COURT FILE NO.: CV-17-0592-000 DATE: 2021-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Daniele Marthe Hutterli and Charles Hutterli Mr. R. Somerleigh and Mr. V. Popescu, for the Plaintiffs Plaintiffs

• and -

Douglas Frederick Scott Mr. B. Morrison and Mr. S. Lewis, for the Defendant Defendant

HEARD: August 17, 18, 19, 20, 21 and 24 at Thunder Bay, Ontario

Madam Justice T. J. Nieckarz

Judgment

OVERVIEW

[1] The Plaintiff, Mrs. Hutterli, was an active 67-year-old woman until March 8, 2017, when she injured her ankle during a slip and fall accident in the driveway of her home.

[2] On March 9, 2017 Mrs. Hutterli was still in considerable pain and had difficulty walking on her ankle. She decided to drive herself to the Nipigon District Memorial Hospital (the “Nipigon Hospital”), where her injury was assessed in the emergency room by the Defendant, Dr. Douglas Scott.

[3] Mrs. Hutterli alleges that Dr. Scott was negligent in his treatment of her on March 9, 2017. She argues that he failed to meet the accepted standard of care for the assessment of ankle injuries by failing to properly apply the Ottawa Ankle Rules (“OAR”) and order an x-ray of her ankle. She further alleges that he failed to give her the correct discharge instructions.

[4] Mrs. Hutterli argues that as a direct result of the negligence of the Defendant, she was misdiagnosed with an ankle sprain as opposed to an ankle fracture. This misdiagnosis caused a delay in the appropriate treatment for her injury, which has likely resulted in increased cartilage damage and placed her at a greater risk for osteoarthritis. She urges me to award her damages in the range of $60,000 to $75,000 for her injuries.

[5] Dr. Scott denies that he failed to properly apply the OAR. He denies that he was negligent in his treatment of Mrs. Hutterli. On the contrary, he argues that he conducted himself entirely within the standard of care expected of him. He does not deny that Mrs. Hutterli may have had an ankle fracture on March 9, 2017 and that he may have misdiagnosed her with an ankle sprain, but he argues that a misdiagnosis does not equate to negligence if the standard of care for the assessment of the injury was met. He argues that it was.

[6] With respect to damages, Dr. Scott takes the position that the Plaintiffs have failed to establish that any damages have been suffered. He argues that the uncontradicted evidence supports a finding that Mrs. Hutterli does not have osteoarthritis. There is no evidence of any cartilage damage either. Dr. Scott argues that Mrs. Hutterli’s damage claim is based on an increased risk alone, which is not legally compensable in medical negligence cases. He further argues that the evidence does not support a compensable Family Law Act claim for Mrs. Hutterli’s spouse.

[7] For the reasons that follow, I find that the Plaintiffs have not established on a balance of probabilities that the Defendant failed to meet the accepted standard of care and was thereby negligent in his treatment of Mrs. Hutterli. Even if the Defendant was negligent, I further find that the Plaintiffs have failed to establish causation or damages.

FACTUAL BACKGROUND

[8] Mrs. Hutterli is now 70 years old. She is a homemaker. The Plaintiff, Charles Hutterli, is her spouse. The couple live in a small rural township situated on Lake Superior, approximately 50 kilometres from Nipigon.

[9] On March 8, 2017, Mrs. Hutterli was returning home from a routine doctor’s appointment and some grocery shopping. The weather was particularly bad that day, with an ice storm and high winds moving through the area. Once home, Mrs. Hutterli got out of her car and put her bags inside the house. She then returned outside to tend to her vehicle, when she slipped on the ice and fell. She immediately felt pain in her left ankle. She remained on the ground in pain for approximately 5 minutes before she was able to crawl on her knees to get herself into the house.

[10] Once inside the house, Mrs. Hutterli removed her boots and immediately noticed how swollen her ankle already was. It was bruised “black and blue”, with some bruising continuing up her leg. She still did not feel as if she could bear weight on it but she managed to hobble around her home while she attended to her injury.

[11] The ankle continued to swell. Mrs. Hutterli managed to get some ice to apply to it, soaked it in a cold-water bath, took some Tylenol for the pain, and then elevated the ankle on pillows to try to reduce the swelling. She did not go to the hospital right away because she was home alone, it was getting dark, the closest hospital was 50 kilometres away, the weather was poor, and she hoped the pain and swelling would subside with some ice and rest.

[12] The next morning Mrs. Hutterli was still in pain, the ankle was still very swollen and remained bruised. She continued to have difficulty putting weight on the ankle and moved around by hopping on one foot and holding on to anything possible for support. Mrs. Hutterli decided that she needed to go to the hospital.

[13] Mrs. Hutterli drove herself to the Nipigon Hospital. She went alone. She managed to limp into the hospital doors, where she sat herself in a wheelchair and saw a triage nurse. The triage nurse noted in part in the emergency room record:

• Patient presents with a swollen ankle;
• Partial weight bearing;
• Patient was able to walk here limping;
• Patient reports 6/10 pain on walking and a tight feeling when sitting;
• Left foot and ankle swollen with large hematoma present; and
• Range of motion limited but sensation normal.

[14] Dr. Scott, a staff physician at the Nipigon Hospital saw Mrs. Hutterli on March 9. Dr. Scott and Mrs. Hutterli agree that he conducted a physical examination, feeling around her foot and ankle. His note as recorded in the emergency record at the time of the examination states:

67 y/o ♀ ankle eversion yesterday: Able to weight bear wants tensor bandage OE: L ankle swollen, ecchymosis medical side. minimal tenderness to malleoli. Able to weight bear.

[15] Mrs. Hutterli’s evidence is that Dr. Scott told her that she had a “bad” ankle sprain. She recalls asking him if she needed an x-ray and he told her “no”. She recalls being advised to rest, apply ice and compression, and to elevate the ankle to reduce swelling (“R.I.C.E.”). Her ankle was wrapped in a tensor bandage at her request. The diagnosis of ankle sprain, lack of x-ray and suggested treatment are consistent with Dr. Scott’s notes of the visit.

[16] Mrs. Hutterli further recalls Dr. Scott telling her that she should be on the mend within two to three weeks. She does not recall him telling her to return if no improvement but acknowledges that it is possible. Dr. Scott denies both the timeframe discussed and that he failed to tell her to return if no improvement. Dr. Scott has no independent recollection of the encounter. He testified that his usual practice is to tell patients who present with an ankle sprain to return in 7 to 10 days if no improvement. His emergency record notes indicate “return if 0 improvement”.

[17] Unfortunately for Mrs. Hutterli her ankle did not improve. She continued to experience pain and she could not completely weight bear on her foot. The swelling and the bruising did improve. She required assistance from friends and neighbours with her daily chores when her husband was not home.

[18] Mrs. Hutterli next sought medical treatment on April 7, 2017, when she returned to the Hospital and saw a different doctor. The doctor performed a physical examination and ordered an x-ray. The x-ray revealed a fracture in her ankle. She was referred to an orthopedic surgeon for emergency surgery in Thunder Bay the following day to have her ankle reset. She had the surgery, had to wear a cast for 6 to 8 weeks following and then went to physiotherapy twice a week between June and September of 2017.

[19] Mrs. Hutterli’s evidence was that prior to her accident she was extremely active on a regular basis. Since her accident on March 8, 2017, her ability to participate in the activities she enjoys has been significantly impacted. Specifically, her evidence was:

a. She used to be able to regularly walk 7 km, but now can barely walk 900 feet; b. She cannot cross-country ski like she used to do; c. She can no longer ice-skate. Mr. Hutterli testified as to what an exceptional skater his wife was before the accident, and the joy he derived from watching her; d. She cannot snowshoe anymore; e. She is still able to ride her bicycle, do yoga, and do aquatic exercises at the local public pool; f. Her husband worked out-of-town at a mine. She did not work. She was often responsible for all duties associated with the home, whether inside housekeeping or outside maintenance. Her ability to perform housekeeping duties and regular home maintenance has been negatively impacted. She has particular difficulty with vacuuming, lifting heavy items and she can no longer cut the lawn.

