Surgical Negligence

This is the second article in our series examining the challenges and pitfalls in different types of medical negligence lawsuits and approaches to overcoming them. In this article Andrea Donaldson unravels some of the complexities inherent in surgical negligence lawsuits. Many factors come into play when there is a bad outcome after surgery.  These include a physician’s clinical judgement, the surgical technique used and individual patient considerations. Cases of surgery performed on a wrong body part, or instruments left inside a patient make the news from time to time, but surgical negligence cases are rarely as straight-forward as that.

The 2021 Supreme Court of Canada decision in Armstrong v. Ward, 2021 SCC 1, has implications for medical malpractice claims across the country. The decision, which clarified the law on causation, should make proving this aspect of a negligence claim easier for the plaintiff than if the Ontario Court of Appeal decision was left to stand,
which could be read as holding that as long as the defendant physician “tried” to meet the standard of care, there could be no finding of negligence.

However, there are still many pitfalls in surgical negligence cases that plaintiffs must
avoid in order to succeed. In this article, we begin by examining the Armstrong decision and its effect on the law. We then look to a number of surgical negligence cases where the plaintiff was not successful for various reasons, and then question if anything can be gleaned from Armstrong that may have affected the outcome of those cases.

Armstrong v. Ward

In Armstrong, the Supreme Court of Canada set aside the decision of the Ontario Court of Appeal in a medical malpractice action, restoring the trial judgement which found the defendant physician liable for the plaintiff’s injuries.
The case centered around the plaintiff Ms. Armstrong’s colectomy surgery performed by Dr. Ward. Although the surgery appeared to be uneventful, Ms. Armstrong began to experience increasing problems from mild abdominal pain and a pulling sensation to significant left flank pain postoperatively. Further investigation showed that Ms. Armstrong’s left ureter (a tube that carries urine from the kidney to the bladder) was blocked. The blockage led to significant damage to her left kidney which ultimately had to be removed.

The plaintiff’s theory of the case was that Dr. Ward caused the damage to the ureter using a cauterizing device known as a LigaSure by improperly bringing it within two millimeters of the ureter.

Both the plaintiff and defense experts agreed at trial that the thermal energy from the LigaSure can spread beyond the jaws of the device and can damage tissue within two millimeters. All of the experts stressed the importance of identifying and protecting the ureter during laparoscopic colectomy surgery, with the plaintiff’s expert indicating that if a surgeon takes the necessary steps to identify and protect the ureter, the injury would simply not occur in an anatomically normal colon.

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Andrea Donaldson

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