Court File and Parties

COURT FILE NO.: CV-13-473593 DATE: 20160517 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY LENNOX Plaintiff – and – ANDREW RUSSELL BURNS Defendants

Counsel: Pheroze Jeejeebhoy and Charlene Stephen for the Plaintiff Darryl A. Cruz and Byron D. Shaw for the Defendant

HEARD at Toronto: 2, 3, 4, 5, 9, 16 and 17 November 2015

Reasons for Decision

Mew J.

Introduction

[1] An eleven-and-a-half hour colostomy reversal operation that should have taken three hours. A patient with unusually “hostile” dense abdominal adhesions. A well-qualified, but nevertheless relatively young surgeon assisted by an even more inexperienced surgeon. An operative record that a professor of medicine said he would have had re-done “properly” if it had been written by one of his residents. A bad outcome, which left a previously healthy and active middle-aged man with a permanent disability due to a femoral nerve injury and with a predominantly liquid diet for the rest of his life due to a malfunctioning intestinal system. And wise and learned medical men, all highly skilled experts, disagreeing on whether errors were made by the surgeon which fell below the standard of care and if so whether they caused the patient’s current circumstances.

[2] These are difficult cases for courts to resolve. Of course all surgery presents risks, and the plaintiff in this case knew and accepted that. But neither he nor the surgeon contemplated the outcome that occurred, let alone discussed it. And regardless of what the court says about where legal liability rests, the plaintiff patient will always wonder whether there would have been a different outcome if the surgeon had been more experienced, or if he had sought the help of a more senior colleague when things started to go wrong, or if the surgery had been abandoned.

Background

[3] On a Thursday evening in March 2007, Gregory Lennox started experiencing intensive abdominal pains. The pains would come and go. But they got better, not worse. The following Monday he went to see his family doctor. He was told to go to the emergency room. He went to the Trillium Health Centre in Mississauga. There he was seen by Dr. Andrew Burns, a general surgeon. A perforated diverticulum was diagnosed. Diverticula are pouches which form in the wall of the colon (large intestine). They can become inflamed and may develop perforations. This can cause the contents of the colon to leak into the abdominal cavity, resulting in peritonitis. Peritonitis is a serious, potentially life threatening, condition.

[4] Dr. Burns advised an immediate, surgical, response in the form of a laparotomy (open abdominal surgery) and a colostomy. A colostomy is a surgical procedure that brings one end of the large intestine out through an opening (stoma) made in the abdominal wall. Stool moving through the intestine drains through the stoma into a bag attached to the abdomen.

[5] Mr. Lennox asked Dr. Burns if there was an alternative to the proposed surgery (Dr. Burns said “no”). However, Mr. Lennox also says that Dr. Burns told him that after allowing three to six months to let things heal, it should be possible to reverse the colostomy.

[6] Mr. Lennox gave his consent for the surgery to proceed.

[7] That same day, 26 March 2007, the diseased section of the colon was removed, the abscesses caused by the infection were drained and a colostomy was created. This procedure undertaken by Dr. Burns is known as a Hartmann procedure.

[8] At the time of his surgery, Mr. Lennox was 46 years old. He worked as a specialist carpenter, building sceneries for movies and television. He was otherwise in good health and enjoyed an active life style.

[9] Dr. Burns graduated from the University of Toronto Medical School in 1999, where he received the Gold Medal in Surgery. He completed his general surgery residency in Toronto between 1999 and 2004. He then undertook a two year fellowship, including subspecialty training in surgical oncology. He also spent six months working as a general surgeon in Sydney, Australia. After completing his fellowship, in July 2006, he took a position at the Credit Valley Hospital which became part of the Trillium Health Centre.

[10] Mr. Lennox saw Dr. Burns on 20 April 2007 for a follow-up appointment. He said that he was unable to return to work. He was concerned that whenever he exerted himself his appliance might fall off. The colostomy bag leaked which Mr. Lennox found “disgusting and gross”. In short, the colostomy was a nuisance.

[11] Mr. Lennox and Dr. Burns discussed further surgery to reverse the Hartmann’s procedure. Although a reversal is not undertaken in all cases where Hartmann’s procedure has been carried out, there does not appear to have been any issue as to the suitability of this procedure in Mr. Lennox’s case. Ordinarily it is done between three months and twelve months after the colostomy. In Mr. Lennox’s case, the reversal surgery was undertaken on 7 August 2007, a little under four and a half months after his initial surgery.

[12] A “normal” Hartmann’s reversal operation takes around three hours. However, Mr. Lennox was in surgery for 11.5 hours.

[13] Although Dr. Burns was able to complete the Hartmann’s reversal, Mr. Lennox had to be taken back into surgery four days later to repair some holes in his colon that remained after the surgery on 7 August.

[14] Mr. Lennox has never been the same since the surgery. He has experienced damage to his femoral nerve, C difficile infections and fistulas causing permanent bowel dysfunction.

[15] Mr. Lennox claims that Dr. Burns failed to adequately explain the risks of the Hartmann’s reversal surgery to him and that both the surgery itself and the response by Dr. Burns to the C difficile infection fell below the applicable standard of care and, as such, that Dr. Burns is liable to Mr. Lennox for the resulting pain and suffering and other damages.

[16] The parties have agreed the quantum of damages in the event that there is liability on Dr. Burns’ part.

Facts

[17] As already noted in the overview, Mr. Lennox wished to have his colostomy reversed as soon as possible.

[18] Dr. Burns says that he recommended that Mr. Lennox wait for six months but that he agreed to do it sooner because of his patient’s wish to have the procedure as soon as possible.

[19] Before booking Mr. Lennox for surgery, Dr. Burns arranged a colonoscopy to screen for colon cancer. The colonoscopy was performed on 14 June 2007 and did not show anything unexpected.

[20] On 9 July 2007, Dr. Burns met with Mr. Lennox to discuss the colostomy reversal. The appointment lasted 15-30 minutes. Mr. Lennox had still not returned to work but told Dr. Burns he was anxious to do so. Dr. Burns explained to Mr. Lennox that he could either open up the abdomen, as he had with the previous surgery (going along the old scar line if possible) or undertake the procedure using laparoscopic surgery (also called minimally invasive surgery or “keyhole” surgery).

[21] Mr. Lennox recalls Dr. Burns saying that there was a 2% chance of complications.

[22] Dr. Burns says that he explained that the surgery involved major risks and minor risks. The major risks, which included the risk of death or cardiac arrest, were small, given that Mr. Lennox was in his forties and otherwise healthy. The minor risks were said to include the risk of bleeding, infection and a leak from the anastomosis (a surgical connection between the colon and the rectum). Although Mr. Lennox could not recall these minor risks having been discussed, he concedes that it is possible that Dr. Burns gave the explanation which he says he did.

[23] Mr. Lennox says that as a result of his discussion with Dr. Burns, he understood that the colostomy reversal was a major abdominal surgery and that all surgery has risks. Dr. Burns had said the surgery would take about three hours and that he may have to spend six days in hospital, that he would not be able to go back to work for several weeks, that normal bowel function may not return immediately and that he might have more frequent bowel movements. According to Mr. Lennox, Dr. Burns did not make it sound like it was “a big deal”, but acknowledges that he did not push Dr. Burns or question him (although he also conceded that he believed Dr. Burns would have answered any question that was put to him).

[24] It appears to be common ground that there was no express discussion about the possibility that having started, Dr. Burns might have to abort the operation before completing it.

[25] It was agreed that the surgery should be booked for 7 August 2007. Dr. Burns would first attempt a laparoscopic procedure, failing which a laparotomy would be performed.

The Surgery

[26] As of August 2007 when he undertook the Hartmann reversal procedure on Mr. Lennox, Dr. Burns estimates that he had seen or done hundreds of surgical cases involving the bowel, including between 25 and 50 colostomy reversals.

[27] For Mr. Lennox’s operation, Dr. Burns was assisted by Dr. Bertucci, who was also a general surgeon.

