Court File and Parties

OSHAWA COURT FILE NO.: CV-14-00090463 DATE: 20230616

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Zorida Chrysostom, Plaintiff

– and –

Dr. Jacob Kempenaar, Dr. Khalid Fadeel, Dr. Gary Mann, and Rouge Valley Health System, Defendants

COUNSEL: Dairn Shane and Mark Freeman, for the Plaintiff Nina Bombier, Andrea Wheeler and Mari Galloway, for the Defendants, Dr. Jacob Kempenaar and Dr. Gary Mann

HEARD: December 5-9, 2022

Reasons for Judgment

MCKELVEY J.:

Introduction

[1] In the early morning of December 18, 2012, Ms. Zorida Chrysostom attended at the Rouge Valley Ajax and Pickering Hospital emergency department. This hospital was part of the Rough Valley Health System at the relevant time. Her chief complaint was leg pain. She reported that she had been diagnosed with sciatica two weeks previously and that there was now increased pain and numbness which had started the previous night.

[2] She was seen and assessed in the emergency department initially by Dr. Gary Mann. Dr. Mann made a tentative diagnosis of left lower lumbar pain with sciatica.

[3] Later in the early afternoon, Ms. Chrysostom was seen and assessed by Dr. Jacob Kempenaar. Dr. Kempenaar discharged the patient from the emergency department. She was initially reluctant to leave the emergency department but subsequently did so with her daughter.

[4] On December 28, 2012, Ms. Chrysostom re-attended at the emergency department of the Rouge Valley Ajax and Pickering Hospital. At that time she was diagnosed with cauda equina syndrome. She was promptly transferred to Toronto Western Hospital-University Health Network where she underwent surgery for this condition. The plaintiff continues to suffer urinary and bowel issues. The plaintiff has brought this action asserting that the defendant physicians were negligent during her attendance on December 18 of failing to diagnose cauda equina syndrome.

[5] The parties have been able to agree on the damages in this case. However, they have not been able to agree on the liability issues. In particular, there is no agreement as to whether Dr. Mann and/or Dr. Kempenaar met an acceptable standard of care in their treatment of the plaintiff. The second issue is whether the plaintiff had cauda equina syndrome at the time of her visit on December 18, 2012. The defence agrees that if she had cauda equina syndrome on the 18th, it would have led to an earlier surgery which would have improved the plaintiff’s outcome.

[6] So the issues in this case can be conveniently divided into two issues:

1. Did Dr. Mann and Dr. Kempenaar meet the appropriate standard of care in their assessment of the plaintiff on December 18, 2012?
2. Did the plaintiff suffer from cauda equina syndrome on December 18, 2012?

Did Dr. Mann and Dr. Kempenaar meet the expected reasonable standard of care in their assessment of the plaintiff on December 18, 2012?

[7] There was general agreement among the experts called at trial with respect to the differences between sciatica and cauda equina syndrome.

[8] Dr. Lorne Martin was the plaintiff’s expert in emergency medicine. In his evidence he described how cauda equina syndrome is a clinical condition which involves dysfunction of the spinal nerves as they exit the spinal cord. This condition can present with a constellation of symptoms which includes pain radiating into one or both legs, neurological dysfunction, which would include sensation and pain or muscular weakness in one or both legs. He then states,

And then more importantly, interference in the nerves responsible for sexual function and for bowel and bladder function. So, numbness, the classic or cardinal symptom of cauda equina syndrome is numbness in the saddle area, which is what you would commonly understand by where the body comes up against a saddle when you’re sitting on a saddle, like a bike saddle. But that’s the perianal area, the area around the anus, the area around the vagina and the, the sexual organs and the functions of evacuation of bowel and bladder.

