Cory v. Bass, 2011 ABQB 360

Court of Queen ’ s Bench of Alberta Citation: Cory v. Bass, 2011 ABQB 360 Date: 20110621 Docket: 0701 08024 Registry: Calgary Between: Melanie Cory Plaintiff - and - Dr. Sydney Bass Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ I. Introduction [ 1 ] This is a medical negligence action brought by the Plaintiff, Melanie Salome Cory, (“Ms. Cory”) against the Defendant, Dr. Bass (“Dr.

Bass”) concerning the events surrounding an Endoscopic Retrograde Cholangiopancreatography (“ERCP”) procedure. [ 2 ] During the procedure Ms. Cory suffered a perforation of her duodenum and developed severe necrotizing pancreatitis and sepsis. As a result she was hospitalized for a lengthy period of time and suffered serious injuries.

[ 3 ] Ms. Cory alleges negligence on the part of Dr. Bass concerning his diagnosis of common bile duct stones, his recommendation of the therapeutic ERCP, his failure to recommend alternative diagnostic procedures and his advice to her concerning the risks of the ERCP procedure. II. Chronology [ 4 ] Ms. Cory was born on September 24, 1961. She married on March 3, 1995 and has one son who was born in July 1995. [ 5 ] Dr. Bass, a gastroenterologist, obtained his medical degree in 1973.

He then obtained his specialist certification in general internal medicine in 1980 and gastroenterology in 1982. [ 6 ] On August 11, 1999, Ms. Cory met with her family physician, Dr. Waymouth, who noted that she complained of vomiting and nausea for at least six months and had noticed blood in her stool on two occasions. [ 7 ] On June 5, 2001, Ms. Cory was seen by Dr. Waymouth who recorded that she was experiencing mid-epigastric pain and chest pain which were keeping her up at night. [ 8 ] In 2004, Ms. Cory began to suffer from recurrent bouts of severe mid-epigastric pain and chest pain.

This pain kept her up at night and, on one occasion on June 30, 2004, resulted in her calling an ambulance and presenting at the emergency room for fear that she was having a heart attack. Ms. Cory went to the emergency room at Rockyview General Hospital experiencing pain in her chest that “felt like a balloon or ball expanding in [her] chest”. Yet, Ms. Cory left before being seen by a physician, as the pain subsided. [ 9 ] On July 7, 2004, Ms. Cory had an abdominal ultrasound. The ultrasound report stated that her gallbladder contained “multiple tiny calculi”, also referred to as cholelithiasis (“gallstones”).

The gallstones were referred to as mobile. [ 10 ] Ms. Cory’s family physician, Dr. Waymouth, referred Ms. Cory to Dr. Rothwell, a general surgeon as a result of concern of gallstones recommending she would benefit from a cholecystectomy, removal of gallbladder. [ 11 ] Dr. Rothwell met with Ms. Cory and discussed the risks and benefits of surgical intervention. Ms. Cory decided not to have the gallbladder operation. [ 12 ] On September 8, 2004, Dr. Rothwell wrote to Dr. Waymouth stating that he had met with Ms.

Cory and discussed surgical intervention with her at the appointment. [ 13 ] Between September 13, 2004 and October 6, 2004, Ms. Cory suffered several more attacks of classical biliary colic and decided to proceed with the surgical removal of the gallbladder. [ 14 ] On December 10, 2004, Dr. Rothwell performed a laparoscopic cholecystectomy, removing Ms. Cory’s gallbladder, at the Peter Lougheed Centre (“Peter Lougheed”). The histopathology report from the surgery confirmed the presence of many small gallstones ranging from 1 mm to 4 mm in the gallbladder. [ 15 ] On January 10, 2005, Ms. Cory saw Dr.

Rothwell for a follow-up from her cholecystectomy. Ms. Cory had recovered well

postoperatively and her incisions had healed well. Dr. Rothwell advised her that she could return to full activity. [ 16 ] On March 13 and 15, 2005, Ms. Cory experienced episodes of epigastric pain, nausea and bloating lasting approximately five hours in duration. [ 17 ] On April 25, 2005, Dr. Rothwell saw Ms. Cory and he diagnosed her recent pain as similar to that in her pre-operative state which was in the epigastrium and radiating to her back with some nausea. He referred her to Dr. Bass. [ 18 ] Prior to her consult with Dr. Bass, on July 30, 2005, Ms.

Cory had a biliary colic attack that resulted in her hospitalization in Cranbrook, British Columbia. She remained well in hospital and was therefore discharged later the same day. Her abdominal ultrasound was normal but she had elevated liver enzymes which again abruptly returned to normal the following day. [ 19 ] On August 21, 2005, Ms. Cory experienced a further biliary colic attack that lasted between two and five hours. [ 20 ] On August 31, 2005, Ms. Cory met with Dr. Bass at his office.

He noted that she had had three episodes of what appeared to be typical biliary colic that resulted in having her gallbladder removed in December 2004. Since that time, she noted that she had had similar episodes of pain. Dr. Bass performed a physical examination and found nothing of obvious note. [ 21 ] In correspondence to Dr. Rothwell of the same day, Dr. Bass stated his opinion that Ms. Cory likely had choledocholithiasis (gallstones in the common bile duct) and Dr. Bass recommended and arranged for an ERCP on an urgent basis. Dr. Bass’ letter to Dr.

Rothwell noted that “the risks of the procedure had been explained to the patient.” [ 22 ] On September 19, 2005, Ms. Cory was admitted to Peter Lougheed as a day patient. Dr. Bass performed an ERCP with sphincterotomy on Ms. Cory. [ 23 ] During the operation Dr. Bass was unable to cannulate the common bile duct, even after performing a small pre-cut sphincterotomy to try to open up the papilla. Within 30 minutes of terminating the ERCP, Ms. Cory began to experience intense abdominal pain.

A CT scan of her abdomen demonstrated the existence of retroperitoneal air suggesting her bowel had been perforated during the ERCP procedure. [ 24 ] Matters would get worse. On September 20, 2005, Ms. Cory was admitted to the intensive care unit at the Peter Lougheed and underwent a further pelvic CT which indicated necrosis of the pancreas and an intestinal obstruction. [ 25 ] Ms. Cory had developed abdominal compartment syndrome and underwent an exploratory laparotomy (open abdominal surgery) with drainage on September 21, 2005. [ 26 ] On October 13, 2005, Ms.

Cory was transferred to the Foothills Medical Centre (“Foothills”) and on October 16, 2005 she underwent a further laparotomy and retroperitoneal debridement (removal of tissue) of her abdominal wound and drainage of her pelvic abscess. [ 27 ] On November 26, 2005, Ms. Cory underwent a further debridement and application of a skin graft taken from her right thigh and placed onto her abdomen. She was discharged from the Foothills Hospital on December 16, 2005. [ 28 ] On December 22, 2005, Ms.

Cory was admitted to the Foothills because of difficulties with nausea, vomiting, constipation, drainage from her right flank and development of a pancreatic fistula.

[ 29 ] On February 21, 2006, Ms. Cory was discharged from the Foothills. Her open wound had healed where the skin grafts had been placed. She was admitted to the Foothills from March 7, 2006 to May 12, 2006 for recurrent sepsis until her drains had been removed. On June 19, 2006, Ms. Cory attended the Foothills emergency for a biliary colic attack. [ 30 ] Ms. Cory was admitted to the Foothills from July 26, 2006 to August 3, 2006 for gastric pain associated with a biliary colic attack and then again from August 13, 2006 to August 18, 2006 for acute pancreatitis.

She was admitted again for symptoms associated with the development of an intra-abdominal abscess. She was discharged on September 22, 2006. [ 31 ] On August 1, 2007, Ms. Cory was admitted to the Rockyview for a biliary colic attack, accompanied by elevated liver enzyme levels. [ 32 ] Ms. Cory was admitted to the Foothills on October 31, 2008 and Dr. de Haas performed a hernia reconstructive surgery. She was discharged on November 14, 2008. [ 33 ] Ms.

Cory continues to suffer from attacks that she had prior to her gallbladder surgery in December 2004 although the severity and frequency of the attacks has decreased over the last several years. ERCP Procedure and Sphincterotomy [ 34 ] An ERCP involves a specialized scope which is a long tube with controls at one end and a video chip at the other. The video chip is a camera that transmits the image back to a television.

