J. Editor's Note: Addendum released August 6, 1997. Text of addendum appended to original judgment. Q.B. A.D.1993 No. 783 J.C. P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL SUCHORAB and STEVEN SUCHORAB DR. P. URBANSKI DEFENDANT Allan T. Logue for the plaintiff Christine J. Glazer for the defendant JUDGMENT ARCHAMBAULT J. June 11, 1997 This case exemplifies how positive and joyous event, the birth of healthy baby girl, would eventually be marred by rather tragic consequences for the plaintiff, Cheryl Suchorab ("Cheryl"), and her family. On August 25, 1992,Cheryl was delivered of her baby by caesarian section,following what has been described as an uneventful and evenexcellent pregnancy. Cheryl's recovery appeared to be progressing normally; she described herself as feeling and getting along fine. On September 29, 1992, some 34 daysfollowing the birth of her daughter, Cheryl was admitted on anemergency basis at the Victoria Union Hospital in PrinceAlbert, as a result of the sudden onset of profuse vaginalbleeding. The defendant, Dr. Gerry P. Urbanski ("Dr. Urbanski") who had performed the caesarian section delivery operation, was called in and attended to Cheryl's needs. Following initial examination and diagnosis, given the seriousness of the problem, Dr. Urbanski called in Dr. Colin Eric Clark ("Dr. Clark") and Dr. A. Zaidan ("Dr. Zaidan") to assist him. When satisfied that they had contained the bleeding and stabilized Cheryl as best they could under the exigent circumstances, she was transferred to the intensive care unit, where she could be closely monitored and followed. Initially, although not out of the woods, she appeared to be improving as well as could be expected despite the seriousness of her condition, which was of life threatening nature as result of extensive blood loss. However, on October 3, 1992, it became obvious that hemorrhaging had recurred. She was returned to the operatingroom where Dr. Urbanski eventually had to perform ahysterectomy. THE ISSUES The hysterectomy is the primary source of the problem in this case. Cheryl alleges that Dr. Urbanski was negligent in the performance of his professional duties and services upon her with the result that the hysterectomy, which could otherwise have been avoided, became inevitable. Central tothe plaintiff's allegations of negligence on the part of thedefendant is that the likely cause of Cheryl's ongoing orrecurring bleeding, on and after September 29, 1997, wasretained products of conception, which Dr. Urbanski failed toremove from her uterus by a dilation and curettage procedure("D & C"). Dr. Urbanski's credibility is challenged on theissue as to whether or not he actually performed the D & C, aprocedure which Cheryl alleges would have remedied thehemorrhaging which in turn would have obviated the necessityof performing the hysterectomy. As she was only 33 years of age at the time, had only the one child and was desirous, as was her husband, Steven Suchorab ("Steven"), of having more children, she was seriously traumatized by this result. Cheryl accordingly seeks damages from the defendant for her irretrievable loss, as well as for the pain and suffering resulting from her treatment and surgery. This action was commenced by both Cheryl and Steven, as joint plaintiffs, however, at the opening of trial, notice of discontinuance was filed on behalf of Steven. BURDEN OF PROOF AND STANDARD OF CARE It is trite law that in order to succeed it is incumbent upon the plaintiff to prove, on balance of probabilities, firstly, that Dr. Urbanski failed in the duty of care expected of him in the circumstances and secondly, that this failure caused the damages suffered by her. The standard of care which the defendant must meet is as stipulated in Quintal v. Datta, 1988 CanLII 5084 (SK CA), [1988] W.W.R. 481 (Sask. C.A.) (headnote p. 483): The standard of care for physician is the skill, knowledge and judgment of the average practitioner in the special group to which he belongs, and where there is more than one approved method of diagnosis or treatment physician is not negligent if, in exercising his best judgment, he selects an approved method which later turns out to be wrong or one not favoured by certain other practitioners. In this case, in addition to the oral testimony, the parties by agreement, filed an exhibit book (Document Book Exhibit P-1 D-1) essentially containing the large number of medical and hospital records pertaining to this case. As to the weight to be attached to such records, the Supreme Court of Canada held in Ares v. Venner (1970), 1970 CanLII (SCC), 73 W.W.R. 347, that they are admissible as prima facie proof of the facts stated therein. Hall J. speaking for the court stated at p. 362: Hospital records, including nurses' notes, made contemporaneously by someone having personal knowledge of the matters then being recorded and under duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in Court