COURT FILE NO.: CV-15-530372
DATE: 20220810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NISSIM LEVY, ALIZA LEVY, MERAV COHEN and ADI KORDOVI
Plaintiffs
– and –
DR. JOEL RUBENSTEIN, DR. ANNA ZAVODNI and SUNNYBROOK HEALTH SCIENCES CENTRE
Defendants
Kenneth J. Morris and Kelly Hayden, for the Plaintiffs
Stuart Zacharias and Stephen Ronan, for the Defendants Dr. Joel Rubenstein and Dr. Anna Zavodni
HEARD (By Videoconference): February 22, 23, 24, 25 and 28, 2022 and March 1, 2, 3, 4, 10, 15 and 18, 2022
REASONS FOR JUDGMENT
A.A. SANFILIPPO J.
Overview
[1] Nissim Levy was sixty-three-years old when he was diagnosed in 2009 with kidney cancer. On June 15, 2009, he underwent successful surgery to remove a left-sided renal mass. Mr. Levy was then monitored by his urologist for recurrence and possible development of other cancers in the years that followed, including the ordering of chest x-rays.
[2] Mr. Levy underwent chest x-rays with frontal and lateral views on December 14, 2010; October 11, 2011; April 17, 2012; October 29, 2012; and June 25, 2013. None of the radiologists who studied these x-rays reported any abnormality. In September 2013, Mr. Levy began to cough up blood. A CT scan of Mr. Levy’s chest conducted on October 8, 2013 revealed the presence of a 4.5 cm lung mass predominantly in the superior aspect of the left lower lobe. Mr. Levy’s cancer had spread to his left lung and its presence and growth had, until October 2013, gone undetected notwithstanding regular monitoring. Mr. Levy’s tumour was surgically removed in November 2013, but his lung cancer recurred three years later. He has incurable lung cancer.
[3] Mr. Levy, together with his family members brought this action in medical malpractice against the radiologists who interpreted and reported on the three sets of chest x-rays immediately preceding the October 2013 discovery of Mr. Levy’s lung cancer: specifically, Dr. Joel Rubenstein, in relation to the April 17, 2012 and June 25, 2013, chest x-rays, and Dr. Anna Zavodni, in relation to the October 29, 2012 chest x-ray.
[4] Prior to trial, the parties agreed to the dismissal of this action against the defendant, Sunnybrook Health Sciences Centre, and the parties settled the quantification of the damage claim advanced by the Plaintiffs. This trial proceeded to determine whether Dr. Rubenstein and/ or Dr. Zavodni breached the standard of care owed to Mr. Levy and, if so, whether any such breach of standard of care caused or contributed to Mr. Levy’s outcome.
[5] All the expert radiologists who testified on behalf of the parties agreed that Mr. Levy’s tumour was present and visible on the x-ray images at the time of Dr. Rubenstein’s review in April 2012 and June 2013, and at the time of Dr. Zavodni’s review in October 2012. However, to determine whether there was a breach of standard of care, the question is not limited to whether the defendant radiologists failed to detect the presence of the tumour on Mr. Levy’s chest x-rays, but whether they acted as would a reasonably prudent and diligent fellow professional in the same circumstances, at the same time. I have found that Dr. Rubenstein and Dr. Zavodni breached the standard of care applicable to their review and reporting on Mr. Levy’s chest x-rays in 2012-2013.
[6] Where a breach of standard of care is established, the Plaintiffs must then prove, on a balance of probabilities, that “but for” the Defendants’ breach of standard of care, Mr. Levy’s injury would not have occurred. I have determined that the Plaintiffs established, on a “but for” analysis, that Dr. Rubenstein’s breach of standard of care was a cause of Mr. Levy’s injuries. I have also determined that the Plaintiffs failed to establish that Dr. Zavodni’s breach of standard of care was a cause of Mr. Levy’s injuries.
[7] On the basis of the reasons that follow, I find that Dr. Rubenstein is liable to the Plaintiffs, in the amount of the agreed upon damages, based on breach of standard of care resulting in Mr. Levy requiring adjuvant chemotherapy, recurrence of his lung cancer, and psychological harm associated with the disease progression and required treatment. This action is dismissed as against Dr. Zavodni.
I. FACTUAL BACKGROUND
A. The Parties
[8] Nissim Levy is seventy-six-years old, retired, and had been a smoker for about 20-25 years until he quit smoking approximately 35 years ago. Mr. Levy and his wife, Aliza Levy, have two adult children, Merav Cohen and Adi Kordovi.
[9] The Defendants, Dr. Joel Rubenstein and Dr. Anna Zavodni, are radiologists who at all material times held privileges at Sunnybrook Health Sciences Centre (“Sunnybrook”). This action was dismissed, on consent, against Sunnybrook by Order issued September 1, 2020. Considering the dismissal of this action against Sunnybrook, all references in these Reasons to the “Defendants” are intended to refer to Dr. Rubenstein and Dr. Zavodni, only.
B. The Chest Radiographs
[10] After Mr. Levy’s 2009 diagnosis of kidney cancer, and surgery conducted to remove a left-sided renal mass, Mr. Levy was monitored by his urologist, Dr. Lawrence Klotz. This monitoring included regular chest x-rays (referred to interchangeably as “radiographs”).
[11] On December 14, 2010, Mr. Levy underwent a chest x-ray with frontal and lateral views at Sunnybrook, ordered by Dr. Klotz. The staff radiologist at Sunnybrook, Dr. Harry Shulman, reported: “Unremarkable chest. No evidence of failure, pneumonia or other active disease” (the “December 2010 x-ray”).
[12] On October 11, 2011, Mr. Levy underwent a chest x-ray with frontal and lateral views at Sunnybrook, ordered by Dr. Klotz, who provided the following clinical information: “History of kidney cancer”. The staff radiologist at Sunnybrook, Dr. Felipe Torres, did not identify any abnormality, reporting as follows (the “October 2011 x-ray”):
The cardiopericardial silhouette is within normal limits.
Mediastinum is unremarkable. Lungs are clear.
No pleural effusion is seen. No worrisome bony lesion is noted.
[13] On April 17, 2012, Mr. Levy underwent a chest x-ray with frontal and lateral views at Sunnybrook, ordered by Dr. Klotz, who conveyed the clinical history of “kidney cancer” (the “April 2012 x-ray”). Dr. Rubenstein reviewed the April 2012 x-ray and reported:
CHEST
No significant abnormality is identified.
No significant change compared to the previous study from October, 2011.
[14] On October 29, 2012, Mr. Levy underwent a chest x-ray with frontal and lateral views at Sunnybrook, ordered by Dr. Leslie Nickell, following a positive Mantoux test (for exposure to tuberculosis germs) (the “October 2012 x-ray”). The clinical history provided on the electronic request form was “+ tb test”. Dr. Zavodni reported:
Comparison: April 17, 2012
The cardiac and mediastinal contours remain within normal limits.
Two or three small (<5 mm) rounded opacities projected with both peri-hilar regions, likely end-on vessels rather than calcified granulomata. No definite evidence of prior granulomatous disease is seen, although, most episodes heal without radiographic sequela.
No osseous and amount is seen.
Impression: No radiographic evidence of prior granulomatous infection.
[15] On June 25, 2013, Mr. Levy underwent a chest x-ray with frontal and lateral views at Sunnybrook, ordered by Dr. Klotz (the “June 2013 x-ray”). The clinical history provided was “hx. partial left nephrectomy”. Dr. Rubenstein reported:
CHEST
The heart size is within normal limits and no active pulmonary disease is demonstrated.
No significant change compared to the previous study from October, 2012.
[16] In September 2013, while on a cruise vacation, Mr. Levy coughed up blood. Mr. Levy saw a physician on the cruise ship on October 1, 2013, who performed a portable single-view chest x-ray, prescribed antibiotics, and recommended Mr. Levy see his family doctor for further imaging. Mr. Levy saw a physician on the cruise ship two days later who noted, amongst other things: “Need to exclude mass/metastasis in chest. … Review with family doctor once disembarked, consider CT/MRI chest and echo.”
C. The Discovery and Treatment of the Lung Cancer
[17] On October 8, 2013, in California, Mr. Levy had a Computed Tomography (“CT”) scan of his chest without contrast. The clinical history provided was: “Hemoptysis (coughing up blood). History of renal cancer. Prior history of smoking.” The radiologist who interpreted the CT scan reported a “4.5 cm left lung mass predominantly in the superior aspect of the left lower lobe with apparent involvement of a bronchus supplying this region and with some involvement of the adjacent upper lobe, concerning for malignancy”. Mr. Levy also underwent a physical examination and that physician noted that he did not have palpably enlarged lymph nodes.
[18] Mr. Levy returned to Canada and had the following further investigations:
(a) October 11, 2013: Mr. Levy underwent a CT abdomen and pelvis at Sunnybrook. The staff radiologist, Dr. Caitlin McGregor, noted the clinical history as follows: “Previous partial nephrectomy for papillary renal cell carcinoma June 2009. New lung mass.” Dr. McGregor reported “a 4.3 cm mass in the superior segment of the left lower lobe obstructing the bronchus.” Dr. McGregor recommended that Mr. Levy have a chest CT.
(b) October 16, 2013: Mr. Levy underwent a chest x-ray with frontal and lateral views at Sunnybrook (the “October 2013 x-ray”). Dr. Zavodni reported on the October 2013 x-ray as follows: “As best appreciated on the prior CT examination (the lung bases viewed on the CT abdomen and pelvis study of October 11, 2013), a left retrohilar [posterior to the hilum] mass is identified. No other lung abnormality is noted.”
(c) October 24, 2013: Mr. Levy underwent a bronchoscopy at Sunnybrook, conducted by Dr. Anu Tandon, which confirmed the diagnosis of an adenocarcinoma (a type of cancer that starts in the glands lining the inside of an organ) consistent with primary lung cancer.
(d) October 30, 2013: Mr. Levy underwent a PET/CT scan at Sunnybrook. The staff radiologist reported “an intensely FDG-avid 4.4 x 3.1cm (SUVmax 7.7) mass in the superior segment of the left lower lobe abuts the mediastinum, the pleura of the left posterior hemithorax and is intimately associated with the left major fissure. The mass appears to extend into the left upper lobe.” The radiologist reported: “An intensely FDG-avid left lower lobe mass is highly suspicious for primary lung cancer. The mass abuts the mediastinum, the pleura of the left posterior hemithorax and is favored to extend across the left major fissure into the left upper lobe.”
(e) November 1, 2013: Mr. Levy underwent a CT chest with contrast at Sunnybrook. The staff radiologist, Dr. Jane Wall, reported a 3.7 x 4.8 cm mass in the superior segment of the left lower lobe.
(f) November 5, 2013: Mr. Levy attended Toronto East General Hospital for a pre-operative assessment in preparation for a bronchoscopy and mediastinoscopy to stage his left lower lung adenocarcinoma.
(g) November 5, 2013: At Toronto East General Hospital, Mr. Levy underwent a chest x-ray with frontal and lateral views, conducted by staff radiologist, Dr. Angela Luong (the “November 5, 2013 x-ray”). The June 2013 x-rays were noted for comparison. The radiologist, Dr. Luong, reported: “No significant interval change. Again the lungs and pleura remain clear. No acute disease”.
(h) November 8, 2013: Mr. Levy underwent a bronchoscopy at Toronto East General Hospital with Dr. Zeldin. Dr. Zeldin observed “an obstructing tumour lodged in the superior segment of the left lower lobe”. Dr. Zeldin also conducted a cervical mediastinoscopy to examine the area between the lungs and nearby lymph nodes. Dr. Zeldin confirmed the diagnosis of adenocarcinoma of the left lower lobe. All the mediastinal nodes were negative so there was no sign of metastatic disease.
(i) November 20, 2013: Mr. Levy underwent a chest x-ray with frontal and lateral views at Toronto East General Hospital (the “November 20, 2013 x-ray”). The November 5, 2013 x-ray and November 1, 2013 CT were noted for comparison. The radiologist reported: “The mass in the superior segment of the left lower lobe is again visualized. It has, overall, shown no significant interval change. The right lung is clear.”
[19] Staging investigations did not show evidence of metastatic disease. On November 22, 2013, Mr. Levy underwent a left thoracotomy and left lower lobectomy at Toronto East General Hospital, conducted by Dr. Robert Zeldin, who found the tumour “to be confined to the left lower lobe extending right to the fissure near the most posterior part where the superior segment met the upper lobe.” Dr. Zeldin reported that “the tumor[^1] was completely removed”. Dr. Zeldin The removed mass was described by the pathologist as a poorly differentiated adenocarcinoma measuring 5.0 x 3.7 x. 3.0 cm. Three out of thirteen lymph nodes examined were positive.
[20] Mr. Levy was diagnosed with primary T2a, N1, M0 (stage 2A) non-small cell lung adenocarcinoma (cancer). I will later explain the meaning of these classifications.
D. Post-Operative History
[21] Mr. Levy underwent four cycles of adjuvant chemotherapy treatment for his lung cancer. The parties defined adjuvant chemotherapy as “chemotherapy treatment given in addition to primary treatment, such as surgery or radiation.” Investigations carried out in June and November 2014 revealed no evidence of recurrence. Mr. Levy was followed with imaging approximately every six months for surveillance.
[22] In 2016, Mr. Levy developed a non-productive cough. On July 11, 2016, Mr. Levy underwent a CT chest that showed no evidence of local recurrence and mild increase in size of some of the previously seen lymph nodes. The radiologist recommended ongoing follow up. On November 21, 2016, a CT chest showed new nodular thickening and increase in the size of several lymph nodal areas concerning for metastatic disease. On December 6, 2016, a biopsy of the cervical lymph node was performed, which showed spread to that node. A PET scan performed on December 19, 2016, showed extensive nodal metastatic spread of malignancy and a new pulmonary nodule in the right upper lobe. Put simply in non-medical terms, Mr. Levy’s lung cancer recurred in November - December 2016.
[23] In January 2017, Mr. Levy was enrolled in a study at Sunnybrook, the KEYNOTE-189 clinical trial, adding immunotherapy Pembrolizumab (or placebo) to his chemotherapy regimen. Repeat staging in February 2017 demonstrated tumour shrinkage. In March 2017, Mr. Levy completed his first four rounds of combination chemotherapy and was started on Pemetrexed plus or minus Pembrolizumab. In January 2019, Mr. Levy began the maintenance phase of the KEYNOTE-189 clinical trial with Pemetrexed alone. He continues to receive only Pemetrexed.
[24] Mr. Levy has been told that immunotherapy will likely be available to him in the future if required. He generally undergoes treatment every three weeks.
E. Nissim Levy’s Evidence
[25] Mr. Levy was the only fact witness called by the Plaintiffs. Apart from testifying to his medical history and background, as already summarized, Mr. Levy spoke of the psychological and emotional impact of his lung cancer.
[26] Mr. Levy stated that when he coughed up blood while on a cruise ship in September 2013, he was confused because he had a chest x-ray about two months earlier, on June 25, 2013, that he understood was normal, and because he felt that he had been routinely monitored for any spread of his kidney cancer. After the cruise ship docked in California, and after he urgently underwent the CT scan of October 8, 2013, which revealed a 4.5 cm mass in his left lower lobe, he immediately returned to Canada. He continuously questioned how the lung cancer could have developed undetected when he had been monitored regularly.
[27] Mr. Levy testified that his lung cancer surgery on November 22, 2013 resulted in 15 days in hospital, and stated that he has since undergone over 150 sessions of chemotherapy and over 50 sessions of radiation therapy. He stated that his life involves going from home to hospital, with harm to his physical and emotional well-being, including sleep disruption; fluid retention and weight gain; gastrointestinal disturbances; and chronic fatigue.
[28] Mr. Levy explained that he is angry (“really very upset”) that his lung cancer was not detected earlier. He said that he has been changed emotionally by the belief that his life will be shorter and will involve coping with his illness. He stated that he is now quick to anger. Mr. Levy feels that he would have had a more manageable time in his retirement and senior years but for the delayed detection of his lung tumour, on his belief that his lung cancer would not have been as severe and could have been managed more easily.
[29] Mr. Levy admitted in cross-examination that he has neither sought nor received any treatment for the psychological impact of his lung cancer. He conceded that if he had been told in April 2012 of the lesion in his left lower lobe, he would have been upset, but emphasized that it “would have been different”, because he would not have been left to ponder about what grief he might have been spared through earlier detection. Mr. Levy stated that he was diagnosed in October 2019 with prostate cancer, for which he began radiation treatment in January 2020, followed by hormonal injection therapy.
II. ISSUES
[30] Mr. Levy claims that Dr. Rubenstein and Dr. Zavodni were negligent in their review and reporting on his chest x-rays and seeks damages on his claim that their medical malpractice caused or contributed to his outcome. Ms. Levy, Merav, and Adi claim damages for their loss of support, care, guidance and companionship resulting from Mr. Levy’s injuries, in accordance with the Family Law Act, R.S.O. 1990, c. F.3, Part V, s. 61.
[31] The parties agreed on the quantification of damages, subject to the determination of the following issues:
Standard of Care
Was it a breach of the standard of care for Dr. Rubenstein not to detect the lesion[^2] on the April 17, 2012 and/or June 25, 2013 chest x-rays?
Was it a breach of the standard of care for Dr. Zavodni not to detect the lesion on the October 29, 2012 chest x-rays?
Causation
- If the answer to question 1 and/or 2 is yes, then, on a “but for” analysis, did the breach(es) of the standard of care cause or contribute to Mr. Levy’s outcome? This includes but is not limited to:
(a) Requiring chemotherapy treatment in addition to primary treatment (such as surgery or radiation), referred to as “adjuvant chemotherapy”;
(b) Having a recurrence of his lung cancer requiring the associated treatment; and/or
(c) Suffering psychological harm due to the delay in diagnosis of his lung cancer (i.e., separate from any psychological or other harm associated with the disease progression and resulting treatment).
[32] I will address these issues in order.
III. STANDARD OF CARE
[33] The Ontario Court of Appeal has instructed that, as a general rule in a medical malpractice case, the trial judge should determine whether the defendant has breached the standard of care before resolving issues of causation: Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, at paras. 60, 138, rev’d but not on this point, 2021 SCC 1, citing Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311; St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491; Bafaro v. Dowd, 2010 ONCA 188, 260 O.A.C. 70, at para. 35. The Court of Appeal explained that this practice is functional, because the “causation issue is moot if there has been no breach of the standard of care, and the causation issue depends upon identifying the breach, since the material question is whether ‘the defendant’s particular substandard act or omission … caused the harm’”: Armstrong, at para. 61, citing Chasczewski Estate v. 528089 Ontario Inc. (Whitby Ambulance Service), 2012 ONCA 97, 287 O.A.C. 266, at para. 15; McArdle Estate v. Cox, 2003 ABCA 106, 327 A.R. 129, at para. 25.
[34] I will now determine whether Dr. Rubenstein or Dr. Zavodni breached the standard of care owed to Mr. Levy.
A. Applicable Principles
[35] There was no dispute between the parties regarding the well-established legal principles defining the standard of care of a physician. A physician must be held to the standard of a reasonable, similarly situated physician, as explained in Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132 (C.A.), at pp. 143-44, aff’d 1956 CanLII 29 (SCC), [1956] S.C.R. 991:
Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, 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.
[36] These principles were explained by the Supreme Court in ter Neuzen v. Korn, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674, at para. 33:
It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist … 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. [Citations omitted.]
[37] In St-Jean, at para. 53, the Supreme Court affirmed this principle as follows: “What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances.” The Ontario Court of Appeal recently referred to this principle in Armstrong, at para. 44, stating: “Negligence standards of care are to be measured by the behaviour that a relevant prudent person would undertake, rather than the results that prudent person would seek to attain or avoid.”
[38] The standard of reasonableness is not a standard of excellence that amounts to perfection: Armstrong, at paras. 86, 150. Physicians are not held as insurers or guarantors against all bad outcomes: Armstrong, at para. 86, applying Carlsen v. Southerland, 2006 BCCA 214, 53 B.C.L.R. (4th) 35, at paras. 13 and 15; St-Jean, at para. 53: “Professionals have an obligation of means, not an obligation of result.” Also, Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (H.C.), at p. 683, aff’d (1983), 1983 CanLII 1687 (ON CA), 44 O.R. (2d) 264 (C.A.): “Specialists, of course, must be expected to perform at a higher level than general practitioners … But even specialists do not have to achieve perfection.”
