Paniccia Estate v Toal, 2011 ABQB 326

Court of Queen ’ s Bench of Alberta Citation: Paniccia Estate v Toal, 2011 ABQB 326 Date: 20110729 Docket: 1003 07117 Registry: Edmonton Between: Angela Paniccia, as Executrix for the Estate of Lino Paniccia for the Benefit of the Estate of Lino Paniccia, Angela Paniccia, Danny Paniccia, Melissa Paniccia, Selena Waugh, Jason Paniccia, and Her Majesty the Queen in Right of Alberta Plaintiffs - and - Dr.

Stephen Toal Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. BACKGROUND..................................................................................................... Page: 3

A. The Plaintiffs............................................................................................... Page: 4 B. The Defendant............................................................................................ Page: 4 C. Dyspepsia Identified as Gastric Cancer................................................. Page: 5 D. Gastric Cancer Treatment......................................................................... Page: 7 II. ISSUES................................................................................................................... Page: 7 A.

Duty of Care................................................................................................ Page: 8 B. Calculation of Damages............................................................................ Page: 8 C. Remaining Issues....................................................................................... Page: 8 III. LAW......................................................................................................................... Page: 9 A. Standard of Care....................................................................................... Page: 9 1.

Treatment and Diagnosis.............................................................. Page: 9 2. Informed Consent......................................................................... Page: 11 B. Injury........................................................................................................... Page: 12 C. Causation................................................................................................. Page: 12 IV. FACTS.................................................................................................................. Page: 13 A.

Experts...................................................................................................... Page: 13 1. Plaintiffs’ Experts......................................................................... Page: 13 2. Defendant’s Experts.................................................................... Page: 14 B. Medical Considerations.......................................................................... Page: 14 1. Stomach Pain and Discomfort................................................... Page: 14 2. Diffuse Gastric Cancer................................................................

Page: 15 3. Gastric Cancer Treatment.......................................................... Page: 15 C. Known and Accepted Facts................................................................... Page: 15 V. STANDARD OF CARE...................................................................................... Page: 17 A. The Parties’ Submissions....................................................................... Page: 17 B. The Alleged Negligence.......................................................................... Page: 18 C.

Expert Testimony..................................................................................... Page: 19 1. Dr. Flook....................................................................................... Page: 19 2. Dr. Thomson................................................................................. Page: 20 D. Analysis - Standard of Care................................................................... Page: 21 1. Duty to Investigate Serious Differential Diagnoses................. Page: 22 2. Duty to Inform of Low Probability but Life Threatening Potential Diagnoses Page: 23 E.

Conclusion................................................................................................ Page: 24

VI. INJURY AND CAUSATION................................................................................. Page: 25 A. Would Proper Disclosure have led to Different Treatment?............... Page: 25 B. Would Correct Investigation of the Dyspepsia Have Affected the Gastric Cancer’s Progression?............................................................................................ Page: 26 1. Preliminary Issues........................................................................ Page: 26 2. The Source of the Dyspepsia Symptoms................................. Page: 27 3.

Could the Diffuse Gastric Cancer have been Detected at an Earlier Time? Page: 28 a. Dr. Wong........................................................................... Page: 29 b. Dr. Williams...................................................................... Page: 29 c. Dr. Gill............................................................................... Page: 29 d. Analysis - Probability of Cancer Detection by Gastroscopy Page: 29 e. Conclusion........................................................................ Page: 30 4. Would Earlier Detection of the Gastric Cancer have Affected Mr.

Paniccia’s Life Expectancy?................................................................................. Page: 30 a. When Would Mr. Paniccia undergo Gastroscopy?...... Page: 31 i. Post-Barium Swallow Diagnostic and Treatment Steps Page: 31 ii. Time Required to Obtain Gastroscopic Examination Page: 32 (

a) Dr. McDermid........................................... Page: 32 (

b) Dr. Flook................................................... Page: 33 (

c) Dr. Williams.............................................. Page: 33 (

d) Dr. Gill....................................................... Page: 34 (

e) Dr. Thomson............................................. Page: 34 (

f) Dr. Dowden.............................................. Page: 34 (

g) Dr. Mackie................................................ Page: 35 (

h) Dr. Wong................................................... Page: 35 (

i) Analysis - Delay Prior to Gastroscopy... Page: 35 (

j) Conclusion - Delay Prior to Gastroscopy Page: 37 C. The Probable Result if Mr. Paniccia Was Diagnosed and Treated for Diffuse Gastric Cancer in January 2009............................................................................................ Page: 37 1. Relevant Cancer Characteristics............................................... Page: 37 a. Diffuse Gastric Cancer.................................................... Page: 38 b. Chemotherapy Resistence............................................. Page: 38 c. Signet Ring Cells............................................................. Page: 38 2.

The State of Mr. Paniccia’s Diffuse Gastric Cancer in January 2009 Page: 39 a. Dr. Gill............................................................................... Page: 39 b. Dr. Dowden...................................................................... Page: 40 c. Dr. Mackie........................................................................ Page: 40 d. Conclusion - the Cancer’s State in Early January 2009 Page: 41 3. Life Expectancy for a Patient with Diffuse Gastric Cancer Spread to One to Six Lymph Nodes............................................................................................

Page: 41

D. Conclusion................................................................................................ Page: 42 VII. DAMAGE QUANTUM FACTORS..................................................................... Page: 42 A. Life Expectancy........................................................................................ Page: 42 B. Other Quantum Factors........................................................................... Page: 43 VII. COSTS................................................................................................................. Page: 43 I.

BACKGROUND [ 1 ] Many of the facts related to this medical malpractice action are not in dispute. A. The Plaintiffs [ 2 ] Mr. Paniccia was born on July 20, 1950 and his widow, Mrs. Angela Paniccia, was born on [...], 1954. The Paniccias married on October 2, 1971, had four children between 1972 and 1983, and remained married at the time of Mr. Paniccia’s death. [ 3 ] Mr. Paniccia was trained as a welder in Italy prior to his immigration to Canada in 1966. He first worked in that profession in Canada in 1967. In the early 1970’s Mr.

Paniccia obtained his first class journeyman’s certificate and interprovincial standard red seal in welding. [ 4 ] In approximately 1989 Mr. Paniccia sold his welding business and started a landscaping business with his brother-in-law. The Paniccias sold that business in August of 2007. [ 5 ] In May of 2008 Mr. Paniccia begun working for a home builder. He was laid off from that position on September 30, 2009. Although Mr. Paniccia understood that was a temporary layoff, he considered either applying for a job at a high school as a welding instructor or again starting his own welding business.

Neither alternative was pursued. Mr. Paniccia did not work again after September 30, 2009. [ 6 ] The parties agree: 1. apart from the gastric (stomach) cancer that caused his death, Mr. Paniccia did not have any health conditions which would have:

a) prevented him from working, carrying out his household duties, and daily living activities, and

b) impacted his normal lifespan; and 2. Mrs. Paniccia’s life expectancy is that of the average Canadian female.

[ 7 ] Danny Paniccia, Melissa Paniccia, Selena Waugh, and Jason Paniccia are the Paniccias’ four children. [ 8 ] Her Majesty the Queen in Right of Alberta advances a claim for the cost of health services, under the Hospitals Act , R.S.A. 2000, c. H 12. B. The Defendant [ 9 ] Dr. Toal is a qualified family medicine practitioner who, at all material times, was licensed to practice medicine in Alberta. Mr. Paniccia became his patient in April of 2000. It appears that Dr. Toal and Mr. Paniccia were comfortable with one another, enjoyed a very positive doctor-patient relationship, and held each other in high regard.

C. Dyspepsia Identified as Gastric Cancer [ 10 ] During six visits between March 24, 2008 and October 6, 2009, Mr. Paniccia discussed various medical issues and concerns with Dr. Toal, including dyspepsia (stomach pain). These were new symptoms; he had not experienced dyspepsia prior to March 24, 2008. As a result of these concerns, on March 24, 2008, Dr. Toal ordered a barium swallow x-ray, which was conducted on April 22, 2008. The resulting report, prepared on April 22, 2008 by Dr. M. Sin, read in part: The stomach is not fully distended for the examination.

There seems to be prominence (sic) mucosal folds in the stomach. There is poor visualization of the duodenal cap and loop in both the supine as well as the prone position. Pathology in the duodenal cap and loop therefore has not been excluded. The prominent mucosal folds could be related to poor distention of the stomach but can also be related to abnormality such as infiltration due to gastritis and less likely an infiltrative process .

