This is one of those rare medical malpractice decisions where negligence is found against a doctor without the need for expert evidence. Expert evidence is almost always needed for the Plaintiff to prove negligence in a medical malpractice claim, however, there are those rare instances when it is not.
In this case, the Plaintiff sued Dr. Manfred Ziesmann for damages from a torn drain in her left breast after breast reduction surgery performed by him in 2010.
After hearing evidence from lay witnesses on behalf of the Plaintiff, and after hearing expert evidence from a defence witness, the trial judge concluded that Dr. Ziesmann breached the standard of care when he “… yanked on the drain despite her increasing upset at the force used and pain it was causing her. I am further satisfied that Dr. Ziesmann had to have realized there was a good possibility that his yanking on the drain caused it to break and yet he downplayed that possibility.“
The trial judge further rejected Dr. Ziesmann’s evidence at trial claiming that he specifically remembered looking at the end of the drain and found no issues with it: I simply do not accept Dr. Ziesmann’s assertion, years after the fact, without supporting documentation, that he remembered looking at the end of the drain and that there was no problem with it. As a result, I am satisfied, based on the evidence I accept, that Dr. Ziesmann did not meet the standard of care expected of a diligent doctor. He forcefully yanked the drain out of Melanie’s left breast, causing her pain and distress, without first discussing her options. He then tried to downplay the possibility that the drain had broken and did not himself offer follow-up to confirm whether the drain had broken, even though he likely believed it had.
Based on the specifics of this medical malpractice case, the trial judge found that it was a matter of common sense that the doctor was negligent for yanking out the drain. As such, the trial judge found medical liability on the doctor without the need for expert evidence.
Decision Date: March 23, 2023
Jurisdiction: Court of King’s Bench of Manitoba
Citation: Drain v. Ziesmann, 2023 MBKB 59 (CanLII)
On January 9, 2025, Justice H. Williams of the Ontario Superior Court of Justice awarded the successful physicians $957,893 in legal costs (in addition to the already $100,000 ordered for costs thrown away due to a previous adjournment).
The OPSDT found that this family and emergency medicine physician had drugged his patient/employee with the date-rape drug, flunitrazepam (Rohypnol) and Lorazepam, and then drugged himself after the fact to try to avoid being caught.
