IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121115

Docket: 09-2574

Registry:
Victoria

Between:

Joy
Ann McKerr

Plaintiff

And:

CML
Healthcare Inc. and Leslie Connie

Defendants

Before:
The Honourable Madam Justice J. A. Power

Reasons for Judgment

[1]            
The plaintiff Joy Ann McKerr alleges negligence in the conduct of a
screening mammogram that took place on October 3, 2008 at a mammography
screening clinic located on Richmond Road in Victoria, British Columbia.

[2]            
The defendant CML Healthcare Ltd. (CML) operates the mammography clinic
at that location (and other imaging clinics in the Greater Victoria area), and
the defendant Leslie Connie is the mammogram technician employed by CML who
conducted the mammogram.  The plaintiff’s allegation against CML is based on the
principle that CML is vicariously liable for the tortious action of its
employee, Ms. Connie.

[3]            
The plaintiff alleges that during the mammogram procedure on her left
breast, she alerted Ms. Connie to the fact that she was experiencing severe
pain and discomfort and she asked Ms. Connie to stop the procedure.  Ms. Connie
did not stop and proceeded to complete the mammogram.  The plaintiff alleges
that she almost immediately developed a large hematoma in her left breast which
did not resolve.  Both experts at trial agree that she likely had a
pre-existing cancer in her left breast at the time of the mammogram.  However,
it was not until January 2009 that Ms. McKerr discovered the cancer.  Shortly
thereafter she received a diagnosis of inflammatory breast cancer and she now
has metastatic breast cancer which means that her cancer is not curable.

[4]            
Ms. McKerr alleges that her cancer was accelerated by the injury which
occurred during the mammogram procedure.  She seeks substantial damages for
pain and suffering not only as a result of the mammogram procedure itself, but also
for ongoing pain and suffering, a shortened lifespan, and numerous surgeries
and other treatments she received for cancer.  Ms. McKerr also seeks damages
for income loss since she had to abandon a successful business in order to
pursue her cancer treatments.

[5]            
The defendants deny liability arguing that there is no battery (although
the plaintiff did not plead or argue one), that the plaintiff has failed to
establish a breach of the standard of care of a skilled, knowledgeable and
competent mammography technician, and that the plaintiff has failed to
establish causation on the “but for” test.

ISSUES

[6]            
In addition to arguments surrounding the findings of fact the court
should make, the following issues arise in this case:

 1)       Does
the evidence establish that the defendant Ms. Connie breached the standard of
care of a skilled, knowledgeable and competent mammography technician?

 2)       If
yes, has the plaintiff established causation on the “but for” test of causation,
including the following sub questions:

 a)       Is
it possible for a mammography machine applying graduated compression up to the
maximum to cause the type of injury alleged by the plaintiff?

 b)       If
it is possible for a mammography machine to cause the type of injury alleged, but
for a breach of the standard of care of the mammography technician, would such
an injury have occurred?

 c)       If
the plaintiff sustained injury as a result of the mammogram did that injury
exacerbate or accelerate her breast cancer?

 3)       If
liability is found on the basis of the foregoing, what damages should be
assessed?

[7]            
The truthfulness, reliability and accuracy of Ms. McKerr’s personal
account of the mammogram are key issues for determination as part of the fact
finding process.  The defence asserts that Ms. McKerr is an unreliable
historian and that she has engaged in post facto rationalization.  The defence
asserts that Ms. Connie’s evidence of her usual practice, since Ms. Connie has
no independent recollection of the procedure, should be preferred over Ms.
McKerr’s evidence.

[8]            
There are numerous examples in the case law of the use of usual practice
evidence and examples where it has been preferred over independent
recollection: Belknap v. Meakes, 64 D.L.R. (4th) 452, 1 C.C.L.T. (2d)
192 (B.C.C.A.) ; Erbaturr v. Carruthers, [1990] B.C.J. No. 772 (S.C.); Friedsam
(Guardian ad litem of) v. Ng, [1994] 3 W.W.R. 294, 86 B.C.L.R. (2d) 335 (C.A.);
and Mirembe v. Tarshis, [2002] O.T.C.  456 (S.C.J.).  Ultimately,
however, each case turns on an assessment of the totality of the evidence and
on the evidence itself in determining what weight to give to usual practice
evidence.

[9]            
In undertaking the fact-finding process, I must keep in mind the
guidance from the Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R.
354 (B.C.C.A.) at para. 11 that I must consider the preponderance of the
probabilities evident in the circumstances and that I must consider the
evidence as a whole.  I am also mindful that truthfulness and reliability are
not necessarily synonymous.

THE MAMMOGRAM

[10]        
On October 3, 2008, the date of the mammogram, the plaintiff Joy Ann
McKerr was 61 years of age, single and a self employed businesswoman.  She had
moved from Calgary, Alberta to Victoria in 2004 and was operating a business
called Lifestyle Changes Downsizing and Moving Service Inc. (Lifestyle
Changes).  The business assisted seniors with the process of downsizing and
moving into retirement homes or otherwise into smaller accommodation.  The
business was developing successfully and Ms. McKerr had franchised the business
and sold one franchise.

[11]        
Ms. McKerr was in good health and underwent annual physical examinations
with her physician, a general practitioner, Dr. Goodchild.  She also regularly
did breast self examinations three to five times per month, usually in the shower. 
Ms. McKerr had previously had a mammogram done in Calgary, Alberta in 2002
which identified “fibroglandular tissue, nodularity and occasional benign
calcifications in both breasts, with no evidence of malignancy recognized.”  Ms.
McKerr had one primary relative, her mother, who had been diagnosed with breast
cancer.

[12]        
Ms. McKerr testified that the October 3, 2008 mammogram was the first
time that she had been recommended to have a mammogram by Dr. Goodchild and in
cross-examination she could not recall any earlier recommendations.  Dr. Goodchild’s
evidence is clear that he had recommended to Ms. McKerr that she have a
mammogram during appointments in the fall of 2004, October 2007 and July 2008,
so Ms. McKerr’s recall on this point is wrong.  Ms. McKerr’s appointment on
October 3, 2008 was a response to those recommendations.  The appointment was
for a routine self-referred screening mammogram as a precautionary measure. 
Ms. McKerr did not report, nor were there any physical findings of any
breast health problems prior to the mammogram.

[13]        
On Friday, October 3, 2008, Ms. McKerr attended for the mammogram.  As
stated above, it was performed by Ms. Connie, a technician employed by CML.  Although
Ms. Connie testified at trial, she had no independent recall of the mammogram
procedure.  She knew that she was the person who performed the mammogram
because her initials were on the film, and that it took place in room one,
which is one of the two screening mammogram rooms.

[14]        
The Richmond Road Mammography clinic has three rooms used for
mammography, two are used for screening mammography and one is used for
diagnostic mammography.

[15]        
Ms. Connie is a registered x-ray technician since 1972.  Prior to working
in mammography she worked in general x-ray.  She joined CML as a licensed x-ray
technologist 2003, and has worked in mammography with CML since that time.  She
has taken the Mammography l Course which is at the minimum level required for
the Screening Mammography Program of British Columbia but she does not have the
Mammography II Course which is recommended.  She was the designated quality
control person for CML from 2005 until 2011 when she lost that designation
since she did not wish to upgrade for the digital mammography equipment then
coming into use.

[16]        
As indicated, Ms. Connie had no independent recall of the mammogram at
trial and did not have any independent recall when it was brought to her
attention by a colleague Jacqueline Massullo during the week of October 6,
2008.

[17]        
During the mammogram, the evidence establishes that Ms. McKerr was
brought into the mammogram room and had some conversation with Ms. Connie prior
to the procedure starting.  There is some dispute about the nature of the
conversation.  The defence points to this as evidence of the plaintiff’s faulty
recall with respect to the entire procedure.  I do not accept this submission. 
Overall the evidence of Ms. McKerr and Ms. Connie is consistent with respect to
what Ms. McKerr recalls of that conversation and what Ms. Connie’s usual
practice would be.  It is clear that Ms. Connie tried to put Ms. McKerr at ease
by chatting about her children and grandchildren and by asking Ms. McKerr if
she had grandchildren.  At some point it is likely that Ms. Connie explained
the procedure.  It is also clear that Ms. McKerr did not appreciate the casual chit
chat and would have preferred a more professional or formal approach.

[18]        
Ms. Connie filled out the top portion of the Screening Mammography
Report (Exhibit 7, Tab 7) based on a series of questions that she asked Ms.
McKerr.  That form reveals that there was no breast lump or thickening present
at the time of the mammogram and that the mammogram was a routine examination. 
Ms. Connie would also do a visual check at that time.  It is clear from the
evidence that nothing unusual was yielded from the visual check.

[19]        
During the mammogram procedure, there are two images taken of each
breast, the cranial caudal (cc view), which is a top down view of the breast, and
the medio lateral (mlo view), which is a side view of the breast.  During the
procedure for the top down view, the breast is place on a plate and a paddle is
brought down on top of the breast in order to compress the breast in a
horizontal fashion.  The breast is repositioned during the side to side view,
and the breast is compressed from the side.  All of the evidence, including the
evidence of the plaintiff based on her prior experience, suggests that the
procedure can be uncomfortable for many women.

[20]        
What transpired during the mammogram procedure itself and in particular
during the taking of the images of the left breast, is in dispute.  Ms. McKerr
alleges that she was injured during the mlo (side to side) compression of her
left breast after which she almost immediately noted swelling and bruising.  The
defence submits that based on the usual practice of Ms. Connie, the images
could not have been taken in the order and manner that the plaintiff testified
to and that the plaintiff has been inconsistent in the manner in which she
described the incident.  The defendant argues that nothing unusual occurred.

[21]        
The plaintiff testified that Ms. Connie started taking images to her
right side first doing the top down view and then the side view.  She then
proceeded to take the top down view of the left side and then did the side view
of the left side.  This is when the incident that she described took place. 
Based on Ms. McKerr’s evidence, the image that caused the difficulty and
pain for her would be the left side view, which was the last view taken.

[22]        
Ms. Connie described a completely different sequence of imaging based on
the layout of the screening room and on her usual practice.  Ms. Connie
testified that she would start with the left breast top down view, do a right
top down view, and then do a left side to side view, followed by a right side
to side view.  Ms. Connie testified that the images are done in this way in
order to give the breast tissue a break and because it is inefficient as far as
the time involved in positioning the machinery.  Ms. Connie testified that she
would only derogate from her usual practice if there was something about the
presentation of Ms. McKerr that required some change in her usual practice.

[23]        
It is difficult to reconcile the difference between the evidence of Ms.
McKerr and Ms Connie on this point.  I prefer the evidence of Ms. McKerr since
she has a direct recall of the mammogram and Ms. Connie’s evidence does
indicate some flexibility with the procedure employed.  However, even if the
order of imaging occurred in the manner that Ms. Connie described, it
would not be surprising that Ms. McKerr could not remember another image taken
after the image giving rise to the alleged injury, since on her evidence she was
in a great deal of pain as a result of the left side to side view, which may
have impacted her recall of the order of images.  Ultimately, in my view, the
order of images does not impact on the ultimate issue of what occurred during
the side to side image of the left breast.

[24]        
Ms. McKerr testified that the top down compression of the right and left
breast and the side to side view of the right breast was without incident.  Ms.
McKerr testified that throughout the procedure Ms. Connie was talking a lot and
moving quickly.  During the left side view,  Ms. McKerr described being placed
in the plates “very rough” and when compression started minimally she expressed
to Ms. Connie “I don’t feel like I’m in here” and Ms. Connie continued with
full compression.

[25]        
Ms. McKerr testified in cross-examination that she “felt more than I
heard” something burst in her left breast, although in direct examination she
emphasized the sound of something bursting.  Ms. McKerr said she told Ms.
Connie in an urgent tone of voice:  “I think we need to stop, this is really
hurting me and my arm is killing me, and something is really wrong.”  She
testified that she was in “excruciating pain” and that Ms. Connie proceeded and
“told me to hold my breath, and that it would be over in a minute.”

[26]        
The defence disputes Ms. McKerr’s version of events.  Although Ms.
McKerr was cross-examined extensively about what occurred during this part of
the procedure and her examination for discovery was put to her, I did not find
any significant inconsistency in her description of the incident, or in her
evidence at examination for discovery.  Further, the plaintiff was not asked
specifically at examination for discovery whether she requested that Ms. Connie
stop the procedure.  I am satisfied on the evidence that the plaintiff expressed
an urgent concern about being improperly placed in the machine, that she was
experiencing extreme pain, and that she made it clear by words and conduct that
she was in extreme pain and she needed the procedure to stop.

[27]        
The plaintiff’s evidence about Ms. Connie’s response, by asking Ms.
McKerr to hold her breath and that it would be over in a minute, is consistent
with Ms. Connie’s usual approach and represents the kind of words that she
would use.  The expression of pain by a patient is not unusual during a
mammogram and Ms. Connie testified that she has had many patients complain
of pain or discomfort during a mammogram.  Ms. Connie testified that if she was
asked to stop she would do so and stated explicitly if “at any time a patient
asks you to stop, you stop.”  However, later in her testimony she was more
equivocal when she stated “If the patient asks us to stop, it depends — it
would depend on how urgent that sounded.  If it’s ‘Stop, stop, I can’t do this,’
you would automatically hit the release and release them from the exam.”  (February
21, p. 13, lines 6 – 7 and 28 – 32.)

