Known Risk of Surgery
A common defense in surgical cases is that the injury suffered by the plaintiff was a known risk of the procedure, which could and did occur in the absence of any negligence on the part of the defendant.
In Johnston v. Hader, 2009 ABQB 424, the plaintiff suffered from debilitating epileptic seizures. She underwent selective amygdalohippocamectomy (“SAH”) surgery in an effort to eliminate those seizures by removing part of her amygdala and hippocampus. During the surgery, the retractor used to provide access to the part of the brain being operated on (known as a Greenberg retractor), moved at least a centimeter into the brain from its original position. The plaintiff experienced right-side paralysis post-operatively as a result, but her seizures were eliminated. The plaintiff alleged that retractor blade was pushed or misplaced, possibly because landmarks in the brain were ignored or misidentified. The defendants countered that the blade was initially positioned correctly but subsequently the blade moved into the brain stem, probably as the result of a bump. Unlike in Armstrong, non-negligent scenarios for the injury were raised by the defendants which the court was entitled to accept. The defendants’ experts testified that it was very unusual for the blade to move one centimeter beyond its initial placement accidentally, but that it was possible for this to occur even if all care and due attention was taken.
The court concluded that the defendants met the standard of care and the injury that occurred was a risk of the particularly surgery performed. The court preferred the evidence of the defendants’ experts where there was disagreement, noting that the defense experts were more experienced neurosurgeons and more experienced with the Greenberg retractor. The plaintiff’s expert’s involvement in SAH procedures had decreased over the years due to involvement in research and other types of neurosurgical procedures, and at the time of the trial he no longer used the Greenberg retractor.
Johnson illustrates the importance of choosing the right experts for a surgical negligence case, as well as assuring that the plaintiff is able to adduce evidence to counter any non-negligent causes of injury raised by the defense.
Defendant is Not to Be Judged by the Result of the Surgery
Plaintiffs in surgical negligence cases must be alert to a defense that the plaintiffs’ experts are holding the defendant to a standard of excellence by focusing on the result of the surgery.
In Carlsen v. Southerland, 2006 BCCA 214, the defendant physician appealed from trial judgment which found him negligent in his performance of disc surgery on the plaintiff. During a discectomy for L4-L5 disc herniation, the defendant’s instruments went past the annulus fibrosis and inadvertently cut the iliac artery and common iliac vein. The defendant noticed bright red blood in disc space but when it soon stopped he assumed nothing was wrong. He closed surgical incision and sent plaintiff to post-anesthetic recovery. Shortly thereafter, plaintiff’s heart rate rose and she complained of left leg pain and abdominal tenderness, which was found to be due to the artery being cut and blood flowing freely into her abdominal cavity. The plaintiff underwent urgent vascular repair requiring 13 units of blood. She gradually improved over the next year but was left with agonizing leg pain due to a lesion on her spine as a result of the injury to the artery.
The trial judge inferred from the fact that the iliac artery and common iliac vein were cut that the defendant was prima facie negligent. Having found so, he concluded on the principles enunciated in Fontaine v. British Columbia, [1998] 1 SCR 424, that defendant was required to present evidence negating negligence.
