



COURT OF APPEAL FOR ONTARIO

CITATION: Armstrong v. Royal Victoria Hospital, 2019 ONCA 963

DATE: 20191206

DOCKET: C65404

Juriansz, van Rensburg and Paciocco JJ.A.

BETWEEN

Karen Armstrong

Plaintiff (Respondent)

and

Royal
    Victoria Hospital,
Dr. Colin Ward
, Dr. Scott Powell,

Dr. Jessie-Jean Weaver and
    Dr. Joseph A. Zadra

Defendants (
Appellant
)

Ronald G. Slaght, Q.C. and Sean Lewis, for the appellant
    Dr. Colin Ward

Ryan Breedon and Jan Marin, for the respondent Karen
    Armstrong

Heard: June 20, 2019

On appeal from the judgment of Justice Gregory M. Mulligan
    of the Superior Court of Justice, dated April 16, 2018, with reasons reported
    at 2018 ONSC 2439.

Paciocco J.A.:


OVERVIEW

[1]

In February 2010, Karen Armstrong was seriously injured during colectomy
    surgery performed by Dr. Colin Ward. A trial judge found Dr. Ward to have
    negligently caused Ms. Armstrongs injuries, and therefore liable for damages
    in the agreed upon amount of $1,300,000.

[2]

Dr. Ward appeals the liability finding.

[3]

For reasons I elaborate upon below, I agree with Dr. Ward that the trial
    judge erred in defining the standard of care that Dr. Ward had to meet,
    improperly establishing a standard of perfection. In simple terms, the trial
    judge effectively concluded that if Dr. Ward injured Ms. Armstrongs ureter
    with the cauterization tool he was employing, he would be liable. Instead, the
    trial judge should have determined whether Dr. Ward performed the operation in
    the manner that a reasonably prudent surgeon would have.

[4]

On that correct measure, the trial judges own finding was that during
    the surgery, Dr. Ward took the steps he described to identify and protect the
    ureter. These were essentially the same steps that Ms. Armstrongs own expert surgeon
    conceded a reasonably prudent surgeon would use. Given this finding, the trial
    judge should have dismissed Ms. Armstrongs action.

[5]

I would therefore allow Dr. Wards appeal, set aside the finding of
    liability, and dismiss the action against him.

THE MATERIAL FACTS

[6]

As the result of health concerns Ms. Armstrong was experiencing, Dr.
    Ward surgically removed her colon. Ms. Armstrongs colon was anatomically
    normal, showing no signs of tumour, thickening, or other inflammation. Its removal
    was nonetheless medically indicated because of the symptoms Ms. Armstrong exhibited
    and the previous removal of part of her intestine in an ileostomy. No issue is
    taken with the decision to perform the colectomy. The contention is that Dr.
    Ward performed the surgery negligently, causing injury to Ms. Armstrongs left
    ureter, a tube that carries urine from her left kidney to her bladder.

[7]

In February 2010, Dr. Ward performed the colectomy using laparoscopic
    surgery. Unlike the open method of surgery which requires a significant
    incision, laparoscopic surgery is minimally invasive and is performed through
    small ports in a gas inflated abdomen, with the aid of a camera and
    magnification. Again, no issue is taken with the decision to employ
    laparoscopic surgery rather than the open method.

[8]

The surgery appeared to go uneventfully, with no sign that Ms. Armstrong
    had been injured. However, Ms. Armstrong began to develop increasingly more
    concerning post-operative problems. Initially, it was mild abdominal pain and a
    pulling sensation. By approximately ten weeks after the surgery, she began to
    show significant left flank pain.

[9]

Further investigation revealed that Ms. Armstrongs left ureter was
    blocked or strictured. The blockage was determined to be complete in that no
    dye could pass through it. It was quite lengthy at about 8-10 [centimetres],
    approximately one-third of the length of the ureter itself. The blockage proved
    to be so significant that damage was ultimately caused to her left kidney,
    which had to be surgically removed in October 2010.

[10]

Ms. Armstrong sued Dr. Ward. The central negligence theory pursued
    against Dr. Ward was that he caused adhesions or scar tissue that blocked her left
    ureter by improperly using a cauterizing device, known as a LigaSure.

[11]

A LigaSure is a surgical instrument used to fuse tissue. It is often employed
    during a laparoscopic colectomy to sever and seal the blood vessels and tissue
    connected to the part of the colon that is to be removed. After the small jaws
    of the device are clamped or compressed on the tissue that is to be divided,
    the surgeon deploys an electric current which passes through to heat those jaws
    in order to seal by coagulation the blood vessels in the tissue. The device can
    then be used to divide the tissues.

[12]

It was common ground before the trial judge that thermal energy can spread
    beyond the jaws and is capable of damaging tissue within two millimetres. It is
    therefore an instrument that raises the risk that collateral injury will occur
    to tissue in the immediate vicinity.

[13]

Ms. Armstrong contended at trial that Dr. Ward was negligent in that he either
    touched her left ureter with the LigaSure or brought the LigaSure too close to
    the ureter causing a thermal injury or heat damage. When the injury healed, the
    adhesions and scarring caused the blockage.

[14]

The trial was held in January 2018 without a jury. Dr. Ward admitted
    that Ms. Armstrong sustained damages in the amount of $1,300,000. However, he
    did not admit negligence. He denied that he breached the standard of care
    expected of him as a surgeon, or that the damage Ms. Armstrong sustained was
    caused in fact and in law by any such breach.

[15]

The four expert witnesses who testified are highly experienced and
    celebrated physicians. Each party called two of those experts, one surgeon, and
    one urologist. The surgeons focused on standard of care issues, and the
    urologists concentrated primarily on causation questions.

[16]

The trial judge ultimately found that Dr. Ward breached the standard of
    care, and that this breach caused Ms. Armstrongs ureter injury in law and
    fact.

[17]

With respect to causation, the trial judge found that Dr. Ward caused
    Ms. Armstrongs injury by coming within one or two millimetres of her ureter
    causing damage leading to scar tissue and the eventual ureter blockage. This,
    in turn, caused the loss of Ms. Armstrongs kidney.

[18]

Given that I would allow the appeal because of errors related to the
    standard of care, I will not set out the facts relevant to causation. I will describe
    only those facts material to two related but distinct elements of the tort of
    negligence: (1) the standard of care; and (2) whether that standard was
    breached.

[19]

All of the expert witnesses emphasized the importance of identifying and
    protecting the ureter during laparoscopic colectomy surgery. They agreed that
    the left ureter is one of the anatomical structures that is put at risk and
    that must be identified and protected. There was consensus that the injury rate
    to ureters during colectomies is under, but possibly approaching, one percent. A
    reasonably prudent surgeon would therefore take steps to avoid such injury by
    identifying and protecting the ureter.

[20]

Even Dr. Hagen, the expert surgeon called by Dr. Ward, testified that
    given the risk of injury to the ureter from the LigaSure, he would try and
    stay away from the ureter during the surgery.

[21]

There was no controversy before the trial judge about the steps involved
    in conducting a laparoscopic colectomy with a LigaSure. In simple terms, the
    abdominal cavity is entered and the colon  a large u-shaped structure that can
    be up to five feet long  is identified using the laparoscopic camera. The
    surgeon then mobilizes the colon to enable it to be moved within the abdomen,
    which has been inflated with gas. This mobilization is done without the LigaSure
    by using blunt dissection and cautery to free its attachments to the
    peritoneum. Once mobilized in this way, the colon can be elevated toward the upper
    abdominal wall, a process referred to as tenting. This enables the
    retroperitoneal structures  those in the back part of the abdomen that were
    under the colon, including the left ureter  to be observed with the
    laparoscope. The identification of the ureter can be confirmed by pinching or touching
    it. When this is done, unlike a blood vessel, it can be seen to contract or
    vermiculate. Once identified, the ureter is swept or pushed away to create
    distance between the ureter and the colon before the LigaSure is deployed to
    sever and seal the blood vessels, lymphatics, and fatty tissue that remain
    connected to the colon. The location of the ureter is re-confirmed periodically
    throughout the surgery through further vermiculation. Once the connections are
    removed in this way, the part of the colon being removed  in this case the
    entire organ  can be excised and taken from the body.

[22]

The expert surgeon called by the defence, Dr. Hagen, testified that the
    standard of care for a surgeon performing a laparoscopic colectomy would be met
    if these steps were taken. So, too, did Dr. Ward. They both took the position
    that if these steps were taken, including
trying
to stay a safe distance from the ureter, there would be no breach of the
    standard of care if the surgeon happened accidentally to come within two
    millimetres of the ureter with the LigaSure during the surgery.

[23]

This was the point of disagreement in the testimony of plaintiffs
    expert, Dr. Burnstein. His evidence was that if a surgeon took these steps to
    identify and protect the ureter during a laparoscopic colectomy when operating
    on someone with an anatomically normal colon, an injury to the ureter would
    simply not occur.

[24]

Dr. Burnstein explained that where the colon is enlarged from disease,
    the ureter can be obscured or it may be necessary to work close to the ureter, elevating
    the risk of injury. But in his personal opinion, the rate of injury should be
    zero when the colon is anatomically normal because there should be no reason
    to be in the wrong place  and expose other organs to injury. He said, its
    unacceptable to be close to the ureter and put it at risk in a setting where theres
    no reason.

[25]

Dr. Ward described the process he used during Ms. Armstrongs surgery, a
    process confirmed by his post-operative report. He essentially confirmed
    following the steps described in para. 21 above. Dr. Ward explained that when
    dissecting blood vessels, he would work around the colon from the right all
    the way along. Although the ureter can be seen very well at the time it would
    be most at risk, as one moves away from the left and right colon, the ureter does
    not remain in the direct view of the camera.

[26]

Dr. Ward expressed the confident opinion that he did not deploy the
    LigaSure within two millimetres of Ms. Armstrongs ureter because of the steps
    he took. During cross-examination, he agreed with Ms. Armstrongs counsel that
    he intended to keep the LigaSure far away from the ureter. He also agreed that,
    as anything is possible, if he did use the LigaSure within two millimetres of
    the ureter that was an error. But he maintained it would not be a breach of the
    standard of care.

[27]

The evidence of Dr. Burnstein was to the contrary. In his opinion, if
    Dr. Ward took the steps that he described, Ms. Armstrongs injury would not
    have occurred. Dr. Ward must have come unacceptably close to the ureter. He
    said that it is a breach of the standard of care for a general surgeon in
    Ontario to injure the ureter during colectomy surgery on a structurally normal
    colon. He explained that, in his view, where there are no mitigating factors
    such as mass or inflammation; an injured ureter is a failure of the standard
    of care which is to identify and protect the ureter. In his view, since Ms.
    Armstrong had an anatomically normal colon and Dr. Ward injured her ureter, Dr.
    Ward breached the standard of care.

[28]

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 millimetres of the ureter.

[29]

He then moved to whether Dr. Ward breached that standard. With respect
    to Dr. Wards testimony he said:

I am satisfied that Dr. Ward took steps during this laparoscoptomy
    to identify and protect the ureter. He explained those steps and testified that
    he always kept at least five centimetres away from the ureter. But he
    acknowledged that the ureter was not always in camera view during this
    procedure.

[30]

The trial judge had earlier stated, the standard of care is breached by
    touching the ureter or coming within one or two millimetres of it using the
    LigaSure device during the laparoscoptomy. After making the comment in para. 29
    above, he continued:

I accept Drs. Klotz and Bursteins evidence that Dr. Ward came
    within one or two millimetres of the ureter, causing damage leading to scar
    tissue and eventual ureter blockage As a result, Armstrongs kidney had to be
    removed by a subsequent surgical procedure.

