Breach of the standard of care is a separate question from outcome. A surgery can go badly. A repair can fail. A patient can be left worse off than before. None of those facts, on their own, prove negligence. The plaintiff still has to show that the surgeon’s actual conduct fell below what a reasonably prudent surgeon would have done in the same circumstances, and that the negligence caused the alleged injuries.
Forget v Gibb, 2026 ONSC 626 is a recent illustration. The trial judge dismissed a medical malpractice claim against a general surgeon who performed two abdominal surgeries that, on any view, did not go well. The first surgery caused a partial bowel injury that became a full perforation. The emergency repair seven days later leaked and produced an enterocutaneous fistula. The patient spent three weeks in hospital, endured months of wound infections, lost over fifty pounds, and ultimately required complex abdominal wall reconstruction by a different surgeon. The court found that none of it amounted to a breach of the standard of care.
The decision is interesting for two reasons. The first is the unflinching application of the principle that outcome does not equal breach. The second is the court’s detailed critique of the plaintiff’s expert, whose evidence was rejected almost in its entirety because he had fundamentally misunderstood his duties as an expert witness.
The Facts
The plaintiff, a 47-year-old insurance claims supervisor in Peterborough, was referred to a general surgeon for repair of an incisional hernia at the site of earlier abdominal surgeries. The patient had a relevant surgical history: a hernia repair in 1982, a small bowel obstruction in 1997, and two further incisional hernia repairs in 1999 and 2000. The surgeon was aware of this history through the referring physician’s letter and the patient’s own written summary.
On December 14, 2010, the surgeon performed an open incisional hernia repair at the Peterborough Regional Health Centre. The operative note recorded a routine, unremarkable procedure. The patient was discharged the following morning in stable condition.
A week later, on December 21, 2010, the patient returned to the emergency department with leaking enteric contents at the incision site. The surgeon attended, recognized a small bowel injury, and proceeded to an emergency laparotomy the next day. During the second surgery he removed the contaminated mesh placed at the first operation, identified a pinhole perforation in the small bowel surrounded by healthy tissue, and closed it using a primary repair (interrupted sutures, two layers). The bowel was inspected, the wound irrigated, and the patient transferred to recovery.
Within two days the bowel began leaking again. An enterocutaneous fistula developed. The surgeon consulted by telephone with a complex-hernia specialist at St Michael’s Hospital, and on that advice managed the fistula conservatively with drainage, antibiotics, and parenteral nutrition. The fistula closed on its own. A CT scan in March 2011 confirmed it had healed.
The patient then went through months of recurrent superficial wound infections, requiring three further debridement procedures during August 2011 (one by the original surgeon, two by other surgeons on call). In November 2011 the surgeon referred the patient to a complex-hernia specialist in Toronto, who in turn referred him to a reconstructive surgeon at Sunnybrook. Abdominal wall reconstruction was successfully performed in September 2012.
The patient was placed on long-term disability in January 2014. He alleged that the two December 2010 surgeries caused chronic abdominal pain, recurrent bowel obstructions, depression, and the inability to return to work. His spouse advanced a Family Law Act claim.
The Allegations of Breach
The plaintiff alleged a series of breaches across both surgeries and the postoperative care:
The December 14, 2010 procedure. That the surgeon failed to adequately explain the procedure and its risks, failed to order preoperative bowel preparation, failed to “run the bowel” to inspect for injuries, and produced an inadequate operative note.
The December 22, 2010 emergency surgery. That the surgeon again failed to “run the bowel,” and that he used a primary repair to close the bowel perforation when he should have used a side-to-side anastomosis.
Postoperative care. That the surgeon mismanaged the wound infections and delayed the referral to a complex-hernia specialist.
The case turned, as malpractice cases almost always do, on the expert evidence.
The Two Experts
The plaintiff called Dr Bahrami Shahi, a general surgeon with academic appointments at three medical schools and surgical privileges at a community hospital in Alliston. The defence called Dr Lloyd Smith, the Surgeon-in-Chief at North York General Hospital, a former Director of Minimally Invasive Surgery at University Health Network, and a surgeon who has dedicated his practice exclusively to hernia repair since 2016.
The court found Dr Shahi to be unreliable in a way that went well beyond ordinary disagreement between experts.
