A delayed cancer diagnosis claim turns on two questions: whether the physicians who saw the patient before the diagnosis was made fell below the standard of care in failing to investigate or refer earlier, and whether the delay made a meaningful difference to the outcome. Both questions are usually contested, and either one is capable of defeating the claim on its own.
Martindale v Bahl et al, 2023 ONSC 4259, is a useful illustration of a cancer-misdiagnosis claim that failed at both. The Ontario Superior Court of Justice dismissed an action brought against an emergency medicine physician and a general surgeon in connection with the eventual diagnosis of anal cancer some months after the patient first presented to the emergency department with perianal complaints. The standard of care was met. Causation was not proven on the alternative analysis. And had liability otherwise been established, the trial judge would have found the patient 40% contributorily negligent for repeated failures to follow up.
The case is precedent for several propositions about how cancer-misdiagnosis claims are evaluated in Ontario, particularly in relation to the differential diagnosis requirement and the role of patient follow-up.
The clinical context
The cancer at issue is anal squamous cell carcinoma. Anal cancer is uncommon, and its presentation can mimic a number of more common benign conditions in the perianal area, including hemorrhoids, anal fissures, perianal abscesses, and rectal prolapse. The early symptoms (pain, bleeding, swelling, lump, change in bowel habits) overlap substantially with these benign conditions, and the pretest probability of anal cancer in a patient presenting to an emergency department with perianal symptoms is low.
A few other terms appear in the case and are worth defining. A perianal abscess is a localized collection of pus near the anus, typically presenting as a tender, swollen, sometimes red mass. The standard treatment is incision and drainage (I&D), often performed in the emergency department under local anaesthesia. A mucosal or rectal prolapse is a protrusion of the rectal lining or wall through the anus, often associated with straining at stool. A recto-vaginal fistula is an abnormal connection between the rectum and vagina that allows stool to pass through the vagina; it can result from trauma, surgery, infection, or malignancy.
In Martindale, the eventual diagnosis was anal squamous cell carcinoma with a recto-vaginal fistula, requiring permanent ileostomy.
The facts
The patient first attended the emergency department of a Toronto community hospital on November 21, 2014 with a seven-day history of perianal pain that she described as a hemorrhoid flare. She was assessed by an emergency physician (not a defendant in the action). On examination, the physician found a tender 4 cm lesion in the anal area that was clinically consistent with a perianal abscess, with associated mild fever and slightly elevated heart rate. He performed an incision and drainage procedure, expressed approximately 2 cm of fluid, and discharged her with home nursing wound care and instructions to follow up with a primary care practitioner in 1 to 2 weeks.
The patient did not have a family physician. She was provided with information about Health Care Connect (the Ontario service for matching patients with family doctors), but the evidence did not establish that she contacted them. She continued to receive home nursing care every 1 to 2 days through December.
On December 28, 2014, a family doctor (not the patient’s regular physician; not a defendant) made a home visit at the request of the home nursing service. The visiting doctor concluded the patient may have a prolapsed mucosa and recommended that she return to the ER. The patient did not attend until three days later.
On December 31, 2014, the patient returned to the same ER. She was assessed by Dr. Bharat Bahl, an emergency physician and one of the defendants. Dr. Bahl took a history, performed a physical examination including a digital rectal examination, found no abscess, and concluded that there was a possible prolapsed mucosa. He attempted to reduce the prolapse but was unable to. He requested a general surgical consultation, and Dr. Arthur Chiu, a general surgeon and the second defendant, attended.
Dr. Chiu took a focused history, performed a top-to-bottom physical examination including the perianal area, and concluded that the patient had a prolapsed mucosa together with a hardened area at the site of the November I&D. He recommended conservative management (sitz baths, stool softeners, laxatives) and asked the patient to follow up in his office in 1 to 2 weeks if symptoms did not improve, and in 2 weeks in any event, with instructions to return to the ER if specified symptoms worsened.
The patient did not follow up with Dr. Chiu. On January 15, 2015, the home nursing service asked her to attend their clinic for a wound reassessment; she declined, and was discharged from home nursing care that day. She sought no further medical attention for more than three months.
On April 8, 2015, the patient attended the emergency department of a tertiary hospital with a complaint of passing stool through her vagina, a symptom that had begun several weeks earlier. Investigation confirmed a recto-vaginal fistula. Malignancy was suspected. After examination under anaesthesia, biopsy, three CT examinations, and consultations with colorectal surgery, the patient was diagnosed with anal squamous cell carcinoma on May 12, 2015. An ileostomy was performed on April 17, 2015. Chemotherapy and radiation followed at a tertiary cancer centre. The ileostomy was permanent.
