Factual Background
The plaintiff underwent a robotic-assisted laparoscopic hysterectomy at St. Michael’s Hospital with the defendant Dr. Sari Kives on July 20, 2015. Dr. Kives documented that during the surgery she took down (or cut) “quite a significant amount of adhesions by the left fallopian tube to the bowel.” Dr. Kives also documented that the top of Ms. Szeto’s uterus was inadvertently perforated during insertion of the uterine manipulator. Otherwise, no complications were noted.
The plaintiff was discharged from the hospital the next morning. She felt unwell over the course of the day. In the middle of the night, she developed chest pain and called an ambulance which took her to Scarborough General Hospital in critical condition. She was taken to the operating room where it was discovered that she had a 2 cm bowel perforation, fecal peritonitis and an intra-abdominal abscess. The plaintiff was in intensive care for weeks and remained in hospital for three months. She required a colostomy which was never reversed.
Issue
The issue at trial was whether Dr. Kives was liable in negligence for failing to detect the bowel injury during the hysterectomy on July 20, 2015. The defence did not dispute that had Dr. Kives discovered the injury intra-operatively, and taken steps to repair it, the plaintiff’s injuries would likely have been avoided. The parties agreed on damages.
Legal Framework
Justice Leiper affirmed that it is important to keep the question of standard of care distinct from causation and that the court must be careful not to reason from the fact that the plaintiff has suffered an injury that the doctor must have been negligent. However, she also concluded that the risk of hindsight bias was low in this case because the plaintiff did not argue that the fact of the bowel perforation necessarily meant that Dr. Kives was negligent. Justice Leiper therefore considered it appropriate to first make the necessary factual findings as to what happened in the operating room before turning to the questions of standard of care and causation.
Decision
Key Findings of Fact
The experts agreed, and Justice Leiper accepted, that the bowel perforation occurred during the hysterectomy conducted by Dr. Kives. Justice Leiper considered the evidence as to the mechanism of injury and concluded that it most likely occurred while Dr. Kives was cutting the significant quantity of adhesions between the left fallopian tube and the bowel. She found that a second explanation was also possible but ultimately it did not matter how the injury occurred because either way the injury happened during the surgical steps over which Dr. Kives had responsibility.
A major area of dispute between the parties was the size of the injury. Evidence from the emergency surgery two days later (including an estimate from the surgeon and an operative photograph with a ruler next to it) suggested that the injury was 1-2 cm. The defence theory was that Dr. Kives made a small cut during the hysterectomy, not visible intra-operatively, which grew to 1-2 cm by the time of the emergency surgery. Justice Leiper rejected this explanation and accepted the plaintiff’s theory that the injury was likely also 1-2 cm at the time of the hysterectomy. She relied primarily on the evidence of the plaintiff’s general surgery expert, who testified that the plaintiff’s clinical course and severity of her presentation on July 22, 2015 was more consistent with a significant injury on July 20, 2015. The defendant did not call a general surgeon to testify.
As part of her findings of fact, Justice Leiper then determined what steps Dr. Kives took to “check her work” before completing the surgery. At trial, Dr. Kives testified that she inspected the site of the adhesions before completing the surgery. Justice Leiper rejected this evidence because: (1) Dr. Kives did not make a note about carrying out that inspection; (2) Dr. Kives’ documented check for “good hemostasis” did not include an inspection of the bowel; and (3) Dr. Kives’ evidence at discovery was that she did not inspect the portion of the bowel where the adhesions were dissected. Justice Leiper found that Dr. Kives’ discovery evidence only three years after the events was more reliable and more consistent with her finding that the injury was significant and capable of being seen, had Dr. Kives looked in that area.
Standard of Care
The experts agreed that the standard of care required Dr. Kives to carefully re-examine the area where adhesions were dissected at the end of the procedure. The experts also agreed that an injury of 1-2 cm would have been visible, had the surgeon met the standard of care by carefully re-examining the areas of dissection. Having already found that the injury was 1-2 cm during the surgery, Justice Leiper concluded that Dr. Kives did not carry out a careful re-examination in accordance with the standard of care.
Justice Leiper also accepted the plaintiff’s alternative argument that, even if Dr. Kives did go back to inspect the area where adhesions were dissected, the standard of care also required her to manipulate or “run” the bowel to check for injury given the plaintiff’s risk factors (the presence of significant adhesions, the perforation of the fundus of the uterus, the plaintiff’s body fat, and the documented fatty pouches on the plaintiff’s bowel). Dr. Kives admitted she did not manipulate or run the bowel.
In finding that the significant adhesions were a risk factor, Justice Leiper rejected Dr. Kives’ testimony that she specifically remembered that the adhesions were “very thin, translucent and very well defined” – again preferring Dr. Kives’ discovery evidence that she did not have a memory of the specific steps that she took.
Causation
Justice Leiper found that Dr. Kives’ failure to meet the standard of care caused the plaintiff’s damage. But for Dr. Kives’ failure to conduct the necessary careful inspection, the additional complication would have been discovered and repaired.
Key Takeaways and Legal Points
- The approach described by Justice Van Rensburg for the Ontario Court of Appeal in Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, and then adopted by the Supreme Court of Canada in Armstrong v. Ward, 2021 SCC 1, continues to be very helpful in surgical cases. The risk of hindsight bias is minimized where the plaintiff’s theory is not that the fact of the injury itself necessarily means the defendant was negligent. It is appropriate for the judge to make findings of fact as to “what happened” during the surgery, and what the defendant did, prior to turning to any question of law.
- A defendant’s testimony as to their usual practice at trial can be undermined by inconsistent evidence given at discovery.
- It is open to the parties to argue that an expert’s opinion should be given less weight due to bias, even if no challenge was made to the expert’s qualifications at the admissibility stage (paragraphs 37-40). That said, Justice Leiper did not accept that the professional relationship between the defendant and her expert led to any features of bias (paragraph 41).
- Counsel’s agreement that the documents in the joint document book were admitted to have been prepared, sent and received on or about the dates set out in the documents was given significant weight in considering any submissions to the contrary (paragraphs 75-81).
- It is open to the trial judge to make findings based on expert evidence given by the defence expert, even if that evidence was not given by the plaintiff’s expert (paragraph 120).