Plaintiffs obtained another win at the Court of Appeal in a recent medical malpractice case, particularly on the issue of causation.
In Hacopian, the plaintiff died in 2011 of stage IV uterine leiomyosarcoma (“uLMS”) (an uncommon malignant tumour that grows from smooth muscle cells and which spreads to other parts of the body, mainly the lungs and liver, through the blood stream), which had metastasized to her lungs. The allegation at the centre of the lawsuit was that her gynecologist failed to perform a routine endometrial biopsy in 2009 and that, if he had, her cancer would have been detected at an early stage such that her death could have been avoided through proper treatment.
The trial judge found that the defendant breached the standard of care and that his breach caused the plaintiff’s death. Only the finding on causation was appealed.
The facts are lengthy and complicated. In a nutshell, it appears that the plaintiff had been diagnosed with fibroids (muscular tumours that grow in the wall of the uterus and that are generally benign) in 1999. Fibroids are known to cause, among other things, heavy bleeding if they grow to a significant size. In 2004, this started to happen to the plaintiff. The bleeding would last for 2 weeks each month, such that her family physician ultimately referred her to the defendant in 2009.
By that point, she presented with several known risk factors for uterine diseases, including that she was over 40, she experienced abnormal uterine bleeding, and that she was nulliparous. At her first appointment, the defendant took a blood swab but did not perform an endometrial biopsy (a simple procedure that can be done in a gynecologist’s office, lasting mere minutes, and that can detect the presence of malignancies and abnormalities, including endometrial cancers and uLMS).
Shortly after her first appointment, she began experiencing significant health problems, requiring multiple ER visits and other hospital/specialist appointments. Ultimately, in April 2011, the defendant finally performed an endometrial biopsy, which revealed that the plaintiff had a high-grade cancerous tumour in her uterus, which turned out to be stage IV uLMS. Despite the initiation of chemotherapy, she died in August 2011.
The trial judge found that: (i) the defendant breached the standard of care by failing to perform an endometrial biopsy at his first appointment with the plaintiff in May 2009; (ii) a biopsy performed at that first appointment would have detected the uLMS and thus significantly improved her prognosis; and (iii) the harm that occurred was foreseeable and related to the appellant’s failure to perform the biopsy.
The appeal focussed on (ii) and, particularly, factual and legal causation.
On legal causation, the Court of Appeal found that, while the trial judge improperly and retrospectively found that an endometrial biopsy would have detected the presence of uLMS, the error was harmless because the scope of the foreseeability analysis was not limited to detecting uLMS. Rather, in a helpful and important finding, the court found that focussing on whether uLMS was a foreseeable risk of not having an endometrial biopsy unduly narrowed the scope of risk that should have been foreseen. Rather, the focus should have been on whether “…the harm suffered [was] of a kind, type or class that was reasonably foreseeable as a result of the defendant’s negligence…In failing to conduct a test that would have detected the presence of cancers of the “same class” or character as uLMS, including uLMS, it was foreseeable that uLMS or other malignancies would go undetected, with consequent injury to Ms. Hacopian-Armen.”
In response to a defence argument that such a finding would cause physicians to order unnecessary tests (thereby wasting resources), the Court of Appeal accepted that the endometrial biopsy was a necessary test in the circumstances and thus the argument was unfounded.
On factual causation, the defendant argued that the trial judge erred by finding that: a) uLMS was present in 2009 when the endometrial biopsy should have been performed, and b) that an endometrial biopsy would have detected uLMS had it been present.
On the former point, the defendant argued that the plaintiff’s expert’s report was deficient and that he should not have been allowed to testify because it did not set out why the expert believed uLMS was present in 2009. The Court of Appeal, however, found that the expert properly explained, using reverse chronology from the date of death and working backwards, that the cancer would have taken a lot of time to metastasize in the way it did. While the reference to the presence of uLMS as of 2009 in his report was not overly lengthy, the crux of his reasonable was still easily discernible from the rest of his report.
On the latter point, the Court of Appeal upheld the trial judge’s acceptance of the plaintiff’s experts (over those of the defendant) that uLMS would likely have been detected by an endometrial biopsy, even though it was not identified by an ultrasound taken within a few months of when the biopsy should have occurred. The plaintiff’s expert testified, and the trial judge accepted that the uLMS was likely and simply very small at the time the biopsy should have been performed, thus making it indistinguishable from a fibroid on imaging. It was for that reason that an endometrial biopsy should have occurred and likely would have detected the cancer.