[20] Mrs. Hutterli has required no ongoing medical care with respect to her ankle since 2017. She has received no treatment and has not needed medications or assistive devices to walk since September 2017. She has noticed that her left foot pronated following the injury. While she has worn orthotics since 2003 for “flat feet”, she now wears them to also try to correct the pronation.

[21] Mr. Hutterli confirmed Mrs. Hutterli’s evidence as to the limitations on her day to day life since sustaining her ankle injury. With respect to the spousal relationship, each Plaintiff’s evidence was that it is no different after March 2017 than it was before.

[22] There are no pre-existing conditions, other than the need for orthotics, that impact upon this case. Mrs. Hutterli’s health prior to the accident was good. She has never broken or fractured any bones before and has never had any surgery related to any part of her skeletal system.

ANALYSIS

[23] The Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114 at para. 3 set out each of the elements that a Plaintiff must prove to be successful in a negligence action:

a. that the Defendant owed the Plaintiff a duty of care; b. that the Defendant’s behaviour breached the standard of care; c. that the Plaintiff sustained damage; and d. that the damages sustained were caused, in fact and in law, by the Defendant.

[24] It is undisputed in this case that the Defendant owed a duty of care to Mrs. Hutterli. The balance of the issues remains in dispute.

Did the Defendant breach the standard of care?

[25] The Plaintiffs argue that the Defendant failed to meet the standard of care of a reasonably prudent emergency physician by failing to:

a. order an x-ray of Mrs. Hutterli’s ankle despite having elicited bone tenderness; b. order an x-ray in the event of gross swelling that prevented bone palpitation to elicit bone tenderness; and c. provide the correct instructions for return to the emergency department if no improvement.

[26] The Plaintiffs base their allegations of substandard care largely on Dr. Scott’s clinical note from the emergency room visit of Mrs. Hutterli on March 9, 2017. In the emergency record he notes having found “minimal tenderness to malleoli” upon examination of Mrs. Hutterli. The Plaintiffs argue that despite any after the fact construct of Dr. Scott, this note makes it clear that he elicited bone tenderness. Having done so, he was required by the standard of care to order an x-ray to rule out the possibility of a fracture. Not having done so means that Dr. Scott did not mean the standard of care.

[27] The Plaintiff further argues that if Dr. Scott did not elicit bone tenderness during his examination of Mrs. Hutterli, the only possible explanation for not doing so and for eliciting soft tissue tenderness is that the ankle was grossly swollen. In this event, palpation of the bone is not possible, and the standard may only be met by applying good clinical judgment and ordering an x-ray.

[28] With respect to the discharge instructions, the Plaintiffs’ position is that Mrs. Hutterli was only told that she should be better within two to three weeks. She was not told to return if there was no improvement. Dr. Scott denies this. He points to his note in the emergency record and his invariable practice in arguing that he met the standard of care.

[29] The Defendant acknowledges that if Dr. Scott had elicited bone tenderness in the ankle, then he should have ordered an x-ray to determine whether Mrs. Hutterli was suffering from an ankle sprain or an x-ray. The Defendant argues that the evidence does not, however, support the Plaintiff’s assertion that bone tenderness was elicited. This being the case, and given Mrs. Hutterli’s presentation at the emergency room, Dr. Scott’s diagnosis of ankle sprain may have been mistaken, but it was a diagnosis that Dr. Scott was entitled to make and that did not fall below the standard of care.

[30] The Defendant argues that if I find that Dr. Scott did not elicit bone tenderness on March 9, the Plaintiffs’ claims cannot succeed, and the action must be dismissed.

Legal Framework:

[31] The legal principles with respect to the standard of care required of a physician are not in dispute and are not in of themselves difficult; the difficulty lies in applying them to the particular circumstances of this case.

[32] Medical practitioners have a heavy and onerous legal responsibility to patients in their care. Having said this, the standards of care imposed by a court must be realistic and reasonable: Tacknyk v. Lake of the Woods Clinic, 1982 CarswellOnt 3858, [1982] O.J. No. 170, 17 A.C.W.S. (2d) 154 (C.A.), at para. 29.

[33] Physicians are not held to a standard of perfection, but rather to a standard of reasonableness. A physician is expected to possess a reasonable degree of skill and knowledge and must exercise a reasonable degree of care in treating a patient. The physician is bound to exercise a degree of care and skill that is reasonably expected of a normal prudent practitioner of the same experience and standing: Crits v. Sylvester, [1956] O.R. 132, [1956] O.J. No. 526, 1 D.L.R. (2nd) 502 (C.A.), at para. 13.

[34] A bad outcome or incorrect diagnosis should not be taken by itself as evidence of negligence: Crits v. Sylvester, at para. 18.

[35] A physician should not be judged by the result or from the benefit of hindsight. An assessment of the reasonableness of his decision must be made prospectively, based on what a reasonably prudent physician would have done had (s)he been presented with the information the physician had at the time: Hillis v. Meineri, 2017 ONSC 2845, at paras. 53 and 62; Mackell v. Moulson, 2001 BCSC 1705, at para. 81.

[36] An error in judgment will not constitute negligence. The law requires reasonable care and not infallibility. The law recognizes that reasonable physicians, exercising a reasonable degree of skill and knowledge may still make mistakes: Hillis v. Meineri, at paras. 56 and 63.

[37] Generally, conformity with a common practice will exonerate a physician of a complaint of negligence: Crawford v. Penney, at para. 227.

[38] While each case must be viewed based on its own facts, where the act or omission complained of pertains to a strictly medical matter in which medical judgment and technique are involved, if the act was done in accordance with standard recognized practice, this will often be a complete answer to an allegation of negligence: Crawford v. Penney, at para. 228, quoting Johnston v. Wellesley Hospital, [1971] 2 O.R. 103, at paras. 113-114.

[39] The duty to diagnose requires a physician to undertake the proper investigations. They should take a full history, use appropriate tests and consult or refer if required. They must take reasonable care to ascertain signs and symptoms and apply good judgment: Crawford v. Penney, at para. 230 (b).

The Standard of Care - Ottawa Ankle Rules:

[40] Drs. Dreyer, McMillan and Scott all testified as to the purpose of, and operation of the Ottawa Ankle Rules (“OAR”). In addition, a copy of the OAR and various literature was entered into evidence.

[41] Based on the evidence of the physicians who testified in this case, I find that the OAR, along with good clinical judgment represents the standard of care for assessing patients with ankle injuries. The question for determination will be whether Dr. Scott properly followed the OAR, and whether he exercised good clinical judgment in his care of Mrs. Hutterli on March 9, 2017?

[42] Ankle trauma is one of the most common injuries seen in the emergency room. Most of those injuries are sprains, with less than 15% of patients presenting with fractures.

[43] Prior to the implementation of OAR, physicians routinely ordered x-rays for virtually all ankle injury patients to rule out the more serious trauma of a fracture. Not all ankle injury patients need an x-ray. An x-ray is unnecessary for a sprain but important to properly diagnose and treat a fracture.

[44] The overuse of x-rays resulted in considerable unnecessary costs to the health care system, and unnecessary wait times and exposure to radiation by patients. The OAR were introduced in 1992 in an effort to combat the overuse of x-rays to diagnose ankle injuries.

[45] OAR are commonly applied guidelines to guide investigations and management of ankle injuries. They do not replace clinical judgment; the rules are an adjunct to a physician’s common sense, experience and clinical acumen. It is a helpful aid to assist the physician in his/her decision making.

[46] OAR define criteria that will help a physician determine whether it is appropriate or necessary to obtain an x-ray. The rule is generally accepted to be extremely sensitive, meaning that if you follow the rule and the patient does not meet the criteria to do an x-ray, then you are usually safe not to do one. Initially it was thought that the OAR was 100% accurate, but it has since come to light that this percentage is slightly less. Missed fractures can still occur even with the proper application of the OAR.

