Court of Appeal rejects appeal of doctor who did not perform biopsy on patient with risk factors

Medical negligence action alleges missing procedure would have detected cancer at earlier stage

Court of Appeal rejects appeal of doctor who did not perform biopsy on patient with risk factors

In a medical negligence case, the Ontario Court of Appeal has dismissed the appeal of a gynecologist who contended that the trial court erroneously found that his breach of the applicable standard of care had resulted in a patient’s death.

In Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, the patient, who had been diagnosed with fibroids and who was experiencing heavy bleeding with clots during her menstrual periods, was referred to the appellant gynecologist in 2009. While the patient showed risk factors for diseases of the uterus, the appellant took a vaginal swab but did not perform an endometrial biopsy during the medical examination.

The patient then suffered from health issues such as deep vein thrombosis and pulmonary nodules. In April 2011, the appellant conducted an endometrial biopsy, which revealed a high-grade cancerous tumour in her uterus. The patient underwent treatment but died in August 2011 due to stage-four uterine leiomyosarcoma (uLMS ), which had metastasized to her lungs.

 The respondents, who were the patient’s family members, filed a medical negligence action alleging that performing an endometrial biopsy during the medical examination in 2009 could probably have detected the patient’s cancer earlier, when treatment might have been effective.

The Superior Court of Justice of Ontario, accepting the evidence of the respondents’ two expert witnesses and rejecting the evidence of the appellant’s expert witness, determined that the appellant breached the required standard of care when he failed to perform an endometrial biopsy in 2009 and awarded the respondents $300,000 in damages for the appellant’s negligence.

On appeal, the appellant did not dispute breaching the standard of care but argued that the trial judge had inappropriately concluded that this breach resulted in the patient’s death. The Court of Appeal for Ontario dismissed his appeal.

The Ontario Court of Appeal ruled that the trial judge did not err in finding either legal or factual causation. With respect to legal causation, the appellate court said that, on the basis of the evidence regarding the patient’s circumstances in 2009, a reasonable gynecologist of the same experience and standing should have foreseen that failing to do an endometrial biopsy could prevent the detection of a uterine pathology or abnormality potentially causing serious injury or death.

Regarding the first branch of the appellant’s submissions on factual causation, the Court of Appeal found no error in the trial judge’s decision to admit the evidence of the respondents’ first expert witness, who testified that uLMS was likely present during the initial examination in 2009, and the evidence of the respondents’ second expert witness, who testified that it was likely that the patient’s abnormal bleeding in 2009 was because of uLMS.

The Court also saw no error or misapprehension in the trial judge’s rejection of the evidence of the appellant’s expert witness on the basis that she accepted and preferred the evidence of the respondents’ expert witnesses.

As for the second branch of the appellant’s submissions, the trial judge did not err in concluding that an endometrial biopsy would likely have detected uLMS, if it had been present at the time, and did not misapprehend or make a palpable or overriding error in assessing the evidence of the appellant’s expert’s on the likelihood of detecting uLMS, on the location of uLMS or on the nature and significance of the diagnostic imaging evidence, the appellate court said.

The appellate court also rejected the appellant’s submissions that the trial judge erroneously assessed the evidence relating to the endometrial biopsy in 2011 on the basis that the appellant’s submissions had omitted a reference to the full scope of the trial judge’s reasons regarding this issue.

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