[39] The Plaintiff has the burden of proving, on a balance of probabilities (more likely than not), a breach of the standard of care as well as all elements of negligence: Kennedy v. Jackiewicz, 2004 CanLII 43635 (Ont. C.A.), at para. 20, leave to appeal refused, [2005] S.C.C.A. No. 27; Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.) (“Bafaro (ONSC)”), at para. 22, aff’d 2010 ONCA 188; Dickie v. Minett, 2012 ONSC 4474, at para. 295.
[40] The Defendants relied heavily on two decisions that they submitted illustrated the application of these principles to a medical malpractice action involving a radiologist: Geddes v. Bloom, 2008 CanLII 44737 (Ont. S.C.); and Frank v. Bolton Medical Imaging Centres, 2017 ONSC 6934.
[41] In Geddes, the defendant radiologist did not detect a fracture of the patient’s mandibular condyle and reported that there was “no significant bone or joint abnormality”. At trial, both witnesses qualified as expert radiologists gave expert opinion evidence that there was a fracture visible by x-ray at the relevant time. The Court held that the defendant radiologist’s failure to detect and report on the fracture was not determinative of breach of standard of care. Rather, as the Court instructed at para. 21, the question was “whether there is an explanation as to why or how a fracture of the mandibular condyle was missed and whether [the defendant radiologist’s] interpretation of the plaintiff’s x-ray films was reasonable.”
[42] In analysis of whether the radiologist’s conduct met reasonable standards, the Court rejected two explanations provided by the defendant radiologist for missing the fracture. The Court did not accept that the defendant was provided with insufficient information on the requisition to perform the services required of him, and the Court did not accept that radiologists interpreting a large volume of images daily (60-100) can be excused from the obligation to take reasonable care. However, the Court accepted, at para. 30 of Geddes, “that the failure to observe the line on the x-ray under review and diagnose it as a fracture was an error in judgment which may have occurred because of the difficulty in diagnosis in the specific area and may be confused with gas.” The Court concluded that although the defendant’s clinical judgment was wrong in failing to diagnose a fracture, the standard of care is not perfection and the radiologist’s conduct was not proven to have breached the standard of care required of a prudent and diligent doctor in the same circumstances.
[43] In Frank, the defendant radiologist reported on August 25, 2008 and July 19, 2009 that the results of the patient’s ultrasound and mammogram were negative. The plaintiff’s treating physician requisitioned a further ultrasound less than a month later, on August 14, 2009, which disclosed a lesion in the patient’s breast along with abnormal lymphadenopathy in the right axilla that was reported as highly suspicious for primary carcinoma. The Court rejected, as contrary to law, the plaintiff’s submission that since the breast cancer was diagnosed in August 2009, and since no abnormalities were detected on the defendant radiologist’s review of the mammogram and ultrasound one month earlier (and one year earlier), the defendant radiologist must have been negligent. Justice D.A. Wilson held, at para. 84, that the proper legal test was whether the defendant radiologist undertook a reasonable and appropriate exercise of clinical judgment:
It is not necessary for [the defendant radiologist’s] conclusions to be correct, that is not the standard of care. What is necessary is that he undertook a reasonable and appropriate exercise of clinical judgment while reviewing the mammograms and other imaging and there is no doubt on the evidence that he did so.
[44] The Court accepted the expert opinion evidence tendered by the defendant radiologist that: (i) because the plaintiff had grade 3 parenchyma (dense breast tissue), the mammograms were difficult to read; (ii) the images were correctly positioned; (iii) 4 views were appropriately completed; and (iv) the technical factors necessary for the review were fulfilled. The Court held, at para. 94 of Frank, that the job of a radiologist involves the exercise of judgment, and that the defendant radiologist met the standard of care because he was shown to have conducted a “reasonable and appropriate analysis of the imaging and arrived at conclusions that were reasonable in the circumstances.”
[45] These cases are, in my view, illustrative of the application of the standard of care test set out by the Supreme Court in St-Jean. There, the Supreme Court upheld the Quebec Court of Appeal’s finding that the trial judge had asked the wrong question by examining whether the defendant physician was negligent by failing to diagnose the patient’s neurological deficit and unstable vertebrae fracture. The Quebec Court of Appeal stated that this was the incorrect inquiry on a standard of care analysis, and that the trial judge ought to have determined whether the surgeon’s act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The Supreme Court, at para. 53, affirmed this statement of the standard of care test as follows:
The correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances. To ask, as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focussing on the result rather than the means. Professionals have an obligation of means, not an obligation of result. [Emphasis in original; citation omitted.]
[46] Like Frank and Geddes, here the defendant radiologists did not detect an abnormality on Mr. Levy’s x-ray that has been shown to have been present at the time of their review. Indeed, as I will explain, all the expert radiologists who testified on behalf of all parties agreed that the lesion was present and visible on the x-ray images at the time of Dr. Rubenstein’s review in April 2012 and June 2013, and at the time of Dr. Zavodni’s review in October 2012. The Plaintiffs showed that Dr. Rubenstein and Dr. Zavodni reported that Mr. Levy’s chest x-rays were clear and exhibited no abnormalities when he had a tumour in his left lung
[47] However, this does not end the standard of care analysis. An outcome-based analysis, whereby negligence results automatically from failure to detect or diagnose, is not the law: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, at p. 362; Frank, at para. 90; Bafaro (ONSC), at para. 26: “A plaintiff’s case which applies an outcome-based retrospective approach and attempts to work backwards from the result of surgery in order to prove negligence is fundamentally flawed in law and contrary to admonitions in the case law.”
[48] The question that must be asked in determining whether there has been a breach of the standard of care is not simply whether Dr. Rubenstein and Dr. Zavodni committed a fault by not detecting the presence of the tumour on Mr. Levy’s chest x-rays. Rather, as the Supreme Court stated in St-Jean, at para. 53, “the correct inquiry to be made in assessing whether a professional committed a fault is indeed to ask whether the defendant behaved as would a reasonably prudent and diligent fellow professional in the same circumstances.”
[49] To determine whether Dr. Rubenstein and Dr. Zavodni acted as would a reasonably prudent and diligent diagnostic radiologist in 2012-2013, I will review their evidence and then the evidence of the medical experts tendered to testify on the standard of care issue. Like in St. Jean, Frank and Geddes, I will assess whether there is an explanation for why a reasonable diagnostic radiologist could have missed Mr. Levy’s lesion, and whether the interpretation of the x-rays by the Defendants was reasonable.
B. The Evidence – Standard of Care
[50] As the Ontario Court of Appeal stated in Gent v. Wilson, 1956 CanLII 128 (ON CA), [1956] O.R. 257 (C.A.), at p. 265: “The legal principles bearing upon the degree of care and skill which may be expected of physicians and surgeons are well settled but the difficulty arises in applying them to particular circumstances. … Each case must, of course, depend upon its own particular facts.”
[51] Dr. Rubenstein’s and Dr. Zavodni’s conduct must not be judged with the benefit of hindsight. In ter Neuzen, at para. 34, Justice Sopinka stated that the conduct of the physician “must be judged in the light of the knowledge that ought to have been reasonably possessed at the time of the alleged act of negligence”, quoting from Denning L.J. in Roe v. Ministry of Health, [1954] 2 All E.R. 131 (C.A.), at p. 137, “[w]e must not look at the 1947 accident with 1954 spectacles”. Also, Armstrong, at para. 44; Lapointe, at pp. 362-63: “[C]ourts should be careful not to rely upon the perfect vision afforded by hindsight. … Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.”
[52] The task, then, is to determine what happened in 2012-2013 at the time of the radiographic review conducted by Dr. Rubenstein and Dr. Zavodni, based on what they did or believe that they would have routinely or invariably done, and then assess, with expert opinion evidence, whether they met the standard of care required of a reasonable diagnostic radiologist at the times that the images were reviewed and reported.
C. The Defendants’ Evidence
[53] Neither Dr. Rubenstein nor Dr. Zavodni had any memory of reviewing or reporting on Mr. Levy’s chest x-rays. In the absence of any specific recollection, their testimony was based on their standard or invariable practice in reviewing and reporting on x-ray images in 2012-2013.
[54] It is well-established that the standard, routine, or invariable practice of a physician can be admitted and given weight by the Court as to what the physician routinely did and would likely have done in the patient care under assessment: Conn v. Darcel, 2013 ONSC 5080, at para. 13; Turkington v. Lai (2007), 2007 CanLII 48993 (ON SC), 52 C.C.L.T. (3d) 254 (Ont. S.C.), at para. 93; Mirembe v. Tarshis (2003), 2003 CanLII 22082 (ON CA), 179 O.A.C. 260 (C.A.), at para. 1; Bafaro (ONSC), at para. 29; Medical Arts Ltd. v. Minister of Municipal Affairs (1977), 1977 CanLII 2293 (NB CA), 17 N.B.R. (2d) 147 (C.A.), at p. 152. The British Columbia Court of Appeal explained, in Belknap v. Meakes (1989), 1989 CanLII 5268 (BC CA), 64 D.L.R. (4th) 452 (B.C.C.A.), at pp. 465-66, as follows: “If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it in that way on the day in question.”
(a) Dr. Joel Rubenstein
[55] Dr. Rubenstein had some 33 years of experience as a general radiologist at Sunnybrook at the time that he reviewed Mr. Levy’s April 2012 x-ray and his June 2013 x-ray. Dr. Rubenstein graduated from medical school in 1971 and completing a fellowship in radiology in 1978.
[56] Dr. Rubenstein testified that he would routinely read the electronic requisition form issued by the referring doctor, and in this case the requisition identified Mr. Levy’s history of kidney cancer. He knew at the time that kidney cancer could metastasize to virtually any part of the body, including the lungs, the bones, mediastinum (the area in the chest between the lungs, containing all tissues and organs of the chest except the lungs), and lymph nodes. Dr. Rubenstein stated that he knew that the purpose of the imaging study was to look for metastatic disease.
[57] Dr. Rubenstein stated that his practice in 2012-2013 would be to review the imaging on two high-resolution screens and that he had a third screen for clinical information. Dr. Rubenstein did not recall any issue with the quality of the images, and stated that if there had been, he would have taken steps to obtain new images. Dr. Rubenstein confirmed that it was routine practice in the Sunnybrook radiology department in 2012-2013 to have both frontal and lateral views of chest x-rays, and that it was his routine practice to compare the current image with the most recent prior study. In the case of the April 2012 x-ray, this was the October 2011 x-ray. In the case of the June 2013 x-ray, this was the October 2012 x-ray. He stated that the purpose of comparing the images is to look for changes.
[58] Dr. Rubenstein agreed that a suspicious finding may include an unexplained opacity (in radiology, a term used to describe an area of increased density, which appears as whiter than the surrounding region). Dr. Rubenstein agreed that a normal lateral chest film would, generally, show an increasing overall darkening from the neck to the diaphragm. He stated that an edge of soft tissue that interrupts the gradual darkening could be a possible abnormality. Dr. Rubenstein testified that he did not observe any opacity on the image, or any abnormality on the hilum (the site of the medial aspect of the lungs, where the vessels and bronchi enter and leave the lung), mediastinum or lungs.
[59] Dr. Rubenstein agreed that if he had any doubt as to whether there was an abnormality, he had an obligation to report it. He testified that if he had seen an abnormal lesion on the x-rays, he would have reported it and would have recommended a CT scan. Dr. Rubenstein stated that he reported “no significant abnormalities” on the April 2012 x-ray because he did not see any sign or condition of metastatic disease. He did not see a nodule in the left lower lobe.
[60] Regarding the study of June 2013, Dr. Rubenstein stated that he would have followed the same routine. He would have compared the June 2013 x-ray to the immediately prior study of October 2012. He would have noted that the clinical history documented that Mr. Levy had undergone a partial left nephrectomy. Dr. Rubenstein testified that he reported “no significant change compared to the previous study” because he did not detect any evidence of metastatic disease. He did not see a nodule in the lower left lobe.
[61] Dr. Rubenstein was cross-examined on what he did not specifically refer to in his reports, such as the pericardial silhouette, mediastinum, and the lungs. Dr. Rubenstein stated that his practice was to look for “positive findings or relevant negatives” and if he did not see any in his review of the images, to report that there was “no significant abnormality”, without setting out an inventory of what he had assessed.
(b) Dr. Anna Zavodni
[62] Dr. Zavodni had been practicing as a diagnostic radiologist for about ten months when she reviewed Mr. Levy’s chest x-ray on October 30, 2012. Dr. Zavodi had graduated from medical school in 2005 and, after a residency in diagnostic radiology, completed her fellowship and obtained her specialist certification in radiology in December 2011. She began practice as a diagnostic radiologist at Sunnybrook on January 1, 2012, primarily as a cardiac imager and cardiothoracic radiologist.
[63] Dr. Zavodni testified that her routine practice would have been to view the radiograph with two side-by-side monitors for imaging and a third monitor for clinical information. The third screen would have contained the patient’s information, in this case, that Mr. Levy had kidney cancer. Dr. Zavodni stated that she would have reviewed both the frontal and lateral images of October 2012 and would have compared them with the immediately prior study of April 2012. Dr. Zavodni stated that there were no issues with the quality of the imaging. Dr. Zavodni stated that she would have reviewed the most recent prior images “blind” (that is, without reading the prior report), and then would review the earlier radiologist’s report.
[64] Dr. Zavodni agreed that it was her obligation to review both the frontal and the lateral views; to look at all the structures; to assess for any unexplained abnormalities; and to report on any abnormalities. Dr. Zavodni stated that it was her duty to compare the October 2012 x-ray with the immediately prior study, to analyse for any changes or anything wrong or discrepant, and to report on any such findings.
[65] Dr. Zavodni testified that she did not see any abnormalities. Specifically, Dr. Zavodni did not see a nodule in the superior segment of Mr. Levy’s left lower lobe. Dr. Zavodni stated that if she had seen such a nodule, she would have included that finding in her report.
D. Expert Opinion Evidence – Standard of Care
[66] The determination of the standard of care of a reasonably prudent and diligent diagnostic radiologist in 2012-2013 must be based on expert opinion evidence. In ter Neuzen, at para. 44, citing Lapointe, the Supreme Court cautioned that “courts should not involve themselves in resolving scientific disputes which require the expertise of the profession”. In Hajgato, at p. 683, as applied in Smith v. Kane, 2021 ONCA 634, at para. 95, the Court emphasized that “courts must be cautious to base their conclusions upon the expert evidence before them, and not to speculate as to the adequacy of professional standards in the absence of expert evidence attacking those standards”. Also, McLean v. Weir, 1977 CanLII 2239 (BC SC), [1977] 5 W.W.R. 609 (B.C.S.C.), at p. 620, aff’d (1980), 1980 CanLII 391 (BC CA), 18 B.C.L.R. 325 (C.A.): “[I]n technical terms, unlike in lay matters within the traditional intellectual competence of the court, it cannot substitute its own medical opinion for that of qualified experts.”
[67] Ontario Courts have routinely applied the principle that expert evidence on the issue of breach of the standard of care is essential in medical malpractice cases: Skead v. Chin, 2020 ONSC 1283, at para. 390; Tahir v. Mitoff, 2019 ONSC 7298, at para. 88; Campbell v. Roberts, 2014 ONSC 5922, at para. 103: “The court must be careful not to make a conclusion about a breach of the standard of care without specific expert evidence which supports that conclusion. Further, the expert’s opinion on standard of care must not be based on what that expert may have done in that set of circumstances, rather the opinion regarding the standard of care must relate to the standard of care required of the defendant(s) in particular circumstances.”
[68] Diagnostic radiology is a specialty certification in medicine conferred by the Royal College of Physicians and Surgeons of Canada (the “Royal College”). The Defendants submitted that the Court cannot interpret diagnostic imaging, relying on Deboer v. Dr. D. M. Kolyn, 2016 ONSC 7108, at para. 39. In that case, Justice Morissette rejected the defendant’s submission that the Court should undertake an interpretation of a mammogram in the absence of any expert evidence. Here, however, there was expert radiological opinion evidence tendered by both sides, requiring that the Court assess, weigh, and accept or reject the expert opinion evidence. There was no suggestion here that the Court should disregard the expert opinion evidence and embark on its own interpretation of the x-ray images.
[69] The Plaintiffs submitted, without citing any legal authority, that the role of a trial judge in a medical malpractice case against a radiologist is to review the imaging with the assistance of expert testimony to determine whether the abnormality should have been detected. However, the test is not whether the plaintiff can visually illustrate to the trial judge, with the guidance of an expert, that the images showed an abnormality. This strays and distracts from the correct inquiry, which is whether the defendant radiologist acted as would a reasonably prudent and diligent fellow professional in the same circumstances.
[70] The parties each tendered an expert to provide opinion evidence on the issue of the standard of care of a reasonably prudent and diligent general radiologist. The Plaintiffs tendered Dr. Heidi Schmidt, and the Defendants tendered Dr. John Robert Mayo.
[71] Although there was no contest of the qualifications of Dr. Schmidt or Dr. Mayo, or the threshold admissibility of their opinion evidence, I assessed the admissibility of opinion evidence by Dr. Schmidt and Dr. Mayo – as I did with all expert witnesses in this trial – in accordance with the two-stage test set out by the Ontario Court of Appeal in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, applied in Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, 143 O.R. (3d) 241, which drew on the test set out by the Supreme Court of Canada in R v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. I was satisfied that Dr. Schmidt’s and Dr. Mayo’s expert opinion evidence satisfied the criteria for threshold admissibility.
[72] Dr. Schmidt stated the opinions that (i) Dr. Rubenstein breached the standard of care applicable to a radiologist in 2012 by failing to detect and report on the lesion on Mr. Levy’s chest x-rays of April 17, 2012; (ii) that Dr. Zavodni breached the same standard of care in failing to detect and report on the lesion on Mr. Levy’s chest x-rays of October 29, 2012; (iii) and that Dr. Rubenstein breached the standard of care applicable to a radiologist in 2013 by failing to detect and report on the lesion on Mr. Levy’s chest x-rays of June 25, 2013. Dr. Mayo testified that, in his opinion, neither Dr. Rubenstein nor Dr. Zavodni breached the standard of care owed to Mr. Levy.
[73] Two highly qualified and highly accomplished experts in the field of diagnostic radiology, Dr. Schmidt and Dr. Mayo, formed diametrically opposite opinions regarding the discharge of the standard of care by Dr. Rubenstein and Dr. Zavodni. Each swore that they reached these opinions independently and without bias, without regard to the party who retained them, and for the sole purpose of assisting the Court in determining the standard of care owed by a diagnostic radiologist in 2012-2013 and whether the defendant radiologists, or either of them, breached the standard of care.
[74] Where there is apparently conflicting medical opinion evidence on the issue of standard of care, the trial judge cannot assess the standard of care on ‘common sense’: Smith, at para. 96, applying Rowlands v. Wright, 2009 ONCA 492, 250 O.A.C. 394, at para. 26. Rather, where competing standards are presented, the trial judge must weigh the evidence and determine the applicable standard of care, having regard to all the expert testimony: Hacopian-Armen v. Mahmoud, 2020 ONSC 4946, at para. 102, citing Crawford (Litigation Guardian of) v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), at para. 248, aff’d (2004), 2004 CanLII 22314 (ON CA), 26 C.C.L.T. (3d) 246 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 496; Shawinigan v. Naud, 1929 CanLII 88 (SCC), [1929] 4 D.L.R. 57 (S.C.C.), at p. 59. I will now do so.
(a) Dr. Heidi Schmidt
(i) Expert Qualifications
[75] Dr. Schmidt is a diagnostic radiologist of some thirty years’ experience, specializing in cardiothoracic imaging. Dr. Schmidt is the Radiologist in Chief, Department Head of Medical Imaging and Program Medical Director at the Joint Department of Medical Imaging at three Toronto institutions: University Health Network; Sinai Health; and Women’s College Hospital. Dr. Schmidt is also the Chief and Program Director of the Medical Imaging Department at Health Sciences North, Sudbury. Dr. Schmidt is the Radiology Quality Lead for the Ontario Lung Screening Program.
[76] Throughout the period of the x-rays reviewed by Dr. Rubenstein and Dr. Zavodni, 2012-2013, Dr. Schmidt was a leader in the interpretation and reporting of diagnostic imaging. Dr. Schmidt has received several research awards focused on lung cancer screening and detection and has published or contributed to the publication of over 120 articles in her field.
[77] I admitted Dr. Schmidt to testify as an expert in diagnostic radiology, to provide expert opinion evidence on the standard of care expected of the defendant radiologists, including opinions on the imaging and measurements shown on the imaging.