The video chip end of the scope is inserted into the patient’s mouth and advanced down the throat, through the stomach and into the first part of the small intestine called the duodenum. [ 35 ] In the duodenum there is a structure called the papilla which contains an opening, the ampulla of vader, leading to the common channel. The flow of juices from the common channel into the intestine is controlled by the sphincter of Oddi, a circular muscle that surrounds the lower end of the common channel. The bile duct and the pancreatic duct fuse to form the common channel.

The bile duct is the conduit from the liver to the intestine. Bile is produced in the liver and transported to, and stored in, the gallbladder (a sac-like structure off the bile duct). [ 36 ] When a person eats, this triggers a hormone which triggers the gallbladder to contract and push the stored bile into the duodenum to aid in the digestion of fats. The pancreatic duct is a conduit to transport enzymes produced in the pancreas to the intestine for digestion. [ 37 ] During the ERCP different devices including catheters and cutting wires can be advanced through the length of the scope to the video chip end.

Once the papilla is located a catheter, called a papillotome, is advanced into the opening in the papilla and cannulates the duct of interest, either the pancreatic duct or the bile duct. [ 38 ] Once the papillotome has entered past the duodenal wall through the opening in the papilla the video chip at the end of the scope no longer provides an image of the papillotomes location.

X-ray contrast is injected and x-ray pictures are taken and viewed to determine whether the catheter is in the proper position, that is, in the proper duct. [ 39 ] A sphincterotomy involves the cutting of the nearby sphincter of Oddi muscle and relieves pressure in the duct and opens up the duct. Opening of the duct may allow various instruments to be inserted into the duct depending on the nature of the therapeutic treatment.

A precut sphincterotomy is performed when the papillotome is in the common channel but not fully in the bile or pancreatic duct and involves cutting the roof off the common channel to loosen up the duct to allow the papillotome to be directed into the duct of interest. Both wires cut using electricity which also works to cauterize the cut. III. Issues

1. Did Dr. Bass fail to meet the appropriate standard of care in failing to perform an MRCP or EUS prior to proceeding with an ERCP and prior to recommending the ERCP and spincterotomy to Ms. Cory? 2. Did Dr. Bass obtain the necessary informed consent from Ms. Cory for the ERCP and sphincterotomy? 3. If the necessary informed consent had been given, would Ms. Cory have consented to treatment if she had been fully informed of the risks and alternatives? Would the alternative resulted in a different outcome? 4. If Dr.

Bass was negligent in his treatment and caused injury to the Plaintiff, what is the appropriate assessment of damages to which the Plaintiff is entitled? IV.

Position of the Parties [ 40 ] It is the position of the Plaintiff that the Defendant was negligent in failing to perform the less invasive tests involving a magnetic resonance cholangiopancreatography (“MRCP”) and endoscopic ultrasound (“EUS”) and “but for” the failure of the Defendant to properly outline all material facts and material risks involved in the ERCP procedure, which he recommended to the Plaintiff a reasonable person in the position of the Plaintiff would not have proceeded with the ERCP and sphincterotomy at that time.

As a result the Plaintiff would not have suffered injuries including the perforation to the duodenum and the development of severe necrotizing pancreatitis. [ 41 ] The Defendant submits that Dr. Bass satisfied his duty to diagnose in exercising reasonable care, skill and judgment in arriving at a diagnosis of common bile duct stones, specifically common bile ducts stones or, to a lesser degree of likelihood, Sphincter of Oddi Dysfunction, Type II, (“SOD, Type II”). He obtained her informed consent. The Defendant argued that neither MRCP nor EUS was available to Ms.

Cory in a reasonable time frame, whether those results were positive or negative. Further, there is no evidence that not obtaining an MRCP or EUS prior to proceeding with the ERCP caused or contributed to the results which occurred. V. Evidence A. Evidence of Melanie Cory [ 42 ] Melanie Cory is 49 years old, and at the time of her ERPC she was 43 years old. She has been married to her husband Owen Cory for sixteen years with whom she has a fifteen-year-old son. Ms. Cory obtained a Bachelor of Commerce in 1986 and worked at five different jobs until she had her son in 1995.

From the birth of her son in 1995 to November 2007 she was primarily a stay-at-home mom, although she sold Tupperware and did some part-time catering. She testified that she planned to return to full time work, in a marketing position, in September 2007 when her son would be in school full-time. [ 43 ] Ms. Cory testified that prior to the problems with her gallbladder, her health had been very good. She had her first gallbladder attack in June 2004, and described the pain as “excruciating” that felt like a balloon expanding in her upper stomach chest area that would not stop. The pain radiated up into her back.

She ranked the pain as an eight or nine on a scale of ten with ten being the worst pain she had ever experienced. Additionally, there was some nausea, vomiting, diarrhea and frequent uses of the bathroom that accompanied the attack. Ms. Cory testified that it was difficult to sit or lie down during these attacks and that she tried to position herself leaning on items to try and relieve the pressure. [ 44 ] Ms. Cory testified that she went to the Rockyview Hospital after the first attack but she was not seen by a doctor as the pain subsided while she was waiting, about five hours after it began.

[ 45 ] Ms. Cory testified that she had another similar attack in the summer of 2004 and saw Dr. Waymouth after that attack. He ordered an ultrasound which showed that she had gallstones in her gallbladder. Dr. Waymouth discussed removing her gallbladder although at that time she opted to not have the surgery as she had only had two attacks. Ms. Cory testified that she had another attack in September of 2004 while in Montreal on holidays. She said that the September attack scared her as it was extremely painful. After the September attack she went back to Dr. Waymouth and he set up an appointment with Dr.

Rothwell, a surgeon. He advised her to have her gallbladder removed. [ 46 ] In December 2004, Ms. Cory underwent laparoscopic surgery to have her gallbladder removed. The surgery was a day surgery and she was released the same day. She testified that she does not remember a discussion occurring with respect to the risks of the gallbladder surgery. [ 47 ] Ms. Cory testified that in March 2005 she had another attack of pain that was similar to the previous three attacks, although it was shorter in length. She indicated that she had another attack of pain in March 2005.

She also testified that the days after having these attacks she would watch her diet and try and eat food which she thought would be easy to digest. Ms. Cory had another attack of pain in July 2005 while in Cranbrook, British Columbia for which she attended the hospital. As a result of the attacks after her gallbladder removal she saw Dr. Waymouth and Dr. Rothwell. Dr. Rothwell referred her to Dr. Bass. [ 48 ] Ms. Cory testified that she met with Dr. Bass on August 31, 2005. Dr. Bass advised her that she had gallstones and explained the day procedure to her. [ 49 ] Ms.

Cory attended at the Peter Lougheed on September 19, 2005 for the procedure. She spoke with Dr. Bass prior to the procedure. Ms. Cory testified that her first memory after the ERCP was waking up in the ICU intubated, with multiple IVs. She did not have a full memory of her time at Peter Lougheed but she remembered being in a lot of pain, and almost the whole width of her abdomen was open. A vacuum pack was attached to the opening, and she was being fed by IV. [ 50 ] On October 13, 2005 Ms. Cory was transferred to the Foothills via ambulance. She understood that the transfer to the Foothills was so that Dr.

Sutherland could take care of her. In November 2005, she underwent another surgery where a skin graft was removed from her leg and put onto her abdomen over the open area. She testified that after the skin graft surgery she was required to lie still on her back so that the skin graft could heal properly. [ 51 ] Ms. Cory testified that while she was at the Foothills Dr. Sutherland made an opening in her side.

She understood that he used the opening to remove dead tissue, and testified that the opening was called a fistula and that it was left open so that her abdomen could drain into a bag. [ 52 ] On December 16, 2005, Ms. Cory was discharged from the Foothills. While at home she testified that she was extremely sick and unable to eat. She was weak and tired and had to be cared for by her parents and her husband. [ 53 ] Ms.

Cory testified that during her stays at the Foothills one of her various family members (aunt, sister, mom, uncle,) was always with her to take care and help her with the things the nurses could not do like bring her heated blankets, or at times help feed her. [ 54 ] She was re-admitted to the Foothills on December 22, 2005 and remained there until February 21, 2006. She testified that while she was at the Foothills she was bedridden, vomited, was in a lot of pain, and was often unable to eat and was fed by feeding tubes.

During this time her skin graft was healing and oozed from the sides where it was sewn on. [ 55 ] After being discharged on February 21, 2006 Ms. Cory remained at home for almost two weeks before being re-admitted on March 7, 2006. She testified that while at home she spent most of her time in bed and did not leave the house much. Additionally, she was unable to dress herself or make meals, and her mother and a home care nurse took care of her. [ 56 ] Ms. Cory testified that she was readmitted on March 7, 2006, because she was sick and had infections that were not healing.

