COURT FILE NO.: CV-10-3223-00
DATE: 2015 10 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROSETTA PARASILITI
R. Kostyniuk, for the Plaintiff
Plaintiff
- and -
DR. STEVEN E. BEATTY and DR. CATHERINE HAYWOOD
Dena Varah and Brendan Morrison for the Defendants
Defendants
HEARD: September 28-30; October 1-2, 5, 2015
REASONS FOR JUDGMENT
Baltman J.
Introduction
[1] It is the rare case that turns primarily on a phone call. This is one of them.
[2] On August 31, 2008, while exercising a friend’s dog, Ms. Parasiliti was yanked forward and fell on her left hand. She sustained three badly broken fingers and was brought to the emergency department at Southlake Hospital (formerly York County Hospital). The attending physician, Dr. Raymond Lee, performed a closed reduction of the fractures and had a cast applied.
[3] As arranged, Ms. Parasiliti re-attended the Southlake Fracture Clinic on Sept. 4, 2008. Dr. Steven Beatty applied a new cast and, at Ms. Parasiliti’s request, arranged a referral to a surgeon in Brampton for further treatment, as that was much closer to her home.
[4] The referral was made to Dr. Catherine Haywood, a hand specialist in Brampton. Dr. Haywood’s office claims it set up an appointment for Ms. Parasiliti on September 16th and told Dr. Beatty to inform the patient of this. Dr. Beatty, in turn, says his office called Ms. Parasiliti and told her about the appointment. However, Ms. Parasiliti claims no one informed her of the appointment and it was not until October 14th that she saw Dr. Haywood. She alleges that because of this delay she was left in a cast longer than she should have been, which in turn resulted in a poorer outcome for her hand.
[5] There are four issues before me:
Did Dr. Beatty fail to advise Ms. Parasiliti of her appointment with Dr. Haywood?
If so, was the prolonged casting within the standard of care for this type of injury?
If not, did that delay cause any damage to Ms. Parasiliti?
What is the quantum of Ms. Parasiliti’s damages?
Background Facts
[6] Many of the relevant facts are not disputed, and consist of the following:
The plaintiff, Rosetta Parasiliti, is 40 years old and resides in Brampton. She is single and lives with her parents, and is right handed.
On August 31, 2008, she was exercising a friend’s dog, and holding it by the leash with her left hand. When the dog suddenly bolted forward Ms. Parasiliti fell onto her left hand. She suffered fractures to the proximal phalanges (bottom bones) of her middle, ring and baby fingers. She was brought to the emergency department of Southlake Hospital, where she was treated by Dr. Lee.
The injury was so severe that she required intravenous sedation in the emergency room in order to treat her. A photograph of an x-ray taken at that time illustrates that the finger fractures were markedly displaced (out of position). The x-ray reports from Southlake Hospital also indicate that the fractures were comminuted (in more than two pieces) and angled.
Dr. Lee performed a closed reduction of the fractures and arranged for a cast to be applied. Ms. Parasiliti was instructed to return to the Southlake fracture clinic on September 4, 2008, for follow up.
On Sept. 4 Ms. Parasiliti saw Dr. Beatty at the fracture clinic. He reviewed her closed reduction x-ray, which showed alignment of the fractures. A new cast was applied and, at Ms. Parasiliti’s request, Dr. Beatty arranged for her ongoing treatment to be transferred to a surgeon in Brampton, namely Dr. Haywood.
An appointment was set up for Ms. Parasiliti to attend Dr. Haywood’s fracture clinic on Sept. 16th. Ms. Parasiliti did not attend that appointment; the reasons for that are highly contentious and will be discussed below.
Dr. Haywood was away on vacation from approximately Sept. 19 to October 13th. Ms. Parasiliti first saw Dr. Haywood on October 14th. When the cast was removed Dr. Haywood observed that the affected fingers were extremely stiff but well aligned. Some callus (healing tissue) was seen on x-ray.
Ms. Parasiliti then embarked upon an intensive period of physiotherapy which lasted for several months. Unfortunately, despite the therapy, Ms. Parasiliti failed to recover significantly. Dr. Haywood then referred Ms. Parasiliti to her colleague, Dr. Sharon Kim.