[47] Utilizing the OAR, an x-ray is only required if there is pain in the malleolar zone and:

a. bone tenderness at the posterior (backside) edge or tip of the lateral malleolus; b. bone tenderness at the posterior edge or tip of the medial malleolus; or c. an inability to bear weight both immediately and in the emergency department for four steps.

[48] The Defendant’s expert witness, Dr. Ronald McMillan explained that the malleolar zone is the region around the ankle. It includes not only the malleoli bones, but all the structures that surround the bones. Aside from the bones, the malleolar zone includes tendons, ligaments and soft tissue. A relatively small area of the malleolar zone is occupied by the medial and lateral malleolus. The Plaintiff’s expert, Dr. Jonathan Dryer disputes that there is any significant soft tissue in the area surrounding the malleoli (ankle bones).

[49] Malleolus is defined in medical dictionaries as the bony prominence on either side of the ankle. Malleoli is the plural of malleolus.

[50] It was agreed by the experts in this case that if tenderness to either of the malleoli is detected upon physical examination, then the ability to weight bear becomes a moot point. An x-ray should be ordered.

[51] In assessing weight bearing capacity it is irrelevant if the patient is limping; if they can take the steps, even limping, and there is no bone tenderness, then an x-ray is not required.

[52] In assessing bone tenderness, the degree of tenderness is irrelevant. If there is any tenderness, that is sufficient to trigger the OAR and require an x-ray.

[53] Both parties’ experts agree that if a physician assesses a patient and finds that they have some pain or tenderness in the malleolar zone, but no bone tenderness on the edge or the tip of the malleolus, either medial (inner part of the ankle) or lateral (outer part), and the patient is able to weight bear after the injury and at the emergency room, then it is reasonable for the physician not to order an x-ray.

[54] The OAR will not apply, and clinical judgment should prevail if the patient is either intoxicated or uncooperative, have other distracting painful injuries, diminished sensation in their legs or more importantly to this case, gross swelling that prevents the palpation of the malleoli to assess bone tenderness.

The Evidence:

Dr. Scott:

[55] Dr. Scott is a certified family physician. He is experienced, having worked at the Nipigon Hospital in the emergency department and in their family practice clinic since 2008. He is also an Assistant Professor of the Northern Ontario Medical School in Thunder Bay. Dr. Scott estimates that he has seen more than a hundred, and perhaps hundreds of ankle injuries in his career.

[56] Dr. Scott had only a vague recollection of having seen Mrs. Hutterli. He was dependent upon what he had written in the emergency record for details of the encounter. Both he, and a fourth-year nursing student recorded observations in the record. Based on the record, Dr. Scott saw Mrs. Hutterli for approximately 25 minutes.

[57] Dr. Scott testified that the first thing he did in assessing Mrs. Hutterli was take her history. He noted on the chart her age, that she “rolled” her ankle, that she was able to weight bear on the ankle and that she requested a tensor bandage.

[58] Next, Dr. Scott conducted a visual examination. He noted left ankle swelling and ecchymosis (bruising) on the medial side of the ankle.

[59] The next step in assessing Mrs. Hutterli’s injury was a physical examination. Dr. Scott was aware of the OAR, which he both knows, and is posted on a chart in the emergency department. He testified that he applied them.

[60] Both Dr. Scott and Mrs. Hutterli described the examination. Mrs. Hutterli described that Dr. Scott was ‘poking’ and ‘feeling’ around her ankle and a few inches higher. She recalls him pushing on it and touching all over her swollen part of the ankle and feeling her toes. She recalls him trying to move the ankle. She cannot specifically remember Dr. Scott touching the malleoli. She recalls it being sore and painful as he was feeling around her ankle.

[61] Dr. Scott described his usual practice as taking his thumb and palpating the tissue going from the posterior to the anterior (back to front), touching it with his thumb along the way to determine if there is tenderness along the bone. He will also usually watch the patient walk to see if they are able to weight bear.

[62] Dr. Scott’s evidence was that he does not record negative findings; he does not write what he does not observe or find, only what he does observe or find. Therefore, the absence of a specific finding in his note reflects that it was not present.

[63] Dr. Scott testified that his note in the emergency record stating “minimal tenderness to malleoli” means tenderness in the malleolar zone. He further testified that it is not his practice to write out the entire term of “malleolar zone” or “malleoli region”, but rather to abbreviate it using “malleoli”. He acknowledged that the medical dictionary definition of “malleoli” does refer to the bony prominences on the ankle. However, he was firm in his evidence that when he is writing a clinical note, he uses his own abbreviations such as “malleoli”, which means the malleoli region or malleolar zone, which encompasses the whole soft tissue area around the ankle.

[64] During his physical examination of Mrs. Hutterli, Dr. Scott was able to palpate the ankle bones but did not elicit any tenderness to the bones. He knows this because of what is in the emergency record.

[65] Dr. Scott testified that if he elicits “bone tenderness” in either of the malleolar bones he will write that down specifically, and he will write where it was detected. The fact that he did not write in the chart a finding of “bone tenderness” suggests to him that he did not find any tenderness to either the medial or the lateral malleolus.

[66] Dr. Scott also noted in his testimony that in his experience, particularly for an ankle roll injury, it is uncommon to have tenderness to both the medial and lateral malleoli. Typically, there is tenderness to one side. If he had found tenderness to both bones, he testified he would have written that there was tenderness to the malleoli bones.

[67] In summary, Dr. Scott testified that:

a. the Nipigon Hospital emergency department is a small one, which allows him to focus on one patient at a time, including Mrs. Hutterli; b. on examination he noted pain / tenderness in the soft tissue of the malleolar zone; c. upon palpating the ankle, he did not elicit any bone tenderness; d. had he found bone tenderness he would have specifically noted it and ordered an x-ray; e. Mrs. Hutterli told him she was able to walk, and he observed her weight bear and take a few steps; f. having found no bone tenderness and having observed Mrs. Hutterli weight bear on the ankle, Dr. Scott testified she did not meet the criteria under the OAR for an x-ray and that her findings were more consistent with an ankle sprain than a fracture; and g. there was no reason not to order an x-ray other than Mrs. Hutterli did not meet the criteria of the OAR.

[68] With respect to discharge instructions “Return if no improvement”, Dr. Scott testified that it is his standard practice with orthopedic injuries to tell people that they should be gradually improving and should return in 7 to 10 days for reassessment if they are not. He denies he would have told Mrs. Hutterli that her ankle should be better in two to three weeks. He stated that he does not ever use this time frame and does not ever tell people they “should be fine” as he has no way of knowing this.

Dr. Dreyer:

[69] Dr. Jonathan Dreyer was tendered by the Plaintiff and qualified as an expert in emergency medicine. His qualifications are extensive and cannot be done justice in a brief paragraph in this decision. He was certified by the Royal College of Physicians and Surgeons of Canada in 1983 as a specialist in emergency medicine after completing his emergency residency at The John Hopkins Hospital. He has practiced emergency medicine since. He currently has privileges at various hospitals in the London, Ontario area, is a professor at Western University, has sat on numerous committees, authored or co-authored numerous journal articles and abstracts, he has delivered numerous presentations, and he conducts peer reviews for the College of Physicians and Surgeons of Ontario.

[70] Dr. Dreyer reviewed Mrs. Hutterli’s records from the Nipigon Hospital, the Thunder Bay Regional Health Sciences Centre, and physiotherapy. He also reviewed the transcripts of the examination for discovery of Dr. Scott and of the Plaintiffs.

[71] Dr. Dreyer’s overall opinion was that Dr. Scott’s care of Mrs. Hutterli in assessing her ankle injury fell below the accepted standard of care. In Dr. Dreyer’s opinion, based on what was charted by Dr. Scott on the emergency record, if the OAR were applied correctly, an x-ray should have been ordered and the ankle fracture would have been detected. Dr. Dreyer expressed surprise that based on what was charted by Dr. Scott, he did not order an x-ray.

