Ontario Superior Court of Justice

Court File No.: CV-20-0434-000
Date: 2025-04-02

Between

Kathleen Joanne O’Brien
Plaintiff
Counsel: Vlad Popescu

— and —

Jasjit Lochab
Defendant
Counsel: Sean Lewis & Blerta Gjoci

Heard: March 10, 11, 12, 13, 14, 24 and 25, 2025, at Thunder Bay, Ontario
Judge: F. B. Fitzpatrick

Reasons for Judgment

Introduction

[1] This is a medical malpractice action.

[2] The plaintiff, Kathleen O’Brien (“Kathy”), alleges she received negligent treatment at the hands of the defendant, an orthopaedic surgeon, Dr. Jasjit Lochab (“Dr. Lochab”) in December 2018. The parties have agreed on damages. Liability was the sole issue at this trial.

Undisputed Facts

[3] Many of the facts involved in this matter were not in dispute. On Christmas morning in 2018, Kathy was 68 years old. She had a serious fall at her home on that day. She broke her hip. She went by ambulance to the hospital in Thunder Bay. She was assessed and had X-rays taken. An X-ray confirmed a right femoral neck fracture of Kathy’s femur. The initial diagnosis of the nature of the fracture by the radiologist who first reviewed her initial X-ray was incorrect. Also, this X-ray did not reveal the full extent of the fracture.

[4] A further assessment of Kathy was conducted by a medical resident working with Dr. Lochab. It was determined that the fractured neck of the right femur was displaced. This means that Kathy’s femur had moved out of anatomical line from where it was supposed to be.

[5] A decision was made to operate. There is no issue about Kathy giving informed consent to the operation. Dr. Lochab did the operation. He determined that Kathy required a partial hip replacement. While performing the operation, Dr. Lochab was able to see the actual fracture in Kathy’s femur. It was more extensive than had been revealed by the initial X-ray, and Dr. Lochab had to adjust his surgical plan accordingly. However, he did not deviate from his plan to treat Kathy’s injury by using a particular type of prosthesis to replace the fractured femoral neck. The device used was an uncemented Biomet Taperloc stem.

[6] The operation saw an upper portion of Kathy’s femur removed, including the femoral head and much of the femoral neck. This is standard procedure for a partial hip replacement. Dr. Lochab then replaced these removed portions of the femur with the titanium device identified above. Dr. Lochab inserted a Biomet Taperloc single wedge proximally coated metaphyseal engaging stem device in Kathy’s femur. He had used this device in the past. He was comfortable using this device, which requires a certain degree of “feel” on the part of the surgeon to ensure it is properly implanted in a patient.

[7] The device works by first being stabilized by a snug fit in the bone into which it is inserted. Long term stability is further achieved when the bone and the device meld together in a process called osteointegration. Osteointegration of the device typically occurs over five to six weeks following the operation.

[8] As Dr. Lochab was operating, he saw a more extensive fracture than had been revealed by the initial X-rays. He therefore decided to utilize small metal cables to reinforce the portion of the femur where the device was implanted. Three cables were used. The cables are designed to reinforce the femur for a number of reasons. First, to ensure there is no further fracturing of the femur through the preparation process for the device to be inserted, and as it is inserted. Second, the cables are designed to mitigate and prevent any further instability of the femur where the device has been placed, which could be caused by the initial fracture, or any residual weakening of the bone caused by the initial fracture.

[9] During the course of the operation, several interoperative X-rays were taken showing the progress of the operation. An X-ray was taken of Kathy’s hip and femur shortly after the operation was completed.

[10] Kathy recovered in hospital for two days. She had an excellent initial recovery. Dr. Lochab judged that she could be released after two days. He gave her what he described as the standard release instructions for patients who receive a partial hip replacement. She was instructed to weight bear as tolerated on her right leg. She was also told not move her right leg away from her body (active abduction) for approximately six weeks.

[11] Initially Kathy was doing well. This changed in early January 2019. Kathy began to experience pain and a limp in her right leg.

[12] She had a follow up appointment with Dr. Lochab on February 5, 2019. An X-ray of the hip revealed that the implanted device had “subsided”, meaning that it had moved further down into the femur. This caused a discrepancy in the length of Kathy’s legs and explained, in part, the significant pain she was experiencing.

