Thompson v. Azad , 2024 ONSC 354

COURT FILE NO.: CV-19-0324-00

DATE: 2024-01-16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ELLEN ANNE THOMPSON

Vlad Popescu and Jessica Macaulay, for the Plaintiff

Plaintiff

• and -

SANJAY MAHENDRA AZAD

Madison Robins and Blerta Gjoci, for the Defendant

Defendant

HEARD: November 20-24, 27 and 29, 2023 at Thunder Bay, Ontario

Justice Bonnie R. Warkentin

Reasons for Judgment

1The plaintiff, Ellen Anne Thompson, alleges that the defendant, Dr. Sanjay Mahendra Azad, failed in the standard of care owed to Ms. Thompson with respect to post operative care of the plaintiff.

Background of Injury and Surgical Intervention

2On July 13, 2017, while walking her dog, the plaintiff seriously injured her left middle finger. As she was attempting to control her dog, her left middle finger was caught in the dog’s collar, resulting in a serious fracture of her left middle finger.

3The plaintiff attended the emergency department at the Thunder Bay Regional Health Sciences Centre where x-rays were taken. It was determined that she had suffered a complex comminuted and displaced fracture of her left middle finger (the finger) that required surgery to repair. She was referred to the defendant, a local plastic surgeon.

4On July 19, 2017, the defendant performed an open-reduction, internal-fixation (ORIF) surgery in which he reduced and stabilized the fracture using a plate and screws. He ensured the finger was the proper length and that it was correctly aligned.

5Postoperatively, the plaintiff was referred to hand therapy at the Hand and Upper Limb Clinic (HULC) in Thunder Bay to begin physiotherapy immediately and was advised to make a follow-up appointment with the defendant in mid-August. The plaintiff made those appointments. Her first appointment at the HULC was on July 21, 2017, and her follow-up appointment with the defendant was scheduled for August 14, 2017.

6At her second appointment at the HULC, on July 24, 2017, the occupational therapist, Mr. Ramchandani, observed some ulnar migration of the finger. He determined that the plaintiff might need a splint corrector once wound care was no longer required. He also noted that the plaintiff was “able to place/hold near full fist following mobilization”.

7Between July 24 and August 14, 2027, the plaintiff attended approximately 4 or 5 therapy appointments at the HULC and she was also seen by her family doctor, Dr. Bukovy on July 24, 2017. On August 8, 2017, Mr. Ramchandani wrote to the defendant advising that the plaintiff was progressing well, had good active range of motion, had decreased pain, and that her scar was healing well. He also raised a concern with the defendant about “observable” ulnar migration and rotational healing of the finger.

8The defendant received the letter on August 9 and determined he would assess the plaintiff at her scheduled appointment on August 14, 2017. The August 14, 2017, appointment was at the defendant’s office, not in the hospital. The defendant performed a clinical assessment of her finger that included having her make a fist. He noted “some ulnar deviation” of the finger and directed the plaintiff to continue with therapy and splinting and to make a further follow-up appointment with him in October. The defendant did not order x-rays of the finger.

9The plaintiff testified that between July 17 and August 14, 2017, she was making progress with passive range of motion and was able to make a fist. She testified that she had minimal pain when not in active therapy and that the therapist had provided her with different devices to try to correct the deviation with conservative management.

10The plaintiff testified that during her August 14, 2017, appointment with the defendant, she expressed concerns about the way her finger was healing. Her recollection was that the defendant informed her that nothing could be done, except to continue the therapy.

11Between August 14, 2017, and September 5, 2017, the plaintiff did not attend therapy because she was out of town on vacation. On her return, both the therapist and the plaintiff’s family doctor observed increased stiffness, pain, decreased flexion of her finger and increased swelling.

12The plaintiff asked her family doctor to refer her for a second opinion. He provided her with a referral to a hand specialist in Toronto, Dr. Dimitri Anastakis.

13Dr. Anastakis testified on behalf of the plaintiff. In 2017, Dr. Anastakis practiced as a specialist in hand surgery. He is a plastic surgeon at the Toronto Western Hand Clinic and is a colleague of the defence expert witness, Dr. von Schroeder. Dr. Anastakis was not called as an expert, his evidence was limited to his treatment of the plaintiff.

14On September 13, 2017, Dr. Anastakis met with the plaintiff and conducted an assessment that included x-rays of the finger. His physical examination demonstrated significant ulnar deviation and rotation of the finger.