[72] Specifically, Dr. Dreyer noted that the emergency record revealed that tenderness of the malleoli (bone tenderness) was detected. While it is clear that Dr. Scott was using OAR in the assessment of Mrs. Hutterli, he did not do so correctly. With a finding of tenderness of the malleoli, the OAR necessitates the ordering of an x-ray regardless of the degree of tenderness.

[73] Additionally, the fact that she could not weight bear at the time of the accident, pain in her ankle and the level of swelling she reported suggests that something more sinister than a sprain is at play. In Dr. Dreyer’s opinion, given this presentation, Dr. Scott failed to properly apply the OAR and exercise good clinical judgment by not ordering an x-ray. This indicates substandard care.

[74] Dr. Dreyer did not accept Dr. Scott’s explanation that in referring to “minimal tenderness of the malleoli” he was referring to soft tissue tenderness in the malleolar region as opposed to bone tenderness. He testified that:

a. “Malleoli” are the boney prominences on either side of the ankle. This term does not refer to a region. b. He is confident that if he gave this chart to a hundred of his colleagues and asked them what it means when its recorded “minimal tenderness to malleoli”, they would conclude as he has that it means there is bone tenderness on each of the malleolus, and therefore Mrs. Hutterli criteria for doing an x-ray according to the OAR. c. In his experience, very few physicians who elicit bone tenderness specifically say this; by writing “malleoli” Dr. Scott is referring to the bone. d. While the physician is usually in the best position to tell you what a note means, in reviewing the chart Dr. Dreyer takes him at his word for his charting; physicians do not write what they do not mean. When a physician writes “tenderness of the malleoli”, in Dr. Dreyer’s experience this means the physician was able to palpate the bone without interference of soft tissue and elicited tenderness. e. The malleolar zone does includes soft tissue but, when a physician runs their fingers 6 inches up the side of the bone on either side as required by the OAR, there’s only skin and bone and no soft tissue unless the area it is grossly swollen, in which case the rule breaks down because the bone cannot be palpated. f. If Dr. Scott felt soft tissue when palpating the malleoli, the only explanation is gross swelling, which requires exercise of clinical judgment. Gross swelling is suggestive of a higher risk for a fracture and an x-ray should be ordered. A grossly swollen ankle with significant bruising as the nurse’s note described is definitely an ankle to be x-rayed. g. Either way, if the clinical note means some tenderness of the bone was elicited, the patient gets an x-ray, and if the ankle is so swollen that Dr. Scott is just feeling soft tissue and cannot feel the bone, the prudent course of action is to order an x-ray to rule out fracture. h. With respect to instructions for return if no improvement, Dr. Dreyer acknowledged that slightly longer than the 5 to 7 days recommended in the OAR is prudent.

Dr. McMillan:

[75] Dr. Ronald McMillan was tendered by the Defendant and qualified as an expert to provide opinion evidence with respect to the standard of care of a physician in an emergency room in Ontario who is treating a patient with an ankle injury. As with the Plaintiff’s expert, Dr. McMillan’s qualifications are impressive. He is a certified specialist in emergency medicine who has practiced at various hospitals, including one of the largest and busiest emergency rooms in the country. He is currently practicing at a hospital in Oakville, and works there in an education capacity, mentoring other emergency room physicians. He provides fly-in emergency department services for remote Northern communities, works with the Canadian and International Red Cross to deploy medical personnel to disaster areas, is a faculty member at McMaster University, has a number of other academic credentials, served on numerous committees and has a number of publications and presentations credited to him. He acts as a medical expert/advisor in emergency medicine to the quality assurance committee of the College of Physicians and Surgeons of Ontario, acts as a medical inspector in emergency medicine for the investigations, complaints and reports committee of the College and also as an assessor, assessing emergency physicians in hospitals throughout the province with respect to standards of care.

[76] Dr. McMillan estimates that on average he has seen and treated between 100 – 150 patients a year for ankle injuries. He confirmed that it is one of the most common musculoskeletal injuries seen by emergency room physicians.

[77] In forming an opinion in this case, Dr. McMillan reviewed the pleadings, the medical records, the transcripts from the discoveries of the parties, and the written opinions of Plaintiff experts Dr. Dryer and Dr. Waddell.

[78] Overall, it was Dr. McMillan’s opinion that Dr. Scott met the standard of care in treating Mrs. Hutterli. In Dr. McMillan’s opinion, Dr. Scott undertook a thorough assessment of Mrs. Hutterli and followed the OAR to determine an x-ray was not necessary. The patient did not have any of the criteria for an x-ray as outlined in the OAR, specifically noting only soft tissue tenderness of the malleoli regions with no bone tenderness, and the ability to weight bear.

[79] Unlike Dr. Dreyer, Dr. McMillan accepts Dr. Scott’s explanation that “minimal tenderness to malleoli” as documented in the emergency record did not refer to bone tenderness.

[80] Dr. McMillan explained that he has had the opportunity to review and assess hundreds of clinician’s records for ankle injuries in his capacity as an assessor for the College. When reviewing another clinician’s records, you look for the history to document the mechanism of injury, and you look for a systematic flow of the examination findings such that you can follow the physician’s train of thought as they examine the patient and document their findings. Dr. Scott’s charting satisfied all these criteria. This allowed Dr. McMillan to follow Dr. Scott’s way of thinking as he documented it, and it is consistent with his explanation and with the standard of care that is expected of him.

[81] Dr. McMillan’s evidence may be summarized as:

a. The emergency record tells him that Dr. Scott was properly following the OAR steps. Pain was noted in the malleolar zone. The malleolar zone refers to not only the bones of the ankle but all the structures (tendons, ligaments, nerves, blood vessels) and soft tissues surrounding these bones. The bones of the ankle comprise a relatively small area of the malleolar zone. b. The emergency record also tells him that Dr. Scott palpated the ankle to determine whether there is tenderness to the bone. When palpating, a physician is not only palpating the bone, but the entire ankle including soft tissue. This is especially the case when someone has “rolled” their ankle. c. After determining no bone tenderness, the patient’s ability to weight bear was assessed by Dr. Scott as required by the OAR. d. He does not see any errors in the charting of findings by Dr. Scott. If he were assessing these records, he would find no breach of the standard of care. e. Dr. McMillan acknowledges that dictionary definitions of malleoli mean the bony prominences of the ankles. However, he disagrees with Dr. Dreyer’s opinion that “malleoli” in referring to “minimal tenderness” must be taken to mean bone tenderness. He accepts Dr. Scott’s explanation that he was not referring to bone tenderness but rather tenderness of the soft tissues of the malleolar zone. f. Dr. McMillan’s experience in reviewing the ankle injury charts of emergency physicians is that when there is bone tenderness, they specifically note bone tenderness. For example, “tenderness to the tip of the medial malleolus”. They also generally specify where it is tender, whether it is lateral or medial. Dr. Scott’s note does not specify “minimal bone tenderness”, or where, which is what he would expect if bone tenderness had been elicited. g. Step wise, Dr. Scott’s explanation that he did not detect bone tenderness also makes sense. If bone tenderness was detected, that alone is sufficient to order an x-ray and there is no need to assess the ability to weight bear. In this case, a note that merely states “minimal tenderness to the malleoli”, followed by “able to weight bear”, would tell him if he were assessing the chart that there is no bony tenderness so Dr. Scott proceeded to the next step of assessing weight bearing ability. h. Dr. Scott’s explanation of his note is consistent with Dr. McMillan’s interpretation of it as an independent assessor. Reviewing the totality of what is noted in the emergency record, including but not limited to the nature of the injury, the swelling, the bruising, and the ability to weight bear, minimal tenderness to the non-bone malleoli is a consistent explanation. In performing an examination, physicians can also palpate tenderness in other areas of the malleolar zone than bone tenderness. i. Missed fractures do occur regardless of the clinical rules that are in place and can occur even if the rules are properly followed. By accepting the OAR as the standard as opposed to simply x-raying all ankle injuries as done previous to the OAR, it is accepted by the system that some fractures will be missed. j. The most important thing is making sure the patient is told to return if their symptoms are not improving. With the discharge instructions, the standard of care was met. While the OAR refers to a timeframe of 5 – 7 days for a return for reassessment if no improvement, Dr. McMillan agreed with Dr. Dreyer that a slightly longer timeframe may also be appropriate. He did not feel that 7-10 days was inappropriate. Had Dr. Scott told Mrs. Hutterli two to three weeks, this would have been inappropriate. k. If gross swelling had been present, then it comes down to clinical judgment as to whether x-rays are warranted or not. In determining what is gross swelling, this also requires the application of clinical judgment. If you cannot palpate the bone, then likely the swelling is sufficient to necessitate the application of clinical judgment. In this event, one must look at the patient in totality. Did they walk into the emergency department on their own? Can they weight bear? If they can, it is still more likely that they have a soft tissue injury and it would be reasonable not to order an x-ray. If they cannot weight bear, then a fracture is more likely. l. While the only way to definitively way to rule out a fracture if there is gross swelling is by x-ray, this is neither the standard of practice nor the standard of care. Clinical judgment as described above, is the appropriate course of action. m. Overall, based on Dr. Scott’s observation and physical examination of Mrs. Hutterli, it was reasonable for him not to order an x-ray. n. While it is difficult to say without having examined the patient, upon reviewing the April 7 x-rays and the nature of the fracture, one would expect that if the fracture was the same on March 9, upon palpation bone tenderness would be elicited if there was no gross swelling.

