Szeto v Kives: Laparoscopic Hysterectomy, Bowel Injury, and the Surgical Duty to Inspect

There is a category of surgical error case in which the breach is not the procedure that caused the injury but the failure to recognize it before the patient left the operating theatre. The procedure is technically demanding. The risk of injury to adjacent structures is recognized and significant. The injury, if caused, is repairable on the spot if it is found. If it is not found, the patient leaves the operating theatre with the injury and is discharged from hospital, only to return hours or days later with a catastrophic complication. The standard of care in these cases turns on the inspection step. The legal question is not whether the surgeon caused the injury (some intraoperative injuries are not preventable even by careful technique) but whether the surgeon took the steps required to find the injury before closing.

Szeto v Kives, 2024 ONSC 7258, released by Justice Leiper of the Ontario Superior Court of Justice on December 31, 2024, is a case in that category. The procedure was a laparoscopic hysterectomy. Significant adhesions were present in the operative field, including adhesions between the left fallopian tube and the sigmoid colon. The cutting of those adhesions produced a 1 to 2 centimetre perforation of the sigmoid colon. The perforation was not recognized intraoperatively. The patient was discharged the following morning. Within 36 hours of the original surgery, she presented to a different hospital in critical condition with fecal peritonitis, sepsis, and an intra-abdominal abscess. She required emergency surgery, bowel resection, a colostomy, weeks in intensive care, and five further surgical procedures. She spent approximately three months in hospital before discharge.

The case is a plaintiff trial win on liability with damages settled prior to trial. The doctrinal centerpiece is the duty to inspect the operative field at the conclusion of a procedure where the known risks make occult injury a recognized possibility. Both sides’ experts agreed on what the standard required in this situation. The trial judge found that the surgeon had not met that standard. The injury existed at the close of the original surgery, it was of sufficient size to be visible on careful inspection, and the inspection that the standard of care required would have found it. Causation followed: the emergency surgery and its sequelae would have been avoided if the injury had been found and repaired intraoperatively.

The case introduces gynecologic surgery and laparoscopic complications as a substantive practice area in the cluster. It also adds a clean Ontario plaintiff-success authority on the “duty to inspect” framework and on the use of discovery-versus-trial testimony contradictions to support credibility findings against a defendant physician.

The clinical context — laparoscopic hysterectomy and bowel injury

A brief clinical overview is useful for the legal analysis.

Laparoscopic hysterectomy. The procedure involves removal of the uterus through small abdominal incisions using laparoscopic instruments. Carbon dioxide gas is used to inflate the abdomen and create working space. A camera and operating instruments are inserted through ports placed in the abdominal wall. The surgeon visualizes and manipulates the pelvic structures on a screen. The procedure is minimally invasive compared with an open hysterectomy and has well-established advantages in recovery time and post-operative pain. It is now the dominant approach for hysterectomy in many practice settings.

The recognized risks. Laparoscopic hysterectomy carries a recognized risk of injury to adjacent structures, including the bowel, bladder, ureters, and major blood vessels. The risk of bowel injury specifically is well-documented in the surgical literature. Estimates vary by study and population but the overall rate of recognized bowel injury during laparoscopic hysterectomy is in the range of 0.1 to 0.5 percent. The rate of unrecognized bowel injury (the injury that becomes apparent only post-operatively) is a smaller subset but is the more dangerous category because the delay in recognition allows fecal contamination of the abdominal cavity and the development of peritonitis and sepsis.

Adhesions. Adhesions are bands of fibrous tissue that form between abdominal organs as a result of prior surgery, infection, endometriosis, or other inflammatory processes. They can fix the bowel in place, make the bowel appear to move with manipulation of adjacent structures, and make the surgical anatomy harder to define. When adhesions are present in the operative field, the risk of inadvertent injury to bowel during the dissection is materially increased. The clinical principle is well-established: where significant adhesions are encountered, the surgeon must proceed with heightened caution and must specifically inspect for occult injury before closing.

