Reasons for Decision

Court File No.: CV-19-140563 Date: 2024-03-13 Ontario Superior Court of Justice

Between: NINO KOTORASHVILI, Plaintiff – and – DR. MOO HYUNG LEE, Defendant

Counsel: Jordan D. Assaraf and David Lackman, for the Plaintiff Adam J. Patenaude and Renee Zatzman Stein for the Defendant

Heard: December 4-7, 2023

Before: Charney J.

Introduction

[1] The Plaintiff, Nino Kotorashvili, suffered a severe fracture of her right clavicle (collarbone) while participating in mixed martial arts on August 30, 2016.

[2] On September 4, 2016, the Defendant, Dr. Lee, surgically repaired Ms. Kotorashvili’s clavicle by implanting a plate fixed with screws.

[3] On April 20, 2017, Dr. Lee’s treatment plan was to see Ms. Kotorashvili, in three months’ time for further review with repeat X-rays, and “the possibility of removing the hardware in the future”.

[4] On June 2, 2017, Dr. Lee surgically removed the plate and screws.

[5] Ms. Kotorashvili suffered a re-fracture of her clavicle shortly after the June 2, 2017 surgery. This re-fracture was discovered at a follow-up appointment on July 13, 2017.

[6] This re-fracture healed without further surgery but resulted in a small bump on Ms. Kotorashvili’s right shoulder, which appeared lower than her left shoulder.

[7] On October 2, 2018, Ms. Kotorashvili underwent a third surgery on her right clavicle by Dr. Hall. Dr. Hall re-fractured the clavicle and re-aligned the two parts with a fixed plate so that there was no bump.

[8] Ms. Kotorashvili complains that although her right shoulder has now healed, she can no longer perform certain tasks like carrying laundry down the stairs and vacuuming on the stairs. She cannot lift her son into the bathtub to bathe him.

[9] This case raises four issues:

a. Was Dr. Lee negligent in removing the plate and screws on June 2, 2017, rather than waiting until after another appointment and X-ray in July as he initially proposed?

b. If Dr. Lee was negligent, did Dr. Lee’s negligence cause any injury to the Plaintiff?

c. Was the Plaintiff’s surgery on October 2, 2018 unnecessary elective, cosmetic surgery or was it reconstructive surgery required to correct the bump on her shoulder and asymmetry?

d. If Dr. Lee was negligent, what is the measure of general damages?

Facts

[10] Ms. Kotorashvili was born in 1993, and moved to Canada when she was 11 years old. She enrolled in Mixed Martial Arts (“MMA”) training in 2015 and engaged in this pursuit five days a week. MMA was a recreational outlet and a means to socialize while engaging in physical activity.

(i) First Surgery

[11] On August 30, 2016, Ms. Kotorashvili suffered a fracture of her right clavicle when she was thrown to the floor in a MMA class. She was taken by ambulance to the Southlake Regional Hospital (“Southlake”) Emergency Department, where X-ray imaging confirmed a displaced midshaft clavicle fracture.

[12] On August 31, 2016, Ms. Kotorashvili attended Southlake for follow-up treatment of her clavicle fracture. She was then seen by Dr. David Walmsley, the orthopaedic surgeon on call, who discussed the two treatment options, namely conservative management or surgery. Surgery was the recommended option in this case because the fracture caused a significant displacement of the clavicle and non-operative treatment could lead to the bone healing in a shortened position that could compromise the functionality of the clavicle.

[13] Ms. Kotorashvili elected to proceed with the surgery.

[14] On September 4, 2016, Ms. Kotorashvili underwent surgery, known as an open reduction and internal fixation (“ORIF”) procedure, to her right clavicle. The surgery was performed by the Defendant, Dr. Lee.

[15] The ORIF surgery included the insertion of a clavicle implant plate on the top of the fractured clavicle, fastened by six screws, with three screws being inserted on either side of the fracture site. Imaging following the surgery confirmed good alignment with no complications.

[16] Ms. Kotorashvili attended follow-up appointments with Dr. Lee in September and October 2016. She received antibiotics to treat an infection at the wound site but was otherwise recovering as expected.

[17] On November 24, 2016, Ms. Kotorashvili attended a follow-up appointment with Dr. Lee. During that visit, X-rays of her clavicle were taken. Dr. Lee confirmed that the fracture was in an anatomical position, and no issues were detected with the hardware.

[18] On January 19, 2017, Ms. Kotorashvili attended another follow-up appointment, and X-rays of her right clavicle were taken. At that time, she had some pain clinically, with weakness in her rotator cuff and mild irritation at the fracture site, but the fracture was healing in a good position. The X-ray, as interpreted by the radiologist, indicated: “fracture line poorly defined in keeping with advanced healing. No hardware abnormality seen”.

[19] Dr. Lee testified that Ms. Kotorashvili complained of discomfort and hypersensitivity and asked about possibly removing the hardware due to the hypersensitivity. Dr. Lee told her that it was too early at that point in time to remove the hardware because “the fracture needed to heal more before we even consider doing that…it was too early to consider doing anything at that point”.

[20] Dr. Lee did not document this discussion in his clinical notes, but acknowledged that he should have.

[21] Ms. Kotorashvili was discharged from Southlake physiotherapy on February 13, 2017. She recalled that at this point she had full range of motion in her right shoulder and was pain free. She was “feeling much better”, and was hoping to have the hardware removed so she could return to doing MMA.

[22] On April 20, 2017, Ms. Kotorashvili attended her final follow-up appointment with Dr. Lee before her hardware removal surgery on June 2, 2017. X-ray images were ordered during the April 20, 2017 clinic visit.

[23] Dr. Lee’s clinical note from the April 20, 2017 visit states:

Nino was seen back to orthopedic surgery clinic today for follow up after right clavicle fracture. She is now approximately 7 months following open reduction internal fixation of her right clavicle fracture. She is doing well overall with no significant problems clinically. She has recovered full range of motion in the right shoulder with good rotator cuff strength. There was no significant pain or irritation.

X-ray of her right clavicle was obtained today and this revealed her fracture to be healing in good position.

Nino is doing well with the right clavicle fracture. She has recovered good range of motion and function and her fracture is healing well. I will plan to see her back in three months time for further review with repeat X-rays. We have discussed the possibility of removing the hardware in the future. She wished to go ahead with surgical management, and we will plan on removing her hardware sometime after next fracture clinic visit.

[24] The radiologist’s report from the X-ray taken on April 20, 2017 states:

Findings: Reconstruction plate on the clavicle. Appearance of hardware and arrangement of clavicular fracture fragments does not appear changed from January 19.

