ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-3672-00
DATE: 20130315

B E T W E E N:

KRZYSZTOF JENDRZEJCZAK

R.S. Sleightholm, for the Plaintiff

Plaintiff

• and -

DR. LOUIS M. WEISLEDER

S.R. Schenke, for the Defendant

Defendant

HEARD: January 7-10, 2013

REASONS FOR JUDGMENT

Daley J.

INTRODUCTION:

1In this action, the plaintiff Mr. Jendrzejczak alleges that the defendant Dr. Weisleder, an orthopaedic surgeon, was negligent in the medical care that he provided to him.

2At the outset of the trial, counsel indicated that the parties had agreed on the quantum of damages to be awarded to Mr. Jendrzejczak, in the event that Dr. Weisleder was found liable to him in negligence. The damages were agreed upon at $45,000.

3During this trial, evidence was offered by Mr. Jendrzejczak, an orthopaedic surgeon called on his behalf, by the defendant doctor and an orthopaedic surgeon called on his behalf.

SUMMARY OF EVIDENCE:

Evidence of Mr. Jendrzejczak

4Mr. Jendrzejczak, who was employed with a security company and stationed at a condominium in Mississauga, testified that while working on March 25, 2007, he sustained an injury to his right arm while lifting a heavy table.

5In cross examination, Mr. Jendrzejczak testified that he did not see his family physician until ten days after the date of his injury, and that his first visit with her after the alleged injury was on April 4, 2007.

6When presented with a calendar for 2007, the plaintiff agreed that the incident did not in fact occur on March 25, 2007, as that was a Sunday, and he only worked Monday through Friday. He then stated that the incident must have occurred on Friday, March 23, 2007.

7Further, as to the date of the incident when he was injured, Mr. Jendrzejczak was directed to the transcribed version of the clinical notes and records of his family physician that indicated he attended her office on March 26, 2007, about an injury to his right forearm. In spite of this entry in his family physician’s clinical notes, Mr. Jendrzejczak maintained that he did not see his doctor immediately after the accident.

8Further, Mr. Jendrzejczak testified that he recalled x-rays and ultrasound examinations being done on the same day following his visit with his family doctor. However, the clinical records produced indicate that the plaintiff underwent x-rays of his shoulders on March 26, 2007, and ultrasound examinations of his shoulders on April 3, 2007.

9As to the date of the incident giving rise to the injury to his right arm, Mr. Jendrzejczak agreed in cross-examination that the date he had offered of March 25, 2007 was his "best guesstimate."

10On the visit with his family physician, in addition to referring him for the x-ray and ultrasound examinations, she also referred him to Dr. Weisleder. According to the hand-written referral note, she made the referral for Mr. Jendrzejczak on April 4, 2007.

11Mr. Jendrzejczak first saw Dr. Weisleder on April 13, 2007 at Credit Valley Hospital at his clinic office, and he estimated that this meeting lasted approximately ten minutes. During this appointment the defendant examined him.

12Mr. Jendrzejczak testified that he advised the defendant that he was ready to undergo surgery with respect to his right arm; however, the defendant advised him that he did not require surgery, and further that it was safe for him to exercise.

13In the same visit, Mr. Jendrzejczak was also examined for bilateral shoulder pain as this was also one of the reasons for the referral to Dr. Weisleder by his family physician. He had suffered from pain in his shoulder areas for approximately two and a half years prior to this visit.

14Dr. Weisleder advised the plaintiff that he wished him to have MRI examinations of both of his shoulders. Mr. Jendrzejczak also testified that the defendant advised him that he may have ruptured his right distal biceps tendon.

15Mr. Jendrzejczak testified that Dr. Weisleder did not explain the significance of a rupture to the distal biceps tendon, nor did he make any recommendations regarding treatment for this condition.

16The plaintiff further testified that Dr. Weisleder did not advise him that he was unqualified to surgically treat a torn distal biceps tendon, and that at no point did Dr. Weisleder refer him to any other physician for further treatment with respect to this condition.

17However, in cross-examination, Mr. Jendrzejczak agreed that Dr. Weisleder may have mentioned the term "consultation", but he could not remember the words actually stated by him.

18Mr. Jendrzejczak further testified that the defendant did not advise him of any time limits within which he should seek treatment for the torn distal biceps tendon.

