



COURT OF APPEAL FOR ONTARIO

CITATION: Bollman v. Soenen, 2017 ONCA 391

DATE: 20170517

DOCKET: C61604

Simmons, Pepall and Huscroft JJ.A.

BETWEEN

Barbara Jane Bollman
,
    Naomi Lynne Bollman and Nicholas Donald Bollman

Plaintiffs (
Appellant/

Respondent
    by way of cross-appeal
)

and

Dr. Gary Maynard Soenen
and Norfolk General Hospital

Defendants (
Respondent/

Appellant
    by way of cross-appeal
)

André I.G. Michael and Kimberly N. Knight, for the appellant/respondent
    by way of cross-appeal

Ronald G. Slaght and Lindsay N. Beck, for the
    respondent/appellant by way of cross-appeal

Heard: November 17, 2016

On appeal from the judgment of Justice Donald J. Gordon
    of the Superior Court of Justice, dated December 16, 2015.

Simmons J.A.:

A.

INTRODUCTION

[1]

In June 2008, the respondent, Dr. Gary Soenen, performed a laparoscopically
    assisted vaginal hysterectomy (LAVH) on the appellant, Barbara Young
    (formerly Bollman).

[2]

The surgery appeared uneventful and Ms. Young was discharged from
    hospital the following day. However, in the days and weeks following the
    surgery, Ms. Young experienced significant pain and complications. A little
    over three weeks post-surgery, during her sixth post-operative hospital visit,
    a CT scan with contrast revealed an injury to her left ureter. During
    subsequent corrective surgery, it was determined that her left ureter was
    transected.

[3]

Ms. Young sued Dr. Soenen for negligence. Among other things, she claimed
    that, as a general surgeon, he was not qualified to perform the surgery; that he
    did not adequately explain the risks of or alternatives to surgery, thus
    failing to obtain her informed consent; and that he did not meet the standard
    of care either in performing the surgery or in his post-operative care.

[4]

The trial judge found that Dr. Soenen severed Ms. Youngs left ureter
    during the hysterectomy. Nonetheless, he rejected Ms. Youngs claims that Dr.
    Soenen was not qualified to perform the surgery and failed to meet the standard
    of care in performing it. Further, while the trial judge was not satisfied Dr.
    Soenen met his duty of fully informing Ms. Young about the risks of surgery and
    other treatment options and found that Ms. Young met the subjective component
    of the test for informed consent, he concluded that a reasonable person
    experiencing Ms. Youngs symptoms would have chosen to proceed with the surgery
    had full disclosure been made. The trial judge therefore rejected Ms. Youngs
    negligence claim based on lack of informed consent.

[5]

However, the trial judge found Dr. Soenen negligent in his
    post-operative care. In particular, he found that Dr. Soenens failure to consider
    and investigate a surgical injury on July 7, 2008 (which was a week before the
    date of the scan that revealed the ureteric injury) breached the standard of
    care. He noted that Ms. Young suffered pain and complications for an additional
    week and had to undergo an additional laparoscopic surgery. He concluded that
    both would have been avoided had Dr. Soenen ordered a CT scan with contrast on
    July 7, 2008. He awarded Ms. Young $35,000 in damages.

[6]

Ms. Young appeals the dismissal of her claim for negligence based on lack
    of informed consent. Dr. Soenen cross-appeals the finding of post-operative
    negligence.

[7]

For the reasons that follow, I would dismiss the appeal and allow the
    cross-appeal.

B.

The Appeal

[8]

As I have said, Ms. Young appeals the dismissal of her claim for
    negligence based on lack of informed consent. She submits that the trial judge erred
    in the application of the objective element of the test for informed consent in
    medical negligence cases. In particular, she says that having found that Ms.
    Young met the subjective element of the test for informed consent, the trial
    judge ignored expert evidence concerning available medical treatment for Ms.
    Youngs condition and failed to weigh the relative benefits and risks of
    medical treatment versus surgery. Dr. Soenen disputes this claim; he also
    asserts that the trial judge erred in finding Ms. Young met the subjective
    component of the test for informed consent.

(1)

Background

[9]

Ms. Young developed menstrual problems in 1987 following the birth of
    her second child. Subsequently, in 1990, she had a dilation and curettage procedure
    (D&C) that provided her with some relief for many years.

