ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-48056

DATE: 2013/06/05

BETWEEN:

Ali Akl
Plaintiff

– and –

Dr. John Collins
Defendant

Peter G. Hagen, for the Plaintiff

Wayne B. Brynaert, for the Defendant

HEARD: January 7, 8 and 10, 2013

REASONS FOR DECISION

Métivier J.

[1] The issues in this trial are whether a surgical procedure performed by the defendant on the plaintiff was preceded by adequate informed consent; whether the procedure itself was performed competently and whether the post-operative care provided following the surgery met the standard of care or was negligent.

[2] The plaintiff underwent a varicocelectomy – a procedure where varicoceles, dilated testicular veins in the scrotum, are ligated in order to decrease blood flow and the resultant high temperatures which may negatively affect the quality of sperm. Following the procedure, designed to improve the chances of fertility, the plaintiff suffered the loss of a testicle.

Background

[3] The plaintiff was born in Lebanon, immigrated to Canada and speaks English, but with a limited vocabulary. He completed Grade 9 or 10 in High School. At the relevant time, he was 37 years old.

[4] The plaintiff and his wife married in 1999 and had been trying unsuccessfully to conceive a child since approximately 2001. Both he and his wife underwent a number of tests in an effort to determine the reason for the difficulty they were experiencing. It became clear that no medical issue prevented his wife from conceiving.

[5] In March 2002, Mr. Akl was referred by his family doctor to the defendant, Dr. Collins, a urologist who was well known in the male infertility field. The plaintiff underwent several semen analyses, including at the Fertility Clinic, some before and some after the consultation with Dr. Collins.

[6] The patient did not return to see Dr. Collins until 2007, missing at least one scheduled appointment in the interim.

[7] The semen analyses performed at various times indicated that Mr. Akl had a marked decrease in sperm motility and a significant number of abnormal sperm, both of which, according to Dr. Collins, reduced the probability of conception.

[8] When the plaintiff returned to Dr. Collins in 2007, he had a further semen analysis done in April. In November and December of that year, Mr. Akl attended at Dr. Collins’ office for blood work, had a further consultation with him, and had a Doppler ultrasound to determine if he had varicoceles.

[9] It was then determined by Dr. Collins that Mr. Akl suffered from bilateral varicoceles.

[10] The doctor felt the options available to Mr. Akl and his wife were:

(1) continue as before;

(2) attempt in vitro fertilization;

(3) attempt intra-uterine insemination; or

(4) undergo a varicocelectomy procedure.

[11] He neither recommended nor mentioned an endovascular procedure, where there is a transvenous embolization used to occlude the veins and allow them to thrombose. There is no qualified, highly trained radiologist in the Ottawa area who would have been able to do that procedure.

[12] The plaintiff testified that in vitro fertilization was expensive ($10,000 to $12,000) and therefore that was not an option, nor was continuing as before. He did not remember any other alternative being mentioned.

[13] In January 2008, Dr. Collins recommended a varicocelectomy, the procedure to tie off these incompetent veins, to prevent them from abnormally overfilling with blood.

[14] It is common ground that after the doctor’s recommendation of the varicocelectomy, Mr. Akl was sent away to discuss this with his wife, and to decide what they wished to do next.

[15] Some nine days later, Mr. Akl advised Dr. Collins’ office that he had decided to proceed with the varicocelectomy.

[16] On March 26, 2008, the procedure was performed.

[17] The surgery was done subinguinally, by exposing the spermatic cord, and entering it through a small incision to remove the dysfunctional veins.

[18] Dr. Collins used magnification to assist him, probably a microscope, although he was not entirely sure he did that on this occasion. His evidence was that at the relevant time, the operating microscope was more routinely used. The other method was to use “loops” which provide three times the magnification, less than that provided by the microscope. The surgery began at 1:11 p.m. and was finished at 1:57 p.m.

[19] Mr. Akl recalls waking up after the operation with his family around him, and Dr. Collins was there. The doctor touched his foot, and he thinks he looked at the incisions, and the testicle.

[20] The evidence of Dr. Collins is that he always sees patients after this procedure. This is because it is an outpatient procedure, and the patient may be anxious. He said he palpates the testicle to see that there is nothing untoward. He recalls nothing unusual at that time.