(ii) Dr. Schmidt’s Opinion Evidence on Standard of Care
[78] Dr. Schmidt testified that she was provided with the five chest x-rays of Mr. Levy taken from December 2010 to June 2013, each with a lateral and frontal view. These were the December 2010 x-ray and the October 2011 x-ray in addition to the three x-rays analysed by the defendant radiologists. Dr. Schmidt swore that she examined the x-rays in chronological order, using the same views as would have been available to the defendant radiologists.
[79] Dr. Schmidt testified that she analysed Mr. Levy’s x-rays “blindly”, meaning that she did so without knowledge of the result or the purpose. She did so to simulate, to the extent possible, the circumstances in which Dr. Rubenstein and Dr. Zavodni conducted their reviews.
[80] Dr. Schmidt stated that it was standard practice in 2012-2013 for two images to be taken when performing a chest x-ray: a frontal chest projection, also known as a posteroanterior or “PA” view because the x-ray crosses the patient from posterior (back) to anterior (front); and the lateral view, which examines the patient from the side.
[81] Dr. Schmidt testified that the standard of care in 2012-2013 in Ontario required that the radiologist view all available images, meaning both the frontal and the lateral images as well as the most recent prior imaging study. The purpose for the review of both the frontal and lateral views is that they offer different perspectives of the lungs, thoracic cavity, mediastinum, and blood vessels. The purpose of the analysis of the most recent prior imaging study is to review the patient’s earlier status and compare any changes in the patient’s condition. Dr. Schmidt stated that the standard of care required that the diagnostic radiologist check the anatomy shown by the images and report on any abnormality or suspicion of abnormality.
[82] Dr. Schmidt testified that her review of the frontal and lateral views of the December 2010 x-ray showed no abnormality. She could not compare the December 2010 x-ray with the most recent prior chest x-ray, as none was available.
[83] Dr. Schmidt then analysed both frontal and lateral views of the October 2011 x-ray and compared them with the December 2010 x-ray. She testified that she saw no abnormality on the October 2011 x-ray.
[84] Upon analysis of the April 2012 x-ray, Dr. Schmidt swore that she identified an opacity on the lateral view that was superimposed on the lateral spine. She then searched for the opacity on the frontal view and saw a well-defined structure in the left hilus. Dr. Schmidt testified that to identify the abnormality, she needed to work with both the frontal view and the lateral view of the April 2012 x-ray.
[85] Dr. Schmidt then compared her finding on the April 2012 x-ray with the most recent prior x-ray, being the October 2011 x-ray, and then located the abnormality on the October 2011 x-ray. Dr. Schmidt stated that she was upset that she had missed the lesion in her initial review of the October 2011 x-ray, and stated that, in her opinion, the applicable standard of care did not require that a diagnostic radiologist identify the lesion from the October 2011 x-ray. She explained that the lesion resembled hilar vessels on the frontal view of the October 2011 x-ray, and was superimposed by the thoracic spine on the lateral view, with the result that a diagnostic radiologist exercising reasonable prudence and diligence in 2011 would not be expected to have identified and reported on the lesion from review only of the October 2011 x-ray.
[86] Dr. Schmidt measured the lesion on the April 2012 x-ray, using the available medical imaging technology (the PAC system) and stated that the lesion was 2.5 cm on the “superior inferior diameter” (top to bottom). Using the same measuring technique, Dr. Schmidt found that the lesion was approximately 2.0 cm on October 11, 2011. Dr. Schmidt stated that the lesion was more observable on the April 2012 x-ray than the October 2011 x-ray. For contextual reference, the Defendants’ expert on the issue of causation, Dr. Vincent, testified that in his opinion, Mr. Levy’s lesion was 4.02 cm on the April 2012 x-ray.
[87] Dr. Schmidt testified that, in her opinion, the standard of care of a reasonably prudent and diligent radiologist in 2012 would have been to identify and report on the lesion in Mr. Levy’s left lung, as part of the analysis and interpretation of the April 2012 x-ray.
[88] Dr. Schmidt then analysed the frontal and lateral views on the October 2012 x-rays and stated that she identified the lesion in the left lung on both images. She compared this with the most recent prior x-ray, being the April 2012 study, and found that the lesion was more observable in the October 2012 x-ray than the April 2012 x-ray. Dr. Schmidt measured the size of the lesion on the October 2012 x-ray as 4.0 cm, again measured on the superior inferior diameter.
[89] Dr. Schmidt stated that the standard of care of a diagnostic radiologist in 2012 required that Dr. Zavodni identify the lesion in the left lung from both the lateral and frontal views of the October 2012 x-ray, although she offered that the lesion could, with reasonable prudence and diligence, have been identified from the lateral image, alone. Dr. Schmidt showed that the growth of the tumour could be seen by comparing the October 2012 x-ray to the April 2012 x-ray.
[90] Last, Dr. Schmidt analysed the frontal and lateral views of the June 2013 x-ray, and compared them with the October 2012 x-ray, being the most recent prior x-ray. She testified that the lesion was larger than in the prior study, measured in the superior inferior diameter as 4.5 cm on June 25, 2013. Dr. Schmidt testified that, in her opinion, Dr. Rubenstein “absolutely” breached the standard of care of a reasonably prudent and diligent radiologist in 2013 by not detecting and reporting on the lesion in Mr. Levy’s left lung on the June 2013 x-ray.
(b) Dr. John Mayo
(i) Expert Qualifications
[91] Dr. John Mayo obtained a specialty certification in diagnostic radiology from the Royal College in 1985 and completed a fellowship in cardiac imaging at the University of California in 1989. Since June 1989, Dr. Mayo has been on staff in the Department of Radiology at Vancouver General Hospital, where he was previously the Head of Chest Imaging and then Director of Medical Imaging from 2012 to 2021.
[92] Dr. Mayo described his clinical practice as subspecialty chest cardiac radiologist, with practice experience also as an interventional trauma radiologist. Dr. Mayo testified that he has interpreted and supervised approximately 20,000 chest x-rays, CT scans, and MRI scans each year. Since 2006, Dr. Mayo has been a full professor in the Departments of Radiology and Cardiology at the University of British Columbia medical school and is the co-Director of advanced cardiac imaging at Vancouver Hospital. Dr. Mayo is the imaging lead for the British Columbia Lung Cancer Screening Program.
[93] Like Dr. Schmidt, I admitted Dr. Mayo to testify as an expert in diagnostic radiology, to provide expert opinion evidence on the standard of care applicable to the defendants’ review of the x-rays in issue in this case, and whether that standard of care was breached.
(ii) Dr. Mayo’s Opinion Evidence on Standard of Care
[94] Dr. Mayo agreed with the opinion provided by Dr. Schmidt that the standard of care of a reasonably prudent and diligent diagnostic radiologist in 2012-2013 required that the physician analyse all available images, meaning both the current frontal and lateral views as well as the most recent prior study. Dr. Mayo stated that comparing the current x-ray with the most recent prior study shows any change in the patient condition, including whether any identified abnormality is new or pre-existing. Dr. Mayo also concurred that the standard of care required that the diagnostic radiologist check on the anatomy shown by the images and comment on any abnormality or suspicion of abnormality. Dr. Mayo added that it is prudent practice for a diagnostic radiologist to read and consider any patient history stated in the requisition.
[95] Dr. Mayo agreed that chest x-rays remain one of the most performed examinations in radiology, if not the most common. He agreed, as well, that imaging is pivotal in chest disease diagnosis, and that it is typical – indeed standard – for a patient of Mr. Levy’s age and medical history (kidney cancer) to have both a frontal view and a lateral view.
[96] Dr. Mayo stated that there is a difference in diagnostic yield (information obtained on a radiograph through observation) between a frontal view and a lateral view, resulting from at least two considerations: (i) the frontal view is produced by an x-ray taken from the posterior, where the lungs are separated and appear as two independent structures, unlike a lateral view taken from the patient’s side where the lungs and heart are superimposed; (ii) as the human body is elliptically shaped, a view taken from side to side means that the x-ray courses through a wider area of thick tissue density. Dr. Mayo stated that this gives rise to more scattered radiation or “noise” on the lateral view than on the frontal view which, in his opinion, makes the lateral view more challenging to interpret.
[97] Dr. Mayo testified that, in his experience, the vast majority of chest radiographic studies are based on the frontal radiographic findings. He stated that he knows of many radiographic studies where only the frontal view is obtained, but none where only the lateral view is obtained.
[98] Dr. Mayo referred to a 1974 study entitled “Efficacy of Routine Screening and Lateral Chest Radiographs in a Hospital-Based Population”, published by lead author Stuart S. Sagel (the “Sagel Study”)[^3], wherein the authors analysed 10,597 standard frontal and lateral chest radiographic studies taken between 1973-1974. Dr. Mayo related that the authors found that only 118 of these patients (1.1%) had an abnormality that was seen only on the lateral projection, and only 1,701 of these patients had a finding that was confirmed or clarified by the lateral x-ray.
[99] Dr. Mayo was careful to emphasize that he would never suggest that the lateral chest x-ray should not be or need not be reviewed by a radiologist when it is available. Dr. Mayo was clear that every imaging study that has been obtained needs to be reviewed. Indeed, Dr. Mayo stated that it would be unethical for a diagnostic radiologist to not review an imaging study where the patient has been subjected to radiation to obtain it.
[100] Dr. Mayo examined the frontal and lateral views of the April 2012, October 2012, and June 2013 x-rays, and he also had access to the October 2011 x-ray. He cautioned that as a diagnostic radiologist retained to review the work of others, he approached his review with a higher level of suspicion than would have been present at the time of the initial interpretation by the defendant radiologists.
[101] Dr. Mayo testified that he identified the abnormal density on the lateral radiographs taken in 2012 and 2013, although he stressed that it was challenging to do so. Dr. Mayo illustrated this with reference to the October 2012 lateral x-ray. Dr. Mayo testified that the abnormal soft tissue density that he identified on the lateral radiographs corresponds to the lesion that was later diagnosed in Mr. Levy’s left lung. Dr. Mayo noted that Dr. Rubenstein and Dr. Zavodni failed to recognize the abnormal density on the lateral radiographs.
[102] Dr. Mayo stated that he had difficulty in correlating or confirming the finding on the lateral radiograph with the corresponding frontal radiographs, which Dr. Mayo found were difficult chest x-rays to interpret because of two factors. First, the anatomical position of the abnormality is superimposed over the left hilus, making it difficult to detect. Dr. Mayo illustrated this by use of the frontal view of the October 2012 x-ray, stating that since the abnormality “sits behind the left hilum”, it slightly modifies the density of the left hilum, making it challenging to differentiate the abnormality from other anatomy. Second, Dr. Mayo stated that there is an accessory “air soft tissue interface”, being the interface/ border/ edge between the abnormal mass and the adjacent air-filled lung. Dr. Mayo testified that this interface is close to the normal soft tissue interface between the left lung and the left pulmonary artery, making it, in his opinion, “extremely challenging to see the mass prospectively” on the frontal radiograph.
[103] Dr. Mayo testified that this explains why more than one radiologist missed the lesion in Mr. Levy’s case. He stated that if a diagnostic radiologist conducting a prospective review identified the abnormality on the lateral view, it would be challenging – “not impossible by any means” – to see the abnormality on the frontal view. Dr. Mayo stated that diagnostic radiologists viewing the x-ray images retroactively – knowing or presuming that there is an abnormality – would have an advantage in identifying the lesion with the benefit of hindsight bias, but that a diagnostic radiologist viewing the x-ray images prospectively would be challenged to identify the lesion on the frontal radiograph.
[104] Dr. Mayo expressed the opinion that the frontal view is so challenging to interpret, that this “created a situation where the abnormality on the lateral film was not given as much weight as it should have been and contributed to the failure to detect this lesion.” Dr. Mayo offered, further, that “the failure to adequately weight the lateral film” was based on the finding exemplified by the Sagel Study that the lateral radiograph provides “pivotal information” in only 1% of chest x-ray studies, thereby “providing an environment wherein radiologists do not recognize the importance of a finding on a lateral film.”
[105] Dr. Mayo stated his opinion that Dr. Rubenstein and Dr. Zavodni did not breach the standard of care in not identifying and reporting on the lesion due to the challenging nature of the frontal radiographs. He testified that, in his view, the fact that the abnormal lesion was not identified in the April 2012, October 2012, and June 2013 x-rays lies within the expected standard of care for a diagnostic radiologist in 2012-2013.
E. Analysis – Standard of Care
[106] To determine whether the Plaintiffs have proven that Dr. Rubenstein breached the standard of care in his study of the x-rays on April 17, 2012 and/ or June 25, 2013 and whether Dr. Zavodni breached the standard of care in her review of the October 2012 x-ray, I will first determine what was reasonably required to be done by Dr. Rubenstein in 2012 and 2013 and Dr. Zavodni in 2012 to meet the standard of care that could reasonably be expected of a medical practitioner of their standing at that time: Armstrong, at para. 87, citing Kennedy, at para. 20.
(a) The Process Required for Discharge of the Standard of Care
[107] Dr. Schmidt and Dr. Mayo largely agreed on the steps required to be completed by a reasonably prudent and diligent diagnostic radiologist in 2012-2013 when reviewing and reporting on a chest x-ray.
[108] These experts both testified that the diagnostic radiologist was required to: (i) review and consider any patient history provided by the requisitioning physician; (ii) analyse all available images, meaning both the current frontal and lateral radiographs and the most recent prior radiographic study; (iii) assess the anatomy shown by the images; and (iv) report on any possible abnormality, which includes any suspicious finding. I accept the concurring evidence of Dr. Schmidt and Dr. Mayo that these are the steps required to be completed, with reasonable prudence and diligence, by a diagnostic radiologist in 2012-2013 to satisfy the standard of care.
[109] Dr. Rubenstein and Dr. Zavodni agreed that these steps were all required for a diagnostic radiologist to conduct a review of a radiograph in 2012-2013, and both testified that it was their routine or invariable practice in 2012-2013 to complete all these steps. Although they had no specific recollection of having done so – or how they did so - Dr. Rubenstein and Dr. Zavodni testified that they would have completed these steps in their review of Mr. Levy’s x-rays because that was their routine practice.
(b) The Defendants’ Review of the Radiographs
[110] I found Dr. Rubenstein and Dr. Zavodni to be sincere and credible witnesses. They provided their evidence thoughtfully and genuinely, and their evidence – although limited in scope due to lack of any specific recall – was unaffected by cross-examination or by other witness testimony.
[111] I accept their evidence of their standard or routine practice for processing the x-rays submitted to them for review in 2012-2013, a process that would have been honed and engrained by repetition resulting from the queues of x-rays presented to them for review. Specifically, I am satisfied that each of the defendant radiologists followed, on the days in question, their routine or standard process in that they: (i) read the patient history provided by the requisitioning physician; (ii) analysed the available radiographs, which included both the frontal and lateral radiographs and the most recent prior radiographic study; (iii) assessed the anatomy shown by the images; and (iv) reported that they saw no abnormality or suspicion of an abnormality.
[112] My acceptance that the defendant radiologists followed the steps required to meet the applicable standard of care does not end the standard of care analysis in their favour. Rather, the standard of care analysis requires an assessment of whether the defendant radiologists discharged each of the steps required by the review process in the manner expected of a reasonably prudent and diligent diagnostic radiologist in 2012-2013.
[113] The Plaintiffs contended, relying on Dr. Schmidt’s opinion evidence, that Dr. Rubenstein and Dr. Zavodni could not have completed the required steps with reasonable prudence and diligence and missed Mr. Levy’s lesion. The Defendants contended, relying on Dr. Mayo’s opinion evidence, that a reasonable radiologist could miss the lesion, although exercising reasonable prudence and diligence.
[114] On the evidence that I have accepted, I find the following:
(a) Dr. Rubenstein did not identify the lesion on the chest x-rays reviewed by him on April 17, 2012, which included both the April 2012 x-ray and the most recent prior image, being the October 2011 x-ray.
(b) Dr. Zavodni did not identify the lesion on the chest x-rays reviewed by her on October 29, 2012, which included both the October 2012 x-ray and the most recent prior image, being the April 2012 x-ray.
(c) Dr. Rubenstein did not identify the lesion on the chest x-rays reviewed by him on June 25, 2013, which included both the June 2013 x-ray and the most recent prior image, being the October 2012 x-ray.
(d) Dr. Schmidt and Dr. Mayo identified the lesion on the lateral views of each of the April 2012 x-ray, the October 2012 x-ray, and the June 2013 x-ray.
(e) Dr. Schmidt and Dr. Mayo identified the lesion on the frontal views of each of the April 2012 x-ray, the October 2012 x-ray, and the June 2013 x-ray, after identification of the lesion on the lateral views. Dr. Mayo emphasized that it was challenging to do so, but Dr. Schmidt disclaimed any difficulty in identifying the lesion on the frontal views.
(f) The anatomical position of the lesion did not change from the October 2011 x-ray to its detection on October 8, 2013, although it grew.
[115] Neither Dr. Rubenstein nor Dr. Zavodni found that there were any issues with the quality of the images that they reviewed. Neither defendant radiologist mis-identified or mistook the lesion for something else. Both missed the abnormality that, I have found, was present on the radiographs that they studied. Neither had an explanation why.
[116] I will now turn to the expert opinion evidence to assess whether the interpretation of the x-rays by the Defendants was reasonable, including whether there is an explanation for why a reasonable diagnostic radiologist could have missed Mr. Levy’s lesion.
(c) Assessment of the Expert Opinion Evidence on Standard of Care
[117] Dr. Schmidt and Dr. Mayo have comparable expertise and qualifications. They are both leaders in the practice and teaching of diagnostic radiology. They both have decades of experience in diagnostic radiology and have published broadly. Indeed, they have collaborated in publications. A comparison of Dr. Mayo’s list of 168 published papers with Dr. Schmidt’s list of 123 refereed publications shows that these experts were co-contributors on papers in diagnostic radiology, including lung cancer screening research.
[118] The Plaintiffs submitted that Dr. Mayo’s opinions should be attributed less weight because he is not licensed by the College of Physicians and Surgeons of Ontario, having not practiced in an Ontario hospital since 1987. I do not accept this submission. Both experts are certified as specialists by the Royal College, a national organization which sets national standards for certification. Dr. Mayo testified that, in his view, there are no material differences in standard of care for a diagnostic radiologist in Ontario as opposed to British Columbia in 2012-2013. I saw no disagreement from Dr. Schmidt.
[119] I found that Dr. Schmidt and Dr. Mayo are eminently well-qualified diagnostic radiologists who provided their evidence in an independent and unbiased manner, for the purpose of assisting the Court in determining the issue of standard of care. They agreed on the steps required to be completed by a reasonable diagnostic radiologist in 2012-2013 to discharge the standard of care. But they disagreed on whether these steps were completed reasonably by the Defendants in their review of Mr. Levy’s x-rays. Dr. Schmidt testified that the lesion would have been seen and then reported on by Dr. Rubenstein and Dr. Zavodni had they exercised reasonable prudence and diligence in the review and interpretation of the x-rays. Dr. Mayo disagreed.
[120] The Defendants contended that Dr. Schmidt did not properly simulate Dr. Rubenstein’s and Dr. Zavodni’s review of the x-rays and therefore did not present cogent evidence that the lesion was detectable by the Defendants, on reasonable review, in 2012-2013. Specifically, the Defendants contended that Dr. Schmidt’s review of the x-rays was affected by hindsight bias, in that she knew or suspected, by reason of her retainer, that there had to be an issue with the x-rays. The Defendants submitted that this differentiated Dr. Schmidt’s retrospective review from the prospective review conducted by Dr. Rubenstein in 2012 and 2013 and Dr. Zavodni in 2012.
[121] I do not accept this submission. I am satisfied that Dr. Schmidt, and Dr. Mayo, set out to examine the chest x-rays “blindly” in that they began with the earliest x-ray without knowledge of the outcome. Dr. Schmidt was not told whether there was a lesion in the x-rays. I am satisfied that Dr. Schmidt took all available steps to approach her review of the radiographs in a manner that best simulated a “blind study”. I acknowledge that the referral to a litigation expert gives rise to a heightened suspicion that there must be a reason that the review has been requested. However, I accept Dr. Schmidt’s testimony that the requisition of an x-ray for a person with a history of kidney cancer, such as Mr. Levy, also gives rise, or ought to have given rise to a heightened suspicion on the part of the diagnostic radiologist that there could be metastatic disease affecting other organs, including the lungs. All medical experts, and the defendant radiologists, agreed with this.
