minicounsel

COURT FILE NO.: CV-10-0101

DATE: 2013-03-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Brigid (Breda) Mary Hewitson and Robbie Alexander Hewitson

Robert E. Somerleigh, for the Plaintiffs

Plaintiffs

and -

Terry Trusdale

Michael E. Royce and Ian MacLeod, for the Defendant

Defendant

HEARD: August 13, 14, 15, 16, 17 and 24, 2012, at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Reasons For Judgment

1On April 29, 2008, the plaintiff, Brigid (Breda) Mary Hewitson, underwent a procedure, performed by the defendant physician, Dr. Terry Trusdale, for removal of a varicose vein in the area of her left ankle. The procedure is known as ambulatory phlebectomy. During the procedure, a strand or fascicle of sural nerve was inadvertently removed.

2The plaintiffs allege that Dr. Trusdale was negligent in two aspects: firstly, that he should not have recommended ambulatory phlebectomy as a treatment for varicose veins in the area of the ankle, and secondly, that his execution of the procedure fell below the acceptable standard of care.

3Ms. Hewitson experienced significant pain on the removal of the sural nerve fascicle. She continues to experience shooting pain, extreme sensitivity and some sensory loss in the area of her left ankle and lower front foot, which will be permanent. The plaintiff, Robbie Alexander Hewitson, brings his claim under the Family Law Act, as the husband of Ms. Hewitson.

4The parties have agreed on damages of $128,975.00, inclusive of pre-judgment interest and the subrogated interest of the Ontario Health Insurance Plan, but exclusive of costs and disbursements. The sole issue to be determined is whether Dr. Trusdale was negligent.

Background

(i) Varicose Veins and Their Treatment

5Veins are blood vessels that carry blood back to the heart. Veins contain valves that direct blood flow in one direction, towards the heart. If the valves do not function properly, blood can flow backwards in the veins and pool. This backward flow is described as reflux. The pressure of the pooling forces the walls of the veins outward, which can result in enlarged, bulging, twisted veins. Such veins are described as varicose veins. Varicose veins occur most often in the legs. Varicose veins can cause pain, fatigue and can be unsightly.

6The flow of blood in the veins can be detected by Doppler ultrasound and by Duplex ultrasound. Doppler ultrasound waves detect the flow of the blood which can be heard by the operator of the ultrasound equipment. Duplex ultrasound allows the operator to see the blood vessel on a screen and observe the direction of the flow of blood.

7One of the veins in the leg is the small saphenous vein. The small saphenous vein is a superficial vein, which means it is close to the surface of the skin. The small saphenous vein begins on the lateral or outer side of the foot and runs lateral to the Achilles tendon, along the posterior of the lateral malleolus, that is, along the back of the outside bony prominence of the ankle, up into the calf.

8One of the sensory nerves in the leg is the sural nerve. The sural nerve is very closely apposed to the small saphenous vein, from the area of the ankle up to the lower third of the calf.

9The small saphenous vein and the sural nerve are involved in this litigation.

10Dr. Trusdale has operated a clinic in Thunder Bay since 1997 for the treatment of varicose veins and venous diseases of the legs. Ms. Hewitson, who is 53 years of age, had a history of varicose veins in her leg. In 2004, Ms. Hewitson was referred by her family doctor to Dr. Trusdale.

11There were four treatment options for varicose veins that Dr. Trusdale could consider for his patients:

Compression stockings:

A compression stocking is worn on the leg where the varicose vein is to be treated. It is intended to put pressure on the leg to push blood back up the leg, taking pressure off the vein that is caused by the reflux in the vein.

Scleroltherapy:

As discussed in a brochure from Dr. Trusdale’s vein clinic, sclerotherapy involves “… injecting salt like solutions into the veins with a needle. The injected medication irritates the walls of the veins which in turn causes a localized inflammation. The inflammation causes the vein to collapse. The collapsed vein is then slowly reabsorbed by the body.”

Ambulatory Phlebectomy:

As discussed in an article by J.A. Olivencia M.D., “Complication of Ambulatory Phlebectomy” (1987) (marked as Exhibit 7 at trial), the procedure of ambulatory phlebectomy “… entails a series of small micro incisions over the involved varicose vein. The vein is exteriorized by a hook especially designed for this purpose. Once exposed, the vein is then transacted and ‘dissected’ both distally and proximally with the use of mosquito clamps… A compression dressing is then applied on the operated extremity.” Dr. Trusdale testified that he recognized this article as authoritative.

Surgical Removal of Vein:

If this procedure is chosen, Dr. Trusdale refers the patient to a surgeon. The diseased portion of the vein is removed (stripped) and the vein is tied off (ligated).

(ii) Dr. Trusdale’s Education and Experience

12Dr. Trusdale graduated in medicine from the University of Glasgow in 1973. He immigrated to Canada in 1975. In 1976, he passed his Canadian Licensing Examination. He received certification in Family Medicine in 1981 and did a residency in Emergency Medicine in 1985-1986. In 2005, he became a Fellow of the College of Family Physicians. From November 1996 to April 1997, he trained in the management of venous diseases of the leg under a colleague with whom he worked in the emergency department, Dr. Stephen Lutzak. Dr. Lutzak ran a vein clinic three to four times per week. During this training, Dr. Trusdale performed only scleroltherapy, not ambulatory phlebectomy. Dr. Trusdale estimated that during this time he had approximately 2,000 patient encounters. Dr. Lutzak moved to Nashville, Tennessee in April 1997 and Dr. Trusdale then took over Dr. Lutzak’s practice. Since 1997, Dr. Trusdale has operated a clinic for the specialized treatment of varicose veins and venous diseases of the leg. In 1997, Dr. Trusdale became a member of the Canadian Society of Phlebology (phlebology is the study and treatment of veins), and continues as a member. From 1997 to 2005, he was a member of the American College of Phlebology. Both groups are professional associations, as distinguished from professional licensing or regulatory bodies.

13In February 1999, Dr. Lutzak returned to Thunder Bay for a week to provide training in ambulatory phlebectomy for Dr. Trusdale. This involved hands-on training on approximately 25 patients. In 2000, Dr. Trusdale, who was now doing ambulatory phlebectomies, travelled to Nashville for further training in ambulatory phlebectomy procedures under Dr. Lutzak. Dr. Trusdale could not do hands-on ambulatory phlebectomy during this training because he was not licenced as a doctor in the United States. He testified that he observed approximately 30 ambulatory phlebectomies during this training.

14At trial, a letter dated August 2, 2012, from Dr. Lutzak was entered as Exhibit 11. Dr. Lutzak wrote about training Dr. Trusdale. Dr. Lutzak stated that during his training Dr. Trusdale demonstrated “full clinical competence in the technique of ambulatory phlebectomy.” Dr. Lutzak stated that from 1992 to 1997 he personally performed more than 50,000 vein procedures and that he performs approximately 1,700 ambulatory phlebectomies per year.

15There is no formal training in Canada in medical schools for scleroltherapy or ambulatory phlebectomy, apart from the training which a general surgeon or vascular surgeon may receive during the course of their residency or surgical training.

16Dr. Trusdale testified that as of April 2008, he had performed at least 1,200 ambulatory phlebectomy procedures, doing four to five per week, 42 weeks per year. Dr. Trusdale estimated that of those 1,200 procedures, 30 would have been ambulatory phlebectomies in the area of the ankle. He estimated that of the 1200 ambulatory phlebectomies he had performed by April 2008, perhaps six to eight had left permanent numbness, but none had left any other permanent nerve damage like that which Ms. Hewitson ultimately suffered. None of the six to eight patients who had suffered permanent numbness suffered it as a result of ambulatory phlebectomies in the area of the ankle.