In a colectomy procedure, identification and protection of the
    ureter is paramount. Using a LigaSure can cause damage by heat transmission if
    it touches the ureter or comes within one to two millimetres. I am satisfied on
    the facts of this case, the plaintiff has established that Dr. Ward breached
    the standard of care.

ISSUES

[31]

Dr. Ward advances four grounds of appeal, which can conveniently be put
    this way:

A.

Did the trial judge err by imposing an improper standard of care?

B.

Did the trial judge err in his standard of care analysis by conflating
    the standard of care and causation analysis?

C.

Did the trial judge commit palpable and overriding error in giving
    weight to the testimony of Dr. Burnstein?

D.

Did the trial judge err by finding that Dr. Ward caused Ms. Armstrongs
    injuries?

[32]

In my view, the trial judge committed the first of these errors. This is
    enough to resolve the appeal. I will, however, address issue B as well, since
    further guidance is warranted on the role causation can play in determining
    whether a standard of care has been breached. I will not address issue C, but
    I will make related comments about Dr. Bursteins testimony when I address
    issue A. As indicated, I will not be addressing issue D.

A.

DID THE TRIAL
    JUDGE ERR BY IMPOSING AN IMPROPER STANDARD OF CARE?

[33]

The trial judge imposed an improper standard of care when measuring Dr.
    Wards liability. Put simply, he measured Dr. Wards liability according to the
    goal a prudent surgeon would have when conducting the operation, rather than
    the means a prudent surgeon would use to attain that goal. In the circumstances
    of this case, this was an error of law. On the evidence before him, and given
    his own factual findings, he should have found that it was not proved that Dr.
    Ward had breached the requisite standard of care.

[34]

The material question on appeal is whether the trial judge
applied
a proper standard of care. It is not enough,
    therefore, to look solely at the trial judges articulation of the standard of
    care; attention must be paid to the actual reasoning employed. Even if judges
    speak in generic, conclusory terms, including by referring to goals or results,
    when describing the standard of care, this will not be an error if the trial
    judges reasoning demonstrates that a proper standard of care has been
    employed.

[35]

For example, in
Paur (Committee of) v. Providence Health Care
,
    2017 BCCA 161, 96 B.C.L.R. (5th) 320, when describing the standard of care, the
    trial judge spoke only vaguely about the duty of care of a hospital to take
    reasonable steps to keep an impaired, suicidal hospital patient safe. Her
    finding of liability was nonetheless upheld on appeal. The trial judges
    decision was replete with detail about the reasonable steps the standard of
    care required, including building ligature-proof bathrooms, effective
    monitoring of access to the bathrooms by suicidal patients, periodic checks on
    patients who are in the bathroom, and the development of patient safety
    policies.

[36]

It follows that it would be a complete answer to this ground of appeal
    if, despite having stated the standard of care as a goal or result, the trial
    judge had gone on to identify steps that a prudent surgeon would undertake to
    keep from coming within one to two millimetres of ureter when using the
    LigaSure, which Dr. Ward failed to take. As I will explain below, the trial
    judge did not identify any steps beyond those he found Dr. Ward to have taken.

[37]

Even though the issue on appeal has to do with the application rather
    than the articulation of the proper standard of care, I will begin a close
    examination of the trial judges standard of care analysis by repeating his
    articulation of the standard of care, because this is the standard he
    ultimately applied:

I am satisfied that the standard of care is for a general
    surgeon 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 millimetres of the ureter.

[38]

As I will explain in more detail below, the trial judge found that Dr.
    Ward took steps to identify and protect the ureter. Dr. Ward was found to have failed
    to meet the standard of care because he came within one to two millimetres of
    the ureter with the LigaSure. The factual finding that he did so was made
    because it is only within this one to two millimetre distance that the LigaSure
    is capable of causing the thermal injury that Ms. Armstrong was found to have
    sustained. The controversial component of the standard of care that the trial
    judge imposed was therefore his finding that a normal, prudent surgeon would
    avoid direct contact or close proximity (within two millimetres) between the
    ureter and the LigaSure.

[39]

Dr. Ward contends that it is improper and perilous to articulate and
    apply the standard of care in this fashion. Avoiding contact or proximity to
    the ureter with the LigaSure is a goal that a prudent surgeon aims to attain. Defining
    the standard of care by stating the goal tells us nothing about how a prudent
    surgeon would go about achieving that goal, which is the pertinent inquiry.

[40]

Moreover, where the goal used to define the standard of care is, in
    essence, avoiding the injury, as it is here, the standard being imposed is
    strict or absolute liability since liability follows with every injury. This is
    not a proper measure of liability in a negligence case.

[41]

Stating the standard of care in this way also invites circular reasoning
    and collapses the causation inquiry: Did the failure to meet the standard of care
    cause the injury? It did, because causing the injury is a failure to meet the
    standard of care.

[42]

For these reasons, it is generally an error of law to use outcomes or
    goals as the standard of care.

[43]

In
Fullowka v. Pinkertons of Canada Ltd.
, 2010 SCC 5, [2010] 1
    S.C.R. 132, miners were killed by an explosion in a mine shaft during a labour
    dispute. Someone entered the mine to plant the trip-wired explosives that
    caused the deaths. Pinkertons had been hired to provide security and they were
    sued in negligence for their role in failing to prevent the bomber from
    entering the mine shaft. The trial judge found Pinkertons to have breached the
    requisite standard of care because it had failed to ensure the entrances were properly
    guarded to avoid incursions. Cromwell J., who delivered the decision for the
    court, held that this was an error. First, this measure required Pinkertons
    to ensure there was no clandestine access to the mine which is an absolute
    duty, not a duty of reasonable care. Second, the trial judge failed to
    indicate what properly guarding the entrances required Pinkertons to do:
Fullowka
,
    at para. 80.

[44]

Negligence standards of care are to be measured by the behaviour that a
    relevant prudent person would undertake, rather than the results that prudent
    person would seek to attain or avoid. Gonthier J. affirmed this general
    imperative in an instructive Quebec civil law medical malpractice case,
St-Jean
    v. Mercier
, 2002 SCC 15, [2002] 1 S.C.R. 491, at para. 53:

The correct inquiry to be made in assessing whether a
    professional committed a fault is indeed to ask whether the defendant behaved
    as would a reasonably prudent and diligent fellow professional in the same
    circumstances. To ask, as the
principal
question in the general inquiry,
    whether a specific positive act or an instance of omission constitutes a fault
    is to collapse the inquiry and may confuse the issue. What must be asked is
    whether that act or omission would be acceptable behaviour for a reasonably prudent
    and diligent professional in the same circumstances. The erroneous approach
    runs the risk of focussing on the result rather than the means. Professionals
    have an obligation of means, not an obligation of result. [Citations omitted;
    emphasis in original.]

[45]

The same general point was made in a case analogous to this one,
Carlsen
    v. Southerland
, 2006 BCCA 214, [2006] B.C.J. No. 973. In setting aside the
    liability finding made against a spinal surgeon who went beyond the annulus fibrosus
    of the disc and cut the iliac artery and the common iliac vein when performing
    a discectomy, Kirkpatrick J.A. held, at para. 15:

[I]n the trial judges reasons, he concluded that the simple
    precaution that Dr. Southerland should have taken was to ensure that he not let
    his instruments penetrate past the annulus fibrosus. In this respect,
the
    trial judge improperly focused only on the result of the surgery, and not on
    the precise manner in which Dr. Southerland failed to meet the appropriate
    standard of care. In the result, he held Dr. Southerland to a standard that
    amounted to a guarantee. That such a standard has never been the law
is
    exemplified in the passage from
Greaves & Co. (Contractors) Ltd. v.
    Baynham Meikle & Partners
, [1975] 3 All E.R. 99 at 103-104, [1975]
    W.L.R. 1096 (C.A.),
per
Lord Denning M.R.:

The law does not usually imply
    a warranty that [a professional] will achieve the desired result, but only a
    term that he will use reasonable care and skill. The surgeon does not warrant
    that he will cure the patient. Nor does the solicitor warrant that he will win
    the case. [Emphasis added.]

[46]

I have described the bar on defining standards of care according to
    goals or results as a general rule because I would not rule out that there are
    cases where negligence alone could prevent a goal from being achieved or a
    positive result from being attained. Leaving a surgical tool inside a patient
    or removing the wrong limb during surgery might be examples. In such cases, it
    would be harmless in defining the standard of care as outcomes or goals instead
    of prudent means or behaviours; for example, by finding that it is a breach of
    the standard of care of a prudent surgeon to leave surgical tools inside a
    patient or to remove the wrong limb.

[47]

So, the current question is whether the trial judge used a goal or
    result in defining the standard of care, without finding that the goal or
    desired result could only have been missed by negligent acts or omissions. In
    my view, he did. The trial judge measured Dr. Wards negligence by inquiring
    whether Dr. Ward succeeded in not coming within two millimetres of Ms.
    Armstrongs ureter with the LigaSure, instead of asking whether Dr. Ward took
    the steps that a reasonably prudent surgeon would take. Moreover, the trial
    judge made no finding that it is only by negligent acts or omissions that a
    LigaSure can be brought within two millimetres.

[48]

During the course of oral argument, the parties debated whether the
    trial judge actually made this error. It was posited that keeping the LigaSure
    more than two millimetres away from the ureter is itself a step or a behaviour
    that a reasonably prudent surgeon would take, not simply a goal or result. I
    recognize that counsel and witnesses periodically described staying more than
    two millimetres away from the ureter as a step, but whether something is truly
    a step is a matter of substance, not semantics. By its nature, a step involves
    executing an act under ones control. I would agree that prudent surgeons would
    take the step of not knowingly, intentionally, and unnecessarily deploying the
    LigaSure within two millimetres of the ureter, or any collateral tissue for
    that matter. Both Dr. Ward and his expert witness, Dr. Hagen agreed to this, as
    well. Dr. Ward said he intended to keep the Ligature far away from the ureter. Dr.
    Hagen said he would
try
to do so. However, the
    trial judge did not confine his standard of care to knowing, intentional, and
    unnecessary deployment. His standard of care contemplates that any such
    deployment, whether intentional or accidental, breaches the standard of care. Avoiding
    accidental deployment within two millimetres of the ureter cannot fairly be described
    as a step that prudent surgeons would take. Instead, it is a goal or result
    that is to be pursued. Put otherwise, trying to maintain a safe distance is a
    step one takes; successfully achieving this is a goal.

[49]

There was detailed evidence before the trial judge about the steps that
    a prudent surgeon would take to identify and protect the ureter. All of the
    experts agreed what the surgical steps were, and the trial judge accepted that
    evidence. Before describing those steps, the trial judge noted, The experts
    raised no issue about the standard procedure for removing a benign colon during
    a colectomy. Specifically, a prudent surgeon identifies the ureter through
    vermiculation, and moves it away from the colon before proceeding, and rechecks
    the location of the ureter by periodically repeating the vermiculation, trying
    to avoid bringing the LigaSure within an unsafe proximity to collateral tissue.
    No other steps were described. Dr. Ward testified that he took these steps, and
    the trial judge accepted that he did. I will repeat his findings in material
    part:

I am satisfied that Dr. Ward took steps during this laparoscoptomy
    to identify and protect the ureter. He explained those steps and testified that
    he always kept at least five centimetres away from the ureter.

[50]

What the trial judge predicated Dr. Wards liability upon was his
    finding that despite having taken those steps, Dr. Ward did not succeed in
    keeping at least five centimetres away from the ureter but went within two millimetres
    of the ureter:

I accept Drs. Klotz and
    Burnsteins evidence that Dr. Ward came within one or two millimetres of the
    ureter causing damage leading to scar tissue and eventual ureter blockage.

