop and the need for a blood transfusion, which occurred on August 9. Also, on August 16, she was diagnosed with deep vein thrombosis (“DVT”). The uterine fibroid embolization was finally done in September 2010. In February 2011, she underwent imaging for what was believed to be a recurrent appendicitis, at which time nodules were seen in the lungs. Following this, Dr. Mahmoud ordered ultrasounds which revealed dramatic changes in the uterus and subsequently performed the endometrial biopsy which resulted in a positive test for poorly differentiated high-grade sarcoma, favouring uterine Leiomyosarcoma (“LMS”). “Poorly differentiated” indicates a more aggressive form of cancer in which the cells look different from normal cells. She was not diagnosed with LMS until April 7, 2011, when an endometrial biopsy was finally done, the plaintiff already had Stage IV LMS, with metastases into the lungs. She died on August 24, 2011.

Agreed Statement of Fact

[4] The parties have agreed on 68 facts, the substance of which I have set forth below. These facts set forth the medical history and record of the plaintiff.

[5] Amineh Hacopian-Armen was born August 26, 1961. Since at least January 1999, she had uterine fibroids. She had numerous ultrasounds performed from January 28, 1999 to September 27, 2007. She was referred by her family doctor to Dr. Mahmoud on May 25, 2009 for “fibroid”. At that first consult, Dr. Mahmoud performed a Pap smear and vaginal swab, but did not perform an endometrial biopsy. Dr. Mahmoud referred her to Dr. Deif to discuss, inter alia, a uterine artery embolization procedure, which he discussed with her when he first saw her on June 11, 2009. The history done by Dr. Deif when he saw her indicated that she had been suffering from symptomatic fibroids for the last 3 to 4 years, and described severe menorrhagia with periods lasting up to two weeks. They discussed uterine artery embolization which she indicated she would undergo at the end of the summer of 2009. She did not undergo the embolization at that time.

[6] On December 18, 2009, the plaintiff underwent a repeat ultrasound of the pelvis ordered by her family physician. The pelvic ultrasound noted, inter alia, fibroid changes in the uterus and a left ovarian cyst with internal debris or hemorrhage.

[7] The ultrasound report was faxed to Dr. Mahmoud by the family doctor on December 18, 2009. The defendant met with the plaintiff on March 26, 2010, and in his notes, he indicated no fibroid changes.

[8] On April 28, 2010, the plaintiff again met with Dr. Deif, who noted in his consult note, inter alia, that she described severe menorrhagia with passage of clots and periods lasting up to 10-15 days. The embolization was to be undertaken on September 23.

[9] On August 7, 2010, the plaintiff was taken by ambulance to the emergency department of North York General Hospital (“NYGH”), with the nursing triage note indicating that she had awakened early, was extremely weak and felt palpitations. On August 9, 2010, Dr. Mohammed’s clinical progress notes indicate that she had had a blood transfusion in ER on August 9 due to a low blood count. On August 13, 2010, the plaintiff underwent a pre-embolization pelvic ultrasound at North York General Hospital. The radiologist reviewing the ultrasound noted that she had acute appendicitis and advised her to attend the ER. On August 14, 2010, the plaintiff underwent a CT of the abdomen and pelvis with contrast to rule out appendiceal phlegmon. On August 16, she was diagnosed with DVT. She met with Dr. Mahmoud on August 19, 2010, who noted in his clinical notes that her embolization was scheduled for September 30.

[10] On August 22, 2010, the plaintiff attended the ER of NYGH with a sudden onset of shortness of breath and underwent a CT pulmonary chest angiogram during which it was noted that there were pulmonary nodules noted. Upon discharge, she was instructed to follow up with her family doctor and Dr. Mahmoud.

[11] On September 30, the plaintiff underwent a uterine artery embolization. On November 19, 2010, she saw Dr. Mahmoud who ordered a Pap smear, vaginal swab, and follicle stimulating hormone (“FSH”) test which resulted in a reading of 14.

[12] On December 17, 2010, she underwent an ultrasound of her pelvis at NYGH which resulted in a report of a large centrally calcified fibroid of mixed ethnogenicity with a second fibroid noted.

[13] On February 5, 2011 she attended for a bilateral leg venous doppler ultrasound and attended on February 8 for a venous doppler study of the lower extremity, which reported a DVT below the left knee involving the anterior tibial and posterior tibial veins.

[14] On February 14, 2011, the plaintiff underwent a CT of her abdomen and pelvis to rule out recurrent appendicitis at which time it was noted that there were two new lung nodules worrisome for metastases since the previous CT scan of August 22. On February 18, 2011, she underwent a CT of her thorax at Scarborough General Hospital with the report noting that the nodules in both lungs are consistent with metastatic disease.

[15] On March 1, 2011, the plaintiff met with Dr. Harry Birman who noted the embolization, the development of sequential DVT and the possibility of malignancy given the recurrence of DVT. It was further noted that the lesions in her lungs were new and suggested the possibility of sarcoma. A biopsy on March 8, 2011 revealed malignant cells consistent with poorly differentiated carcinoma, favouring squamous cell carcinoma. The findings were updated in April 2011 to “positive for malignant cells with spindle cell features. Favour sarcoma.” Dr. Birman sent a consultation request to Dr. Mahmoud on March 17, 2011 indicating “ASAP needs Pap smear”.

[16] On March 29, 2011, a bone scan was performed which revealed no evidence of metastatic bone disease. On that day, the plaintiff was assessed at NYGH for a recurring DVT, and the attending physician dictated a note including that, given the recurrent DVT, and her malignancy, he was worried that it would recur and indicating that she should go on medication for DVT.

[17] On April 5, 2011, the plaintiff underwent an ultrasound of the pelvis and transvaginal ultrasound, which indicated “dramatic change in the appearance of the uterus with multiple additional focal lesions identified.” On April 7, 2011, Dr Mahmoud assessed the plaintiff and indicated that he had done an endometrial biopsy. The histopathology indicated that the tumor cells were arranged in diffuse pattern. ‘The tumor shows many mitotic figures and necrosis… Poorly differentiated tumor with features of high-grade sarcoma, favouring leiomyosarcoma.’

[18] On April 13, the plaintiff met with a gynecological oncologist, Dr. R. Kupets, at the Odette Cancer Centre at Sunnybrook Health Sciences Centre who recommended that the uterus be removed in a total abdominal hysterectomy. On April 21, 2011, the plaintiff attended the Memorial Sloan-Kettering Cancer Centre in New York for a second opinion. On May 13, 2011, the plaintiff underwent a hysterectomy and appendectomy at Sunnybrook. The histopathology of the hysterectomy specimen indicated leiomyosarcoma.

[19] In May 2011, the plaintiff commenced chemotherapy. On May 30, she underwent a CT chest scan which reported extensive progression of the metastatic disease in the lungs and the lung was biopsied on May 31, 2011 and found to be positive for malignant cells in keeping with sarcoma. On June 22, 2011, the plaintiff commenced a new chemotherapy regime. On July 16, she underwent a chest x-ray which reported progression of the disease. On August 3, she underwent a chest x-ray which was reported to show multiple pulmonary nodules consistent with metastatic disease. On August 22, 2011, she underwent a chest x-ray which indicated increase in size of the metastatic lesions.

[20] On August 24, 2011, the plaintiff died.

Expert Witnesses

[21] A synopsis of the most relevant evidence given by the expert witnesses regarding the issues in this matter is set forth below.

The Plaintiffs Witnesses

Dr. Andrew Browning

[22] Dr. Andrew Browning was presented as an expert witness for the plaintiff. He had been a gynecologist for 27 years. He has experience in treating women with both fibroids and abnormal uterine bleeding (“AUB”) and did an average of 5 to 10 endometrial biopsies per week in his clinical practice. Clients were referred to him who had abnormal uterine bleeding so that he could assess the cause of the abnormal bleeding and rule out significant intrauterine pathology. He had been Chief of Obstetrics and Gynecology at Royal Victoria Hospital from 2016 to 2018, a medical inspector with the College of Physicians and Surgeons and did medical-legal work, 75% being for the CMPA and 25% for plaintiffs. He was qualified as an expert in gynecology to provide an opinion on the standard of care and causation, and with respect to indications for endometrial biopsies and the likelihood of detecting LMS in this case and the benefit of early detection.