15At trial, he explained that the finger was no longer straight but was deviating toward the baby finger. He also stated that the finger had healed with rotation, that caused “scissoring”, where the finger would cross over the ring finger when attempting to form a fist. He noted that while the x-rays showed mild ulnar displacement, they did not provide the same level of information that the physical examination had provided him. He noted that the x-ray did show that the surgical hardware was intact with no complications.

16Dr. Anastakis advised that plaintiff that he would be able to correct the ulnar deviation and rotation with a second surgery. He recommended that corrective surgery be delayed until the bones in the finger and the soft tissues had healed. He said this was necessary because in his experience there was a much stronger likelihood of a better outcome by delaying this corrective surgery.

17Dr. Anastakis described how bones and tissues heal after a trauma and surgery such as the plaintiff underwent. He explained that while some surgeons might have decided to perform a repeat ORIF, he was of the view that the bones in the finger were too soft and fibrous at this stage in the healing process and there was greater risk of a poor outcome.

18Dr. Anastakis therefore recommended that the plaintiff wait for the bones to heal after which he would perform a “corrective osteotomy” procedure. That procedure was scheduled on December 8, 2017.

19Dr. Anastakis advised the plaintiff to continue with the hand therapy until the surgery. He advised her to do this because it would optimize her hand function, would aid in her recovery and result in a better outcome. The plaintiff, however, chose not to return to therapy prior to December 8, 2017, in spite of having been instructed to do so.

20Dr. Anastakis described his corrective surgery. He first had to cut the now healed bone in the finger and then rotate it to achieve normal alignment. He then took a small piece of bone from the plaintiff’s elbow that he used as a graft to straighten the finger. Once he was satisfied it was straight, he put in a new plate and completed the surgery. Dr. Anastakis explained that this was very fussy work but necessary for the finger to heal straight.

21Dr. Anastakis was satisfied with the result of the surgery. He directed the plaintiff to attend hand therapy as soon as she returned to Thunder Bay a few days later. By six months post-surgery, he determined he no longer needed to follow up with the plaintiff because her grip strength and range of motion were satisfactory.

22A functional assessment conducted by a Ms. Pontello on July 8, 2021, who testified on the plaintiff’s behalf at trial, indicated that the plaintiff has some limitations with extension and flexion of her finger. She also observed that while the plaintiff has normal grip strength with her left hand, she was unable to sustain her grip, such that certain activities requiring a sustained grip would be more challenging to the plaintiff.

23The plaintiff confirmed that she can no longer maintain the same level of activities that require a sustained grip, such as kayaking and certain types of weight training. Two of the plaintiff’s friends testified and described similar issues with the plaintiff’s ability to sustain her grip for certain activities. However, the plaintiff has resumed virtually all her pre-injury activities, including her employment, with some modifications.

24There was no evidence, nor an allegation that the ongoing limitations are a result of the surgical procedures or that they resulted from the delay between the first and second procedure.

Allegations of Negligence

25The plaintiff alleges that the defendant failed in the required standard of care of a plastic surgeon. The allegation is limited to a discrete issue; whether the follow up appointment with the defendant after surgery should have occurred within 7 to 10 days of the surgery on July 19, 2017. The plaintiff also alleges that the defendant should have ordered x-rays of the left hand and middle finger within that 7 to 10 day period.

26The plaintiff claimed that if she had been assessed by the defendant within 10 days post-surgery, she would have been able to immediately undergo a repeat ORIF procedure rather than having to wait until December, some 4 months later and then undergo a corrective osteotomy. Her damages claim alleges this delay resulted in her need to take additional time off work, that she was unable to return to her regular activities for close to a year, and the additional pain and suffering she experienced by having to wait for the second surgery and then go through further rehabilitation.

27There is no allegation of negligence regarding the surgery itself.

Issues

28Did the defendant breach the standard of care of a general plastic surgeon by failing to assess the plaintiff and obtain x-ray imaging of the plaintiff’s left middle finger within 7 to 10 days post-surgery?

29If the defendant fell below the standard of care, did that breach cause a delay in obtaining corrective surgery?

30If there was a breach in the standard of care that caused a delay in corrective surgery, has the plaintiff suffered any compensable damages?

Expert Testimony

31The defendant first saw the plaintiff after surgery for a follow up appointment on August 14, 2017, 26 days after the surgery. That appointment was in his clinical practice office because the Thunder Bay Regional Health Sciences Centre does not provide the resources to plastic surgeons for follow up appointments in the hospital.

Dr. Selig Krajden

32The plaintiff’s medical expert, Dr. Selig Krajden, a general plastic surgeon practicing at the Brampton Civic Hospital, testified that in his opinion, the standard of care required the defendant to assess the plaintiff, including taking x-rays, within 7 to 10 days postoperatively.

