The trial judge described the standard of care this way:
- I am satisfied that the standard of care for a general surgeon is to identify, protect, and avoid direct contact with or close proximity to the ureter when using an energy emitting device like the LigaSure.
- Based on the experts’ testimony, “close proximity” means within one to two millimeters of the ureter…1
Injuries from a LigaSure in colectomy surgery are rare, and most cases involve anatomical risk factors, which were not present in Ms. Armstrong’s case. Dr. Ward admitted that it would have been a breach to use the LigaSure within 2mm of the ureter, but doubted that he had done so. He did not adduce any evidence that staying two millimeters away from the ureter would not be accomplished if the surgeon used reasonable care.
The trial judge found that Dr. Ward took some, but not all necessary steps, to protect the ureter and he was not sufficiently diligent in checking and rechecking where he was, and inadvertently came too close to the ureter.
The judge ultimately found that Dr. Ward was negligent and caused Ms. Armstrong’s injury, by either burning the ureter directly or bringing the LigaSure too close to the ureter, which then healed and created the blockage.
On appeal, Dr. Ward argued that the trial judge adopted a “results-oriented” approach to the standard of care. Dr. Ward argued that the trial judge concluded he was negligent simply because he failed to achieve the “goal” of avoiding injury to Ms. Armstrong’s ureter, or alternatively that, after concluding that Dr. Ward had taken “steps” to identify and protect the ureter, it necessarily followed that he was not negligent. Dr. Ward also argued that the trial judge failed to consider the possibility that he had accidentally, and without negligence, came too close to Ms.
Armstrong’s ureter.
The majority of the Ontario Court of Appeal agreed with Dr. Ward and found that the trial judge erred in defining the standard of care that Dr. Ward had to meet and improperly established a “standard of perfection.” Key to the majority’s analysis was that the trial judge measured Dr. Ward’s liability according to the goal of a prudent surgeon (not to touch or come within two millimeters of the ureter) rather than the means or steps a prudent surgeon would use to attain that goal. The majority accepted Dr. Ward’s argument that defining the standard of care by stating the goal says
nothing about how a prudent surgeon would go about achieving that goal, which is the pertinent inquiry.
Presumably, a defendant could testify that they tried to meet the standard of care but were not successful and that would be sufficient to meet the standard of care – a defense to almost any claim of negligence, making succeeding in such cases near impossible for plaintiffs.
Justice van Rensburg wrote a dissenting opinion for the Court of Appeal. She concluded that trial judge’s decision was fully supported by the evidence. The trial judge ultimately accepted the plaintiff’s theory of the case that a thermal injury resulted from the defendant’s use of the LigaSure within two millimeters of the ureter. By contrast, Dr. Ward’s evidence was that he stayed 5-15 cm away from the ureter. His experts offered different opinions as to how the injury could have occurred at this distance, which the trial judge did not accept.
