



COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. Kane, 2021 ONCA 634

DATE: 20210921

DOCKET: C68095

Fairburn A.C.J.O, van Rensburg and Huscroft JJ.A.

BETWEEN

Patricia Ann Smith

Plaintiff (Appellant)

and

Dr. Brenda Kane
,
    Dr. Denny Khiet Y. Trinh, LMC Endocrinology

Centres (Toronto) Ltd., Dr.
    Sheldon Nadal, Stephen Galperin and

Dr. Michael Vizel

Defendants (
Respondent
)

and

Dr. Robert Evans and Dr.
    Rubina Tahir

Third Parties

Ryan N. Naimark, Kate M. MacLeod and Courtney Madison,
    for the appellant

Junior Sirivar and Sam B. Rogers, for the respondent

Heard: March 22, 2021 by video conference

On appeal from the judgment of Justice Arthur Gans of the
    Superior Court of Justice, dated January 27, 2020, with reasons reported at
    2020 ONSC 329.

van Rensburg J.A.:

A.

OVERVIEW

[1]

The appellant, Patricia Ann Smith, appeals the dismissal
    of her action for medical malpractice against the respondent, Dr. Brenda Kane.
    The trial judge dismissed the action because he concluded that Ms. Smith had failed
    to establish that Dr. Kane fell below the standard of care of a family
    physician in her treatment of Ms. Smiths right foot complaints between January
    and October 2008, following an injury to her ankle in November 2007.

[2]

Ms. Smith asserts that the trial judge erred in
    respect of the question of standard of care  the only issue determined against
    her at trial. In particular, she submits that the trial judge made the following
    errors:

·

First, she says the trial judge erred in his
    assessment of the expert evidence, when he (a) misapprehended the evidence of her
    standard of care expert; and (b) ignored an important concession by Dr. Kanes
    expert.

·

Second, relying on
ter Neuzen v. Korn
, [1995] 3 S.C.R. 674, she says the trial judge erred in failing to
    find a breach of the standard of care, even in the absence of expert evidence,
    based on his ordinary knowledge and common sense.

·

Third, she says the trial judge erred in failing
    to find a breach of the standard of care in Dr. Kanes alleged failure to
    diagnose Ms. Smiths ongoing foot pain and swelling.

[3]

I would reject these grounds of appeal.

[4]

First, there was no palpable and overriding
    error in the trial judges assessment of the expert evidence. He did not
    misapprehend the evidence respecting standard of care: he did not overlook
    aspects of the evidence of Ms. Smiths expert, nor did Dr. Kanes expert
    concede that there was a breach of the standard of care.

[5]

Second, there is no scope for the application of
    the principle recognized in
ter Neuzen
, a position taken for the first
    time on appeal. The trial judge and counsel recognized that expert evidence was
    essential in determining whether Dr. Kane breached the standard of care of a
    reasonable family physician in her care and treatment of Ms. Smith during the
    relevant period.

[6]

Third, although this case in general terms is
    about delayed diagnosis, the only alleged breaches of the standard of care that
    were relevant, having regard to the trial judges findings on causation and the
    concession that the standard of care for a family doctor would not have
    required Dr. Kane to diagnose Ms. Smiths rare foot condition, were Dr. Kanes
    failure during the period between January 24, 2008 and October 24, 2008 to
    order repeat diagnostic imaging of Ms. Smiths foot, and to refer Ms. Smith to
    an orthopaedic surgeon.

[7]

Contrary to the appellants submissions, the
    trial judge carefully considered the evidence, had a firm grasp of the issues,
    and reasonably preferred the expert opinion of Dr. Kanes expert, who opined
    that, although it would have been reasonable for Dr. Kane to have obtained
    repeat imaging of Ms. Smiths ankle or to have made a referral to an
    orthopaedic specialist, it was not a breach of the standard of care for her to
    have failed to do so, absent evidence of a bony problem.

[8]

For these reasons, elaborated on below, I would
    dismiss the appeal.

B.

BACKGROUND

(1)

Events Giving Rise to the Litigation

[9]

In November 2007, Ms. Smith slipped and fell on
    some ice, injuring her ankle. She first consulted her family doctor, Dr. Kane,
    about the injury on December 13, 2007.

[10]

At issue in this case was Dr. Kanes care of Ms.
    Smith between January and October 2008, and in particular, in January, when Dr.
    Kane ordered X-rays and an ultrasound, and between July and October, when Ms.
    Smith was seen by Dr. Kane on three occasions.

[11]

In December 2008, Dr. Kane referred Ms. Smith,
    at her request, to an orthopaedic surgeon, and in January 2009, Ms. Smith was
    diagnosed with Charcot foot. Charcot foot, which is often precipitated by an
    injury, causes a weakening of the bones in the foot. It is a rare condition that
    can occur in people with significant nerve damage (neuropathy), which is a
    known consequence of diabetes. Indeed, Ms. Smith was diagnosed with Type 2
    diabetes in 1998 and she had a lengthy history of poor diabetic control.

[12]

Unfortunately, by the time Ms. Smith was
    diagnosed with Charcot foot in January 2009, the only option was a below-the-knee
    amputation, which was carried out in March 2009.

(2)

The Litigation

[13]

Ms. Smith sued Dr. Kane and other medical
    practitioners. The action was dismissed before trial as against all of the
    defendants except Dr. Kane. Damages were agreed, and the trial proceeded
    on the issue of liability.

[14]

At trial, it was alleged that Dr. Kane fell
    below the standard of care between January and October 2008, when Ms. Smith was
    suffering from undiagnosed Charcot foot. It was not asserted that Dr. Kane
    ought to have diagnosed Charcot foot. Rather, it was alleged that Dr. Kane had
    breached the standard of care of a reasonable family doctor, including by
    failing to order repeat diagnostic imaging of Ms. Smiths foot, after she
    received the results of X-ray and ultrasound imaging at the end of January 2008,
    and by failing to refer Ms. Smith to an orthopaedic surgeon. Ms. Smiths
    position at trial was that the additional imaging and referral ought to have
    taken place as early as January 2008, and in any event, before October 24,
    2008.

[15]

Ms. Smiths testimony at trial consisted of a
    transcript of her evidence from an earlier trial that had resulted in a
    mistrial, for reasons unrelated to her evidence. There were two expert
    witnesses on standard of care: Dr. Cynthia Osborne, for Ms. Smith, and Dr.
    Geoffrey Morris, for Dr. Kane. Both were qualified as experts on the
    appropriate standard of care for a family physician practising in Ontario.
[1]
There was also an Agreed
    Statement of Facts (the ASF) that included a statement of the agreed evidence
    of a number of health care practitioners who had attended Ms. Smith during the
    relevant period, including a podiatrist, a chiropodist, two chiropractors, and an
    endocrinologist. What these practitioners did and did not observe in relation
    to Ms. Smiths right ankle and foot assumed some importance in the trial
    judges reasons.

[16]

The trial judge found in favour of Ms. Smith on
    the issue of causation: but for the negligence of Dr. Kane, if such had been
    found, Ms. Smiths leg more probably than not would have been saved had a
    referral to an appropriate consultant been made on or before October 24, 2008. The
    trial judge found that if X-rays had been taken at the end of July 2008, they
    would clearly have shown a marked neuropathic fracture and significant
    radiological deformity, compelling a referral to an orthopaedic specialist. The
    trial judge also concluded that there was no contributory negligence. In the
    end, however, the trial judge dismissed the action because he was not persuaded
    that Dr. Kane had breached the standard of care.

(3)

Ms. Smiths Treatment by Dr. Kane Following Her
    Injury

[17]

The trial judges analysis of the standard of
    care turned on what Dr. Kane did and did not do when Ms. Smith attended at her
    family practice following her injury and in the next several months. What
    follows is a summary of Ms. Smiths treatment by Dr. Kane during that period, including
    the trial judges observations on the evidence.