and available to be called as witnesses if the respondent had so wished. The Manitoba Court of Appeal in the case of Kaban v. Sett and Salvation Army Grace General Hospital (1995), 107 Man. R. (2d) 225 in applying Ares v. Venner rejected the view that "nurses' notes are only prima facie evidence and that, if there is sworn testimony contrary to the notes, the notes cease to be prima facie evidence." Scott C.J.M. speaking for the court stated at para. 24: In this case, there is no evidence to suggest that the nurses' notes were prepared in circumstances any different from those in Ares v. Venner. While in that case the nurses were present in court and available for cross-examination, McLachlin, J., noted in R. v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531; 113 N.R. 53; 1990 CanLII 77 (SCC), 41 O.A.C. 353; 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92; 1990 CanLII 77 (SCC), 79 C.R. (3d) (p. 105), that having the maker of the hearsay statement available for cross-examination is not prerequisite to statement being admissible. adopt the reasoning in Ares v. Venner and find that the prerequisites of reliability and necessity have been established in the current case, so that the nurses' notes are admissible as evidence of the statements contained therein. Necessity and reliability having been established, the nurses' notes are to be treated as substantive evidence and weighed against all other admissible evidence in deciding the issues raised in this case. The determination of the issue of liability and quantum of damages, if applicable, calls for more detailed finding of facts and analyses of the circumstances of this case. FINDING OF FACTS Dr. Urbanski, at all times material to this case, was qualified gynaecologist and obstetrician duly licensed to practice in the Province of Saskatchewan. Although his experience as specialist was relatively short, having been licensed to so practice in January, 1991, he had been surgeon for number of years, initially in Poland, his country of origin from 1977 to 1980, and subsequently, in Canada where he immigrated in 1980, and commenced practicing in 1984. He initially attended on Cheryl on August 25, 1992, when he was called in by her family doctor to assist in what was an obstructed labour problem. He determined that Cheryl would not be able to deliver her baby through natural childbirth and that caesarian section was necessary. He performed the caesarian section operation successfully. No issue is taken with the quality of his diagnosis and treatment in this regard. On September 29, 1992, Cheryl suffered sudden and massive hemorrhage. She was taken to the Victoria Union Hospital by ambulance, attended to, on an emergency basis, by Dr. Urbanski who had been called to emergency for this purpose. Cheryl was pale, cold, clammy and weak and diagnosed to be suffering from hypervolemic shock resulting from an acute loss of blood. In the emergency room she was stabilized by resuscitation procedures and transfused. Initial examination revealed that she was bleeding from the cervix. She was taken to the operating room for further examination and remedial surgery. Meanwhile an ultrasound was performed to assist in the determination of whether there were retained products of conception which might be the cause of the bleeding. The report of the radiologist, Dr. R. T. McKay, indicates that the pelvic ultrasound revealed the following: Large bulky uterus with internal hyper-echoic areas consistent with the results of retained products. There is evidence of some surrounding clot. No other abnormalities were found. (Exhibit P-1 D-1 VUH Doc. 19) It was Dr. Urbanski's plan, as indicated in his physician's clinical record (Exhibit P-1 D-1 VUH Doc. 12) to perform and laparotomy. In his oral testimony he stated that the plan should have indicated C, laparoscopy with possible laparotomy. He acknowledged in cross- examination that major cause of post-partum hemorrhage is retained products of conception, hence his request for the pelvic ultrasound and his initial plan to perform C. However, upon further examination after Cheryl had been anaesthetized in the operating room he detected bleeding from cervical artery. The bleeding had to be contained before anything else could be done. This was accomplished by the use of sponge forceps. He had called in to assist him Dr. Clark and Dr. Zaidan. He stated that after he temporarily stopped the bleeding and while waiting for his colleagues to arrive, he performed (a fact which is challenged by Cheryl). An exploration by way of laparoscopy revealed that there was fresh blood in the peritoneal cavity. After the arrival of Dr. Clark and Dr. Zaidan, because of the detection of fresh blood in the peritoneal cavity and the discovery of the necrotic cervix, they decided to proceed with laparotomy to further investigate the situation. The cause of the bleeding was confirmed to be the cervical artery. It was