[13] Dr. Lochab consulted with Dr. Cullian, a senior orthopaedic surgeon who was on call that day. The doctors decided that Kathy should have another surgery to replace the initial implant with another device, in the form of a long stem modular system. The replacement surgery would be in the nature of a total hip replacement surgery.

[14] Dr. Cullian performed the surgery with Dr. Lochab assisting. In addition to having a new insert being placed in her femur, Kathy had a permanent shell implanted in the acetabulum portion of her pelvic bone to receive the new implant. This is typical for a so-called total hip surgery.

[15] The surgery was successful.

The Positions of the Parties

[16] In my view, the dispute in this matter involves what the exact extent of the initial fracture was that confronted Dr. Lochab when he first operated on Kathy on December 26, 2018. This is significant because of how it impacted the choice of the implant that was used by Dr. Lochab at that first operation.

[17] In giving evidence Dr. Lochab described the fracture he saw both on the preliminary, intraoperative, and post operative X-rays of Kathy’s right hip. He drew a line on an anatomical diagram of the femur and hip showing where he says he observed the fracture.

[18] The expert evidence submitted on Kathy’s behalf asserts that a more significant and lengthy fracture was present in Kathy’s hip when Dr. Lochab performed the first operation. One of Kathy’s experts, Dr. Waddell, was also asked to draw a line on an anatomical diagram to show the approximate area where he believed the fracture to be. Dr. Lochab was asked to do the same thing. The expert called on behalf of Dr. Lochab, Dr. Rajit Ghandi, also drew a line on the anatomical diagram to show the approximate area of the fracture.

[19] The parties used a left hip anatomical diagram even though the fracture was on the right hip. Dr. Lochab explained that, for whatever reason, typically left hip models are produced for the use of physicians and students to practice on and to demonstrate to patients different medical procedures and situations.

[20] All the medical witnesses on this trial agreed that the description of the fracture as “exiting on the posterior of the Greater trochanter” was accurate. Everyone agreed the fracture engaged a thick, bony portion of the femur on the medial side called the calcar. Where the fracture “ended”, toward the lower part of Kathy’s femur in the vicinity of the Lesser trochanter, was in dispute.

[21] The lines drawn by Dr. Lochab and Dr. Ghandi were in approximately the same area of the diagram. The line drawn by Dr. Waddell was in an entirely different place on the diagram. Comparatively, the lines drawn by the plaintiff’s expert and the two defence witnesses were not even close.

[22] The stem of the device inserted in the first operation was comparatively shorter than the stem inserted in the second operation in February. Kathy submitted that the fracture in her leg had not been properly repaired by the use of the relatively shorter stem and cables at the first operation. She argues that the fracture remained after her first operation. This explains the use of the three cables by Dr. Lochab. Kathy submits that the fracture extended in her femur below the placement of the lowest of the three cables on her femur. Dr. Waddell and another expert retained by Kathy, Dr. Naudie, opined the fracture was a so-called intertrochanteric fracture. That is, the fracture went below the area of the calcar and entered the Lesser trochanter in Kathy’s femur bone.

[23] Dr. Lochab countered by testifying that the cable on the top of the femur marked the end of the fracture. He says it did not extend below that line. That upper cable can be seen on the interoperative and post operative X-rays. The experts who testified agreed that this upper cable was positioned just above the Lesser trochanter.

[24] Kathy asserts that the opinion of experts called by her regarding the location of the fracture should be accepted from examination of a number of pieces of evidence. First, the use of three cables only makes sense if the fracture actually did go below the level of the first placement and into the Lesser trochanter. Second, the X-ray taken immediately before her second surgery shows a fracture that is similar to that which Dr. Lochab describes seeing when he did the first operation. This demonstrates that the first fracture was still in place and did not occur after the first surgery. Third, the failure of the device is proof that Kathy’s femur was unstable and unable to bond with the device because of the presence of the fracture. The bone area around the shorter stem was not sufficiently stable to stop the device from subsiding, or sinking down in the femur, thus causing the upper cable to fail.

