COURT OF APPEAL FOR ONTARIO
Feldman, Simmons and Armstrong JJ.A.
BETWEEN
Kathleen Dufresne, Cooper Dufresne and Cory Dufresne, minors under the age of 18 years, by their litigation guardian, Kathleen Dufresne
Plaintiffs (Appellants)
and
Stephen W. Bartol
Defendant (Respondent)
Paul J. Pape, David S. Steinberg and Shantona Chaudhury, for the appellants
Kirk F. Stevens, for the respondent
Heard: February 1, 2010
On appeal from the judgment of Justice Robert J. Abbey of the Superior Court of Justice dated May 2, 2008.
Simmons J.A. (Dissenting):
Introduction
1The appellants appeal from the judgment of Abbey J. dismissing their action for medical malpractice arising from the death of Roy Dufresne.
2Mr. Dufresne died from a massive pulmonary embolism that arose as a complication of arthroscopic knee surgery performed by the respondent, Dr. Bartol, an orthopaedic surgeon.
3Pulmonary embolism is a potentially fatal condition that occurs when a blood clot migrates to the lungs. Deep vein thrombosis (“DVT”) is a related condition involving blood clots in the veins of the leg. Venous thromboembolism (“VTE”) refers to clots in blood vessels generally, including those to deep veins in the legs and pulmonary embolisms
4In this case, it is undisputed that, following his release from hospital and two days prior to his death, Mr. Dufresne suffered at least one of the recognized symptoms of pulmonary embolism and that his condition on that day was treatable. However, he had not been told about the symptoms of pulmonary embolism and he did not realize that he should seek medical treatment immediately.
5At trial, the appellants argued that the respondent was negligent in failing to investigate and treat Mr. Dufresne for DVT or pulmonary embolism while he was in hospital, and, at the very least, in failing to warn Mr. Dufresne about the symptoms of pulmonary embolism when he discharged him from the hospital on February 26, 2001. The appellants relied, in part, on Mr. Dufresne's reluctance to move following surgery and on undisputed evidence that immobility creates a heightened risk of pulmonary embolism.
6The trial judge found that the respondent's assessment that there was no clinical evidence of a blood clot while Mr. Dufresne was in the hospital was consistent with the weight of the expert medical evidence presented at trial. The trial judge also accepted the respondent's evidence that Mr. Dufresne met his physiotherapy goals while in hospital and that he was not immobile on the date of discharge. He therefore rejected the appellants’ claim that the respondent was negligent in failing to investigate and treat Mr. Dufresne for DVT or pulmonary embolism while Mr. Dufresne was in the hospital.
7Although the respondent acknowledged that immobility for a period of days following discharge from the hospital would create a heightened risk of pulmonary embolism, the trial judge accepted the respondent's evidence that, from a medical perspective, he did not consider Mr. Dufresne at any greater risk of VTE than any other similar patient. The trial judge held that the respondent properly addressed the risk of immobility following discharge by emphasizing the importance of mobility and providing Mr. Dufresne with a prescription for physiotherapy.
8On appeal, the appellants do not challenge the trial judge’s conclusion that the respondent was not negligent in his treatment of Mr. Dufresne in the hospital. The sole issue on appeal is whether the trial judge erred in failing to find the respondent negligent because he did not warn Mr. Dufresne about the symptoms of pulmonary embolism when he discharged him from the hospital on February 26, 2001.
9The appellants claim that the respondent’s own evidence discloses that he believed that Mr. Dufresne was at heightened risk for developing pulmonary embolism when he discharged him from the hospital. The appellants contend the trial judge erred by focussing improperly on the respondent’s evidence concerning Mr. Dufresne’s condition while he was in the hospital and by failing to take account of the respondent’s evidence relating to what could happen in the future.
10The appellants rely, in particular, on the respondent's evidence that he warned Mr. Dufresne that he could die from a blood clot if he did not keep moving after being discharged from the hospital.