[82] Dr. McMillan explained that the OAR are not perfect, and neither is clinical judgment; the two together for the most part produce a correct decision. However, there is also a chance that they won’t. There are times when the rule will be properly used, and clinical judgment properly exercised but the emergency physician will still be wrong in their diagnosis.

Discussion:

[83] I accept Dr. Dreyer’s opinion and find that Mrs. Hutterli had an ankle fracture and not a sprain when she was assessed by Dr. Scott at the Nipigon Hospital on March 9, 2017. There is no evidence to suggest that there was an accident or event that caused the ankle to fracture between March 9 and April 7. There was also no medical evidence to suggest that something could have caused the sprain to progress to a fracture.

[84] That being the case, I also find that Dr. Scott misdiagnosed Mrs. Hutterli with an ankle sprain. The question becomes whether Dr. Scott’s mistake was an error in judgment or negligence.

[85] I find that unfortunately for Mrs. Hutterli, this is one of those rare occasions in which the physician properly followed the OAR and exercised good clinical judgment, but still got the diagnosis wrong. Despite the misdiagnosis, I find that Dr. Scott met the standard of care expected of a reasonably prudent emergency physician in these circumstances.

[86] There is no dispute at trial as to the steps required under the OAR; the evidence was clear and consistent on this point. There is no dispute that Dr. Scott took a history and performed a physical examination as required. It is undisputed that Mrs. Hutterli had pain in the malleolar region. It is undisputed that the OAR required Dr. Scott to palpate the ankle to determine whether there was also bone tenderness, and he did so. The OAR and the evidence of all physicians support the conclusion that if Dr. Scott detected bone tenderness, an x-ray should have been ordered. If there was no bone tenderness but Mrs. Hutterli was unable to weight bear at the time of the accident and in the emergency room, an x-ray should be ordered. If the ankle was too swollen to feel the bone, the clinical judgment should be applied to determine whether to order an x-ray.

Was bone tenderness elicited?

[87] The dispute surrounds the Plaintiffs’ interpretation of the emergency record and Dr. Scott’s notation of “minimal tenderness to malleoli”. The Plaintiffs, supported by the opinion of Dr. Dreyer, argue that the only logical explanation upon a plain reading of the chart is that Dr. Scott did in fact elicit “bone tenderness” as described in the OAR when he examined Mrs. Hutterli, but then for some reason did not follow them and order an x-ray. This resulted in substandard care.

[88] This issue arises because of the lack of clarity in Dr. Scott’s chart of Mrs. Hutterli’s examination. In this regard, he is the author of his own misfortune. The Plaintiffs’ interpretation, as supported by Dr. Dreyer, that he elicited bone tenderness is not an unreasonable one on the face of the note. But unfortunately, the matter is not that simple.

[89] The issue comes down to whether I should accept the Plaintiffs’ plain reading interpretation of the note or accept Dr. Scott’s after the fact explanation that he was not referring to tenderness of the malleoli bones but rather tenderness in the malleoli region or malleolar zone.

[90] The Defendant argues that Dr. Scott is in the best position to explain the meaning of his own note. He has been emphatic in stating that the note means he detected tenderness in the malleolar zone.

[91] Dr. Dreyer and Dr. McMillan agreed that generally a physician is in the best position to explain their own note. However, Dr. Dreyer also stated that a physician should be held to the commonly understood meaning of the words they write in their charts. In determining this issue, I was also mindful of the Plaintiffs’ caution that the Court should approach a self-serving after the fact explanation with considerable suspicion, especially when the words written are clear.

[92] Upon considering Dr. Scott’s explanation and the evidence of the experts, I find that Dr. Scott’s explanation is credible and makes sense based on the evidence.

[93] Dr. Scott testified that in writing “minimal tenderness to malleoli” he was referring to the malleolar zone. He knows this because when he finds bone tenderness, his practice is to specify that he has found bone tenderness.

[94] While Dr. Dreyer was emphatic that “malleoli” can only mean the ankle bones, Dr. McMillan and Dr. Latham (referred to below under causation) disagreed and supported Dr. Scott’s explanation. While Dr. Dreyer’s evidence reflects a common-sense approach, in the circumstances of this case, and based on the totality of evidence before me, I prefer the evidence of Dr. McMillan and Dr. Latham.

[95] Dr. Latham testified that when he read Dr. Scott’s note on the chart, he understood it to mean non-bone tenderness to the malleolar zone. Dr. Latham noted that there was nothing specifically referring to bone or where on the bone tenderness was detected. In his experience a reference to malleoli may mean either bones or the region. While Dr. Latham appreciated the medical dictionary definition of malleoli, he stated that book definitions versus clinical practice may be somewhat different.

[96] Similarly, Dr. McMillan’s evidence supports the conclusion that the matter is not as simple as looking at the words used. Dr. McMillan’s evidence was that the structure and sequence of Dr. Scott’s chart supports his explanation that he only elicited tenderness in the malleolar region and not the bones.

[97] Dr. McMillan explained that in his extensive experience reviewing other physician’s records of ankle injuries, he has observed that if they find bone tenderness, they will make a more specific reference to it. This is consistent with Dr. Scott’s explanation of his charting practice. For example, he will specifically note bone tenderness or as Dr. McMillan stated, physicians will often specify where they detect the bone tenderness.

[98] The emergency record of the assessment of Mrs. Hutterli by a different physician on April 7, 2017 is illustrative of Dr. Scott, Dr. McMillan and Dr. Latham’s point. Dr. Fotheringham wrote: “Tender over tip of medial malleolus”.

[99] I also note from Dr. Fotheringham’s record that tenderness was detected only in the medial malleolus, which the medical evidence suggested was reasonable given the mechanics of Mrs. Hutterli’s ankle roll injury. This also makes it unlikely that Dr. Scott would have detected tenderness in both malleoli and therefore unlikely that his reference to tenderness of the malleoli was in reference to the bones.

[100] Dr. McMillan further points out that the continuation of Dr. Scott’s physical examination as charted in the emergency record is consistent with him not finding bone tenderness. After having noted “minimal tenderness to malleoli”, Dr. Scott proceeded to assess weight bearing. Dr. McMillan’s evidence, supported by the medical literature relied upon by the parties, was that weight bearing is irrelevant if bone tenderness is found. The OAR are clear that only one of the criteria of bone tenderness or inability to bear weight is required to order an x-ray. If bone tenderness is found, then an assessment of weight bearing is unnecessary.

