Reasons for Decision
Court File No.: CV-14-509361
Date: 2025-01-02
Ontario Superior Court of Justice
Between:
Scott Graham and Barbara Graham, Plaintiffs
and
Bridgepoint Health, George Brown College, Dr. Sheldon Berger, Linda Bede, Rhea Yang, and Jeddahn Angelo Escarian, Defendants
Appearances:
Scott Graham and Amber Chou, for the Plaintiffs
Joshua Lerner and Adam Patenaude, for the Defendant, Dr. Sheldon Berger
Daniel Girlando, for the Defendants, Bridgepoint Health, Linda Bede and Rhea Yang
Heard: May 13–18, 2024
All closing submissions in writing received: August 28, 2024
Released: January 2, 2025
Judge: C.J. Brown
Introduction
[1] This action arises from medical care which the plaintiff, Scott Graham (“the plaintiff”), received at Bridgepoint Health in Toronto following a motorcycle accident and surgery undertaken at St. Michael’s Hospital in Toronto in 2012.
[2] The plaintiff seeks damages for alleged negligence and breach of duty on the part of Dr. Berger (“the defendant”), which caused the plaintiff to experience prolonged recovery from osteomyelitis.
The Facts
[3] Based on all of the evidence adduced in this action, both viva voce and documentary, this court finds the following to be the facts.
[4] The plaintiff, Scott Graham, was involved in a serious motorcycle accident on July 1, 2012. He was riding his motorcycle in the Orillia area at midnight, when he was attacked by a bear. He was thrown from his motorcycle and landed several feet away. He sustained multiple serious injuries, including an open fracture of the left tibia, a fractured right forearm and a burst fracture of the T12 vertebra.
[5] He was taken to the Orillia Soldiers’ Memorial Hospital by ambulance, and thereafter, was transferred to St. Michael’s Hospital in Toronto.
[6] Dr. Aaron Nauth, an orthopedic surgeon, performed urgent surgery to repair the fractured wrist, vertebra and tibia. The surgical repair included irrigation and debridement of the tibial shaft fracture and insertion of an intramedullary nail (“IM nail”).
[7] Prior to the surgery, the plaintiff was informed of the potential risks, including risk of infection, non- or mal-union of the bone, post-operative anterior knee pain and knee stiffness.
[8] Following the surgery, the plaintiff began to run a fever. He was investigated for a possible infection, diagnosed with bacteremia in the bloodstream and treated with IV antibiotics. The blood cultures taken were positive for enterococcus faecalis.
[9] On July 17, 2012, the plaintiff was transferred to the orthopedic rehabilitation department of Bridgepoint Hospital, a rehabilitation hospital, under the care of Dr. Sheldon Berger. Bridgepoint was a public hospital incorporated pursuant to the Public Hospitals Act, RSO 1990, c P.40, as amended.
[10] Dr. Berger was, at all material times, registered to practice medicine in the province of Ontario. He was a general practitioner, who worked as a family doctor and hospitalist. He had privileges at Bridgepoint as a hospitalist for 43 years before retiring in 2021.
[11] Upon the plaintiff’s admission to Bridgepoint, x-rays were ordered of the plaintiff’s right forearm. Dr. Berger did a complete physical assessment and examination. Dr. Berger concluded that the plaintiff appeared to be healing appropriately. Complete bloodwork and urine tests were ordered. The plaintiff’s medications were continued, including the IV antibiotics which had been ordered by Dr. Nauth following the tibial surgery to continue to July 22 to treat the plaintiff’s blood infection.
[12] Dr. Berger ordered the Bridgepoint nursing staff to remove the nylon sutures in Mr. Graham’s pre-tibial wound, in accordance with the orthopedic rehabilitation admission orders. He ordered that the plaintiff be seen by a psychiatrist.
[13] Dr. Berger continued to monitor the plaintiff’s recovery. He assessed the plaintiff on 10 occasions between July 17 and July 30, 2012. He reviewed bloodwork on July 19, 2012 which revealed that the plaintiff had a normal white blood cell count. On July 20, 2012, Dr. Berger observed the plaintiff’s pre-tibial wound to be healing well.
[14] On July 23, Dr. Berger assessed and evaluated the plaintiff’s progress. On July 24, Dr. Berger noted that the plaintiff was clinically stable and that his mobility was improving.
[15] The plaintiff was also seen by the visiting orthopedic surgeon from St. Michael’s Hospital on July 26, 2012. There were no concerns noted on that visit. It was recommended that the plaintiff’s forearm cast be removed so that he could begin rehabilitation. This visit was part of a routine system whereby an orthopedic surgeon from St. Michael’s would visit Bridgepoint once per week to meet with and assess the post-surgical patients from St. Michael’s and provide advice and support to the hospitalist on duty.
[16] On July 28, the plaintiff notified his nurse that a lump had developed in the area of his pre-tibial wound.
[17] During a visit with the plaintiff on July 30, 2012, Dr. Berger noted that the plaintiff had a soft, superficial lump over his pre-tibial laceration near the surgical site. Dr. Berger made a notation in the plaintiff’s patient record and planned to monitor the lump. He noted that the plaintiff was stable clinically and was working on his mobility. Arrangements were made for the plaintiff to see the wound care nurse the next day.
[18] The wound care nurse assessed the plaintiff’s wound the following day, and noted moderate drainage from the area. The area was cleaned and a dry dressing was applied. Warm compresses were ordered to draw out the fluid. The plaintiff’s vital signs were normal, including his temperature.
[19] Both Dr. Berger and the wound care nurse again assessed the plaintiff on August 1, 2012. The lump had grown in size. Dr. Berger spoke with the wound care nurse, and signed off on her order to continue with warm compresses. He advised the plaintiff that he was to be seen by the visiting orthopedic surgeon the next day, at which point treatment options, including possible incision and drainage, would be discussed. Dr. Berger did not wish to carry out an incision and drainage himself, as he was concerned about introducing infection.
[20] On August 2, 2012, the visiting orthopedic surgeon from St. Michael’s saw the plaintiff and recommended that warm compresses be continued. He advised that neither incision and drainage, nor antibiotics, were necessary at that point in time. There was no documentation that the patient had any typical, clinical signs of infection. The nurse’s notes indicate that the plaintiff did not have a fever.
