Written By: Brandon Pedersen and Cody Malloy, Student-at-Law

Introduction

Medical malpractice cases focus on the standard of care owed to patients when receiving treatment.  Expert medical witnesses testify to what the standard of care is in the given situation, and whether the defendant(s) breached that standard of care.  If there is a breach, then the plaintiff(s) must prove that the breach caused their injuries.

Levy v. Rubenstein, 2022 ONSC 4547 (CanLII) is a case where the court was faced with conflicting testimony from expert medical witnesses with regard to the standard of care and causation with regard to the injuries suffered by Mr. Levy, a kidney cancer patient whose cancer later spread to his lungs.

Facts

Nissim Levy had successful surgery in 2009 to remove a left-sided renal mass after his kidney cancer diagnosis.  Mr. Levy had five follow-up x-rays from 2010 to 2013 to screen for recurrences under the supervision of a urologist.  The reviewing radiologists did not observe any abnormalities in these x-rays.  Mr. Levy’s October 2013 x-ray revealed a 4.5 cm lung mass, which ended up being removed in November 2013.  However, at this point, Mr. Levy had incurable lung cancer.  Mr. Levy brought an action against Dr. Joel Rubenstein and Dr. Anna Zavodni, the radiologists who reviewed the three x-rays prior to the October 2013 x-ray.  Dr. Rubenstein reviewed the April 2012 and June 2013 x-rays.  Dr. Zavodni reviewed the October 2012 x-ray.

The issue in this decision was whether the Defendants breached their standard of care owed to Mr. Levy.  The standard of care for this case was that of a reasonably prudent and diligent fellow professional in the same circumstances, at the same time.  If a breach of standard of care is proven by the Plaintiffs, they then must also prove causation, which means that “but for” the Defendants’ breach, the Plaintiffs’ injuries would not have occurred.  Causation is proven on a balance of probabilities.

The damages cited by Mr. Levy were adjuvant chemotherapy, recurrence of lung cancer, and psychological harm from disease progression, the resulting treatment, and delay in diagnosis.  With regards to psychological harm, Mr. Levy claimed that his life changed emotionally because he believes his life will be shorter and he will have to cope with an illness he thought he was rid of.  The Plaintiffs also sought damages for loss of support, care, guidance, and companionship.

Holding

Justice Sanfilippo found that the Defendants breached their standard of care owed to Mr. Levy.  However, the Plaintiffs only managed to prove causation against Dr. Rubenstein, who was held liable to the Plaintiffs.  As such, Dr. Zavodni was not found liable for the Plaintiffs’ injuries.

Standard of Care

Justice Sanfilippo noted that the Defendants should not be judged with the benefit of hindsight.  The standard of care analysis centered on the Defendants’ conduct at the time they reviewed the x-rays.

Dr. Rubenstein testified that he did not observe any abnormalities in Mr. Levy’s April 2012 and June 2013 x-rays when he reviewed them.  A common abnormality is an unexplained opacity in the results.  Such an opacity would appear whiter than the surrounding area on the image.  Similarly, Dr. Zavodni testified that she did not discover any abnormalities when she reviewed Mr. Levy’s October 2012 x-ray.

Dr. Heidi Schmidt, retained by the Plaintiffs, testified that both Defendants breached their standard of care because she observed an opacity in the April 2012 image.  Dr. John Mayo, retained by the Defendants, testified that neither of the Defendants breached their standard of care.  Dr. Mayo testified that he did discover the abnormality in the images, but it was “challenging” to do so because he was only able to discover the abnormality on the lateral view, which is more difficult to interpret than the frontal view.  In a lateral view, both lungs and the heart are superimposed on each other, which makes the image much more difficult for a radiologist to interpret.  Additionally, Dr. Mayo testified that it is much more difficult for a radiologist to discover an abnormality in this case prospectively than it is knowing the abnormality exists through hindsight bias.

Justice Sanfilippo accepted the expert evidence of Dr. Schmidt.  The court agreed with Dr. Schmidt that if the Defendants undertook a comparative analysis for each image to compare it with the most recent prior image, the increase in growth of the tumor was evident.  Also, a “reasonably prudent and diligent” diagnostic radiologist should not attribute less weight to a lateral radiograph, which Dr. Mayo claimed had less diagnostic value than a frontal radiograph.  Lastly, Mr. Levy’s history of kidney cancer should have given the Defendants a “heightened suspicion” when reviewing the Mr. Levy’s x-rays, which Dr. Mayo did not refer to in his expert opinion.

Causation

The Plaintiffs’ causation expert was Dr. Sheldon Fine, and the Defendants’ causation expert was Dr. Mark David Vincent.

Dr. Fine testified that the cancerous mass that grew and caused Mr. Levy to cough up blood in September 2013 was the same mass that the Defendants missed when reviewing the images in question from 2012-2013.  As such, Dr. Fine testified that Mr. Levy would have started treatment sooner (as opposed to incurring an 18-month delay), and he would have had surgery to resect the tumor sooner.  Dr. Fine further testified that the outcome of incurable cancer would have been avoided had the tumor been detected in April 2012.

Dr. Vincent testified that had Mr. Levy’s tumor been discovered from the April 2012 or October 2012 images, his risk of cancer recurrence would have been 39.4%.  If the tumor had been discovered from the June 2013 image, Dr. Vincent testified that Mr. Levy’s risk of cancer recurrence would have been 49.4%.

The court then undertook a three-step causation analysis from Sacks v. Ross, 2017 ONCA 773 (CanLII).  Step one asks “what likely happened in actuality”.  The court found that Mr. Levy’s tumor had been growing for at least two years prior to its discovery in October 2013.  The court held that, in actuality, the fact that Mr. Levy’s growth went undetected for two years caused him to have incurable lung cancer, requiring adjuvant chemotherapy.

Step two asks “what likely would have happened had the Defendants not breached their standard of care”.  Justice Sanfilippo found that had Dr. Rubenstein discovered Mr. Levy’s tumor in April 2012, Mr. Levy would have had surgery 18 months earlier, which would have resulted in losing less anatomy.  Justice Sanfilippo also accepted Dr. Fine’s opinion that had this surgery occurred sooner, chemotherapy would not have been recommended, and it would not have led to a recurrence of lung cancer.  Similarly, the psychological harm to Mr. Levy would not have occurred with regard to the disease progression and resulting treatment (but not from a delay in diagnosis alone).

With respect to Dr. Zavodni and causation, Justice Sanfilippo found that Mr. Levy’s tumor would have been discovered around the end of October 2012 anyway and that Mr. Levy would have sustained the complained injuries regardless.  Similarly, with respect to Dr. Rubenstein and the June 2013 x-ray, Justice Sanfilippo dismissed this as a “but for” cause of Mr. Levy’s injuries.

Lastly, Justice Sanfilippo dismissed the separate psychological harm claim arising from a delay in diagnosis because it was not “substantively different, or independent or distinguishable” from the psychological harm associated with disease progression and resulting treatment.