Court File and Parties

COURT FILE NO.: CV-16-566085-0000 DATE: 2024-12-31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HAYLEY SZETO Plaintiff – and – DR. SARI KIVES Defendant

Counsel: Kenneth J. Morris and Kelly Hayden, for the Applicant Stephanie Sugar and Erin Chesney, for the Respondent

HEARD: October 1-3; 7-10, and November 20, 2024

Leiper, J.

REASONS FOR DECISION

INTRODUCTION

[1] The plaintiff, Hayley Szeto, brought a claim against her gynecologist surgeon, Dr. Sari Kives, after Ms. Szeto suffered a bowel perforation during reproductive organ surgery on July 20, 2015. [1]

[2] Ms. Szeto almost died from the bowel injury, a known risk of the surgery. She spent weeks in intensive care and required multiple additional surgeries to repair the damage. She has permanent after-effects from the injury, including a colostomy.

[3] Ms. Szeto alleges that Dr. Kives fell below the standard of care by failing to carefully examine the bowel, and not detecting the bowel perforation so that it could be repaired.

[4] Dr. Kives defends her work on the basis that she conducted the surgery competently and met the standard of care. While the injury was unfortunate, it was not due to negligence on her part.

[5] For the following reasons, I find that Dr. Kives’ conduct fell below the standard of care, and she is liable to Ms. Szeto in negligence.

BACKGROUND FACTS

[6] On July 20, 2015, the plaintiff had surgery at St. Michael’s Hospital in Toronto. Her surgeon, Dr. Sari Kives, was assisted by two doctors: surgical resident, Dr. Yeung and post-graduate fellow, Dr. Cancelliere.

[7] Dr. Kives went to see Ms. Szeto after the surgery. She was satisfied that it had gone well, and informed Ms. Szeto’s sister that it was a “textbook” surgery. Dr. Kives testified that she had not seen anything during the surgery that caused her to be concerned about any complications.

[8] Dr. Kives dictated an operative report describing the steps taken during the surgery. That report noted a complication: one of the assisting doctors had perforated the fundus (top of the uterus) during insertion of an instrument called the “uterine manipulator.” The surgeon uses the uterine manipulator in surgery of this type to manipulate the uterus so that the surgeon can visualize the structure properly. Dr. Kives agreed that she did not mention this complication to Ms. Szeto’s family. Dr. Kives told the plaintiff’s family that the procedure was uncomplicated, that it had gone well, and that she was happy it had gone well.

[9] On the morning of July 21, 2015, after seeing a nurse and one of the surgical residents, Ms. Szeto was cleared to be discharged. Although she felt nauseous and vomited up her breakfast, the nurse and resident reassured her that this was a common reaction to the general anaesthetic administered at the time of the surgery. Ms. Szeto’s bowels were not yet functioning. She had not passed gas or had a bowel movement since the surgery.

[10] After discharge, Ms. Szeto’s sister and brother-in-law drove her from the hospital to her home in Scarborough. On the way, they stopped at a restaurant so that her sister and brother-in-law could eat lunch. Ms. Szeto was still not feeling well. She did not eat anything. After lunch, her family drove her to her apartment.

[11] Ms. Szeto felt unwell for the rest of the day. In the middle of the night, she developed chest pain. She called 911 and an ambulance took her to Scarborough General Hospital. There, a general surgeon, Dr. Chiu assessed her as being in critical condition. He recommended emergency surgery to address his clinical impression that there had been a perforation of her bowel, causing her to suffer from abdominal inflammation.

[12] Ms. Szeto’s family consented to the emergency surgery. Dr. Chiu did the surgery. He reported in his operative summary that Ms. Szeto had suffered a perforated sigmoid colon, with inflammation from faeces and an intra-abdominal abscess. He drained the abscess, resected the bowel, and created a colostomy. Ms. Szeto was in intensive care for weeks.

[13] The operative report from Dr. Chiu filed at trial noted that “the [bowel] perforation is quite large. The perforation is about 2 cm in diameter and the above procedures performed.” Dr. Chiu’s operative report was admitted as a business record at trial.

[14] At the time of the emergency surgery, one of the surgical team members photographed the portion of bowel removed from Ms. Szeto. The section of bowel with the injury was sent to pathology. A report dated August 8, 2015, described the pathologist’s findings. The photograph and the pathology report were tendered at trial.

[15] Ms. Szeto required five further surgical procedures arising from the perforated bowel. After leaving Scarborough General Hospital, she required rehabilitation at Providence Healthcare. On October 24, 2015, Providence Healthcare discharged Ms. Szeto and she returned home after months in hospital.

TRIAL ISSUE

[16] The only issue at trial is whether Ms. Szeto has established, on a balance of probabilities, that Dr. Kives is liable in negligence for the injury she suffered during her surgery. The parties have agreed on damages.

[17] The law of medical negligence is well settled. Next, I review the applicable legal framework with commentary on how I structure the analysis in these reasons.

LEGAL AND ANALYTICAL FRAMEWORK

[18] To succeed in establishing negligence, the plaintiff, Ms. Szeto must show that:

1. the defendant, Dr. Kives, owed her a duty of care;

2. Dr. Kives’ conduct breached the standard of care;

3. Ms. Szeto sustained damage that was caused, in fact and in law, by Dr. Kives’ breach.

• Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3;
• Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586, at para. 12.

[19] In determining whether a physician’s conduct has breached the standard of care, the court must consider whether the plaintiff has established that the physician failed to bring a “reasonable degree of skill and knowledge” to the task and failed to exercise a “reasonable degree of care.” The measure of reasonableness will be that expected of a “normal prudent practitioner of the same experience and standing”: Crits v. Sylvester, [1956] O.J. No. 426, aff’d , [1956] S.C.R. 991, at para. 13.