[101] In response to questions asked by Plaintiffs’ counsel, the experts agreed that in the absence of gross swelling, bone tenderness should have been capable of being elicited with the type of fracture shown on Mrs. Hutterli’s April 7 x-rays. Dr. McMillan qualified his opinion in this regard by noting that he did not have an x-ray of the March 9 visit to the Nipigon Hospital and had not physically examined Mrs. Hutterli.

[102] The Plaintiffs argue that given that bone tenderness should have been elicited, it is only reasonable to assume, particularly given his note, that Dr. Scott did so. Dr. Scott’s evidence was clearly that he did not elicit bone tenderness in his examination of Mrs. Hutterli, only soft tissue tenderness. The reason for this, in face of the expectation of the experts is unknown. As Dr. McMillan testified, he did not assess the patient personally. Mrs. Hutterli described herself as “tough” and “stoic”. Neither Mrs. Hutterli nor Dr. Scott recall specifics of the examination to assist in an explanation. I do not find that this affects my assessment of the credibility of Dr. Scott’s explanation that he found soft tissue tenderness as opposed to bone tenderness.

[103] Based on Dr. Dreyer’s opinion, the Plaintiffs further argue that the only way Dr. Scott could have felt soft tissue tenderness is if there was too much swelling to palpate the bone to elicit tenderness. If this was the case, the OAR do not apply and Dr. Scott fell short of the standard of care by not exercising his clinical judgment to order an x-ray. Dr. Dreyer’s opinion was that Mrs. Hutterli’s presentation, combined with gross swelling would necessitate an x-ray.

[104] Dr. McMillan disagreed. Firstly, he noted that there is soft tissue surrounding the malleolar zone. He also noted that Mrs. Hutterli presented with swelling, although the degree is not specified in the emergency record. Finally, Dr. McMillan’s evidence was that the issue is not that simple. Clinical judgement does not automatically necessitate an x-ray in the circumstances described. In his view, the fact that Mrs. Hutterli was able to weight bear is a significant factor in suggesting that it would be reasonable to exercise clinical judgment in favour of not ordering an x-ray. Regardless, I note that Dr. Scott’s evidence was clear that there was some swelling, but that he was able to palpate the malleoli.

[105] Dr. Scott is not a neophyte in assessing ankle trauma. He is an experienced emergency room physician. He has seen at least 100, if not more, ankle injuries. He is very familiar with the OAR. The OAR are not complicated to understand or apply. There is nothing in the evidence to suggest that Dr. Scott did not understand them or how to apply them. Dr. Scott did apply them. I find that in applying the OAR, Dr. Scott did not find bone tenderness. He determined that Mrs. Hutterli did not need an x-ray for the sole reason that she did not meet the criteria under the OAR. Given the misdiagnosis, it is possible that Dr. Scott made an error in judgment along the way in his assessment of Mrs. Hutterli’s ankle injury, but I do not find that the Plaintiffs have satisfied their burden of proving on a balance of probabilities that he fell below the accepted standard of care. He exercised the degree of care, skill and knowledge that would have been expected of a prudent emergency physician, but unfortunately, he still made a mistake.

Were the discharge instructions appropriate?

[106] The OAR suggest that patients be given written instructions to return in 5 to 7 days if pain and ability to walk are not improved. The experts in this case agreed that a timeframe of up to 10 days is more reasonable. Dr. McMillan opined that written instructions are not always provided.

[107] Mrs. Hutterli alleges that Dr. Scott fell below the accepted standard of care in failing to tell her that she should return if no improvement, and by telling her that she should be on the mend in two to three weeks.

[108] The Defendant argues that the Plaintiffs have not plead that Dr. Scott was negligent in his discharge instructions; this was a theory advanced at trial and the proper evidence was not led to properly establish the standard of care and determine whether it was breached. The Defendant argues that this is a factual issue that relates solely to causation. The Defendant is correct that the Plaintiffs did not specifically plead this allegation of negligence.

[109] Regardless of the characterization of the issue, I find that the Plaintiffs have failed to prove on a balance of probabilities that the discharge instructions were inappropriate.

[110] Dr. Scott’s note records an instruction having been given to Mrs. Hutterli to “return if no improvement”. Mrs. Hutterli does not recall Dr. Scott saying this but acknowledges that he may have communicated this to her.

[111] Dr. Scott and Mrs. Hutterli both testified that Dr. Scott discussed with Mrs. Hutterli that symptoms should be improving including her ability to walk and her pain. They disagree as to the timelines discussed.

[112] Dr. Scott’s evidence was that his note “return if no improvement” reflects his invariable practice in discharging patients to advise them that if their pain and ability to walk does not improve within 7 to 10 days, the patient should return for follow-up. Mrs. Hutterli only recalls Dr. Scott telling her that she should be “fine” in 2 to 3 weeks. Dr. Scott’s evidence is that this is not a timeframe he uses for orthopedic patients or at all, as he has no idea when assessing the injury how it will progress.

[113] Inferences that can reasonably be drawn from evidence of practice depend on the regularity of the practice and all other evidence in the case, including any other direct or circumstantial evidence that impacts on whether the evidence was followed: Taylor v. Morrison, at para. 55.

[114] Dr. Scott’s evidence is that an instruction of 7 – 10 days is his regular practice for all orthopedic patients, while 2 – 3 weeks is not. While I have no doubt that this 2 – 3 week timeframe may have arisen in the course of the conversation with Dr. Scott, in weighing all of the evidence together, I find on a balance of probabilities that Dr. Scott did instruct Mrs. Hutterli to return in 7 – 10 days if there was no improvement in her pain or ability to walk.

[115] Overall, I find that the Plaintiff has failed to demonstrate negligence on the part of Dr. Scott on a balance of probabilities.

Causation:

[116] If I am incorrect, and Dr. Scott’s care of Mrs. Hutterli did fall below the accepted standard of care, the Plaintiffs must prove on a balance of probabilities that harm was suffered by Mrs. Hutterli and that the Defendant’s substandard conduct is the actual and legal cause of that harm.

[117] The Plaintiffs argue that Mrs. Hutterli suffered irreparable damage that cannot be repaired as a result of Dr. Scott’s failure to order an x-ray and properly diagnose her on March 9. The Plaintiffs allege that Mrs. Hutterli has suffered increased cartilage damage in her ankle that places her at higher risk for osteoarthritis. The Plaintiffs further alleges that Mrs. Hutterli can no longer do what she was able to before her fall on March 8. Had she been promptly sent for an x-ray, diagnosed with a fracture, and splinted her outcome would have been materially better.

[118] In the Statement of Claim, the Plaintiffs alleged that the delay in diagnosing the injury caused a lost opportunity to be treated non-surgically and increased her risk of early osteoarthritis in the joint. At the commencement of trial, the Plaintiffs amended their pleading to strike the claim for lost opportunity to be treated non-surgically.

[119] The Defendant argues that the Plaintiffs have failed to demonstrate that Mrs. Hutterli has suffered any harm as a result of Dr. Scott’s care, let alone harm that would have been avoided had Mrs. Hutterli’s surgery occurred earlier.

The Legal Principles:

[120] The Plaintiffs must prove that any failure of the physician to meet the standard of care either caused, or materially contributed to the injury at issue. If there is no causation, there can be no liability even though there may have been a breach in the standard of care: Crawford v. Penney, at paras. 214 and 217; Hillis v. Meineri, at paras. 73 and 74.

[121] The test for showing causation is the “but for” test. The Plaintiffs must prove on a balance of probabilities that “but for” the Defendant’s negligence, the injury she now complains of would not have occurred: Hillis v. Meineri, at para. 76; Crawford v. Penney, at para. 217; Girard and Gagnon v. Windsor Regional Hospital, 2014 ONSC 87, at para. 192; Watson v. Soon, 2018 ONSC 3809, at para. 112.