[21] Dr. Berger again saw the plaintiff on August 3, 2012 and noted that the lump over his pre-tibial wound had reduced in size and was softer. Dr. Berger recommended continuation of the warm compresses.
[22] Dr. Berger again assessed the plaintiff’s pre-tibial wound on August 4, 2012. At that time, he explained to the plaintiff that they would continue to monitor the lump and reassess in 72 hours as to whether surgical incision and drainage would be required.
[23] The plaintiff left Bridgepoint to sleep at home on August 5 and 6, 2012 during the Civic Holiday long weekend. The plaintiff admitted that he was feeling well and had no fever. He returned to Bridgepoint on August 7 and was seen by Dr. Berger.
[24] On August 7, 2012, Dr. Berger saw the plaintiff and noted that the plaintiff’s pre-tibial wound remained stable and looked unchanged. Dr. Berger knew that the plaintiff would be seen by the visiting orthopedic surgeon and reassessed in 48 hours for reconsideration of the need for incision and drainage, and so advised the plaintiff.
[25] On August 9, the plaintiff’s left tibial wound was assessed at Bridgepoint by the visiting orthopedic surgeon from St. Michael’s. The orthopedic surgeon diagnosed the plaintiff’s lump and pre-tibial wound as infected, and recommended transferring the plaintiff to St. Michael’s for incision and drainage of the wound.
[26] On August 9, 2012, the plaintiff was transferred to St. Michael’s and seen by Dr. Nauth, who believed that the wound was infected and recommended a formal surgical irrigation and debridement in the operating room followed by IV antibiotics. However, the plaintiff declined to proceed with surgery at that point and, instead, agreed to local irrigation at bedside. Based on Dr. Nauth’s notes, produced in evidence, Dr. Nauth reluctantly agreed to proceed with the conservative course of treatment for a brief period on the understanding that the plaintiff would undergo surgical treatment of the infection if it did not clear using the conservative treatment.
[27] Dr. Nauth performed bedside irrigation and debridement, decompressed the abscess, the debrided necrotic and non-viable tissue, packed the decompressed abscess well with Betadine-soaked ribbon, prescribed antibiotics and confirmed that he would re-evaluate the plaintiff in one week’s time. Dr. Nauth also collected swab cultures on August 9, 2012, which tested positive for Enterococcus faecalis, which was the bacteria that led to the initial infection in the bloodstream while the plaintiff was at St. Michael’s after the initial surgery.
[28] The plaintiff returned to Bridgepoint later on the same day, August 9. Dr. Berger followed Dr. Nauth’s orders for continued care of the pre-tibial wound, including an order for antibiotics, local cleaning, and Betadine-soaked ribbon gauze twice daily. Also on August 10, Dr. Berger ordered complete blood work, which later revealed a white blood cell count, erythrocyte sedimentation rate (“ESR”) and c-reactive protein all within the normal range.
[29] Further on August 10, 2012, while providing wound care, a nurse found a piece of blue suture in the plaintiff’s wound after removing the packed gauze. Dr. Nauth indicated that it could be safely removed, which it was.
[30] On August 11, the preliminary results of the swab culture collected at Saint Michael’s on August 9, revealed very light growth with enterococcus faecalis sensitive to Ampicillin. As a result, the plaintiff’s antibiotics were switched to Ampicillin.
[31] On August 13, 2012, Dr. Berger again saw the plaintiff who continued to receive Betadine-soaked wound packing and local cleaning. Dr. Berger saw the plaintiff again the next day, August 14, and noted that his condition remained unchanged.
[32] On August 16, Dr. Berger saw the plaintiff prior to his appointment with Dr. Nauth and assessed the wound. Dr. Nauth reassessed the plaintiff. Again, he urged surgical incision and debridement, but the plaintiff declined surgery. A follow-up appointment was scheduled for August 23.
[33] On August 20, Dr. Berger discharged Mr. Graham from Bridgepoint with arrangements for home care and instructions to attend his follow-up appointment with Dr. Nauth at St. Michael’s scheduled for August 23, and to continue with IV antibiotics and dressing changes. Dr. Berger had no further involvement with the plaintiff’s care thereafter.
[34] On August 23, the plaintiff re-attended at Bridgepoint for an appointment with Dr. Nauth. Dr. Nauth reassessed the plaintiff and advised that he remained concerned about the infection and strongly recommended surgical irrigation and debridement. The plaintiff requested a second opinion. Dr. Nauth scheduled debridement surgery for August 28, 2012, with a second opinion to be done by another orthopedic surgeon from St. Michael’s prior to the scheduled surgery, both of which were done. Cultures from the bone and tissue specimens isolated enterococcus faecalis, sensitive to Ampicillin.
[35] The plaintiff did not require and did not undergo further surgery on the tibia. He remained on IV antibiotics for several months then transitioned to oral antibiotics in early 2013.
[36] The plaintiff recovered at home thereafter with ongoing rehabilitation and home care. His tibial fracture ultimately healed. The plaintiff returned to work as a Crown Attorney in January 2013, and gradually resumed his military duties.
Background Procedural Issues
[37] By the time of trial, the actions had been settled or withdrawn as against all defendants with the exception of the defendant, Dr. Sheldon Berger.
[38] The plaintiff further removed the FLA claimant, his mother, from the action.
[39] Also, prior to trial, the plaintiff had transferred the action to a Rule 76 Simplified Procedure action. Thus, the evidence in chief was given by way of sworn affidavit, with cross examinations viva voce. Damages awards are limited to a maximum of $200,000 in a Rule 76 action.
Positions of the Parties
[40] It is the position of the plaintiff, Scott Graham, that the defendant, Dr. Berger, was negligent in his treatment and management of the plaintiff at Bridgepoint Rehabilitation Hospital following his motorcycle accident and surgery at St. Michael’s Hospital. It is the position of the plaintiff that the defendant negligently failed to diagnose osteomyelitis which resulted in the plaintiff’s delayed recovery.
[41] It is the position of the defendant that he provided proper and appropriate treatment and management of the plaintiff at Bridgepoint Rehabilitation Hospital throughout the time that the plaintiff was under his care at Bridgepoint. It is the position of the defendant that he treated and managed the plaintiff consistent with the standard of care of a family practitioner and hospitalist at the time, and that the plaintiff has failed to establish breach of standard of care and/or causation.