[25] Dr. Lochab argues that he was the only witness at trial who actually saw the fracture during both surgeries. He submits that his evidence is the best evidence on the location of the fracture and should therefore be accepted as definitive. Further, the post operative X-rays and the X-ray taken of Kathy in February 2019 show the fracture where he said he saw it. Dr. Lochab removed portions of the femur where the fracture was present and not any more portions of the bone. This explains that the use of the three cables were prophylactic in nature to prevent further harm to the femur in the course of the first operation. The second and third from the top cable were not being used to secure fractured bone.

[26] Experts from both parties acknowledged that implants of the type initially deployed by Dr. Lochab fail by the patient experiencing subsidence in about 5% of cases. Dr. Lochab submits that, unfortunately, Kathy was among the 5% of patients where the implant just does not “take”.

The Law

[27] The basic legal principles applicable to this matter were not in dispute.

[28] In 1956, in a leading case in this area called Crits v. Sylvester, [1956] O.R. 132, at para. 13, Schroeder J.A. wrote as follows:

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. [Citations omitted].

[29] This continues to be a settled statement of law regarding the standard of care concerning allegations of medical negligence.

[30] Recently, Centa J., in Noel v. Hawrylyshyn, 2024 ONSC 4525, at paras. 440–444, provided a useful summary of the law concerning causation in a medical negligence context:

440 The causation analysis involves two distinct inquiries: whether the defendant's breach of the standard of care was the factual cause of the plaintiffs' loss and, in addition, the legal cause of the loss.

Factual causation: the "but for" test

441 The Supreme Court of Canada's decision in Clements remains the binding authority on causation in negligence cases. In general, to establish factual causation, the plaintiff must prove on a balance of probabilities that without a breach of the standard of care by one or more defendants, the injury would not have occurred. This is the "but for" test.

442 Causation must be assessed in the context of a breach of the standard of care. It is necessary to identify the act or omission that breached the standard of care and determine what, if any, connection it has to the harm at issue. The plaintiff must prove, therefore, that the defendant's conduct was necessary to bring about the injury. The plaintiff need not prove the defendant's conduct was the only cause of the injury, but the plaintiff must prove on a balance of probabilities that the defendant's breach of the standard of care was part of the cause of her loss. Chief Justice McLachlin's statement on the law of causation remains authoritative:

The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred. Inherent in the phrase "but for" is the requirement that the defendant's negligence was necessary to bring about the injury—in other words that the injury would not have occurred without the defendant's negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

443 Causation requires a substantial connection between the injury and the defendant's conduct. Causation is made out under the "but for" test if a defendant's breach of the standard of care caused the whole of the plaintiff's injury"or contributed, in some not insubstantial or immaterial way to the injury that the plaintiff sustained." Put differently, a defendant that is found to have been a cause of some harm to the plaintiff will be liable in tort. A defendant will be liable for all injuries caused or contributed to by his or her breach of the standard of care, even if other non-tortious causes are present. A court that concludes that one or more defendants "materially contributed" to a plaintiff's loss is simply recognizing that the defendant's breach of the standard of care was a "but for" cause of the loss, but was not the only cause of loss.

444 The alternative, and exceptional basis on which legal causation may be established is where the defendant's act or omission "materially contributed to the plaintiff's risk of injury." In Clements, the Supreme Court of Canada explained that the material contribution test is exceptional because it eliminates the plaintiff's need to prove factual causation:

Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [Citations omitted].

[31] I adopt and am guided by the aforementioned principles in deciding the outcome in this matter.

Disposition

[32] The parties do not dispute the legal principles applicable to this matter. In my view, the result of this case turns on its facts. I agree with the submission of counsel for the plaintiff that this was not a difficult factual case. In my view, the case comes down to a factual question of where exactly Kathy experienced the first fracture that was operated on by Dr. Lochab. It seems to me, based on the evidence at trial, that if she had experienced a fracture that was located below the Lower trochanter, and was in the nature of an intertrochanteric fracture, that a different device, with a longer stem, was called for in the first surgery.