The patient died of unrelated causes in March 2022, before trial. Her estate continued the action.
The standard of care
The plaintiff’s claim against Dr. Bahl was that he should have considered a broader differential diagnosis at the December 31 attendance, including the possibility of malignancy, and that doing so would have led to imaging or further investigation that would have identified the cancer earlier. The claim against Dr. Chiu was that, as the consulting surgeon, he failed to arrange appropriate follow-up or order a CT scan.
The trial judge rejected both claims on the standard of care.
The doctrinal point is worth setting out carefully. A differential diagnosis (a list of possible conditions that might explain a clinical picture) is appropriate when a patient presents with non-specific complaints that could be attributable to a number of different conditions. Where the patient presents with specific complaints that fit a clinical picture borne out on examination, the physician is not required to formulate a broader differential or to investigate alternative diagnoses that the clinical presentation does not point to. The clinical assessment focuses on whether the patient’s presentation suggests a condition with serious consequences, and where it does not, a narrower diagnostic frame is appropriate.
Applied to Martindale, the trial judge found:
- The patient on December 31 presented with specific complaints (rectal pain, prolapse, post-procedure symptoms) that pointed to specific conditions (prolapsed mucosa, residual effects of the November I&D)
- The clinical examinations performed by Dr. Bahl and Dr. Chiu were appropriate to the presentation
- The findings were consistent with the working diagnosis
- There was no clinical feature that pointed to malignancy or that would have required imaging or biopsy at that point
- The physicians appropriately discharged the patient with conservative management and follow-up instructions
The standard of care was met.
Causation
Given the SOC finding, the trial judge did not engage in detail with causation. As an alternative analysis, however, the trial judge found that even if the standard of care had been breached and the cancer had been diagnosed earlier, the ileostomy would still likely have been required. Causation was therefore not proven.
The causation analysis is significant because it rebuts the implicit assumption in many delayed-diagnosis claims that earlier diagnosis would have avoided the most catastrophic consequences. In some cancers, even substantial delay can be reversed by treatment if the diagnosis is eventually made. In other cancers, including some presentations of anal cancer, the treatment itself (or the consequences of the disease at any stage) entails the surgery in question. Where that is true, the delay does not cause the disabling outcome, and the claim fails on causation regardless of the SOC analysis.
Contributory negligence
As a further alternative analysis, the trial judge held that had liability otherwise been established, the patient would have been 40% contributorily negligent for repeated failures to follow up. The findings included:
- She did not contact Health Care Connect to obtain a family physician
- She did not follow up with Dr. Chiu in 1 to 2 weeks as instructed
- She declined to attend the home nursing clinic for reassessment in January 2015 and was discharged from home nursing care as a result
- She sought no further medical attention for over three months between January and April 2015
- She attempted to self-manage the symptoms of the recto-vaginal fistula for more than a week before attending hospital in April
A 40% contributory negligence finding would have reduced any damages award by the same percentage. This would have substantially reduced the recovery, even if liability had been established.
The doctrinal lessons
Martindale stands for several propositions in the cancer-misdiagnosis context.
A differential diagnosis is required only for non-specific complaints. Where a patient presents with specific complaints that fit a clinical picture, the physician is not required to formulate a broader differential or investigate alternative diagnoses the presentation does not suggest. This is doctrinally important because many cancer-misdiagnosis claims are framed as a failure to consider cancer in the differential. The framing only works where the original presentation actually warranted a broad differential.
Imaging is not a default response to perianal symptoms. Cross-sectional imaging (CT, MRI) and endoscopic investigation are not part of the standard workup for clinical presentations that are explained by benign perianal conditions. The plaintiff’s argument that imaging should have been ordered to rule out malignancy was rejected because the clinical picture did not point to malignancy.
Cancer-misdiagnosis claims often fail on causation. Where treatment of the cancer eventually requires the surgery or other intervention that is the focus of the alleged harm (here, the ileostomy), the causation analysis turns on whether earlier diagnosis would have avoided the surgery, not on whether earlier diagnosis would have produced any benefit at all. Earlier diagnosis is almost always better in cancer cases, but it is not always sufficient to avoid the outcome the plaintiff complains of.