[9] He described sciatica as a related condition caused by a similar pathology. He testified that sciatica is generally caused by disk herniation as well, but the herniation is usually not in the centre of the spinal column, it’s usually off to one side. So sciatica usually involves interference in the nerve function, usually at a discrete level, so usually one peripheral nerve. He goes on to state,

It can be multi-level in certain conditions but because of the anatomy and the abnormality, sciatica generally presents with complaints of pain in the leg, back pain, complaints of pain in the leg, and then again there may be present a neurologic dysfunction in the leg, including abnormalities of sensation, motor function and reflexes.

[10] Sciatica is a condition that is seen very commonly in the emergency department. Dr. Martin went on to state,

The key thing is there is no numbness of the perineum, there is not interference in the spinal nerves themselves that exit the spinal cord. So, there is not saddle anaesthesia, there is not interference in bowel and bladder function, there is not absence of rectal tone for example. So, it’s, it’s a condition that is related but distinguishable from cauda equina, and it must be distinguished from cauda equina when you’re assessing for that presentation in the ER.

[11] The main issue in this case is whether the two attending physicians made enquiries of the plaintiff as to whether she was suffering numbness in the saddle area. If so, the attending physicians were expected to conduct further examinations which would have included a rectal examination and a MRI. In his evidence, Dr. Martin testified that in taking a history it is important for the attending physician to ask about numbness in the perineum. He then goes on to state,

And if the patient confirms that they do have that symptom then there is either an obligation to do fairly detailed sensory testing of the saddle area, and a rectal examination for rectal tone. Or one could even take that complaint as sufficient to move on to organizing emergent MR imaging.

[12] Dr. Miriam Mann (no relation to the defendant Dr. Gary Mann) was called as an expert witness by the defence. On her cross-examination she agreed that the emergency doctor would have an obligation to ask the patient whether they had the symptoms of cauda equina syndrome, which would be bowel symptoms, bladder symptoms or saddle anaesthesia. She also agreed that Dr. Kempenaar would have a similar obligation to ask questions specifically about saddle anaesthesia. She agreed that if he did not make an enquiry about saddle anaesthesia he would not be meeting the standard of care expected. This is reflected in her answer on cross-examination as follows:

Question: Now, a similar question with Dr. Kempenaar. If, if we assume that Dr. Kempenaar did not ask any questions specifically about saddle anaesthesia, he didn't actually pose that question, would he be not meeting the standard care by not asking that question?

Answer: If we assume he did not ask that question then, yes, I agree with you.

[13] Thus, the question to be addressed on the standard of care issue is whether Dr. Mann and Dr. Kempenaar specifically asked the plaintiff on December 18th whether she had any symptoms of saddle anaesthesia. It is clear from the record that the plaintiff was asked about any urinary or bowel symptoms. In the report prepared by Dr. Gary Mann, he records no urinary symptoms or urinary retention or incontinence. In the report of Dr. Kempenaar he records no bowel or bladder symptoms. This leaves only the question as to whether the plaintiff was asked about saddle anaesthesia which has been described as a cardinal red flag for cauda equina syndrome.

[14] In his evidence, Dr. Gary Mann testified that he had no actual recollection of the patient. He also has no record of asking the plaintiff about this symptom. His only record is of enquiring about urinary symptoms. In his record, Dr. Mann recorded the following:

53 year old female presents with left buttock and left upper posterior thigh pain. Patient has had that for two to three weeks. Worse last evening. No urinary symptoms no retention, no incontinence. On examination there was no CVA or flank tenderness. Tender in the left upper posterior thigh and the left buttock on palpation and range of motion. Normal distal sensation and pulses, no spinal tenderness and the abdomen was soft and non-tender.

[15] In his evidence, however, Dr. Mann testified that he would try as part of his routine practice to identify any red flags for cauda equina syndrome by determining, “the presence or absence of urinary symptoms, specifically incontinence or retention, bowel incontinence, loss of sensation in the saddle area, bilateral symptoms, not unilateral symptoms”. With respect to enquiring about loss of sensation in the saddle area, he testified as follows:

I asked her if she was numb when she wiped after a bowel movement and she said no. And, those were the, the main historical items, in addition to the fact that her numbness was one side and on the left side, yeah.

