In October 2024, Paul Cahill settled a surgical negligence claim on behalf of a 40-year-old woman who sustained injuries to both of her ureters during a hysterectomy. The operative record characterized the procedure as uncomplicated. There were no anatomical variations of note, no unexpected adhesions, no haemorrhage, and no other intraoperative event that might have explained an inadvertent injury to a structure that the standard of care required the surgeon to identify and protect. The injury was bilateral. The patient’s recovery was long. She has not been able to resume her work or her usual domestic responsibilities. She continues to experience chronic pelvic pain and urinary frequency. The case settled before trial. The terms are confidential.
This case is doctrinally useful for what it illustrates about the proof of surgical negligence in cases involving anatomical structures that the surgeon is expected to identify and protect. Where a procedure is performed without complications and an essential structure adjacent to the operative field is nevertheless injured, the inference that the standard of care has not been met is available to the trier of fact. The case is also useful for what it illustrates about damages in a chronic-pain, chronic-dysfunction case in a young patient with a long life expectancy: the value of the claim turns on the cumulative effect of the chronic sequelae over a lifetime, not just on the medical events of the immediate surgical period.
The clinical context
A hysterectomy is the surgical removal of the uterus. Depending on the indication and the surgical approach, the procedure may also involve removal of the cervix (total hysterectomy), preservation of the cervix (supracervical or subtotal hysterectomy), removal of the fallopian tubes (with or without the ovaries), and removal of supporting tissues and lymph nodes (radical hysterectomy, typically performed for malignancy). The most common benign indications include symptomatic uterine fibroids, abnormal uterine bleeding refractory to medical management, endometriosis, adenomyosis, and uterine prolapse. Hysterectomy is one of the most common major surgical procedures performed in women in Canada.
The surgical approach can be abdominal (through an incision in the abdomen), vaginal (through the vagina with no abdominal incision), laparoscopic (through small abdominal incisions with a camera and instruments), or robotic-assisted laparoscopic. The choice of approach is driven by the indication, the patient’s anatomy, and the surgeon’s experience. Each approach has its own risk profile, and each requires the surgeon to navigate the same essential anatomy in the same operative field.
The ureters are the paired tubes that carry urine from the kidneys to the bladder. Each ureter is approximately 25 to 30 centimetres long in an adult woman. The ureters originate at the renal pelvis (where the kidney drains into the ureter), descend through the retroperitoneal space along the side of the spine, cross the pelvic brim where they enter the pelvis, and terminate at the bladder. The clinically critical segment for hysterectomy surgery is the pelvic ureter: this segment runs along the lateral pelvic wall, passes underneath the uterine artery, and enters the bladder approximately two centimetres from the cervix. The phrase “water under the bridge” is the standard teaching mnemonic for this anatomic relationship: the ureter (the water) runs underneath the uterine artery (the bridge), near the cervix.
The ureter is therefore at risk during hysterectomy at three principal locations. The first is the infundibulopelvic ligament, where the ureter is close to the ovarian vessels at the pelvic brim. The second is the uterine artery and cardinal ligament complex near the cervix, where the ureter passes underneath the uterine artery. The third is the bladder base, where the ureter enters the trigone of the bladder very close to the cervix and the upper vaginal wall.
Mechanisms of ureteric injury during hysterectomy include:
- Direct laceration: the ureter is cut, either with a scalpel, scissors, or other sharp instrument
- Ligation: the ureter is inadvertently included in a suture or tie meant for the uterine artery, cardinal ligament, or other adjacent structure
- Crush injury: the ureter is clamped between the jaws of a haemostat or other clamp, damaging the wall and the blood supply
- Thermal injury: the ureter is damaged by electrocautery or another heat source, often without immediate visible injury but resulting in delayed necrosis
- Devascularization: the small arteries supplying the ureter are cut or ligated, resulting in delayed ischaemic injury even if the ureter itself was not directly cut
The published literature on the incidence of ureteric injury during hysterectomy gives a wide range depending on the approach and the indication. For benign hysterectomies, the reported rate is in the range of approximately 0.5 to 2 percent overall. The rate is generally higher for laparoscopic and radical approaches than for abdominal and vaginal approaches in straightforward cases. The rate is higher in the presence of unusual anatomy, severe endometriosis, large fibroids, prior surgery with adhesions, or pelvic malignancy. Bilateral ureteric injury (injury to both ureters in the same procedure) is substantially rarer than unilateral injury and is generally considered, in the published gynaecology and urology literature, to require explanation beyond what can be attributed to the ordinary risks of the procedure.