SUMMARY: Prominent mucosal folds seen in the stomach that needs to be interpreted in light of other clinical findings. Sub-optimal visualization of the duodenal cap and loop. If there is further concern endoscopy could be arranged. [Emphasis added.] [ 11 ] “An infiltrative process” means cancer. [ 12 ] On April 29, 2008, Mr. Paniccia attended with Dr. Toal to receive the test results. Dr. Toal diagnosed gastritis (irritation and inflammation of the stomach lining) and prescribed a proton pump inhibitor (“PPI”) trial of Pantoloc for 60 days, with one refill for an additional 60 days.

This kind of drug reduces the acidity of the inside of the stomach. [ 13 ] Mr. Paniccia filled the prescription on May 3, 2008. On August 5, 2008, Dr. Toal’s office received a fax from a Penticton pharmacy requesting a refill for Pantoloc. Dr. Toal did not speak to Mr. Paniccia at this time but did prescribe a further 100 pills of Pantoloc on that date.

[ 14 ] Mr. Paniccia’s next visit with Dr. Toal was on December 30, 2008, at which time Dr. Toal ordered an ultrasound of Mr. Paniccia’s abdomen, further lab testing, and changed the PPI from Pantoloc to Pariet for 100 days with one refill. Mr. Paniccia went to receive the test results on January 5, 2009. He was advised that the results were normal. Mrs. Paniccia had accompanied Mr. Paniccia to this appointment because she was concerned that her husband had been in pain for several months and the problem continued. She wanted to discuss whether anything else could be done to help Mr. Paniccia. Dr.

Toal reassured them that it was gastritis and “nothing to worry about”. [ 15 ] Mr. Paniccia returned to see Dr. Toal on June 22, 2009, at which time the Pariet prescription was renewed. [ 16 ] On October 6, 2009, Mr. Paniccia advised that his symptoms had worsened. As a result, Dr. Toal referred him to a gastroenterologist, Dr. McDermid. Relevant portions of the referral letter state: Thanks for seeing this 59 year old for consideration of gastroscopy. He has had dyspepsia for about 12 - 18 months. He had a diagnosis of gastritis in april 2008 on ESD, and a normal ultrasound in dec. 2008.

He is a non-smoker, with rare alcohol. On exam he is tender over the epigastrium, nonicteric, no mass palpable. No ‘red flag’ symptoms. He felt better with Pariet until recently when his symptoms returned. Please assess and treat. [ 17 ] Mr. Paniccia saw Dr. McDermid on November 24, 2009, at which time Dr. McDermid ordered a gastroscopy. Dr. McDermid’s letter to Dr. Toal, reporting on the initial consult, confirmed her observation that Mr. Paniccia “was healthy” and “appeared well”. [ 18 ] In addition to reviewing his historic dyspepsia symptoms, general medical history and previous treatment by Dr.

Toal for the problem, Dr. McDermid confirmed Mr. Paniccia’s “ongoing abdominal symptoms despite adequate acid suppression”. Based on her discussions with Mr. and Mrs. Paniccia, Dr. McDermid suspected that a lot of his pain was related to stress. However, she felt that Mr. Paniccia warranted “a gastroscopy to rule out any inflammation, H. pylori, or infiltrative disease”. [ 19 ] The gastroscopy was performed on November 25, 2009, at which time Dr. McDermid diagnosed gastric cancer. The corresponding pathology report confirmed gastric cancer of the diffuse type. [ 20 ] When Dr. McDermid told Mrs.

Paniccia that her husband had cancer she was shocked because she had never realized and had never been told that cancer was even a possibility. This corresponds to Mr. Paniccia’s de bene esse evidence in which he confirmed that Dr. Toal had assured him that it was gastritis and not cancer. [ 21 ] The Paniccia’s understandings match the testimony of Dr. Toal. He testified that if Mr. Paniccia had asked about cancer he would have confirmed that the barium swallow test x-ray had not shown cancer because that was not what Dr. Toal was worried about. He confirmed that he probably would have reassured Mr.

Paniccia that he did not have cancer and, although he did not recall doing so, acknowledged that he may have told Mr. and Mrs. Paniccia that cancer had been ruled out as a possible explanation for Mr. Paniccia’s stomach pain. D. Gastric Cancer Treatment [ 22 ] After the gastric cancer was identified, further tests and investigations were performed to determine whether surgery was a viable method to address the condition. On December 10, 2009, Dr.

Struck performed a radical total gastrectomy with splenectomy (removal of the entire stomach and spleen) and radical retrotreitoneal lymph node dissection (removal of associated lymph nodes). Mr. Paniccia was discharged from the hospital on December 22, 2009. [ 23 ] He later met with Dr. Mulder, a medical oncologist at the Cross Cancer Institute, where he was advised that he had Stage IV metastric gastric adenocarcinoma of the stomach. As a result of additional tests, Dr. Mulder advised Mr. Paniccia that any treatment would be palliative in nature. Mr.

Paniccia decided he wanted to undergo palliative chemotherapy, this began in February of 2010. On

May 25, 2010 Mr. Paniccia was advised that no further chemotherapy treatment or other treatment options were available at the Cross Cancer Institute. As a result, Mr. Paniccia cashed in some of his RRSPs to pursue further treatment in California, which he continued until September 7, 2010. [ 24 ] On September 6, 2010 Mr. Paniccia entered hospital in Edmonton and on September 15 th was admitted to a palliative care unit, where he died on September 30. II. ISSUES [ 25 ] To be successful in this action the Plaintiffs must prove, on a balance of probabilities, that: 1. Dr. Toal owed Mr. Paniccia a duty of care, 2.

Dr. Toal breached the standard of care, 3. the Plaintiffs suffered an injury or loss, and 4. Dr. Toal’s actions were the actual and legal cause of the injury or loss. (E.I. Picard and G.B. Robertson, Legal Liability of Doctors and Hospitals in Canada , 4 th ed. (Toronto: Thompson Canadian Limited, 2007)). A. Duty of Care [ 26 ] That Dr. Toal owed Mr. Paniccia a duty of care is not in issue. The duty of care first arose when Dr. Toal agreed to become Mr. Paniccia’s family physician in April of 2000. They had an ongoing doctor/patient relationship from that date, and Dr. Toal treated him for a number of conditions.

The doctor/patient relationship and associated duty of care continued throughout the events in question. B. Calculation of Damages [ 27 ] The parties have also agreed that, if liability is established, I need not calculate the amount of damages, as they have entered into an Agreement regarding damages. That Agreement sets out the agreed amount of s. 7 and s. 8 damages under the Fatal Accidents Act , R.S.A. 2000, c. F-8 (“ FAA ”), as well as special damages. It also sets out various factors which were agreed between the parties as relevant to the determination of quantum.

In relation to damages, the parties confirm that I may restrict my findings of fact to the following questions: 1. Mr. Paniccia’s likely age of retirement; 2. when, if ever, Mr. Paniccia would have resumed employment and performance of his household services had the treatment of his cancer enabled him to return to employment or the performance of household services; and 3. Mr. Paniccia’s life expectancy given the nature of his diagnosis of cancer as described by the medical experts in the action.

[28] In addition, the Agreement sets out sample calculations for damages claimed, which calculations contain certain assumptions.The parties have agreed that I may determine that the evidence supports acceptance of one or any of the sample calculations as they are,or I may determine that some of the assumptions need to be changed. C. Remaining Issues [29] These agreements leave me with two remaining issues. First, I must decide if Dr. Toal breached the standard of care by either: 1. his diagnosis of gastritis and associated failure to investigate the possibility of gastric cancer, which led to Dr.

Toal not referringMr. Paniccia for further diagnostic investigation (specifically, a gastroscopy) following receipt of the inconclusive barium swallow x-rayreport; and 2. his failure to disclose the possibility that Mr. Paniccia had gastric cancer, either:

a) upon receipt of the barium swallow report, or

b) when directly asked by Mr. Paniccia. [30] If I find that Dr. Toal breached the standard of care, I must then determine whether that breach was the actual and legal causeof Mr. Paniccia’s injury or loss. III. LAW A. Standard of Care [31] A doctor or other medical professional may be liable in tort only when that medical professional does not conduct themself ina manner which meets a legal standard, the “standard of care”. A standard of care exists in all doctor/patient interactions, including themanner in which a patient is examined, diagnosed, and treated.

A medical professional may only treat a patient where that patientunderstands and consents to that treatment. 1. Treatment and Diagnosis [32] The standard of care required of a medical practitioner is well established. The physician must exercise the reasonable degreeof skill and knowledge which would reasonably be expected of a normal prudent practitioner of the same experience and standing, takinginto account their area of specialization: Wilson v.