During her stay she received intravenous antibiotics. She stated that during this hospital stay she was able to walk more and she started being able to keep food down, but that she was still very weak. She was discharged on May 12, 2006. She testified that at this point she weighed 95 pounds, and that prior to the ERCP she weighed 130 pounds.

[ 57 ] Ms. Cory was re-admitted on June 19, 2006 as she experienced an extreme attack of pain in her chest and stomach. She described the pain as folding over type pain with vomiting and nausea. She also testified that she remained in the hospital for some time after this attack and that it was not a one day stay. [ 58 ] Ms. Cory was readmitted to the hospital from August 13 to 18, 2006 due to chronic infections. She was readmitted from September 14 to 22, 2006 and testified that she was in pain and was vomiting. By the end of September 2006 the skin graft was healing and she was able to keep some food down.

She could walk to the end of the driveway or the end of the block. She stated that she needed a lot of help from her mother who stayed with her every day and cooked the meals, and that she focussed on trying to eat and build up her strength. She also testified that because the skin graft was weak she had to wear a girdle-like garment with metal braces to hold everything in the stomach. [ 59 ] Ms. Cory testified that she was taking pancreatic enzymes in the hospital, and that Dr. Sutherland gave her a prescription for pancreatic enzymes when she was discharged in 2006.

She did not fill the prescription but did take some pancreatic enzymes that she already had at home from her gallbladder removal surgery. Ms. Cory stated that she felt the pancreatic enzymes did not work and stopped taking them. [ 60 ] Ms. Cory testified that by December of 2006 she was still weak, but was able to keep food down better than before and felt that the infections were under control. Additionally, her pain was not as extreme and she was able to go to the bathroom on a more regular schedule. She agreed on cross-examination that she had seen Dr.

Sutherland in November 2006 and he had written a letter to Dr. Kriel stating “... she’s been feeling very well and has not had any attacks of pancreatitis, is eating quite well and has actually gained some weight”. Ms. Cory testified that at that time she was doing well relative to how she had been. [ 61 ] On August 1, 2007, Ms. Cory was admitted to the Rockyview Hospital for one day as the result of a biliary attack. She agreed that she had continued to have attacks since the ERCP, that were of a similar nature to the attacks following the removal of her gallbladder. [ 62 ] In October 2008, Ms.

Cory underwent further surgery to repair her hernia. During this surgery Dr. Sutherland removed the skin graft covering her abdomen and Dr. de Haas sewed her abdomen muscles back together. She testified that after the reconstructive hernia surgery she curtailed her activities. She agreed that she has not had a major attack of colic or pancreatitis since October of 2009 and has not taken anything stronger than Advil for pain since that time. B. Evidence of Mr. Owen Cory [ 63 ] Mr.

Cory testified that his understanding of the ERCP was that they were going to put a scope down his wife’s throat and take out a gallstone. He also thought that it was a day surgery procedure. He was not aware that anything had gone wrong until he arrived home from work in the afternoon and she was not at home. He learned that they were keeping her over night for observation. He first went to the hospital on September 20, the day after the ERCP, and said that his wife was frantic.

Her abdomen was swollen, and later that afternoon she was taken into the ICU, an operation was performed later in the day and she was in a coma for the following ten days. [ 64 ] Ms. Cory testified that three days after the ERCP he was visiting and that as a result of something a social worker at the hospital said to him he realized for the first time that his wife might not survive. [ 65 ] Ms. Cory testified about his wife’s recovery and that when she was discharged on December 16, 2005 her mother and home care took care of her.

Additionally, he indicated that when she was at home during the summer of 2006 that her mother would help her. C. Evidence of Dr. Sydney Bass

[ 66 ] Dr. Bass attended medical school at the University of British Columbia. After graduation he completed a rotating internship in Edmonton, followed by a year of general internal medicine in Vancouver. He practiced for three years in Vancouver before relocating to the Mayo Clinic for two years to complete his general internal medicine training. He then returned to Toronto and did two years of gastroenterology with training in therapeutic procedures, including ERCP. He obtained his certification in general internal medicine in 1980 and his certification in gastroenterology in 1982. Dr.

Bass testified that he has been performing ERCPs since 1982. Since the late 1980s he has performed 400 to 450 per year. Dr. Bass is a clinical associate professor at the University of Calgary School of medicine, and he trains gastroenterology fellows in ERCP. He testified that ERCP is one of his areas of expertise and that he is referred a lot of very difficult ERCPs. There is no doubt that Dr. Bass is an expert in his field and a highly respected gastroenterologist. [ 67 ] Ms. Cory was referred to him by Dr. Rothwell. He was asked to evaluate her for pain occurring after her gallbladder had been removed.

He stated that Dr. Rothwell provided him with information on Ms. Cory including a letter, the ultrasound prior to her gallbladder being removed, and some blood work. Additionally, Dr. Bass indicated that he may have been faxed information from Ms. Cory’s family physician. He received a set of tests from August 24, 2005. In my view, he did not review these test results prior to seeing Ms. Cory. [ 68 ] Dr. Bass testified that based on all of the information he had on Ms. Cory he thought that she had a high probability of common bile duct stones.

He indicated that this was based on his knowledge that she had very small stones in her gallbladder prior to it being removed. Further, there had been a transient rise in her liver enzymes associated with the pain and return of these enzymes to almost normal when she had her August attack of pain in Cranbrook. He also stated that the pattern of her pain as well as other sets of elevated liver enzymes taken within days of her pain were considerations in his diagnosis. [ 69 ] In Dr. Bass’ opinion, the most diagnostically useful set of liver enzymes were those associated with the attack of pain in Cranbrook. Ms.

Cory’s liver enzymes rose abruptly when she was in the emergency department in Cranbrook and within eight hours had decreased almost to normal. Ms. Cory’s GGT and AST were initially elevated and her bilirubin levels remained normal. [ 70 ] Dr. Bass testified about what he recalled about Ms.

Cory’s procedure, he stated at trial: I recall that I initially started the procedure and I attempted to cannulate the papilla and the catheter went into the pancreatic duct and I confirmed that with a - - with x-ray dye in the pancreatic duct and I made one or two more attempts to get into the bile duct and I was unable to do this.

And because of the - - the fact that the risk of pancreatitis starts to rise if you keep attempting to intubate the pancreatic duct I then did a small cut in the papilla by what is - - I described as a precut using the needle knife, making a small cut in the - - common channel - - the roof of the common channel and then I took the papillotome again and attempted to canulate the bile duct. There was bile flowing from the - - bile duct and the cannulate would not go in and I felt that the - - at that point that the risk of persisting was too high and I stopped the procedure. [ 71 ] On cross-examination Dr.

Bass answered that he may have tried to cannulate the bile duct three or four times before performing the precut sphincterotomy. Because the procedure resulted in a severe complication the procedure itself has been emphasized or impressed in his memory. [ 72 ] Dr. Bass testified that immediately after the procedure he completed his operative report. He admitted that he selected, but did not use, the wrong sedative drug from a drop down menu on the program used to generate the report. [ 73 ] Dr. Bass testified that after the procedure Ms.

Cory was transferred to the recovery room and within 30 minutes it became apparent she was in distress. The amount of pain she was in was in excess of what was expected after an ERCP and was greater than what would be expected from pain occurring from air in the intestine. On cross-examination he stated that he believed her quick deterioration was a result of pancreatitis. [ 74 ] Dr. Bass testified that he arranged an emergency CT for Ms. Cory with the radiology department. Upon reviewing the CT it was clear that she had a perforation, and so he consulted the general surgeon who came down to see Mrs Cory.

She was treated with intravenous antibiotics, as almost all perforations from ERCP are treated conservatively with antibiotics and seal off on their own without requiring surgical intervention. Unfortunately, this case would be different. [ 75 ] Dr. Bass testified that he saw Ms. Cory that evening as well as when he returned in the morning. In the morning he was informed that she was not doing well and she was transferred to the intensive care unit (“ICU”). Once Ms. Cory was transferred to the

ICU she was no longer under his care but that he saw her virtually ever day that she remained in the Peter Lougheed Hospital and once at the Foothills Hospital. He stated that Ms. Cory was unconscious many times when he visited. D. Evidence of Dr. Ranjit Singh [ 76 ] Dr. Singh testified on behalf of the Plaintiff and was qualified as an expert in the area of gastroenterology. Dr. Singh qualified as a specialist in gastroenterology in 1998, completed an advanced therapeutic endoscopy fellowship in 1999 and since the summer of 1999 has been a practising gastroenterologist in Victoria, British Columbia. Dr.