The standard of care
The standard of care for hysterectomy includes the identification and protection of the ureters during the procedure. The applicable standard for gynaecologic surgeons in Canada, derived from the published guidance of the Society of Obstetricians and Gynaecologists of Canada and the operative teaching that prevails in Canadian gynaecology residency programs, can be sketched as follows. Description here is general background; the actual standard in any particular case requires expert evidence.
The surgeon is expected to know the anatomy of the operative field, including the location of the ureters and their relationships to the structures being manipulated. Where the anatomy is straightforward and the operative field can be visualized clearly, the surgeon is expected to identify the ureters by direct visualization or by palpation. Where the anatomy is unusual (adhesions, large fibroids distorting the pelvis, severe endometriosis obliterating the normal planes), the surgeon may be expected to take additional steps before manipulating the structures at risk. These additional steps may include preoperative ureteric stenting (placement of stents in the ureters by a urologist to make them more readily identifiable intraoperatively), retroperitoneal dissection to identify the ureter at the pelvic brim and trace its course to the bladder, or intraoperative consultation with a urologist where the case complexity warrants.
Where the procedure is described in the operative record as uncomplicated, with no unusual anatomy and no intraoperative events, the inference is that the operative conditions were favourable to careful dissection and identification of the structures at risk. An injury to a structure that the standard of care required the surgeon to identify and protect, in operative conditions described as uncomplicated, is the kind of fact pattern from which the trier of fact may infer that the standard of care was not met. The inference is not automatic, and it is open to the defence to lead evidence that the standard of care was met and that the injury was a recognized complication of the procedure even with appropriate care. The plaintiff’s case in such circumstances typically rests on expert gynaecologic and urologic evidence as to the standard of care, the circumstances in which ureteric injury occurs even with appropriate care, and the inferences available from the operative record.
The bilaterality of the injury is doctrinally significant. A single ureteric injury in a difficult dissection can sometimes be explained on the basis of unusual anatomy or unavoidable circumstances on the affected side. A bilateral injury implicates the surgical approach as a whole, since both sides of the same operative field were affected. The published gynaecology and urology literature treats bilateral ureteric injury as an unusual occurrence requiring explanation, and the expert evidence in cases of this kind generally explores whether the surgical approach, the technique applied, or the identification and protection of the structures at risk on both sides was below the standard.
The patient and the sequelae
The patient was 40 years old. She underwent a hysterectomy. The operative record described the procedure as uncomplicated. Both of her ureters were injured.
The clinical consequences of bilateral ureteric injury are serious. Depending on the timing of recognition and the type of injury, the immediate management may include intraoperative repair (where the injury is recognized and repaired during the original procedure), early postoperative repair (where the injury is recognized in the early postoperative period and the patient is returned to the operating room), or delayed reconstructive surgery (where the injury is recognized later, sometimes after the patient has developed urinary leakage or obstructive uropathy). Bilateral repair is more complex than unilateral repair because both sides of the pelvis are involved and because the bladder and the ureters are required to function as a single drainage system.
The patient in this case underwent a long period of recovery. The summary does not identify the specific procedures she required, but in a bilateral injury case the recovery typically includes one or more reparative surgical procedures, a period of ureteric stenting, urinary tract imaging and follow-up over an extended period, and ongoing surveillance for complications including stricture, recurrent obstruction, and chronic kidney injury.
The chronic sequelae described in the public summary are significant. Chronic pelvic pain in a patient who has undergone bilateral ureteric reconstruction is consistent with the well-described phenomenon of post-surgical pelvic pain, which may have neuropathic, inflammatory, and mechanical components. Urinary frequency is consistent with the functional consequences of ureteric reconstruction on bladder function and on the integrity of the trigonal area where the ureters enter the bladder. The patient’s inability to resume her work and her usual domestic responsibilities reflects the functional impact of these chronic conditions on a 40-year-old woman with a long life expectancy.
The legal framework
A surgical negligence claim arising from intraoperative injury to an anatomical structure in Ontario is analyzed under the four elements of the standard negligence framework: duty of care, breach of the standard of care, damages, and causation.
Duty of care. The duty of care owed by a surgeon to a patient undergoing surgery is well-established and uncontested in cases of this type. The duty extends to the conduct of the operation in accordance with the standard of care of a reasonably prudent surgeon of equivalent training and experience.
Standard of care. The standard of care for gynaecologic surgery, as discussed in the preceding section, includes the identification and protection of the ureters during hysterectomy. The applicable formulation for specialists is the Supreme Court of Canada’s standard in Ter Neuzen v Korn, [1995] 3 SCR 674, that a specialist is expected to exercise the degree of skill of an average specialist in the field. The Canadian principle that a doctor is not the insurer of a patient’s health remains in effect: an adverse outcome alone does not establish a breach. The plaintiff is required to lead expert evidence of the standard and of the breach, generally from a gynaecologic surgeon of equivalent training. In a bilateral ureteric injury case occurring in an operative field described as uncomplicated, the expert evidence typically addresses both the surgical technique applied and the specific circumstances of each side of the operative field.