Swanson, (SCC), [1956] S.C.R. 804, 5 D.L.R. (2d) 113. [33] Many of the central principles to judge alleged physician misconduct were established by Justice Sopinka in ter Neuzen v.Korn, (SCC), [1995] 3 S.C.R. 674 at 693, 127 D.L.R. (4th) 577: a physician to conduct his or her practice “... in accordance with the conduct of a prudent and diligent doctor in the samecircumstances.”: at 693;

“...when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to benegligent.”: at 695; “... the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at the time ofthe alleged act of negligence.”: at 693; and “... courts should be careful not to rely upon the perfect vision afforded by hindsight.

In order to evaluate a particular exercise ofjudgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. ...”: at693, quoting Lapointe v. Hôpital Le Gardeur, (SCC), [1992] 1 S.C.R. 351 at 362-63, 90 D.L.R. (4th) 7. [34] It is not appropriate to assess the conduct of a physician on the basis of the result for the patient: Wilson v. Swanson, at 124;Carlson v. Sutherland, 2006 BCCA 214 at para. 12, 225 B.C.A.C. 150; Kehler v. Myles (1986), (AB KB), 74 A.R.259, 48 Alta. L.R. (2d) 258 (Alta.

Q.B.), affirmed on other grounds 1988 ABCA 350 , 92 A.R. 345, 64 Alta. L.R. (2d) 97 (Alta.Q.A.), leave refused [1989] S.C.C.A. No. 84. [35] The Supreme Court of Canada, in Wilson v. Swanson at 812, makes clear that medical personnel are not held to an absoluteperfect standard, and should not be liable for a mere error of judgment: An error of judgment has long been distinguished from

an act of unskillfulness or carelessness or due to lack of knowledge. Althoughuniversally accepted procedures must be observed, they furnish little or no assistance in resolving such a predicament as faced thesurgeon here. In such a situation a decision must be made without delay based on limited known and unknown factors; and the honestand intelligent exercise of judgment has long been recognized as satisfying the professional obligation. [Emphasis added.] See also Keller (Next friend of) v.

Penkoske, 1999 ABQB 912 at para. 46, 256 A.R. 1, affirmed 2004 ABCA 4, 348 A.R. 54; O’Grady v.Stokes, 2005 ABQB 247 at paras. 113-114, 375 A.R. 109. [36] Where there is more than one reasonable course of action, a physician will not be in breach of the standard of care bychoosing to follow one of them: Keller (Next friend of) v. Penkoske, at paras. 273, 276-77; Kaban v. Sett (1993), (MB KB), 90 Man.R. (2d) 26, 43 A.C.W.S. (3d) 1015 (Man. Q.B.), affirmed (1994) (MB CA), 97 Man.R. (2d) 185,50 A.C.W.S. (3d) 908 (Man. C.A.), leave refused [1996] S.C.C.A.

No. 39. [37] Exercise of sufficient care and skill means physicians should take advantage of available resources, including texts, articlesand works in the particular field: Bergen Estate v. Sturgeon General Hospital District #100 (1984), 52 A.R. 161, 28 C.C.L.T. 155 (Alta.Q.B.).

Practice guidelines from professional bodies may be used as evidence of approved practices and expert evidence is admissible asto the intent and scope of such guidelines: Legal Liability of Doctors and Hospitals in Canada. [38] A misdiagnosis may be accepted as an indication of negligence where a physician fails to take advantage of reasonable tests,equipment or assistance that were available: Vail v. Fearon; MacDonald v.

Vail, (SCC), [1976] 2 S.C.R. 825, 66 D.L.R.(3d) 530. [39] The concept of differential diagnoses is a universally accepted rule of medicine which applies when a physician identifies anumber of possible diagnoses consistent with a patient’s symptoms. The application of this concept requires a systematic process ofelimination to arrive at a correct diagnosis: Legal Liability of Doctors and Hospitals in Canada. This process, and a physician’sresponsibilities in it, was reviewed in Scott v. Mohan; Crick v. Mohan (1993), (AB KB), 142 A.R. 281, 41A.C.W.S. (3d) 1148 (Alta.

Q.B.) [40] A key feature of the differential diagnosis process is the elimination of the most serious ailments first, rather than the most

probable (referred to as the “worst first principle”). Choosing a diagnostic process based on probability rather than severity isfundamentally flawed and negligent: Adair Estate v. Hamilton Health Sciences Corp., (ON SC), [2005] O.T.C. 399at paras. 116-117, 32 C.C.L.T. (3d) 283 (Ont. Sup. Ct. J.). Failing to consider the worst first principle and then failing to carry outappropriate tests to confirm or eliminate the worst of the potential diagnoses is not a mere error of judgment but, rather, a breach in thestandard of care: Adair Estate v.

Hamilton Health Sciences Corp., at para. 151; Strachan (Guardian ad litem of) v. Reynolds, 2004BCSC 915, 132 A.C.W.S. (3d) 589; Hughes v. Cooper Estate (1997), 36 C.C.L.T. (2d) 42 at para. 18, 71 A.C.W.S. (3d) 892 (B.C.S.C.). 2. Informed Consent [41] A medical professional may only treat once that medical professional has obtained informed consent. Informed consentrequires the patient understand the proposed treatment and its alternatives. Justice Yamauchi identified five kinds of information that apatient should receive in Dickson v.

Pinder, 2010 ABQB 269 at para. 68, 489 A.R. 54: 1. the medical practitioner’s diagnosis of the patient’s condition; 2. the prognosis of that condition with and without medical treatment; 3. the nature of the proposed medical treatment; 4. the risks associated with the proposed medical treatment; and 5. the alternatives to the proposed medical treatment, and the advantages and risks of those alternatives. [42] A risk should be disclosed where it is a material risk: Hopp v. Lepp, (SCC), [1980] 2 S.C.R. 192 at 210, 112D.L.R. (3d) 67; Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880 at 884-885, 114 D.L.R. (3d) 1.

Justice Cory inCiarlariello v. Schacter, (SCC), [1993] 2 S.C.R. 119 at para. 35 100 D.L.R. (4th) 609 reduced the question of materialrisk to a central principle; a relevant risk is a risk a patient would want to know: 35 In deciding whether a risk is material and therefore, one which should be explained to the patient, an objective approach should betaken. The crucial question in determining the issue is whether a reasonable person in the patient's position would want to know of therisk. [Emphasis added.] [43] Munir v. Jackson, [2006] O.J. No. 1671 (QL) at paras. 7, 148 A.C.W.S. (3d) 151 (Ont. Sup. Ct.

J.) provides a usefulrestatement of the material risk concept: 7 A surgeon must disclose the material risks to the patient. Material risks are risks that would influence a reasonable person in thepatient's situation in making a decision to consent or refuse consent to the treatment. A material risk includes a risk that is a merepossibility if the occurrence of the risk would have serious consequences ... [Italics in original]. [44] In this case, the Plaintiffs must establish that Dr.

Toal failed to meet the standard of care of an ordinary competent generalpractitioner in Edmonton, Alberta in 2008 and 2009, either by the manner in which Dr. Toal treated Mr. Paniccio, or how Dr. Toalexplained to Mr. Paniccio the diagnosis and treatment of his dyspepsia. B. Injury

[45] In Canada, an ‘injury’ includes a broad range of deleterious effects. The Alberta Court of Appeal, in Guest v. Bonderove &Co. (1988), 1988 ABCA 105 , 88 A.R. 277, 59 Alta. L.R. (2d) 86 at 88 (Alta. C.A.), said “[t]he broadest acceptable sense of theword "injury" is "interference with a right".” [46] Injury and loss are not the same. Rather, injury leads to loss. This dichotomy was described by Brenner C.J.B.C. in W.R.B. v.Plint, 2001 BCSC 997 at para. 364, 93 B.C.L.R. (3d) 228, varied on other grounds 2003 BCCA 671, 235 D.L.R. (4th) 60, affirmed 2005SCC 58, [2005] 3 S.C.R. 3: ...

"injury" refers to the initial physical or mental impairment of the plaintiff's person ..., while "loss" refers to the pecuniary ornon-pecuniary consequences of that impairment. In other words, the issue of causation applies both to considerations of establishingliability for a specific injury and to considerations of establishing damages for that injury. [47] In Alberta, the FAA provides for certain awards where negligence causes a death. However this legislation does not operatewhere there is negligence and as a result a person dies for a certain cause, but at an earlier rather than a later date.

This ‘premature death’is still an injury; the victim has a shortened life. C. Causation [48] In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, the Supreme Court of Canada addressed when negligencecauses an injury. The usual approach is to apply what is commonly called the ‘but for’ test; ‘but for the action or inaction of thedefendant, the plaintiff would not have been injured’ (paras. 21-22).

There is also a requirement that the negligence and injury beconnected: 23. ... compensation for negligent conduct should only be made “where a substantial connection between the injury and thedefendant’s conduct” is present.

