Matwijow v. Chan, 2021 ONSC 7035
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Amy Margaret Matwijow and Robert Leslie Joseph Young, plaintiffs
AND: Anthony Kwok-Hing Chan, defendant
BEFORE: Mr Justice Ramsay
COUNSEL: Giuseppe Michelucci and Maria Damiano for plaintiffs; Jaan Lilles and Margaret Robbins for defendant
HEARD: October 13 – 20 and 18 – 22, 2021 at St Catharines by videoconference
ENDORSEMENT
1The main plaintiff, to whom I shall refer as the plaintiff, was injured during surgery performed by the defendant. She claims damages for negligence. Her domestic partner at the time, Robert Young, is co-plaintiff with a Family Law Act claim. I shall refer to him by name. I shall refer to the defendant, Dr Chan, by name to distinguish him from all the other doctors in the case.
2The parties agree on the quantum of damages. Only liability is in dispute.
3The plaintiff had been suffering painful menstrual periods. She had a history of endometriosis, a disorder in which tissue that normally lines the uterine wall grows outside the uterus. It turned out that she also had adenomyosis, in which the tissue enters the muscle of the uterus. After the surgery it was discovered that she had a significant perforation in her colon, which required immediate reconstructive surgery. The colon is part of the bowel. I use the terms interchangeably.
4In the female anatomy, there is usually a gap between the uterus and the colon. This gap is called the cul-de-sac or the pouch of Douglas. In the plaintiff’s case the uterus had adhered to the colon. This condition is called an obliterated cul-de-sac. It makes a hysterectomy more difficult because the surgeon has to separate the uterus from the colon by cutting along a narrow line of dense tissue. The plaintiff’s theory is that the defendant damaged her colon during the hysterectomy when he was separating it from the uterus.
The course of treatment
5On July 10, 2014 the plaintiff met the defendant for the first time. She filled in a questionnaire in which she said she wanted a second opinion. The referring physician, Dr Yu, her family doctor, had not given her an opinion, so she must have been referring to Dr Bedkowski, who had been her gynaecologist for some years. Dr Chan took her history and performed a physical examination. He scheduled an ultrasound and asked her to come back in three weeks. In the mean time, she could try Percocet for the pain. At that point the defendant thought that the problem was likely in the uterus. Dr Chan requested the plaintiff’s operative records that day and the next day got a response by fax that contained the records of the plaintiff’s Caesarian sections of 1999 and 2002, but not the laparoscopic procedure for removal of fibrous tissue of February 2001.
6Because Dr Chan was off work due to illness for eight weeks, the next visit was delayed. On October 9, 2014 he discussed the ultrasound findings with the plaintiff. Among other findings, it suggested adenomyosis. He wrote the word “adenomyosis” on his note of that date.
7The plaintiff said that the Percocet was not effective.
8Dr Chan told the plaintiff that in view of the multiple pathologies (endometriosis, post-operative scarring from Caesarian sections, fibroid tissue and adenomyosis), hysterectomy was the most realistic option to get rid of her problems. Dr Chan explained the difference between laparoscopic surgery and open surgery.
9He also discussed a trial of Lupron and how it would shut down her menstrual cycle, which could determine whether the menstrual cycle was the sole source of her pain. The plaintiff declined Lupron. It was too expensive. Dr Chan wrote in his handwritten note that the plaintiff understood the risk that the surgery would not entirely resolve the pain.
10The plaintiff said something that Dr Chan now says he misinterpreted to mean that she was missing two days a month of work. In any event I believe Dr Chan when he says that the plaintiff told him that the pain was interfering with her family life to some extent.
11The plaintiff agreed to have the hysterectomy. According to Dr Chan, she seemed happy to have the option of stopping the pain without taking medication for several more years. (at this point the plaintiff was potentially 10 or 15 years away from menopause.) Dr Chan told her to think about it and come back in a couple of weeks. I accept the defendant’s evidence on this point.