[16] As to how he could be confident that he asked the plaintiff about saddle anaesthesia without making a note about it, Dr. Mann said,

I don’t have any notes to that effect, but it's something I asked, typically.

[17] In cross-examination, Dr. Mann was asked about his failure to record any notation with respect to numbness in the saddle area. He responded as follows:

Question: If you had asked her, given your, your – given two things. Number one, the numbness between the legs would obviously be an important issue because it’s a red flag for the more serious condition of Cauda Equina Syndrome...

Answer: Yes.

Question: ...and given the fact that your comment about that you take quite detailed notes, isn’t that something that you would have included in your notes? You know, I asked her this and she said no?

Answer: It’s something that I should have documented.

[18] Dr. Kempenaar did make a note about the patient’s complaints of numbness. In his note he recorded as follows:

1405 Hr u/s normal. Patient complained of numbness left buttock, but had normal sensation to painful stimulus, no bowel or bladder symptoms.

[19] Unlike Dr. Mann, Dr. Kempenaar had some limited memory of the plaintiff. In his evidence he testified as follows:

Answer: I do have some specific memories, yes.

Question: Is there any reason why you have some specific memory?

Answer: Yeah, because of the, kind of the nature of the case, because of the patient’s reluctance to want to be discharged at the time, she was having significant pain and she, she resisted initially about going home. So, those kind of elements did, did leave an impression in my mind – memory.

Question: So, it sounds like you, you have some memory, but not a complete memory?

Answer: Not complete memory, no. That’s correct, no.

[20] I must say I found it unusual that Dr. Kempenaar would have a specific memory of this plaintiff given the lengthy period of time which has elapsed and also because the patient was discharged with a diagnosis of sciatica, which is a common complaint in the emergency department together with the fact that Dr. Kempenaar has been a full-time emergency physician since 2008. In the end, however, I am not sure that a lot turns on this issue as Dr. Kempenaar did not have a specific recollection of asking the plaintiff about numbness in the saddle area. On this issue he relied on his typical practice. His evidence on this issue was as follows:

Again, in my clinical practice, I would ask the patient if they have any bladder symptoms, and that would involve do you have a sensation having to void but unable to do, do so, indicating that they’re having issues with urinary retention. I would ask them if they have any bowel symptoms, and that would involve incontinence, a stool or loss of that muscle control that you use in squeezing off stool, if you’ve lost that. And then I would indicate if they have any numbness in, in - typically I refer to it as numbness in the saddle area. And I usually make a motion with my hand to indicate where that area is.

[21] Later Dr. Kempenaar testified:

Question: And did you ask the plaintiff those questions?

Answer: It would be in my practice - again to specifically recall the conversation, but that would be my practice, yes.

[22] Dr. Kempenaar testified that had the plaintiff complained of any numbness in the groin or in the perineal of the saddle area he would have charted that because that would have been a red flag for cauda equina syndrome.

[23] Dr. Kempenaar testified that in his re-assessment of the plaintiff he specifically asked where the numbness was and she told him the left buttock. He placed his hand underneath her buttock and pinched her. She went “ow” so Dr. Kempenaar relied on that as an objective finding that there was sensation in the area of the left buttock.

[24] The plaintiff gave evidence at trial. In her evidence she testified that some time after midnight on December 18th she was experiencing a lot of pain in her left leg. She asked her son Khalid to call an ambulance. She stated that she felt a numbness between her legs. She further testified that when she arrived at the hospital she told the nurse that the numbness was between her legs and that there was an intense stabbing pain. With respect to the first doctor who saw her, the plaintiff testified that she kept asking him why she was numb and he told her it was a pinched nerve or a sciatica problem.

