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Graham v. Bridgepoint Health – Alleged Failure to Treat Osteomyelitis Claim Dismissed

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Paul Cahill

Paul is a partner at Davidson Cahill Morrison LLP. He has proven himself a fearless advocate by a number of successful trial outcomes over the years, including a $11.5 million judgment for medical malpractice causing cerebral palsy against a negligent doctor as well as a recent judgment against a negligent emergency room physician who caused the death of a 34 year-old mother of 4 young children.
Bridgepoint Hospital

On January 2, 2025, the Ontario Superior Court of Justice dismissed a medical malpractice action brought by a plaintiff who received treatment at Bridgepoint Health in Toronto following a motorcycle accident and surgery undertaken at St. Michael’s Hospital in Toronto in 2012.

The plaintiff sought damages for alleged negligence and breach of duty on the part of Dr. Berger (“the defendant”), which allegedly caused the plaintiff to experience prolonged recovery from osteomyelitis.

Facts

The plaintiff Scott Graham experienced a serious motorcycle accident on July 1, 2012, resulting in open fractures of the left tibia, a fractured right forearm, and a burst fracture of the T12 vertebra. Initial treatment included an urgent operation performed by Dr. Aaron Nauth at St. Michael’s Hospital in Toronto, after which Mr. Graham developed fever and was identified to have a bloodstream infection.

Mr. Graham was then transferred to Bridgepoint Hospital under the care of Dr. Sheldon Berger for orthopedic rehabilitation. Numerous checkups and treatments were provided throughout his stay, including continuous monitoring of an emerging lump over the surgical wound on his tibia.

Despite resolving somewhat with application of warm compresses, the lump was eventually diagnosed as an infection by a visiting orthopedic surgeon from St. Michael’s Hospital. Mr. Graham was transferred back to St. Michael’s Hospital, where Dr. Nauth recommended surgical irrigation and debridement, which Mr. Graham initially declined, and opted for local irrigation at bedside.

Upon returning to Bridgepoint, Mr. Graham’s treatment continued as per Dr. Nauth’s orders. A piece of blue suture was found and safely removed from his wound. Later, his antibiotics were switched to Ampicillin due to sensitivity of the identified infection.

Despite Dr. Nauth’s repeated recommendations for surgical intervention, Mr. Graham declined until finally accepting after a second opinion. Following surgery, he stayed on IV and oral antibiotics over several months. Mr. Graham ultimately recovered at home, with his tibial fracture healing completely. He returned to his work as a Crown Attorney in January 2013, and gradually resumed his military duties.

Issues

All other defendants had been released prior to the trial of the action leaving Dr. Berger as the sole defendant. All issues were in dispute in this trial: standard of care, causation and damages.

Experts

Plaintiff's Experts

Dr. Zain Chagla was qualified to provide opinion evidence on the issues of standard of care and causation. Dr. Zain Chagla is an infectious diseases and internal medicine physician. He is interim Senior Medical Director, Head of Service of Infectious Diseases and Medical Director of Infection Control at St. Joseph’s Healthcare in Hamilton, a fully affiliated teaching hospital, a quaternary care centre and an academic hospital with the support of residents. He also holds privileges with Hamilton Health Sciences and Woodstock Hospital.

Defence Experts

Dr. Mark Krieger was qualified to provide opinion evidence on the issue of standard of care. Dr. Krieger is a retired family physician who practised for over 40 years as a hospitalist at West Park Healthcare Centre in Toronto, a rehabilitation hospital like Bridgepoint. He was qualified as a specialist in family medicine and as a hospitalist to give opinion evidence.

Dr. Andrew Simor was qualified as an infectious diseases specialist to give opinion evidence on the likely cause of the plaintiff’s osteomyelitis (bone infection) and its expected course of treatment. He is an infectious diseases specialist and senior scientist at Sunnybrook Health Sciences Centre in Toronto, where he has worked since 1993.

Analysis

Dr. Berger was found not negligent due to several key reasons.

  1. The court found that Dr. Berger closely followed the treatment plan, monitored the patient’s progress, and acted with the skill and knowledge consistent with his professional role.
  2. When the lump appeared on the patient’s incision, there were no signs of infection and the orthopedic surgeon’s advice was sought and followed. The court found that this was a reasonable course of action.
  3. Arguments made to discredit Dr. Berger’s account of events were rejected, as the evidence supported his narrative.
  4. Expert testimony was provided to support the assertion that Dr. Berger’s management of the patient met the standard of care for a family physician and hospitalist, and his judgement and approach to treatment were sound

Causation was equally not established for the following reasons.

  1. The plaintiff could not prove that Dr. Berger had breached the standard of care during the treatment.
  2. The plaintiff had not established that the injury wouldn’t have occurred without the alleged negligent act of the defendant. Even in the event of a breach of standard care, proving negligence doesn’t automatically make the defendant liable for the loss. In this case, the plaintiff argued that the osteomyelitis was caused by an undetected suture abscess. This theory was countered by the defense stating that the osteomyelitis was a result of pre-existing bacteremia which had spread to the bone before the plaintiff was under Dr. Berger’s care. They also noted that the medical treatment would have stayed the same regardless of the timing of the diagnosis.
  3. The plaintiff declined recommended surgery in favor of more conservative treatment, which slowed down his recovery. Testimony from Dr. Simor, explained that the early diagnosis of the infection wouldn’t have altered the plaintiff’s course of treatment or the outcome. In fact, the plaintiff’s infection eventually resolved, and his tibial fracture united. Therefore, it was concluded that a delay in diagnosis did not prolong the plaintiff’s recovery.

For the above reasons, the case was dismissed.

Decision Date: January 2, 2025

Jurisdiction: Ontario Superior Court of Justice

Citation: Graham et al. v. Bridgepoint Health et al., 2025 CanLII 380 (ON SC)

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