Medical malpractice is the most complicated type of litigation there is, and causation is the most complicated part of any malpractice case. Thus causation is the piece of a case most likely to cause a plaintiff (an injured person or their family) to lose their case. Given how hard the issue of causation can be, the recent win in the case of Hacopian-Armen Estate v Mahmoud from the Court of Appeal (the highest court in Ontario) was a big deal.

What is Causation? 

Causation is the legal principle that the loss complained of must be connected to a breach of the standard of care by a defendant. Put another way, a court can only compensate someone for their injury if the injury would not have happened “but for” the defendant’s actions.  Causation is a very complex issue, and a full discussion of the issue can be found in our blog here: https://www.bergeronclifford.com/2020/01/19/medical-malpractice-issues-in-causation/

What Happened in this Medical Malpractice Case?  

In Hacopian, the plaintiff died in 2011 of stage IV uterine leiomyosarcoma (“uLMS”) (an uncommon malignant tumour that grows from smooth muscle cells and which spreads to other parts of the body, mainly the lungs and liver, through the blood stream) which had metastasized to her lungs.  The case centred around an allegation that her gynecologist failed to perform a routine endometrial biopsy in 2009 and that, if he had, her cancer would have been detected at an early stage such that her death could have been avoided through proper treatment.

The trial judge found that the defendant failed to treat the patient appropriately (breached the standard of care) and that his breach caused the plaintiff’s death.  After the Plaintiff won at trial, the doctor/CMPA appealed, but only on the issue of causation (not breach of the standard of care).

What Was the Evidence in this Medical Malpractice Case? 

The plaintiff had been diagnosed with fibroids (muscular tumours that grow in the wall of the uterus and that are generally benign) in 1999.  Fibroids are known to cause heavy bleeding if they grow to a significant size and this happened to the plaintiff in 2004.  The bleeding lasted for 2 weeks each month, such that her family physician ultimately referred her to the defendant in 2009.

By 2009 the plaintiff presented with several known risk factors for uterine diseases, including that she was over 40, she experienced abnormal uterine bleeding, and that she was nulliparous (a woman who has never given birth to a child).  At her first appointment, the defendant took a blood swab but did not perform an endometrial biopsy (a simple procedure that can be done in a gynecologist’s office, lasting mere minutes, and that can detect the presence of malignancies and abnormalities, including endometrial cancers and uLMS).

Shortly after her first appointment, she began experience significant health problems, requiring multiple ER visits and other hospital/specialist appointments.  Ultimately, in April 2011, the defendant finally performed an endometrial biopsy, which revealed that the plaintiff had a high-grade cancerous tumour in her uterus, which turned out to be stage IV uLMS.  Despite the initiation of chemotherapy, she died in August 2011.

The trial judge found that: (i) the defendant breached the standard of care by failing to perform an endometrial biopsy at his first appointment with the plaintiff in May 2009; (ii) a biopsy performed at that first appointment would have detected the uLMS and thus significantly improved her prognosis; and (iii) the harm that occurred was foreseeable and related to the appellant’s failure to perform the biopsy. 

What Happened in the Appeal of this Medical Malpractice Case? 

The appeal focussed on only the 2^nd issue above, and particularly, factual and legal causation. 

On legal causation, the Court of Appeal found that, while the trial judge improperly and retrospectively found that an endometrial biopsy would have detected the presence of uLMS, the error was harmless because the scope of the foreseeability analysis was not limited to detecting uLMS.  However, in a helpful and important finding, the court found that focussing on whether uLMS was a foreseeable risk of not having an endometrial biopsy unduly narrowed the scope of risk that should have been foreseen.  Rather, the focus should have been on whether “…the harm suffered [was] of a kind, type or class that was reasonably foreseeable as a result of the defendant’s negligence…In failing to conduct a test that would have detected the presence of cancers of the “same class” or character as uLMS, including uLMS, it was foreseeable that uLMS or other malignancies would go undetected, with consequent injury to Ms. Hacopian-Armen.” 

The defence argued that such a finding would cause physicians to order unnecessary tests (thereby wasting resources), but on the contrary the Court of Appeal accepted that the endometrial biopsy was a necessary test in the circumstances and thus the argument was unfounded. 

On factual causation, the defendant argued that the trial judge erred by finding that: a) uLMS was present in 2009 when the endometrial biopsy should have been performed, and b) that an endometrial biopsy would have detected uLMS had it been present.   

What Was the Result on Causation in this Medical Malpractice Case? 

On the former point, the defendant argued that the plaintiff’s expert’s report was deficient and that he should not have been allowed to testify because it did not set out why the expert believed uLMS was present in 2009.  The Court of Appeal, however, found that the expert properly explained, that the cancer would only have metastasized the way it did over a long period of time.   

On the latter point, the Court of Appeal upheld the trial judge’s acceptance of the plaintiff’s experts (over those of the defendant) that uLMS would likely have been detected by an endometrial biopsy, even though it was not identified by an ultrasound taken within a few months of when the biopsy should have occurred.  The plaintiff’s expert testified, and the trial judge accepted, that the uLMS was likely very small at the time the biopsy should have been performed, thus making it indistinguishable from a fibroid on imaging.  It was for that reason that an endometrial biopsy should have occurred and likely would have detected the cancer. 

About the Author

Joseph Dart is a partner at Bergeron Clifford LLP. He graduated from Yale University in New Haven, CT., in 200. He graduated from Queen’s University Law School in 2005. Joseph joined Bergeron Clifford in 2015, and represents plaintiffs in negligence, medical malpractice and auto cases.

Joseph was called to the bar in 2006, and began his legal career as a crown prosecutor in the Crown Attorney’s Office, first in Scarborough, and later in Belleville, where he worked on various high-profile criminal cases. During his time with the Crown’s Office, Joseph litigated many cases in both the provincial and superior courts of Ontario.

Joseph and his family moved to Kingston and he joined a local firm in 2011, where he gained tremendous experience while practicing civil litigation in a variety of areas, including personal injury.

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