19In cross-examination, Mr. Jendrzejczak was referred to the typed consultation note of the defendant from his visit with him on April 13, 2007. Mr. Jendrzejczak disputed several of the entries made by Dr. Weisleder in his note, including that he had reported bilateral shoulder pain to the doctor. Mr. Jendrzejczak also denied telling the doctor that he had sustained the injury to his right arm "four weeks ago", and he denied having any discussion about "obtaining an opinion from Dr. Manolopoulos regarding the merit of fixing his biceps tendon," all of which was documented in Dr. Weisleder’s note.

20Further, Mr. Jendrzejczak denied advising the defendant that: “He has decided to hold off seeking a surgical opinion regarding his biceps until the MRIs are completed”, as was recorded in the doctor’s note. He testified that he was the only one to mention surgery in that meeting and that the defendant did not advise him regarding the surgical and nonsurgical treatment options relating to his right arm.

21Following this visit with the defendant, Mr. Jendrzejczak underwent the MRI examinations on each shoulder and returned to see Dr. Weisleder again on July 6, 2007.

22He informed Dr. Weisleder that he was still having continuing pain in his right arm and he testified that Dr. Weisleder stated to him something to the effect that he did not wish the plaintiff to "blame him," so Dr. Weisleder then referred him to orthopaedic specialist Dr. Manolopoulos, and advised him that he may need surgery on his right bicep.

23Mr. Jendrzejczak further testified that the defendant informed him that the MRI studies on his shoulders indicated a need for surgery, and Dr. Weisleder stated that he could carry that out for him.

24Mr. Jendrzejczak met with Dr. Manolopoulos on July 11, 2007 who advised him that he did not suggest surgery for his right arm. Mr. Jendrzejczak testified that at the time of this visit, he was experiencing pain in his right elbow and had suffered from loss of strength.

25Dr. Manolopoulos' clinical note on this meeting with the plaintiff confirms that the reason he was referred to him was the right biceps tendon tear reported to have occurred in March, 2007.

26In his note the doctor states, in part, regarding the examination of his right bicep:

On examination today, he has an obvious Popeye muscle in his arm. He is neurovascularly intact. He has a good range of motion in his elbow, and he has virtually no pain. He has near full strength. He has an obvious biceps tendon rupture; however, it is now four months old. As such, I do not think that I would recommend surgical repair of it. He is having no pain, so there is really no indication for it. As such, I will see him on a prn basis in the future.

27In cross-examination, Mr. Jendrzejczak testified that he told Dr. Manolopoulos that he was suffering from pain, numbness, deformity, and loss of strength in his right arm. He disagreed with the contents of Dr. Manolopoulos' note where he stated that he had good range of motion in his elbow, with virtually no pain, and near full strength.

28The plaintiff did not attend upon Dr. Manolopoulos again, nor did he undergo any surgical treatment for the torn distal biceps tendon.

29In cross-examination, the plaintiff was referred to a discharge letter dated October 18, 2008 from a physiotherapist at the Credit Valley Hospital physiotherapy department. In this letter the physiotherapist stated that Mr. Jendrzejczak attended on one occasion for physiotherapy on August 3, 2007. It was reported that, as of that date, he was doing well and that he presented with close to full elbow flexion range of motion, full extension, that the strength of his biceps and triceps were close to full, and that he was “doing extremely well such that active physiotherapy was not indicated."

30The letter further indicated that Mr. Jendrzejczak's physiotherapy chart was kept open for three weeks, and no further contact was made by him.

31The plaintiff disagreed with the statements made by the physiotherapist, and testified that he was in pain, contrary to what was reported in this letter.

32Further, with respect to his visits with his family physician, while Mr. Jendrzejczak testified that he continued to report pain and limitations in respect to his right elbow to his family doctor in 2008 and 2009, the transcribed clinical records for his visits with his physician on July 8, 2008 and April 9 and July 28, 2009 contain no reference to complaints with respect to his right arm.

33Mr. Jendrzejczak attended High Tech Physiotherapy on April 9, 2009 in respect of his right arm complaining of weakness and numbness and occasional pain. The report from this clinic indicated a recommendation that he begin rehabilitation therapy to assist with restoration of strength and endurance to counter the effect of de-conditioning.