[25] Dr. Lee’s out-patient clinic notes for April 20, 2017 state that Ms. Kotorashvili had “no problems”, “Range of motion good”. “Healing well”. “Plan: Hardware removal”. There was no reference to pain or hypersensitivity.

[26] Thus, as of April 20, 2017, Dr. Lee’s plan of treatment was to see Ms. Kotorashvili in “three months time” (July 2017) for “further review with repeat x-rays”, and “removing her hardware sometime after next fracture clinic visit”.

[27] This plan was consistent with answers given by Dr. Lee on his cross-examination, where he agreed that with any fracture his general practice is to leave the hardware in for “as long as possible”. In his examination for discovery he stated that his general practice for removal: “there’s no specific guidelines, but I would say generally speaking, after a year...in the ideal situation you want complete bone union on radiograph”.

[28] Dr. Lee testified that Ms. Kotorashvili again voiced concerns about “the thinness of the skin overlying the hardware and irritation and hypersensitivity”, although this is not referenced in his clinical notes. Indeed, his clinical notes state: “There was no significant pain or irritation”. Dr. Lee testified:

And we had discussed the pros and cons with respect to doing for surgery and we had determined that we would try to do it in the summer time and the plan was to see her back in three months with X-rays. She wanted to have the hardware out whenever it was safe to do because of her hypersensitivity and the major thing that I remember from the conversation was that I emphasized to her that the earlier we take it out, that there is a high risk for re-fracture.

She wished to go ahead, and she understood. It wasn’t something that she wanted to wait until there was complete resolution of the fracture because of the symptoms that she was having, and I was cognizant of that.

[29] Dr. Lee agreed that on April 20, 2017 the fracture was not fully healed, “but is healing well, and the natural progression of fracture healing is what we would have expected. There’s nothing out of the ordinary.”

[30] Dr. Lee also testified that he had the following discussion with Ms. Kotorashvili at the April 20, 2017 meeting, although none of this is reflected in his clinical notes:

Number one, the first and foremost, if we’re doing surgery for extenuating circumstances such as her wound issue and hypersensitivity, and if we are removing the hardware before the fracture is fully healed, that there will be a high risk of refracture, That would be number one. Number 2, she had wound issues after her initial operation and that will be the second thing that she must look after wound in terms of limiting her activities and washing showering and so forth and absolutely limit her use of that arm being in a sling and being immobilized.

(ii) Second Surgery

[31] Some time after the April 20, 2017 appointment, Ms. Kotorashvili received a call from Dr. Lee’s secretary to advise that her surgery was scheduled for June 2, 2017.

[32] Ms. Kotorashvili did not see or speak to Dr. Lee between her April 20, 2017 appointment and her attendance at the hospital for surgery on June 2, 2017. No further X-rays were ordered before the surgery. There were no further clinical assessments between April 20, 2017 and the surgery on June 2, 2017.

[33] Dr. Lee was not aware of what transpired between the April 20, 2017 appointment and the booking of the surgery. He testified that his typical routine after seeing a patient in the fracture clinic who required surgery in the future, involves providing scheduling information to his secretary, who coordinates with the patient to arrange a date for the procedure. The June 2, 2017 surgery date, instead of the intended 3-month follow-up evaluation and repeat X-rays, was booked through direct communication between Dr. Lee’s secretary and Ms. Kotorashvili.

[34] In his operative note on June 2, 2017, Dr. Lee noted that Ms. Kotorashvili had returned for hardware removal because “Her skin had stretched out and she had some discomfort due to the prominence of the hardware.”

[35] Dr. Lee testified:

So honestly, I don’t know what transpired from the time I saw her on April 20th 2017 and booking of her surgery, but I can tell you that my typical routine after seeing a patient in the fracture clinic who is to be scheduled for surgery at some point, that information is given to my secretary... And it’s up to her and with the patient to coordinate a date for surgery and June 2nd was booked for the surgery between my secretary and the patient. Now I don’t have any information as to whether it was my secretary who contacted her or whether the patient contacted my office. I see patients who are on the surgery list who are in pain and we often get calls from patients who want to have their surgery sooner and so forth. So when, once again, I don’t recall, but if a date is chosen and then that information will be relayed to me by my secretary and it is my standard practice that if there’s any change in the timeline with respect to doing surgery, then I will contact the patient myself and speak to them about is it OK to proceed with surgery, do you agree and then discuss the risks and benefits of doing that as well.

[36] On cross-examination, Dr. Lee was asked why the surgery was scheduled for June 2, 2017, when Ms. Kotorashvili agreed with his original treatment plan on April 20, 2017 to return in three months for another X-ray and follow-up review before surgery. He answered:

I don’t know that for certain, because I don’t know what transpired between my secretary and with Ms. Kotorashvili. So I don’t have that information to give you an honest answer about that.

[37] Dr. Lee testified that he agreed to proceed with the surgery on June 2, 2017 because:

I felt that at the time of her X-rays in April, her fracture was progressing well as expected, there were no issues, and the fracture will be stable, and it will be safe to proceed, and that was related to the patient as well, and she understood the risks and she was OK to proceed. I don’t think that another four, six weeks would have made a huge difference in terms of stability of the fracture. That would have been at nine months after surgery. I felt that the fracture will be stable at that point, provided that, provided that we take measures after surgery to be careful and limit her activities.

[38] Dr. Lee explained why he decided not to obtain another X-ray before surgery as he had proposed in his April 20, 2017 clinical note:

I didn’t feel that at six weeks from the previous X-rays that it would have shown that much difference. Yes, and I’ll just mention that between my secretary and the patient, this was not a last minute operation. She knew well in advance that was the plan. I don’t have any documentation of me having a discussion with her, but that would be my normal standard practice. And she actually faxed the medical certificate form filled out sometime in mid-May so she was well aware of the fact that we were OK to proceed with doing the surgery.

[39] Finally, Dr. Lee testified that he met with Ms. Kotorashvili:

[P]rior to surgery and discussed with her, once again, that we are removing the hardware at an earlier time than will be ideal because of her hypersensitivity of the hardware site and the fact that the hardware is fairly prominent. So she understood all that.

[40] Once again, Dr. Lee made no notes or documentation of this discussion.

[41] Ms. Kotorashvili signed a standard form Consent to Treatment prior to the surgery. There is nothing on this form that indicates what risks were discussed with the patient.