Patient follow-up is a relevant consideration. The 40% contributory negligence finding here reflects the trial judge’s assessment that the patient’s repeated failures to follow up over a four-month period materially contributed to the trajectory. Even where the physician’s standard of care is in issue, a patient who does not engage with the recommended follow-up is exposed to a contributory negligence finding that can substantially reduce damages.
The cancer-misdiagnosis cluster
Martindale is one of several decisions in the case-comment cluster on this site that engage cancer-misdiagnosis or delayed-diagnosis themes. The patient-facing guides to the same area include Cancer Misdiagnosis in Ontario: Common Causes and How Claims Are Proven and Five Dangerous Diagnoses Missed in Ontario Emergency Rooms.
The case-comment cluster also contains several decisions in which the claim was defeated at standard of care or causation:
Together with Martindale, these four decisions illustrate the range of ways in which a malpractice claim can fail. The combination of standard-of-care, causation, and (in Martindale) contributory negligence findings means that a plaintiff has to win on multiple fronts, and a defendant can prevail by winning on any of them.
Why this case matters
For patients and families. A delayed cancer diagnosis is a difficult experience, and the temptation is to assume that any delay was negligent. The legal analysis is more demanding. The standard-of-care question is whether the physicians acted reasonably given what they knew and saw, not whether the eventual diagnosis was made later than the patient would have wished. The causation question is whether earlier diagnosis would have produced a meaningfully different outcome, not whether earlier diagnosis would have been better in some general sense. And the contributory negligence framework can substantially reduce recovery where the patient did not engage with the recommended follow-up.
For physicians. The case is a useful confirmation that a focused clinical assessment matched to the presentation is appropriate where the presentation is specific. The standard of care does not require the physician to investigate every possible alternative diagnosis at every encounter. Documentation of the clinical reasoning, the examination findings, and the follow-up instructions is the most reliable defence in any subsequent litigation.
For lawyers screening cancer-misdiagnosis claims. Three considerations from Martindale are worth applying at intake. First, the differential diagnosis framing has to fit the presentation: where the patient presented with specific complaints, the framing is weaker than where the presentation was non-specific. Second, the causation analysis has to engage realistically with what earlier diagnosis would have changed, not just whether it would have been better in the abstract. Third, the patient’s own follow-up history is relevant: a patient with a clean compliance record presents a stronger case than a patient with multiple missed follow-ups, even where the SOC analysis is identical.
For more on cancer misdiagnosis claims generally, see Cancer Misdiagnosis in Ontario: Common Causes and How Claims Are Proven. For the broader framework of medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: August 23, 2023
Jurisdiction: Ontario Superior Court of Justice
Citation: Martindale v Bahl et al, 2023 ONSC 4259 (CanLII)
Martindale v Bahl: An Anal Cancer Claim Where the Standard of Care Was Met
A delayed-diagnosis cancer claim was dismissed at standard of care and causation, with a 40% contributory negligence finding for repeated failures to follow up.
A delayed cancer diagnosis claim turns on two questions: whether the physicians who saw the patient before the diagnosis was made fell below the standard of care in failing to investigate or refer earlier, and whether the delay made a meaningful difference to the outcome. Both questions are usually contested, and either one is capable of defeating the claim on its own.
Martindale v Bahl et al, 2023 ONSC 4259, is a useful illustration of a cancer-misdiagnosis claim that failed at both. The Ontario Superior Court of Justice dismissed an action brought against an emergency medicine physician and a general surgeon in connection with the eventual diagnosis of anal cancer some months after the patient first presented to the emergency department with perianal complaints. The standard of care was met. Causation was not proven on the alternative analysis. And had liability otherwise been established, the trial judge would have found the patient 40% contributorily negligent for repeated failures to follow up.
The case is precedent for several propositions about how cancer-misdiagnosis claims are evaluated in Ontario, particularly in relation to the differential diagnosis requirement and the role of patient follow-up.
The clinical context
The cancer at issue is anal squamous cell carcinoma. Anal cancer is uncommon, and its presentation can mimic a number of more common benign conditions in the perianal area, including hemorrhoids, anal fissures, perianal abscesses, and rectal prolapse. The early symptoms (pain, bleeding, swelling, lump, change in bowel habits) overlap substantially with these benign conditions, and the pretest probability of anal cancer in a patient presenting to an emergency department with perianal symptoms is low.
A few other terms appear in the case and are worth defining. A perianal abscess is a localized collection of pus near the anus, typically presenting as a tender, swollen, sometimes red mass. The standard treatment is incision and drainage (I&D), often performed in the emergency department under local anaesthesia. A mucosal or rectal prolapse is a protrusion of the rectal lining or wall through the anus, often associated with straining at stool. A recto-vaginal fistula is an abnormal connection between the rectum and vagina that allows stool to pass through the vagina; it can result from trauma, surgery, infection, or malignancy.