[23] Dr. Browning confirmed that LMS is a rare cancer and comprises 1% of uterine cancers.

[24] Dr. Browning opined that the consultation note of Dr. Mahmoud, adduced in evidence, should have been much more thorough in explaining the history of the present illness in detail, the findings and planned investigation options moving forward. He stated that the purpose of a consultation note is to inform the physician who sent the referral and to the family doctor as to the findings with respect to the referral.

[25] Dr. Browning stated that an endometrial biopsy was indicated at the first visit as the plaintiff was over 40 years of age, had abnormal bleeding, was nulliparous (i.e. had had no pregnancies), and pursuant to the Society of Obstetricians and Gynecologists of Canada (“SOGC”) Guidelines for Intrauterine Bleeding, these characteristics all indicated that an endometrial biopsy was recommended and should be done. It was his opinion that had the endometrial biopsy been done at the first consult, it would more than likely have resulted in a positive result such that early intervention could have taken place, which would include a hysterectomy, while the malignancy was still in the uterine cavity and had not metastasized to the rest of the body. By the time it was found in April 2011, it had already metastasized to the lungs. He stated that the LMS does not occur overnight and that in May 2009, it was likely at Stage I, given the progression by April 2011.

[26] It was the opinion of Dr. Browning that the SOGC Guidelines required Dr. Mahmoud to order an endometrial biopsy because it was indicated to rule out endometrial cancer, which would have given him a more than likely chance of detecting LMS in the plaintiff.

[27] While the defendants relied heavily on certain studies which indicated, inter alia, that in pre-menopausal women, an endometrial biopsy has a lower percentage likelihood of detection of LMS, Dr. Browning testified that women who are nulliparous have a 13 times more likely chance of having early menopause; that women 40 to 49 years of age have a greater differentiation in their production of hormones in comparison with 20-29, and 30-39 age ranges and stated that there was evidence to suggest that the plaintiff was beginning to have changes which would make her hormonally closer to menopause than pre-menopause, or what he indicated as “peri-menopausal”. It was a laboratory report during that time which indicated her to be “peri-menopausal” or “peri”. Her FSH levels were rising, which was also a sign that her body was hormonally moving toward menopause. Therefore, even based on the studies relied on by the defendant, there was a greater likelihood that LMS would have been detected in the plaintiff.

Dr. Allan Covens

[28] Dr. Allan Covens was an OB/GYN with a further specialization in gynecological oncology. His position since 2002 is at the University of Toronto in the Department of OB/GYN. He is Chair of the Division of Gyne-Oncology, which is part of the larger Department of OB/GYN. He teaches residents, medical students and fellows.

[29] Dr. Covens is Head of the Department at the Odette Cancer Centre, Sunnybrook Hospital in Toronto.

[30] Dr. Covens has a large clinical practice and conducts a weekly gynecology-oncology clinic, as well as a colposcopy clinic every other week, which investigates abnormal Pap smears, abnormalities of the lower genital tract and dysfunctional uterine bleeding, AUB and pelvic masses. He does approximately five endometrial biopsies per week, described as a common part of the gynecological practice. He treats patients with LMS every 2 to 3 months. He has extensive experience giving patients with LMS, and their families, survival estimates.

[31] He described the consult note of Dr. Mahmoud of May 25, 2009 as “odd”, that it looked like just handwritten notes. He testified that there was a lack of specificity and detail, with no description, no history and nothing to assist in determining whether the plaintiff’s menstrual bleeds were normal or abnormal and why.

[32] Dr. Covens testified that the plaintiff presented with abnormal uterine bleeding on May 25, 2009 with no precise reason for this. While it was known that she had fibroids from ultrasounds and physical exams, 40 to 50% of women over 40 do have fibroids, which does not mean that she cannot have other contributing conditions. It was the opinion of Dr. Covens that the defendant fell below the standard of care on May 25, 2009 by not performing an endometrial biopsy to rule out other serious causes of her bleeding. Dr. Covens was of the opinion that with respect to detecting LMS, an endometrial biopsy was “very reliable” generally, and with respect to the plaintiff, due to her age, the fact that she had had no children (“nulliparous”) and her very irregular bleeding, it should have been done. He stated that LMS can cause abnormal bleeding. It was his opinion that it was highly likely that in May 2009, the plaintiff would have had Stage I LMS. If the plaintiff had had a successful endometrial biopsy in May 2009, it was likely that she would have had a hysterectomy that would have removed the tumor, which would have been confined to the uterus. If this had happened, she would have had a 60 to 75% five-year survival rate. A high percentage five-year survival rate is the equivalent of a cure, as recurrence of the malignancy, if it is going to recur, does so within 1 to 2 years. Further, the earlier the stage at which LMS is caught, the higher the likelihood of a cure or length of life from this malignancy. There is a huge difference in outcomes between Stages I and IV, as referred to in the Kapp Study.

[33] As regards the exercise of clinical judgment and whether Dr. Mahmoud was simply exercising his clinical judgment when he did not do an endometrial biopsy on the plaintiff, both Drs. Browning and Covens stated that, given the plaintiff’s circumstances, prudent clinical judgment would recommend an endometrial biopsy be done at the first consult.

Dr. Gordon Cheung

[34] Dr. Gordon Cheung is a diagnostic radiologist. He is highly experienced in identifying lung nodules versus metastatic disease in CT scans. He stated that the first CT scan for the plaintiff suggesting lung metastases was February 14, 2011. He stated that the May 30, 2011 CT scan compared with that of August 22, 2010 showed lung metastases as opposed to the previous benign nodules in 2010.

Defence Witnesses

Dr. Haider Mahmoud

[35] Dr. Haider Mahmoud undertook his medical studies from 1977 to 1984 at Al-Mustansyria School of Medicine. Dr. Mahmoud came to Canada in 1986, completed his accreditation in 1987, his qualifications exam and then completed his residency at the University of Toronto. In his clinical gynecology practice, he testified that fibroids comprise 60% of his practice.

[36] Dr. Mahmoud first saw Ms. Hacopian-Armen on May 25, 2009. He does not have independent recollection of having seen the plaintiff on May 25, 2009 and gave his evidence from his notes and the medical record.

[37] As regards his notes, he said that he did not need detailed notes and only gave detail if there was any medical or health concern. As regards his notes being used for purposes of advising the referral doctor and others of his findings and recommendations, he testified that the referring doctor was the family practitioner who knew Ms. Hacopian-Armen better than he did. He stated that the family doctor did not need his notes or any detail. He further stated that the cryptic type of notetaking seen in his notes reviewed at the trial represents his usual practice.

[38] He conducted a physical examination of the plaintiff, took a Pap smear and vaginal swab, and discussed options for treatment with Ms. Hacopian-Armen. He admitted that, in the examination room, he had inserted a speculum in the plaintiff’s vagina in order to conduct the Pap smear, and could easily have done an endometrial biopsy at the same time. However, he testified that the possibility of an underlying malignancy was too remote to justify an endometrial sampling or testing.

[39] Dr. Mahmoud testified that based on the clinical presentation before him, he diagnosed Ms. Hacopian-Armen with uterine fibroids. He explained both in chief and in cross-examination his rationale for not recommending or performing an endometrial biopsy. In particular, he testified that:

(i) he did not observe anything alarming in Ms. Hacopian-Armen’s clinical picture as his assessment gave him enough evidence to conclude that the cause of her complaints were her uterine fibroids;

(ii) the regularity of her periods was an important clinical factor for him, as was the absence of any change in bleeding. He did not view Ms. Hacopian-Armen’s bleeding as abnormal in the circumstances (given her fibroids);

(iii) in his clinical judgment, the fact that she’d had regular menstrual cycles and no recent change in menstruation, no diabetes, no obesity, or other risk factors for malignancy, led him to decide that an endometrial biopsy did not have to be performed at the time, as there was no concern of endometrial cancer;

(iv) he was also reassured by the absence of any history of her fibroids changing in size rapidly and did not feel the heaviness of her bleeding was worrisome in the circumstances; and,

(v) Dr. Mahmoud was satisfied based on Ms. Hacopian-Armen’s history that she did not have a malignant endometrial pathology.

[40] After conducting the examination, he discussed options with the plaintiff. These options included a uterine fibroid embolization, a myomectomy and a hysterectomy. The plaintiff stated that she would think about the options and let him know.

