Legal Framework
The Supreme Court of Canada in Armstrong v. Ward2 set aside the Ontario Court of Appeal decision in Armstrong v. Royal Victoria Hospital3 adopting the dissent of Justice van Rensburg. Justice van Rensburg’s dissent in Armstrong v. Royal Victoria Hospital continues to serve as a roadmap for navigating medical malpractice cases, such as difficult surgical negligence cases that require substantial findings of fact due to inconsistent evidence. The court in Szeto v. Kives followed the approach adopted in Armstrong v. Ward and found that it was appropriate to first determine what happened during the surgery before turning to the question of whether the standard of care was breached.4
In St-Jean v. Mercier, the Supreme Court of Canada emphasized that “professionals have an obligation of means, not an obligation of result.”5 The courts should be careful to not use hindsight bias, and to avoid finding that the defendant necessarily breached the standard of care simply because the plaintiff suffered an injury. This is particularly relevant in surgical negligence cases. In Szeto v. Kives, Justice Leiper affirmed that it is important to keep the question of standard of care distinct from causation in order to avoid this very mistake. However, Justice Leiper also found that the risk of hindsight bias was low in this case because the plaintiff did not submit that the fact of the bowel perforation necessarily meant that the defendant was negligent.6 The plaintiff acknowledged at the outset that bowel perforation was a known risk of the surgery and that she gave informed consent to undergo the surgery.
Issue At Trial
The issue at trial was whether the defendant was liable in negligence for failing to carefully examine the bowel and detect the injury during surgery, such that it could be repaired in a timely manner to avoid permanent injury to the plaintiff. The experts agreed that the standard of care for the defendant was to carefully inspect the area where adhesions were dissected for potential damage to the bowel, prior to completing the surgery. The experts also agreed that a significant bowel perforation of 1-2 cm in size would have been visible, had the defendant met the standard of care by carefully inspecting the areas of dissection. Consequently, it was necessary for the court to make a factual finding on the size of the bowel perforation. The plaintiff’s position was that the perforation was already 1-2 cm during the surgery, and thus visible had the defendant inspected the bowel. The defendant’s position was that the injury was a mere “nick” which likely widened to 1-2 cm post-operatively. The size of the perforation was a highly contentious issue that was central to the theories advanced by both parties.
Corroborating Photo Evidence
The first documentation of the size of the bowel perforation was by Dr. Chiu, who conducted the emergency repair surgery. In his operative summary, Dr. Chiu noted that the bowel perforation was quite large and about 2 cm in diameter. The section of the bowel with the perforation was removed during surgery and sent to the pathology lab for examination. In support of the defence theory that a small cut grew over time to potentially 1-2 cm, the defendant tendered at trial the pathology report. The report described the pathologist’s finding that the perforation measured “1 cm in maximum dimension.”
At trial, the plaintiff tendered photographs of the portion of bowel removed from the plaintiff, taken by a member of Dr. Chiu’s surgical team. One of the photographs had a ruler laid alongside the specimen affording fairly objective visual proof about the size of the injury. Justice Leiper found that the photo evidence of the bowel perforation was consistent with Dr. Chiu’s operative summary and the plaintiff expert’s opinion on the clinical course. The plaintiff’s expert additionally testified that the specimen sent to the pathology lab would have been preserved in formalin, which causes specimens to shrink in size by up to 50%. The expert opinion supported the argument that the specimen had likely shrunken by the time of the pathologist’s examination approximately two weeks later, which offered an explanation of the findings consistent with the plaintiff’s version of the events. Based on the consistent and corroborating evidence, Justice Leiper found that the bowel perforation was more likely than not already between 1-2 cm in size during the initial surgery, and that it would have been visible upon inspection and capable of repair had it been detected by the defendant intra-operatively.
Inconsistencies In Defence Evidence
As a part of her findings of fact, Justice Leiper turned to what steps the defendant took to “check her work” prior to completing the surgery. The defendant testified at trial that she inspected the site of the adhesions prior to completing the surgery. Justice Leiper rejected the defendant’s evidence, finding that it is inconsistent with (1) the defendant’s operative note, (2) the defendant’s usual practice, and (3) the defendant’s discovery evidence.7 The defendant failed to document an inspection of the bowel, despite making notes on the significant quantity of adhesions in that area and how she took down those adhesions. She also did not document a positive finding that no injuries were sustained during the procedure based on the alleged inspection.
Defendants often cannot recall what they did or what happened years ago, and may refer to their standard or usual practice as evidence that they would have acted in the same way on the day in question. It is well-established that the court may consider such evidence and even give it significant weight.8 In this case, Justice Leiper found that the standard procedure or usual practice which informed the defendant’s recollection of the events did not include an inspection of the bowel. The defendant’s usual practice, described as a check for “good hemostasis,” did not include checking the bowel area in every patient. The significant quantity of adhesions in the bowel area was unique to the plaintiff in this case.
Lastly, the defendant’s evidence at discovery that she did not inspect where she took down the adhesions, was inconsistent with her evidence in chief at trial that she did look at that area. In cross-examination, she agreed that her discovery evidence was accurate and true. Additionally, the defendant’s discovery evidence, given three years after the surgery was that she did not have a recollection of the specific steps that she took during surgery. However, at trial, nine years after surgery, the defendant provided a detailed description of the adhesions that she had made no note of in the operative report. Justice Leiper found that the defendant’s discovery evidence only three years after surgery was more reliable compared to the testimonial evidence at trial, given nine years after surgery.9 Justice Leiper was cautious about accepting the defendant’s testimony in trial. After further consideration, the court found that the defendant breached the standard of care, and that breach caused the plaintiff’s injuries.
