Facts
The Plaintiff in this case was a 30-year-old woman who fractured her right clavicle in a sports accident. She saw the Defendant, Dr. Lee, for an open reduction and internal fixation (ORIF) surgical procedure to repair the fracture, since allowing an injury like this to heal naturally could have seriously compromised her long-term function. As part of an ORIF procedure, a plate is screwed into the fractured segment of the clavicle to hold the bone together while healing. The surgery took place October 20, 2016.
Over the next several appointments, X-rays were taken that revealed that while the fracture was healing well, it was not fully healed, and there were no issues with the hardware. The Plaintiff testified that she was pain free and was hoping to have the hardware removed so she could get back to sports. Dr. Lee saw her on April 20, 2017, and testified at trial that she was complaining about pain and hypersensitivity in her right clavicle at this time. However, Dr. Lee’s note from this date indicated that the patient was having “no significant problems clinically…full range of motion…no significant pain or irritation.” There was no mention of pain or hypersensitivity. Notably an X-ray was done at the April 20 appointment that indicated the fracture had still not fully healed but was progressing well.
The plan on April 20 was to follow up in 3 months for another x-ray to determine whether the fracture was fully healed and discuss surgery. However, this is not what ended up happening – Dr. Lee’s office followed up with the Plaintiff and booked surgery for June 2, 2017, to remove the hardware securing her fracture (less than 8 months after the initial surgery).
Dr. Lee agreed in cross-examination that the fracture was not fully healed on April 20, 2017, and indicated that generally surgery to remove hardware post ORIF procedure should generally be done after a year with full bone union (i.e. fully healed). At trial, he indicated that removing the hardware before the fracture was fully healed would cause a high risk of refracture, but that he elected to perform the surgery on June 2, 2017, due to the extenuating circumstances of the Plaintiffs’ hypersensitivity (pain), which was not mentioned in the records. He testified that he felt it was safe as the fracture was progressing well and that another X-ray done on June 2 would not have shown an appreciable difference from the April 20 x-ray, so none was performed prior to the second surgery.
The consent signed before the second surgery did not indicate what, if any, risks were discussed with the patient. The Plaintiff testified she was not warned about any increased risk of refracture. Dr. Lee testified that he had discussed it with her but did not document it in the records.
At her next follow up appointment July 13, 2017, x-rays revealed the Plaintiff had indeed suffered a re-fracture in her clavicle. Dr. Lee testified that he discussed another surgery to repair this re-fracture, but that the Plaintiff was not interested. This discussion about the Plaintiff’s disinterest in subsequent surgery was also not documented. Thus, the Plaintiff’s shoulder was left to heal naturally.
While her clavicle healed naturally from this second re-fracture, it did so with complications – a bone deformity caused her right shoulder to slump lower than her left shoulder, there was a bump on the incision site, and due to what was determined to be a likely infection during the second surgery the Plaintiff continued to suffer pain in the area over a year later. In July 2018 she underwent a third surgery to cut and re-fixate the bone, which was ultimately successful and as of the date of trial the Plaintiff’s only ongoing complaint is that her shoulder was weaker than before, affecting her ability to bathe her son, carry heavy things downstairs, etc.
Experts
For the Plaintiffs, orthopaedic surgeon David Pichora testified that the x-rays performed in April of 2017 could not be relied upon to confirm the healing status of the Plaintiff’s clavicle prior to the June 2, 2017, surgery to remove the hardware. Given the risk of re-fracture in the absence of a complete bone union, the standard of care was breached by failing to confirm whether the bone had healed completely. Based on Dr. Lee’s notes and the imaging, there was no reason to deviate from the original plan to wait 3 months from April 2017 and check again to confirm the healing status.
For the Defendants, orthopaedic surgeon Dr. Karabatsos was called as a witness and testified that while he did not understand why Dr. Lee changed his plan between April and June of 2017, it is within the standard of care to remove plates following ORIF surgery as early as 6 months, although in general physicians do not remove the hardware within the first 9 months. As long as there was incomplete union (which in this case there was), it was within the standard of care to remove the plate. Dr. Karabatsos noted that this would be done in similar circumstances where the patient was complaining of discomfort, which Dr. Lee testified about but did not note.