[28]        
The plaintiff testified that throughout the mammogram procedure, Ms.
Connie appeared to be rushed and in a hurry.  The defence challenges this
assertion.  Ms. Connie testified that on average, a technician will see
somewhere between twenty to twenty-five patients a day and that the standard
screening mammogram will take between five to seven minutes.  Ms. Connie also
testified that if extra time is required at booking, the clerk will book a
double time slot, and that there is no scheduled duration for a patient’s
mammogram since if the technologists fall behind they will work through
breaks.  Jacquie Massullo, another technologist, testified that the expectation
is that the technologists do 25 cases per day.

[29]        
The evidence establishes that no gown or change room is provided to
patients and that the patient disrobes to the waist prior to the procedure in
the screening mammography room.  Ms. Connie testified that the use of gowns is
not environmentally friendly, but also that no gown is provided in order to
“… facilitate expedient use of time.”

[30]        
On the day of Ms. McKerr’s mammogram, the clinic was not operating as
usual since there was a problem with the mammogram machine in room two.  I
accept the submission of the plaintiff that it is reasonable to conclude that
more patients were being put through room one (which is the screening
mammography room the plaintiff’s mammogram was conducted in), which would
result in the technologists being under more time pressure than usual.

[31]        
I accept the plaintiff’s evidence and argument that Ms. Connie was
rushed and in a hurry.  The defence response, by pointing to the booking
procedure and that the technologists will work through their breaks in order to
keep up, in my view supports the plaintiff’s evidence on this point rather than
the defence, since time constraints are naturally built into the process and it
would be natural for a technician to speed up the process in order to stay on
time.

[32]        
Ms. McKerr testified that after the procedure she had tears running down
her face and that she told Ms. Connie she was in a lot of pain.  Ms. Connie
gave her a tissue and told her to get dressed and that she would meet her in
the lobby.

[33]        
Ms. Connie testified that in her usual practice, after the four images
are taken she will tell the patient to dress and go to the waiting room to fill
out the patient questionnaire contained in the patient file.  She stated that
under no circumstances would she send a patient into the waiting room with
tears in her eyes since she would not only be concerned about the patient, but
she would not want other patients to see someone leaving a mammogram room in
tears.

[34]        
I am satisfied on the evidence that the procedure described by the
plaintiff was extremely painful and that she had tears in her eyes as a
result.  It is also likely that by the time Ms. McKerr left the mammogram room,
she had recovered her composure.  In the waiting room, Ms. McKerr filled out a
Background Information survey.  The form invited any comments on the patient’s
experience.  Ms. McKerr did not complete any comments about her experience
although she was in significant pain at the time.

[35]        
While Ms. McKerr was in the waiting room, Ms. Connie came out to the
waiting room, spoke to her and told her that some cysts has shown up on the
mammogram and that she wanted Ms. McKerr to get the 2002 images from Calgary. 
Based on the evidence of Ms. Connie, and the practice of the CML clinic, it is
unlikely that the conversation about cysts occurred at that point, or at all,
and Ms. McKerr is mistaken in her recollection.  Ms. McKerr’s recollection
of a conversation at that time may represent a conversation with someone else
at some other point since Ms. McKerr has dealt with many health care
practitioners since October 2008.

[36]        
Based on the evidence of Ms. Connie, it is clear that Ms. McKerr would
have been advised that Ms. McKerr could leave the clinic once Ms. Connie was
satisfied with the quality of the images taken and that they were capable of
being read by a radiologist.

POST MAMMOGRAM

[37]        
Ms. McKerr testified that by the time she got to the parking lot behind
the CML clinic, she could feel swelling and a lump or a bump forming on the
outside of her breast.  When she got home, she looked at her left breast and it
was starting to bruise with a reddish colour on the top, and it was throbbing.

[38]        
She tried to phone the CML clinic on Saturday (October 4), but she
reached CML’s answering service and learned that CML would be open again on
Monday (October 6).

[39]        
Throughout the weekend, she took aspirin for pain, and just “laid still
because it was too painful to do anything.”

[40]        
On Monday, October 6, Ms. McKerr phoned the CML clinic and spoke to
Jacquie Massullo, another x-ray technologist at CML.  In the call, Ms. McKerr
described the pain, swelling and bruising that she had experienced since the
mammogram the previous Friday.  Although she did not use the word “complaint”
she was of the view that it could be taken as a complaint even though she did
not use that particular word.

[41]        
Ms. McKerr testified that Ms. Massullo told her that she would get back
to her and that when Ms. Massullo called back and there was a male voice in the
background and they were on speaker phone.  She testified that Ms. Massullo explained
he was the one who read the x-rays.  The male asked her what was doing for pain
and she explained that she was taking Aspirin.  He told her that she should
take Tylenol and not Aspirin for pain since if there was bruising, aspirin
promoted bleeding.  Ms. McKerr testified that both Ms. Massullo and the
male told her that she needed to see her doctor right away.  Ms. McKerr
believed that the male’s name was Rob.

[42]        
As a result of the call, Ms. McKerr called her general practitioner’s
office and obtained the earliest appointment possible on October 8, 2008.  She
followed the advice that she was given in that phone call that she should
contact her doctor right away.

[43]        
Dr. Stuart Silver was a diagnostic radiologist who was on duty on
October 6, 2008.  He does not specifically recall the date but according to the
schedule he attended CML to read the mammography images.  Based on his evidence
and the evidence of Dr. Koopmans, another radiologist, based on their usual
practice, the purpose of Dr. Silver’s attendance on October 6, 2008 would have
been to read the images from the previous Friday, October 3 and therefore he
may well have reviewed the plaintiff’s images.  It is likely he who requested
the 2002 mammogram images from Calgary prior so that the October 3, 2008 images
could be compared to the 2002 images and properly read.  Dr. Silver does not
recall speaking to the plaintiff on October 6, and he does not recall speaking
to Ms. Massullo about the plaintiff on that day.  If he had spoken to the
plaintiff in the manner that she describes he would not have recorded it.

[44]        
Ms. Massullo testified about the conversation from her memory.  She
testified that she would have made notes of the conversation with Ms. McKerr on
a piece of paper, and placed the notes in the film bag which is a manila
envelope that contains the mammogram images taken of the patient.

[45]        
The note has gone missing, and the plaintiff asks me to draw an adverse
inference from that on the basis of the doctrine of spoliation.

[46]        
The defendant argues that for an adverse inference to be found against
them there must be evidence that the defendants deliberately disposed of the
documents to further their case.  The defence points to Dawes v. Jajcaj (1995),
15 B.C.L.R. (3d) 240, [1996] 3 W.W.R. 525 (S.C.) where the court stated it “…
must at least be satisfied that the object in issue was intentionally destroyed
through bad faith and not as a result of mere negligence on the part of the
party or his expert” (para. 18).

[47]        
In Dyk v. Protec Automotive Repairs (1997), 151 D.L.R. (4th) 374,
41 B.C.L.R. (3d) 197 (S.C.) the court noted at para. 3:

[3]        On a review of the United States decisions, it is
clear that mere negligence is an insufficient basis for drawing the “spoliation
inference”.  Katz and Muscaro summarize that the inference will only be
available upon showing that the following factors are present:

 (1)        the evidence has
been destroyed; (2) the evidence was relevant; (3) legal proceedings were
pending; and (4) the destruction was an intentional act of the party or the
party’s agent indicative of fraud or intent to suppress the truth.  Some courts
have extended the application of this doctrine to situations in which legal
proceedings were not pending but were reasonably foreseeable when the
destruction occurred.  The inference may be rebutted “by evidence explaining
the tampering or by establishing facts contrary to those inferred from the
tampering.”  (supra, p. 61).

[48]        
In Holland v. Marshall, 2008 BCCA 468 the court considered the
doctrine of spoliation and did not take the opportunity to reverse the law as
it has developed at the trial level in British Columbia.

[49]        
In the case at bar, in addition to the evidence of Ms. Massullo that she
would have made a note of her conversation with Ms. McKerr and placed it in the
film bag, the evidence supports that the film bag was forwarded to the Victoria
General Hospital in October 2008, and subsequently to CML on January 26, 2009
and then forwarded to the Screening Mammography Program of British Columbia
(SMPBC) in March 2009 and never returned to CML.  Ms. Connie testified that she
did not see the film bag again after the date of the mammogram.

[50]        
In my view there is no evidence that the defendants engaged in any
intentional destruction of evidence indicative of fraud or an intent to
suppress the truth.  The film bag would have been handled by a number of people
and may have gone missing through inadvertence but the evidence does not
support any deliberate or intentional act.  Accordingly, having considered the
authorities, I am of the view that I cannot draw an adverse inference against
the defendants on the basis of the doctrine of spoliation.

[51]        
The only record remaining that relates to the call of October 6 is
contained in a computer entry dated December 1, 2008 which appears to be
generated as a result of another call from Ms. McKerr on that date.  In that
entry it states that Ms. McKerr “… called and talked to Jacquie because
she had damage to her left breast.”  On December 1, 2008 Ms. McKerr was in
Mexico and called CML from Mexico.

[52]        
In her testimony, Ms. Massullo confirmed that Ms. McKerr phoned CML on
October 6 and expressed concern about bruising and swelling.  Ms. Massullo did
not recall Ms. McKerr expressing concern about a lump.  Ms. Massullo told
Ms. McKerr that she would call her back after she spoke to a radiologist.  She
testified that Dr. Silver came in just as she was hanging up, she spoke to
him and then she called Ms. McKerr back almost immediately and told Ms.
McKerr that Dr. Silver had suggested that Tylenol would be a better choice for
pain relief.  She advised Ms. McKerr to see her physician “if she needed
to” and denied any recollection of saying that the plaintiff should see her
doctor as soon as possible.

[53]        
Ms. Massullo testified that there was a procedure for documenting
complaints, that the first response was to handle them in the office, and that
the next protocol was to fill out an unusual occurrence form.  In this case,
Ms. Massullo was satisfied based on her tone of voice and the nature of the
conversation that the phone call had been handled to Ms. McKerr’s satisfaction
and that there was no need to document it by way of an unusual occurrence form.

[54]        
I accept Ms. McKerr’s recollection of the phone calls of October 4 and
October 6, 2008 over Ms. Massullo’s.  In so doing, I do not believe that Ms. Massullo
was in any way trying to mislead the court and that she was testifying to the
best of her recollection.

[55]        
Dr. Silver has no specific recall of talking to either Ms. McKerr or Ms. Massullo,
so his evidence does not assist.  Further, the fact that the phone call was not
referred to Janet Menu the Operations Manager for CML’s Victoria clinic, is
consistent with the evidence of Ms. Massullo since she thought the call was
satisfactorily handled and did not refer the call.  However none of this
evidence  assists in determining whether the phone call of October 6 could be
considered a complaint particularly since Ms. McKerr was of the view that when
she was speaking to Ms. Massullo she was speaking to a supervisor.

[56]        
I found Ms. McKerr sincere and credible when she gave evidence that she
is not a complainer by nature and that she was phoning on October 6, 2008 to
seek advice and assistance.  That evidence makes sense.  At that point it would
not be clear that there would be any need to make a formal complaint and it was
not clear that there would be any longstanding problem.  It is reasonable that
at that point Ms. McKerr’s focus was resolution of her pain and symptoms
rather than complaining about the conduct of the mammogram.  That does not
change the fact that she may have had reason to complain.  Ms. McKerr’s
recollection of speaking to two people is clear and specific.  In my view, it
is likely that Ms. Massullo called Ms. McKerr back when Dr. Silver was
present.

[57]        
Further, as I have noted, as a result of the phone call, Ms. McKerr
acted on the advice of Ms. Massullo and Dr. Silver and immediately booked an
appointment with her physician Dr. Goodchild.

[58]        
In the result, in my view, the evidence of the phone call on October 6,
2008 could be considered a complaint and does provide some corroboration of the
events of October 3, 2008 as described by Ms. McKerr.

[59]        
Ultimately, the plaintiff’s 2002 mammogram images were obtained from Calgary,
and the mammography images obtained on October 3, 2008 were read by Dr. R.
Koopmans, a radiologist at CML on October 16, 2008.  He would have read them
with reference to the 2002 images to look for changes between 2002 and 2008.  The
Mammography Screening Report completed by Dr. Koopmans reflects a “low
suspicion finding” requiring follow up imaging at Victoria General Hospital.

MEDICAL FOLLOW UP TO THE MAMMOGRAM

Dr. Goodchild

[60]        
On October 8, 2008, Ms. McKerr was examined by her general practitioner Dr.
Goodchild.  Ms. McKerr has been a patient of Dr. Goodchild since 2004.