[18]

Ms. Smith went to see Dr. Kane on December 13,
    2007, complaining of right foot pain. I pause here to note that this was not
    the first time Ms. Smith had experienced foot pain. Ms. Smith had sustained a
    previous right ankle injury in 2004 and had experienced foot pain
    intermittently throughout 2005 and 2006. The trial judge noted that there was a
    mix of diagnoses, including calcaneal spur to plantar fasciitis. He concluded
    that the first injury had resolved by the time Ms. Smith reinjured her
    foot in 2007.

[19]

Returning to the December 13, 2007 visit, Dr.
    Kanes clinical note from that date noted Ms. Smiths fall and indicated a
    complaint of plantar fasciitis. Dr. Kane also noted that Ms. Smith was using
    ice, alternating with heat, anti-inflammatories and orthotics.

[20]

Ms. Smith next attended at Dr. Kanes office on January
    22, 2008. On this visit, Dr. Kane observed that there was some swelling and
    that Ms. Smith was in pain. Ms. Smith had gone to see Dr. Kane to ask for a
    note excusing her from work. Dr. Kane did not give her a note at that time,
    sending her for X-rays instead. The radiological report, dated January 22, 2008,
    stated:

Moderate soft tissue swelling noted. Radiographic
    evidence of ankle joint effusion. No ankle fractures or subluxation noted.

On the lateral projection well corticated bony
    fragments noted adjacent to the anterior calcaneal margin. Old fractures or
    accessory ossification centres would be in the differential. Large plantar
    calcaneal spurs.
[2]

OPINION: NO DEFINITE ACUTE FRACTURE NOTED.
    ANKLE STRESS VIEWS TO ASSESS ANKLE JOINT INSTABILITY MAY BE OF BENEFIT. IN
    ADDITION AN ANKLE ULTRASOUND TO ASSESS THE LIGAMENTS AND TENDONS MAY BE OF
    BENEFIT.

[21]

After reviewing the report, Dr. Kane ordered
    further X-ray and ultrasound imaging, which was completed on January 24, 2008. The
    radiologists report indicated that no definite fracture was noted and
    identified some swelling and a ligament strain.
[3]
Dr. Kane instructed her nurse to call Ms. Smith to tell her that there was no
    fracture, some swelling in the tissue and to apply ice and bandage. Dr. Kanes
    evidence at trial was that she had concluded, based on these reports, that there
    was no fracture, and that Ms. Smith had ligamental strain, which would go with
    a sprained ankle.

[22]

I note that one central point of dispute at
    trial was whether the January 2008 imaging was inconclusive (as Dr. Osborne
    maintained), and therefore warranted further imaging and possibly a referral to
    an orthopaedic specialist. As detailed below, this point was resolved in Dr.
    Kanes favour.

[23]

Following the imaging, Ms. Smith was not seen
    again at Dr. Kanes office for approximately another two months. She next attended
    at Dr. Kanes office on April 7, 2008, when she was seen by Dr. Vizel, one of
    Dr. Kanes on-call associates. According to the ASF, Dr. Vizel noted that Ms.
    Smith had swelling and tenderness on the right ankle and that she had a cane
    with her at that visit. He also believed that the bruising he observed was
    indicative of an injury, in particular that Ms. Smith had a recurrent ankle
    injury. His clinical note diagnosed peripheral edema (i.e. swelling)-post
    traumatic and indicated that he told Ms. Smith to follow up with Dr. Kane.

[24]

Ms. Smith did not return to Dr. Kanes office until
    July 28, 2008. Dr. Kane testified that she observed swelling in both feet and
    legs, although the swelling on the right side was more pronounced. She noted
    no pitting edema, lymphedema, after she had put pressure on the area that was
    swelling. Dr. Kane also testified that she believed Ms. Smiths sprain was
    taking a long time to heal, which was consistent with the earlier injury she
    had sustained.

[25]

The trial judge found that Dr. Kanes clinical
    note that Ms. Smith was not active because of [her] foot and that she had right
    foot pain and swelling, was equivocal and less than helpful. Dr. Kanes
    testimony about this visit was more telling, and led the trial judge to
    conclude that, after eight months, Dr. Kane was no further ahead in coming to
    grips with her patients foot injury condition, which she testified might then
    very well have been a severe or bad sprain or a Grade 2 sprain with a
    partial tear.

[26]

The trial judge noted that, notwithstanding the
    passage of time and the absence of a noted diagnosis
[4]
, Dr. Kane did not think it
    necessary to obtain an orthopaedic consult or to send Ms. Smith for further
    imaging. Instead, she was of the view that there might be a more sinister
    explanation for the swelling, namely, an abdominal tumour. To investigate this
    possibility, Dr. Kane ordered a pelvic ultrasound, which turned out to be
    normal.

[27]

Ms. Smith attended again at Dr. Kanes office on
    August 28, 2008, with a sore and swollen right ankle, and complaining of
    numbness in her right foot. Dr. Kane testified that there was bilateral
    swelling and that she suspected neuropathy. Dr. Kane referred Ms. Smith to a
    neurologist for a nerve conduction study, and she prescribed medication to
    bring down the swelling. She also continued to pursue the differential
    diagnosis of a pelvic tumour and sent Ms. Smith for a CT scan of her abdomen
    and pelvis in early September, which also came back negative. Dr. Kane sought
    out an alternative explanation for Ms. Smiths ongoing swelling, or lymphedema,
    by attempting on three occasions to refer Ms. Smith to a haematologist,
    which requests were rejected. (The final request was refused in late October
    2008 as not medically appropriate.)

[28]

The trial judge noted that, notwithstanding that
    Dr. Kane had ruled out or should have ruled out the pelvic tumour as of
    mid-September after receiving the results of the CT scan, she did not think it
    necessary to send Ms. Smith for any further foot imaging or to refer her to an
    orthopaedic specialist. Nor did she consider referring her back to endocrinologist
    Dr. Denny Trinh. (Ms. Smith had been under the care of Dr. Trinh for the
    medical management of her diabetes since early 2004 but, as noted below, it
    appears that throughout 2007 and into the latter part of 2008, Ms. Smith had not
    been seeing him on a regular basis, if at all.)

[29]

The nerve conduction study was conducted on
    October 20, 2008, and the results were provided to Dr. Kane the following day: Ms.
    Smith was suffering from advanced diabetic type polyneuropathy. Dr. Kane saw
    Ms. Smith that day, stressed the importance of diabetic control, and referred
    her back to Dr. Trinh, who saw Ms. Smith a few days later. Dr. Trinh did not
    note anything that indicated Charcot foot. He did not refer Ms. Smith to any
    other specialist or order any further testing.

[30]

Dr. Kane next saw or spoke to Ms. Smith three
    times in November, focusing on her diabetic management and glycemic control.
    She saw her again on December 11, 2008, when Ms. Smith came in seeking an
    orthopaedic referral, which was ordered quickly, but not obtained until
    mid-January. As noted earlier, by that time it was unfortunately necessary for
    Ms. Smith to undergo a below-the-knee amputation.

(4)

The Trial Judges Standard of Care Analysis

[31]

The trial judge identified as the first issue
    before him whether Dr. Kanes diagnosis or treatment of Ms. Smiths foot injury
    from January 2008 to the time of the referral to an orthopaedic specialist in
    early December 2008 fell below the standard of care of a reasonably competent
    family physician. However, given his findings on causation, the relevant time
    period for the purpose of determining liability was January 2008 to October 24,
    2008 (identified by the trial judge as the upset date  the date by which Ms.
    Smiths leg more probably than not would have been saved if referral to an
    appropriate consultant had been made).