12On December 19, 2014 the plaintiff had her pre-op appointment. She signed the standard consent forms. I accept Dr Chan’s evidence that she was told, and acknowledged, that there was a risk of injury to other organs.
13On January 6, 2015 the defendant performed a laparoscopic hysterectomy on the plaintiff. During the procedure, her colon was perforated. Dr Chan did not notice.
14Dr Chan testified consistently with his contemporaneous operative report. He separated the various adhesions, making a point of keeping the ureter in sight. He separated the uterus from the colon through the border of the obliterated cul-de-sac. He separated the ligaments and cauterized the blood vessels. He applied a colpotomizer, which is a kind of cup, over the cervix and cut along its edge to separate the cervix from the vagina and finally removed the uterus.
15The plaintiff was discharged from the hospital on January 7. On January 8, the pathologist found bowel tissue attached to the uterus. He notified the defendant, who called the plaintiff back into the hospital. An ultrasound was performed on which subcutaneous air was found, which was consistent with, although not determinative of, bowel injury.
16On January 9 Dr Azabi, the general surgeon, performed surgery to repair a four-inch defect in the colon and rectum by performing an ileostomy. Fortunately, there was no stool in the peritoneum.
17Four months later the ileostomy was reversed to complete the repair. The whole experience must have been horrifying for the plaintiff.
The plaintiff’s case
18Dr Robert Reid, the plaintiff’s expert testified that the defendant’s care fell below the standard for a competent gynaecologist in the following ways:
a. He did not assure himself of a full appreciation of the medical issues because he omitted to review the operative report of February 9, 2001 in which Dr Bedkowski reported that he had removed fibrous tissue laparoscopically, and “the Douglas pouch was partially obliterated by adhesions between the sigmoid colon and the posterior wall of the uterus.”
b. He offered the plaintiff a choice between hysterectomy and Lupron when there were a number of conservative alternatives that should have been tried before surgery, namely oral contraceptives, Mirina (in an intrauterine device), Visanne and Danizol.
c. He did not have the skill or experience to perform a laparoscopic hysterectomy with an obliterated cul-de-sac. When he discovered the condition, he should have
i. called in a more skilled colleague, if one was available, or
ii. aborted the procedure and referred the plaintiff to a gynaecologist who specializes in difficult hysterectomies or
iii. opened the patient up and performed an abdominal hysterectomy.
19The plaintiff also pleads that Dr Chan’s performance of the operation fell below the standard of care because he did not identify the anatomy correctly and he did not recognize the large defect in the colon.
20Dr Reid is more than qualified. He is eminent in his field. He has had a career not only as a physician but a teacher of physicians. He has won awards and there is an award named after him. He has made significant contributions to the improvement of women’s health. He is not as experienced in performing difficult surgeries as the defence expert, Dr Vilos, but Dr Reid says that his expertise is sufficient to allow him to comment on surgical issues. I accept that. I accord Dr Vilos’s evidence greater weight, however, on surgical issues.
21Dr George Vilos’s career is as impressive as that of Dr Reid. He, too, has an award named after him. He is one of the “peers” who reviews peer-reviewed publications. In particular, Dr Vilos has a great deal of experience as a surgeon. He has researched treatments for uterine bleeding and has published on surgical complications.
22I also got the impression that Dr Reid’s evidence did not adequately take into account that this was not the first time the plaintiff had ever been to a doctor to see about pelvic pain. She had been to a gynaecologist, Dr Bedkowski, for years. She had tried, or been offered and declined, medical treatments on numerous occasions. None of them was satisfactory.
Failure to review the operative report of 2001
23On this question as in all four heads of alleged negligence, the defendant is held to the standard of care of the reasonably prudent and skilled practitioner in the area in which he holds himself out as a specialist. See ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, para. 46:
46 It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor's behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field: see Wilson v. Swanson, 1956 1 (SCC), [1956] S.C.R. 804 at 817, Lapointe c. Hôpital Le Gardeur, 1992 119 (SCC), [1992] 1 S.C.R. 351 at 361, and McCormick v. Marcotte (1971), 1971 52 (SCC), [1972] S.C.R. 18.