[20] The standard which applies to a specialist such as a gynecologist and obstetrician, will be assessed against the standard for a similar average specialist: ter Neuzen v. Korn, [1995] 3 S.C.R. 674, 127 D.L.R. (4th) 577, at para. 33. Dr. Kives was a specialist and was one of a small group of physicians trained to use the robotic technology employed during Ms. Szeto’s operation.

[21] In determining whether there has been negligence, the trier of fact must consider the evidence, make the necessary findings, and use those factual findings to determine whether the conduct has fallen below the standard: Cleveland v. Hamilton Health Sciences, 2011 ONCA 244, 277 OAC 178, at paras. 51-53; Grass (Litigation Guardian of) v. Women’s College Hospital, [2001] O.J. No. 1766 (C.A.), at paras. 11-12.

[22] In addressing the question of causation, the plaintiff must establish that the act or omission alleged to have fallen below the standard of care caused the plaintiff’s damages. It is insufficient if the evidence merely demonstrates a “possibility of some causal connection”: Rothwell v. Raes (1990), 2 O.R. (3d) 332, at para. 8.

[23] A court assesses the standard of care with reference to expert evidence: Claus v. Wolfman (1999), 52 O.R. (3d) 673, at paras. 11-12, aff’d (2000) , 52 O.R. (3d) 680.

[24] It is important to keep the question of standard of care distinct from the question of causation: Bafaro v. Dowd, [2008] O.J. No. 3474 (Ont. S.C.), at para. 35, aff’d 2010 ONCA 188. The court should take care not to use “hindsight bias”, that is, to avoid reasoning from the fact that the plaintiff has suffered an injury that the doctor therefore breached the standard of care: St. Jean v. Mercier, 2002 SCC 15, [2002] 1 SCR 491, at para. 53; Bogdon v. Folman, 2013 ONSC 222, at para. 75.

[25] This means that often the question of causation should be decided after a finding that there has been a breach of standard of care, but not always, as discussed by Van Rensburg J.A. while dissenting in Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, and affirmed by the Supreme Court of Canada: Armstrong v. Ward, 2021 SCC 1, [2021] 1 SCR 3.

[26] Trial judges are to take a pragmatic approach to the question of whether the plaintiff has shown that the defendant’s actions caused her loss. This is a factual question: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.

[27] Adopting a pragmatic approach, I observe that the risk of hindsight bias is low in this case. This is because the plaintiff does not argue that Ms. Szeto’s injury itself necessarily means that Dr. Kives was negligent. Bowel injury is a known risk of the surgery that Ms. Szeto chose to have. The allegation of negligence arises from Dr. Kives’ alleged failure to discover the injury, if the evidence establishes that the injury occurred during the surgery conducted by Dr. Kives.

[28] Thus, prior to considering the issue of negligence, I will first make the necessary findings of fact as to what happened in the operating room. Next, I will turn to the question of the standard of care and whether the plaintiff has established that Dr. Kives failed to meet the standard, and if so, whether that failure caused Ms. S’s injuries.

[29] The analytical framework I am adopting is as follows:

A. Did Dr. Kives owe Ms. Szeto a duty of care?

B. What happened during the surgery?

C. Has the plaintiff established that Dr. Kives’ conduct fell below the standard of care?

D. If Dr. Kives’ conduct fell below the standard of care, was Ms. Szeto’s damage caused by that breach?

ANALYSIS

A. Did Dr. Kives owe Ms. Szeto a duty of care?

[30] The question of a duty of care owed by a doctor to her patient is not in dispute in this action. Dr. Kives was the attending surgeon who operated on Ms. Szeto. She owed Ms. Szeto a duty of care.

B. What happened during the surgery?

The Expert Witnesses and Areas of Opinion

[31] The parties tendered evidence at trial from two plaintiff experts and one defence expert. I provide this brief outline on their expertise and the areas in which they were qualified to opine because they assisted with my understanding of the nature of the surgery, medical terminology, and anatomy.

[32] The first plaintiff expert, Dr. Tien Le, is a gynecologic oncologist and former Chair of the Division of Gynecologic Oncology at the Ottawa Hospital. Dr. Le has practised medicine since 2002. He has expertise in minimally invasive surgery, both laparoscopic and robotic. He has performed or supervised over 500 robotic procedures involving the removal of the female reproductive organs. He is a proctor who mentors new gynecologic oncologic robotic surgeons. He is also a professor of medicine at the University of Ottawa. He has authored or co-authored multiple publications in peer-reviewed journals.

[33] I qualified Dr. Le as an expert in gynecological and minimally invasive surgery and to testify on the standard of care in Ms. Szeto’s surgery.

[34] The second plaintiff expert, Dr. Ronald Holliday, is Professor Emeritus with the Department of Surgery at Western University and a retired physician. He worked as a teaching general surgeon for 36 years with Victoria Hospital in London, Ontario, with 70-75% of his surgical practice devoted to abdominal surgery. Dr. Holliday has expertise in the diagnosis, assessment, and treatment of bowel perforations, having dealt with 30-50 cases of bowel perforation a year over his 36-year career. Since 1973, Dr. Holliday has been a professor at Western University. In his clinical capacity, he has consulted with gynecologists concerning reproductive organs and concerns about bowel injuries.

[35] I qualified Dr. Holliday to testify on the cause of Ms. Szeto’s bowel perforation.

[36] The defence expert, Dr. Marcus Bernardini is a gynecologic oncologist and the Division Head of the Gynecologic Oncology, Obstetrics and Gynecology department at the University of Toronto, University Health Network, and Mount Sinai Hospital in Toronto. Dr. Bernardini has practised medicine since 2008. He has expertise in minimally invasive surgery, including robotics. In 2010, he was chosen to lead the robotics program at the University Health Network in Toronto. Dr. Bernardini has published numerous peer-reviewed papers in his area of clinical practice, including 8-10 papers on robotics. Since 2015, he has been an Associate Professor of Gynaecologic Oncology at the Faculty of Medicine, University of Toronto.