Singh is currently head of endoscopy for the British Columbia Capital Health Region, a position he has held since November 2010. From 2007 to 2010, Dr. Singh was Chief of the Division of Gastroenterology at the Capital Health Region where he was responsible for supervising ten gastroenterologists in Victoria. His duties included administrative issues, quality assurance and disciplinary actions. As head of endoscopy Dr. Singh’s duties included dealing with quality issues that arise in the endoscopy units in Victoria. [ 77 ] Dr. Singh has been performing ERCPs since 1997 and has performed about 200 per year.

Ninety to 95 percent are therapeutic as opposed to diagnostic. He is experienced in the removal of stones from the common bile duct using ERCP as well as with performing related sphincterotomies. [ 78 ] Dr. Singh underwent additional training in 2004 on endoscopic ultrasound at the University of Montreal, St. Luc Hospital. EUS is an optional or additional diagnostic test used to detect stones in the common bile duct. Dr. Singh has been performing EUS since that time, and does about 200 per year.

He was aware of other optional tests used to detect stones in the common bile duct including MRI (magnetic resonance imaging) and MRCP which gives a more detailed look at the common bile duct than a standard MRI. [ 79 ] In Dr. Singh’s opinion, Ms. Cory had a low probability of having a common bile duct stone. He based his opinion on the fact that when she first saw Dr. Bass her bile duct was of a normal calibre, and with the exception of GGT her liver enzymes tested within the week of being seen by Dr. Bass were within the normal range. In his report Dr. Singh indicated that Ms.

Cory being pain free for months before seeing Dr. Bass supported a low probability of a stone. When cross-examined on the fact that Mrs Cory had biliary pain ten days before seeing Dr. Bass, Dr. Singh stated that presence of pain would not have made a difference to him because other things could cause biliary type pain. E. Evidence of Dr. Michael Francis Byrne [ 80 ] Dr. Byrne testified on behalf of the Defendant. He was qualified as an expert in the area of gastroenterology and in particular, endoscopic procedures and ERCP. Dr.

Byrne did fellowship training in gastroenterology in Dublin, Ireland, followed by an interventional endoscopy fellowship specializing in ERCP and EUS at Duke University Medical Centre in North Carolina. He remained at Duke for an additional year after his fellowship and in 2003 moved to Vancouver as a clinical associate professor, where he was involved in general gastroenterology and ERCP. [ 81 ] Dr. Byrne has been a full clinical professor at the University of British Columbia since July 2010. He has been a peer reviewer for multiple medical journals and has sat on the editorial board of several journals.

As a clinical processor he is involved in teaching residents and GI fellows, ERCP and other interventional endoscopic techniques. Dr. Byrne has conducted research with respect to endoscopy since his time at Duke and has continued to be involved with related research. [ 82 ] In his expert report, Dr. Byrne concluded that Ms. Cory’s history was compatible with either retained stones in the bile duct (choledocholithiasis) or something different, possible SOD Type II.

Although there was no ultrasound evidence of bile duct dilation or stones, the elevation of the blood tests during her presentation to the emergency room at the end of July 2005 with severe pain and a subsequent significant reduction in the liver blood tests just several hours later would be in keeping with stones or SOD Type II. [ 83 ] Dr. Byrne testified that on occasion one may wish to confirm or refute pathology in the bile duct with further imaging such as CT or endoscopic ultrasound. In this case, Ms.

Cory’s history was compelling enough to warrant further investigation and or treatment with an ERCP, particularly as she presented to the emergency room shortly before the initial consultation with Dr. Bass with a severe episode of pain accompanied by elevated liver blood tests which subsequently returned to normal quite quickly.

F. Evidence of Dr. Michelle Ann Burns [ 84 ] Dr. Burns testified on behalf of the Defendant. Dr. Burns was qualified as an expert in the area of general internal medicine. She completed her fellowship in general internal medicine in 1998 at the University of Calgary. Since 1998 she has had a private practice in general internal medicine with admitting privileges at the Rockyview Hospital. She has been an assistant clinical professor at the University of Calgary since April 1, 2010.

As a clinical professor she is the supervising physician of a medical teaching team where she has medical students, medical residents and international medical graduates. At the Rockyview Hospital she has patients admitted under her care and she makes their diagnosis or decides on their treatment plan and keeps them through their stay until discharge. Dr. Burns works on the hospital’s consultation service where she answers the calls of other specialists in the hospital needing her opinion of a patient.

She also works at two clinics at the hospital: an outpatient preoperative assessment clinic and an urgent assessment clinic. [ 85 ] The vast majority of Dr. Burns’ practice involves patient assessments. She sees patients as they first present to the hospital and tries to come up with a differential diagnosis. She assesses patients that are already in the hospital that have developed a new problem. Dr. Burns has done medical assessments of patients suffering and recovering from pancreatitis. She has also acted as a consultant on patients recovering from a laparotomy. [ 86 ] Dr.

Burns conducted an independent medical examination of Ms. Cory on July 7, 2010. The purpose of this examination was to assess the issues that were still a problem for Ms. Cory and comment on her future health. [ 87 ] Dr. Burns testified that she reviewed the material provided to her including the operative reports, discharge summaries, consultation requests, charts, and transcripts of the examination for discovery of Dr. Bass and Ms. Cory. She then met with Ms. Cory at the Rockyview Hospital. She reviewed her history and performed a physical examination and made requests for laboratory studies. Dr.

Burns understood that Ms. Cory had three main complaints: episodic abdominal discomfort; problems with bowel functioning including a change in bowel frequency and consistency; and fatigue. [ 88 ] Dr. Burns testified that she believed Ms. Cory’s symptoms were related to pancreatic enzyme insufficiency brought on by severe pancreatitis, and could be alleviated by enzyme therapy. She was surprised that Ms. Cory was not taking any prescribed enzymes. Dr. Burns testified that Ms. Cory advised her that she would sometimes take digestive enzymes purchased from the health food store. Dr. Burns was not sure what Ms.

Cory was taking the digestive enzymes for. She also testified that she prescribes digestive or pancreatic enzymes to patients with similar bowel functioning problems to Ms. Cory, but that it is not in her practice to rely on health store supplements as she prescribe enzymes where she knows what the active ingredients are and their quantities. [ 89 ] Dr. Burns testified that it was risky for a patient who has suffered from pancreatitis to consume alcohol. Even minimal exposure to alcohol can flare up pancreatitis, and subsequent episodes can worsen.

She agreed that a patient who has suffered from severe pancreatitis might consume alcohol on one occasion and be fine and consume alcohol on another occasion and suffer from severe pancreatitis. Dr. Burns also testified that she thought some of the episodes of pain experienced by Ms. Cory over the past year might be related to having been exposed to alcohol. [ 90 ] Dr.

Burns testified that she performs numerous tests on patients who complain of fatigue including looking for: valvular heart disease, lung problems, kidney failure, electrolyte abnormalities, underactive thyroid, arthritis, hematologic malignancies, swollen lymph nodes, enlarged spleen, and abnormal blood count. All of the tests came back negative but she could not rule out other possibilities of depression, mood disorders or sleep disturbances. She testified that Ms. Cory did not meet the criteria for chronic fatigue syndrom. VI. General Principles of Law A.

General [ 91 ] Liability for medical negligence includes a number of issues. There is no dispute that the Plaintiff has the onus of proving:

(1) Dr. Bass owed her a duty of care;

(2) Dr. Bass breached the standard of care that he owed her;

(3) She suffered an injury of loss; and

(4) Dr. Bass’ conduct was the actual and legal cause of her loss. Ellen I. Picard & Gerald Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Thomson, 2007) at 212(“Picard & Robertson”) [92] Since it is agreed that Dr. Bass owed Ms. Cory a duty of care, my analysis begins with the standard of care. B. Standard of Care [93] A doctor undertakes that he or she possesses and utilizes the skill, knowledge and judgment of the average reasonable doctor.In judging the average reasonable doctor, regard must be had to the special class and community to which the doctor belongs.

If he or sheholds himself or herself out as a specialist, a higher degree of skill is required of him, equal to that of a reasonably competent member inher group of specialists: Wilson v. Swanson, (SCC), [1956] S.C.R. 804; Challand v. Bell (1959), (ABKB), 18 D.L.R. (2d) 150 at 154 (Alta. S.C. (T.D.)). [94] The classic statement with respect to standard of care was stated in Crits v. Sylvester, (ON CA), [1956] O.R.132 (C.A.) at 143; aff'd (SCC), [1956] S.C.R. 991: Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree ofcare.