33It was his view that because of the complexity of the fracture and the fact that the plaintiff was beginning therapy immediately after surgery, the standard of care required the defendant to clinically assess the plaintiff including x-ray imaging in the early post operative phase. He stated this was necessary because this type of fracture and surgical intervention is at risk of displacement.

34Dr. Krajden testified that had the defendant assessed the plaintiff in that time window, the defendant would have been able to intervene immediately by conducting a repeat of the ORIF to correct the deviation. He stated that there was only a short window in which to repeat the ORIF because after about 14 days post-surgery, the bones and tissues begin to heal, making such a repeat procedure more challenging. He confirmed that most surgeons would not undertake such a procedure once the bone and tissue has begun to heal.

35Dr. Krajden claimed that if the defendant had seen the plaintiff at 7 to 10 days postoperatively and conducted x-rays, he would have known that corrective surgery was required and could have repeated the ORIF. He testified that the ideal time to do a repeat ORIF is within 14 days of the initial surgery, but one could still be done within 30 days. To wait longer would be an individual decision of the surgeon, but it would not be ideal, and he personally would not do repeat ORIF surgery beyond that 30-day window.

36It was Dr. Krajden’s opinion that the plaintiff suffered an inferior outcome because of the delay between the first surgery and the corrective osteotomy. He also noted that the corrective osteotomy required having to break the bone in the finger, a bone graft as well as reconstruction of the now, healed bones. Dr. Krajden described this second surgery as more complex and more invasive than a repeat ORIF would have been.

37Dr. Krajden was unable to point to any written or authoritative standards for plastic surgeons that set out the standard of care to which he was testifying. He based his opinion on his practice and the complexity of the fracture and confirmed that there are no written standards on when surgeons should follow up with patients post-operatively.

38Dr. Krajden opined that the standard of when to see a patient post-operatively depends on the individual case. It was his opinion that in complex fractures where range of motion therapy is commencing immediately post-surgery, an earlier examination by the surgeon is the required standard of care. He confirmed, however, that different surgeons have different practices on assessing patients post-operatively.

39On cross examination, Dr. Krajden agreed with defence counsel that specialist hand surgeons, such as the defence expert, Dr. Herbert von Schroeder, and Dr. Anastakis, have greater expertise in dealing with the secondary corrective issues that are present in this case.

40Dr. Krajden also agreed that his opinion was based upon his own experience with similar types of fractures and surgery and not on a specific standard of care for general plastic surgeons.

41Dr. Krajden was unfamiliar with the resources and processes for general plastic surgeons in Thunder Bay. He acknowledged that if a referral was required to a specialist hand surgeon, that delay would be inevitable and could be months or even years.

Dr. Herbert von Schroeder

42Dr. von Schroeder, an orthopedic surgeon, practicing at Toronto Western Hospital testified for the defence. Dr. von Schroeder has a subspecialty in hand surgery, including hand and microsurgery. In addition to his specialties, Dr. von Schroeder has conducted extensive research on hand injuries and surgeries and has published a number of peer-reviewed publications and presentations on topics related to issues of hand fracture management, bone healing and reconstructive surgery.

43Dr. von Schroeder testified that he regularly performs ORIF procedures and provides follow-up care post-surgery. He also regularly treats complications arising from ORIF procedures and provides secondary corrective surgeries, including osteotomies. Dr. von Schroeder explained that he receives referrals from general plastic surgeons to treat complications.

44It was Dr. von Schroeder’s opinion that post-operative follow-up at between 2 and 4 weeks is reasonable for management of finger fractures. He testified that in his practice, he routinely sees patients in follow-up around 2-3 weeks after ORIF procedures. He also sends his patients to therapy immediately following these surgical procedures.

45Dr. von Schroeder accepted that a repeat ORIF was an option when complications arise after surgery as happened in this case. However, he also testified that the option of continuing with conservative management and postponing surgery until the tissues and bones had healed was also reasonable. He testified that postponing surgery might even be preferable to a repeat ORIF because that permits the soft tissues to recover from the initial trauma of the injury and is an important consideration.

46Dr. von Schroeder testified that there is no defined standard of care for either when a patient should be first seen by a surgeon post-operatively, whether x-rays should be obtained shortly after surgery, nor whether a repeat ORIF or an osteotomy is preferable to correct an ulnar deviation.