[21] The usual procedure is to have the patient remain in the recovery unit for a few hours, provided with pain medication and a further prescription for medication on discharge.

[22] Mr. Akl described being given medication for pain and later told the nurses that he did not want to go home as he was still in pain.

[23] The nurses’ notes report the following chronology of medications given and observations made on March 26th. The notes are reproduced, but not always as direct quotes and some abbreviations are left out.

(1) 15:30: legs “heavy”, wife in to visit.

(2) 16:45 up to BR gait steady – voided. Back to bed. Analgesic given, ice packs applied to incisions.

(3) 17:05 : for complaints of epigastric pain – They administer fentanyl (IV).

(4) 18:15: Tylenol 3

(5) 18:30: Fentanyl (IV)

(6) 19:00: Percocet: up to BR. Voided amber urine. Complaints of pain and urology is called.

(7) 19:40: Dr. Clark a resident from the urology department is in.

(8) 20:00: Ginger ale and sandwich given.

(9) 20:50: The notes say: “Patient continues to co epigastric pain. R + L groin incisions dry and intact. Abd. Soft. Faint BS present. Patient states pain a little better but not anxious to go home. Call in to service.

(10) 21:10: Spoke to Dr. Clark – aware of patient’s complaints of epigastric pain. Orders given.

(11) 21:28: Blood work taken and sent. Up to BA. Patient resting comfortably. Nutrition given.

(12) 23:00: Percocet is given.

(13) 23:06: Patient up to BR – voided.

[24] Continuing into the early morning hours of March 27th, the notes indicate:

(1) 3:45: Percocet given. Patient is up to the bathroom. Shortly after it is noted that the patient is sleeping well.

(2) 6:00 a.m. Breakfast is taken well.

(3) Discharge criteria met at 6:30. There are no further complaints of epigastric pain. The incisions are dry and intact.

(4) 7:30: Percocet is given.

[25] Dr. Collins was not made aware of the pain his patient is experiencing nor of the amount of medication he received. There is no mention in the notes of testicular pain.

[26] Mr. Akl’s evidence is that he went home, went to sleep and when he woke, he was in pain again. By that evening, the pain was very bad and going down his left leg and he returned to the hospital at approximately 9:00 p.m. on March 27 complaining now of pain in the left testicle.

[27] He was seen by an emergency doctor, pain medication was given and a urology consultation was accepted at 1:04 a.m.

[28] Further pain medication and an antibiotic were given during the night.

[29] The next morning, at 6:50 a.m., it is noted that “Patient ambulatory to BR, holding groin, complaints of pain”. At 7:15 a.m. on the morning of March 28th, Dr. Kim from urology arrived to see the patient and ordered an ultrasound.

[30] Mr. Akl said that a doctor came to him in the emergency department, gave him some medication and that he slept through the night, waking at approximately 7:30 a.m.

[31] At about the same time, Dr. Collins had returned to the hospital. A Doppler ultrasound was performed and it was determined that the left testicle was without a blood supply.

[32] Another operation was performed; this time, the testicle was removed. Mr. Akl remained in the hospital until April 3rd.

Informed Consent

[33] Mr. Akl testified that prior to the operation, he had been told nothing of any risks. He was firm in his view that had he been told that there was a risk that he could lose a testicle, that he would not have had the surgery, even if there had been a one in one thousand chance of such a result.

[34] The doctor’s testimony is that, while he has no specific memory of what he said to Mr. Akl, it was not his practice to tell patients of such a risk. He said that he had performed approximately 1,000 of these procedures and had never seen a similar result.

[35] He testified that he always told patients of the following risks:

(1) that the ilioinguinal nerve could be damaged and cause pain;

(2) danger of damage to the iliolingual nerve;

(3) the possibility of a hydrocele forming;

(4) the possibility of interruption of the testicular artery.

[36] Although rare, such complications are not unknown.