[41] Dr. Mahmoud testified that he considered a 14-day heavy bleed with blood clots to be normal for someone with fibroids. He stated that, as regards the plaintiff, he did not even consider other causes for bleeding apart from the fibroids and did not see a need to perform an endometrial biopsy. He did admit that when the plaintiff first consulted with him on May 25, 2009, he examined her using a bi-manual exam, and also with a speculum and did a Pap smear and vaginal swab, such that he could easily have inserted a pipelle and also done an endometrial biopsy. However, he did not do so. In his opinion, the possibility of an underlying malignancy was too remote to justify an endometrial biopsy. He further denied that the SOGC Guidelines for Management of Abnormal Uterine Bleeding applied to the plaintiff as her bleeding was not abnormal, but occurred regularly every two weeks for a two-week period.

[42] He testified that he had no concerns that there was anything abnormal or untoward as regards the plaintiff’s condition and assumed that the bleeding was caused by her fibroids. It was on this assumption that he proceeded not to do any further testing. He testified that he did not even consider any other potential causes for the heavy bleeding apart from the fibroids and therefore did not see any need for an endometrial biopsy. He attributed the cause of her heavy bleeding to uterine fibroids and did not, as a result, contemplate any other potential causes of the heavy bleeding.

[43] He presented the plaintiff with three options for treatment, including a menorrectomy, hysterectomy and a uterine fibroid embolization. She chose to proceed with a uterine fibroid embolization, but proceeded with it at a later date.

Dr. George Vilos

[44] Dr. George Vilos received his medical education at the University of Western Ontario in 1974, specialized in OB/GYN and from 1995, in fibroids, chronic pelvic pain, endometriosis and AUB. He also teaches in the area. He practices in a hospital setting.

[45] Dr. Vilos was qualified to opine on causation and, specifically, sensitivity of an endometrial biopsy to detect a LMS and prognosis with earlier intervention.

[46] He was one of the principal authors of the SOGC Guidelines on Abnormal Uterine Bleeding. However, he was not being called by the defence to opine on the standard of care, but only on causation.

[47] Dr. Vilos testified that one of the most common symptoms of fibroids is abnormal bleeding. He stated that while most LMS arise de novo, approximately 5% arise from pre-existing benign fibroids.

[48] He was of the opinion that an endometrial biopsy would not have detected a LMS as there was no evidence that it was present in May 2009. When asked to assume that the LMS was there in May 2009, he stated that an endometrial biopsy would still not have detected the LMS, as it would have had to move into the uterine cavity and there was no evidence that it had done so. He further relied on numerous studies which concluded that the sensitivity of the endometrial biopsy was low in detecting LMS. When presented with the Leibsohn study, he stated that it did not matter where the tumors were located, the sensitivity of detecting LMS using an endometrial biopsy is low.

[49] It was his opinion that if the plaintiff had been diagnosed at the first consultation on May 25, 2009, it would not have made any difference to the outcome.

[50] After reviewing a number of studies, he finally agreed in cross-examination that no one had made the connection between the location of a tumor and sample sensitivity. He admitted that the principal basis for his opinion regarding sensitivity of an endometrial biopsy was based on a comparison of the studies and the plaintiff’s pre-menopausal state which, in his opinion, was constant from May 2009 to the time of the biopsy in April 2011.

[51] As regards sensitivity of endometrial biopsies for detecting LMS, he tied the sensitivity to being pre- or post-menopausal indicating that sensitivity was low in pre-menopausal women, and indicating that the plaintiff was pre-menopausal, as she was displaying no symptoms of menopause. He testified that there was no medical term or category of “peri-menopausal”, and that it did not exist.

[52] He was of the opinion that an endometrial biopsy in 2009 would not have revealed LMS. There was no evidence of LMS, no changes to the uterine cavity and she had regular bleeding.

[53] Assuming that a biopsy had been done in 2009, it would not have detected LMS as the tumor would have had to move into the uterine cavity. When asked whether any study had made a correlation between the location of the tumor and sensitivity of the endometrial biopsy, he stated that he really did not know. He stated that in 2009, it was not known where the tumor was, but that after January 2011, there were dramatic changes, including the fact that the tumor grew rapidly. The tumor could have started near the endometrium in 2009 and could have been present in 2010. Her bleeding pattern changed and she needed a transfusion.

[54] While he had previously indicated that the clinical outcome would not have been different, even with earlier diagnosis, which is also what he wrote in his report, he stated in cross-examination that he was not that comfortable with the opinion as it was not his area of expertise.

[55] He agreed that if the LMS were in the uterus and it was Stage I, the outcome would have been better for the plaintiff if it were detected earlier or in 2009. Dr. Vilos agreed in cross-examination that if the plaintiff had been diagnosed in May 2009 and LMS had been found, it would have been Stage I and confined to the uterus. Therefore, if it had been diagnosed in 2009, the outcome would have been substantially better than at Stage IV, which is not consistent with his expert report. But he stated that his original opinion was based on grade of LMS and not stage of cancer.

Dr. Nicholas Leyland

[56] Dr. Nicholas Leyland is a gynecologist. He was educated at the University of Toronto and Harvard and completed a fellowship in gynecological oncology in 1989. His experience is in clinical OB/GYN. He was qualified to give opinion evidence regarding causation with respect to the issue of sensitivity of the endometrial biopsy in diagnosing LMS. His expert testimony was restricted to the issue of the likelihood of earlier detection of LMS with a biopsy. He was not qualified to opine on prognosis with earlier intervention.

[57] He testified that one of the symptoms associated with fibroids is abnormal uterine bleeding (AUB). He stated that endometrial biopsies are commonly performed in a gynecological practice. He conducts 5 to 6 endometrial biopsies per week.

[58] He testified that it was difficult to say when the cancer originated in the plaintiff. It was his opinion, as it had been that of Dr. Vilos, that in May 2009, an endometrial biopsy would not likely have detected LMS. He stated that a biopsy is not designed to locate LMS in an endometrial/myometrial cavity. The tumors must be in the uterine cavity in order to be detected by an endometrial biopsy.

[59] He confirmed that the only study that looks at the location of the tumors as related to sensitivity of detection is Leibsohn, which was a very small study. Hinchcliffe does not look at location.

[60] He testified based on the literature and particularly the Hinchcliffe study, that the plaintiff was pre-menopausal and still menstruating regularly. He does not know if the LMS was present then, but even if it were, he was of the opinion, based on Hinchcliffe, that she would be in a category which would have been detected only 31.8% of the time. He further stated that the tumor had to invade the uterine cavity to be detected, based on the Leibsohn study, which relied on limited numbers.

Dr. Jason Dodge

[61] Dr. Jason Dodge was a gynecological oncologist until August 2015 when his tenure at the Royal Victoria Hospital ended. He is now focused on general gynecology in his daily practice. He explained that he does not hold hospital privileges in Toronto, which are necessary for the practice of gynecological oncology.

[62] His testimony was limited to causation.

[63] It was his opinion that the plaintiff’s menstrual bleed was regular, that the FSH test indicated that she was not menopausal (her FSH test registered 14, an increase from previous readings, while menopause was greater than 20).

[64] It was his opinion that if a diagnosis had been made in 2009, it was unlikely that this would have altered the plaintiff’s outcome. He testified that duration of life is very difficult to know. He concluded that her death occurred about the time that one would have expected, based on the literature. Based on the biopsy report of April 7, 2011, he stated that the tumor was poorly differentiated with features of high-grade sarcoma. It looked quite aggressive and patients with such tumors often do quite poorly. In 2011, her tumor was mytotic (fast-growing) and necrotic (outgrowing the blood supply).

[65] He testified that had the plaintiff been diagnosed in 2009, she would likely have been referred to a gynecological oncologist and likely would have been offered surgical treatment: a hysterectomy or therapy (chemotherapy or hormone therapy). With respect to LMS, he opined that neither chemotherapy nor radiation are very effective.

[66] It was his opinion that it was unlikely that a biopsy done prior to 2011 would have diagnosed LMS. He stated that the endometrial biopsy was intended to biopsy the endometrium and that the LMS was in the wall and not the endometrium.

[67] It was his opinion that the Hinchcliffe study demonstrated that there was a low sensitivity, using an endometrial biopsy, to detect LMS in pre-menopausal women. He stated that if a tumor were not in the endometrium, it would not be expected that a test of the endometrium would show evidence of cancer. He was of the opinion that it was unlikely that an earlier diagnosis would have altered the ultimate outcome of the plaintiff.