The Court’s Critique of the Plaintiff’s Expert
The trial judge devoted a substantial portion of the reasons to a careful and detailed dismantling of Dr Shahi’s methodology. Some of the findings:
He ignored the surgeon’s discovery evidence. Dr Shahi told the court that he had read the surgeon’s discovery transcripts but considered them irrelevant. He relied only on the operative notes. This included details such as the size of the bowel perforation and the condition of the surrounding tissue, both of which the surgeon had described in detail at discovery but had not recorded in his operative note. By ignoring that evidence, Dr Shahi was able to assume that the perforation was large and the tissue contaminated, which then drove his opinion on the appropriate repair technique.
He resolved factual disputes in the plaintiff’s favour. Where the patient’s evidence conflicted with the surgeon’s, Dr Shahi unfailingly preferred the patient’s version. The court characterized this as the expert crossing over into advocacy.
He reasoned backward from outcome. Dr Shahi repeatedly stated that he knew the standard of care had been breached because the bowel had been injured and the repair had failed. The court rejected this method outright. Standard of care is assessed by reference to the surgeon’s actual conduct, not the result.
He misunderstood the concept of standard of care. Asked whether a standard of care requirement is mandatory, Dr Shahi told the court that the standard of care is not necessarily mandatory, and that what he considered the standard of care might not be the standard another surgeon would apply. The court found that this reflected a fundamental conceptual confusion.
He misunderstood the litigation process. Various comments during cross-examination suggested that Dr Shahi did not appreciate the seriousness of his role. He drew a distinction between professional facts and judicial facts, and suggested that while a witness might lie, an operative note will not. The exchanges left the trial judge with the impression that Dr Shahi did not grasp what an expert witness is required to do.
The trial judge observed that it would have been open to exclude Dr Shahi’s evidence in its entirety. Instead, the court worked through each alleged breach individually, considered Dr Shahi’s evidence on each, and rejected it on the merits.
The Defence Expert’s Evidence
Dr Smith, by contrast, was found to be a model expert witness. The court described him as eminently qualified, balanced, careful, and independent. He reviewed both the operative records and the discovery transcripts. He did not weigh credibility or prefer one witness over another. He explained where he agreed with Dr Shahi (bowel injuries are a recognized risk of hernia surgery) and where he disagreed (running the bowel and bowel preparation are not part of the standard of care for incisional hernia repair). When asked, he gave the court a fair account of how surgeons make discretionary decisions about repair techniques.
The Court’s Findings on Breach
Working through each allegation, the court found no breach:
The procedure and risks were adequately explained. The surgeon’s ordinary practice, supported by his notes and the signed consent form, was sufficient.
The surgery was always planned as open. The patient’s belief that the operation was supposed to be laparoscopic was mistaken. None of the contemporaneous documents referenced laparoscopy. Hernia surgery defaults to open unless otherwise specified.
Bowel preparation was not required. The court accepted Dr Smith’s evidence that bowel preparation, while standard in colon surgery, is not part of the standard of care for hernia repair. The authorities cited by Dr Shahi were either dated to 2016 (after the surgeries in question), or made no positive recommendation, or simply reported low-quality evidence.
Running the bowel was not required. The court found Dr Shahi’s evidence on this issue contradictory and nonsensical. Running the bowel through a 2 to 3 centimetre incision is not physically possible. To do it would have required a major extension of the incision, introducing significant additional risk. Dr Smith’s view, that surgeons take down adhesions 2 to 3 centimetres around the hernia and inspect the area but do not run the entire bowel, was accepted.
The bowel injury was a partial perforation that became full-thickness. The court accepted that the surgeon had inspected the bowel during the first surgery using visual examination and sponges, that no injury was visible at that time, and that the injury most likely became symptomatic only when a partial tear progressed to a full perforation over the following days. Bowel injuries during incisional hernia repair are a recognized complication (the court accepted a rate of approximately 1 to 6 percent) and do not, on their own, indicate breach.
Primary repair was within the surgeon’s discretion. The court accepted that the perforation was a pinhole in healthy tissue, and that both primary repair and side-to-side anastomosis are accepted techniques. Choosing between two recognized techniques is a matter of surgical judgment. Dr Shahi’s contrary opinion was built on factual assumptions (large hole, contaminated tissue) that the court rejected.