[28] The evidence of what happened during the course of the surgery consists of the testimony given by Dr. Burns at trial, together with the record of operation dictated by Dr. Burns, a report of consultation prepared by Dr. Bertucci, the nursing intraop record, an interdisciplinary progress notes and physician’s order record (all dated 7 August 2007). Dr. Burns acknowledged that what he described as the “minutiae” of the surgery was not captured in his note. However, he has a particular memory of this surgery because it was an extraordinary case due to the number of adhesions that were encountered during the course of the surgery and the difficulty of the operation.

[29] Mr. Lennox was placed in the dorsal lithotomy position (on his back, with his legs up in stirrups), which is the standard positioning for a Hartmann’s reversal.

[30] Dr. Burns first attempted to perform the surgery laprascopically. Laprascopic surgery involves the use of a laprascopic camera and instruments inserted through ports or holes in the abdominal wall. A veress needle is inserted through the abdominal wall and into the abdominal cavity. After the needle goes in, carbon dioxide tubing is attached and an attempt is made to insufflate the abdominal cavity to achieve “pneumoperitoneum”. On the first attempt, Dr. Burns was unable to insufflate the abdominal cavity. He felt this was most likely because the veress needle was pressed up against adhesions or bowel. A second attempt was more successful. Dr. Burns then inserted a 12 mm diameter trocar – a sharp-pointed instrument with a cannula that can be used to create a laprascopic port - through which the laprascopic camera was inserted. This revealed the presence of dense adhesions. Adhesions are bands of fibrous tissue that can form between the abdominal tissues and organs. Dr. Burns noted:

“…Despite our best dissection with the camera we were unable to see anything. It was felt that further laprascopic attempts were unwarranted and laparotomy incision was made.”

[31] In commencing the open procedure, Dr. Burns considered that although he had been dealing with an abdomen that was hostile to a laparoscope, it would not necessarily be hostile to a laparotomy. He knew there were adhesions but he had not been able to obtain visualization of the extent of those adhesions with the laparoscope. As he put it, he could not at that time have anticipated the degree of hostility of the abdomen. Dr. Burns noted:

“The abdomen had a dense abdominal cocoon and despite being four months since his previous operation the adhesions had not resolved at all. Large bowel, omentum, small bowel, spleen, stomach and other viscera were completely indistinguishable from each other.”

[32] An enterotomy is an incision or hole in the intestine. Inadvertent enterotomies are sometimes caused during the course of surgery.

[33] After cutting through the fascia of the abdominal wall (fascia is the fibrous connected tissue that attaches, stabilises, encloses and separates muscles and internal organs), Dr. Burns testified:

…When I got through the fascia, almost immediately through the fascia I noted that I hit small bowel and I injured small bowel with my opening incision… I saw some bile bubbling up through the wound.

[34] Asked why he had entered the small bowel Dr. Burns explained:

The small bowel was stuck, it was quite intimate with the abdominal wall so essentially the most - - the deepest layer of the abdominal wall and the small intestine had become one so when I went through the abdominal wall the small bowel got cut.

[35] In order to repair the injury, Dr. Burns said that he needed to expose the tissue further. He continued to open the fascia. Having ultimately completed opening up the fascia layer along the mid-line, Dr. Burns estimated that as many as five enterotomies had possibly been created. Even at this point, Dr. Burns did not feel that he had sufficient exposure to effect proper repairs. So he began to dissect laterally along the abdominal wall to peel the bowel off the abdominal wall with the objective of getting a retractor in to provide greater exposure. He was asked whether, at this point:

Q. …Did you consider repairing the enterotomies that had been made on the laparotomy incision and just stopping the procedure?

A. If you’re asking me if I considered abandoning the procedure at this point

Q. Yes

A. No I did not.

Q. Why not?

A. Again, there was nothing unexpected going on here. Granted the adhesions were more than typical but to find dense adhesions in the midline and some small bowel injuries on entering the abdomen for reoperative surgery, this is unfortunately [sic.] uncommon, and there were no indications to back out at this point.

[36] Dr. Burns believes that he was able to repair one or two of the enterotomies as he dissected off the abdominal wall for the vast majority of enterotomies could not repaired at that stage. As Dr. Burns noted in his operative record:

The vast majority of [the enterotomies] were made in trying to free up enough bowel to satisfactorily repair the previous enterotomies and it was a vicious self-fulfilling cycle.

[37] Dr. Burns carried on. His operative record notes that using a combination of “both knife dissection, sharp dissection, cautery dissection and blunt dissection” the small bowel was mobilised and slowly pulled out of the pelvis.

[38] The process of dissecting was a very slow – millimetre by millimetre. Some adhesions were “dense”. Others were “flimsier”.

[39] As the lateral dissection proceeded, further enterotomies were made. Of this, Dr. Burns said:

I was thinking to myself that…these were really extraordinary adhesions and this was starting to get more and more difficult as we carried on.

[40] The enterotomies were, eventually, sutured. The small bowel was insufflated to 15 cm. of water pressure and no obvious leaks were found.

[41] Asked about his decision to continue with the surgery, rather than terminate it, Dr. Burns noted that having gone so many places in the abdomen to bring the small bowel into view, he could see that the original objective of reversing the colostomy could be achieved. Furthermore, given the hostility of the abdomen, he considered that there may not be another opportunity to come back another time to complete the procedure.

[42] Asked how many times during the operation he had considered abandoning the procedure, Dr. Burns said:

That the last several hours of the operation I considered abandoning it. I think sometime around once we had the retractor in is I could really see what we had and see where the abdominal cocoon was, that’s when I - - said to myself, I really don’t want to be here. I think we should get out.

Q. Alright. And why didn’t you get out at that point?

A. It wasn’t possible.

Q. Why not?

A. There were holes in the bowel and they needed to be repaired before I could do anything else. Before I could even consider getting out of the belly or abandoning the operation, I needed to repair the injuries that had already occurred.

[43] Dr. Burns was asked why he did not call in a more senior surgeon at any point during the operation:

In this situation, there was not uncontrolled bleeding that needed to be dealt with. I had an excellent set of hands helping me out. I didn’t need help or any advice in terms of decision-making because there was no decision to make…there was no advice that I could really seek from a senior colleague. I had a problem. I had to deal with that problem and calling in someone else to say hey, you’ve got a problem wouldn’t have really been beneficial to have someone in to help me deal with those adhesions, wouldn’t have been beneficial because I already had a really skilled set of hands and I was very comfortable dealing with these adhesions.

[44] After the small bowel had been mobilised, it was found that two areas were damaged beyond repair and both were resected.

[45] Ultimately, an anastomosis (surgical reconnection) between the colon and the rectum was achieved, completing the Hartmann’s reversal.

Post-Operative

[46] The day after the surgery Mr. Lennox recalls Dr. Burns coming to see him. He described the problems that had occurred. He told Mr. Lennox that the whole of his intestines had been covered in scar tissue and that every time he did something it caused a problem somewhere else. By then, Mr. Lennox had realized that he could not lift his leg. Dr. Burns said that there had been a clamp near the nerve and that he would have someone come in to take a look at that. According to Mr. Lennox he was not told, at this stage, that there had been two resections in the small bowel and one in the large.

[47] A consultation note from Dr. Burns on 9 August 2007 indicates that neurological examination showed that Mr. Lennox had a weakness of hip flexion as well as leg extension across the knee. It was concluded that Mr. Lennox had a femoral neuropathy, likely from compressional injury during the time of his procedure.

[48] The hospital progress notes for 9 August 2007 record that there was bile in a drain from the wound. This was indicative of a leak. It meant going back into the operation room.

[49] On 11 August 2007, Mr. Lennox was taken back into surgery. Dr. Burns went through the previous mid-line incision and immediately found a large amount of bile within the abdomen. This was irrigated. Dr. Burns found three separate holes in the small bowel. The necessary repairs were effected.