[10]

However, in 2006, Ms. Youngs symptoms worsened. By 2007, she was
    suffering from heavy bleeding (menorrhagia), blood clotting, vaginal pain and
    breast tenderness. These symptoms impacted her ability to work and her quality
    of life.

[11]

In May 2007, she consulted her family physician, Dr. Thorogood, who
    referred her to Dr. Soenen. At trial, Dr. Thorogood testified that he always
    discussed medical management with his patients prior to referring them to a
    surgeon. In addition, he said that some patients had been referred back to him
    by Dr. Soenen in order for him to oversee their medical management.

[12]

Dr. Soenen first saw Ms. Young on June 19, 2007. He reviewed an
    ultrasound performed in mid-May and conducted a pelvic examination. He recommended
    an endometrial ablation, to which Ms. Young agreed. At trial, he testified that
    he would only have booked this procedure after she had declined other
    options, including medical management.

[13]

Dr. Soenen performed the endometrial ablation on September 17, 2007. The
    procedure provided Ms. Young with some relief.  However, on February 14, 2008, Dr.
    Soenen wrote to Dr. Thorogood, reporting that it was likely Ms. Young would go
    on to have a LAVH. In correspondence to Dr. Thorogood on March 20, 2008, Dr. Soenen
    said that Ms. Young continued to have significant pain and wishes to have a
    hysterectomy.

[14]

Dr. Soenen performed a LAVH on Ms. Young on June 23, 2008 at Norfolk
    General Hospital. His notes indicate the surgery was uneventful; Ms. Young was
    discharged from the hospital the following day.

[15]

Ms. Young called Dr. Kristina Dervaitis, a gynecologist, to give expert
    evidence concerning the medical and surgical management of menstrual problems
    including hysterectomies.

[16]

Among other things, Dr. Dervaitis opined that, by 2008, the Mirena intrauterine
    device (IUD) had become a first line option; that Ms. Young had no
    contraindications for the use of it; and, in fact, would be considered an
    ideal candidate for its use.

[17]

Dr. Dervaitis testified that the Mirena IUD can be inserted in a five-minute
    office procedure; can be removed at any time; is effective for five years; and has
    very low associated risks. Moreover, it has a high rate of success in [decreasing]
    menstrual flow in 90% of patients and 70% of patients have an improvement in
    painful menses.

[18]

Dr. Dervaitis indicated that, in any event, Ms. Youngs symptoms would
    resolve spontaneously at menopause. She was 49 at the time of surgery  and the
    average age of menopause is 51.

[19]

In Dr. Dervaitiss opinion most patients would accept at least one
    medical management option prior to embarking upon a treatment that is much
    higher risk such as surgery and that for benign, non-cancerous, non-life-threatening
    menstrual problems, a hysterectomy would be considered a last resort.

[20]

Ms. Young testified that Dr. Soenen did not discuss a referral to a
    gynecologist or the use of medication or an IUD, options which Ms. Young said
    she would have tried prior to electing surgery had they been offered. Further,
    while she acknowledged that Dr. Soenen advised her about the basic risks of
    bleeding and infection, damage to other organs, she had no recollection of
    him referring to possible injury to her ureters, a term she was familiar with
    and would have asked for an explanation of had he mentioned it.

[21]

Dr. Soenen conceded he had injured Ms. Young during the hysterectomy and
    that his record-keeping concerning the pre-operative advice he had given to her
    was sparse. Nonetheless, he asserted that he had reviewed treatment options
    with Ms. Young, including medical management, as well as the risks and
    possibility of failure of the surgery.

(2)

The trial
    judges reasons concerning informed consent

[22]

After dealing with Dr. Soenens qualifications to perform the
    hysterectomy, the trial judge turned to the issue of informed consent. In his
    view,
Reibl v. Hughes
, [1980] 2 S.C.R. 880, established a two-part
    test for informed consent, both components of which must be established on a
    balance of probabilities:

i)

what the patient would have agreed to if the risks were known, a
    subjective test; and

ii)

what a reasonable person would have done, an objective test.

