



COURT OF APPEAL FOR ONTARIO

CITATION: Bollman v. Soenen, 2014 ONCA 36

DATE: 20140117

DOCKET: C56478

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Barbara Jane Bollman, Naomi Lynne Bollman and Nicholas
    Donald Bollman

Plaintiffs (Respondents)

and

Dr. Gary Maynard Soenen

Defendant (Appellant)

Ronald G. Slaght Q.C. and Lindsay N. Beck, for the
    appellant

André I.G. Michael and Jill S. McCartney, for the
    respondents

Heard: December 11, 2013

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated December 13, 2012, with reasons reported
    at 2012 ONSC 7090.

Benotto J.A.
:

OVERVIEW

[1]

The appellant, Dr. Gary Maynard Soenen, is a general surgeon who
    performed a hysterectomy on the respondent, Ms. Barbara Jane Bollman.  During
    the course of the operation, the respondents ureter was transected. The damage
    to the ureter was not diagnosed for three weeks. The trial judge found that the
    appellant met the standard of care in the performance of the operation, but
    that he operated on the respondent without her informed consent and was
    negligent in not diagnosing the damage to the ureter sooner.

[2]

For the reasons that follow, the appeal is allowed and a new trial is
    ordered.

FACTS

[3]

The appellant practices in Simcoe, Ontario. In May 2007, the respondents
    family doctor referred her to the appellant for a consultation about prolonged
    and heavy menstrual periods.  In September 2007, the appellant treated the respondents
    condition by performing endometrial ablation, a procedure that burns tissue
    inside the uterus.  This procedure was not particularly effective and the respondent
    remained in a lot of pain with her periods.  The appellant thought it likely
    that the respondent would have to undergo a laparoscopic assisted vaginal
    hysterectomy (LAVH).  After meeting with the respondent, he reported to the
    family physician that he had reviewed the procedure and the possible
    complications with Ms. Bollman and that she understood and wanted to proceed. 
    At trial, though the appellant had no notes or specific recollection of his
    discussion with the respondent, he testified that his usual practice was to
    tell the patient of risks including bleeding; infection; and injury to the
    bowel, bladder, and ureter.  The respondent testified that she did not recall
    what was discussed beyond bleeding and infection.

[4]

The appellant performed the surgery on June 23, 2008, at Norfolk General
    Hospital in Simcoe, Ontario, and the respondent was discharged the following
    day. Unbeknownst to the appellant, the respondents ureter had been transected
    during surgery.

[5]

On June 28, the respondent went to the emergency room of the hospital,
    complaining of a rash and redness in the incision.  The emergency room
    physician and the appellant diagnosed her with abdominal wall cellulitis.  She
    was admitted to the hospital and placed on IV antibiotics.  It was agreed by
    the experts who testified that this was a reasonable diagnosis and treatment

[6]

The respondent was discharged on June 30. She returned to the emergency
    room on July 3 with complaints of abdominal pain and urinary retention.  A
    catheter was inserted to drain her bladder, and she was discharged.

[7]

She returned again to the hospital on July 5 with urinary retention.
    Again, her bladder was drained.  The emergency room physician who saw her
    prepared a request for a CT scan.  The request stated URGENTMONDAY PLEASE
    (July 7/08), noted that she was experiencing urinary retention and had been
    diagnosed with abdominal wall cellulitis, and indicated that the purpose of the
    scan was to rule out an abscess.  The respondent was sent home the same day.

[8]

The requested CT scan was not done on July 7.  The appellant assessed
    the respondent that day at the hospital and he diagnosed a pelvic hematoma. In
    his view, the CT scan was not necessary. An ultrasound performed that day
    showed a large cystic mass behind the bladder.  There was no gross free fluid
    in the pelvis or the abdomen that might indicate a damaged ureter. The
    radiologist who read the ultrasound suggested that a CT pelvic scan may give
    more information, but once again, a CT scan was not performed. The respondent
    was sent home.

[9]

The respondent returned to the appellants office at her pre-arranged
    appointment on July 9.  There was fluid draining from her vagina, which, in the
    appellants view, was consistent with a hematoma.

[10]

On
    July 11, the respondent returned to the hospital with abdominal pain.   Her abdominal
    X-rays were normal, and she was discharged.  The next day, she was admitted to
    the hospital because of worsening pain and pelvic spasms.  The next day, July
    13, the appellant performed a laparoscopy, intending to drain what he believed
    to be an infected hematoma. However, the laparoscopy revealed that there was no
    hematoma.  As a result, the appellant consulted a urologist, who suggested a CT
    scan with a dye contrast to examine the ureter.  This was performed on July 14,
    at which point the injury to the left ureter near the bladder was revealed.

[11]

If
    an injury to the ureter is diagnosed within a week of the injury, the repair
    can be done right away and the results are usually good. By July 14 it was too
    late.  The injury to the bladder could not be immediately repaired. The tissue
    surrounding the injured ureter had to be left alone to heal for a period of 3
    to 6 months before reparatory surgery could be performed.  A tube was inserted
    into her abdomen to drain the urine into a plastic bag so that the surrounding
    tissue could heal.  In October 2008, the reparatory surgery was eventually
    done.

