On December 11, 2020, the Honourable Justice Arthur Gans released his decision finding in favour of the Plaintiff in Boutcher v Cha[1], a medical malpractice judge-alone case conducted virtually. Richard Bogoroch, Toby Samson, and Kristina Maitland acted for the Plaintiff, Ms. Boutcher.
The Plaintiff underwent a laparoscopic-assisted vaginal hysterectomy (“LAVH”) performed by the Defendant gynecologist. The parties agreed in advance of trial that the Defendant inadvertently placed sutures during the final stages of the LAVH that were found to have gone through the Plaintiff’s vaginal cuff and into her bladder, ultimately causing a fistula. As a result, the single issue at trial was whether the placement of the sutures into the bladder resulted from a breach of the Defendant doctor’s standard of care or a result of non-negligent medical misadventure.[2]
The Plaintiff’s position was that the Defendant doctor breached the standard of care by failing to adequately mobilize the bladder to accommodate her suturing technique, thereby causing her to suture through the bladder while closing the vaginal cuff. The Plaintiff’s expert testified that, after ruling out other potential causes of the sutures being placed in the bladder, such as abnormal anatomy or previous surgeries, inadequate mobilization of the bladder, which the Plaintiff’s expert opined was a breach of the standard of care, was the only reasonable explanation for the placement of the sutures into the bladder.[3]
Neither the Defendant doctor nor the Defendant’s expert was able to provide an alternative explanation for how the sutures came to be placed through the bladder.[4] Notably, the Defendant’s expert acknowledged that the sutures might have been placed into the bladder due to inadequate bladder mobilization.
The Defendant cited the Ontario Court of Appeal case, Armstrong v Royal Victoria Hospital for the proposition that negligence can only be found if all non-negligent causes have been considered and ruled out.[5] The Defendant argued that the Plaintiff failed to address all potential non-negligent causes, thereby prohibiting a finding of negligence. In response to this submission, Justice Gans held that, in Armstrong, there were alternative, non-negligent, theories for how the injury occurred, whereas, in this case, the Defendant did not provide any alternative theory for how the injury occurred.
Justice Gans cited a line of jurisprudence in support of the proposition that the Plaintiff can raise a prima facie inference of negligence based on circumstantial evidence, which the Defendant is then required to negate by offering an alternative explanation of equal or greater weight.[6] Based on the evidence presented, Justice Gans found that the Plaintiff had made out a prima facie inference of negligence, which the Defendant failed to rebut.[7] As a result, Justice Gans concluded that the Defendant breached the standard of care by failing to sufficiently mobilize the bladder, resulting in the placement of sutures through the vagina and into the bladder.
The Defendant has filed a Notice of Appeal. However, the Supreme Court of Canada has recently overturned the Ontario Court of Appeal’s decision in Armstrong, upholding the minority opinion. As a result, it will be interesting to see how the Court of Appeal will resolve this case.
[1] Boutcher v Cha, 2020 ONSC 7694 [Boutcher].
[2] Boutcher, ibid at paras 6 and 7.
[3] Boutcher, supra note 1 at para 42.
[4] Boutcher, supra note 1 at para 47.
[5] Armstrong v Royal Victoria Hospital, 2019 ONCA 963 [Armstrong] at para 56.
[6] Boutcher, supra note 1 at para 50.
[7] Boutcher, supra note 1 at paras 51 and 52.