34The plaintiff acknowledged in cross-examination that he did not undertake the recommended physiotherapy treatment, although he had health insurance coverage for this.

Evidence of Dr. Michael McKee

35Dr. Michael McKee testified on behalf of Mr. Jendrzejczak as a medical expert certified as a specialist in orthopaedic surgery. Dr. McKee did not conduct a physical examination of the plaintiff. He prepared a written report dated June 15, 2010 based on a review of clinical records and notes relating to Mr. Jendrzejczak and Dr. Weisleder’s discovery evidence.

36Dr. McKee testified that he has carried out many surgical procedures with respect to torn distal biceps tendons.

37In cross-examination, Dr. McKee acknowledged that his report did not comply with rule 53.03, of the Rules of Civil Procedure, R.R.O. O. Reg. 194 because it did not particularize the instructions that were provided to him, nor the nature of the opinion sought. Dr. McKee could not produce a copy of the letter of instruction received from Mr. Jendrzejczak's counsel. He indicated that he was asked to provide a general medical opinion with respect to the treatment and care provided by Dr. Weisleder.

38Although the report provided by Dr. McKee was not technically compliant with rule 53.03, counsel for Dr. Weisleder indicated that he would not oppose the plaintiff's counsel’s request for leave to call the doctor.

39Dr. McKee was accepted by the court as an expert in orthopaedics as well as an expert in surgical treatment of ruptured distal biceps tendons.

40In his evidence and in his report, the doctor confirmed Mr. Jendrzejczak's diagnosis as a distal biceps tendon rupture. He explained that this diagnosis would be arrived at based on a clinical examination and history taking.

41As to the physician's standard of care in 2007 for this condition he stated in his report at p.3:

I believe that in the province of Ontario in 2007 the standard of care for an acute distal biceps tendon rupture in the dominant arm on an active, otherwise healthy, 49-year-old individual would be surgical repair. In such a presentation, I would typically advise the patient of the diagnosis, and advise the patient of the advantages of early surgical repair, and recommend surgical intervention. Also, in this case, where a number of diagnoses were being entertained (bilateral rotator cuff pathology and right distal biceps tendon rupture) I believe that given the time sensitive nature of the problem, and the increasing difficulty with the passage of time of obtaining an accurate repair, that the distal biceps tendon rupture was the priority treatment following the April 13, 2007 consultation.

42Dr. McKee did not offer any opinion in his report as to whether Dr. Weisleder’s assessment and treatment of the plaintiff met this standard of care. Counsel for the plaintiff sought to pose the question as to whether or not Dr. Weisleder had met the standard of care, and for the oral reasons given during the trial, I ruled that that was an improper line of questioning given that no such opinion had been expressed by the doctor in his report.

43Dr. McKee testified that there are two types of biceps tendon tears namely proximal and distal tears. Proximal tears are more common. There are two treatment options with respect to a distal biceps tendon tear: operative and non-operative.

44Dr. McKee testified that if one follows the non-operative treatment plan, the tendon and muscle will heal but the patient may be left with deformity, weakness and fatigue.

45As to the surgical option, he stated that although there are some risks, it is the preferred treatment for most patients if they are active and healthy, and that this was the standard of care in 2007.

46With respect to surgical risks, the doctor testified that the 30% risk level quoted by Dr. Weisleder in his discovery evidence was high. The doctor testified that 90 to 95% of patients with this injury opt to have surgery.

47The surgery for this type of injury involving a healthy and active patient should be done as soon as possible. The re-attachment of a torn tendon can be done reasonably up to eight weeks after the injury.

48A late surgical treatment involving re-construction, as opposed to mere re-attachment, of a tendon involves more complex surgery and includes the grafting of a tendon. The risks of this procedure are greater, and the outcome may not be as good as compared to re-attachment of the tendon at an earlier time.

49With respect to Mr. Jendrzejczak's family physician's referral letter sent to the defendant, Dr. McKee agreed that it did not indicate the date of injury, or whether the location of the biceps tendon tear was distal or proximal. He agreed that 90% of the biceps tendon tears are proximal and the remaining 10% are distal.

50Dr. McKee agreed in cross-examination that in circumstances where patients are seen with medical conditions that are beyond a physician’s expertise the physician should firstly diagnose the condition, advise the patient that he is not qualified to provide the care or surgical treatment required, and then make the referral to the appropriate physician. He agreed that this was the applicable standard of care.