After a further course of unsuccessful physiotherapy Dr. Kim recommended flexor tenolysis, a surgical procedure used to remove the adhesions that limit finger flexion. The surgery proceeded in October 2009 but did not result in any significant improvement.
Ms. Parasiliti has been left with permanent stiffness in the middle, ring and baby fingers of her left hand. She cannot curl those fingers into her palm and therefore her left grip strength is significantly reduced. Her finger dexterity has also been permanently impaired.
Issue# 1: Did Dr. Beatty fail to advise Ms. Parasiliti of her appointment with Dr. Haywood?
[7] This is purely a fact based inquiry. Unsurprisingly, none of Dr. Beatty, Dr. Haywood or Sally Lemon (Dr. Haywood’s secretary) can specifically recall the referral of this patient. However, they all testified that the standard referral procedure proceeded in two steps: a) Dr. Haywood’s office would notify Dr. Beatty’s office of the initial appointment for the new patient, and then b) Dr. Beatty’s office would inform the patient of the date and time of her appointment with Dr. Haywood. They were all very clear that the responsibility to inform the patient of her first appointment with Dr. Haywood lay solely with Dr. Beatty’s office. Dr. Beatty accepted that it was his responsibility to advise the patient of the details of the referral.
[8] Importantly, the phone records obtained from Bell Canada reflect a sequence of communications that accords with the referral procedure described by these witnesses. From September 11th to the 15th several phone calls and faxes were sent from Dr. Beatty’s office to Dr. Haywood’s office. In particular, the records confirm that on September 15th – one day before the disputed appointment on the 16th - Dr. Beatty’s office telephoned Ms. Parasiliti.
[9] In my view the only reasonable inference is that the phone call on Sept. 15th was to inform Ms. Parasiliti of her appointment the next day. Mr. Kostyniuk argues that because the appointment was not entered into the hospital’s electronic booking record until approximately 25 minutes after the call to the plaintiff, its details could not have been conveyed to her. But Ms. Lemon’s uncontroverted testimony made it clear that the hospital record is a red herring. In particular:
• When a referring doctor calls regarding a fracture, she would schedule the patient for the very next fracture clinic, which in this case was Tuesday September 16th;
• On that phone call, she would advise the referring office (in this case Dr. Beatty) to contact the patient with the time and date of the appointment, and ask the office to send a referral letter;
• She controls Dr. Haywood’s list for the fracture clinic, and does not need to confer with the hospital as to when patients can be scheduled; on the contrary, it is she who tells the hospital when the patients are scheduled to attend;
• She waits until she’s received the referral letter before advising the hospital of the date and time of the appointment, even though she’s already given that information to the referring office;
• Once she receives the referral letter, she sends it to the hospital with the information on the appointment time (in this case 2:30 p.m.) and the hospital clerk would enter the information into the hospital computer system.
[10] Peculiarly, the plaintiff does not dispute that she received a call from Dr. Beatty’s office on September 15th, or that she was likely advised of Dr. Haywood’s name on that call. Rather she argues that she was not also informed of the date and time of her appointment. However, at the same time she concedes she has no memory whatsoever of answering this phone call or recovering a voicemail with respect to it. Therefore her evidence as to what was or was not contained in the voice message is completely unreliable.
[11] I am not suggesting that the plaintiff deliberately ignored this appointment. Her medical records indicate that in addition to the pain she was experiencing from her fractured fingers, she was suffering from bronchitis around that time and had visited her family doctor on September 14th for that reason; she may have been distracted or inattentive to any phone calls or messages left on her voicemail. Whatever the cause, she failed to show up at Dr. Haywood’s clinic the next day. And there is no basis in law or reason to have expected Dr. Haywood’s office to follow up with a “no show”.
[12] The plaintiff testified that she telephoned Dr. Haywood’s office repeatedly in order to schedule an appointment, but got no response. This appears to coincide with the period where both Dr. Haywood and Ms. Lemon were on holidays. Their undisputed testimony was that during that period any callers would receive a recorded message advising the office was closed, and that if the matter was urgent, the caller should visit their nearest emergency department. It appears the plaintiff left a message asking for an appointment because on October 14th – the next fracture clinic following Dr. Haywood’s return – she was scheduled for and did attend the clinic.
