Kotorashvili v Lee: When a Surgeon Deviates from His Own Treatment Plan

Most of the medical malpractice case comments on this site address claims that failed. The empirical reality of malpractice litigation is that defendants prevail far more often than plaintiffs, and the case-comment literature reflects that pattern. Kotorashvili v Lee, 2024 ONSC 1495, is different. It is a clean plaintiff win against an orthopaedic surgeon who removed hardware from a healing clavicle fracture six weeks before his own documented treatment plan called for re-evaluation. The trial judge found breach of the standard of care, failure to obtain informed consent, and causation. The case is also doctrinally useful because it illustrates a particular and powerful framework for proving breach: where a physician documents a treatment plan and then deviates from it without clinical justification, the deviation itself is strong evidence of breach.

The case is significant for several reasons. It demonstrates what successful plaintiff malpractice cases look like when all three liability elements are properly proved. It articulates the “deviation from own treatment plan” framework in a clean and useful way. It shows the Reibl v Hughes informed consent framework operating where treatment plans change mid-course. And it identifies a practical workflow vulnerability — the gap between administrative scheduling and active clinical reassessment — that physicians and hospitals should attend to.

The clinical context

The clavicle (collarbone) is the most commonly fractured long bone in adults. Most clavicle fractures result from falls, sports injuries, or motor vehicle collisions. Treatment options range from conservative management with a sling for non-displaced fractures to surgical repair for significantly displaced or comminuted fractures.

Open reduction internal fixation (ORIF) is the standard surgical treatment for displaced clavicle fractures. The procedure involves making an incision over the fracture, reducing the bone fragments to anatomic alignment, and stabilizing the reduction with a metal plate fixed by screws. The plate sits on the surface of the bone and holds the fragments in position while the bone heals.

The healing process unfolds over time. Clinical union — the point at which the bone fragments have knit together into a continuous structure — typically occurs at 8 to 12 weeks. Radiographic union, where the healing is visible on X-ray, often takes longer. Full bone strength returns even later, with progressive remodelling continuing for many months. The hardware provides external stability during this process. Bone that has reached clinical and radiographic union can typically bear physiological loads without the hardware, but bone that has not yet healed sufficiently may re-fracture if the supporting hardware is removed prematurely.

Hardware removal is an elective procedure undertaken for various reasons: patient discomfort or skin prominence from the hardware (the clavicle sits just under the skin), preference, or other clinical considerations. The timing decision balances:

• Sufficient bone healing to permit unsupported physiological loading
• The presenting reason for removal
• The risk of re-fracture if removal is premature

Standard orthopaedic practice for hardware removal requires confirmation of radiographic healing before the procedure. This typically means imaging within a reasonable time before the removal to confirm that the bone is ready. A treatment plan calling for three-month follow-up with X-rays prior to removal — as Dr. Lee documented on April 20, 2017 — reflects this standard.

The substantive facts

The fact pattern in Kotorashvili is structured around four critical dates.

September 4, 2016 — the initial repair. Dr. Lee surgically repaired the patient’s clavicle with a plate and screws. The surgery itself is not at issue in the malpractice claim. The patient consented to the initial procedure and the work was done appropriately.

April 20, 2017 — the documented treatment plan. At a follow-up visit, Dr. Lee documented a plan to see the patient in three months’ time (July 2017) for further review with repeat X-rays, with “the possibility of removing the hardware in the future.” This is the critical document in the case. It establishes Dr. Lee’s own contemporaneous clinical assessment of what the next steps should be: another three months of healing, imaging to confirm the healing, and only then a decision about hardware removal.

June 2, 2017 — the surgery that should not have happened. Six weeks before the planned re-evaluation, Dr. Lee performed the hardware removal surgery. Critically:

• He had not seen the patient between April 20 and June 2
• He had not obtained any new imaging
• He had no additional clinical information beyond what he had on April 20
• He could not subsequently explain why the surgery had been performed on June 2 rather than at the planned three-month mark
• There was no contemporaneous evidence that he had reconsidered his April 20 treatment plan or exercised independent clinical judgment to advance the timing

What had happened, the trial judge found, was that Dr. Lee’s secretary had scheduled the surgery for June 2. Dr. Lee performed the procedure because it was on his calendar, not because he had actively determined that the timing had become clinically appropriate.