[51]

In other words, despite finding that Dr. Ward took the steps described
    for a prudent surgeon, the trial judge predicated liability on the result,
    namely, that Dr. Ward came within one to two millimetres of the ureter. In my
    view, this was an error, and had the trial judge properly applied the law to
    the facts he found, he would have exonerated Dr. Ward from liability.

[52]

I say this because at no time did the trial judge make the supplementary
    finding that the only way a LigaSure could be deployed within one to two
    millimetres of the ureter is by negligent act or omission. I recognize that Dr.
    Burnstein did express the opinion that the risk of injuring the ureter when
    proper surgical procedures are followed should be zero. Viewed simplistically,
    this evidence could support a finding that thermal injuries to the ureter can
    only happen negligently. But Dr. Burnsteins point was that if a surgeon
    follows the steps he described, such injury could not occur; in other words,
    the fact that the thermal injury occurred necessarily means that the surgeon
    did not follow the steps that a prudent surgeon would take. Yet this is not
    what the trial judge found. Contrary to Dr. Burnsteins theory, he accepted
    that Dr. Ward did follow these steps, but an injury nonetheless occurred. Moreover,
    when rehearsing Dr. Burnsteins theory, the trial judge did not adopt it but noted,
    The consensus was that the risk should be less than one percent.

[53]

It is understandable that the trial judge stopped short of accepting Dr.
    Burnsteins zero risk theory. It would have been ill-advised to have accepted
    it. Dr. Burnsteins zero risk theory is not supported by scientific literature.

[54]

More importantly, Dr. Burnstein did not attempt to explain why
    accidental but non-negligent thermal injuries can be ruled out. It is obvious,
    for example, that surgical success depends on dexterity, yet Dr. Burnstein did
    not address whether an ordinary prudent surgeon would always have the dexterity
    to succeed in maintaining a safe distance. Nor did he address whether periodic
    vermiculation guarantees that a prudent surgeon could not cause unintentional
    injury to structures that have unexpectedly moved during surgery, a prospect
    that the practice of repeated vermiculation appears to contemplate.

[55]

Indeed, in finding that Dr. Ward breached the standard of care, the
    trial judge appears to have had in mind the possibility that the ureter was
    injured when it could not be viewed during the surgery. When rejecting Dr.
    Wards belief that he successfully stayed more than five centimeters away from
    the ureter, he noted Dr. Wards admission that the ureter was unavoidably out
    of view of the microscope for part of the process. Yet neither Dr. Burnstein,
    nor anyone else, addressed whether an injury occurring in this way would be a
    negligent injury.

[56]

A trial judge who is prepared to proceed on the
    basis that only negligence could cause the relevant injury
is obliged to
    consider and rule out non-negligent causes. Only if this is done, can the trial
    judge properly use success as the standard of care. In determining whether this
    is so, the burden is not on the defendant to raise potential non-negligent
    causes with evidence, nor is it improper speculation for a trial judge to
    consider potential non-negligent causes that are open on the evidence but that the
    plaintiff has failed to address. A plaintiff whose liability theory is that
    only negligence could have caused the injury in question is obliged to
    demonstrate that this is so, and the trial judge is required to accept this
    before finding liability. That did not occur in this case.

[57]

Nor can liability properly be grounded in the low risk of injury
    identified by the trial judge. It is a logical error to infer that since an
    adverse result is improbable, a defendant was negligent in causing that adverse
    result. Negligence needs to be proved in each specific case, unless it is
    established that the kind of injury in question can only occur through
    negligence. Yet, as explained, the trial judge never found this to be so.

[58]

With respect, the trial judge erred in law in defining the standard of
    care. Having found that Dr. Ward took the steps that a prudent surgeon would
    take during this surgical procedure, the trial judge should have found that it
    was not proved that Dr. Ward breached the requisite standard of care.

B.

DID THE TRIAL
    JUDGE ERR IN HIS STANDARD OF CARE ANALYSIS BY CONFLATING THE STANDARD OF CARE
    AND CAUSATION ANALYSIS?

[59]

The trial judge addressed both standard of care and causation issues
    together in a continuous discussion, parsed by two headings, Breach of the
    Standard of Care and Causation. He then, contiguously, concluded that Dr.
    Ward breached the standard of care and that his negligence caused Ms.
    Armstrongs injury. Dr. Ward argues that it was an error of law to conflate the
    two issues in this way.

[60]

As a general rule, a trial judge should determine whether the defendant
    has breached the standard of care before resolving issues of causation:
Snell
    v. Farrell
, [1990] 2 S.C.R. 311;
St-Jean
. In
Bafaro v. Dowd
,
    2010 ONCA 188, 260 O.A.C. 70, the plaintiff argued that a finding should be
    made that a burn caused his fistula, so that he could show that the defendant
    doctor breached the requisite standard of care by failing to detect the burn
    during surgery. Laskin J.A. rejected the invitation, at para. 35:

This submission intermingles standard of care and causation.
    Yet, the two issues are quite separate. Moreover, the question whether the
    standard of care was breached should be decided before the question of factual
    causation. In other words, the issue of factual causation arises after the
    trier of fact has found that the defendant breached the standard of care.

[61]

This practice is functional. The causation issue is moot if there has
    been no breach of the standard of care, and the causation issue depends upon
    identifying the breach, since the material question is whether the defendants
    particular substandard act or omission  caused the harm:
Chasczewski
    Estate v. 528089 Ontario Inc. (Whitby Ambulance Service)
, 2012 ONCA 97,
    287 O.A.C. 266, at para. 15;
McArdle Estate v. Cox
, 2003 ABCA 106, 327
    A.R. 129, at para. 25.

[62]

However, in some cases, it may be necessary to determine what happened
    to assess whether a defendant has breached the requisite standard of care.
    Where this is so, the injury may be relevant circumstantial evidence of what
    happened. In
Meringolo (Committee of) v. Oshawa General Hospital
(1991), 46 O.A.C. 260 (C.A.), leave to appeal refused, [1991] S.C.C.A. No. 115,
    for example, this court held that in order to resolve the negligence issue, it
    had to first be determined what happened in the operating room, including
    whether the plaintiff suffered hypoxic brain damage. Similarly, in
Grass
    (Litigation guardian of) v. Womens College Hospital
(2001), 200 D.L.R.
    (4th) 242, leave to appeal refused, [2001] S.C.C.A. No. 372, what caused the
    newborns oxygen deprivation was relevant evidence in determining what happened
    in the labour room, which, in turn, had to be decided to resolve whether the
    standard of care had been breached.

[63]

As I read these authorities, where the nature of the injury is relevant
    to what happened, it is not an error to consider that injury in resolving
    whether the standard of care has been breached. What should be avoided is
    engaging such questions where they are not relevant to whether a breach has
    occurred. Moreover, even where the nature of the injury is relevant to whether
    the standard of care was breached, formal but for determinations should not
    be made until the act or omission falling short of the standard of care has
    been identified.

[64]

In this case, given the trial judges misconception of the standard of
    care, he had to resolve what happened, specifically, whether the LigaSure was
    deployed within two millimetres of the ureter. The thermal injury showed that it
    was, since on the evidence the trial judge accepted, the LigaSure had to be
    brought within that range to cause the thermal injury Ms. Armstrong sustained. In
    other words, the thermal injury was circumstantial evidence of what happened. On
    the trial judges standard of care theory, it would therefore not be improper
    for a trial judge to consider the injury or its relationship to what happened,
    before resolving whether the standard of care had been violated. Put more
    simply, if the standard of care the trial judge applied had been correct, it
    would not have been an independent error to analyse the case as he did.

[65]

However, had the trial judge properly conceived of the standard of care,
    it would not have been necessary for him to have conflated causation and
    standard of care decisions. In this sense, his doing so was in error, but this
    error is inextricably linked to the first and adds nothing to the outcome of
    this appeal.

CONCLUSION

[66]

I accept Dr. Wards first ground of appeal. The trial judge erred in law
    in identifying and applying the standard of care. Indeed, on the findings of
    fact he did make, had the trial judge applied the law correctly, he would have
    found that Dr. Ward is not liable.

[67]

I would therefore allow the appeal, set aside the finding of liability, and
    dismiss Ms. Armstrongs action against Dr. Ward.

[68]

As agreed between the parties, costs will be awarded to Dr. Ward on this
    appeal in the amount of $20,000.

David M. Paciocco
    J.A.

I agree R.G. Juriansz
    J.A.


van Rensburg J.A. (dissenting):

I.        OVERVIEW

[69]

I have read the reasons of my colleague, who would allow the appeal. Respectfully,
    I disagree with this disposition. In my view the trial judge made no reversible
    error in granting judgment in favour of the respondent. I would dismiss the
    appeal with costs to the respondent.

[70]

Although the appellant described his grounds somewhat differently (both
    in his factum and in oral argument), I will adopt my colleagues articulation
    of the grounds of appeal in my dissenting reasons. The first three grounds of
    appeal have to do with standard of care, and there is some overlap between the
    grounds. In the end, Dr. Ward asserts that the trial judge erred in concluding
    that he was in breach of the standard of care of a reasonably competent surgeon
    by using the LigaSure device less than two millimetres away from Ms.
    Armstrongs left ureter. I disagree.

[71]

In assessing whether there is an error in this case, it is important to
    recall that deference is owed to the trial judge on all findings other than on
    questions of pure law. On the first ground of appeal, in my view there was no
    error in how the trial judge defined and applied the standard of care. There is
    no basis to interfere with the trial judges approach to the issue of standard
    of care. His conclusion that Dr. Ward had breached the standard of care by
    using the LigaSure device less than two millimetres away from Ms. Armstrongs
    left ureter was fully supported by the evidence. The trial judge did not apply
    a standard of perfection nor did he adopt a results-oriented approach.

[72]

On the second ground of appeal, I reject the appellants argument that
    the trial judge conflated standard of care with causation. Although my
    colleague would not give effect to this ground of appeal, my analysis differs
    from his. I will provide my reasons for dismissing this ground of appeal.

[73]

I will also address the third ground of appeal identified but not
    addressed by my colleague. Contrary to the submission of the appellant, the
    trial judge did not commit any palpable and overriding error in giving weight
    to the opinion evidence of the respondents standard of care expert, Dr.
    Burnstein.

[74]

Finally, as my colleague notes, the appellant challenges the trial
    judges findings on causation. I will briefly explain why I would dismiss this
    ground of appeal.

II.       THE LIVE ISSUES AT TRIAL

[75]

The issues in any action, including those alleging medical malpractice,
    are case-specific. And on appeal, whether there was error at first instance
    must be determined in the context of the live issues at trial and the positions
    of the parties before the trial judge. As I will explain, this case was largely
    about factual causation.

[76]

There was no question that Ms. Armstrong suffered an obstruction or blockage
    of eight to ten centimetres of her left ureter, which resulted in the removal
    of her left kidney in a subsequent operation. It was admitted that the injury
    was iatrogenic: Ms. Armstrongs ureter became blocked as a result of the
    operation to remove her colon, an operation that was performed by the
    appellant, Dr. Ward.

[77]

The central issue at trial was how the injury occurred. Ms. Armstrongs
    theory, which was ultimately accepted by the trial judge, was that a thermal
    injury to the ureter resulted from Dr. Wards use of the LigaSure within two millimetres
    of the ureter while he was using the device to remove the colonic mesentery.

[78]

By contrast, Dr. Wards evidence was that he had not come too close to
    the ureter, and that was not how the injury occurred. He was confident that he
    had stayed five to 15 centimetres away from the ureter. His expert witnesses,
    Dr. Hagen and Dr. Robinette, assumed that this was the case when they offered
    two alternative opinions about the cause of the ureter blockage.