[37] The following is from an information pamphlet now provided by the Ottawa Fertility Centre in Ottawa which describes this procedure. It was not in existence or in use in early 2008. The section entitled “Risks” reads as follows:

Chances of complications from this procedure are minimal. Structures besides the varicocele may inadvertently be injured – lymphatic channels, an artery to the testicle, or the sensory nerve in the spermatic cord. As these structures are very small, great care is taken to prevent injury, by the use of magnification and very careful dissection. However, if injury were to occur, it might result in the collection of fluid in the scrotum (hydrocele) altered sensation in the area, or shrinkage, or loss of the testicle.

Complications can occur. The most common are hydrocele formation, testicular artery injury, and varicocele persistence or recurrence. The incidence of these complications can be reduced by employing microsurgical techniques, inguinal or subinguinal operations and exposure of the external spermatic and scrotal veins.

[38] In cross-examination, Dr. Collins said while his notes do not indicate that he explained the risks, nothing turns on that. He analogized that they do not forgot to scrub, and they do not forget to tell the patients of the benefits and the risks.

[39] Mr. Akl does remember being told that the procedure was a simple one that would take approximately 45 minutes and that he would be off work for two to three weeks following.

[40] He does not remember being told of any risks, nor of signing a consent, nor of meeting with the anaesthetist. Similarly, he does not remember that he had a cold the day of the first operation.

[41] He does not remember that Dr. Collins told him at the office visit after the second operation that he could still get his wife pregnant even with one testicle.

[42] He now knows that one testicle produces as much semen as two. The scrotum was left in place for cosmetic reasons.

[43] Dr. Collins confirms that when he saw the plaintiff in the morning of March 28, he was in a lot of discomfort. His left testicle was swollen, and a scrotal ultrasound revealed interruption of blood flow to the left testicle. There are two arteries delivering blood to the testicle, the vasal and the testicular, and they could not see any blood flow in either artery.

[44] Dr. Collins could not say exactly what had happened to restrict or stop the blood flow to the testicle. At his Examination for Discovery, he referred to the possible accidental ligation of an artery. At trial, he expressed the view that perhaps a vasal artery was in spasm, caused by a clip compressing it. Or perhaps the small veins that are expected to take over, did not do so adequately, and blood backed up, which elevated pressure in the artery and blocked it.

[45] His evidence was that had he injured the testicular artery during the surgery, he would have expected acute and immediate findings post‑operatively. Given the evidence of the patient and the nurses that he had no pain the next morning, Dr. Collins said this flies in the face of a total arterial inflow blockage.

[46] He went on to say that if the artery had been completely occluded during surgery, he would have expected very severe pain, often a type that is not controlled with pain medication. There would also have been some evidence in his testicle.

[47] The patient woke with no pain or complaints, according to the notes, had a breakfast that was noted to be “well taken”, and was discharged.

[48] Accordingly, Dr. Collins is of the view that this does not seem to reflect an acute traumatic injury to the artery during the operation, notwithstanding that he is not able to explain the result.

Choice of Surgical Procedure

[49] Much evidence was led as to the choice of procedure.

[50] Dr. Collins said it was his practice to not identify nor isolate the testicular artery. He does not remove all of the veins, only the more obviously dysfunctional ones so the isolation is not required. He describes this as the “no‑touch” system. He avoids all other structures but the larger veins he is ligating. This reduces the chance of injury to the lymphatic system, to the testicular artery, and avoids putting the arteries in spasm.

[51] Another method in favour with some surgeons now is referred to in the urology text (Campbell‑Walsh Urology, Ninth Edition, Wein Kavoussi Novick Partin Peters, 2006, Elsevier Publisher). This practice involves the identification and then isolation of the testicular artery, followed by the removal of all the veins. A vasodilator such as a Papavarine solution is placed on the arteries to ensure they are identified by their pulsation. Then a loosely tied silk is placed around the artery. The text points out (p.1368) that as reported in a study in 1992, in approximately 40% of cases, the testicular artery is adherent to the under surface of a large vein. Dr. Collins pointed out that since his finger was placed under the large veins he was ligating, he would have seen the artery and did not.

[52] The plaintiff called no expert evidence, although various articles referred to outlined the importance some doctors place on this technique.

[53] Dr. John Grantmyre was duly qualified as an expert and testified for the defence. He is an urologist who also deals with male infertility.