[42] While Ms. Kotorashvili has very little memory of any of her conversations with Dr. Lee, she was adamant that she was not warned that there were increased risks of re-fracture if the surgery was performed earlier than recommended.

[43] Ms. Kotorashvili also testified that if she had been warned of an increased risk of re-fracture, she would not have had the surgery in June.

[44] On June 8, 2017, Ms. Kotorashvili attended a post-surgery follow-up appointment focused primarily on wound inspection. Dr. Lee did not order an X-ray during this visit. His plan included a follow-up X-ray examination scheduled for five weeks later.

(iii) Re-fracture

[45] At Ms. Kotorashvili’s next follow-up appointment on July 13, 2017, the radiologist identified a re-fracture of her right clavicle through X-ray examination. Dr. Lee was not aware of any actions taken by Ms. Kotorashvili that could have led to her re-fracture. Ms. Kotorashvili testified that she had no accidents or falls after the second surgery that could have led to the re-fracture.

[46] Dr. Lee testified that he had a brief discussion with Ms. Kotorashvili “with respect to possible surgery, but given the difficulties that she had with the wound and so forth, she was not interested in any surgical intervention”. This discussion was not documented in his clinical notes.

[47] Ms. Kotorashvili had several more X-rays over the following months. The fracture did heal without surgical intervention. Her final visit to Southlake Hospital was on December 14, 2017. The radiologist report dated December 14, 2017 stated:

Previous fracture through the mid right clavicle show solid bone union. There is a slight bowing deformity in a superior direction but this is unchanged from previous study.

[48] Ms. Kotorashvili was not happy with the way her shoulder had healed. There was a slight bump on her shoulder and her right shoulder appeared lower than her left shoulder.

[49] On December 20, 2017, Ms. Kotorashvili went to the Emergency Department at St. Michael’s Hospital because she was complaining of right shoulder pain. Dr. Mackinnon’s clinical notes state that the X-ray of the right clavicle “does not show any obvious osteomyelitis [bone infection] and there is good bone healing, although there is a bump in the mid clavicle.”

[50] Dr. Mackinnon suggested that Ms. Kotorashvili return to her original surgeon, “but she says she does not think that she had a good experience there and does not want to go back to the orthopedic team at Newmarket”.

(iv) Third Surgery

[51] On January 11, 2018, Ms. Kotorashvili was referred to Dr. Hall, an orthopedic surgeon at St. Michael’s Hospital, by her family physician.

[52] Dr. Hall’s clinical consult notes, dates July 11, 2018, state:

On examination today, she has tenderness to palpitation along her incision. It seems somewhat hypersensitive. She has a grinding sensation at the end of her medical aspect of collarbone, which is likely soft tissues rubbing over her clavicle. She is not very happy with the bump in this region. Review of imaging shows that her fracture has subsequently healed, though somewhat misaligned.

Ms. Kotorashvili states that she is very unhappy with her shoulder the way it is. We had a long discussion in this regard. It sounds to me like her surgery was complicated by infection which has subsequently resulted in essentially delayed union and subsequent hardware removal allowed for displacement of her fracture. I think any further surgery in this region runs the risk of ongoing infection and possible infected nonunion which may be more of a problem then she has now. Furthermore, the sensitivity of the scar will not likely improve with the revision surgery and she may still have grinding sensation in the region of her fracture as a result of further surgery. Despite this, she is convinced she requires further surgery. I have tried to discuss this exhaustively with her today. The procedure would be a clavicle osteotomy and re-fixation. The procedure was outlined in detail. Risks as described above include that of a general anesthetic, risk of infection, risk of injury to nerve and blood vessel, ongoing pain, dysfunction and essentially no significant resolution in her currently described symptoms. Consent was obtained and I will endeavour to get her to the operating room in the near future.

[53] Ms. Kotorashvili underwent the clavicle osteotomy [cutting of the bone] and refixation with Dr. Hall on October 2, 2018. This involved cutting the right clavicle with an oscillating saw and re-fixing the bone with a precontoured clavicle plate.

[54] Ms. Kotorashvili had several follow-up appointments with Dr. Hall to review her progress. On March 27, 2019, Dr. Hall’s clinical notes state:

Ms. Kotorashvili states that overall her shoulder symptoms are improving. She does have some mild discomfort to palpitation about her clavicle.

On examination today, range of motion of her shoulder is normal. Axillary and distal neurological examination is normal. She does have some degree of tenderness to palpitation about the clavicle.

Ms. Kotorashvili is doing quite well. X-rays today show her fracture is healed.

[55] The final clinical note is dated January 8, 2020. It states:

The patient was seen in the fracture clinic by Dr. Jeremy Hall on January 8, 2020.

This patient is almost a year from her right clavicle open reduction and internal fixation. The patient feels excellent. No more pain or discomfort.

Her examination is normal with normal neurovascular examination distally.

X-ray did show a fully healed right clavicle.

At this stage, the patient is very happy to follow with us as needed and we encouraged her to continue on her home exercise for her right shoulder.

[56] Ms. Kotorashvili is happy with the result of this third surgery. She testified that Dr. Hall did “an amazing job fixing my shoulder” and that her right shoulder looks fine and is even with her left shoulder. The scar from the surgery is in the same place as the previous scar, and her shoulder does not feel different today in any way. She is able to move her shoulder above her head, although she sometimes gets a little bit of pain.

[57] Ms. Kotorashvili’s only complaint is that her shoulder is now weaker than it was before her accident. She is no longer able to take the laundry down the stairs to the basement or vacuum the stairs. When she tries to vacuum the stairs, it puts pressure on her shoulder and she has to put the vacuum down. She also testified that she is no longer able to bathe her son (born in 2021 and 2.5 years of age at the time of trial) because he has gotten too heavy for her to pick up and put into the bathtub. Her father or mother will help her put her son in the tub when it is bath time. Other than that, she stated that she was “perfectly fine”. She does not take any medication and does not suffer from depression.

Analysis

a) Was Dr. Lee negligent in removing the plate and screws on June 2, 2017, rather than waiting until after another appointment and X-ray in July as he initially proposed?

[58] The Plaintiff argues that Dr. Lee breached the standard of care in four respects:

a. He failed to completely document his encounters with Ms. Kotorashvili in his medical record of her treatment;

b. He failed to determine the healing status of the fracture prior to the hardware removal surgery on June 2, 2017;

c. He failed to obtain Ms. Kotorashvili’s informed consent prior to his removal of the hardware on June 2, 2027; and

d. He failed to inform Ms. Kotorashvili of the available surgical option following the re-fracture of her clavicle, to prevent the inevitable malunion that occurred and the resulting need for a corrective osteotomy.