17Heather Dawn Goldstein is a registered nurse. She assists Dr. Trusdale in his vein clinic. She started on a part-time basis in 2000 and on a full-time basis in 2002. She started assisting Dr. Trusdale with ambulatory phlebectomies in 2002. The vein clinic moved to St. Joseph’s Hospital in 2004. Ms. Goldstein said that after the clinic moved to St. Joseph’s Hospital, Dr. Trusdale usually did four, sometimes six, ambulatory phlebectomies per week, which she estimated to be 100 to 135 per year. Between 2002 and 2004, she thought that maybe they did one ambulatory phlebectomy per week. She estimated that she had assisted Dr. Trusdale with 20, or 30 or 50 ambulatory phlebectomies before the move to St. Joseph’s Hospital. She estimated that before April 2008, she had assisted Dr. Trusdale with four ambulatory phlebectomies at the level of the ankle. She said that before she started with Dr. Trusdale, there was a nurse who preceded her who assisted Dr. Trusdale with ambulatory phlebectomies.

(iii) Attendance of Ms. Hewitson on Dr. Trusdale before April 29, 2008

18Over the course of approximately three years after Ms. Hewitson was referred to Dr. Trusdale by her family doctor in 2004, Dr. Trusdale treated Ms. Hewitson for her varicose veins on approximately eight occasions with sclerotherapy. He also prescribed a compression stocking for her in 2004.

19On December 2007, Dr. Trusdale again saw Ms. Hewitson for complaints about her varicose veins. He arranged for Doppler and Duplex ultrasounds of both legs. The ultrasounds showed that reflux was present in the greater saphenous vein of the right leg and in the small saphenous vein of the left leg. Dr. Trusdale concluded that there was inadequate blood flow in the small saphenous vein of Ms. Hewitson’s left leg, extending from behind her knee down to her ankle.

20In December 2007, after the ultrasounds were done, Dr. Trusdale treated Ms. Hewitson with a compression stocking, extending above the left knee. Ms. Hewitson wore the compression stocking until March 2008 without resolving the problem. On March 13, 2008, Ms. Hewitson met with Dr. Trusdale and expressed concern about the varicose vein in the area of her lateral left ankle. The vein was in the distribution of veins from the small saphenous vein. At trial, there was no evidence that Ms. Hewitson’s concerns were for other than cosmetic reasons.

21Dr. Trusdale recommended to Ms. Hewitson that she should have surgery on the small saphenous vein behind her knee to strip and tie off the vein. Dr. Trusdale testified that this would have been the “definitive” treatment because it would have treated the underlying problem of reflux which caused the varicose vein in the area of the ankle.

22Ms. Hewitson did not want to undergo this surgery.

23Dr. Trusdale testified that because Ms. Hewitson did not want surgery, and because the compression stocking had been tried and had not resolved the problem, there were three options left: scleroltherapy, ambulatory phlebectomy or doing nothing. Dr. Trusdale recommended ambulatory phlebectomy. He testified that because Ms. Hewitson had rejected surgical stripping and ligation, ambulatory phlebectomy was, in his opinion, the best option. He testified that he had previously done both scleroltherapy and ambulatory phlebectomy in the ankle area. He said that he had excellent results with ambulatory phlebectomy in the ankle area, whereas with scleroltherapy, “a lot” of people had experienced irritation over the ankle caused when the vein, which had shrivelled up after the injection, rubbed against stockings and shoes. He testified that, for a moderate number of patients, sclerotherapy did not work because the vein did not close. He said that ambulatory phlebectomy had an advantage over sclerotherapy because the vein was taken out and could not come back. He said that there were rare risks in both procedures, such as infection and blood clots, that would balance out. He said that scleroltherapy carried a rare risk of anaphylactic shock following an allergic reaction to the injected medications. Although Ms. Hewitson had never had an allergic reaction in her previous eight scleroltherapy treatments, Dr. Trusdale said that this did not mean it could never happen to her. He said that it would be extremely rare to damage the nerve in the area of the ankle. He testified that he discussed the risks with Ms. Hewitson and gave her a handout setting out the risks. The parties agree that consent is not an issue in this case.

24In cross-examination, Dr. Trusdale agreed with the following statement contained in two articles on complications of ambulatory phlebectomy written by Dr. Olivencia (Exhibit 7, p. 53 and Exhibit 8, p. 164): “Nerve damage is most likely to occur when dissecting in and around the ankle.” This occurs because the sural nerve and the small saphenous vein are closely apposed to one another in the ankle area.

25Dr. Trusdale also agreed with the following statement contained in an article on complications of ambulatory phlebectomy (Exhibit 6, p. 953) by Albert-Adrien Ramelet M.D., whom Dr. Trusdale recognized as an authority on ambulatory phlebectomy (Exhibit 6, p. 953):

“Problematic nerve injuries are principally observed in phlebectomies of the lesser saphenous vein. N. suralic may be damaged with the hook (causing paresthesia) or sectioned (with definitive sensitivity loss of a large cutaneous territory). The veins of the calf must therefore be operated on with maximal caution.”

26Dr. Sanjay Kundu testified as the plaintiff’s medical expert. Dr. Trusdale agreed with the following statement in an article by Dr. Kundu for the standards committee of the Society of Interventional Radiology (Exhibit 10, p. 9):

“AP (ambulatory phlebectomy) in the ankle or foot region should only be performed after significant experience has been obtained in other areas of the lower extremity. Special care must be paid to these areas to avoid neurovascular injury. The hooking technique should be much more gentle and deliberate than in other areas in the lower extremity. The foot should be dorsiflexed to decrease tension of the anatomic structures. After the vein is hooked it should come out easily. If the patient experiences pain or removal of the vein requires a large amount of tension, it is a strong possibility that a different structure such has been hooked. The hook should then be removed and reinserted and another attempt made. Aggressive insertion of the hook into the microincision and ‘hooking’ of structures should be avoided to prevent complications.”

27Dr. Trusdale also agreed with this statement in Dr. Kundu’s article (Exhibit 10 p. 10-11):

“Intraprocedure manipulation of a nerve is very painful and may cause transient post procedural paresthesias. If a patient discusses pain on insertion of the AP hook or upon exteriorization of “vein”, the structure should be released and the AP hook reinserted to prevent nerve damage. If nerve injuries are observed, they typically occur in AP of the small saphenous vein as the sural nerve may be damaged by the hook, leading to paresthesias, or transected with permanent complete sensory loss over a large cutaneous area.”

(iv) Ambulatory Phlebectomy – April 29, 2008

28Following discussions with Dr. Trusdale on March 26, 2008, Ms. Hewitson was booked for ambulatory phlebectomy at Dr. Trusdale’s vein clinic on April 29, 2008.

29Ms. Hewitson came to Dr. Trusdale’s vein clinic on April 29, 2008 at approximately 6:00 – 6:30 pm. She was seen by Ms. Goldstein who reviewed the ambulatory phlebectomy procedure with her. Ms. Hewitson changed into shorts. She stood on a stool. Dr. Trusdale marked the vein in question with a permanent marker, making small crosses at the four or five points where he would later make incisions on the skin to remove the vein. Dr. Trusdale then left and Ms. Goldstein positioned Ms. Hewitson on a table. Ms. Hewitson lay on her right side. Ms. Goldstein took a syringe and measured out 10 cc of lidocaine, a local anaesthetic. She injected the skin at each of the areas marked by Dr. Trusdale, putting in the local anaesthetic in small amounts on both sides of the markings, parallel to the skin surface to raise small blebs to numb the area. Ms. Goldstein said that she used about 1 cc of the lidocaine to do the blebs. She then put the lidocaine in a larger needle, injecting slowly, parallel to the skin, working back down to the ankle, finishing the 10 cc dosage.

30Ms. Goldstein testified that she was aware that the sural nerve was in the area of the injection and that the local anaesthetic was injected in proximity to that nerve. She testified that she decided how much local anaesthetic to put in. She said the calculation of 10 cc was up to her. She said that she was aware of the standards of practice that require a doctor to set out the types, location and amount of local anaesthetic, but that Dr. Trusdale left it to her discretion, which she acknowledged would not comply with the standard of practice.