[79]

Dr. Hagens opinion was that Ms. Armstrongs ureter was damaged by
    excessive fibrosis in the retroperitoneum that caused scarring and subsequent
    obstruction to the ureter.
[1]

[80]

Dr. Robinette, while accepting that collateral thermal damage could occur
    when the LigaSure was used too close to a structure, believed that thermal
    damage to Ms. Armstrongs ureter would have resulted in a different
    post-operative course, with tissue necrosis, perforation of the ureter, and
    noticeable symptoms such as urine leak. Dr. Robinettes opinion was that
    collateral thermal damage from the LigaSure to surrounding fat in the
    retroperitoneum set off an inflammatory response that blocked the ureter.

[81]

The two key questions at trial, therefore, were whether Dr. Ward, while
    removing the mesentery, in fact came within two millimetres of Ms. Armstrongs
    ureter, and whether that was the cause of the injury to the ureter. Both were
    decided against the appellant. In assessing the expert evidence, the trial
    judge had to determine whether thermal spread could occur beyond the jaws of
    the LigaSure device, and whether perforation, necrosis, and symptoms such as
    urine leak would always follow a thermal injury. These questions were also
    resolved against the appellant.

[82]

I have spent some time outlining the key disputed questions at trial
    because they inform an understanding of the trial judges reasons and the
    expert evidence. In contrast to the conflicting causation opinions, there was
    little, if any, dispute between the experts about the standard of care: in
    order to avoid inadvertent injury, a competent surgeon while using the LigaSure
    device to divide the mesentery during the removal of a benign colon was
    required to identify, protect and stay at least two millimetres away from the
    ureter. This was not a case about when a competent surgeon might, without
    negligence, come too close to the ureter. Nor was this a case about
    misadventure or about circumstances beyond the control of a surgeon.
[2]
Indeed, there was no evidence in this trial to suggest that a competent surgeon
    using reasonable care while operating to remove a benign colon would be unable
    to take the necessary and important step of staying more than two millimetres
    away from the ureter. The evidence was to the contraryit should have been
    routine.

[83]

I turn now to address in detail the first issue: whether the trial judge
    erred in his findings with respect to standard of care.

III.     ISSUES

Issue One: The trial judge did not err in his approach to and
    application of the standard of care

[84]

The appellant makes two related arguments with respect to standard of
    care: first, that the trial judge improperly applied a standard of perfection;
    and second, that staying away from Ms. Armstrongs left ureter was the goal
    of the surgery, and that the trial judge failed to consider what reasonable
    steps were required in order to achieve that goal.

[85]

In my view, the trial judge made no such errors. In any event, the real
    issue on this ground of appeal is whether the trial judges findings with
    respect to standard of care and its breach were supported by the evidence. I
    conclude that they were.

[86]

In general terms, the standard of care required of a medical
    practitioner is to exercise a reasonable degree of skill and knowledge and the
    degree of care that could reasonably be expected of a normal, prudent
    practitioner of the same experience and standing:
Crits v. Sylvester
,
    [1956] O.R. 132 (C.A.), at pp. 142-143, affd. [1956] S.C.R. 991. The standard
    of reasonableness is not a standard of excellence that amounts to perfection.
    To adopt such an approach would amount to a guarantee:
Carlsen v.
    Southerland
, 2006 BCCA 214, 53 B.C.L.R. (4th) 35, at paras. 13 and 15.

[87]

In any case where standard of care is at issue, the court must determine
    what is reasonably required to be done (or avoided) by the defendant in order
    to meet the standard of care:
Berger v. Willowdale A.M.C.
(1983), 41
    O.R. (2d) 89 (C.A.), at p. 95, citing
Blyth v. The Company of Proprietors
    of the Birmingham Waterworks
(1856), 156 E.R. 1047, at p. 1049. In a medical
    malpractice case, the court must determine what a reasonable physician would
    have done (or not done) in order to meet the standard of care:
Kennedy v.
    Jackiewicz
, 2004 CarswellOnt 4914 (Ont. C.A.), at para. 20, leave to
    appeal refused: 2005 CarswellOnt 1669 (S.C.C.). The degree of foreseeable risk
    affects the determination of the standard of care:
McArdle Estate v. Cox
,
    2003 ABCA 106, 327 A.R. 129, at para. 27.

[88]

Here, the question is whether the trial judge, in his determination and
    application of the standard of care, held Dr. Ward to a higher standard than
    what could reasonably be expected of a prudent and reasonable general surgeon
    performing a colectomy in the circumstances of this case.

[89]

I say that he did not. Dr. Wards submission that the trial judge
    adopted a results-oriented approach to the standard of care that required a
    standard of perfection assumes that the trial judge concluded Dr. Ward was
    negligent simply because he failed to achieve the goal of avoiding injury to
    Ms. Armstrongs left ureter, or alternatively that, after concluding that Dr.
    Ward had taken steps (not all necessary steps) to identify and protect the
    ureter, it necessarily followed that he was not negligent. This, in my view,
    mischaracterizes both the trial judges findings, and the evidence at trial.

[90]

I will begin my analysis by setting out, in a summary manner, the trial
    judges reasons leading to his findings on standard of care. I will then review
    the evidence at trial to show that it fully supports the trial judges findings.
    After my review of the evidence I will go on to address two specific propositions
    that were put forward by the appellant in oral argument, and that are accepted
    by my colleagues reasons: (1) that the trial judge, after concluding that Dr.
    Ward took steps to identify and protect the ureter, ought to have found that
    he met the standard of care; and (2) that the trial judge erred in failing to
    consider the possibility that Dr. Ward, without negligence, had come too close
    to the ureter. I will explain why I reject these arguments, and then I will
    provide a summary of my reasons for dismissing this ground of appeal.

A.

The Trial Judges
    Findings on Standard of Care

[91]

In his reasons, the trial judge reviewed the evidence respecting Ms.
    Armstrongs background (paras. 13-18), the surgery (paras. 19-27), the LigaSure
    device (paras. 28-38) and the risk of injury to the ureter using the device
    (paras. 39-49). He referred to Dr. Wards account of the surgery, including
    admissions about the need to identify and protect the ureter (paras. 50-62).
    After accurately summarizing the law on standard of care (paras. 66-72), the
    trial judge returned to the expert evidence of Dr. Burnstein and Dr. Hagen, as
    well as Dr. Wards own evidence about the need to avoid damage to the ureter
    and the low risk of injury to Ms. Armstrongs benign colon (paras. 73-80). At
    paras. 81 to 84, he set out his findings on the standard of care as follows:

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 to means
    within one to two millimetres of the ureter
. Dr. Ward testified about the
    steps he took to identify and protect the ureter. The experts pointed to the
    need to identify and protect the ureter during a colectomy. The general
    surgeons who testified as experts indicated that it was important for a surgeon
    to identify and protect a ureter when a LigaSure is being used for laparoscopic
    surgery.

Both urologists indicated that the LigaSures heat energy could
    damage the ureter. There is a risk of injury if the LigaSure touched or came
    within one or two millimetres of the ureter. In some cases where a LigaSure
    touches a ureter, a focal point injury and immediate rupture of the ureter can
    result. [A] urologist could repair such damage if discovered during surgery or
    shortly thereafter. Both urologists testified about repairing ureters damaged through
    surgical misadventure. I also accept Dr. Klotz's evidence that something less
    than a full focal point injury resulting from the LigaSures proximity could
    cause fibrosis to the ureter and that the ensuing scarring could take several
    weeks to enlarge from a stricture and develop into a complete blockage.

I am satisfied that, under these circumstances, it would be a
    breach of the standard of care for a general surgeon to touch the ureter or
    come within one or two millimetres of it during a routine colectomy on a benign
    colon. Dr. Hagen agreed that colectomies involving benign colons could be
    considered basic surgery for a general surgeon. [Emphasis added.]

[92]

The trial judge next had to assess whether Dr. Ward had in fact used the
    LigaSure within two millimetres of Ms. Armstrongs left ureter, and whether he
    had thus breached the standard of care. He could only do this by first
    determining how the injury happened. After setting out the law on causation
    (paras. 92-94), the trial judge reviewed the expert evidence (paras. 96-108). As
    I have noted, both of the appellants experts assumed that Dr. Ward had stayed
    centimetres away from the left ureter and proposed two alternative ways the
    injury might have happened. The trial judge explained why he rejected these
    opinions and instead accepted the opinion of the respondents expert: that Ms.
    Armstrongs ureter was injured by thermal spread from the LigaSure device
    (paras. 109-112). It then followed that Dr. Ward had in fact, and contrary to
    his own evidence, used the LigaSure device within two millimetres of the
    ureter.

[93]

Returning to the question of standard of care, the trial judge stated at
    para. 113:

In a colectomy procedure, identification and protection of the
    ureter is paramount. Using a LigaSure can cause damage by heat transmission if
    it touches the ureter or comes within one to two millimetres. I am satisfied
    that on the facts of this case, the plaintiff has established that Dr. Ward
    breached the standard of care. Further, the breach caused damage to the ureter
    leading to a stricture of the ureter. This damage required the removal of
    Amstrongs left kidney.

[94]

I will turn now to the evidence at trial with respect to the standard of
    care.

B.

The Evidence Fully
    Supported the Trial Judges Findings on Standard of Care

[95]

Here I will review the evidence of the expert witnesses and Dr. Ward
    with respect to standard of care. My review of the evidence will indicate:

(1)

there
    was general agreement that the standard of care required a general surgeon to
    identify, protect
and stay at least two millimetres away from
the ureter
    while using the LigaSure device to dissect the colonic mesentery;

(2)
staying that far away from the ureter was consistently
    described as a step and not the goal, which was to safely remove the
    respondents colon without injuring her other internal organs; and

(3)    to
    the extent there was any disagreement, it was only in the refusal of Dr. Hagen
    and Dr. Ward to admit negligence on the part of Dr. Ward: that, if he had in
    fact come too close to the ureter, he had breached the standard of care.

(1)      Evidence
    about the surgery and the LigaSure device

[96]

Dr. Ward is a general surgeon at the Royal Victoria Hospital in Barrie
    who, by the time of the trial, had carried out at least 50 colectomies, either by
    way of open surgery or laparoscopically. This type of surgery was described by
    Dr. Wards expert witness, Dr. Robinette, as surgery 101 for a general
    surgeon.