He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of thesame experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who doesnot profess to be so qualified by special training and ability. [95] In the case of a specialist the physician’s behaviour will be assessed in light of the conduct of other ordinary specialists, whopossess a reasonable level of knowledge, competence and skill in that field: Fournier v. Wiens, 2004 ABQB 430 at para. 80, 368 AR306.

The leading case which defines the standard of care for a skilled surgeon is Wilson v. Swanson, supra. Mr. Justice Rand speakingfor the majority stated at 811-812: What the surgeon by his ordinary engagement undertakes with the patient is that he possesses the skill, knowledge and judgment of thegenerality or average of the special group or class of technicians to which he belongs and will faithfully exercise them ... The test can beno more than this: was the decision the result of the exercise of the surgical intelligence professed?

Or was what was done such that,disregarding it may be the exceptional case or individual, in all the circumstances, at least the preponderant opinion of the group wouldhave been against it? If a substantial opinion confirms it, there is no breach or failure ... An error in judgment has long been distinguishedfrom

an act of unskilfulness or carelessness or due to lack of knowledge. [96] There is no question that Dr. Bass is a skilled gastroenterologist and must be held to that skilled standard. C. Hindsight [97] It is clear that a court should take care not to assess the case with the benefit of hindsight: Wilson v. Swanson, at 812.Therefore, a court should guard against giving undue weight to the distressing result for the patient. A court should also be cautious inassessing the testimony of the experts whose opinions are based on a retrospective assessment of medical issues: Kehler v.

Myles (1986), (AB KB), 74 A.R. 259 (Q.B.); aff’d (1988), 1988 ABCA 350 , 92 A.R. 345 (C.A.); leave to appeal refused[1989] S.C.C.A. No. 84. I keep these principles in mind as I assess Ms. Cory’s case, taking care not to give undue weight to theunfortunate results for Ms. Cory.

D. Difference in Opinion [98] In Belknap v. Meakes (1989), (BC CA), 64 D.L.R. (4th) 452 (C.A.), the British Columbia Court of Appealnoted that differences in opinion may exist in the medical community but this may not necessarily constitute negligence. A court mayprefer one body of opinion to the other, but that is not a basis for a conclusion of negligence. There are two experts in this case, Dr. Singhand Dr. Bass. I have reviewed their evidence and this principle carefully in reaching my conclusion. E.

Failure to Diagnose [99] A doctor is not expected to be infallible, only to exercise reasonable care, skill and judgment in coming to a diagnosis: Picardand Robertson at 301. A mistaken diagnosis is not necessarily negligent as the doctor many have met the required standard of care:Picard and Robertson at 301. The duty to diagnose requires a doctor to take a full history, use appropriate tests and consult or refer ifnecessary: Scott v. Mohan (1993), (AB KB), 142 A.R. 281 (Q.B.).

A doctor must take reasonable care to detectsigns and symptoms and formulate a diagnosis using good judgment. “A doctor’s skill and judgment must be in step with that ofcolleagues but need not be in advance of theirs, and if this standard of care is met in the particular circumstances the doctor will not beheld liable to a patient injured by a misdiagnosis”: Picard and Robertson 246. F. Informed Consent 1.

Material Risks [100] Informed consent is the primary issue in this case which means that a patient has the right to know the nature of any proposedtherapy, its risks and benefits and what alternatives may exist. To prove liability the plaintiff must prove that the physician did notdisclose a risk or alternative that ought to have been disclosed.

The plaintiff must also establish that had such a risk or alternative beendisclosed, a reasonable person in the plaintiff’s position would not have agreed to undergo the procedure or treatment. [101] The analysis of informed consent was developed in the Supreme Court of Canada in Hopp v. Lepp, (SCC),[1980] 2 S.C.R. 192 and reaffirmed in Reibl v. Hughes, (SCC), [1980] 2 S.C.R. 880.

In Hopp, a laminectomy case, theCourt set out the basic obligation of health care professionals when obtaining informed consent to a proposed procedure which includesdisclosing the nature of the proposed procedure, its gravity, any material risks and any special or unusual risks attendant upon theperformance of the operation. [102] In Reibl, which involved a surgical procedure on the cartoid artery, the court explained the distinction between facts that wouldgive rise to a cause of action in battery and the facts that would give rise to a cause of action in negligence.

The Court found that theapplicable law where there was an allegation of insufficient disclosure of risks was that of negligence, therefore causation and damagesmust be proven. The Court held that the failure to obtain informed consent to surgery gives rise to a cause of action in negligence ratherthan battery. Chief Justice Laskin concluded in Reibl at 10, that actions for battery should be confined to cases where there was noconsent at all or where the treatment went beyond the scope of the consent or where the consent was obtained by misrepresentation. [103] In Martin v.

Capital Health Authority, 2008 ABCA 161, 432 A.R. 165 the Court of Appeal discussed informed consent andnoted that the terminology used to inform a patient is of less consequence but an explanation of the potential harmful result is required(at para. 33). [104] In Videto v. Kennedy (1981), (ON CA), 33 O.R. (2d) 497 at paras. 12-19 (C.A.), the Ontario Court ofAppeal commented on the principles identified in Reibl: 1.

The question of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solelyby the professional standards of the medical profession at the time. The professional standards are a factor to be considered.

2. The duty of disclosure also embraces what the surgeon knows or should know that the patient deems relevant to the patient's decisionwhether or not to undergo the operation. If the patient asks specific questions about the operation, then the patient is entitled to be givenreasonable answers to such questions. In addition to expert medical evidence, other evidence, including evidence from the patient or frommembers of the patient's family is to be considered.

In [Reibl at para. 16] Laskin C.J.C. stated: The patient may have expressed certain concerns to the doctor and the latter is obliged to meet them in a reasonable way. What thedoctor knows or should know that the particular patient deems relevant to a decision whether to undergo prescribed treatment goesequally to his duty of disclosure as do the material risks recognized as a matter of required medical knowledge. 3.

A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences,such as paralysis or even death, then it should be treated as a material risk and should be disclosed. 4. The patient is entitled to be given an explanation as to the nature of the operation and its gravity. 5. Subject to the above requirements, the dangers inherent in any operation such as the dangers of the anaesthetic, or the risks ofinfection, do not have to be disclosed. 6.

The scope of the duty of disclosure and whether it has been breached must be decided in relation to the circumstances of each case. 7. The emotional condition of the patient and the patient's apprehension and reluctance to undergo the operation may in certain casesjustify the surgeon in withholding or generalizing information as to which he would otherwise be required to be more specific. 8. The question of whether a particular risk is a material risk is a matter for the trier of fact. It is also for the trier of fact to determinewhether there has been a breach of the duty of disclosure. 2.

Consent Form [105] In this case, Ms. Cory signed a consent form at the hospital on the day of the procedure. However, the form was not counter-signed as it should have been, by Dr. Bass. In Coughlin v.

Kuntz (1987), (BC SC), 17 B.C.L.R. (2d) 365 at 394,affirmed (BC CA), 42 B.C.L.R. (2d) 108 (BCCA) the court concluded that even a proper consent form does notdischarge the duty of a surgeon to consult with a patient: In my opinion, the consent forms signed by the plaintiff cannot in any way protect the defendant as I find the defendant failed in his dutyto explain and fully disclose all relevant information to the plaintiff relating to his proposed neck surgery.

The time to make such anexplanation and provide the full disclosure, particularly in a situation such as here of elective surgery, was in the defendant's office in asetting where there was adequate time for making the explanation and settling the plaintiff regarding any questions he may have hadabout the proposed surgery. The signing of the consent forms by the plaintiff in the hospital on the eve of surgery was a mere formalityincapable of satisfying the defendant's duty of disclosure.

For consent forms to have any legal effect there must be an adequateknowledge base on the part of the patient before the exempting language of the form will provide its intended protection for the surgeonor the hospital from adverse effects of the operation. [106] The use of a properly drafted consent form should be seen by the courts as valuable objective evidence of the disclosure of therisks documented in the form, as well as notice to the patients of their entitlement to ask questions regarding the risks documented in theform and other matters of concern to them, such as nature and purpose of treatment, if that is not already obvious to the patients.

3. Alternative Treatments to the Proposed Therapy [107] Much of this case centers on whether or not Dr. Bass should have told Ms. Cory about the two alternative diagnostic proceduresthat were available. The language of Reibl and Hughes is couched in terms of disclosure of risks.