[61]        
In his evidence, Dr. Goodchild gave evidence about his clinical records
which include his working diagnoses or assumptions and problem lists or
symptoms that he needs to refer to quickly.  Dr. Goodchild stated at many
points throughout his examination that his clinical records were not exhaustive
notes of everything that occurred or everything that was said at each
appointment and that the notes were made “on the fly.”

[62]        
In considering Dr. Goodchild’s evidence, all of the medical evidence
which included other references to clinical notes and clinical records and the
evidence of Ms. McKerr, I have adopted a similar approach to N.H. Smith J. in Edmondson
v. Payer, 2011 BCSC 118, aff’d 2012 BCCA 114, about inconsistencies in the
evidence relative to clinical notes and records where he said commencing at
para. 31:

[31]      In Diack v. Bardsley (1983), 46 B.C.L.R.
240, 25 C.C.L.T. 159 (S.C.) [cited to B.C.L.R.], aff’d (1984), 31 C.C.L.T. 308
(C.A.), McEachern C.J.S.C., as he then was, referred to differences between the
evidence of a party at trial and what was said by that party on examination for
discovery, at 247:

 … I
wish to say that I place absolutely no reliance upon the minor variations
between the defendant’s discovery and his evidence.  Lawyers tend to pounce
upon these semantical differences but their usefulness is limited because witnesses
seldom speak with much precision at discovery, and they are understandably
surprised when they find lawyers placing so much stress on precise words spoken
on previous occasions.

[32]      That observation applies with even greater force to
statements in clinical records, which are usually not, and are not intended to
be, a verbatim record of everything that was said.  They are usually a brief
summary or paraphrase, reflecting the information that the doctor considered
most pertinent to the medical advice or treatment being sought on that day. 
There is no record of the questions that elicited the recorded statements.

[33]      When statements of a party are relied on for the
truth of their content, the authors of Sopinka, Lederman & Bryant, The
Law of Evidence in Canada, 3d ed. (Markham, ON: LexisNexis Canada, 2009)
point out at paragraph 6.398 that one rationale for the admissibility of such
statements is that “it is always open to the party to take the witness box and
testify either that he or she never made that admission or to qualify it in
some other way.”  The authors also emphasize at paragraph 6.413, that the whole
of a statement must be put into evidence:

 Thus,
if an admission contains statements both adverse and favourable to a party and
if an opponent tenders it, he or she may thereby be adducing evidence both
helpful and damaging to his or her cause.

[34]      The difficulty with statements in clinical records
is that, because they are only a brief summary or paraphrase, there is no
record of anything else that may have been said and which might in some way
explain, expand upon or qualify a particular doctor’s note.  The plaintiff will
usually have no specific recollection of what was said and, when shown the
record on cross-examination, can rarely do more than agree that he or she must
have said what the doctor wrote.

[35]      Further difficulties arise when a number of
clinical records made over a lengthy period are being considered. 
Inconsistencies are almost inevitable because few people, when asked to describe
their condition on numerous occasions, will use exactly the same words or
emphasis each time.  As Parrett J. said in Burke-Pietramala v. Samad,
2004 BCSC 470, at paragraph 104:

 …
the reports are those of a layperson going through a traumatic and difficult
time and one for which she is seeing little, if any, hope for improvement. 
Secondly, the histories are those recorded by different doctors who may well
have had different perspectives and different perceptions of what is
important.  … I find little surprising in the variations of the plaintiff’s
history in this case, particularly given the human tendency to reconsider,
review and summarize history in light of new information.

[36]      While the content of a
clinical record may be evidence for some purposes, the absence of a record is
not, in itself, evidence of anything.  For example, the absence of reference to
a symptom in a doctor’s notes of a particular visit cannot be the sole basis
for any inference about the existence or non-existence of that symptom.  At
most, it indicates only that it was not the focus of discussion on that
occasion.

[63]        
In his evidence, Dr. Goodchild interpreted the contents of his notes of
the October 8, 2008 appointment.  They read:

Screening mammogram was done October 3 at Richmond Road location

Pain to left breast and slight swelling post-mammogram

On examination, tender plus, plus, ?contusion.  History of
“cysts” to breast

Erythema, no overt ecchymosis

Ax check check

?hematoma to left breast

CPX October 16, 2008

Naproxen, 375 milligrams, two tablets once a day, supplied
four days’ worth

Plus or minus Tylenol Extra Strength

Follow up next week.  Query breast ultrasound

Re breast check and ultrasound

Going to Mexico October 24, 2008,
times six months

[64]        
Dr. Goodchild described a contusion as an injury caused by trauma,
usually blunt trauma, an impact, that sort of thing.  His query of a contusion
was made because of the history given to him by his patient that she had just
come from a mammogram which she described as being painful.

[65]        
Dr. Goodchild also provided a description of the words “erythema” which
he described as reddening of the skin, and “ecchymosis” which he described as
“… what a lot of us might consider a bruise, per se, a clearly delineated
purple outlined area that over time might turn green or yellow as it slowly
fades away.”

[66]        
The reference in Dr. Goodchild’s notes to CPX October 16, 2008, refers
to an annual physical appointment which was scheduled for that date.  Ms.
McKerr attended for a physical on that date and Dr. Goodchild’s notes of that
date include his notes:

Hematoma slowly resolving to left breast

Doing well on Effexor XR 150 milligrams once a day  Going to
Mexico times four months  Has GP down there  Follow up two to three months

Follow up in any underlying
residual left breast symptoms in one month

[67]        
Although there are several references to the term “hematoma” in his
notes, Dr. Goodchild confirmed in his evidence that he never definitely
diagnosed a hematoma.  He did acknowledge in his evidence that he may have told
Ms. McKerr that a hematoma would take three to six months to resolve.

[68]        
On October 20, 2008, Dr. Goodchild spoke by telephone to Ms. McKerr
about the mammogram since he had now received the Screening Mammography
Report.  In that report, Ms. McKerr was recommended for additional mammography
and ultrasound as a result of a low suspicion finding.  The low suspicion
finding was in the left upper outer quadrant of the left breast.

[69]        
There was other evidence at trial that as a result of the Screening
Mammography Report, Ms. McKerr would have been referred to the “Fast Track Program”
of the Screening Mammography Program which involved her being contacted
directly for follow up imaging at Victoria General Hospital.  The program was
instituted in order to avoid the delays that occurred as a result of a
physician being contacted first and follow up appointments being booked though
the physician’s office.

[70]        
The follow up imaging in Ms. McKerr’s case was scheduled for December 1,
2008.  Ultimately, Ms. McKerr was in Mexico on that date and did not keep that
appointment.  Instead she phoned the CML clinic from Mexico on December 1,
2008.

[71]        
In his notes of the October 20, 2008 conversation, Dr. Goodchild
recorded:

Phone discussion with patient  Results of mammogram

Strongly recommended patient go for follow-up mammography
ultrasound

Can’t rule out breast cancer!

Patient is leaving in seven days for Mexico

If she can’t get it done this week (her suggestion) she is
willing to assume risk and will come back in December for follow-up imaging and
with me

She should get follow-up in Mexico as soon as possible by a
medical doctor

Again patient recommended
follow-up imaging as soon as possible!

[72]        
In his testimony, Dr. Goodchild confirmed that despite the fact that
most screening mammograms that require follow up do not turn out to be
sinister, it was important to let the patient know the worst case scenario.  He
also testified that he probably would have used the words “low suspicion” but
he is also certain that he would have used the word “cancer” in that phone
call.  He also recalled either in that phone call or on the preceding visit
that Ms. McKerr told him she was reticent to have another mammogram “because of
the discomfort she experienced with her initial mammogram.”

[73]        
Ms. McKerr’s recollection about the October 20 telephone conversation is
different.  She testified that she told Dr. Goodchild that she could not
tolerate the pain of a mammogram and that she was leaving October 24 for
Mexico.  She also testified that Dr. Goodchild did not feel that there was a
need for concern with regard to the low suspicion finding.  She did not believe
that Dr. Goodchild used the word “cancer” in that conversation.  Finally, she
denied that she would assume the risk that the mammogram had shown breast
cancer because she was going to Mexico.

[74]        
I am satisfied based on the evidence of Dr. Goodchild that he did in
fact use the word cancer in the October 20, telephone call and that Ms. McKerr
did indicate that she would assume the risk if any was created by her trip to
Mexico.  Dr. Goodchild’s clinical notes which reflect his evident concern and
his evidence at trial leave no room for any doubt on that point.  I am also satisfied
based on all of the evidence that Ms. McKerr expressed to Dr. Goodchild that she
was reticent to have another mammogram because of the pain experienced and
ongoing since the initial mammogram.  I also find that Ms. McKerr stated that
she would come back to Canada for follow up imaging if the suspected hematoma
did not resolve, and ultimately she did so.

Trip to Mexico

[75]        
Ms. McKerr drove to Mexico on October 24, 2008.  It was her practice to
spend several months each year in Mexico in order to assist with her Seasonal
Affective Disorder.  She had a mobile home there.

[76]        
During her drive to Mexico, the pain in her arm increased and her breast
symptoms became worse.  The breast pain became a throbbing pain 24 hours a
day.  While she was in Mexico she was having trouble eating and sleeping and
she could not do much more than lie on her bed.

[77]        
Ms. McKerr did not see a doctor while she was in Mexico but did obtain
some pain medication without a prescription including Toradol and some
medication that had Naproxen in it.

[78]        
Ultimately, in December 2008 she made a decision to return to Victoria
because of her ongoing pain.  She could not drive herself back due to the
effects of the medication and her ongoing pain so she hired a driver to drive
her back.  She arrived in Victoria around December 28, 2008.  The drive back
was very uncomfortable for Ms. McKerr.

Medical follow up upon return from Mexico

[79]        
On December 29, 2008, Ms. McKerr attended at Dr. Goodchild’s office. 
His clinical notes of that day read:

Just got back from Mexico

Drove home!!

Now painful left shoulder

? Frozen shoulder

On examination, painful abduction 30 degrees only  No nodes 
Tender to anterior shoulder

Check x-ray, cervical spine and left shoulder

Also mass to left upper outer quadrant breast

Tender  Query larger

Needs biopsy  Further imaging

Could be cancer!!

Discussed with patient the
importance of follow up

[80]        
Doctor Goodchild also drew a diagram to depict the area that he was
concerned about on the left upper outer quadrant of the breast.

[81]        
Dr. Goodchild arranged for an urgent referral to Dr. Cunningham, a
trauma surgeon.

[82]        
His referral note to Dr. Cunningham read:

Urgent appointment for suspicious breast mass

Reason for referral:  61 year old female had screening
mammogram October 8th with sudden onset of tender lump, left upper outer quadrant,
which she says wasn’t there before

Bruising? hematoma

Advised to have follow-up diagnostic mammogram, but patient
declined and went to Mexico  On return this week, mass still tender, larger,
needs bx (biopsy)? further imaging

Painful left shoulder? frozen shoulder (drove to Mexico)

Past history:  Anxiety/depression in remission  Current
medications Effexor XR 75 once a day, Toradol 10 milligrams three times a day,
Empracet 30 at HS  Allergies to penicillin and sulpha

Test results:  see attached

[83]        
Dr. Goodchild testified that he believed that he attached the Screening
Mammogram Report which indicated the results of the mammogram.

Dr. Cunningham

[84]        
Dr. Cunningham testified as Ms. McKerr’s treating surgeon and he was not
qualified as an expert.  Some of his experience was nevertheless led by the
plaintiff in order to put his evidence into context.  The plaintiff confirmed
when an objection was made that she was tendering Dr. Cunningham as a treating
physician.  He has spent 22 years in the military as a trauma surgeon.  His
current practice includes all forms of general surgery including five to ten
percent of his practice doing breast surgery.

[85]        
Dr. Cunningham saw Ms. McKerr on January 2, 2009.  He testified that Ms. McKerr
came in with a very sore left breast with pain that had persisted since the day
of the mammogram.  His initial observation was that her symptoms were
consistent with a hematoma and that it caused pain.  He was of that view
because of the sudden onset of it and because he physically examined the mass
and thought that it was softer and more fluctuant than what he would have felt
with a cancer.

[86]        
It was Dr. Cunningham’s interpretation that Ms. McKerr had a traumatic
mammogram.  On January 2, 2009, Dr. Cunningham performed a needle aspiration of
Ms. McKerr’s left breast and got back “a very small amount of old blood type
fluid.”  In his reporting letter of January 2, 2009 to Dr. Goodchild he wrote: 
“My impression is that she had an organizing left hematoma.”

[87]        
Dr. Cunningham saw Ms. McKerr again on January 14 at which time he noted
that there was extensive bruising still present.

[88]        
Dr. Cunningham referred Ms. McKerr to the Victoria General Hospital for
ultrasound guided drainage.  Dr. Nicola Proctor (nee Finn) performed a biopsy
on that date.  In her breast imaging report Dr. Proctor noted “A solid mass
corresponds to the area of increased density in the lateral left breast.  This
measures maximum 4.5 cm. There are several additional smaller masses around the
lesion.”  The phrase “corresponds to the area of increased density” indicated
that the mass corresponded to the suspicious area on the mammography images of
October 3, 2008, which were read by Dr. Koopmans.  Dr. Proctor did not note a
hematoma on that date.