It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very wellbe due to factors unconnected to the defendant and not the fault of anyone” ... [49] A second approach may be necessary where causation cannot be proved due to factors outside the plaintiff’s control; theplaintiff only need prove that the negligence ‘materially contributed’ to the injury (para. 25). This may arise, for example, where it isimpossible to prove causation due to “... current limits of scientific knowledge.” (para. 25). [50] In Mr.

Paniccia’s case there is no need to apply the ‘material contribution’ test. The relationship between the allegednegligence and the progression of Mr. Paniccia’s cancer is obvious and direct. If he had been diagnosed at an earlier point, the cancermight have been treated in a more effective manner. IV. FACTS [51] Both parties had experts testify to assist in understanding Dr. Toal’s duty to this patient, and to explain the possible treatmentand progression of the gastric cancer if it had been diagnosed at an earlier point. A. Experts 1. Plaintiffs’ Experts Dr. Nigel Flook - Dr.

Flook is an Edmonton area family physician. He assisted in preparation of the Toward Optimized Practice [“TOP”]guidelines for diagnosis of dyspepsia. He testified on the standard of care of a general practitioner in Alberta in responding to dyspepsia,and on the appropriate approach to diagnosis of a person with Mr. Paniccia’s conditions.

Dr. Sharlene Gill - Dr. Gill is a Vancouver, British Columbia oncologist with a specialization in gastrointestinal malignancies. She testified on the probable state and progression of Mr. Paniccia’s diffuse gastric cancer prior to its identification, and associated morbidity and mortality. Dr. Gill also commented on the appropriate approach to diagnosis and investigation of dyspepsia. Dr. Noel Williams - Dr. Williams is an Edmonton are specialist in internal medicine and gastroenterology. He testified on the appropriate steps to investigate dyspepsia and the timing and efficacy of a gastric endoscopy of Mr.

Paniccia prior to December 2009. 2. Defendant ’s Experts Dr. Mari-Lynn Thomson - Dr. Thomson is a Brooks, Alberta general practitioner, and was qualified as an expert in family medicine. She commented on family practitioner standards for diagnosis and investigation of dyspepsia, and on access to gastric endoscopy. Dr. William J. Mackie - Dr. Mackie is an Edmonton area surgeon who provides endoscopic services. He testified on the appropriate diagnosis and investigation of dyspepsia, the application and availability of gastroscopy, and the probable progression of Mr.

Paniccia’s gastric cancer prior to its identification in November 2009. Dr. Douglas Dowden - Dr. Dowden is an Edmonton oncologist who specializes in the treatment of gastrointestinal malignancies. He was qualified to testify on the probable progression and prognosis of Mr. Pannicia’s gastric cancer. Dr. Clarence K. W. Wong - Dr. Wong is a gastroenterologist who practices in Edmonton. He testified on the nature of gastric cancer, its progression, and the application of gastric endoscopy to Mr. Paniccia’s disease. B.

Medical Considerations [ 52 ] The experts commented in a generally consistent manner on the character of Mr. Paniccia’s cancer, other stomach disorders, and treatment of these conditions. 1. Stomach Pain and Discomfort [ 53 ] The parties’ medical experts agreed that stomach related pain and discomfort is a patient complaint very frequently encountered by family doctors. The term “dyspepsia” is used to describe discomfort associated with the upper gastrointestinal tract.

It involves a wide variety of symptoms, including esophageal irritation (“heartburn”), burping, belching, a sense of fullness, bloating, vomiting, and other local area discomfort. A wide variety of disorders have been identified as causing dyspepsia, including escape of stomach acids into the esophagus (“acid reflux”), ulcers caused by the bacterium Helicobacter pylori , irritation and inflamation of stomach lining tissues (gastritis), and stomach cancer.

Sometimes it appears that dyspepsia is simply a consequence of stress and/or certain foods. [ 54 ] Distinguishing among the various different possible causes of dyspepsia is a significant challenge for both general practitioners and medical specialists. 2. Diffuse Gastric Cancer [ 55 ] Medical experts testified on behalf of both the Plaintiffs and the Defendant on the nature and usual progression of diffuse gastric cancer. There is no dispute that Mr. Paniccia had diffuse gastric cancer and that cancer is what caused his death on September 30, 2010.

[ 56 ] Gastric cancer is unquestionably an extremely serious condition. The experts agreed that gastric cancer is typically fatal, and is usually only cured when detected and treated at an early stage. Gastric cancer is relatively infrequent in North America. Very few dyspepsia complaints are caused by gastric cancer. [ 57 ] Diffuse gastric cancer is the more aggressive form of gastric cancer, and less often successfully treated.

The experts agreed diffuse gastric cancer is less common and represents perhaps 20-30% of all gastric cancers. [ 58 ] Diffuse gastric cancer occurs in an internal layer of the stomach, the submucosa. This layer is between the mucosa, the innermost layer of the stomach, and the outer muscular parts of the stomach. In that way diffuse gastric cancer is not easily visible from either the inside or outside of the stomach. Diffuse gastric cancer spreads more efficiently in a ‘horizontal’ direction along the submucosa, rather than ‘vertically’ through the mucosa and stomach muscles.

The experts agreed this kind of cancer is difficult to detect and diagnose. 3. Gastric Cancer Treatment [ 59 ] The preferred response to gastric cancer is surgical removal of the stomach and any other tissues into which the cancer has spread. This was the response adopted following detection of Mr. Paniccia’s condition. Chemotherapy may also be used to help eliminate gastric cancer or to ameliorate cancer symptoms where a cure is unlikely or impossible. [ 60 ] When a cancer spreads from its original location it is said to have ‘metastasized’. A metastatic cancer can form ‘daughter’ tumours in new locations. Mr.

Paniccia’s cancer ultimately spread via metastasis into his stomach, spleen, liver, lymph nodes associated with the membranes that support abdominal organs, and onto the perineal membranes that line the abdominal cavity. C. Known and Accepted Facts [ 61 ] The medical experts and parties agree on many aspects of Mr. Paniccia’s condition and its progression: 1. Mr. Paniccia first complained to Dr. Toal of dyspepsia on March 24, 2008. That dyspepsia complaint was also a subject at Mr. Paniccia’s March 24, 2008, April 29, 2008, December 30, 2008, January 5, 2009, June 22, 2009, and October 6, 2009 visits. 2. Mr.

Paniccia underwent a barium swallow and x-ray on April 22, 2008. The report from that examination identified thickened folds in Mr. Paniccia’s stomach. Dr. Sin, the radiologist, concluded the most likely explanation of Mr. Paniccia’s discomfort was gastritis, though she indicated an infiltrative process was an alternative though less likely explanation for the observed condition. 3. Dr. Toal prescribed Mr. Paniccia with Pantoloc, a PPI, on April 29, 2008. That prescription was filled on May 3, 2008 and refilled on August 5, 2008. 4. On December 30, 2008 Mr. Paniccia was prescribed a different PPI, Pariet.

That prescription was renewed on June 22, 2009. 5. Mr. Paniccia’s stomach was examined by endoscopy on November 25, 2009. A large ulcerated mass was detected, and confirmed by biopsy as cancerous and of the diffuse type. 6. On November 26, Mr. Paniccia underwent a CT scan, and on December 2, 2009, he underwent a PET scan examination. Neither visualization technique identified any suspected metastatic tumours outside the stomach.

7. Mr. Panaccia underwent surgery on December 10, 2009 and had his stomach and spleen removed, and had his retroperitoneal lymph node dissected. 8. Post-surgical examination determined that the cancer had invaded the stomach visceral peritoneum, 19 of 22 lymph nodes, and parts of the lymphatic system including the momentum membranes. 9. Signet ring type cancer cells were identified in the cancer tissues. 10. On February 3, 2010 a CT scan detected further metastatic tumours in the areas where the stomach and spleen had been removed. 11. Mr. Paniccia underwent chemotherapy in February and March 2010. 12.

A CT scan on May 19, 2010 showed previously identified tumours had continued to grow. New tumours were also detected, including ones located in Mr. Paniccia’s liver. 13. Mr. Paniccia then underwent alternative cancer treatment at the Issel Clinic in Santa Barbara, California. 14. Mr. Paniccia died on September 30, 2010. [ 62 ] The post-operative analysis of Mr. Paniccia’s diffuse gastric cancer indicated it was in an advanced type, described medically as “Stage IV metastatic gastric adenocarcinoma”, in a T4N3(19/22)M1 state.