[32]

The trial judge summarized Ms. Smiths position at
    trial as the following five points:

§

Dr. Kane had a duty to diagnose, based on the
    taking of a thorough history, conducting appropriate tests and making the
    necessary and requisite referrals;

§

Dr. Kane engaged in tunnel vision and failed to
    reconsider an earlier diagnosis;

§

Dr. Kane failed to refer Ms. Smith to other
    consultants or to obtain further imaging when she knew or ought to have known
    that she was no further ahead in her diagnosis than she had been at first
    instance;

§

Dr. Kanes patient recordkeeping was less than
    optimum;

§

Cumulatively, Dr. Kanes patient care fell below
    acceptable standards of a reasonably competent family practitioner.

[33]

The trial judge was critical of Dr. Kanes
    evidence. He found it troubling, if not self-serving, when Dr. Kane testified
    about why she did or did not undertake certain steps, particularly since her
    clinical notes did not support or reference the treatment plans about which she
    testified. He noted that much of that evidence sounded like an after-the-fact
    rationalization rather than a reasoned approach to Ms. Smiths diagnosis and
    treatment. He also criticized Dr. Kanes incorrect assumption that Ms. Smith
    was being followed by Dr. Trinh for her diabetic care: Dr. Kane knew or should
    have known, from the extent and timing of Dr. Trinhs reports to her, that Ms.
    Smiths attendance or compliance with his insistence on self-monitoring was
    spotty at best throughout 2007 and into the latter part of 2008.

[34]

Despite these criticisms, the trial judge was
    not satisfied, based on the evidence before him, that Dr. Kane breached the
    standard of care. He concluded, at para. 46, that, although he had
    flip-flopped on the issue of standard of care several times, he was not
    persuaded that it was more probable than not that Dr. Kanes treatment of
    Ms. Smith, particularly in the period from August to the end of October 2008,
    fell below the standard of care of a reasonably competent family practitioner
    in either not referring Ms. Smith to an orthopaedic specialist or not having
    ordered repeat imaging of her right foot. (As explained below, the only alleged
    breaches of the standard of care that were relevant were the failure to order
    repeat imaging and to refer.)

[35]

The trial judge stated that he reluctantly came
    to that conclusion because through much of the trial he was troubled by what
    appeared to be a period of dithering when Dr. Kane did not undertake a
    contemporaneous alternative investigation with, first and foremost, repeat
    imaging of the right foot. But he observed that the evidence of Dr. Osborne on
    this issue was not as focused as it might have been to lead [him] to an
    alternate conclusion: at para. 47.

[36]

Furthermore, the trial judge noted, at para. 49,
    that, where the evidence of Dr. Morris conflicted with that of Dr. Osborne, he
    accepted Dr. Morriss evidence. He identified the following problems with Dr.
    Osbornes evidence:

§

She
    was too argumentative, was not prepared to yield or concede ground when she
    should have and was reluctant to accept assumptions. (He found that the
    opposite observations could be made about Dr. Morris.)

§

She
    set the bar for reasonably competent practitioners a little too high, citing as
    an example her criticisms of Dr. Kanes notetaking, which the trial judge did
    not find fell below the recommended recordkeeping principles of the Ontario
    College of Physicians and Surgeons.

§

She
    was something of an outlier in holding firm to the view that the report of
    imaging that Dr. Kane received in January 2008 was inconclusive and that
    therefore there should have been repeat imaging or a referral to an orthopaedic
    specialist at that time. This was inconsistent with the evidence of the doctors
    at trial, and the doctors, including a treating orthopaedic surgeon, who
    reviewed and commented on the January 2008 reports a year later.

§

She
    had not reviewed Ms. Smiths evidence from the first trial before testifying.

§

Her
    reasoning and conclusions were influenced by the outcome of the case, as became
    evident during her cross-examination.

[37]

The trial judge went on to make a number of
    observations at paras. 54-56 of his reasons. They are significant because they
    are the focus of Ms. Smiths argument that the trial judge misapprehended parts
    of the expert evidence  an argument I address in my analysis below.

[38]

The trial judge observed, at para. 54, that Dr.
    Osborne had not provided any detailed or cogent evidence or rationale for what
    Dr. Kane did or failed to do in the late summer and early fall of 2008 when she
    seemed to be focused or fixated upon a more sinister explanation for the ongoing
    leg lymphedema. He also observed, at para. 55, that he did not hear Dr.
    Osborne say that it fell below acceptable standards not to contemporaneously
    repeat or alter foot imaging by at least mid‑September, while
    investigating the possibility of a pelvic tumour, even though there was no
    clear evidence of a bony malformation in the right foot or ankle. And, at para.
    56, the trial judge noted that the only evidence he had on this issue was that
    of Dr. Morris who said that it would not have been unreasonable to obtain
    further imaging in the fall of 2008, but not to do so would not have fallen
    below acceptable standards.

[39]

The trial judge observed that he found Dr.
    Kanes evidence about what was in her mind during this period and what she was
    then investigating to be not only a little vague but  somewhat scattered. He
    was also troubled by the fact that by the end of August, the right foot and
    ankle injury which Ms. Smith had sustained sometime the previous November was
    no closer to being diagnosed with certainty. Nonetheless, this set of
    circumstances could not be trumped by [his] filling in evidence where none
    exists or by venturing an opinion or drawing a conclusion for which there is no
    supporting medical evidence: at para. 58.

[40]

He also made an observation relevant to Ms.
    Smiths argument that the trial judge erred in ignoring a concession from Dr.
    Morris that it was a breach of the standard of care not to make an earlier
    referral to an orthopaedic surgeon. The trial judge observed that evidence
    that a procedure would be reasonable does not give rise to a conclusion that
    its absence would lead one to conclude that such a course of conduct fell below
    acceptable standards: at para. 59.

[41]

The trial judge also commented on other aspects
    of the evidence that served to buttress both his preference for the evidence of
    Dr. Morris to that of Dr. Osborne and his conclusion that Dr. Kane was not
    negligent in failing to order repeat imaging in the late summer or early fall
    of 2008, absent some indication that Ms. Smith had a new or different bony
    problem. The trial judge referred to the fact that none of the other health care
    practitioners that Ms. Smith was seeing for feet-related issues from August to
    October was of the view that Ms. Smith should have been sent for further
    imaging. Even Dr. Trinh, who was aware that Ms. Smith had advanced bilateral
    peripheral neuropathy and was walking with a cane, did not observe any
    ulceration or swelling of the right ankle and he did not send her for further
    imaging or refer or consider sending her to any other specialist.

[42]

The trial judge concluded that Ms. Smith had
    failed to discharge the onus of establishing that Dr. Kanes treatment of her
    during the summer and early fall of 2008 fell below the acceptable standard of
    care required of a family doctor.

C.

DISCUSSION

[43]

Ms. Smith contends that the trial judge made a
    number of reviewable errors. Before turning to discuss each of the grounds of
    appeal, I would note that the determination of whether or not a standard of
    care was met involves the application of a legal standard to a set of facts,
    which is a question of mixed fact and law. This question is subject to a
    standard of palpable and overriding error unless there is an extricable error
    in principle with respect to the characterization of the standard or its
    application, in which case the error may amount to an error of law, reviewable
    on a standard of correctness:
Housen v. Nikolaisen
, 2002 SCC 33,
    [2002] 2 S.C.R. 235, at para. 37. A misapprehension of the evidence would
    justify appellate intervention where it is obvious and goes to the very core of
    the outcome of the case: see e.g.
Carmichael v. GlaxoSmithKline Inc.
,
    2020 ONCA 447, 450 D.L.R. (4th) 357, at para. 125, leave to appeal refused,
    [2020] S.C.C.A. No. 40. As I will explain, I am not satisfied that the trial
    judge made any error that would justify appellate intervention.

(1)

Issue One: Did the Trial Judge Misapprehend the
    Expert Evidence?

(a)

The Alleged Misapprehension
of
Dr. Osbornes Evidence

[44]

In submitting that the trial judge erred in
    misapprehending Dr. Osbornes evidence, Ms. Smith focuses on the following passage
    from the trial judges reasons, at paras. 54-56, which she says reveals error:

What was, however, of more critical import for
    me was the fact that
Dr. Osborne did not provide me with any detailed or
    cogent evidence or rationale for what Dr. Kane did or failed to do in the late
    summer and early fall of 2008
when she seemed to be focused or fixated upon
    a more sinister explanation for the ongoing leg lymphedema.