Record Keeping

[59] There was no dispute among any of the witnesses that a physician has an obligation to accurately record the details of his treatment and interactions with his patients, and that Dr. Lee’s notes were deficient.

[60] The importance of proper record-keeping has been recognized by the courts as part of the standard of care. In Adams v. Taylor, 2012 ONSC 4208, the court noted, at para. 36:

The clinical reason for record-keeping is the basic duty to provide average, reasonable and prudent care. … In order to carry out this care, two essentials are required. The first is to remind the person providing care of the past and present condition of the patient and the treatment already given. The second is to communicate this information to others who may also be caring for the patient.

[61] A physician’s failure to comply with the regulatory requirement for the maintenance of proper records can be a breach of a reasonable standard of care: Watson v. Dr. Shawn Soon, 2018 ONSC 3809, at para. 78.

[62] In order to be relevant in the standard of care analysis, record keeping must play a causative role in the adverse outcome: Watson, at para. 79. Failure to properly document something does not, of itself, establish liability.

[63] Even if there is no causal connection between a physician’s record keeping and the adverse outcome, a physician’s lack of proper medical records may give rise to an adverse inference and undermine the credibility and reliability of his testimony at trial: Sozonchuk v. Polych, 2011 ONSC 842, at para. 91 (aff’d Sozonchuk v. Polych, 2013 ONCA 253):

As noted, accurate and timely record keeping in patient care and particularly in a hospital critical care ward is extremely important. The absence of contemporary recordings of important events in the care of a patient gives rise to the inference that the events simply never happened.

[64] See also: Henry v. Boivin et al., 2023 ONSC 663, at para. 42 and Denman v. Radovanovic, 2023 ONSC 1160, at para. 95:

A negative inference can be drawn when a physician’s record-keeping is lacking... However, as noted in Lennox v. Burns, 2016 ONSC 2993, at para. 139, even where a record-keeping failure does not justify an adverse inference, it may invite a more searching evaluation of the physician’s testimony on matters that the records do not adequately address.

[65] There is nothing remarkable about this latter point. Contemporaneous notes are almost always more reliable than a person’s recollection of conversations or events that occurred many years before trial – in this case six years before.

[66] In this case, Dr. Lee acknowledged that his clinical notes were not adequate. This view was shared by the other expert witnesses who testified.

[67] Dr. Lee testified that at his meeting with Ms. Kotorashvili on January 19, 2017, she told him that there was hypersensitivity at the wound site and that she was feeling discomfort. She asked about having the hardware removed, but he told her that it was still too early to remove the hardware. None of this was documented in his clinical notes, although he acknowledged that it should have been.

[68] Dr. Lee also testified that at his April 20, 2017 meeting with Ms. Kotorashvili she told him that she wanted to proceed with the removal of the hardware whenever it was safe to do so. He told her that there will be a material risk of re-fracture by removing the hardware before the fracture is fully healed. Again, this discussion is not reflected in his clinical notes.

[69] Dr. Lee testified that he met with Ms. Kotorashvili prior to surgery on June 2, 2017, and discussed with her, once again, that he was removing the hardware at an earlier time than would be ideal because of her hypersensitivity and the fact that the hardware was fairly prominent, and that he discussed with her the increased risk of re-fracture. He acknowledged that he did not document this discussion.

[70] Finally, Dr. Lee testified that he had a brief discussion with Ms. Kotorashvili at their July 13, 2017 appointment following the re-fracture “with respect to possible surgery, but given the difficulties that she had with the wound and so forth, she was not interested in any surgical intervention”. This discussion was not documented in his clinical notes.

Standard of Care

[71] I adopt the summary of the legal principles on the standard of care for physicians set out by LeMay J. in Thompson v. Handler, 2023 ONSC 5042, at paras. 124 – 133:

First, the general standard of care has long been accepted by the Courts. It was described more than half a century ago in Sylvester v. Crits et al., [1956] O.R. 132, aff’d , [1956] S.C.R. 991 as follows:

Numerous cases were cited bearing upon the degree of care which may be expected from a medical practitioner. While I have read and considered the cases cited, as well as other decisions, I do not think that any useful purpose will be served by my reviewing them here in detail. The legal principles involved are plain enough but it is not always easy to apply them to particular circumstances. Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability.

More recently, in Ter Neuzen v. Korn, [1995] 3 S.C.R. 674, the test was described as follows:

It is well settled that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances. In the case of a specialist, such as a gynaecologist and obstetrician, the doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field. A specialist, such as the respondent, who holds himself out as possessing a special degree of skill and knowledge, must exercise the degree of skill of an average specialist in his field. [Citations omitted.]

It must be remembered, however, that a standard of reasonableness is not a standard of excellence or a standard of perfection. See: Carlsen v. Southerland, 2006 BCCA 214, 53 B.C.L.R. (4th) 35 at paras. 13 and 15; Royal Victoria, at para. 86.

Second, it must also be remembered that an unfortunate outcome (such as the one in this case) does not constitute proof of negligence. The question is whether the act or omission would be acceptable conduct for a reasonably prudent and diligent professional in the same circumstances. See: St. Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491 at para. 53.

Third, an assessment of the standard of care must be judged based on what the physician knew at the time of the treatment. The assessment should not focus on the consequences of the treatment and should not be done retrospectively.

As set out in Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351 at para. 28:

As the judgment from Hôpital général de la région de l’Amiante, supra, indicates, courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor’s limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.

Fourth, a mere error in judgment is distinguishable from professional fault, and a mere error in judgment will not attract a finding of negligence. As noted in Bafaro v. Dowd, aff’d 2010 ONCA 188:

Whether or not the physician was negligent or simply exercised an error in judgment will be determined on a case by case basis having regard to the particular facts in each case:

Diagnosis is, above all, an exercise of the physician's judgment based on his training, experience and, perhaps, intuition. It is trite to say that a physician is not liable for injuries flowing from errors of judgment (as opposed to actual negligence). The real difficulty lies in determining whether injurious behaviour by a physician was negligence or merely an error in judgment and it is the facts in each case which will determine the answer to this crucial question.

Dean v. York County Hospital et al., [1979] O.J. No. 348 (High Ct.).