This acronym summarizes the state of the cancer in late 2009: T4 indicates the tumour has broken through the mucosal and muscle layers of the stomach, N3 indicates the cancer has spread to seven or more regional lymph nodes, in this case 19 of 22 nodes were affected, and M1 indicates cancer has spread (metastasized) to other parts of the body. [ 63 ] The experts agreed that successful treatment of a gastric cancer in this state was extremely unlikely. The chemotherapeutic treatment provided February and March of 2010 was intended for palliative purposes, to reduce suffering rather than achieve a cure.

The Plaintiffs do not allege any defect in that treatment or the December 2009 surgery. [ 64 ] Mr. Paniccia’s post-operative survival of 10 months until the end September 2010 therefore provides the baseline for comparison of life expectancy, and whether Mr. Paniccia was injured by not having been diagnosed with diffuse gastric cancer prior to November 25, 2009. V. STANDARD OF CARE A. The Parties ’ Submissions

[ 65 ] The Plaintiffs submit that Dr. Toal breached his standard of care in a number of ways: 1. when he failed to conduct or refer for necessary follow-up tests after receiving the inconclusive results of the barium swallow x- ray and instead diagnosed gastritis based on probabilities rather than the accepted practice of differential diagnosis; 2. by not advising Mr. Paniccia that the barium swallow had not ruled out cancer, instead Dr. Toal continued to reassure Mr. and Mrs. Paniccia that cancer was not the cause of Mr. Paniccia’s symptoms; Dr. Toal presented his diagnosis of gastritis to Mr.

Paniccia as if it were definitive and without doubt; and 3. by not following his own treatment plan, which was to consider an endoscopy if Mr. Paniccia’s symptoms persisted; according to the Plaintiffs, this also represented a failure to follow prescribed guidelines for general medical practitioners. [ 66 ] Dr. Toal submits that he met the standard of care in his treatment of Mr. Paniccia. He points out that, in analysing his conduct in relation to the standard of care, I must have regard to: 1. the clinical findings that he obtained through his history and physical examinations of Mr.

Paniccia; 2. ongoing information about his symptoms provided to him by Mr. Paniccia; 3. investigations and tests ordered by Dr. Toal and the results obtained from those investigations; 4. the nature of his long standing doctor/patient relationship with Mr. Paniccia; 5. Dr. Toal’s experience treating dyspepsia symptoms and gastric cancer; and 6. Dr. Toal’s experience with radiologists and his review of their reports of diagnostic investigations. [ 67 ] Furthermore, Dr. Toal disagrees with the Plaintiffs’ assertion that he had an obligation to tell Mr. Paniccia that he might have cancer. Dr.

Toal argues that the law of informed consent does not impose this obligation; only the obligation to advise a patient of the risks and benefits of any recommended treatment. Rather, Dr. Toal submits that, once a doctor comes to a well-reasoned diagnosis, he is not required to speculate to a patient that his diagnosis may not be right or to offer diagnostic options that the doctor does not believe are medically indicated, regardless of whether the patient specifically asks whether it might be something else (eg. cancer). [ 68 ] Dr.

Toal argues that even a gastroscopy, had he ordered one earlier, would not necessarily have excluded the possibility of gastric cancer. On this basis, he suggests that the Plaintiffs’ standard regarding disclosure has an absurd result, it would always require a family physician to tell a patient there is a chance the patient has gastric cancer, since no test can exclude this diagnosis with absolute certainty. He argues that this standard is not and should not be required of a family physician and is not what is required by law. B.

The Alleged Negligence [ 69 ] I conclude is that these alleged breaches can be reduced to and restated as two potential forms of negligent misconduct: whether, after receipt of the results of the barium swallow, Dr. Toal breached his duty of care:

1. as he lacked informed consent for his proposed post-barium swallow x-ray dyspepsia treatment plan as a consequence of his failure to disclose to Mr. Paniccia that gastric cancer was a potential explanation for the gastritis, and 2. by the steps he took to clarify the nature of Mr. Paniccia’s dyspepsia. [ 70 ] In short, I conclude that the first and third kinds of alleged negligent misconduct by Dr. Toal can be best subsumed into a single question: whether Dr. Toal was negligent in the manner in which he investigated Mr. Paniccia’s complaints. C.

Expert Testimony [ 71 ] Negligence by medical practitioners is, broadly, a comparison of the defendant against the standards and expected conduct of his peers: ter Neuzen , at 693. In that sense the evidence of medical experts is helpful to the court in assessing the alleged negligent misconduct. [ 72 ] Here, Dr. Flook, for the Plaintiffs, and Dr. Thomson, for Dr. Toal, disagreed as to whether or not Dr. Toal met the standard of care of an ordinary competent general practitioner in Edmonton, Alberta in 2008 and 2009. 1. Dr. Flook [ 73 ] Dr.

Flook acknowledged that gastric cancer is extremely rare in Canada and would rarely be encountered in a family practice. He also acknowledged that a barium x-ray was an acceptable investigative test when Mr. Paniccia initially presented with the symptoms he described to Dr. Toal, although in his opinion an endoscopy would have been the preferred investigative test. [ 74 ] However, it was his firm opinion that it was incumbent upon Dr. Toal to investigate further once the barium swallow x-ray reports came back from the radiologist and indicated the possibility of cancer (the “infiltrative process”). In Dr.

Toal’s opinion, the barium swallow test results led to the need for further investigations in two ways: it identified evidence of a potentially very serious explanation (ie. cancer) for Mr. Paniccia’s dyspepsia, and did not eliminate the possibility of that diagnosis. [ 75 ] Dr. Flook testified his opinion would have been different had the barium swallow x-ray report indicated that it was “normal”, but Dr. Flook disagreed with the suggestion that the report could have been interpreted in any way other than as an abnormal result.

He opined that he did not believe the test results could have been interpreted as normal by anyone. [ 76 ] Dr. Flook agreed that initial treatment of symptoms with a trial of PPI was reasonable pending further investigation and the determination of a definitive diagnosis. [ 77 ] Dr. Flook was of the further opinion that an average general medical practitioner has a duty to convey accurate

interpretation of test results to a patient. He opined that Dr. Toal should have explained to Mr. Paniccia the need for further investigation to rule out the more serious potential cause of his symptoms; that Mr. Paniccia needed to be told to return for followup in the fairly short term if symptoms persisted; and that Mr. Paniccia should have been advised to return even if there was apparent resolution but then the dyspepsia symptoms returned. [ 78 ] In short, Dr. Flook suggested a patient-centred approach, to inform the patient of all the possible explanations for the dyspepsia and provide the patient with potential warning criteria for a more serious outcome. 2. Dr. Thomson

[ 79 ] Dr. Thomson took a very different view of Dr. Toal’s conduct in this matter. She testified that Dr. Toal had taken Mr. Paniccia’s symptoms “seriously”; that Dr. Toal had gone “the extra step”; and that Dr. Toal had been “thorough”. [ 80 ] Dr. Thomson disagreed with Dr. Flook’s suggestion that Dr. Toal ought to have ordered an endoscopy at a much earlier point while dyspepsia was under investigation. Dr. Thomson pointed out that it is difficult to find a gastroenterologist who has time to see a referral.

Not only did she perceive that there was a considerable waiting list, she was concerned that it “takes up a lot of staff time trying to arrange a referral”. [ 81 ] Dr. Thomson indicated that she does on occasion refer patients for endoscopy, if a patient is showing “concerning signs of pathology”. She indicated that one of the factors she considers when determining whether to refer a patient to a gastroenterologist is her reputation; meaning she wants a “good referral, not a soft referral”.

She expressed her view that her reputation as a general practitioner is at stake when she makes a referral and that, in light of the finite resources available within the health care system, she acts responsibly when she only refers “good cases” with “hard findings”. In her opinion, she must pick her referrals carefully. She expressed the concern that a gastroenterologist might not accept referrals in the future if she bothered the specialist with a patient who was not experiencing serious symptoms. [ 82 ] In relation to the barium swallow x-ray report, Dr.

Thomson expressed the view that radiologists always give a long deferential diagnosis and list all possibilities. It was her experience that they never say there is no cancer. Therefore, she denied that the reference to the possibility of an infiltrative process would have heightened any concern about cancer in Mr. Paniccia’s case. She felt that, had the radiologist had a concern about cancer, the radiologist would have specifically pointed that concern out in the report and there would have been a recommendation for further investigation.

In her view, the report in this case did not do so; rather the radiologist was directing Dr. Toal to “put it all together” by viewing the x-ray results in light of his clinical observations. [ 83 ] Dr. Thomson indicated that she would never tell a patient he might have cancer, even where a specialist has indicated the possibility that cancer might be present in the patient’s body. Instead, Dr. Thomson would tell her patient that the patient had the most probable of the possible diagnoses. She opined that there was no need to advise a patient of the fact that serious conditions have not been eliminated.