[68] In his expert report, he had indicated that the plaintiff would likely have been a Stage Ib cancer in May 2009, but in cross-examination, he stated that he did not know. He did not know if the plaintiff were peri-menopausal in May 2009 and acknowledged the cytology report that indicated that she was peri-menopausal in 2009.

The Studies Relied On

[69] The defendant relied heavily on a number of studies which sought to determine the statistical sensitivity of an endometrial biopsy in detecting uterine LMS. The studies were adduced to establish the correlation of:

1. The sensitivity of detection of LMS with the location of the tumor. In particular, there were two studies which, in the end, were inconclusive as regards the location of the tumor in relation to sensitivity of detection through testing;

2. The sensitivity of the detection of LMS with respect to whether the plaintiff was pre-menopausal or post-menopausal;

3. The survival rates of a patient with LMS detected at Stages I to IV.

[70] As regards the first category above, the Leibsohn and Schwartz studies were referred to. Both were older studies with small samples of patients and, thus, less reliable. The studies were inconclusive as to the location of the tumor as a variable in the detection of LMS.

[71] As regards the second category, numerous studies were referenced. Among them, the Hinchcliffe study was referred to as demonstrating that there was a 37% likelihood of detection of LMS in pre-menopausal women, while the percentage was higher in post-menopausal women. The Haak study from the Netherlands was a small study which focused on three types of sarcomas, and not just LMS. It did conclude that while LMS was rare, women between 40 and 50 years of age with abnormal uterine bleeding were most at risk for unexpected LMS.

[72] In the Sagae study from Japan, again a variety of types of sarcoma were used in the study.

[73] The Bansal study was a small study which included a variety of malignancies. It determined that there was 100% detection rate of LMS using an endometrial biopsy. This was viewed by the experts as an “outlier”.

[74] In this regard, many of the studies revealed a sensitivity of detection close to 50%, some below and some above.

[75] As regards the third category, the Rauh-Hain study reported the following survival rates:

1. Stage I (confined to uterus) - 75 months;

2. Stage II (involving cervix) - 66 months;

3. Stage III (involving pelvis/abdomen) - 34 months;

4. Stage IV (involving outside the pelvis/abdomen (e.g. lungs) - 20 months.

[76] The Kapp study studied the five-year disease specific survival rate of 1,396 patients with LMS. This report revealed similar statistics to the Rauh-Hain study, as follows:

1. Stage I - 75.8%;

2. Stage II - 60.1%;

3. Stage III - 44.9%;

4. Stage IV - 28.7%.

[77] As regards the survival rate of patients with LMS, the plaintiff’s experts were of the opinion that the earlier the stage at which LMS was detected, the higher the likelihood of cure or length of life of the patient with LMS. Two of the defendants’ experts, Dr. Vilos and Dr. Dodge, in cross-examination, conceded that the earlier the stage at which LMS was detected, the higher the likelihood of cure or length of life. Dr. Leyland declined to provide an opinion in this regard.

[78] There were a wide range of findings among the studies. The experts of the plaintiff explained that the reason for the wide range was that the results depended on methodology used, the ages of the patients, the presenting symptoms of the patients, genetic differences in the prevalence of LMS, given that there were studies from various countries.

[79] In considering the variety of medical studies presented, I am guided by the Supreme Court of Canada’s decision in Laferriere v Lawson 1991 CanLII 87 (SCC), [1991] 1 SCR 541 paras 159-160:

[159] It is perhaps worthwhile to repeat that a judge will be influenced by expert scientific opinions which are expressed in terms of statistical probabilities or test samplings, but he or she is not bound by such evidence. Scientific findings are not identical to legal findings. Recently, in Snell v Farrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311, 4 CCLT (2d) 229, 110 N.R 2007 2 DLR (4th) 289, 107 NBR (2d) 94, 260 7APR 94, this court made clear (at p. 328) that “[c]ausation need not be determined by scientific precision” and that “[i]t is not…essential that the medical experts provide a firm opinion supporting the plaintiff’s theory of causation” (p. 330). Both this Court and the Québec Court of Appeal have frequently stated that proof as to the causal link must be established on the balance of probabilities taking into account all the evidence which is before it, factual, statistical and that which the judge is entitled to presume.

[160] If one takes, for example, a case in which the doctor neglects to employ a recommended procedure which is said to have a 50% chance of complete cure, a judge would not necessarily be bound by expert opinion which declined to conclude that application of the procedure to the patient would have avoided the patient’s present worsened condition. The judge might well be justified in finding that the procedure in question would probably have benefitted the patient, if other factors particular to that plaintiff support that conclusion. The judge’s duty is to assess the damage suffered by a particular patient, not to remain paralyzed by statistical abstraction.

[80] In Goodman v Viljoen, 2011 ONSC 821 at para 206, stated:

[206] This statistical information is of course just one piece of evidence the court must consider in determining the issue of causation. Statistics represent generalizations and not the particular circumstances of a given case. At best they are numbers which are dependent on the underlying data and the limits of scientific knowledge. Context, human experience and interpretation are required if statistics are to have any real meaning.

[81] In Anderson v St. Jude Medical Inc., 2012 ONSC 3660, paras 551-552, the court cautioned against simply converting statistics to a legal standard of balance of probabilities, stating:

Adjudicative decisions about causation do not simply convert statistical probabilities into decisions about causation using the legal standard of “balance of probabilities”.…

Even in cases such as this where most of the evidence associating a workplace with a cancer is epidemiological evidence, there may be factors about the individual worker or his/her exposure that increases that individual’s risk such that an adjudicator will be persuaded that it is more likely that he/she is one of the workers whose cancer would not have developed “but for” the work exposure (i.e. that it is more likely that he/she was one of the 50 out of 150 workers whose cancer would not have developed “but for” the work exposure…

[82] The defence’s case on the issue of causation focused on showing that a number of studies in the medical literature demonstrated a less than 50% sensitivity to detection of LMS by way of an endometrial biopsy.

[83] However, the law is clear that one does not simply convert statistics into a legal standard of a balance of probabilities.

[84] The question is whether the plaintiff would likely have had a positive endometrial biopsy on May 25, 2009 in all the circumstances presented on May 25, 2009.

Credibility

[85] All expert witnesses who testified on behalf of both parties are recognized as experts in their respective fields. I have considered and pondered their respective credibilities as regards the evidence given.

[86] While I am satisfied that they are all well-qualified in their fields of expertise, I do not find them equally credible as regards the testimony they gave in examination in chief and in cross-examination.

[87] I note that Dr. Browning has done most of his medical-legal opinions for the CMPA, i.e. for the doctors in legal cases. He was therefore not known as a “plaintiff’s expert”. His evidence in this case was for the plaintiffs, rather than the medical practitioners. I found his evidence throughout to be forthright, impartial and consistent, in both examination in chief and in cross-examination. I found the evidence of Dr. Covens and Dr. Cheung to be equally forthright, consistent and thorough throughout their examinations in chief and in cross-examinations. I found their testimony to be credible.

[88] I found the defendant’ s experts, Drs. Vilos, Leyland and Dodge to all be knowledgeable, but inconsistent in their evidence. Their evidence in cross-examination was contradictory of evidence given in examination in chief. I found them to be less than forthright in cross-examination, tending to be argumentative or “jousting” with the plaintiffs’ counsel.

[89] While the defence maintains the plaintiff’s experts were not credible, due to their backgrounds, experience and testimony, I do not agree. I found them to be credible. Having heard their testimony at trial, reviewed my notes taken at trial and having read all transcripts of all of the experts, I do not find them to have “jousted” with the opposing counsel, to have been argumentative, inconsistent or contradictory. Nor did they “assume the role of advocate”.

[90] Based on all of the testimony at trial and my review of the transcripts of all experts, I would have said that the defendant’s experts had a greater tendency to become “advocates” for the defence, or were less impartial. They had a greater tendency to be argumentative, inconsistent and contradictory. Based on the evidence, the medical records, the agreed statements of fact, the reports and testimony of the experts, where there is a discrepancy between the testimony of the plaintiff’s experts and the testimony of the defendant’s experts, I prefer the evidence of the plaintiff’s experts, unless I state otherwise.