In addition,
I did not hear Dr. Osborne say
    that it fell below acceptable standards not to contemporaneously repeat or
    alter foot imaging by at least mid-September, while investigating the pelvic
    issues, even though there was no clear evidence of a bony malformation in the
    right foot and ankle.

The only evidence I had on this issue was that
    of Dr. Morris who said that it would not have been unreasonable to obtain
    further imaging in the fall of 2008, but not to do so would not have fallen
    below acceptable standards. [Emphasis added.]

[45]

After noting, at para. 70, his conclusion that
    Dr. Kane was not negligent in failing to repeat imaging in the late summer or
    early fall of 2008, absent some indication that Ms. Smith had a new and
    different bony problem that was different from her December 2007 initial
    presentation, the trial judge observed, at para. 71, that [r]egrettably, the
    plaintiffs expert evidence covering [the period of the fall of 2008] was just
    too vague and imprecise to permit [him] to cross the evidentiary chasm.

[46]

Ms. Smith submits that, contrary to the trial
    judges observations, Dr. Osborne
did
explain what Dr. Kane had
    done and failed to do in the late summer and early fall of 2008, and that she
    did give the evidence that the trial judge concluded was missing.

[47]

Before explaining why I reject this submission, it
    is helpful to review Dr. Osbornes evidence.

(i)

Dr. Osbornes Evidence

[48]

It is fair to say that Dr. Osborne identified
    many deficiencies in Dr. Kanes practice and care of Ms. Smith. Among other
    things, Dr. Osborne was critical of Dr. Kane for her recordkeeping practices,
    her failure to identify that Ms. Smith was not regularly attending appointments
    with Dr. Trinh, the absence of detail in her various referrals, and her failure
    to perform certain examinations during Ms. Smiths appointments, including
    neuropathic testing. Dr. Osborne asserted that Dr. Kane did not have a
    diagnosis for what was happening with Ms. Smiths right foot and she ought to
    have ordered repeat diagnostic imaging and/or referred her to an orthopaedic
    specialist as early as the end of January 2008.

[49]

It is unnecessary to detail Dr. Osbornes
    evidence on each of these points, since I accept the respondents submission
    that the only
relevant
criticisms were about deficiencies that, had they
    not occurred, might have led to the timely discovery of Ms. Smiths Charcot
    foot. As such, and in view of the trial judges causation findings, the alleged
    breaches of the standard of care that are relevant to this appeal are in
    respect of Dr. Kanes failure to order repeat diagnostic imaging and her
    failure to refer Ms. Smith to an orthopaedic specialist to assist in her
    diagnosis and treatment of Ms. Smith. Because Dr. Kane only saw Ms. Smith in
    January 2008 and not for another six months, there were two relevant periods: the
    end of January 2008, after Dr. Kane received the results of the X-ray and
    ultrasound imaging, and the period between July and October 2008, when Ms. Smith
    returned with complaints of ankle and foot pain, and Dr. Kane noted swelling
    and then numbness.

[50]

With respect to the January 2008 period, Dr.
    Osborne testified that the X‑rays told her that there could be a
    fracture, and that the imaging was not definitive. It was her opinion that Dr.
    Kane should have ordered a CAT scan or MRI, or referred Ms. Smith to an
    orthopaedic specialist at that time because it was a bony problem.

[51]

Regarding the clinical notes from Ms. Smiths visits
    between July 28 and October 21, 2008, Dr. Osborne criticized Dr. Kane for not
    having a diagnosis when Ms. Smiths foot problem persisted more than eight
    months after the initial injury, and for not further investigating to elucidate
    the diagnosis. For example, with regard to the July 28 appointment, Dr. Osborne
    stated, [Dr. Kane] didnt examine the foot,
per se
she doesnt come
    up with a diagnosis. And, subsequently, Now were August 28th and we havent
    got a diagnosis. And we havent done a neuropathic exam.

[52]

Dr. Osborne also criticized Dr. Kane, with
    reference to her clinical notes from July 28 to October 21, 2008, for chasing
    a red herring of an abdominal tumour to explain the swelling in Ms. Smiths
    foot and leg, rather than directly examining the foot and ankle. Dr. Osborne
    stated that she did not understand why a pelvic ultrasound was ordered on July
    28, 2008. Regarding Dr. Kanes further investigations in August and September
    2008, Dr. Osborne stated: What Dr. Kane, I think, has done is gone in the
    wrong direction of trying to figure out why theres swelling and pain in the
    ankle. You dont do a pelvic ultrasound and a CT abdomen when youre trying to
    figure out whats going on in an ankle. It just doesnt make any sense. Dr.
    Osborne said that the ankle was the area that should have been imaged instead.
    Similarly, with respect to Dr. Kanes attempt to obtain a referral to a haematologist
    in mid-September, Dr. Osborne stated, these are inappropriate referrals in the
    first place. With respect to the appointment on October 21, 2008, Dr. Osborne expressed
    the opinion that the standard of care required Dr. Kane to refer Ms. Smith to a
    neurologist, and an orthopaedic specialist, the latter of which should have
    been done, in my opinion, months ago because Ms. Smith still had a sore ankle.

[53]

Toward the end of Dr. Osbornes examination-in-chief,
    counsel asked her to take a look at the big picture for the time period from
    December 13, 2007 to December 11, 2008, and to opine on whether Dr. Kane fell
    below the standard of care. Apart from her criticisms of Dr. Kanes
    recordkeeping and her failure to do neuropathic testing (which are not relevant
    breaches having regard to the causation findings), Dr. Osborne stated that:

·

Dr. Kane fell below the standard of care in
    relation to not ordering additional imaging, such as an MRI or bone scan, starting
    as early as January 2008. The initial imaging done in January was inconclusive
    and further imaging could have helped elucidate the diagnosis. Additionally,
    the family physician is responsible for reassessing along the way, and Dr. Kane
    failed to do any reassessments that could have led to further imaging;

·

Dr. Kane fell below the standard of care by not
    referring Ms. Smith to an orthopaedic specialist, starting January 2008, and
    going forward as time passed and the problem persisted; and

·

Dr. Kane fell below the standard of care in
    relation to diagnosing and reassessing diagnoses from as early as December
    2007, when she failed to include a diagnosis or differential diagnosis in her
    clinical notes.

[54]

Under cross-examination, Dr. Osborne made
    certain concessions that are relevant to this appeal. First, while she insisted
    that Dr. Kane was required by the standard of care to order both further
    imaging and to make a referral to an orthopaedic surgeon if she did not know
    what the diagnosis was, she acknowledged that if Dr. Kane ascribed Ms. Smiths
    pain to a sprained ankle, there would have been no reason to make the referral.
    And, when Ms. Smith returned in July and August 2008, complaining of pain at
    the Achilles tendon, and Dr. Kane observed swelling in both legs, it was
    reasonable for Dr. Kane to be considering a process other than the November
    2007 injury to explain her presentation.

(ii)

No

Misapprehension
of Dr. Osbornes Evidence

[55]

As noted earlier, the trial judge found in
    relation to causation that Ms. Smiths condition of Charcot foot was treatable up
    until October 24, 2008, and that X-rays, had they been taken at the end of
    July, would clearly have shown a marked neuropathic fracture and significant
    radiological deformity, compelling a referral to an orthopaedic specialist. In
    view of these findings, the relevant standard of care issue in the late summer
    and fall of 2008 was whether it was a breach of the standard of care for Dr.
    Kane to have pursued the differential diagnosis of an abdominal tumour, while
    not continuing to investigate the foot by a referral to an orthopaedic surgeon
    or by ordering further imaging of the foot.