[37] I qualified Dr. Bernardini as an expert in gynecologic and minimally invasive surgery to testify on the standard of care and the cause of the bowel injury in Ms. Szeto’s case.

[38] Dr. Bernardini is a colleague of Dr. Kives in Toronto within the small and specialized community of minimally invasive, gynecological surgeons. Counsel for Ms. Szeto made submissions that I ought to give less weight to Dr. Bernardini’s evidence given the professional relationship between him and Dr. Kives. Their professional contact includes serving on the faculty at the University of Toronto, co-authoring a paper together, and attending annual educational events. Plaintiff’s counsel submits that a colleague with this type of professional proximity would be loath to publicly criticize another colleague. Although that relationship would not disqualify Dr. Bernardini from testifying, plaintiff’s counsel submits it should be borne in mind when assessing his evidence.

[39] In response to this submission, counsel for Dr. Kives submits that because the plaintiff did not challenge Dr. Bernardini’s qualifications at the admissibility stage of his evidence, this is an inappropriate and unfair position to take following admission of the expert evidence.

[40] I disagree. Admissible expert evidence may be challenged as to weight based on “non-disabling” bias: Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town), 2022 ONCA 315, 161 O.R. (3d) 436, at para. 80. Plaintiff counsel cross-examined Dr. Bernardini on his professional contacts with Dr. Kives, including at education events and in authoring at least one peer-reviewed paper together, without objection as to relevance.

[41] I do not accord less weight to Dr. Bernardini’s evidence simply because he is a part of the community of minimally invasive, robotic-trained gynecological surgeons in Toronto to which Dr. Kives also belongs. I saw no features of bias in Dr. Bernardini’s evidence. He signed an acknowledgment of his expert’s duty and his manner of giving evidence was consistent with objectivity. Further, on most of the areas that are critical to the findings at trial, the experts agreed. Their differences stemmed more from factual assumptions as to what happened during surgery. I address these below within the analytical framework.

Nature of the Surgery

[42] Ms. Szeto underwent laparoscopic surgery with robotic assistance to remove her ovaries, fallopian tubes, and uterus to treat a condition known as “complex hyperplasia of the endometrium without atypia”, a condition in which the cells of the uterus can become cancerous. While surgery is not the only treatment available, it is the definitive treatment.

[43] Prior to the surgery, Dr. Kives discussed the treatment options with Ms. Szeto including using medication and monitoring. Dr. Kives discussed the risks of the surgery with Ms. Szeto. These risks were: infection, bleeding, injury to bowel, bladder, blood vessels and laparotomy (open surgery with a larger incision than that used in laparoscopic surgery). Ms. Szeto signed the consent to surgery. She does not dispute that she gave informed consent to the surgery.

[44] Dr. Kives was qualified to perform minimally invasive surgery using a robotic system since St. Michael’s hospital introduced that technology in 2008. At the time of Ms. Szeto’s surgery, Dr. Kives had performed over 30 robotically assisted laparoscopic procedures. Ms. Szeto does not dispute that Dr. Kives was qualified to perform a minimally invasive surgery using the robotic system.

[45] In robotic assisted surgery, the surgeon makes small incisions in a person’s abdomen at the start of the surgery to give the surgeon access to the patient’s abdomen with a camera and instruments. One of those incisions, or “ports” is reserved for the assisting trainee surgeons. The trainees use their port for various tasks that assist the surgeon, for example, retracting tissue with a grasping instrument or irrigating the surgical area with fluid.

[46] The robotic system and camera allow the surgeon to magnify the view up to ten times that of the eye. The surgeon controls the camera and has a three-dimensional view of the operating area. Screens are placed around the operating room to provide the other members of the surgical team with two-dimensional views of the surgery. Thus, wherever the surgeon guides the camera, the view is available to the team.

[47] The surgeon operates the robotic system remotely from a console that controls the camera and instruments inside the patient. Trainee surgeons sit closer to the patient along with a scrub nurse. The technology permits surgeons to record the robotic surgery. For example, Dr. Le records all his surgeries for learning purposes. Dr. Kives did not record her surgeries at the time of these events.

[48] A first-year gynecology resident, Dr. Cancelliere, and Dr. Yeung, a licensed obstetrician and gynecologist, assisted at the surgery. At the time of Ms. Szeto’s surgery, Dr. Yeung was enrolled in fellowship training in the minimally invasive surgical fellowship program at St. Michael’s Hospital. Ms. Szeto does not take issue with Dr. Kives’ delegation of responsibility to perform certain tasks during her surgery to either Dr. Cancelliere or to Dr. Yeung.

[49] Ms. Szeto’s 2 hour and 40-minute surgery proceeded in stages. Witnesses and Dr. Kives’ operative summary described those stages in detail.

[50] I turn to the requisite factual findings regarding the standard of care and causation. These questions are:

1. When did the injury happen?
2. How did the injury happen?
3. What was the size of the injury at the time of the surgery?
4. What steps did Dr. Kives take to check her work before completing the surgery?

When did the injury happen?

[51] The parties do not dispute that Dr. Kives or a member of the team perforated Ms. Szeto’s bowel during the surgery. The bowel perforation was the cause of her damage. The evidence supports that position. The two causation experts, Dr. Holliday and Dr. Bernardini, testified that it is likely that Ms. Szeto suffered the bowel perforation during the surgery conducted by Dr. Kives.