[25] With respect to her assessment by Dr. Kempenaar, she testified that she also told him that she was numb between her legs and that her legs were in a lot of pain. She stated that she also kept asking him why she was numb between her legs.

[26] The plaintiff testified that on December 28th when she returned back to the hospital nothing had improved. She was in the same condition with the same numbness and the same pain.

[27] On cross-examination, however, the plaintiff was referred to her examination for discovery evidence where she was asked whether she had told Dr. Mann about being numb between her legs on December 18th. Her answers on balance suggested that she was not 100% sure she had told Dr. Mann about the numbness. In my view, there was a significant inconsistency between the plaintiff’s evidence at trial and her evidence at discovery.

[28] The plaintiff’s evidence was supported by that of her daughter Khadejah. She was with her mother for part of the time she was in the emergency department. Her arrival would have been some time in the afternoon. She testified that her mom kept complaining the whole time that she was numb between her legs and that she asked the doctor why her mom was feeling numb. She couldn’t recall the response but she did recall mentioning to the doctor that her mother was in severe pain and felt numb.

[29] There’s good reason to question the reliability of the plaintiff’s and the daughter’s evidence about reporting to staff at the hospital that she felt numb between her legs except for a note in the nursing notes which I will consider later in these Reasons.

[30] In the emergency triage record under the patient’s chief complaint it records “leg pain”. It also records that the plaintiff was diagnosed with sciatica two weeks ago. There was increasing pain and numbness starting last night. The reference to numbness does not reference where the numbness was located. In the emergency department assessment it records that the patient was brought in with complaints of back pain radiating to the left hip and left leg. It also records that there was tingling down the left leg to the left knee. Again, there is no reference to pain between her legs.

[31] It is also apparent that both Dr. Kempenaar and Dr. Mann were alert to the possibility of cauda equina syndrome. On cross-examination, the plaintiff’s expert, Dr. Martin was referred to the fact that the records of Dr. Mann refer to no urinary symptoms. He agreed that these were some of the red flags of cauda equina syndrome and agreed that the fact that these were noted reflected that Dr. Mann did turn his mind to the possibility of cauda equina syndrome. Had the plaintiff volunteered information that she was having numbness between her legs, I reject the notion that Dr. Mann would have ignored this information and not pursued a further examination of the plaintiff.

[32] The plaintiff’s evidence that her condition did not change between December 18 and December 28, 2012 is also subject to dispute. The records for her December 28th attendance at the hospital documents that the plaintiff now had trouble urinating and complained about a two week history of increased pain and numbness.

[33] There is also an issue as to whether the plaintiff’s daughter was even present at the time of Dr. Kempenaar’s assessment on December 18th. In the cross-examination of the plaintiff, she testified that the first time she saw Dr. Kempenaar her daughter had not yet arrived at the hospital, but was there for a second visit by Dr. Kempenaar which is not recorded in the hospital records. In addition, on cross-examination, the plaintiff testified that her son was still there with her when she was given a pain prescription to be filled. This would have occurred prior to the daughter’s attendance at the hospital as the son was sent to get the pain prescription filled and to pick up the daughter.

[34] Taking into account all of the frailties in the oral evidence of the plaintiff and her daughter, I am not persuaded that the attending physicians were specifically told by the plaintiff that she had numbness between her legs. I reject the evidence of the plaintiff and her daughter in this regard.

[35] That does not end consideration of the matter, however. It seems most unlikely that the plaintiff or her daughter would have been aware of the significance of numbness in the saddle area. In the nursing notes for December 18th, there is a notation at 0845 hours which reads as follows: “patient complains of numbness to left buttock and groin states has little feeling”.

[36] We know from the emergency triage record that the patient was complaining of numbness which had started the previous night. The nursing note at 0845 hours is a reliable, contemporaneous record of what the plaintiff told the nurse about the location of the numbness. If she had been asked by either of the attending physicians about the location of the numbness I have concluded that she would have given the same response just as she did to the nurse. That answer would have included a reference to numbness in the groin area.