[97]

Injuries to the ureter from a LigaSure device are rare during a
    colectomy, with documented rates of 0.15% to 0.66%. The expert witnesses
    testified that there was a risk of injury associated with resection of a large
    pelvic mass, malignant neoplasms, inflammatory disease, previous operations or
    radiation. They were unanimous that there were no risk factors in this case as
    Ms. Armstrongs colon was benign and anatomically sound, and she had no other
    condition or inflammation that would obscure the anatomy during the operation.
    This was, as described by Dr. Burnstein, an ideal setting.
[3]

[98]

The LigaSure device is used extensively in a variety of types of surgery,
    both open and laparoscopic. It gives the surgeon a great deal of control and
    precision. Because the LigaSure is a heat-emitting device, and there is thermal
    spread beyond the jaws of the device, there is a safety issue. One of the
    respondents experts, Dr. Klotz, testified that there is a lot of work to
    ensure safety in the development of these devices
[4]
and if youre going to rely on this [device] and its used all over the world
    now, its very successful, you need to be confident that what you see is what
    you get, and youre not going to get inadvertent injury to surrounding
    structures.
[5]
He also emphasized that surgery needs to be done under direct vision: a
    skilled surgeon learns to resist the temptation to do dissection not under
    direct vision, because you can get into troublecertainly in urologic surgery,
    you must see what you are doing all the time.
[6]

(2)      Dr.
    Burnsteins standard of care evidence

[99]

Ms. Armstrongs standard of care expert, Dr. Burnstein, testified that
    it is a breach of the standard of care for a surgeon during a colectomy on a
    benign colon to use the LigaSure within two millimetres of the ureter. He
    stated that, during dissection of the mesentery, minimization of the risk of
    injury to the other structures is paramount, whether the surgeon is using
    scissors, cauterization or a LigaSure device. He testified that the surgeon
    must identify the ureter and confirm that he is on the right plane. Dr.
    Burnstein described the identification and protection of the ureter as a
    dynamic phenomenal. He stated:

Its not enough to identify [the ureter] at one point in the
    case and forget about it, identify it and you have to continue to re-identify,
    this sort of continual re-identification during the course of dissection to make
    sure that youre not getting lost, you know where you are and know where the
    ureter is, that youre an appropriate distance away from the ureter as you cut,
    sew, apply electric current, or whatever technique youre using.
[7]

[100]

Dr. Burnstein
    stated that protection of the ureter is not difficult for the trained surgeon
    except where the anatomy is obscured when risk factors such as resection of
    large pelvic masses, malignant neoplasms, inflammatory disease, previous
    operation, or radiation therapy are present. A surgeon resecting an
    anatomically normal colon should be well away from the retroperitoneum and
    that being only millimetres from the ureter would be unusual in the absence of
    a pathology that forces you that close.
[8]

[101]

Dr. Burnstein
    contrasted the rate of injury in this type of surgery, where there is a greater
    ability to protect the ureter, with the higher rate in gynecological surgeries
    where the surgeon operates much closer to the ureter. Dr. Burnstein expressed
    the opinion that the rate of 0.1% to 0.6% rate of injury to the ureter that is
    described in the literature would include the most difficult cases. He was then
    asked:

Q. And then if we assume that the rate of injury to the ureter
    in total ranges from again, .1 percent to .6 percent, do you have a sense of
    what the rate of injury in the case of a benign condition like Ms. Armstrong
    would be?

A. Its my opinion it should be zero. You should be able to
    remove the normal colon from the normal abdomen without injuring other
    structures.

Q. Why do you say that?

A. Because the training of the surgeon includes learning how to
    properly mobilize the colon, properly identify and protect the retroperitoneum
    structures, for example, the ureters, keep them out of harms way through the
    removal of the organ in the absence of being challenged by an abnormality
    created by the disease process there should be no reason to be in the wrong
    place at a time that the wrong place and expose other organs to injury.
[9]

[102]

I note
    parenthetically that this was the context in which Dr. Burnstein offered what
    the appellant describes as his zero risk theory. Dr. Burnstein was firmly of
    the view, and explained why, a competent surgeon should not be in the wrong
    place and come too close to the ureter while removing a normal colon from a
    normal abdomen.

[103]

Under cross-examination
    Dr. Burnstein reiterated clearly his position on standard of care when it was
    suggested that what he was saying was that the injury itself implied a breach
    of the standard of care:

Q. Now, turning to your, Ill call them, three opinions: the
    first one being, that injury to the ureter if there is no structural
    abnormality of the colon falls below the standard of care. And I take it, what
    youre saying and what you said in your report is that the injury implies a
    breach of the standard of care, correct?

A. Yes, in this context.

Q. Yes. The context being a normal structure of the colon.

A. Right. My position is, just to be clear, that the average
    reasonable prudent practitioner, general surgical practitioner in terms of
    removing a structurally normal colon in a structurally normal abdomen and
    peritoneum should be able to achieve the goal of colon removal without injuring
    other structures in this case the ureter and that injury to the ureter in
    removal of a structurally normal colon and a structurally normal abdomen is a
    failure to conduct the operation with the appropriate degree of safety,
    prudence, judgment, and is below the standard of care.
[10]

[104]

Dr. Burnstein
    also described staying away from the ureter as a step, rather than a goal.
    Under cross-examination he was asked the following:

Q. Doctor Burnstein, I want you to assume that Doctor Ward will
    testify that a laparoscopic procedure uses a 30-degree camera angle which
    magnifies the operative field onto a HD screen or screens in the OR theatre
    which is used to identify the left ureter during the course of the colectomy.
    And youll agree with me that is based on even your perhaps not personal
    experience but knowledge that is a reasonable statement.

A. Yes.



Q. Okay. I also want you to assume that Doctor Ward will
    testify that the identification of the ureter in a laparoscopic procedure uses
    a medial approach by retracting the colon up towards the anterior abdomen wall
    which is known as tenting. I then want you to assume that Doctor Ward using
    this medial approach identifies the left ureter and either tweaks it or pushes
    the structures around it to ensure it moves.

A. Yes.

Q. Stopping there, youll agree with me that that is two
    reasonable steps to take in the identification of the ureter.

A. Absolutely.

Q. Those steps meet the standard of care.

A. Yes



Q. I want you to assume then that Doctor Ward will testify that
    once he identifies the location of the left ureter using blunt dissection he
    pushes away the retroperitoneal structures which would include the ureter
    upwards towards the head of the patient away from the colonic mesentery. And
    youll agree with me that is a reasonable step.

A. Yes.

Q. And a step that meets the standard of care?

A. It does.

Q. And it is only after taking those steps that he opens the
    LigaSure and using the LigaSure to divide the colonic mesentery.

A. Correct.

Q. And again, that is reasonable.

A. And within the standard.

Q. I also want you to assume that Doctor Ward will testify that
    when he is using the LigaSure to divide the colonic mesentery he stays away
    from the ureter towards the colon and again that is a reasonable step.

A. Yes.

Q. And a step that meets the standard of care.

A. It absolutely does.
[11]


[105]

In this passage,
    Dr. Burnstein was invited to agree, and in fact agreed, that each hypothetical
    step Dr. Ward was to have taken was a reasonable step. Unfortunately, as we
    know, Dr. Ward did not in fact take the final reasonable step identified by his
    counsel, that of
staying away from the ureter towards the colon while using
    the LigaSure device to divide the colonic mesentery
.

(3)      Dr. Hagens
    standard of care evidence

[106]

Dr. Hagen was
    tendered by Dr. Ward as an expert in both standard of care and causation. He
    estimated that he had used the LigaSure thousands of times for colectomies and
    other surgical procedures, and he had never had any case where a patients
    ureter had been injured with the device.
[12]
Like Dr. Burnsteins zero risk of coming too close to the ureter evidence,
    Dr. Hagen stated that it was not
possible
to cause
    collateral damage using the LigaSure because youre really nowhere near the
    ureter, youre centimetres awayits not possible to damage the ureter if
    youve identified it andyouve taken the vessels.
[13]

[107]

Similar to the
    approach used in questioning Dr. Burnstein, the appellants counsel took Dr.
    Hagen through the steps that Dr. Ward ought to have taken to meet the
    standard of care:

Q. Now, Dr. Hagen, I want you to assume that Dr. Ward, at the
    time of the laparoscopic colectomy, mobilized the left colon using a combination
    of cautery and blunt dissection and using the medial approach, Dr. Ward moved
    the colon upward toward the anterior abdominal wall, something he calls
    tenting. He then proceeded to identify the ureter visually through the
    laparoscope and either touched or pushed structures around the ureter to
    observe it move or vermiculate. Once the ureter is identified visually, using
    blunt dissection, he moved the retroperitoneal structures, where the ureter is
    located, away from the colon. Now stopping there, do those steps, are those
    steps reasonable in the identification and protection of the left ureter?

A. Yes.

Q. And do those steps meet the standard of care in the
    identification and protection of the left ureter from injury during a
    laparosopic colectomy?

A. Yes.

Q. I then want you to assume that once the ureter has been
    identified and pushed away, that Dr. Ward opened the LigaSure package and
    divided the colonic mesentery with the LigaSure going on the diagram you have
    there, Exhibit 2, from right to left, circumferentially, staying away from the
    ureter and near the colon. And Dr. Hagen, does that step Ive asked you to
    assume, to divide the colonic mesentery with the LigaSure, is that a reasonable
    way of doing it?

A. Yes.

Q. And does that way of dividing the colonic mesentery meet the
    standard of care?

A. Yes.
[14]

[108]

The need to stay
    away from the ureter was specifically addressed in Dr. Hagens
    cross-examination as follows:

Q. I want to talk about the standard of care. You will agree
    with me, I think, that the standard of care for benign colon surgery is to
    identify the ureter and then
stay away from the area.

A. Thats correct.

Q. And you have to stay far enough away from the ureter that
    your instruments dont inadvertently injure.

A. Yes.

Q. Now you testified that you have, in your own practice, not
    seen a case in which a ureter has been injured using a LigaSure device,
    correct?

A. Actually, thats not totally  I have seen LigaSure injury
    of the ureter, yes.

Q. Okay, in your own practice?

A. No, like but I have, I have seen it in video and you know,
    discussing with colleagues and things like that. But I have a teaching video of
    that.

Q. I wish we had that.
You havent had any
    cases, yourself, in which your patients have been injured with a LigaSure on
    the ureter.

A. Not to my knowledge, no.

Q. And the reason for that is because when you are using the
    LigaSure device, you stay as far away from the ureter as possible.

A. Thats correct.

Q. And certainly, you stay more than two millimetres away from
    the ureter.

A. Yes.

Q. Always.

A. Well, I wouldto answer your question I would try and stay
    away from the ureter, you know, more than two millimetres.

Q. Right, and the reason you would do that is because you dont
    want to inadvertently damage the ureter with the LigaSure.

A. Yes
.
[15]


[109]

Dr. Hagen
    confirmed that it was necessary for the surgeon to stay two millimetres away
    from the ureter and that if the surgeon had properly identified and protected
    the ureter you wouldnt have this injury. However he refused to admit that
    Dr. Ward might have failed to do so, or if he did that he would have breached
    the standard of care:

Q. youll agree with me if Dr. Ward used the LigaSure device
    within two millimetres of the ureter either because he made a mistake with the
    LigaSure, he misidentified the anatomy, he got lost, whatever, if he did that,
    that was a breach of the standard of care?

A. I wouldnt agree with that, no.

Q. Okay, so your opinion today is that it would not be a breach
    of the standard of care to operate the LigaSure device within two millimetres
    of the ureter.

A. I would, I would qualify that in the sense that if you, you
    have to identify the ureter and take precautions to not, you know, to know
    where it is and, if you did that, it would not be a breach of the standard of
    care.

Q. So lets uncap thiswhat youre saying, I think, is if you
    have done that, if you have properly identified and protected the ureter, then
    you wouldnt have this injury.

A. Yes.

Q. And the reason you wouldnt have this injury is because you
    wouldnt put the LigaSure two millimetres away from the ureter.

A. Yes.

Q. Right, once you, once you know where the ureter is, youre
    going to stay away from it.

A. Thats correct.

Q. Thats what youre saying.

A. Yeah.

Q. Now what Im asking you to assume because the court is
    ultimately going to have to decide what happened here.

A. Right.

Q. We dont have a time machine, we cant go back and look, I
    want you to assume that Dr. Klotz and Dr. Burnstein are correct and that for
    whatever reason, Dr. Ward used the LigaSure within two millimetres. It has to
    be an accident. Nobody is suggesting that he did it intentionally.

A. Right.

Q. But that he did that. And
    now what Im suggesting to you is that if you assume that that is correct, that
    Dr. Ward breached the standard of care.

A. No, I dont agree with
    that.

Q. So if Dr. Ward is mistaken in his identification and
    protection of the ureter and as a result of that mistake, uses the LigaSure
    within two millimetres of the ureter, thereby causing damage to the ureter,
    your opinion is that would meet the standard of care, is that what youre
    saying?