[122] Further, the “blind” review is the only way that a retroactive examination of a chest x-ray by a litigation expert can be made to simulate the prospective review by the diagnostic radiologist in 2012-2013. It is the best evidence available to reconstruct the steps taken by the defendant radiologists.
[123] I accept that the “blind” review by Dr. Schmidt and Dr. Mayo was only in relation to the April 2012 x-ray. Dr. Schmidt conceded that after she detected the lesion on the April 2012 x-ray, her assessment of the October 2012 x-ray and the June 2013 x-ray was no longer “blind” (“once seen, it cannot be undone”). However, all experts agreed that the lesion grew over time, and that its growth made it more detectable.
[124] I found more concerning Dr. Mayo’s admission that while it is important for the standard of care expert to have the same information as the radiologist had in 2012-2013 at the time of their review, he did not mention in his litigation report that Mr. Levy had a history of kidney cancer. Dr. Mayo conceded that Mr. Levy’s history of kidney cancer would influence the search for metastasis or opacity on the radiograph, because kidney cancer could metastasize through the body and impact the lungs. However, he did not refer to the role of Mr. Levy’s history of kidney cancer in assessing whether the defendant radiologists acted reasonably in their review of Mr. Levy’s x-rays. This affected the weight that I attributed to Dr. Mayo’s expert opinions.
[125] There was no difference of opinion between Dr. Schmidt and Dr. Mayo on what the x-rays at issue showed. This is unlike the cases relied on by the Defendants, where there was a difference of opinion amongst the experts on what the x-rays at issue demonstrated. In Frank, at para. 78, there was a disparity between the experts regarding the correct interpretation of the imaging. In Geddes, at paras. 28-30, the defendant’s expert found no clinically significant abnormality. Here, both experts agree that the lesion could be viewed on all images and disagreed only on the ease or facility of detection.
[126] In my view, the expert’s disagreement on whether the defendant radiologists discharged the standard of care emanated principally from two considerations: whether it was reasonable to have missed the lesion based on its anatomical position; and whether it was reasonable to have missed the lesion because if an abnormality is not detected on the frontal x-ray, it is unlikely to be seen on the lateral x-ray.
[127] First, Dr. Schmidt conceded that the anatomical position of the lesion made it difficult to detect on the October 2011 x-ray. She stated that it was “hidden” due to being superimposed on the spine on the lateral view. On the frontal view, she explained that the lesion was superimposed by hilar vessels, which the lesion resembled. Dr. Schmidt offered that a diagnostic radiologist could not be faulted for missing the lesion in October 2011 due to these impediments in detection. Indeed, she missed it.
[128] However, the anatomical position of the lesion, including the anatomic superimpositions that I have described, existed on all the x-rays and did not prevent Dr. Schmidt’s detection of the lesion on the April 2012 x-ray. Dr. Schmidt testified that the lesion was in the same location, surrounded by the same anatomical features, including the hilar vessels and thoracic spine in April 2012 as it was in October 2011. However, by April 2012, whether by virtue of its increased size or slightly different rotation of Mr. Levy on the view, Dr. Schmidt saw the lesion on the lateral view of the April 2012 x-ray and then, knowing the position of the lesion on the lateral view, detected it on the frontal view, as well.
[129] The Defendants submitted that Dr. Schmidt only detected the lesion on the frontal view of the April 2012 x-ray through heightened suspicion resulting from her retainer as a litigation expert. I reject this submission. Dr. Schmidt had no more heightened suspicion than when she reviewed the October 2011 x-ray and admitted that she missed the lesion.
[130] Dr. Mayo testified that the anatomical position of the lesion on the April 2012 frontal x-ray made it challenging, if not extremely challenging to detect, such that it was within reasonably acceptable standards for the diagnostic radiologists to have missed it. This difficulty in detection was particularly present, in Dr. Mayo’s opinion, in the frontal radiograph due to the lesion’s juxtaposition with the hilus and the positioning of the air soft tissue interfaces.
[131] Dr. Mayo testified, relying on the Sagel Study and his experience, that the vast majority of chest x-ray diagnosis is based on the frontal view, and that the lateral view has a lower diagnostic yield, both anatomic and radiographic. Dr. Mayo stated that while he could see the lesion both the frontal view and the lateral views in this case, he had difficulty correlating the lateral with the frontal.
[132] Dr. Mayo agreed that a reasonably prudent and diligent diagnostic radiologist must examine the lateral chest x-ray in addition to the frontal x-ray, and he conceded that the abnormality was detectable on each lateral radiograph. However, Dr. Mayo urged a finding that it was within reasonably acceptable standards for the diagnostic radiologists to have missed the lesion because of the challenging nature of the frontal x-ray and because the lateral view is less relied upon than the frontal view. He relied on the Sagel Study to state that the lateral x-ray only provides pivotal information in about 1% of cases and the lateral image was “confirmatory or clarifying” of findings in the frontal image in only about 19.5% of cases.
[133] Dr. Schmidt disagreed, stating that to ignore the lateral chest x-ray, or to discount its role in the assessment of the radiographs, would be tantamount to “looking with one eye closed.” Dr. Schmidt testified that a reasonable assessment of the x-rays required comparing and evaluating the view offered on the lateral image together with the view offered on the frontal image. Dr. Schmidt believed that the lesion was reasonably detectable on all the x-rays reported upon by the Defendants.
[134] In my assessment of the Defendants’ discharge of the standard of care, I accept Dr. Schmidt’s opinion evidence and prefer her opinions over the opinion evidence of Dr. Mayo on all points on which they disagree. I will explain why.
(i) Comparing the Most Recent Prior Image
[135] Dr. Schmidt simulated the discharge of the standard of care in relation to the x-ray studies undertaken by the Defendants by comparing the chest radiographs in issue with the most recent prior images. Although Dr. Mayo agreed that the standard of care required comparing the radiographs with the most recent prior images, he did not do so as part of the presentation of his opinion evidence as a standard of care expert: either in his expert litigation report, or in his testimony at trial. In cross-examination, Dr. Mayo stated that his comparison of the most recent prior images was implicit in his analysis, although admittedly not express. The comparative analysis required of the most recent prior image may have been implicit in Dr. Mayo’s analysis, but I did not see it in his evidence.
[136] Dr. Schmidt testified that the comparative analysis that she undertook, set out in her reports, and demonstrated in her testimony, showed the increasing growth of Mr. Levy’s lesion. Considering that a reasonable comparative analysis is required by the standard of care, Dr. Schmidt’s testimony showed that if the defendant radiologists had reasonably conducted a comparative analysis of the most recent prior image, the growth and increasing prominence of the tumour would have resulted in its detection. Dr. Mayo did not expressly provide any opinion evidence that directly challenged of this aspect of Dr. Schmidt’s testimony.
[137] Dr. Mayo’s expert opinion evidence on standard of care was provided generally, with little distinction between the examination of the x-rays by Dr. Rubenstein on April 27, 2012 and June 25, 2013 and Dr. Zavodni’s examination on October 29, 2012. Indeed, Dr. Mayo referred only to the October 2012 frontal and lateral x-rays in his testimony and provided no expert evidence specific to Dr. Rubenstein’s examination of the June 2013 x-ray.
(ii) The Role of the Lateral Radiograph
[138] Dr. Mayo relied heavily on the Sagel Study as validating his views on the limited diagnostic role of the lateral radiograph in the discharge of standard of care by the Defendants. Dr. Mayo’s interpretation of the Sagel Study’s statistical analysis was that the lateral radiograph is the primary diagnostic projection in chest x-rays in only about 1.1% of cases.
[139] However, in cross-examination, Dr. Mayo conceded that this value (1.1%) did not apply to a case such as Mr. Levy’s where a reasonable possibility of chest disease was suspected by reason of patient medical history of kidney cancer. Dr. Mayo admitted that the Sagel Study found that the lateral radiograph identified, confirmed, or clarified an abnormality in 21.5% of cases where a reasonable possibility of chest disease was suspected. Dr. Mayo also agreed that the Sagel Study concluded that lateral views should continue to be taken in all cases where a reasonable possibility of chest disease is suspected or in screening for patients over 40, both of which applied to Mr. Levy. He agreed that the lateral view is useful for helping to clarify or identify the presence of an opacity that might be hidden by anatomy on the frontal view. Dr. Mayo also agreed with the conclusions reached by the Sagel Study that the lateral view is particularly useful in determining why or how the hilum is abnormal and is better than the frontal radiograph for diagnosing lesions like Mr. Levy’s because the structures of the hilum are more visible on the lateral view.[^4]
[140] Dr. Mayo’s reliance on the Sagel Study in support of his opinion that the lateral radiograph had less diagnostic value in the evaluation by the Defendants of Mr. Levy’s x-rays, and that they would thereby comply with the standards of a reasonably prudent and diligent diagnostic radiologist by relying on it less than the frontal radiograph was, in my determination, shown to be questionable.
[141] I accept Dr. Schmidt’s opinion that the lateral view is a standard component of a full chest radiograph; that it should be done whenever a chest disease is a reasonable possibility; that the lateral view often provides key findings not visible on the frontal view, or confirming abnormalities suspected on the frontal view; and that a reasonably prudent and diligent diagnostic radiologist should not attribute little or less weight to a finding made on the lateral radiograph.
(iii) The Role of Mr. Levy’s History
[142] As explained earlier, Dr. Mayo admitted that while it is important for the standard of care expert to have the same information as the radiologist had in 2012-2013 at the time of their review, he did not mention that Mr. Levy had a history of kidney cancer. Both Defendants testified that they would have known of this at the time of their reviews, and that kidney cancer can metastasize to virtually any part of the body. Dr. Mayo agreed that Mr. Levy’s history of cancer gave rise to a heightened suspicion that the cancer could have metastasized to other areas but did not mention the impact of this history on the diagnostic radiologist’s discharge of the standard of care in review of the radiographs.
[143] Mr. Levy’s history of kidney cancer provided context to the defendant radiologists review of his chest x-rays and informed the purpose of the radiographical investigation. Both experts testified that it gave rise to a heightened suspicion to search for any evidence of metastasis. Yet, Dr. Mayo’s opinions did not mention the role of Mr. Levy’s medical history.
(iv) Evidentiary Elements Pertinent to Weight of Opinions
[144] Dr. Mayo agreed in cross-examination that his opinion that Dr. Rubenstein’s and Dr. Zavodni’s review of the subject radiographs met the standard of a reasonable diagnostic radiologist was based, in part, on the failure of “one or more radiologists” to detect the mass. Essentially, Dr. Mayo equated Dr. Zavodni’s failure to detect the lesion – even after comparing to the April 2012 x-ray cleared by Dr. Rubenstein as the ‘most recent prior image’ – as supporting the conclusion that if the lesion was missed by both, then it was not likely detectable with the exercise of reasonable prudence and diligence. Dr. Mayo also stated that, in his experience, he knows of other diagnostic radiologists who have missed abnormal masses of a similar nature and location to that seen on Mr. Levy’s lateral radiographs, and that this informed, in part, his opinion that the Defendants’ conduct complied with that required of reasonably prudent and diligent diagnostic radiologists.
[145] This evidence is insufficient to support, even in part, an opinion on the issue of standard of care. A standard of care analysis cannot be founded on an observation that one or more diagnostic radiologists failed to detect the same lesion, or anecdotal evidence of undocumented observations of unidentified radiologists in uncharacterized radiographical assessments.
[146] The Defendants submitted that I ought to take into consideration that Dr. Luong reviewed Mr. Levy’s November 5, 2013 x-ray and reported that: “Again, the lungs and pleura remain clear. No acute disease.” The Defendants urged that I attribute weight to this as evidence that a diagnostic radiologist examined Mr. Levy’s chest x-rays even after his tumour was diagnosed by a chest CT and still could not detect the lesion on a chest x-ray. I accept this evidence as a record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, framed by the parties’ certification that it is not tendered for the “truth of diagnosis or other medical opinion evidence”. I place little weight on the record of Dr. Luong’s finding. Dr. Luong was not called to testify at trial. There was no evidence of the requisition presented to Dr. Luong, and thereby no opportunity to understand the medical history conveyed to Dr. Luong. There was no evidence of the x-ray images that were the subject of the report, and no opportunity to understand what Dr. Luong meant in his report.
(v) The Nature of Dr. Schmidt’s Opinion Evidence
[147] It is a hallmark of a reliable litigation expert that the expert is prepared to properly concede points effectively made by the party opposite and offer opinions entirely unaffected by the interests of the party who retained them. Dr. Schmidt conceded her own failure to detect the lesion on the October 2011 x-ray; conceded the challenges in detection of the lesions resulting from anatomical superimpositions; and when confronted with the hearsay nature of the evidence of the findings of her group of radiology colleagues, readily offered that she was “happy to ignore” the group findings.
[148] Dr. Schmidt’s work involves the oversight of many radiologists for many years, including the period in question in this action. I am satisfied that she had ample experience on which to consider the requirements of the average doctor of reasonable ability in providing her opinions on the issue of standard of care.
(d) Conclusions – Breach of Standard of Care
[149] For the reasons now explained, I accept Dr. Schmidt’s opinion evidence on the issue of standard of care and prefer her opinion evidence on all areas where Dr. Schmidt’s opinion evidence diverges from the opinions expressed by Dr. Mayo. Based on my assessment of the evidence tendered by the parties and by the medical experts on the issue of standard of care, I have concluded that Dr. Rubenstein and Dr. Zavodni breached the standard of care, as I will now explain.
[150] I find that a reasonably prudent and diligent analysis by Dr. Rubenstein of the April 2012 x-ray would have resulted in detection of the abnormality, at least on the lateral radiograph, where, the experts agreed, the abnormality was most detectable. I accept Dr. Schmidt’s opinion that a reasonable comparison of the April 2012 lateral x-ray with the frontal radiograph and with the most recent prior radiograph of October 2011, with reasonable consideration of the findings on the lateral radiograph, and with reasonable consideration of Mr. Levy’s history of kidney cancer, would have resulted in Dr. Rubenstein’s identification of the lesion. I thereby find that Dr. Rubenstein did not review the April 2012 x-ray and the most recent prior radiograph with reasonable prudence and diligence and therefore did not discharge the standard of care required of a diagnostic radiologist in 2012. I conclude, further, that Dr. Rubenstein’s breach in failure to detect the abnormality resulted in his failure to report a detectable abnormality or, at a minimum, the failure to report the suspicion of an abnormality.
[151] I make the same findings in relation to Dr. Zavodni’s failure to identify the abnormal mass on her study of the October 2012 x-ray. By the time of Dr. Zavodni’s review, the lesion had grown from 2.5 cm on April 17, 2012, to 4.0 cm on October 29, 2012, according to Dr. Schmidt’s measurements. I accept Dr. Schmidt’s opinion that a reasonable comparison of the October 2012 lateral x-ray with the frontal x-ray and with its most recent prior radiograph study, the April 2012 x-ray, with reasonable consideration of the findings on the lateral radiograph, and with reasonable consideration of Mr. Levy’s history of kidney cancer, would have resulted in Dr. Zavodni’s detection of the lesion, and its growth. I thereby find that Dr. Zavodni did not review the October 2012 x-ray and the most recent prior image with reasonable prudence and diligence and therefore did not discharge the standard of care required of a diagnostic radiologist in 2012. I conclude, further, that Dr. Zavodni’s breach in failure to detect the abnormality resulted in her failure to report a detectable abnormality or, at a minimum, the failure to report the suspicion of an abnormality.
[152] The Defendants did not tender any opinion evidence directly specific to Dr. Schmidt’s opinion that a reasonably prudent and diligent review by Dr. Rubenstein of the June 2013 x-ray, and comparison with its most recent prior image, would have identified the lesion, and its growth. According to Dr. Schmidt, the abnormality was 4.5 cm on June 25, 2013. Dr. Mayo did not provide opinion evidence on whether a reasonably prudent and diligent radiologist would be expected to detect a lesion of this size and characteristics. Dr. Mayo did not provide an opinion on whether a reasonable radiologist in 2013 would have detected and noted the growth of this tumour through a comparative assessment to the most recent prior radiograph. Dr. Schmidt’s opinion regarding Dr. Rubenstein’s discharge of the standard of care in June 2013 went largely unchallenged and was not diminished by cross-examination.
[153] I accept Dr. Schmidt’s opinion that a reasonable comparison of the June 2013 lateral x-ray with the frontal x-ray and with its most recent prior radiograph study, the October 2012 x-ray, with reasonable consideration of the findings on the lateral radiograph, and with reasonable consideration of Mr. Levy’s history of kidney cancer, would have resulted in Dr. Rubenstein’s detection of the lesion and its growth. I thereby find that Dr. Rubenstein did not review the June 2013 x-ray with reasonable prudence and diligence and therefore did not discharge the standard of care required of a diagnostic radiologist in 2013. I conclude, further, that Dr. Rubenstein’s breach in failure to detect the abnormality resulted in his failure to report a detectable abnormality or, at a minimum, the failure to report the suspicion of an abnormality.
IV. CAUSATION
[154] My determination that Dr. Rubenstein and Dr. Zavodni breached the standard of care that they owed to Mr. Levy is not enough for these radiologists to be found liable for the Plaintiffs’ damages. In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, the Supreme Court explained, at para. 6, that a finding of negligence alone does not make a defendant liable for the loss. Rather, the plaintiff must also establish that the defendant’s breach of standard of care caused the injury. In Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at p. 326, Justice Sopinka explained causation as follows: “Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.”
[155] To succeed in their action against Dr. Rubenstein and Dr. Zavodni, the Plaintiffs have the burden of proving causation. This burden of proof must be discharged on a balance of probabilities (more likely than not): Clements, at para. 13. The Plaintiffs are not required to establish causation with “positive or scientific proof”: Clements, at paras. 11 and 49. Rather, a court may make an “inference of causation” in the absence of scientific proof: Clements, at para. 11. The court must take a “robust and pragmatic” approach to determining the issue of causation: Clements, at para. 46.
[156] I turn to Question #3, reproduced from paragraph 31, above, for ease of reference: “If the answer to question 1 and/or 2 [breach of standard of care] is yes, then, on a “but for” analysis, did the breach(es) of the standard of care cause or contribute to Mr. Levy’s outcome?”
A. Process for Determination of “But For” Causation
[157] A defendant should only be required to compensate an injured party for injuries caused by the defendant and not for injuries caused by “factors unconnected to the defendant and not the fault of anyone”: Snell, at p. 327. The tool by which to assess whether a breach of a standard of care caused the damage realized by the injured party is the “but for” test.
[158] The “but for” test of causation can be traced to the Supreme Court decision in Snell and was confirmed as the proper test for causation in negligence by the Supreme Court in Clements, in 2012, and affirmed a year later in Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98. In Clements, at para. 8, the Supreme Court explained as follows:
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 negligent act, 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. [Emphasis in original.]
[159] The Supreme Court held that in truly exceptional cases – in “special circumstances” – the court may apply a “material contribution to risk of injury test”: Clements, at paras. 28, 46. The parties agreed, in my view correctly, that there are no special circumstances present in this case that would support resort to the “material contribution to risk of injury test”, and that the “but for” causation test is applicable to my assessment of causation.
[160] The “but for” test is simple in statement but complex in application. To provide guidance for the application of this principle, the Supreme Court explained its purpose in achieving “corrective justice”: Clements, at para. 7. The relationship between a plaintiff and defendant in negligence is based on the existence of a duty of care and when the defendant breaches this duty, the law “corrects” the deficiency by requiring that the defendant compensate the plaintiff. However, the defendant who breaches a standard of care “is not a wrongdoer at large” but rather is a wrongdoer only in respect of damages caused to the plaintiff: Clements, at para. 16, quoting Mooney v. British Columbia (Attorney General), 2004 BCCA 402, 202 B.C.A.C. 74, at para. 157.
[161] In Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, the Court of Appeal provided guidance on the reasoning process to be applied when determining “but for” causation, setting out three basic steps. First, the Court must “determine what likely happened in actuality”: Sacks, at para. 47. This requires determining “whether the delay in treatment led to the plaintiff’s injury, considering only what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, and without considering the presence or absence of any breaches of the standard of care”: Sacks, at para. 98.
[162] Second, the Court must determine “what would likely have happened had the defendant not breached the standard of care”: Sacks, at para. 47. For the Defendants to be liable, the Plaintiffs must prove that the breach of standard of care on the part of one or more of the Defendants “caused or contributed to the delay in diagnosis and treatment”: Sacks, at para. 99. The third step is to allocate fault amongst the negligent Defendants whose breach of standard of care is found to have caused or contributed to the Plaintiffs’ injuries: Sacks, at paras. 47 and 99.