noted that the cervix was almost non- existent, friable and necrotic. The cervix extended only approximately four to five millimetres into the vaginal vault, making suturing almost impossible. As result of the laparotomy, Dr. Zaidan was able to manually push the uterus downward toward the cervix so that Dr. Urbanski could access the cervix for the purpose of suturing the bleeder. He was able to put in five to six sutures which stopped the bleeding. As result of the laparotomy, Dr. Clark and Dr. Zaidan were able to carefully check for retrocervical bleeding. When none was observed during half hour inspection and no other cause of bleeding was evident, the incision was closed and Cheryl was transferred to the intensive care unit. will, at this point, deal with Cheryl's allegation that no procedure was ever performed. The main argument for the plaintiff, in urging the Court to so conclude, are firstly, that Dr. Urbanski made no mention of having performed in the narrative portion of his report of operation (Exhibit P-1 D-1 VUH Doc. 21) and secondly, that given that retained products of conception were the likely cause of the post-partum hemorrhage, if had been performed it would likely have fully remedied the problem on September 29, 1997. It is the position of the plaintiff that the continuation or recurrence of bleeding after September 29, 1992, indicates that no was in fact performed by Dr. Urbanski. Counsel for Cheryl argued that the medical records "established conclusively" that no was performed. With all due deference do not find that to be the case. The report of operation under the heading "Operation" indicates the following procedures: "LAPAROSCOPY, SUCTION D&C, LAPAROTOMY TO RULE OUT INTRA-ABDOMINAL COMPLICATION, SUTURING OF FRIABLE, NECROTIC, ALMOST NON-EXISTENT CERVIX. RESUSCITATION." However in the more detailed, narrative portion of the report, while all other procedures are described, there is no further description or reference to the C. It is argued that because Dr. Urbanski usually renders fairly detailed description of operations and in view of his admission that the procedure should have been described, this omission is telling one. Furthermore, it appears from Dr. Clark's portion of the report that he was only advised of an "attempted C", by Dr. Urbanski. In addition, Dr. Clark expressed the opinion during his cross- examination at trial that he did not think it possible to perform while the sponge clamps were fixed to the cervix (a view which was not shared by Dr. Turnell). Admittedly these points are valid and, standing alone, might well justify the conclusion suggested by the plaintiff. At the very least they raise suspicion which calls for closer scrutiny of the evidence. In his testimony at trial, Dr. Urbanski indicated that he had, in fact, performed the after initially arresting the bleeding and before the arrival of Dr. Clark. His only explanation for his failure to detail the procedure in his report of operation is that it was an oversight, in the midst of the numerous procedures that he and his colleagues performed on this patient. At least two of the other medical doctors, who testified in this case, felt that this was, in the circumstances of this case, plausible explanation. Despite the fact that found Dr. Urbanski to be very defensive at times in giving his evidence, it is quite another matter to conclude that he was lying, especially when one considers his assertion in the light of all the evidence presented at trial. Other medical and hospital records forming part of Exhibit P-1 D-1 referred to the as procedure performed on Cheryl. See for example Physician's Clinical Report (Discharge Summary) (VUH Doc. 12, p. 12a) where it is indicated that was performed and that, "Suction did not reveal any product of conception ." This document was dictated and transcribed on October 13, 1992. As well, Dr. Urbanski's handwritten notes in Physician's Clinical Report (VUH Doc. 13) under date of September 29, 1992, reveal the following: Laparoscopy, laparotomy, C, Suturing of the cervix, B.B.L. 1500 Dr. Urbanski, Clark, Zaidan. Also of significance are the report and testimony of Dr. Marjory Theresa Jurgens, who was the anaesthetist attending on Cheryl for the operations performed on September 29, 1992. Her report (Exhibit P-1 D-1 VUH Doc. 22) indicates that was among the procedures performed. Counsel for Cheryl suggested in his closing argument that should consider Dr. Jurgens' report merely as "listing of the planned and expected procedures". That, however, goes contrary to Dr. Jurgens' oral testimony. While she admitted that she had no independent recollection as to the taking place, she indicated that her procedure in completing her report of operation is to record each procedure performed on patient only after its completion. She further stated that given the equipment required to perform and the characteristic noise of the suction pump, it is highly improbable