[37] As noted later in these Reasons, I also accept the evidence of the plaintiff’s expert, Dr. McBroom, that a reference to numbness in the groin area is in fact a reference to numbness in the saddle area of the body.

[38] Dr. Mann has no record or any specific recollection of asking the plaintiff about saddle numbness. He relied only on his usual practice. If he had asked about the location of the numbness there is no explanation as to why this would not have been identified and resulted in further investigation. Dr. Mann noted negative findings with respect to urinary symptoms and no CVA tenderness. He acknowledged in cross-examination that if he had asked about the location for the numbness, this should have been charted. The nursing note regarding numbness in the groin was recorded after Dr. Mann’s assessment of the patient. Nevertheless, in light of the patient’s complaints of numbness prior to Dr. Mann’s examination, I have concluded that given the patient’s complaints of numbness previously, this note accurately records the location of the plaintiff’s numbness. I have concluded that, in fact, Dr. Mann did not ask the plaintiff about the location for her numbness and in this regard, he fell below the standard of care.

[39] With respect to Dr. Kempenaar, Dr. Kempenaar does record that the patient complained of numbness in the left buttock. However, I am not satisfied that he asked the plaintiff whether she had any saddle numbness. He specifically charts that she had no bowel or bladder symptoms but does not make any reference to enquiring as to whether the plaintiff had saddle anaesthesia. In light of the nursing note, at 0845 hours, I am satisfied that if he had enquired about saddle anaesthesia the plaintiff would have told him about the numbness radiating into her groin area. It is significant that in his evidence Dr. Kempenaar testified that it was not his practice to review all the nursing notes in the emergency department record. I find that this is in part the reason why Dr. Kempenaar did not know about the plaintiff’s complaints of numbness in the groin area. The other part of the explanation is that he did not ask the plaintiff if she had any saddle numbness.

[40] I therefore conclude that Dr. Kempenaar did not specifically ask the plaintiff whether she had saddle numbness and in this regard, he failed to meet the appropriate standard of care.

[41] As a general comment, I have concluded that both Dr. Mann and Dr. Kempenaar focused their attention on the left side of the plaintiff’s body as this was clearly the focus of her complaints of pain and the records with respect to numbness (apart from the nursing note) did not alert the physicians to a complaint of numbness in the groin area.

Did the plaintiff have cauda equina syndrome on December 18, 2012?

[42] Both plaintiff and defence in this action adduced expert opinion on the issue of whether the plaintiff had cauda equina syndrome on December 18, 2012. The plaintiff relied on the opinion of Dr. Robert McBroom. Dr. McBroom is an orthopedic surgeon with a sub-specialty in spinal surgeries. Dr. McBroom testified that in his opinion the plaintiff likely suffered from cauda equina syndrome on December 18, 2012.

[43] The defence relied upon the opinion of Dr. Albert Yee who is the Division Chief of Orthopedic Surgery at Sunnybrook Health Sciences Centre. He also has a sub-specialization in spinal surgery. Dr. Yee gave evidence that in his opinion the plaintiff did not suffer from cauda equina syndrome on December 18, 2012.

[44] Dr. McBroom relied for purposes of his opinion on the nursing note at 0845 hours on December 18, 2012 which records that the patient had complained of loss of sensation in the groin area. In his opinion, the plaintiff was referring to the perianal area.

[45] Dr. McBroom also made reference to a UHN note following her transfer to Toronto Western Hospital where there is a notation by one of the residents that the plaintiff had complained of loss of sensation occurring on December 17th. Specially this note which is dated December 29, 2012 records that, “Saddle numbness according to patient and difficulty voiding started on December the 17”. I am reluctant to put much weight on this note, however, in light of the fact that the notes on December 18th do not document any difficulty in the plaintiff voiding. There is also a recording on the emergency department record at the Rouge Valley Ajax and Pickering Hospital dated December 28, 2012. This indicates that the plaintiff experienced numbness in the perianal area for a few days previously. Given my conclusion previously with respect to the reliability of the plaintiff’s evidence and the apparent discrepancy between the two recordings. I am not inclined to put a lot of weight on either version of the reports made by the plaintiff concerning the starting date for the saddle anaesthesia. While I am satisfied that the plaintiff was doing her best to recall the sequence of events accurately, she was, as noted earlier, an unreliable historian and the events in question took place over ten years ago.