[122] Whether the injury would have occurred without the Defendant’s negligence is a factual inquiry. The Plaintiffs must do more than show that mere possibility that the acts complained of materially contributed to the harm; probability must be established, or the action fails: Hillis v. Meineri, at para. 80; Cottrelle v. Gerrard, [2003] O.J. No. 4194, 67 OR (3d) 737 (CA), at para. 25; Bafaro v. Dowd, 2008 O.J. No. 3474, at para. 45.

[123] A Plaintiff does not satisfy its onus by asking a Court to speculate about what would have happened but for the physician’s error. The Plaintiff must lead evidence to establish, on a balance of probabilities, that but for the physician’s alleged negligence, a better or different outcome would have resulted: Hillis v. Meineri, at para. 81.

[124] If the Defendant’s conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the Defendant’s liability: Crawford v. Penney, at para. 217; Cottrelle v. Gerrard, at para. 20; Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 17.

[125] In a delayed diagnosis or treatment action, the Plaintiffs must establish on a balance of probabilities that the unfavourable outcome would have been avoided with prompt diagnosis and treatment: Cottrelle v. Gerrard, at para. 25; Girard, at para. 193.

[126] In determining causation when the complaint is that the Defendant failed to do something, the trier of fact must look at the facts as they existed in the moment prior to the breach of the standard of care, and then imagine what would have happened had the Defendant done what they were supposed to. The task is to consider, based on the evidence before the Court, how events should have unfolded but for the negligence: Snell v. Farrell, [1990] 2 S.C.R. 311, at para. 30; Sacks v. Ross, 2017 ONCA 773 at paras. 44-46.

[127] This leads to three basic steps that I must undertake in determining causation:

a. Determine what likely happened in reality; b. Consider what would likely have happened had the defendant not breached the standard of care. If the conclusion is that the injury would have occurred in any event, regardless of what the Defendant did or failed to do, then the Defendant did not cause the injury. If it is determined that the Plaintiff would not likely have been injured without the defendant’s act or failure to act, then the “but for” test for causation is satisfied; and c. Allocate fault among negligent parties.

Sacks v. Ross, at paras. 47-48.

[128] An unfavourable outcome must have happened; it cannot simply be hypothetical. Proof that meeting the standard of care would have afforded a chance to avoid an outcome is not sufficient: Salter et al v. Hirst, 2011 ONCA 609 at para. 14; Cottrelle v. Gerrard, at paras. 36-37.

[129] It is not enough to show that a physician’s actions increased the risk of injury to a Plaintiff or reduced his or her chance at recovery or a better outcome: Hillis v. Meineri, at para. 82 citing Laferriere v. Lawson at para. 157.

The Evidence:

Dr. Waddell:

[130] Dr. James Waddell has a career in orthopedics spanning almost 50 years. He is an orthopedic surgeon at St. Michael’s Hospital in Toronto. He is a professor of surgery at the University of Toronto. He has presented at national and international conferences. He has won numerous awards, written countless papers and journal articles, presented at numerous conferences, participated in a considerable number of research projects, performed peer review functions in various capacities and sat on editorial boards for various medical journals. His curriculum vitae is almost 100 pages long and demonstrates he is more than qualified to give opinion evidence in the area of orthopedic medicine.

[131] In arriving at his opinion, Dr. Waddell reviewed the Nipigon and Thunder Bay hospital records along with Mrs. Hutterli’s x-rays. He did not examine Mrs. Hutterli. He was asked specifically to opine on the issue of the consequence of delay in getting her to surgery.

[132] Dr. Waddell opined that Mrs. Hutterli would have had the same surgery she received in April 2017 even if she had been diagnosed earlier.

[133] While the nature of the surgery would not have been different, it was Dr. Waddell’s opinion that the potential for long-term implications would have been lessened had she been diagnosed on March 9. Specifically:

a. The amount of physiotherapy may have been decreased slightly, although the physiotherapy she received is not unusual and it is not certain that the delay in treatment prolonged the duration of physiotherapy; b. Her continuing to weight bear and the ankle not having been stabilized as a result of the missed fracture diagnosis will have caused irreparable damage to the cartilage in the ankle; and c. This cartilage damage places her at an increased risk for ongoing ankle joint problems and specifically, post-traumatic arthritis of the ankle (osteoarthritis).

[134] Dr. Waddell acknowledges that even if there was proper treatment, there likely will have been some damage to the cartilage and risk for osteoarthritis just by virtue of the nature of the injury itself. With an injury such as this, he would expect minor cartilage damage, but it would have been less than what it probably is now. The delay in treatment has resulted in an increased likelihood that more damage occurred and a greater likelihood of developing osteoarthritis.

[135] Dr. Waddell explained that osteoarthritis is a time related phenomenon. For example, you can be confident that a 20-year-old will develop it at some point. With a 70-year-old it is more difficult to say with certainty that they will develop it during their lifetime. It is probable that she will develop it within the next 15 years.

[136] Dr. Waddell was unable to say whether in fact, or how much additional cartilage damage occurred because of the delay. As Dr. Waddell explained, the only way to properly assess cartilage damage is through arthroscopy, which Mrs. Hutterli has not had. Despite the lack of arthroscopy, he is confident based on his experience that additional cartilage damage has occurred in Mrs. Hutterli’s ankle as a result of the delay in treatment and that this places her at an increased risk for osteoarthritis.

Dr. Latham:

[137] The Defendant’s expert, Dr. Warren Latham, is an orthopedic surgeon specializing in complex foot and ankle issues. He completed his residency in orthopedic surgery in 2006. He is currently taking a Masters’ degree program at Oxford University. He has extensive teaching credentials, delivered numerous academic presentations and authored on co-injuries and the impact of delay in the care and treatment.

[138] Upon reviewing the medical information available, including Mrs. Hutterli’s x-rays taken on April 7, 2017, it was Dr. Latham’s opinion that there is no evidence that she has suffered any harm or injury arising out of the delay in diagnosis. What harm there is, appears to be consistent with what is expected from an ankle fracture. Her surgery and physiotherapy were what would be expected in a care such as this. Furthermore, he sees no evidence of any cartilage damage and no evidence of arthritic changes.

[139] Dr. Latham explained that in general, a person of Mrs. Hutterli’s age who has an ankle injury is unlikely to return to pre-injury activity level. Often the outcomes for older patients are not as good as younger ones. They often suffer loss of motion, pain, swelling, lack of ability to return to pre-injury activity. It is common for them to experience some limitations in sports, climbing stairs, walking or standing for long periods. The limitations experienced by Mrs. Hutterli are attributable to the fracture and not the delay in treatment.

[140] Dr. Latham further opined that ankle fractures generally place a patient at an increased risk for osteoarthritis. Post-traumatic arthritis is reported to occur in 14-50% of all fractured ankles. There is nothing he has seen on the record to suggest that there is cartilage damage that will further increase the risk of osteoarthritis, either from the nature of the injury itself or the delay in treatment.

[141] The predictability of osteoarthritis is difficult according to Dr. Latham. Those with more severe injuries are more likely to develop it from the injury. Various factors could contribute to this, including the amount of damage to the cartilage at the time of the injury.

[142] In this case, Dr. Latham’s opinion is that one cannot quantify the difference in the prospect for osteoarthritis between having had the surgery in April as opposed to March. Dr. Latham would not go as far as Dr. Waddell in saying it is “probable” that Mrs. Hutterli will develop osteoarthritis, but he did acknowledge that it is possible.

[143] Dr. Latham acknowledged that injury to the cartilage in the ankle could possibly occur if an individual walked on it without a splint. Again, he did not say it was probable.

[144] Dr. Latham did acknowledge that normally the standard of care for surgery post-fracture diagnosis is 7 to 14 days. He further acknowledged that until surgery occurs, a patient is not left untreated; they will receive a splint and should be using crutches so as not to weight bear.

