ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 05-CV-29868

BETWEEN:

NADIA FRIEND
Plaintiff

– and –

DR. JAMES M. WATTERS, DR. J. SMITH, THE OTTAWA HOSPITAL (CIVIC CAMPUS), DR. IAN ZUNDER, DR. JOHANNES PENNING, DR. GORDON REID and MARK RAYMOND FARRELL
Defendants

Richard R. Marks, for the Plaintiff

Paul Millican and Stephanie Pearce, for the Defendants

HEARD: December 1, 2, 5, 6, 7 and 8, 2011

REASONS FOR JUDGMENT

Toscano roccamo J.

Overview

[ 1 ] On August 12, 2003, the Plaintiff Nadia Friend (“Ms. Friend”) had surgery at the Ottawa Hospital Civic Campus (“Ottawa Hospital”) to remove a suspected cancerous lesion in her bowel. The Defendant Dr. James M. Watters (“Dr. Watters”) performed the surgery. Post-operative pain was managed by analgesia administered by epidural catheter installed by the Defendant Dr. Julia Smith (“Dr. Smith”). After the surgery, Ms. Friend was seen by Dr. Watters, as well as the members of the Acute Pain Service of the Ottawa Hospital (“APS”) including nurses and the Defendant anaesthetists Dr. Ian Zunder (“Dr. Zunder”), Dr. Gordon Reid (“Dr. Reid”), and Dr. Mark Farrell (“Dr. Farrell”). They are all colleagues of the Defendant Dr. Johannes Penning (“Dr. Penning”), who at all times material was Director of the APS. Following her surgery, Ms. Friend developed an epidural abscess and required more surgery to drain the abscess on August 18, 2003.

[ 2 ] Ms. Friend alleges that, as a result of the acts or omissions of the Defendants, she has been left with disabling chronic pain. She now claims damages against the Defendant doctors both for breach of the standard of care and for failure to obtain her informed consent to the administration of epidural analgesia.

[ 3 ] Ms. Friend has settled her claim against the Ottawa Hospital and nurses but pursues her action for damages against the doctors.

[ 4 ] The Defendant doctors move under Rule 20 for summary judgment dismissing all or part of the action on the grounds that:

(1) Ms. Friend has failed to sue Dr. Watters and Dr. Smith within the prescribed limitation period;

(2) She has failed to make out elements of liability including breach of the standard of care for diagnosis and treatment of the epidural catheter infection, failure to obtain informed consent to the use of epidural catheter, and causation; and

(3) Her settlement with the Ottawa Hospital has relieved Dr. Penning as Director of the APS of liability, so therefore, she cannot now continue her action against him as physician in the APS.

The Issues

[ 5 ] There is no great divide between the parties as to the key issues involved in this case. First, this case raises a question as to whether the Defendants met the standard of care by failing to undertake timely diagnosis and treatment of a post-operative infection. The Plaintiff alleges that, had the Defendants examined her daily for infection and ordered blood work beyond August 14, 2003, they would have identified a developing infection and could have treated it in time to spare her additional surgery and minimize ongoing ill-effects of the abscess.

[ 6 ] Secondly, this action raises the question of whether the Defendants met the standard of care to inform the Plaintiff about the increased risks of infection associated with use of an epidural catheter in potentially immunocompromised patients such as Ms. Friend with a suspected history of cancer and alcoholism. Related to this question is whether the Defendants met the standard of care to inform her of risks of infection arising from prolonged use of the epidural catheter where there are available alternatives such as intravenous analgesia and oral medication which carry with them no risk of infection. The risks of epidural abscess may lead in rare cases to neurological damage including paraplegia and quadriplegia and even potentially fatal consequences.

Background Facts

[ 7 ] Ms. Friend first consulted with Dr. Watters, a general surgeon, on July 16, 2003, on referral from her gastroenterologist, Dr. Dube. Following this consultation, she agreed to undergo the removal of the right side of her colon where previous investigation suggested the presence of a cancerous lesion. Prior to the surgery, Dr. Watters discussed with Ms. Friend the importance of reducing her alcohol intake and smoking. Medical investigation had revealed fatty changes to Ms. Friend’s liver consistent with chronic use of alcohol.

[ 8 ] On July 29, 2003, prior to her admission for bowel resection, Ms. Friend had an anaesthetic consultation with Dr. Lui and Dr. Arab, neither of whom are parties to these proceedings. They recommended that she have general anaesthesia for the surgery and post-surgical anaesthesia for pain management administered through an epidural catheter. Alternatives to an epidural catheter are intravenous delivery, intramuscular injections, or oral medication once the patient has resumed bowel function. The hospital record of this pre-admission consultation confirms Ms. Friend agreed to the epidural if there were no contraindications.