24The plaintiff told Dr Chan that Dr Bedkowski had operated on her at St Catharines General Hospital. After his first meeting with the plaintiff, Dr Chan requested the plaintiff’s records from that hospital. He got the operative reports from her two Caesarian sections, which had been performed at St Catharines General, but not the operative report of the 2001 operation, because it had been performed at the Hotel-Dieu.
25The record was, by this time, 13 years old. Over 13 years, the extent of the endometriosis might have changed.
26I accept Dr Chan’s evidence that the report would not have changed his mind about the operation. He had faced partial obliteration of the cul-de-sac before without running into problems. He knew that the operation might be more difficult and time consuming because of adhesions, and he told the plaintiff so. In fact the operation did take three and a half hours.
27Dr Reid himself conceded that he had no problem with Dr Chan commencing the operation. His real concern was that he continued after seeing the obliteration of the cul-de-sac.
28I do not think that Dr Chan fell below the standard of care by failing to chase Dr Bedowski’s operative report from 2001 or that this omission contributed to the plaintiff’s injury.
Failure to offer alternatives
29The physician is obliged to advise the patient of medically reasonable alternatives to the proposed procedure where the alternative treatments have benefits or advantages over the recommended treatment: Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.), paragraph 41, affirmed other grounds 2010 ONCA 188.
30I do not accept Dr Reid’s opinion that the defendant was obliged to offer the plaintiff all of the medications she had been offered in the past. Dr Reid seems to require a checklist of medications that should be offered to every patient. I find Dr Vilos’s opinion, that the treatment options should reflect the patient’s individual needs, to be more realistic. Looking at it that way, I agree with him to the extent that his testimony suggests that Dr Chan’s advice was not inconsistent with the guidelines of the Society of Canadian Gynaecologists, including the guideline of 2005 on treating adenomyosis, the guideline of 2010 on managing pain from endometriosis, and the guideline of 2002 on hysterectomy.
31I do not think that Dr Chan fell below the standard of care by offering a hysterectomy with or without a trial of Lupron for the following reasons:
a. After performing a pelvic examination, Dr Chan suspected correctly that adenomyosis was one of the many disorders suffered by the plaintiff. The ultrasound supported this suspicion. Adenomyosis can only be definitively diagnosed pathologically. The latest guideline published by the Society of Canadian Gynaecologists in 2005 said that hysterectomy was the gold standard for treatment of adenomyosis. I do not accept the suggestion of the defence that Dr Chan is relying on adenomyosis now because he has seen his expert’s report. Dr Chan wrote the word “adenomyosis” by hand in the notes of his consultation of October 9, 2014. The plaintiff and Dr Chan understood that the alternative to surgery was to do nothing and continue with Toradol. I do not think that there were additional reasonable alternatives in this particular case.
b. The plaintiff was not interested in having more children. That important contraindication to hysterectomy was absent.
c. The plaintiff had tried oral contraceptives and Ponstan unsuccessfully. Understandably, she did not want an intrauterine device. She could not afford Lupron, which was not a long-term treatment in any event. Percocet was not effective. The plaintiff testified that Toradol worked, but I do not think that it worked well enough: that is why she wanted a second opinion. Toradol did not allow the plaintiff to live free from pain. It only made the pain bearable once it occurred.
d. In October 2011 Visanne was approved in Canada to treat endometriosis. It can also treat adenomyosis by shutting down the menstrual cycle. It was not approved by insurers to treat adenomyosis, but it can be used “off-label”. I do not think that the omission to offer cutting edge use of an off-label drug falls below the standard of care. Dr Chan had heard of Visanne as a treatment for endometriosis, but he did not use it because he was treating adenomyosis. Visanne had not been tested beyond 15 months of use and it could cause bleeding in patients with adenomyosis. It would have to have been taken until menopause, which might have been a decade and a half later.
e. Danizol is an androgen. It produces unpleasant androgenic side effects such as acne and hirsutism. Dr Reid says that these can be avoided by using a reduced dose, but by 2018 the literature suggests that Danizol was still rarely used because of the side effects. Dr Chan had tried it. In his experience, even with a reduced dose his patients found the side effects unacceptable. I doubt whether the plaintiff would have been interested Danizol. Dr Chan’s approach is consistent with that of Dr Bedkowski, who never offered Visanne or Danizol as far as I know.
f. Dr Chan’s pre-operative advice was suited to the plaintiff’s particular needs and condition.