31Dr. Trusdale testified that he gave freedom to Ms. Goldstein to use up to 30 cc of local anaesthetic, which he said was within her scope of practice as a registered nurse. He stated that 10 ccs would be standard for an injection in the area of the ankle. He did not agree with the evidence of Dr. Kundu that 10 cc was a large amount lidocaine for this area. Dr. Trusdale testified that 10 cc was the lowest amount that he used for this area. He said that he had previously brought in an anaesthetist to show Ms. Goldstein how to do an injection of local anaesthetic and that he himself had given instructions to her on injections.

32Dr. Trusdale agreed that there was little tissue depth at the level of the ankle and that the nerve and vein were close to the skin. He said that the purpose of injecting the local anaesthetic was to affect the nerves subcutaneously. He agreed that if a local anaesthetic were to be given in an area where the nerve ran deeper in the tissue, the nerve would be less likely to be affected by the local anaesthetic.

33Dr. Trusdale testified that although the varicose vein in question was over Ms. Hewitson’s ankle, the vein ran up the lateral side of her leg, one-third of the way up her calf where it then went deeper into the leg. He said that although he was taking the vein out just above the ankle bone (the malleolus), he would go higher up the lower left leg to get the vein.

34After Ms. Goldstein had prepped and draped Ms. Hewitson’s left leg, Dr. Trusdale returned to the room. Ms. Hewitson lay on her right side, with her legs extended, her left ankle on top. She said she could see just a bit of Dr. Trusdale on her right and could see a bit of movement of his hand or his arm. She could not see Ms. Goldstein.

35Dr. Trusdale testified that, initially, the ambulatory phlebectomy did not differ from what he experienced in his usual practice. He testified that he would check that the local anaesthetic had taken effect by touching Ms. Hewitson’s skin with a surgical instrument. He would then take the tip of a small scalpel and make a very small hole on the top of the series of four or five crosses that he had marked on Ms. Hewitson’s lower leg over the vein. He would take a Muller #2 hook, which is a surgical hook specially designed for this procedure. He would insert the hook through the top small incisions. He would then explore and feel around with the tip of the hook to try to locate the vein. This procedure is performed blind and done mainly by feel. Dr. Trusdale would try to catch only a tiny bit of the top of the vein, not the whole vein. He would hold the hook in his right hand, put a finger on the skin where the vein was coming out and tease the vein out with the hook. A loop of vein, approximately 2 cm. long, would usually appear. Dr. Trusdale would take two small mosquito clamps, resembling pliers, and place one on one side of the vein and one on the other. This would leave a “U” shape piece of vein through the skin. The hook would then be removed. The vein would be cut between the clamps, leaving two ends of a piece of vein, each held by a clamp. He would start with the piece at the top end, gently pull on the clamp, tease it out and, as it stretched, it would break at a point higher than the hole. The top piece of vein would be pulled out, the clamp taken off and the vein put aside. The lower piece of the vein would be pulled gently to see if he could feel on the skin further down where the vein was going. Usually, that would be at the next mark. Dr. Trusdale would then make the next hole there, then start the same procedure, putting in the hook, catching the top of the vein and removing the top end from the new hole. This would continue down from hole to hole.

36Dr. Trusdale testified that when he got to the fourth or fifth hole, he inserted the hook through the hole and initially got a piece of vein. When he tried to tease it out, he felt from the hook and his fingers that the vein was not slipping out as it sometimes does. He said this was not uncommon. He said that he repositioned the hook and pulled what he thought was a piece of vein. As he did so, a piece of nerve came out while he was teasing it with the hook. He said it “popped out” and “it suddenly came out.” He said that it was visibly nerve. He said that nerve looks totally different from vein. He said he saw an end come out, not a loop. About 5cm to 6cm was protruding through the hole. He said he was shocked. On no other ambulatory phlebectomy had he seen a nerve come out. He said Ms. Hewitson screamed. He then touched the nerve with his fingers and the rest of the length of nerve slipped out with almost no pulling.

37Ms. Hewitson said she heard Dr. Trusdale say “I’ve got it”. She said several seconds later she saw his arm move back and then she got a massive pain in the lower part of the front of her leg and around her ankle. She screamed and Dr. Trusdale jumped back, frightened from the scream.

38Ms. Goldstein testified Dr. Trusdale made a fourth puncture wound with the scalpel. She gave him the hook. He put the hook in the puncture wound and then took it out as if he wanted to reposition it. When he brought the hook out a “thing” slithered out, 3 ½” to 4” long. Ms. Goldstein said she had never seen anything like that before. She said Dr. Trusdale was not pulling the hook when he moved it, that the tissue came out on the hook as he repositioned the hook and it all happened so quickly.

39Dr. Trusdale put the nerve specimen in one bottle and the vein specimen in another to be sent off to pathology.

40Dr. Trusdale testified that Ms. Hewitson was in a lot of discomfort. He told her a piece of nerve had come out. He left the room while Ms. Goldstein did post operation care. He then came back into the room to talk with Ms. Hewitson and told her that he had almost certainly damaged a nerve and that the damage would be permanent.

41Testing confirmed that a 20.5 cm fascicle of sural nerve had been removed. There are 10 to 11 fascicles in the nerve. One third of the diameter of the inner disc of the fascicle was seen to be abnormal, although the length of the abnormality along the nerve could not be determined. The abnormality consisted of the loss of nerve fibres, which were replaced by fibrous tissues corresponding to a scar. The changes were described in a report by Dr. David Munoz, a neuropathologist, as consistent with either chronic trauma, such as produced by repeated rubbing against an internal protuberance or an external object, or with a single episode of trauma well over three months prior.

42Dr. David Kim, a neurologist, performed a nerve conduction study on Ms. Hewitson on March 22, 2012. He concluded that most of the remaining sural nerve, that is the remaining 9 or 10 fascicles, were normal according to his tests. He was asked at trial whether the abnormality to 1/3 of the fascicle removed would allow it to be easily torn. He testified that he did not believe that the abnormality was significant enough to compromise the structural integrity of the nerve. He based this conclusion on the grounds that the majority of the nerve fascicle was intact, that the rest of the sural nerve was functioning normally and that the abnormalities were minor.

43He was of the opinion that the nerve was not sufficiently injured or compromised prior to the ambulatory phlebectomy to prevent Ms. Hewitson from feeling the hook if it touched the nerve. He was also of the opinion that because the nerve fascicle was enclosed in a sheath of connective tissue, it would not fall apart spontaneously. The fascicle would still be within the sheath of connective tissue and some force would have to be applied to remove the fascicle and allow it to be torn.

44In cross-examination, Dr. Kim agreed that a nerve affected by trauma will lose a part of its ability to stretch and resist breaking or tearing. He said that the ability of this fascicle to resist tearing could have been affected by trauma. However, the degree to which it could have been affected was difficult to assess and was dependent on different factors.

(v) Expert Witnesses as to the Standard of Care

45The plaintiffs led the evidence of Dr. Sanjay Kundu. Dr. Trusdale led the evidence of Dr. Gregory Samis to counter the plaintiff’s allegations. Both doctors were accepted at trial as experts qualified to give opinions on superficial venous disease and ambulatory phlebectomy.

(a) Dr. Sanjay Kundu

46Dr. Sanjay Kundu is a registered specialist in diagnostic radiology. He has an interest in venous diseases. He completed a number of continuing education programs in the area followed by hands-on training in superficial venous diseases in 2002. He started practice in the area of venous diseases in 2004. In 2010, he received diplomat status with the American Board of Phlebology.