Shortly after June 2, 2017 — the re-fracture. The clavicle re-fractured at the original fracture site. The injury was discovered at a follow-up appointment on July 13, 2017. The re-fracture healed without further surgery but left a bump and shoulder asymmetry — the right shoulder appeared lower than the left.

October 2, 2018 — the corrective surgery. A different orthopaedic surgeon performed a third surgery on the right clavicle. The bone was re-fractured surgically, re-aligned, and stabilized with a new plate. The corrective procedure addressed the cosmetic asymmetry and produced an acceptable final outcome.

The trial findings

Standard of care. The trial judge found that Dr. Lee breached the standard of care by performing the June 2 surgery. The reasoning was direct. The treatment plan documented on April 20 called for three-month follow-up with X-rays before any hardware removal. Dr. Lee deviated from his own plan without any documented clinical reassessment. He had no new information, no new imaging, and no recorded judgment that the timing should be advanced. The surgery proceeded because the secretary had booked it.

The “deviation from own treatment plan” framework was decisive. The defence position essentially asked the court to accept that Dr. Lee had made an appropriate clinical judgment to advance the surgery, despite the absence of contemporaneous documentation supporting any such judgment. The trial judge found no foundation for this position. Dr. Lee’s own contemporaneous documentation established the planned standard; deviation without recorded reassessment was not consistent with that standard.

Informed consent. The trial judge separately found that Dr. Lee had failed to obtain informed consent for the June 2 surgery. The original consent — for hardware removal at the planned three-month mark following X-ray confirmation — did not cover the actual procedure performed (hardware removal six weeks early without confirmation imaging). The patient was not properly informed that the planned timing had been altered, and was not given the opportunity to consent to the modified approach with awareness of the implications.

This is Reibl v Hughes, [1980] 2 SCR 880, operating in a mid-treatment context. The initial consent framework addresses disclosure at the threshold decision. Where treatment plans change mid-course in material ways, the consent obligation extends to the modified plan. The patient is entitled to know what is being done, when, and why — particularly where the modification departs from the previously discussed approach.

Causation. The trial judge accepted the plaintiff’s expert (Dr. Pichora) on causation. The re-fracture at the original fracture site was caused by the premature removal of the hardware. Had Dr. Lee followed his April 20 plan — three-month follow-up with X-rays before removal — the re-fracture would have been far less likely to occur.

The causation finding is a clean application of the Clements v Clements, 2012 SCC 32, but-for test. But for the premature removal of the supporting hardware on June 2 (a step that fell below the standard), the re-fracture (the alleged harm) would not have occurred — or at least would have been far less likely. The causation analysis was supported by orthopaedic expert testimony explaining the biomechanical relationship between hardware removal timing and re-fracture risk.

Damages. The trial judge awarded $35,000 in general damages. The damages reflected the re-fracture itself, the prolonged recovery period, the third surgery required to correct the cosmetic asymmetry, and the temporary functional limitations during recovery (difficulty carrying laundry down stairs, vacuuming stairs, lifting her son into the bath). The plaintiff had no ongoing physical or psychological symptoms attributable to the re-fracture, and the bump and asymmetry were corrected within about a year of when they first appeared.

The $35,000 quantum is modest for plaintiff outcomes but reflects the limited long-term impact of the injury. The case is a useful reference for damages calibration where the underlying injury was real and the recovery was prolonged but the residual impact was limited.

The “deviation from own treatment plan” framework

The decisive doctrinal feature of Kotorashvili is the role of Dr. Lee’s own documented April 20 treatment plan. The framework, articulated through the trial judge’s reasoning, can be stated as follows:

• A physician’s contemporaneously documented treatment plan establishes the planned course of care
• Deviation from the documented plan requires clinical justification — typically reflected in updated examination, imaging, or other new clinical information
• Where the deviation is undocumented and the physician cannot subsequently explain it, the deviation itself is evidence of breach
• The standard of care is not whatever the physician did; it is what reasonable practice required, with the documented plan as evidence of what reasonable practice in this physician’s hands had called for

The framework is powerful for several reasons. It anchors the breach analysis in the physician’s own contemporaneous judgment rather than in conflicting expert opinion. It cuts through “this is what I always do” defences by reference to the physician’s own documentation. It rewards careful clinical documentation (because documented plans become the measure of care) while penalizing administrative drift (because deviation without reassessment is evidence of breach).