A. Yes.

Q. All right. Well, what would be the point in trying to
    identify and protect the ureter? Thats actually a question.

A. Whats the point? The point of identifying the ureter is to
    avoid injuring it.

Q. And if youre using the LigaSure, which we know has a
    thermal spread of two millimetres  youve agreed with that already.

A. I agree with that, yes.

Q. And the point of identifying it is so that you can stay more
    than two millimetres away, isnt that right?

A. Yes.

Q. And this is a, were talking about a general principle that
    applies to surgery in general, right? Anybody who is doing surgery in this area
    has to know about the ureter and has to take steps to protect it.

A. Right.

Q. Right. It doesnt matter whether youre a general surgeon or
    a urologist or an obstetrician or some other surgeon in the area, you agree
    with that.

A. Yes.

Q. And it doesnt matter whether youre doing it open or
    laparoscopically.

A. Yes.
[16]

(4)      Dr.
    Wards standard of care evidence

[110]

Dr. Ward agreed
    that a surgeon was required to stay away from the ureter while using a LigaSure
    device to separate the mesentery during removal of the colon. He stated that a
    surgeon is always checking and rechecking to make sure we know [where] the
    structure is as were dividing other tissue, that in a magnified view it is
    hard to estimate distance, but that he was a long way away [from the ureter].
    He testified that he did not believe he was one to two millimetres away because
    he could see the structure very well.
[17]

[111]

Dr. Ward was
    asked to describe the steps that a surgeon takes to protect against injury to
    the ureter during the division of the colonic mesentery with the LigaSure. He
    stated:

Q. So to summarize, if you could, what steps are taken to protect
    against injury to the ureter during the division of the colonic mesentery with
    the LigaSure?

A. I think theres multiple steps involved. The first is the 
    we see the actual structures during this operation, and I see the structures
    extremely well with the camera to be honest, I dont open the LigaSure until
    Im safely  and I start to release  and divide it. And we identified and
    observed five to ten centimetres as mentioned and in this case, as would be in
    all the cases I have in my practice regarding the laparoscopic  thats part of
    my practice.

Q. Do you take any steps during the actual use of the LigaSure
    there and the actual division to protect against injury to the ureter?

A. Its the distance ensuring youre several centimetres away
    from the obstruction before deploying the device.
[18]

[112]

Dr. Ward
    testified that he did not believe that Ms. Armstrongs ureter was injured by
    thermal spread from the LigaSure because he was confident that he saw the
    structure through this part of the operation and took steps to try and protect
    it:

Q. So I raised with you this theory that the heat spread, or
    thermal spread or heat from the LigaSure would have come into contact with
    approximately eight to ten centimeters of the ureter during the division of the
    mesentery. Do you think that happened?

A. You know, I think  I dont know Doctor Klotz. I have a
    great deal of respect for Doctor Burnstein. Hes helped me with patients over
    the years, but I think anything is possible per se but I just think its highly
    unlikely.

Q. Why is that?

A. The reason being is I can see the structure through this
    part of the operation so I can help [make] sure that a) I took the steps to try
    and protect it, but I can see the structures. So, its highly unlikely that I
    was close enough to cause this direct injury and plus the assumption that 5 
    ten centimetres without actually seeing it is highly unlikely.
[19]

[113]

Under
    cross-examination, Dr. Ward described the standard of care. He stated:

A. The standard of care would be to take the appropriate steps
    to dissect the structures that are intended.

Q. Including, ensuring that you are dissecting far enough away
    that if you were using the LigaSure collateral thermal damage wouldnt affect
    the structure.

A. Yes.
[20]

[114]

Dr. Ward admitted
    that if he had used the LigaSure within two millimetres of Ms. Armstrongs
    ureter this would have been an error on his part, but he doubted that he had
    done so:

Q. You intended to keep the LigaSure far away from the ureter.

A. I agree.

Q. And if you were mistaken, I know you dont think you were,
    but if you were mistaken and the LigaSure was within two millimetres of the
    ureter, that was an error on your part.

A. I think anything is possible, but I think this is highly
    unlikely in this case.

Q. Im going to repeat my question, I want you to listen to it
    and answer my question. I know you dont think this is what happened. Youve
    already testified to that. But ultimately His Honour is going to have to decide
    what happened here and what I am suggesting to you is that if you did use the
    LigaSure within two millimetres of the ureter, if you did it and you still
    dont know, if you did it, that was an error on your part. Do you agree with
    that?

A. I agree.
[21]

[115]

Dr. Ward however
    refused to admit that it would have been a breach of the standard of care to
    use the LigaSure within two millimetres of the ureter:

Q. And youll agree that it would have been a breach of the
    standard of care in the context of this surgery to use the LigaSure within two
    millimetres of the ureter, isnt it?

A. Disagree.
[22]

(5)      Dr.
    Robinettes standard of care evidence

[116]

Although Dr.
    Robinette had provided reports on both causation and standard of care, he was
    tendered by the appellant at trial only as a causation expert. He was, however,
    cross-examined on his standard of care report. Dr. Robinette agreed with Dr.
    Hagens opinion that the standard of care is to identify the ureter and then
    to stay away from this area. He agreed that the standard of care was to find
    the ureter and then to stay away from it  far enough away from the ureter so
    that your instruments dont inadvertently damage it. He agreed that, if Dr.
    Ward inadvertently used the LigaSure within two millimetres from the ureter it
    was a breach of the standard of care.
[23]

(6)      Conclusions
    about the standard of care evidence

[117]

These extracts
    from the evidence make it clear that there was full evidentiary support for the
    trial judges conclusion that the standard of care required the surgeon not
    only to identify and protect the structures, but to stay a safe distanceat
    least two millimetresaway from the ureter while using the LigaSure device.
    Indeed, there was little difference between the standard of care evidence of
    Dr. Burnstein, Dr. Hagen and Dr. Ward, except in the refusal of the latter two
    witnesses to admit that, if Dr. Ward had in fact come too close to the ureter,
    this would have been a breach of the standard.

[118]

It is also
    apparent that, contrary to the appellants submission to this court, staying
    away from the ureter was consistently described by the witnesses as a step
    that Dr. Ward should have taken, and not as his goal. Importantly, as I
    discuss in some detail below, none of the witnesses in this case offered the
    opinion, or even suggested, that a competent surgeon using reasonable skill and
    care would have come within two millimetres of the ureter while operating on
    Ms. Armstrongs anatomically normal colon. In any event, even if there was some
    difference of opinion, the trial judge was entitled to accept the firm and
    reasoned opinion of Dr. Burnstein that a competent surgeon would have had no
    reason to be in the wrong place to expose other organs to injury, and ought to
    have been able to stay at least two millimetres away from the ureter.

C.

Additional Arguments
    about Standard of Care

[119]

I will turn now
    to address two specific arguments of the appellant, which are also addressed in
    my colleagues reasons:

1.

that the
    trial judge, after concluding that Dr. Ward took steps to identify and protect
    the ureter, ought to have concluded that he met the standard of care; and

2.

that the
    trial judge erred in failing to consider the possibility that Dr. Ward
    accidentally, but without negligence, came too close to the ureter.

(1)

The finding that Dr. Ward took steps to identify and protect the
    ureter did not mean he met the standard of care

[120]

The appellant
    refers to para. 109 of the reasons, where the trial judge stated that he was
    satisfied Dr. Ward had taken steps to identify and protect the ureter. The
    appellant contends that, based on this finding, Dr. Ward must necessarily have
    met the standard of care, and that the action ought to have been dismissed. My
    colleague, at paras. 4 and 38 of his reasons, accepts this argument. This
    argument can be addressed very briefly.

[121]

The full text of
    para. 109 is as follows:

I am satisfied that Dr. Ward took steps during this
    laparoscoptomy to identify and protect the ureter. He explained those steps and
    testified that he always kept at least five centimetres away from the ureter.
    But he acknowledged that the ureter was not always in camera view during this procedure.
    As to his awareness in 2010 about the spread of thermal energy beyond the jaws
    of the LigaSure, he answered: I think so, yes.

[122]

At para. 110,
    the trial judge went on to state:

I do not accept Dr. Robinettes theory that Dr. Ward kept at
    least five centimetres away from the ureter and that the LigaSure caused a
    necrosis of fatty tissue which began an inflammatory process ultimately
    obstructing the ureter.

[123]

While the trial
    judge accepted that Dr. Ward had taken steps to identify and protect the ureter,
    he did not accept that Dr. Ward had in fact stayed away from the ureter with
    the LigaSure while performing the operation. As the trial evidence referred to
    earlier demonstrates, the standard of care is not simply to take steps to
    identify and to protect the ureter. While the ureter must be identified and
    protected even before the LigaSure device is deployed, all of the expert
    witnesses confirmed that it was necessary to stay away from the ureter while
    the LigaSure device was in use. Indeed, knowing where the ureter is, and
    avoiding it is what protecting the ureter means, while the mesentery is being
    removed. The trial judge referred to Dr. Burnsteins evidence at para. 27,
    where he noted that Dr. Burnstein emphasized the importance of continually
    re-identifying the ureter to make sure that youre not getting lost. And at
    para. 54, he referred to Dr. Wards testimony that [w]ere always kind of
    checking and rechecking to make sure we know [where] the structure is as we are
    dividing other tissue.

[124]

As such, the
    reference at para. 109 to Dr. Ward having taken steps was not a finding by the
    trial judge that the appellant had met the standard of care. While conceding
    that Dr. Ward did take (some) steps to identify and protect the ureter, the
    trial judge was not satisfied he did everything he said he didspecifically, he
    did not stay five centimetres away from the ureter. Rather, the trial judge
    found that he came within one to two millimetres of the ureter, and that this
    had resulted in the injury to the ureter. In other words, Dr. Ward was not
    sufficiently diligent in checking and rechecking where he was when dividing the
    colonic mesentery, and he came too close to the ureter inadvertently.

(2)

Did the trial judge err in failing to consider the possibility that Dr.
    Ward accidentally, and without negligence, came too close to Ms. Armstrongs
    left ureter?

[125]

In oral
    argument, the appellant asserted that the standard of care at best would have
    been to use reasonable efforts to avoid Ms. Armstrongs left ureter while dividing
    the mesentery with the LigaSure device, and that the trial judge erred by
    failing to consider whether Dr. Ward accidentally, and without negligence, came
    too close to Ms. Armstrongs left ureter.

[126]

My colleague
    appears to agree with this contention. He notes, at para. 47, that the trial
    judge made no finding that it is only by negligent acts or omissions that a
    LigaSure can be brought within two millimetres [of the ureter], and at para. 52,
    that the trial judge at no time made the supplementary finding that the only
    way a LigaSure could be deployed within one to two millimetres of the ureter is
    by negligent act or omission.

[127]

With respect, there
    was no evidence at all in this trial to suggest that a surgeon exercising
    reasonable care could not have stayed two millimetres away from the ureter
    while using the LigaSure to remove the mesentery during Ms. Armstrongs
    colectomy. That was not an opinion offered by the appellants experts, who
    assumed that Dr. Ward had in fact stayed centimetres away from the ureter. Nor
    were any of the expert witnesses questioned about how an injury could have
    occurred if a surgeon had taken reasonable care to identify, protect and stay
    away from the ureter. While at one point in his cross-examination Dr. Hagen
    said he would try to stay two millimetres away, he did not offer any evidence
    as to why, despite trying, he might come too close. Indeed, Dr. Hagen had never
    seen a LigaSure-related injury of the ureter in his own practice. And Dr. Ward
    did not say that he had
tried
to stay away from
    the ureter but had been unable to do so. He was confident that he had in fact
    stayed centimetres away from the ureter, and that he was nowhere near the
    ureter when he was using the LigaSure device.