Positions of the Parties

[91] It is the position of the plaintiffs that Dr. Mahmoud fell below the standard of care of a gynecologist. It is the position of the plaintiffs that Ms. Hacopian-Armen likely had Stage I LMS as at May 25, 2009, which was likely close to the endometrium as she experienced prolonged, heavy, abnormal bleeding. An endometrial biopsy was indicated and should have been done at the time of the first consultation, at the office visit of May 25, 2009, given her age, the abnormal bleeding and the fact that she had never had a child (was nulliparous). It was further the position of the plaintiffs that had an endometrial biopsy been performed at, or about the time of the first consultation, it would likely have diagnosed the underlying malignancy. It is further the position of the plaintiffs that earlier diagnosis would have substantially improved the plaintiff’s prognosis, offering a longer life.

Position of the Defendant

[92] It is the position of the defendant that, in all of the circumstances presented, there was no abnormal bleeding. The plaintiff had regular, heavy menses every two weeks which lasted two weeks. There was no abnormality, and therefore no need to conduct an endometrial biopsy. It is the position of the defendant that, in any event, an endometrial biopsy would not, at the first consultation, have detected LMS, as there were no fibroids or tumors in the uterine cavity. Further, treatment would not likely have prolonged the plaintiff’s life beyond the time when she did die.

The Issues

[93] The issues of standard of care and causation are in dispute.

[94] As regards standard of care, the issue is whether Dr. Mahmoud fell below the standard of care by not performing an endometrial biopsy when the plaintiff first consulted him with fibroids and abnormal uterine bleeding on May 25, 2009.

[95] If it is found that Dr. Mahmoud fell below the standard of care, the issue of causation must be determined. The plaintiff must establish that the breach of the standard of care more likely than not caused the plaintiff’s injury: Clements (Litigation Guardian of) v Clements, 2012 SCC 32; Cottrell v Gerard 2003 CanLII 50091 (ON CA), [2003] O.J. No. 4194 (C.A., Leave to appeal refused, [2003] SCCA No. 549.

[96] In determining the issue of causation, it must be decided on a balance of probabilities:

(1) whether the plaintiff had LMS on May 25, 2009;

(2) if so, whether an endometrial biopsy performed on May 25, 2009 would have detected abnormal pathology and/or a LMS that would have led to earlier intervention and treatment; and

(3) if an endometrial biopsy were performed on May 25, 2009, and if it were likely that it would have detected abnormal pathology and/or a LMS, whether the plaintiff’s prognosis would likely have been substantially improved as a result.

[97] The parties have agreed upon damages should Dr. Mahmoud be found negligent as regards both standard of care and causation.

The Law

The Framework for Assessing Medical Malpractice Cases

[98] To succeed in a medical negligence action, the plaintiff bears the onus of proving, on a balance of probabilities, that the following four elements are present: i) the physician owed the plaintiff a duty of care; ii) the physician breached the applicable standard of care established by law; iii) the plaintiff suffered an injury or loss; and iv) the physician’s failure to comply with the applicable standard of care was the actual and legal cause of the plaintiff’s loss or injury. The test is sequential and it must be determined by the court whether the plaintiff has proven each of the four elements in the order in which they are set forth in the test. If the plaintiff fails to prove one of the elements, in the order in which a court examines them, then the plaintiff’s action fails, obviating the need for the court to proceed on with a determination on the remaining elements: Grivicic v Alberta Health Services (Tom Baker Cancer Centre), 2015 ABQB 811 per Campbell J, aff’d 20 ABCA at paras 14 and 15.

Standard of Care

[99] The standard of care owed by a physician to a patient, as defined by the Supreme Court of Canada is as follows:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in the field. The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.: ter Neuzen v Korn, 1995 CanLII 72 (SCC), [1995] 127 D.LR (4th) 577 at para 33 (S.C.C.).

[100] “It is the duty of a specialist… who holds himself out as possessing special skill and knowledge, to exercise the degree of skill of an average specialist in his field”: Wilson v Swanson 1956 CanLII 1 (SCC), [1956] S. C. R. 804 at page 817; Gent v Wilson [9056] O. J. No. 535 at para 13 (CA).

[101] The standard against which a physician’s conduct is measured is what a reasonable specialist would have done in the circumstances. A range of conduct, falling within the scope of what a reasonable specialist would have done, will satisfy the standard. If a defendant’s conduct falls within the range of what a reasonable specialist would have done in the circumstances, the defendant is not liable: DD v Wong Estate, 2019 ABQB 171 at para 200.

[102] Where competing standards are presented, the evidence must be weighed and a determination made of the applicable standard of care. Ultimately, the applicable standard of care is determined by the trier of fact having regard to all of the expert testimony: Crawford (Litigation Guardian of) v Penney, [2003] O.J. No. 89 at 248 (SCJ) aff’d 2004 CanLII 22314 (ON CA), [2004] O.J. No. 3669 (C.A.).

[103] A physician is not absolved of liability merely by advancing proof of one reputable school of thought in the medical community at the time of the incident. In that regard, the Court of Appeal for Ontario has stated:

The courts have recognized that the respectable minority principle does not absolve a doctor from liability and negligence whenever there is a conflict in the expert evidence led at trial concerning the reasonableness of a doctor’s conduct: see Kangas v Parker and Asquith, 1976 CanLII 935 (SK QB), [1976] 5 WWR 25 (Sask. Q.B. ) at pp. 38-39, aff’d 1978 CanLII 1814 (SK CA), [1978] 5 WWR 667 (Sask. CA.), Cope v Layden [1984] A.J. No. 175 (C.A.); Kehler v Myles 1988 ABCA 350, [1988], 64 Alta L R. (2d) 97 (C.A.) at p. 106; leave to appeal to SCC refused (1989) 95 A. R. 236; Alakoozi v Hospital for Sick Children (2004), 2004 CanLII 8394 (ON CA), 187 OAC 187 (C.A.) at paras. 5-7. As Picard and Robertson point out in Legal Liability of Doctors and Hospitals in Canada at p. 364, “were it otherwise, nearly every medical negligence case would be resolved in favour of the doctor, because they almost always involve a conflict of expert evidence.”: Cleveland (Litigation Guardian of), supra at para 51.

[104] Every medical practitioner must bring to the task a reasonable degree of skill and care of a normal prudent practitioner of the same experience.: Gent v Wilson [1956] O.J. No. 533 at para. 13. To succeed in an action for medical negligence, a plaintiff must prove, on a balance of probabilities, that the defendant breached the standard of care of a reasonable and prudent physician of the same experience and standing, having regard to all the circumstances of the case: Crits v Sylvester et al 1956 CanLII 34 (ON CA), [1956] O.J. No. 526 (C.A. paras 13-14 aff’d. [1956] S.C.R. 99] (S.C.C.),

[105] In assessing whether the standard of care has been met or breached, a finding of negligence cannot be based merely on the consequences of medical treatment to a patient: Felix v Red Deer Regional Hospital Centre, 2001 ABQB 545 at para 80. The case cannot be viewed from the more enlightened perspective of hindsight, but must be judged from the perspective of the knowledge of the physician at the time of treatment.: Brics v Stroz, [2002] O. J. No. 1089 (SCJ) at para 72. The analysis must be prospective, not retrospective.

Clinical Judgment

[106] A physician’s honest and intelligent exercise of judgment will satisfy the standard of care. The Ontario Court of Appeal has clarified that the standard of care expected of the medical profession must be realistic and reasonable. A physician is not the insurer of a patient’s health and well-being: Tacknyk v Lake of the Woods Clinic [1982] O.J. No. 170 (C.A.) at para 29.

[107] There is a clear distinction in the law between the exercise of clinical judgment and negligence. It is well-established that medical professionals cannot be held liable for exercising clinical judgment. However, a physician’s basis for exercising judgment must be properly founded and is subject to scrutiny. The court can examine the grounds upon which the judgment is exercised.: Penney, supra; Williams, supra at para 232. The exercise of clinical judgment must be based on a physician’s consideration of appropriate factors and proper weight must be given by the physician to those factors. See Williams (Litigation Guardian of) v Bowler, 2005 CanLII 27526 (ON SC), [2005] O.J. No. 3323, at para 248, 238.