[52] Dr. Holliday based his opinion on the timing of the onset of her symptoms, 36 hours post-surgery, without evidence of other causes or risk factors during the intervening time between her surgery and emergency admission. He considered the description of her symptoms during the emergency surgery by Dr. Chiu, including diffuse peritonitis, free air, and early septic shock. He considered the photographs of the portion of the damaged bowel and the estimate by Dr. Chiu in his operative report. Dr. Holliday testified that Ms. Szeto suffered a “quite large” injury to the bowel measuring approximately 2 centimetres.

[53] The defence expert, Dr. Bernardini, testified that it was more probable than not that the bowel perforation happened during the surgery conducted by Dr. Kives.

[54] I accept Dr. Holliday and Dr. Bernardini’s expert evidence as to when the injury happened. I find that it is more likely than not that Ms. Szeto’s bowel injury happened during the surgery on July 20, 2015.

How did the injury happen?

[55] The experts agreed that there are several possible mechanisms of bowel injury from the instruments used in Ms. Szeto’s surgery.

[56] The experts and Dr. Kives agree that a possible site of injury was the area where adhesions connected Ms. Szeto’s bowel and left fallopian tube. Adhesions are attachments which are not part of normal anatomy. Fallopian tubes do not normally connect to the bowel. As a result, to perform the surgery successfully, Dr. Kives was required to cut the adhesions to release Ms. Szeto’s bowel from the left fallopian tube before removal of the tubes.

[57] In her operative summary, Dr. Kives recorded this aspect of Ms. Szeto’s anatomy, and her actions as follows:

There was quite a significant amount of adhesions by the left fallopian tube to the bowel which were taken down with monopolar scissors.

[58] Dr. Holliday testified that from his experience, a surgeon can cause a “rent in the bowel” when taking down adhesions.

[59] Dr. Bernardini also testified that it was likely that Dr. Kives more likely than not inadvertently damaged the bowel while she was cutting the adhesions between the sigmoid colon and the left fallopian tube. He described the damage as a “nick.” Dr. Bernardini agreed in cross-examination that it was impossible to know with certainty the mechanism of the injury, because the surgeon did not detect the injury intra-operatively. Dr. Bernardini agreed that if a significant injury had been caused to the bowel during the dissection of adhesions, and the surgeon had gone back to inspect the area of the adhesions, that such an injury would have been visible.

[60] Dr. Kives testified that she reflected on the surgery after learning of Ms. Szeto’s injury and she concluded that she “made a hole when taking down those adhesions.”

[61] The expert witnesses testified about another possible mechanism of injury, that is, when one of the trainee surgeons perforated Ms. Szeto’s fundus. Both Dr. Holliday and Dr. Le described how the insertion of the uterine manipulator and perforation of the fundus could have damaged the bowel segment.

[62] In her operative summary Dr. Kives recorded this complication as follows:

Under direct visualization we then inserted the uterine manipulator. Unfortunately during the manipulation we still perforated the fundus of the uterus and we did not remove it, we left it there as placed.

[63] Dr. Bernardini testified that in his view it was less likely that the bowel injury happened during the insertion of the uterine manipulator. He assumed for the purposes of his opinion that the bowel and the uterus where not adherent to one another, because there was no note to that effect. He concluded on that basis that this was a less likely mechanism of injury.

[64] I find that Ms. Szeto’s bowel injury more likely occurred when Dr. Kives was cutting the significant quantity of adhesions between the left fallopian tube and the sigmoid colon, although it is possible that the perforation of the fundus damaged Ms. Szeto’s bowel.

[65] However, under either theory of the mechanism of injury, I find that this injury happened during the surgical steps over which Dr. Kives had responsibility, during the robotic laparoscopic surgery.

What was the size of the injury at the time of the surgery?

[66] As with the mechanism of injury, there is no direct evidence as to the injury’s size when it happened. The first known measurement of the bowel perforation comes from Dr. Chiu’s surgical note made after the emergency surgery, which described the perforation as “quite large” and measuring about 2 cm.

[67] The description in Dr. Chiu’s surgical notes is consistent with the photographs taken at the time of the emergency repair surgery. The photographs have a visible dark area that the expert witnesses agreed was the site of the injury. One of the photographs has a ruler laid alongside the specimen affording visual evidence about the dark area’s size.

[68] Dr. Bernardini testified that he did not think it could reliably be said that the original injury looked as it did after the emergency surgery due to inflammation and fecal matter. He was not prepared to agree that the size of the injury was between 1-2 cm at the time of surgery and did not opine on what he estimated the size of the injury to be.

[69] Dr. Bernardini testified that a 1-2 cm perforation was a “fair size perforation” and identifying it within 24 hours after surgery would support a conclusion that there had been a significant defect intra-operatively. He further testified that as time passed, it would be harder to confidently predict the significance of the defect at the time of the surgery. For example, if a doctor found the 1-2 cm perforation after 4 or 5 days, such a scenario would not necessarily mean the perforation was 1-2 cm at the time of the injury.

[70] Dr. Holliday was examined on whether Dr. Kives could have made a small perforation that became enlarged during the emergency surgery performed by Dr. Chiu. Dr. Holliday performs the same kind of surgery that Dr. Chiu performed in this case. He testified that manipulation during the emergency surgery would not significantly increase the size of the injury. He explained that general surgeons are careful to avoid making a tear larger and spilling more fecal content into the abdomen.

[71] Dr. Holliday testified that Ms. Szeto’s degree of sepsis and condition by the time she underwent surgery at Scarborough General Hospital was more consistent with a significant injury to the bowel that happened at the time of the hysterectomy. The evidence Dr. Holliday relied on in support of his opinion included a gradual worsening in Ms. Szeto’s condition, from her initial distended abdomen and lack of bowel activity the day following surgery, through to the septic shock and copious amounts of fluid in her abdominal cavity 40 hours post surgery, as described in Dr. Chiu’s operative report.