[46] I do, however, accept Dr. McBroom’s opinion that the nursing note from 0845 hours is a very significant observation. In his evidence Dr. McBroom testified as follows:

Question: When you say loss of, loss of sensation, what area of the body are you referencing?

Answer: She was referring to the perineum and perianal area.

Question: And, that’s essentially what we call the groin area?

Answer: You would or you could.

Question: In your opinion did the plaintiff require surgery on December 18, 2012 during her first visit?

Answer: Indeed she had saddle anaesthesia and I felt that she required a thorough neurological evaluation of the perianal and rectal area and that would determine whether she indeed had Cauda Equina Syndrome.

[47] As previously noted, Dr. McBroom gave evidence that in his opinion the plaintiff probably did have cauda equina syndrome on December 18, 2012.

[48] With respect to Dr. Kempenaar’s note which states that the plaintiff complained of numbness in the left buttock, but had normal sensation to painful stimulus, no bowel or bladder symptoms, Dr. McBroom confirmed that he was aware of that notation when he prepared his report.

[49] With respect to the absence of urinary symptoms, Dr. McBroom agreed on cross-examination that the patient did not have any urinary symptoms on December 18, 2012. When questioned further on this issue he gave the following evidence:

Question: You’ll agree with me that the absence of urinary symptoms is a hallmark of, I should say it this way, the presence of urinary symptoms is a hallmark of Cauda Equina Syndrome, correct, Doctor?

Answer: So is numbness.

Question: My question is that the presence of urinary symptoms is one of the hallmarks of Cauda Equina Syndrome.

Answer: It’s one of the, one of the symptoms, but not the only symptom.

[50] I was impressed with Dr. McBroom as a witness. He gave his evidence in a straightforward manner and in cross-examination readily agreed to propositions put by defence counsel which favoured the defence position. For example, he testified as follows:

Question: If you assume that perianal numbness developed after December 18, you’ll agree with me that on a balance of probabilities Cauda Equina Syndrome developed after December 18, correct, Doctor?

Answer: That’s correct if I assume that.

[51] Later, he was asked the following questions:

Question: And, so to the extent that I ask you to assume that there was no saddle anaesthesia on December the 18th, you’ll agree with me that there was no indication for surgery on December the 18th.

Answer: I would agree that, I agree that the investigation probably wouldn’t have been done and therefore surgery not done, yes.

Question: So, just to clarify, your opinion as to whether surgery is required on December the 18th is predicated on an assumption that there would have been positive findings to further investigations.

Answer: Correct.

[52] It is apparent that Dr. McBroom’s opinion rests on the assumption that the plaintiff did have complaints of numbness radiating into her groin or the saddle area as he described it. On a balance of probabilities, he concluded that the plaintiff did have cauda equina syndrome on December 18, 2012. On this issue, Dr. McBroom testified as follows:

Question: When you say loss of, loss of sensation, what area of the body are you referencing?

Answer: She was referring to the perineum and perianal area.

Question: And, that’s essentially what we call the groin area?

Answer: You would or you could.

Question: In your opinion did the plaintiff require surgery on December 18, 2012 during her first visit?

Answer: Indeed she had saddle anaesthesia and I felt that she required a thorough neurological evaluation of the perianal and rectal area and that would determine whether she indeed had Cauda Equina Syndrome.

Question: And, if she had, excuse me, if she’d had Cauda Equina Syndrome on December 18, would that have required surgery?

