On November 25, 2024, a patient was successful in proving medical negligence against his orthopedic surgeon after suffering a permanent injury to the medial cord of his brachial plexus from an anatomic shoulder replacement.
The Defendant physician, Dr. Gladwell, testified that he took all necessary steps to try to protect the brachial plexus, but despite those precautions, nerve injuries can and do happen during this type of surgery. His position was that no one knows how the injury occurred. At worst, he conceded he may have erred about the amount of force or traction that was applied, but that this kind of error in judgment does not amount to negligence.
The experts on each side of the case testified that this kind of complication from this type of surgery was exceptionally rare. In fact, neither of the orthopedic surgeons that testified had ever seen or heard of an injury from this surgery to this degree happening.
In the end, the trial judge of the Ontario Superior Court of Justice determined that Dr. Gladwell was negligent by applying an excessive degree or duration of force or stretch on the patient’s arm during the surgery. His conclusion on standard of care was driven by the extreme rarity of the complication and that the most likely explanation for it was negligence.
Mr. Dallner wanted shoulder replacement surgery because his right shoulder was “worn out”. Dr. Gladwell diagnosed glenohumeral arthritis. There was no dispute that the patient needed the surgery (a total arthroplasty), and that he was a good candidate for the surgery.
Total shoulder arthroplasty involves replacing both the ball (humeral head) and socket (glenoid) with implants. Dr. Gladwell had performed this surgery many times during his residency and during his two and a half years as a fully trained surgeon at the hospital in Owen Sound. He estimated he had performed the surgery on his own (i.e., after being in his own practice) 40 or 50 times.
A necessary part of a total arthroplasty is dislocation of the shoulder. The arm must be moved into a non-natural position so that the surgeon can gain access to the glenoid and to the top of the humerus, where implants will be installed. “Release” of the humerus through spreading and cutting of tissue is required. Force is required to dislocate and position the shoulder for parts of the surgery. This is unavoidable. The patient’s arm must be repositioned several times during the surgery.
The injury sustained by the patient in the surgery was a brachial plexus injury. The brachial plexus is a network of nerves between the neck and upper arm passing under the clavicle into the armpit and supplying the arm with strength and sensation.
In analyzing this surgical negligence claim, the Court made a number of important observations.
The major issue is whether the plaintiff has established that Dr. Gladwell breached the standard of care. The trial judge was satisfied that the cause of the complication was a stretch injury. The real question is whether the stretch injury resulted from a breach of the standard of care. Specifically, whether it resulted from the application of excessive force or by leaving the arm in a position of stretch for too long, contrary to the standard of care.
Dr. Gladwell himself identified the most likely cause of the patient’s injury within hours of the surgery. His addendum note said, “Most likely, this is due to intraoperative stretch,” and, “Overall, I presume this is from retraction of the humerus during glenoid exposure, but again I am surprised by this.” As such, the Court determined that the most likely cause is readily determinable. As such, it would be artificial to first determine whether there was a breach of the standard of care and only then turn to causation.
The jurisprudence does indicate that it is typically best to determine whether there has been a breach of the standard of care before determining causation: Bafaro v. Dowd, 2010 ONCA 188, at para. 35. One reason for this is that proceeding in this order “ensures that the trial judge does not wrongly reason backwards from the fact of the injury to determine that the standard of care has been breached”: Armstrong ONCA, at para. 138. But in Armstrong, both Paciocco J.A. and van Rensburg J.A. agreed that where (as here) the nature of the injury is relevant to “what happened,” it is not an error to consider the injury in resolving whether the standard of care has been breached: Armstrong ONCA, at paras. 63 and 138 to 144. See also: Meringolo (Committee of) v. Oshawa General Hospital, [1991] O.J. No. 91 (C.A.), at para. 56, leave to appeal refused, [1991] S.C.C.A. No. 115; Grass (Litigation guardian of) v. Women’s College Hospital, 2001 CanLII 8526 (ON CA), [2001] O.J. No. 1766 (C.A.), at para. 12, leave to appeal refused, [2001] S.C.C.A. No. 372; and Kennedy v. Jackiewicz, [2003] O.J. No. 1854 (S.C.J.), at para. 6, affirmed [2004] O.J. No. 4816 (C.A.).
If an event can occur, one must expect that it will sometimes occur.
A plaintiff is not required rule out all non-negligent causes. The trial judge observed that the wisdom in this is revealed if one considers a case where the outcome suggests that surgical negligence is a strong possibility, but a non-negligent cause is possible, although highly unlikely. The right approach must surely be to assess the likelihoods of each possibility. Otherwise, the plaintiff would be put to a burden of proof that goes beyond a balance of probabilities.
In this case, the outcome of surgery can be used to make inferences about what happened in the surgery. A good deal can be inferred or deduced from the outcome of the surgery.
The trial judge relied on the testimony of the expert for the plaintiff, who testified: “Permanent, irrevocable injury to the medial cord of the brachial plexus, from a patient having an anatomic scheduled shoulder replacement for primary glenohumeral osteoarthritis, who never had any surgeries before or injuries before, I haven’t seen it, it doesn’t happen. It shouldn’t happen.”
Dr. Robin Richards, orthopedic surgeon, testified on behalf of the patient.
Dr. Tracy Wilson, orthopedic surgeon, testified on behalf of the physician.
Judgment was granted in favour of the Plaintiff. Damages were settled prior the trial of the action.
Decision Date: November 25, 2024
Jurisdiction: Ontario Superior Court of Justice
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