[33] However, I prefer Dr. Lochab’s evidence about the location and extent of the fracture Kathy experienced in December 2018, and which was addressed and visualized by Dr. Lochab during the first operation. I make this finding because Dr. Lochab was the only witness who actually saw the fracture and who testified at trial. The experts called on Kathy’s behalf relied on the description Dr. Lochab made of the fracture in his operative note and upon review of the X-rays and deducing the extent of the fracture from the placement of the cables on her femur.

[34] I accept Dr. Lochab’s submission that the plaintiff’s reliance on the cable placement, and the fact of the subsequent failure of those cables in relation to a cause of subsidence, is a kind of “post hoc” argument. It is not persuasive in light of the direct evidence of Dr. Lochab and the lack of any other objective evidence, like the X-rays, to place the fracture anywhere other than where Dr. Lochab said it was in December 2018.

[35] Also, there was expert radiological evidence given at this trial by Dr. Fenton. I appreciate and believe that his evidence about what could be seen in the various X-rays submitted as exhibits at trial was as good as the experts put forward by Kathy. However, as I recall the evidence, the evidence of Dr. Waddell and Dr. Naudie did not expressly point to evidence of the extent of the fracture, once the femoral neck and femoral head had been removed, as being capable of being detected from the interoperative and post operative X-rays entered into evidence at this trial.

[36] I appreciate the theory of the plaintiff. If the fracture had extended into the area of the Lesser trochanter, the cable system was being used to secure against the fracture. Cables two and three were being deployed against this reality. The length of the stem of the Taperloc device would not have been long enough to allow osteointegration to be achieved for Kathy. Kathy’s femur bone was weakened by the presence of the fracture. The cables were not sufficient to hold the stem in place. This, argues the plaintiff, would have explained the subsidence.

[37] However, based on the evidence I heard at this trial, I do not make that finding of the extent of the fracture, which I see as critical to the assertion that Dr. Lochab’s treatment fell below the standard of care of an orthopaedic surgeon practicing in Ontario in 2018 and 2019.

[38] I find the fracture experienced by Kathy in December 2018 extended from the calcar region of the femoral neck, through the femoral neck, exiting at the posterior aspect of the Greater trochanter, as described by Dr. Lochab in his operative note, confirmed in his testimony, and supported by Dr. Gandhi and the balance of the medical evidence such as the pre, interoperative, and post operative X-rays.

[39] I agree with the submissions of the defendant that the disagreement of the plaintiff’s experts as to the location of the fracture evidences a misunderstanding of both the location and the extent of the fracture. Dr. Naudie described the fracture as extending from well into the Greater trochanter, through the femoral neck, down the Lesser trochanter and extending into the diaphyseal portion of the femur. This is contrasted to Dr. Waddell’s opinion that the fracture extended from well into the Greater trochanter, through the intertrochanteric area, to the Lesser trochanter and down into the diaphyseal portion of the femur. I agree with the defendant’s submission that the plaintiff’s experts do not have a unified theory of the location of the fracture. This was borne out in the diagrams of the area at issue, which were marked up by two of the three experts and Dr. Lochab. The lines of the fractures are in different places, as shown by the plaintiff’s expert, Dr. Waddell, and as described by Dr. Naudie. This is contrasted with the evidence of the defence expert and Dr. Lochab showing the fracture in approximately the same location. As noted above, I accept the defence’s evidence as persuasive of the actual extent and location of the fracture.

[40] In my view, the plaintiff’s experts were describing a fracture that would be similar, but slightly different from, the actual fracture described in Dr. Lochab’s testimony and in his surgical note created shortly after the surgery was completed. I agree with the submission of Dr. Lochab that the plaintiff’s experts have made assumptions with respect to their opinions that were not based on Kathy’s situation as she presented in December 2018. I find that Dr. Lochab did not testify, or put in his operative note, that the fracture extended to or below the Lesser trochanter. This is an important fact. I can understand how, if the fracture was more distal, lower on the femur, the application of the shorter prosthesis would have a greater chance of failure because the area where the osteointegration was to occur was unstable due to the presence of a fracture. This, however, was not the case. I cannot make this finding of fact as suggested by the plaintiff based on the evidence at this trial.