[54] He testified that the use of the varicocelectomy procedure in the circumstances here present was a reasonable one. He is of the view that there would be a 60 per cent chance of improvement to the sperm in such a case and then a 40 per cent chance of fertility.

[55] In his own practice, Dr. Grantmyre mentions two risks only to the patients on whom he performs a varicocelectomy: the chance of bleeding and of infection from the surgery. He does not mention damage to the inguinal nerve, the recurrence of the varicocele, the occurrence of a hydrocele or the loss of a testicle.

[56] Dr. Grantmyre does not see any need to warn of these risks. In his experience of over 20 years, he has never encountered a case like this, and although he is sure it has occurred, he referred to it as an “extraordinarily rare complication”.

[57] The text referred to above places the risk of complications in a varicocelectomy, as of 2005, at nine per cent. This was after a study of 2,102 cases. Even then, lasting testicular damage was present in only one patient.

[58] Both doctors testifying stated that one method – the no‑touch or the isolation of the artery and the removal of all veins was not “better” than the other. The one set out in the text is merely a more aggressive method.

[59] In Dr. Grantmyre’s evidence, he pointed out how identifying subtle pulsations and then tying the artery with a silk thread is more dangerous and more likely to cause damage. As well, he says, veins look very different from arteries and so it is easy to identify them.

[60] One anomaly in this case is that Dr. Collins did not immediately make a post-operative report, as this was usually done by the resident assisting. No resident assisted in the operation on that day, and either he forgot to do it, or it was done and not placed in the file. Two months later, when the medical records people indicated that this had not yet been submitted, the doctor wrote it. He said that he had a clear memory of the procedure because he had talked of it extensively with the resident at the time of the second operation and it had been discussed with other doctors during morbidity rounds.

[61] As well, there are some inconsistencies and errors in the notes; for example, Mr. Akl was not discharged on March 31st but on April 3rd, after the second operation. He did not return to the hospital two days after the operation but the next day. It is not clear whether Mr. Akl was discharged at 6:30 a.m. or 7:30 a.m. I do not consider these to be material errors.

Analysis

[62] The plaintiff submits that the doctor breached the standard of care:

(1) by failing to obtain informed consent prior to the surgical procedure;

(2) by his failure to take the recognized safety precaution of identifying and isolating the testicular artery to protect it from harm during the procedure; and

(3) during the post-operative care that was provided/arranged for by Dr. Collins.

(1) Informed Consent

[63] The recommendation for a bilateral varicocelectomy was challenged by the plaintiff. Other options, it was submitted, should have been attempted before performing this procedure. I do not agree with this position.

[64] This recommendation for the varicocelectomy appears to reflect a commonly held opinion. In Campbell’s Urology text Seventh Edition, Vol. 2 (W.B. Saunders Company, Toronto), the procedure is explained in the following way in chap. 44, at p. 1,364: “Varicocelectomy - with a natural pregnancy rate of 40 - 70 % should be the first level of therapy.” When dealing with varicoceles, it “is the most commonly performed surgical operation in treatment of male infertility.” (Campbell’s Urology text Ninth Edition, Vol. 1 (Saunders/Elsevier, Philadelphia, 2007) at section VI, p. 658).

[65] I am satisfied on the evidence of both Dr. Collins and Dr. Grantmyre that other options were discussed with the patient. Given his numerous memory gaps, I am not persuaded that Mr. Akl’s testimony on the subject, to the effect that only one other option was discussed, was reliable.

[66] Further, Mr. Akl had the opportunity to discuss the matter freely with his wife, and only notified the doctor’s office, nine days after the procedure was recommended that they had decided to go through with that procedure. He had ample time to consider any other option.

[67] The principles of informed consent were established by Laskin C.J.C. of the Supreme Court of Canada in two leading cases: Reibl v. Hugues, 1980 23 (SCC), [1980] 2 S.C.R. 880 and Hopp v. Lepp, 1980 14 (SCC), [1980] 2 S.C.R. 192. The jurisprudence establishes that there are three elements to the doctrine of informed consent:

(1) The duty of disclosure: Did the defendant physician discharge his or her duty to outline the basic nature, character and material risks of the medical treatment?