Answer: Yes.

Question: And, would that have been considered an emergency situation for surgery?

Answer: Yes.

[53] On the issue of whether the plaintiff had cauda equina syndrome on December 18th, Dr. McBroom stated,

Question: In your opinion did the plaintiff have cauda equina caught syndrome on December 18, 2012, her first visit?

Answer: My opinion was that she probably did.

[54] In contrast to the opinion of Dr. McBroom, Dr. Yee was of the view that the plaintiff did not have cauda equina syndrome on December 18, 2012. He testified that in his view the plaintiff had an L5-S1 disk herniation that was pressing on nerve roots that form the sciatic nerve causing sciatic symptoms in the leg of numbness and of pain. He testified as follows:

That’s the most common presentation of a, of the most common cause of Cauda Equina Syndrome of a disk herniation. It's typically a process that evolves. So, commonly it starts with sciatica. It could be unilateral or bilateral. And at some point, it starts to manifest itself with control issues or either urine, stool and sexual dysfunction. And it’s those elements, when you start having the urine, the, the, the stool and sexual dysfunction that the Cauda Equina Syndrome diagnosis is sort of made with that constellation of symptoms that I was describing earlier.

[55] Of course the question which arises in connection with this evidence of Dr. Yee is when the patient’s complaints of sciatica evolved into cauda equina syndrome. We know that the patient had a two week history of sciatica on December 18, 2012. The issue is whether the patient’s sciatica had evolved into cauda equina syndrome by December 18, 2012.

[56] Dr. Yee agreed that saddle anaesthesia is a red flag for cauda equina syndrome.

[57] When pressed on the significance of a finding of saddle numbness, Dr. Yee, in my opinion, became quite evasive. Following is a portion of his cross-examination on this issue:

Question: But, I guess my point is simply this, the saddle anaesthesia is a symptom of Cauda Equina Syndrome?

Answer: Yes, one of them.

Question: And if she’s having a herniated disk on December 18th and it’s actually causing saddle anaesthesia - and I appreciate you don’t think it was, but let’s assume for a second that it was causing saddle anaesthesia as of December 18th, could we not say that she’s got Cauda Equina Syndrome as of that date, just at the very early stage of it, and then it evolves over the next 10 days and it just becomes worse Cauda Equina Syndrome over the next 10 days?

Answer: And I guess that’s where I may go back to. I guess the, you know, dynamic studies that she’s had after her treatment, because if she had Cauda Equina Syndrome for that length of time, I wouldn’t have expected those urodynamic studies done several months after her surgery to be essentially normal.

Question: Right, okay, but let me back up. Are you at least accepting the fact that if she has saddle anaesthesia on December 18th, that could be a sign of Cauda Equina Syndrome and she might have had Cauda Equina Syndrome at an early stage at that point, it just might have started to be showing these symptoms, and the first symptom that she happened to get hit with was the saddle anaesthesia?

Answer: I guess you’re asking a hypothetical. I mean...

Question: Yes.

Answer: ...there’s no documentation that she had numbness in and around the private area. The, the urine....

Question: Right, and again, I want you to put that part aside. Assume she did on that date, assume she had the numbness in or around that area on December 18th, she had the saddle anaesthesia on that date, would that not be indicative of the beginning of a Cauda Equina Syndrome, that that’s simply the first symptom that she’s starting to manifest?

Answer: Well, I mean, I think you’d have to ask other questions, so I wouldn’t take that information in isolation. I think you need to, you know, ask those questions, are you having urine urgency, are you having urine hesitancy, are you having urine retention, are you having incontinence of urine, are you having stool issues, are you having sexual dysfunctional issues, can, can you void and give us a urine sample, are – you know, those sort of things. So, in...

Question: Well, Doctor....

Answer: ...and of itself, it’s not a diagnosis of Cauda Equina Syndrome, but it does merit, you know, asking and evaluating other symptoms and signs that are within the constellation of the syndrome.