32Nor do I accept that the plaintiff would have chosen another alternative.
33Causation in informed consent cases involves a two-part test, subjective and objective: Reibl v. Hughes, 1980 23 (SCC), [1980] 2 S.C.R. 880; Bollman v. Soenen, 2014 ONCA 36.
34To meet the subjective test, the plaintiff must establish that the material risks or treatment alternatives were not adequately disclosed and that had they been disclosed, consent would not have been given. Although account must be taken of a patient's particular position, a position which will vary with the patient, it must be objectively assessed in terms of reasonableness.
35The plaintiff testified that if she had known that a hysterectomy might not resolve the pain, she would have continued with Toradol. I do not believe her. First, I accept, based on the contemporary clinical note, that Dr Chan did tell her that a hysterectomy might not resolve her pain. That is why Dr Chan proposed Lupron as a possibility on October 9, 2014. It is administered on a three-month trial (at a cost of $1,000 a month). It shuts down menstruation. If the pain persists, it follows that the uterus is not the sole source of the pain. If there had been no question of another potential source of pelvic pain, there would have been no need to discuss Lupron.
36Looking at the examination in chief of the plaintiff and comparing it to the doctor’s testimony and notes and her own cross-examination, I am of the view that she is understating the seriousness of her pain. She herself has used the word “unbearable” to describe it, although not in testimony before me. Here, when confronted with previous testimony or statements, she conceded that at times the pain would be unbearable until she took Toradol.
37She also understated the extent of the effect of the pain on her every day activities. She continued her daily activities but not without significant pain that could only be attenuated by medicine.
38The plaintiff went to Dr Chan to look for options, but she was already favourably disposed to the idea of a hysterectomy. Mr Young admitted that Dr Bedkowski would not do a hysterectomy, so obviously they spoke about it. The plaintiff admits that she raised the possibility of hysterectomy with Dr Bedkowski. I infer that the plaintiff went to Dr Chan for a second opinion because she wanted a doctor who was willing to consider a hysterectomy. I accept Dr Chan’s evidence that when he told her he would do a hysterectomy, she seemed happy about it. I think that the plaintiff would have chosen a hysterectomy over Visanne or Danizol. That would have been a reasonable choice. It was the only option that would address all of her many pathologies, especially adenomyosis.
The decision to continue surgery after discovering the obliterated cul-de-sac
39Dr Chan testified that when the laparoscope was inserted, he saw a dense adhesion of bladder to the lower part of the uterus and an adhesion in the back of the uterus that obscured his view of the cul-de-sac. The left ovary had adhered to the uterus and the right side of the uterus had adhered to the pelvic wall.
40He began by clearing the cul-de-sac until his view was not obstructed. He used small cuts. He did not think that he got into trouble. He removed the remaining adhesions and completed the operation. He did not realize that the bowel had been injured.
41In his report of April 10, 2019, Dr Reid said that on discovering the obliterated cul-de-sac the defendant should have continued the surgery as an open surgery which would have given him the added ability to see and feel at the same time. I do not accept that. Obliteration of the cul-de-sac is relatively common with endometriosis. The cul-de-sac is a natural place for endometriosis to end up. Dr Chan was an experienced gynaecological surgeon with a good record as far as complications are concerned. He had run into this condition before without issues. I do not accept that he lacked the skill to continue a laparoscopic hysterectomy with extensive adhesions and an obliterated cul-de-sac.
