ONTARIO

SUPERIOR COURT OF JUSTICE

OSHAWA COURT FILE NO.: 31089/04
DATE: 2012-01-27

B E T W E E N:

KIMBERLY A. COOPER, MAURICE J. RICHARD, WAYNE E. RICHARD, GARNET G. RICHARD and DARYL T. RICHARD

Gayle T. Brock and Robert Durante for the Plaintiffs

Plaintiffs

• AND -

DR. A. VALIULIS

Eli. S. Lederman and Ian Macleod for the Defendant

HEARD: November 7, 8, 9,14, 15,16, 17, 21 and 22, 2011

REASONS FOR JUDGMENT

Shaughnessy J.

1On December 20, 2002, the defendant performed a revisional surgical operation in the form of a gastric bypass to assist the plaintiff, Kimberly Cooper, to counteract morbid obesity. Post-operatively, the plaintiff encountered numerous medical complications. Between December 29, 2002 and June 27, 2003, the plaintiff was re-admitted to the hospital three times. She underwent four surgeries for a gastrostomy tube leak; abscesses from ongoing infection; anastomotic dehiscence (separation of the surgical junction between the small pouch and the small intestine); a gastrointestinal fistula and a recurring bleeding stomach ulcer that ultimately led to a total gastrectomy in which her stomach was removed.

2Counsel advised at the commencement of the trial that the issues of causation and damages had been agreed upon subject to the determination of the issue of liability.

3The issue in this trial is reduced to whether the defendant, Dr. Algis Valiulis, fell below the standard of care in determining that Kimberly Cooper was a candidate for revision bariatric surgery, and in proceeding with the surgery on December 20, 2002.

Background Circumstances

4Kimberly Cooper is 52 years of age. She is married to Maurice Richard and they have three adult sons who are named as plaintiffs in this action. Ms. Cooper began her full time working career in 1976. She was employed by the Ministry of Corrections in a correctional school from 1976 to 2001. She also worked at a second job with Oshawa/Clarington Community Living from 1998 to 2002. After leaving her employment with the Ministry of Corrections in 2001, she applied and was hired by the Durham Catholic School Board as an Educational Assistant (E.A.). She began that employment on a part time or on call basis, and then was hired full time in September, 2002.

5The medical history of the plaintiff is significant and relevant to the issue in this proceeding. Dr. Anthony D’ Angelo has been the plaintiff’s family doctor since 1991. The plaintiff weighed approximately 130 lbs. when she was 20 years of age. Following the birth of three sons between 1979 and 1987, she steadily gained weight; such that by 1988 she weighed 240 pounds. The plaintiff is 5 ft. 4 in. in height.

Weight Reduction

6The plaintiff, in an 8-9 year period prior to 1988, gained weight despite numerous methods of weight reduction; including diets, weight loss clinics, exercise classes, medications, injection therapy as well as self-help video tapes. She was not successful in keeping the weight off for any appreciable time with any of these modalities.

Vertical Gastric Partitioning February 2, 1988

7On November 26, 1987, the plaintiff was referred by her then family doctor to Dr. Douglas Salmon at Centenary Hospital in Scarborough, Ontario. Dr. Salmon took a history from the plaintiff at the initial consultation. The history detailed the plaintiff’s previous unsuccessful weight reduction methods. The consultation report of Dr. Salmon dated December 1, 1987, details that the plaintiff reported shortness of breath on exertion and swelling of her ankles. Her weight was recorded as 242.9 pounds. The report also states that the plaintiff reported joint pain specifically in her back and legs and that she had occasional stress incontinence. Following this consultation, the plaintiff was sent for blood tests, ultra sound and x-rays, as well as a consultation with an internist.

8The plaintiff testified that she recalls attending the appointment with Dr. Salmon, and that she had to walk up two flights of stairs to his office, which she states accounts for the reference to shortness of breath on that visit. She also testified that she told Dr. Salmon that she had occasional flares of back and related hip pain, but “it was nothing to complain about.” She testified that she had twisted her ankle a short time before the consultation with Dr. Salmon and it was still bothering her in November, 1987. She stated that the incontinence related to occasions when she coughed while suffering from pneumonia or bronchitis.

9On February 3, 1988 at Centenary Hospital, Dr. Salmon performed a vertical banded gastroplasty (VBG) or also referred to as a vertical gastric partitioning (VGP) of the plaintiff’s stomach. This operation commonly referred to as a stapling of the stomach, involves an incision of the upper abdomen to access the body of the stomach. A hole is punched in the stomach approximately five centimetres from the junction of the esophagus and the stomach. The surgeon staples around this punched circular window in the body of the stomach and as well staples are placed along the upper portion of the body of the stomach; again in close proximity to the gastro-esophageal junction. A Teflon mesh is placed around the lesser curvature of the stomach which is restrictive, in that it creates an opening which is only 1.1 centimetres in diameter. In layman’s terms the stapling creates a small upper pouch about the size of a medium egg which can hold about 30 ccs. of fluid. Food travels down the esophagus and enters this small pouch and then travels through the pouch to the Teflon mesh and exits through the small mesh opening into the lower stomach.

10The VBG was then a restrictive operation which had two components. It made the stomach smaller and it made the exit from the stomach smaller. The principle behind the surgery is that the patient would feel full quickly by eating a smaller volume of food; and that food would sit in the stomach longer because it could not pass into the rest of the stomach or the intestinal tract because of the narrowing. Therefore, patients would feel full longer and this would restrict the volume of food that the person would consume.

11The plaintiff testified that the risks of the operation were explained to her by Dr. Salmon, and she was advised that her eating regimen following the operation would have to change, such that she would eat smaller portions and eat more often. The plaintiff states she was given little or no other dietary consultation or advice post-operatively. She did testify that she understood that if she did not follow the dietary regime, the result would be failure in relation to the VBG procedure and she would regain weight as the stomach expanded.

12The plaintiff reported to her family doctor, Dr. D’ Angelo, in March, 1991, that following the VBG procedure in February, 1988, her weight dropped from 268 pounds to 130 pounds. However, she advised Dr. D ‘Angelo that in recent times she had gained 70 pounds. The medical records of the family doctor and the plaintiff’s recollection are that she weighed 203 pounds at her March 13, 2001 visit, and 206 pounds at the May 30, 2001 visit. Her evidence is that her weight gain continued and the medical records confirm the following information:

Date Weight (lbs)

June 26/91 208
September 23/91 212
October 11/91 212
December 4/91 220
March 25/92 228
May 13/92 230
October 30/92 228
October 20/94 215
June 29/95 230
July 15/97 218
March 27/98 227
November 2/99 225
November 30/99 217
January 10/00 212
October 18/00 220
June 20/01 230
March 21/02 230
May 15/02 232
May 22/02 240
July 24/02 240
November 4/02 240
December 3, 2002 236
December 20, 2002 236

(…continued verbatim in the same format and wording as the source decision…)