B. The Parties’ Positions on Causation
[163] Dr. Rubenstein and Dr. Zavodni did not cause Mr. Levy’s lung cancer. Mr. Levy had lung cancer before any x-ray studied by these Defendants. But this does not end the causation analysis. The Supreme Court explained in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 17: “It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury” (emphasis in original).
[164] Recently, the Court of Appeal affirmed that causation is established under the “but for” test “if the negligence of a defendant caused the whole of the plaintiff’s injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained”: Uribe v. Tsandelis, 2021 ONCA 377, at para. 35, citing Donleavy v. Ultramar Ltd., 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at para. 72. The Plaintiffs submitted that the breach of standard of care by Dr. Rubenstein and Dr. Zavodni, by failing to identify and report on the lesion, resulted in a delay in diagnosis of Mr. Levy’s lung cancer that, in turn, caused or contributed to Mr. Levy requiring medical treatments and sustaining outcomes that would otherwise have been avoided, in the following three ways:
(a) Requiring adjuvant chemotherapy;
(b) Having a recurrence of his lung cancer requiring the associated treatment; and/or
(c) Suffering psychological harm due to the delay in diagnosis of his lung cancer (i.e., separate from any psychological or other harm associated with the disease progression and resulting treatment).
[165] The Defendants denied that any breach of standard of care on their part caused or contributed to Mr. Levy’s outcome, in any way. The Defendants submitted that the necessity for Mr. Levy to undergo adjuvant chemotherapy, and the recurrence of his cancer would have occurred regardless of whether the lesion was identified on April 17, 2012 or June 25, 2013 by Dr. Rubenstein, or on October 29, 2012 by Dr. Zavodni, as opposed to its eventual detection on October 8, 2013. The Defendants submitted that the psychological harm was part of the impact of Mr. Levy’s kidney cancer and lung cancer, and not caused by any conduct on their part.
[166] To determine these conflicting positions, the parties tendered expert opinion evidence on the size of the lesion in Mr. Levy’s left lobe on, and following April 17, 2012, the presence or absence of lymph node involvement, and medical studies regarding the characterization of the tumour, its recommended treatment and prognosis and predictive outcome. I will now turn to the expert opinion evidence tendered by the parties on these issues.
C. Expert Opinion Evidence - Causation
[167] The parties’ tendering of expert opinion evidence on the issue of causation was consistent with the Court’s statement of its usefulness in medical malpractice cases: Liu v. Wong, 2016 ONCA 366, at para. 14, citing Larman v. Mount Sinai Hospital, 2014 ONCA 923; Woods v. Jackiewicz, 2019 ONSC 2334, at para. 27. The Plaintiffs tendered the expert opinion evidence of Dr. Sheldon Fine, and the Defendants tendered the expert opinion evidence of Dr. Mark David Vincent.
(a) Dr. Sheldon Fine
(i) Expert Qualifications
[168] Dr. Sheldon Fine obtained his medical degree in 1975, and in 1979 completed his residency in internal medicine, oncology. Dr. Fine trained at Princess Margaret Hospital and Toronto General and practiced as a medical oncologist from 1980 to 1987 at Princess Margaret Hospital. From 1987 onwards, Dr. Fine practiced as a medical oncologist in the Department of Oncology at Credit Valley Hospital, including acting as Chief of the Department of Oncology in the period from 2002 to 2012.
[169] Dr. Fine testified that during the 15 years in which he was involved in the clinical management of cancer patients, both inpatient and outpatient, he would see 300 to 350 new patients each year, and each physician would follow some 500 cancer patients. He estimated that 10-20% of these patients were lung cancer patients.
[170] Dr. Fine was an Assistant Professor in the Department of Medicine at the University of Toronto from 1983 until 2015 or 2016. He was the Chair of the Ontario Medical Association Section on Oncology from 1998 to 2003, a Board member of the Canadian Cancer Society, Ontario Division from 2011 to 2015, and has held multiple committee positions at Cancer Care Ontario.
[171] In his career of some 40 years in medical oncology, Dr. Fine explained that he was involved in the evaluation of patients who presented with a disorder, and coordinated the care and treatment of cancer patients, at times in a multi-disciplinary setting with numerous specialists, including diagnostic radiologists.
[172] The Defendants objected to Dr. Fine’s admission to provide expert opinion evidence on the issue of causation, necessitating a voir dire. The principal basis of the Defendants’ objection was their submission that Dr. Fine was not a properly qualified expert. The Defendants submitted that Dr. Fine was not qualified to give expert opinion evidence as a medical oncologist on issues of lung cancer because his experience, skill, education, and training was limited to general oncology and because of his transition from patient treatment to supervisory positions.
[173] This objection focused on Dr. Fine’s admission that since about 2010, most medical oncologists are sub-specialized according to specific types of cancer and that such sub-specialization is common in large centres, such as the GTA. Dr. Fine conceded that Credit Valley Hospital transitioned to specialty oncology treatment in sub-areas in around 2009 and that his sub-specialty was breast cancer, gynecological and urinary/ prostate, and kidney cancers, but not lung cancer. Dr. Fine stated in the voir dire that if Mr. Levy had presented at Credit Valley Hospital in 2019 with lung cancer, he would not have been assigned to him, and clarified in his evidence that he was involved in the treatment of lung cancer patients until about 2017-2018.
[174] I considered the Defendants’ objection by applying the principles identified by the case law, including in Dulong v. Merrill Lynch Canada Inc. (2006), 2006 CanLII 9146 (ON SC), 80 O.R. (3d) 378 (S.C.), at para. 20, and, on reasons rendered, dismissed the Defendants’ objection. Dr. Fine had career experience in treatment of lung cancer patients, as a certified medical oncologist, and thereby satisfied the requirements for threshold admissibility as set out by the Supreme Court in R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 225, (“the expert witness [must] possess special knowledge and experience going beyond that of the trier of fact”), applying its decision in R. v. Beland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at p. 415; and Mohan, at para. 25: “[T]he evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.” Also, R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 103.
[175] Any deficiencies in Dr. Fine’s expertise go to weight, and not admissibility: Marquard, at p. 225. The evaluation of the weight to be attributed to Dr. Fine’s testimony, like that of all expert witnesses, was ongoing throughout the trial: R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at para. 31; Graat v. R., 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 838; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 56.
[176] I admitted Dr. Fine to testify as an expert medical oncologist, to provide expert opinion evidence on the issue of causation in the case of Mr. Levy, and more specifically, to give opinion evidence as to what medical treatment or treatments and/or outcome or outcomes Mr. Levy would likely have avoided if the diagnosis of his lung cancer had not been delayed as alleged.
(ii) Dr. Fine’s Opinion Evidence on Causation
a. Medical History
[177] Dr. Fine reviewed Mr. Levy’s medical history and explained that after his laparoscopic partial nephrectomy on June 15, 2009, Mr. Levy’s pathology was described as a papillary renal cell cancer type 2. The CT scan conducted at that time did not demonstrate convincing evidence of metastatic disease. There was no evidence of cancer spread beyond the kidneys.
[178] Dr. Fine stated that the medical records showed that Mr. Levy was monitored by Dr. Klotz, a urologist, on December 8, 2009, and on June 15, 2010, and ongoing investigation showed no evidence of recurrence of kidney cancer. Dr. Fine stated that Dr. Klotz followed up with Mr. Levy to monitor for lung cancer because it is generally known that kidney cancer can spread to the lungs. Dr. Fine explained that this is why the December 2010 x-ray and the October 2011 x-ray were conducted, both of which reported that Mr. Levy’s lungs were clear, and why the x-rays at issue in this action were requisitioned.
[179] Dr. Fine testified that he disagreed with Dr. Rubenstein’s report that the April 2012 x-ray showed “no significant abnormality” because, in Dr. Fine’s opinion, the lateral projection shows a mass overlying the thoracic vertebrae. Dr. Fine similarly disagreed with Dr. Zavodni’s report that the October 2012 x-ray showed “no radiographic evidence of prior granulomatous infection”. In Dr. Fine’s opinion, there was an abnormality visible on the October 2012 x-ray. Last, Dr. Fine disagreed with Dr. Rubenstein’s finding, on the June 2013 x-ray, that “no active pulmonary disease is demonstrated”. Dr. Fine stated that the mass was present throughout the times of these investigations. Dr. Fine conceded that his review of these x-rays was with knowledge that a tumour was present, and clarified that he offered his opinions regarding the presence of the lesions on these x-rays only to frame the timing of the tumour’s development for the purpose of his causation analysis.
[180] Dr. Fine testified that the medical records showed that after Mr. Levy began to cough up blood in September 2013, a CT scan was performed on October 8, 2013 that demonstrated a 4.5 cm mass in the superior left lower lobe. Dr. Fine observed that the pathology report following Mr. Levy’s left lower lobectomy on November 22, 2013 described a poorly differentiated adenocarcinoma measuring 5.0 x 3.7 x 3.0 cm with three of Mr. Levy’s thirteen lymph nodes showing evidence of cancer. Dr. Vincent would later explain that a “poorly differentiated” mass is a mass that has progressed to the point that it is no longer similar to the adjacent tissue, and is more “aggressive and dangerous”. This mass was the lesion that can be seen on the April 2012 x-ray, the October 2012 x-ray, and the June 2013 x-ray. The pathology report showed that Mr. Levy’s immunochemistry was consistent with a lung primary cancer. Mr. Levy was prescribed and went on to receive adjuvant chemotherapy for 4 cycles (over 4 months).
[181] In or about November 2016, Mr. Levy’s lung cancer recurred, as seen on a CT scan, as confirmed on a biopsy of the cervical lymph node. Dr. Fine stated, and Dr. Vincent agreed, that the pathology record showed that the recurring lung cancer was the same as Mr. Levy had in November 2013. In January 2017, Mr. Levy was enrolled in a randomized clinical trial known as KEYNOTE-189 involving ongoing chemotherapy with Pemetrexed plus or minus Pembrolizumab. Mr. Levy has, since 2017, had regular cycles of chemotherapy treatment and will continue to do so, up to 35 cycles. Referring to and relying on a paper written on the KEYNOTE-189 study by lead author Dr. Shirish Gadgeel (the “Gadgeel Article”),[^5] Dr. Fine stated that while Mr. Levy has had control of his illness, his lung cancer is not curable.
b. Lung Cancer Staging
[182] Dr. Fine stated that uniform lung cancer staging was developed to provide a common reference point for solid tumours. Dr. Fine explained, and Dr. Vincent would later affirm, that lung cancer staging is categorized by a classification known as “TNM”, which measures size and location of the tumour (designated as the “T” value); the presence or absence of regional lymph nodes adjacent to the primary tumour (designated as the “N” value); and the presence or absence of distant metastasis (designated as the “M” value). Dr. Vincent would later explain that the TNM classification allows the cancer to be categorized within a broader “umbrella system” involving four cancer stages: stage 1, involving small, easily resectable (i.e., surgically removable) cancer; stage 2, being cancers that involve the regional lymph nodes; stage 3, involving the mediastinum lymph nodes; and stage 4, involving more distant metastasis.
[183] At the time of Mr. Levy’s left lower lobectomy on November 22, 2013, the applicable guide was the 7th Edition of the TNM Classification for Lung Cancer Staging, American Joint Committee on Cancer (“7th Ed. Classification”). The TNM Classification for Mr. Levy’s lung cancer in November 2013 was pT2a[^6] pN1[^7] M0[^8], as Mr. Levy’s tumour was more than 3 cm but less than 5 cm, in the hilum with lymph node involvement, and no distant metastasis. The parties agreed that this was a stage 2A cancer.
[184] Using the TNM classification in the 8th Edition Lung Cancer TNM Staging Summary, as published by the International Association for the Study of Lung Cancer (2018) (“8th Ed. Classification”), Mr. Levy’s lung cancer would be categorized as pT2b[^9] pN1, due to a further subdivision of the T2 classification. Dr. Vincent commented that the changes made to the 8th Ed. Classification were in recognition of the importance of tumour size in cancer outcome, prognosis, and treatment.[^10]
c. Opinions - Causation
[185] Dr. Fine testified that, in his opinion, if Mr. Levy’s lesion had been detected and reported on by Dr. Rubenstein on April 17, 2012 or June 25, 2013, or by Dr. Zavodni on October 29, 2012, Mr. Levy would have undergone precisely the same program of treatment as he did upon detection of the lesion on October 8, 2013. Specifically, he would have undergone a CT scan to define the tumour more precisely than is capable on an x-ray, and he would then have had surgery to resect the tumour. I did not see any disagreement from any expert on these opinions.
[186] Dr. Fine analysed what would have happened to the course of Mr. Levy’s lung cancer had it been identified earlier, focusing his opinion evidence on the failure by Dr. Rubenstein to detect the lesion on the April 2012 x-ray. Dr. Fine stated that the progression of the disease would depend principally on three variables: the TNM staging, which involved understanding the size of the tumour; clinical or biological features of the cancer; and the treatment received by the patient.
[187] Dr. Fine emphasized that measuring the tumour size is central to lung cancer staging, using the TNM Classification. Dr. Fine did not report on any measurement by him of the size of Mr. Levy’s lesion on the x-rays reviewed by Dr. Rubenstein and Dr. Zavodni, but rather relied on the measurements performed by Dr. Schmidt. Dr. Fine stated that he did so because Dr. Schmidt is a recognized and reputable expert in cancer staging; because as a medical oncologist he would rely on the measurements by a diagnostic radiologist; and because Dr. Schmidt’s measurements followed recognized growth patterns expected of a tumour of this nature.
[188] Dr. Fine accepted Dr. Schmidt’s measurements that Mr. Levy’s tumour was 2.0 cm in the October 2011 x-ray; 2.5 cm in the April 2012 x-ray; 4.0 cm in the October 2012 x-ray; and 4.5 cm in the June 2013 x-ray. Recall, for reference, that the tumour size at the time of Mr. Levy’s surgery on November 22, 2013, as measured in the pathology report, was 5.0 x 3.7 x 3.0 cm.
[189] Dr. Fine stated that tumour size is a critical factor in cancer prognosis. Smaller tumours cause less risk to the patient than larger tumours and are associated with a better prognosis. Tumours can grow. The patient’s prognosis worsens with increasing size of the tumour, because the growth increases risk for lymph node involvement and presence of metastatic disease. Dr. Fine testified that as tumours grow, there is a higher likelihood that they will spread.
[190] In illustration of these principles, Dr. Fine testified that, in his experience, no medical oncologist would advise a cancer patient that there would be no impact in an 18-month delay in treating a newly diagnosed lung mass of 2.5 cm because the potential that a tumour would remain stable and quiescent for 18 months is “exceptionally remote”. Dr. Fine stated that there are no prospective randomized studies of watching/ waiting time to observe tumour development. Such a study would present undue, known risk to the patient.
[191] Dr. Fine testified that in April 2012, Mr. Levy’s tumour was smaller than when it was diagnosed in October 2013. In April 2012, Mr. Levy’s tumour would be classified as a “T1” tumour, for staging purposes, using either the 7th Ed. Classification or the 8th Ed. Classification.[^11] Under the 7th Ed. Classification Mr. Levy’s tumour would be “T1b”, and under the 8th Ed. Classification, “T1c”.[^12] Dr. Fine testified that Mr. Levy would have had, in April 2012, a stage 1A cancer. In analysis of the pathology of Mr. Levy’s tumour upon resection on November 22, 2013, Mr. Levy’s tumour had increased to 5 cm in length and his cancer was at stage 2A.
[192] Dr. Fine testified that, leaving aside nodal involvement, tumour size is a significant prognosticator of disease outcome. He pointed to an authoritative 2015 study by lead author Dr. Jianjun Zhang (the “Zhang Study”) which analysed a group of 52,287 eligible patients and concluded that tumour size is an independent prognostic factor in cancer assessment.[^13] Dr. Fine stated that Mr. Levy thereby had a prognosis for a better outcome when his tumour size was 2.5 cm in April 2012, than with a tumour size of 5.0 cm as found in November 2013.
[193] Regarding nodal involvement in April 2012, Dr. Fine testified that there was approximately a 25% likelihood that Mr. Levy’s lymph nodes were involved in April 2012 because Mr. Levy’s tumour size at that time was less than 3 cm. In support of this opinion, Mr. Fine relied on a clinical study published by lead author Yusuf Moulla, that evaluated pathological results of primary tumours and lymph nodes (the “Moulla Study”).[^14]
[194] Dr. Fine testified that survival rates in cancer patients decrease with nodal involvement. Dr. Fine relied on a study conducted by lead author Dr. Hisao Asamura, that analysed a database of 94,000 patients that provided guidance regarding survival rates correlated to lymph node involvement (the “Asamura Study”).[^15] In assessing Mr. Levy’s survival rate in April 2012 compared to November 2013, Dr. Fine referred to survival analysis in this study, which showed that the 60-month survival rate of patients with T1 (no nodal involvement) tumours was 76%. The study showed that once lymph nodes became present, or the tumour increased in size, the survival rate declined. In assessing Mr. Levy’s lung cancer as of November 2013, with a T2 tumour with lymph node involvement, his 60-month survival rate decreased to 38%.
[195] Dr. Fine also relied on the study by lead author Dr. Peter Goldstraw, which assessed 13,267 patients and found that stage 1A patients had a 60-month survival rate of 73%.[^16] Dr. Fine stated that this study also showed that as tumours increase in size, and as lymph nodes become involved, the patient’s prognosis worsens. Dr. Fine stated that he referred to these studies principally because they uniformly establish that in multiple data studies, “smaller tumours do better”.
[196] From this survival rate analysis, and based on his experience, Dr. Fine provided his opinion that if Mr. Levy’s tumour had been detected in April 2012, when it was 2.5 cm, the outcome of incurable cancer would likely have been avoided. Dr Fine stated that it was, in his view, more likely than not that Mr. Levy would have had a preventable cancer with detection in April 2012.
[197] Based on his experience and study as a medical oncologist, and on the studies presented in his testimony, Dr. Fine provided the opinion that if Mr. Levy’s tumour had been identified by Dr. Rubenstein in April 2012, adjuvant chemotherapy would not have been required and Mr. Levy would not have received it. This opinion was based on the size of the tumour at 2.5 cm and the Guidelines published by the American Society of Clinical Oncology and Cancer Care Ontario in 2007 and updated in 2017, for use of adjuvant therapy in cancer patients (the “Adjuvant Therapy Guidelines”).[^17] Dr. Fine stated that the Adjuvant Therapy Guidelines specified, in Recommendation 1.1, that adjuvant chemotherapy was not recommended for a patient with a Stage 1A lung cancer. Dr. Fine testified that positive lymph node involvement in lung cancer is a standalone reason why the patient will need adjuvant chemotherapy, but that there was only a 25% risk of lymph node involvement with stage 1A lung cancer.
[198] Dr. Fine relied also on a study by lead author Dr. S. Burdett (the “Burdett Study”) that reached the same recommendation: that stage 1A cancer patients should undergo surgery to address any tumour but should not receive adjuvant chemotherapy.[^18] Dr. Fine explained that this study concluded that the benefit of adjuvant chemotherapy is accrued to stage 2 and stage 3 cancer patients. Dr. Fine stated that if Mr. Levy’s lung cancer had not recurred in 2016, Mr. Levy would likely not have been required to undergo continuous cycles of adjuvant chemotherapy.
[199] Dr. Fine provided the opinion that if Mr. Levy’s tumour had been identified by Dr. Rubenstein in April 2012, he would have been diagnosed with stage 1A cancer, and if the tumour had been resected at that time, the lung cancer would likely not have recurred in 2016. Dr. Fine stated that while Mr. Levy’s lesion and lymph nodes were resected in November 2013, there must have been micro metastatic disease that only became clinically apparent with the recurrence of his cancer in 2016. In Dr. Fine’s opinion, this micro metastatic disease was likely not present in April 2012 but developed as Mr. Levy’s tumour grew in the period from April 2012 to November 2013. Dr. Fine based this on the survival rates that he presented in evidence, which show a higher survival rate, and thereby lower rate of recurrence, with tumours of less than 3 cm.
(b) Dr. Mark David Vincent
(i) Expert Qualifications
[200] Dr. Mark David Vincent obtained his medical degree from the University of Cape Town, and then completed residency in South Africa, England, and Canada, which included training in medical oncology. He received specialty certifications from the Royal College of Physicians and Surgeons of Canada in internal medicine (1991) and medical oncology (1992).