Fifth, a professional who is following a standard practice will generally be able to rely on adherence to that standard practice as an answer to a claim of negligence. In Crawford (Litigation Guardian of) v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont.S.C.), aff’d , 2004 26 C.C.L.T. (3d) 246 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 496 at para. 228, the Court stated:

Reference to Johnston v. Wellesley Hospital (1970), [1971] 2 O.R. 103 (Ont. H.C.), at 113-4 is also helpful. The court said:

On the other hand, where, contrary to the Crits v. Sylvester case, the act or omission complained of pertains to a strictly medical matter, where medical judgment and technique are involved, the defence that the act was done in accordance with standard recognized medical practice is, in most cases, if not always, a complete answer to an allegation of negligence; see Gent and Gent v. Wilson, [1956] O.R. 257 at pp.265-6, 2 D.L.R. (2d) 160 at p. 165, where Schroeder, J.A., in delivering the judgment of the Court of Appeal, stated:

Each case must, of course, depend upon its own particular facts. If a physician has rendered treatment in a manner which is in conformity with the standard and recognized practice followed by the members of his profession, unless that practice is demonstrably unsafe or dangerous, that fact affords cogent evidence that he has exercised that reasonable degree of care and skill which may be required of him.

The question of whether there is a standard practice is a question of fact.

Expert Evidence on the Standard of Care

[72] The Plaintiff called Dr. David Pichora as an expert witness. He has been an Orthopaedic Surgeon since 1984. From 1992 to 2008, he held the positions of Orthopaedic Residency Program Director and Chairman of the Division of Orthopaedic Surgery at Kingston General Hospital, Hotel Dieu Hospital, and Queen’s University. From 1998 to 2000, Dr. Pichora held concurrent positions as President of the Ontario Orthopaedic Association and the Section Chair for the Orthopaedic Surgery division of the Ontario Medical Association. He was qualified as an expert in the standard of care applicable to orthopaedic surgeries in Ontario and causation with respect to diagnosis, treatment and management of clavicle fractures.

[73] Dr. Pichora testified that an assessment of the status of the fracture based upon the April 2017 X-rays would be inherently unreliable due to the limitations of the imaging, with approximately 50 percent of the fracture site being obscured by the hardware, preventing a clear view of the underlying bone. As a result, the union status behind the plate remained unknown, and the observable portion of the bone demonstrated incomplete union.

[74] Dr. Pichora testified that Dr. Lee’s failure to confirm the actual healing status through imaging prior to performing the hardware removal surgery on June 2, 2017 constituted a significant departure from his intended course as documented in the April 20, 2017 clinic note. This deviation breached the standard of care expected of an orthopaedic surgeon.

[75] Given the high risk of re-fracture in the absence of confirmation of complete union of the fracture, the standard of care, according to Dr. Pichora, required that Dr. Lee order updated imaging to determine the actual status of healing of the fracture before proceeding with the removal of the hardware on June 2, 2017.

[76] Dr. Pichora opined that, considering the healing status of the fracture and the clinic note from April 20, 2017, there was no compelling justification for Dr. Lee to deviate from his plan and proceed with the hardware removal surgery in early June. Dr. Pichora opined that removing the plate at that point did not meet the standard of care, given the excessively high risk of re-fracture.

[77] It was Dr. Pichora’s opinion that, without fresh imaging or updated clinic findings following the April 20, 2017 appointment, Dr. Lee’s decision to operate on June 2, 2017 amounted to a breach of the standard of care.

[78] The Defendant called Dr. Karabatsos as an expert witness. He has been practicing as an Orthopaedic Surgeon since 2003. Seventy to eighty percent of his practice is clinical care consisting of surgery, clinic work and emergency room work. He was qualified as an expert in orthopaedic surgery and orthopaedic standard of care, management of clavicle fractures and informed consent and causation.

[79] Dr. Karabatsos testified that, in circumstances similar to this case, plates that have been used to fixate clavicles are routinely removed where a patient expresses discomfort with hardware and wishes to have them removed, so long as the fracture is united.

[80] Dr. Karabatsos testified that, in his view, the question of whether a bone is “healing” or “healed” is not a medical term, and that the proper medical term to use is “union”. Dr. Karabatsos explained that new bone had formed and bridged the fracture site, thus creating bony union by January 2017, and that by April 2017 “the fracture had well united”. Once you have evidence that the fracture is united, it is reasonable to proceed with hardware removal within four to six months of the surgery, although, in general, physicians do not remove the hardware within the first nine months.

[81] Dr. Karabatsos would not have removed the hardware in April 2017, but felt that it was appropriate to do so on June 2, 2017, even without further imaging. Further imaging, although possible, was not required before proceeding with the hardware removal.

[82] Dr. Karabatsos cited studies which indicate that hardware removal is routinely done within a wide variation of time intervals ranging from six months following the time the implant was placed. In his view, Dr. Lee met the standard of care.

[83] The fact that Dr. Lee changed his original management plan was not a failure to maintain the standard of care, although, when asked why Dr. Lee would change his plan between April 20th and June 2nd without further X-rays, Dr. Karabatsos answered: “I’m not sure what his thinking was”.

Analysis – Standard of Care

i) Proceeding With the Surgery on June 2, 2017

[84] As of April 20, 2017, Dr. Lee’s plan of treatment was to see Ms. Kotorashvili in “three months time” (July 2017) for “further review with repeat X-rays”, and “removing her hardware sometime after next fracture clinic visit”. There is no dispute that up until April 20, 2017, Dr. Lee met the applicable standard of care.

[85] The question of whether Dr. Lee was negligent turns on why he departed from his April 20, 2017 treatment plan, and instead of reviewing Ms. Kotorashvili at a follow-up appointment in July, he performed the surgery on June 2, 2017.

[86] The bottom line is that Dr. Lee could not explain why the surgery was performed on June 2, 2017. He did not meet with Ms. Kotorashvili between April 20, 2017 and June 2, 2017. No X-rays were taken between those dates. He had no additional or different information when he performed the surgery on June 2, 2017 than he had when he wrote the treatment plan in his clinical notes on April 20, 2017. He did not know why Ms. Kotorashvili’s surgery was scheduled for June 2, 2017. There is no contemporaneous evidence that he reconsidered or revisited his April 20, 2017 treatment plan and exercised his clinical judgment to perform the surgery on June 2, 2017 without any updated imaging of the fracture. His secretary scheduled the surgery for June 2, 2017, so he performed the surgery on that date.

[87] I reject Dr. Lee’s evidence that Ms. Kotorashvili voiced concerns about “the thinness of the skin overlying the hardware and irritation and hypersensitivity” at their meeting on April 20, 2017. Not only is this concern nowhere in his clinical notes, it is inconsistent with his clinical notes which state: “She has recovered full range of motion in the right shoulder with good rotator cuff strength. There was no significant pain or irritation”.