Question: Right. And if she’s got – if she’s talking about – if she’s reporting saddle anaesthesia, you as a physician would say okay, well we better check the perineal area at that point?

Answer: Yes.

[58] I note that Dr. Yee’s evidence on the significance of saddle anaesthesia as only being one of several symptoms was not been adopted by the defence’s other expert on standard of care, Dr. Mann. On cross-examination she gave the following evidence:

Question: And the ER doctor would have a, an obligation or duty to ask the patient whether they have the symptoms of Cauda Equina Syndrome, the...

Answer: Yes.

Question: ...the cardinal ones, which would be...

Answer: Yes, I would agree.

Question: ...bowel, bladder or saddle anaesthesia?

Answer: Yes.

[59] It was on this basis that Dr. Mann gave her evidence that if the physician’s did not ask about numbness that they fell below the standard of care.

[60] Dr. Yee also relied for his opinion on some urodynamic studies which were performed on June 20, 2013 at University Health Network. Dr. Magdy Hassouna performed a bladder function urodynamic study in which he concludes her cauda equina has not affected her bladder. Dr. Yee stated that if the plaintiff had cauda equina syndrome and bladder dysfunction and issues for 10 days he would not have anticipated the urodynamic studies several months later to be more or less normal. There are two issues that arise with respect to this evidence. First, this issue which is obviously an important one was never put by defence counsel to Dr. McBroom in his cross-examination. In these circumstances, I am not inclined to give a lot of weight to Dr. Yee’s evidence on this issue.

[61] Second, in her evidence, the plaintiff complained of significant continuing urological issues following her surgery at UHN. This seems to be at odds with the UHN note from the study dated June 20, 2013 which states that the plaintiff’s “cauda equina had not affected her bladder”. In her evidence at trial, the plaintiff testified that she still retains urine a lot and has to use Depends or pads. In her evidence at trial she stated,

Like, so since I did the physio in the hospital, I, I – like, I knew now when I want to go, but I don’t feel nothing. I don’t know when I’m done. Like, I just sit there hoping I’m done. But I keep wiping, wiping, and I – that’s how I will know when I’m done. But I don’t feel nothing. And the same goes from when I – urine, the same goes for that, but I retain urine a lot.

I found the plaintiff’s evidence on this issue credible. It is based on her current symptoms and as damages have been agreed upon, she would have no motivation to exaggerate or mislead the court. It is also reasonable to believe that the plaintiff is aware of her continuing bladder and bowel symptoms. I therefore accept the plaintiff’s evidence that she has experienced serious bowel and bladder issues as a result of the cauda equina syndrome. I find the plaintiff’s continuing symptoms associated with voiding and urine retention are not inconsistent with cauda equina syndrome being present on December 18th.

[62] On balance, taking into account the evidence of Dr. McBroom and Dr. Yee, on the issue of causation, I accept Dr. McBroom’s evidence that the plaintiff likely suffered from cauda equina syndrome on December 18, 2012 over Dr. Yee’s opinion that she did not have this condition.

Conclusion

[63] For the above reasons, I find that the plaintiff has established on a balance of probabilities that both Dr. Mann and Dr. Kempenaar fell below the standard of care in their treatment of the plaintiff and that the plaintiff did, in fact, have cauda equina syndrome on December 18, 2012.

[64] The plaintiff’s claim will bear pre-judgment and post-judgment interest in accordance with the Rules of Civil Procedure and the Courts of Justice Act, RSO 1990, c C.43.

[65] If counsel are not able to agree on costs, then an appointment may be taken out with the trial coordinator’s office within 40 days of the release of these Reasons to set a date for an attendance before me to deal with the issue of costs. In the event that an attendance before me is necessary to deal with costs, then the parties at least two days prior to that hearing are to submit brief written submissions on the issue of costs.

Justice M. McKelvey

Released: June 16, 2023