Evidence
Scott Graham
[42] The following is a summary of the evidence provided by the respective parties and their witnesses. I have provided a more complete summary of the evidence of the medical expert witnesses, given the importance of the issues of standard of care and causation in a medical malpractice case.
[43] The following evidence was given by the plaintiff or included in the Agreed Statement of Facts.
[44] The plaintiff testified in cross-examination that he believed the retained blue surgical suture, found by the nurses, caused the infection in his tibia. He requested of the nurse who removed the blue suture that he be permitted to keep the suture, which she gave to him. He put the said suture in a plastic bag and took it home. To the knowledge of this Court, the suture was never tested. It was not produced at trial.
[45] After transfer to Bridgepoint on July 17, 2012, the plaintiff raised the issue of a lump which appeared on his leg at or near the tibia incision on July 30 and 31. He wanted Dr. Berger to look at the lump, take a skin swab or do blood tests. Further, he wanted Dr. Berger to do images of the lump, i.e., x-rays, a CT scan or MRI. While Dr. Berger looked at the lump, he saw no signs of infection: no fever, no redness, warmth or drainage. The plaintiff was to be seen by the wound care nurse as of July 31 and would be seen by the visiting orthopedic specialists from St. Michael’s Hospital on August 2, during their routine weekly rounds at Bridgepoint. While the plaintiff maintains that the visiting orthopedic specialist never did see him on August 2, the nursing notes for August 2 indicate that the plaintiff was seen by the visiting orthopedic specialist in the company of Dr. Berger.
[46] The plaintiff left the hospital for an overnight leave to sleep at his own apartment on August 4-5 (he stated that the hospital notes were wrong and he was away August 5-6). Except for this period, he had wound care daily, which was resumed upon his return, and would see the orthopedic surgeon on August 9.
[47] On August 9, he was taken to St. Michael’s Hospital for a follow-up appointment with Dr. Nauth, who recommended irrigation and debridement of the tibia in the OR, followed by a course of IV antibiotics. Dr. Nauth wrote in his notes that the plaintiff was quite resistant to this and did not want to proceed with it on August 9. Instead, the plaintiff asked if there were a way to treat the leg without risk of surgery. Dr. Nauth advised him that he could do an incision and debridement at the bedside as long as the plaintiff started antibiotic treatment that day, and would monitor whether such treatment was sufficient. He warned that the plaintiff would not heal as fast with that treatment and the plaintiff stated that that was fine.
[48] Dr. Nauth also recommended incision and debridement of the lump on August 16 and 23. The plaintiff put it off in favour of other alternatives, in order to avoid surgery, until August 23. The plaintiff testified that if the risk is too high, he will ask for alternatives, even if healing takes longer.
[49] The plaintiff conceded that Dr. Nauth explained that the bedside debridement may delay the tibial wound healing compared with surgery, but would not likely affect the ability to perform later surgery, since debridement surgery could still be performed at a later date, if necessary. The plaintiff stated that he was willing to go down the longer recovery path.
[50] On August 16, Dr. Nauth noted that he had a long talk with the plaintiff and advised him that the wound probed deeply down to the bone and still required irrigation and debridement. However, the plaintiff wanted to continue with conservative treatment.
[51] On August 23, Dr. Nauth insisted on the surgery and the plaintiff finally consented to said surgery, but requested a second opinion. The surgery was ultimately performed on August 28.
[52] By January 2013, the plaintiff had resumed his work as a Crown prosecutor and was riding his motorcycle again. He resumed his military work thereafter.
Dr. Sheldon Berger
[53] Dr. Sheldon Berger had been a family practitioner and hospitalist in Toronto for 51 years at the time of his retirement. At all material times, he had privileges at Bridgepoint Health, where he worked for 43 years as a hospitalist on the rehabilitation team. As a hospitalist, he was the most responsible physician for those patients on the orthopedic rehabilitation floor, and worked with a team, including a wound care nurse and general nurse.
[54] Dr. Berger first saw the plaintiff on July 17. He knew the history of the motorcycle accident, the injuries suffered, the surgeries and that the plaintiff had been treated with IV antibiotics for three weeks post-surgery. The IV antibiotics were terminated by the plaintiff on July 21, when he indicated that he refused to take any more antibiotics.
[55] On July 17, pursuant to direction from the original orthopedic rehabilitation admission orders, Dr. Berger ordered that the nylon sutures in the plaintiff’s pre-tibial wound be removed by the nursing staff. He ordered that Ampicillin, which had been prescribed at St. Michael’s Hospital to treat bacteremia (as the plaintiff’s blood cultures following the surgery and the IM nail insertion were positive for enterococcus faecalis), be continued intravenously until July 22, 2012. However, as of July 21, the plaintiff refused any further IV antibiotics.
[56] A soft, superficial lump over the pre-tibial laceration was noted on July 30. By August 1, Dr. Berger noted an increase in the size of the lump and ordered warm compresses be applied. The plaintiff was to be seen on August 2 by the St. Michael’s visiting orthopedic specialist for assessment of the lump and consideration of an incision and drainage for therapeutic and diagnostic purposes. The orthopedic specialist noted no signs of infection and recommended continuation of warm compresses.
[57] By August 3, the lump had reduced in size and was softer.
[58] The plaintiff obtained a leave to sleep at his apartment August 5 to August 6. He was seen again by Dr. Berger on August 7. The lump appeared unchanged.
[59] In the case of the plaintiff, who had a compound fracture, there is a risk of infection. There have to be signs of infection other than just a lump. In this case, there were no signs of infection; no abscess, no redness, no fever, and the drainage fluid was clear.
[60] Laboratory work and imaging can help in the investigation of a potential infection of the blood. However, Bridgepoint had no imaging available. The plaintiff had had blood tests on admission and also two weeks later. Imaging was not suggested by the visiting orthopedic specialist on his weekly rounds.
[61] Dr. Berger explained that, throughout the time he was at Bridgepoint, there was a consultation process in place at Bridgepoint whereby a visiting orthopedic specialist would come every week and review all the orthopedic rehabilitation patients with Dr. Berger. The regular orthopedic specialist at the material time was Dr. McKee. If he was not available, another orthopedic specialist would come for the routine, weekly visits. The orthopedic specialist would attend each patient with Dr. Berger and assess their rehabilitation.