51Dr. McKee acknowledged in cross-examination that he did not offer any opinion in his report with respect to what the defendant, in the circumstances known to him, should have done in the event he was not qualified to offer the plaintiff the appropriate care or surgical treatment.

Evidence of Dr. Weisleder

52Dr. Weisleder testified that he was qualified as an orthopaedic surgeon, and that he has held privileges at The Credit Valley Hospital since 1994.

53In 2007, he received patient referrals from both family doctors, and through the emergency department. His practice was to see patients with shoulder problems in his office and any acute injury patients in his clinic at the hospital.

54Dr. Weisleder had received several patient referrals from Mr. Jendrzejczak's family physician, prior to his contact with him.

55Dr. Weisleder personally screened referral letters from family physicians to assess the level of urgency involved. Mr. Jendrzejczak's family physician’s letter of referral was received and reviewed by the defendant, and he testified that he personally wrote on the referring doctor's letter "clinic 13/4/07", this being the scheduled date booked for Mr. Jendrzejczak's attendance with him. The referring physician's letter was then faxed back to her with this appointment date.

56Dr. Weisleder testified that upon reviewing the family physician's letter of referral, his first concern was determining the date upon which the plaintiff was injured and first experienced symptoms. From reading the family physician's referral letter he concluded that there was a remote possibility of a distal tear in the biceps tendon.

57Dr. Weisleder acknowledged that in the event Mr. Jendrzejczak had suffered a distal biceps tendon tear, the circumstances were time-sensitive, and that the further out from the date of injury surgical treatment becomes more difficult.

58Based on his experience in 2007, nine out of ten biceps tendon tears he encountered were proximal as opposed to distal. Treatment options with respect to distal biceps tendon tears were surgical and nonsurgical.

59The defendant testified that in 2007, he did not do surgical repairs of distal biceps tendon tears, as he did not view himself as professionally qualified for surgical management of this type of injury.

60The defendant stated that the ideal time for treatment following a tear of the distal biceps tendon would be within seven to ten days, but that surgical treatment could be administered for up to three years following the injury.

61As scheduled, Dr. Weisleder had his first visit with Mr. Jendrzejczak on April 13, 2007. He testified that, although he would see 60 patients each week, he had an independent recall of the meeting with Mr. Jendrzejczak, as he had a complicated medical history involving potentially three operations with respect to his bilateral rotator cuff symptoms and his right elbow.

62Dr. Weisleder believed that the meeting with Mr. Jendrzejczak took 10 to 15 minutes. His handwritten notes of this visit were reviewed during his testimony. Within his notes he included the reference "4/52," which he testified was his abbreviation for indicating that the patient had reported to him that the injury had occurred four weeks prior to the date of the visit.

63During this first visit with Mr. Jendrzejczak, he conducted a physical examination of the patient. He noted that his right biceps tendon looked discoloured and was tender, and he testified that this was consistent with a distal biceps tendon tear and not with a proximal tendon tear. The defendant agreed that in this first visit he was able to confirm the diagnosis of a distal biceps tendon tear. He also concluded that the plaintiff possibly had bilateral rotator cuff tears; however, he wished to have the plaintiff undergo MRI examinations to confirm that diagnosis.

64Dr. Weisleder understood that at the time of this first examination of Mr. Jendrzejczak, he was already four weeks post injury, and thus he believed that surgical treatment could be difficult.

65As Dr. Weisleder did not carry out surgical treatment of distal biceps tendon tears in 2007, it was his practice to refer patients such as this to a colleague who was more experienced. His referral practice at that time was to advise the patient with respect to the diagnosis and the surgical and non-surgical options, and to explain to them the indications for surgery.

66However Dr. Weisleder testified that when informing patients of their options for treatment with regard to this type of injury he did not advise them of the risks and benefits of surgery as it was his view that the patient should receive that opinion from the treating surgeon.

67In his meeting with the plaintiff in April 2007, Dr. Weisleder testified that he advised Mr. Jendrzejczak that he had sustained a distal biceps tendon tear, and he advised him of the surgical and non-surgical treatment options. He also testified that he advised Mr. Jendrzejczak that as he was four weeks post-trauma, surgery could be done, but it could be difficult.