In Martindale, the eventual diagnosis was anal squamous cell carcinoma with a recto-vaginal fistula, requiring permanent ileostomy.
The facts
The patient first attended the emergency department of a Toronto community hospital on November 21, 2014 with a seven-day history of perianal pain that she described as a hemorrhoid flare. She was assessed by an emergency physician (not a defendant in the action). On examination, the physician found a tender 4 cm lesion in the anal area that was clinically consistent with a perianal abscess, with associated mild fever and slightly elevated heart rate. He performed an incision and drainage procedure, expressed approximately 2 cm of fluid, and discharged her with home nursing wound care and instructions to follow up with a primary care practitioner in 1 to 2 weeks.
The patient did not have a family physician. She was provided with information about Health Care Connect (the Ontario service for matching patients with family doctors), but the evidence did not establish that she contacted them. She continued to receive home nursing care every 1 to 2 days through December.
On December 28, 2014, a family doctor (not the patient’s regular physician; not a defendant) made a home visit at the request of the home nursing service. The visiting doctor concluded the patient may have a prolapsed mucosa and recommended that she return to the ER. The patient did not attend until three days later.
On December 31, 2014, the patient returned to the same ER. She was assessed by Dr. Bharat Bahl, an emergency physician and one of the defendants. Dr. Bahl took a history, performed a physical examination including a digital rectal examination, found no abscess, and concluded that there was a possible prolapsed mucosa. He attempted to reduce the prolapse but was unable to. He requested a general surgical consultation, and Dr. Arthur Chiu, a general surgeon and the second defendant, attended.
Dr. Chiu took a focused history, performed a top-to-bottom physical examination including the perianal area, and concluded that the patient had a prolapsed mucosa together with a hardened area at the site of the November I&D. He recommended conservative management (sitz baths, stool softeners, laxatives) and asked the patient to follow up in his office in 1 to 2 weeks if symptoms did not improve, and in 2 weeks in any event, with instructions to return to the ER if specified symptoms worsened.
The patient did not follow up with Dr. Chiu. On January 15, 2015, the home nursing service asked her to attend their clinic for a wound reassessment; she declined, and was discharged from home nursing care that day. She sought no further medical attention for more than three months.
On April 8, 2015, the patient attended the emergency department of a tertiary hospital with a complaint of passing stool through her vagina, a symptom that had begun several weeks earlier. Investigation confirmed a recto-vaginal fistula. Malignancy was suspected. After examination under anaesthesia, biopsy, three CT examinations, and consultations with colorectal surgery, the patient was diagnosed with anal squamous cell carcinoma on May 12, 2015. An ileostomy was performed on April 17, 2015. Chemotherapy and radiation followed at a tertiary cancer centre. The ileostomy was permanent.
The patient died of unrelated causes in March 2022, before trial. Her estate continued the action.
The standard of care
The plaintiff’s claim against Dr. Bahl was that he should have considered a broader differential diagnosis at the December 31 attendance, including the possibility of malignancy, and that doing so would have led to imaging or further investigation that would have identified the cancer earlier. The claim against Dr. Chiu was that, as the consulting surgeon, he failed to arrange appropriate follow-up or order a CT scan.
The trial judge rejected both claims on the standard of care.
The doctrinal point is worth setting out carefully. A differential diagnosis (a list of possible conditions that might explain a clinical picture) is appropriate when a patient presents with non-specific complaints that could be attributable to a number of different conditions. Where the patient presents with specific complaints that fit a clinical picture borne out on examination, the physician is not required to formulate a broader differential or to investigate alternative diagnoses that the clinical presentation does not point to. The clinical assessment focuses on whether the patient’s presentation suggests a condition with serious consequences, and where it does not, a narrower diagnostic frame is appropriate.
Applied to Martindale, the trial judge found:
The standard of care was met.
Causation
Given the SOC finding, the trial judge did not engage in detail with causation. As an alternative analysis, however, the trial judge found that even if the standard of care had been breached and the cancer had been diagnosed earlier, the ileostomy would still likely have been required. Causation was therefore not proven.
