Bafaro et al. v. Dowd et al., 2010 ONCA 188

• Judge: Laskin, Feldman and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 12, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 188;(2010), 260 O.A.C. 70 (CA)

Bafaro v. Dowd (2010), 260 O.A.C. 70 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.059

Doreen Bafaro, Michael Archambault and Tanya Archambault (plaintiffs/appellants) v. Ronald J. Dowd and Peter Willard (defendants/respondents)

(C49477; 2010 ONCA 188)

Indexed As: Bafaro et al. v. Dowd et al.

Ontario Court of Appeal

Laskin, Feldman and Gillese, JJ.A.

March 12, 2010.

Summary:

The plaintiff underwent a laproscopically assisted vaginal hysterectomy performed by her gynecologist. A fews days later she became ill and a general surgeon performed an exploratory laparotomy during which he found that the plaintiff had a badly infected pelvic hematoma. Two weeks after surgery, she developed further problems and it was discovered that she had developed an ileovaginal fistula (i.e., a connecting tunnel between her small bowel and her vagina). Later the fistula was surgically repaired. She sued both the gynaecologist and the surgeon for malpractice.

The Ontario Superior Court of Justice, in a decision reported [2008] O.T.C. Uned. H99, dismissed the action. In finding that neither doctor was negligent, the trial judge largely preferred the expert evidence called by the doctors to that called by the plaintiff. In any event, the trial judge concluded that the cause of the fistula was an infection, not a burn injury as claimed by the plaintiff. The plaintiff appealed raising three grounds of appeal. First, she made a wide ranging attack on the trial judge's findings of fact and credibility, contending that the trial judge either failed to consider or misapprehended important evidence. Second, she contended that by finding that the surgeon examined her small bowel, the trial judge erred in law in admitting and relying on a report the surgeon had sent to his insurer six weeks after he performed the laparotomy. Third, she contended that in finding that an infection, and not a burn injury, caused the fistula, the trial judge erred in law by applying the "but for" test for causation instead of the "material contribution" test.

The Ontario Court of Appeal rejected all grounds of appeal and dismissed the appeal.

Medicine - Topic 4241.2

Liability of practitioners - Negligence or fault - Causation - [See Torts - Topic 54 ].

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - The plaintiff sued a gynecologist and a surgeon for medical malpractice when she developed a fistula following a hysterectomy and subsequent exploratory surgery - She claimed that her gynecologist used a laparoscope during the hysterectomy procedure and burned her small bowel - The surgeon allegedly missed the burn injury during the exploratory laparotomy - The trial judge dismissed the action, making findings of fact and credibility adverse to the plaintiff on each of those issues, including a finding that the fistula was caused by inflammation and infection, not a burn - The plaintiff appealed challenging the trial judge's findings - She argued that the trial judge failed to consider important evidence or misapprehended the evidence - The Ontario Court of Appeal dismissed the appeal - The trial judge's findings were well supported in the evidence - See paragraphs 14 to 32.

Medicine - Topic 4245

Liability of practitioners - Negligence or fault - Surgical operations by doctors - [See Medicine - Topic 4242 ].

Medicine - Topic 4252.2

Liability of practitioners - Negligence or fault - Obstetrical or gynaecological care - [See Medicine - Topic 4242 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The plaintiff sued a gynecologist and a surgeon for medical malpractice when she developed a fistula following a hysterectomy and subsequent exploratory surgery - She claimed that her gynecologist used a laparoscope during the hysterectomy procedure and burned her small bowel - The surgeon allegedly missed the burn injury during the exploratory laparotomy - The trial judge dismissed the action, finding that the fistula was caused by inflammation and infection, not a burn - The plaintiff appealed, arguing that the trial judge applied the wrong legal test for causation by applying the "but for" test when she should have applied the "material contribution" test - The Ontario Court of Appeal rejected this ground of appeal - Since the trial judge found that neither doctor was negligent, the issue of causation was immaterial - Further, the plaintiff's submission wrongly conflated the issues of standard of care and causation - The court stated that even if one were to decide the issue of factual causation before the issue of standard of care, and even if one were to take the Snell v. Farrell "material contribution" approach to causation, the plaintiff could not succeed on this ground of appeal - On the trial judge's findings of fact, which are well supported by the evidence, there was no burn injury - See paragraphs 32 to 38.

Cases Noticed:

R. v. Stirling (B.J.), [2008] 1 S.C.R. 272; 371 N.R. 384; 251 B.C.A.C. 62; 420 W.A.C. 62; 2008 SCC 10, refd to. [para. 27].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 33].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 36].

Counsel:

Stanley M. Tick and Janis P. Criger, for the appellants;

Sarit E. Batner and Kate Findlay, for the respondents.

This appeal was heard on January 12, 2010, before Laskin, Feldman and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Laskin, J.A., on March 12, 2010.