Ontario Superior Court of Justice dismisses lawsuit over delayed cancer diagnosis

The doctors did not breach the required standard of care: court

Ontario Superior Court of Justice dismisses lawsuit over delayed cancer diagnosis

The Ontario Superior Court of Justice has dismissed a medical malpractice lawsuit concerning an allegedly delayed cancer diagnosis.

In Martindale v. Bahl et al, 2023 ONSC 4259, the estate of Helen Martindale, represented by her litigation administrator, Daryl Borneman, brought a medical malpractice lawsuit against the doctors at the Scarborough and Rouge Hospital. The plaintiff alleged negligence in the medical treatment provided to Martindale during her emergency room attendance at the hospital in late 2014.

Emergency room attendance

Martindale sought medical attention at Scarborough Hospital on November 21, 2014, complaining of severe rectal pain and symptoms resembling hemorrhoids. She was seen in the emergency room by the defendant, Dr. Benjamin Lee, who assessed her history and concluded that she was not septic and likely had a perianal abscess. He performed an incision and drainage procedure and eventually discharged Martindale with follow-up home nursing wound care and instructions to follow up with a primary care practitioner in one to two weeks.

Martindale returned to the hospital on December 31, 2014, complaining of rectal pain. She was attended by Dr. Kwong Chiu, who performed a top-to-bottom physical examination of the patient. Based on the perianal examination, Dr. Chiu concluded that the Martindale had a prolapsed mucosa and a hardened area where Dr. Lee had performed the incision and drainage procedure. He recommended a sitz bath, stool softener and laxatives. Further, he requested that the patient follow up in his office in one to two weeks if symptoms did not improve, and in two weeks in any event, and to return to the emergency room if certain symptoms worsened.

Martindale claimed that the attending physicians failed to properly diagnose her condition, consider alternative diagnoses, or arrange for imaging and referrals, ultimately delaying her cancer diagnosis. Martindale alleged that she developed a rectal-vaginal fistula due to the delayed diagnosis. She later underwent an ileostomy and was diagnosed with anal cancer.

In response to the allegations, the defendant physicians argued that anal cancer, a rare form of cancer, is difficult and challenging to diagnose and often takes time to diagnose properly. They contended that Martindale could not prove, on a balance of probabilities, that their alleged breach of the standard of care caused the delayed diagnosis and subsequent need for an ileostomy. Furthermore, they argued that if one of the defendant physicians is found liable, Martindale should be held contributorily negligent for failing to follow up and seek medical attention when it was needed.

No breach of standard of care

The estate of Martindale brought the case to the Ontario Superior Court of Justice, which ultimately found that the defendant doctors did not breach the required standard of care.

The court noted that a physician’s honest and intelligent exercise of judgment will satisfy the standard of care. The court distinguished between the exercise of clinical judgment and negligence and said that medical professionals cannot be held liable for exercising clinical judgment.

The court further explained that a determination of whether Dr. Lee breached the standard of care requires that the plaintiff prove, based on expert evidence and on a balance of probabilities, that Dr. Lee failed to exercise the degree of skill and care expected of a normal prudent emergency department physician practising in Ontario in 2014.

After carefully reviewing all the expert evidence, medical records, and witness testimonies, the court was satisfied that Dr. Lee met the standard of care. The court found that he undertook an appropriate and reasonable assessment of Martindale and the complaint she presented.

The court rejected the allegation that Dr. Lee fell below the standard of care by not considering other possible diagnoses beyond perianal abscess. The court found that his diagnosis and assessment were consistent with the symptoms with which the plaintiff presented and the visual evaluation that he did. The results of his incisions of the abscess were also consistent with his assessment of early infection. Consequently, the court concluded that Dr. Lee’s diagnosis and assessment were reasonable.

Martindale contended that Dr. Lee fell below the standard of care because he did not have a sufficient plan for discharge. However, the court also rejected this argument, finding that Dr. Lee’s discharge plan was reasonable and satisfactory. The court noted that Dr. Lee told the plaintiff to follow up with a primary care practitioner, which she did not do. The court also found that Dr. Lee arranged for home-visiting nursing to attend to the plaintiff’s wound care and follow her progress, which did occur. As a result of these circumstances, the court concluded that Dr. Lee met the standard of care of an emergency physician practising in Ontario in 2014.

Likewise, the court ruled that Dr. Chiu met the required standard of care of a normal, prudent general surgeon practising in Ontario in 2014. The court acknowledged that the allegations of breach of the standard of care against Dr. Chiu include that he did not provide the plaintiff with a CT requisition, did not have an appropriate follow-up plan, and did not contribute to finding a diagnosis. However, based on the conditions Martindale presented at the emergency room, the court found that the standard of care did not require imaging to be done or requisitioned at the hospital.

While it was the position of the plaintiff that Dr. Lee and Dr. Chiu each should have diagnosed and investigated the plaintiff’s condition as cancer, the court found, based on all of the evidence, that there was nothing that would have suggested cancer during Martindale’s emergency room attendances at Scarborough Hospital.

Ultimately, the court ruled that there was no breach of the standard of care by either of the defendant doctors. The court was also satisfied that the diagnosis of anal cancer could not have been made before the development of a recto-vaginal fistula required an ileostomy.

Additionally, the court found that the plaintiff failed to follow all instructions from her physicians. The court pointed out that Dr. Lee told her to follow up within two weeks but failed. Dr. Chiu also told her to follow up but did not do so. The court said that if it had found there to be negligence on the part of the defendant doctors, Martindale would have been contributorily negligent. Accordingly, the court dismissed the case against the defendant doctors.

 

Related stories

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

The tale of Umar Zameer's two trials – the criminal court and the court of public opinion

Court of Appeal clarifies how tort of abuse of process interacts with criminal proceedings

Mariam Moktar elected second vice-president of the Ontario Bar Association

Ontario Superior Court grants plaintiff's motion to add new defendant in slip and fall case

Ontario Court of Appeal dismisses First Nations' appeal over environmental regulation changes

LSO bencher Murray Klippenstein given "substantial indemnity" costs in suit against legal regulator

Most Read Articles

LSO bencher Murray Klippenstein given "substantial indemnity" costs in suit against legal regulator

The tale of Umar Zameer's two trials – the criminal court and the court of public opinion

Ontario Superior Court finds plaintiff contributorily negligent in slip and fall case

Court of Appeal clarifies how tort of abuse of process interacts with criminal proceedings