The causation analysis is significant because it rebuts the implicit assumption in many delayed-diagnosis claims that earlier diagnosis would have avoided the most catastrophic consequences. In some cancers, even substantial delay can be reversed by treatment if the diagnosis is eventually made. In other cancers, including some presentations of anal cancer, the treatment itself (or the consequences of the disease at any stage) entails the surgery in question. Where that is true, the delay does not cause the disabling outcome, and the claim fails on causation regardless of the SOC analysis.
Contributory negligence
As a further alternative analysis, the trial judge held that had liability otherwise been established, the patient would have been 40% contributorily negligent for repeated failures to follow up. The findings included:
A 40% contributory negligence finding would have reduced any damages award by the same percentage. This would have substantially reduced the recovery, even if liability had been established.
The doctrinal lessons
Martindale stands for several propositions in the cancer-misdiagnosis context.
A differential diagnosis is required only for non-specific complaints. Where a patient presents with specific complaints that fit a clinical picture, the physician is not required to formulate a broader differential or investigate alternative diagnoses the presentation does not suggest. This is doctrinally important because many cancer-misdiagnosis claims are framed as a failure to consider cancer in the differential. The framing only works where the original presentation actually warranted a broad differential.
Imaging is not a default response to perianal symptoms. Cross-sectional imaging (CT, MRI) and endoscopic investigation are not part of the standard workup for clinical presentations that are explained by benign perianal conditions. The plaintiff’s argument that imaging should have been ordered to rule out malignancy was rejected because the clinical picture did not point to malignancy.
Cancer-misdiagnosis claims often fail on causation. Where treatment of the cancer eventually requires the surgery or other intervention that is the focus of the alleged harm (here, the ileostomy), the causation analysis turns on whether earlier diagnosis would have avoided the surgery, not on whether earlier diagnosis would have produced any benefit at all. Earlier diagnosis is almost always better in cancer cases, but it is not always sufficient to avoid the outcome the plaintiff complains of.
Patient follow-up is a relevant consideration. The 40% contributory negligence finding here reflects the trial judge’s assessment that the patient’s repeated failures to follow up over a four-month period materially contributed to the trajectory. Even where the physician’s standard of care is in issue, a patient who does not engage with the recommended follow-up is exposed to a contributory negligence finding that can substantially reduce damages.
The cancer-misdiagnosis cluster
Martindale is one of several decisions in the case-comment cluster on this site that engage cancer-misdiagnosis or delayed-diagnosis themes. The patient-facing guides to the same area include Cancer Misdiagnosis in Ontario: Common Causes and How Claims Are Proven and Five Dangerous Diagnoses Missed in Ontario Emergency Rooms.
The case-comment cluster also contains several decisions in which the claim was defeated at standard of care or causation:
Together with Martindale, these four decisions illustrate the range of ways in which a malpractice claim can fail. The combination of standard-of-care, causation, and (in Martindale) contributory negligence findings means that a plaintiff has to win on multiple fronts, and a defendant can prevail by winning on any of them.
Why this case matters
For patients and families. A delayed cancer diagnosis is a difficult experience, and the temptation is to assume that any delay was negligent. The legal analysis is more demanding. The standard-of-care question is whether the physicians acted reasonably given what they knew and saw, not whether the eventual diagnosis was made later than the patient would have wished. The causation question is whether earlier diagnosis would have produced a meaningfully different outcome, not whether earlier diagnosis would have been better in some general sense. And the contributory negligence framework can substantially reduce recovery where the patient did not engage with the recommended follow-up.
For physicians. The case is a useful confirmation that a focused clinical assessment matched to the presentation is appropriate where the presentation is specific. The standard of care does not require the physician to investigate every possible alternative diagnosis at every encounter. Documentation of the clinical reasoning, the examination findings, and the follow-up instructions is the most reliable defence in any subsequent litigation.
For lawyers screening cancer-misdiagnosis claims. Three considerations from Martindale are worth applying at intake. First, the differential diagnosis framing has to fit the presentation: where the patient presented with specific complaints, the framing is weaker than where the presentation was non-specific. Second, the causation analysis has to engage realistically with what earlier diagnosis would have changed, not just whether it would have been better in the abstract. Third, the patient’s own follow-up history is relevant: a patient with a clean compliance record presents a stronger case than a patient with multiple missed follow-ups, even where the SOC analysis is identical.
For more on cancer misdiagnosis claims generally, see Cancer Misdiagnosis in Ontario: Common Causes and How Claims Are Proven. For the broader framework of medical malpractice claims in Ontario, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: August 23, 2023
Jurisdiction: Ontario Superior Court of Justice
Citation: Martindale v Bahl et al, 2023 ONSC 4259 (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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