However, more recent case lawsupports my view that there is no doubt that patients must be informed about reasonable alternatives, particularly alternatives that aremore conservative and involve fewer risks than the treatment proposed: Picard and Robertson at 151. [108] For example, I agree with the comments made by the Alberta Court of Appeal in Zimmer v. Ringrose (1981), 1981 ABCA 60, 124 D.L.R. (3d) 215 at 222, leave to appeal to SCC refused, [1981] S.C.CA.

No. 20: With a view to revealing any probable or special risks involved, the physician or surgeon should also discuss the benefits to be gainedfrom the recommended treatment or operation, the advantages or disadvantages associated with alternative procedures and theconsequences of foregoing treatment. Such a discussion is essential since a patient cannot measure risks in the abstract. To discharge hisduty of care, the doctor must give the patient some yardstick against which he can assess the options available to him. The Saskatchewan Court of Appeal agreed with this approach in Haughian v.

Paine, (SK CA), [1987] 37 D.L.R. (4th)624 (Sask. C.A.) and stated at 639: ...to enable a patient to give informed consent, a surgeon must also, where the circumstances require it, explain to the patient theconsequences of leaving the ailment untreated, and alternative means of treatment and their risks. The court in Haughian at 643, found that the medical practitioner failed to comply with his duty of disclosure when he failed: ...to advise adequately, or at all, of the available options of no treatment, or conservative management.

While it may have been open tothe respondent not to recommend these options by way of treatment, the patient was entitled to be advised that these alternatives wereopen to him. [109] See also Zaiffdeen v. Chua, 2005 ABCA 290, 380 A.R. 200; Picard & Robertson at para. 111; Gallant v. Patten, 2010 NLTD1, 292 Nfld, & P.E.I.R. 279 at paras. 55-58. [110] With reasonable alternatives being the low water mark, the question is how far beyond this must a physician go to satisfy thisduty? This duty was discussed in Seney v.

Crooks, 1998 ABCA 316, 223 A.R. 145 (C.A.) where the Court stated at para. 58: “the scopeof the duty to inform must be approached carefully” and might not include a “fringe alternative” or “alternative medicine practices.”Further, at para. 60, the Court stated: A patient should be advised of a known treatment which others in the same specialty consider superior, even if the doctor does not agree.It is the kind of information a patient fairly could expect to receive. If Dr.

Crooks did not think that anatomical alignment was essential,or that it was not worth the intrusive treatment, or that the device would not help achieve that alignment, he could have explained that tohis patient, together with his reasons for preferring the treatment of casting only. What he could not do was fail to discuss these matterswith her. [111] In the recent decision of Dickson v.

Pinder, 2010 ABQB 269, 489 A.R. 54, a chiropractor case, the plaintiff’s action wasdismissed on the basis that causation was not established, although the doctor was found to have breached the standard of disclosure.Justice Yamauchi said at para. 81: ....This is a fact-dependant threat assessment process. A patient cannot make a meaningful and informed choice to consent to a therapyunless that patient knows the consequences of other reasonable alternatives or inaction, and can balance the risks and benefits of theproposed therapy against those alternatives.

[112] In

summary, I stress again the point that a physician must disclose reasonable alternatives to any therapy they propose. Apatient cannot make a meaningful and informed choice to consent to a therapy unless the patient knows the consequences of reasonablealternatives and is able to balance the risks and benefits of the proposed therapy against those alternatives. G. Causation [113] The basic test for determining causation remains the “but for” test. This was recently reaffirmed in Resurfice v.

Hanke, 2007SCC 7 at para. 24, [2007] 1 S.C.R. 333 The “but for” test requires the plaintiff to show that the injury would not have occurred but forthe negligence of the defendant: Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458. In special circumstances where itproves unworkable the law has recognized exceptions to the basic “but for” test and has applied the “material contribution” test. [114] As part of this cause of action, the plaintiff must establish a causal link between the negligence and the injury.

If it isdetermined that the doctor failed to adequately disclose material risks of a procedure or alternative treatments or tests, the Court mustapply the modified objective standard to determine whether the lack of disclosure caused the loss. The modified objective test is set outin Reibl at paras. 25 - 27. Laskin C.J. (as he then was) noted the difficulties with applying a purely subjective test: “It could hardly beexpected that the patient who is sueing would admit that he would have agreed to have the surgery even knowing all the accompanyingrisks” (at 15).

Therefore, the test is whether a reasonable person in the circumstances of the patient, have consented to the procedurewhen all the material information, including material risks were disclosed? The onus of proving that the patient would not haveundergone the procedure lies with the patient. The test was considered and approved in Arndt v. Smith, (SCC), [1997]2 S.C.R. 539. [115] The Plaintiff cited the recent decision of Justice Kenny in Whitt v. Purkin 2008 ABQB 666, 458 A.R. 176, where the courtfound that the Defendant doctor failed to provide the plaintiff with an additional report from a physician.

She stated at para. 48: If the Plaintiff is successful in establishing that proper disclosure was not made, and the reasonable person in the plaintiff’scircumstances would not have proceeded with the treatment, the plaintiff must still establish that the treatment that was provided,without informed consent, was the cause of the Plaintiff’s injuries: Flodell v. Hesson (2000), 2000 ABQB 723 , 273 A.R. 118(Q.B.). [116] In short, causation in a failure to inform of alternative treatments requires the plaintiff to establish that a reasonable patient insimilar circumstances would have chosen the alternative treatment.

The additional component in this case is whether the damage wouldhave been avoided if the alternative had been chosen: Picard and Robertson at 192. This additional component of the causation test isdiscussed by C.

Adèle Kent, Medical Ethics, The State of the Law (Markham: LexisNexis Butterworths, 2005) at 138: ...Rather than relax or avoid the causation test or shift the burden when it is not known or it is unclear what would happen in the future,all of which set up exceptions to the general rule that the plaintiff must prove her case, thereby creating uncertainty, the answer is torecall and apply what the Supreme Court said in Snell – the application of the causation test need not be rigid nor does it need to beproven with scientific certainty. VII. Analysis 1. Did Dr.

Bass fail to meet the appropriate standard of care in failing to perform an ERCP or EUS prior to proceeding withan ERCP and prior to recommending an ERCP and Sphincterotomy? [117] Much of this case turns on whether Dr. Bass’ original diagnosis of gallstones was correct, as the experts are in agreement that ifthere was a high probability of gallstones then it was correct to proceed with an ERCP. In Dr. Bass’ view, Ms. Cory had a highprobability of gallstones. This diagnosis was based on Ms.

Cory’s recurrent classical accounts of biliary colic in addition to her history ofvery small gallstones and her recent transient elevated liver enzymes. In his letter to Dr. Rothwell, Dr. Bass stated that his impression ofMs. Cory was that she likely had choledocolithiasis and explained the basis of his diagnosis. She had had four recent episodes of typical

severe biliary colic and hospitalization in Cranbrook where she had abnormal liver enzyme function tests. [ 118 ] The Defendant argued that Dr. Bass conducted a physical examination of Ms. Cory ruling out other possible causes for pain such as liver disease. Dr. Bass also obtained a full medical history reviewing Ms. Cory’s recent trans-abdominal ultrasound reports, laboratory tests results, discharge

summary, and had obtained an account from Ms. Cory of her very recent attacks of classical biliary colic and hospitalization. He obtained a copy of her most recent blood tests, although as I explain below, it is never clarified as to whether Dr. Bass saw these results. He also records Ms. Cory’s history of prescription medications including pantaloc and protocol - an anti-spasmodic medication. [ 119 ] In my view, it is not clear from the evidence if Dr. Bass actually saw the last set of blood tests. She had liver enzyme tests done on August 24. These tests were basically normal.

The results were faxed to his office at 15:36. However, he has no record of what time he saw Ms. Cory that day but thought that it was sometime in the afternoon and after reviewing the evidence, I do not believe that he saw those results. [ 120 ] Dr. Singh testified that it was his belief that Dr. Bass was putting too much weight on Ms. Cory’s biliary colic and the transient rise in liver enzymes in Cranbrook to reach the conclusion that there was probably a common bile duct stone. [ 121 ] In his report, Dr. Singh indicated that Ms. Cory being pain free for months before seeing Dr.

Bass supported a low probability of a stone. During cross-examination he admitted that this part of his report was incorrect as Ms. Cory had an episode of biliary colic on July 30 and August 21, 2005. Her consultation with Dr. Bass was on August 31, 2005. When cross-examined on the fact that Ms. Cory had biliary pain ten days before seeing Dr. Bass, Dr. Singh stated that presence of pain would not have made a difference to him because other things could cause biliary type pain. Dr.