(2) Materiality of the risk: Was the complication that occurred a risk that would have been considered “material” and one which should have been disclosed?

(3) Causation: the plaintiff must establish the necessary causal connection between the breach of duty and the decision to undergo the proposed treatment. The plaintiff must prove that a reasonable patient would not have provided consent to the procedure.

(Also see Williams v. Farrell, 2006 22124)

[68] The content of the duty of disclosure was described by Laskin C.J.C. in Reibl v. Hugues, supra:

It is now undoubted that the relationship between surgeon and patient gives rise to a duty of the surgeon to make disclosure to the patient of what I would call all material risks attending the surgery which is recommended. The scope of the duty of disclosure was considered in Hopp v. Lepp [ 1980 14 (SCC), [1980] 2 S.C.R. 192.] at p. 210, where it was generalized as follows:

In summary, the decided cases appear to indicate that, in obtaining the consent of a patient for the performance upon him of a surgical operation, a surgeon, generally, should answer any specific questions posed by the patient as to the risks involved and should, without being questioned, disclose to him the nature of the proposed operation, its gravity, any material risks and any special or unusual risks attendant upon the performance of the operation. However, having said that, it should be added that the scope of the duty of disclosure and whether or not it has been breached are matters which must be decided in relation to the circumstances of each particular case.

[69] In Groves v. Morton, 2006 CarswellOnt 7578 at para. 11, the Ontario Superior Court of Justice more recently summarized the past jurisprudence and described what must be considered when determining whether the doctor’s disclosure was adequate:

The first arm of the test involves a consideration of whether the medical practitioner adequately advised the patient of:

(i) the nature of the procedure;

(ii) the benefits and risks of the procedure;

(iii) any alternatives to the procedure; and

(iv) the likely prognosis of not having the procedure.

[70] In Groves, supra, the judge agreed that it would be preferable to tell a patient of even a remote risk, in that case of lifelong testicular pain after a vasectomy, but found that there had been “adequate disclosure” in the circumstances, since the disclosure was consistent with the practice of other urologists in Ontario.

[71] The issue of “material risk” in this case is critical.

[72] Chief Justice Laskin of the Supreme Court said the following on the issues of risk in Hopp v. Lepp, supra, p. 210.

The case law on the question of informed consent or the duty of disclosure has exhibited a variety of classifications of risks involved in proposed surgery or therapy. Probable risks, which must be disclosed, have been contrasted with mere possibilities (as, for example, risks involved in any operation), but this dichotomy cannot be absolute because it ought to take note of whether a risk is or is not quite remote, and here the gravity of the consequences, if a risk should materialize, must be brought into account; for example, the risk of death, even if a mere possibility, as contrasted with some residual stiffness of a member of the body. A second classification, expressed in American cases and American writings, is that of material and immaterial risks. Under this classification possible risks whose consequences would be grave could well be regarded as material. Materially connotes an objective test, according to what would reasonably be regarded as influencing a patient's consent.

[73] The Ontario Court of Appeal summarized Laskin C.J.C.’s reasoning in Videto et al. v. Kennedy (1981), 1981 1948 (ON CA), 33 O.R. (2d) 497 at para. 11:

3. A risk which is a mere possibility ordinarily does not have to be disclosed, but if its occurrence may result in serious consequences, such as paralysis or even death, then it should be treated as a material risk and should be disclosed.

4. The question of whether a particular risk is a material risk is a matter for the trier of fact. …

[74] It is clear that the risk here was not such as was discussed in Videto, supra. The consequences are not of the magnitude of “paralysis or death”. Indeed the evidence is that sperm quality and production is not affected by the loss of one testicle. The changed appearance of the testicle is the main result. Here, the scrotum was left in place.

[75] In this case, the plaintiff clearly stated he would not have consented to the procedure had he known he could lose a testicle, and answered in the affirmative when questioned by his counsel as to whether that applied even if the risk was one in one thousand. This is not an unexpected answer in such circumstances, but it is not necessarily reliable.