[88] Moreover, it strains credulity for Dr. Lee to suggest that Ms. Kotorashvili’s hypersensitivity and irritation were so significant that he can remember this conversation more than six years after it occurred, but that it was not so significant that he did not refer to it in his clinical notes.

[89] Nor do I believe Dr. Lee when he testified that the “major thing” that he remembers about the April 20, 2017 conversation was that:

I emphasized to her that the earlier we take it out, that there is a high risk for re-fracture. She wished to go ahead, and she understood. It wasn’t something that she wanted to wait until there was complete resolution of the fracture because of the symptoms that she was having, and I was cognizant of that.

[90] This is not referenced in his clinical notes, and it makes little sense that he would have had this discussion with her on April 20, 2017, given his plan of treatment to perform the surgery after he saw her again in three months time and reviewed new X-rays. There is no suggestion in his clinical notes that Ms. Kotorashvili did not accept his plan of treatment or that she was anxious to have the surgery performed before meeting again in three months. Again, if the patient wanted to have the surgery performed prior to the physician’s recommended timelines when there was still a high risk of re-fracture, I would expect this to be noted in the clinical notes.

[91] I also reject Dr. Lee’s evidence that he met with Ms. Kotorashvili prior to surgery on June 2, 2017, and discussed with her, once again, that he was removing the hardware at an earlier time than would be ideal because of her hypersensitivity and the fact that the hardware was fairly prominent, and that he discussed with her the increased risk of re-fracture.

[92] Again, I find it unbelievable that a surgeon who is asked to perform surgery on a patient “at an earlier time than would be ideal” and contrary to his recommended plan of treatment, would fail to make any reference to having reviewed these additional risks with the patient before undertaking the surgery. There is no reference to an increased risk of re-fracture in Dr. Lee’s clinical notes or on the patient consent form. I find that this discussion is not referenced because it did not occur.

[93] I conclude, therefore, that without fresh imaging or updated clinical findings following the April 20, 2017 appointment, Dr. Lee’s decision to operate on June 2, 2017 amounted to a breach of the standard of care.

[94] In this regard, I accept the expert opinion of Dr. Pichora.

[95] I reject the expert opinion of Dr. Karabatsos because it is based on the premise that Dr. Lee exercised his clinical judgment and decided to remove the hardware earlier than he planned because the patient was expressing discomfort with the hardware. This premise is unsupported by Dr. Lee’s clinical notes. Changing the surgery date was not a clinical decision that Dr. Lee made, indeed, he did not know why the surgery date was moved up to June 2, 2017.

[96] I also reject Dr. Karabatsos’ opinion that the terms “healing” and “healed” are not medical terms. The term “healing” is used throughout the clinical and radiological reports relating to the fracture, and Dr. Lee agreed that it was better to perform the hardware removal surgery after the fracture was “healed” rather than while it was still “healing”.

ii) Informed Consent

[97] For the Plaintiff to establish a claim on the basis of a failure to obtain informed consent, the Plaintiff must prove the Defendant physician failed to adequately disclose a material risk or an indicated treatment alternative, and that this failure caused the Plaintiff’s damages. Not only must the Plaintiff establish that she would not have proceeded with the surgery if she knew the risk, but also that a reasonable person in the same circumstances also would not have proceeded: Brown v. Dr. Baum, 2020 ONSC 1541, at para. 5, and cases cited therein.

[98] In Revell v. Heartwell, 2010 ONCA 353, at paras. 42-43, the Ontario Court of Appeal summarized the first step as follows:

Doctors must disclose all material risks to patients before proceeding with treatment. A material risk is one that a reasonable person in the patient's position would want to know about before deciding whether to proceed with the proposed treatment. Risks that are rare will be material if the consequences of those risks are serious.

[Considering whether] there has been adequate disclosure of the material risks attendant on a procedure or treatment….involves three major elements:

1. an explanation of the procedure and the injury that may occur;
2. an explanation of the frequency or likelihood of the injury (risk) materializing; and
3. an explanation of the consequences of the injury (risk), should it occur.

[99] The present case raises an unusual circumstance. Dr. Lee set out his proposed treatment plan on April 20, 2017. There is no suggestion in his clinical notes that Ms. Kotorashvili was resistant to or objected to this plan.

[100] When Dr. Lee met with Ms. Kotorashvili prior to the surgery on June 2, 2017, it was incumbent on him to explain to her the specific risks involved in departing from his April 20, 2017 treatment plan. It was not enough for him to tell her that there was a risk of re-fracture; he had to tell her that there was a greater risk of re-fracture on June 2, 2017 than if she waited for “further review with repeat X-rays” as originally planned. He had to explain to her that a re-fracture could result in the bone healing in a malunion state. These were the increased risks of moving the surgery date to an earlier time. It was all the more important to explain these risks because Dr. Lee did not know why his April 20, 2017 treatment plan was not being followed – why the surgery had been moved up to June 2, 2017 and he was removing the hardware “at an earlier time than would be ideal”.

[101] Ms. Kotorashvili signed a standard form Consent to Treatment prior to the surgery. There is nothing on this form that indicates what risks were discussed with the patient.

[102] As indicated above, I reject Dr. Lee’s evidence that when he met with Ms. Kotorashvili prior to surgery on June 2, 2017, he discussed with her the increased risk of re-fracture by not following his April 20, 2017 treatment plan.

[103] Again, I find it unbelievable that a surgeon who is asked to perform surgery on a patient “at an earlier time than would be ideal” and contrary to his recommended plan of treatment, would fail to make any reference to having reviewed these additional risks with the patient before undertaking the surgery. There is no reference to an increased risk of re-fracture in Dr. Lee’s clinical notes or on the patient consent form. I find that this discussion is not referenced because it did not occur.

[104] Moreover, Dr. Lee agreed on cross-examination that a fully informed discussion with Ms. Kotorashvili as to the risks of removing her hardware could not have occurred on June 2, 2017 because he did not have any updated X-rays as to the state of the fracture healing.

[105] While Ms. Kotorashvili has very little memory of any of her conversations with Dr. Lee, she was adamant that she was not warned that there were increased risks of re-fracture if the surgery was performed earlier than recommended.

[106] Ms. Kotorashvili also testified that if she had been warned of an increased risk of re-fracture, she would not have had the surgery in June. I accept this evidence.