The post-operative course. A bowel injury that is recognized intraoperatively can be repaired during the same procedure with low morbidity in most cases. A bowel injury that is missed produces a characteristic clinical picture: the patient appears to recover normally for the first 12 to 36 hours, then develops escalating abdominal pain, vomiting, and signs of sepsis as the bowel contents leak into the abdominal cavity and produce peritonitis. By the time the patient presents with full peritonitis, the abdomen is contaminated, the patient is septic, and the surgical management required is substantially more aggressive (typically open laparotomy, bowel resection, peritoneal lavage, and often a temporary colostomy or ileostomy to divert the fecal stream away from the surgical repair). Recovery is prolonged and the long-term consequences (adhesion formation, the colostomy reversal procedure or its permanence, ongoing bowel function changes) are significant.

The clinical context establishes the doctrinal frame. Where the procedure is recognized to carry a risk of bowel injury, where the operative findings (significant adhesions) elevate that risk, and where the consequences of missed injury are catastrophic, the duty to inspect is engaged. The legal question becomes whether that duty was met.

The facts as found

The patient. Ms. Szeto presented for an elective laparoscopic hysterectomy at St. Michael’s Hospital in Toronto on July 20, 2015. The procedure was indicated for benign gynecologic pathology.

The surgical team. The procedure was performed by Dr. Kives as the operating surgeon. She was assisted by a surgical resident and a post-graduate fellow. The team configuration is typical for an academic teaching centre.

The intraoperative findings. During the procedure, the surgical team encountered significant adhesions in the operative field, including adhesions between the left fallopian tube and the sigmoid colon. The team also encountered a perforation of the uterine fundus caused by the uterine manipulator (an instrument used to mobilize the uterus during the dissection). These intraoperative findings were documented.

The completion of the surgery. At the conclusion of the procedure, the surgical team performed standard end-of-case checks for hemostasis (bleeding control), visualization, and irrigation. These checks are routine and do not specifically address the bowel surface. The procedure was completed without any documented finding of bowel injury.

The immediate post-operative period. Dr. Kives told the patient’s sister after the surgery that it had been a “textbook” procedure. The patient was admitted overnight for routine post-operative monitoring.

The discharge on July 21. On the morning of July 21, the patient was assessed by a nurse and a surgical resident. She had not yet passed gas or had a bowel movement (an expected finding in the immediate post-operative period). She had nausea and vomited her breakfast. The nurse and resident attributed the nausea to a common reaction to the general anaesthetic. The patient was cleared for discharge.

The journey home. The patient’s sister and brother-in-law drove her home from the hospital to Scarborough. They stopped en route at a restaurant; the patient was unwell and did not eat. She was driven to her apartment, where she remained unwell through the day.

The emergency presentation. In the middle of the night following the discharge, the patient developed chest pain. She called 911. An ambulance transported her to Scarborough General Hospital. She was assessed by the on-call general surgeon as being in critical condition. The clinical picture was consistent with bowel perforation and peritonitis.

The emergency surgery. The general surgeon recommended emergency surgical intervention. The patient’s family consented. The procedure revealed a perforated sigmoid colon, fecal contamination of the abdominal cavity, and an intra-abdominal abscess. The general surgeon drained the abscess, resected the affected segment of bowel, and created a colostomy to divert the fecal stream. The operative report described the perforation as “quite large” and approximately 2 centimetres in diameter.

The recovery course. The patient spent weeks in intensive care. She required five additional surgical procedures arising from the bowel perforation. After Scarborough General Hospital, she was transferred to Providence Healthcare for inpatient rehabilitation. She was discharged home on October 24, 2015, approximately three months after the original surgery.

The action. The patient brought a malpractice action against Dr. Kives. The patient’s case was that the bowel perforation was caused intraoperatively during the laparoscopic hysterectomy and that the standard of care required Dr. Kives to inspect for and recognize the injury before closing. The defence position was that the bowel perforation either did not occur during the original surgery or, if it did, could not have been recognized through the inspection that the standard of care required. Damages were settled prior to trial. The trial proceeded on standard of care and causation only.

The legal framework — when did the injury occur?

The first question for the trial judge was the timing of the bowel injury. The plaintiff’s case required proof that the injury occurred during the original July 20 surgery. The defence position included the possibility that the injury occurred at some other point in the clinical course.