[50] Mr. Lennox was still in hospital when, on 30 August, following the testing of a stool sample, clostridium difficile (“c.diff”) was diagnosed. C.diff is a bacterium that colonizes the human bowel in a small proportion of people. Hospital patients have higher rates of c.diff bowel colonisation than do people living in the community. C.diff can produce toxins that damage the human bowel and, if produced in relatively large quantities, they can cause diarrhea and other bowel problems. C-difficile can range from a relatively mild illness to severe and life threatening disease.

[51] Upon diagnosis, Dr. Burns prescribed Flagyl, a first line antibiotic. The following day Dr. Burns started Mr. Lennox on another antibiotic, Vancomycin. Mr. Lennox responded well and had apparently recovered by 6 September 2007.

[52] Mr. Lennox was discharged from hospital on 11 September. In his discharge summary, Dr. Burns noted that Mr. Lennox’s post-operative course had been “stormy”. The note continues:

Greg’s stay in hospital was prolonged by both the C. diff colitis and by the fact that his left femoral nerve never regained any function and he had difficulty walking. With the help of our Physiotherapist he was able to get around and do stairs and an orthopedist was involved to get him a knee brace to allow him to get home. …

At the time of his discharge, Greg was eating and drinking well and slowly regaining appetite. In addition to that, he was ambulating with crutches and was safe to do so. He was having 4 soft bowel movements a day…

[53] Ten days later Mr. Lennox experienced his first reoccurrence of C-difficile. He consulted his family doctor who noted that Mr. Lennox was complaining of 11-20 bowel movements daily. A stool sample was taken and resulted in a positive test. Dr. Kessel prescribed Flagyl and Vancomycin. He settled down to about four or five bowel movements a day by the time he saw Dr. Burns as an out-patient on 11 October.

[54] Mr. Lennox was readmitted to the Trillium Health Centre on 15 October 2007 for recurring diarrhea which initially did not respond to Flagyl or Vancomycin. He was hospitalised for two weeks. He was treated with a combination of Metronidazole (Flagyl) intravenously and Vancomycin by mouth. His diarrhea responded to this treatment and he was discharged home on continuing treatment that included Vancomycin and Flagyl. When seen by an infectious diseases specialist, Dr. Graham, on 8 January 2008, no C-difficile was present. Dr. Burns last saw Mr. Lennox during an out-patient visit on 7 March 2008. He noted that Mr. Lennox’s leg strength was not normal but better. He planned to see Mr. Lennox in follow-up in three months, but never did.

[55] Mr. Lennox’s problems continued. In April 2009 he was admitted to hospital again. He had symptoms of abdominal pain, swelling and erythema (redness of the skin or mucous membranes) in his peri-lumbilical area (adjacent to the naval). He was seen by Dr. Jennie Richardson, a general surgeon. A CT scan suggested a possible strangulated ventral hernia with a small bowel loop in the hernia cavity. Dr. Richardson, conscious of Mr. Lennox’s history, performed a laparotomy. She encountered dense adhesions. She dissected around what she thought was a small bowel loop but was unsure whether that was what she was encountering, entertaining the possibility that perhaps it was fistula (an abnormal connection between two organs, such as the small bowel and the colon). Dr. Richardson sought a second opinion from Dr. Adam Mohammed. It was concluded that Mr. Lennox’s presentation was likely from a small bowel fistula that was tracking to his ventral hernia cavity. Drainage of the fistula tract as well as repair of the ventral hernia were effected.

[56] In July 2009 Mr. Lennox was admitted again with an enterocutaneous fistula (an abnormal connection between the intestinal tract and the skin). He was placed onto total parenteral nutrition (TPN – a form of intravenous nutrition). He was hospitalised for a month. Both the fistula and the abdominal wound healed.

[57] A week after being discharged, Mr. Lennox started having a large amount of drainage from his fistula cavity. He was readmitted and TPN was resumed. He remained in hospital for 40 days before being discharged.

[58] In March 2010 Mr. Lennox was hospitalised at St. Michael’s in Toronto for management of an enterocutaneous fistula. He was admitted again in April 2010 with fever and worsening abscess formation in the right lower quantrant of his abdomen. A possible stricture of the sigmoid anastomosis was noted.

[59] There was a further admission on 3 May 2010 when Mr. Lennox presented with increasing abdominal pain. A new abscess/fistula had opened up and was draining. A surgical repair was attempted on 27 May 2010, but the procedure was abandoned due to impossible intra-abdominal adhesions. He was then referred for a colonosopic dilation of his sigmoid anastomotic stricture. Following that, he developed an extra fistula in his abdominal wall.

[60] On 16 June 2010 he underwent a second colostomy – a decompressing ascending open colostomy - to relieve the obstruction and allow the enterocutaneous fistula a chance to close. This procedure was carried out by Dr. R.A. Mustard. Further attempts to dilate the stricture were more successful and on 26 September 2012 Mr. Lennox was readmitted for an operation by Dr. Mustard to close the colostomy.

[61] According to Dr. Mustard, and consistent with the evidence given by Mr. Lennox at trial, he remains on home intravenous nutrition which he will likely need for the remainder of his life.

The Plaintiff’s Allegations

[62] The principal allegations asserted by the plaintiff can be summarised as follows:

1. Dr. Burns did not obtain Mr. Lennox’s informed consent. He did not advise Mr. Lennox that he may not be able to complete the procedure.
2. Dr. Burns was negligent in not entering the abdomen up by the sternum when he knew he was dealing with a hostile abdomen. Had he done so he could have opened the abdomen and look down to where the small bowel was contained by adhesions. By careful dissection he could then have attempted to enter into and open up the abdomen, thereby preventing unnecessary injury.
3. Related to this, the failure of Dr. Burns to recognise the risk of adhesions contributed to the initial enterotomy. There was a lack of planning on Dr. Burns’ part.
4. The surgical techniques used by Dr. Burns included blunt dissection on dense adhesions. This resulted in an uncontrolled tear of the bowel and caused significant injury to Mr. Lennox. The uncontrolled tears caused by blunt dissection resulted in a situation where the bowel had to be resected (Dr. Mustard testified that Mr. Lennox’s shortened small bowel is the cause of some of his current dysfunction).
5. The operative note prepared by Dr. Burns in respect of the 7 August 2007 surgery was inadequate. Important details are missing.
6. Dr. Burns was intent on dissecting down to the pelvis to reverse the Hartmann. He chose to proceed with the reversal of the Hartmann colostomy despite the fact that he knew he was dealing with a hostile abdomen and despite the knowledge that he would be jeopardizing Mr. Lennox’s bowel function.
7. Dr. Burns was negligent in failing to consider the risk of damage to Mr. Lennox’s femoral nerve. This omission from his consideration is evidence of what the plaintiff claims to be his “tunnel vision”. Rather, he persisted with the procedure when he knew or ought to have known that in doing so he was subjecting his patient to risk that exceeded the benefits of continuing.
8. Had Dr. Burns backed out of the procedure when he opened the abdomen, he would have spared Mr. Lennox 50 enterotomies.
9. If Dr. Burns had backed out of the procedure, Mr. Lennox would have been given the opportunity to choose how to proceed at some future date.
10. It is likely that the surgery conducted by Dr. Burns contributed to further development of adhesions and caused the persistent fistula that was not closed until 2012 and has also been the cause of Mr. Lennox’s persistent debilitating bowel dysfunction.

The Experts

[63] Dr. Bernard McIntyre, Dr. Roland Holliday and Dr. Richard Schabas were called by the plaintiff as expert witnesses. Dr. Robert Mustard, who operated on Mr. Lennox in 2010 and 2012 was also called by the plaintiff as a fact witness.

[64] Dr. John Hagen was called as an expert by Dr. Burns.

Dr. Bernard McIntyre

[65] Dr. McIntyre gave opinion evidence on the standard of care of a general colorectal surgeon.