Decision
The Trial Judge determined that Dr. Lee was negligent for having carried out the second surgery. Central to this finding was the Judge’s thorough and comprehensive analysis of the law around a physician’s obligation to keep accurate and timely records. This analysis, which starts at paragraph 59 of the decision, notes the following principles:
- The importance of record keeping, both to remind the treatment provider of the past & present condition of the patient as well as to communicate this information to other healthcare providers, has been recognized by Ontario courts as part of the standard of care;
- Failing to properly document something does not in and of itself establish liability, there still must be a causative role in the adverse outcome.
- Notwithstanding the need to establish causation, an adverse inference can be drawn from the failure to document events that the treatment provider testifies occurred. citing Sozonchuk v. Polych, 2011 ONSC 842, at para. 91 (aff’d Sozonchuk v. Polych, 2013 ONCA 253): “the absence of contemporary recordings of important events in the care of a patient gives rise to the inference that the events simply never happened.”
- Even where the record-keeping failure does not justify an adverse inference, it can be considered when weighing the physician’s credibility on testimony about matters not adequately addressed in the records.
The general principles of standard of care of a physician as set out in Ter Neuzen v Korn were set out accurately and succinctly at paragraph 71 of this decision: in brief, that a physician is held to the same standard of a prudent and diligent doctor in the same circumstances, without the benefit of hindsight absent any consideration of the outcome, and that the standard of prudence and diligence does not equate to a standard of perfection.
The law on informed consent, which was an issue for the subsequent surgery, was also set out in detail at paragraph 97. In summary, to succeed in an informed consent case the Plaintiff must prove that the defendant physician 1) failed to disclose a material risk or indicated treatment alternative, and 2) that this failure caused their damages. In proving number 2, the Plaintiff must prove that a reasonable person would not have proceeded with the procedure had the risk been disclosed. In considering whether the risks had in fact been adequately disclosed, a court will have to consider 3 main elements:
1. Was there an explanation of the procedure and injury that may occur;
2. Was there an explanation of the frequency or likelihood of the injury (risk) materializing; and
3. Was there an explanation of the consequences of the injury should it occur.
In this case, what Dr. Lee said happened and what the notes reflected were very different. The Trial Judge was concerned with the lack of any explanation for why the surgery was scheduled for June 2, 2017, a departure from the more conservative approach planned on April 20. There was no contemporaneous evidence for why this was the case. There was also no contemporaneous evidence that the Plaintiff had complaints about hypersensitivity or pain in her shoulder, and the Trial Judge rejected this evidence as well. His Honour went so far as to say that it “strained credulity” that the hypersensitivity was so severe that Dr. Lee recalled it 6 years later but did not write it down. Dr. Lee’s evidence that he discussed the higher risk of re-fracture with the Plaintiff, and she elected to go ahead with it anyway was rejected for similar reasons – the Trial Judge found it “unbelievable” that a physician who was performing surgery earlier than what would be ideal and contrary to his plan of treatment would not write it down anywhere. The inference made was that this discussion was not documented because it did not occur.
Based on the foregoing analysis, it was found to be a breach of the standard of care to perform the surgery on June 2, 2017. The Plaintiff was also found to not have given informed consent to the June 2, 2017, surgery. Damages in this case were awarded for the refracture, but not for the consequences of treating the refracture non-operatively. While there was no contemporaneous evidence that Dr. Lee discussed the pros and cons of proceeding non-operatively, there was equally no evidence that the Plaintiff would have elected to have a second surgery. In any case however the surgery to correct these consequences (i.e. the bump and slumping) was found to be a sequalae of the initial negligence.
At the time of trial, there was no evidence that the Plaintiffs’ residual weakness was the result of the initial fracture or refracture, and so the damages awarded were limited to the pain and suffering of having to suffer the (now healed) refracture and third surgery. Damages of $35,000.00 were awarded.