that one would miss its happening or be mistaken as to whether or not it did occur. This view was supported by Dr. Roger Turnell ("Dr. Turnell"), qualified expert, obstetrician and gynaecologist, called by the defendant. The fact that on her report she listed the prior to the laparoscopy is hardly conclusive, despite the fact that she was not able to explain the listing order. It is interesting to note that the report of the operating room nurses (Exhibit P-1 D-1 VUH Doc. 23), which also specifies the as one of the operative procedures performed, has it listed after the laparoscopy and the laparotomy, when in fact the evidence does establish that no was performed after the laparotomy. Dr. Urbanski's several reports list the in varying order with the other procedures performed. It strikes me that in these succinct reports, the authors are perhaps more intent on listing what occurred rather than necessarily listing them in the exact order of occurrence. Does the plaintiff, in these circumstances, expect the Court to find that the operating room nurses' notes are fabrication of something that did not happen? There is no evidence to suggest that. The nurses were not called to explore any possibility of error. In my view, the report must be received as prima facie proof of the facts stated therein in accordance with Ares v. Venner. In the final analysis it is Cheryl who has the burden of proving on balance of probabilities that Dr. Urbanski failed to perform C. Not only has Cheryl failed to do so, but overall notwithstanding the weaknesses in the evidence, it does point to the contrary conclusion as the greater probability. It was further argued on behalf of Cheryl that, given that retained products of conception was the most likely cause of the hemorrhage, and the fact that the bleeding subsequently recurred, the Court should infer or conclude that it is highly unlikely that was performed. believe it is common ground among the several medical experts who testified at the trial that retained products of conception is the most common cause of post-partum hemorrhage. Dr. Mark Alexander Sheridan ("Dr. Sheridan"), an expert witness, obstetrician and gynaecologist, called by the plaintiff, stated that, in his opinion, that would apply to 80% of the cases. Dr. Phillip Bruce Victor Clement ("Dr. Clement"), an expert in gynaecological pathology, called by the defendant, and Dr. Turnell were of the view that the incidents of post-partum hemorrhage caused by retained products of conception were significantly lower. Dr. Turnell put it at 50% of the cases. While they differed on the frequency of this occurrence, believe that all of the medical experts were of the view that there are other causes of post-partum bleeding. Dr. Sheridan was particularly adamant about the high frequency of retained products being the cause and the fact that the solution should almost invariably be C. found him to be very dogmatic in his views. Given the difference of opinion of the many highly qualified medical experts who testified in this case, one must consider with caution such black and white opinions. believe Dr. Sheridan lessened his credibility by putting forth his opinions so stringently, despite the prevailing circumstances and complexity of this case. He engaged in good deal of rationalization and speculation, to endeavour to justify his conclusion that the post-partum hemorrhage, in this case, was caused by retained products of conception. He virtually ignored or took issue with facts which were conclusively established in evidence. While upon initial examination the most obvious diagnosis was undoubtedly that the hemorrhage was due to retained products of conception, cannot accept that it remained so after the further examination and investigation performed by Doctors Urbanski, Clark and Zaidan. In any event, believe there was general consensus among the experts that normally doctor faced with post- partum hemorrhage problem would, given that the most common cause thereof is retained products of conception, proceed to perform C. This was obviously Dr. Urbanski's initial intention, reinforced as it was by the ultrasound report (Exhibit P-1 D-1 Doc. 19). However, after his detection of the cervical artery bleeder and the further investigation by way of the laparoscopy and laparotomy, he concluded that the bleeding artery was the cause of the hemorrhage. Hemostasis was achieved by suturing the cervical artery and further investigation indicated no internal or other source of bleeding. In my view, his diagnosis and treatment, which were done in consultation with Dr. Clark and Dr. Zaidan, were proper and reasonable in the circumstances. In light of their observations, it was clinical decision call, as indicated by Dr. Clement. It strikes me that in so proceeding, in consultation with two other qualified obstetricians and gynaecologists, Dr. Urbanski acted in very professional manner and in accordance