[201] Dr. Vincent has, since 1991, practiced in the department of oncology at the London Health Sciences Centre, subspecialized equally to gastrointestinal and thoracic cancers: the thoracic cancers involving principally lung cancers. Dr. Vincent has served as the thoracic disease Site Team Chair for London Regional Cancer Program which involves team coordination to deal with particularly challenging cases in an interdisciplinary manner.
[202] Dr. Vincent is a Professor in the Department of Oncology at the University of Western Ontario, which includes teaching about lung cancer diagnosis, prognosis, and treatment. Dr. Vincent is involved in clinical trials pertaining to lung cancer research, is a member of the International Association for the Study of Lung Cancer, and has acted as a journal reviewer for the Association’s publication, the Journal of Thoracic Oncology.
[203] I admitted Dr. Vincent to testify as an expert medical oncologist, to provide opinion evidence within the same permissible scope of testimony as that permitted for Dr. Fine: specifically, to provide opinion evidence on the issue of causation in the case of Mr. Levy and more specifically, to give opinion evidence as to what medical treatment(s) and/or outcome(s) Mr. Levy would likely have avoided if the diagnosis of his lung cancer had not been delayed as alleged.
(ii) Dr. Vincent’s Opinion Evidence on Causation
[204] Dr. Vincent’s review and presentation of Mr. Levy’s medical history was entirely consistent with the narrative provided by Dr. Fine, as was Dr. Vincent’s explanation of the TNM Classification and the stages of cancer staging. Like Dr. Fine, Dr. Vincent approached the issue of causation by seeking to compare Mr. Levy’s actual clinical situation at the time of his surgery on November 22, 2013 with his likely clinical situation had his lesion been detected on April 17, 2012, October 29, 2012, and June 25, 2013. This was intended to allow for an opinion regarding whether the stage and character of Mr. Levy’s cancer would have been different if detected earlier, and thereby whether his treatment, prognosis and outcome would have been different.
[205] Dr. Vincent testified that the starting point for his analysis was the measurement of the size of the tumour, which all experts agreed was an important component of the staging. Dr. Vincent measured the tumour on each of the x-rays in question by measuring their “longest diameter”, which he testified is the generally accepted standard in oncology. Dr. Vincent measured the tumours on the subject x-rays in time sequence, from the earliest to the latest. He used the same process as Dr. Schmidt, placing electronic calipers on the x-ray image.
[206] Dr. Vincent measured the tumour on the October 2011 x-ray as approximately 2.5 – 2.84 cm, and he measured the tumour size on the April 2012 x-ray as 4.02 cm. Dr. Vincent disagreed with Dr. Schmidt’s measurement of the tumour size in the October 2011 x-ray as 2.0 cm and in the April 2012 x-ray as 2.5 cm, for reasons that I will explain later.
[207] Dr. Vincent testified that had Mr. Levy’s tumour been discovered by Dr. Rubenstein on the April 2012 x-ray, Mr. Levy would have been sent for a CT scan, likely referred to a thoracic surgeon for an invasive biopsy and then surgery, just as occurred in October-November 2013 upon the detection of the tumour on October 8, 2013 and the eventual surgery on November 22, 2013. Dr. Vincent stated that time between detection of the tumour and surgery would have been the same in April 2012 as it was when the tumour was ultimately detected in October 2013: approximately 6-7 weeks. In Dr. Vincent’s opinion, if Mr. Levy’s tumour had been detected on April 17, 2012, the earliest reasonable date of surgery would have been late May or early June 2012. Dr. Vincent stated that by that date, the tumour would have grown further and would have been larger than the 4.02 cm length that Dr. Vincent measured on the April 2012 x-ray.
[208] Dr. Vincent assumed that a left thoracotomy and left lower lobectomy conducted in May-June 2012 would have revealed no lymph node involvement. On this assumption, Dr. Vincent testified that adjuvant chemotherapy would likely have been discussed with Mr. Levy, given the tumour size in excess of 4 cm.
[209] On his finding that Mr. Levy had a tumour of 4 cm on April 17, 2012, with no lymph node involvement, Dr. Vincent relied on a large-scale study of North American patients with resected stage 1B (no lymph node involvement) and stage 2 non-small cell lung cancer, referred to by Dr. Vincent as the “JBR-10 Study”. The data in this study was analysed and reported upon in two articles: a paper published in 2010 with lead author Dr. Charles Butts (the “Butts Article”),[^19] of which Dr. Vincent was a co-author; and an earlier paper published in 2005 with lead author Dr. T. Winton (the “Winton Article”)[^20] (collectively, the “JBR-10 Journal Articles”).
[210] Dr. Vincent referred to the Butts Article as relevant to his assessment of Mr. Levy’s survival prospects and assessed Mr. Levy’s survival analysis based on his classification of Mr. Levy as a stage 1B patient (tumour size 4 cm or above) with no lymph node involvement. Dr. Vincent testified that the Butts Article showed that patients with tumours 4 cm or higher would benefit from chemotherapy, even where there is no lymph node involvement. At a minimum, according to Dr. Vincent, a serious discussion would be conducted with a stage 1B patient such as Mr. Levy, in April 2012, about whether to have adjuvant chemotherapy.
[211] Dr. Vincent testified further that if Mr. Levy had a tumour of 4 cm or more with no lymph node involvement on April 17, 2012, and if he had surgery some 6-7 weeks later, followed with adjuvant chemotherapy, his risk of cancer recurrence was 39.4%. To calculate this percentage of recurrence, Dr. Vincent relied on the JBR-10 Journal Articles, which assessed whether adjuvant chemotherapy prolonged survival among patients with resected early-stage non-small cell lung cancer.
[212] Dr. Vincent’s computation of Mr. Levy’s risk of recurrence and death from cancer had the tumour been detected in April 2012 was based on calculating the incidence of cancer deaths. Dr. Vincent stated that the likelihood of death from cancer could be derived by known incidence of non-cancer deaths (16.6%) from the statistical 10-year cancer death rate (50%) producing a recurrence rate resulting in death of 33.4%. Dr. Vincent then added the recurrence rate of those whose cancer recurs without death (6%) and came to a “best estimate” that Mr. Levy’s risk of cancer recurrence in April 2012 was 39.4%.
[213] Dr. Vincent stated that on his measurement of the tumour on the October 2012 x-ray at 4.43 cm, Mr. Levy would have required surgery to remove the tumour and stated that this surgery would have occurred some six weeks later: specifically, mid-late November 2012. Dr. Vincent testified that the surgery would, again, have mirrored the surgery that Mr. Levy had on November 22, 2013, including that it would be completed some six weeks after diagnosis. Dr. Vincent assumed, again, that Mr. Levy would have had negative lymph node involvement, Mr. Levy would have been offered adjuvant chemotherapy, again based on the JBR-10 Study. Mr. Levy’s tumour stage would have been 1B.
[214] On these findings and assumptions, Dr. Vincent provided the opinion that Mr. Levy’s risk of cancer recurrence in October 2012 would have been the same as in April 2012: specifically, 39.4%, again “as a best estimate”. This conclusion was based on the same analysis as in relation to the April 2012 assessment and the same reliance on the JBR-10 Journal Articles and, within it, the JBR-10 Study data. Dr. Vincent testified that Mr. Levy’s risk of dying from cancer, presuming that it recurred, was approximately 24%, again, based on the JBR-10 Journal Articles.
[215] Finally, turning to the June 2013 x-ray, Dr. Vincent measured the lesion as 5.11 cm. Dr. Vincent testified that Mr. Levy would have required surgery about six weeks later, in mid-August 2013, that would have been almost identical to the actual surgery conducted on November 22, 2013. Dr. Vincent stated that Mr. Levy’s lymph nodes would likely have been involved at that time, as they were shown to be involved just three months later in November 2013. Dr. Vincent stated that Mr. Levy would have been diagnosed with a Stage 2 cancer with tumour size of 5.11 cm with primary lymph node involvement, and would have been offered, and encouraged to undertake adjuvant chemotherapy.
[216] Dr. Vincent calculated Mr. Levy’s risk of cancer recurrence with surgery conducted in August 2013 as 49.4%. This was again calculated using the same data and the JBR-10 Journal Articles as in relation to his previous computation of risk of cancer recurrence, but the risk increased from 39.4% to 49.4% based on two factors: first, with the passage of time the primary tumour had gotten bigger and had more opportunity to shed cells into the blood stream beyond the adjacent lymph nodes; and, second, the lymph nodes were by then involved meaning that the tumour had the capacity to spread. Dr. Vincent stated that this “upped the risk”.
[217] Dr. Vincent testified that Mr. Levy’s risk of cancer recurrence in November 2013 would not have been measurably different than it would have been in August 2013. Dr. Vincent conceded that based on the way that the data is aggregated, or “batched” in the JBR-10 Study he could not draw a distinction between the risk in August 2013 and November 2013. Dr. Vincent stated that Mr. Levy’s risk of dying from cancer at either time, presuming that it recurred, was about 47.2%, again, based on the same data and the JBR-10 Journal Articles.
[218] Based on these calculations, Dr. Vincent provided the opinion that Mr. Levy’s risk of cancer recurrence, and baseline risk of dying from lung cancer, increased from April 2012 to November 2013, but did not at any time increase to above 50%.
(c) Assessment of the Expert Opinion Evidence on Causation
[219] I found that Dr. Fine and Dr. Vincent were well-qualified, experienced, medical oncologists who provided opinions in an independent and unbiased manner. The Plaintiffs submitted that Dr. Vincent strayed into advocating for the Defendants’ position on causation. I do not accept this submission. I find that, like Dr. Fine, Dr. Vincent undertook his role as an expert in a sincere and diligent effort to assist the Court.
[220] Dr. Fine and Dr. Vincent agreed on many general principles in medical oncology pertaining to lung cancer patients, including the following:
(a) Tumour size is critically important for lung cancer prognosis, treatment, and outcomes.
(b) The TNM classification system and lung cancer staging are designed to group lung cancer patients, including for the purpose of prognosis, treatment and outcome.
(c) Smaller lung cancer tumours cause less risk to patients than larger tumours.
(d) Lung cancer tumours can grow if left untreated.
(e) Once detected, a lung cancer tumour must be treated in some manner, routinely by resection and, depending on its size and characteristics, adjuvant chemotherapy. No oncologist would recommend a “wait and see approach” upon detection of a tumour, such as that identifiable in the April 2012 x-ray, regardless of whether 2.5 cm or 4.02 cm in length.
(f) The reason for intervention upon detection of a lung cancer tumour is because the prognosis for a lung cancer patient worsens with increasing tumour growth, which gives rise to heightened risk for involvement of the lymph nodes and metastatic spread. The goal of identifying cancer early is to treat it before it spreads.
(g) Accurate assessment of lymph node involvement is important in treating lung cancers, due to its importance as a prognostic factor and because the risk of cancer recurrence increases with lymph node involvement.
(h) Systemic chemotherapy has well-recognized side effects and risks, including risk of death.
[221] Dr. Fine and Dr. Vincent expressed conflicting opinions on causation, but this was not so much a result of conflict in their analysis. Their divergent opinions were largely attributable to having launched their analyses from different starting points. Specifically, Dr. Fine’s causation analysis was based on Dr. Schmidt’s measurement of Mr. Levy’s tumour on the radiographs in question; particularly Dr. Schmidt’s finding that Mr. Levy’s tumour was 2.5 cm on April 17, 2012. Dr. Vincent’s causation analysis was based on his measurement of Mr. Levy’s tumour on April 17, 2012 as 4.02 cm.
[222] The result of this difference in analytical departure points was that Dr. Fine gave little specific opinion evidence on causation if I should find that Mr. Levy’s tumour measurement on April 17, 2012 was over 4 cm in length, other than his conclusory opinion that the causation would be even more clear in the case of an undetected tumour of 4.02 cm rather than 2.5 cm. And Dr. Vincent provided little opinion evidence on the issue of causation if I should find that Mr. Levy’s tumour was less than 3 cm in length on April 17, 2012. This analytical schism between Dr. Fine’s causation analysis and Dr. Vincent’s causation analysis meant that I was rarely required to comparatively weigh the evidence of these two experts as they seldom offered competing expert opinions within the same analytical silo.
[223] The evidence that required considerable assessment and weighing was the conflicting opinions of Dr. Vincent and Dr. Schmidt on the size of Mr. Levy’s tumour. As I will explain, I preferred the opinion evidence of Dr. Schmidt on tumour measurement over the opinion evidence of Dr. Vincent on all areas where they disagree.
(d) Three-Step Causation Analysis
[224] Concordant with the principles set out by the Court of Appeal in Sacks, at paras. 47 and 98-99, I will approach the issue of causation on a three-step analysis, beginning with a determination of “what likely happened in actuality”.
(i) Step #1: What Likely Happened in Actuality?
[225] As of December 2010, Mr. Levy’s kidney cancer had not recurred, but he required monitoring for the potential for cancer spread to his lungs. Dr. Harry Shulman reported that Mr. Levy’s December 2010 x-ray showed no evidence of disease. Dr. Schmidt testified that her review of the December 2010 x-ray concluded that Mr. Levy had no lesion in his lung at that time. I accept this opinion as unaffected by Dr. Schmidt’s admission in cross-examination that, at times, tumours are simply undetectable, and unchallenged. Dr. Mayo and Dr. Vincent had an opportunity to review the December 2010 x-ray on behalf of the Defendants and offered no opinion regarding the December 2010 x-ray. I thereby accept Dr. Schmidt’s evidence that the December 2010 x-ray was the last normal x-ray of Mr. Levy’s lungs.
[226] By October 11, 2011, Mr. Levy had lung cancer, which went undetected until October 8, 2013, when it was seen on a CT scan and reported as a “4.5 cm left lung mass predominantly in the superior aspect of the left lower lobe.”
[227] In determining what actually happened, it is necessary to make findings regarding the growth of Mr. Levy’s tumour in the period from its first appearance on a radiograph on October 11, 2011 to its detection on October 8, 2013. I will now do so.
a. The Tumour Measurements
[228] Dr. Schmidt and Dr. Vincent measured the lesion on Mr. Levy’s chest x-rays. These experts showed that the measurement of the lesion was conducted on compact discs (“CDs”) of the images as provided by the originating hospital, Sunnybrook. The CDs contain integrated measuring tools allowing the interpreting physician to define the distance to be measured on the lesion. Measuring the length of the lesion is done by placing or plotting an electronic caliper on the two extremes of the lesion’s longest diameter. The computer program then automatically and immediately provides an on-screen measurement.
[229] Dr. Schmidt and Dr. Vincent each followed this measurement procedure in measuring the length (superior inferior diameter) of Mr. Levy’s lesion on the various chest x-rays, Dr. Schmidt vertically and Dr. Vincent on a slight diagonal. They came to different measurements, as follows:
Date of Chest x-ray:
Dr. Schmidt:
Dr. Vincent:
October 11, 2011
2.0 cm
2.5-2.84 cm
April 17, 2012
2.5 cm
4.02 cm
October 29, 2012
4.0 cm
4.43 cm
June 25, 2013
4.5 cm
5.11 cm
[230] Dr. Schmidt and Dr. Vincent agreed that a chest x-ray is a “crude tool” for the measurement of a tumour. Both stated that their measurements have a “plus or minus” variance, which Dr. Vincent explained as “plus or minus 1 to 2 mm”. An issue was raised regarding whether it is even reliable, or meaningful, to purport to measure a lesion on a chest x-ray to the tenth of a millimeter, as was done by Dr. Vincent, who measured the lesion several times with slightly different measurements, commenting that this was not a “precision exercise”.
[231] Both experts agreed that upon detection of a lesion on a radiograph, a CT scan is routinely conducted to obtain a more precise definition of the lesion. Here, the “gold standard” CT scan measurement is not available for the lesion size in April 2012, October 2012, or June 2013 because the defendant radiologists did not identify the tumour.
[232] The measurement of the lesion is of central importance in the causation analysis, as it informs the TNM classification and lung cancer staging. The studies and journal articles that these experts relied on in providing opinions on the consequences arising from an untreated lung tumour were highly predicated on its size.
[233] The parties expended considerable trial time in demonstrating on-screen in this virtual trial, how Dr. Schmidt and Dr. Vincent used the integrated tool to measure the lesion on Mr. Levy’s chest x-rays. Dr. Vincent had not given notice in his four expert reports of the mechanics of his measurements and had not included in his reports any images with his caliper measurements. Dr. Schmidt wrote in her report of November 17, 2021: “[Dr. Vincent’s] supplementary report did not include any images with caliper measurements and I am not sure where exactly Dr. Vincent would have measured the tumour diameter.” No clarification, and no images were provided by Dr. Vincent in his further report dated January 31, 2022, delivered mere weeks before the start of trial. The Plaintiffs objected to him doing so at trial on the basis of Rule 53.03(3). This necessitated a ruling under Rule 53.08(1), wherein, for oral reasons rendered, I granted leave for Dr. Vincent to testify on the mechanics of his measurement, addressing any prejudice to the Plaintiffs by granting them leave to recall Dr. Schmidt as part of their reply evidence, to testify to the mechanics of Dr. Vincent’s measuring.
[234] From the demonstrations of measuring by Dr. Schmidt and Dr. Vincent, it was clear that the discrepancy in their measurements resulted from a difference in the positional placement of the electronic calipers on the x-ray image. After identifying the lesion, Dr. Vincent placed the lower caliper at a lower point on the x-ray image than did Dr. Schmidt and placed the upper caliper on a higher point on the x-ray than did Dr. Schmidt. Both measured the vertical length of the lesion (superior-inferior).
[235] Dr. Schmidt’s opinion was that Dr. Vincent was capturing normal anatomy with his tumour measurement, with the result that the size of the tumour was exaggerated. Dr. Schmidt explained that: (i) Dr. Vincent’s placement at the bottom of the tumour went beyond the confines of the tumour into the next vertebral spine body; (ii) Dr. Vincent’s placement at the top of the tumour included a pre-existing density in the adjacent vertebral body, consistent with sclerosis; and (iii) Dr. Vincent derived different measurements on the frontal view than the lateral view, and this should not have been possible. Dr. Schmidt measured the same length of the tumour on both the frontal and lateral views. Dr. Vincent denied that he was capturing normal anatomy, stating that Dr. Schmidt was missing part of the tumour in her measurement.
[236] I accept Dr. Schmidt’s measurement of Mr. Levy’s lesion on the chest x-rays over the measurements made by Dr. Vincent and prefer Dr. Schmidt’s evidence over that of Dr. Vincent in all areas where they diverge. I will explain why.
[237] First, Dr. Schmidt is a certified diagnostic radiologist. Dr. Vincent is not. Dr. Vincent admitted that he does not have the training to be a diagnostic radiologist. Trained diagnostic radiologists such as Dr. Schmidt routinely review a high volume of chest x-rays in a hospital setting, and report on them. A medical oncologist does not. Dr. Vincent admitted that it is the diagnostic radiologist’s job to “report on the chest x-ray”. Dr. Fine testified, and Dr. Vincent conceded, that in a multidisciplinary setting, potentially involving the collaboration and melding of skills of medical oncologists, radiation oncologists, pathologists, diagnostic radiologists and, in some cases, palliative care physicians, the diagnostic radiologist’s role includes “going over the image for the group”. I see no reason to disregard and displace this tacit acknowledgement of the role and expertise of the diagnostic radiologist.
[238] Second, Dr. Schmidt used a baseline in her analysis that Dr. Vincent disregarded. Dr. Schmidt began her analysis of tumour measurement and growth using Mr. Levy’s December 2010 x-ray: the last known normal chest x-ray. This allowed for an understanding of Mr. Levy’s normal anatomy unencumbered by the presence of a lesion. Dr. Vincent admitted that he did not look at the December 2010 x-ray as part of his analysis. This was material to my assessment of the contest between these experts regarding whether Dr. Vincent was including normal anatomy in his measurement of the lesion. I preferred Dr. Schmidt’s testimony over that of Dr. Vincent because it was grounded on a clearer understanding of Mr. Levy’s normal anatomy as it existed prior to the emergence of the lesion.