[107] I also find that a reasonable person in the same circumstances informed of the increased risk of re-fracture by proceeding “at an earlier time than would be ideal”, would wait another month for “further review with repeat X-rays” before undergoing surgery.

[108] Based on these factual findings, I find that Dr. Lee did not obtain Ms. Kotorashvili’s informed consent prior to the June 2, 2017 surgery.

b) Did Dr. Lee’s negligence cause any injury to the Plaintiff?

[109] Dr. Pichora testified that in his opinion the re-fracture of the clavicle at the original fracture site was caused by the premature removal of hardware on June 2, 2017. In his opinion, the fracture was not sufficiently healed when Dr. Lee took the plate off. There was no evidence that Ms. Kotorashvili had engaged in any activity that caused or contributed to the fracture.

[110] Had Dr. Lee maintained his treatment plan of April 20, 2017 to see Ms. Kotorashvili in “three months time” (July 2017) for “further review with repeat X-rays”, and “removing her hardware sometime after next fracture clinic visit”, the re-fracture would have been far less likely to have occurred, and Ms. Kotorashvili would have been spared the following months of further recovery, the bump on her shoulder, and the third surgery.

[111] Dr. Karabatsos testified that the re-fracture of the clavicle following the June 2, 2017 surgery was not caused by Dr. Lee. This was based on his opinion that the fracture had united by April 2017, and once united there was no difference between “healing” and “healed”. This was contrary to the evidence of both Dr. Pichora and Dr. Lee that it is preferable to wait until a fracture has healed, and that the longer the hardware is left in, the lower the re-fracture rate. Dr. Karabatsos agreed that this was “theoretically” correct. Dr. Lee agreed that “the risk of re-fracturing the original fracture site is increased following the removal of hardware if the fracture has not yet completely healed”.

[112] I prefer the evidence of Dr. Pichora on this point, and I find that the re-fracture of the clavicle at the original fracture site was caused by the premature removal of the hardware on June 2, 2017. I find that had Dr. Lee followed his April 20, 2017 treatment plan and reviewed further X-rays “in three months time” before removing the hardware, the re-fracture would have been far less likely to have occurred.

[113] Ms. Kotorashvili testified that her shoulder is now weaker than it was before her accident. She is no longer able to take the laundry down the stairs to the basement or vacuum the stairs. Her son has become too heavy for her to lift into the bathtub. I heard no expert evidence that this weakness was caused by the June 2, 2017 surgery. There was no evidence that, but for this surgery, the Plaintiff would not experience this weakness in her shoulder. The weakness could be the result of the original fracture. The weakness could have developed regardless of whether there was a re-fracture after the June 2017 surgery. In the absence of any expert evidence on this issue, I am not prepared to find that any shoulder weakness was the result of the June 2017 surgery.

iii) Non-surgical treatment of the Re-fracture

[114] There is no dispute that most clavicle fractures are treated non-operatively. Treatment options are influenced by the degree of displacement of the bone fragments caused by the fracture, with non-operative treatment being the preferred option where there is mild displacement.

[115] Non-surgical treatment of a clavicle fracture will often lead to a malunion and may result in a cosmetic deformity (dissymmetry of the shoulder), although if the misalignment is slight, it will not change the functional outcome in most cases. In cases of significant displacement (like Ms. Kotorashvili’s first fracture), non-operative treatment could lead to the bone healing in a shortened position that could compromise the functionality of the clavicle.

[116] Dr. Pichora testified that, with respect to the re-fracture, “you might advise conservative treatment” and that “it’s a judgment call, you could go either way with conservative or operative management”, but that the patient “needs to be advised that there are two choices and that if their decision based on informed consent is to go in and refix the fracture, the sooner you do it, the better”.

[117] Dr. Karabatsos testified that a physician should advise the patient that if the re-fracture is treated non-operatively, the patient should expect some deformity in their shoulder. He would have told his patient that the fracture was in an overall acceptable position, that it is going to heal, but that there will be a bump on the patient’s shoulder.

[118] The Plaintiff argues that Dr. Lee failed to advise Ms. Kotorashvili of the option of having surgery following the re-fracture so there would not be a bump on her shoulder.

[119] Dr. Lee testified that, following the discovery of the re-fracture on July 13, 2017, he had a brief discussion with Ms. Kotorashvili “with respect to possible surgery, but given the difficulties that she had with the wound and so forth, she was not interested in any surgical intervention”. This discussion was not documented in his clinical notes. He did not indicate that he ever advised Ms. Kotorashvili that non-operative treatment might result in a bump on her shoulder.

[120] Ms. Kotorashvili could not recall any meetings with Dr. Lee after the June 2, 2017 surgery. She could not remember who told her that her clavicle had re-fractured. She could only remember that she stopped seeing Dr. Lee after the re-fracture because she was unhappy that her right shoulder went down and that she had a bump on her right shoulder. She felt that it did not look right.

[121] Even accepting Dr. Lee’s testimony, there is no evidence that he advised Ms. Kotorashvili that she might develop a bump on her shoulder or a lowered shoulder if she chose the non-operative treatment route.

[122] On the other hand, there is no evidence that Ms. Kotorashvili would not have proceeded with the non-operative treatment if she knew the risk. She was never asked this question. Given her displeasure with the final appearance of the non-operative treatment, one might infer that she would have opted for the surgical treatment to avoid the deformity, as she ultimately opted for surgery to correct it. But this would be with the benefit of hindsight. One could also infer that, given her unpleasant experience with the first surgery – the infection and re-fracture after the hardware was removed – she might have had, as Dr. Lee testified, no interest in another surgical intervention prior to the bump actually appearing on her shoulder.

[123] In the absence of her being asked this question in examination-in-chief so that her answer could be subject to cross-examination, it would be unfair to draw any inferences from the evidence available.

[124] Once the bump on her shoulder and shoulder asymmetry became apparent, Ms. Kotorashvili might have opted for earlier surgical intervention before the clavicle had healed had she been given that option by Dr. Lee.

[125] However, even if she had agreed to surgical intervention before the clavicle had healed with a malunion and angulation, she would have undergone surgery earlier (perhaps in October/November 2017), but with the same result as the surgery she underwent with Dr. Hall on October 2, 2018. There is no evidence that the outcome would have been better had the third surgery been performed earlier.