[23]

Although he considered Ms. Youngs evidence qualified to some extent in
    terms of recollection, the trial judge found her to be a sincere and
    believable witness. Further, while he accepted that Dr. Thorogood had a
    discussion with Ms. Young concerning medical management and referral to a
    gynaecologist, it was unclear how extensive this discussion was regarding
    options. In any event, the duty to fully inform Ms. Young of the risks of
    surgery and available alternative options rested with Dr. Soenen. The trial
    judge was not satisfied Dr. Soenen made full disclosure to his patient. His
    notes were of no assistance and he provided minimal detail of what his usual
    practice in terms of disclosure actually was. The trial judge therefore
    concluded that Ms. Young met the subjective component of the test. However, in
    his view, it was impossible for her to meet the second component. He said:

Ms. Young was a sincere and believable witness. There is merit
    in much of what she says, although her evidence was qualified to some extent in
    terms of recollection. However, she was certain there was no discussion of [an IUD]
    or risk of injury to a ureter.



[T]he duty here rests with Dr. Soenen. I am not persuaded full
    disclosure was presented to Ms. Young.



Hence, I conclude Ms. Young has met the subjective component of
    the test. However, the objective branch, in my view, is impossible to achieve
    in this case.

Ms. Young had suffered from menorrhagia for many years. Her
    condition had escalated over the prior two years. Two surgical procedures had
    failed. She was in considerable pain and dealing with fatigue. Menorrhagia impacted
    her work and quality of life. Ms. Young wanted relief, a final solution. In my
    view, Ms. Youngs stated preferences are based, in part, on hindsight.
    Regardless, I conclude a reasonable person experiencing Ms. Youngs symptoms
    would have chosen a surgical solution if all treatment options and material
    risk, including ureteric injury, had been disclosed.

(3)

Discussion

[24]

As I have said, Ms. Young submits that, having found that she (Ms. Young)
    met the subjective element of the test for informed consent, the trial judge
    erred in his application of the objective element.

[25]

In particular, Ms. Young contends that the trial judge failed to
    consider Dr. Dervaitis uncontradicted expert evidence that medical management with
    a Mirena IUD was first line treatment carrying little associated risk and a
    high probability of success. Further, the trial judge failed to weigh the
    relative benefits and risks of medical management against the risks of a LAVH,
    an elective surgery and what Dr. Dervaitis described as the treatment of last
    resort for Ms. Youngs condition. Moreover, the first line treatment, if
    successful, would not preclude subsequent surgery.

[26]

Given that most patients would follow the treatment path recommended in
    accordance with the gynecological standard of care, Ms. Young submits that the
    trial judges conclusion that she failed to meet the objective element of the
    test for informed consent reflects palpable and overriding error.

[27]

I would not accept these submissions.

[28]

In

Reibl v. Hughes
, the Supreme Court of Canada rejected
    a purely subjective test for causation in medical negligence cases alleging
    lack of informed consent and instead adopted a modified objective test. Under
    the modified objective test for causation, the court must consider whether a
    reasonable person in the plaintiffs position would have declined the procedure
    at the time had proper disclosure been made.

[29]

One of the major reasons for adopting a modified objective test for
    causation, rather than a subjective test, was that a subjective test would place
    too high a premium on hindsight  thus creating a risk that a patient who had
    suffered injury would be convinced she would not have undergone the procedure
    had proper disclosure been made.

[30]

On the other hand, a purely objective test could place too high a
    premium on medical evidence, thus making it practically impossible to succeed
    with an action based on lack of informed consent  and also potentially
    ignoring the legitimate concerns of patients wishing to exercise their rights
    of freedom of choice.

[31]

The Supreme Court has confirmed the modified objective test as the
    appropriate test in two subsequent decisions:
Hollis v. Birch
, [1995]
    4 S.C.R. 634 and
Arndt v. Smith
, [1997] 2 S.C.R. 539.

[32]

In the latter case, Cory J. described the considerations that led the
    court to adopt the modified objective test in
Reibl v. Hughes
as well
    as the precise contours of the test, at paras. 4-6, as follows:

Laskin C.J.  rejected the pure subjective approach to causation.
    He explained at p. 898 that the plaintiffs testimony as to what he or she
    would have done, had the doctor given an adequate warning, is of little value:

It could hardly be expected that the patient who is suing
    would admit that he would have agreed to have the surgery, even knowing all the
    accompanying risks.

...