[89]        
The Histopathology Report came back as widely infiltrated by a
necrotizing, high-grade ductal carcinoma.  In Dr. Cunningham’s letter to Dr.
Goodchild of January 23, 2009 he wrote “… with this aggressive nature of
tumor, we would be better off with just a mastectomy.  She is in agreement with
this.”  On January 23, he was also going to expedite her surgery.

[90]        
Dr. Cunningham referred Ms. McKerr to Dr. Taylor for a possible breast
reconstruction post mastectomy.  Dr. Taylor saw Ms. McKerr on February 1, 2009
and in his examination noticed an area of redness on the breast and a large
mass 10 – 11 x 9 cm in size.

[91]        
On February 11, 2009, Dr. Cunningham saw Ms. McKerr again and noted that
she had more erythematous surface to her breast on the left side consistent
with inflammatory breast cancer.  As a result, he cancelled the proposed
surgery as this type of cancer required a different treatment plan.

Dr. Souliere

[92]        
Dr. Souliere is a medical oncologist at the B.C. Cancer Agency in
Victoria and she works with other medical specialists in a team approach.

[93]        
Dr. Souliere saw Ms. McKerr on February 11, 2009.  Dr. Souliere obtained
a history which was a combination of the letters from the treating physicians
and her conversations with Ms. McKerr.  Dr. Souliere subsequently prepared an
oncology history and consultation dated February 11, 2009.

[94]        
In her conversations with Dr. Souliere Ms McKerr advised that she
experienced severe pain during mammography and that she had been in pain ever
since.  She also advised that she had so much pain that she did not wish to go
back for a further mammogram.

[95]        
Dr. Souliere explained that the treatment plan changed and surgery was
postponed because with inflammatory breast cancer a surgeon would not feel that
he could get negative margins and therefore the patient would be referred for
chemotherapy in order to reduce the size of the cancers prior to surgery.

[96]        
Dr. Souliere explained the various complications of Ms. McKerr’s subsequent
chemotherapy treatment including a recurrence of the cancer in July 2009. 
Around that time she had some trauma to her left breast as a result of her
small dog jumping on her breast and developed tenderness to her breast.  According
to Dr. Cunningham, at that time it was unclear whether this additional
trauma was a hematoma, bruising, or a tumor recurring.

[97]        
Around that time Ms. McKerr’s chemotherapy was terminated and she was
referred to Dr. Berrang, a radiologist, for a course of 28 radiation
treatments.

[98]        
Following radiation and chemotherapy Ms. McKerr was referred back to Dr. Cunningham
who performed a modified radical mastectomy on October 8, 2009.

[99]        
Ms. McKerr had a further recurrence of breast cancer in July 2011 and
surgery was performed which took further muscle and tissue from Ms. McKerr’s
chest wall.

[100]     Dr.
Souliere further testified that Ms. McKerr now has metastatic disease, and that
her cancer is now considered incurable.  Treatment options in the future
include a clinical trial of new drugs or a chemotherapy drug not currently
available through the Medical Services Plan.  When Dr. Souliere gave evidence
at trial, the treatment plan was observation with no active treatment.

EXPERT EVIDENCE

[101]     The plaintiff
and the defence each called a medical expert in this trial.  Both experts filed
reports and testified at trial in direct and cross-examination.  I will address
the details of each expert’s evidence when addressing the issues raised at
trial, and at this point will merely summarize in a general way the respective
positions.

[102]     Both
expert witnesses presented with impressive qualifications albeit in slightly
different areas.  I did not find that either witness appeared to be an advocate
and both presented as witnesses who were genuinely attempting to provide evidence
to assist the court.

[103]     Dr. Melvin
Shiffman was the plaintiff’s expert.  He was qualified as a surgical
oncologist, as an expert in diagnostic imaging, and in the area of cancer and
allied diseases, general surgery and the effects of wound healing and trauma in
the acceleration of cancer.  Although defence took issue with Dr. Shiffman’s
qualifications and with admissibility of his reports, it was and is my view
that the issues raised are more appropriately dealt with in terms of weight to
attach to his opinion rather than admissibility.  For example, although Dr.
Shiffman was qualified in the area of diagnostic imaging because of his
experience, he is not a radiologist nor is he familiar with Canadian
mammography procedures, since he is from the U.S.

[104]    
In his report and in his evidence, Dr. Shiffman explained the science of
tumour doubling, the process of angiogenesis and wound healing and their effect
in stimulating rapid growth of malignant tumour cells.  Dr. Shiffman explained
the Gompertzien theory that exponential growth of tumour cells is most
effective at the early part and that growth slows as the tumour becomes
bigger.  He explained that cancer doubling time refers not to the diameter of
the tumour but to the doubling of the cancer cells.  He described how injury
will accelerate growth as follows (November 17, 2011, p. 35):

Well, the injury will accelerate
growth.  It has to have enough factors to do it, and it requires not just a
bump or a mild bruise, but the actual destruction of tissue in order to get
this cascade of growth factors to come into the area where the injury has
occurred.  And that’s — if there is a cancer in that area then it will
accelerate the growth over a short period — relatively short period of time of
months during that healing period.  This is most common with a hematoma
formation because that spreads out the time that these growth factors are being
secreted.

[105]    
In his written opinion dated May 11, 2011, Dr. Shiffman stated at para.
11:

11.       Had the mammogram not
been performed in October 3, 2008 and the severe compression not occurred, the
outcome would probably have been the development of a mass indicating a growing
cancer that would not have occurred for at least months to perhaps a year or
two.  The cancer would have been more curable if a small mass had occurred at a
later date than October 3, 2008, the mass diagnosed promptly, and a timely
mastectomy performed followed by chemotherapy and radiation therapy.  The pain,
swelling, bruising and hematoma following the trauma on October 3, 2008
disguised the presence of the tumor that could have been diagnosed at an
earlier date than December 2008 and could have been removed with a better
prognosis.

[106]     In his
evidence Dr. Shiffman agreed with the defence expert that the malignant breast
tumor was present prior to the trauma on October 3, 2008 although Dr. Shiffman
was of the view that it was not visible on October 3, 2008.

[107]     Dr.
Kathleen Pritchard was the defence expert.  She was qualified as an expert in
factors giving rise to the development of breast cancer, incidence and
characteristics of breast cancer, the effect of synthetic and naturally
occurring substances on tumour growth, particularly breast cancer tumour
growth, treatment and management of breast cancer in patients, and prognosis
and outcome for the plaintiff assuming earlier investigations.

[108]     In her
report, Dr. Pritchard opined that a routine mammogram, however performed,
cannot cause inflammatory breast cancer under any circumstances.  She stated
that it is not generally held medical or scientific opinion that single or
multiple incidents of trauma contribute to the development of breast cancer or
to its speed of progression.  She considered it extremely unlikely that the
mammogram performed on Ms. McKerr caused the inflammatory breast cancer
diagnosed in January 2009.  She opined that it is very unlikely that the
mammogram exacerbated the inflammatory carcinoma diagnosed in January 2009.

[109]     Dr.
Pritchard opined that Dr. Shiffman’s view of the role of trauma in the development
of breast cancer is not that of the general medical community.  In her
testimony, Dr. Pritchard opined that Ms. McKerr had a locally advanced
inflammatory breast cancer as early as October 2008 and exhibited those
symptoms when she was examined by Dr. Goodchild.  In Dr. Pritchard’s view, what
Dr. Goodchild considered a possible hematoma and Dr. Cunningham considered
a hematoma, was actually inflammatory breast cancer manifesting itself as early
as October 2008.

DISCUSSION OF ISSUES

DUTY OF CARE

[110]     In Cherniwchan
v. Royal Columbian Hospital et al, 2005 BCSC 32, this court recognized that
imaging technologists owe a duty of care to their patients.  I am of the view
that the test for a duty of care has been met in the circumstances at bar: harm
was reasonably foreseeable as a consequence of the defendant’s acts, and there
was a sufficiently proximate relationship between Ms. Connie and Ms. McKerr for
the duty to arise.  The defence did not argue duty of care and does not appear
to contest it.  I am satisfied that a mammogram technician owes a duty of care
to a patient.

STANDARD OF CARE

 1)       Does
the evidence establish that the defendant Ms. Connie breached the standard of
care of a skilled, knowledgeable and competent mammography technician?

[111]     The defence
argues that the evidence does not establish that Ms. Connie breached the
standard of care for a number of reasons including that in cases involving
alleged negligence by a health care professional, it is necessary that the
plaintiff lead evidence about the standard of care to which a reasonable health
care professional in the defendant’s area of practice is to be held.  The
defence argues that this must be established on the basis of expert evidence: ter
Neuzen v. Korn, [1995] 3 S.C.R. 674 at para 33; Pushee v. Roland, 2002
BCSC 1771 at paras. 16 – 19.

[112]    
ter Neuzen is a leading case on standard of care in cases of
medical malpractice by a medical specialist, in that case a gynaecologist and
obstetrician.  The court stated at para. 51:

[51]      I conclude from the
foregoing that, as a general rule, where a procedure involves difficult or
uncertain questions of medical treatment or complex, scientific or highly
technical matters that are beyond the ordinary experience and understanding of
a judge or jury, it will not be open to find a standard medical practice
negligent.  On the other hand, as an exception to the general rule, if a
standard practice fails to adopt obvious and reasonable precautions which are
readily apparent to the ordinary finder of fact, then it is no excuse for a
practitioner to claim that he or she was merely conforming to such a negligent
common practice.

[113]     In Pushee,
the claim involved a developmental pediatrician failing to request an
amino-acid screen for a young child who displayed mild global developmental
delay.  The failure to screen delayed the diagnosis of a metabolic disorder
which in turn delayed therapy.  The court dismissed the claim in light of the
complexity of the highly specialized medical care in question.

[114]     The defence
has also argued Mickle v. Salvation Army Grace Hospital Windsor Ontario
(1998), 166 D.L.R. (4th) 743, 81 O.T.C. 23 (C.J. (Gen. Div.)), a case involving
an ultrasound technician and a radiologist; Shannahan v. Fraser Health
Authority, 2010 BCSC 144; and Mikhail v. Northern Health Authority
(Prince George Regional Hospital), 2010 BCSC 1817, 7 C.P.C. (7th) 132; the
latter for the proposition that there is no reliable evidence before the court
as to the standard that applies in the context of the procedure of Ms. Connie.

[115]    
The defence also argued Parragh v. Eagle Ridge Hospital and Health
Care Centre, 2008 BCSC 1299 as another example to support the argument that
the plaintiff has not proven breach of standard of care and to emphasize that
the burden of proof rests on the plaintiff.  The defendant points to Parragh
as well for the principle of res ipsa loquitur (although the plaintiff
in this case does not rely on the principle but rather asserts proof on the
“but for” test).  In that case the plaintiffs wanted the court to accept that
because they had sustained a bacterial infection in an operating room that it
necessarily followed that it must have been caused by the negligent act of the
defendants.  In discussing the plaintiff’s position the court said this:

[64]      Before leaving this
issue, I will comment on a further basis upon which the plaintiffs argue that a
breach of the standard of care has been proven. Although not
referred to as such by them, the defendants have characterized it as res
ipsa loquitur, and I think that is an accurate characterization.  It is a
doctrine that has been applied to prove both a breach of the standard of care
and, less commonly, causation.  Although the doctrine itself is “expired” (per
Major J. in Fontaine v. British Columbia (Official Administrator) (1997),
156 D.L.R. (4th) 577 (S.C.C.) at p. 585), circumstantial evidence of a breach
of the standard of care may still be sufficient to prove such a breach.  A
breach of the applicable standard of care may be inferred from the fact of the
loss or damage when, among other things, it can be concluded that the loss or
damage would not have happened but for such a breach.  Put another way, if
common experience is such that the conclusion can, not must, be drawn, then a
trier of fact may infer a breach of the standard of care.  This is not a case
in which common experience allows for the drawing of that conclusion.  The
inference I am invited to draw is that if the nurses met the standard of care
expected of them, the plaintiffs would not have contracted the disease.  While
it is tempting to draw that inference, common experience certainly does not
dictate that result.  I simply do not know, on a balance of probabilities or
any other test, whether that is so.

[116]     The plaintiff
argues in reply that there is no need for expert opinion evidence in
establishing the standard of care applicable in this case and points to R.
v. Mohan, [1994] 2 S.C.R. 9 and the four criteria outlined by the Supreme
Court of Canada: (a) relevance, (b) necessity in assisting the trier of fact;
(c) the absence of any exclusionary rule (d) a properly qualified expert.