[62] As regards any specific patient, Dr. Berger would have to rely on his notes. He had no independent recollection of the specifics of events of patients 12 years after the fact. Therefore, as regards the plaintiff, who had been at Bridgepoint in 2012, he depended on his medical notes.
[63] On July 30, a lump appeared near the tibial incision. It was not red, was a little discoloured, was not cellulitic, was soft and superficial. Warm compresses were prescribed by the regular visiting orthopedic specialist for St. Michael’s when he saw the plaintiff on August 2 regarding the need for incision and drainage. Dr. Berger did not suspect an infection at that time, and wanted a specialist’s opinion. The visiting orthopedic specialist did not believe it to be infected.
[64] On August 9, the wound was assessed by the visiting orthopedic specialist who recommended that the plaintiff undergo incision and drainage at St. Michael’s. He was transferred to St. Michael’s where he was seen by Dr. Nauth, who recommended a formal irrigation and debridement in the OR followed by IV antibiotics. The plaintiff did not want to undergo surgery but rather a bedside irrigation and debridement followed by antibiotics, which Dr. Nauth agreed to try for a short period and, if unsuccessful, then to proceed with the surgery.
[65] The swab culture from the debridement was positive for enterococcus faecalis, the same bacteria the plaintiff had been diagnosed with following his initial accident and surgery.
[66] He continued to be followed closely thereafter by Dr. Berger and the wound care nurse, who dressed his wounds, removed and replaced the dressings, and found one blue surgical stitch. Dr. Nauth indicated that the stitch could be safely removed, which it was. The wound was irrigated and a new dressing applied.
[67] The plaintiff continued to progress. His blood lab work was normal.
[68] On August 16, the plaintiff had a follow-up appointment with Dr. Nauth, who noted that the wound continued to probe deeply down to the bone and required surgical irrigation and debridement. The plaintiff continued to be opposed to this procedure, and wanted conservative management, to which Dr. Nauth reluctantly agreed, although he reiterated that the surgical debridement was the best course of treatment. He was to see the plaintiff again on August 23.
[69] On August 17, the plaintiff began IV Ampicillin. On August 20, he was discharged home with arrangements for home care and continued IV antibiotics, with a follow-up appointment on August 23.
[70] On August 23, Dr. Nauth insisted that the surgical incision and debridement be done. The plaintiff finally conceded and this was done on August 28.
The Experts
[71] The court heard from three expert witnesses on standard of care and causation.
Dr. Zain Chagla
[72] On behalf of the plaintiff, Dr. Chagla gave his opinion on standard of care and causation.
[73] Dr. Zain Chagla is an infectious diseases and internal medicine physician. He is interim Senior Medical Director, Head of Service of Infectious Diseases and Medical Director of Infection Control at St. Joseph’s Healthcare in Hamilton, a fully affiliated teaching hospital, a quaternary care centre and an academic hospital with the support of residents. He also holds privileges with Hamilton Health Sciences and Woodstock Hospital.
[74] He had previously worked for a short period as a part-time infectious diseases consultant and hospitalist at Thunder Bay Regional Health Sciences.
[75] He is also an assistant professor in the Department of Medicine at McMaster University.
[76] Dr. Chagla was qualified to opine on causation, i.e., the likely cause of the osteomyelitis. As regards standard of care, this Court, with some reluctance, permitted him to opine on the narrow issue of the standard of care of a generalist/hospitalist in the position of Dr. Berger in detecting and diagnosing skin and soft tissue infections. His opinion was to be limited in scope, such that he was not permitted to impose his specialist’s knowledge as an infectious diseases specialist in providing his opinion on the standard of care of a family physician/hospitalist.
[77] Dr. Chagla opined that the standard of care of a family physician/hospitalist was to suspect infection upon first seeing the lump on July 30 and arranging for laboratory work and imaging analysis, including ultrasound and CT scan, immediately to rule out infection, despite the fact that the plaintiff would be seen by the orthopedic surgeon from St. Michael’s Hospital on the morning of August 2. He did not know what imaging was available at Bridgepoint. When he was told that Bridgepoint had no imaging, he stated that the plaintiff would have had to be booked at St. Michael’s Hospital or sent to the emergency room. Alternatively, Bridgepoint could have called a radiologist at St. Michael’s Hospital to plead that the plaintiff urgently be seen.
[78] While Dr. Chagla continued to maintain that the standard of care in Ontario was to send a patient presenting with the plaintiff’s symptoms out for imaging, Dr. Krieger, on behalf of the defendant, testified that in over 40 years as a family practitioner and hospitalist, he had never had the occasion to order a CT scan in such circumstances.
[79] In Dr. Chagla’s opinion, the source of infection was most likely a residual undrained abscess or the retained suture from the plaintiff’s original tibia wound. He never saw the suture; nor did the other witnesses or the Court.
[80] He opined that the bacteremia was in the blood, and sometime between July 6 and 22, contaminated the suture, and an abscess developed while the plaintiff was on antibiotics. He stated that it was hard to say when it infected the bone. He thought it unlikely that the plaintiff had osteomyelitis in July.
[81] He stated that the plaintiff had a blood test on August 10 and the white blood count and ESR were normal. He opined that the blood tests would likely have been normal on August 1.
[82] Dr. Chagla conceded that when the orthopedic surgeon from St. Michael’s saw the plaintiff on August 2 and agreed to continue with warm compresses and conservative management, it was reasonable for Dr. Berger to rely on that.
Dr. Mark Krieger
[83] On behalf of the defendant, Dr. Mark Krieger gave evidence on standard of care.
[84] Dr. Krieger is a retired family physician who practised for over 40 years as a hospitalist at West Park Healthcare Centre in Toronto, a rehabilitation hospital like Bridgepoint. He was qualified as a specialist in family medicine and as a hospitalist to give an opinion on the standard of care for management of orthopedic patients in the setting of a rehabilitation hospital.
[85] Dr. Krieger’s professional experience was very similar to Dr. Berger’s.