47Between 2004 and 2008, he did 286 ambulatory phlebectomy procedures. Since 2009, he has done an additional 526 ambulatory phlebectomy procedures. He has done 800 to 900 scleroltherapy injections.

48He has published 31 journal articles as first author. Of those articles, 11 or 12 deal with venous issues. He has co-authored 24 publications, primarily on vascular issues. He has presented at a number of venues on the subject of superficial venous diseases.

49Dr. Kundu testified that the first step in treating varicose veins is to do a proper patient history, together with ultrasound, which allows the physician to find out what is going on under the surface.

50Dr. Kundu examined Ms. Hewitson and performed ultrasounds. His investigation revealed evidence of reflux in an enlarged right great saphenous vein and marked reflux in an enlarged left leg small saphenous vein.

51He said that where the reflux gives rise to varicose veins, ligation and stripping would treat the underlying problem and eliminate back pressure and flow into the branches of the vein. He stated that, optimally, one wants to treat the problem proximal to distal, so that where reflux has been diagnosed, one wants to treat the reflux first. Ambulatory phlebectomy and scleroltherapy treat the surface varicose veins, not the underlying problem.

52Dr. Kundu testified that when doing ambulatory phlebectomy in the lower extremities, there are certain areas of increased risk (“hot spots”). These hot spots include the area behind the ankle because of the close apposition of the sural nerve to the small saphenous vein.

53Dr. Kundu was asked in direct examination about his views of the standard care where ambulatory phlebectomy was attempted over a hot spot. He said that if this was a cosmetic procedure, one would have to look at the risks and benefits. He said that because of the higher risk, he would not do ambulatory phlebectomy in the area of the ankle.

54He said that in the case of Ms. Hewitson, sclerotherapy would have been his preferred treatment, after stripping and ligation to deal with the underlying problem.

55Dr. Kundu stated that tumescent anaesthetic was part of the technique for performing ambulatory phlebectomy. Tumescent anaesthetic is a local anaesthetic which is very diluted by saline. Dr. Kundu testified that tumescent anaesthetic is applied in large volumes to the area where ambulatory phlebectomy is being performed to separate the nerve and veins and to reduce the fascial connections with the vein to allow for easier and less traumatic extraction of the vein. However, because there is not much subcutaneous fat over the ankle, tumescent anaesthetic would not work to lessen the very tight fascial connection in that area. He said that tumescent anaesthetic reduces the pain sensation, but not as deep down or as much as a local anaesthetic. He said that direct injection of local anaesthetic would anaesthetize the nerve, whereas, with tumescent anaesthetic, the patient would feel the hook on the nerve. With the proximity of the sural nerve and the small saphenous vein, it would not be possible to use a local anaesthetic without anaesthetizing the nerve.

56Dr. Kundu described the procedure of an ambulatory phlebectomy in terms very similar to those described by Dr. Trusdale. He described making small incisions, inserting a Muller hook, parallel, superficially to the skin to reduce the risk of hooking a nerve. He stated that the physician would bring the hook gently to the surface and look to see what was hooked. He said a vein has a certain feel compared to a tendon or nerve which is much tighter.

57Dr. Kundu testified that the nerve that was pulled out, being 20.5 cm in length, was quite a large segment of nerve to remove which suggested that a significant amount of force was applied to pull it out.

58In direct examination, Dr. Kundu was given the following assumptions:

ambulatory phlebectomy over the ankle where the sural nerve and small saphenous vein are in close proximity;
use of a local anaesthetic which reduced pain;
use of fingers rather than mosquito clamps to extract the nerve;
a long section of nerve is avulsed

59Based on these assumptions, Dr. Kundu was asked whether this fell within the standard of care of a physician practicing phlebectomy in 2008 who had available to him scleroltherapy as a treatment. Dr. Kundu replied that in his opinion, based on those assumptions, the performance of ambulatory phlebectomy over the ankle fell outside the standard of care for elective surgery for cosmetic purposes.

60In cross-examination, Dr. Kundu testified that ambulatory phlebectomy is contraindicated as an elective procedure in the area where Dr. Trusdale had performed the procedure on Ms. Hewitson. He stated that it was his personal preference not to do it and that the literature would not recommend it.

61He was asked in cross-examination if it was prohibited to perform ambulatory phlebectomy at this area in 2008, and if there was a variation in practice. He answered that there is a variation of practice in doing ambulatory phlebectomy in this area and that no treatment is prohibited by the government or any of the societies. However, Dr. Kundu stated that it was a matter of determining the risk and the benefits of doing the procedure in a hot spot such as the ankle, that the risk was well documented and that if there were other treatment options available, one would ask why the other treatment options were not used. He agreed that practice may vary from phlebologist to phlebologist and patient to patient. He agreed that no one has eliminated nerve damage in ambulatory phlebectomy and that it is a recognized risk. He said that the hot spot in this case extended to the lower third of the calf.

62Dr. Kundu agreed that tumescent anaesthesia is not mandatory, that each practitioner was able to exercise his or her own preference, but that in the phlebologist community from 2005 on, tumescent anaesthesia was the accepted procedure.

63Dr. Kundu stated that 10 cc of local anaesthetic would anaesthetize the sural nerve.

64He testified that if the area of the ankle is treated with sclerotherapy and irritation develops, the irritation is easily treatable and clears up within two to six weeks. He said that it was not a reasonably competent judgment to prefer ambulatory phlebectomy, which carries the risk of permanent damage, to scleroltherapy, which carried a risk of transitory damage.

(b) Dr. Gregory Samis

65Dr. Gregory Samis is a vascular surgeon. Vascular surgery covers arterial, venous and lymphatic diseases. Dr. Samis performs vascular and endovascular surgery with the Calgary Health Authority, University of Calgary. He has been a qualified vascular surgeon since approximately 1999.

66He testified that he performs approximately 250 to 300 ambulatory phlebectomies per year, in a hospital, with the patient under general anaesthetic. He stated that ambulatory phlebectomies are a part of every surgical procedure of stripping and ligation that he did for varicose veins.

67Dr. Samis was trained in ambulatory phlebectomy in the course of his residency and surgical training. He also took a course at Stanford University in venous diseases, which included ambulatory phlebectomy. He testified that vascular training and general surgical training would be the ultimate training for ambulatory phlebectomy. He does not do scleroltherapy, although he was taught it. He teaches ambulatory phlebectomy to general surgical residents and vascular surgeon trainees.

68Dr. Samis testified that if patients have varicose veins in the area of the ankle, he routinely treats them with ambulatory phlebectomy at that level.

69Dr. Samis testified that his review of the literature and his understanding of ambulatory phlebectomy suggests extra caution should be used at the level of the ankle. As a general rule, he operates at a level above the ankle, with no problems. He stated that the literature does not say that ambulatory phlebectomy should not be performed in the area of the ankle.

70In preparation for his testimony, Dr. Samis reviewed Dr. Kundu’s article, marked as Exhibit 10. Dr. Sasmis referred to the discussion in the article of “Indications and Contraindications for AP (ambulatory phlebectomy)”. He stated that “Indications for AP” referred to reasons why one does ambulatory phlebectomy, and that “Contraindications for AP” referred to reasons why one does not do ambulatory phlebectomy. He testified that the article was absolutely contrary to Dr. Kundu’s testimony that one does not do ambulatory phlebectomy at the ankle. He referred specifically to this sentence under the heading “Indication for AP” at p. 7:

“Dilated reticular veins of the popliteal area, lateral thigh and leg, ankle and dorsal venous network of the foot are less common indications for AP”.

71He stated that there was nothing under the heading “Contraindication for AP” at p. 8 of the article to support Dr. Kundu’s evidence that one does not to ambulatory phlebectomy at the ankle.

72Dr. Samis also referred to the following sentence under the heading “Complications” at p. 9 of Dr. Kundu’s article:

“However, it should be noted that complications may still occur with perfect surgical technique.”