[117]    
The plaintiff argues expert evidence is not necessary in this case since
the facts lack anything technical, complex or scientific and that the subject
matter falls within the common experience and knowledge of a judge or jury. 
The plaintiff points to Burbank v. R.T.B., 2007 BCCA 215, 279 D.L.R. (4th)
573, leave to appeal ref’d [2007] S.C.C.A. No. 316, as the most relevant
authority.  That case dealt with the standard of care of a reasonably competent
police officer.  The court stated:

[79]      Expert evidence would
only be necessary (and therefore admissible) to establish the standard of care
in a negligence case of this kind if the conduct in question gave rise to
considerations beyond common understanding.  Evidence that need not invariably be
expert evidence might be adduced to prove the training police officers are
given, or to explain police practice, or where needed to interpret and explain
the application of requirements contained in legislation or policy with which
the trier of fact is unlikely to be familiar.  These are just examples of the
kind of evidence that where needed might go toward assisting the court in
establishing the standard of care.  But unless the nature of the inquiry into
the conduct of a police officer is actually beyond the common understanding or
experience of judge or jury, evidence of the standard of care, particularly
expert opinion, is not required and should not be admitted.  It is not
otherwise necessary to adduce evidence that a police officer failed to meet the
standard of care of a competent police officer.

[118]     The plaintiff
also points to Weingerl v. Seo, 2003 CanLII 13285 (ON SC).  In that
case, the plaintiff sued an ultrasound technologist and the clinic in which he
worked in battery and negligence.  The technologist had secretly videotaped the
plaintiff and sexually assaulted her by performing unauthorized tests.  The
claim for negligence related to an alleged failure of the clinic to adequately
train and supervise the defendant in order to prevent sexual assault or other
improper acts in the course of his employment.  The court concludes that this
was not a matter of scientific or technical knowledge that would be the subject
of expert testimony and that “… dressing up the evidence as limited and
specialized knowledge would give the testimony more weight than it deserves on
a subject on which the ordinary person is fully capable of forming his or her
own judgment.” (paras. 17, 18).

[119]    
Finally, the plaintiff argues that Cherniwchan v. Royal Columbian
Hospital et al, 2005 BCSC 32 is most closely on point to the facts of the
case at bar.  That case considered whether the standard of care had been met by
technologists who allegedly did not reposition a client claiming to be in pain
during a CAT scan guided injection of antibiotics into his lungs.  Garson J.
(as she then was) came to a finding on the standard of care by considering the
applicable law, the evidence of the defendant technologists as to the duties
owed their patients, and a consideration of the facts of the particular case. 
In that case, Garson J. found it difficult to accept that if urgent complaints
were made as the plaintiff in that case alleged that the complaints would have
been ignored by the technologists.  On the issue of standard of care she stated:

[52]      The standard of care
applicable here must incorporate the notion that the complaint is serious
enough that the technologist could reasonably anticipate that ignoring the pain
might result in loss or damage to the patient.

[120]     In the
case at bar, Ms. Connie acknowledged and adopted the Canadian Association of
Medical Radiation Technologists (CAMRT) training materials for Mammography I
which is a level of training that she had obtained.  Those training materials
include that a technologist cannot proceed beyond the tolerance of a patient
and that the technologist alone must assess the situation.

[121]     Ms. Connie
acknowledged in her evidence that compression should not proceed beyond a
patient’s tolerance and that if a patient urgently requested the procedure to stop,
then compression should stop.

[122]     Further,
Ms. Massullo, another technologist, acknowledged in her evidence that bruising
was not uncommon in mammography.

[123]     In my
view, it is merely common sense that when a soft-tissue body part such as a
breast is placed between metal plates and compressed in order to obtain an
image, a technologist should stop when the patient urgently communicates pain. 
That view is reinforced by the CAMRT Training materials for Mammography I and
by Ms. Connie’s evidence.  The fact that bruising is not uncommon during a
mammogram procedure confirms that ignoring the pain expressed might result in
loss or damage to the patient, and that more significant damage to the patient
could occur such as a hematoma.

[124]     Having
considered the authorities, the evidence of Ms. Connie and the totality of the
evidence in this case, I am of the view that is not necessary for the plaintiff
to call expert evidence in order to establish the standard of care of a
skilled, knowledgeable and competent mammography technician.

[125]     Even
though the reaction by a technician to an expression of pain might be nuanced
because pain is not uncommon in a mammogram procedure, it is my view that the
evidence is clear that the technician must not proceed in light of the urgent
expression of pain.  Ms. Connie stated that.  The CAMRT training materials
require that.  A judge or jury is capable of reaching a finding on the evidence
without the assistance of expert testimony.

[126]     Therefore,
the question in this case, as in Cherniwchan is whether the plaintiff
made urgent requests to Ms. Connie to stop.  I have already indicated that I am
satisfied on the evidence that the plaintiff expressed an urgent concern about
being improperly placed in the machine, that she was experiencing extreme pain
and that she made it clear by words and conduct that she was experiencing
extreme pain and she needed the procedure to stop.

[127]     This was
not a case, as in Cherniwchan, where the plaintiff required the image to
be performed as a last resort treatment option and therefore may have willingly
endured extreme pain for medically required treatment.  At the time of the
mammogram, Ms. McKerr did not know she had cancer.  This was a routine
screening mammogram and there was no urgent need for an image to be obtained. 
In the circumstances, Ms. Connie had a duty to stop the procedure and to
explore other options to obtain the image, such as repositioning the patient
and determining whether on that basis she could continue.

[128]     In his
opinion, Dr. Shiffman states that the technician should have stopped and
consulted with a radiologist.  On the evidence, there is no radiologist on duty
when mammograms are performed and radiologists only come in for limited time
periods in order to read the mammograms.  The fact that there is no radiologist
on duty to consult with does not change the fact that Ms. Connie should have
stopped the procedure.  Dr. Shiffman’s opinion accords with a common sense
position.

[129]     In
accepting the evidence of Ms. McKerr over the usual practice evidence of  Ms. Connie,
I reject the argument that Ms. McKerr has engaged in historical revisionism and
post facto rationalization.  The discrepancies and inconsistencies that do
exist with respect to Ms. McKerr’s evidence are not surprising due to the
passage of time and the number of health care practitioners that she has seen
and procedures that she has undergone.  She has been consistent throughout with
respect to the main aspects of her evidence and her allegation starting with
her call to CML on October 4, 2008; the call on October 6, 2008 and her
attendance at Dr. Goodchild’s office on October 8, 2008.

[130]     Further,
in accepting Ms. McKerr’s evidence over Ms. Connie’s I am not finding that Ms.
Connie deliberately misled the court.  There are many reasons including the
number of mammogram procedures that she performs and the fact that the
expression of pain is not uncommon, that may account for Ms. Connie’s lack of
recollection of Ms. McKerr’s mammogram.  I am finding however, that Ms. Connie
was not properly attuned and responsive to Ms. McKerr’s urgent expression of
pain on October 3, 2008 and that by proceeding when she was requested to stop
by Ms. McKerr, she breached the standard of care of a skilled,
knowledgeable and competent mammography technician.

CAUSATION

The test for causation

[131]     Having
found that Ms. Connie breached the standard of care, I must now go on and
consider the issue of causation.  Proof of negligence alone is insufficient to
bind a defendant to the plaintiff’s loss.  The plaintiff must also establish
that her injuries arose as a result of that negligence.  As recently
articulated by the Supreme Court of Canada in Clements v. Clements, 2012
SCC 32, 346 D.L.R. (4th) 577 at para. 7, the court only “assigns
liability when the plaintiff and the defendant are linked in a correlative
relationship of doer and sufferer of the same harm.”

[132]      Having
established that Leslie Connie, and by proxy, CML, was negligent in performing
the plaintiff’s mammogram on October 3, 2008, I must now consider whether this
negligence caused the plaintiff’s injuries.

[133]     The
plaintiff alleges that the mammogram caused her left breast to develop a
hematoma, and that as a result of that hematoma, she subsequently developed
inflammatory cancer in that breast.  The defendant denies that the mammogram
caused or contributed to either of these injuries.

[134]    
It is well settled law that the test for causation is the “but for” test.
In Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, the court
states:

[20]      Much judicial and academic ink has been spilled
over the proper test for causation in cases of negligence.  It is neither
necessary nor helpful to catalogue the various debates.  It suffices at this
juncture to simply assert the general principles that emerge from the cases.

[21] First,
the basic test for determining causation remains the “but for” test.  This applies
to multi-cause injuries.  The plaintiff bears the burden of showing that “but
for” the negligent act or omission of each defendant, the injury would not have
occurred.  Having done this, contributory negligence may be apportioned, as
permitted by statute.

[135]     The test
requires the plaintiff to establish on a balance of probabilities that “but for”
the defendant’s negligent act, the injury would not have occurred.  Put another
way, the plaintiff must establish that the “defendant’s negligence was necessary
to bring about the injury” (Clements at para. 8).

[136]    
This strict requirement ensures that a defendant will not be held liable
for a plaintiff’s injuries when she was not responsible for those injuries; for
example, if the injuries might have been caused by entirely independent factors
(Snell v. Farrell, [1990] 2 S.C.R. 311).  In special circumstances, the “but
for” test can be substituted with a more relaxed “material contribution to risk”
analysis.  However, it was not argued in this case, and given the recent
Supreme Court of Canada decision in Clements, it is clearly inapplicable.
As McLaughlin C.J.C. said in Clements para. 46:

(1)        As a general rule, a plaintiff cannot succeed
unless she shows as a matter of fact that she would not have suffered the loss
“but for” the negligent act or acts of the defendant.  A trial judge is to take
a robust and pragmatic approach to determining if a plaintiff has established
that the defendant’s negligence caused her loss.  Scientific proof of causation
is not required.

(2)        Exceptionally, a
plaintiff may succeed by showing that the defendant’s conduct materially
contributed to risk of the plaintiff’s injury, where (a) the plaintiff has
established that her loss would not have occurred “but for” the negligence of
two or more tortfeasors, each possibly in fact responsible for the loss; and
(b) the plaintiff, through no fault of her own, is unable to show that any one
of the possible tortfeasors in fact was the necessary or “but for” cause of her
injury, because each can point to one another as the possible “but for” cause
of the injury, defeating a finding of causation on a balance of probabilities
against anyone.

[137]     Although
the “but for” analysis appears straightforward on its face, consistent
application by the courts has proven difficult.  In particular, the issue of
establishing causation without scientific proof has been an area of confusion.  This
has led to a series of Supreme Court of Canada decisions that articulate
principles to keep in mind when conducting the analysis (Snell, Athey
v. Leonati, [1996] 3 S.C.R. 458, Resurfice, Clements).

[138]    
In Snell, the court first noted that the analysis is to be
applied in a robust and common sense fashion.  This was confirmed in Athey, where
the court notes that the test is not to be applied too rigidly.  Major
J. describes the robust and common sense approach in at para. 16:

…Causation need not be
determined by scientific precision; as Lord Salmon stated in Alphacell Ltd.
v. Woodward, [1972] 2 All E.R. 475, at p. 490, and was quoted by Sopinka J.
at p. 328, it is “essentially a practical question of fact which can best be
answered by ordinary common sense”.  Although the burden of proof remains with
the plaintiff, in some circumstances an inference of causation may be draw from
the evidence without positive scientific proof.

[139]    
Inferences of this type were drawn in Lankenau Estate v. Dutton (1991),
79 D.L.R. (4th) 705 (B.C.C.A.), leave to appeal refused, [1991]
S.C.C.A. No. 252, and Swanson Estate v. Canada (1991), 80 D.L.R. (4th)
741 (F.C.A.).  The court firmly reiterated this approach in its
recent decision of Clements, where it states at para. 9:

The “but for” causation test must
be applied in a robust common sense fashion.  There is no need for scientific
evidence of the precise contribution the defendant’s negligence made to the
injury.

[140]     These
instructions are again repeated at para. 38, where the court notes that “[t]he
law of negligence has never required scientific proof of causation; to repeat
yet again, common sense inferences from the facts may suffice.”

[141]     I find Clements
instructive here.  In that case the issue was whether by overloading a
motorcycle and driving it at a negligent speed the defendant had caused a
subsequent accident.  The defendant led evidence that the accident may have
occurred anyways.  The trial judge rejected the defendant’s evidence, but still
found that it was impossible to establish causation because it could not be
determined at what combination of lesser speed and lower weight the accident
would not have happened.

[142]     The court
indicated that the trial judge should not have required scientific
reconstruction evidence as “a necessary condition of finding ‘but for’
causation” (para. 48).  The majority held that although the evidence did not
establish scientific proof “one way or the other, ‘[o]rdinary common sense’
supported the causal relationship between the injury and the excessive speed
and weight” (para. 52).

[143]     With these
principles in mind, I am to view the evidence with a pragmatic eye, and I need
not require the plaintiff to prove her case to scientific certainty.  Where
there is no scientific proof “one way or the other,” I am entitled to draw
common sense inferences from the facts.