[76] Dr. Grantmyre’s opinion is very telling and provides the court with expert evidence on this important point of materiality. He said in his report “In my opinion after looking after infertility patients for over twenty years, if one had a 40 per cent chance of conceiving a child after this type of surgery versus a less than 1/1000 chance of losing a testicle, I have little doubt that virtually all patients would proceed with the surgery”.

[77] However, Dr. Collins did say that on occasion some patients choose not to go through this procedure for a variety of reasons. There were no further questions as to what this “variety” included.

[78] In considering the scope of the duty to disclose, in the trial decision of Reibl v. Hughes, supra, the court at pp. 43‑4 sets out that this evaluation by the court is to be determined usually on the basis of expert medical evidence. In this case, there was no such evidence for the defence.

[79] In Reibl v. Hughes, supra, the plaintiff was one year and a half away from earning a lifetime retirement pension when he followed the recommendation of his surgeon to submit to an operation which was not strictly necessary at that time, and which left him paralyzed. The patient stated he would have chosen a shorter normal life, than a longer one as a cripple. At least he would have waited until his pension vested, as, after the surgery’s results, he was unable to continue his employment and was disentitled to extended disability benefits and a pension.

[80] The patient’s evidence and that of his wife, in Reibl, was found to be credible and reliable as well as logically reasonable. Here, the plaintiff’s spotty memory does not assist the court.

[81] The facts in Reibl, including the seriousness of the loss suffered and the devastating financial consequences, are of a vastly greater degree and nature than losses in the case at bar.

[82] However, I do not find that even if there was a failure to mention the loss of a testicle, this was a failure to disclose a “material” risk. The loss did not affect his ability to produce sperm in the same quantity as when he had two testicles. The risk here was extremely remote and not material.

[83] Given the choices made by the plaintiff and his wife, who were obviously very anxious to do what they could to conceive, and given the plaintiff’s poor memory and recall of many of the facts related to the procedure, (including not remembering signing any consent; nor of meeting with the anaesthetist nor that he was told after the second operation that one testicle can produce as much sperm as two, etc.). I am persuaded that, like a reasonable patient in his circumstance, he would have proceeded even had he understood the minimal nature of the risk. (see Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539.)

[84] I agree with the opinion of Dr. Grantmyre and with his conclusions on the point of what virtually all patients would do. Mr. Akl’s evidence on this point was no doubt coloured by the proceeding in which he found himself, and I did not consider it credible

[85] I find that there was informed consent.

(2) Was there a breach of the standard of care in the performance of the bilateral varicocelectomy?

[86] The plaintiff’s submissions in support of this breach of duty are the following:

(a) Dr. Collins did not identify the testicular artery as is set out in the urology text referred to in Campbell‑Walsh Urology, Ninth Edition, Wein Kavoussi Novick Partin Peters, 2006, Elsevier Publisher. His practice was to tease out the more obviously dysfunctional veins and transect only those veins.

(b) Accordingly, the submission is that Dr. Collins probably ligated the artery while doing that. It is known that sometimes the testicular artery adheres to large veins.

(c) This could “obviously” happen due to general carelessness or as a direct consequence of failing to identify and isolate the artery.

(d) Because the testicular artery was not isolated, the doctor did not assess its viability before he closed the incisions.

(e) He did not make use of a vasodilator or a Doppler to assist in determining if there was blood flowing to the testicle through the artery.

(f) If damage to the artery is identified post-operatively, there is a six-hour window of opportunity during which the artery may be repaired. After that, without blood flow, the testicle is lost. Because of inadequate post-surgical care, this opportunity was lost.

[87] Both doctors who testified used the same method, one that is different from that set out in the urology text referred to earlier.

[88] Dr. Grantmyre was asked directly if the text provided a “better” method for this surgery. His response was that it was “different” and that was all.

[89] The applicable standard of care is established through expert evidence. The plaintiff must prove, via expert testimony, that the defendant physician failed to possess or to exercise the reasonable degree of skill or knowledge possessed by the average practitioner in his or her field:

A judge or jury is in no position to compare the conduct of the doctor to that required of the “reasonable practitioner” without expert evidence. The Court needs such information in order to decide whether the defendant acted according to “approved practice,” failed to meet the standard of care, or only made an “error of judgment.” The experts are usually doctors who practice the same specialty as the defendant or who are specialized in the medical area in issue.