The trial judge made three principal factual findings on timing:

1. The injury occurred during the July 20 surgery. The temporal proximity of the post-operative deterioration (within 36 hours), the absence of any other plausible mechanism in the intervening period, and the operative findings at the emergency surgery all supported intraoperative origin. The trial judge accepted this on the balance of probabilities.
2. The injury most likely occurred when Dr. Kives was cutting adhesions between the left fallopian tube and the sigmoid colon. This was the specific operative step at which the bowel was most exposed to inadvertent injury. The alternative mechanism (the perforation of the uterine fundus by the uterine manipulator producing a secondary injury to the bowel) was less likely but possible.
3. The injury was 1 to 2 centimetres in size, consistent with the general surgeon’s documented operative finding. The injury was sufficiently large to be visible and amenable to intraoperative repair if it had been recognized. The trial judge accepted the general surgeon’s contemporaneous operative report over any contrary characterization.

The findings on timing were essential to the subsequent SOC analysis. If the injury had occurred during the surgery and had been of sufficient size to be detectable on careful inspection, then the inspection that the SOC required would have found it. The remaining question was whether that inspection had actually been performed.

The legal framework — the standard of care

The standard of care analysis proceeded in two principal components.

Component 1: The duty to re-inspect after dissection of adhesions involving the bowel. Both sides’ experts agreed on the substance of this duty. The agreed framework:

• Bowel injury is a known and serious risk in gynecologic surgery
• Every gynecologic surgeon is expected to be aware of this risk
• Where significant adhesions involving the bowel have been encountered and dissected, the standard of care requires the surgeon to re-examine the area carefully at the end of the case and to document that no injuries were sustained
• The re-examination must be done specifically to look for occult injury; it is not satisfied by the standard end-of-case checks for hemostasis and visualization, because those checks address different clinical questions
• The documentation step is part of the standard; the surgeon must record both the inspection and the findings

The expert agreement is doctrinally important. Where both the plaintiff’s and the defence’s experts agree on the content of the standard of care, the legal question becomes purely whether the conduct in fact met that standard. The case turns on the factual analysis of what was done, not on a contest over what should have been done.

Component 2: Whether Dr. Kives in fact performed the required inspection. The trial judge found that Dr. Kives had not adequately inspected the bowel after dissecting the adhesions. The findings supporting this conclusion:

• No documentation. Despite having identified the significant adhesions in the operative field, Dr. Kives did not document a return to that area or an inspection for injury. The documentation step that the SOC required was not performed.
• The inspection was not part of standard hemostasis checking. The defence position was that the routine end-of-case checks captured any clinically significant injury. The trial judge rejected this. The standard hemostasis and visualization checks are designed for different clinical questions and do not substitute for the targeted inspection that the SOC required.
• Discovery testimony contradicted in-chief testimony. The most decisive finding on this component. At discovery (the pre-trial examination of the defendant under oath), Dr. Kives testified that she did not inspect the entire sigmoid colon, only the portion close to the colpotomy (the surgical site near the cervix). At trial, her testimony in chief was that she did inspect the area where she had taken down the adhesions. On cross-examination, she agreed that her discovery evidence was accurate and true. The two accounts could not both be correct. The trial judge accepted the discovery account: Dr. Kives had not inspected the area of the adhesion dissection.

The alternative argument. The plaintiff advanced an alternative argument that even if the trial judge had accepted the in-chief account (that Dr. Kives had looked at the adhesion area), Dr. Kives had still fallen 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 four additional risk factors that would have required this further step:

1. The significant adhesions encountered
2. The perforation of the uterine fundus by the uterine manipulator (an event itself associated with risk of adjacent injury)
3. The patient’s body fat (which can obscure the operative view)
4. The documented epiploica on the bowel (small fatty appendages on the sigmoid colon that can obscure the bowel surface and that require manipulation for adequate inspection)

The alternative argument provided an independent basis for the SOC finding. Even taking the defendant’s account at its highest, the standard required more than was done.

The trial judge accordingly found the standard of care breached on the principal basis (no adequate inspection) and on the alternative basis (no adequate manipulation).