[86] In Dr. Krieger’s opinion, having reviewed the medical records, Dr. Berger closely and appropriately monitored and managed the plaintiff’s tibial wound. Dr. Berger was made aware of the lump at the surgical incision site and, because there were no symptoms of infection present, he appropriately opted for conservative treatment. He deferred to the orthopedic surgeons from St. Michael’s Hospital, who were involved in the plaintiff’s ongoing care, attended at Bridgepoint every week on a routine basis, and would be seeing the plaintiff three days later, on August 2.
[87] Dr. Krieger stated that the lump was appropriately investigated and treated. There were no indications or indices of infection; no erythema, no induration, no obvious discharge, no inflammatory markers, and the white blood count was normal. There was no requirement for taking blood cultures or imaging. There was no reason to do an aspiration which, in any event, is not a standard of care.
[88] It was the opinion of Dr. Krieger that, in all of the circumstances presented, Dr. Berger met the standard of care of a family physician and hospitalist.
Dr. Andrew Simor
[89] Dr. Andrew Simor is an infectious diseases specialist and senior scientist at Sunnybrook Health Sciences Centre in Toronto, where he has worked since 1993.
[90] He was qualified as an infectious diseases specialist to give opinion evidence on the likely cause of the plaintiff’s osteomyelitis (bone infection) and its expected course of treatment.
[91] It was Dr. Simor’s opinion that the most likely cause of the osteomyelitis of the bone was the hematogenous spread of the enterococcus faecalis bacteria, the same bacteria responsible for the plaintiff’s pre-existing blood infection while at St. Michael’s Hospital, which had spread from the bloodstream to the bone around July 6-8, 2012, and seeded the bone leading to the osteomyelitis. The infection may take from days to weeks, or longer, from seeding of the bone to become clinically apparent. There is nothing that would indicate early on in the infection process that the bone had been seeded.
[92] In the circumstances, the plaintiff would have required the same treatment and recovery time regardless of the timing of the diagnosis while at Bridgepoint after July 17, 2012.
[93] It was Dr. Simor’s opinion that the plaintiff’s bone became seeded between July 6 and 8, because that was the time the plaintiff was known to be bacteremic, i.e., to have a bloodstream infection prior to the start of his intravenous (IV) antibiotics.
[94] Dr. Simor opined that he believed the osteomyelitis established itself between July 6 and 8, when the seeding occurred and the bacteria was introduced into the bone and began replicating. The plaintiff then had two weeks of IV antibiotics to treat the bloodstream infections. As a result of the antibiotic treatment, his fever subsided and the bloodstream was sterilized. However, two weeks of antibiotics was not sufficient to treat the bone infection that was already seeded and established. The IV antibiotics only suppressed but did not cure the bone infection (“osteomyelitis”), so it continued to grow and establish itself on July 30, eight days after the antibiotics were stopped.
[95] Dr. Simor indicated that the plaintiff’s theory of the cause of the osteomyelitis, namely the retained suture in the tissue near the bone, but not contiguous to the bone, was much less likely.
[96] As regards the photo taken on July 30 introduced in evidence, Dr. Simor stated that while he, as an infectious disease specialist, could see that it would open up, drain pus and become a draining sinus tract at the lump, he did not think that a non-infectious disease physician would know what to make of the lump. At that point, the lump had a benign appearance and there were no indicia of infection.
[97] The photo of August 10, like that of July 30, showed little evidence of skin or soft tissue infection, no redness or swelling and no cellulitis around the sinus tract, suggesting that the sinus arose from deeper tissue.
[98] Dr. Simor was of the opinion that there was no need for tests on July 30 or 31, given that the plaintiff would be seen by the orthopedic surgeon in a few days. He stated that blood tests are neither sensitive nor specific; they may result in a normal reading although there is osteomyelitis, or vice versa, i.e., they may be abnormal, although there is no osteomyelitis present. X-rays are not useful for bone infection; CT scans are more sensitive, and MRIs are increasingly more sensitive and specific. The evidence indicates that Bridgepoint did not have imaging. In Dr. Simor’s opinion, surgical exploration is the gold standard for diagnosing osteomyelitis.
[99] In Dr. Simor’s opinion, the plaintiff’s theory of causation is founded on three very rare occurrences which would have had to happen together: 1) hematogenous spread to a retained surgical suture; 2) a suture, distinct from the bone and not contiguous to it or embedded in it, leading to the development of osteomyelitis; and 3) a suture retaining bacteria after two weeks of antibiotics treatment. He has never seen, heard or read of such a scenario. Dr. Chagla conceded in cross-examination that he had never seen, heard or read of a stitch/abscess causing osteomyelitis.
[100] Dr. Simor’s opinion is based on the fact that hematogenous spread to the bone is well-recognized. The plaintiff had a bloodstream infection documented on July 8 and had had bacteremia for two days, July 6-8. He received two weeks of IV antibiotics, which was sufficient to suppress the bloodstream infection, but not sufficient to suppress the bone infection, which had become seeded between July 6 and 8, and which became apparent with the development of the sinus tract between July 30 and August 9. He stated that this theory would be very consistent with common medically accepted means of infection.
Credibility
The Parties
Scott Graham
[101] Scott Graham represented himself at trial, with the assistance of his junior, Amber Chou. He argued that he did not represent himself, as he was being represented by his law firm, Scott Graham Professional Corporation. Nevertheless, he was intimately involved with this case, given that he was the plaintiff.
[102] Mr. Graham advised the Court that he worked exclusively on this case for at least the last two years.
[103] He was wedded to his case and the correctness of it. Where his evidence differed from that of the medical practitioners, and the medical records, he maintained that they were wrong, including the medical notes and records from Bridgepoint, including the doctors’ and nurses’ notes, and that his evidence was correct. He was insistent on the correctness of his case, becoming argumentative and defensive in advancing it.
[104] I found his evidence to be somewhat problematic and, in some instances, I found it to be unreliable and not credible. I have taken this into consideration in this decision.
Dr. Sheldon Berger
[105] I found the evidence of Dr. Berger to be straightforward and forthright throughout. He was candid in responding to all questions. He forthrightly stated that he relied on his notes and the hospital records as regards this case, as he had no independent recollection of the case after 12 years.
[106] I found his evidence to be credible and reliable.
Expert Witnesses
[107] I have considered the respective credibilities of the experts as regards their evidence given. While I am satisfied that they are well recognized in their fields of expertise, I do not find them equally credible or reliable as regards the testimony they gave at trial.