[66] Until two years prior to trial, Dr. McIntyre was in clinical practice as a surgeon at the QE II Health Sciences Centre in Halifax, Nova Scotia. He has practised as a general/colorectal surgeon since 1993, having previously trained in Halifax, Prince Edward Island and at the Mayo Clinic. In his time he has closed “hundreds” of Hartmann’s.

[67] Dr. McIntyre explained that adhesions are reactions to inflammation caused by surgery. However carefully surgery is undertaken, adhesions can occur. In Hartmann’s procedures, the average interval before further abdominal surgery is 6.7 months, although typically such procedures are performed between 3 and 12 month after the prior surgery.

[68] The reversal of the Hartmann procedure is elective surgery. In the present case, the record indicates that the patient was pushing to have his colostomy reversed because he could not work. Dr. McIntyre said that in such circumstances:

“…The only concern here I have is what are the adhesions going to be like when I go in to reverse it because we know he had a four day perforation with a belly full of feculent puss, so you know he’s going to have adhesions and the question is how bad they are going to be at four months and that's when he decides to go back. Or do you want to wait a bit longer. That's a decision that Dr. Burns and the patient would have to make.”

[69] Although he said that most of his colleagues would wait longer, Dr. Burns did not fall below the standard of care expected of him by proceeding with the reversal surgery when he did.

[70] Although Dr. Burns was still a “young man” at the time of the surgery, by virtue of the training he had received he would already have been “fairly experienced”. Nevertheless, Dr. McIntyre is critical of the quality of Dr. Burns’ record of operation. The procedure should have been describing chronological order with important events in the procedure and manoeuvres recorded. According to Dr. McIntyre, if one of his residents had dictated the report prepared by Dr. Burns, Dr. McIntyre would throw it back at him or her and say “do it properly”.

[71] The attempt by Dr. Burns to conduct the surgery laprascopically met the standard of care, as did the abandonment of a laparoscopic approach and proceeding with a laparotomy incision.

[72] The lack of detail in the record of operation is such that Dr. McIntyre was unable to determine exactly what happened and in what order. However, Dr. McIntyre accepts the reality that enterotomies may be made while entering the abdomen and dissecting the bowel from the abdomen wall.

[73] Dr. McIntyre could not tell from the record of operation what enterotomies there were when Dr. Burns observed the cocooned bowel.

[74] Dr. McIntyre acknowledges that the true extent of the adhesive disease was only likely to have been ascertainable with an open laparotomy. However, because this was a re-operation, Dr. Burns would have known that there were likely adhesions. It would have been in keeping with accepted procedure for Dr. Burns to undertake sharp dissection on dense adhesions to gain exposure. The fact that there may have been an initial enterotomy on opening was unfortunate, “but that happens”. Dr. McIntyre also acknowledged that it was possible that Dr. Burns had put a hole in the bowel when attempting the laparoscopic procedure.

[75] Dr. McIntyre was, however, more critical of Dr. Burns’ surgical technique, and in particular the reported use of blunt dissection. Where, as in the present case, a patient has severe adhesions, adhesions should only be cut using sharp dissection with a scalpel or surgical scissors. According to Dr. McInytre, if an attempt is made to bluntly dissect, severe adhesions to the bowel will be torn. Dr. McIntyre’s opinion is that the majority of general surgeons would use sharp dissection for all adhesions, although the use of a finger-tip or sponge to dissect flimsy adhesions would be within the standard of care. The use of blunt dissection would have been inappropriate.

[76] In Dr. McIntyre’s opinion, Dr. Burns did not meet the standard of care because of the “unbelievable amount of small bowel injury at the time of surgery”. From the operative description, the use of blunt dissection was inappropriate. Furthermore, there was an opportunity to abandon the procedure - to “stop it and close up and do it six months to a year later” – which Dr. Burns should have, but failed, to take

[77] Faced with dense adhesions, Dr. Burns should have fixed what had been damaged and got out. At some point, in Dr. McIntyre’s opinion, Dr. Burns lost control of the surgery. He should have abandoned the procedure before that. Instead, faced with dense cocooning and unable to visualise anything, he persisted with the operation.

[78] Dr. McIntyre acknowledges, however, that competent surgeons can disagree about such things. Notably, in his opinion, the standard of care did not require Dr. Burns to call in a senior surgeon intraoperatively.

[79] That having been said, Dr. McIntyre, noting that Dr. Burns had ultimately opened up enough of the bowel so that he could see the sutures he left at the rectum during the original Hartmann surgery, went ahead and finished the Hartmann’s reversal. It was probably appropriate for him to do so in the circumstances.

[80] Dr. McIntyre feels that Mr. Lennox likely experienced a compression injury to the femoral nerve as a result of being in the dorsal lithotomy position for over 11 hours.

[81] Dr. McIntyre offered no criticism of Dr. Burns in respect of the informed consent issue, the further surgery on 11 August to effect repairs, or his admission of antibiotics. Dr. McIntyre did not consider the C-difficile issue as he does not regard that as part of Mr. Lennox’s long term problems.

Dr. Ronald Holliday

[82] Dr. Holliday was qualified as an expert in general surgery. He is a semi-retired former professor of surgery at the University of Western Ontario. He continues to assist at a community hospital and with in-training surgery exams. He spent fifteen years on the Examining Board for the Canadian Association of General Surgeons (“CAGS”), including four years as its chair. Since 2008, he has been the Executive Director of the CAGS Test Committee of the Royal College of Physicians and Surgeons of Canada.

[83] Dr. Holliday describes the reversal of a Hartmann procedure, even in the best of circumstances, as “one of the most difficult operations a general surgeon performs”. As a result:

“Detailed discussion of the complications of this procedure should be undertaken with the patient. This should include the possibilities of an inability to complete the procedure, the possibility of multiple enterotomies, the possibility of leakage from the anastomosis, and the general problems of possible wound infection, deep venous thrombosis, and infections such as C difficile”.

[84] Dr. Holliday describes Dr. Burns as “a relatively inexperienced young surgeon” and doubts whether, as claimed, Dr. Burns would have done between 50 and 100 colostomies in his young career.

[85] Although part of obtaining the informed consent of Mr. Lennox would have involved telling him that it might not be possible to complete the reversal, properly advised of risks, Dr. Holliday acknowledged that reasonable patients still go ahead anyway. In Dr. Holliday’s opinion, if Mr. Lennox had been told it might not be possible to complete the surgery, it is likely that he would have gone ahead with it.

[86] As to the operation itself, it was obvious that Dr. Burns was dealing with a difficult situation. After encountering his first enterotomy, he had the option of closing it and ending the procedure at that time. Or he could have availed himself the more senior colleague. Dr. Holliday notes that Dr. Bertucci was also a very young surgeon who had not yet completed his first year of consulting practice. In Dr. Holliday’s opinion:

“…two relatively inexperienced young surgeons wanted to accomplish the goal of stomal closure and in spite of at least up to 50 enterotomies, Dr. Burns did not at any time consider stopping the procedure, taking stock of what had been accomplished and again calling for more senior help.”

[87] The femoral nerve in all likelihood occurred because of prolonged compression of the nerve with the abdominal retractors used during the procedure. Had the operative procedure been terminated at an earlier time, in all likelihood, the femoral nerve injury would not have occurred.

[88] The failure of Dr. Burns to recognise when it was appropriate to abandon the procedure led to the patient being placed at great risk due to the length of the operation, the number of enterotomies and post-operative problems such as short gut syndrome. In Dr. Holliday’s opinion, all of this fell below the standard of care for a community-based surgeon.

[89] In Dr. Holliday’s opinion, if a more senior surgeon had been consulted, in all probability he would not have agreed with the decision to proceed in the manner described in the operative note and this would have led to a more conservative dissection and abandonment of the procedure.

[90] Specifically, Dr. Holliday felt that a more experienced surgeon may well have lengthened the abdominal incision in an upward direction. Because there tend to be less adhesions in the upper abdomen, a dissection of the abdominal wall and the introduction of retraction at a different location may have offered a better opportunity.