[128]

Each of the
    experts testified that staying away from the ureter was part of the standard of
    care, and a necessary step. None of the witnesses posited a situation where a
    competent surgeon, in the context of surgery on a normal abdomen, could
    accidentally come too close to the ureter. Dr. Burnstein said the risk should
    be zero, while Dr. Hagen said youre really nowhere near the ureter during
    surgery and so its not possible to damage the ureter if youve identified it
    andtaken the vessels.

[129]

My colleague
    characterizes Dr. Burnsteins evidence as deficient because he did not attempt
    to explain why accidental but non-negligent thermal injuries can be ruled out
    and that he did not address whether an ordinary prudent surgeon would always
    have the dexterity to succeed in maintaining a safe distance, or whether
    periodic vermiculation guarantees that a prudent surgeon could not cause
    unintentional injury to structures that have unexpectedly moved during surgery
    (at para. 54).

[130]

However, none of
    these potential non-negligent, accidental scenarios was put to Dr. Burnstein or
    any of the other expert witnesses at trial. Indeed, Dr. Burstein explained why
    the average reasonably prudent surgeon would be able to perform this surgery
    without injury to the ureter. On the evidentiary record in this case, there was
    no question of a surgeons potential lack of dexterity, or organs moving
    unexpectedly, at least in the ideal context of Ms. Armstrongs normal
    anatomy. And there was no discussion at all about whether periodic
    vermiculation of the ureter would be sufficient. Rather, the opinion of the
    experts and Dr. Ward himself was that the surgeon was required to stay away
    from the ureter while using the LigaSure to dissect the mesentery.

[131]

And, contrary to
    my colleagues statement at para. 22, I see no reference in the evidence to Dr.
    Hagen and Dr. Ward taking the position that, if steps were taken to identify
    and protect the ureter and to try to stay a safe distance from the ureter there
    would be no breach of the standard of care if the surgeon happened
accidentally
to come within two millimetres of the
    ureter with the LigaSure during the surgery.

[132]

As I have
    already mentioned, Dr. Hagen refused to admit that Dr. Ward had come too close
    to the ureter, or that if he had done so, that he would have breached the
    standard of care. He offered no explanation as to why this was the case, given
    that he had agreed that a competent surgeon would identify, protect and stay
    away from the ureter to avoid the risk of injury.

[133]

Although all of
    the expert witnesses agreed that it would be more difficult to avoid the ureter
    if the anatomy was abnormal or if there were masses, no one suggested that a
    competent surgeon operating in the ideal circumstances that Ms. Armstrong
    presented, could with reasonable care have come too close to the ureter, let
    alone suggested how this could have happened. It was not explained in Dr.
    Hagens evidence, or put to the respondents expert witnesses in
    cross-examination. Dr. Ward insisted that he had not come too close to the
    ureter, not that he had tried to stay two millimetres away, but that something
    had prevented him from doing so. Given the considerable amount of time spent on
    causation, it is telling that the experts did not opine on non-negligent ways
    that Dr. Ward could have come within two millimetres of Ms. Armstrongs ureter.
    It was simply not the focus of the evidence in this case.

[134]

The burden of
    proof was on Ms. Armstrong to establish that Dr. Ward failed to meet the
    standard of care of a reasonably competent surgeon when her ureter was injured
    in the course of the laparoscopic removal of her colon. A trial judge is not
    obliged to consider potential non-negligent causes where there is no
    evidentiary foundation to do so: see, for example,
Hassen v. Anvari
,
    2003 CarswellOnt 3436 (C.A.), at para. 9, leave to appeal refused: 2004
    CarswellOnt 1768 (S.C.C.).

[135]

In this case,
    the trial judge considered and explicitly rejected the non-negligent causes put
    forward by the appellants expert witnesses. As I have explained, there was no
    evidence in this trial to suggest that a reasonably competent surgeon, trying
    to stay at least two millimetres away, might accidentally have injured the
    ureter during this particular operation. The expert evidence detailed earlier
    was to the contrary. The trier of fact is required to determine standard of
    care and its breach based on the evidence and not on speculation. The onus on a
    plaintiff in a medical malpractice case is not to disprove every possible
    theory that might be put forward by a defendant, let alone theories that are
    not raised at trial, but only on appeal.

[136]

Finally, at
    para. 57 my colleague states correctly that it is a logical error to infer
    that since an adverse result is improbable a defendant was negligent in causing
    that adverse result. I agree with that statement, but not with the balance of
    the paragraph. The trial judge in this case did not reason from the injury
    backwards; nor did he find negligence based on the low probability of risk of
    an injury. Rather, as the excerpt from his reasons set out at para. 91 above
    demonstrates, the trial judge was satisfied by the evidence, including Dr.
    Hagens statement that this type of surgery was basic surgery for a general
    surgeon, that under these circumstances it would be a breach of the standard
    of care for a general surgeon to come within one or two millimetres of the
    ureter during a routine colectomy on a benign colon.

Issue
    Two: The trial judge did not conflate standard of care and causation

[137]

Dr. Ward asserts
    that the trial judge erred by conflating his assessment of standard of care and
    causation. In Dr. Wards submission, the trial judge erred by conducting a
    causation analysis to determine whether a breach took place. That caused him to
    work backwards, focusing on the injury to conclude that Dr. Ward must have
    breached the standard of care. Dr. Ward contends that in a negligence action,
    the trial judge must determine what the standard of care is, and whether it was
    breached, before conducting a causation analysis. Here, according to Dr. Ward,
    the trial judge erred by using Dr. Klotzs causation opinion to inform his
    analysis of the breach of the standard of care.

[138]

I agree with my
    colleague, at paras. 59 to 63, that typically, it makes sense for the trier of
    fact to consider causation only after finding a breach of the standard of care:
    see, for example,
Bafaro v. Dowd
,
    2010 ONCA 188, 260 O.A.C. 70, at paras. 35-36.
Determining standard
    of care before causation ensures that the trial judge does not wrongly reason
    backwards from the fact of the injury to determine that the standard of care
    has been breached. However, I also agree with my colleagues observation that
    at times the court will need to determine what happened (that is, the factual
    cause of the plaintiffs injury) in order to resolve whether the standard of
    care has been breached. Determining factual (and not but-for) causation is
    sometimes necessary before a conclusion can be reached on whether there has
    been a breach of the standard of care.

[139]

Indeed, this
    court has determined that, in some cases, it will be an error for the trial
    judge to fail to determine how the injury occurred before assessing standard
    of care.

[140]

This was the
    case in
Meringolo (Committee of) v. Oshawa General Hospital
(1991), 46
    O.A.C. 260 (C.A.), leave to appeal refused: [1991] S.C.C.A. No. 155, where a
    patient sustained brain damage during a bronchoscopy, leaving him in a
    permanent vegetative comatose state. The trial judge dismissed the negligence
    action against his doctors. This court
overturned
    the decision on appeal. In allowing the appeal, this court accepted the
    submission that the issue of negligence ought to have been deferred until the
    issue of causation had first been addressed. At para. 56, Osborne J.A.
    observed:

In this case, before the breach of duty issue can be
    appropriately addressed, what happened in the operating room on May 10, 1983
    must be determined in order to provide an answer to the question, what caused
    the appellants brain damage, or, to put it more broadly, how did the appellant
    sustain brain damage. It is only after that issue is examined that the issue of
    the respondents alleged negligence should be considered.

[141]

Similarly, in
Grass
    (Litigation guardian of) v. Womens College Hospital
(2001), 200 D.L.R.
    (4th) 242, leave to appeal refused: [2001] S.C.C.A. No. 372, the appellants
    main argument was that the trial judge erred in addressing the issue of
    negligence before making, and without having made any determination of, the
    cause of an infants injury, which occurred at birth. This court allowed the
    appeal and ordered a new trial. Catzman J.A. stated, at para. 12:

[T]he trial judge in the present case disposed of the action by
    finding that the appellants had failed to establish negligence on the part of
    Dr. Weisberg and thereby finding it unnecessary to assess the conflicting
    theories relating to causation. In doing so, he fell into the error articulated
    in
Meringolo
. The resolution of the question of causation might have
    led to different findings of fact with respect to what transpired in the labour
    room and to a different conclusion with respect to negligence. As in
Meringolo
,
    the appellants were entitled to the benefit of the trial judges findings with
    respect to causation or to his determination, on the basis of a consideration
    of all of the evidence that such findings could not be made, before he came to
    address the issue of negligence.

[142]

The decision in
Kennedy v. Jackiewicz
,
    2003 CarswellOnt 1755 (Ont. S.C.), (the appeal decision is referenced above) had
    some similarities to the present case. After a surgeon had removed the
    plaintiffs ovaries, it was discovered that she had a hole in her colon. The
    plaintiff led expert evidence that the hole was caused by a thermal injury. The
    expert testified that cautery had been improperly applied either at too high
    power, for too long, or both.

[143]

The trial judge
    explained that in some cases a trier of fact must determine what happened,
    before determining whether the surgeon fell below the standard of care, and
    that to do so is not an outcome-oriented inquiry. Gravely J. stated, at para.
    6:

My inquiry then is to focus on what Dr. Jackiewicz did or
    failed to do and whether that was acceptable for a reasonably prudent and
    diligent surgeon in the same circumstances. The inquiry must not be
    outcome-oriented. It is nonetheless open to experts and to the court to draw
    inferences of fact.
It may be appropriate, then, for an expert or the court
    to infer from the nature of the injury what it was the surgeon did. In this
    exercise the outcome to the patient is irrelevant. Once having determined on
    all the evidence what the surgeon did the inquiry shifts to the question of
    whether what was done falls below the standard
. [Emphasis added.]

[144]

As in these
    three cases, the trial judge in the present case had to determine what happened,
    that is, how Ms. Armstrongs left ureter had been damaged, before he could
    reach any conclusion on whether Dr. Ward had breached the standard of care. He
    did not conflate standard of care and causation, or reason backwards from
    causation to conclude that Dr. Ward must have been negligent simply because he
    considered evidence as to the mechanism of the injury in his analysis of the
    breach of standard of care. While
Bafaro
tells us that the but for
    question of causation cannot be answered until the standard of care analysis is
    done,
Meringolo,

Grass
and
Kennedy
tell us that in
    some cases it will be necessary to determine what happened before analyzing
    whether there has been a breach of the standard of care.

[145]

In conclusion, I
    am not persuaded that the trial judge erred in conflating but for causation
    and the standard of care, or in dealing with standard of care and causation in
    the wrong order, or that he applied a results-oriented approach.