[144]    
Also relevant to the analysis is the problem of whether the defendant’s
negligence need be the sole cause of the injury.  I conclude from the
decision in Athey, that this need not be the case:

[17]      It is not now
necessary, nor has it ever been, for the plaintiff to establish that the
defendant’s negligence was the sole cause of the injury.  There will frequently
be a myriad of other background events which were necessary preconditions to
the injury occurring.  To borrow an example from Professor Fleming (The Law
of Torts (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper
basket is … caused not only by the dropping of a lighted match, but also by
the presence of combustible material and oxygen, a failure of the cleaner to
empty the basket and so forth”.  As long as a defendant is part of the
cause of an injury, the defendant is liable, even though his act alone was not
enough to create the injury.  There is no basis for a reduction of liability
because of the existence of other preconditions: defendants remain liable for
all injuries caused or contributed to by their negligence.

[145]    
In Clements, the court makes note of these comments and concludes
that where there are multiple causes, it is sufficient that the plaintiff prove
on a balance of probabilities that the defendant’s negligence materially
contributed to her injury.  This is not an application of the “material
contribution to risk analysis” but an application of the “but for” test in the
face of multiple causes. In Clements, the court stated at para. 23:

[23]      This Court, per Major
J., discussed the limitations of the “but for” test and the propriety of
exceptionally using a material contribution test.  Major J. emphasized that a
robust common sense approach to the “but for” test permits an inference of “but
for” causation from evidence that the defendant’s conduct was a significant
factor in the injury, and concluded that “[t]he plaintiff must prove causation
by meeting the ‘but for’ or material contribution test” (para. 41). Major
J. concluded that the 25 percent contribution found by the trial judge was a
“material contribution” sufficient to meet the “but for” test.  The term
“material contribution”, read in context, does not detract from the fact that
the Court in the end applied a robust, common sense application of the “but
for” test, in accordance with Snell.  [emphasis added]

Use of treating practitioners’ medical evidence

[146]     In
considering the issue of causation, I must also consider how I can use the
evidence of Dr. Cunningham, who was not qualified as an expert, but gave
evidence instead as a treating surgical oncologist of Ms. McKerr.

[147]    
Defence objects to several portions of his testimony, particularly
portions that arose in cross-examination, as not being responsive to the
question asked and constituting opinion evidence.  By way of one example, Dr.
Cunningham was asked:

Q         Did you
say words to Ms. McKerr to the effect that the mammogram was responsible for
rupturing blood vessels in her breast?

A          I
certainly would have said it’s consistent with, yeah.

Q         Did you
ever say anything to her suggesting a link between the rupturing the blood
vessels and the development of her cancer?

A          Insofar
as in my — yeah, it could have caused it to spread more, yeah.

Q         You may
have said that to her?

A          Yeah.  We see that in gunshots,
we see that in other things.  It’s why when we do tumour surgery we don’t
spread the cells.

[148]     The
plaintiff argues that all of Dr. Cunningham’s responses should be considered
since they were questions asked in cross-examination and the answers were
appropriately responsive to the questions.

[149]     I am of
the view that my consideration of Dr. Cunningham’s evidence must be confined to
matters that relate to facts that he has observed, rather than to opinions.  Dr.
Cunningham’s opinion evidence was not subjected to the test under Mohan and
he was not properly qualified as an expert at trial.  I cannot consider Dr. Cunningham’s
opinion evidence whether it arose in direct or cross-examination.

[150]    
This issue was dealt with recently by the Court of Appeal in R. v. Panghali,
2012 BCCA 407.  In that case the court was asked to consider whether the
evidence of a forensic pathologist was opinion and therefore subject to the
usual rule of exclusion.  The forensic pathologist had observed an “apparent
hematoma” during the autopsy and has also opined as to the cause of the
hematoma.  In deciding this issue Frankel J.A. stated:

[92]      In my view, Mr. Panghali’s argument fails because
Dr. Lee’s evidence as to what he saw during the autopsy is in the realm of “fact”,
not “opinion”.  Although the evidence given by both Dr. Lee and Dr. Cundiff
concerning possible causes of a hematoma in the perineum falls into the latter
category, Dr. Lee’s evidence regarding the presence of a hematoma does not.  That
aspect of Dr. Lee’s evidence is no more an “opinion” than would be the evidence
of a layperson who testified to having seen a bruise.

[93]      That not everything said by an expert in the
witness box is an opinion was discussed in R. v. K.(A.) (1999), 137
C.C.C. (3d) 225 (Ont. C.A.), appeal quashed [2000] S.C.C.A. No. 16, [2000] 1
S.C.R. v, wherein Madam Justice Charron, as she then was, said:

[72] The line between fact and
opinion must therefore be kept clearly in mind. A witness, who is an expert
in a particular field, may be called simply to give evidence on the facts he or
she has observed without offering an opinion based on those facts.  To that
extent, and if otherwise admissible, this evidence is not subject to the
opinion rule.  This would be the case, for example, where a treating physician
is called to describe the injuries he or she observed on a patient without
offering any opinion on the matter.  It is only when a witness purports to
give an opinion on certain facts that the opinion rule comes into play.  If, in
our example, the treating physician goes on to say that it is usual or unusual,
as the case may be, to observe this kind of injury in a patient who alleges
that sexual intercourse has taken place, the witness is offering opinion
evidence and the evidence will be subject to the general rule of exclusion.  It
will only be admissible if certain established criteria are met.  [emphasis
added]

See also: McWilliams’ Canadian
Criminal Evidence, vol. 1, 4th ed., loose-leaf (updated June 2012),
(Aurora: Canada Law Book) at 12-3.

[151]     Accordingly,
applying that reasoning to the case at bar, I can consider Dr. Cunningham’s
observations and actions (including withdrawing what he observed as “old
blood”), as falling into the realm of “fact” and not “opinion.”  However, any
opinion as to the cause of the apparent hematoma that Dr. Cunningham
diagnosed, or any role that it played in the acceleration of Ms. McKerr’s
cancer is opinion evidence that cannot be considered since Dr. Cunningham
was not qualified to give that opinion.

[152]     Dr.
Goodchild’s evidence and the other medical practitioners including Dr. Silver,
Dr. Koopmans and Dr. Proctor are subject to the same rule since they were not
qualified as experts.

[153]     I will now
consider whether causation has been established in this case, with reference to
the following issues as posed by the defendants:

 (a)      Is
it possible for a mammography machine applying graduated compression up to the
maximum of 35.5 lbs of compression to cause the type of injury alleged by the
plaintiff?

 (b)      If
it is possible for a mammography machine to cause the type of injury alleged,
but for a breach of the standard of care of the mammography technician would
such an injury have occurred?

[154]     Because
these questions are sufficiently connected, I intend to answer them together.

[155]     The injury
alleged by the plaintiff is a hematoma followed by a soft tissue shoulder
injury which developed later.  The issue of the acceleration of cancer as a
result of that injury will be dealt with subsequently.

[156]     In my
view, these questions, which were posed by the defendant in argument, require
the very kind of scientific reconstruction evidence that the case law has made
it clear is not required as part of the causation analysis.

[157]     In this
case, Dr. Shiffman opines that the continued pain, swelling and bruising attest
to the fact that the compression experienced by Ms. McKerr on October 3, 2008
was extreme.  As part of his opinion he is of the view that the mass palpable
on October 3, 2008 by Dr. Goodchild was most likely a hematoma; however by
December 28, 2008 the mass was most likely a carcinoma.

[158]     As I have
indicated, Dr. Goodchild never did definitely diagnose a hematoma although it
was a possible diagnosis.  In his notes of October 8 (excerpted earlier), he
noted tenderness and the notation “query hematoma.”

[159]     It is clear
from his evidence that Dr. Shiffman was of the view that the mammogram could
cause the injury alleged.  It is also clear as a result of his factual
observations of injury that Dr. Goodchild considered it a real possibility.

[160]     Finally,
when Dr. Cunningham made his factual observations and withdrew what he observed
to be “old blood” from a hematoma on January 2, 2009, he made those
observations as a result of a “traumatic” mammogram.  All of this medical
evidence suggests that the medical practitioners were of the view that
compression from a mammogram can cause such an injury.

[161]     However, as
I have indicated, I am limited to considering Dr. Shiffman’s evidence on
causation since he was the only of these witnesses qualified as an expert.  The
defence says that there is no expert evidence that a mammogram can cause a
hematoma, however in my view Dr. Shiffman’s evidence does constitute some
expert evidence.

[162]     I conclude
that there is no need for a controlled experiment as to the possible impacts of
various levels of compression of a mammogram machine in order to be satisfied
that the injury occurred.  As I have indicated under the standard of care
analysis, if it is common for bruising to occur as a result of a mammogram as
indicated by Ms. Massullo, it is not unreasonable to conclude that a hematoma
might be caused by compression continuing after an urgent expression of pain,
and a concern expressed about improper placement in the machine.

[163]     Having
considered the totality of the evidence, and applying a robust and common sense
approach to that evidence, including the plaintiff’s account of what occurred
during the mammogram procedure, the fact that she began the procedure
asymptomatic and the resulting injury that began to develop immediately after,
Dr. Goodchild’s observations in October 2008, and Dr. Cunningham’s factual
observations in January 2009, I am satisfied on the balance of probabilities
that it is possible for a mammogram machine applying graduated compression up
to the maximum to cause the hematoma and soft tissue shoulder injury that
developed and that those injuries occurred in this case.

[164]     In so
finding, I reject Dr. Pritchard’s evidence that the symptoms observed by Dr.
Goodchild and Dr. Cunningham were consistent with the symptoms of inflammatory
breast cancer which were manifesting themselves as early as October 2008, and
her opinion that when Dr. Cunningham withdrew what he observed to be “old
blood” he was actually observing cancer cells.  I accept as a fact that what
Dr. Cunningham withdrew was old blood and that he was palpating a hematoma
on January 2, 2009.

[165]     The
opinion of Dr. Pritchard on that point ignores all of the evidence that I
accept including that the plaintiff was asymptomatic at the time of the
mammogram, that nothing unusual was noted in the appearance of Ms. McKerr’s
breasts at the time of the mammogram, that she urgently expressed pain at the
time of the mammogram, and that the symptoms that Ms. McKerr described, and
which were subsequently observed by Dr. Goodchild and Dr. Cunningham occurred
immediately after the mammogram.

[166]     It is not
an answer to the negligence of the defendants to suggest that the reason that
the hematoma occurred was because of a “biological latent defect.”  Even though
both Dr. Shiffman and Dr. Pritchard agree that the plaintiff had an underlying
carcinoma at the time of the mammogram, I am satisfied on a balance of
probabilities that the negligence of the defendant, particularly not stopping
in light of an urgent expression of pain, was a material contributing cause to
the development of the hematoma and that the hematoma would not have occurred
“but for” that negligence.

[167]     I will now
turn to the final question on causation.

 (c)      If
the plaintiff sustained injury as a result of the mammogram did that injury
exacerbate or accelerate her breast cancer?

[168]     In
answering this question, the evidence of the expert witnesses Dr. Shiffman and
Dr. Pritchard becomes critically important.  This is not an area that a judge
or jury can easily take a “robust and pragmatic” approach to causation without
some guidance from the experts.  The development and acceleration of cancer
involves biological and cellular processes that are well beyond the knowledge
of an individual without medical knowledge or training.  Therefore, the expert
evidence must be scrutinized carefully.

[169]    
Even after reminding myself that the plaintiff does not have to prove
the case to scientific certainty, and of the “material contribution” analysis
in Athey, I am not satisfied on the evidence that the “but for” test for
causation has been met by the plaintiff and I am not satisfied that the injury
(hematoma and shoulder injury), which was caused by the defendant’s negligence,
exacerbated or accelerated Ms. McKerr’s pre-existing cancer.

[170]     I come to
that conclusion for two overriding reasons.  First, it is my view that the
scientific evidence is not settled and the most that has been established on
the evidence is that there is a scientific debate about the role of trauma in
the development of cancer.  Dr. Shiffman’s 2004 paper in the Forensic Examiner,
referenced in his May 11, 2011 report frames the debate since it is titled: 
“Can trauma cause or accelerate cancer?”  Dr. Shiffman opines in his written
opinion and in his evidence that in certain circumstances, this case representing
an example, trauma can accelerate cancer.

[171]     Dr.
Pritchard represents the opposite scientific view and states in her report that
“it is not generally held medical or scientific opinion that single or multiple
incidents of trauma contribute to the development of breast cancer or to its
speed of progression.”  (August 19, 2011 report, p. 7).

[172]     The second
and even more important reason for my conclusion is that I am not satisfied on
the application of the theory in Ms. McKerr’s case.  In that regard, some of
the factual underpinnings and assumptions contained in Dr. Shiffman’s opinion
are in error, resulting in limited weight that I can attach to his opinion.

[173]     During
argument, counsel for the plaintiff referred to Dr. Pritchard as “defensive and
arrogant”, “belligerent” and “lacks objectivity and argumentative” among other
descriptors.  I did not make any of those observations with respect to the
evidence of Dr. Pritchard.  Although there was one point in argument where Dr. Pritchard
reacted to the questions of plaintiff’s counsel by responding “I’m a real
dummy”, in my view it was plaintiff’s counsel who was being argumentative in
her questioning at that point and not Dr. Pritchard.  That answer was made in
response to repeated questions about why Dr. Pritchard had visited a website of
the Canadian Cancer Society suggesting by the question that Dr. Pritchard
lacked basic knowledge about breast cancer.  Considering Dr. Pritchard’s
extensive experience in the breast cancer area, including sitting on an
editorial board of a medical journal and having published some 200 papers on
medical oncology, largely breast cancer related, in peer reviewed journals; Dr.
Pritchard’s impatience with that question was understandable.