with the requisite standard of care expected of such specialists. Dr. Sheridan conceded that the most common cause is not always the correct diagnosis. The situation must be analyzed in light of the extremely significant finding of the very rare condition of necrosis of the cervix. It was immediately noted by both Dr. Urbanski and Dr. Clark that Cheryl's cervix was necrotic and very friable. Given the advanced stage of the necrosis and degree of deterioration it is readily apparent that the condition had been in existence for some time. This was confirmed by the opinion of Dr. Turnell who observed that the necrosis was "several weeks old not few weeks old three weeks or older." This type of necrosis is extremely rare and very few cases have been documented (see Exhibit P- 3). Dr. Turnell explained that this was an extremely rare phenomena, describing it as "one of these super rare conditions", the nature and cause of which have yet to be determined. Dr. Clement observed that in 20 years of practice, "I had never seen anything like this before". Cheryl testified that after performing the hysterectomy, in expressing his regrets and indicating that he had done nothing wrong, Dr. Urbanski advised her that "her case was unique, one in million that he had never saw, read or experienced anything like it before." Given the necrotic condition of Cheryl's cervix and the consequent deterioration of the artery at the lower cervical level, the diagnosis by Dr. Urbanski and Dr. Clark in consultation with Dr. Zaidan, as to the cause of the hemorrhaging was, in my view, both realistic and reasonable. Dr. Urbanski was able to stop the bleeding by suturing the cervical artery. Further investigation (laparotomy allowing visual observation) discounted any other source of internal hemorrhage. believe it highly unlikely that the collegial view of three specialists in gynaecology and obstetrics would, in these circumstances, constitute such diagnostic error as to be tantamount to negligence of duty and care. Based on the foregoing reasons find that it was most unlikely that the cause of the bleeding was retained products of conception. Hence, even if no had been performed, it would not likely have made any difference. Assuming no had been performed prior to the laparoscopy and laparotomy, it is my view, given the further investigation and findings of Dr. Urbanski and Dr. Clark, that any intended could have been cancelled as unnecessary. Dr. Turnell expressed the opinion that whether or not was performed on September 29, 1992, it would have had no effect on what eventually transpired. The necrosis of the cervix had nothing to do with any retained products of conception, if such there were. Before concluding my consideration of the cervical necrosis, should perhaps comment briefly on the evidence concerning when the necrotic portion of the cervix became detached and from what part of the cervix it originated. Dr. Urbanski indicated that it probably fell off during the suturing of the cervix. found him hedging on that point and that his evidence was rather weak. It is more likely that the necrotic piece fell off earlier in his intervention. The manner in which the medical reports of both Dr. Urbanski and Dr. Clark are drafted would support that as well as the testimony of Dr. Clark, who did not observe any piece of the cervix break off during suturing. Although find the medical evidence somewhat ambivalent on the point, it appears to me that the preponderant view of the medical experts is that the detached portion probably came from the lower part of the cervix and likely, for the most part, from the portion extending into the vaginal vault. In any event, in view of my other findings herein, do not believe that the specific determination of that point would affect or change the resolution of the causation issue. There is further evidence to show that retained products of conception was, in this case, unlikely to be the cause of the post-partum hemorrhage which occurred on September 29, 1992, and October 3, 1992. Both Dr. Urbanski and Dr. Jurgens testified that the performed on September 29, 1992, did not produce any products of conception but only blood products which were not retained by the filter sac. While most procedures generate tissue, it was acknowledged by all of the medical experts that in small number of cases nothing is produced. While Dr. Sheridan made much of this, Drs. Clark, Jurgens and Turnell all testified to the effect that suction procedure does not always produce pathology specimens. Where only blood products are produced, they are not usually submitted to pathology. The only tissue sent to the pathologist for analysis was the necrotic portion of the lower cervix which had broken away at some point during the examination and operations. It was identified as "necrotic tissue portion of cervix" (Exhibit P1 D-1 VUH Doc. 25). In corroboration of these findings is the fact that the tissue