(See Picard, E.I. & G, Robertson, Legal Liability of Doctors and Hospitals in Canada, 4th ed. (Toronto: Carswell, 2007) at 226

[90] The Supreme Court of Canada in ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674 outlined that courts do not have the necessary expertise to assess the technical matters relating to the diagnosis or treatments of patients. The Court clarified that is only when the practice falls within the “ordinary common sense” of a reasonable person that it can be judged to be negligent without expert knowledge.

[91] Paragraphs 38 and 44 of ter Neuzen, supra, are as follows:

It is generally accepted that when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field. In a sense, the medical profession as a whole is assumed to have adopted procedures which are in the best interests of patients and are not inherently negligent.

Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. Where a common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for a finder of fact to conclude that such a standard was inherently negligent. On the other hand, matters falling within the ordinary common sense of juries can be judged to be negligent. For example, where there are obvious existing alternatives which any reasonable person would utilize in order to avoid a risk,…

[92] There are exceptions to this requirement for expert evidence.

[93] In addressing the issue of standard of care, ter Neuzen v. Korn, [1995] 2 S.C.R. 674 at para. 41, it makes it very clear that where a practice is “ ‘fraught with obvious risks’ such that anyone is capable of finding it negligent, without the necessity of judging matters requiring diagnostic or clinical expertise” then negligence can be found even in the absence of expert evidence.

[94] As well, the case of Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, points out that:

In many malpractice cases, the facts lie particularly within the knowledge of the defendant, and very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary.

[95] Justice Sopinka refers to this as a “robust and pragmatic approach to the … facts” quoting Lord Bridge in Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557. At para. 33, he goes on to state, “If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield’s famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a “robust and pragmatic approach to the ... facts” (p. 569).

[96] The defence submits that Dr. Collins’ theory, providing a new explanation as to how the injury occurred in the face of a more probable explanation that he himself previously advanced, should not be accepted and, in any event, even if accepted, should not be found to be sufficient to rebut the probable link between the manner in which surgery was performed and Mr. Akl’s injuries.

[97] The defence’s further submission is that “If we accept the evidence of Dr. Collins and Dr. Grantmyre that injury to the testicular artery is a very rare occurrence and that injury to the testicular artery in the absence of carelessness is so easily avoidable that it does not warrant serious consideration by the surgeon as a risk calling for added precaution, we are left to conclude that the injury to the testicular artery in this case occurred because the surgeon was careless. There is no persuasive evidence to explain how the injury occurred other that by inadvertent ligation of the testicular artery, which on the evidence before the court would be attributable to the lack of ordinary reasonable care on the part of the surgeon.”

[98] A physician is not necessarily negligent merely because there is a body of opinion that takes a contrary view. In some instances, there may be more than one acceptable course of action, which at the time it is contemplated, will be reasonable. (See Belknap v. Meakes (1989), 64 D.L.R. (4th) (B.C.C.A.) at 473.

[99] The Nova Scotia Supreme Court was faced with two general practices of conducting shoulder surgery in Parr v. Mirza (1993), 1993 4628 (NS SC), 122 N.S.R. (2d) 228 at paras. 102 and 103. The Court found that the defendant physician was not negligent in using the established practice rather than the developing newer practice. The Court provided the following explanation at para. 103:

The law must be slow to reject as negligence both the use of an established method of operating during the time that a newer method is developing as well as the use of the newer method which shows prospects of yielding better results. In this way the law seeks to strike a balance between the desirability of retaining the best of the past and the need to encourage future advancements.

[100] Dr. Collins testified that the varicocelectomy procedure was uneventful. The anaesthetist’s notes seem to reflect that.

[101] Dr. Grantmyre’s evidence was particularly helpful. On reviewing all of the records, including those of the nursing and anaesthesia notes, Dr. Grantmyre opined that the procedure appears to have been performed in an uncomplicated manner with no untoward events.

[102] Dr. Grantmyre testified that the amount of time taken for the procedure was also indicative of an uneventful surgery.