The legal framework — causation

The causation analysis followed directly from the SOC findings. The reasoning, distilled:

• The injury existed at the close of the original surgery (the trial judge’s first finding on timing)
• The injury was 1 to 2 centimetres in size and was visible on careful inspection (the trial judge’s third finding on timing)
• The inspection that the SOC required would have found it (the trial judge’s first SOC finding)
• Had the injury been found, it would have been repaired (the expert evidence on intraoperative repair of recognized bowel injuries)
• The emergency surgery, the fecal peritonitis, the sepsis, the bowel resection, the colostomy, the prolonged hospitalization, and the subsequent surgical procedures all flowed from the unrecognized injury rather than from any unavoidable consequence of the original procedure
• But-for the failure to inspect, the cascade of harm would not have occurred

The causation analysis is clean. The “but-for” framework from Clements v Clements, 2012 SCC 32, is straightforwardly satisfied. The injury was caused by the failure to detect, not by the original creation of the perforation (which was a recognized risk of the procedure). The legal causation runs through the inspection step.

The doctrinal anchors

Several doctrinal anchors emerge from the case.

The duty to inspect framework. The standard of care for a surgical procedure includes a duty to inspect for occult injury at the conclusion of the procedure, particularly where the operative findings or the procedure type involve recognized risks of injury to adjacent structures. The duty is engaged whenever:

• The procedure involves dissection in a region where adjacent structures are at risk
• The operative findings (adhesions, anatomic variants, prior surgery effects) elevate the risk
• The patient-specific factors (body habitus, anatomy) elevate the risk
• The consequences of missed injury are catastrophic

The framework is generalizable beyond gynecologic surgery. It applies to any surgical setting where the conditions are met: laparoscopic abdominal surgery generally, orthopedic procedures involving major neurovascular structures, ENT procedures involving adjacent cranial nerves, and others.

The documentation requirement. The duty to inspect includes a duty to document the inspection and the findings. The trial judge found that Dr. Kives had not documented a return to the adhesion area or an inspection for injury. The absence of documentation was treated as evidence that the inspection had not been performed. The principle parallels the framework from Barker v Montfort Hospital, 2007 ONCA 282 (adverse inference from inadequate records): where the documentation step that the standard requires is absent, the absence supports an inference that the underlying conduct was also absent.

The known and serious risk framework. The standard of care responds to the known risks of the procedure. Bowel injury in gynecologic surgery is a recognized risk; the SOC requires vigilance commensurate with that risk. The framework operates more generally: where a risk is well-documented in the surgical literature and the consequences are severe, the inspection and detection obligations of the surgeon are elevated. The principle applies to vascular injury in laparoscopic surgery, nerve injury in orthopedic surgery, and other recognized complication patterns.

The risk-stratification framework. Where patient-specific or operative-specific factors elevate the baseline risk, the inspection obligations are elevated correspondingly. Ms. Szeto had four such factors (adhesions, fundus perforation, body fat, epiploica). The cumulative effect was to require more than the baseline inspection that the SOC would otherwise require. The framework supports the alternative argument that even if Dr. Kives had performed the routine inspection, more was required given the specific clinical context.

The expert agreement on SOC framework. Where both sides’ experts agree on the content of the standard of care, the case is structurally easier for the plaintiff because the legal question collapses to whether the conduct met the agreed standard. The framework parallels the Brown v Meaney treatment of common practice: where expert consensus exists on what should be done, the surgeon must do it.

The discovery-versus-trial testimony contradiction framework. A defendant physician whose discovery testimony contradicts their in-chief trial testimony faces a credibility problem. The trial judge in Szeto explicitly preferred the discovery account over the in-chief account. The framework is well-established in Canadian civil litigation: a witness whose testimony has materially changed between discovery and trial is subject to impeachment, and the trial judge can choose between the two accounts. Defendant physicians who provide one account at discovery and a different (more favourable) account at trial should expect the trier of fact to question why the account changed.

The operative findings as evidence over recollection. The trial judge accepted the operative report of the emergency general surgeon (1 to 2 centimetre perforation) as the authoritative description of the injury. Contemporaneous operative findings produced by an independent surgeon assessing the same anatomy provide some of the most reliable evidence available in surgical malpractice cases. The framework operates whenever a subsequent procedure provides direct observation of the consequences of the original procedure.