68Dr. Weisleder further testified that he advised the plaintiff that only one physician in his medical group carried out surgical treatment for this type of injury, namely Dr. Manolopoulos. He advised Mr. Jendrzejczak that he the wished to refer him to Dr. Manolopoulos, and that he should take his advice as to whether surgery was appropriate.

69As to the timing of surgical treatment, Dr. Weisleder testified that he told Mr. Jendrzejczak that if he was interested in surgery he should see Dr. Manolopoulos.

70As to Mr. Jendrzejczak's rotator cuff injuries, he was of the view that the plaintiff's concerns in this regard were not urgent, and he recommended the MRI examinations be carried out.

71Dr. Weisleder testified that the plaintiff stated that he wanted to know the status of his shoulders before deciding whether to have a referral to Dr. Manolopoulos. In his hand written clinical note on the visit in April, 2007, Dr. Weisleder had written in his note "(Dr. Manolopoulos)," which he testified was a shorthand note that indicated that the patient was offered a referral to Dr. Manolopoulos, but had declined it.

72In his typed consultation note in respect of the visit of April 13, 2007, which was not dictated by the defendant until December 7, 2007, after he had received correspondence from the plaintiff's solicitor, he stated in part:

I discussed the option of obtaining an opinion from Dr. Manolopoulos regarding the merit of fixing his biceps tendon. With regard to his rotator cuff tears, ultrasound is not always accurate for delineating rotator cuff pathology. I have advised him to have MRIs of each shoulder to better evaluate each rotator cuff. He has decided to hold off seeking a surgical opinion regarding his biceps until the MRIs are completed. I don't disagree. He will be seen again in follow up.

73Dr. Weisleder testified that he had believed he had dictated a consultation report following of the plaintiff's visit with him in April, 2007; however, he could not locate one.

74Dr. Weisleder testified that his consultation reports are typically dictated at the end of each day. The handwritten notes are prepared in two copies, one of which goes into the hospital file and the other he keeps to aid in dictating his report. The handwritten notes that have been produced in this trial were copies of the notes contained in the hospital records.

75Dr. Weisleder agreed that the surgical risks for treatment of the plaintiff's injury increase with the passage of time, and that even at four weeks post-trauma he agreed that the plaintiff may have required reconstructive surgery. He further agreed in cross-examination that he did not advise the plaintiff during his visit in April 2007, that at three to eight weeks post-trauma, he may have to undergo reconstruction surgery as opposed to the more simple procedure of re-attachment of the tendon.

76Dr. Weisleder had his second clinic visit with Mr. Jendrzejczak on July 6, 2007. Having consulted the MRI studies on Mr. Jendrzejczak's shoulders, he concluded that there were tears to the rotator cuff in both shoulders. The defendant testified that he provided advice to the plaintiff with respect to the surgical and non-surgical treatment plan options for his shoulders. Mr. Jendrzejczak did not decide on this visit whether to proceed with rotator cuff surgery.

77With respect to his right bicep, Dr. Weisleder testified that, as Mr. Jendrzejczak now knew all of his orthopaedic problems, he was again advised that if he wanted surgery with respect to his right arm he should see Dr. Manolopoulos, and the plaintiff agreed to do so.

78Dr. Weisleder testified that he believed surgery was still an option with respect to the plaintiff's arm when he made the referral to Dr. Manolopoulos in July, 2007.

79Dr. Weisleder’s office arranged an appointment for Mr. Jendrzejczak to see Dr. Manolopoulos on July 11, 2007.

Evidence of Dr. Cameron Paitich

80Dr. Cameron Paitich, an orthopaedic surgeon, testified as an expert witness on behalf of Dr. Weisleder. He did not examine Mr. Jendrzejczak. His opinion is contained in his report of April 6, 2011.

81Dr. Paitich has been practicing orthopaedics since 1988, with a specialty in spinal surgery and trauma.

82He testified that he has managed both proximal and distal biceps tendon tears and that he has carried out approximately 15 distal biceps tendon repairs. He does not do reconstructive surgery for this type of injury, and stated that it must be done in a tertiary hospital.

83He further testified that ideally he carries out surgery with respect to distal biceps tendon ruptures within three weeks.

