Ontario Court Finds Defendant Pathologist Breached The Standard Of Care

Ontario Court Finds Defendant Pathologist Breached The Standard Of Care: The Ontario Superior Court of Justice stated in its April 22, 2022 opinion: “On October 31, 2015, Mary Fleury underwent a laparoscopy at the West Parry Sound Health Centre for a suspected small bowel obstruction. During the operation the surgeon noticed evidence suggestive of cancer in Mary’s abdomen. Further testing following surgery revealed that Mary had metastatic adenocarcinoma of the appendix. On November 26, 2016, a little over a year later, Mary died from complications related to that cancer.

The Plaintiffs allege that Dr. Olayiwola Kassim, an anatomic pathologist, was negligent when he failed to identify and diagnose Mary Fleury’s appendiceal cancer when she had her appendix removed in 2011. The Plaintiffs further allege that had Mary been properly diagnosed in 2011, she would be alive today.

The Defendant says that he made an honest mistake when he failed to identify Ms. Fleury’s cancer in 2011, and that he was not negligent. The Defendant further says that even if he had diagnosed Mary Fleury’s cancer in 2011, she would have regrettably died in any event.

For the following reasons this court concludes, on a balance of probabilities, that Dr. Kassim did not meet the requisite standard of care when he examined Mary Fleury’s appendiceal samples in 2011 and failed to identify and diagnose cancer. Further this court concludes that, had Mary been properly diagnosed, she would likely be alive today. As such, her estate, her spouse and her two grandchildren are entitled to damages.”

The Ontario Court explained: “Dr. Kassim described being able to identify the cancer with “moderate ease” upon subsequent review, notwithstanding his attempts to quality this evidence with references to hindsight and the possible impact of inflammation on his review of the slides. In my view, this evidence supported the opinion of Dr. Al-Ridha that Ms. Fleury’s cancer was and should have been obvious even to a pathologist with basic training, and certainly to a pathologist with Dr. Kassim’s years of practice and experience. I also find that Dr. Kassim’s failure to identify Ms. Fleury’s cancer in 2011 was not an error made during an exercise of clinical judgement. I am satisfied on the evidence that the presence of cancer on the pathology slides was obvious and not a subject interpretation or debate. It would have been obvious to a pathologist with Dr. Kassim’s skill and experience. His failure to make that finding was a breach of the standard of care. The court accepts that Dr. Kassim has genuine and profound regret that he did not diagnose Mary Fleury’s cancer in 2011. The court further accepts that Dr. Kassim now believes that inflammation played a role in this case. However, the court finds that this is an after the fact justification when faced with the harsh reality that he missed something that he should have seen, which must be very difficult for him.”

With regard to causation, the Ontario Court stated: “Applying a robust and pragmatic approach to the evidence called at trial, the court concludes that it is unlikely that Mary Fleury had stage IV cancer in 2011 … The court accepts Dr. Gill’s evidence that had Mary Fleury received the definitive treatment for appendiceal cancer, her five-year risk of recurrence would have been less than 30%. While the court cannot conclude with absolute certainty that Mary Fleury would have been cured of cancer, the court does conclude that it is more probable than not that she would have been and would be alive today … the court concludes that the Estate of Mary Fleury is entitled to non-pecuniary damages for psychological and physical pain and suffering in the amount of $120,000 … Having reviewed the circumstances in this case, and having considered the analogous cases, the Court concludes that the following damages are appropriate for the loss of Mary Fleury’s care, guidance and companionship: George McAmmond – $100,000; Damian Reid – $50,000 and Gavin Bradford – $65,000 … , the total amount of pecuniary losses arising from the death of Mary Fleury are set at $1,053,183.”

Source The Estate of Mary Fleury v. Kassim, 2022 ONSC 2464 Court File No.: CV-16-084.

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This entry was posted on Wednesday, July 20th, 2022 at 5:21 am. Both comments and pings are currently closed.


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