Singh believed that in a cholecystectomy patient upper quadrant pain was not of much weight in indicating the presence of a stone because there are many other things that can cause such pain. In his view, the probability of common bile duct stones was low. [ 122 ] Dr. Byrne testified as to the information that he had on Ms. Cory when writing his report Clearly this lady had attacks of biliary colic, which were consistent with gallstones, leading to the subsequent cholecystectomy for removal of the gallbladder.

Subsequent to that, she had further attacks of similar type pain, which occurred a number of times in the intervening period between the surgery and her consultation with Dr. Bass, and on some of those occasions, blood tests were taken which revealed some elevation of her liver blood tests. [ 123 ] In Dr. Byrne’s opinion, her history, the blood tests and the biliary pain supported the diagnosis of gallstones. A. Ultrasound Reports [ 124 ] The ultrasound reports did not indicate the presence of gallstones; however in Dr. Bass’ view this did not mean that they were not present. Dr.

Bass reviewed two trans-abdominal reports (July 7, 2004 and March 21, 2005) and a discharge

summary report (from Cranbrook Hospital) that referenced the results of a trans-abdominal ultrasound taken on July 30, 2005. [ 125 ] Dr. Bass testified that stones may form in the gallbladder, and this condition is called cholelithiasis. Due to the close proximity of the gallbladder to the abdominal wall, cholelithiasis can be diagnosed by a transabdominal ultrasound. Stones may pass out of the gallbladder into the bile duct where they may cause infection or pancreatitis. The condition of having stones in the bile duct is called choledocholithiasis.

Patients with stones in their gallbladder or bile duct may experience pain called biliary colic. Biliary colic pain generally lasts from 30 minutes to a few hours, and pain is felt in the right upper quadrant of the abdomen and radiates into the back. Alternatively, stones may pass from the ducts into the intestine itself. [ 126 ] In his opinion, the July 7, 2004 report indicated that Ms. Cory had tiny calculi in her gallbladder, her bile ducts were normal not dilated. According to Dr. Bass’ evidence he considered these very small gallstones to be between 1 mm to 4 mm. Dr.

Bass did not expect to see any dilation of the bile ducts with such small gallstones; however, as I find later, 4 mm is not necessarily small.

[ 127 ] Subsequent to her gallbladder surgery in December 2004, Ms. Cory had an abdominal ultrasound performed on March 21, 2005 which indicated normal findings and there was no indication of dilation of the common bile duct. In Dr. Bass’ view an abdominal ultrasound report is very inaccurate in depicting common bile duct stones particularly very small stones. He was not surprised that no stones were evident on the ultra-sound report. [ 128 ] With respect to the discharge

summary dated July 30, 2005, again there was no indication of the common bile duct but Dr. Bass testified that this did not surprise him as he would not have expected any dilation nor relied upon an abdominal ultrasound report to exclude a common bile duct stone. [ 129 ] Dr. Singh testified that he based his opinion that Ms. Cory had a low probability of having a common bile duct stone on the evidence that when she first saw Dr. Bass her bile duct was of a normal calibre. With respect to the calibre (width) of Ms. Cory’s bile duct, which was measured at 3 mm by ultrasound on March 21, 2005, Dr.

Singh stated: A normal common bile duct post cholecystectomy is - - is a good indication that the probability of stones is low. It’s certainly not the only test we use. But it’s - - it’s supporting evidence that the probability of a stone is low [ 130 ] Additionally, Dr. Singh testified that it was his understanding that the ultrasound conducted on July 5, 2005, also showed that the common bile duct was normal in calibre. [ 131 ] Dr. Byrne indicated that the ultrasounds taken after the removal of Ms. Cory’s gallbladder did not show any abnormal bile duct pathology. B. Liver Enzyme Tests [ 132 ] In Dr.

Bass’ opinion and Dr. Byrne’s opinion the results of the blood tests supported a finding of gallstones. On the other hand, in Dr. Singh’s opinion, the slightly elevated enzyme tests did not necessarily support a diagnosis of gallstones. [ 133 ] The first liver enzyme function test dated March 17, 2005 showed GGT, alkaline phospatase and ALT levels were high. On March 19, 2005 the GGT and ALT levels were high though lower on March 17, 2005.

On March 24, 2005 the ALT levels had returned to normal although the GGT levels had remained slightly high. [ 134 ] On July 30, 2005 the liver function tests were elevated with an elevated AST and GGT. Repeat testing eight hours later demonstrated a significantly diminished AST, normal alkaline phosphatase and diminished GGT. On August 24, 2005 the GGT levels were slightly elevated. [ 135 ] The discharge

summary from the Cranbrook Hospital indicated that the liver function tests had been elevated. Total bilirubin was normal. The patient was observed and eight hours later demonstrated that the liver function tests were returning to normal. [ 136 ] Dr. Bass, in his report to Dr. Rothwell, indicated that [referring to her hospitalization in Cranbrook] “her liver enzymes became moderately abnormal and promptly referred to normal the following day”. [ 137 ] Dr.

Bass explained that GGT, AST and ALT will typically react to a common bile duct stone obstruction whereas the alkaline phosphatase and bilirubin enzymes are normally slower to react to a common bile duct stone obstruction. He further explained that a slightly elevated GGT level is not, of itself, an indication of a common bile duct stone obstruction. He explained that GGT can react to a number of other factors, and so in order to associate a rise in GGT levels to a common bile duct stone, he would require a concurrent rise

in either ALT, AST or alkaline phospatase levels. Rises in these other enzymes to clinically significant levels was documented on two occasions. [ 138 ] Dr. Bass found the elevated liver enzyme levels on March 17 and 19, 2005 were associated with two of Ms. Cory’s classic biliary colic attacks and in his opinion, this was significant. Dr. Bass placed particular emphasis in his diagnosis on the transient rise then abrupt normalization of liver enzyme levels within eight hours.

He found these liver enzyme function tests to be consistent with a transient obstruction of the biliary tree caused by a small or very small stone. [ 139 ] Dr. Bass testified that AST and ALT rise in a similar fashion and both levels frequently rise in an acute obstruction of the biliary tree. While an increased bilirubin would have been useful information (because bilirubin levels may take some time to rise) a more persistent prolonged obstruction may be required in order for it to rise.

He further indicated that while GGT levels are useful as part of the pattern of liver enzymes, they may rise for many other reasons including medication and alcohol. However he indicated that if alcohol were the cause of the GGT elevation the GGT levels would remain elevated for a longer time such as weeks or months. [ 140 ] Dr. Singh indicated that the results of blood tests from March 24, 2005 showed that the liver enzyme ALT was within the normal range and there was a mild elevation in the GGT. Dr.

Singh testified that he did not put much weight on elevated GGT levels because GGT is very sensitive and can be elevated for a number of reasons including alcohol consumption or medication and is therefore “a little too sensitive for making diagnostic decisions on its own”. With respect to the elevated GGT in Ms. Cory, he stated: “I certainly don’t think it’s supporting evidence for a common bile duct stone.” [ 141 ] On cross-examination Dr.

Singh testified that Mrs Cory’s ALT levels were elevated in the blood work done on March 19, 2005, and although that is one of the liver enzymes that can be elevated where there is a common bile duct stone, in his opinion, the reading alone was not necessarily enough to support a stone. [ 142 ] Dr. Singh stated that Ms. Cory’s pre ERCP blood work in August 2005 was essentially normal except for a trivial elevation in the GGT. He stated that: “I think at this point she had a low probability of a common bile duct stone.” [ 143 ] Dr. Byrne testified as to the relevance of Ms. Cory’s liver enzyme tests. Dr.

Bryne indicated that different enzymes are commonly increased at different times during an attack and that ALT elevates in the initial phase of an attack, while it is not uncommon for alkaline phosphatase to remain at normal levels in the first 12 to 24 hours of an attack. In Ms. Cory’s March 19, 2005 blood tests the ALT levels were still elevated but had significantly decreased towards normal levels. Ms. Cory’s ALT levels had returned to normal by March 24, 2005. Dr.

Byrne indicated that the enzyme results suggested a transient obstruction of the bile duct, because in a persistent obstruction one would expect the alkaline phosphatase to become elevated and remain elevated. C. Differential Diagnosis [ 144 ] There could have been a different problem. In addition to the diagnosis of small common bile duct stones Dr. Bass also considered SOD, Type II. SOD is thought to be a dysfunction of the sphincter muscle which is the circular muscle around the papilla. This can result in high pressure and associated rise in liver enzymes and abdominal pain. Dr.

