On January 18, 2024, the Court of Appeal of Manitoba ordered a new trial in a medical malpractice claim involving a general surgeon with orthopedic training in a rural setting who allegedly provided substandard care with respect to a complex calcaneus (heel bone) fracture.

The appellate court concluded that the trial judge erred by not adopting a standard of care close to that of an orthopedic surgeon with a subspecialty in trauma and thereby ordered a new trial.

FACTS

In July 2006, the Defendant surgeon performed an open reduction and internal fixation on a fracture to the Plaintiff’s left calcaneus sustained as a result of a motor vehicle accident. 

The Plaintiff continued to be symptomatic for approximately 10 years until another orthopedic surgeon with subspecialties in trauma, and foot and ankle, performed surgery to remove bone and put the displaced peroneal tendons in her left foot back into their correct position in the peroneal groove.

The Plaintiff alleged that her delayed recovery and resulting damages were caused by the Defendant’s negligence.  Moreover, she alleged that the Defendant surgeon failed to reduce her peroneal tendons into place during the surgery and that his actions caused her to develop an infection and an increased risk of arthritis.

ISSUE

The important issues decided by the Court of Appeal were: 

• whether the trial judge erred by imposing a lower standard of care on the Defendant on the basis that he was practicing in a rural setting, and by not holding him to a standard close to that expected of an orthopedic surgeon with a subspecialty in trauma; and
• whether the trial judge error by referring to and relying on a medical journal article that was not in evidence.

DECISION

Defining the Standard of Care

At trial, the experts agreed that the surgery the Defendant performed on the Plaintiff is a difficult procedure. Drs. Sanders and Younger gave unchallenged evidence that it is usually done by orthopedic surgeons with a subspecialty in trauma, or foot and ankle.

The trial judge determined the applicable standard of care when he stated that the Defendant was “a general surgeon in a rural community based hospital practising in orthopaedics” 

The Plaintiff argued that, in so defining the standard of care, the trial judge erred by (1) concluding that a lower standard applied to a physician practicing in a rural setting, and (2) failing to apply the standard of an orthopedic surgeon with a subspecialty in trauma.

The Plaintiff asserted that, despite the Defendant’s training being limited to that of a general surgeon, his extensive experience in orthopedics, including performing open reduction and internal fixation of calcaneal fractures, results in him being properly measured by the standard of a physician who ordinarily conducts such complex surgeries—an orthopedic surgeon with a subspecialty in trauma.  

The Court of Appeal concluded that, in the particular circumstances of this case, the trial judge erred by not adopting a standard of care close to that of an orthopedic surgeon with a subspecialty in trauma.

This error had a significant impact on the trial judge’s assessment of the expert evidence. Given the standard of care that he adopted, he did not deal with any of the experts’ evidence about how they, as subspecialists, would have treated the Plaintiff.

The Article

The Court of Appeal noted that the trial judge committed a very serious error to have introduced medical literature on his own, after the trial, without disclosing it to the parties before his decision was issued.

It was determined that the trial judge relied on the article to assess the expert evidence, such that his error was material to his conclusion that the Defendant had not breached the standard of care.

EXPERT LIABILITY WITNESSES

Plaintiff Experts

Dr. Alistair Younger is an orthopedic surgeon in Vancouver, British Columbia.  Dr. Younger has subspecialties in foot and ankle, total joint arthroplasty and arthritis.  He also practices in the area of trauma orthopedic surgery and, at trial, was qualified as an expert in that area 

Dr. David Sanders is an orthopedic surgeon practicing in London, Ontario, who has subspecialties in trauma, and foot and ankle.

Defence Experts

Dr. Mark MacLeod is an orthopedic surgeon with a subspecialty in trauma including foot and ankle, who practices in London, Ontario.

Dr. Fred Aoki is a Winnipeg internal medicine specialist, with subspecialties in infectious diseases and clinical pharmacology.

Decision Date: January 18, 2024

Jurisdiction: Court of Appeal of Manitoba

Citation: Dumesnil v Dr Jacob, 2024 MBCA 4 (CanLII)