Issue
    Three: The trial judge did not err in relying on the evidence of Dr. Burnstein
[146]

The trial judge
    concluded 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 (at para. 81) and that based
    on the experts testimony, close proximity to means within one to two
    millimetres of the ureter (at para. 82).
[147]

As I have
    already explained, this conclusion was supported by the evidence at trial,
    which includedbut was not limited tothe evidence of Dr. Burnstein.
[148]

The appellant
    argues that it was a palpable and overriding error for the trial judge to give
any
weight to Dr. Burnsteins evidence because: (1) Dr.
    Burnstein does not perform laparoscopic colectomies; (2) Dr. Burnsteins
    opinion on the standard of care required perfection; (3) Dr. Burnsteins opinion
    was inconsistent with authoritative medical literature; and (4) Dr. Burnstein
    ultimately retreated from his initial opinion and accepted Dr. Hagens opinion
    on the standard of care.
[149]

With respect to
    the first complaint, I note that Dr. Ward did not object to Dr. Burnsteins
    qualification as an expert witness to provide opinion evidence on both standard
    of care and causation. This was an appropriate concession. Dr. Burnstein was
    properly qualified, having special knowledge and experience in using the
    LigaSure device, in performing colectomies, and in the risks of injury to other
    structures in the course of such surgery. His lack of specific experience with
    laparoscopic colectomies is a matter of weight, which was a determination for
    the trial judge to make.
[150]

As for Dr.
    Wards second argument, I have already explained in some detail that, while Dr.
    Burnstein was of the opinion that a reasonable surgeon in performing a
    colectomy on a benign colon would identify, protect and stay more than two
    millimetres away from the ureter, this was not a standard of perfection.
    Rather, it was Dr. Burnsteins opinion that a competent surgeon, by training
    and experience, would be able to avoid injury by staying more than two
    millimetres away from the ureter while using the LigaSure device in the
    circumstances of this case.
[151]

Similarly, I do
    not accept the appellants third argument: that it was a palpable and
    overriding error to accept Dr. Burnsteins opinion because it was inconsistent
    with authoritative medical literature. Indeed, the medical literature that was
    put to Dr. Burnstein during the trial was consistent with and supported his
    opinion that using the LigaSure device too close to the ureter could cause a
    thermal injury, and that a surgeon was required to stay a safe distance from
    the ureter while using the device.
[152]

The focus of the
    criticism is again on what the appellant describes as Dr. Burnsteins zero
    risk theory, suggesting that he was advancing a standard of perfection. My
    colleague states, at para. 53, that Dr. Burnsteins zero risk theory is not
    supported by scientific literature, while the appellant asserts in his factum
    that a zero per cent chance of ureteric injury was explicitly rejected in the
    accepted medical literature before the trial judge (citing to a case study
    that was Exhibit 11 at trial).
[24]
[153]

With respect, I
    disagree. I have set out earlier (at paras. 99 to 105 above) the relevant
    passages from Dr. Burnsteins evidence. After accepting the 0.15% to 0.66% risk
    of injury to the ureter during a colectomy reported in the literature (which
    included both open and laparoscopic surgery, and surgeries with various
    complicating features), Dr. Burnstein stated that there ought to have been
    zero risk of injury in the circumstances of this case, and then he explained
    why. Contrary to the appellants assertion, none of the literature referred to
    at trial undermined Dr. Burnsteins zero risk theory, or more importantly,
    his opinion that the average reasonable prudent general surgical practitioner
    in removing a structurally normal colon in a structurally normal abdomen and
    peritoneum should be able to achieve the goal of colon removal without injuring
    other structures". In particular, the case study at Exhibit 11 confirmed
    that the ureter can be injured from thermal spread from the LigaSure device. It
    said nothing at all about the percentage risk of ureteric injuries, in
    particular in the context of a colectomy. The case study involved a patient and
    an operation with different circumstances and risks: the patient was an 80-year
    old male, with a small pelvis with relatively bulky contents, operated on both
    laparascopically and in open surgery for adenocarcinoma of the rectum. In
    discussing Exhibit 11, Dr. Burnstein reiterated his opinion that, during a
    colectomy that is abdominal surgery well away from the pelvis, the ureter
    should not be injured.
[154]

I therefore
    firmly reject the appellants argument that Dr. Burnsteins opinion was
    contradicted by this case study: it did not undermine Dr. Burnsteins opinion
    that the standard of care was to identify, protect and stay away from the
    ureter, and that a competent surgeon ought to have been able to do so, in the
    circumstances of this case, without injury to the ureter. Indeed, Dr. Burnstein
    stated, [I]ts my opinion based on my experience and practice and what I see in
    the community and I wont be able to give you a textbook that says the standard
    of care is not to injure the ureter. Thats a well-known aspect of colon
    surgery; identification and protection of the ureter. While Dr. Burnstein
    agreed that he could not point to any textbook or literature to say that the
    standard of care is not to injure the ureter during a colectomy if the colon
    was structurally normal, he was not confronted with any literature where that
    had happened.
[155]

Finally, I do
    not accept the fourth argument with respect to Dr. Burnsteins opinion. The
    appellant points to a particular passage in Dr. Burnsteins evidence, where he
    is alleged to have retreated from his opinion and in fact accepted the opinion
    of the appellants expert on standard of care, Dr. Hagen, that every step Dr.
    Ward had taken was reasonable and met the standard of care. The passage in
    question is set out at para. 104 of my dissenting reasons.
[156]

In this passage
    Dr. Burnstein indeed accepted that, Dr. Ward would have met the standard of
    care if he had (1) identified the left ureter by locating it on the screen in
    the operating theatre, and then used a medial approach, tweaking it or pushing
    the structures around it to ensure it moved; (2) pushed away the
    retroperitoneal structures, including the ureter, towards the head of the
    patient away from the colonic mesentery; (3) opened the LigaSure to use it to
    divide the colonic mesentery only after the previous steps;
and
(4) stayed away from the ureter towards the colon
    when using the LigaSure to divide the colonic mesentery. As we have seen
    however, Dr. Ward did not take the final reasonable step, of staying away from
    the ureter while dividing the mesentery. As such the passage relied on did not
    undermine or otherwise affect Dr. Burnsteins opinion with respect to standard
    of care.
[157]

For these
    reasons, I reject the appellants arguments with respect to the alleged
    deficiencies in Dr. Burnsteins opinion evidence. In any event, there is
    nothing that would suggest that the trial judge in this case made a palpable
    and overriding error in accepting that evidence as part of his overall
    determination of the issue of standard of care.
Issue Four: There was no error in the
    trial judges causation analysis
[158]

The main, if not
    the entire, focus of this appeal was on standard of care. The appellant however
    confirmed that he continues to rely on the written arguments set out in his
    factum in respect of the fourth ground: that the trial judge committed a
    palpable and overriding error in accepting the respondents expert evidence on
    causation.
[159]

At trial there
    was no question that Ms. Armstrongs ureter injury occurred as a result of her
    colectomy. There was also no question that the injury to the ureter resulted in
    the harm that she suffered, including the removal of her left kidney, and the
    damages that the parties had agreed upon. The causation issue in this case was
    the mechanism of the injury  whether it occurred as a result of thermal spread
    from the use of the LigaSure device too close to Ms. Armstrongs ureter (the
    opinion of Dr. Klotz), or by one of the other two mechanisms proposed by Dr.
    Hagen and Dr. Robinette. Only the first mechanism would have entailed
    negligence on the part of Dr. Ward.
[160]

The appellant
    asserts that Dr. Klotzs theory of causation, which was accepted by the trial
    judge, was not supported by the literature or the evidence. The appellant then
    points to various aspects of the evidence to assert that the trial judge ought
    instead to have accepted Dr. Robinettes opinion that the ureter was damaged
    through unavoidable abdominal scarring that expanded inside the abdomen,
    eventually leading to the stricture of the ureter.
[161]

There was
    extensive evidence at trial about how Ms. Armstrongs ureter came to be
    injured. Indeed, as I have already observed, this was the central issue, on
    which there was extensive expert evidence. The trial judges reasons review and
    analyze the specific opinions of the expert witnesses on this issue, and then
    explain why he accepted Dr. Klotzs opinion. Without question, there was
    evidence to support the trial judges findings. In setting out in his factum
    the evidence that contradicts the trial judges conclusion, and that supports
    an alternative causation theory that was rejected by the trial judge, the
    appellant is simply inviting this court to reconsider the evidence and to reach
    a different factual conclusion. For these reasons I reject this ground of
    appeal.
IV.      CONCLUSION
[162]

I have explained
    why, in my view, the trial judges conclusions respecting standard of care were
    supported by the evidence at trial. I have also explained why I would reject
    the appellants contention that the trial judge made any reversible error in
    his articulation and application of the standard, in addressing what happened
    before reaching his conclusion that Dr. Ward breached the standard of care, and
    in accepting Dr. Burnsteins opinion evidence.
[163]

The issue here
    is whether Dr. Ward took reasonable care. Typically, this involves a
    consideration of what concrete action a prudent surgeon could be expected to
    have taken in the circumstances. This is precisely what the trial judge
    considered in the present case. Before he stated his conclusion on standard of
    care, he described the procedure to be followed, and pointed to evidence of the
    need to identify and reidentify the ureter so as to stay safely away from it
    (i.e., at least two millimetres away).
[164]

Based on the
    evidence, the trial judge did not hold Dr. Ward to a standard that was higher
    than could reasonably be expected of an average reasonable prudent
    practitioner performing a colectomy where no complicating features were
    present. The trial judges conclusion that a reasonably competent surgeon would
    have stayed two millimetres away from the ureter is fully supported by the
    evidence. It is not a statement of result or a goal, but an essential step
    that was not taken in this case. On the evidence, this was a breach of the
    standard of care.
[165]

In any event,
    whether avoiding injury to the ureter by staying at least two millimetres away while
    using the LigaSure is described as a goal or a step may be simply a
    question of semantics. Dr. Burnstein did not reduce the standard of care to
    just taking the proper steps. Rather, he spoke of exercising the appropriate
    degree of safety, prudence, [and] judgment in undertaking the procedure. As
    noted in
Rowlands v. Wright
, 2009 ONCA 492, 250 O.A.C. 394, a medical
    negligence case involving laparoscopic gallbladder removal surgery, [t]here is
    a difference between using the appropriate technique and executing it
    properly: at para. 28.
[166]

Finally, this
    appeal is about whether it was open to the trial judge on the evidence to find
    that a reasonable and prudent surgeon could reasonably be expected to stay at
    least two millimetres away from the ureter when removing a benign colon. In my
    view this conclusion, like the trial judges conclusion about the cause of the
    damage to Ms. Armstrongs ureter, was available and fully supported by the
    evidence.
Released: December 6, 2019
RGJ
K. van Rensburg J.A.

[1]
Transcript of Proceedings, January 16, 2018, p. 11.


[2]

See Appellants Factum, at para. 2.


[3]
Transcript of Proceedings,
January 11, 2018, at p.15


[4]
Transcript of Proceedings, January 10, 2018
, at p. 14.


[5]
Transcript of Proceedings, January 10, 2018
, at p. 15.


[6]
Transcript of Proceedings, January 10, 2019, at p. 15.


[7]
Transcript of Proceedings, January 11, 2018
, at p. 17.


[8]
Transcript of Proceedings, January 11, 2018
, at pp. 21-22, 35,
    and 43.


[9]
Transcript of Proceedings
, January 11, 2018, at p. 23.


[10]
Transcript of Proceedings
, January 11, 2018, at pp. 50-51.


[11]
Transcript of Proceedings, January 11, 2018, at pp. 76-78.


[12]
Transcript of Proceedings
, January 16, 2018, at pp. 6, 33.


[13]
Transcript of Proceedings, January 16, 2018
, at p. 11.


[14]
Transcript of Proceedings, January 16, 2018, at pp. 12-13.


[15]
Transcript of Proceedings, January 16, 2018
, at pp. 33-34.


[16]
Transcript of Proceedings
, January 16, 2018, at pp. 33-37.


[17]
Transcript of Proceedings, January 12, 2018, at p. 21.


[18]
Transcript of Proceedings, January 12, 2018, at pp. 21-22.


[19]
Transcript of Proceedings, January 12, 2018, at p. 23.


[20]

Transcript of Proceedings, January 12, 2018, at p. 46.


[21]
Transcript of Proceedings
, January 12, 2018, at pp. 48-49.


[22]
Transcript of Proceedings, January 12, 2018, at p. 49.


[23]
Transcript of Proceedings, January 15, 2018
, at p. 30.


[24]
Exhibit 11 was a case study entitled Ureteric Injury due to the Use of
    LigaSure, from the 2013
Case Reports on Urology.
See Transcript of
    Proceedings, January 11, 2018, at pp. 61-64.