The Respondent's Evidence Concerning his Caution to Mr. Dufresne on Discharge
11At trial, the respondent testified that although Mr. Dufresne had done what he was supposed to do in terms of moving around while in the hospital, “he... really needed a push from the nurses” in order to do so. The respondent was therefore concerned that Mr. Dufresne might need additional persuasion at home to avoid becoming immobile. Because mobility is essential to a good surgical outcome and because immobility creates a heightened risk of DVT, the respondent “tried to scare [Mr. Dufresne] into getting mobile.”
12The respondent said that he behaved as if he was angry and yelled at Mr. Dufresne. He told Mr. Dufresne “he was at risk of developing a blood clot and blood clots can kill you.” He also gave Mr. Dufresne a second prescription for physiotherapy because Mr. Dufresne had misplaced the original prescription the respondent had provided previously.
13In cross-examination, the respondent acknowledged that he was concerned that if Mr. Dufresne continued the pattern of behaviour he demonstrated while in the hospital, he could be on the road to a fatal blood clot:
Q. You had concerns that if he continues on this pattern, he was at risk of suffering from a fatal blood clot?
A. Yes. My concern is that he was in hospital and he had somebody there. He had several people there, nurses and therapists who were following protocols and procedures to get him moving and he didn't want to move and he made it pretty clear to them that he didn't want to move, but he did what they told him he had to do and so he was moving appropriately and that makes his risk on the 26th no different from his pre-op risk, which is pretty minimal. But my concern was that having heard that he doesn't want to get up and move, he might go home and lie in the basement and not do anything and stay immobile for three days and I know that if a patient is immobile following surgery for several days at a time, they do have an increased risk of blood clots and blood clots can be fatal.
Q. Okay. What I'm suggesting to you and you can correct me if I'm wrong, that's what you were really concerned about was him continuing down the path he was going and having a fatal blood clot?
A. My concern was his continuing down the path he was going and having a blood clot and the effect that that would have on his outcome, yes. With that, there is a concern that he could be on the path to a fatal blood clot if he goes home and reverts to an old pattern of behaviour.
14The appellants also rely on the portions of the respondent’s evidence set out in Appendix ‘A’, which they say make it clear that he believed that Mr. Dufresne was at a heightened risk for a pulmonary embolism on February 26, 2001.
15In her evidence at trial, Mrs. Dufresne disputed the respondent's claim that he warned Mr. Dufresne he could die from a blood clot if he did not keep moving after being discharged from the hospital.
The Trial Judge’s Reasons
16The trial judge did not make a finding concerning whether the respondent cautioned Mr. Dufresne in the manner he described. Instead, the trial judge found that on February 26, the respondent did not consider Mr. Dufresne to be at any greater risk of pulmonary embolism from a medical point of view than any other patient who had undergone the same procedure. As the risk of pulmonary embolism to such a patient was infinitesimally small, the respondent was under no duty to warn Mr. Dufresne of the symptoms.
17Further, although the respondent considered Mr. Dufresne at risk of becoming immobile following discharge, and recognized that immobility would in turn create a heightened risk of pulmonary embolism, the trial judge concluded that the respondent properly addressed the risk of immobility by cautioning Mr. Dufresne to stay mobile and giving him a second prescription for physiotherapy.
18Although somewhat lengthy, the trial judge’s reasons relating to these issues are central to this appeal and I set them out in full below:
It is apparent from the overall testimony of the defendant that, from a medical point of view, he did not consider that Roy was at any greater risk regarding VTE than any other patient who had undergone ACL reconstructive surgery and that he considered the risk of a pulmonary embolism following such surgery as infinitesimally small. He had never heard or read, he said, of the development of a pulmonary embolism following arthroscopic surgery. As I said, he found no clinical evidence of a blood clot and he considered Roy’s condition to be as would be expected. All the physiotherapy goals had been met. The defendant recorded in his discharge summary that Roy was mobilizing well.