The post-operative timing as evidence of intraoperative origin. The clinical course (apparent recovery for 12 to 36 hours, then escalating sepsis) is the characteristic pattern of unrecognized intraoperative bowel injury. Where this clinical pattern is documented, the inference of intraoperative origin is strong. The framework is generalizable to other delayed-presentation complications of surgery: the timing of the deterioration relative to the procedure is an important diagnostic and evidentiary feature.

The surgical error context

A few observations about surgical error cases generally.

The “recognized risk” doctrine. A patient who consents to a surgical procedure consents to its recognized risks. Where an injury occurs that falls within the recognized risk profile of the procedure, the occurrence itself is not negligence. The legal analysis turns on whether the surgeon’s conduct met the SOC in performing the procedure, in detecting any injury that did occur, and in responding to that injury appropriately. Szeto v Kives is doctrinally important because it makes explicit that the SOC analysis can succeed even when the injury itself was a recognized risk: the breach is in the detection step, not in the original mechanism.

The “known complication” framing in defence cases. Defendant surgeons in malpractice cases often emphasize that the injury is a known complication of the procedure, with the implication that the occurrence is not actionable. The framing is incomplete. A known complication that should have been detected and was not is actionable on the detection failure. A known complication that should have been managed differently and was not is actionable on the management failure. The “known complication” framing addresses the original cause but does not displace the detection or management obligations.

The teaching hospital context. Szeto v Kives involved a teaching hospital with the surgeon assisted by a resident and a fellow. The trainee involvement does not relieve the operating surgeon of the standard of care responsibilities. The Supreme Court of Canada’s framework on specialist responsibility (Wilson v Swanson, [1956] SCR 804) applies to the operating surgeon. Trainees operate under the surgeon’s supervision and the surgeon retains the accountability for the conduct of the procedure.

The surgical specialty SOC. The standard for a surgical specialist is the standard of an average competent practitioner of that specialty (Wilson v Swanson; ter Neuzen v Korn, [1995] 3 SCR 674). The standard is not the standard of a particularly excellent or particularly experienced surgeon; it is the standard of the average specialist. The framework applies to Szeto v Kives: the question was whether Dr. Kives’s conduct met the standard of an average competent gynecologic surgeon faced with the clinical situation, not whether some hypothetical exceptional surgeon would have done differently.

Why this case matters

For patients considering similar cases. A few practical points emerge from Szeto v Kives.

The recognized risk is not a complete defence. Patients are sometimes told after a surgical injury that the complication was a known risk and therefore not negligent. The framing is incomplete. Whether the complication was a known risk addresses the original mechanism but does not address the surgeon’s obligations to detect and respond to the injury. A recognized risk that should have been detected and was not is actionable. A recognized risk that should have been managed differently and was not is actionable. The case evaluation must look at all three steps: was the original injury within the recognized risk profile; was the inspection that the SOC required performed; was the response to the injury appropriate.

Documentation is part of the standard. Where the SOC requires a specific clinical step, it typically also requires documentation of that step. The chart is part of the standard, not just a record of what happened. A surgeon who performed the step but did not document it faces an evidentiary problem; a surgeon who neither performed the step nor documented it faces a worse one.

The discovery process matters. Defendant physicians are examined under oath at discovery. The discovery transcript is admissible at trial. A defendant whose discovery testimony is unfavourable cannot simply provide a more favourable version at trial; the inconsistency will be put to them, and the trial judge will choose between the two accounts. The discovery testimony is often more reliable because it is closer in time to the events and is given without the trial-preparation refinement that can affect later testimony.

For more on the general framework for evaluating surgical malpractice cases, see Suing for Medical Malpractice in Ontario: What You Need to Know and the firm’s surgical error practice page.

For surgeons and surgical teams. A few practical observations.

The inspection step is not optional. Where the operative findings or the procedure type engage the recognized risk of injury to adjacent structures, the post-dissection inspection is required by the SOC. The routine end-of-case hemostasis check is not a substitute. The inspection must be targeted to the specific risk identified during the procedure.

Document the inspection and the findings. A note that records the return to the adhesion area, the inspection performed, the structures examined, and the findings (positive or negative) is part of the standard. A standard “uncomplicated” note is not sufficient where the operative findings included specific risk factors.

