On August 23, 2023, a trial judge of the Ontario Superior Court of Justice dismissed a medical malpractice lawsuit against an emergency medicine physician and general surgeon for alleged delayed diagnosis of anal cancer that resulted in the Plaintiff requiring an ileostomy.
An ileostomy diverts waste so that it no longer comes out of the body through the rectum and anus. Instead, waste leaves the body through a stoma on the body.
It was the patient’s position that the emergency medicine physician should have considered other diagnoses when she presented to him complaining of rectal pain for what she believed were hemorrhoids.
As against the general surgeon, the patient alleged that he failed to arrange for appropriate follow up or order a CT scan when she saw him about a month later with a worsening condition than before.
The Defendants argued that anal cancer, a rare form of cancer, is difficult and challenging to diagnose and often takes time to properly diagnose. They denied any negligence on their part.
The Defendants also argued that the Plaintiff should be held contributorily negligent for failing to follow up and seeking medical attention when it was recommended and needed.
ISSUES
The issues at trial were standard of care, causation and contributory negligence on the part of the Plaintiff.
FACTS
The Plaintiff attended at the emergency department of the Scarborough Hospital, a community hospital in Toronto, on November 21, 2014, complaining of a seven-day history of perianal pain, which she described as a hemorrhoid flareup.
She had a mild fever of 38 °C. and slightly elevated pulse of 108. Her blood pressure was 113/76. Otherwise, her vital signs were normal. She complained of rectal pain of 7 on a scale of 10.
She was seen by the defendant, Dr. Benjamin Lee, who took a history, assessed her, and concluded that she was not septic and likely had a perianal abscess.
Dr. Lee conducted a visual and a physical examination of the Plaintiff’s rectal area, observed a lesion in the anal area, which he described as 4 cm in diameter. It was tender to the touch, skin coloured with some surface redness. He concluded that she likely had a perianal abscess, with some infectious process based on her slight fever, slightly increased heart rate and seven-day history. He performed an incision and drainage procedure. He froze the skin with a local anaesthetic, used a scalpel to cut into the abscess with three incisions to permit collected fluid to drain. The incision produced approximately 2 cm of fluid, some blood and some yellow fluid which Dr. Lee interpreted as indicative of an early infection.
Dr. Lee discharged the plaintiff with follow-up home nursing wound care and with instructions to follow up with a primary care practitioner in 1 to 2 weeks
The Plaintiff began receiving home nursing care on November 22, 2014, the day after her attendance at Scarborough Hospital. This home nursing care continued every 1-2 days through the end of December and consisted of changing the dressings, assessing the wound, providing continued oversight of the wound, and making recommendations as appropriate.
The nurses, upon learning that the plaintiff did not have a family physician, provided her with contact information for Health Care Connect, a service which would help her to find a family doctor. There is no evidence to indicate whether or not she contacted Health Care Connect. During all material times, she never did have a family physician.
On December 28, 2014, the Plaintiff received a home visit by a family doctor, Dr. Sandra Feldman, who assessed her and concluded that she may have a prolapsed mucosa. Dr. Feldman recommended that she return to the E.R. to be examined. The Plaintiff did not attend at the E.R. until December 31, three days later.
On December 31, the visiting wound care nurse recommended that the Plaintiff attend at the E.R for surgical assessment because she was suffering from incontinence of gas and stool.
On December 31, the Plaintiff again attended at the Scarborough Hospital E.R., complaining of rectal pain of 3 on a scale of 10, which was less than on November 21, although she subjectively reported that it was worse. Her vital signs were normal.
The Plaintiff was attended by an E.R. physician, Dr. Bharat Bahl, who took her history. The Plaintiff reported that she was “unable to control stool,” occasionally had blood, and “pain intermittently.” Dr. Bahl performed a physical examination, including a digital rectal examination (“DRE”) and did not feel an abscess. He concluded that there was a potential prolapsed mucosa, which was described as skin coloured on the proximal aspect and red on the distal aspect of the prolapse. He attempted to reduce the prolapse by pushing it back in but was unable to do so. He requested that a general surgeon, the Defendant Dr. Arthur Chiu, attend the E.R. to consult with the Plaintiff.