She believed that to do so would unnecessarily worry a patient, particularly one like Mr. Paniccia who was already under stress. [ 84 ] She also expressed the view that in this case Dr. Toal had adopted an investigative and test strategy that was an appropriate way “to rule out” very worrisome conditions. She expressed the further view that where investigations have ruled out serious pathology, it is up to the patient to return if symptoms are not being managed. She therefore was of the opinion that it was not necessary for Dr. Toal to advise Mr. Paniccia to return for followup.

She also opined that it was appropriate for Dr. Toal to assume that Mr. Paniccia was improved and to accommodate Mr. Paniccia by renewing his prescription over the phone without any request for a followup appointment. [ 85 ] Dr. Thomson agreed that gastric cancer was on the differential diagnosis list and that it was the most serious of the possibilities. She was not clear on whether she was of the view that a physician is required to eliminate a serious potential diagnosis.

She did, however, express her view that it would overwhelm a gastroenterologist if the general practitioners ordered an endoscopy every time someone had heartburn. She was of the view that, even if cancer is on the differential diagnosis list, if it is a sufficiently rare occurrence then it is acceptable for a physician to go with the most probable diagnosis. Specifically, she was of the opinion that, since the radiologist indicated cancer as a less likely cause of Mr. Paniccia’s symptoms, Dr. Toal was free to conclude that Mr. Paniccia had gastritis because there were no alarm features, Mr.

Paniccia’s blood tests were good, and there was nothing else in Dr. Toal’s clinical findings to heighten the concern about gastric cancer. She believes that it was appropriate for Dr. Toal to rely on the radiologist, who had reported that there was a less likely probability that Mr. Paniccia’s symptoms were caused by cancer. D. Analysis - Standard of Care [ 86 ] One major focus of the submissions and evidence at trial were the application and relevance of a set of guidelines for the diagnosis and treatment of gastritis, the “TOP Guidelines”. [ 87 ] The Defendants argued that Dr.

Flook had a vested interest in these guidelines, which he had helped author, and that made

him defensive when challenged and unnecessarily critical of Dr. Toal’s treatment of Mr. Paniccia. The Defendants believe that his involvement in authoring the guidelines affected his perspective and impartiality, and caused him to elevate the standard of care beyond what would be required of an average prudent practitioner faced with Mr. Paniccia’s symptoms. [ 88 ] I do not find it necessary to further explore that evidence and those arguments to evaluate Dr. Toal’s negligence. I conclude that Dr. Toal’s negligence can be tested on two more general bases, whether Dr.

Toal breached his obligation: 1. to investigate and eliminate the most dangerous possible cause for his patient’s complaint, and 2. to obtain informed consent when he failed to disclose the possibility of a low-probability but life-threatening diagnosis (gastric cancer) to his patient. [ 89 ] I will address separately Dr. Toal’s actions in relation to these two issues. 1. Duty to Investigate Serious Differential Diagnoses [ 90 ] There is no doubt that one of the possible causes of Mr. Paniccia’s symptoms was gastric cancer.

All experts testified that gastric cancer is a very serious malady and emergence of that condition warrants a prompt and drastic medical response, surgical removal of most or all of the affected organ. [ 91 ] There is no dispute that the barium swallow’s results indicate gastric cancer was a part of the differential diagnosis. Clear evidence of potential gastric cancer emerged in the results of the barium swallow x-ray - that is, the radiologist identified gastric cancer as a possible diagnosis, albeit much less likely than gastritis.

There is no doubt, however, that the radiologist did not eliminate this most serious possible diagnosis. [ 92 ] Dr. Toal confirmed that he followed the differential diagnosis process, which requires him to first include all possibilities and then proceed to exclude the most serious possibilities first . He testified he understood that was his obligation. [ 93 ] Nevertheless, he inexplicably continued to maintain that the radiologist’s report from the barium swallow did not suggest cancer . Dr.

Toal testified that there was no indication that an endoscopy ought to have been done, presumably relying on the radiologist’s failure to recommend it. Yet Dr. Toal also testified that he knew the reference in the radiologist’s report to an infiltrative process was to cancer and acknowledged that the barium swallow report did not rule out that possibility. Unlike Dr. Thomson (but like Dr. Flook) Dr. Toal acknowledged that he has received many barium swallow reports from radiologists which indicate that “everything is normal”. Dr.

Sin’s report of her investigation clearly did not disclose a normal stomach. [ 94 ] In Dr. Toal’s case, I do not believe that his failure to refer earlier was driven in any way by his concern that he would harm his reputation if he did not send a “good referral”. Rather, Dr. Toal inappropriately eliminated the most serious of the possible diagnoses in the face of an expert report that indicated this as a possibility. He admits that.

This may have been due to the extreme rarity of this disease in Canada. [ 95 ] Whatever the cause, his failure to eliminate a potential and very serious diagnosis breached his standard of care; he did not follow the well established protocol that where there is a differential diagnosis a medical practitioner should evaluate the possible causes and then proceed to take reasonable steps to evaluate and eliminate the most serious potential causes. I therefore conclude that Dr. Toal did not meet the standard of care of a family doctor by his diagnosis and investigation of Mr. Paniccia’s condition. 2.

Duty to Inform of Low Probability but Life Threatening Potential Diagnoses

[96] The evidence is clear that Dr. Toal never disclosed to Mr. Paniccia that his dyspepsia may have been caused by gastriccancer. In the face of the barium swallow x-ray report he did not advise Mr. Paniccia of this alternative, not even when Mr. Paniccia, andlater Mrs. Paniccia, asked him directly if cancer was a possibility. Although Dr. Toal had no specific recollection, he believes he mayhave told Mr. Paniccia that cancer had been ruled out because in his mind it had been. [97] Dr.

Thomson testified that in her opinion a general practitioner has no obligation to disclose to a patient that they may havecancer. She believes that she and her peers have the right to ‘prune their reports’, by failing to mention potential diagnoses they view astoo worrisome. Dr. Thomson is incorrect on that point. [98] Patients control treatment. In Fleming v. Reid (1991), (ON CA), 4 O.R. (3d) 74 at 85, 82 D.L.R. (4th) 298(Ont. C.A.), endorsed in Ciarlariello v.

Schacter, (SCC), [1993] 2 S.C.R. 119 at para. 40, 100 D.L.R. (4th) 609, theOntario Court of Appeal described the patient’s right to control medical treatment: The right to determine what shall, or shall not, be done with one's own body, and to be free from non consensual medical treatment, is aright deeply rooted in our common law. This right underlies the doctrine of informed consent. ... The fact that serious risks orconsequences may result from a refusal of medical treatment does not vitiate the right of medical self determination. ...

It is the patient,not the doctor, who ultimately must decide if treatment — any treatment — is to be administered. [99] Nevertheless, patients depend on medical practitioners to guide their treatment. After the barium swallow and x-ray Dr. Toalpresented Mr. Paniccia with a plan of treatment, but did not disclose the admittedly slim but real possibility that Mr. Paniccia had gastriccancer. [100] I note here that the realistic possibility of gastric cancer nullifies a central argument by the Defendant. Dr.

Thomson argues, as Iunderstand it, that almost any patient complaint could be attributed to cancer, and that it would be absurd for a doctor to tack thatalternative diagnosis onto a list of possible causes. Perhaps so, but that absurdity evaporates when a medical professional has clearevidence that indicates cancer may be in play. [101] The Supreme Court of Canada has clearly identified a category of treatment risks that must always be disclosed, “special orunusual risks”: Hopp v. Lepp, at 209-210; Reibl v. Hughes, at 884-885. In the most limited

interpretation, a “special or unusual risk”includes paralysis and death. [102] The experts were explicit, gastric cancer is an extremely dangerous form of cancer which, even with treatment, has a poorprognosis. Clearly, the existence of gastric cancer is a “special or unusual risk”. [103] In Dickson v. Pinder, at para. 81, Justice Yamauchi J. explained the duty to inform and obtain consent for treatment: ... is a fact dependent threat assessment process.

A patient cannot make a meaningful and informed choice to consent to a therapy unlessthat patient knows the consequences of other reasonable alternatives or inaction, and can balance the risks and benefits of the proposedtherapy against those alternatives. [104] Dr. Toal’s failure to disclose the “special or unusual risk” of gastric cancer restricted Mr. Paniccia’s ability to direct histreatment. In doing so Dr.