[ 9 ] On Tuesday August 12, 2003, Ms. Friend was admitted to the Ottawa Hospital for surgery as scheduled. Before her surgery, she met with Dr. Smith, an anaesthetist. Dr. Smith does not recall the meeting. However, her usual practice includes reviewing the risks and complications of epidural anaesthesia. Among these risks, she would have noted the potential for the development of deep-seated back pain. Neither Ms. Friend nor her husband, Pat Czupryniak (Mr. Czupryniak), recall receiving any advice from Dr. Smith or any of the other Defendant anaesthetists about the risks associated with the epidural catheter.

[ 10 ] After initial difficulty, Dr. Smith inserted the catheter, and Dr. Watters subsequently performed the bowel resection without incident.

[ 11 ] After the bowel surgery, Ms. Friend was transferred to the recovery room. Dr. Smith made an order for the APS to follow up with Ms. Friend for post-operative care. She states that her responsibilities towards Ms. Friend ended at this point. Dr. Watters continued to attend daily on Ms. Friend between August 12 and August 18, 2003, notwithstanding the involvement of the APS.

[ 12 ] Dr. Zunder was the designated APS anaesthetist from Wednesday August 13, 2003, until Friday August 15, 2003. He saw Ms. Friend on each of these days. On Friday, Dr. Zunder determined that it was too early to start her on oral analgesia, and no weaning from the catheter was started.

[ 13 ] On the morning of Saturday August 16, 2003, Dr. Watters saw Ms. Friend and wrote an order that the APS “may wean and d/c epidural.” At his examination, he explained that this order meant only that he was comfortable with Ms. Friend making the transition to oral pain medication when deemed appropriate by the APS, not that his order was to take effect immediately.

[ 14 ] On Saturday August 16, 2003, Dr. Reid was the designated APS anaesthetist. After Dr. Watters’ attendance upon Ms. Friend, he attended on her between 9:00 a.m. and noon and noted no problems with the epidural. He did not read her chart or examine either her wound or the site of the catheter.

[ 15 ] At the time of Ms. Friend’s surgery, the policy of the APS on Sundays was that APS patients were seen by the first on-call anaesthetist only if he or she had time. This anaesthetist was responsible for all aesthesia needs in the hospital. On Sunday August 17, 2003, Dr. Farrell was the first on-call anaesthetist, but he was otherwise occupied in the operating room all day. He did not attend on Ms. Friend, nor did he read her chart.

[ 16 ] Dr. Watters saw Ms. Friend on Sunday August 17, 2003, and wrote a second order to wean and discontinue the epidural. Again, the epidural catheter remained in place.

[ 17 ] It is recognized among the Defendant anaesthetists that the risk of developing an epidural abscess increases the longer the catheter is left in. Nonetheless, Ms. Friend’s catheter remained in place for seven days until Monday August 18, 2003.

[ 18 ] On Monday August 18, 2003, a surgical resident who is not a party to these proceedings observed signs of infection at Ms. Friend’s catheter site. Antibiotics were started, and an MRI subsequently revealed an epidural abscess at the catheter site. Dr. Penning saw her later in the evening of August 18, 2003, in his role as first on-call anaesthetist.

[ 19 ] On Tuesday August 19, 2003, Dr. Belanger performed a laminectomy to drain the abscess and remove pressure from the spinal cord. He is not a party to these proceedings.

[ 20 ] Ms. Friend remained in the hospital until August 27, 2003. She was readmitted between September 11, 2003, and September 19, 2003, because of complications relating to both her original surgery and the laminectomy.

[ 21 ] She has since complained of severe and chronic pain affecting her ability to work and causing loss of enjoyment of life.

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Madam Justice Giovanna Toscano Roccamo

Released: January 19, 2012

COURT FILE NO.: 05-CV-29868

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: NADIA FRIEND Plaintiff – and – DR. JAMES M. WATTERS, DR. J. SMITH, THE OTTAWA HOSPITAL (CIVIC CAMPUS), DR. IAN ZUNDER, DR. JOHANNES PENNING, DR. GORDON REID and MARK RAYMOND FARRELL Defendants REASONS FOR JUDGMENT Madam Justice Giovanna Toscano Roccamo

Released: January 19, 2012