On March 13, 2024, an orthopaedic patient was successful in her lawsuit against her treating orthopaedic surgeon for removing hardware from a clavicle fracture too early that resulted in a subsequent re-fracture.

FACTS

On September 4, 2016, the Defendant, Dr. Moo Hyung Lee, surgically repaired the patient’s clavicle by implanting a plate fixed with screws.

On April 20, 2017, Dr. Lee’s treatment plan was to see the patient in three months’ time for further review with repeat X-rays and “the possibility of removing the hardware in the future”.

On June 2, 2017, Dr. Lee surgically removed the plate and screws.

The patient suffered a re-fracture of her clavicle shortly after the June 2, 2017 surgery. This re-fracture was discovered at a follow-up appointment on July 13, 2017.

The re-fracture healed without further surgery but resulted in a small bump on the patient’s right shoulder, which appeared lower than her left shoulder.

On October 2, 2018, the patient underwent a third surgery on her right clavicle by another orthopaedic surgeon. During this procedure, the patient’s clavicle was re-fractured and the two parts were re-aligned with a fixed plate so that there was no bump.

At trial, the patient complained that although her right shoulder had now healed, she could no longer perform certain tasks like carrying laundry down the stairs and vacuuming on the stairs. She could not lift her son into the bathtub to bathe him.

EXPERTS

Plaintiff

Dr. David Pichora was qualified to provide opinion evidence for the plaintiff.

Dr. Pichora has been an Orthopaedic Surgeon since 1984. From 1992 to 2008, he held the positions of Orthopaedic Residency Program Director and Chairman of the Division of Orthopaedic Surgery at Kingston General Hospital, Hotel Dieu Hospital, and Queen’s University.

From 1998 to 2000, Dr. Pichora held concurrent positions as President of the Ontario Orthopaedic Association and the Section Chair for the Orthopaedic Surgery division of the Ontario Medical Association. 

Dr. Pichora was qualified as an expert in the standard of care applicable to orthopaedic surgeries in Ontario and causation with respect to diagnosis, treatment and management of clavicle fractures. 

Defence

Dr. Bob Karabatsos was qualified to provide opinion evidence for the defence. He has been practicing as an Orthopaedic Surgeon since 2003. Seventy to eighty percent of his practice is clinical care consisting of surgery, clinic work and emergency room work.

Dr. Karabatsos was qualified as an expert in orthopaedic surgery and orthopaedic standard of care, management of clavicle fractures and informed consent and causation. 

DECISION

Standard of Care

As of April 20, 2017, Dr. Lee’s plan of treatment was to see the patient in “three months time” (July 2017) for “further review with repeat X-rays” and “removing her hardware sometime after next fracture clinic visit.” 

The fundamental flaw with the defence position was that Dr. Lee could not explain why then a surgery was performed on June 2, 2017 given the following factual findings:

• Dr. Lee did not meet with the patient between April 20, 2017 and June 2, 2017. No X-rays were taken between those dates. 
• Dr. Lee had no additional or different information when he performed the surgery on June 2, 2017 than he had when he wrote the treatment plan in his clinical notes on April 20, 2017. 
• Dr. Lee did not know why the patient’s surgery was scheduled for June 2, 2017. There was no contemporaneous evidence that he reconsidered or revisited his April 20, 2017 treatment plan and exercised his clinical judgment to perform the surgery on June 2, 2017 without any updated imaging of the fracture.

What did happen was Dr. Lee’s secretary scheduled the surgery for June 2, 2017, so he performed the surgery on that date.

In addition to finding Dr. Lee negligent in performing the surgery on June 2, 2017, the trial judge also found that he had failed to obtain the patient’s informed consent prior to the June 2, 2017 surgery. 

Causation

The trial judge was satisfied on the plaintiff’s expert evidence that the re-fracture of the clavicle at the original fracture site was caused by the premature removal of the hardware on June 2, 2017. 

And furthermore that if Dr. Lee had followed his April 20, 2017 treatment plan and reviewed further X-rays “in three months time” before removing the hardware, the re-fracture would have been far less likely to have occurred.

Damages

The damages related to the re-fracture, the prolonged recovery, and having to undergo a third surgery to correct the bump and asymmetry caused by the re-fracture.

The bump and asymmetry were minor and were corrected about one year after the patient first noticed them. She has no ongoing physical or psychological symptoms caused by the re-fracture. 

Based on this, the Court awarded $35,000 in general damages to the patient.

Decision Date: March 13, 2024

Jurisdiction: Ontario Superior Court of Justice

Citation: Kotorashvili v. Lee, 2024 ONSC 1495 (CanLII)