Accordingly the subjective test would necessarily cause the
    trier of fact to place too much weight on inherently unreliable testimony.

While an objective test
    would prevent an inappropriate emphasis being placed on the plaintiffs
    testimony, Laskin C.J. thought that a purely objective test also presented
    problems. At p. 898, he discussed his paramount concern with an approach based
    on the actions of a hypothetical reasonable person:

... a vexing problem raised by the objective standard is
    whether causation could ever be established if the surgeon has recommended
    surgery which is warranted by the patients condition. The objective standard
    of what a reasonable person in the patients position would do would seem to
    put a premium on the surgeons assessment of the relative need for the surgery
    and on supporting medical evidence of that need. Could it be reasonably
    refused?

In short, the purely objective standard might result in undue
    emphasis being placed on the medical evidence, essentially resulting in a test
    which defers completely to medical wisdom.

To balance the two
    problems, Laskin C.J. opted for a modified objective test for causation



The test enunciated relies on a combination of objective and
    subjective factors in order to determine whether the failure to disclose
actually
caused the harm of which the plaintiff complains. It requires that the court
    consider what the reasonable patient
in the circumstances of the plaintiff
would have done if faced with the same situation. The trier of fact must take
    into consideration any particular concerns of the patient and any special
    considerations affecting the particular patient in determining whether the
    patient would have refused treatment if given all the information about the
    possible risks. [Emphasis in original.]

[33]

Although the trial judge expressed the test somewhat differently, I am
    not persuaded that he made any error in applying the test as set out and
    explained by the Supreme Court.

[34]

Read fairly, the trial judges reasons demonstrate that he believed Ms.
    Young when she said that she would have tried medical management had full
    disclosure been made. However, he found her evidence in that respect tainted by
    hindsight  and therefore unreliable.

[35]

Taking account of her circumstances at the time, and assessing her
    situation from the perspective of a reasonable person, he concluded that what
    was most important was a final solution. At para. 84 of his reasons, the trial
    judge concluded that Ms. Young wanted relief, a final solution having had two
    failed surgical procedures and having experienced considerable pain and
    fatigue.  Rather than a trial of medical management, a reasonable person who
    had experienced Ms. Youngs symptoms over the same time frame, and with the
    attempts at correction she had tried, would have opted for surgery   which
    carried a very small risk
[1]
of injury to the ureters  to resolve her problem, rather than medical
    management, including the IUD, which might do no more than ameliorate her
    symptoms.

[36]

I am not persuaded that the trial judge ignored, or failed to consider,
    Dr. Dervaitis evidence in reaching this conclusion. He referred to her
    evidence about medical management when addressing the issue of whether Dr.
    Soenen was qualified to provide gynecological services, including
    hysterectomies. When addressing the issue of informed consent, the trial judge
    specifically noted Ms. Youngs testimony that she would have tried medical
    management, such as an IUD, or accepted a referral to a gynaecologist  options
    Dr. Dervaitis had presented  had those options been disclosed by Dr. Soenen.

[37]

And although the trial judge believed Ms. Youngs evidence in that
    regard, he was not satisfied it was reliable. Rather, even in the face of her
    credible evidence that she would have opted for the solutions about which Dr.
    Dervaitis testified, he concluded that a reasonable person who had experienced
    the symptoms she described and who had tried the corrective measures she had
    tried would have opted for the LAVH.

[38]

In my view, in reaching his conclusion, the trial judge considered all
    the evidence and applied the test for informed consent as enunciated and
    explained by the Supreme Court.  In the absence of error, his conclusion is
    entitled to deference.

[39]

I would therefore dismiss the appeal. In the light of this
    determination, it is unnecessary to address the respondents submissions that
    the trial judge erred in his formulation and application of the informed
    consent test.

C.

The Cross-Appeal

[40]

As noted above, Dr. Soenen cross-appeals the trial judges finding that
    Dr. Soenens failure to consider and investigate a surgical injury on July 7,
    2008 (which was a week before the date of the scan that revealed the ureteric injury)
    breached the standard of care. He submits that this finding relating to
    post-operative care is not supportable on the expert opinion evidence.