[72] Dr. Holliday testified that if the injury had only been a small “nick” to the colon, Ms. Szeto’s body would have tried to seal it off. The body cannot do that with a larger injury to the colon.

[73] Dr. Le agreed that the injury could not have been expected to substantially increase in size from a few millimetres to 1-2 cm within 48 hours.

[74] Dr. Holliday and Dr. Le testified that the size of the injury at the time it was made was likely 1-2 cm.

[75] The defence submits that based on Dr. Bernardini’s evidence, it was more likely than not that the injury involved a small cut that grew over time to the size it was during the emergency surgery, which is 1-2 cm. On the defence theory, Dr. Kives did not make a significant injury to Ms. Szeto’s bowel which was able to be seen at the time of surgery.

[76] The defence submits that there is evidence that the perforation was smaller than 1-2 cm including the pathology report performed after the emergency surgery that the perforation measured “1cm in maximum dimension.” In submissions, counsel for Dr. Kives noted that the pathologist received the specimen “just a few hours after the resection procedure.”

[77] This would mean that, at approximately the same time, two different medical professionals measured the perforation differently: the surgeon, Dr. Chiu, and the pathologist, Dr. Bano. Neither Dr. Chiu nor Dr. Bano testified at trial. Photographic and ruler evidence support Dr. Chiu’s measurement and are consistent with his written operative note.

[78] However, other evidence exists that assists with the apparent anomaly in measurement. First, Dr. Bano signed the pathology report on August 8, 2015, approximately two weeks after the pathology lab received the specimen on July 22, 2015. In accordance with counsel’s agreement on the book of documents which contained the pathology report, this document was “admitted and deemed to have been prepared, sent, and received on or about the dates set out in the documents, unless otherwise shown in evidence at trial.” Counsel’s index shows the date of the pathology report as August 8, 2015.

[79] The documents and counsel’s agreement indicate that the pathology lab received the specimen on July 22, 2015. Subsequently, Dr. Bano conducted the examination and reported on those findings on August 8, 2015. Dr. Bano’s signature is beside the August 8, 2015. Dr. Bano was reporting on the findings. I conclude that a plain reading of the pathology report is that the specimen was received on July 22, 2015, and examined on August 8, 2015. Not only is this a logical reading of the report, but it also accords with counsel’s agreement as to the date of this document.

[80] Could the size of the perforation have shrunk between July 22, 2015 and August 8, 2015? Dr. Le testified that specimens of tissue sent to the pathology lab would be “fixed” in a substance known as formalin, which causes specimens to retract by up to 50%. Dr. Bernardini did not dispute this evidence. Dr. Holliday agreed that formalin causes significant tissue shrinkage.

[81] Accordingly, I do not accept the defence’s submission that the pathology report is evidence that Ms. Szeto’s bowel injury was 1 cm or less either at the time of the bowel resection procedure by Dr. Chiu or at the time of her surgery conducted by Dr. Kives.

[82] I accept Dr. Holliday’s evidence on the issue of the likely size of the bowel injury which I have found took place at the time of surgery. Dr. Holliday applied his long-standing expertise as a general surgeon working with bowel injuries to the documented, contemporaneous evidence as to the timing, size and nature of the injury during Dr. Chiu’s emergency surgery, the photograph of the specimen taken at the time of the emergency surgery, and the development of Ms. Szeto’s serious medical condition post-operatively. Dr. Holliday considered the August 8, 2015, pathology report and explained why the size of the perforation could have been measured as smaller on that date than on July 22, 2015.

[83] Based on these findings, I conclude that Ms. Szeto’s intra-operative injury was more likely than not as described by Dr. Chiu, that is, between 1-2 cm. I accept the expert evidence that it would have been visible and capable of repair, had it been detected at the time of the surgery.

What steps did Dr. Kives take to check her work before completing the surgery?

[84] Several evidentiary sources exist on the important factual question of the steps that Dr. Kives took to check her work before completing Ms. Szeto’s surgery.

[85] I begin with her dictated description of those steps, after the “uterus, cervix, ovaries and tubes were removed” which was the point of the surgery. Dr. Kives’ surgical note reads:

The uterus was then closed with four interrupted 0-Vicryl sutures. We then inspected for good hemostasis. There was a small amount of bleeding by the right vaginal vault angle which was cauterized with bipolar cautery and the left and right infundibulopelvic ligament were then cauterized again. Once satisfied that good hemostasis had been achieved, the robot was undocked.

[86] This ended the robotic portion of the surgery. The rest of the note described the removal of the catheter, closing of the incisions, and repairing the episiotomy which was made to insert the uterine manipulator.

[87] At examination for discovery and trial, Dr. Kives answered questions about her memory of the specific steps she took. Her answers on discovery, which took place approximately 3 years after the surgery, were based on her usual practice in performing this type of surgery:

Q. Do you remember doing the surgery? A. Not exactly. Like, I don’t remember her surgery specifically. I remember that day, but I think I remember that day because two days later, I had to remember that day. Q. But you don’t remember the specific steps you took during the surgery? A. No. Q. You base your evidence on what your usual practice is? A. That is correct.

[88] Further, in discovery, Dr. Kives answered questions about her operative record and its relationship to her memory of this surgery:

Q. Now, your operative record…I’ve had you take me through the procedure. The operative record speaks for itself. Do you remember anything else, independent of the record, about the surgery? A. No. Q. After the surgery happens, you said you’re there until the patient wakes up. Do you remember that? A. No.