FINDINGS OF THE TRIAL JUDGE

[12]

The
    trial judge found as a fact that the appellant, although a general surgeon, was
    qualified to perform the LAVH and that, in doing so, he met the standard of
    care.  In other words, the appellant was not negligent in performing the
    surgery that damaged the ureter.

[13]

However,
    the trial judge found that the appellant did not tell the respondent about the
    possibility of damage to the ureter and thus operated on her without her
    informed consent.   Under a section of the reasons entitled Battery, the
    trial judge stated that although the respondent was eager to end her symptoms,

I do not think that she was determined to have a hysterectomy
    without regard to the risks. I believe her when she says that if she had been
    offered a referral to a gynaecologist, she would have taken it, and got a
    second opinion.  I infer that if anyone had told her that the result could be
    achieved otherwise, she would have chosen the less invasive medical option, particularly
    if she had been informed of the risk of damage to her ureters.

[14]

The
    trial judge also found that the appellant was negligent in his management of
    the respondents condition after the operation.  He accepted the evidence of
    the respondents experts that the appellant should have followed through with
    the CT scan on or shortly after July 7, 2008.  On this basis, the trial judge
    found that the delay in diagnosing the damage to the ureter caused the respondent
    to suffer more pain for a longer time and increased the physical damage done by
    the original injury.  The trial judge found the appellant negligent for not
    conducting a CT scan on July 7.

[15]

Damages
    were assessed for pain and suffering and loss of past and future income.

ISSUES

[16]

There
    are three issues on appeal:

1. Did the trial judge err in his
    analysis of informed consent?

2. Did the trial judge err in finding
    that the appellant was negligent with respect to his delayed diagnosis of the injury
    to the ureter?

3. Did the trial judge err in his assessment of damages?

ANALYSIS

[17]

The
    trial judge erred in law in his analysis of informed consent and in his failure
    to address causation in his determination of the appellants liability for negligence
    with respect to the delayed diagnosis. It is therefore unnecessary to address
    the question of damages.

(1)

Informed Consent

[18]

The
    trial judges determination of liability on informed consent was based on a
    misapprehension of the law.  In the context of medical treatment, battery
    arises when there is no consent at all.   An example would be when the wrong
    operation or procedure was conducted.  When there is an allegation of a deficiency
    in the explanation of risks, the issue is that of informed consent.

[19]

This
    distinction was clarified by the Supreme Court of Canada in
Reibl v. Hughes
,
    [1980] 2 S.C.R. 880.   At pp. 890-92, Chief Justice Laskin said:

In my opinion, actions of battery in respect of surgical or
    other medical treatment should be confined to cases where surgery or treatment
    has been performed or given to which there has been no consent at all or where,
    emergency situations aside, surgery or treatment has been performed or given
    beyond that to which there was consent.



in my view, unless there has been misrepresentation or fraud
    to secure consent to the treatment, a failure to disclose the attendant risks,
    however serious, should go to negligence rather than to battery.

[20]

Although
    the trial judge headed the discussion of informed consent Battery, his
    analysis makes it clear he was speaking of a failure to disclose the risks of
    surgery. The proper issue is therefore informed consent.
Reibl v. Hughes
sets out a two-part test for informed consent.  The first is subjective; the
    second is objective.

[21]

The
    subjective test is based on what the particular patient would have agreed to if
    the risks were known.  It will of necessity vary from patient to patient and
    take into account factors unique to the individual.  The objective test is
    based on what a reasonable person in the respondents position would have
    done.  Both the subjective and the objective criteria must be established for the
    respondent to prove on balance of probabilities that she is entitled to damages
    for the lack of informed consent.

[22]

The
    subjective test alone cannot be relied upon, for it imports an element of
    hindsight reasoning.  A patient could be inclined to say that he or she would
    not have undergone the procedure if the risks that in fact materialized and that
    form the basis of the action had been known.  As stated in
Reibl v. Hughes
,
    at p. 898:

[T]o apply a subjective test to causation would, correlatively,
    put a premium on hindsight, even more of a premium than would be put on medical
    evidence in assessing causation by an objective standard.

[23]

The
    objective test is based on reasonableness, as stated in
Reibl v. Hughes
,
    at p. 900 :

In short, although account must be taken of a patients
    particular position, a position which will vary with the patient, it must be
    objectively assessed in terms of reasonableness.

[24]

Here,
    the trial judge dealt only partially with the subjective test and not at all
    with the objective test.

[25]

To
    meet the subjective test, the respondent must establish that the material risks
    or treatment alternatives were not adequately disclosed and that had they been
    disclosed, consent would not have been given.  The evidence here was that there
    was a 2% risk of damage to the ureter.  The appellant testified that his
    standard risk conversation includes a discussion of possible injuries to the
    surrounding organs, including the ureter, as well as bleeding and infection. 
    The respondents evidence was that she did not recall a discussion of risks
    beyond that of bleeding and infection.  On this basis, the trial judge held as
    follows:

I believe her when she says that the defendant informed her of
    the general risks, but not the risk of damage to her ureters.