The defendant's assessment that there was no clinical evidence of a blood clot and that Roy was at no greater risk than any other patient who had undergone ACL reconstructive surgery, is consistent with the weight of the expert medical evidence in this case. His assessment concerning the rarity of a pulmonary embolism following ACL reconstructive surgery is consistent with the statistical evidence in this case. His conclusion that immobility for a period of days following discharge would heighten the risk of a pulmonary embolism is also consistent with the medical evidence. The patient, however, was not immobile on February 26.
The issue which directly confronted the defendant was how to deal with the risk of immobility and he addressed that concern. He emphasized the importance of mobility. He provided a script for physiotherapy and told Roy that he was to begin immediately. Physiotherapy, as the defendant explained in his testimony, while not a treatment for blood clots, does address mobility, not only directly, but also because, as he explained, physiotherapists are the eyes and ears of the doctor after discharge. They provide a means of monitoring the condition of the patient including the patient's level of mobility.
The statement that Roy could die from a pulmonary embolism, if the defendant made it, was not prompted by a belief that Roy was, from a medical point of view, at heightened risk. To the contrary, the defendant found no clinical evidence of a blood clot and considered that Roy was in no different situation than any other patient who had experienced ACL arthroscopic surgery and therefore at extremely low risk of a pulmonary embolism.
As the defendant explained in his testimony, he did not list the warning signs of a pulmonary embolism because there was nothing in Roy's condition to suggest that he represented anything but a routine case.
[Emphasis added].
Discussion
19In my view, the trial judge misapprehended Dr. Bartol’s evidence when he concluded that Dr. Bartol did not perceive a heightened risk of pulmonary embolism when he discharged Mr. Dufresne from the hospital.
20Although Mr. Dufresne had no clinical symptoms of a blood clot when he was discharged from the hospital, Dr. Bartol acknowledged in his evidence that he believed there was a realistic prospect that Mr. Dufresne would become immobile once at home. Significantly, according to his own evidence, Dr. Bartol recognized that immobility, in turn, created a heightened risk of pulmonary embolism.
21Whether he cautioned Mr. Dufresne in the manner he described or not, based on his own evidence, Dr. Bartol recognized a need to caution Mr. Dufresne to stay mobile in the strongest of terms because of Mr. Dufresne’s behaviour in the hospital and because Mr. Dufresne would not have the assistance of the nursing staff to encourage him to move once at home.
22In my view, a common sense reading of Dr. Bartol's evidence can yield no conclusion other than that Dr. Bartol perceived a heightened risk of Mr. Dufresne developing a pulmonary embolism when he discharged him from the hospital. The fact that the risk arose from Mr. Dufresne's behaviour rather than from a specific medical condition does not change the conclusion that Dr. Bartol recognized Mr. Dufresne was at a heightened risk.
23One of the respondent’s own experts acknowledged that there would be a duty to warn a patient of the symptoms of pulmonary embolism if there was a heightened risk of that condition.
24In the circumstances, I conclude that the trial judge made a palpable and overriding error in finding that the respondent did not perceive a heightened risk of pulmonary embolism when he discharged Mr. Dufresne from the hospital and in failing to find that the respondent had a duty to warn Mr. Dufresne of the symptoms of pulmonary embolism.
25The appellants acknowledged in oral argument that, if successful on appeal, there must be a new trial because the trial judge did not deal with certain issues, for example, the question of contributory negligence.
26In the result, I would allow the appeal and order a new trial. I would award costs of the appeal to the appellants on a partial indemnity scale fixed in the amount of $30,000 inclusive of disbursements and G.S.T.
Signed: “Janet Simmons J.A.”
Appendix ‘A’
In-Chief
Q. Now what impression did you get from consulting with the nurses about Roy Dufresne on Monday morning?
A. My impression was that he had done what he was supposed to do in terms of getting up and moving and ambulating, but they gave me the impression that he had needed a bit of a push or a lot of encouragement to do it. They gave me the impression that he was not the type to get up and get going by himself. He had really needed a push from the nurses.