[126] Given this conclusion, I find that even if Dr. Lee was negligent in not advising Ms. Kotorashvili of the risk that she might develop a bump on her shoulder or shoulder asymmetry if she chose the non-operative treatment route, this did not result in any damages that were not already caused by the premature surgery on June 2, 2017. Either way, Ms. Kotorashvili would have undergone a third surgery with the same end result.

c) Was the Plaintiff’s surgery on October 2, 2018 unnecessary elective, cosmetic surgery or was it reconstructive surgery required to correct the bump on her shoulder and asymmetry?

[127] The surgery conducted by Dr. Hall in October 2018 was done at Ms. Kotorashvili’s request and was not recommended by Dr. Hall. It is clear from his clinical notes that Dr. Hall did not recommend this surgery. The indications for surgery were the patient’s complaint of a bump on her shoulder and shoulder asymmetry.

[128] In Dr. Karabatsos’ opinion, this surgery was “highly elective” and largely cosmetic. It would not result in a better functional outcome for the patient.

[129] The Defendant argues that since it was “elective” and “cosmetic” surgery, it should not be a basis for awarding damages.

[130] Dr. Pichora testified that the surgery in October 2018 aimed at rectifying the deformed clavicle by correcting the angulation. He described it as a “standard approach to malunion surgery”. Dr. Pichora testified that “elective is not a great term to use” because “elective implies unnecessary”.

[131] The term “cosmetic surgery” has a specific meaning in Ontario law because cosmetic surgery is not an insured service under the Schedule of Benefits for Physician Services under the Health Insurance Act, R.S.O 1990, c. H6.

[132] The Schedule of Benefits includes a “Surgical Preamble”, which states at paragraphs 16 and 17:

16. Cosmetic or Esthetic Surgery: means a service to enhance appearance without being medically necessary. These services are not insured services (see Appendix D).

17. Reconstructive Surgery: is surgery to improve appearance and/or function to any area altered by disease, trauma or congenital deformity.

[133] Appendix D of this Schedule describes the conditions under which surgery for alteration of appearance only may be a benefit. Paragraph 6 of the Preamble states:

6. Within the context of this policy, the word “trauma” includes trauma due to treatment such as surgery, radiation etc

See: M. M. v. Ontario (Health Insurance Plan); DC v. Ontario (Health Insurance Plan).

[134] Ms. Kotorashvili’s October 2, 2018 surgery qualifies as reconstructive surgery because the bump on her shoulder and shoulder asymmetry was trauma caused by the June 2, 2017 surgery. She did not have the bump or asymmetry prior to that surgery.

[135] The bump and asymmetry were caused by the Defendant. Had Dr. Lee followed his April 20, 2017 treatment plan, it is unlikely that Ms. Kotorashvili’s clavicle would have re-fractured. It would have healed without a bump and without the asymmetry.

[136] Ms. Kotorashvili was self-conscious about the bump and asymmetry resulting from the re-fracture of her clavicle. While this deformity might have been minor, she was entitled to have it repaired, and had to undergo a third surgery to do so. She is entitled to compensation for this.

d) If Dr. Lee was negligent, what is the measure of general damages?

[137] As indicated above, I have found that without fresh imaging or updated clinical findings following the April 20, 2017 appointment, Dr. Lee’s decision to operate on June 2, 2017 amounted to a breach of the standard of care.

[138] I have also found that, had Dr. Lee maintained his treatment plan of April 20, 2017, the re-fracture following the June 2, 2017 surgery would have been less likely to have occurred, and Ms. Kotorashvili would have been spared the following months of further recovery, the bump and asymmetry on her shoulder, and the third surgery. These are all injuries for which she is entitled to compensation.

[139] The assessment of non-pecuniary damages is an individual exercise taking into account a variety of factors including: age, nature of the injury, severity and duration of pain, disability, emotional suffering, impairment of family and social relationships, and loss of lifestyle: Stapley v. Hejslet, 2006 BCCA 34.

[140] The Plaintiff seeks general damages in the range of $25,000 to $100,000 for the injury caused by Dr. Lee’s negligence. This is the only head of damages claimed.

[141] The Defendant argues that if there was any negligence, general damages should be limited to nominal damages.

[142] The Plaintiff relies on a number of cases to support this range of damages. Many of these cases relate to general damages for a fractured clavicle that resulted in significant residual pain, psychological trauma and physical limitations. In this case, Dr. Lee did not cause the original fracture, and there is no evidence that the Plaintiff’s current limitations were caused by the re-fracture or the third surgery.

[143] In this case the damages relate to the re-fracture, the prolonged recovery, and having to undergo a third surgery to correct the bump and asymmetry caused by the re-fracture. The bump and asymmetry were minor and were corrected about one year after the Plaintiff first noticed them. She has no ongoing physical or psychological symptoms caused by the re-fracture.

[144] The closest case relied on by the Plaintiff appears to be Gallant v. Slootweg, 2014 BCSC 1579, and the cases cited therein at para. 47. In Gallant, the Plaintiff was awarded $25,000 (pre-inflation) for a clavicle fracture which was conservatively managed in a sling. He returned to his pre-accident functioning within three months of the accident.

[145] Taking these various factors into account, I am of the opinion that $35,000 constitutes an award of non-pecuniary damages that is just and fair in this case.

[146] The Plaintiff claims pre-judgment interest at the applicable pre-judgment interest (PJI) rate on non-pecuniary damages at 5% in accordance with Rule 53.10 of the Rules of Civil Procedure.

[147] The Defendant takes the position that the Court should decline to apply the default 5% PJI rate under Rule 53.10, but should exercise its discretion under sections 130(1) and (2) of the Courts of Justice Act to prescribe a PJI rate in the amount of 2% pursuant to section 127 and 128 of the CJA, as the action was commenced in the second quarter of 2019.

[148] In consideration of the factors set out in ss. 128 and 130 of the CJA and applicable case law, it is appropriate to exercise my discretion to award PJI at the rate of 2%, which is consistent with the average market rates and the average PJI rates that have prevailed since the action was commenced: MacLeod v. Marshall, 2019 ONCA 842, at para. 54; Aubin v Synagogue and Jewish Community Centre of Ottawa, 2023 ONSC 3926, at paras. 33 – 35, 46; Henry v. Zaitlen, 2022 ONSC 7259, at paras.14 – 29; Rathan et al. v Scheufler et al., 2023 ONSC 3232, at paras. 445-446.

[149] The Plaintiff is presumptively entitled to her costs. If the parties are not able to agree on costs, the Plaintiff may file her costs submissions (maximum 3 pages) plus costs outline and any offers to settle, within 20 days of the release of this Decision, and the Defendant may file responding submissions on the same terms within a further 15 days.

Justice R.E. Charney

Released: March 13, 2024