Toal was negligent and breached his duty of care to his patient. [105] While not determinative of my conclusion on the failure to obtain informed consent, I note that it was also not appropriate towithhold information from a patient when a patient specifically asks a direct question about a particular matter. In that sense Dr.Thomson is absolutely incorrect. E. Conclusion

[106] Dr. Toal therefore failed to meet the standard of care when: 1. he concluded that there was no chance of cancer even though the radiologist’s report had confirmed this as a possibility; and 2. he failed to advise Mr. Paniccia of the possibility of cancer and misinformed him when specifically asked if that was a possibleexplanation for the dyspepsia. [107] In light of this finding I now proceed to evaluate whether Dr. Toal’s negligence injured Mr. Paniccia’s. VI. INJURY AND CAUSATION A.

Would Proper Disclosure have led to Different Treatment? [108] A medical professional’s negligent failure to disclosure treatment alternatives and possible diagnoses can cause injury wherethat failure would change the manner in which treatment occurred. Cory J. in Arndt v. Smith, (SCC), [1997] 2 S.C.R.539 at 554, 148 D.L.R. (4th) 48 succinctly described this ‘objective/subjective’ assessment as “... whether a reasonable person in thecircumstances of the plaintiff would have consented to the proposed treatment if all the risks had been disclosed”. [109] We do not know what would have happened had Mr.

Paniccia been advised of the full list of possible diagnoses. We can onlyspeculate as to whether being told that he had “heartburn” and that it was nothing serious would have altered his decision whether or notto “bother” his doctor with his ongoing dyspepsia symptoms. Mr. Paniccia might have returned for followup much sooner if he had beenaware of the possibility of cancer, particularly if had he been alive to the symptoms of that alternative. [110] Dr. Thomson seems to criticize Mr. Paniccia for not having more aggressively advanced his symptoms. However, I see no faultin Mr.

Paniccia’s conduct given he was told by his trusted family doctor that Mr. Paniccia did not face any life-threatening disorder.After all, Mr. Paniccia had been told it was just heartburn, and nothing to worry about. [111] Similarly, much was made of the typical delay that occurs in Edmonton between a referral to a gastroenterologist andendoscopic investigation. I will say more about that later in this Judgment. There is a possibility that Mr. Paniccia would have acted onhis own if he had been advised of the possibility of cancer and the probability that there would be a long delay before specialistexamination.

Mr. Paniccia might have chosen to go to a different doctor, perhaps even travelling to another country for immediatetesting. We do know that when he was told that there was nothing further that could be done for him at the Cross Cancer Institute, hecashed in some of his RRSPs and went to California for experimental treatment. [112] I conclude that is not an adequate basis on which to determine, on a balance of probabilities, that Mr. Paniccia would haveadopted a substantially different response to Dr.

Toal’s diagnosis if he had received proper disclosure of the various possibleinterpretations of the barium swallow x-ray results. [113] The experts’ evidence allows reconstruction of a non-negligent explanation of the barium swallow and x-ray test results. Mr.Paniccia would have been told that the possibility of gastric cancer was real but extremely low. Mr. Paniccia would have also learnedthat the best method to evaluate that option, gastroscopy, would not be available except after a long wait period due to the high demandfor the limited supply of that service.

In the meantime other and more likely possibilities could be evaluated by PPI treatment.Unsuccessful PPI treatment would move Mr. Paniccia ‘up the cue’ to gastroscopic investigation. [114] Dr. Toal would very likely have told Mr. Paniccia that his current symptoms and their progression did not warrant more

invasive analysis, and that it was better to wait and see. It is clear Mr. Paniccia trusted his family doctor, and I conclude Mr. Paniccia would have likely followed that advice. [ 115 ] I therefore conclude that, if Dr. Toal had informed Mr. Paniccia of the possibility of gastric cancer and the symptoms which would warn of that condition, Mr. Paniccia would not have independently sought other alternative tests or advice. At best, Mr. Paniccia’s treatment would have followed a non-negligent investigation and diagnostic process, which is the subject of the following injury and causation analysis.

In other words, Dr. Toal’s breach of his duty to inform would not result in any different outcome than if Dr. Toal had investigated Mr. Paniccia’s dyspepsia in a non-negligent manner. B. Would Correct Investigation of the Dyspepsia Have Affected the Gastric Cancer ’s Progression? [ 116 ] In this case, in a sense, two separate ‘steps’ in a medical malpractice proceeding have effectively merged. One is the question of whether Mr. Paniccia was injured by not being diagnosed with diffuse stomach cancer before November 2009. The second is whether Dr. Toal’s negligence caused that injury. [ 117 ] Dr.

Toal argues that Mr. Paniccia’s cancer and its ultimate progression would have been unaffected by earlier diagnosis of Mr. Paniccia’s condition. As such, Dr. Toal’s actions, negligent or not, had no effect on the outcome of Mr. Paniccia’s gastric cancer. Dr. Toal argues that Mr. Paniccia’s condition was terminal at the earliest point that the gastric cancer could have been identified, which would presumably be some point soon after Mr. Paniccia first complained to Dr. Toal concerning stomach irritation. If so, then no medical intervention could have altered the result. 1.

Preliminary Issues [ 118 ] While much of Mr. Paniccia’s state and progression is not in question, there are a number of issues that remain in dispute and are relevant to the broader questions of injury and causation: 1. Were any of the dyspepsia symptoms experienced by Mr. Paniccia caused by something other than the diffuse gastric cancer? 2. Could the diffuse gastric cancer have been identified before November 25, 2009? 3. What was Mr. Paniccia’s life expectancy if he was diagnosed with diffuse gastric cancer before November 25, 2009? 2.

The Source of the Dyspepsia Symptoms [ 119 ] Before addressing the other issues, I will address a suggestion by Dr. Dowden that Mr. Paniccia’s early dyspepsia symptoms may have been a result of Mr. Paniccia suffering from both gastritis and gastric cancer. If that was the case, then the prominent folds identified in the April 22, 2008 barium swallow x-ray may have been caused by gastritis rather than the cancer. [ 120 ] Dr. Dowden notes that gastritis was the most likely diagnosis identified by Dr. Sin, and suggests that the fact that PPI treatment improved Mr.

Paniccia’s condition was a consequence of effective treatment of the gastritis by that medication. PPI medications reduce the amount of acid secreted into the stomach and can therefore correct a stomach irritated by overly acidic conditions. The diffuse gastric cancer was located in the submucosa, and as a consequence the adjacent mucosa was normal and not irritated by that cancer. Dr. Dowden suggested this non-irritated mucosa and submucosal cancer combination would not have responded positively to the PPI. Thus, his opinion is that the only explanation for Mr.

Paniccia’s improvement was that he suffered from both gastritis and then asymptomatic diffuse gastric cancer. [ 121 ] This scenario, with two separate and essentially unrelated disorders, is relevant in two senses. First, there is the possibility that

the cancer was extremely small or had not yet emerged in April 2008. If so, cancer detection would be more difficult or impossible. Second, even if Dr. Toal had sought or used other diagnostic techniques, the existence of any cancer may have been missed when more obvious gastritis features were instead detected. Coincidental co-existence of two causes of dyspepsia may then lead to the less obvious, cancer, being masked and not detected. [ 122 ] Dr. Dowden was the only expert to propose this pairing of two unrelated gastric disorders. Dr.

Gill in response observed that improved condition after PPI treatment does not eliminate the possibility of gastric cancer. Dr. Flook testified that, if PPI treatment resolves a patient’s dyspepsia, then that would indicate no gastric cancer was present, though he also stated that a PPI treatment would also assist pain from gastritis, ulcers, and cancer, which seems inconsistent. [ 123 ] I note that Dr. Dowden’s hypothesis flows from his reading of Dr. Toal’s records, particularly that Dr. Toal had recorded that Mr. Paniccia’s condition had improved during PPI treatment. [ 124 ] A better understanding of Mr.

Paniccia’s conditions is provided by his September 9, 2010 testimony. Mr. Paniccia explained how the PPI had affected his symptoms: Q. Now, after you started taking the pills, can you describe if they were having any effect or not on your symptoms? A. Well, it seemed to help a little bit, but the problem always there. Seemed to alleviate the pain that it would sometime not be so strong, but the problem never went away. ... The pain was always the same, much the same. Little bit stronger, little bit lighter, but never went away. ...

Sometimes it made the pain easier to bear and stuff, so, you know, and it probably will take – always thought it would take time, so I can’t really say if it was working or not working, but it did alleviate the pain to some degree sometimes. [ 125 ] I therefore conclude that Dr. Dowden’s two-cause theory is not supported by the reported PPI effect on Mr. Paniccia’s dyspepsia. If there was gastritis, it was only responding poorly to the PPI treatment. I conclude the more likely alternative is that Mr. Paniccia’s only stomach disorder was the diffuse gastric cancer that ultimately led to his death. 3.