Q. Did that cause you any concern?
A. It did.
Q. Why was that a concern?
A. Well it's a concern for two reasons. First of all, it's a concern because mobilization and rehabilitation are critical to a good outcome following this type of surgery. The second reason is that mobilization is critical to the general well being including improving circulation, reducing complications such as blood clots.
Q. Well we've heard from a lot of doctors over the last few days about the mobility issue relative to blood clots. Is that something you were aware of?
A. Yes.
Q. Is that something you were concerned about?
A. Yes.
Q. Did you have any concerns if he - that he might become immobile when he went home without anyone to push him?
A. Yes. My concern was that if he had needed persuasion in the hospital he might need additional persuasion at home as well.
Q. And what would the risks be if he didn't get mobile at home? If he sat in bed all day or laid in the bed all day?
A. Well the biggest risk is that he's going to get a failure of his operative outcome because lazing around not moving and not mobilizing appropriately greatly increases the risk of having a bad outcome from the surgical procedure. So that's my main concern. The second concern of course is that as with any surgical patient, there is a risk of venous stasis and blood clots and....
Q. So what did you tell him?
A. So I tried to scare him into getting mobile and I told him that he had to get mobile and if he didn't get mobile, he was at risk of developing a blood clot and blood clots can kill you and I was quite deliberate in telling him that because I was very concerned about the surgical outcome and I wanted to ensure that he had the best possible chance of a good recovery.
Q. What type of demeanour were you expressing towards Roy Dufresne at that time?
A. I was angry. I should say I behaved angry. I believe that I probably yelled at him. I raised my voice and I let him know that I was upset that he was giving indications that he may not follow appropriate rehabilitation guidelines and mobilize the way that we had agreed prior to the surgery.
Q. You gave him a script for physiotherapy?
A. Yes he had - he indicated he didn't have the script that had previously been provided. So I cut another script and gave him another script for physical therapy.
In Cross-examination
Q. Okay. I'm going to suggest you doctor and I want you to listen closely, that after you talked to the nurses and learned of their concerns with respect to his weekend mobility and non-compliance, combined with the fact that this surgery had VTE risks in and of itself, that you had heightened concerns that this man was prone to a fatal blood clot if he continued that behaviour?
A. If he continued that behaviour after discharge, yes.
Q. You had concerns that if he continues on this pattern, he was at risk of suffering from a fatal blood clot?
A. Yes. My concern is that he was in hospital and he had somebody there. He had several people there, nurses and therapists who were following protocols and procedures to get him moving and he didn't want to move and he made it pretty clear to them that he didn't want to move, but he did what they told him he had to do and so he was moving appropriately and that makes his risk on the 26th no different from his pre-op risk, which is pretty minimal. But my concern was that having heard that he doesn't want to get up and move, he might go home and lie in the basement and not do anything and stay immobile for three days and I know that if a patient is immobile following surgery for several days at a time, they do have an increased risk of blood clots and blood clots can be fatal.
Q. Okay. What I'm suggesting to you and you can correct me if I'm wrong, that's what you were really concerned about was him continuing down the path he was going and having a fatal blood clot?
A. My concern was his continuing down the path he was going and having a blood clot and the effect that that would have on his outcome, yes. With that, there is a concern that he could be on the path to a fatal blood clot if he goes home and reverts to an old pattern of behaviour.
Q. You felt compelled to do something about this potentially catastrophic situation and what you did is you went into his room and you told him that he needed to get mobile and that if he laid around he was going to get sick because blood clots are serious. They'll kill him, correct?
A. Yes.
Q. And you didn't say to him, if you lay around here, this operation’s going to be a failure, did you?
A. No because I had made that perfectly clear prior to the surgery and it didn't have the impact that I wanted it to have.
Q. Yes.
A. I felt that he needed a little stronger motivation.
Q. And the stronger motivation being scaring him that he might die?
A. Well and I told you that in discovery that I was concerned I may have over-scared him by saying that he might die, but yes that's what I did.
Q. Okay. Surely Doctor, you would agree with me that you wouldn't ordinarily say that to a patient unless you had heightened concern that it might be true?