The fistula was appropriately managed conservatively. The surgeon’s telephone consultation with a complex-hernia specialist, his decision to avoid further surgery, and his ongoing wound care all met the standard. Fistulas commonly take time to close and surgeons are expected to manage them.
The referral to a complex-hernia specialist was timely. The court accepted Dr Smith’s evidence that a referral for ventral hernia reconstruction is appropriately delayed until adhesions mature and inflammation subsides. There was no urgency, and the longer wait improved the chances of a successful reconstruction.
The Court’s Alternative Analysis on Causation and Damages
Although the no-breach finding was sufficient to dismiss the claim, the trial judge addressed causation in the alternative. The findings on this issue are useful because they illustrate the boundary between damages flowing from a defendant’s negligence and damages flowing from intervening events.
Loss of chance is not compensable. Citing the established Ontario line of authority, the court reiterated that a plaintiff cannot recover by showing that a different course of treatment might have improved the outcome. The plaintiff must prove on a balance of probabilities that, but for the negligence, the harm would not have occurred.
The 2012 reconstructive surgery broke the chain of causation. The court held that the reconstructive surgery performed in September 2012, during which the operating surgeon took down all of the patient’s adhesions, severed any causal connection between the December 2010 surgeries and the patient’s continuing complaints. Whatever might have been said about adhesions or scar tissue from the original procedures, none of it survived the September 2012 operation.
Damages would have been capped at the period between the surgeries and the reconstruction. Had liability been found, the trial judge would have awarded $130,000 in general damages, limited special damages of roughly $49,500, a $30,000 Family Law Act award to the spouse, and nothing for past or future income loss (because the latest defensible end date for damages was September 2012, before the patient went on long-term disability).
A Note on the Plaintiff’s Credibility and Reliability
The trial judge found the plaintiff credible but unreliable. The reliability concerns were grounded in inconsistencies between his trial evidence, his treating physicians’ records, his long-term disability application, and his Canada Pension Plan disability application. He had testified that he could no longer run or scuba dive, while medical records showed both activities continuing well past the alleged disabling events. His treating family physician was found to have acted as an advocate rather than an objective historian, recording symptoms reported by the patient that were inconsistent with other treating physicians’ records.
This is a useful reminder that a plaintiff’s account of their own symptoms and limitations is not insulated from objective contradiction. Medical records, disability application records, and the records of other treating physicians can all be drawn upon at trial.
Practical Observations
For plaintiffs and patients, Forget v Gibb is a sobering case. The surgical course was, on any common-sense view, very bad. The first surgery led to a bowel injury that required emergency intervention. The emergency repair failed. The fistula and wound complications dragged on for years. The patient was left with a recurrent hernia that required complex reconstruction by a different surgeon. Yet on the medicine, the surgeon’s conduct met the standard expected of a reasonable general surgeon practising at the time. Bad outcomes happen even when the surgeon does everything right.
For expert witnesses, the decision is a textbook on what not to do. An expert who weighs evidence, prefers one witness over another, reasons backward from outcome, or treats the standard of care as a matter of personal opinion has crossed the line from expert to advocate. Trial judges have an ongoing gatekeeping function and will exercise it.
For defence counsel, the case is a strong precedent for the proposition that contemporaneous operative notes, combined with a surgeon’s evidence of their ordinary and usual practice, can carry the day even where specific recollection is absent. The court relied heavily on the surgeon’s reconstruction of events from his notes and his standing practice.
For plaintiffs’ counsel, the case is a reminder that the choice of expert is the choice of case. An expert who arrives without a clear understanding of what the standard of care means, who refuses to consider the defendant’s evidence on its own terms, or who reasons from result back to cause, will not assist the court and may have his evidence rejected in its entirety. There is no recovery from that at trial.
Decision Date: April 14, 2026
Jurisdiction: Ontario Superior Court of Justice
Citation: Forget v Gibb, 2026 ONSC 626 (CanLII)
Forget v Gibb: A Surgical Complication, a Failed Repair, and No Breach of the Standard of Care
In Forget v Gibb, 2026 ONSC 626, the Ontario court dismissed a surgical negligence claim and delivered a sharp critique of the plaintiff's expert.