[239] Third, all experts agreed that a CT scan measurement is far more precise than a measurement taken on a chest x-ray. The experts agreed that a CT scan measurement is the “gold standard”. And, of course, all experts agreed that a measurement taken on the actual resected tumour is controlling. In this context, I have compared the measurements by Dr. Schmidt and Dr. Vincent on the June 2013 x-ray which is closest in time to the measurements of tumour length recorded on the October 8, 2013 CT scan (4.5 cm), the November 1, 2013 CT scan (4.8 cm) and the November 22, 2013 pathology report (5.0 cm). Dr. Schmidt’s measurement of the length of the lesion on the June 2013 x-ray of 4.5 cm, and her measurement of 5.0 cm on the October 16, 2013 x-ray, showed significant concordance with the subsequent CT scans and the identified pathology at the time of surgery. Dr. Vincent’s measurement on the June 2013 x-ray of 5.11 cm overstates the size of the lesion. Accepting their evidence that they conducted their measurements consistently on each x-ray that they studied, I find that Dr. Vincent over-stated the tumour size on each measurement and that Dr. Schmidt’s measurements were more reliable and accurate.
[240] Fourth, I was unconvinced by Dr. Vincent’s testimony that Dr. Schmidt’s measurements were “implausible but not impossible” when considered in the context of expected growth rates for a lung cancer tumour. Dr. Schmidt’s measurements resulted in the lesion growing by 25% in the 6 months from October 11, 2011 to April 17, 2012; then 60% in the 6 months from April 17, 2012 to October 29, 2012; then 12.5% in the 7 months from October 29, 2012 to June 25, 2013. Dr. Vincent testified that while spontaneous progression, no growth, irregular growth rates and acceleration of cancer growth rate can occur within the same patient, they are not common. Dr. Vincent was questioned on a journal article with lead author Dr. Stan Friberg, which examined the linearity of increases in tumour volume, and which commented that “exceptions to linear growth are common” although “most human malignancies grow at a slow and steady rate.”[^21]
[241] I accept Dr. Fine’s explanation that there were at least two factors that would account for the growth rate seen by Dr. Schmidt’s measurements. First, these measurements are of the length of the tumour and not volume. Dr. Fine stated that he assessed the tumour growth in volume and its “doubling time” was about 180 days. Second, Dr. Fine explained that tumour growth can be quite heterogeneous, and range between exponential growth (where it repeatedly doubles) and a growth rate known as a “Gompertzian growth curve”, in which growth slows as the tumour gets larger. Dr. Fine referred to a study by lead author Dr. Frank Detterbeck which explains the Gompertzian growth curve and studied data regarding tumour doubling times and testified that lung cancers involve a wide spectrum of growth rates.[^22]
[242] Fifth, by reason of the four grounds just explained, and on my overall assessment of their evidence, I found Dr. Schmidt to be a more reliable expert witness in tumour measurement than Dr. Vincent: even apart from consideration of specialty certification and experience in diagnostic radiology. Leave aside that Dr. Schmidt’s permissible scope of testimony specifically included the provision of opinions on measurements, and Dr. Vincent’s did not. Dr. Schmidt was a standard of care expert: not an expert on the issue of causation. This showed. Dr. Schmidt gave her opinions on measurements with no regard of their role in a causation analysis, providing insightful explanation of her analysis and methodology. Dr. Schmidt’s evidence on the measurements shown on the imaging was untarnished by skillful cross-examination.
[243] Considering these findings, it was unnecessary to decide an additional issue raised by the Plaintiffs. The Defendants tendered Dr. Mayo, a diagnostic radiologist, to testify on the issue of standard of care: like Dr. Schmidt. Unlike Dr. Schmidt, Dr. Mayo did not offer any opinions on the size of Mr. Levy’s lesion. The Plaintiffs questioned why Dr. Vincent, a medical oncologist tendered by the Defendants, provided opinions on the measurement of the lesion while Dr. Mayo, the diagnostic radiologist tendered by the Defendants, offered no opinion on measurement. The Plaintiffs urged that I draw an adverse inference that had Dr. Mayo testified on tumour size, he would have provided measurements that were unfavourable to the Defendants’ position on causation, relying on Lévesque v. Comeau et al., 1970 CanLII 4 (SCC), [1970] S.C.R. 1010, at pp. 1012-13.
[244] Based on the findings that I have just explained regarding my acceptance of Dr. Schmidt’s measurements, I do not find that it is necessary to draw an adverse inference. Had it been necessary for my analysis, however, I would have drawn an adverse inference that had Dr. Mayo testified on tumour size, his measurements would not have supported the Defendants’ position on causation, based on the principles set out in R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at paras. 45-48, and Robb Estate v. Canadian Red Cross Society (2001), 2001 CanLII 24138 (ON CA), 152 O.A.C. 60 (C.A.), at paras. 158, 161-162. Dr. Mayo was able to provide an opinion on measurement of the lesion by reason of his specialty certification, was tendered and admitted as an expert diagnostic radiologist to “provide such additional assistance as the court may reasonably require to determine a matter in issue” and yet was not called upon by the Defendants to provide an opinion on tumour measurement even though the parties placed this solidly in issue.
b. Mr. Levy’s Lung Cancer
[245] I thereby find that Mr. Levy’s tumour grew from 2.0 cm on October 11, 2011; to 2.5 cm on April 17, 2012; to 4.0 cm on October 29, 2012; to 4.5 cm on June 25, 2013. I accept Dr. Fine’s evidence, uncontested by Dr. Vincent, that on October 11, 2011, Mr. Levy’s tumour of 2 cm or less in greatest dimension with no nodal involvement would be classified as a primary “T1a” tumour, based on the 7th Ed. Classification,[^23] and that his non-small cell lung cancer was at stage 1A.
[246] The pathology report of November 22, 2013 established that by the time of his surgery, Mr. Levy’s tumour had grown to 5.0 cm in length, with the involvement of three lymph nodes. At that time, Mr. Levy’s tumour was classified as a primary “PT2a” with hilar lymph node involvement (“N1”), and that his non-small cell lung cancer was at Stage 2A. The evidence further established, and I thereby find that Mr. Levy’s cancer recurred on July 11, 2016. I saw no dispute that Mr. Levy now has incurable lung cancer with need for adjuvant chemotherapy.
[247] The evidence established, and I thereby find that Mr. Levy’s cancer went undetected from the first evidence of its emergence, on October 11, 2011, to October 8, 2013: almost two years. And I accept Dr. Vincent’s evidence that if Mr. Levy had a lesion in the lower lobe of his left lung on October 11, 2011 of at least 2.0 cm, that his lung cancer had been developing for some time before October 11, 2011. It was undisputed that earlier diagnosis is correlated with improved outcomes for patients, because as tumours grow, they are more likely to spread and increase the risk of recurrence.
[248] I conclude that, in actuality, the untreated growth of Mr. Levy’s tumour in the superior segment of his left lower lobe, from October 11, 2011 to detection on October 8, 2013, caused him to have incurable lung cancer, requiring the associated treatment, including adjuvant chemotherapy.
[249] I accept Mr. Levy’s evidence that the lung cancer caused him to experience psychological harm associated with the disease progression and resultant treatment. This included emotional reaction to his physical changes of water retention and weight gain; sleep disruption; fluid retention and weight gain; gastrointestinal disturbances; and chronic fatigue.
(ii) Step #2: What Would Likely Have Happened Had the Defendants not Breached the Standard of Care?
[250] As the second step in the causation analysis, I will now assess what would likely have happened if each of the Defendants had not breached the standard of care, beginning with Dr. Rubenstein.
a. Causation Analysis - Dr. Rubenstein – April 17, 2012
[251] I accept Dr. Schmidt’s opinion that Mr. Levy’s tumour was not detectable, with reasonable prudence and diligence, on the October 2011 x-ray. As explained, I accept that at that time the tumour size was 2.0 cm and would have been classified as a T1a tumour. I saw no dispute that in October 2011, there was likely no nodal involvement, and Mr. Levy’s cancer stage was stage 1A.
[252] I have found that a reasonably prudent and diligent radiologist would have detected Mr. Levy’s lesion on the April 2012 x-ray, and that at that time the tumour was 2.5 cm in length. I accept Dr. Fine’s evidence that it would have been classified as a T1b tumour, based on the then-applicable 7th Ed. Classification: “Tumor more than 2 cm but 3 cm or less in greatest dimension”. Both experts agree that Mr. Levy would then have undergone a CT scan to define and confirm the tumour size and location.
[253] In terms of the likelihood of nodal involvement in April 2012, I accept Dr. Fine’s uncontradicted opinion that Mr. Levy’s lymph nodes were likely not involved. Dr. Fine based this opinion on the Moulla Study, which found less than 25.5% likelihood of lymph node involvement in the case of a 2.5 cm tumour in a stage 1A cancer patient. This opinion was not diminished by cross-examination. I have noted that Dr. Vincent’s causation analysis assumed no nodal involvement in April 2012. I therefore find, on a balance of probabilities, that in April 2012, when Mr. Levy had a tumour of 2.5 cm, he had no nodal involvement.
[254] I accept Dr. Fine’s opinion that Mr. Levy’s lung cancer was likely at stage 1A in April 2012. This was not contested by Dr. Vincent. Dr. Fine and Dr. Vincent agreed that once identified, the tumour would have been removed by surgery.
[255] Accepting Dr. Vincent’s opinion that the earliest reasonable date of surgery would have been some 6-7 weeks after detection, I find that if Mr. Levy’s tumour had been identified by Dr. Rubenstein on April 17, 2012, Mr. Levy would have undergone a left thoracotomy and left lower lobectomy by late May or early June 2012: approximately 18 months earlier than he did on November 22, 2013.
[256] I accept Dr. Vincent’s evidence, tendered in relation to the removal of a tumour of 4 cm as opposed to 5 cm, that an earlier surgery to remove a smaller tumour would have resulted in the removal of less anatomy. Dr. Vincent stated that by November 2013, the tumour had grown into the left upper lobe, requiring that a “wedge” be removed from the upper lobe. I accept Dr. Vincent’s evidence that an earlier surgery would have resulted in Mr. Levy losing the bulk of the lower lobe that was removed in November 2013, but not the area removed from the upper lobe.
[257] Dr. Fine testified that if Mr. Levy’s tumour had been diagnosed in April 2012 when it was T1b (2.5 cm) and his cancer classified as stage 1A, adjuvant chemotherapy would not have been recommended. Dr. Fine relied on the Adjuvant Therapy Guidelines in rendering this opinion.[^24] Dr. Fine also founded this opinion on the finding by the Burdett Article that adjuvant chemotherapy was not recommended for stage 1A patients.
[258] In his expert report of June 3, 2021, Dr. Vincent stated an identical opinion: “In the event the size was [less than] 4.0 cm (AND the nodes negative) Levy would not have been offered adjuvant chemotherapy, but I think this is unlikely.” In his three further expert reports, Dr. Vincent did not change this written opinion. He did not write in any report that adjuvant chemotherapy would have been offered, discussed, or recommended to a patient with a tumour of less than 4 cm.
[259] However, at trial, Dr. Vincent testified that “there would have been a discussion” of the benefits and risks of adjuvant chemotherapy with Mr. Levy even if his tumour was less than 4 cm. I do not accept this opinion, as it is inconsistent with Dr. Vincent’s earlier-stated opinion. I prefer the evidence of Dr. Fine that adjuvant chemotherapy would not have been recommended to Mr. Levy had his tumour been detected at 2.5 cm, and had his cancer then been diagnosed.
[260] Chemotherapy has well-recognized side effects and risks, including risk of death. Dr. Vincent agreed that the Winton Article listed 19 recognized risks of chemotherapy.[^25] I am satisfied, on a balance of probabilities, that Mr. Levy would not have been required to endure these risks had his cancer been diagnosed in April 2012.
[261] Apart from the discrete debate on the necessity for adjuvant chemotherapy for a stage 1A cancer patient with a category T1b tumour, Dr. Vincent did not present any opinion evidence in challenge of Dr. Fine’s opinion evidence regarding the consequences of Dr. Rubenstein’s failure to detect and report on a T1b tumour measuring 2.5 cm on April 17, 2012. The Defendants did not tender any expert opinion evidence to challenge Dr. Fine’s opinion that had Mr. Levy’s tumour been detected in April 2012 and found to be less than 3 cm in length, Mr. Levy’s outcome would have been better than that realized upon detection in October 2013, both regarding the need for adjuvant chemotherapy and the potential for recurrence. Indeed, the principal research studies relied on by Dr. Vincent in forming his opinions on causation, the JBR-10 Journal Articles, were not applicable to Mr. Levy’s circumstances in April 2012. Dr. Vincent admitted that the JBR-10 Study did not include stage 1A patients.
[262] Dr. Fine’s opinion that Mr. Levy’s risk of lung cancer recurrence on April 17, 2012 was likely less than 50% was based on the Gadgeel Article, the Zhang Study, the Moulla Study and the Asamura Study. This evidence was unchallenged by Dr. Vincent and uncontradicted by any other evidence. Dr. Fine’s opinions on whether Dr. Rubenstein’s failure to detect Mr. Levy’s tumour on April 17, 2012 was a cause of his injuries were shown to be founded in his experience, training and research, and on general principles of diagnosis, prognosis, treatment and outcome of lung cancer patients on which I saw no debate.
[263] The thorough cross-examination of Dr. Fine suggested that the studies and data on which he relied did not support an opinion, with scientific certainty, regarding what would have happened to Mr. Levy had his lung cancer been detected and diagnosed in April 2012. However, that is not the legal standard. Legal causation need not be determined with scientific precision, but rather, as the Supreme Court has instructed, is “a practical question of fact which can best be answered by ordinary common sense”: Snell, at p. 328, 330-331.
[264] I accept Dr. Fine’s opinion that if Mr. Levy’s lesion had been detected by Dr. Rubenstein on the April 2012 x-ray, it would have been categorized as a primary T1b tumour (2.5 cm) with no regional lymph node involvement (N0) and no distant metastasis (M0), and his cancer would have been classified as Stage 1A. Upon detection, diagnosis and resection on November 22, 2013, Mr. Levy’s tumour was found to have grown to a T2a tumour (5.0 cm at longest dimension), with lymph node involvement (N1) and no distant metastasis (M0), and his cancer was classified stage 2A.
[265] I am satisfied that the Plaintiffs have established, on a balance of probabilities, that “but for” Dr. Rubenstein’s breach of standard of care on April 17, 2012, Mr. Levy would not have undergone adjuvant chemotherapy and would not have had a recurrence of his lung cancer with associated treatment.
[266] Last, I am satisfied, on Mr. Levy’s testimony and Dr. Fine’s opinion evidence, that Mr. Levy suffered pain and suffering, including psychological harm, associated with the disease progression and resulting treatment. I accept, on a balance of probabilities, that the health issues that Mr. Levy has described, including emotional reactions to the physical changes caused by his cancer, sleep disruption, fluid retention and weight gain, gastrointestinal disturbances, and chronic fatigue were caused by his need for adjuvant chemotherapy and the recurrence of his lung cancer and associated treatment. This psychological harm supports an award of non-pecuniary damages, as held in other medical malpractice cases involving delayed diagnosis where causation is established: Stell v. Obedkoff, [2000] O.J. No. 4011 (S.C.); Roshan-Moniri v. Dr. Herbert Y.C. Chang Inc. (Tri-City Family Practice), 2022 BCSC 204.
[267] I do not accept, however, that Mr. Levy has established that he sustained psychological harm arising from the delay in diagnosis of his lung cancer, alone. Mr. Levy’s grief and anger at the lung cancer that he has endured is understandable. However, I accept the Defendants’ submission that Mr. Levy’s evidence did not differentiate or distinguish between psychological distress that he was going to experience with disease progression and resulting treatment as distinct from psychological distress resulting only from a delay in diagnosis. I thereby find that the psychological distress that Mr. Levy was going to experience associated with disease progression and resulting treatment was established and is compensable, but a separate psychological harm resulting only from a delay in diagnosis was not established.
b. Causation Analysis - Dr. Zavodni – October 29, 2013
[268] I have accepted Dr. Schmidt’s opinion that the lesion in the October 2012 x-ray was 4.0 cm in length. The question then is whether the Plaintiffs established on a balance of probabilities (more likely than not) that Mr. Levy’s outcome could have been avoided if Dr. Zavodni had detected and reported on the lesion in October 2012.
[269] Dr. Fine provided little meaningful opinion evidence specific to the impact of Dr. Zavodni’s failure to identify the lesion on October 29, 2012. And it is the Plaintiffs’ burden to prove causation. Dr. Vincent testified to his opinion regarding causation arising from Dr. Zavodni’s failure to detect the lesion on the October 2012 x-ray, but did so with reference to a tumour of 4.43 cm. Dr. Vincent’s evidence that Mr. Levy would have needed adjuvant chemotherapy and had a risk of recurrence in October 2012 – premised on a tumour size of 4.43 cm – stands largely unchallenged by Dr. Fine and unaffected by cross-examination.
[270] The parties’ debate regarding causation arising from Dr. Rubenstein’s review of the April 2012 x-ray, premised on the Defendants’ position that the tumour was at that time 4.02 cm, along with Dr. Vincent’s evidence in relation to the consequences of a tumour of 4.43 cm, provided opinion evidence with which to assess the issue of causation arising from Dr. Zavodni’s failure to detect and report on the 4.0 cm lesion that was present on October 29, 2012.
[271] I saw no dispute that, at 4.0 cm, the tumour would be classified as a T2a tumour, pursuant to either the 7th Ed. Classification[^26] or the 8th. Ed. Classification.[^27] Dr. Vincent testified that if Mr. Levy’s tumour was more than 4 cm in length with negative nodal involvement it would be classified as Stage 1B.
[272] Dr. Fine and Dr. Vincent agreed that surgery would have been required upon detection of a lesion of 4 cm, and that it would have been the same surgery as eventually conducted on November 22, 2013: a left thoracotomy and left lower lobectomy. In accordance with Dr. Vincent’s evidence that the earliest reasonable date of surgery would have been some 6-7 weeks after detection, Mr. Levy’s surgery would have taken place in December 2012. I accept this evidence and find that had the tumour been detected by Dr. Zavodni on October 29, 2012, it would have been resected in December 2012. I also find that as the tumour continued to grow after October 29, 2012, increasing to 4.5 cm by June 25, 2013, that Mr. Levy’s tumour would have been “4 cm or more” upon resection in December 2012.
[273] In terms of lymph node involvement, both Dr. Fine and Dr. Vincent assumed for their analysis that there was no lymph node involvement in October 2012. However, Dr. Fine admitted in cross-examination, that based on the conclusions reached in the Moulla Study, there is a 51% chance of lymph node involvement where the tumour is larger than 3 cm. Dr. Fine further accepted that lymph node involvement is an independent – standalone – reason for adjuvant chemotherapy. The JBR-10 Study data showed a benefit for adjuvant chemotherapy where lymph nodes are involved.
[274] Both Dr. Fine and Dr. Vincent testified that if the tumour was found to be 4 cm in its greatest dimension, and lymph nodes were not involved, there would have been a discussion with Mr. Levy about the risks and benefits of adjuvant chemotherapy. The Plaintiffs did not tender any evidence that Mr. Levy, or a reasonable patient, would have declined adjuvant chemotherapy upon detection of a tumour of 4 cm in October 2012.
[275] The JBR-10 Study data relied on by Dr. Vincent showed a benefit to adjuvant chemotherapy where the tumour size is equal to or greater than 4.0 cm. Dr. Vincent testified that the Butts Article supported this opinion. The Adjuvant Therapy Guidelines (2007) state that adjuvant chemotherapy is not recommended for routine use in stage 1B cancer patients. However, Dr. Vincent explained that the Adjuvant Therapy Guidelines (2007) state that the “trial reported a significant benefit in terms of disease-free survival and found significant overall and disease-free survival advantages” in use of adjuvant chemotherapy in stage 1B cancer patients.
[276] The Adjuvant Therapy Guidelines (2017) recommend that there be a post-operative multi-modality evaluation, including a consultation with a medical oncologist, to discuss the risks and benefits of adjuvant chemotherapy with each stage 1B cancer patient. The multi-modal discussion that would have taken place following the surgery in December 2012 would have likely taken into consideration that Mr. Levy’s tumour had grown 60% in length in the six months that had elapsed from the April 2012 x-ray.
[277] Dr. Vincent attempted to mathematize Mr. Levy’s risk of cancer recurrence and risk of death arising from Dr. Rubenstein’s failure to detect and report on the April 2012 tumour, which Dr. Vincent measured at 4.02 cm. Dr. Vincent calculated that Mr. Levy’s risk of recurrence with a tumour of 4.02 cm with no lymph node involvement was 39.4%, compared to 49.4% on the actual date of surgery. Dr. Vincent calculated that Mr. Levy’s risk of dying from cancer if he was diagnosed in April 2012 with a 4.02 cm tumour was 24%, and his risk at the actual date of surgery was 47.21%. Based on these calculations, Dr. Vincent provided the opinion that Mr. Levy’s risk of cancer recurring, and his risk of dying from cancer, resulting from a tumour of 4.02 cm with no lymph node involvement never shifted into the realm of “likelihood”: that is, “more likely than not”.