73Dr. Samis testified that the options Dr. Trusdale considered for the treatment of Ms. Hewitson’s varicose vein, namely, compression stockings, scleroltherapy, ambulatory phlebectomy and stripping and ligation reflected the standard of practice in 2008. He agreed with Dr. Trusdale’s recommendation that Ms. Hewitson undergo the definitive treatment of stripping and ligation.

74Dr. Samis was asked, assuming that (a) Dr. Trusdale had in mind the relative risks and benefits of scleroltherapy and ambulatory phlebectomy, (b) Dr. Trusdale concluded ambulatory phlebectomy was reasonable and (c) Dr. Trusdale recommended ambulatory phlebectomy rather than scleroltherapy, whether that reasoning and those recommendations represented a reasonable standard of analysis. Dr. Samis answered that he clearly believed that it would meet the standard of practice.

75With respect to the issue of execution of the procedure, Dr. Samis testified that removal of a nerve can occur in ambulatory phlebectomy from millimeters to centimeters in length, approximately 1% of the time. In his own experience, he has had a 10 cm. piece of nerve removed. As for complications, the size of the nerve removed has nothing to do with the outcome. What is important is what cells were damaged.

76Dr. Samis testified that in his experience, 25% to 30% of patients at one month past ambulatory phlebectomy will have a complaint of damage to the peripheral nerve, which was most likely to be temporary. Some will have permanent numbness. He had seen one case of a motor nerve problem and one case with nerve damage similar to that suffered by Ms. Hewitson.

77Dr. Samis was asked to assume that Dr. Trusdale carried out the ambulatory phlebectomy on Ms. Hewitson in the way that Dr. Trusdale testified he did. Dr. Samis stated that it sounded like an ambulatory phlebectomy procedure done properly with peripheral nerve complications. He said he could not explain the reason for the disruption of the nerve and that it had happened in his practice.

78Dr. Samis testified that in 2008, tumescent anaesthetic was not a required part of ambulatory phlebectomies in Canada, and that it was not used by any of his colleagues in Western Canada, Ontario and Quebec.

79In cross-examination, Dr. Samis agreed that the surface of the ankle is a hot spot, but not above the ankle. He said that it was his understanding that the lowest incision made by Dr. Trusdale was at the level of the top of the malleolus. He stated that it did not matter where the vein ended distally, that is, whether it was over or below the ankle. What mattered was where the lowest incision was made. The damage to the nerve is where the incision is made, which is where the hook is placed.

80Dr. Samis testified that ambulatory phlebectomy in the area of the ankle should be done cautiously and after the practitioner has had experience. When asked how many procedures over the ankle should be done before a practitioner attains a comfort level, Dr. Samis stated that if the practitioner was a general practitioner, not a surgeon, someone who had done 20 to 25 ambulatory phlebectomy procedures in general, to get the tactile sensation, with two, three, four or five done specifically around the level of the ankle, under an instructor, would be sufficiently trained. However, if patients for ambulatory phlebectomy in the area of the ankle were not available, he would teach the doctor in training the basic principles, give them the cautions and “send them on their way”.

81Dr. Samis agreed with the statement from Dr. Olivencia’s article at Exhibit 7 that, “Nerve damage is most likely to occur when dissecting in and around the ankle.” He said that Ms. Hewitson suffers from dysesthesia, which is responsible for the jolts of pain she experiences. He said that this was a complication that happened rarely.

82In cross-examination, Dr. Samis was asked to say how the injury to Ms. Hewitson happened. He answered that the patient underwent a standard ambulatory phlebectomy procedure during which the nerve was injured by needle injections, hook or scalpel or that the nerve may have had prior damage to it. The fact that the nerve came out without any force implies that the nerve was damaged, but he did not know if it was damaged by the needle, hook or scalpel.

83Dr. Samis testified that he uses a spinal or general anaesthetic for ambulatory phlebectomy. If he touches a nerve with a hook, the patient does not respond.

84Dr. Samis stated that the local anaesthetic could have anaesthetized the nerve to the extent that Ms. Hewitson would not feel the hook and did not scream when the nerve was pulled out.

85Dr. Samis agreed that scleroltherapy was an option. He agreed that ambulatory phlebectomy could carry a risk of nerve damage. However, he stated that scleroltherapy can also cause nerve damage.

86Dr. Samis was asked in cross-examination if it was reasonable for Dr. Trusdale to have chosen ambulatory phlebectomy over scleroltherapy. He replied that it was, especially in light of the low rate of dysesthesias reported in Dr. Olivencia’s article at Exhibit 7, namely six permanent dysesthesias out of 36,000 ambulatory phlebectomies.

87When asked in cross-examination why it was reasonable to expose Ms. Hewitson to the risk of nerve damage with ambulatory phlebectomy, Dr. Samis responded that decision making happens every day, by every doctor, with many variables. He expressed the opinion that the decision made by Dr. Trusdale was normal, reasonably justifiable and not malpractice. He stated that the risks are low and the procedures of ambulatory phlebectomy and sclerotherapy are equivalent, both having the same risks. Ambulatory phlebectomy has a risk, but it is rare.

88Dr. Samis was asked in cross-examination how many procedures a physician should be required to do before undertaking ambulatory phlebectomy at the ankle level, if that physician was trained by a person who was not a vascular surgeon. Dr. Samis responded that it depended on the experience of the teacher. If the teacher had done 2000 procedures, that would be the same as Dr. Samis had done. He said that ambulatory phlebectomy was a very straightforward procedure, well tolerated and done well thousands of times around the world. Whether the training is done by a vascular surgeon or not, it is the experience of the teacher that is important – it is that simple of a procedure.

89Dr. Samis stated that Canadian physicians do not do tumescent anaesthetic. He said that he is familiar with tumescent anaesthetic and its advantages and disadvantages and has chosen not to use it. He disagreed that tumescent anaesthetic is less likely to anaesthetize the nerve.

90He agreed that Dr. Kundu’s 250 ambulatory phlebectomy procedures as of December 31, 2008 was a reasonable level. He agreed that Dr. Kundu was in a similar position to him to comment on the standard of care, with the exception that Dr. Kundu is not a surgeon and ambulatory phlebectomy is surgery.

Submissions

(a) Plaintiffs

91The plaintiffs submit that Ms. Hewitson’s injury was the result of negligence because Dr. Trusdale exercised substandard care in his choice of an improper procedure and in his improper execution of the procedure chosen.

92The plaintiffs emphasize that Ms. Hewitson wanted to get rid of the varicose vein over her ankle for cosmetic reasons only. The plaintiffs acknowledge that Dr. Trusdale properly recommended surgical stripping and ligation, but that once Ms. Hewitson rejected surgery, he should either have not gone ahead with any procedure, or he should have chosen scleroltherapy which, according to the handout provided to patients of Dr. Trusdale’s vein clinic, did not list nerve damage as a potential complication. The plaintiff points to Dr. Trusdale’s evidence that he had had only three serious complications with scleroltherapy, none of which included nerve damage.

93The plaintiffs submit that Dr. Trusdale’s experience and training were insufficient for him to do ambulatory phlebectomy at the level of the ankle. The plaintiffs ask the court to prefer the evidence of Ms. Goldstein to that of Dr. Trusdale with respect to how many ambulatory phlebectomies Dr. Trusdale did under Dr. Lutzak, how many ambulatory phlebectomies he had done at the ankle level before he performed the procedure on Ms. Hewitson and how many ambulatory phlebectomies in general he had done before the procedure on Ms. Hewitson. The plaintiffs submit that the evidence of Ms. Goldstein as to the much fewer numbers of procedures that Dr. Trusdale had performed is crucial because of the risks of ambulatory phlebectomy in the area of the ankle. The plaintiffs refer to the statement in Dr. Kundu’s article, Exhibit 10 p. 9, that “AP in the ankle or foot region should only be performed after significant experience has been obtained in other areas on the lower extremity.”