[89] In her discovery evidence, Dr. Kives described how the surgeon removes the reproductive organs from the body. The term for this is the “colpotomy.” Next, counsel asked Dr. Kives about her review of the surgical field before finishing. That evidence, read in at trial, was as follows:

Q. After you do the colpotomy, do you review the surgical field to… A. Yes. Q. Do you check for injury to the bowel? A. Well, as I said earlier, I inspect the site. I inspect for haemostasis, I inspect…I irrigate and I look at all my surgical sites to make sure that it’s haemostatic. I’m not specifically looking at the bowel because I’m not suspecting that I caused a bowel injury. If I inspected a bowel injury then I would approach it differently. Q. All right, In Hayley’s case, you didn’t suspect a bowel injury. So you would not have specifically looked at the bowel? A. Like, run the bowel? I look at the surgical sites. So, we irrigate. Like, we put in tons of irrigation at the end of the procedure and we fill the pelvis with fluid to make sure its haemostatic. And obviously, if you saw something unusual in the fluid, like a stool, for example, then it would raise a red flag, “Did I cause a bowel injury?” So, we… I can only see what I can see. So, I do it again in a very step-wise methodical way. I look at all my surgical sites with the instruments. I look at where I took down all my pedicle. I fill the pelvis with copious amounts of fluids several times to make sure that it’s haemostatic. And once she is out of Trendelenburg and once she’s undocked, we look again at the …laparoscopically, without the robot again. We look at our surgical site before we close. Q. When you say, “surgical site”, would the sigmoid colon be there within the surgical site? A. The most distal part of the sigmoid colon, the part nearest to the colpotomy. Q. But you wouldn’t review the entire sigmoid colon? A. No. Q. When you’re irrigating, if there was a perforation to the bowel, would you expect to see? A. If there was a large perforation, I would hope that I would see maybe, potentially, stool in the…or particulate matter within the fluid. But, if there was a microscopic, or a very small hole, you may not see anything. Q. When you say “large” how large before you expect to see something? A. Well, it’s hard for me to speculate. Fortunately, this hasn’t happened to me enough for me to speculate on that. I would assume that if it was a bigger hole, more stuff could come out of the hole, so that it would fill…be in the cul-de-sac when I irrigate it. But I haven’t had enough experience, fortunately, to know that. I just practice standard of care to look at my surgical site.

[90] At trial, Dr. Kives agreed in cross-examination that her evidence on this point was true and accurate. She agreed that the most distal portion of the sigmoid colon that she inspected, was not the area where she dissected or “took down” the adhesions. The plaintiff submits that a “plain and fair” reading of Dr. Kives’ answer is that the only part of the sigmoid colon which she specifically examined, was the part closest to the colpotomy and not near the likely area of injury to the bowel.”

[91] During examination-in-chief, Dr. Kives was asked about whether she went back to the area where she took down the adhesions. Dr. Kives answered:

So the adhesions leave a little bit of residue on it so you can actually see the adhesion on the anterior abdominal wall and you can see the adhesion is usually where the bowel is released. So you look where you’re, where you released it. You look at the bowel where it was released, you look at the anterior abdominal wall where it was released. So you look at your surgical site in front of you.

[92] This evidence suggested that Dr. Kives did go back to inspect the site of the adhesions before she closed Ms. Szeto’s incisions. In cross-examination, plaintiff’s counsel took Dr. Kives back to her evidence on discovery. Dr. Kives adopted her evidence at discovery, that she had checked only the distal part of the colon near the colpotomy. She testified at trial that, “I did not specifically look around the bowel for a bowel injury because I didn’t think there was one. That is correct.”

[93] One of the trainee surgeons, Dr. Yeung, described the surgeon’s practice of checking at the end of the procedure. As a surgical team member, she was able to see on screen wherever Dr. Kives directed the camera. She testified that this process involved checking for hemostasis and cauterizing and bleeding and “anything of concern.” Dr. Yeung did not describe any examination of the bowel in the area where the dissection of adhesions occurred. Had Dr. Yeung noted any bowel injury, she testified that she would have alerted her primary surgeon.

[94] I find that Dr. Kives took several steps at the end of the surgical procedure to check for issues arising from the surgery, and consistently with her usual practice. These steps included checking for bleeding and cauterizing any places where there was bleeding from the cutting away of blood supply (the pedicles) to the now-removed organs. The check for hemostasis was in Dr. Kives’ operative summary and was part of her evidence. It was consistent throughout both discovery and trial. Dr. Yeung, her trainee surgeon, corroborated this evidence.

[95] I also find that as part of her standard practice, Dr. Kives irrigated the abdomen and flushed it several times to ensure it was hemostatic. The surgical note reflected this step by describing the inspection for “good hemostasis.”

[96] Dr. Kives testified that had there been a large injury to the bowel, she would have hoped that there would be particulate (stool) in the fluid that would help indicate such an injury. Dr. Kives stated that fortunately she has not had such an event happen to her to know what size of an injury might lead to this particulate. However, the expert evidence, with which Dr. Kives did not disagree, explained that low bowel motility during surgery and the formation of stool in the part of the bowel affected makes it unlikely that stool would leak into the abdomen during surgery through an accidental perforation.

[97] As for going back to inspect the bowel area near the left fallopian tube where the adhesions were taken down under magnification, I find that Dr. Kives did not go back to carefully inspect for bowel damage, either under magnification, or with instruments. I say this for three reasons.

[98] First, despite having identified the significant quantity of adhesions in Ms. Szeto’s anatomy, Dr. Kives did not make any note about returning to that area to check. Given that Dr. Kives felt it important to describe a “significant quantity” of adhesions, this makes it a notable finding.

[99] Second, unlike the visualization and irrigation steps which fall under checking for “good hemostasis”, the checking of the bowel at the point where the adhesions had been taken down cannot be said to be part of the standard procedure, which informed Dr. Kives’ recollection. Although at trial, Dr. Kives linked the checking of the pedicle (blood supply) to checking at the adhesion site, her evidence was not consistent with that of the defence expert, Dr. Bernardini. He testified that the definition of pedicle refers to the blood vessels, in this case those supplying the ovary. This was not the area where the adhesions were dissected. Adhesions are not a source of blood supply to organs.