Breach of the standard of care is a separate question from outcome. A surgery can go badly. A repair can fail. A patient can be left worse off than before. None of those facts, on their own, prove negligence. The plaintiff still has to show that the surgeon’s actual conduct fell below what a reasonably prudent surgeon would have done in the same circumstances, and that the negligence caused the alleged injuries.
Forget v Gibb, 2026 ONSC 626 is a recent illustration. The trial judge dismissed a medical malpractice claim against a general surgeon who performed two abdominal surgeries that, on any view, did not go well. The first surgery caused a partial bowel injury that became a full perforation. The emergency repair seven days later leaked and produced an enterocutaneous fistula. The patient spent three weeks in hospital, endured months of wound infections, lost over fifty pounds, and ultimately required complex abdominal wall reconstruction by a different surgeon. The court found that none of it amounted to a breach of the standard of care.
The decision is interesting for two reasons. The first is the unflinching application of the principle that outcome does not equal breach. The second is the court’s detailed critique of the plaintiff’s expert, whose evidence was rejected almost in its entirety because he had fundamentally misunderstood his duties as an expert witness.
The Facts
The plaintiff, a 47-year-old insurance claims supervisor in Peterborough, was referred to a general surgeon for repair of an incisional hernia at the site of earlier abdominal surgeries. The patient had a relevant surgical history: a hernia repair in 1982, a small bowel obstruction in 1997, and two further incisional hernia repairs in 1999 and 2000. The surgeon was aware of this history through the referring physician’s letter and the patient’s own written summary.
On December 14, 2010, the surgeon performed an open incisional hernia repair at the Peterborough Regional Health Centre. The operative note recorded a routine, unremarkable procedure. The patient was discharged the following morning in stable condition.
A week later, on December 21, 2010, the patient returned to the emergency department with leaking enteric contents at the incision site. The surgeon attended, recognized a small bowel injury, and proceeded to an emergency laparotomy the next day. During the second surgery he removed the contaminated mesh placed at the first operation, identified a pinhole perforation in the small bowel surrounded by healthy tissue, and closed it using a primary repair (interrupted sutures, two layers). The bowel was inspected, the wound irrigated, and the patient transferred to recovery.
Within two days the bowel began leaking again. An enterocutaneous fistula developed. The surgeon consulted by telephone with a complex-hernia specialist at St Michael’s Hospital, and on that advice managed the fistula conservatively with drainage, antibiotics, and parenteral nutrition. The fistula closed on its own. A CT scan in March 2011 confirmed it had healed.
The patient then went through months of recurrent superficial wound infections, requiring three further debridement procedures during August 2011 (one by the original surgeon, two by other surgeons on call). In November 2011 the surgeon referred the patient to a complex-hernia specialist in Toronto, who in turn referred him to a reconstructive surgeon at Sunnybrook. Abdominal wall reconstruction was successfully performed in September 2012.
The patient was placed on long-term disability in January 2014. He alleged that the two December 2010 surgeries caused chronic abdominal pain, recurrent bowel obstructions, depression, and the inability to return to work. His spouse advanced a Family Law Act claim.
The Allegations of Breach
The plaintiff alleged a series of breaches across both surgeries and the postoperative care:
The December 14, 2010 procedure. That the surgeon failed to adequately explain the procedure and its risks, failed to order preoperative bowel preparation, failed to “run the bowel” to inspect for injuries, and produced an inadequate operative note.
The December 22, 2010 emergency surgery. That the surgeon again failed to “run the bowel,” and that he used a primary repair to close the bowel perforation when he should have used a side-to-side anastomosis.
Postoperative care. That the surgeon mismanaged the wound infections and delayed the referral to a complex-hernia specialist.
The case turned, as malpractice cases almost always do, on the expert evidence.
The Two Experts
The plaintiff called Dr Bahrami Shahi, a general surgeon with academic appointments at three medical schools and surgical privileges at a community hospital in Alliston. The defence called Dr Lloyd Smith, the Surgeon-in-Chief at North York General Hospital, a former Director of Minimally Invasive Surgery at University Health Network, and a surgeon who has dedicated his practice exclusively to hernia repair since 2016.
The court found Dr Shahi to be unreliable in a way that went well beyond ordinary disagreement between experts.