[56]

The trial judge found that Dr. Osborne did not
    provide any detailed or cogent evidence or rationale for what Dr. Kane did or
    failed to do in the late summer and early fall of 2008: at para. 54. Nor did
    she say that it fell below acceptable standards not to contemporaneously
    repeat or alter foot imaging by at least mid-September, while investigating the
    pelvic issues, even though there was no clear evidence of a bony malformation
    in the right foot and ankle: at para. 55.

[57]

Having reviewed Dr. Osbornes evidence, I reject
    the appellants submission that these comments were unfounded. As I will
    explain, Dr. Osbornes opinion that repeat imaging or a referral was required
    was undermined by the premise of her opinion, which the trial judge did not
    accept.

[58]

There is no question that Dr. Osborne expressed
    the opinion that there were many things that Dr. Kane did and failed to do in in
    the late summer and early fall of 2008. However, Dr. Osborne did not provide a
    detailed or cogent opinion as to
why
Dr. Kane should have ordered repeat
    imaging of the foot during that period, while Dr. Kane was investigating the possibility
    of a pelvic tumour. Instead, she offered a range of criticisms of Dr. Kanes
    care of Ms. Smith at that time, including for having chas[ed] the red herring
    of lymphedema in the right leg, looking for the zebra rather than looking for
    what was going on in the ankle.

[59]

While Dr. Osborne testified that the ankle was
    the area that should have been imaged, not the abdomen or the pelvis, she made
    it clear that this was based on her view that the initial imaging was
    inconclusive. To the extent that this provided a rationale for Dr. Osbornes
    opinion, it was rejected by the trial judge.

[60]

At key points in her evidence, Dr. Osborne indicated
    that her opinion that further imaging or a referral to an orthopaedic surgeon
    was required as early as January, and extending into the late summer and fall
    of 2008, was based on her view that the initial imaging was inconclusive or not
    definitive regarding the presence of a fracture or a bony issue. The following
    exchange occurred during her examination-in-chief in relation to Dr. Kanes
    breach of the standard of care at the end of January 2008:

Q. Okay. And so having reviewed these two sets
    of imaging on January 22nd, January 24, 2008, do you have an opinion on what,
    if anything, should have been done after receiving this imaging?

A. Well, in my mind, if I got these imaging, I
    would follow, you know, the basis. Theyre not definitive, theyre not
    definitive for me.

There is some suggestion of old fractures, so
    Im going to go, you know, or the standard would be, got to go hunting.

The best way to hunt to see whether theres
    fractures or theyre not fractures are to  well, two things, and you can do
    them simultaneously.

One would be to order a CAT scan or an MRI and
    a bone scanand that would pick out whether those are fractures and whether
    theres a destruction going on in the heel bone

And if I didnt understand that, I think the
    standard would be to refer to a specialist, because this patient is still, at
    the end of January, has a painful foot and is requesting time off work. So her
    life is disrupted, we still dont have a diagnosis, and we need to figure out
    whats going on.

Q. Okay. And do you have an opinion on the
    type of specialist that would be appropriate?

A. An orthopaedic person, definitely, who
    deals in ankles and feet.

Q. Can you explain why?

A. Because its a bony problem, so it should
    go to the bony doctors.

[61]

Later in her examination-in-chief, Dr. Osborne was
    asked about Dr. Kanes failure to order repeat imaging throughout the relevant
    period, that is, extending into the summer and fall of 2008. Again, she
    explained that additional imaging was required because the initial imaging was
    inconclusive:

Q. Okay. So looking at the big picture, Dr.
    Osborne, for the period of December 2007 to December 2008, do you have an
    opinion whether Dr. Kane fell below the standard of care in relation to
    additional imaging?

A. Yes. I feel she did.

Q. Can you explain why, please?

A. Well, initially the imaging done in January was
    inconclusive. And further imaging at that point could have been done to
    possibly elucidate a diagnosis and help this patient along the way. []

[62]

In contrast, Dr. Morris disagreed that this
    imaging was inconclusive. I will refer in greater detail to his evidence later
    in these reasons, but at this point it is sufficient to note that Dr. Morriss
    opinion was that the initial imaging was
not
inconclusive. He said that [a]
    family doctor does not read those reports as equivocal. A family doctor reads
    those reports as saying theres no bony injury. Dr. Morris was of the view
    that Dr. Kane had reasonably concluded that Ms. Smith had suffered a bad
    sprain, and that, in the absence of a bony issue, the standard of care did
    not require repeat imaging or a referral to an orthopaedic surgeon.

[63]

Dr. Osbornes opinion that the initial imaging
    was inconclusive was also contradicted by the evidence of other experts. For
    example, Dr. Thomas Barrington, the orthopaedic surgeon to whom Ms. Smith was
    ultimately referred, noted in relation to the January 2008 imaging that there
    was no sign of fracture at the time.

[64]

Ultimately, the trial judge decided that the January
    imaging was definitive. At para. 52 of his reasons he described Dr. Osborne as
    something of an outlier in holding firm to the view that the report of imaging
    Dr. Kane received in January 2008 was inconclusive and therefore [that] there
    should have been repeat imaging or a referral to an orthopaedic specialist at
    that time. In other words, the trial judge was not prepared to accept Dr.
    Osbornes rationale for her opinion that Dr. Kane should have ordered repeat
    imaging in order to meet the standard of care.

[65]

With respect to the period from July 2008
    onward, when Ms. Smiths foot pain was persisting, swelling had increased, and
    eventually Dr. Kane suspected neuropathy, the trial judge recognized that there
    was nothing to prevent Dr. Kane from having undertaken both imaging of the
    pelvis and the foot. However, he noted that he did not hear evidence from Dr.
    Osborne to explain why the foot ought to have been imaged at that time and he
    did not hear Dr. Osborne say that it fell below acceptable standards not to
    contemporaneously repeat or alter foot imaging by at least mid-September, while
    investigating the pelvic issues,
even though there was no clear evidence of
    a bony malformation in the right foot and ankle
 (emphasis added).

[66]

This was an accurate observation. In her examination-in-chief,
    Dr. Osborne expressed the opinion that in July and August 2008 Dr. Kane was
    looking in the wrong place: she should have repeated the foot imaging because a
    fracture had not been ruled out. Dr. Osborne did not accept that there was no
    clear evidence of a bony malformation in the right ankle, and she persisted in
    the view that this was a bony problem.
[5]

[67]

Dr. Osborne was cross-examined on her opinion
    that the standard of care required Dr. Kane to have referred Ms. Smith to an
    orthopaedic surgeon in January 2008:

Q. Your opinion is that Dr. Kane should have
    referred Ms. Smith to an orthopaedic surgeon on January 22nd, 2008, correct?

A. Correct.

Q. And you say that because in your view, the X-rays
    that Dr. Kane ordered on January 22nd, 2008, were inconclusive?

A. Yes.



Q. The follow up and the referral to the
    orthopaedic surgeon; those are the two concerns you have?

A. Or further imaging.

Q. As an alternative?

A. And/or, both. I mentioned she could do both
    at the same time.

Q. Lets talk about what the standard
    requiresYoure saying the standard required Dr. Kane, as of January 22nd,
    2008, to both order additional imaging and make a referral to an orthopaedic
    surgeon?....

A. If she didnt know what the diagnosis was,
    yes.

Q. Fair enough. So in this particular case,
    she concluded on the basis of the imaging, that she read the report on, that
    there was no fracture.

If in fact that was the case, you would agree
    with me that Dr. Kane did not need to make a referral to an orthopaedic
    surgeon?

A. No, I wouldnt agree with you, only because
    the patient still had a complaint. Just because it says no definitive acute
    fracture, does not mean that the patient still has pain, still has trouble
    walking, does have some abnormal results.

So you have to look at the patient, along with
    the results of the test, and come up with a logical conclusion being more
    testing and referral.