[91] Dr. Holliday described post-operative C-difficile infection as a complex problem. He felt that Dr. Burns should have consulted with an infectious disease expert and that his failure to do so fell below the standard of care. However, in cross-examination he conceded that Mr. Lennox’s current problems are due to the extensive surgeries and peritonitis that he has had. C-difficile has nothing to do with those issues. To the extent that Mr. Lennox developed C-difficile, Dr. Holliday accepted that it has had no long term effect on the outcome of his surgery.

Dr. Robert Mustard

[92] Dr. Mustard conducted what he described as “very risky surgery” to remove portions of Mr. Lennox’s bowel and possibly put in another colostomy to address a partial blockage that might have been preventing fistulae from healing. He obtained Mr. Lennox’s consent for this. However, the adhesions were so dense that Dr. Mustard backed out. He described the root of the problem as being that Mr. Lennox forms abnormally dense intraabdominal adhesions. Dr. Mustard was, however, through a local operation, able to make a colostomy in the hepatic flexure of his colon. Subsequent to that, Mr. Lennox did well. But he wanted to have the colostomy reversed. Dr. Mustard warned Mr. Lennox about the risks. He elected to go ahead and Dr. Mustard successfully completed the procedure.

Dr. Richard Schabas

[93] Dr. Schabas is a specialist in internal medicine with a sub-specialty in infectious diseases. He has held a number of senior Public Health positions including Chief Medical Officer of Health for the province of Ontario from 1987 to 1998.

[94] Dr. Schabas was asked to offer opinion evidence with respect to the management by Dr. Burns of the C-difficile experience by Mr. Lennox and on the consequences of C-difficile infection on Mr. Lennox’s overall recovery.

[95] In summary, Dr. Schabas was of the view that Dr. Burns should have taken advice from an infectious disease specialist. In his opinion, Mr. Lennox would have been predisposed to C-difficile because of the length of his stay in hospital and the administration of ciprofloxacin and meropenem.

[96] According to Dr. Schabas, the decision by Dr. Burns to start moxifloxicin on 30 August was problematic because it is broad-spectrum antibiotic which contributed to the subsequent development of recurrent C-difficile. He initially expressed the opinion that on a balance of probabilities Mr. Lennox’s episodes of C-difficile had contributed to the development of post-infective irritable bowel syndrome. However, on cross-examination Dr. Schabas conceded that his previous conclusion on this point was wrong.

Dr. John Hagen

[97] Dr. Hagen is Chief of Surgery at the Humber River Regional Hospital and is an Assistant Professor, Department of Surgery, University of Toronto. His clinical practice as a general surgeon focusses on colon and intestinal surgery as well as bariatric surgery. He estimates that he performs 50-60 colon resections per year and possibly three or four Hartmann’s and Hartmann’s reversals per year. He has a particular interest in laprascopic surgery. He was qualified to give opinion evidence on general surgery.

[98] Most of the inflammation from a Hartmann’s procedure will have settled after six weeks but there are many other factors which contribute to the way in which adhesions form. While Dr. Hagen referred to literature supporting the carrying out of a Hartmann’s reversal within as little as ten weeks of the original surgery, most surgeons want to wait until six months.

[99] That said, in his opinion, carrying out the procedure over four months after the original surgery would fall within the standard of care.

[100] The discussion which Dr. Burns had with Mr. Lennox concerning the risks of the Hartmann reversal surgery was appropriate. While major and minor risks were disclosed, not all possible risks can or should be discussed. In Dr. Hagen’s opinion, Dr. Burns met the standard of care in this regard also.

[101] Dr. Hagen had no concerns about the manner in which Dr. Burns attempted laprascopic surgery. An initial inability to insufflate indicates that you are either against a piece of bowel or inside the fat. Injuries can occur. If there is a loop of intestine stuck to the intestinal wall it is possible that the surgeon would not know that he had punctured the intestine with the veress needle. In Dr. Hagen’s opinion, Dr. Burns met the applicable standard of care.

[102] It was Dr. Hagen’s assumption that Dr. Burns made an enterotomy in the course of opening the laparotomy and then proceeded to make approximately five more incisions. Enterotomies are not a reflection of poor surgical technique as this can occur in virtually any abdominal operation even when the surgeon is taking extra precautions. When enterotomies do occur, the standard of care is to repair them.

[103] In Dr. Hagen’s opinion, it is immaterial as to whether the first enterotomy was created during the initial incision or subsequently during lysis of adhesions (i.e. cutting of scar tissue). Dr. Hagen concurs with Dr. Burns that areas of small intestine had to be freed up in order to repair the enterotomies. The repair process includes a determination of which way the small bowel is lying, inspecting the surface of the small bowel, locating the injury and determining the appropriate method of repair.

[104] The orientation of the bowel makes a difference to the method of repair. Simply putting stitches into enterotomies without knowing the orientation of the bowel risks comprising the lumen (the inner open space), which can lead to bowel obstruction and blockages and, ultimately, to rupture, fistulae and peritonitis.

[105] The extensive adhesions described by Dr. Burns would be extremely uncommon. According to Dr. Hagen, you might come across these types of adhesions a few times in your career. Adhesions are related to the way that an individual’s body responds to surgery. The adhesions which formed in Mr. Lennox were part of his personal characteristics.

[106] Dr. Burns could not have abandoned the surgery until all enterotomies had been repaired. The cascade of enterotomies, dissection and repairs that Dr. Burns was confronted by was an unfortunate complication resulting from the unusually dense adhesions that were encountered.

[107] Dr. Hagen disagrees with Dr. McIntyre that it was necessary for Dr. Burns to consult with another surgeon. He feels that even if Dr. Burns had done this, the surgeon consulted would have said “it looks like this is difficult – carry on”.

[108] Furthermore, Dr. Hagen doubts whether things would have been different if Dr. Burns had closed the plaintiff up and come back six to twelve months later.

[109] In Dr. Hagen’s view, the methods of dissection employed by Dr. Burns – a combination of blunt dissection, cautery and sharp dissection using a knife or scissors – was appropriate. If adhesions are dense, it is better to cut them sharply. However, every so often loose adhesions can be pushed away. There is almost always a combination of approaches used.

[110] The decision to complete the reversal of the colostomy was reasonable in the circumstances. It was the least risky and least complicated of the anastomoses that were carried out during the surgery.

[111] There was little option but to have Mr. Lennox’s legs positioned in the manner which they were during surgery. The femoral nerve damage was probably caused either by the position of retractors or by the leg stirrups used. Dr. Hagen conceded that the prevention of femoral nerve injury is not the first thing he would think about when conducting such surgery. However, he feels that Dr. Burns took appropriate steps to prevent femoral nerve injury.

[112] Dr. Hagen feels that throughout the surgery, Dr. Burns met the standard of care that would be expected.

[113] Dr. Hagen also feels that post-operatively, Dr. Burns met the standard of care. He arranged for appropriate follow-up by physiotherapy and neurology in relation to the left leg. He remained alert to the possibility of C-difficile, when, on 24 August, Mr. Lennox had a temperature and elevated white blood cell count. He ordered Meropenem, an intravenous antibiotic, to treat the suspected infection and arranged for a CT scan.

[114] On 26 August 2007, having diagnosed Mr. Lennox with a low output small bowel fistula, Dr. Burns kept Mr. Lennox on intravenous antibiotics and TPN. This appeared to be effective. Accordingly, Dr. Burns stepped down Mr. Lennox’s antibiotics from intravenous Meropenem to Moxifloxicin, a broad spectrum oral antibiotic. This was appropriate because of the concern about the fistula and intestinal bacteria. When, on 31 August, Dr. Burns became aware that a repeat stool culture had tested positive for C-difficile, he ordered antibiotics, and he employed to address this condition, namely Flagyl and then Vancomycin.

[115] Similarly, the follow up by Dr. Burns on 11 October 2007 was appropriate (discussion of left leg and bowel condition, expediting a referral to a neurosurgeon and filling out forms for Mr. Lennox’s disability insurance).