[108] Whether a physician was negligent or simply made an error in judgment is determined on a case-by-case basis having regard to the particular facts of the case: Dean v York County Hospital et.al. [1979] O.J. No. 348 (S.C.J.) at para 41 cited with approval in Bafaro v Dowd, [2008] O.J. No. 3474 (S.C.J.) at para. 28, aff’d 2010 ONCA 188, [2010] O.J. No. 979 (C.A.).

Analysis

Standard of Care

[109] The defendants did not lead evidence as regards the standard of care. Their expert witnesses did not adduce any expert evidence as regards standard of care and only opined as regards causation. As a result, the only evidence given as regards breach of the standard of care comes from the plaintiffs’ expert witnesses. However, the defendants take the position that the standard of care was not breached by Dr. Mahmoud.

[110] All of the plaintiffs’ expert witnesses testified that where a patient presented with the conditions and circumstances with which Ms. Hacopian-Armen presented, an endometrial biopsy should have been performed. All were of the opinion that she presented with abnormal bleeding, namely heavy bleeding, with blood clots, over a period of 14 days per month. She was 47 years old and nulliparous, meaning that she had never had children.

[111] The SOGC Guidelines for the Management of Abnormal Uterine Bleeding recommended an endometrial biopsy to rule out any abnormalities or abnormal pathologies, in the circumstances with which she presented.

[112] Pursuant to the SOGC Guidelines, it is recommended that “women presenting with menorrhagia should have a current cervical cytology and a complete blood count. Further investigations are individualized. It is useful to delineate if the bleeding results from ovulatory or anovulatory causes both in terms of tailoring the investigation and in choosing a treatment.

[113] As regards a normal menstrual cycle, it is indicated in the Guidelines as being a duration of 4 plus or minus 2 days. Abnormal uterine bleeding (“AUB”) is defined as changes in frequency of menses, duration of flow or amount of blood loss. The Guidelines further state that “sampling of the endometrium should be considered in all women over 40 years of age with abnormal bleeding or in women who are at higher risk of endometrial cancer, including: nulliparity, a history of infertility; new onset of heavy, irregular bleeding….”. It further stated that “polyps or submucous fibroids are present in 25 to 50% of women who present with irregular bleeding.” The recommendations include the following: “clinicians should perform endometrial sampling based on the methods available to them. An office endometrial biopsy should be obtained if possible in all women presenting with abnormal uterine bleeding over 40 years of age or weighing more than or equal to 90 kilograms”

[114] It was the evidence of Dr. Andrew Browning, expert witness for the plaintiff and gynecologist with 27 years’ experience, who has experience in treating women with both fibroids and abnormal uterine bleeding and did an average of 5 to 10 endometrial biopsies per week in his clinical practice, that the plaintiff presented with abnormal bleeding and that an endometrial biopsy, in her circumstances was definitely indicated when she first attended the offices of the defendant on May 25, 2009, given the abnormal bleeding, her age and the fact that she had not had any children, which increases the risk for some form of intrauterine pathology. He explained that an endometrial biopsy is a simple procedure which is performed in a gynecologist’s office and that all gynecologists are trained to perform the procedure.

[115] The plaintiffs’ experts maintained that the SOGC Guidelines recommended an endometrial biopsy for women who presented with the plaintiff’s conditions (abnormal bleeding, over 40, nulliparous) and that the bleeding experienced by the plaintiff was not “normal”, namely that it was not 4 plus or minus 2 days but was 14 days heavy bleeding with blood clots. It was their position that this should have been investigated and that the simple procedure of an endometrial biopsy would have been the appropriate and recommended test. It was the opinion of Dr. Covens that two weeks heavy bleeding per month is way off side 99% of women’s menses. Dr. Browning observed that the SOGC Guidelines are followed in clinical practice to ensure that all gynecologists are consistent in the standard of care. Dr. Browning opined that not to perform the endometrial biopsy in the circumstances with which the plaintiff presented was not simply a matter of Dr. Mahmoud exercising his professional judgment. Given the circumstances, it should have been done or, at least, he should have noted the reason he was deviating from the clinical guidelines in his consult notes, which he did not do. It was his opinion that had the procedure been done, there was a real likelihood that LMS would have been detected.

[116] It was the position of the defendants that because her menstrual period occurred regularly every two weeks, although it was heavy, with clots, it was normal, in that it occurred regularly, and that fibroids were often accompanied by bleeding. The defendant testified that he assumed that her bleeding was attributed to her fibroids and, on that assumption, did not conduct any further tests, including the simple endometrial biopsy. He testified that he did not consider that there could be other potential causes of the bleeding.

[117] He did acknowledge that he could easily have done an endometrial biopsy, as he had inserted a speculum, through which he could have done the biopsy, but did not consider other causes of bleeding except the fibroids and, therefore, did not consider the need for or utility of a biopsy.

[118] The evidence indicates that she had suffered from fibroids from 1999 and heavy periods from 2004. The defendants maintain that she had menorrhagia for a “long time” and that it was attributable to the fibroids. I note however that when fibroids were first detected in 1999, and for five years thereafter, there is no evidence of heavy bleeding accompanying the fibroids. Based on all of the evidence, the heavy bleeding commenced five years after fibroids were first detected. That heavy bleeding continued for another five years, when she was finally referred to the defendant. However, the defendant did not ever consider other causes for the heavy bleeding and failed to do a very simple procedure to rule out other potential causes.

[119] It is of note, as well, that after the first few consults, in 2010, the plaintiff was also admitted to hospital for a low hemoglobin count and blood transfusion, and shortly thereafter the diagnosis of a DVT. There is evidence to indicate that these could also have suggested symptoms of malignancy.

[120] While the defence argued that an endometrial biopsy would not have detected LMS in the plaintiff in 2009, because it would have to be in the uterine cavity to be detected, they were relying on two older studies, Leibsohn and Schwartz. Those studies are inconclusive as regards location of the tumor as a variable in detection of LMS. None of the subsequent studies referenced in the trial examine location of tumor as a variable with respect to the sensitivity of endometrial biopsies to detect uterine LMS. Dr. Vilos, in cross-examination, acknowledged that he did not know if location made a difference, although he had indicated that it did in his expert report.

[121] I find, based on all of the evidence, the testimony, the case law and submissions of counsel, that the defendant breached the standard of care of a reasonable prudent expert in the field of clinical gynecology, by failing to consider and perform an endometrial biopsy when the plaintiff presented in May 2009.

[122] Further, based on all of the evidence with respect to the defendant’s notes and reports as regards his consultations with the plaintiff, I also find that his note taking fell below the standard of care expected of a skilled professional in his field possessing a reasonable level of knowledge, competence and skill expected of professionals in that field. As the plaintiff’s experts testified, his reports of his meetings with the plaintiff were more like personal sketchy notes and not the kind of report that experts would normally do to inform the referring doctor as to their diagnosis and prognosis of the patient. There was lack of detail, lack of specificity, with no medical history indication of investigation or findings which would inform another doctor picking up the file. While it was the testimony of Dr. Mahmoud that her family doctor knew her better than he did and would understand the notes, I do not accept this testimony, and find that he fell below the standard of an expert in his field.

Causation

[123] The Supreme Court of Canada, in Clements (Litigation Guardian of) v Clements, 2012 SCC 32, set forth the guidelines for establishing causation, as follows:

[6] Once a breach of the standard of care has been established, the plaintiff must then establish that the defendant’s negligence caused the injury. That link is causation.

[7] Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care, namely the defendant was found at fault and the plaintiff who has been injured by that fault. If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered. This basis for recovery, sometimes referred to as corrective justice, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm: E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligence, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities having regard to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See Wilshir v Essex Area Health Authority, [1988] A.C. 74 (U.K.H.L.), at p. 1090, per Lord Bridge; Snell v Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 (S.C.C.).

[11] Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable. As Sopinka J. put it in Snell, at p. 330:

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept [that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” (Blatch v Archer (1774), 1 Cowp. 63, 90 8E. R. 969, at p. 970)]. This is, I believe, what Lord Bridge had in mind in Wilshir when he referred to a robust and pragmatic approach to the… facts” (p. 569).

[13] ….. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury without showing factual “but for” causation. …… This can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

[27] … In “special circumstances”, the law has recognized that the “but for” test for causation should be replaced by a material contribution approach … This may occur where it is “impossible” for the plaintiff to prove causation on the “but for” test, and where it is clear that the defendant breached his duty of care in a way that exposed the plaintiff to an unreasonable risk of injury. The basis for the exception in these circumstances is that requiring “but for” causation “would offend basic notions of fairness and justice”.