A. There is - there is some truth to it. There is risk that you can get a blood clot and you can die from the blood clot, but what I knew then and what I know now, even more than I knew then, is that the risk of death from a blood clot after this operation is exceedingly small, infinitesimally small.
Q. That's not the question I asked you.
A. But the risk of failure is very high.
Q. That's not the question I asked you. I asked you this. You turned your mind to this warning. You went in there and you gave him this warning and you intended to and did scare him for the purpose of alerting him to the fact that you believed he was headed down a road to a possible fatal pulmonary embolism, correct?
A. I'm not sure I really did scare him, but that was my intent, yes.
Q. That was your intention and your intention was because of your heightened concerns about him having a fatal pulmonary embolism, correct if he continued down that road?
A. If he went back to his previous behaviour, yes.
Q. Well then why the warning?
A. Because he wasn't mobilizing his knee. He wasn't getting up and I was afraid that he would (1) ruin the outcomes of a good operation and (2) he did have a risk of going home and laying around and not moving because no one was telling him to move. So I made it clear, he had to move and I wanted to make sure that he understood how imperative it was.
Q. So you did believe that he was at risk of pulmonary embolism if he continued down that road?
A. If he went down that road, yes and that's what I told him.
[Emphasis added.]
Feldman J.A.:
27I have had the benefit of reading the reasons of Simmons J.A. I do not agree that the trial judge (a) misapprehended Dr. Bartol’s evidence, (b) made any error regarding Dr. Bartol’s assessment of heightened risk of pulmonary embolism at the time of Mr. Dufresne’s discharge, or (c) misapplied the standard of care. I would dismiss the appeal.
28The sole issue on appeal is whether the trial judge made a palpable and overriding error in failing to find that, when he discharged Mr. Dufresne from hospital on February 26, 2001, the respondent believed that Mr. Dufresne was at a heightened risk for a pulmonary embolism that required a warning regarding the symptoms of that condition and an instruction to return to hospital if any of those symptoms occurred.
29The appellants contend that the trial judge made a palpable and overriding error in failing to give effect to the respondent’s own evidence that he believed that Mr. Dufresne was at a heightened risk of developing a pulmonary embolism. They contend that the trial judge erred by focussing on the respondent’s evidence concerning Mr. Dufresne’s condition on February 26, 2001, and by failing to take account of the respondent’s evidence relating to what could happen in the future, which they say amounted to a statement of his belief that Mr. Dufresne was at a heightened risk of developing a pulmonary embolism.
30In my view, the appellants have asked this court to reassess the evidence of Dr. Bartol, including his credibility, and to substitute their interpretation of his evidence for that of the trial judge. As numerous decisions on the standard of review on appeal have stated, that is not the role of this court. At best, even if the reading contended for by the appellants is one available reading, it was open to the trial judge to accept Dr. Bartol’s meaning as he did.
31Dealing with the risk factors for venous thromboembolism (“VTE”), which includes pulmonary embolism, the trial judge identified surgery and immobility as the relevant factors in this case. On the specific issue of risk of immobility when Mr. Dufresne went home from hospital following the surgery, the trial judge referred to the evidence of each of the expert witnesses as well as to the published guidelines from 2001 and 2004 and the British Orthopaedic Association Best Practice Guidelines. He stated his conclusion based on all the evidence at para. 75 of the reasons:
In my judgment, the medical evidence as a whole in this case clearly supports the conclusion that, as the situation was on the morning of February 26, 2001, with the exception of the extremely low risk associated with routine arthroscopic ACL surgery, none of the other factors which would have indicated a heightened risk of VTE, on the application of any guideline existing at the time, were present. The symptoms which had been evident over the weekend were no longer, and Roy, by then, presented as a patient with a low risk of VTE referable only to the surgery itself.
32This conclusion was largely premised on the trial judge’s finding, accepted on this appeal, that, following surgery, Mr. Dufresne was adequately mobile. Despite his resistance to mobilizing, Mr. Dufresne was not actually immobile while in hospital, and therefore not at a risk of blood clotting any greater than other surgery patients.