94The plaintiffs submit that the court should accept Dr. Kundu’s evidence that the area over the ankle is a hot spot, and that to expose Ms. Hewitson to the known risks of ambulatory phlebectomy, for cosmetic purposes, when sclerotherapy was available, was unacceptable practice. The plaintiffs point to Dr. Kundu’s evidence that he, himself, would not have done ambulatory phlebectomy at the level of the ankle.

95The plaintiffs submit that in assessing Dr. Samis’ evidence, the court should consider that his ambulatory phlebectomies are done under general anaesthetic, where his patients cannot feel if he has hooked a nerve, and result in nerve injuries in 25% to 35% of his cases. The plaintiffs compare this rate to the rates of temporary nerve damage (0.05%) and permanent nerve damage (0.02%) as reported in an article by Dr. Bergan from The Vein Book, which Dr. Samis agreed was authoritative (Exhibit 21).

96The plaintiffs note the following evidence from Dr. Samis:

the three suspected sources of injury to the nerve are the needle injecting the local anaesthetic, the scalpel and the hook
local anaesthetic along the line of the vein could anaesthetize the nerve to the point that Ms. Hewitson would not feel pain until the nerve was pulled out
ambulatory phlebectomy does pose a greater risk of nerve injury around the ankle
nerve injury in ambulatory phlebectomy is found mostly at the level of the ankle
Dr. Samis would give a patient the choice of ambulatory phlebectomy or scleroltherapy

97The plaintiffs submit that Dr. Trusdale was in charge of the instruments that likely caused the injury to the nerve, that he is responsible for how they are used and that his feel and touch failed him.

98The plaintiffs submit that in assessing Dr. Trusdale’s execution of the procedure, regard should be had to the length of nerve that appeared, with at least one end broken away, which, in the absence of proven disease to the nerve, could only be avulsed by traction . The plaintiffs ask the court to infer that the hooking of the nerve was aggressive, based on the size of the nerve removed, the fact that the injury was far from the incision and the fact that Ms. Hewitson said saw Dr. Trusdale’s arm move back within seconds of his remark, “I’ve got it.” (Note: The plaintiffs submitted that Ms. Hewitson testified that she saw Dr. Trusdale’s arm pull back “briskly”. In fact, Ms. Hewitson said, “I just saw his arm move back and got this massive pain.”).

99The plaintiffs submit that the court can conclude from Dr. Kundu’s opinion of Dr. Trusdale’s performance of the ambulatory phlebectomy that he employed an overly aggressive surgical technique.

100The plaintiffs submit that Dr. Trusdale had no answer how the injury was caused. The plaintiffs acknowledge that it is not Dr. Trusdale’s burden to disprove negligence. However, the plaintiffs submit that where inferences of negligence can be drawn, Dr. Trusdale then has an obligation to explain how the injury occurred without negligence.

101The plaintiffs also submit that Dr. Trusdale can be criticized for not using tumescent anaesthetic.

(b) Defendant

102Counsel for the defendant submits that as of April 2008, Dr. Trusdale had ample experience to be able to perform an ambulatory phlebectomy in the area of Ms. Hewitson’s ankle, whether one accepts Dr. Trusdale’s evidence of 1200 ambulatory phlebectomies in general, and 30 in the ankle area or Ms. Goldstein’s evidence, which extrapolates to about 900 ambulatory phlebectomies in general and six to eight in the area of the ankle. Either estimate fell well within the criteria set out by Dr. Samis, and either estimate was well beyond the number of the 250 ambulatory phlebectomies that Dr. Kundu had done as of 2008.

103The defendant submits that the evidence of Dr. Samis, as an expert, should be preferred to the evidence of Dr. Kundu because as of 2008, Dr. Samis had done 10 times more ambulatory phlebectomies that Dr. Kundu and had formal vascular and surgical training.

104On the issue of whether ambulatory phlebectomy at the ankle is below the accepted standard of practice, the defendant submits that Dr. Kundu’s testimony is contradicted by his own article at Exhibit 7, where ambulatory phlebectomy at the ankle is found under the heading “Indications for AP”, and there is no mention of the ankle under the heading “Contradictions for AP.”

105The defendant submits that the evidence of Dr. Samis, who routinely does ambulatory phlebectomies at the ankle, is to be preferred. The defendant also submits that Dr. Trusdale’s reasoning for doing ambulatory phlebectomy at Ms. Hewitson’s ankle is supported by Dr. Samis, who testified that ambulatory phlebectomy at that level eliminates the vein, whereas with scleroltherapy, the problem may return. Dr. Samis also agreed with Dr. Trusdale that the risks of ambulatory phlebectomy and scleroltherapy are equal and minimal.

106With respect to the issue of whether Dr. Trusdale’s execution of the procedure fell below the standard of care, the defendant refers to statements in a number of articles on ambulatory phlebectomy referred to by Dr. Kundu at trial:

Exhibit 7, p. 9:

“However, it should be noted that complications may still occur with perfect surgical technique.”

Exhibit 14, p. 119:

“Cutaneous nerve injury can and does occur even in the best of hands; its presence is not, therefore, indications of substandard care or a ‘breach of duty’ per se.”

Exhibit 6, p 947:

“As in any therapeutic procedure, complications may occur even when the surgical technique is performed perfectly.”

107The defendant submits that there is nothing in the literature presented at trial to support the proposition that permanent nerve injury, as distinguished from transitory nerve injury, is indicative of negligence. The defendant refers to Dr. Kundu’s article at Exhibit 10, p. 11:

“If nerve injuries are observed, they especially occur in AP of the SSV (small saphenous vein) as the sural nerve may be damaged by the hook, leading to parathesia, or transected with permanent complete sensory loss over a large cutaneous area.”

108The defendant submits that the statements in those articles, which were recognized as authoritative by Dr. Kundu, go directly to appropriateness of drawing an inference of negligence from this injury. The defendant submits that no such inference should be drawn.

109The defendant submits that he does not need to show that Ms. Hewitson’s injured nerve was abnormal.

110The defendant submits that the court cannot work backwards from Ms. Hewitson’s pain to draw a conclusion of negligence.

111With respect to the surgery, the defendant points to the testimony of Dr. Trusdale and Dr. Samis that it is not unusual to see a piece of nerve come out and to then move the hook away.

112The defendant emphasizes that this a procedure in which the practitioner relies on “feel” because the procedure is blind. Counsel for the defendant submits that Dr. Trusdale did what everyone agreed he should have done when he felt that the vein was not slipping out as it should – he repositioned the hook instead of continuing to pull on it. Counsel submits that turning the hook, repositioning it and pulling up, is not negligence because Dr. Trusdale was doing exactly what he was supposed to do. Although it resulted in the nerve coming out, this is a complication recognized by phlebectomists occurring in the absence of negligence.

113The defendant submits that when Dr. Trusdale checked the nerve, not with the hook but with his finger, the nerve came out with no resistance. The damage had been done. The nerve had been cut at one end. Counsel submits that it defies common sense that Dr. Trusdale would “yank” on the nerve once he knew it was nerve. It is probable, counsel submits, that Dr. Trusdale would apply minimal traction when he saw it was nerve.

114Counsel for the defendant submits that one will never know whether the scar tissue on the nerve or the local anaesthetic, or a combination of both, resulted in Ms. Hewitson not reporting pain when the hook came into contact with the nerve.

115Counsel for the defendant submits that the fact that the nerve had scar tissue may offer an explanation as to why the nerve did not stretch and broke, although counsel concedes that it is not known how much of the 20.5 cm length of the nerve in fact has scar tissue. Counsel submits, however, that it does not matter whether or not the nerve’s capacity to stretch was impaired, because the hooking of the nerve was not negligent.