Dr. Chiu attended at the E.R. very shortly thereafter. Dr. Bahl briefed Dr. Chiu on his assessment and the Plaintiff’s history and advised that he was concerned about a rectal prolapse. Dr. Chiu then took a history from the plaintiff.
The Plaintiff advised Dr. Chiu that following the incision made by Dr. Lee, she developed constipation and had to strain herself significantly to have a bowel movement. She stated that she developed hemorrhoids and used Preparation H which seemed to have resolved the issue. However, the hemorrhoids returned and became more pronounced. She would have to strain and caused the mucosa to come out of the perianal area.
Dr. Chiu then performed a top to bottom physical examination including a focused examination of the perianal area and performed a DRE. The physical examination included checking her head and neck and performing a chest examination, a cardiovascular examination, and an abdominal examination, all of which were normal. Based on the perianal examination, he concluded that the plaintiff had a prolapsed mucosa as well as a hardened area where Dr. Lee had performed the incision and drainage procedure. He recommended sitz baths, stool softener, and laxatives. Further, he requested that the plaintiff follow up in his office in 1 to 2 weeks if symptoms did not improve, and in 2 weeks in any event, and to return to the E.R if certain symptoms worsened.
The Plaintiff did not follow up with Dr. Chiu in two weeks as instructed. She continued to receive home nursing care. However, on January 15, 2015, she was called by the home nursing care service and asked to attend at their clinic to have her wound re-assessed, and she declined to do so. As a result, she was discharged from home nursing care on that day. The Plaintiff did not seek any further medical attention until April 8, 2015, over three months later.
On April 8, 2015, the Plaintiff attended at St. Michael’s Hospital E.R., a tertiary hospital in Toronto, with complaints of passing stool through her vagina. She had apparently, according to medical records, become constipated again and strained herself. Following that, she began to pass stool through her vagina. She attempted to treat this on her own for more than a week, prior to attending at hospital. Later medical records suggest that she experienced an onset of discharging stool through the vagina on March 22, 2015.
After examination by the E.R. physician and surgical resident, who found evidence of previous infection with expressed pus, a diagnostic impression of the rectal abscess and recto-vaginal fistula was made. The surgical consultation noted that malignancy could not be ruled out and recommended an examination under anaesthesia and a biopsy.
The Plaintiff was admitted to hospital from April 8-12, 2015, and investigations commenced. She was referred to a colorectal surgeon for investigation and to rule out malignancy. She was diagnosed with a recto-vaginal fistula, and an ileostomy was performed on April 17, 2015.
The pathology report of April 27, 2015 noted findings suspicious for invasive squamous cell carcinoma, but with no determinative finding at that time.
On May 12, 2015, the Plaintiff was diagnosed with anal cancer, after examinations under anaesthesia, biopsy, three CT examinations, and consultations with several general surgeons and a colorectal surgeon. A CT scan of her abdomen and pelvis performed on May 12, 2015 showed a large necrotic mass on her lower rectum that had increased in size. On May 15, 2015, she was referred to Princess Margaret Hospital (“PMH”) for chemotherapy and radiation and was first seen in consultation at PMH on May 22, 2015.
On May 28, 2015, an MRI was done that showed a large necrotic mass extending from the lower rectum to the vagina. A biopsy completed on May 29, 2015, almost 2 months after her first attendance at St. Michael’s E.R., confirmed a basaloid squamous cell carcinoma.
On June 9, 2015, the Plaintiff was admitted to PMH for anal cancer treatment which continued through August 7, 2015. The patient was left with a permanent ileostomy.
The Plaintiff died prior to trial on March 7, 2022 for reasons unrelated to anal cancer and her ileostomy.
DECISION
Standard of Care
The trial judge found that the Defendant physicians had appropriate discharged their duty to diagnose and treat the Plaintiff as she presented to them. The thrust of the Plaintiff’s claim was that the Defendant physicians should have considered broader diagnoses at the material times which should have included anal cancer which would have led to further diagnostic imaging and an earlier diagnosis.