84In his report of October 6, 2011, Dr. Paitich stated that Dr. Weisleder managed Mr. Jendrzejczak with the standard of care expected of an orthopaedic surgeon practicing in Ontario. Specifically, given the details contained in the letter of referral from a family physician, Dr. Paitich concluded that in seeing the plaintiff within nine days of receiving the referral, Dr. Weisleder met or exceeded the applicable standard of care in that respect.

85He noted that Dr. Weisleder provided to the plaintiff the option of surgical management and a referral to a surgeon experienced in surgical management of distal biceps tendon ruptures.

86Dr. Paitich notes that:

Regardless of whether conservative treatment was undertaken or operative treatment was undertaken, it is unlikely that this man would appreciate any functional improvement when the two procedures are compared. While strength and endurance is expected to be greater with a surgical repair, the incremental improvement in strength and endurance often does not translate into any functional difference when compared to conservative treatment. It is my opinion that Dr. Weisleder managed Mr. Jendrzejczak at the standard of care expected in Ontario.

87Dr. Paitich was referred to a study which he considered in preparing his opinion from The Journal of Bone and Joint Surgery, from 2009 entitled "Non-Operative Treatment of Distal Biceps Tendon Ruptures Compared with a Historical Control Group" which compared outcomes in patients with distal biceps tendon ruptures who underwent surgical intervention with those who did not. The authors of the study concluded at p. 2334:

The results of the present study imply that, for patients who are wary of an operation, who present late with the injury, or who are too ill to undergo an operation, non-operative treatment of distal biceps ruptures is likely to achieve an acceptable outcome with only modestly reduced strength (especially supination).

88In cross-examination, Dr. Paitich was questioned regarding two later studies from 2010, one from The Journal of Bone and Joint Surgery entitled "Distal Biceps Tendon Injuries", and one from the Bulletin of the NYU Hospital for Joint Diseases entitled "Distal Biceps Tendon Injuries -- Current Treatment Options."

89Dr. Paitich agreed in cross-examination that surgical treatment of distal biceps tendon injuries had been historically preferred over non-surgical management. However, he expressed the opinion that there is controversy regarding this, and that good outcomes can be achieved through non-surgical treatment of this type of injury.

90Dr. Paitich testified that a physician, in Dr. Weisleder’s position, who faces a diagnosis of a distal biceps tendon tear, should advise the patient of the diagnosis and treatment options; however, if the physician is not qualified to carry out the surgery, he should not provide advice to the patient as to the potential outcome. He stated that it is the physician's responsibility to have the patient obtain advice from another physician who can advise the patient as to the potential outcome so that they can make a decision as to whether to undergo the surgery or not.

Analysis:

91In an action based on negligence the plaintiff must establish on the balance of probabilities:

1. that the defendant owed him a duty of care;

2. that the defendant's conduct breached the standard of care;

3. that the plaintiff sustained damage; and

4. that the damage was caused, in fact and in law, by the defendant's breach:

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2S.C.R. 114 at para. 3.

92I will consider the evidence in the context of these four elements of the cause of action in negligence.

Duty of Care:

93It was common ground in this action that Mr. Jendrzejczak and Dr. Weisleder were in a patient-doctor relationship and as such, it is clear that Dr. Weisleder owed Mr. Jendrzejczak a duty of care.

Standard of Care:

94As to the second element as to whether the Dr. Weisleder’s conduct breached the standard of care, the applicable standard of care must be identified in order to determine whether a breach occurred.

95The Supreme Court of Canada in LaPointe v. Hospital Le Gardeur 1992 119 (SCC), [1992] 1 S.C.R. 351 reviewed the principles governing professional liability that a court must apply:

1. that the conduct of the doctor must be assessed against the conduct of a prudent and diligent doctor placed in similar circumstances;

2. in assessing the conduct, courts should be careful not to rely on the perfect vision afforded by hindsight; and

3. medical professionals should not be held liable for mere errors of judgment, which are distinguishable from professional fault; see also: Houlihan v. Caskey, 2006 29989 (ON SC) at para. 100.

96It is Dr. Weisleder’s position that, having diagnosed the plaintiff as suffering from a distal biceps tendon rupture, and given his professional limitations in not carrying out surgical treatment for this condition, he properly determined that it was necessary for him to refer the plaintiff to a more specialized orthopaedic surgeon who could provide surgical treatment, if necessary.