Bass testified that although he felt strongly that Ms. Cory had a stone, he felt their was a lesser possibility that she had SOD Type II. In his opinion, the most effective treatment of SOD Type II is a sphincterotomy, and he was aware of studies in the literature that showed good results with sphincterotomy for SOD Type II. He stated that the complication rates for a sphincterotomy with respect to SOD treatment is the same as a sphincterotomy for a common bile duct stone. He indicated that there are medications that may treat SOD Type II but that in his experience those medications are ineffective. Further, Ms.

Cory had already been on one type of medication used to treat SOD. [ 145 ] Dr. Singh offered three possible explanations for the transient rise in liver enzymes seen in Ms. Cory: (1) sphincter of Oddi dysfunction (SOD); (2) the passage of a stone; (3) a stone in the bile duct that transiently became obstructed and then floated back into the bile duct. Dr. Singh indicated that because there were multiple possible causes for the pain one could not assume that Ms.

Cory’s liver enzymes were elevated during each of her four episodes of biliary pain, even though on the two occasions that her enzymes had been measured during pain, they were elevated. [ 146 ] Dr. Byrne testified that based on the information that Dr. Bass had available, there were two possible differential diagnosis: first, stones in the common bile duct or second, SOD Type II. He further indicated that his recommended course of action for both of

these pathologies would be an ERCP. He would also perform a sphincterotomy for treatment of SOD Type II, and would do a sphincterotomy with extraction of the stones in the case of stones. [ 147 ] Dr. Byrne testified that SOD Type II may be treated with a sphincterotomy or pharmacologically. He stated that a sphincterotomy in cases of SOD Type II has a 85-90% success rate in relieving pain. He believed pharmacological treatment has minimal efficacy and that there are side effects of the medication. He was aware that Ms. Cory had been prescribed antispasmodic medication on April 4, 2005.

When planning a sphincterotomy to treat SOD, Dr. Byrne stated that he quotes the same risks to the patient as he would for a sphincterotomy for the purpose of finding a common bile duct stone and that the complications included pancreatitis and bowel perforation. [ 148 ] Further, in a referral letter from Dr. Rothwell, dated April 25, 2005, he stated: “There has been no history of jaundice and she does not believe the pain is related to food intake. An ultrasound and liver function test have been normal.

I do not believe that she has choledocolithiasis and I am unsure of the etiology.” [ 149 ] All the experts agree that if there was a high probability of gallstones then it was correct to proceed directly to an ERCP. However, Dr. Singh disagrees with the diagnosis and in his opinion she had a low probability of gallstones. I concur and having heard all the experts and evidence, I accept Dr. Singh’s testimony on this point for the following reasons: 1.

In my view, the evidence illustrates that there can be different reasons for biliary colic pain and the existence of pain does not necessarily mean that there is a stone is present. 2. The July 7, 2004 abdominal ultrasound report showed that the gallbladder contained tiny calculi which are mobile. Dr. Bass considered these small gallstones to be between 1 - 4 mm in diameter. The bile ducts were normal. It was agreed that a 4 mm stone would be medium size and would show up on an MRCP or EUS. 3. The ultrasound results (March 21, 2005 and a discharge

summary that referenced the results of an ultrasound from July 30, 2005) indicated that Ms. Cory’s bile ducts were normal and not dilated. There was no evidence of gallstones. Although this does not rule out the finding of the existence of a stone it is not consistent with a stone being in the common bile duct. I accept Dr. Singh’s testimony that a normal common bile duct post cholecystectomy is a good indication that the probability of stones is low. 4. There was much disagreement about the significance of the elevated enzyme levels. In Dr.

Bass’s view, the liver enzyme tests were consistent with a transient obstruction of the biliary tree caused by a small or very small stone. However, in my view, these tests were simply not conclusive and there is not enough evidence in these tests alone, to illustrate the presence of a stone. Further, the tests in March showed only mildly elevated GGT. 5. Dr. Bass placed much significance on the tests from her hospitalization in Cranbrook. Her liver enzymes were elevated with an elevated AST (approximately three times normal) and GGT (approximately three times normal).

This was the only test where the liver enzymes became significantly high. In my view, this one test is not persuasive enough to illustrate the presence of gallstones. Further, the evidence illustrates that there can be other causes for the abnormality including alcohol or other medications. Eight hours later the patient was observed and the liver function tests had returned to normal. 6. The test from August 24, 2005 indicated that the ALT was normal and the GGT was slightly elevated.

Again, this indicated only a trivial elevation which is my view was inconsequential and not strong enough to indicate the presence of stones. 7. Dr. Rothwell, in his referral letter to Dr. Bass, indicated that he did not believe that she had choledocolithiasis. [ 150 ] Based on my review of the totality of the evidence, it was possible but not at all certain that she had gallstones.

2. Did Dr. Bass obtain proper and informed consent from Ms. Cory prior to the ERCP? A . Did Dr. Bass inform the patient of reasonable alternative treatments ? [ 151 ] The Plaintiff submits that she should have been told of the alternative diagnostic tests prior to proceeding with the ERCP. There were two possible optional or additional diagnostic tests, namely an MRCP or EUS. There is no dispute about whether or not she was advised of these two alternative tests; she simply was not told about them. [ 152 ] Dr.

Bass testified that he considered those alternative investigations, but, in his view, the issue with doing an MRCP or a EUS was that a negative result from either would not rule out the presence of a small stone and therefore would not have changed his recommendation to Ms. Cory. Dr. Bass said that there was also a practical consideration with alternative investigations that was of less importance, and it was that the wait list for MRCP was at least three to six months at the time and he virtually could not get EUS at that time. He did not discuss diagnostic tests with Ms.

Cory because, in his opinion, the sensitivity and accuracy was not great enough to exclude the possibility of a stone. In my opinion, he did not discuss them with her because the discussion was irrelevant to what he intended to do. [ 153 ] Dr. Bass testified that stones in the bile duct may be diagnosed by the patients’ history of biliary colic as well as by ERCP, MRI and EUS. He stated that MRI is noninvasive and fairly good at detecting large stones but if the stones are 4 mm or less the accuracy is between 70-75%.

He testified that EUS has accuracy problems when you get into the very small stones and that it is also invasive as it involves putting a scope in and doing an ultrasound from the inside. On cross-examination he admitted the EUS is 85-90 percent accurate for detecting stones less than 4 mm. He testified that a transabdominal ultrasound can show dilatation of the biliary tree, and that dilation may occur where there is a large stone but that he would not expect dilation to occur with a small stone.

Additionally he testified that dilation rarely occurs with a transient obstruction and also occurs from other non-related things. [ 154 ] Dr. Bass testified that he considered small stones to be 4 mm or less, yet agreed that a 4 mm stone would be considered a significant stone. [ 155 ] Timing of the alternative tests, initially, seemed to be a problem. In reference to the availability of EUS in 2004 he stated during trial: We had one ultrasonographer who was doing a limited number of cases at that time, and we - - we had virtually no success at obtaining ultrasounds on other patients for a variety of things.

They - - the waiting list - - in fact, we were encouraged not to send any patients for referrals at that time. [ 156 ] When asked if he felt any obligation to discuss these less invasive tests at all with the patient in this case he replied as follows: I think that’s not a correct way of putting that, I didn’t feel an obligation. I feel –I always feel an obligation to do what I feel is in the best interest of the patient, and that – that is – it’s not that I was cavalier about it.

In fact, I tend to try and dissuade people from having ERCP’s if I do not feel that they are indicated. [ 157 ] On cross-examination he admitted that he did not have the power to determine whether a patient has a procedure, he makes requests about many different things and sometimes patients are accepted and sometimes they are declined. When asked on cross- examination whether he was required to tell a patient about the existence of MRCP or EUS he stated: If it’s an appropriate situation, we - - we do review those tests with the patient. I - - I use MRCP quite frequently, and, at time, endoscopic ultrasound.

The - - the situation is that if you feel no matter - - if you feel that you are going to get an - - if you get a negative result and you are still of the opinion that you’re going to recommend an ERCP, we - - we generally do not bring up the - - these procedures in patients.

[ 158 ] When asked about whether it was his standard practice in August 2005 to tell a patient in the circumstances of Ms. Cory about the existence of these non invasive tests he stated: It’s - - to say it wasn’t my practice; I - - I use the MRCP quite frequently in - - in the situation where I think it will be helpful, but I did not feel it would be helpful

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