Could the Diffuse Gastric Cancer have been Detected at an Earlier Time? [ 126 ] The second relevant preliminary issue is whether Mr. Paniccia’s diffuse gastric cancer could have been detected if different medical techniques had been used to investigate Mr. Paniccia’s dyspepsia symptoms. [ 127 ] The experts were unanimous that stomach endoscopy (“gastric endoscopy” or “gastroscopy”) was the only practical method that could unequivocally detect a gastric cancer.

This technique involves passing a camera equipped probe through a patient’s mouth and down the esophagus to visually examine the inside of the stomach for anomalies. Gastroscopes are also equipped with an apparatus that allows the operator to take tissue samples, “biopsies”, from an area being examined.

[ 128 ] Gastroscopy was the technique that ultimately identified Mr. Paniccia’s cancer on November 25, 2009. The question in relation to causation is whether an earlier gastroscopy could have identified the diffuse gastric cancer. [ 129 ] The experts’ opinions differ on the likelihood of an earlier detection of the gastric cancer. a. Dr. Wong [ 130 ] Dr. Wong testified that gastric cancer endoscopy is an ineffective technique to detect early cancers as any cancerous lesions are very small or poorly visible. For a diffuse cancer, such as what affected Mr.

Paniccia, detection is even more difficult and infrequent as the target is spread out and hidden, and therefore rarely identified. [ 131 ] Dr. Wong accepted as valid several research studies that evaluated endoscopy as a method to detect gastric cancer. Those studies indicated successful detection occurred very frequently, either 72.5% or 85.3% of the time. Dr. Wong observed those studies addressed both diffuse and non-diffuse gastric cancers, and indicated that a lower probability of success, 50-60%, is appropriate for the more concealed diffuse form of gastric cancer. b. Dr. Williams [ 132 ] Dr.

Williams offered a quite similar conclusion. Based on his experience and on published studies, he estimated that 50-75% of diffuse gastric cancers would be detected by gastroscopy. He testified that the diffuse gastric cancer would have likely been identified by endoscopy and biopsy if Mr. Paniccia had been examined between July and October 2009. Dr. Williams accepted a study that concluded gastroscopy failed to detect gastric cancer in 25% of gastric cancer cases. [ 133 ] While this witness agreed with Dr. Wong that precursor cancer lesions may be invisible, Dr.

Williams explained that there was evidence available after the barium swallow x-ray which would have led to investigation of the area where the cancer was located. First, that was the site of the stomach folds and potential infiltrative process. Second, gastric cancer is usually located in the ‘greater curvature’ of the stomach, the location at which the folds and infiltrative process were identified. Further, Dr. Williams testified that biopsies are always performed during gastroscopy, and multiple tissue samples would have been taken in the area at which the cancer was ultimately identified. c. Dr.

Gill [ 134 ] Dr. Gill also critiqued Dr. Wong’s analysis. He emphasized that cancer within the submucosal layer would be the more likely target for successful gastric endoscopy, rather than a primary or accessory lesion. d.

Analysis - Probability of Cancer Detection by Gastroscopy [ 135 ] While the three experts who testified in relation to the potential efficacy of pre-November 25, 2009 gastroscopy disagreed on certain points, I think their testimony and the facts of this matter are a clear basis on which I can conclude that the diffuse gastric cancer would probably have been detected by gastroscopy if that procedure had been conducted after the barium swallow (April 22, 2008). [ 136 ] First, both Drs. Wong and Williams agreed that, statistically, even diffuse gastric cancer is detected in over half of patients with that condition.

In legal terms, that means on a balance of probabilities an earlier gastroscopy should have detected Mr. Paniccia’s cancer. [ 137 ] That conclusion is supported by several other facts. The barium swallow x-rays allowed Dr. Sin to identify a part of Mr. Paniccia’s stomach as abnormal. That region, the greater curvature, was the location at which the tumour was ultimately identified. Dr.

Mackie testified that he believed that the abnormal fold structures in that region were produced by the cancer. Any endoscopic examination of Mr. Paniccia’s stomach would have focused on the interior of the stomach in that region. Even if no obvious cancer lesion was visible, which I conclude is quite possible, standard operating procedure would have had the endoscope operator take multiple biopsy samples throughout the suspect region.

From the experts’ testimony, I am confident that it was more probable than not that examination of those biopsy samples would have identified submucosal diffuse gastric cancer. [ 138 ] To clarify, I conclude that post-April 22, 2008, the lowest probability of successful endoscopic detection of the cancer was at least over 50%. Given the state at which the cancer was observed on November 25, 2009, I can only conclude that probability would have increased over time as the cancer spread and grew until it ruptured through the mucosa and into the inside of the stomach. e.

Conclusion [ 139 ] I therefore conclude, on a balance of probabilities, that Mr. Paniccia’s diffuse gastric cancer would have been identified if he had undergone gastroscopic examination and biopsy tissue analysis between the dates of April 22, 2008 and November 25, 2009. The final issue, then, is whether that earlier detection of Mr. Paniccia’s cancer would have made any difference. 4. Would Earlier Detection of the Gastric Cancer have Affected Mr. Paniccia ’s Life Expectancy? [ 140 ] The fulcrum on which the questions of injury and causation turn is simple to express: if Mr.

Paniccia’s gastric cancer was detected at an earlier point, would earlier treatment have affected his life expectancy? This issue has a number of subcomponents: 1. When would the gastric endoscopy have occurred? 2. Would the gastric endoscopy have successfully detected the diffuse gastric cancer? 3. What treatment, if any, would follow detection of the diffuse gastric cancer? 4. What effect would any earlier treatment have on Mr.

Paniccia’s life expectancy? [ 141 ] I have already commented on the second sub-issue and concluded that gastroscopy would have detected the diffuse gastric cancer at any point after April 22, 2008. The experts were unanimous that, once Mr. Paniccia’s cancer was identified, he would have undergone surgery at the earliest opportunity to remove his stomach and any other organs and tissues into which that cancer had metastasized. That surgery may or may not be associated with chemotherapy. The preferred treatment for Mr.

Panaccia is thus essentially what he experienced after November 25, 2009. [ 142 ] I will first consider at what point the gastric endoscopy would have occurred if Dr. Toal had not been negligent. a. When Would Mr. Paniccia undergo Gastroscopy? [ 143 ] The parties disagree on what is the earliest point that Mr. Paniccia may have undergone gastroscopy. That disagreement has two elements: 1. What, if any, additional diagnostic or treatment steps should have occurred after the April 22, 2008 barium swallow but prior to gastroscopy; and

2. what delay would occur between the referral for a gastroscopy and the actual examination? i. Post-Barium Swallow Diagnostic and Treatment Steps [ 144 ] The experts generally agree that the April 22, 2008 barium swallow x-ray was a reasonable response to Mr. Paniccia’s dyspepsia complaint. Dr. Flook took the most extreme position. He testified an immediate endoscopy was preferable, but the barium swallow and x-ray was an acceptable alternative where gastroscopy was not available.

There was general consensus that in Edmonton a gastroscopy often is only available after a lengthy delay, while the barium swallow x-ray procedure is readily available to a family doctor. I therefore conclude Dr. Toal did not err when he immediately requested the barium swallow procedure. This was a reasonable ‘first diagnostic step’. [ 145 ] The experts also agreed that prescribing a PPI upon receipt of the barium swallow x-ray results was an appropriate step to attempt to address Mr. Panaccia’s dyspepsia. Dr.

Flook took the position that a period of four to eight weeks was appropriate to see if the PPI corrected the dyspepsia. If not, a patient with Mr. Panaccia’s characteristics should be immediately referred to a gastroenterologist for endoscopy. Dr. Williams concluded an unsuccessful two month treatment with PPI was a reason for further investigation, and Dr. Mackie considered this a “perfectly reasonable” approach. Dr. Gill also suggested endoscopy was appropriate where two months of PPI treatment did not resolve a patient’s dyspepsia. [ 146 ] My conclusion has been that Dr. Toal had a duty to inform Mr.

Paniccia of the ongoing possibility that he had a gastric cancer, and that Dr. Toal had an obligation to take steps to investigate that possibility. It is my conclusion that one appropriate step in that investigation would be to prescribe Mr. Paniccia with a PPI and observe its effect on his condition. The majority of experts conclude that PPI trial should extend for a two month period, and that if a two month PPI treatment did not resolve Mr. Paniccia’s condition then further diagnostic investigation was appropriate. [ 147 ] This two-month PPI trial period would require Mr.

Paniccia return for an additional appointment to review his status. Dr. Toal should have either scheduled that appointment or instructed Mr. Paniccia to return at that point. Since Mr. Paniccia filled his initial PPI prescription (and presumably began taking the drug) on

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