97While Mr. Jendrzejczak acknowledges that a "consultation" was discussed in his first meeting with the defendant in April of 2007, he denies that Dr. Weisleder offered him a referral to Dr. Manolopoulos. For the reasons outlined below, I have concluded that such a referral was offered to Mr. Jendrzejczak in April, 2007 and that he declined the referral at that time.

98A duty to refer to another more experienced or specialized physician arises where the physician consulted is inexperienced in regard to the diagnosis or treatment of the medical condition, or where the physician is unable to resolve a medical problem and where he or she recognizes their own limitations: Gill Estate v. Marriott [1999] O.J. No. 4509 at para. 27; Picard and Robertson, Legal Liability of Doctors and Hospitals in Canada (Toronto: Carswell, 2007) at p. 313 – 316.

99Notably, it is not Mr. Jendrzejczak's position that he received inadequate or incomplete advice recommending a referral to a more qualified or experienced physician. Mr. Jendrzejczak simply states that no such referral was made by the defendant in April 2007.

100I find as a fact that the defendant advised the plaintiff that he had sustained a distal biceps tendon tear and that he informed him of the surgical and non-surgical treatment options for this.

101I further find as a fact that the defendant made a referral to Dr. Manolopoulos, but this was declined by the plaintiff pending the MRI assessments of his shoulders.

102I have reached these conclusions as I find that the evidence offered by Mr. Jendrzejczak was neither credible nor reliable. His memory of the events and discussions he had with Dr. Weisleder was internally inconsistent and conflicted with records of independent and uninvolved healthcare practitioners including his family doctor, Dr. Manolopoulos, and a treating physiotherapist.

103As noted, the plaintiff admitted that Dr. Weisleder made reference to a "consultation" in his meeting with him in April of 2007.

104Mr. Jendrzejczak contradicted and openly disagreed with his reported statements as recorded within the clinical records, and reports of his family doctor, Dr. Manolopoulos, and the physiotherapist.

105Further, although initially very firm in his evidence that the event giving rise to his injury occurred on March 25, 2007, he later acknowledged that this was his "best guesstimate" as to the date of the incident in question. I find as a fact that Mr. Jendrzejczak advised Dr. Weisleder that the incident giving rise to the injury to his arm occurred four weeks prior to his visit with the defendant in April, 2007.

106I have concluded that Mr. Jendrzejczak's evidence as to his recollection as to the history of events and his discussions, particularly with Dr. Weisleder, is not credible or reliable.

107Further, I conclude that Dr. Weisleder’s clinical notes are consistent with his testimony, and in particular confirm that he had referred Mr. Jendrzejczak to Dr. Manolopoulos in April, 2007. I also find that Mr. Jendrzejczak advised Dr. Weisleder that he wished to first have the MRI examinations of his shoulders completed before considering whether or not to proceed with a referral to Dr. Manolopoulos.

108Having found as a fact that, upon diagnosing the distal biceps tendon tear in April of 2007, and upon advising the plaintiff of this condition, Dr. Weisleder offered Mr. Jendrzejczak a referral to Dr. Manolopoulos, it must be determined whether the defendant physician's conduct met the standard of care of a referring doctor.

109Both Drs. McKee and Paitich were consistent in their evidence as to the standard of care applicable when a physician is faced with a medical condition beyond his or her expertise. The physician should firstly diagnose the condition, advise the patient of that diagnosis and the fact that he or she is not qualified to provide the care or surgical treatment required, and then make a referral to the appropriate physician.

110I have concluded that in view of the evidence offered by Drs. McKee and Paitich, and the authorities referred to above, that this is the applicable standard of care owed by a referring physician when it is determined that he or she is not sufficiently competent or experienced to offer the required care or treatment.

111I find that Dr. Weisleder met the standard of care in providing Mr. Jendrzejczak with a timely consultation in April, 2007, in advising him of the diagnosis of the distal biceps tendon tear at that time, and by upon recognizing his inability to carry out any surgical treatment, making a referral to Dr. Manolopoulos.