[41] In my view, Dr. Lochab met the standard of care in making the choice of implant that was used, how it was implanted, the use of the cables in support of this implant, and the steps taken to ensure initial stability of the implant in Kathy’s femur.

[42] As such, the discharge instructions given to Kathy, to bear weight as she could tolerate and to avoid active abduction for six weeks, were appropriate in the circumstances. The three orthopaedic experts testifying at this trial agreed that instructing a patient to weight bear as tolerated and to minimize abduction of the leg at issue met the standard of care for a partial hip replacement surgery in the face of an initially fractured femur occurring in the region of the femoral neck. I appreciate that the plaintiff’s experts took a different view of the extent of the fracture. However, as I understood the evidence of all the experts, a WBAT (“weight bearing as tolerated”) instruction to a patient who has received a hemiarthroplasty responding to a fracture that does not extend distal to the Lower trochanter met the standard of care.

[43] I find that the post operative instructions given by Dr. Lochab to Kathy met the standard of care of a reasonable orthopaedic surgeon practicing in the province of Ontario in December 2018.

[44] I find that the subsidence of the device implanted in Kathy’s femur, which occurred over the period December 27, 2018, to February 4, 2019, resulted from a failure of osteointegration. I accept the evidence of all the experts that subsidence is a known risk in operations of this type. The experts gave a 5% failure rate as a rate of failure that is observed generally. I find that Kathy’s case is one of the 5% of situations in which this failed result occurs. I appreciate that what happened represents an occasion of 100% failure for Kathy personally. However, I find that this failure did not result from any negligence or breach of the standard of care on the part of Dr. Lochab in performing the operation on Kathy on December 26, 2018.

[45] As I have found no negligence in the performance of the operation, I find that the discharge instructions given by Dr. Lochab to Kathy met the standard of care.

[46] In this case there is no dispute that Dr. Lochab owed a duty of care to Kathy. In my view, there was no dispute on the nature and particulars of the standard of care that Dr. Lochab had to provide Kathy. The fracture she experienced required a hemiarthroplasty to treat. It required a prosthesis to be implanted in her femur to replace the femoral head and portions of the femoral neck that were necessarily removed to complete the hemiarthroplasty. The plaintiff argues a different, longer type of prosthesis was required as of December 26, 2018. I do not accept that argument based on the evidence.

[47] I find that Dr. Lochab exercised appropriate clinical judgment in determining what implant to use and how to implant it in Kathy in December 2018.

[48] In my view, the plaintiff has failed, on the balance of probabilities, to prove that the care provided by Dr. Lochab to Kathy in December 2018 and the discharge instructions given to her, failed to meet the standard of care as outlined by the experts called to testify at this trial and which I accept as required of an orthopaedic surgeon practicing in the Province of Ontario in December 2018. I also find that the instructions given did not breach the standard of care nor cause the failure of the device as evidenced by the necessity to perform revision surgery on Kathy on February 6, 2019.

[49] In my view, nothing Dr. Lochab did in December 2018 caused damages to Kathy. I find that the damages experienced by Kathy were not caused by a breach of the standard of care in the conduct of the operation by Dr. Lochab or in the post operative discharge instructions he gave to Kathy in December 2018.

[50] For these reasons the action is dismissed.

Costs

[51] At the commencement of trial, I asked counsel for an estimate of costs they would see as appropriate if their position was not accepted. Both counsel indicated partial indemnity costs in the range of $25,000.00. I see this as appropriate to award the defendant in this matter, plus HST.

[52] I expect there may also be submissions about disbursements. If there is a dispute, I invite counsel for the defendant to submit no more than two pages, exclusive of any attachments of the accounts of the experts. This shall be submitted on Case Centre on or before May 2, 2025. Any response of the plaintiff, of no more than two pages, can be submitted to Case Centre on or before May 16, 2025. I would appreciate if counsel could send a quick email to my assistant, Ms. Vander Park, when they upload their submissions.

[53] In my experience, the accounts of experts are a contentious issue. Moderation may be a wise approach by the parties to this issue.

[54] For reasons above this action is dismissed with costs on a partial indemnity basis to the defendant, with disbursements if asked.

“original signed by” F. B. Fitzpatrick

Released: April 2, 2025