The Court’s Critique of the Plaintiff’s Expert
The trial judge devoted a substantial portion of the reasons to a careful and detailed dismantling of Dr Shahi’s methodology. Some of the findings:
He ignored the surgeon’s discovery evidence. Dr Shahi told the court that he had read the surgeon’s discovery transcripts but considered them irrelevant. He relied only on the operative notes. This included details such as the size of the bowel perforation and the condition of the surrounding tissue, both of which the surgeon had described in detail at discovery but had not recorded in his operative note. By ignoring that evidence, Dr Shahi was able to assume that the perforation was large and the tissue contaminated, which then drove his opinion on the appropriate repair technique.
He resolved factual disputes in the plaintiff’s favour. Where the patient’s evidence conflicted with the surgeon’s, Dr Shahi unfailingly preferred the patient’s version. The court characterized this as the expert crossing over into advocacy.
He reasoned backward from outcome. Dr Shahi repeatedly stated that he knew the standard of care had been breached because the bowel had been injured and the repair had failed. The court rejected this method outright. Standard of care is assessed by reference to the surgeon’s actual conduct, not the result.
He misunderstood the concept of standard of care. Asked whether a standard of care requirement is mandatory, Dr Shahi told the court that the standard of care is not necessarily mandatory, and that what he considered the standard of care might not be the standard another surgeon would apply. The court found that this reflected a fundamental conceptual confusion.
He misunderstood the litigation process. Various comments during cross-examination suggested that Dr Shahi did not appreciate the seriousness of his role. He drew a distinction between professional facts and judicial facts, and suggested that while a witness might lie, an operative note will not. The exchanges left the trial judge with the impression that Dr Shahi did not grasp what an expert witness is required to do.
The trial judge observed that it would have been open to exclude Dr Shahi’s evidence in its entirety. Instead, the court worked through each alleged breach individually, considered Dr Shahi’s evidence on each, and rejected it on the merits.
The Defence Expert’s Evidence
Dr Smith, by contrast, was found to be a model expert witness. The court described him as eminently qualified, balanced, careful, and independent. He reviewed both the operative records and the discovery transcripts. He did not weigh credibility or prefer one witness over another. He explained where he agreed with Dr Shahi (bowel injuries are a recognized risk of hernia surgery) and where he disagreed (running the bowel and bowel preparation are not part of the standard of care for incisional hernia repair). When asked, he gave the court a fair account of how surgeons make discretionary decisions about repair techniques.
The Court’s Findings on Breach
Working through each allegation, the court found no breach:
The procedure and risks were adequately explained. The surgeon’s ordinary practice, supported by his notes and the signed consent form, was sufficient.
The surgery was always planned as open. The patient’s belief that the operation was supposed to be laparoscopic was mistaken. None of the contemporaneous documents referenced laparoscopy. Hernia surgery defaults to open unless otherwise specified.
Bowel preparation was not required. The court accepted Dr Smith’s evidence that bowel preparation, while standard in colon surgery, is not part of the standard of care for hernia repair. The authorities cited by Dr Shahi were either dated to 2016 (after the surgeries in question), or made no positive recommendation, or simply reported low-quality evidence.
Running the bowel was not required. The court found Dr Shahi’s evidence on this issue contradictory and nonsensical. Running the bowel through a 2 to 3 centimetre incision is not physically possible. To do it would have required a major extension of the incision, introducing significant additional risk. Dr Smith’s view, that surgeons take down adhesions 2 to 3 centimetres around the hernia and inspect the area but do not run the entire bowel, was accepted.
The bowel injury was a partial perforation that became full-thickness. The court accepted that the surgeon had inspected the bowel during the first surgery using visual examination and sponges, that no injury was visible at that time, and that the injury most likely became symptomatic only when a partial tear progressed to a full perforation over the following days. Bowel injuries during incisional hernia repair are a recognized complication (the court accepted a rate of approximately 1 to 6 percent) and do not, on their own, indicate breach.
Primary repair was within the surgeon’s discretion. The court accepted that the perforation was a pinhole in healthy tissue, and that both primary repair and side-to-side anastomosis are accepted techniques. Choosing between two recognized techniques is a matter of surgical judgment. Dr Shahi’s contrary opinion was built on factual assumptions (large hole, contaminated tissue) that the court rejected.
The fistula was appropriately managed conservatively. The surgeon’s telephone consultation with a complex-hernia specialist, his decision to avoid further surgery, and his ongoing wound care all met the standard. Fistulas commonly take time to close and surgeons are expected to manage them.