(1)

Background
     post-LAVH events

[41]

Following her discharge from hospital on June 24, 2008, Ms. Young
    experienced significant difficulties and pain. On June 28, 2008, she went to
    the emergency department at the hospital. She was diagnosed with abdominal wall
    cellulitis and was discharged with a prescription for antibiotics.

[42]

Ms. Youngs pain continued. She returned to the hospital by ambulance on
    the morning of July 3, 2008. She was unable to void. Her bladder was drained
    and she was sent home.

[43]

On July 5, 2008, Ms. Young returned to the emergency department yet
    again. She had abdominal tenderness and was retaining urine. The emergency
    doctor submitted a requisition for an urgent CT scan, stating:

URGENT - MONDAY PLEASE (July 7/08)  post LAVH with urinary
    retention. Complication post-op. Abdominal wall cellulitis  R/O abscess.

[44]

Ms. Young returned to the hospital on July 7, 2008. She was sent for an
    ultrasound. Dr. Chow, a radiologist, reported the presence of a large
    loculated cystic mass and stated, in part:

With clinical history I could not rule out if this is a large
    abscess formation but the left ovary is not demonstrated. The other possibility
    of left large ovarian cyst could not be entirely excluded.



I believe CT pelvic scan may give more information.

[45]

Dr. Soenen attended the emergency room to see Ms. Young. He testified
    that he conducted a pelvic examination, reviewed Dr. Chows report and had a
    discussion with him. Although his recollection of the discussion was somewhat
    vague, he said they discussed whether or not we should do a CT scan, whether
    it would add any further information. Dr. Soenen also reviewed a laboratory
    blood test report, which revealed a depressed hemoglobin level compared to the
    value recorded before the surgery. His diagnosis was pelvic hematoma. He
    discharged Ms. Young from hospital with instructions to continue taking the
    antibiotics.

[46]

Dr. Soenen next saw Ms. Young in his office for a previously scheduled
    appointment on July 9, 2008. After examining Ms. Young, his diagnosis remained
    the same.

[47]

Ms. Young continued to experience abdominal pain. She returned to the hospital
    emergency department on July 11, 2008. The doctor who saw her diagnosed post-operative
    complication and discharged Ms. Young with pain medication.

[48]

On July 12, 2008, Ms. Young was again taken to the hospital by
    ambulance. The emergency doctor ordered a CT scan and Ms. Young was admitted to
    the hospital.

[49]

Dr. Soenen saw Ms. Young the next day. The CT scan had not been
    performed. Dr. Soenen reviewed the blood test report and was concerned that the
    hematoma had become infected. He decided to drain it laparoscopically, a
    procedure he performed later in the day. This procedure revealed the absence of
    a hematoma.  In his postoperative report, Dr. Soenen commented that he could
    not identify any ureteric injury.

[50]

After a post-operative discussion with another surgeon, Dr. Soenen
    ordered a CT scan with contrast of Ms. Youngs bladder and ureters. In the
    requisition, he wrote are the ureters intact?

[51]

The CT scan with contrast was performed on July 14, 2008. It revealed an
    injury to Ms. Youngs left ureter. She was transported immediately to the
    hospital in London.

[52]

On July 16, 2008, a urologist performed surgery and determined that Ms.
    Youngs entire left ureter had been transected. Although the urologist concluded
    that a left ureteral reimplantation could be performed, at that point it was
    necessary to allow for tissue healing. The corrective surgery was performed on
    October 20, 2008. A further surgery was required on April 23, 2009 to repair an
    incisional hernia.

[53]

The trial judge found that Ms. Young was still experiencing physical and
    emotional effects of the injury at the time of trial, seven years after the
    surgery.

(2)

The trial
    judges reasons concerning post-operative care

[54]

After dealing with the issues of Dr. Soenens qualifications, informed
    consent and surgical negligence, the trial judge turned to the question of
    post-operative negligence. As framed by the trial judge, the issue was
    differential diagnosis  and whether Dr. Soenen should have considered possible
    diagnoses other than hematoma on July 7, 2008 and ordered a CT scan with
    contrast on that day.

[55]

As a starting point, the trial judge noted that Dr. Soenen accepted that
    by July 7, 2008, Ms. Youngs post-operative symptoms had changed and that urinary
    retention, by then reported, was indicative of some problem in the urinary
    system. Nonetheless, Dr. Soenens impression remained hematoma.