[13] In the end I am satisfied the plaintiff was properly advised of her appointment with Dr. Haywood on September 16th, but failed to attend. That effectively guts her entire claim, as it is premised on the assumption that the missed appointment – and the ensuing “delayed” treatment – caused or contributed to her poor outcome. As the plaintiff alone is responsible for this missed appointment – and there is no evidence she took any meaningful steps to expedite her care during Dr. Haywood’s absence – it follows that she is solely responsible for any damage that resulted from the delay.
[14] In light of that outcome, it is not necessary for me to consider the remaining issues concerning standard of care, causation and damages. However, for the sake of completeness, I will briefly address each.
Issue #2: Was the prolonged casting within the standard of care for this type of injury?
The Experts
[15] The competing experts on this issue were Dr. Fred Langer, on behalf of the plaintiff, and Dr. Brent Graham, for the defendants. While both are conscientious and sincere, there is a marked difference in their qualifications for this case.
[16] Dr. Langer, an orthopedic surgeon, has not been in active practice since 2000. More importantly, during his time in practice, he only “occasionally” treated fractures of the hand and fingers. He has never engaged in surgery of the hand or fingers. Dr. Langer acknowledged that hand surgery is a specialty unto itself and that Dr. Graham, a surgeon who specializes only in the hand, was in as good or better position to guide the court in the treatment and effects of finger fractures.
[17] Dr. Graham is a fellowship-trained hand surgeon with over 25 years’ experience solely in the treatment of the hand. As an Assistant Professor at the University of Toronto, he has taught hundreds of residents on the treatment of hand fractures. He regularly performs hand and finger surgery and oversees a busy hand fracture clinic at Toronto Western Hospital. He has treated hundreds of patients with similar injuries to those of the plaintiff.
[18] By virtue of his expertise and experience, I find that Dr. Graham is in a better position to comment on both the standard of care and causation in this case. Where his evidence and that of Dr. Langer conflict, I prefer the evidence of Dr. Graham.
Liability
[19] Dr. Langer criticized the length of time that Ms. Parasiliti’s hand was immobilized, which was approximately six weeks and two days. He opined that mobilization should likely have begun at approximately 2.5 to 3 weeks – i.e. roughly the point where she was initially scheduled to see Dr. Haywood. However, he offered no authorities or medical guidelines to support that assertion.
[20] Dr. Graham stated that for a fracture of this severity six weeks was an entirely reasonable and foreseeable period of immobilization. As the fracture was both comminuted and displaced it was particularly unstable, meaning it required additional time to heal before the cast could be removed and therapy begun. Consequently, according to Dr. Graham, it was unlikely that Ms. Parasiliti would have been sufficiently healed at three weeks to commence mobilization. The additional three weeks that ensued here provided what was likely a necessary opportunity for healing.
[21] It is true that because Ms. Parasiliti was not assessed at the three week mark one cannot be sure about the extent of her healing at that point. However, the evidence of Dr. Graham is persuasive that on the balance of probabilities, given the severity of her injury and the degree of healing at the time Dr. Haywood saw her, it is unlikely that she would have been sufficiently healed at three weeks to begin mobilization. It follows that the standard of care does not require earlier removal of the cast, nor would early removal of the cast likely have been possible in this case.
[22] I therefore conclude that the defendant physicians met the standard of care.
Issue #3: Did any delay in mobilization cause damage to Ms. Parasiliti?
[23] Dr. Graham testified that it is “highly unlikely” that the length of casting caused or contributed to Ms. Parasiliti’s current impairment. His opinion was not challenged in cross-examination.
[24] Dr. Graham attributed any permanent limitation in Ms. Parasiliti’s hand to two factors: first and foremost is the severity of the injury. That alone almost guaranteed that she would not have regained full range of motion.
[25] A second contributing factor was that according to her hand therapists, Ms. Parasiliti did not participate fully in the recommended therapy.