analysis of the uterus and cervix following the hysterectomy performed on October 3, 1992, does not indicate retained products of conception (see tissue report Exhibit P-1 D-1 VUH Doc. 31). This was confirmed by the histological examinations conducted by Dr. Turnell. believe another significant aspect of the evidence is the fact that the delivery of Cheryl's baby on August 25, 1992, was realized by way of caesarian section. As the medical evidence indicates, in such cases, because the placenta is hand delivered and the uterus is visually and manually cleaned, it is unlikely that retained products of conception will remain. refer to the Report of Operation (Exhibit P-1 D-1, HFH Doc. 21), wherein Dr. Urbanski stated in the first paragraph that the "[c]omplete placenta and membranes were delivered after the baby was delivered." In the second paragraph he adds ". the uterine cavity has palpated and the placenta removed manually. The uterus was then cleaned of all blood and clots. ." Clearly in the case of caesarian section birth the possibility of post-partum hemorrhage caused by retained products is accordingly diminished. This again supports the defendant's position that the hemorrhage in this case was not caused by retained products of conception. The opinion of Dr. John Allan Loewy ("Dr. Loewy"), radiologist and expert in the interpretation of ultrasound, called by the defendant, is interesting in this regard. He studied the films of the ultrasound performed on Cheryl on September 29, 1992 and expressed the view that there was no objective evidence of retained products of conception. While he conceded that their existence was still possibility, it was "not very probable". From what he observed on the films he felt it was the least likely explanation; blood products (clot) being more likely. Dr. Turnell also made an interesting observation with respect to retained products of conception being the cause of the hemorrhage. He stated that at this stage (34 days after birth) any remaining piece of placenta would be highly calcified and would show up brightly on the ultrasound. The ultrasound films do not show that. My view of the overall import of the evidence in this case is that it does not support the plaintiff's theory of causation (post-partum hemorrhage caused by retained products of conception and failure to perform C) resulting in the ultimate hysterectomy. The most likely hypothesis is the one propounded by Dr. Turnell, that the post-partum hemorrhage in this case was caused by the necrosis of the cervix. Given therarity of this condition and the paucity of documented medicalknowledge thereon, I do not believe that Dr. Urbanski can befaulted for what he did and for what eventually occurred. The best that can be expected is that medical practitioners will benefit from the knowledge gained in this case and in the future may more effectively address this uncommon problem. Regrettably this does not help Cheryl for whom the Court has great deal of empathy, given the tragic denouement to this unfortunate situation. There is no doubt that it has been painful experience for her, both physically and psychologically, and that she may well continue to suffer the after effects for some time to come. However, do not think that the blame for that should be laid at the feet of Dr. Urbanski. Given my finding, do not believe that the principles governing the determination of causation, as enunciated by the Supreme Court of Canada in Snell v. Farrell (1990), 1990 CanLII 70 (SCC), 72 D.L.R. (4th) 289, assists Cheryl in this case. In my estimation there is sufficient evidence refuting the plaintiff's theory as to what occurred such that the Court ought not to draw an inference of causation adverse to the defendant. do not think it necessary to discuss in great detail what occurred between September 29 and October 3, 1992. Dr. Urbanski believed that the cause of the bleeding had been found and rectified. As the patient was still in critical condition due to the massive blood loss, reasonable measures were taken to stabilize her condition. She was put in the intensive care unit where she could be closely observed and monitored. There was no reason to believe that hemorrhaging had recurred until significant fall in hemoglobin count for the second day in row as detected on October 3, 1992. Prior thereto, the count was consistent with the post-operative condition of patient who had lost massive amount of blood, had undergone surgery and was being treated with blood transfusions and I.V's. Despite the very deep concerns of Cheryl's husband and her mother as to what they perceived to be an apparent lack of progress, it must be noted that because of the seriousness of her condition, recovery was inevitably painful and slow. Having reviewed all the medical and hospital records in detail, Dr. Turnell expressed the view that she was making progress. He noted that her vital signs were stabilizing and that