Dr. Sanjay Azad

47The defendant, Dr. Azad testified that when he met with the plaintiff on August 14, 2017, there was no scissoring of her finger, and he thought that the impairment could be corrected with good splintage. He testified that as a result, he was not considering corrective procedures at that time.

48The defendant also testified that he does not perform repeat ORIF procedures. He testified that he does not have the skill or knowledge for that procedure. He also commented that in his opinion, because of the significance of the injury, it would be better for the patient to let the bones and tissue recover before conducting a second surgery.

49The defendant indicated that he would only recommend a repeat ORIF and make a referral to a specialist who would undertake such a surgery in the scenario where the fractured finger had completely collapsed. That was not the case regarding the plaintiff’s situation.

50The defendant also explained that in Thunder Bay, general plastic surgeons do not have privileges in the Thunder Bay Regional Health Sciences Centre for post-operative care. As such, he sees his patients in his office, where he does not have access to x-ray technology. He testified that after conducting his physical assessment of the plaintiff on August 14, had he felt that there was a hardware failure, he would have ordered an x-ray.

51The defendant testified that he was not aware of a standard of care that required post-operative follow-up appointments within 7-10 days after surgery. He indicated that the post-operative follow-up is to the HULC where there are trained occupational therapists who are continually assessing the recovery. He expects the therapist to contact him, as they did on August 8, 2017, should there be concerns that require his attention.

52The defendant also testified that he would not and never has undertaken a repeat ORIF procedure. He was also unaware of any surgeon in the Thunder Bay area who would undertake that procedure. In other words, should corrective surgery be required, he would make a referral to a specialist, most likely in the Toronto area.

53All the surgeons who testified agreed that referrals take time, and it is unlikely that such a referral would occur early enough for a repeat ORIF to be undertaken.

Standard of Care

54To establish that the defendant breached the standard of care the plaintiff must establish that his conduct fell below conduct of other ordinary specialists in his field who possess a reasonable level of knowledge, competence and skill expected of professionals in their field.

55To succeed, the plaintiff must prove on a balance of probabilities that the standard of care for a general plastic surgeon in July 2017 required a post-operative follow-up examination, assessment and x-rays within 7 to 10 days of the surgery.

56The evidence in this trial did not support that contention. The expert witness for the plaintiff, Dr. Krajden, initially claimed that this was the required standard of care for general plastic surgeons. However, he then backtracked his opinion by confirming that he was unaware of a specific standard that requires surgeons to see a patient within 7 to 10 days post-surgery or to order an x-ray. He stated that it was his practice to treat patients in this fashion but was not aware of this being the requisite standard of care.

57Dr. Krajden agreed that there are always differences of opinion between surgeons on how to manage and to assess a patient. He testified that this is a case-by-case basis for each surgeon to determine.

58Dr. Anastakis, Dr. von Schroeder and Dr. Azad all testified that they rely on the therapists who the patient sees immediately post-surgery to alert them to any problems. They also testified that it is a judgment call whether to perform a repeat ORIF immediately or to wait until the bone and soft tissue has healed before performing a corrective procedure.

59Dr. von Schroeder, the defence expert, testified that he tries to see his patients between 2 to 3 weeks post-surgery. Dr. Anastakis tries to see his patients within three weeks post-surgery. The defendant attempts to see his patients within 3 to 4 weeks post-surgery; however, he relies on therapists at the HULC to alert him to any potential hardware failure or other issues that would result in him seeing the patient sooner.

60In assessing and applying the standard of care in cases alleging medical negligence, the Court does not apply a test of perfection; a physician is expected to exercise the degree of skill and care expected of a normal, prudent physician of comparable training and experience: Lurtz v. Duchesne, [2003] O.J. No. 1540 (Ont. S.C.J.), rev’d in part on other grounds, 2005 CarswellOnt 380.

61Courts are also cautioned against relying “upon the perfect vision afforded by hindsight” when assessing the standard of care:

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. (Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351, para 28.)

62I am sympathetic to the plaintiff for the ongoing pain and the additional time that she experienced before undergoing corrective surgery. It was no doubt frustrating to be unable to recover earlier and return to her regular activities more quickly. The second surgery resulted in additional pain and a longer recovery period.

63I do not find however that there was a breach of the standard of care required by the defendant. In fact, I find that there was no standard of care in 2017 or today that requires a general plastic surgeon to assess and take x-rays of a patient within 7 to 10 days post operatively. As such the plaintiff’s claim is dismissed.

64If the parties are unable to reach an agreement on costs, they shall provide written submission not exceeding 5 pages, together with their Bills of Costs within 30 days.