Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 (Can LII); and Armstrong v. Ward, 2021 SCC 1 (Can LII) – Case Comment

An example of medical malpractice and legal analysis

1. In Feb 2010, CW performed on KA a colectomy (a medical procedure that involves removing all of part of the colon), more precisely a laparoscopic colectomy. The surgery appeared to go without incident. However, she developed pain and postoperative problems and it was later learnt that her left ureter had been blocked, causing damage to her kidney, which had to be removed in Oct 2010.

   KA sued CW for medical malpractice under the theory that the cauterizing device he had used – commercially called a LigaSure – had caused adhesions or scar tissue that ended up blocking her left ureter which caused the subsequent damage to her kidney. The LigaSure is used to sever and seal blood vessels and tissue connected to the part of the colon that is to be removed. The heat from the jaws of the instrument is capable of emitting thermal energy within 2 millimeters and can damage tissue in that space. The trial judge [“TJ”] found that CW was negligent and that his negligence caused KA’s injuries and was liable for damages ($1.3 mil). The majority decision of the Ontario Court of Appeal [“ONCA”] (written by Paciocco JA; concurred by Juriansz JA) was that the TJ had erred, set aside the TJ’s finding of liability and dismissed the action. There was a strong dissent by van Rensburg JA.

   At trial, the experts agreed that the left ureter is an anatomical structure that is at risk in a colectomy. A reasonable surgeon would take steps to avoid an injury to it by identifying and protecting it. By some evidence, the injury rate is ≤ 1%. The TJ accordingly identified the standard of care as to protect and avoid direct contact with or close proximity to the ureter (within 2 mm).

   The TJ’s reasoning: CW had taken steps to identify and protect the ureter. While CW’s testimonial evidence was that he always maintained a distance of not less than 5 cm from the ureter, the TJ concluded that he had brought the LigaSure within 2 mm on circumstantial evidence of the medical experts that it was only within that distance that the LigaSure could have caused the damage.

   The ONCA majority reasoning: The TJ’s reasoning was erroneous in law; therefore, the TJ’s finding of liability should be reversed. In negligence, the standard of care is supposed to be measured by the steps that a reasonably prudent person would undertake rather than by the results that person would seek to attain or avoid. Coming within 2 mm was a result a reasonably prudent surgeon would seek to avoid during a colectomy rather than a step. One of these steps was to attempt to avoid contact with the ureter, which CW did. But the fact that he, unfortunately, happened to do so does not mean that he breached the standard of care.

   Van Rensburg JA (dissent): The TJ’s reasoning was not erroneous; CW breached the standard of care and caused the damage and is liable. The standard encompasses staying at least 2 mm away from the left ureter at all times. KA’s medical expert testified that a reasonably prudent surgeon would not have failed at that. This is a step and not the result of the surgery which is removal of the colon. CW had contact or close proximity at some point based on the circumstantial evidence.

   On Jan 18, 2021, the Supreme Court of Canada [“SCC”] heard KA’s appeal. In Armstrong v. Ward, the SCC allowed the appeal, adopted van Rensburg JA’s reasons, and restored the trial judgment.

   What would happen if a physician/surgeon did not warn a patient of a risk of an operation, the patient undergoes the operation and the nondisclosed risk materializes?

   The legal issues involved in nondisclosure cases are explained

   A physician/surgeon has a duty of disclosure, an obligation to inform the patient about potential side-effects and complications. A physician/surgeon’s defense of consent will give them protection from liability only if the consent was informed. The rationale for informed consent to an operation is the patient’s right to bodily integrity and their autonomy. Cases of nondisclosure of risks and medical information sound in negligence (Hopp v. Lepp, 1980 Can LII 14 (SCC)).

   In a nondisclosure case, courts approach the issue of consent by asking:

   1. Did the plaintiff give informed consent to the healthcare in issue?
   2. If ‘yes’, did the plaintiff’s loss or injury fall within the scope of the consent given? In other words, was the plaintiff’s loss/harm of the type that they were made aware of beforehand?

   The issue of consent is a factual issue (that is, a question to be decided by the trier of fact) and is determined on a case-by-case basis. In Videto v. Kennedy (1981), the Ontario Court of Appeal set out a variety of principles that courts will consider in determining this factual issue.

   • The issues of whether a risk is material and whether there has been a breach of the duty of disclosure are not to be determined solely by the contemporary medical professional standards, although they are a factor.
   • The duty of disclosure embraces what the surgeon knows or should know that the patient deems relevant to the patient’s decision on whether or not to undergo the operation. If the patient asks specific questions about the operation, the patient is entitled to reasonable answers.
   • A risk which is a mere possibility ordinarily does not have to be disclosed. But if the occurrence of the risk may result in serious consequences (e.g. paralysis), it should be treated as a material risk and should be disclosed.
   • A patient is entitled to an explanation of the nature of an operation and its gravity.
   • Subject to the above requirements, the dangers inherent in any operation (e.g. the dangers of an anesthetic) do not have to be disclosed.
   • The issues – What is the scope of the duty of disclosure in this case? And, has the duty of disclosure been breached in this case? – are to be decided in relation to the circumstances of each case.
   • The emotional condition of the patient and the patient’s apprehension and reluctance to undergo the operation may in certain cases justify the surgeon in withholding or generalizing information as to which he/she would otherwise be required to be more specific.
   • The issues of whether a risk is a material risk and whether there has been a breach of the duty of disclosure are legal issues.

   A finding that the patient was not given informed consent to the procedure in issue will usually result in a finding that the doctor’s conduct fell below the standard of care but does not necessarily mean that all of the elements of negligence are proven. Contrarily, a finding of informed consent does not necessarily mean that the doctor was not negligent.

   If the plaintiff suffered a complication that is known to be associated with the procedure he/she was undergoing, and if the risk of this complication was explained to the plaintiff before he/she agreed to undergo the procedure, the physician will have a strong argument that he/she did not fall below the standard of care.