Q. Focusing on the referral. If Dr. Kane had
    ascribed Ms. Smiths ankle pain to plantar fasciitis, in light of the previous
    history, youd agree with me that the standard wouldnt require her, in that
    circumstance, to refer her to an orthopaedic surgeon on January 22nd, 2008?

[discussion of plantar fasciitis]

And, if Dr. Kane had ascribed Ms. Smiths pain
    to a sprained ankle with the belief that the X-ray showed no fracture, she
    would not have referred Ms. Smith to an orthopaedic surgeon?

A. No.

Q. So youre agreeing with my statement?

A. Yes.

Q.
And so the crux of your opinion really
    then is that the results of the X-ray were inconclusive, such that in your
    view, they required further investigation; is that fair?

A.
Yes.
[Emphasis added.]

[68]

I have carefully reviewed Dr. Osbornes
    evidence, including specifically the passages drawn to the courts attention in
    oral argument. There is no indication that Dr. Osborne expressed the opinion
    that it was a breach of the standard of care for Dr. Kane to have failed to
    repeat foot imaging while investigating the pelvic issues
even though there
    was no clear evidence of a bony malformation in the right foot and ankle.
To the contrary, she insisted that the earlier imaging was inconclusive and
    that because of this, and because Dr. Kane had no working diagnosis from the
    outset, that further imaging ought to have been done. She expressed the opinion
    that Dr. Kane was following a red herring and that she ought not to have done
    the pelvic imaging. She did not offer the opinion that even if there was no
    clear evidence of a bony malformation in the right foot and ankle, the standard
    of care required further imaging of the foot. As the trial judge observed, at
    para. 56, the only evidence he had on that issue was from Dr. Morris who said
    that it would not have been unreasonable to obtain further imaging in the fall
    of 2008, but not to do so would not have fallen below acceptable standards.

[69]

In conclusion, the trial judge did not
    misapprehend Dr. Osbornes evidence.

(b)

Dr. Morriss Alleged
Concession

[70]

In oral submissions on appeal, the appellant
    argued that the trial judge ignored a concession from the respondents expert,
    Dr. Morris, that it was a breach of the standard of care for Dr. Kane not to
    have made a referral to an orthopaedic surgeon well before she did so in
    December 2008.

[71]

The appellant asserts that the concession was
    made during the following exchange with the trial judge at the end of Dr.
    Morriss cross-examination:

COURT: Would it not have been reasonable for
    Dr. Kane or  let me put it this way, for a family practitioner to have called
    for an ortho referral well before that date, well before December [2008]?

WITNESS: Its not an unreasonable thought, and
    in the end, it was the right thing to do. It just wasnt something that seemed
    required as she went along. But its not an unreasonable idea.

COURT: Okay. I think I said would it not have
    been reasonable as opposed to not unreasonable, a double negative.

Would it not have been the preferred practice
    or acceptable practice, however the term is ultimately going to be tried about
    in this.

WITNESS: Yes.

COURT: The appropriate standard of care.

WITNESS: Yes.

COURT: And the position for Dr. Kane after
    running aground several times now, and at the end of October when we see
    bilateral neuropathy and still issues and noncompliance.

WITNESS: Yes.

COURT: For her at that juncture to have
    reached out to somebody else at that point in time?

WITNESS: It would have been reasonable.

RE-EXAMINATION BY [RESPONDENTS COUNSEL]:

Q. Just on His Honours last series of
    questions, Doctor.

You told His Honour in response to his
    questions that it would have been reasonable to do that.

My question to you, Doctor, did the standard
    require that?

A. I think the standard requires you to make
    your best judgment all the time with regard to any problem that the patient
    presents to you. And sometimes we get it wrong. Sometimes you chase down the
    wrong direction looking for it.

So I think the standard required that Dr. Kane
    paid careful attention to what her patient was telling her and what she was
    finding on examining the patient and responding as best she thought she should.
    So I think thats what the standard requires.

THE COURT: Thats doublespeak, though,
    respectfully, Doctor.

At the end of October, if youre the
    reasonable man on the clock who monitors for docsat the end of October and you
    have not got an answer for all the matters that are fussing youwhat would you
    have done.

THE WITNESS: I think an orthopaedic referral
    is not a bad idea at all. Its a reasonable thought because youre at a
    standyou dont know where youre going next.

THE COURT: At an impasse?

THE WITNESS: Yes, at an impasse.

[72]

The respondent asserts that the argument that
    this was a concession that the standard of care had been breached is made for
    the first time on appeal, and ought not to be considered. She contends that, in
    any event, when this passage is considered in context it is simply an
    acknowledgment that it would have been reasonable for such a referral to have
    been made at that time.

[73]

While there is no indication that Ms. Smiths
    trial counsel argued, based on this passage, that Dr. Morris had made a
concession
about the need for an orthopaedic referral, there was extensive discussion
    about what was meant by the term reasonable in another passage. Specifically,
    in Dr. Morriss cross-examination, he acknowledged that it would have been
    reasonable for Dr. Kane to have considered further imaging of the foot
    at the end of July if she thought it was a local foot problem, and that if the
    images showed a fracture, to have then referred Ms. Smith to an orthopaedic
    surgeon. The appellants counsel argued that this meant that Dr. Morris was
    saying that there had been a breach of the standard of care, while the
    respondents counsel argued to the contrary.

[74]

At the outset of the parties closing
    submissions, the trial judge invited counsel to specifically address a number
    of questions, including how he should interpret Dr. Morriss evidence that
    certain steps were reasonable in relation to the standard of care. Referring
    to the questions put by the appellants counsel to Dr. Morris, was it reasonable
    for [Dr. Kane] to do X, Y, and Z at a particular moment in time?, the trial
    judge said I dont know what reasonable means. Does it mean not a breach of
    the standard of care, or that it was a breach of the standard of care not to do
    something?

[75]

The appellants counsel attempted to address
    this concern as follows:

MR. NAIMARK: Dr. Morris does agree that it
    would have been reasonable to refer to an orthopaedic surgeon on July 28, 2008,
    and in all subsequent dates.

COURT: Thats why Im having trouble with this
    reasonable thing, and maybe [respondents trial counsel] confused the matters
    with what he did.



COURT: I mean, all of that stuff I took him to
    say, it would have been reasonable.

But I guess the question that wasnt asked of
    him was: Would it have been in breach of the standard of care not to do
    something? And that wasnt asked.

MR. NAIMARK: So, well 

COURT: All that stuff is reasonable. Yeah,
    thats reasonable, but that doesnt fall below the standard of care.

MR. NAIMARK: Well, we argue that it does.

COURT: I know what you argue. But that
    question wasnt asked. And thats what Im having difficulty with.

[76]

For his part, Dr. Kanes counsel submitted that
    the trial judge should not take any of that cross-examination evidence as
    being evidence by Dr. Morris that Dr. Kane in any way in the course of
    those questions breached the standard of care. He asserted that Dr. Morriss
    evidence was clear and unequivocal that Dr. Kane met the standard of care
    and that Dr. Morris quite reasonably accepted that a physician may have
    adopted a different course, but that is not the same as saying Dr. Kane was
    unreasonable or fell below the standard of care in what she actually did.

[77]

Ultimately, the trial judge accepted that Dr.
    Morriss acknowledgment that it would have been reasonable for Dr. Kane to have
    done something did not mean that her failure to take that step was a breach of
    the standard of care. He stated, at para. 59, that evidence that a procedure
    would be reasonable does not give rise to a conclusion that its absence would
    lead one to conclude that such a course of conduct fell below acceptable
    standards. The trial judge did not equate an acknowledgment that something was
    reasonable with its absence constituting a breach of the standard of care.

[78]

The appellant does not take issue with that
    conclusion, but argues, essentially, that in Dr. Morriss exchange with the
    trial judge, he went further: it should be read as a concession that Dr. Kane
    breached the standard of care when, in the fall of 2008, she did not refer Ms.
    Smith to an orthopaedic surgeon.

[79]

I disagree.