[26] In cross-examination Dr. Langer conceded that even if Ms. Parasiliti had been mobilized earlier she likely would not have had a normal hand and her ability to bend her fingers would be restricted. He asserted, however, that with earlier intervention her hand function would have been materially stronger, with better grip strength. However, that opinion was based on the assumption that the injury was not particularly severe or complex – an assumption that was successfully refuted by Dr. Graham – and on the further assumption that Ms. Parasiliti diligently and fully participated in hand therapy.
[27] All the medical witnesses testified that physio and occupational therapy is critical if a patient who fractures proximal phalanges has any hope of regaining good range of motion. Dr. Langer described it as an “all day, every day” job; Dr. Graham said he instructs his patients to perform the exercises from “dawn until dusk, seven days a week” until they are better.
[28] The clinical records indicate at several points that Ms. Parasiliti’s participation was less than optimal. I do not mean to criticize Ms. Parasiliti’s efforts or ignore the difficulty that therapy posed; undoubtedly the exercises were at times painful and tiring. But given the importance that full and constant therapy is to a successful recovery, it is reasonable to infer that Ms. Parasiliti’s compromised participation contributed to her current impairment.
[29] Ultimately I am led to conclude that Ms. Parasiliti’s outcome was largely determined at the time of her original accident; this outcome was reinforced by her inability to fully and continually participate in rehabilitation. It follows that any delay in mobilization did not cause or contribute in any material way to her current impairment.
Issue #4: What is the quantum of Ms. Parasiliti’s damages?
[30] I have already concluded that neither the prolonged casting nor any alleged delay in mobilization caused or contributed to Ms. Parasiliti’s ongoing pain or limitations. However, in case that conclusion is wrong, I will consider her claims for both general damages and loss of competitive advantage.
[31] The general damages cannot reflect the entirety of the injury to Ms. Parasiliti’s hand, as even on her version of how treatment should have occurred she would be left with a compromised hand. It is a matter of comparing the hand she ended up with to the hand she claims she could have had.
[32] Dr. Langer stated that with better treatment her overall function would have been better, particularly her grip strength and finger dexterity. However even with an optimal outcome it’s questionable whether how much more easily she could perform the functions that now cause her difficulty, such as hand based gym exercises, home maintenance, personal hygiene, and keyboarding. On the limited evidence before me a fair estimate for that loss is $40,000.
[33] As for loss of competitive advantage, the starting point is that so far Ms. Parasiliti has not been disadvantaged in the workplace. She trained as a graphic designer at Humber College and was working in that capacity when this injury occurred. When she returned to work her employer accommodated her reduced dexterity. In 2011 she then began working as a fundraising officer, with a different employer, and continues in that role today. She loves her job and other than occasional difficulties with lifting has been able to fulfill all her responsibilities. It also pays more than her former employment in graphic design.
[34] Thus far, therefore, she has not suffered any income loss as a result of this injury. That said, should she for any reason need to seek alternative employment in the future she faces more hurdles than she might have otherwise, particularly for any job involving graphic design – her initial field of training – or keyboarding, a common requirement in many occupations. I estimate that loss at $35,000.
Conclusion
[35] I have concluded as follows:
The plaintiff was properly notified of her appointment with Dr. Haywood on September 16th, but failed to attend;
The casting period fell within the standard of care for this type of injury;
Neither the prolonged casting nor any alleged delay in mobilization caused or contributed to Ms. Parasiliti’s ongoing pain or limitations;
I have assessed general damages at $40,000 and loss of competitive advantage at $35,000.
[36] I am sympathetic to Ms. Parasiliti. Through no fault of her own she sustained a very serious and permanent injury to her left hand. She is understandably troubled by its appearance and the limitations it imposes upon her. But I see no fault in how she was notified of the appointment with Dr. Haywood and do not in any case believe that earlier treatment or mobilization would have made a meaningful difference to her outcome. As such, her action is dismissed in its entirety.
[37] I strongly urge the parties to resolve costs; if necessary, I may be spoken to.
Baltman J.
Released: October 8, 2015
COURT FILE NO.: CV-10-3223-00
DATE: 2015 10 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ROSETTA PARASILITI
- AND –
DR. STEVEN E. BEATTY and
DR. CATHERINE HAYWOOD
REASONS FOR JUDGMENT
Baltman J.
Released: October 8, 2015