[26]

Whether
    this is a reasonable finding on the evidence or not, it only addressed part of
    the subjective test.  There could be no finding as to what she would have done
    because she was not asked what she would have done had she been told there was
    a 2% chance of damage to the ureter.

[27]

The
    trial judge inferred that the respondent would have chosen the less invasive
    medical option had anyone had told her that the result could be achieved
    otherwise than by the surgery.  There is no evidence to support this finding
    since she was never asked about medical options or less invasive treatments and
    there was no expert evidence that a medical option would have been beneficial. 
    On the contrary, the evidence was that a hysterectomy was a reasonable
    treatment for her condition.  Thus, there was no evidentiary basis for the
    trial judge to conclude that the subjective aspect of lack of informed consent
    was established.

[28]

The
    trial judge did not consider the objective aspect of the test at all. The respondent
    was suffering from prolonged fatigue, she was past child bearing age, and she
    had tried other treatments without success. Had he considered the objective
    test the trial judge may well have concluded that a reasonable person in the
    respondents position would have consented to the surgery.

[29]

The
    trial judges finding that there was not informed consent cannot stand.

(2)

Delayed Diagnosis

[30]

The
    basis for the finding of negligence in connection with the post-surgery
    treatment is the appellants failure to conduct the CT scan on July 7, 2008. 
    There is no evidence that a CT scan should have been conducted before July 7 or
    that the ureter damage should have been diagnosed before that date.

[31]

The
    trial judge found that the negligence of the appellant was based on his failure
    to conduct the CT scan on July 7, as requested by the emergency room physician
    and subsequently suggested by the radiologist.  This finding presumes that the
    CT scan that was ordered would have revealed the damage to the ureter and that
    the repair could have been done sooner.  Those two assumptions were not
    supported by the evidence.

[32]

There
    was no evidence that the damage to the ureter would have been discovered as a
    result of the CT scan.  None of the experts were asked if the CT scan that had
    been ordered would have revealed the injury.  In fact, the respondents own
    expert, Dr. Radomski, stated that a CT scan with contrast would have been
    required to identify the ureters.  Dr. Radomski was referred to the emergency
    room physicians request for a CT scan:

Q.      The, in the middle of the page under history and
    clinical information youll see that its written, r/o abscess, rule out abscess?

A.      Yes.

Q.      And youll agree with me theres no mention in this
    record that a CT should be done to rule out a ureteric injury?

A.      Correct.

Q.      And Ive learned that if you want to specifically do
    that with a CT scan, youve got to request a certain type of CT scan.

A.      Yes.

Q.      Okay.  One with contrast?

A.      Correct.

[33]

Thus,
    it was not established that the CT scan contemplated by the emergency room
    physician would have revealed the damaged ureter.  More importantly, even if
    the damage to the ureter had been diagnosed on July 7, it was already too late
    to perform an immediate repair.  Dr. Radomski testified that if a ureter is
    injured during surgery and the injury is noticed at that time, the success rate
    for the repair is fairly good. However, after about a week, the tissue becomes swollen,
    fragile, and difficult to repair.  After this point, the typical approach is to
    repair the injury 3 to 6 months later so that the tissue can heal.

[34]

The
    one-week mark after the respondents surgery would have been June 30, 2008. 
    There was no evidence that the injury to the ureter should have been discovered
    by that day.  The trial judge concluded that the appellant should have known
    something was wrong from the start based on the respondents symptoms and
    based on her elevated blood urea nitrogen levels on July 7, which, according to
    the trial judge, indicated a kidney problem.  However, this was a factual
    error.  First, no expert said that the symptoms with which she presented during
    the one-week window for immediate repair were indicative of damage to the
    ureter.   Dr. Radomski did not dispute the appellants diagnosis of abdominal
    wall cellulitis on June 28.  Second, contrary to the trial judges assertion,
    the respondents blood urea nitrogen levels were within the normal range on July
    7.  The evidence did not support the conclusion that the appellant ought to
    have been aware of the injury to the ureter before July 7, let alone within the
    one-week window during which an early repair would have been possible.

[35]

Based
    on the trial judges finding that the CT scan should have been done on July 7,
    and even assuming that it would have revealed the damaged ureter, the evidence
    is that the respondent would still have had to wait 3 to 6 months for the
    repair.  At its highest, a diagnosis on July 7 would have caused the respondent
    to avoid the July 13 laparoscopy and the pain between July 7 and the diagnosis
    on July 14.

[36]

The
    trial judges assessment of damages for pain and suffering, loss of past and
    future income, and the OHIP subrogated claim was based on his flawed analysis
    of the lack of informed consent and the delayed diagnosis of the ureter
    damage.  Because I have concluded that his findings on these two issues cannot
    stand and would order a new trial on that basis, it is not necessary to address
    the appeal with respect to damages.

DISPOSITION

[37]

The
    appeal is allowed and a new trial is ordered. The appellants costs are fixed
    in the amount of $20,000.00 as agreed by counsel.

M.L. Benotto J.A.

I agree R.G. Juriansz
    J.A.

I agree W. Hourigan
    J.A.

Released: January 17, 2014