42To my mind Dr Viljoen’s evidence does not cast doubt on this conclusion. Dr Viljoen, who was Dr Chan’s head of department, met with Dr Chan and Dr Stewart on March 5, 2015. Dr Stewart was the chief of staff of the hospital. With his memory refreshed by Dr Stewart’s memorandum of the meeting Dr Viljoen testified that Dr Chan was planning to transition to minor surgery. Dr Chan was 62 years old and had a few months earlier recovered from a heart attack. According to Dr Chan’s testimony, which I believe, he was told that pending retirement he would not be given significant operating room time in St Catharines. Dr Chan did not like the facilities in the Welland and Niagara Falls hospitals. As a result, he would be operating less. It would therefore be difficult to keep up his skills. They also discussed the plaintiff’s complication, but I am unable to determine what was said about that and by whom.
43The decision to continue did not contribute to the injury. In Dr Vilos’s opinion, the advantages of laparoscopic surgery are minimal invasion, faster recovery time, the ability to magnify the image and the lower incidence of complications. The disadvantage of laparoscopy is the cost. Given his more extensive surgical experience, I accept his opinion that an open surgery would not have given Dr Chan a better chance to avoid complications.
44In Dr Vilos’s opinion, the time to convert to open surgery is when problems arise that need a speedy resolution, such as uncontrolled bleeding or a defect in the bowel. I accept that. Bleeding was never uncontrolled, and the defect in the colon was not obvious.
Conduct of the operation
45After hearing from the pathologist, Dr Chan thought that he might have incised the colon during the hysterectomy.
46Dr Chan spoke to the plaintiff when she returned to the hospital. According to the plaintiff and Mr Young, he said something to the effect that he could not see. According to Dr Chan’s notes, he said:
Met patient + family members x 2 (brothers)
Addressed complication
Explained through diagram +
How anatomical structures were misinterpreted.
47Whatever he said to the plaintiff, Dr Chan does not now think that the bowel injury occurred during the separation of the uterus from the colon because the scissor strokes he took were too small and the adhesion was too small. He does not know how the injury occurred, but he thinks that it may have been sealed by the heat of the ligature instrument, and that it may be for that reason that he did not see the injury during the operation.
48Bowel injury is a known, but infrequent risk of hysterectomy. Dr Vilos estimates the rate at .07% for laparoscopic hysterectomy and .15% for abdominal hysterectomy.
49Dr Vilos testified that complications in surgery have three possible causes:
a. inappropriate surgical technique,
b. improper utilization of technology and/or instruments, and
c. abnormal or distorted patient anatomy.
50There was evidence of abnormal anatomy in the form of an enlarged uterus, severe endometriosis and several adhesions. In addition, the Sigmoid colon (the part of the colon that was damaged) was “redundant”: it had additional folds that Dr Azabi discovered when he did the repair.
51According to Dr Vilos, a fold of the colon was likely included over the rear cup of the colpotomizer and was cut when the cervix was separated from the vagina. It would not have been visible to the surgeon. This fold was probably fused, although not well, by the heat of the instruments. For that reason, Dr Chan could not see it even after it was cut.
52Dr Vilos came to this conclusion because of the plaintiff’s post-operative presentation. When discharged from the hospital, she was able to pass gas, indicating that the seal had not entirely failed. During the repair surgery, Dr Azari did not find stool in the pelvis. The defect would have come unstuck when Dr Azari retracted the folds of bowel. At that point it became obvious.
53I find Dr Vilos’s conclusion credible. It is supported by plausible reasoning and is consistent with the objective evidence and the evidence of Dr Chan, who I found to be an honest witness. I accept Dr Vilos’s opinion on the preponderance of the evidence.
54I do not accept that Dr Chan was negligent in the conduct of the operation.
Conclusion
55Having rejected all four alleged heads of negligence, I give judgment for the defendant.
56If necessary, the parties may make brief written submissions to costs to which a bill of costs and any offer to settle may be appended, the defendant within 7 days and the plaintiff within 7 further days.
J.A. Ramsay J.
Date: October 25, 2021