[80]

Much of the force is removed from the alleged
    concession when it is considered in the context of the parties submissions and
    the trial judges conclusion about the meaning of the word reasonable in Dr.
    Morriss cross‑examination. While he was prepared to admit that it would
    have been reasonable for Dr. Kane to have taken certain steps, that admission
    did not amount to an opinion that the steps were required by the standard of
    care.

[81]

Moreover, Dr. Morriss alleged concession in
    cross-examination must be considered in the context of the totality of his
    trial evidence. His other evidence was unequivocal that the standard of care
    did not require a referral to an orthopaedic surgeon by October 21, 2008. For
    example, in his examination-in-chief he gave the following answers:

Q. Dr. Osborne testified that Ms.  Dr. Kane
    ought to have ordered repeat imaging at various instances. In your opinion, did
    the standard of care require Dr. [Kane]to order any imaging on July 28, 2008?

A. No, I dont think so.

Q. Why is that?

A. Dr. Kane ordered the initial imaging some
    weeks after the injury in November 2007.

That is long enough for any fracture that
    might be present to become evident.

So by the time she did the X-rays and the
    ultrasound in January 2008, any bony injury would have been clear. And there
    was a report of no bony injury.



Q. Doctor, in your opinion, was a request for
    consultation with an orthopaedic surgeon required on this date [October 21,
    2008]?

A. So thats a version of what you asked me
    earlier about the imaging, and the answer is pretty much the same, which is,
    from Dr. Kanes point of view, she knows this isnt a bony problem. Thats why
    she took X-rays. Two within two days of each other, and they came back not
    showing a bony problem according to the X-ray reports.

So it seems theres no indication for an
    orthopaedic referral.

[82]

Dr. Morris gave similar testimony later in his
    examination-in-chief:

Q. Dr. Morris, in relation to Dr. Osbornes
    opinion that Ms. Smith required a referral to an orthopaedic surgeon or further
    imaging, in your opinion, when, if at all, was such a referral required?

A. So were going at this for the third time,
    and my answer to that hasnt changed, that Dr. Kane had done imaging, X-rays
    specifically, in January of 2008, no bony injury. Fine. Okay.

Now we have ongoing trouble. We have to look
    somewhere else. There isnt any reasonable reason to send the patient to an
    orthopaedic surgeon in the absence of a bony  an evident bony problem.

[83]

Under cross-examination Dr. Morris accepted that
    it would have been reasonable for Dr. Kane to have ordered repeat imaging in
    July and August 2008, but he said that he would not have done so. In his
    re-examination he explained:

Q. In the course of asking you questions about repeat imaging
    in July and, I believe, in August, my friend put to you whether or not it would
    have been a reasonable thing to do, and you indicated it was a reasonable thing
    to do, but you wouldnt have done it. Why not?

A. So I explained earlier that a reasonable physician could
    conclude that if they hadnt seen the patient in six months that this was not a
    major issue for them. And in the absence of [a] history of reinjury, theres
    really no reason to think that a bony injury is going to show up on a repeat
    X-ray.



So the real reason  the real thing to ask yourself is, if you
    see this lady, and it still hurts, and yes, it hurt in April  it hurt in
    January, it hurt in April, and now it hurts in July, but theres no reinjury,
    why would there be a bony problem now when there wasnt six months earlier?

[84]

The trial judge accepted Dr. Morriss evidence
    on this point, stating, at para. 70 of his reasons: Dr. Kane was not
    negligent in not ordering repeat imaging in the late summer or early Fall of
    2008 absent some indication that Ms. Smith had a new or different bony
    problem which was different from her December 2007 initial presentation or
    the tear, which Kane acknowledged required casting.

(c)

Conclusion
on Issue One

[85]

I would not give effect to the appellants first
    ground of appeal. The trial judge did not misapprehend or overlook parts of Dr.
    Osbornes evidence, nor did he ignore a concession by Dr. Morris with respect
    to the standard of care.

[86]

As I have explained, it was fair for the trial
    judge to say that the only evidence he had on the issue of whether it fell
    below acceptable standards not to contemporaneously repeat foot imaging by at
    least mid-September, while investigating the pelvic issue, even though there
    was no clear evidence of a bony malformation in the right foot and ankle, was
    the evidence of Dr. Morris.

[87]

The evidence of the appellants expert, Dr.
    Osborne, was not sufficient, and, in any event, for reasons the trial judge
    explained, he preferred the expert opinion evidence of the respondents expert,
    Dr. Morris.

[88]

In the end, although the trial judge had
    concerns about the care that Ms. Smith had received when her foot was not
    further investigated while Dr. Kane was pursuing the potential of an abdominal
    tumour, he was not persuaded by the expert evidence that this amounted to a
    breach of the standard of care, which was a conclusion that was open to him on
    the evidence.

(2)

Issue Two: Did the Trial Judge Err in Not Relying
    on Ordinary Knowledge and Common Sense to Find a Breach of the Standard of
    Care?

[89]

The appellant submits that the trial judge erred
    in law in concluding that because he did not have specific evidence from Dr.
    Osborne, he could not find a breach of the standard of care. The appellant
    relies on
ter Neuzen
, in which the Supreme Court held that an
    exception exists to the well-established principle that expert evidence is
    required to find a breach of the standard of care in cases of professional
    negligence. The court held that where an impugned practice is fraught with
    obvious risks, and where the matter can be easily understood by an ordinary
    person with no medical expertise, it is open to the trier of fact to determine
    the applicable standard of care, which might not align with the standard
    practice in the profession: at paras. 41, 43, 51.

[90]

In the appellants submission, expert evidence was
    not required to make a finding of negligence in this case since the issues at
    trial were not overly technical, but instead concerned basic functions of
    family doctors to make assessments and referrals. The appellant submits in her
    factum that [a] family doctors failure to make any diagnosis at all for over
    12 months is the type of behaviour that comes with such obvious risks that an
    ordinary person is capable of finding it negligent. She asserts that where the
    court finds expert evidence is lacking, the trial judge must then consider whether
    he is able to infer on a common-sense basis, based on his ordinary knowledge
    and experience, that the conduct was negligent.

[91]

The respondent points out that the appellant did
    not raise this argument at trial, including in opening submissions where trial
    counsel referenced expert evidence that would be called on the standard of care.
    Further, no objection was raised towards the end of trial, in response to the
    trial judges suggestion that findings of breach of the standard of care had to
    be made in respect of the expert evidence because it cant be [the trial
    judge] on the standard of care. The respondent also submits that this is not a
    case where the
ter Neuzen
exception applies, given the complexity of
    the issues.

[92]

This ground of appeal can be dealt with briefly.

[93]

First, the fact that this argument was not
    raised at trial is fatal to its success in this appeal. Generally, this court
    will not entertain entirely new issues on appeal for fairness reasons:
Kaiman
    v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18;
Whitby
    (Town) v. G&G
, 2020 ONCA 654, at para. 9. Moreover, having presented
    and argued the case at trial on the basis that the standard of care depended on
    expert evidence (which is the typical approach in medical malpractice cases),
    it is not open to the appellant, after the trial judge rejected her expert
    evidence, to say for the first time on appeal, that the trial judge did not
    need expert evidence to decide the standard of care issues in this case.