[103] As stated above, Dr. Collins’ evidence was that the post-operative reports of Mr. Akl’s condition are contrary to what would have occurred if there had been a transection of the testicular artery during the operation. He spoke of acute and immediate occurrences of pain in such an event, perhaps not controlled by medication, and not as well-managed as disclosed by the nurses’ notes.

[104] The patient did complain of pain, but at various times, was up, walked to the bathroom, voided normally and with no reported pain, and by early next morning was not in pain. The complaints seem to have been of epigastric pain. The notes show that he met the discharge criteria, and accordingly was discharged.

[105] I do not accept the submission of the plaintiff that it is “most likely” that the damage occurred because the artery was damaged during the operative procedure. Counsel submitted that “Dr. Collins probably clipped and then transected the artery while he was ligating the functional veins and as a consequence it can be reasonably inferred that he failed to take reasonable care at the time that this aspect of the procedure was performed.” I accept that that is possible but I am not persuaded that on balance, it is the only probability I can consider.

[106] Dr. Collins himself had no clear explanation of how the damage occurred, but stressed that arteries and veins are very different looking and, had the artery adhered to a vein, it would have been readily noticeable and he would have seen it.

[107] Dr. Collins said on discovery that he “probably” ligated the testicular artery although, at trial, he testified that on further consideration, there may be other reasons why the testicle was lost. He theorized that if the artery had been compressed, it could go into spasm and it could have thrombosed and blocked or decreased the blood flow.

[108] He had not mentioned these possibilities at discovery, and said that he did not know that he could have corrected his answers on discovery after the fact. He was clear that there was no indication of injury during the operation, nor when Mr. Akl was seen afterwards. He does not know how the injury was caused.

[109] Most persuasive, in my view, is the fact that the patient’s pain seemed to retreat, and permit comfortable sleeping, easy movement, and the ingestion of a meal, all of which, as I understand it, is directly contradictory of a surgical misadventure. I have Dr. Collins’ evidence as to the usual course for a patient in such a case, and, accept it as credible.

[110] The plaintiff’s submissions that the pain was “severe” and that he had an “unusual pain experience” requiring “more than the normal amount of pain medication” are unsupported by evidence. He did receive what appears to be a significant amount of analgesics but there is no evidence as to what would be normal. Further, the patient’s self-reporting as to the severity of the pain is inconsistent with the observations of the nurses in the PACU.

[111] Up to this point, I have formed the view that Dr. Collins has met the standard of care required of a urologist in these circumstances. Dr. Grantmyre’s evidence supports this view.

(3) Post-Operative Care

[112] The same is not true once the patient returns to the hospital when his pain has increased, and he has difficulty walking.

[113] He returns to the emergency dept. at approximately 9:00 p.m.

[114] He is examined by the emergency doctor, who prescribes pain medication. Immediate steps should have been taken to investigate his pain, given his recent surgery.

[115] At approximately 1:00 a.m., a call goes out to Dr. Collins’ urology resident. However, the window of opportunity of six hours after surgery to save the testicle has already closed. However, an early intervention may yet have assisted. In any case, it would have prevented more hours of pain.

[116] In my view, at this point, the care has become negligent.

[117] The resident does not appear until 7:15 a.m. or 8:00 a.m. the next morning. At approximately the same time, Dr. Collins arrives at the hospital, a Doppler ultrasound is performed, and it is clear that the testicle has been deprived of blood.

[118] It is common ground that Dr. Collins is responsible for the post-operative care.

[119] However, I heard no evidence as to any losses arising from this negligence.

[120] The parties advised me at the beginning of the trial that they had agreed on damages for the loss of a testicle. It is not clear to me whether they have also agreed on damages for negligence of post-operative care. If they have not, or cannot, I will receive brief written submissions on the issue within 20 days, or, on request, will schedule a brief hearing to do so.

[121] Costs will be dealt with after that time.

Madam Justice Monique Métivier

Released: June 5, 2013

COURT FILE NO.: 10-48056

DATE: 2013/06/05

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Ali Akl
Plaintiff

– and –

Dr. John Collins
Defendant

REASONS FOR DECISION

Métivier J.

Released: June 5, 2013