The referral to a complex-hernia specialist was timely. The court accepted Dr Smith’s evidence that a referral for ventral hernia reconstruction is appropriately delayed until adhesions mature and inflammation subsides. There was no urgency, and the longer wait improved the chances of a successful reconstruction.
The Court’s Alternative Analysis on Causation and Damages
Although the no-breach finding was sufficient to dismiss the claim, the trial judge addressed causation in the alternative. The findings on this issue are useful because they illustrate the boundary between damages flowing from a defendant’s negligence and damages flowing from intervening events.
Loss of chance is not compensable. Citing the established Ontario line of authority, the court reiterated that a plaintiff cannot recover by showing that a different course of treatment might have improved the outcome. The plaintiff must prove on a balance of probabilities that, but for the negligence, the harm would not have occurred.
The 2012 reconstructive surgery broke the chain of causation. The court held that the reconstructive surgery performed in September 2012, during which the operating surgeon took down all of the patient’s adhesions, severed any causal connection between the December 2010 surgeries and the patient’s continuing complaints. Whatever might have been said about adhesions or scar tissue from the original procedures, none of it survived the September 2012 operation.
Damages would have been capped at the period between the surgeries and the reconstruction. Had liability been found, the trial judge would have awarded $130,000 in general damages, limited special damages of roughly $49,500, a $30,000 Family Law Act award to the spouse, and nothing for past or future income loss (because the latest defensible end date for damages was September 2012, before the patient went on long-term disability).
A Note on the Plaintiff’s Credibility and Reliability
The trial judge found the plaintiff credible but unreliable. The reliability concerns were grounded in inconsistencies between his trial evidence, his treating physicians’ records, his long-term disability application, and his Canada Pension Plan disability application. He had testified that he could no longer run or scuba dive, while medical records showed both activities continuing well past the alleged disabling events. His treating family physician was found to have acted as an advocate rather than an objective historian, recording symptoms reported by the patient that were inconsistent with other treating physicians’ records.
This is a useful reminder that a plaintiff’s account of their own symptoms and limitations is not insulated from objective contradiction. Medical records, disability application records, and the records of other treating physicians can all be drawn upon at trial.
Practical Observations
For plaintiffs and patients, Forget v Gibb is a sobering case. The surgical course was, on any common-sense view, very bad. The first surgery led to a bowel injury that required emergency intervention. The emergency repair failed. The fistula and wound complications dragged on for years. The patient was left with a recurrent hernia that required complex reconstruction by a different surgeon. Yet on the medicine, the surgeon’s conduct met the standard expected of a reasonable general surgeon practising at the time. Bad outcomes happen even when the surgeon does everything right.
For expert witnesses, the decision is a textbook on what not to do. An expert who weighs evidence, prefers one witness over another, reasons backward from outcome, or treats the standard of care as a matter of personal opinion has crossed the line from expert to advocate. Trial judges have an ongoing gatekeeping function and will exercise it.
For defence counsel, the case is a strong precedent for the proposition that contemporaneous operative notes, combined with a surgeon’s evidence of their ordinary and usual practice, can carry the day even where specific recollection is absent. The court relied heavily on the surgeon’s reconstruction of events from his notes and his standing practice.
For plaintiffs’ counsel, the case is a reminder that the choice of expert is the choice of case. An expert who arrives without a clear understanding of what the standard of care means, who refuses to consider the defendant’s evidence on its own terms, or who reasons from result back to cause, will not assist the court and may have his evidence rejected in its entirety. There is no recovery from that at trial.
Decision Date: April 14, 2026
Jurisdiction: Ontario Superior Court of Justice
Citation: Forget v Gibb, 2026 ONSC 626 (CanLII)
Paul Cahill
Partner, Davidson Cahill Morrison LLP | LSO Certified Specialist in Civil Litigation
Paul represents victims of medical malpractice across Ontario, with trial experience including a $11.5M jury verdict in a birth injury case. He is recognized in Best Lawyers in Canada and serves as trial counsel to other lawyers on complex medical negligence matters.
About PaulMore on medical malpractice in Ontario.
Other articles by Paul exploring the conditions, decisions, and systems behind preventable medical harm.
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