[100] Third, Dr. Kives’ evidence at discovery was that she did not inspect the entire sigmoid colon, but only the portion close to the colpotomy. This would mean she did not go back to re-examine the portion of the bowel where she “took down” the adhesions. Dr. Kives’ evidence in chief at trial was that she did look at where she “took down” the adhesions, yet in cross-examination, she agreed that her discovery evidence was accurate and true. The two pieces of evidence are inconsistent. Given Dr. Kives’ evidence about her recollection of this surgery, and her reliance on her usual practice, I find that her discovery evidence, which she adopted at trial, is more likely reflective of what happened in this case. It is also more consistent than not with the evidence and findings about the bowel perforation’s size, which was significant and capable of being seen, had Dr. Kives looked in that area.

[101] Dr. Kives’ usual practice was not to check the bowel area in every patient. The significant quantity of adhesions in this case were unique to Ms. Szeto’s anatomy and are not a usual part of every patient’s anatomy. Dr. Kives agreed in cross-examination that, normally, the left fallopian tube would not adhere to the bowel. Dr. Kives’ trial evidence that she went back to check this area of the bowel is inconsistent with her operative note, her discovery evidence, and her usual practice. Thus, I do not accept this evidence.

[102] I find that Dr. Kives did not do any additional checking of the bowel area to look for any perforation or damage, other than in the area where she performed the colpotomy, that is the removal of the reproductive organs. She followed her usual procedures for inspection which involved checking for hemostasis and flushing/irrigating the surgical area. Given my findings of fact as to the size of Ms. Szeto’s bowel injury, this would explain why neither Dr. Kives nor Dr. Yeung “saw” the large perforation. As Dr. Kives testified, she was not suspecting any injury to the bowel. I find that she acted accordingly.

[103] Having made these findings of fact, I turn to the analysis of the standard of care.

C. Has the plaintiff established on a balance of probabilities that Dr. Kives fell below the standard of care?

[104] Dr. Le and Dr. Bernardini both testified that bowel injury is a known, and serious risk in reproductive organ removal surgery of this type. Every gynecologist is expected to know that bowel injury carries a high risk of morbidity or mortality. As a result, gynecologists must be vigilant in detecting bowel injury during surgery.

[105] In accordance with that vigilance, both Dr. Le and Dr. Bernardini agreed that the standard of care in circumstances where there had been removal of substantial adhesions involving the bowel, requires “the surgeon to re-examine the area carefully at the end of the case and document that no injuries were sustained during the procedure.” Adhesions present an additional risk to the bowel because they can closely resemble the bowel, and they can make the bowel “adherent” that is, unable to move.

[106] Dr. Le opined that the size of the perforation had to have been significant to result in Ms. Szeto’s injuries. Dr. Le testified that he believed it was 1-2 cm, which I find is a significant perforation. It could and should have been detected after a careful examination of the bowel. It would have been “easily visible under magnification if the surgeon [was] specifically looking for it.” I accept this evidence.

[107] Dr. Holliday also testified that the perforation “should have been obvious, if the area was inspected.”

[108] Dr. Bernardini agreed that “if a perforation of the sigmoid colon was of significant size by the end of the hysterectomy, it would have been visible to the surgeon if that surgeon met the standard of care by carefully looking at those areas of dissection.”

[109] I find that Dr. Kives did not re-examine the bowel area at risk at the end of the surgery. She did not document any re-examination of that area, nor did she document a positive finding that no injuries were sustained during the procedure. All expert witnesses agreed that had she done so, an injury as significant in size as this one, between 1-2 cm, would have been detectable on examination. This injury existed and was detectable.

[110] Unfortunately, Dr. Kives was not thinking that she had caused a bowel injury, which may have influenced her approach in this case. The only way she could have known that she had or had not injured Ms. Szeto’s bowel was to have gone back to the surgical site and checked.

Did the standard of care require Dr. Kives to manipulate or “run” the bowel before closing?

[111] The plaintiff submitted an alternative argument had I found that Dr. Kives did go back to visually inspect the bowel before closing. The plaintiff submitted that regardless of whether she did a visual inspection, Dr. Kives did not meet the standard of care based on Ms. Szeto’s additional risk factors. These required Dr. Kives to manipulate the bowel, or in surgical vernacular to “run” the bowel to check for any damage before completing Ms. Szeto’s surgery.

[112] Dr. Le described this step as the surgeon manipulating the bowel segment at risk and stretching it to ensure no injury to it had happened during the surgery. He explained that running the bowel laparoscopically means that the surgeon uses instruments to “walk” along the bowel, looking carefully at its surface to identify any defects. Dr. Le testified that this checking of the bowel is a step that surgeons should either be comfortable carrying out, or they should seek assistance from a general surgeon. In his opinion, which I accept, the significant adhesions and the perforation of the fundus were risk factors that ought to have led Dr. Kives to have a heightened “index of suspicion” that an injury to the bowel could have occurred, requiring this careful step, even after a visual inspection.

[113] I accept the expert evidence that Ms. Szeto had additional risk factors that would have required this step. These risk factors were i) the significant adhesions; ii) the perforation of the fundus by the uterine manipulator; iii) Ms. Szeto’s body fat; and iv) the documented epiploica on the bowel. I discuss each of these additional risk factors in turn.

