One radiologist liable for failure to detect patient's lung cancer; second is not: Ontario court

Two radiologists who failed to detect a patient’s lung cancer breached the applicable standard of care but only one directly caused the injury stemming from an incurable recurrence of the cancer, the Ontario Superior Court of Justice has ruled.

In Levy v. Rubenstein, 2022 ONSC 4547, Nissim Levy was diagnosed with kidney cancer and he underwent surgery to remove the tumour. After surgery, he was closely monitored by his urologist for recurrence and possible development of other cancers in the years that followed. Levy underwent a series of chest x-rays between 2010 and 2013. None of the radiologists who studied these x-rays reported any abnormality. However, in September 2013, Levy began to cough up blood. A CT scan in the following month revealed the presence of a 4.5 cm lung mass. Levy’s cancer had spread to his left lung and its presence and growth had gone undetected despite regular monitoring.

Levy’s tumour was surgically removed shortly after discovery, but his lung cancer recurred three years later, when it was diagnosed as incurable. Levy brought a medical malpractice lawsuit against the radiologists who interpreted and reported on the chest x-rays immediately preceding the October 2013 discovery of his lung cancer — Dr. Joel Rubenstein and Dr. Anna Zavodni of Sunnybrook Health Sciences Centre in Toronto.

Levy claimed that when he coughed up blood while on a cruise ship in September 2013, he was confused because he had had a chest x-ray about two months earlier that he had understood was normal, and because he had been routinely monitored for any spread of his kidney cancer. He questioned how the lung cancer could have developed undetected when he had been monitored regularly. Levy alleged that Dr. Rubenstein and Dr. Zavodni were negligent in their review and reporting on his chest x-rays and their medical malpractice caused or contributed to Levy’s outcome.

Breach of standard of care

The Ontario Superior Court of Justice noted that in medical malpractice cases, the trial judge should determine whether the defendant has breached the standard of care before resolving whether such breach caused the injury complained of. In determining the applicable standard of care, the court said the question to ask is whether the act or omission would be acceptable behavior for a reasonably prudent and diligent professional in the same circumstances.

Expert radiologists testified during trial, and they agreed that Levy’s tumour was present and visible on the x-ray images at the time of Dr. Rubenstein’s reviews in April 2012 and June 2013, and at the time of Dr. Zavodni’s review in October 2012. However, Dr. Rubenstein and Dr. Zavodni did not find any issues with the x-ray images. As the court found, both doctors missed the abnormality which was present on the radiographs that they studied and they did not have any explanation why. The court concluded that Dr. Rubenstein and Dr. Zavodni failed to review they x-rays with reasonable prudence and diligence. As a result, they did not discharge the standard of care required of a diagnostic radiologist.

Impact of negligence key to liability

The court noted that a finding of negligence alone does not make a defendant liable for a loss. Rather, the plaintiff must also establish that the defendant’s breach of standard of care caused the injury. The court referred to the “but for” test of causation which states that the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. The test requires that the defendant’s negligence was necessary to bring about the injury.

As the evidence showed, Levy had lung cancer by 2011, which went undetected until it was seen on a CT scan in 2013. The court found that Levy’s tumour grew from 2 cm in October 2011 to 2.5 cm in April 2012, when Dr. Rubenstein reviewed the x-ray. The tumour continued to grow undetected, and by the time Dr. Zavodni reviewed the x-ray in October 2012, the tumour had grown to 4 cm. By 2016, his cancer had recurred, and he developed an incurable lung cancer with a need for adjuvant chemotherapy.

The court noted that earlier diagnosis is correlated with improved outcomes for patients, because as tumours grow, they are more likely to spread and increase the risk of recurrence. The court found that a reasonably prudent and diligent radiologist would have detected Levy’s lesion on the April 2012 x-ray, when the tumour was 2.5 cm in length. The court concluded that if Levy’s tumour had been identified by Dr. Rubenstein then, Levy would have had an earlier surgery to remove a smaller tumour and he would not have had to endure the risks of chemotherapy. The potential for recurrence would also have been smaller had the tumour been detected by Dr. Rubenstein in April 2012.

In contrast, the court found little impact of Dr. Zavodni’s failure to identify the lesion in October 2012. Expert witnessed agreed that by the time Dr. Zavodni reviewed the x-ray, the tumour was already 4 cm in length, surgery would have been required upon detection, and it would have been the same surgery as eventually conducted in November 2013. The court concluded that Levy would have sustained the same outcomes regardless of the breach of standard of care of Dr. Zavodni. The court ultimately held Dr. Rubenstein liable for damages and dismissed the action as against Dr. Zavodni.