In adjudicating surgical negligence claims, the court must often make factual determinations of what occurred during the surgery in order to extrapolate whether the the standard of care was met or not. This must be done in the face of competing facts and opinions arising from the medical records and testimony of the witnesses.

In this case, the trial judge made a number of important factual findings in coming to the conclusion that Dr. Szeto fell below the standard of care:

1. Ms. Szeto’s bowel injury happened during the surgery on July 20, 2015.
2. Ms. Szeto’s bowel injury more likely occurred when Dr. Kives was cutting the significant quantity of adhesions between the left fallopian tube and the sigmoid colon, although it is possible that the perforation of the fundus damaged Ms. Szeto’s bowel.
3. Ms. Szeto’s intra-operative injury was more likely than not as described by Dr. Chiu, that is, between 1-2 cm. The trial judge accepted the expert evidence that it would have been visible and capable of repair, had it been detected at the time of the surgery.

Furthermore, the trial judge determined that Dr. Kives did not go back before the conclusion of the surgery to carefully inspect for bowel damage, either under magnification, or with instruments, for three reasons:

1. Despite having identified the significant quantity of adhesions in Ms. Szeto’s anatomy, Dr. Kives did not make any note about returning to that area to check.
2. Unlike the visualization and irrigation steps which fall under checking for “good hemostasis”, the checking of the bowel at the point where the adhesions had been taken down cannot be said to be part of the standard procedure, which informed Dr. Kives’ recollection.
3. Dr. Kives’ evidence at discovery was that she did not inspect the entire sigmoid colon, but only the portion close to the colpotomy. This would mean she did not go back to re-examine the portion of the bowel where she “took down” the adhesions. Dr. Kives’ evidence in chief at trial was that she did look at where she “took down” the adhesions, yet in cross-examination, she agreed that her discovery evidence was accurate and true.

The gynecology oncology experts on both sides agreed that bowel injury is a known, and serious risk in reproductive organ removal surgery of this type. Every gynecologist is expected to know that bowel injury carries a high risk of morbidity or mortality. As a result, gynecologists must be vigilant in detecting bowel injury during surgery.

In accordance with that vigilance, both experts agreed that the standard of care in circumstances where there had been removal of substantial adhesions involving the bowel, requires “the surgeon to re-examine the area carefully at the end of the case and document that no injuries were sustained during the procedure.” Adhesions present an additional risk to the bowel because they can closely resemble the bowel, and they can make the bowel “adherent” that is, unable to move.

Based on the above findings, the trial determined that Dr. Kives did not re-examine the bowel area at risk at the end of the surgery. She did not document any re-examination of that area, nor did she document a positive finding that no injuries were sustained during the procedure. All expert witnesses agreed that had she done so, an injury as significant in size as this one, between 1-2 cm, would have been detectable on examination. This injury existed and was detectable.

The plaintiff advanced an alternate argument that even if the trial judge had found that Dr. Kives had gone back to inspect the bowel, that she still fell below the standard of care by failing to manipulate the bowel to check for damage. The trial judge accepted the expert evidence that Ms. Szeto had additional risk factors that would have required this step. These risk factors were i) the significant adhesions; ii) the perforation of the fundus by the uterine manipulator; iii) Ms. Szeto’s body fat; and iv) the documented epiploica on the bowel.