Manipulate the bowel where the risk factors require it. Static inspection from a fixed laparoscopic view may not be sufficient in the presence of obscuring factors (epiploica, body habitus, retracted anatomy). Where these are present, active manipulation of the bowel is required to expose the surfaces that need to be inspected.

The trainee structure does not redistribute accountability. Residents and fellows operate under the operating surgeon’s supervision. The accountability for the conduct of the procedure remains with the operating surgeon. The presence of trainees does not relieve the surgeon of the standard of care responsibilities.

Cluster integration

The plaintiff-success cluster (expanded):

• Kotorashvili v Lee (orthopedic, administrative-clinical workflow)
• Henry v Zaitlen (delayed referral)
• Denman v Sabapathy (informed consent)
• Hemmings v Peng (obstetric anaesthetic)
• Hasan v Trillium Health Centre (stroke; Snell framework)
• Gumbley v Vasiliou (asthma intubation delay)
• Dallner v Gladwell (orthopedic brachial plexus injury)
• Brown v Meaney (pediatric PDE)
• Szeto v Kives (gynecologic surgery — bowel injury)

Nine plaintiff-success cases now anchor the cluster.

The duty to inspect framework (new for the cluster):

• Szeto v Kives is the principal cluster authority
• Generalizable to laparoscopic abdominal surgery, orthopedic procedures, ENT procedures, any surgical setting with recognized risk to adjacent structures

The documentation framework (expanded):

• Barker v Montfort Hospital, 2007 ONCA 282 (foundational authority on adverse inferences from inadequate records)
• Szeto v Kives (application — absent documentation supports inference that the underlying conduct was absent)

The expert agreement on SOC framework (new cluster anchor):

• Szeto v Kives (gynecologic surgery — duty to inspect)
• Brown v Meaney (pediatric neurology — pyridoxine for PDE)
• Pattern: where both sides’ experts agree on the standard, the case turns on the factual question of whether the conduct met the standard

The discovery-versus-trial testimony contradiction framework (new cluster anchor):

• Szeto v Kives is the principal cluster authority
• Doctrinal point: defendant physicians whose discovery testimony contradicts trial testimony face credibility problems that can affect the SOC analysis

The gynecologic surgery / laparoscopic complications / iatrogenic bowel injury practice area (new for the cluster):

• Szeto v Kives is the principal cluster authority
• Distinct from the existing surgical error and birth injury clusters

The “recognized risk does not displace detection obligations” framework:

• Szeto v Kives is the cluster’s clearest articulation
• Applies generally to all surgical specialties where recognized complications exist

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Decision Date: December 31, 2024

Jurisdiction: Ontario Superior Court of Justice

Citation: Szeto v Kives, 2024 ONSC 7258 (CanLII)

Trial Judge: Justice Leiper

Outcome: Plaintiff trial win on liability. Damages settled prior to trial. The trial judge found that the defendant gynecologic surgeon breached the standard of care during a laparoscopic hysterectomy performed at St. Michael’s Hospital on July 20, 2015, by failing to perform an adequate inspection of the bowel area at the conclusion of the procedure after dissecting significant adhesions involving the sigmoid colon. The injury (a 1 to 2 centimetre perforation of the sigmoid colon) occurred during the original surgery, was of sufficient size to be visible on careful inspection, and would have been detectable had the inspection that the standard of care required been performed. Causation was established: had the injury been found intraoperatively, it would have been repaired, and the subsequent fecal peritonitis, sepsis, emergency surgery, bowel resection, colostomy, and prolonged hospitalization would have been avoided. The trial judge’s credibility findings were supported by a contradiction between the defendant’s discovery testimony (that she did not inspect the entire sigmoid colon) and her trial in-chief testimony (that she did look at the area of the adhesion dissection); the discovery testimony was preferred.

Key authorities (implicit in the analysis): Wilson v Swanson, [1956] SCR 804 (standard for surgical specialists); ter Neuzen v Korn, [1995] 3 SCR 674 (specialist standard; common practice as defence bounded by “fraught with obvious risk” qualifier); Clements v Clements, 2012 SCC 32 (but-for causation); Barker v Montfort Hospital, 2007 ONCA 282 (adverse inference from inadequate records).