116The defendant submits that Dr. Kundu’s evidence as to tumescent anaesthesia was inconsistent, in stating at one point that the standard of practice required tumescent anaesthetic, and, at another point in his evidence, stating that it would be speculative to say whether other practitioners were using tumescent anaesthetic in 2008. The defendant submits that the evidence of Dr. Samis should be preferred on this issue.

The Law

117There is no real dispute between the parties as to the legal principles applicable in this case.

118The standard of care required of a doctor is set out in Crits and Crits v. Sylvester (1956), 1956 34 (ON CA), 1 D.L.R. (2d) 502 (S.C.C.), at p. 508:

“The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.”

119In Crits, the court also cautioned that all surgery has risks so that mere misadventures should not be characterized as negligence.

120In Hassen v. Anvari, 2003 1005 (ON CA), [2003] O.J. No. 3543 (C.A.), at para. 9, the Court of Appeal described the onus of proof that rests upon a plaintiff following the abolition of the res ipsa loquitur maxim by the Supreme Court of Canada in Fontaine v. British Columbia, [1988] 1 S.C.R. 424.

121The onus is on the plaintiff to prove negligence by the defendant caused the plaintiff’s injury. That onus may be satisfied by circumstantial evidence that allows an inference of negligence to be made, unless the defendant negates the inference with an explanation that is at least as consistent with no negligence as with negligence.

122Where the trial judge is faced with two opposing expert medical opinions, the judge must weigh both sides of the question in arriving at a conclusion. The appropriate standard of care is determined by the trier of fact. See Brain v. Mador, [1985] O.J. No. 119 (C.A.); Walton v. Hicks, [1995] B.C.J. No. 1308 (C.A.); Houlihan v. Caskey, [2006] O.J. No. 3503 (S.C.J.).

123The following principles, set out in Bafaro v. Dawd, [2008] O.J. No. 3474 (S.C.J.), affmd., 2010 ONCA 188, [2010] O.J. No. 979 (C.A.), also apply in this case.

26 A plaintiff’s case which applies an outcome-based retrospective approach and attempts to work backwards from the result of surgery in order to prove negligence is fundamentally flawed in law and contrary to admonitions in the case law. “Nothing is to be imputed to the defendant that is not clearly proved against him. Post hoc, ergo propter hoc has no place in our law.” Kennedy v. Jackiewicz [2003] O.J. No. 1854 at paras. 4-6 (S.C.J.); Gent v. Wilson 1956 128 (ON CA), [1956] O.R. 257 at 266 (C.A.), as cited in Wilkinson Estate v. Shannon [1986] O.J. No. 625 (H.C.J.) at 6.

36 To the extent that an expert testifies as to what he himself would do in a situation, rather than what the standard of care requires, his testimony does not establish the standard of care nor demonstrate that the defendant doctor breached a standard of care. As Ferrier J. wrote in Campbell v. Hess (June 8, 1994), Toronto 51145/90 (Ont. Gen. Div.):

I note particularly that although Dr. Wiggle stated that he himself would not have discontinued the Coumadin he did not state in his evidence that DR. Hess fell below the standard of care for a cardiologist in March 1989 in the circumstances that presented themselves. Thus Dr. Wiggle did not give opinion evidence concerning the standard of care; it can be argued that the inference can surely be drawn from his evidence that that is his view. It may well be his view but such an important piece of evidence that is an expert opinion on the standard of care, in my view, ought not to be left to a conclusion drawn by inference in the case of a negligence claim against a professional specialist.

37 Where there are a number of different techniques available to treat the same medical condition, a physician should be allowed to exercise his or her discretion in determining the best course of treatment for that particular patient. In Lapointe, supra at para. 31 L’Heureux-Dubé J. stated:

Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories. As expressed more eloquently by Andre Nadeau in La responsabilité médicale (1946), 6 R. du B.153, at p. 155 :

[TRANSLATION] The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects. They may only make a finding of fault where a violation of universally accepted rules of medicine has occurred. The court should not involve themselves in controversial questions of assessment having to do with diagnosis or the treatment of preference. [Emphasis added.]

38 Although a court may prefer one body of opinion to the other, this cannot ground a finding of negligence. The Ontario Court of Appeal in Connell v. Tannder, [2002] O.J. No. 1543 (C.A.) confirmed at para. 1:

A doctor who treats a patient in accordance with a respectable body of medical opinion – even if it is a minority opinion – will not normally be held liable in negligence. The rationale for this principle is that courts lack the institutional competence to decide between reasonable medical practices.

Discussion

(1) Was Dr. Trusdale negligent in recommending ambulatory phlebectomy as a treatment for varicose veins in the area of Ms. Hewitson’s ankle?

124I have concluded that the plaintiffs have not proved that Dr. Trusdale was negligent in recommending ambulatory phlebectomy.

125The plaintiffs rely on the opinion of Dr. Kundu who testified in direct examination that ambulatory phlebectomy over the ankle fell below the standard of care in 2008 for elective surgery, for cosmetic purposes.

126However, I do not accept Dr. Kundu’s opinion on this issue in view of his answers on cross-examination and because his opinion was contradicted by articles which he, himself, had helped to author and which he recognized as authoritative on the subject.

127Dr. Kundu acknowledged in cross-examination that there was a variation in practice in performing ambulatory phlebectomies at the level of the ankle, which varied from phlebologist to phlebologist and patient to patient. Dr. Kundu also acknowledged that no regulatory society, or government, prohibits ambulatory phlebectomy at this level.

128Although Dr. Kundu stated that his opinion was supported by the literature, in fact the literature that was put before me through Dr. Kundu on this issue did not support his opinion. As noted at paragraphs 70 and 71 of these Reasons, in Dr. Kundu’s article at Exhibit 10, ambulatory phlebectomy in this area of the ankle is described under the heading of “Indications for AP”, (albeit it is among the less common indications). Ambulatory phlebectomy is not listed under the heading “Contraindictions for AP” in Dr. Kundu’s article. I accept the evidence of Dr. Samis with respect to the significance of this article, namely that “Indications for AP” referred to reasons why a practitioner would do ambulatory phlebectomy and “Contraindications for AP” referred to reasons why a practitioner would not do ambulatory phlebectomy. Dr. Samis testified that there was nothing under the latter heading to support Dr. Kundu’s evidence on this issue and that, in fact, the article is contrary to that evidence. I accept Dr. Samis’ evidence that his review of the literature and his understanding of ambulatory phlebectomy suggests that extra caution should be used at the level of the ankle, not that it should not be done.

129Mr. Kundu does not do ambulatory phlebectomy at the level of the ankle. Dr. Samis routinely treats varicose veins at the ankle level with ambulatory phlebectomy. It is apparent from the testimony of Dr. Samis, together with the acknowledgements by Dr. Kundu on cross-examination and the articles entered as Exhibits, that the treatment recommended by Dr. Trusdale fell within a respectable body of medical opinion, even if it did not correspond to the personal practice of Dr. Kundu. This does not ground a finding of negligence against Dr. Trusdale.

130I do not accept the plaintiffs’ position that Dr. Trusdale was negligent because he used local anaesthetic rather than tumescent anaesthetic. Again, the most that can be said about the plaintiffs’ position is that there is a divergence of medical opinion on this question.

131Dr. Kundu agreed in cross-examination that the use of tumescent anaesthetic was not mandatory and that each practitioner was free to exercise his or her own preferences.

132Dr. Samis chooses to do ambulatory phlebectomies under general anaesthetic. Tumescent anaesthetic plays no part in his procedure. I accept his evidence that in 2008, not only was tumescent anaesthetic not mandatory, none of his colleagues across Canada used it.

133I note, as well, Dr. Kundu’s evidence that although the stated purpose of tumescent anaesthetic is to separate the nerves and veins and to reduce fascial connections with the vein to allow for easier extraction of the vein, in fact, because there is not much subcutaneous fat over the ankle, tumescent anaesthetic will not work to lessen the very tight fascial connections in that area.