Standard of Care
[108] Dr. Krieger gave evidence with respect to the standard of care of a family physician and hospitalist. Dr. Krieger’s background medical experience as a hospitalist at a rehabilitation hospital was very similar to Dr. Berger’s. He was well able to assess Dr. Berger’s treatment of the plaintiff and to determine whether the standard of care of a hospitalist was met. I find his analysis to be fair, reasonable and persuasive, in light of the evidence before this Court.
[109] Dr. Chagla gave evidence with respect to the standard of care, which was limited by this Court to permit him to opine on the narrow issue of the standard of care of a generalist/hospitalist in the position of Dr. Berger in detecting and diagnosing skin and soft tissue infections. He was not permitted by the Court to impose his specialist’s knowledge as an infectious diseases specialist in providing his opinion on the standard of care of a family physician/hospitalist.
[110] However, I found the evidence of Dr. Chagla as regards standard of care to have been interpreted through the lens of an infectious disease specialist, and not a family practitioner and hospitalist. I note that Dr. Krieger and Dr. Simor both recognized the limitations of a hospitalist looking at the subject lump and assessing the treatment going forward, where there was no indicia of infection.
[111] In determining the standard of care of a hospitalist presented with and assessing the plaintiff’s condition, I find the opinion of Dr. Krieger to be the more persuasive.
Causation
[112] Dr. Simor gave evidence with respect to the likely causation of the osteomyelitis. I found his evidence on causation to be complete, comprehensive and well-explained in both scientific and layperson’s terms.
[113] He demonstrated that he well and comprehensively knew his area of expertise, the spread of infection through the bloodstream, and its limitations. He admitted when medical and scientific knowledge had not yet discovered the reasons for certain things, such as why bacteria may move by hematogenous spread to some metal surfaces (IM nails, plates) in a body, but not to others.
[114] His theory of causation was founded on accepted medical knowledge.
[115] I found his evidence to be reliable and I found him to be credible.
Dr. Chagla
[116] Dr. Chagla is well-known as an infectious disease specialist. He gave evidence regarding the likely causation of the osteomyelitis. I found his evidence to be somewhat guarded.
[117] Dr. Chagla appeared to adopt the plaintiff’s theory that the hematogenous spread of the enterococcus faecalis bacteria spread to the retained suture, became infected and subsequently spread down to the bone. He explained that he used the clinical context toward what was given to him, and formed an opinion from that, which mirrored the plaintiff’s theory.
[118] He did concede that there were other explanations for the plaintiff’s osteomyelitis, but did not discuss them. He conceded also that Dr. Simor’s theory was possible. He further admitted that he, like Dr. Simor, had never seen a case report of a stitch/suture abscess causing osteomyelitis, which was Dr. Chagla’s own theory of the case.
[119] Based on all of the evidence given by the experts, I found the testimony of the defendant’s experts, Drs. Krieger and Simor to be more persuasive.
The Law
Expert Evidence
[120] A plaintiff in a medical malpractice action, in order to establish a breach of the standard of care, must present credible and reliable expert evidence supporting the alleged breach. Where there are conflicting expert opinions, the court must weigh the conflicting testimony and ultimately assess the weight to be given to the evidence: Leckie v. Chaiton, 2021 ONSC 7770, paras. 21, 25.
[121] In seeking to establish the applicable standard of care, it is preferable to have an expert in the same specialty as the defendant physician. In determining standard of care, the court should rely on a similarly situated expert: Tahir v. Mitoff, 2019 ONSC 7298, para. 53.
[122] Although specialist experts can comment on areas that are within the general knowledge of physicians, they do not have a license to comment on areas that are within other specialties: Thompson v. Handler, 2023 ONSC 5042, para. 91. Although an expert may be well-qualified in their own field, this does not mean that the expert ought to be qualified as an expert to comment on the standard of care of another type of doctor: Tahir v. Mitoff, 2019 ONSC 7298, para. 53.
[123] To allow a specialist with qualifications and experience different from those of the defendant to comment on standard of care may well result in unfairness. Tahir v. Mitoff, 2019 ONSC 7298, para. 53.
Standard of Care
[124] In order to be successful in bringing a medical malpractice action, a plaintiff must prove, on a balance of probabilities that the defendant physician breached the standard of care.
[125] The standard of care for general practitioners and specialists is well-established in Ontario. As stated by the Court of Appeal for Ontario in Crits v. Sylvester:
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 one who does not profess to be so qualified by special training and ability: Crits v. Sylvester, para. 13, aff’d.
[126] In assessing and applying the standard of care, the court applies a standard of reasonableness, not perfection or infallibility: see Geddis v. Bloom, paras. 16-17. The legal standard requires that a physician provide reasonable care, not “gold standard” care that would, in retrospect, have been preferable: see Bush v. Friedman, 2011 ONSC 4988, para. 145.
[127] Thus, when determining whether there was a breach of the standard of care, the trier of fact should not focus on whether a specific act or omission constituted fault. Rather, the test is whether the defendant physician behaved similarly to a reasonably prudent and diligent fellow professional in the same circumstances: St. Jean v. Mercier, 2002 SCC 15, para. 53; Hillis v. Meineri, 2017 ONSC 2845, para. 64.
[128] The physician’s care must be assessed in light of the medical knowledge and circumstances of which the physician ought to have been aware at the time of the alleged negligence: see ter Neuzen v. Korn, para. 33.
[129] To ask as the principal question in the general inquiry, whether a specific positive act or an instance of omission constitutes a fault, is to collapse the inquiry and may confuse the issue. What must be asked is whether that act or omission would be acceptable behaviour for a reasonably prudent and diligent professional in the same circumstances. The erroneous approach runs the risk of focusing on the result rather than the means. Professionals have an obligation of means, not an obligation of result: see St-Jean v. Mercier, 2002 SCC 15, para. 53.
[130] The Supreme Court of Canada has cautioned lower courts not to rely on the benefit of hindsight when determining whether a defendant physician acted in accordance with the applicable standard of care. Relying on the perfect vision provided by hindsight imposes a more stringent standard of care, which would result in physicians being liable for mistakes that were only apparent after the fact. The standard of care for a medical professional should be assessed based on the knowledge available at the time care was provided: Lapointe v. Hopital Le Gardeur, [1992] 1 SCR (SCC); ter Neuzen v. Korn, paras. 33-34. Moreover, the physician’s conduct must be judged in light of the standard of care in place at the time of events that gave rise to the action, not as of the date of the trial: Spirito v. Trillium Health Centre, 2013 ONSC 5138, para. 67.