Discussion:

[145] The questions to be determined are:

a. Has Mrs. Hutterli proven on a balance of probabilities that she has suffered an injury? b. Has Mrs. Hutterli proven on a balance of probabilities that she would not have suffered the injury but for Dr. Scott’s failure to order an x-ray and properly diagnose Mrs. Hutterli on March 9, 2017?

[146] The experts agreed that with fractures of the nature suffered by Mrs. Hutterli, it is important that the patient received treatment pending surgery. The treatment consists of a splint to stabilize the joint and instructions not to bear weight without crutches or other assistance. It is agreed that because she was misdiagnosed as having an ankle sprain, Mrs. Hutterli did not receive this treatment.

[147] Despite not having received the proper treatment, I find that Mrs. Hutterli has failed to prove on a balance of probabilities that she has suffered any harm, let alone harm that could have been avoided.

[148] The evidence was that Mrs. Hutterli had her surgery on April 8, 2017 at the Thunder Bay Regional Health Sciences Centre. The surgery was completed without complications. There is no evidence to suggest that her after-care was any different than would otherwise be required for a surgery of this nature. Dr. Waddell and Dr. Latham each agreed that the three months of physiotherapy and rehabilitation that Mrs. Hutterli endured post-surgery is not unusual for surgery such as this. Dr. Latham testified that there is nothing in the medical records suggesting that Mrs. Hutterli’s recovery would have been any different had the fracture been identified on March 9.

[149] The Plaintiffs each gave evidence as to the limitations Mrs. Hutterli has faced in her day to day activities since she sustained her ankle injury. Mrs. Hutterli also complained that her left ankle now pronates, and she must wear orthotics.

[150] While there is no doubt that Mrs. Hutterli’s daily life continues to be impacted by the ankle fracture she sustained almost four years ago, there was no evidence whatsoever to show that she would not have suffered these same limitations but for the Defendant’s negligence. In fact, the opposite is true. The evidence of Dr. Latham was that it is common for a 67-year old individual who breaks her ankle to experience some loss of function, and for her not to expect to return to her pre-injury state. Dr. Latham testified that there is nothing in the medical record to suggest that any loss of function experienced by Mrs. Hutterli may be linked to the delay in receiving treatment.

[151] There was no evidence adduced at trial to support the allegation that Mrs. Hutterli’s left ankle pronation is somehow caused by the delay in diagnosis. In fact, the Plaintiffs’ expert, Dr. Waddell, candidly acknowledged that he could not comment on this issue.

[152] This leaves only the claim that Mrs. Hutterli has suffered increased damage to the cartilage in her ankle, which has placed her at an increased risk for osteoarthritis. The Plaintiffs acknowledge that the injury itself may have caused some cartilage damages, which places her at a risk for osteoarthritis, but the Defendant’s negligence has significantly increased this chance.

[153] The Defendant argues that this claim is purely hypothetical and speculative as there is no evidence that Mrs. Hutterli has in fact suffered either cartilage damage or that she has osteoarthritis. The Plaintiff’s claim is akin to a “loss of chance” claim. The Defendant argues that theoretical damages are non-compensable. The Defendant argues that the Plaintiffs have failed to satisfy their burden to prove harm that was suffered by Mrs. Hutterli as a result of the substandard care of Dr. Scott.

[154] Mrs. Hutterli testified that as of the time of trial, approximately 3 years post injury, she does not have osteoarthritis in her foot or ankle.

[155] There is no evidence in the medical records that Mrs. Hutterli has suffered cartilage damage or has needed any medical attention associated with it. Mrs. Hutterli has not had arthroscopy to ascertain whether there is cartilage damage. Mrs. Hutterli’s own evidence was that she has not sought any medical attention relating to her foot or ankle since her physiotherapy ended in 2017.

[156] Dr. Waddell’s opinion was that there is a substantial probability that Mrs. Hutterli suffered cartilage damage in the month between March 9, 2017 and April 8, 2019 as a result of the lack of treatment for a fracture. It is probable that she will develop osteoarthritis within the next 15 years.

[157] Dr. Latham did not agree. While acknowledging that it is possible that the lack of treatment caused additional cartilage damage, Dr. Latham opined that the most probable cause of any cartilage damage that might exist is the ankle fracture itself.

[158] With respect to the increased risk of developing osteoarthritis over and above what would otherwise be expected from the fracture itself, Dr. Waddell was unable to quantify the risk.

[159] At law, an injury must take place for causation to be established and for damages to be awarded. The risk of a negative development is not compensable and will not be sufficient to meet the “but for” test for causation.

[160] The Plaintiffs argue that actual damage has been suffered, that is not simply theoretical or “loss of chance”. The damage complained of is increased cartilage damage. The consequence of that damage is the theoretical increased risk of osteoarthritis.

[161] The evidence of each of Dr. Waddell and Dr. Latham was compelling. As with the causation experts, both experts testified in a clear manner and without an air of advocacy. Each expert provided a reasonable basis for their conclusions. All things being equal as between the experts, and there being no evidence in the medical records filed of any cartilage damage, it cannot be said that Mrs. Hutterli has satisfied her burden of proving she has suffered harm as a result of the substandard care of Dr. Scott.

[162] If I am incorrect in this conclusion, the fact that Mrs. Hutterli may have already had some cartilage damage as a result of the injury itself, would not absolve Dr. Scott of liability. The evidence of Dr. Waddell was that the cartilage damage as a result of the injury itself would have been expected to be relatively minor as compared to the damage caused by not receiving the proper treatment.

[163] I also find that if I am incorrect in my conclusion that the Plaintiff has not proven she suffered harm as a result of Dr. Scott’s actions, I would not find contributory negligence on the part of Mrs. Hutterli. The Defendant argues that had Mrs. Hutterli returned in 7 – 10 days as instructed and not walked on her ankle for a month, chances are she would have been properly diagnosed and treated, which would have reduced the possibility for harm arising out of the initial misdiagnosis. While this may be true, what this argument fails to appreciate is that but for the misdiagnosis, proper treatment would have been provided to Mrs. Hutterli and a referral made for surgery. The 7 to 10-day return time would have been a moot point.

Damages:

[164] In light of my decisions with respect to standard of care, harm and causation, it is not necessary to assess damages. I am also not in a position to assess general damages in the event my conclusions are correct. The only evidence as to the consequence of increased cartilage damage is the increased risk of developing osteoarthritis. There was no evidence led as to the consequences of developing osteoarthritis and the impact this will have on Mrs. Hutterli.

[165] The only special damages claimed by the Plaintiff was for orthotics. Had I found in Mrs. Hutterli’s favour with respect to standard of care, harm and causation, I would not have allowed this claim. The evidence was that Mrs. Hutterli has been using orthotics since 2003 for both feet. She has not incurred any increased expense regarding her orthotics as a result of harm stemming from the delay in diagnosis.

[166] Had I found negligence I would not have awarded the $5,000 sought for Mr. Hutterli’s Family Law Act claim. Mr. Hutterli’s evidence was that his relationship with Mrs. Hutterli was unchanged from prior to March 9, 2017. With respect to any additional responsibilities he now has around the home, there was no evidence to support a conclusion that this is related to anything other than the fracture itself.

[167] If the parties cannot agree on costs, written submissions shall be provided. Written submissions shall be limited to five pages, double-spaced excluding attachments. The party claiming costs shall deliver their submissions within 30 days, failing which costs shall be deemed to be resolved. The responding party shall respond 15 days thereafter. Any reply shall be limited to two pages, double-spaced and shall be deliver 10 days after the response.

[168] The action is dismissed.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

Released: February 24, 2021

COURT FILE NO.: CV-17-0592-000 DATE: 2021-02-24 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Daniele Marthe Hutterli and Charles Hutterli Plaintiffs - and - Douglas Frederick Scott Defendant JUDGMENT Nieckarz J. Released: February 24, 2021 /lvp