[116] Dr. Burns had involvement following Mr. Lennox’s readmission to hospital on 15 October 2007 with C-difficile (arranged a CT scan to be sure there was no surgical cause for the readmission; concurred with the antibiotic treatment that had been prescribed by other physicians and added a nutritional supplement). And as a result of Mr. Lennox going back for a follow up meeting on 13 December 2007, Dr. Burns arranged a referral to Dr. Graham, an infectious disease specialist, to address Mr. Lennox’s resistant C-difficile.

Discussion

[117] I will divide my discussion of the evidence, the positions taken by the parties, the applicable legal principles and my conclusions into three areas, namely:

(a) Whether Dr. Burns obtained the informed consent of Mr. Lennox; (b) Whether Dr. Burns met the required standard of care in relation to the performance of the Hartmann’s reversal surgery on 7 August 2007; and (c) Whether the post-operative care of Mr. Lennox by Dr. Burns met the standard of care.

Informed Consent

[118] I agree with the formulation of the legal test set out at para. 140 of the written submissions of the defendant, namely that, to succeed on informed consent, the plaintiff must demonstrate that:

1. Dr. Burns failed to disclose a material risk of the colostomy reversal; and
2. The failure to disclose a material risk caused the damages alleged.

[119] Both Dr. Hagen and Dr. McIntyre testified that Dr. Burns met the standard of care in his consent discussion with Mr. Lennox. It will be recalled that the consent discussion lasted between 15 to 30 minutes and included an explanation of both major and minor risks.

[120] The major criticism of Dr. Burns is that he did not inform Mr. Lennox, let alone discuss with him, the possibility that, having commenced the surgery, he might not be able to complete it. Nor was the possibility of femoral nerve damage discussed.

[121] Dr. Holliday was critical of the failure of Dr. Burns to make Mr. Lennox aware, prior to the surgery, that in the face of previously perforated diverticulitis with peritonitis, adhesion formation can cause varying degrees of difficulty with the operation and, specifically, result in an inability to complete the procedure, the occurrence of multiple enterotomies, leakage from the anastomosis, and the general problems of wound infection, deep venous thrombosis, and infections such as C-difficile.

[122] A surgeon’s legal obligation is to disclose to a patient, without being questioned, the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation: Hopp v. Lepp, [1980] 2 S.C.R. 192 at p. 210. A surgeon is not required to explain every conceivable detail of a proposed operation.

[123] Uncommon or unforeseeable risks do not need to be disclosed: Lariviere v. Ainslie at paras. 232-233 (possibility of lymphedema – an abnormal collection of high protein fluid just beneath the skin – an uncommon and unforeseeable complication of removal of a soft tissue mass did not need to be disclosed); Kovacich v. St. Joseph’s Hospital at paras. 144-145 (no duty to disclose risk of streptococcus or necrotising fasciitis for patient undergoing kidney transplant).

[124] Mr. Lennox acknowledges that he did not ask Dr. Burns what the complications of surgery might be, beyond those which Dr. Burns expressly made reference to.

[125] In the present case it is noteworthy that even one of the expert witnesses retained by the plaintiff, namely Dr. McIntyre, felt that Dr. Burns had met the standard of care in terms of his consent discussion with Mr. Lennox.

[126] In my opinion, the possibility of not being able to complete the procedure is not a risk that Dr. Burns was duty-bound to discuss with Mr. Lennox. I am therefore not persuaded that Dr. Burns failed to disclose a material risk of the colostomy reversal to Mr. Lennox.

[127] With respect to the femoral nerve damage, it was quite clear from the evidence of all of the physicians who testified that the nerve injury suffered by Mr. Lennox was unusual and would not be within the reasonably foreseeable spectrum of risk factors for this surgery.

[128] Accordingly, I find that Dr. Burns did not fall below the standard of care on the issue of informed consent.

[129] If I am wrong about that, however, then any failure on the part of Dr. Burns would have to have caused the damages alleged. This requires the court to consider whether a reasonable person in the position of Mr. Lennox would have consented to the treatment if he had been advised of the risks. This has been described as a “modified objective test”, explained by the Supreme Court of Canada in Arndt v. Smith, [1997] 2 S.C.R. 539, at para. 6, in these terms:

“…the test enunciated relies on a combination of objective and subjective factors in order to determine whether the failure to disclose actually caused the harm of which the plaintiff complains. It requires that the court consider what a reasonable person in the circumstance of the plaintiff would have done if faced with the same situation.”

[130] Unusually, we have a fairly good indication of what Mr. Lennox would have done if he had been provided with greater information about the risks of a colostomy reversal. This is because Mr. Lennox had another colostomy, and a colostomy reversal, performed by Dr. Mustard several years later. Admittedly, the procedures undertaken by Dr. Mustard were different, but nevertheless there was a discussion, as recounted by Dr. Mustard during the course of his testimony, in which the risks of the surgery were explicitly laid out. Notwithstanding those risks, and his previous experience of the surgery undertaken by Dr. Burns, Mr. Lennox consented.

[131] I am quite sure that even if Dr. Burns had told Mr. Lennox of the possibility of multiple enterotomies or that it might not be possible to complete the procedure, Mr. Lennox would have gone ahead.

[132] Dr. Holliday, who was critical of the informed consent discussion, agreed that Mr. Lennox would have had his colostomy reversed even if there had been a “textbook medical school informed consent discussion”. The plaintiff argues that had Dr. Burns discussed the eventuality that he may have to back out of the procedure that both he and Mr. Lennox would have been in the right frame of mind when Dr. Burns discovered the cocoon abdomen. I doubt whether that is, in fact, so, but even assuming that counsel for Mr. Lennox is correct, the issue to be determined is whether, had there been such disclosure, Mr. Lennox would have nevertheless consented to the procedure going ahead. In my view, he would have.

The Colostomy Reversal Surgery

[133] The position of the plaintiff is encapsulated in a single paragraph of the written argument submitted on his behalf:

Inexperience and over-confidence led to Dr. Burns’ tunnel vision and his determined approach to reversing the colostomy. Dr. Burns testified that over 11½ hours he never considered seeking a consult with a senior surgeon. Dr. Burns had ample opportunity, including pauses in the surgery in which he actually left the surgical suite. However, inexplicably he never felt that this incredibly complicated and long surgery was beyond his means.

[134] As previously noted, the plaintiff’s criticisms of Dr. Burns go beyond his inexperience and his failure to consult a senior colleague. His surgical methods, and in particular his use of blunt dissection, is criticised and the evidence of both Dr. McIntyre and Dr. Holliday is that he should have aborted the surgery.

[135] The plaintiff also invites me to draw inferences of negligence based on omissions from the operative record prepared by Dr. Burns.

[136] Dealing with this point first, to be sure, there were aspects of the surgery which Dr. Burns testified on, both at trial and at his examination for discovery, which were not reflected in his operative record. As Dr. McIntyre noted, the record prepared by Dr. Burns was not always in chronological order of the events and omitted what Dr. McIntyre regarded as important steps. Although the record refers to 50 enterotomies made, the record does not disclose how many were blunt and how many were sharp. While Dr. McIntyre was critical of Dr. Burns’ surgical technique, he acknowledged that he did not have sufficient information about the incision made by Dr. Burns.

[137] Dr. McIntyre acknowledged that surgical technique and the exercise of judgment are difficult to analyse on a paper record. Perhaps more so when, as he felt to be the case here, the operative record was lacking in detail.

[138] In Power v. Carroll, 2007 ONCA 232 the Court of Appeal noted, at para. 69:

[A]lthough …the purpose of an operative note is to record important events, it is apparent that such notes routinely omit details of the standard steps common to all similar procedures. Without expert evidence that the absence of greater detail in the operative note indicates that Dr. Carroll did not take appropriate steps to distinguish the structures and in the face of expert evidence that the note and procedures met the appropriate standard of care, it was unreasonable for the trial judge to draw [an inference that the defendant did not take steps to determine whether the questionable structure was the esophagus or a node].