[174]     Although I
have earlier in this decision rejected Dr. Pritchard’s opinion that at the time
of the October 3, 2008 mammogram Ms. McKerr was already exhibiting the physical
signs of inflammatory breast cancer and that what Dr. Goodchild and Dr. Cunningham
observed was symptoms of this cancer as opposed to a hematoma, I did so because
of the evidence I have heard about their observations and my findings of fact
on the preponderance of the probabilities, not because of Dr. Pritchard’s
overall presentation as a witness.  Her opinion on that point was valid, and
did merit careful attention.

[175]     I found
Dr. Pritchard, both in her report and in her evidence, willing to acknowledge
the limitations in her knowledge (for example she is not a diagnostic imager
and did not opine in that area).  I also found her to be genuinely interested
in the advancement of the science and in research, and open to the ideas of
others.  She simply did not accept the scientific construct being advanced by
the plaintiff through Dr. Shiffman.

[176]     During the
trial, a number of academic articles and abstracts dealing with trauma as a
cause or acceleration of cancer were put to Dr. Pritchard in cross-examination. 
The only evidence relating to those articles comes from Dr. Pritchard since
they were not submitted in the plaintiff’s case.

[177]    
For example, a 1994 letter written by J.P. van Netten and others,
published  in a journal called the Lancet, was put to Dr. Pritchard, including
the following passages:

It is generally accepted that infiltrating breast carcinoma
is derived from in‑situ carcinoma although the cause of the progression
is largely unknown.  … We suggest that tissue injury in areas of in-situ
carcinoma could be an important factor in the development of overt invasive
carcinoma.  For example, rupture of ducts filled with in-situ carcinoma cells,
due to blows to or severe compression of the human breast, could result in
spillage or dislocation of these cells into the stromal.  Under these
conditions tumour cells would then be subjected to abnormal regulation,
mimicking a continual wound healing process.  It is known that metastases can
arise at such sites.  Macrophages are present in large numbers in most, if not
all, breast carcinomas, particularly in close proximity to the in-situ
carcinoma component.  Associations of tumour cells with macrophages are likely
to occur under these conditions, and as has been suggested, this interaction
could result in both invasion (arrested metastasis) and distant spread
(completed metastasis).

Little is known of the results of
tissue injury in areas of in-situ carcinoma.  How much compression is needed to
cause substantial injury?  Is density of the breast a factor?  Is
susceptibility to injury similar for different types of in‑situ
carcinoma?  Does calcification in the in-situ component worsen injury due to
physical trauma, and if so, what type of calcification and how much
calcification?

[178]    
The letter continues:

Several studies indicate that
there may be an increased risk of breast cancer mortality for women under 50
years of age undergoing mammography with a reduction in risk in older women. 
Some of the reported increased risk for breast cancer mortality in younger
women undergoing mammography could be caused by trauma associated with this
procedure to the in-situ component.  Compression during mammography can rupture
cysts, and dissemination of cancer cells as a result of compression might
occur.

[179]    
Dr. Pritchard was asked whether she agreed with the letter and her reply
was as follows:

I don’t agree with some of what’s in this letter.  I do not
agree that the synopsis of the women under 50, the totality of the data for the
women under 50 shows a greater risk of death.  Of breast cancer mortality.  In
fact I have repeatedly said in this room that even recent guidelines suggesting
that screening mammography for women under 50 was not worth it, do not suggest
an increased mortality for those women, rather they summarize the reduction in
breast cancer mortality as being 15 per cent less, not more.

So while I think there was some question in years back of
there being increased mortality in one Canadian study, I do not think that’s
the synopsis of the data for the women under 50.  And so I can’t agree with the
idea that that’s caused by mammography.  That such an increase which doesn’t
exist is caused by mammography.

So no, I don’t — that — that last paragraph, beginning with
the first and second sentences, I don’t agree with that construct at all.

Q         But —

A          I don’t think it’s correct.

Q         But The Lancet obviously published that, correct?

A          It
would not be the first time there had been articles published in The Lancet,
the New England Journal of Science that people have subsequently disagreed
with.  The fact that something’s published doesn’t mean it’s God’s truth, it
means that it’s an interesting idea that — that editors have felt could go in
the journal.  This is not a peer-reviewed publication, by the way, it’s a
letter to the editor, and I would that that in The Lancet those letters are
published on the basis of interest, merit.

(Transcript February 15, 2012, p. 64 – 65)

[180]     Although
Dr. van Netten was apparently in the courtroom throughout the trial, he was not
called as part of the plaintiff’s case.  In argument, plaintiff’s counsel
attempted to argue that the theory should be considered by the court as
representing what happened to Ms. McKerr as a result of a traumatic mammogram.

[181]    
The proper procedure for examining an expert witness on other expert
opinions found in papers or books is well settled as a result of R. v. Marquard,
[1993] 4 S.C.R. 223 at 251 as follows:

The proper procedure to be followed in examining an expert
witness on other expert opinions found in papers or books is to ask the witness
if she knows the work.  If the answer is “no”, or if the witness denies the
work’s authority, that is the end of the matter.  Counsel cannot read from the
work, since that would be to introduce it as evidence.  If the answer is “yes”,
and the witness acknowledges the work’s authority, then the witness has
confirmed it by the witness’s own testimony. Parts of it may be read to the
witness, and to the extent they are confirmed, they become evidence in the case.
This procedure was laid out in R. v. Anderson (1914), 22 C.C.C. 455
(Alta. S.C.) and has been followed by Canadian courts.  (See Holland v.
Prince Edward Island School Board Regional Administrative Unit #4 (1986),
59 Nfld. & P.E.I.R. 6 (P.E.I.S.C.), at pp. 21-22; Cansulex Ltd. v. Reed
Stenhouse Ltd. (1986), 70 B.C.L.R. 189 (B.C.S.C.), at p. 193).

[emphasis added]

[182]     In my
view, Dr. van Netten’s theory has not become evidence in the case because in
considering the totality of Dr. Pritchard’s evidence, she does not accept the
scientific construct underpinning it.  In any event even if that were not the
case, when the entirety of Dr. van Netten’s letter is considered the phrase
“little is known” and the words “could” and “might” are included throughout the
passage.  This language suggests to me considerable scientific uncertainty. 
Further, this is a letter to the editor, not a peer reviewed article, and is
close to twenty years old, suggesting to me that it is not definitive.

[183]     In the
result, I am of the view that while there is an interesting scientific debate
about the role of trauma in the causation or acceleration of breast cancer,
that debate is far from settled.  I am not satisfied that I can find legal
causation on the basis of the evidence before me relating to the theory.

[184]     I turn now
to the application of the theory to Ms. McKerr’s case and Dr. Shiffman’s
opinion relating to Ms. McKerr.

[185]     Dr.
Shiffman made a number of factual errors in his assumptions.  I will only
identify some of those errors.

[186]     Dr.
Shiffman concluded that the mass palpable on October 8, 2008 was likely a
hematoma, and that the mass palpable in December 2008 was likely a carcinoma. 
However, that interpretation arose from Dr. Shiffman’s review of the clinical
records of Dr. Goodchild.  What Dr. Shiffman interpreted as plus or minus mass
in the clinical records actually read plus or minus Tylenol ES (extra
strength).  The notation about a mass that Dr. Shiffman assumed was present on
October 8, 2008 was not in fact made by Dr. Goodchild.

[187]     Dr.
Shiffman also made a number of errors in reviewing the imaging studies and
reports of the radiologists.  Those errors are demonstrated by his assumptions
about what the images show and what he concluded the radiologists opined.

[188]     In his
report in opinion 3, (May 11, 2011 report, p. 5), Dr. Shiffman wrote about
several benign masses in the upper outer quadrant of the left breast and opined
that these were cystic or hematomas caused by extreme compression.  In cross-examination
at trial, he agreed that given that the image was taken during the mammogram
procedure on October 3, the masses he viewed on the image were not likely
hematomas but more likely cysts. (November 18, p. 29).

[189]     In respect
of the 2008 images, he opined that the right breast was marked for a magnified
view with a white dot and that the technologist or radiologist put a marker on
it.  Both Dr. Koopmans and Ms. Connie testified, and I accept, that they did
not add any piece of lead or other marker to the images of the plaintiff’s
breasts.

[190]     Dr.
Shiffman opined that he agreed with the radiologist that an area in the left
breast mlo view from 2008 was a benign area, when in fact, that area was viewed
by Dr. Koopmans as suspicious.  Dr. Shiffman also drew a circle around a
suspicious area.  However, Dr. Koopman had identified as suspicious an area
that was “ten times bigger”.  Therefore, the area identified by Dr. Shiffman
was not the only abnormality present on the October 3, 2008 images, and was not
the most significant one.

[191]     Dr.
Shiffman testified about the doubling times of cancerous cells and indicated
that the appearance of a visible cancer in January 2009, at the time of the
ultrasound, without a visible cancer in October 2008, at the time of the
mammogram, points to the rapid growth of the tumour size.

[192]     However,
Dr. Proctor, who conducted the ultrasound in January 2009, testified that
suspicious area in the ultrasound corresponded to the suspicious area in the
mammogram images of 2008.  Therefore, the cancer was visible at the time of the
October 2008 mammogram, which is why the plaintiff was referred to the Fast
Track follow up to determine whether the suspicious area was cancer or not
since the only way to definitively diagnose the cancer is at the Victoria
General Hospital follow up appointment.

[193]     All of
this evidence by the treating radiologist (Dr. Koopmans) who read the mammogram
images, and by the diagnostic radiologist (Dr. Proctor) who conducted the
ultrasound in January 2009, suggests that Dr. Shiffman’s assumptions about the
size of the suspicious area in October 3, 2008 were wrong.

[194]     Those
assumptions being wrong, results in errors in the tumour doubling times assumed
by Dr. Shiffman, and undermines the factual underpinning of his opinion with
respect to acceleration of Ms. McKerr’s cancer.  The small mass which Dr.
Shiffman acknowledges was present on October 3 and assumes would have been more
treatable was in fact much larger than he assumed based on the evidence of Dr.
Koopmans and Dr. Proctor.

[195]     It is
worth noting that in Dr. Shiffman’s original opinion of May 11, 2011, he does
not acknowledge directly Ms. McKerr’s pre-existing cancer but only does so in
his responsive report.

[196]     Further,
Dr. Shiffman’s ultimate opinion in para. 11 (previously outlined at para. 105
of this judgment) of his May 11, 2011 report, is speculative and does not
assist the court.  Based on all of the evidence at trial, the earliest the
tumour could have been diagnosed is December 1, 2008, the date of the Fast Track
appointment at the Victoria General Hospital.  It is not clear how Dr. Shiffman
thinks the cancer could have been diagnosed earlier than December 2008 when all
of the evidence suggests that December was the earliest date for follow up. 
This December appointment was one that Ms. McKerr chose not to keep because of
the pain from the traumatic mammogram and her trip to Mexico.

[197]     Finally,
one only has to consider the uncertainty of all of the medical opinions
rendered during Ms. McKerr’s course of treatment to conclude that any opinion
on prognosis of an aggressive cancer such as Ms. McKerr’s is highly
speculative.

[198]     On the
issue of the acceleration of Ms. McKerr’s pre-existing cancer, I prefer the
evidence of Dr. Pritchard over the evidence of Dr. Shiffman.

[199]     In the
result, I conclude that I cannot rely on the opinion of Dr. Shiffman to conclude
that injury from the October 3, 2008 traumatic mammogram accelerated Ms.
McKerr’s pre-existing cancer, and this part of Ms. McKerr’s claim must fail.

DAMAGES

[200]     Although
the plaintiff has argued that she had a clinically and mammographically
undetectable cancer on October 3, 2008 when she attended at the CML clinic for
the mammogram, I have found that the cancer was present as agreed to by both
experts and was mammographically detectable which is why Ms. McKerr was
sent for follow up through the Fast Track Program as a low suspicion finding.

[201]     I have
also found that Ms. McKerr’s left breast was injured with an underlying
hematoma, and Ms. McKerr suffered a soft tissue shoulder injury as a result of
a traumatic mammogram on October 3, 2008.  The trauma from the mammogram caused
Ms. McKerr to decide not to attend for a follow up appointment at the Victoria
General Hospital on December 1, 2008 because she could not tolerate the pain of
another procedure on her left breast as a result of her ongoing pain and swelling. 
Instead, she left on a previously scheduled trip to Mexico, in order to
recuperate.

[202]     Ms. McKerr
was aware, as a result of her conversation with her general practitioner Dr.
Goodchild by phone on October 20, 2008, that the low suspicion finding “could
be cancer” and he clearly stated to her the need for follow up.  I must
consider whether her departure for Mexico and her failure to attend that
appointment on December 1, 2008 was reasonable in the circumstances.