112In his written opinion and in his evidence at trial, Dr. McKee offered no opinion as to whether Dr. Weisleder breached the standard of care applicable in this case. His only disagreement with the defendant’s position is related to his discovery evidence that there was a 30% risk of complications in a surgical treatment of a distal biceps tendon tear. He stated that the risk quoted by the defendant was significantly higher than he had encountered in his own experience.

113In the result, I have concluded that the defendant met the standard of care expected of him.

Damages & Causation:

114Having determined that no breach of the applicable standard of care occurred, it is not necessary that the third and fourth elements of the action in negligence be considered. However, I will do so, as I am further of the view that Mr. Jendrzejczak's claim must fail on the basis that he has also failed to establish any causal connection between Dr. Weisleder's conduct and his physical condition.

115As to the third element of the cause of action in negligence, namely whether Mr. Jendrzejczak sustained damage, as noted, these parties have agreed on the quantum of damages that would otherwise be payable to the plaintiff in the event it was determined that the defendant was liable to him in negligence.

116As to the fourth element of a claim in negligence, the action will only succeed if a breach of the applicable standard of care, on the balance of probabilities, caused or contributed to the injury or damage sustained by the plaintiff.

117In the statement of claim which initiated this action, Mr. Jendrzejczak alleges at paragraph 13: "that as a result of the defendant's breach, the plaintiff missed the opportunity for surgical repair with respect to the injury and that he has suffered damages."

118In the Court of Appeal decision in Cottrelle v. Gerrard, (2003) 2003 50091 (ON CA), 67 O.R. (3d) 737, Sharpe J.A. stated at paras. 24- 25:

24As explained in Athey at para. 13, causation is established when the plaintiff proves on a balance of probabilities, that the defendant caused or contributed to the injury. The generally applicable test is the "but for" test. This test "requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant" (Athey, at para. 14).

25I agree with the appellant's submission that in an action for delayed medical diagnosis and treatment, a plaintiff must prove on a balance of probabilities that the delay caused or contributed to the unfavourable outcome. In other words, if, on a balance of probabilities, the plaintiff fails to prove that the unfavourable outcome would have been avoided with prompt diagnosis and treatment, then the plaintiff's claim must fail. It is not sufficient to prove that adequate diagnosis and treatment would have afforded a chance of avoiding the unfavourable outcome unless that chance surpasses the threshold of "more likely than not.”

119The loss of a chance of medical or surgical treatment is non-compensable in medical malpractice cases: Cottrelle, at para. 36.

120Mr. Jendrzejczak did not undergo any surgical or other treatment with respect to his arm. There is no evidence that the delay, if any, and failure to have surgery resulted in any outcome that is worse than would have been achieved had surgery been carried out within a certain timeframe. There is simply no evidence on this.

121In fact, the evidence contained in Dr. Manolopoulos' clinical note relating to his examination of the plaintiff on July 11, 2007 indicates that the plaintiff had a good range of motion in his elbow, that he had virtually no pain, and that he was near full strength.

122Similarly, the physiotherapist's discharge letter in respect of the plaintiff stated that he attended for one physiotherapy treatment on August 3, 2007, at which time he was noted to be doing extremely well, and given that the strength of his biceps and triceps was close to full, physiotherapy was not indicated.

123While it appears from two of the three clinical studies which were raised in the cross-examination of Dr. Paitich, that surgical treatment of distal biceps tendon ruptures may result in better outcomes than non-surgical treatment or management, there is no expert medical evidence in respect of this plaintiff establishing that "more likely than not" he would have had a more favourable outcome had he undergone surgery within a particular time frame.

124Expert medical evidence is required in medical malpractice actions, as the issues to be decided are not within the ordinary knowledge and experience of the trier of fact: Rollin v. Baker et al., 2009 1373 (Ont. S.C.).

125Medical opinions expressed in conflicting clinical studies that are referred to in cross-examination of an expert witness, and are un-tested by cross-examination do not meet the threshold of required expert medical evidence sufficient for the court to make any determination of negligence. Nor, in this case, can they be used to establish causation.

Conclusion:

126For the reasons expressed, I have concluded that Mr. Jendrzejczak’s action must be dismissed.

127Counsel for the defendant shall deliver submissions with respect costs within 20 days followed by submissions on behalf of the plaintiff within 20 days thereafter. The submissions shall be limited to three pages, plus a costs outline including particulars as to any offers to settle.

Daley J.