[139] While Dr. Burns defended his note-taking, pointing to the obvious challenges of recording the events of such a long operation, none of the other experts challenged Dr. McIntyre’s assessment that the operative note was not done “properly”. While the criticisms of Dr. Burns’ note-taking do not, in my view, rise to a level where the court would be justified in drawing an adverse inference, they do invite a more searching evaluation of Dr. Burns’ testimony on matters that his operative note do not adequately address.

[140] Before continuing with a discussion of what happened during the surgery and what the experts say about that, it is helpful to set out some of the basic legal principles.

[141] The standard of care of a specialist must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in that field. The specialist must exercise the degree of skill of an average specialist: Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 33.

[142] An adverse outcome does not mean that the physician has fallen below the applicable standard of care. Physicians are not held to standards of perfection and are not guarantors of results: Cardin v. City of Montreal, [1961] S.C.R. 655 at p. 494.

[143] In Roe v. Minister of Health, [1954] 2 Q.B. 66 (C.A.) at p. 83, Denning L.J. stated:

It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right.

Denning L.J. continued, at p. 86:

But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

[144] Of particular importance in any medical negligence case is the principle that an error in clinical judgment is not negligence. Reasonable surgeons may exercise different judgments; the surgeon is merely required to make decisions within the exercise of his or her surgical intelligence: Wilson v. Swanson, [1956] S.C.R. 804 at p. 5.

[145] In determining whether a physician has failed to meet the duty of care, the court will often be presented with different views of experts. A judicial preference from one body of opinion over another is not sufficient for finding of negligence. The plaintiff must prove that the physician failed to exercise reasonable skill or judgment.

[146] In Maynard v. West Midlands Regional Health Authority, [1984] 1 W.L.R. 634 (H.L.) at p. 638, Lord Scarman said:

I would only add that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.

[147] To similar effect was the statement of Lang J. in Pittman Estate v. Bain (1994), 112 D.L.R. (4th) 257 (Ont. Ct. G.D.) at para. 259:

Where the subject-matter is one requiring expert knowledge of a specialized area, and qualified respected specialists cannot themselves reasonably agree on the appropriate conduct, common sense dictates that the court should not decide that one body of opinion is more persuasive than another.

[148] I turn, then, to the key areas of the debate between the parties and, in particular, the experts, concerning the manner in which Dr. Burns conducted the surgery.

(i) The Place of Entry

[149] In commencing the laparotomy, Dr. Burns chose to enter along his previous mid-line incision and, possibly one or two inches above it. His justification for entering one or two inches above his previous mid-line incision was that it would be less likely to have adhesions.

[150] Dr. Holliday was of the opinion that if Dr. Burns had entered the abdomen up by the sternum above the transverse colon, there might have been an opportunity to visualise the adherent bowel before entering it. Dr. Holliday speculated that a “more experienced surgeon” may have lengthened the incision up to the xiphoid and that this may have allowed the surgeon to enter virgin territory. I do not interpret Dr. Holliday as saying that the standard of care required Dr. Burns to do this. Furthermore, Dr. Hagen was of the view that extending the incision higher would not have made any difference, as the adhesions were in the pelvis and it was necessary to dissect those adhesions.

[151] I conclude that the evidence does not demonstrate that Dr. Burns fell below the standard of care in respect of the point of entry for the laparotomy.

(ii) Lack of Planning

[152] The plaintiff argues that Dr. Burns failed to recognize the significant risk of adhesions and that this contributed to the initial enterotomy. Given the acknowledgement by Dr. Burns of the risk of adhesions, his decision to enter into the abdomen right on top of the small bowel significantly increased the risk of inadvertent injury to the bowel.

[153] As already discussed above, the entry point was a matter of clinical judgment.

[154] All of the medical witnesses acknowledged that inadvertent enterotomies can occur no matter how careful the surgeon is.

[155] In argument, the plaintiff highlighted apparent inconsistencies between accounts of the surgery given by Dr. Burns at different times.

[156] The essence of the position taken by the plaintiff is that so intent were Dr. Burns and Dr. Bertucci to reverse the colostomy that they plowed ahead towards the point of reconnection without adequate regard for the injury they were causing along the way.

[157] I will discuss at greater length below the evidence concerning some of the surgical techniques employed. At this juncture, however, suffice it to say that I am not persuaded that Dr. Burns could be criticised for a lack of planning.

(iii) Surgical Technique

[158] Dr. Burns stated that he had used a combination of blunt and sharp dissection during the course of peeling the bowel off the abdominal wall. Dr. McIntyre and Dr. Holliday pointed to a pathology note concerning sections of bowel that had been removed, that suggested some injury from blunt dissection.

[159] The evidence of Dr. Burns was that he used a combination of blunt and sharp dissection and cautery. He claims that at no point did he use blunt dissections on dense adhesions. However, he could not say with certainty how the larger injuries on the resected areas had been made. Dr. Hagen felt that no inference could be drawn from the specimens of bowel that were resected that blunt dissection on dense adhesions had been used. According to Dr. Hagen, the badly damaged pieces of bowel might show ischemic changes because of the enterotomies or length of operation. Furthermore, neither Dr. McIntyre or Dr. Holliday could say whether any particular enterotomy which had been recorded or described in this case was the result of blunt dissection.

[160] Although the plaintiff argues that Dr. Burns may have refined his evidence at trial to explain his use of blunt dissection, I am not persuaded that I should disbelieve the evidence of Dr. Burns concerning his surgical technique, and in particular his use of blunt dissection, sharp dissection and cautery as seemed to him appropriate. I find that his use of a combination of these techniques as described by him was reasonable and that it met the standard of care.

[161] Dr. Burns is also criticised for not repairing each enterotomy as he went. In some cases he did, in other cases, if an enterotomy occurred, he made a mental note to go back to it later. All of the medical experts emphasised the importance of ensuring prompt and effective repair of the enterotomies.

[162] I did not interpret the evidence of the experts as demanding a slavish “one by one” approach to enterotomy repair. The approach taken by Dr. Burns represented an exercise of his clinical judgment. While it may not have been the exact approach that other surgeons would have taken, the evidence does not persuade me that he fell below the standard of care. It is noteworthy that towards the end of the surgery, laparoscopic tubing was placed in the bowel and the small bowel was insufflated to 15 cm. of water pressure, disclosing no obvious leaks.

(iv) He Should Have Backed Out

[163] Dr. McIntyre and Dr. Holliday said that Dr. Burns should have backed out of the surgery. Dr. Burns, supported by Dr. Hagen, says that, as a practical matter, it was impossible for him to do so. As each enterotomy repair was made, mobilisation of the bowel resulted in further enterotomies – the cascading effect as described by Dr. Burns.

[164] I accept the evidence of Dr. Burns that he considered withdrawing. I also accept his evidence that, in his judgment, he could not. I do not think, based upon the evidence, that there can be an absolute right or wrong answer. Once again it comes down to a matter of judgment. Even if he had pulled out, there is every possibility, as Dr. Hagen testified, that Mr. Lennox’s adhesions would not be markedly improved. Indeed, when Mr. Lennox had further abdominal surgery in the spring of 2009, Dr. Richardson encountered a hostile abdomen.

(v) He Should Have Consulted Another Surgeon

[165] The standard of care expected does not depend on the surgeon’s experience: Miles v. Judges, [1997] O.J. No. 2458 (Gen. Div.) at para. 55.

[166] Dr. Burns considered himself to be more than capable of dealing with the situation that confronted him. However, he was a relatively junior surgeon, assisted by an even more junior surgeon. While there is no doubt that he possessed all of the formal qualifications one would expect a surgeon undertaking this type of work to have, as Lord Denning noted in Roe, “[d]octors, like the rest of us, have to learn by experience…”.