[278] The main point of cross-examination on this evidence was that the studies relied on by Dr. Vincent in his attempts to mathematize Mr. Levy’s risk of cancer recurrence and risk of death in stage 1B with a T2a tumour – the JBR-10 Journal Articles – batched stage 1B patients with stage 2 patients. The Plaintiffs submitted that this caused the recurrence to be arithmetically higher than it would have been in a study of only stage 1B patients.
[279] I accept that the assumption made by Dr. Vincent that stage 1B patients may be considered together with stage 2 patients in a survival assessment undermines Dr. Vincent’s attempts to mathematize the risk of recurrence and the risk of death. I also find Dr. Vincent’s attempts to mathematize the risks, despite the limitations on the statistical data available to him, runs afoul of the Supreme Court’s warning that statistical evidence must be approached with caution: Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 74. In Laferrière v. Lawson, 1991 CanLII 87 (SCC), [1991] 1 S.C.R. 541, at p. 607, the Supreme Court instructed that: “The judge’s duty is to assess the damage suffered by a particular patient, not to remain paralysed by statistical abstraction.”
[280] Dr. Vincent fairly stated that risk recurrence is “challenging to mathematize” and described his statistical calculation and mathematization as only a “best estimate”. He conceded that this analysis showed that Mr. Levy was harmed by a delayed diagnosis but, in his opinion, the “best information” did not elevate the risk to a level that resulted in the delay being a cause of Mr. Levy’s outcome.
[281] I find, on a balance of probabilities, that if Mr. Levy’s tumour had been detected by Dr. Zavodni on October 29, 2012, it would have been categorized as a primary T2a tumour (4.0 cm at the longest dimension). With no lymph node involvement (N0) and no distant metastasis (M0), his cancer would have been classified as stage 1B. I find that Mr. Levy’s tumour would have been diagnosed with a CT scan and surgically resected in December 2012. I accept Dr. Vincent’s opinion that there would have been a discussion with Mr. Levy about adjuvant chemotherapy. And I accept Dr. Vincent’s opinion evidence that Mr. Levy’s risk of cancer recurrence was likely not increased by reason of a tumour of 4.0 cm or more (with no lymph node involvement) going undetected in October 2012.
[282] On the medical evidence presented by Dr. Vincent largely uncontested by Dr. Fine and unaffected by cross-examination, I find, on a balance of probabilities, that Mr. Levy would not have avoided adjuvant chemotherapy and would not have avoided a recurrence of his lung cancer even if his lung cancer had been detected and diagnosed on, or soon after, October 29, 2012.
[283] In my view, the Plaintiffs did not discharge their burden of establishing, on a balance of probabilities, that “but for” Dr. Zavodni’s breach of standard of care on October 29, 2012, Mr. Levy would not have undergone adjuvant chemotherapy, would not have had a recurrence of his cancer with associated treatment and would not have sustained psychological harm resulting from disease progression. Rather, I am satisfied, on a balance of probabilities, that Mr. Levy would have sustained these outcomes regardless of the breach of standard of care of Dr. Zavodni.
c. Causation Analysis – Dr. Rubenstein – June 25, 2013
[284] By reason of my determination that Dr. Rubenstein’s breach of standard of care in reviewing and reporting on the April 2012 x-ray was a “but for” cause of Mr. Levy’s outcome, by resulting in the need for adjuvant chemotherapy, the recurrence of his lung cancer, and psychological harm associated with the lung cancer itself and required treatment, it is not necessary to determine whether Dr. Rubenstein’s breach of standard of care in regard to the June 25, 2013 x-ray also caused or contributed to Mr. Levy’s outcome.
[285] Had it been necessary to determine this causation issue, I would have found that Dr. Rubenstein’s breach of standard of care in relation to the June 2013 x-ray was not a cause of Mr. Levy’s injuries, applying the same reasoning as explained on the issue of causation relative to Dr. Zavodni’s review and reporting of the October 2012 x-ray.
[286] The breach of standard of care by Dr. Rubenstein in relation to the June 2013 x-ray was just over three months before the detection of the tumour on October 8, 2013. I accept Dr. Vincent’s evidence that Mr. Levy’s lymph nodes would “very likely” have been involved by June 2013. Applying Dr. Vincent’s evidence that the earliest surgery would have been 6-7 weeks from detection, Mr. Levy’s surgery would have taken place in August 2013. Applying Dr. Schmidt’s measurements (4.5 cm on June 25, 2013; 5.0 cm on October 16, 2013), Mr. Levy’s tumour would likely have been more than 4.5 cm on the earliest reasonable date of surgery.
[287] Dr. Fine did not provide any meaningful evidence in support of establishing causation in relation to the breach of standard of care in June 2013. Even application of the general principles agreed upon by the parties, including that delay in treatment leads to worsening prognosis and worsening outcomes, does not support finding causation where the delay is just over three months between the breach of standard of care (June 25, 2013) and detection (October 8, 2013). The Plaintiffs did not provide sufficient evidence to discharge their burden of proving that the breach of standard of care by Dr. Rubenstein was a “but for” cause of Mr. Levy’s injuries.
(e) Conclusions - Causation
[288] The clinical interpretation offered by the causation experts was limited to the modality of x-rays as opposed to the more exacting detail afforded by a CT scan in detecting and mapping lesions. Working with this medium – referred to as a “crude tool” – necessitated a lengthy and litigious process to determine tumour size and characteristic, and thereby lung cancer staging.
[289] But, as explained, the determination of legal causation does not require scientific certainty, but rather the standard of a balance of probabilities, recognizing that scientific causation is different from factual causation: Benhaim, at para. 47: “[T]he law requires proof of causation only on a balance of probabilities, whereas scientific or medical experts often require a high degree of certainty before drawing conclusions on causation. Simply put, scientific and factual causation for legal purposes are two different things.” Factual causation for legal purposes requires a robust and common sense application of the facts to the “but for” test of causation: Clements, at para. 9; Benhaim, at para. 54. And importantly, the burden of proving “but for” causation is on the Plaintiffs, throughout: Ediger, at para. 28. Fontonelle v. Canada (Attorney General), 2018 ONCA 475, at para. 23. Not that the whole of Mr. Levy’s injury was caused by the Defendant’s negligence, but that the Defendant’s negligence “contributed, in some not insubstantial or immaterial way, to the injury that the Plaintiff sustained”: Uribe, at para. 35, citing Donleavy, at para. 72.
[290] There was no disagreement that as Mr. Levy’s tumour grew, as his lung cancer progressed, his prognosis worsened. The expert medical evidence showed that there is a time in which lung cancer becomes less capable of being cured, where the corrective benefit of surgery lessens, and where the necessity for adjuvant chemotherapy heightens. The debate was whether the Plaintiffs established that “but for” the failure by Dr. Rubenstein and Dr. Zavodni to detect and report on Mr. Levy’s lesion, and the resultant delay in diagnosis, Mr. Levy required medical treatments and sustained outcomes that would otherwise have been avoided, in three ways: requiring adjuvant chemotherapy; having a recurrence of his lung cancer; and suffering psychological harm associated with disease progression and resulting treatment.
[291] I conclude, on a balance of probabilities, on the evidence that I have accepted, that “but for” Dr. Rubenstein’s breach of standard of care on April 17, 2012, Mr. Levy would not have undergone adjuvant chemotherapy, would not have had a recurrence of his lung cancer with associated treatment, and would not have sustained psychological harm arising from the disease progression and resulting treatment.
[292] I conclude, on a balance of probabilities, on the evidence that I have accepted, that Dr. Zavodni’s breach of standard of care was not a cause of Mr. Levy’s outcome. Specifically, Dr. Zavodni’s breach was not a “but for” cause of Mr. Levy being required to undergo adjuvant chemotherapy, or his cancer recurrence with associated treatment and was not cause of Mr. Levy’s psychological harm arising from disease progression and resulting treatment.
[293] Considering my findings in relation to Dr. Rubenstein’s breach of standard of care and “but for” causation in relation to the April 2012 x-rays, and his resulting liability to the Plaintiffs for the damages agreed upon, it is not necessary to determine the “but for” causation in relation to Dr. Rubenstein’s breach of standard of care on June 25, 2013.
[294] And considering my findings, it is not necessary to consider step #3 of the three-part test set out in Sacks. Since there is only one negligent defendant whose breach of standard of care is found to have caused or contributed to the Plaintiffs’ injuries, there is no allocation of fault.
V. ALTERNATIVE CLAIM FOR PSYCHOLOGICAL HARM CAUSED BY THE DELAY IN DIAGNOSIS
[295] In the event of a determination that the Plaintiffs failed to establish that the breach of standard of care by Dr. Rubenstein or Dr. Zavodni caused or contributed to Mr. Levy’s outcome, the Plaintiffs sought a finding that they were entitled to an alternative relief. Specifically, the Plaintiffs submitted that regardless of whether the delay in diagnosis resulted in a worse outcome for Mr. Levy, the knowledge that his cancer was missed on three chest x-rays has itself caused psychological harm to Mr. Levy.
[296] The Plaintiffs relied on the Supreme Court decision in Laferrière, in which the Court awarded $10,000 for psychological damages and $7,500 in recognition of diminished quality of life, despite finding that the defendant physician’s actions did not cause the plaintiff’s death. The Court explained, at pp. 610-11, the “exceptional nature of this case” in which the plaintiff established: (i) for four years after her surgery, the plaintiff experienced “horrible rhythms of her disease and the regular and seemingly ineffectual treatments and medications in the knowledge that things might have been different had she known earlier and been treated earlier”; (ii) the pain that she was experiencing was all the more distressing given her knowledge that she could have been treated earlier; and (iii) as a person diligent about the protection of her health and compliant with medical recommendations, she was denied an opportunity to care for herself through the delayed diagnosis.
[297] On the authority of Laferrière, the separate psychological harm claimed by Mr. Levy resulting only from a delay in diagnosis was capable of being pursued against Dr. Zavodni even with a determination that the Plaintiffs failed to establish that Mr. Levy’s outcome was caused or contributed to by Dr. Zavodni. However, the claim had to be established in the evidence, and particularly the evidence of Mr. Levy. As I explained earlier, in my determination, it was not.
[298] Mr. Levy provided evidence, which I accept, that established that he suffered psychological harm associated with the progression of his lung cancer and resulting treatment. This psychological harm supports an award of non-pecuniary damages against Dr. Rubenstein as part of the outcomes caused by the delay in diagnosis that arose from his breach of standard of care. However, as explained earlier, the evidence that established the psychological harm associated with the disease progression and resulting treatment is not, in my assessment, substantively different, or independent or distinguishable from the evidence that is said to support a claim for psychological harm due to delay in diagnosis.
[299] The separate psychological harm claimed by Mr. Levy resulting only from a delay in diagnosis was not established against either Dr. Rubenstein or Dr. Zavodni.
VI. SUMMARY OF CONCLUSIONS
[300] With reference to the issues raised by this trial, as set out in paragraph 31 of these Reasons for Judgment, I have determined as follows:
It was a breach of standard of care for Dr. Rubenstein not to detect the lesion on the April 17, 2012 chest x-ray and the June 25, 2013 chest x-ray.
It was a breach of standard of care for Dr. Zavodni not to detect the lesion on the October 29, 2012 chest x-ray.
On a “but for” analysis, the breach of standard of care by Dr. Rubenstein in relation to the April 17, 2012 chest x-ray caused or contributed to Mr. Levy’s outcome, by causing Mr. Levy to:
(a) require adjuvant chemotherapy;
(b) have a recurrence of his lung cancer and the associated treatment; and
(c) suffer psychological harm associated with the disease progression and resulting treatment, but not from delay in diagnosis of his lung cancer.
On a “but for” analysis, the breach of standard of care by Dr. Zavodni in relation to the October 29, 2012 chest x-ray did not cause or contribute to Mr. Levy’s outcome. Further, the breach of standard of care by Dr. Zavodni did not cause Mr. Levy to sustain psychological harm from delay in diagnosis of his lung cancer.
Considering the conclusion set out in paragraph 3, immediately above, it is unnecessary to determine whether, on a “but for” analysis, the breach of standard of care by Dr. Rubenstein in relation to the June 25, 2013 x-ray caused or contributed to Mr. Levy’s outcome.
VII. DISPOSITION
[301] Dr. Rubenstein is liable to the Plaintiffs, in the amount of the agreed upon damages, based on breach of standard of care resulting in Mr. Levy requiring adjuvant chemotherapy, recurrence of his lung cancer and psychological harm associated with the disease progression and required treatment. This action is dismissed as against Dr. Zavodni.
VIII. COSTS
[302] I encourage the parties to discuss and agree on the issue of costs. If the parties are not able to agree on the issue of costs, the parties may, by September 7, 2022, request a chambers appointment, by email to the Toronto Chambers Appointment Coordinator, with a copy to my judicial assistant, for the purpose of implementing a timetable for the delivery of written submissions on costs. If no party requests the scheduling of a case conference by September 7, 2022, I will deem the issue of costs to have been settled.
A.A. Sanfilippo J.
Released: August 10, 2022
[^1]: Tumour was also spelled “tumor” in certain of the medical journals, records and reports tendered in evidence. At times, the two spellings were used interchangeably by the same author. The Sunnybrook records contain both spellings, although “tumour” is dominant. I have used the spelling “tumour” in these Reasons, except when quoting from a source that used “tumor”, without distinction in the different spelling.
[^2]: The defendant radiologists and the medical experts referred to the abnormality in the superior aspect of the lower lobe of Mr. Levy’s left lung as the “lesion”, and at times as the “nodule”, the “mass” and the “tumour”.
[^3]: Stuart S. Sagel, M.D. et al., “Efficacy of Routine Screening and Lateral Chest Radiographs in a Hospital-Based Population” (1974) 291:19 New England Journal of Medicine 1001.
[^4]: Sagel Study, supra note 2, at p. 1003: “Most authors advocate that the lateral projection be an integral part of the roentgenographic examination of the chest. The basis for this emphasis is that two projections are essential in providing a true three-dimensional evaluation of the thorax, and that many lesions may not be visible on a single frontal view. … Lesions sometimes hidden on the frontal projection include small mediastinal masses, abnormalities of the sternum and vertebral column, small pleural effusions, and pulmonary lesions adjacent to the hila or situated anteriorly behind the sternum or posteriorly behind the heart or domes of the hemidiaphragms.” [Emphasis added.]
[^5]: Shirish Gadgeel et al., “Updated Analysis from KEYNOTE-189: Pemrolizumab or Placebo Plus Pemetrexed and Platinum for Previously Untreated Metastatic Nonsquamous Non-Mall-Cell Lung Cancer” (2020) 38 Journal of Clinical Oncology 1505.
[^6]: “T2a: Tumor more than 3 cm but 5 cm or less in greatest dimension.”
[^7]: “N1: Metastasis in ipsilateral bronchial and/or ipsilateral hilar lymph nodes, including involvement by direct extension.”
[^8]: “M0: No distant metastasis.”
[^9]: “T2b: Tumor more than 4 cm but not more than 5 cm in greatest dimension.”
[^10]: Specifically, the 7th Ed. Classification designated a “[t]umor more than 3 cm but 5 cm or less in greatest dimension” as T2a, whereas the 8th Ed. Classification subdivided this into two categories: a “tumor more than 3 cm not more than 4 cm in greatest dimension” as T2a; and a “tumor more than 4 cm but not more than 5 cm in greatest dimension” as T2b.
[^11]: The 7th Ed. Classification and the 8th Ed. Classification both categorized “[t]umors 3 cm or less in greatest dimension, surrounded by lung or visceral pleura, without bronchoscopic evidence of invasion more proximal than the lobar bronchus” as “T1”.
[^12]: 7th Ed. Classification: “T1b: Tumor more than 2 cm but 3 cm or less in greatest dimension.” 8th Ed. Classification: “T1c: Tumor more than 2 cm but not more than 3 cm in greatest dimension.”
[^13]: Jianjun Zhang et al., “Relationship between tumor size and survival in non-small cell lung cancer (NSCLC): an analysis of the Surveillance, Epidemiology, and End Results (SEER) registry” (2015) 10:4 Journal of Thoracic Oncology 682.
[^14]: Yusuf Moulla et al., “Predictive risk factors for lymph node metastasis in patients with resected non-small cell lung cancer: a case control study” (2019) 14 Journal of Cardiothoracic Surgery 11, https://doi.org/10.1186/s13019-019-0831-0.
[^15]: Hisao Asamura et al., “The International Association for the Study of Lung Cancer, Lung Cancer Staging Project, Proposals for the Revision of the N Descriptors in the Forthcoming 8th Edition of the TNM Classification for Lung Cancer” (2015) 10:12 Journal of Thoracic Oncology 1675.
[^16]: Peter Goldstraw et al., “The IASLC Lung Cancer Staging Project: Proposals for the Revision of the TNM Stage Groupings in the Forthcoming (Seventh) Edition of the TNM Classification of Malignant Tumours” (2017) 2:8 Journal of Thoracic Oncology 706.
[^17]: Dr. Fine referred to both the Adjuvant Therapy Guidelines published in 2017 and in 2007, stating that there were no changes in the recommendations set out in the Guidelines that were material to his opinions regarding Mr. Levy’s need for adjuvant chemotherapy: Mark G. Kris et al., “Adjuvant Systemic Therapy and Adjuvant Radiation Therapy for Stage I to IIIA Completely Resected Non–Small-Cell Lung Cancers: American Society of Clinical Oncology/Cancer Care Ontario Clinical Practice Guideline Update” (2017) 35 Journal of Clinical Oncology 1 (the “Adjuvant Therapy Guidelines (2017)”); Katherine M.W. Pisters, “Cancer Care Ontario and American Society of Clinical Oncology Adjuvant Chemotherapy and Adjuvant Radiation Therapy for Stages I-IIIA Resectable Non–Small-Cell Lung Cancer Guideline” (2007) 25 Journal of Clinical Oncology 5506 (the “Adjuvant Therapy Guidelines (2007)”).
[^18]: S. Burdett et al., “Adjuvant chemotherapy for resected early-stage non-small cell lung cancer” (2015) 3 Cochrane Database of Systematic Reviews, Art. No.: CD011430.
[^19]: Charles A. Butts et al., “Randomized Phase III Trial of Vinorelbine Plus Cisplatin Compared With Observation in Completely Resected Stage IB and II Non–Small-Cell Lung Cancer: Updated Survival Analysis of JBR-10” (2008) 29 Journal of Clinical Oncology 29.
[^20]: T. Winton et al., “Vinorelbine Plus Cisplatin vs. Observation in Resected Non-Small-Cell Lung Cancer” (2005) 352 New England Journal of Medicine 2589.
[^21]: Dr. Sten Friberg, “On the Growth Rates of Human Malignant Tumors: Implications for Medical Decision Making” (1997) 65 Journal of Surgical Oncology 284, at p. 288.
[^22]: Frank C. Detterbeck, “Turning Gray: The Natural History of Lung Cancer Over Time” (2008) 3 Journal of Thoracic Oncology 781, Gompertzian growth curve at Figure 6.
[^23]: 7th Ed. Classification: “T1a: Tumor 2 cm or less in greatest dimension.” 8th Ed. Classification: “T1b: Tumor more than 1 cm but not more than 2 cm in greatest dimension.”
[^24]: Adjuvant Therapy Guidelines (2017), “Recommendation 1.1: Stage 1A: Adjuvant chemotherapy is not recommended.” Adjuvant Therapy Guidelines (2007): Table 1: “1A. Adjuvant chemotherapy is not recommended.”
[^25]: Winton Article, supra note 18, at Table 3, listing: fatigue; anorexia; alopecia; local toxicity; diarrhea; nausea; vomiting; constipation; infection; febrile neutropenia; hearing loss; sensory neuropathy; motor neuropathy; dyspnea; thrombocytopenia; anemia; neutropenia; ALT elevation; bilirubin elevation; creatinine elevation.
[^26]: 7th Ed. Classification: “T2a – Tumor more than 3 cm but 5 cm or less in greatest dimension.”
[^27]: 8th Ed. Classification: “T2a – Tumor more than 3 cm but not more than 4 cm in greatest dimension.”