[94]

Where the
ter Neuzen
exception is
    considered by an appellate court, typically the possible application of the exception
    was before the trial court and is not raised for the first time on appeal. (See,
    for example,
Samms Estate v. Moolla
, 2019 ONCA 220, an appeal from a
    jury verdict, where, although there was expert evidence on the standard of care
    of a family doctor, the parties agreed that the jury should be instructed in
    line with the
ter Neuzen
exception. The issue was whether the trial
    judge erred in his instruction. See also
Nattrass v. Weber
, 2010 ABCA
    64,
316 D.L.R. (4th) 666,
reversing 2008 ABQB 259,

444 A.R. 303
, and
McCann v. Hyndman
,
    2004 ABCA 191,
354 A.R. 35,
affirming

2003 ABQB 693
, 23 Alta. L.R. (4th) 113.)

[95]

In any event, in this case the trial judge reasonably
    accepted that expert evidence on the standard of care was necessary, when he
    stated, at para. 58, that he could not [venture] an opinion or [draw] a
    conclusion for which there is no supporting medical evidence. Citing
Hajgato
    v. London Health Association
(1982), 36 O.R. (2d) 669 (S.C.), at para. 34,
    affd (1983), 44 O.R. (2d) 264 (C.A.), he stated, I am obliged to remind
    myself that I cannot speculate as to the adequacy of professional standards
    in the absence of expert evidence attacking those standards. The trial judge
    reasonably relied on such a proposition because he was of the view that the
    issues were sufficiently complex in this medical malpractice case that expert
    evidence was necessary.

[96]

Indeed, it would have been an error in the
    circumstances for the trial judge to have inferred negligence by relying on his
    common sense. This case is similar to
Rowlands v. Wright
, 2009 ONCA
    492,
250 O.A.C. 394
where, in allowing an appeal in a
    medical malpractice case where there were competing expert opinions on standard
    of care, this court observed: [i]n the face of an apparently conflicting
    medical opinion as to what actions were required in the circumstances, it was
    not appropriate for the trial judge to assess the surgeons conduct based on
    common sense: at para. 26. In this case, as in
Rowlands
,

the
    exception in
ter Neuzen

had no application.

(3)

Issue Three: Did the Trial Judge Err in Failing
    to Find a Breach of the Standard of Care in Dr. Kanes Failure to Diagnose?

[97]

Finally, the appellant submits that the trial
    judges standard of care decision was unreasonable because he failed to
    consider the primary duty of a family doctor to diagnose. She interprets the
    trial judge to have found as a fact that Dr. Kane failed to have a
    diagnosis at various points in Ms. Smiths care. In her submission, it was an
    error, reviewable for correctness, for the trial judge not to conclude, on the
    basis of that finding, that Dr. Kane breached the standard of care.

[98]

According to the appellant, a family doctor is
    obliged to make a referral where they cannot come to a diagnosis. The appellant
    relies on excerpts from Ellen I. Picard & Gerald B. Robertson,
Legal
    Liability of Doctors and Hospitals in Canada
, 5th ed. (Toronto: Carswell,
    2017), where the authors state the following, at p. 377:

Having undertaken the care of a patient, a
    doctor is under a duty to make a diagnosis, and to advise the patient of it. If
    the doctor cannot come to a diagnosis after a reasonable period of time, he or
    she has a duty to refer the patient to others who can.

In the discussion that follows, the
    authors cite examples of cases where physicians have been found to be negligent
    for failure to diagnose.

[99]

The respondent submits that the trial judge
    considered the argument that Dr. Kane failed in her duty to diagnose, but
    rejected it based on the evidence in this case. Dr. Kane reiterates that the
    parties agreed that she was not expected to diagnose Charcot foot, specifically,
    and asserts that she did in fact have differential diagnoses at the relevant
    times. (For example, in January, as a result of the imaging evidence, Dr. Kane
    concluded that there was no bony issue and that the patient had swelling and a
    sprained ankle  this constituted a diagnosis.) Finally, she argues that there
    is no freestanding duty to diagnose that triers of fact must apply in each case
    without regard to the particular facts, and that it would have been an error
    for the trial judge to find a breach of a standard of care based on general
    principles drawn from prior medical malpractice cases.

[100]

I would not give effect to this ground of appeal.

[101]

First, I do not accept the appellants submission that the trial
    judge found that Dr. Kane failed to have a diagnosis at all relevant times. The
    appellant pitches the point too high in stating, [The trial judge] makes
    findings confirming there was no diagnosis made. On my reading of his reasons,
    the trial judges statements to this effect are qualified. For example, at
    para. 30, the trial judge refers to the absence of a
noted
diagnosis (emphasis added) in
    relation to the July 28 appointment; and, at para. 57, the trial judge states
    that the right foot and ankle injury was no closer to being diagnosed

with certainty
 (emphasis added) in
    relation to the care of Ms. Smith by the end of August. The trial judge makes
    no explicit finding that Dr. Kane failed to have any diagnosis or differential
    diagnoses at these times.

[102]

To the contrary, the trial judge appears to have recognized that
    there was some sort of diagnosis during the relevant time period. For example,
    at para. 13, he observed that Dr. Kane made a note in Ms. Smiths patient file
    that there was no fracture, some swelling in the tissue in January 2008, and,
    at para. 14, he states, the radiologist observed that there was no traumatic
    fracture to the right ankle,
which
    diagnosis became the operative diagnosis throughout the balance of 2008
.

[103]

Second, I agree with the respondent that it is unhelpful for the
    appellant to attempt to fit this case into other medical negligence decisions,
    where a breach of the standard of care was based on a failure to diagnose. As
    this court stated in
Gent and Gent v. Wilson
, [1956] O.R. 257 (C.A.), at
    p. 265, [e]ach case must, of course, depend upon its own particular facts. Alleging
    a breach of a standard of care in the air and without relating it to what
    occurred in a particular case does little to advance the analysis.

[104]

Although this case was in general terms about the delay in
    diagnosing Ms. Smiths condition of Charcot foot, it was agreed that the
    standard of care for a family doctor would not have required Dr. Kane to have
    diagnosed or even suspected this condition. The standard of care issue, in the
    context of the case, including the trial judges causation findings, was what steps
    Dr. Kane ought to have taken as part of the standard of care of a reasonable
    family physician, that would have assisted in the timely diagnosis of Charcot
    foot. While the alleged failure to diagnose was not itself a breach of the
    standard of care, it was relevant to the failure to refer and to repeat
    imaging. The argument at trial was that the referral to an orthopaedic
    specialist and repeat imaging were steps that Dr. Kane should have taken in
    circumstances where, in the summer and fall of 2008, she did not have a diagnosis
    for Ms. Smiths ongoing pain and swelling in her foot. In other words, in the
    context of this case the failure to diagnose in itself could not have been a breach
    of the standard of care, in view of the concession that Dr. Kane could not
    reasonably have diagnosed Charcot foot, and the causation findings.


D.

DISPOSITION

[105]

For these reasons, I would dismiss the appeal. In accordance with
    the parties agreement on costs, I would award costs of the appeal in favour of
    the respondent in the all-inclusive amount of $24,000 plus HST, only if
    demanded.

Released: September 21, 2021 J.M.F.

K. van Rensburg
    J.A.

I agree. Fairburn
    A.C.J.O.

I agree. Grant
    Huscroft J.A.





[1]

Dr. Osborne was qualified to address the standard of care as
    it relates to a family physician practising in Ontario from 2007 to 2009,
    whereas Dr. Morris was qualified with respect to the years 2003-2009. However,
    nothing turns on this difference.



[2]
Calcaneal spurs (bony outgrowths on the heel bone) were identified in the April
    2005 imaging following Ms. Smiths first ankle injury.



[3]
The trial judge noted that the radiologist who interpreted the 2008 imaging
    observed that there was no traumatic fracture to the right ankle. Three of the
    causation experts at trial (two orthopaedic specialists and an expert in
    diabetic feet), on reviewing the imaging, were able to identify a neuropathic
    fracture, which is characterized by a progressive degeneration of a
    weight-bearing joint. The trial judge noted that such a diagnosis, which would
    have been a harbinger of Charcot foot, was not easily made  and that there was
    no criticism of the radiologist for not having identified this condition.



[4]

Although Dr. Kane testified about her diagnoses, she
    frequently did not include a diagnosis in her clinical notes.



[5]
The appellants counsel asserts that once Dr. Kane saw that there was a
    partial tear, this should have led to repeat imaging. However, no such
    evidence was given by Dr. Osborne, who rested her opinion about repeat imaging
    on the assumption that a fracture had not been ruled out.