she was taking in fluid and starting bowel action. Even the reduced hemoglobin count up to and including October 2, 1992, was within the expected toleration limits in the circumstances of this patient. Of particular significance is the fact that an abdominal and pelvic ultrasound was conducted on October 2, 1992, and proved negative (Exhibit P-1 D-1 VUH Doc. 19a). Dr. Loewy indicated that there would be less than teaspoon of fluid present. On the other hand, the pelvic ultrasound of October 3, 1992, indicated that there was ". quite large fluid collections in both subdiaphragmatic regions posteriorly with evidence of blood and clot formation. Similar findings are found in both flanks and iliac fossa but not much actual blood was found in the pelvis. The size and shape of the uterus remain unchanged" (Exhibit P-1 D-1 VUH Doc. 19b). While Dr. Sheridan indicated that ultrasound is not effective in identifying fluids or blood in the pelvis or uterus, Dr. Loewy disagreed with him indicating that while ultrasound may not differentiate between blood and water, it is very accurate in identifying the presence of fluids be it blood or otherwise. Furthermore, Dr. Turnell indicated that there was nothing in the hospital records to indicate that significant amount of blood passed or that retained products of conception were found at any time between September 29 and October 3, 1992. Dr. Urbanski, in consultation with Dr. Walker who was called in at the request of Cheryl's mother, reacted with all due dispatch. Cheryl was returned to the operating room and the inevitable hysterectomy was performed. No issue is taken with the fact that at this stage, given the prevailing circumstances and Cheryl's deteriorated condition, that the hysterectomy was unavoidable. The operation was successfully completed and the plaintiff was eventually discharged from hospital on October 13, 1992. The evidence failed to establish whether Dr. Urbanski ordered transfusion on October as result of Steven's insistence or because of the result of the hemoglobin count; the timing is such that it could be and probably was both. Dr. Urbanski said that he ordered transfusion because of the continuing decline in the hemoglobin count. Frankly don't think much turns on that. In the throes of the situation, both Cheryl and her mother were extremely concerned; both feared for her life. Given their anxiety and that of Steven, they might well have somewhat overreacted in challenging Dr. Urbanski's management of Cheryl's case. That is understandable. He obviously took it as lack of confidence in his ability and manner of handling her case. This created some tension between Dr. Urbanski and Cheryl and her family. Dr. Urbanski, as professional, might have been more understanding of their feelings and hence less abrupt in reacting to their suggestions and concerns. If the theory of the plaintiff is accepted to the effect that the source of the bleeding was not resolved on September 29, 1992, the ongoing bleeding, as result of the previous extensive loss of blood, would undoubtedly have precipitated decline in the hemoglobin count earlier and put Cheryl's life in imminent danger. According to Dr. Sheridan, ongoing bleeding would have resulted in death within one or two days. Dr. Jurgens, on the other hand, was of the view that death would have occurred much sooner. That is another factor which supports the conclusion that it is unlikely there was ongoing hemorrhage from and after the operative procedures performed on Cheryl on September 29, 1992. This is borne out by the hospital records. It is argued on behalf of Cheryl that because necrosis of the cervix is rare and unexplained condition that it would be unreasonable to conclude that it was the cause of the hemorrhage in this case as opposed to the most common cause of retained products of conception. Despite the fact that necrosis of the cervix is an extremely rare and little understood phenomena, the fact remains that it definitely existed in this case; it was there and real and is not matter of speculation. Dr. Urbanski's evidence in this regard is corroborated by that of Dr. Clark and certified by the pathologist's tissue report and the evidence of Dr. Turnell. The fact that it is rare condition does not in any way make it less likely, when present, that it can cause hemorrhaging just as well as retained products of conception. The fact is that necrotic cervix is one where the cervical tissue is deteriorating, i.e., dying, including the blood vessels; hence the high probability that bleeding may result. Common sense alone will lead to such conclusion. While bleeding may be arrested, as was done here, it is probable that future bleeding could occur as result of the ongoing necrosis. That, in this case, is more likely cause of the recurrence of the post-partum hemorrhage experienced by Cheryl on October 3, 1992, than retained products of conception, which on the whole of the evidence