[56]

Although the trial judge observed that Dr. Soenen had rejected
    recommendations made on July 5 and July 7 that a CT scan should be performed,
    he also noted that it was undisputed that a regular CT scan would not have
    helped and that only a CT scan with contrast would have revealed Ms. Youngs
    injury.

[57]

The trial judge reviewed the expert evidence concerning Ms. Youngs
    post-operative care. He noted that Dr. Ronald Holliday, a general surgeon,
    opined that ureteric injury should have been part of Dr. Soenens differential
    diagnosis.  While hematoma was a possible explanation, other explanations
    should have been considered. Surgery close to the ureter, in Dr. Hollidays
    opinion, required a CT scan with contrast to determine if there was an injury.

[58]

The trial judge also observed that Dr. Sidney Radomski, a urologist,
    agreed with Dr. Holliday that a CT scan with contrast should have been ordered
    on July 7, 2008 and opined that failure to do so breached the standard of care.
    Dr. Radomski acknowledged that his opinion was that of a urologist.

[59]

On the other hand, Dr. Nicholas Braithwaite, an obstetrician and gynecologist,
    opined that Dr. Soenen met the standard of care. Similarly, Dr. Michael
    Robinette, a urologist, agreed that the diagnosis of hematoma was reasonable
    and met the standard of care. He noted that all the laboratory reports
    supported the hematoma diagnosis at that point.

[60]

While acknowledging the competing opinions concerning the standard of
    care, the trial judge noted that the common theme was the requirement of a
    differential diagnosis and recognition of ureteric injury as a risk in
    abdominal surgery.

[61]

In the trial judges view, Dr. Soenen was focused on hematoma
    throughout the post-operative stage. He found it troubling that there was
    nothing else on Dr. Soenens differential diagnosis. Moreover, having had one
    previous patient suffer ureteric injury during surgery, [a]t a minimum, [ureteric
    injury] ought to have been on [Dr. Soenens] differential diagnosis and investigated.

[62]

Holding that the opinions of Dr. Holliday and Dr. Radomski were more
    persuasive, the trial judge found that Dr. Soenen breached the standard of care
    by failing to include surgical injury in his differential diagnosis and investigating
    it on July 7, 2008. Although hematoma was on the differential diagnosis, other
    matters should have been considered and ruled out. Both the emergency doctor
    and the radiologist had alerted Dr. Soenen as to other potential causes.

[63]

After setting out this finding, the trial judge also noted that Dr.
    Soenen had argued that the standard articulated by Dr. Radomski should not
    apply because Dr. Radomski is a specialist  a urologist  whereas Dr. Soenen
    is a general surgeon. The trial judge rejected this argument. He said Dr.
    Soenen is a general surgeon who holds himself out as qualified to perform
    gynaecological services, therefore attracting a higher standard of care. And,
    in any event, Dr. Halliday, a general surgeon, agreed with Dr. Radomskis
    articulation of the standard of care.

(3)

Discussion

[64]

I would accept Dr. Soenens argument that the expert evidence read as a
    whole does not support the trial judges finding that Dr. Soenen breached the
    standard of care.

[65]

Although Dr. Holliday and Dr. Radomski gave the opinions relied on by
    the trial judge when testifying in-chief, during cross-examination, both
    acknowledged that had Dr. Soenen taken certain steps he said he had taken (performing
    a pelvic examination, reviewing the ultrasound and blood test reports and
    speaking to Dr. Chow, the radiologist) before deciding on a course of action,
    declining to order a CT scan on July 7, 2008 would be a reasonable decision and
    within the standard of care (or at least not an unreasonable decision).

[66]

During cross-examination, Dr. Holliday testified as follows:

Q. Okay. And Dr. Soenens evidence, I anticipate, will be that
    he indeed looked at the ultrasound report, that he spoke to the radiologist and
    they discussed whether it was an abscess or a hematoma and that there was no
    discussion of a ureteric injury and that he assessed Ms. Young. And youll
    agree with me that if he did, took these three steps, he would be in a
    reasonable position to decide whether to order a CT scan or not, correct?