Damages. The damages in a case of this kind are substantial. The patient’s life expectancy at age 40 is approximately 40 to 50 years on Canadian female mortality tables. The damages framework therefore extends over a long horizon. The components typically include past medical costs (the reparative surgeries and the ongoing care to date), future medical costs (the ongoing surveillance, the management of chronic pain, the management of urinary symptoms, the costs of any future complications such as stricture or recurrent obstruction), past loss of income (the patient was unable to resume her work), future loss of income (the patient remains unable to work), loss of housekeeping and family services (the patient is unable to carry out her usual domestic responsibilities), pain and suffering, and loss of enjoyment of life. The pain and suffering quantum is constrained by the Supreme Court of Canada’s “trilogy” cap on general damages, which sets an upper limit in real-dollar terms for non-pecuniary loss; the cap has been adjusted for inflation since the original trilogy decisions in 1978 and is reviewed annually.
Causation. The causation analysis in a case of this kind is generally less contested than in a delayed-diagnosis case. The intraoperative injury, the chronic sequelae, and the relationship between the two are typically supported by the operative record, the postoperative imaging and surgical reports, and the patient’s clinical course. The “but for” test from Clements v Clements, 2012 SCC 32, applies. The plaintiff’s case is that but for the breach (the intraoperative injury), the chronic sequelae would not have occurred. The defence position would have explored whether some of the patient’s symptoms were attributable to other causes (the underlying gynaecologic indication that led to the hysterectomy, unrelated comorbidities, or the recognized complications of any hysterectomy whether or not negligently performed), but the bilateral and severe nature of the injury makes a complete defence on causation grounds substantially more difficult than in a case involving a milder or more equivocal injury pattern.
The resolution
The matter resolved by settlement in October 2024. The settlement was reached before trial. The terms are confidential. The settlement reflects both parties’ assessment of the strengths and weaknesses of the standard-of-care and damages evidence, weighed against the risks and costs of trial.
Why this matters
For patients facing a hysterectomy, the lesson is that “routine” or “uncomplicated” is a description of the expected operative course, not a guarantee of an adverse-event-free outcome. The risks of any major abdominal or pelvic surgery include injury to adjacent structures. In a hysterectomy, the structures most at risk are the ureters, the bladder, and the bowel. A reasonable preoperative discussion with the surgeon should address the specific risks of the procedure as it would be performed in this patient’s circumstances and should include the surgeon’s experience with the proposed approach. A patient considering hysterectomy is entitled to ask about the surgeon’s experience with the chosen approach, the rate of ureteric injury in their practice, and the specific steps that will be taken to identify and protect the ureters.
For gynaecologic surgeons, the case illustrates the doctrinal significance of the operative record’s characterization of the procedure. Where the operative record describes an uncomplicated procedure, the inference is that the operative conditions were favourable to careful identification and protection of the structures at risk. An injury sustained in those conditions is harder to defend than an injury sustained in a complex dissection involving unusual anatomy, severe endometriosis, or other recognized risk-elevating factors. Documentation of the specific intraoperative steps taken to identify and protect the ureters, and of any unusual findings encountered during the procedure, is doctrinally important for both medical and litigation purposes.
For the broader practice of medical malpractice litigation in Ontario, this case joins the surgical-error sub-cluster in the notable-cases library. Other entries include the January 2013 aortic injury during laparoscopic nephrectomy settlement (where a urologic procedure resulted in injury to a major vascular structure), and the O’Neill-Renouf v Ibrahim trial victory (where a TVT procedure resulted in obturator nerve injury). The three cases together illustrate a recurring pattern in surgical-error litigation: the breach is the intraoperative injury to a structure that the standard of care required the surgeon to identify and protect, the procedure is described in the operative record as routine or uncomplicated, and the damages are substantial because the injury affects a structure with significant downstream functional consequences.
For prospective clients who have sustained a surgical injury to an adjacent structure during a hysterectomy or other gynaecologic procedure, the threshold question is whether the standard of care for identification and protection of the injured structure was met. The operative record, the imaging studies, the postoperative course, and the expert opinion of a gynaecologic surgeon of equivalent training are the starting points for the analysis. The two-year limitation period in Ontario runs from the date the patient knew or ought to have known that the injury was caused by an act or omission of the defendant.
Settlement Date: October 2024
Settlement Type: Confidential settlement before trial
Defendant: Not named (confidential)
Counsel for the plaintiff: Paul J. Cahill