The Adhesions

[114] The significant adhesions in this case were a surgical finding remarkable enough for Dr. Kives to include them in her operative summary. Although adhesions can range in density, thickness, and appearance depending on the individual, Dr. Kives made no note of the nature of the adhesions. And, although Dr. Kives’ evidence is based on her usual practice because she had no recollection of the specifics of Ms. Szeto’s surgery, at trial she provided a detailed description of the adhesions:

Q. Now you have in your note here that there was a significant amount of adhesions. What, if anything, was that describing about the adhesions? A. For me, that was just describing the number of adhesions. So she had lots of adhesions between the fallopian tube and the bowel on that side. Q. And what is your recollection about notwithstanding the quantity of the adhesions but the quality of the adhesions? The density, as you said? A. The density of the adhesions was very thin, translucent, and very well defined. Q. What do you mean by that, “well-defined”? A. When you look at an adhesion that’s well defined, you can really define—you can see where the adhesions starts and where the bowel ends. So it makes it—it gives you a safety measure. So, taking down adhesions reflects am I going to be able to easily, safely take these down and not injure the structure that the attachment is—where the adhesion is attached to.

[115] Counsel took Dr. Kives to an article discussing the quality of different sorts of adhesions. Dr. Kives testified that Ms. Szeto’s adhesions were like those identified in the article as the flimsiest, or “Grade 1” adhesions.

[116] Dr. Kives testified nine years after the surgery. Her answers in examination for discovery, three years after the surgery, referred to her usual practice because as she said at that time, she did not have a memory of the specific steps that she took. I am cautious about accepting such a specific and emphasized piece of evidence about Ms. Szeto’s anatomy and the flimsiness of the adhesions identified as a risk factor and in Dr. Kives’ view, the likely site of the injury.

[117] I find that in the context of all the evidence, the findings of fact and Dr. Kives’ recollection as reported in discovery, that this is not a reliable piece of evidence. I am not able to conclude that the adhesions were so flimsy that they did not present a risk factor that would have meant there would be no need for Dr. Kives to manipulate or check the bowel for injury after dissecting the significant quantity of adhesions. I find that Ms. Szeto had significant and noteworthy adhesions between her bowel and fallopian tube, which required a significant cutting away from the bowel to release the fallopian tube. I accept Dr. Le’s evidence that this finding would have required the additional step of manipulating the bowel to ensure it had not been damaged, had Dr. Kives done the preliminary visual inspection and seen no evidence of damage to Ms. Szeto’s bowel.

Perforation of the Fundus by the Uterine Manipulator

[118] On the second risk factor, that of the uterine manipulator and the perforation of the fundus, Dr. Le testified that the presence of adhesions between the sigmoid colon and the fallopian tube would draw the organs much closer together. As a result, the sigmoid colon can be brought closer to the uterus. Dr. Le testified that because of this proximity, the perforation of the fundus of the uterus with the uterine manipulator represented the other possible mechanism of injury to the bowel. The organ remained connected by a ‘significant amount of adhesions.” Therefore, the perforation of the fundus, in a patient with significant adhesions between the fallopian tub and the bowel presented an addition risk factor that Dr. Kives ought to have considered and acted upon by manipulating the bowel.

Obesity and Epiploica

[119] Although Dr. Le did not discuss two other risk factors; obesity and epiploica (which are fatty pouches on the colon), Dr. Bernardini agreed in cross-examination that in an obese patient with a lot of adhesions, bowel injury is a “known and recognized” complication. He also agreed with the suggestion that epiploica can negatively impact what a surgeon sees during an operation and, in such a case, that he would document this. Dr. Bernardini identified epiploica along the sigmoid colon as making it more difficult to identify the plane between any adhesions and the bowel.

[120] While counsel for Dr. Kives submitted that only the plaintiff’s expert risk factors should be considered, I disagree. Risk factors conceded by a defence expert who is qualified to give an opinion may be given weight in making findings on standard of care. I accept that Ms. Szeto’s body fat, and the presence of epiploica were additional risk factors which ought to have been considered.

[121] On the plaintiff’s alternative theory of liability, I find that Dr. Kives did not meet the standard of care. If Dr. Kives did go back to visually inspect the bowel before closing, Ms. Szeto’s risk factors required that Dr. Kives “run” the bowel to meet the standard of care. The risk factors required Dr. Kives to stray from her usual practice. Dr. Kives’ failure to do so simply indicates that she was not alive to Ms. Szeto’s risk factors, which the experts agreed she ought to have acknowledged and considered.

D. Did Ms. Szeto sustain damage that was caused by Dr. Kives’ failure to meet the standard of care?

[122] I find that Dr. Kives did not meet the standard of care during the surgery which damaged Ms. Szeto’s bowel. I find that the injury happened during the surgery conducted by Dr. Kives. It was a significant injury, a perforation measuring 1-2 cm. Dr. Kives failed to adequately inspect the bowel prior to closing, discover, and ensure the perforation was repaired. Had she done so, it is likely, on the expert evidence that the emergency surgery and complications arising from the peritonitis would have been avoided. However, the failure to detect and repair the damage to her colon meant that Ms. Szeto suffered fecal peritonitis and sepsis which required urgent surgery to save her life within 36 hours of the laparoscopic hysterectomy.

I conclude that Dr. Kives’ failure to meet the standard of care caused Ms. Szeto’s damage. But for Dr. Kives’ failure to conduct the necessary careful inspection, the additional complication would have been discovered and repaired. Ms. Szeto would not have suffered the damage that she did. I find that Dr. Kives is liable in negligence to Ms. Szeto.

CONCLUSION

[123] If the parties are not able to agree as to costs, they may make brief written submissions (maximum 4 pages) in writing, due by January 15, 2025.

Leiper, J.

Released: December 31, 2024

Footnotes

[1] There were other parties originally included in the action: another plaintiff, Wayne Szeto, and defendants, Intuitive Surgical Inc, Minogue Medical Inc, St. Michael’s Hospital, Dr. Grace Yeung, and Nurse Jane Doe. Those parties are no longer involved in litigation and did not appear at trial.