[131] A negative outcome does not equate to negligence, and the fact that the risk of a procedure materializes does not necessarily mean that liability attaches. The standard of care expected of a physician should not be measured by the result. As confirmed by the Supreme Court of Canada in St. Jean v. Mercier, and more recently in Leckie v. Chaiton, “professionals have an obligation of means, not an obligation of result”: St-Jean v. Mercier, 2002 SCC 15, para. 53. Accordingly, it is an error for courts to use an outcome-based approach when determining whether the standard of care was met.
[132] It is also well recognized that physicians must exercise their clinical judgement when providing care to a patient. Different physicians may attribute significance to different factors, depending on their own experience: Wilson v. Swanson. The court must be careful not to find liability based on errors of judgement, where that judgement was exercised reasonably. Put simply, the honest and intelligent exercise of reasonable judgement by a physician, even if incorrect, is not negligent. Correctness has no place in assessing whether a physician met the standard of care.
[133] The standard of care is a standard of reasonableness. Evidence of an expert’s own practice is not the standard of care. To the extent that an expert testifies as to what he or she would do in a given situation, rather than what the standard of care requires, that testimony does not establish the standard of care nor demonstrate that the defendant physician breached the standard of care: Bafaro v. Dowd, 2010 ONCA 188, para. 36.
[134] Evidence of the physician’s practice, habit or custom may be admitted as circumstantial evidence of a fact in issue. The usual practice of the physician is evidence as to what occurred during a particular patient encounter. This is true whether or not the actions of the physician have been documented: The Estate of Carlo DiMarco v. Dr. Martin, 2019 ONSC 2788, para. 67.
[135] The value of the evidence of usual practice lies in the inferences that can be reasonably drawn from it depending on the regularity of the practice and all other evidence, particularly other direct or circumstantial evidence, that impacts on whether the practice was followed: Hutterli et al. v. Scott, 2021 ONSC 1426, para. 113.
[136] A physician’s honest and intelligent exercise of judgement will satisfy the standard of care. The Court of Appeal for Ontario has clarified that the standard of care expected of the medical professional must be realistic and reasonable. A physician is not the insurer of a patient’s health and well-being: see Tacknyk v. Lake of the Woods Clinic, [1982] O.J. No. 170 (CA), para. 29.
[137] It is not the law in Ontario that a physician should eliminate the most serious potential ailment first (the “worst first” principle) as opposed to treating the most probable diagnosis. The principle was expressly dismissed by this court in Lee, at para. 145, a case involving exercise of clinical judgement by an emergency room physician:
With respect to the case law on differential diagnosis, a physician will not be held to a standard of practice in which he or she is required to anticipate a worst case but most unlikely scenario. Unfortunately for Meng, this is exactly what tragically occurred. He succumbed to both the worst case and most unlikely scenario.
[Emphasis in original.]
See also: White v. St. Joseph’s Hospital, 2019 ONCA 312.
[138] The standard of care does not require physicians to take action based upon the worst possible outcomes: see Bogdon v. Folman, 2013 ONSC 222, para. 74.
[139] A physician does not fail to meet the standard of care because, with the benefit of hindsight, another diagnosis would have been preferable. What must be assessed is whether a physician exercised their judgment fairly in light of what they knew or ought to have known at the time: Stepita v. Dibble, 2020 ONSC 3041, para. 69.
Analysis
Standard of Care
[140] I do not find any evidence presented by the plaintiff that would establish negligence as regards the treatment and management of the plaintiff’s infection by Dr. Berger. As regards the standard of care, I find that Dr. Berger followed the plaintiff closely from July 17, when he was transferred from St. Michael’s Hospital to Bridgepoint Hospital into Dr. Berger’s care.
[141] I find that Dr. Berger exercised the skill and knowledge of a hospitalist in following the plaintiff’s progress and in assessing the lump on the plaintiff’s tibial incision after it appeared on July 30. He monitored the plaintiff on an almost daily basis for any clinical signs of infection. There were none. Dr. Berger also knew that the visiting orthopedic surgeon from St. Michael’s would do his rounds at Bridgepoint on August 2, and see and assess the plaintiff.
[142] On the morning of August 2, the visiting orthopedic surgeon from St. Michael’s came to assess the plaintiff on his regular weekly rounds. He recommended continuation of the warm compresses. He advised that neither incision and drainage nor antibiotics were necessary at that point in time. The visiting orthopedic surgeon would see the plaintiff again the following week.
[143] It was the opinion of Dr. Chagla that when the orthopedic surgeon from St. Michael’s saw the plaintiff on August 2, and directed continuation of warm compresses and conservative management, it was reasonable for the defendant to rely on and follow that direction.
[144] While the plaintiff attempted to discredit Dr. Berger as regards which orthopedic surgeon from St. Michael’s conducted rounds at Bridgepoint and saw the plaintiff on August 2, and also argued that no one saw him on August 2, I do not accept his arguments. The nurse’s notes indicate that he was seen by the orthopedic surgeon from St. Michael’s who did the routine rounds that week. I am satisfied, based on all the evidence, that the plaintiff was seen by the visiting orthopedic surgeon from St. Michael’s on August 2, and that no infection was identified at that time.
[145] On August 3, Dr. Berger noted that the lump had softened and reduced in size. Dr. Berger ordered continuation of warm compresses.
[146] Dr. Berger continued to monitor the plaintiff except for August 5-6, when the plaintiff had arranged to leave the hospital and sleep at his apartment. Upon the plaintiff’s return to Bridgepoint, he was seen by Dr. Berger on August 7 and his condition continued to be stable.
[147] The plaintiff was seen at St. Michael’s on August 9. The lump was assessed as infected and the orthopedic surgeon recommended incision and drainage. The plaintiff did not want surgical intervention and declined to consent to the recommended treatment. As a result, Dr. Nauth performed bedside irrigation and debridement and prescribed packing the wound and taking antibiotics. The plaintiff returned to Bridgepoint and Dr. Berger’s care through August 16.