[203]     I am not
satisfied that there is a failure to mitigate by Ms. McKerr. She was in
considerable pain as a result of a traumatic mammogram, and she was advised by
Dr. Goodchild that a possible hematoma would take three to six months to
resolve.  She returned to Victoria in late December (within four weeks of that
original Fast Track appointment) when the pain did not resolve.

[204]     As I have
indicated, I am not satisfied on the evidence that the hematoma caused the
breast cancer in Ms. McKerr or caused a pre-existing cancer to manifest itself
as inflammatory breast cancer.  In that regard I prefer the evidence of Dr. Pritchard
over the evidence of Dr. Shiffman.

[205]     As a
result I must assess damages for a traumatic mammogram procedure, a hematoma
and soft tissue shoulder injury caused by that procedure, and a delayed
diagnosis of Ms. McKerr’s cancer of approximately four to six weeks, since the
pain from the hematoma delayed Ms. McKerr’s medical follow up and disguised the
growing cancer during the autumn of 2008.  Also of note  is that the extent of Ms. McKerr’s
soft tissue shoulder injury is uncertain because of the growing cancer and
ultimate mastectomies which contributed to her shoulder injury.

General Principles

[206]     The
fundamental principle guiding the assessment of damages in personal injury
cases is restitution in integrum.  The injured person is to be restored
to the position he or she would have occupied had the accident not occurred.

[207]    
In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) McLachlin
J., as she then was, set out the principles that guide the court in determining
an appropriate award of damages:

[181]    It is established that overlap, or double
compensation, must be avoided.  The question is whether the court should
proceed by first assessing the total cost of future care, including basic
living expenses which the plaintiff would have incurred had he not been
injured, and make a deduction from the award for loss of future earnings to
reflect the fact that a portion of those earnings would have been spent on
items included in the award for cost of care had the plaintiff not been
injured; or whether, on the other hand, the court should proceed by awarding
under the head of cost of future care only those expenses which the plaintiff
establishes he will incur over and above what he would have spent for living
had he not been injured.  The plaintiff adopts the former position, the
defendant the second.

[182]    I begin by making two observations.  First, if the
calculations are done correctly and account taken of all relevant factors, it
should not matter which procedure is adopted.  This leads to a second
observation — that the goal of this aspect of an award of damages for personal
injuries is restitutio in integrum — to restore the plaintiff in so far
as possible to the position he would have been in had he not been injured. 
Restitution is accomplished by restoring to the plaintiff what he has lost. 
That must be the ultimate measure of damage, regardless of the particular
approach adopted.

[183]    In Andrews, supra, and Thornton,
supra, the Supreme Court of Canada followed the method of calculating
the plaintiff’s total cost of care, including basic living expenses, and
deducting from the award for lost earnings the percentage which would have been
spent upon such expenses.  In Arnold v. Teno, supra, the third
case in the trilogy, it proceeded by the second method of allowing for future
care only the additional costs which arose from the injury, and allowing the
full award for lost earning capacity.

[184]    It therefore appears that either method is
acceptable, depending on the nature of the case and the evidence adduced. 
Cooper-Stephenson and Saunders in Personal Injury Damages in Canada
(1981), stated at p. 279:

 This
approach very much depends upon the evidence adduced at trial.  Thus in Arnold
v. Teno such evidence related only to additional costs beyond the norm. 
In a sense, no question of duplication arose and the plaintiff was awarded full
loss of earnings from which she would then be able to provide for herself the
basic necessities of life in the same way as if she had not been injured.

[185]    In the case at bar, evidence has been presented
sufficient to permit calculation on either basis.  The plaintiff has presented
evidence of what it will cost to maintain him (and his dependents to some
extent) in a home environment for the rest of his life.  The defence has
presented evidence of the additional living expenses which the plaintiff will
incur because of his injury.  The court must therefore decide between the two
approaches.

[186]    In my view, the “total
lifestyle” approach is appropriate where the plaintiff’s entire future life has
been radically changed because of his or her injury.  In such a case, it is
artificial to speak of “additional” costs resulting from the injury.  The
plaintiff needs a totally different environment and totally different care than
he would have required had he or she not been injured.  The simplest and
fairest approach is to award him all these costs and make a deduction from loss
of future earnings for what would have been spent on basic necessities.

[208]     Although
in that case McLachlin J. held that the employer had met the standard of care
and dismissed the case, the referenced passages, although obiter, are often
quoted.

[209]    
In Athey, Major J. assessed the general principles of tort
compensation at para. 32:

[32]      To understand these
cases, and to see why they are not applicable to the present situation, one
need only consider first principles.  The essential purpose and most basic
principle of tort law is that the plaintiff must be placed in the position he
or she would have been in absent the defendant’s negligence (the “original
position”).  However, the plaintiff is not to be placed in a position better
than his or her original one.  It is therefore necessary not only to determine
the plaintiff’s position after the tort but also to assess what the “original
position” would have been.  It is the difference between these positions, the “original
position” and the “injured position”, which is the plaintiff’s loss.  In the
cases referred to above, the intervening event was unrelated to the tort and
therefore affected the plaintiff’s “original position”.  The net loss was
therefore not as great as it might have otherwise seemed, so damages were
reduced to reflect this.

[210]     I am of
the view that the plaintiff had a significant pre-existing cancer which had
been growing for some time prior to the mammogram.  Ms. McKerr had not had a
mammogram since 2002 in Calgary, even though she had been encouraged to attend
for one in 2004 and 2007 by Dr. Goodchild.

[211]    
I accept the evidence of  Dr. Pritchard that:

… the treatment of this breast
cancer would have been similar since it would have been diagnosed around the
same time or earlier, was inflammatory, was rapidly progressive and was serious.

[212]     I am not
satisfied on the evidence that Ms. McKerr’s prognosis or life expectancy has
changed as a result of the mammogram and Ms. McKerr cannot be compensated on
that basis.

[213]      
Accordingly, I conclude that Ms. McKerr’s pecuniary claims for
future care and future income loss have not been made out on the evidence.  All
of the expenses and impacts of the cancer would have occurred in any event.

Non-pecuniary damages

[214]     As a
result, I am limited to considering Ms. McKerr’s claim for non-pecuniary
damages and special damages that arise from the hematoma and shoulder injury.

[215]    
In Hartnett v. Leischner, [2008] B.C.J. 2242, Russell J. provides
a helpful summary of the law with respect to general or non-pecuniary damages:

[81]      There are a number of factors that courts must take
into account when assessing this type of claim.  Justice Kirkpatrick, writing
for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th)
19, outlines the factors to consider, at para. 46:

 The
inexhaustive list of common factors cited in Boyd [Boyd v. Harris,
2004 BCCA 146] that influence an award of non-pecuniary damages includes:

 a)         age
of the plaintiff;

 (b)        nature
of the injury;

 (c)        severity
and duration of pain;

 (d)        disability;

 (e)        emotional
suffering; and

 (f)         loss
or impairment of life.

 I
would add the following factors, although they may arguably be subsumed in the
above list:

 (g)        impairment
of family, marital and social relationships;

 (h)        impairment
of physical and mental abilities;

 (i)         loss
of lifestyle; and

 (j)         the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163,2005 BCCA 54
(B.C.C.A.)).

[82]      The authorities
presented by both parties involving similar soft tissue injuries support a
damage award ranging from $28,000 to $75,000.  Based on my findings and upon
reviewing these cases, I find an award for non-pecuniary damages in the amount
of $60,000 as an appropriate and fair amount.

[216]     This claim
relates to the pain and suffering from the actual procedure itself, which was
significant to Ms. McKerr, the follow up pain in the fall of 2008, and the pain
from the soft tissue shoulder injury which emerged on her drive to Mexico and
which limited the mobility of her left arm while she was in Mexico.

[217]     By the
time Ms. McKerr returned for her follow up with Dr. Goodchild at the end of
December 2008, Dr. Goodchild referenced the shoulder injury as a “frozen left
shoulder” and sent Ms. McKerr for x-rays.

[218]     There is
limited reference to the shoulder injury in the medical evidence and records
after December 2008, and it appears that is because the overriding concern and
follow up treatment by all medical practitioners related to Ms. McKerr’s
cancer.  The mastectomy performed by Dr. Cunningham in 2009, and further
surgery in 2011 involved taking a portion of the pectoral muscle from the
plaintiff’s left side.  Additional muscle was taken during the second surgery
in July 2011.

[219]     Although
defence counsel have disputed any finding of injury, defence counsel have also
submitted that if any injury is found the plaintiff should be compensated under
this head of damage based on a minor soft tissue shoulder injury in the range
of $10,000.00 – $15,000.00.  The defence further argues that Parmar v.
Lahay, 2011 BCSC 1628, most accurately reflects the nature and degree of
any soft tissue injury.

[220]     All of the
plaintiff’s counsel submissions focus on the injury as an acceleration of Ms.
McKerr’s pre-existing cancer.  Accordingly the suggested award under this head
of damage is $135,000.00.  That claim is made on the basis that injury from the
mammogram shortened her life span.

[221]     Considering
the list of factors outlined in Stapley v. Hejslet, I note the
following:

 (a)      Age
of the plaintiff — Ms. McKerr was 61 years of age at the time of the
mammogram.  She was just approaching the period in her life commonly referred
to as the “golden years” and she was just beginning to enjoy annual winter
vacations in Mexico.  This trip in October 2008 was her last trip pre‑diagnosis
of her cancer.

 (b)      Nature
of the injury — As I have outlined the nature of the injury is a hematoma
which appears to have resolved sometime in January 2009 since it was not a
finding at the time of the ultrasound by Dr. Proctor.  The procedure itself and
the follow up to it caused significant pain for Ms. McKerr resulting in her
being able to do little more than lie in bed when she was in Mexico.  She
returned from that trip because of the continuing pain and in order to obtain
further medical follow up.

 (c)      Severity
and duration of pain — The pain immediately following the mammogram and in the
fall of 2008 was severe.  Ms. McKerr was taking significant pain medication
during this period.

 (d)      Disability
— It is difficult to assess any long term disability since the shoulder injury
was not a focus of any medical treatment.

 (e)      Emotional
suffering — Ms. McKerr’s emotional suffering as a result of the traumatic
mammogram was significant.  She went for a regular screening procedure, and as
a result of pain incurred in that procedure, she declined to attend for the
recommended follow up procedure at Victoria General Hospital in December 2008. 
She could not tolerate or contemplate another investigatory procedure at that
point in time.  She had a pre-existing depressive condition known as Seasonal
Affective Disorder, and was vulnerable to emotional distress as a result of
that condition.  Ms. McKerr has clearly had significant emotional suffering
over the course of the treatment.  As I have found that the mammogram did not
accelerate or exacerbate her pre-existing cancer, Ms. McKerr cannot be
compensated for the consequences of her cancer.  However, the very fact that
the link between breast cancer and trauma has been studied has caused Ms.
McKerr ongoing emotional distress since she has focused her emotional energy on
finding a reason for her diagnosis of cancer.

 (f)       Loss
or impairment of life — I am not satisfied that the plaintiff has established
any shortened lifespan as a result of the mammogram.

[222]     Since there
are really no similar cases that can provide any meaningful guide for the
unique circumstances before me, I am awarding $75,000.00 for general damages. 
The extent of the soft tissue shoulder injury is difficult to determine because
of the ongoing cancer treatments.  The pain in the immediate aftermath of the
mammogram was significant.  Any pleasure from Ms. McKerr’s last vacation prior
to her diagnosis was eliminated as a result of that pain.  If not for the
negligent mammogram, Ms. McKerr may have fully enjoyed her holiday and returned
in early December for the December 1, 2008 appointment resulting in a diagnosis
four to six weeks earlier.

[223]     The
ongoing emotional suffering related to the mammogram is significant.  While
this award may be considered to be on the high side, I am of the view that it
is fair and appropriate based on all of the circumstances.

Special Damages

[224]     The plaintiff
claims $22,249.55 as a result of the mammogram.  Most of this sum relates to
loans from her sister occasioned as a result of her inability to meet her
living expenses as she pursued treatment.  Those costs are not compensable.

[225]     I am
awarding $2,500.00 under this head of damage.  This sum reflects the cost of a
driver to bring her back from Mexico, hotel costs on the return trip, and an
amount for medication for the pain caused by the negligent mammogram.

[226]     In the
result I order:

 General Damages:            $
75,000.00

 Special Damages              $   2,500.00

Costs

[227]    
Although the plaintiff argued that special costs are appropriate in this
case, there is nothing in the circumstances that I am aware of, including the
manner that the case was defended, that would justify an award for special
costs.  However, since the defendant sought leave to make submissions on costs,
and since there may be circumstances of which I am unaware with respect to the
plaintiff’s submissions, costs may be spoken to if they cannot be agreed to by
the parties.

                       “J.
A. Power, J.”                      

The
Honourable Madam Justice J. A. Power