A. Yes.

Q. And if he took those steps, not ordering a CT scan would be
    a reasonable decision?

A. Yes.

Q. And if he took those steps, not ordering a CT scan would
    also meet the standard of care?

A. Yes.

[67]

Dr. Radomski acknowledged that, although it was not what he would have
    done, not ordering a CT scan would not be unreasonable and his comments about
    what he would have done did not reflect the standard of care:

Q. And I want you to assume that Dr. Soenen reviewed the
    ultrasound report, spoke with the radiologist, and he assessed Ms. Young. And I
    also want you to assume that once these three steps were carried out, he
    decided that a CT scan was not indicated. Youll agree with me that that
    decision, not to order a CT scan, if those steps were taken was reasonable?

A. I think that its an option. Its not something in my opinion
    I wouldve done.

Q. Are you saying its unreasonable?

A. No. I said its not, its an option, but its not something
    that I would have, would have done.

Q. Okay. So lets first get in the answer to my question.

A. Okay.

Q. Was it a reasonable thing to do?

A. I dont think it was an unreasonable thing to do.

Q. Okay. And whether you would do it or not, youll agree with
    me is not the standard of care, right? Its not what a personal choice or
    option you would have taken as a urologist on that day. The standard of care
    doesnt represent just what you would do, right?

A. Correct.

Q. Okay. And I guess, again Im not being critical of you, but
    you come at this today, and in particular what should or should not have been
    done as a urologist. Its self-evident, right?

A. Correct.

Q. Someone whose practice is focused on the urinary tracts in
    part?

A. Correct.

Q You dont come at it in the perspective of general surgeon
    because youre not, right?

A. Correct.

[68]

In the narrative section of his reasons, the trial judge accepted that
    Dr. Soenen performed a pelvic examination on Ms. Young on July 7, 2008 and reviewed
    Dr. Chows ultrasound report and the blood test report. Although he did not
    find specifically that Dr. Soenen discussed the ultrasound report with Dr.
    Chow, Dr. Soenens evidence in that respect was not challenged in
    cross-examination. Moreover, the trial judge did not reject it.

[69]

Considering the evidence as a whole, in my view, the trial judges
    conclusion that Dr. Soenen fell below the standard of care is not supported by
    the expert evidence. Once told of the steps Dr. Soenen had taken before
    deciding on a course of action, the experts upon whom the trial judge relied essentially
    acknowledged that Dr. Soenens decision not to order a CT scan on July 7, 2008
    did not breach the standard of care. Although Dr. Radomskis acknowledgment was
    not as clear as that of Dr. Holliday, he did agree that not ordering a CT scan
    was an option and that his [Dr. Radomskis] choice of options did not reflect
    the standard of care.

[70]

The trial judge did not advert to this evidence in his reasons. He also
    provided no basis for rejecting it or for concluding that the initial opinions
    of Drs. Holiday and Radomski had not been significantly qualified in
    cross-examination. In the circumstances, I conclude that the trial judges finding
    that Dr. Soenen breached the standard of care in his post-operative care was
    not reasonably supported by the evidence.

[71]

Dr. Soenen advanced an additional argument that causation was not made
    out, given the likelihood the ureteric transection was the result of a burn
    injury which would not have crystalized by July 7, 2008. Given my conclusion
    set out above, it is unnecessary that I address this issue.

[72]

I would therefore allow the cross-appeal, set aside the trial judges
    judgment and dismiss the action against Dr. Soenen.

D.

Disposition

[73]

Based on the foregoing reasons, I would dismiss the appeal, allow the
    cross-appeal, set aside the trial judges judgment and dismiss the action
    against Dr. Soenen. I would award costs of the appeal and cross-appeal, if
    demanded, on a partial indemnity scale fixed in the agreed upon amount of $10,000
    inclusive of disbursements and HST. If the parties are unable to agree on costs
    of the proceeding below, they may make brief written submissions within 30 days
    of the date of the release of this judgment.

Released:

GH                                          Janet
    Simmons J.A.

MAY 17 2017                          I agree S.E.
    Pepall J.A.

I agree
    Grant Huscroft J.A.





[1]

When discussing whether Dr. Soenen was negligent, the trial
    judge noted that Dr. Soenen had performed 400 to 500 LAVHs by 2008 and that
    only two of his patients, including Ms. Young, had suffered ureteric injury.
    The trial judge said, [t]his rate is said to be well within the accepted
    statistical range.