In rejecting this argument on the facts of this case, the trial judge accepted the defence position that there is no reason to formulate a differential diagnosis or consider alternate diagnoses where a patient presents with specific complaints.
Rather, a differential diagnosis is appropriate in cases of non-specific complaints.
A differential diagnosis is appropriate if a patient presents with non-specific complaints where there is no clear diagnosis and then possible conditions are listed. But that differential diagnosis is formulated only after the physician/emergency physician undertakes a history and clinical examination, formulates the differential and then undertakes certain investigations to rule out or rule in those conditions and then comes up with a provisional diagnosis.
Not in every case is a differential diagnosis required nor is it the standard. In conducting a clinical assessment, the patient’s clinical presentation has to be considered. The focus of the clinical assessment is to determine whether or not the patient presented with a condition, the likelihood of which would have serious consequences.
The trial judge observed that the patient presented with specific complaints, which appeared from her descriptions and from the clinical assessment to be borne out, such that there was no reason to formulate a differential diagnosis or consider alternate diagnoses. A differential diagnosis would have been appropriate had the complaints been non-specific and potentially attributable to a number of different potential conditions.
Further, based on the Plaintiff’s complaint, there was no life-threatening condition that presented itself.
Causation
Given the finding that the Defendants met the standard of care, the trial judge did not delve into detail with respect to causation. The trial judge found, in any event, that even if the standard of care had been met and earlier detection of anal cancer had been made, the ileostomy would still likely have taken place, and as such, causation was not proven.
Contributory Negligence
There were a number of instances where the Plaintiff did not follow up as recommended by her treating physicians. Had negligence against the Defendants been established, the trial judge would have found the patient 40% responsible for her own bad outcome for failing to follow the advice of her doctors.
EXPERT LIABILITY WITNESSES
Plaintiffs’ Experts
Dr. Simon Kingsley was qualified as an expert in emergency medicine and permitted to provide opinion evidence on the standard of care. Dr. Kingsley had approximately 20 years experience at the material time. He worked as a staff emergency department physician at St. Michael’s from 1999 and served as Chief of the Department of Emergency Medicine on various occasions. St. Michael’s is a tertiary care centre and academic teaching hospital in downtown Toronto with one of the largest patient volumes in the city and has a roster of 40 emergency physicians.
Dr. Carol-Ann Vasilevsky was qualified as an expert in general surgery and gave standard of care evidence. Dr. Vasilevsky practiced her entire professional career as a colorectal surgeon at the Jewish General Hospital in Montréal, Québec, a tertiary care hospital affiliated with McGill University. She is a respected expert in her specialty of colorectal surgery
Defence Experts
Dr. Ronald McMillan was qualified as an expert in emergency medicine and gave evidence on standard of care. Dr. McMillian has practiced emergency medicine since 1988 and has nearly 35 years of experience. During the relevant period, Dr. McMillan practiced emergency medicine at the Etobicoke and Brampton sites of William Osler Hospital, community hospitals which at the time had similar resources, patient volumes, and patient acuity as the Scarborough Hospital. Dr. McMillan is qualified as a specialist in emergency medicine by the Royal College of Physicians and Surgeons. Dr. McMillan is also involved in numerous academic and professional roles, including involvement in the assessment of emergency medicine physicians.
Dr. John Hagan was qualified as an expert in general surgeon for the purpose of providing standard of care evidence. Dr. Hagan practiced general surgery for more than 35 years in a community hospital setting similar to that of Scarborough Hospital.
For approximately two decades, he practiced at Humber River Hospital, where he served for 11 years as Division Head of General Surgery, 7 years as Chief of Surgery, and 2 years as Chief of Staff. Neither Humber River nor Scarborough Hospitals had a colorectal surgeon on staff in 2014, and any assessment for an ileostomy in the case of an anal cancer patient would have been performed by a general surgeon.
Decision Date: August 23, 2023
Jurisdiction: Ontario Superior Court of Justice
Citation: Martindale v. Bahl et al, 2023 ONSC 4259 (CanLII)