[167] Dr. Holliday said that Dr. Burns should have consulted a more senior colleague and that had he done so in all probability to procedure would have been abandoned. Dr. McIntyre disagreed with that view. And, according to Dr. Hagen, even if Dr. Burns had consulted a senior surgeon, that individual would likely have told him to carry on. That may be so. However, I have no doubt that it would have been reassuring to Mr. Lennox to know that, faced with the extraordinary challenge that presented itself to Dr. Burns, he had sought advice from another, more experienced, surgeon. While, based on the totality of the evidence, I do not find that Dr. Burns’ failure to consult a colleague fell below the standard of care; with the benefit of hindsight it would have been better if he had.

(vi) The Femoral Nerve Damage

[168] The damage to Mr. Lennox’s femoral nerve was an unfortunate and unforeseen consequence of an 11½ hour operation. The exact cause is not known but all of the medical witnesses, including Dr. Burns, accept that the nerve damage was a result of the surgery. Dr. Holliday offers the opinion that had the operative procedure been terminated at an earlier time, in all likelihood, the femoral nerve injury would not have occurred.

[169] Having concluded that Dr. Burns was not negligent for failing to pull out of the surgery, and in the absence of any other evidence that the risk of damage to the femoral nerve should have been contemplated, there is no basis for finding that Dr. Burns was negligent because of the femoral nerve injury.

[170] For the foregoing reasons, the plaintiff has not met his burden of establishing, on a balance of probabilities, that Dr. Burns failed to meet the standard of care of a general surgeon.

Post-Operative Care and C-Difficile

[171] Mr. Lennox’s lengthy hospital stay and receipt of broad spectrum antibiotics made him susceptible to C-difficile.

[172] I found the evidence of Dr. Schabas of limited assistance in understanding whether Dr. Burns mismanaged Mr. Lennox’s post-operative care. Dr. Schabas disavowed his earlier opinion that Mr. Lennox had irritable bowel syndrome from C-difficile. His opinion regarding antibiotic management was at odds not only with Dr. Hagen but, also, Dr. McIntyre and Dr. Holliday, both of whom opined that Dr. Burns’ antibiotic management met the standard of care.

[173] Dr. Schabas was of the opinion that Dr. Burns should have consulted an infectious diseases specialist at the end of August 2007 when C-difficile first emerged (Dr. Burns did subsequently refer Mr. Lennox to Dr. Graham, an infectious diseases specialist, after the December 2007 follow-up meeting).

[174] Furthermore, although Dr. Schabas is undoubtedly extremely well qualified as an internist and an expert in matters of public health, his views on the management of C-difficile were of limited assistance to my determination of whether Dr. Burns, as a general surgeon, failed to meet the applicable standard of care. Indeed, I found it curious that Dr. Schabas would suggest that Dr. Burns had not met the standard of care because he failed to consult an infectious disease expert regarding the management of C-difficile when Dr. Schabas himself is not an infectious disease expert and therefore cannot speak to what an infectious disease expert may have done if Dr. Burns had, in fact, consulted one.

[175] Having considered all of the relevant evidence, I am not persuaded that Dr. Burns fell below the standard of care in respect of his post-operative management of Mr. Lennox and, in particular, in respect of his management of the C-difficile which beset Mr. Lennox.

Causation

[176] If I am wrong about the adequacy of the information provided to Mr. Lennox prior to him consenting to surgery, I have already expressed the view that it would not have made any difference. Mr. Lennox would have elected it to proceed with the surgery.

[177] If I am wrong in any of my findings regarding the standard of care, then it would be necessary to consider whether any breach of the duty of care on the part of Dr. Burns caused Mr. Lennox’s damages.

[178] The general test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14; Hanke v. Resurfice Corp., [2007] 1 S.C.R. 333, 2007 SCC 7 at para. 22.

[179] Having regard to the possibility of a finding that Mr. Lennox developed adhesions in an unusual way, the plaintiff points to the following observation of Major J. in Athey, at para.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… 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.

[180] Despite the various criticisms of Dr. Burns offered by the plaintiff, it is his failure to pull out of the surgery which appears to be the pivotal event, at least from a causation perspective.

[181] Given my earlier comments with respect to the femoral nerve problem, the evidence strongly supports the conclusion that the length of the surgery was a significant contributor to that injury. The evidence of Dr. Holliday that earlier termination of the surgery would likely have resulted in the femoral nerve damage being avoided is uncontradicted. That said, neither Dr. Holliday nor Dr. McIntyre were terribly clear as to exactly when Dr. Burns should have discontinued. Dr. Holliday’s report noted that the threshold for abandoning is “somewhat difficult” and that at the time of the operation and number of enterotomies “should have given Dr. Burns thought to discontinue the operation”.

[182] What can be said is that both Dr. McIntyre and Dr. Holliday ultimately agreed that Dr. Burns met the standard of care up to the point of retraction. That was approximately 3.5 hours into the surgery and there were already multiple enterotomies which had to be repaired. There is no evidence of how long it would have taken to repair the enterotomies and close up the abdomen (as Dr. McIntyre suggested should have been done).

[183] The evidence concerning the damage that would (or would not) have ensued had the procedure been abandoned at some point after it started was limited at best.

[184] Nevertheless, I am satisfied that, on a balance of probabilities, the femoral nerve damage would have been reduced or not have occurred at all had Dr. Burns pulled out of the surgery.

[185] However, while there is doubtless a connection between the various other problems that Mr. Lennox experienced after the August 2007 surgery and the fact of that surgery, there is no evidence as to what complications would, or would not have ensued in the post-operative period had the operation been abandoned, as recommended by Dr. McIntyre and Dr. Holliday. Furthermore, had Dr. Burns abandoned the surgery, Mr. Lennox would have been left with a hastily closed abdomen and a colostomy in situ. While it likely that Mr. Lennox would then have agreed to a second procedure to reverse his colostomy, it is a matter for speculation, upon which evidence was not adduced, as to whether the colostomy would have been successfully reversed at a second operation.

[186] Appreciating, and indeed accepting, the plaintiff’s submission that a trial judge should be mindful of the challenges facing a plaintiff to discharge his or her burden, evidence that had the procedure been abandoned, Mr. Lennox would not have developed the bowel dysfunction that he currently experiences, is thin at best.

[187] Accordingly, had I found that Dr. Burns was negligent, the only consequence that I would accept as having been caused by such negligence is the femoral nerve damage which, as I have indicated, would have been reduced or would not have occurred at all. In all other respects the evidence does not support a conclusion that, as a matter of causation, Dr. Burns would be responsible for the damages claimed by Mr. Lennox.

Conclusion

[188] I would be remiss if I did not acknowledge the awful position that Mr. Lennox has found himself in. He struck me as a sincere witness whose quality of life has been seriously and, seemingly, permanently diminished. But as our courts have said on many occasions, the sympathy of the court is not enough. For Dr. Burns to be found civilly responsible, Mr. Lennox must show that Dr. Burns was negligent and that his negligence caused the damages that Mr. Lennox now claims. Mr. Lennox has not been able to discharge this burden. Accordingly, his action must be dismissed.

[189] I would encourage the parties to agree on the issue of costs. Should they not be able to do so, I direct as follows:

(a) The defendant should serve a bill of costs on the plaintiff, accompanied by written submissions within 21 days of the release of these reasons; (b) The plaintiff should serve his response on the defendant within 14 days thereafter; (c) The defendant should serve his reply, if any, within 7 days thereafter; (d) In all cases, the written submissions should be limited to 4 pages, plus bills of costs; and (e) The plaintiff is invited to submit the bill of costs he would have presented to the court had he been successful in the action.

I would ask counsel for the defendant to collect copies of all of the parties’ submissions and arrange to have the package delivered to me care of Judges’ Administration, Room 170 at 361 University Avenue, Toronto as soon as the final exchange of materials has been completed. For the avoidance of doubt, no materials should be filed individually; rather, counsel for the defendant should assemble a single package for delivery as described above.

Graeme Mew J.

Released: 17 May 2016

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY LENNOX Plaintiff – and – ANDREW RUSSELL BURNS Defendants

REASONS FOR DECISION Mew J. Released: 17 May 2016