[28] To recap, the Canadian Supreme Court jurisprudence on a material contribution approach to date may be summarized as follows. First, while accepting that it might be appropriate in “special circumstances”, the court has never in fact applied a material contribution to risk test. Cook was analysed on a reverse onus basis. Snell, Athey, Walker Estate and Resurface were all resolved on a robust and common sense application of the “but for” test of causation. Nevertheless, the court has acknowledged the difficulties of proof that multi-tortfeasor cases may pose – difficulties which in some cases may justify relaxing the requirement of “but for” causation and finding liability on a material contribution to risk approach.

[124] Thus, as stated in Clements, as a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required. Secondly, exceptionally, a plaintiff may succeed by showing that the plaintiff’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury defeating a finding of causation on a balance of probabilities against anyone: Clements, para 46.

[125] In addition to establishing factual causation, a plaintiff must also establish that the injuries actually suffered were foreseeable or not too remote. This element of causation has been described as “legal causation” or “causation in law”: Mustapha v Culligan of Canada Ltd., 2008 SCC 27, para 11.

[126] As regards remoteness, it must be determined whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable. The injury must have been a real risk which “would occur to the mind of a reasonable man in the position of the defendant… and which he would not brush aside as far-fetched.”: Mustapha v Culligan of Canada Ltd, ibid.

Loss of chance

[127] Loss of chance is non-compensable in medical malpractice cases in Canada: Cottrell v Gerrard, 2003 CanLII 50091 (ON CA), 2003 CarswellOnt 4154; leave to appeal to the SCC refused, 2004 CarswellOnt 1622; Laferriere c Lawson 1991 CanLII 87 (SCC), [1991] 1 S.C.R. 541 (S.C.C.); St. Jean c Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491 (S.C.C.) Hotson v East Berkshire Area Health Authority [1987] A.C. 750 (U.K.H. L.).

Evidentiary Gap

[128] As regards causation, where there is a gap in the evidence as regards establishment of causation which is caused by the defendant’s own negligence, this cannot be used to shield the defendant from any responsibility. The inability to prove the causal link between the defendant’s negligence and the plaintiff’s damages, if a direct result of the defendant’s failure to act appropriately, cannot be used to shield the defendant.

[129] In Goodwin (Litigation Guardian of) v Olupona et al, 2013 ONCA 259, 2013 CarswellOnt 4830, 2013 ONCA259, a lawsuit was brought against the doctor, nurses and hospital with respect to the birth of twins, during which one of twins suffered foetal hypoxia. Dr. Olupona was not able to adduce the clinical evidence that may have provided direct evidence of causation due to the fact that the head nurse had been negligent in failing to monitor the foetal heart rates prior to birth such that there was no reliable information about the injured twin’s welfare while his mother was in labour. The court held that the nurse and hospital should not be allowed to hide behind a lack of evidence brought about by their own negligence in the face of expert evidence supporting Dr. Olupona’s position. And see Ghiassi v Singh, [2018] ONCA 764, para 28-29; Adams v Taylor [2012] ONSC 4208, para 122-124.

[130] Similarly, in Ghiassi v Singh, supra, it was held that Nurse Oswald’s negligence in failing to order a bilirubin test was the reason that no data point as to the bilirubin level existed. In that case, the Ontario Court of Appeal held that Nurse Oswald should not be permitted to rely on the lack of evidence that her own negligence produced to shield herself from liability.

[131] While the defendants have attempted to distinguish these cases, I do not find their attempts to be persuasive.

Analysis

[132] In the circumstances of this case, the applicable test is the “but for” test. While the plaintiffs have urged that, as an alternative, the material contribution test is applicable, I am of the view, based on the Supreme Court of Canada dicta in Clements, that the material contribution test, in Canada, is applicable where there are multi-tortfeasors and it is not certain which of them was the actual cause of the loss. That is not the situation in this case.

[133] Further, loss of chance is not applicable in medical malpractice cases in Canada.

[134] Can it be said that the defendant’s negligence in breaching the standard of care in failing to do a simple endometrial biopsy in May 2009, which negligence I have found above, resulted in the plaintiff’s loss?

[135] The plaintiff was referred by her family physician for “fibroids” and first consulted with the defendant on May 25, 2009. She was ultimately diagnosed with LMS on April 7, 2011. She died on August 24, 2011. Therefore, a period of two years and three months passed between the first consult with Dr. Mahmoud and her death.

[136] The plaintiff’s experts have testified as regards the likelihood of a sarcoma having been found on May 25, 2009, had an endometrial biopsy been done. The plaintiff’s experts opined, based on their experience and a review of the relevant medical records and literature. They based their opinion as to the likelihood of the endometrial biopsy detecting LMS in May 2009 on their experience in the area, the plaintiff’s circumstances with which she presented at the first consultation with Dr. Mahmoud, and the facts reviewed above: that the plaintiff was 47 years old, her uterine condition was more closely akin to that of a menopausal as opposed to pre-menopausal woman, given the breadth and range of the pre-menopausal studies (which used subjects from 20-50 years of age). It was further the evidence of Dr. Browning that, at the plaintiff’s age and given that she had never had a pregnancy, there was a 13 times more likely chance of having early menopause. Further, there was evidence to suggest that she was beginning to have changes which would make her hormonally closer to menopause than pre-menopause. Based on the literature, the sensitivity for the detection of LMS in the plaintiff was 50% or greater. Further, based on her abnormal bleeding, it was likely that the LMS was in or near the endometrium such as to cause the abnormal bleeding, which would further increase the likelihood of detection. Based on all the evidence presented, I am satisfied that the plaintiff did suffer from abnormal bleeding.

[137] It was the opinion of Dr. Browning that the plaintiff was likely suffering from a malignancy on May 25, 2009 which caused the abnormal bleeding. He testified that in his opinion, had the endometrial biopsy been done at the first consultation, it would more than likely have resulted in a positive result such that early intervention could have taken place, which would include a hysterectomy, while the malignancy was still in the uterine cavity and had not metastasized to the rest of the body. He based his opinion on the fact that an endometrial biopsy should have been done given her age, namely over 40 years of age, her abnormal bleeding, the fact that she had had no pregnancies and that pursuant to the SOGC Guidelines for Intrauterine Bleeding, these characteristics all indicated that an endometrial biopsy was recommended and should have been done.

[138] He testified that tumors do not grow overnight, and that given the stage of the LMS when it was discovered in 2011 (Stage IV), it was reasonable to conclude that it was at an early stage (Stage I) on May 25, 2009.

[139] Further, the evidence indicates that the plaintiff did not have heavy bleeding initially when her fibroids were first discovered in 1999, but only developed heavy bleeding five years later in 2004.

[140] Dr. Covens, the gynecological oncologist, also opined that the LMS was in all likelihood at Stage I on May 25, 2009, meaning that it would have been confined to the uterus. He stated that as at May 25, 2009, the plaintiff presented with abnormal uterine bleeding with no precise reason. While she had fibroids, 40 to 50% of women over 40 do have fibroids which does not mean that she cannot have other contributing conditions. It was his opinion that it was highly likely that in May 2009, the plaintiff would have had Stage I LMS. If the plaintiff had had a successful endometrial biopsy in May 2009, it was likely she would have had a hysterectomy that would have removed the tumor which would have been confined to the uterus. If this had happened, she would have had a 60 to 75% five-year survival rate. A high percentage five-year survival rate is the equivalent of a cure, as recurrence of the malignancy, if it is going to recur, does so within one to two years. He stated that there is a large difference in outcomes between Stages I and IV.

[141] I note as well from the medical tests that no metastases were detected until 2011, such that the LMS was growing relatively slowly, as Dr. Browning opined.

[142] While the evidence indicated that this was an aggressive form of cancer, I accept the plaintiff’s experts’ evidence that it was not something that would develop rapidly over a short period of time, as was urged by the defendant’s experts.

[143] The evidence indicated that at Stage I, the plaintiff would have had a hysterectomy to remove the LMS, which was still confined to the uterus, which would have greatly improved her likelihood of survival.