134Dr. Trusdale did not fall below the standard of practice in using local anaesthetic instead of tumescent anaesthetic.

(2) Was Dr. Trusdale negligent in his execution of the ambulatory phlebectomy on April 29, 2008?

135I do not accept the plaintiffs’ submission that Dr. Trusdale lacked the training and experience necessary to do an ambulatory phlebectomy at the level of the ankle.

136I do not need to determine whether Dr. Trusdale is correct in his estimate of having done 1200 ambulatory phlebectomies, in general, and 30 of the procedures over the ankle, before he performed the procedure on Ms. Hewitson. I am satisfied that even if I take Ms. Goldstein’s estimate of approximately 900 ambulatory phlebectomies, in general, and six to eight ambulatory phlebectomies over the ankle, Dr. Trusdale had the requisite experience to do the procedure. Nine hundred ambulatory phlebectomies exceeds by a wide margin the number of such procedures that the plaintiffs’ expert, Dr. Kundu, had done as of 2008, and exceeds the total number that Dr. Kundu had done as of the date of trial.

137Dr. Samis, who has performed significantly more ambulatory phlebectomies than Dr. Kundu, and who trains surgeons in the procedure, testified that a general practitioner who had done 20 to 25 ambulatory phlebectomies in general, and two to five over the ankle, would be sufficiently trained. If no patients for ambulatory phlebectomy over the ankle were available for training purposes, Dr. Samis would nevertheless teach the doctor the basic principles, provide them with a caution of the need to exercise special care in this area, and send them on their way.

138Dr. Trusdale testified that in 1999 he had received hands-on training from Dr. Lutzak on approximately 25 patients and had observed approximately 30 more procedures in Nashville under Dr. Lutzak in 2000. As of the date of the ambulatory phlebectomy in question, Dr. Trusdale had not only done ambulatory phlebectomies many hundreds of times, he had carried it out over the ankle at least half a dozen times.

139There is no formal training for the procedure, outside of residency programs for surgeons. Dr. Kundu was trained by doing hands-on procedures under supervision, outside of medical school. This was also Dr. Trusdale’s training.

140I find that Dr. Trusdale had more than sufficient training and experience to do the procedure properly.

141However, although I find that Dr. Trusdale had sufficient training and experience, I have concluded that his execution of the ambulatory phlebectomy on Ms. Hewitson did not meet the standard of care required of him on April 29, 2008. I am satisfied that the circumstantial evidence permits an inference of negligence which Dr. Trusdale has not negated.

142The circumstantial evidence that supports the inference of negligence in this case includes the following:

because of the proximity of the sural nerve to the small saphenous vein in the lower calf, great care must be used when ambulatory phlebectomy is carried out at the level of the ankle in order to avoid damage to the sural nerve;
nerve damage is most likely to occur when ambulatory phlebectomy is done in and around the ankle;
nevertheless, permanent dysesthesia is an extremely unlikely injury in ambulatory phlebectomy. The articles by Dr. Olivencia, at Exhibits 7 and 8, and the extract from The Vein Book at Exhibit 21, refer to a collective review of 36,000 ambulatory phlebectomies in which only six permanent dysesthesias were reported (.02 of a percent). In a review of 4,000 consecutive ambulatory phlebectomies reported in Exhibit 8, not a single case of permanent nerve damage was reported;
the evidence of Dr. Kim that:

❖ the scarring of the fascicle was not significant enough to compromise the structural integrity of the nerve;

❖ because the nerve fascicle was enclosed in a sheath of connective tissue, it would not fall apart spontaneously;

❖ because the nerve fascicle was within the sheath of connective tissue, some force would have to be applied to remove the fascicle from the sheath and allow it to be torn;

the evidence of Dr. Kundu that the segment of nerve pulled out, 20.5 cm (8 inches) was quite a large segment which suggested that a significant amount of force was applied to pull it out;
one of the two ends of the nerve which was severed or torn was far from any incision;
the evidence of Ms. Hewitson that she saw Dr. Trusdale’s arm move back shortly after his remark “I’ve got it”, after which she experienced massive pain;
the evidence of Dr. Samis that the local anaesthetic could have anaesthetised the nerve to the extent that Ms. Hewitson would not feel the hook when it initially touched the nerve. Dr. Kundu testified that because of the proximity of the sural nerve and the small saphenous vein, it would not be possible to use a local anaesthetic without anaesthetizing the nerve. There is little depth of tissue and the nerve and vein are close to the level of the skin. I conclude from this that Dr. Trusdale would have known that as he guided his hook, he could not rely on Ms. Hewitson to report that the hook had touched the nerve. This would heighten the need for Dr. Trusdale, when he was conducting the procedure at a level where great caution was required, to be especially careful in relying on his tactile sense to avoid the sural nerve;
the evidence of Dr. Samis that the nerve would have been damaged by the scalpel, the hook or the needle, although he could not say which. The scalpel and hook were in Dr. Trusdale’s hands, the injections were done on his instruction where he had marked out the locations;
Dr. Kundu’s evidence that a vein has a certain feel, distinguished from a nerve, which feels tighter;
this is a blind procedure which relies on such feel and touch, in the context of an awareness of the anatomy of the area;
the statement in the article at Exhibit 10, with which Dr. Trusdale agreed, that in the area of the ankle, the hooking technique should be much more gentle and deliberate than in other areas of the lower extremity;
Dr. Trusdale knew that the sural nerve and small saphenous vein were in close proximity. Nevertheless, he did not recognize that he had hooked the nerve when he repositioned the hook. He said that when he repositioned the hook he pulled what he thought was a piece of vein. One can also infer that he thought he had hooked the vein, not nerve, when he said “I’ve got it”;
the evidence that after Dr. Trusdale repositioned the hook, the nerve did not come up onto the hook, in a loop, but rather it came out severed or torn away from the remaining lower end of the nerve. When Dr. Trusdale pulled on it with his fingers, the nerve came out severed or torn away from the remaining upper end of the nerve;
Dr. Trusdale had never seen a nerve come out like this during any other ambulatory procedure.

143I conclude that Dr. Trusdale’s feel and touch failed him in this particular case.

144In the face of this inference of negligence from the circumstantial evidence, an explanation is called for.

145Dr. Trusdale had no explanation for what happened. Dr. Samis stated that he could not explain the reason for the disruption of the nerve, apart from the fact that it had to be caused by the hook, scalpel or needle.

146There was a suggestion by the defence in submissions that because of the abnormality found on the nerve, that Ms. Hewitson would not have been able to report a sensation when the hook first came into contact with the nerve and that this abnormality prevented her from warning Dr. Trusdale and thereby prevented him from doing damage to the nerve. However, there was insufficient evidence to support this theory. Dr. Kim testified that in his opinion, as a specialist in neurology, the remaining 9 or 10 fascicles of the sural nerve were normal according to his tests, and the nerve was not sufficiently compromised prior to the ambulatory phlebectomy to prevent Ms. Hewitson from feeling the hook if it touched the nerve. Dr. Kim was also of the opinion that the fascicle would not fall apart spontaneously. An explanation that attributes Ms. Hewitson’s injury to an abnormal nerve is, in my view, no more than a speculative possibility. More is called for. No explanation has been presented that is at least as consistent with no negligence as with negligence.

Conclusion:

147Judgment will issue in favour of the plaintiffs. They are awarded damages in the agreed upon amount of $128,975.00, inclusive of pre-judgment interest and the subrogated interest of OHIP. The plaintiffs shall have their costs, including disbursements. If the parties are unable to agree upon costs, the plaintiffs shall deliver written submissions within 30 days. The defendant shall deliver responding written submissions within 15 days after receipt of the plaintiffs’ submissions.

The Hon. Mr. Justice D. C. Shaw

Released: March 22, 2013