is contra indicated. am somewhat at loss as to why Dr. Sheridan would so categorically reject such view. find the opinion of Dr. Turnell to be more realistic and reasonable given the prevailing conditions and the fact that he appeared to take all factors into account. To state that the performance of the laparoscopy and laparotomy in this case constituted negligence, in my view, is to ignore the bleeding cervical artery and the necrotic condition of the cervix. The evidencedoes not support the suggestion that in this case, a D & Cwould have cured the hemorrhage, originating as it did fromthe lower cervix. Surely these two conditions called for further investigation. Looking at it in retrospect, these procedures were clearly justified. accept Dr. Turnell's views in this regard. As he stated the laparoscopy is the definitive test, not the ultrasound. Contrary to the allegations of Cheryl, Dr. Urbanski stated that he did not suture the cervix shut. In that, his testimony is supported by that of Dr. Clark. He did concede however, as did other medical experts, that the cervical os may have become constrained (not patent) as result of inflammation and the accumulation of granulated tissue and blood clot; thus, renewed bleeding on October 3, 1992, or sometime between October and 3, could have resulted in the accumulation of blood in the uterus. CONCLUSION In summary the Court concludes as follows: 1. The plaintiff has failed to prove that the defendantwas negligent in his treatment of her. 2. The plaintiff has failed to prove that the cause ofthe post-partum hemorrhage experienced by her on September 29,1992 and subsequently, was retained products of conception. 3. The plaintiff has failed to prove that thehysterectomy she had to undergo on October 3, 1992, was theresult of Dr. Urbanski's failure to perform a D & C onSeptember 29, 1992, or because of any other negligent act oromission on his part. 4. Dr. Urbanski's care and treatment of the plaintiffmet the standard of care expected of the average physician andsurgeon, specializing in gynaecology and obstetrics. Accordingly, the plaintiff's claim is dismissed withcosts. J. Q.B. A.D.1993 No. 783 J.C. P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL SUCHORAB and STEVEN SUCHORAB DR. P. URBANSKI DEFENDANT Allan T. Logue for the plaintiff Christine J. Glazer for the defendant August 6, 1997 ADDENDUM ARCHAMBAULT J. to Judgment dated June 11, 1997 The first portion of the first full paragraph on p. is deleted and the following substituted therefor: The Manitoba Court of Queen's Bench in the case of Kaban v. Sett and Salvation Army Grace General Hospital (1993), 1993 CanLII 14765 (MB QB), 90 Man. R. (2d) 26 in applying Ares v. Venner rejected the view that "nurses' notes are only prima facie evidence and that, if there is sworn testimony contrary to the notes, the notes cease to be prima facie evidence." Beard J. stated at p. 32, para. 24. The quote following the paragraph remains the same. In addition, the following paragraph is added after the quote on p. 4: The Manitoba Court of Appeal, in dismissing the plaintiff's appeal, agreed with the trial judge's determination of the issue of the admissibility of the nurse's notes ((1995), 1994 CanLII 16696 (MB CA), 97 Man. R. (2d) 185).
A month following the birth of the plaintiff's only child by caesarian section, she underwent a hysterectomy on an emergency basis. She believed that the post-partum haemorrhage was caused by retained products of conception and that failure to perform a dilation and curettage procedure resulted in the hysterectomy. HELD: The plaintiff's claim was dismissed with costs. 1)The plaintiff failed to prove that the defendant was negligent in his treatment of her. The doctor's treatment and care met the standard of care expected of the average physician and surgeon, specializing in gynaecology and obstetrics. 2)She failed to prove that the cause of the post-partum haemorrhage was retained products of conception or that his failure to perform a D&amp;C resulted in the necessity of a hysterectomy or because of any other negligent act or omission on his part. The most likely hypothesis was that the post-partum hemorrhage was caused in this case by the necrosis of the cervix. Given the rarity of this condition and paucity of documented medical knowledge the defendant doctor could not be faulted. The evidence did not support the suggestion that a D&amp;C would have cured the hemorrhage. ADDENDUM: 1)The first paragraph was deleted and a new paragraph substituted: Kaban v. Sett in applying Ares v. Venner rejected the view that nurse's notes are only prima facie evidence and, if there is sworn testimony contrary to the notes, the notes cease to be prima facie evidence. 2)A paragraph was added after the quote on page 4: The Manitoba Court of Appeal, in dismissing the plaintiff's appeal, agreed with the trial judge's determination of the admissibility of the nurse's notes.