[148] Dr. Krieger opined that the management of the plaintiff’s infection met the standard of care for a family physician practising as a hospitalist in a rehabilitation facility in 2012. Dr. Krieger opined that Dr. Berger’s judgement and approach to treatment was sound. It was his opinion that when Dr. Berger was first notified of the plaintiff’s lump on the tibial wound, there was no indication of infection, such that the lump did not warrant immediate intervention or analysis.
[149] I find, based on all of the evidence, that Dr. Berger took skilful, knowledgeable and appropriate medical care and treatment of the plaintiff. His treatment throughout was reasonable in all of the circumstances. He worked with his team and with the visiting orthopedic surgeons from St. Michael’s, who did rounds at Bridgepoint each week.
[150] I do not accept the plaintiff’s expert’s opinion that the standard of care in the circumstances was to suspect infection immediately upon first seeing the lump on July 30 and arranging for laboratory work and imaging, despite the fact that Bridgepoint did not have an imaging department. I also take into consideration the fact that Dr. Berger knew that the visiting orthopedic surgeon from St. Michael’s would be visiting on his weekly rounds three days later.
[151] I find that Dr. Chagla was analysing the situation and opining on standard of care, through the lens of an infectious diseases specialist, and not a family practitioner and hospitalist.
[152] I accept the expert evidence of Dr. Krieger, who was also a hospitalist in an urban rehabilitation hospital, who opined that Dr. Berger’s actions were reasonable, diligent and prudent. It was the opinion of Dr. Krieger that, taking into consideration all of the circumstances presented, Dr. Berger had exercised the standard of care of a prudent hospitalist.
Causation
[153] The plaintiff has not established that Dr. Berger breached the standard of care in his treatment and management of the defendant.
[154] Even had I found a breach of the standard of care, which I have not, proof by the injured plaintiff of negligence on the part of the defendant would not make the defendant liable for loss. The plaintiff must also establish on a balance of probabilities that but for the defendant’s negligent act, the injury would not have occurred. If the defendant has been found not to have breached the standard of care, then causation is moot. The plaintiff must have established that the defendant’s particular substandard act or omission caused the harm. Causation may only be assessed in the context of a breach of the standard of care: Clements v. Clements, 2012 SCC 32, para. 6.
[155] Given that the plaintiff has not established a breach of the standard of care, it is not necessary to continue with the analysis as regards causation, as I find that the plaintiff has not established that Dr. Berger breached the standard of care. I will, nevertheless, provide my analysis on causation.
[156] As previously indicated, it was a theory of the plaintiff that the osteomyelitis was caused by an undetected suture abscess which, had it been diagnosed sooner, could have been treated, thus preventing the osteomyelitis.
[157] The defence theory was that the bacteremia in the blood spread to the bone between July 6 and 8, 2012 and then became clinically apparent several weeks thereafter. Thus, the osteomyelitis was already established by the time the plaintiff transferred to Bridgepoint, and was developing symptoms. Based on the evidence, the treatment that the plaintiff received, namely surgical debridement and antibiotics, would have occurred regardless of the timing of the diagnosis. I note, in this case, that the surgical debridement and antibiotic treatment were delayed due to the fact that the plaintiff did not want to proceed with surgery, but opted for a more conservative treatment, despite the fact that he was advised that this could delay recovery.
[158] As regards causation, I find, on the balance of probabilities, that the cause of the osteomyelitis is as stated by Dr. Simor, namely that the presence of the osteomyelitis was caused by the pre-existing bacteremia (blood infection). Dr. Simor explained that the presence of the bacteria enterococcus faecalis in the plaintiff’s initial blood infection and his subsequent bone infection indicated that the infection spread directly from the blood to the bone and had likely already seeded the tibial bone prior to the plaintiff being transferred to Bridgepoint into Dr. Berger’s care.
[159] Dr. Simor explained that the bacteremia likely spread hematogenously through the bloodstream to the bone, where it seeded. He explained that hardware such as the IM nail inserted in the plaintiff’s tibia increases the risk of hematogenous spread. He indicated that this is a well-recognized route of infection. It was the opinion of Dr. Simor that the infection was well established by the time the plaintiff notified Dr. Berger of the lump near his wound on July 30, 2012. Once the IV antibiotic had been stopped, the infection began to replicate. I am satisfied that no infection was clinically manifest at the beginning and only became apparent several days after July 30.
[160] Although Dr. Nauth wanted to do a surgical incision and debridement from the beginning of the infection, the plaintiff declined to agree to such a surgery until August 23, opting for more conservative treatment. He conceded that he was made aware that such a course of action would result in slower healing and recovery, but nevertheless opted for that more conservative treatment.
[161] Dr. Simor testified that earlier diagnosis of the infection would not have altered the plaintiff’s course of treatment or the ultimate outcome. Indeed, the plaintiff’s infection ultimately resolved and his tibial fracture united.
[162] I do not accept the plaintiff’s assertion that a delay in diagnosis prolonged the plaintiff’s recovery, and have considered his decision to delay surgical treatment of the infection by almost 3 weeks despite the insistence of Dr. Nauth that surgery was the most appropriate course of treatment. Although Dr. Nauth wanted to do a surgical incision and debridement from the beginning of the infection, the plaintiff declined to agree to such a surgery until August 23, opting for more conservative treatment. He conceded that he was made aware that such a course of action would result in slower healing and recovery, but nevertheless opted for that more conservative treatment.
Conclusion
[163] I do not find that there was a breach of the standard of care and, further, do not find that said breach caused the injury, namely the osteomyelitis. I find that the plaintiff has failed to establish any negligence on the part of Dr. Berger leading to his osteomyelitis.
[164] Based on all of the foregoing evidence, both documentary and viva voce, and taking into account the relevant case law, I find that Dr. Berger did not breach the standard of care in his medical care, treatment and management of the plaintiff during the material times.
[165] I further find that the osteomyelitis was not caused in any way by any breach of the standard of care. There was no breach of the standard of care by Dr. Berger.
[166] Accordingly, the plaintiff is not entitled to any damages.
[167] This case is dismissed.
Costs
[168] I strongly urge the parties to agree upon costs. If they are unable to do so, they are to submit their bills of costs of a maximum of three pages to me within 10 days of the release of this decision.
C.J. Brown
Released: January 2, 2025