33The trial judge then referred to the expert evidence on the standard of care. Dr. Orsini for the plaintiff testified that his own standard was higher than the accepted standard. His opinion that the respondent fell below the standard was influenced by his reading of the respondent’s discovery evidence that the respondent believed on discharge that the patient “was on a path to a fatal blood clot.” The opinions of Doctors Johnson and Fowler, which were based on an analysis of the available records, was that “there was no need to investigate or treat for VTE and no need to warn of the symptoms of a pulmonary embolism.”
34The trial judge next turned to the issue of what the respondent himself actually believed was the situation at the time he discharged Mr. Dufresne home. In that regard the trial judge recorded that each of the specialists who testified had acknowledged the unique position of the treating orthopaedic surgeon and of that surgeon’s belief as to whether the patient was at heightened risk for pulmonary embolism.
35After quoting in detail substantially all of the evidence quoted by Simmons J.A., the trial judge set out his analysis and conclusion on this critical issue in paras. 105 to 109 of his reasons. These paragraphs have already been quoted by Simmons J.A. in her reasons.
36In his Conclusion, the trial judge specifically addressed Dr. Orsini’s view that the respondent believed the patient had a heightened risk of immobility and disagreed. He stated at para 122: “For the reasons that I have expressed, I do not believe that the defendant considered that Roy represented a greater risk than that applicable to any patient following ACL arthroscopic surgery. Rather, he assessed that Roy required some encouragement in regard to mobility in order to ensure that he would not be at increased risk.”
37Finally, the trial judge stated his analysis of what the respondent understood and what he did, and also referred to what might be a higher and better standard of care. He states his conclusion on these two points at paras 124 and 125:
After examining Roy and after understanding his level of [his] mobility from the nurses and the physiotherapist, the defendant saw nothing to suggest the presence of a blood clot or a risk of a pulmonary embolism beyond the extremely minimal risk which is the case in every ACL reconstructive surgery. He felt it prudent to say something about continued mobility. He did that and again emphasized the need for immediate physiotherapy.
Applying a standard of perfection in perfect hindsight, it certainly would have been preferable had the defendant gone on to make reference to the warning signs of a pulmonary embolism. I do not believe, however, that, in the circumstances which existed on February 26, the failure of the defendant to have outlined the warning signs of or to have investigated or treated for DVT represents conduct below the applicable professional standard. Rather, in my opinion, the defendant exercised that degree of skill, care and judgment as could reasonably be expected of a normal, prudent orthopaedic specialist at the time.
38One could debate whether the standard of care should require that all post-operative patients be told the symptoms of pulmonary embolism to meet the possibility that anyone could suffer that consequence, in given circumstances. However, it was not the evidence that that was the standard of care in this case or that it should be.
39In this case, the appellant’s suggestion for the standard of care appears to be that on discharge of a patient the treating surgeon is obliged to assess whether it is so likely that the patient will ignore the surgeon’s instructions to be mobile and to exercise, that a symptoms warning for pulmonary embolism is required. Even if that were the test, it is clear that the trial judge effectively concluded that the respondent was satisfied that the stern warning he gave Mr. Dufresne about the imperative to be mobile and to exercise was sufficient to remove any heightened risk of future immobility.
40In my view, the trial judge conducted a thorough and thoughtful analysis of the issues in the context of the entire record. His reasons are careful and clear. His conclusions are reasonable ones based on the record. It cannot be said that he misapprehended the issues or the evidence. He clearly expressed his understanding of the evidence on the key point.
41I see no basis to interfere with his conclusion.
42I would dismiss the appeal with costs, if demanded, to the respondent on the partial indemnity scale, fixed at $10,000 inclusive of disbursements and G.S.T.
Signed: “K. Feldman J.A.”
“I agree Robert P. Armstrong J.A.”
RELEASED: “KF” JUNE 17, 2010