[144] It is the evidence of the defendant’s experts that the likelihood of having found LMS at the first consult in May 2009 is purely speculative and unknowable. The defence argued that there was no evidence of any LMS having broken through the myometrial/endometrial lining into the uterine cavity based on all of the imaging. They contended throughout that LMS could not be detected unless it were in the uterine cavity. The plaintiff’s experts refute this position. I note as well that the endometrial biopsy finally undertaken on April 7, 2011 did detect the sarcoma, although the LMS had not yet entered the uterine cavity. The defendant further maintained that the plaintiff was clearly pre-menopausal such that sensitivity of detection would be under 50%. While there were no fibroids seen in the uterine cavity on imaging, this does not exclude the likelihood that LMS, was in or near the endometrium, causing or contributing to the abnormal bleeding while it was still undetectable by diagnostic imaging. The evidence at trial indicated that the diagnostic imaging would not detect a LMS and that 95% of LMS malignancies originate de novo and are not part of an existing fibroid. It is of note that the endometrial biopsy conducted in April 2011 did diagnose the presence of a LMS at a time when the plaintiff was still, according to the defendants, “pre-menopausal” as opposed to “peri-menopausal”, and at a time when the LMS was not in the uterine cavity. Further, there was no evidence of uterine invasion of the LMS on any kind of diagnostic imaging at that time. This is contrary to the defence theory of the case which suggests that in the circumstances described, the biopsy should have been negative. I should add that I do not find this fact determinative of whether there was LMS present on May 25, 2009. In that regard, I have based my findings on other evidence, without using a retrospective analysis.

[145] The defendant relies heavily on the scientific studies adduced during the trial to argue that detection of LMS in May 2009 would have been unlikely given her age, the fact that she was pre-menopausal and that there was no evidence that the LMS had broken through the myometrium/endometrium into the uterine cavity. While there were studies that supported the defendant’s arguments, there were also studies that supported the plaintiff’s position and indicated that having done an endometrial biopsy in May 2009 would likely have provided the evidence of the LMS. I am mindful of the guidance given by the Supreme Court of Canada as regards the use of scientific data in assessing and determining issues of fact and law. While I take into account those studies and the evidence as regards their strengths and weaknesses, I also have analysed the full context of all of the evidence presented as regards the plaintiff.

[146] As regards the plaintiff’s menopausal status, while the defendants relied heavily on certain studies which indicated, inter alia, that in pre-menopausal women, an endometrial biopsy has a lower percentage of likelihood of detection of LMS, Dr. Browning testified that women who are nulliparous have a 13 times likelier chance of having early menopause; that women 40 to 49 years of age have a greater differentiation in their production of hormones in comparison with 20-29, and 30-39 age ranges and stated that there was evidence to suggest that the plaintiff was beginning to have changes which would make her hormonally closer to post-menopause than pre-menopause, or “peri-menopausal”. It was a laboratory report during that time which indicated her to be “peri-menopausal” or “peri”. Her FSH levels were rising, which was also a sign. Therefore, even based on the studies relied on by the defendant, there was a greater likelihood that LMS would have been detected in the plaintiff.

[147] It is clear that some of the categories into which subjects in the study were included were artificial/rigid, for example whether the subject was pre-menopausal, peri-menopausal or post-menopausal. I am mindful of the fact that there was no peri-menopausal category included in the one study that categorized the subjects, and am further mindful of the fact that Dr. Browning testified that given the plaintiff’s age, 47, with a median age of 50 for menopause, her circumstances as regards her uterus were different from those of a 20 to 30-year-old, her FSH levels, while below those of a woman in menopause had begun to climb toward menopause and the tests could not be applied broadly across the board to all women falling within what the study termed to be “pre-menopausal”.

[148] I am again guided by the dicta of the Supreme Court of Canada as regards scientific evidence and opinions, expressed in terms of statistical probabilities or test samplings. As the Supreme Court of Canada in Laferriere v Lawson, supra, stated “scientific findings are not identical to legal findings” and “proof as to the causal link must be established on the balance of probabilities taking into account all the evidence which is before it, factual, statistical and that which the judge is entitled to presume”. Further, “the judge’s duty is to assess the damage suffered by a particular patient, not to remain paralyzed by statistical abstraction. The Supreme Court of Canada further stated in Goodman v Viljoen, 2011 ONSC 821 at para. 206, that statistics represent generalizations and not the particular circumstances of a given case.”. Further, in Anderson v St. Jude Medical Inc., 2012 ONSC 3660, para 551-552, the court cautioned against simply converting statistics to a legal standard of balance of probabilities, stating “adjudicative decisions about causation do not simply convert statistical probabilities into decisions about causation using the legal standard of “balance of probabilities”.

[149] Based on all of the evidence before this court, I accept the evidence of the plaintiff’s experts that the LMS, which was found to have metastasized to Stage IV by April 7, 2011, would have been at Stage I in and around May 25, 2009.

[150] Further, the plaintiff’s experts testified that had the plaintiff been diagnosed with LMS on May 25, 2009, her outcome would have been substantially improved. Dr. Covens testified that a diagnosis on May 25, 2009 would have been at Stage I which, if treated at that time, would have effectively been a cure for the plaintiff. At that stage, she would have likely lived another five years, which was effectively a cure, based on the evidence of Dr. Covens and the studies upon which he relied.

[151] The defendant’s experts, Doctors Vilos and Dodge, agreed in cross-examination that an earlier diagnosis would have led to a better outcome for the plaintiff. Dr. Dodge agreed that the outcome for a metastatic LMS is substantially worse than a Stage I LMS. Dr. Leyland avoided giving an opinion on this point.

[152] The defendants submit that there is no proof that LMS was present on May 25, 2009 when an endometrial biopsy should have been performed. They, therefore, argue that there is no evidence which would establish a link of causation necessary for this case.

[153] The reason that there is no evidence is attributable to the fact that Dr. Mahmoud did not perform an endometrial biopsy which would have provided the necessary evidence.

[154] As stated above, where there is a gap in the evidence as regards establishment of causation which is caused by the defendant’s own negligence, this cannot be used to shield the defendant from any responsibility. The inability to prove the causal link between the defendant’s negligence and the plaintiff’s damages, if a direct result of the defendant’s failure to act appropriately, cannot be used to shield the defendant: Goodwin (Litigation Guardian of) v Olupona, supra, Ghiassi v Singh, supra, Adams v Taylor, supra.

[155] As regards legal causation or causation in law, it must be established that the injuries actually suffered were foreseeable or not too remote. It must further be established that the injury or harm is not too unrelated to the wrongful conduct to hold the defendant fairly liable. The injury must have been a real risk which would occur to the mind of a reasonable person in the position of the defendant and which would not be brushed aside as far-fetched. In this case, I am satisfied that having failed to conduct an endometrial biopsy on the plaintiff at the first consultation which would have detected whether there was LMS present, it was foreseeable that the presence of LMS, if not treated, would likely result in serious injury or death to the plaintiff, which indeed, it did. I do not find the risk to be something that a reasonable, skilled, specialist would have brushed aside as far-fetched. Accordingly, I am satisfied that legal causation has also been established.

[156] Based on all of the evidence adduced at trial, including the medical records, the opinions and testimony of the medical experts adduced on behalf of both parties, the submissions of counsel and the case law, I find that Dr. Haider Mahmoud fell below the standard of care by failing to perform an endometrial biopsy on May 25, 2009. His notetaking fell below the standard expected of a reasonably skilled specialist in his professional field. Further, in failing to perform an endometrial biopsy on May 25, 2009, this allowed the plaintiff’s LMS to progress to the point that the course of the disease was unable to be altered by the time it was finally diagnosed. It was foreseeable, and not too remote, that the negligence would result in the plaintiff’s final loss. I am satisfied that causation, both factual and legal, have been established.

[157] I am satisfied, based on all of the foregoing, that Dr. Haider Mahmoud breached the standard of care and that causation, both factual and legal, have been established.

Released: 2020-08-19

COURT FILE NO.: CV-12-461940

DATE: 2020-08-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Armen Hacopian-Armen as litigation administrator for the estate of Armineh Hacopian-Armen, deceased, Armen Hacopian-Armen as estate trustee for the Estate of Vrijouhi Casper, deceased and Armen Hacopian-Armen, personally

Plaintiffs

– and –

Dr. Haider Mahmoud, Dr. Hassan Deif, Dr. Neil Isaac and North York General Hospital

Defendants

REASONS FOR DECISION

Carole J. Brown J.