For plaintiff counsel, the framework is valuable in cases where:

• The physician has documented a treatment plan
• The plan was not followed
• The deviation is not documented
• The physician cannot persuasively explain the deviation
• An expert can articulate why deviation without reassessment fell below the standard

For defence counsel, the framework is a reminder of the importance of contemporaneous documentation. Where treatment plans evolve over time, the evolution should be documented. “I changed my mind based on clinical reassessment” is far stronger when supported by a note recording the reassessment than when offered as bare testimony years later.

The administrative-clinical workflow gap

A particularly striking feature of Kotorashvili is the trial judge’s finding about how the June 2 surgery came to be performed. Dr. Lee’s secretary had scheduled the surgery. Dr. Lee performed it because it was on his calendar. He did not actively reassess whether the timing remained clinically appropriate before proceeding.

This is the administrative-clinical workflow gap. In modern medical practice, administrative scheduling — undertaken by office staff based on the physician’s general direction — often operates somewhat independently of active clinical decision-making. The expectation is that the physician will independently assess clinical appropriateness at the time of the procedure. Kotorashvili illustrates what happens when that active reassessment doesn’t occur.

The doctrinal point: physicians cannot defer to their administrative systems when those systems schedule procedures that the physician has not actively confirmed as clinically appropriate at the time. The administrative system serves the clinical judgment; it does not replace it. A physician who performs a procedure because it is on the calendar, without confirming that the underlying clinical assessment remains accurate, exposes themselves to the kind of liability finding Kotorashvili exemplifies.

For practising physicians, the operational lesson is simple but important: before performing any elective procedure, confirm that the underlying clinical reasoning still supports it. A pre-procedure note documenting “I have reviewed the patient’s clinical course since the planning visit and confirm that the planned timing remains appropriate” — or a documented updated assessment if circumstances have changed — provides protection against the workflow drift that Kotorashvili shows can produce liability.

Why this is a meaningful plaintiff win

Kotorashvili is one of relatively few clean plaintiff trial wins in the rewritten case-comment cluster on this site. Most of the cluster is causation/SOC defeat cases — reflecting the empirical reality that defendants prevail more often than plaintiffs in Canadian medical malpractice litigation. Plaintiff wins are doctrinally valuable because they show what successful cases look like and what fact patterns support liability findings.

What made this case work for the plaintiff:

• Clear contemporaneous documentation of the original treatment plan that the surgeon then deviated from
• An unexplained deviation with no contemporaneous record of clinical reassessment
• Strong plaintiff expert evidence from a well-qualified orthopaedic surgeon
• Causation testimony that the trial judge accepted
• Documented harm that flowed directly from the deviation
• Multiple grounds of liability (SOC + informed consent) that supported the same outcome

What this case was not:

• A complex causation case where the underlying disease process competes with the alleged negligence
• A “battle of the experts” with both sides offering credible testimony
• A claim against established clinical guidelines or accepted practice
• A claim requiring extension of existing doctrine

The case is, in many respects, a textbook malpractice scenario: a documented plan, an unexplained deviation, a direct causal harm. These are the cases that produce successful outcomes. Prospective clients evaluating potential claims should consider how closely their fact pattern resembles this kind of clarity.

The informed consent cluster

Kotorashvili joins a substantial informed consent sub-cluster on this site:

• Denman v Radovanovic: Ontario, disclosure of cumulative risks; breach found
• Gilmore v Love: BC, real-time informed consent during labour
• Khaleel v Indar: Alberta, disclosure of alternatives and Reibl modified objective test
• Thorburn v Grimshaw: Nova Scotia, failure of informed consent claim on summary judgment
• A.G. v Rivera: BC, anchors the patient refusal doctrine
• Kotorashvili v Lee (this case): Ontario, mid-treatment plan change without renewed consent

The cluster now covers initial consent disclosure (Denman, Khaleel), real-time consent during procedures (Gilmore), summary judgment dispositions (Thorburn), patient refusal of engagement (A.G. v Rivera), and mid-treatment plan changes requiring renewed consent (Kotorashvili). For Ontario and cross-province informed consent practice, this is a useful reference set.

Causation analysis: successful application

Kotorashvili is also useful as a successful causation case in a cluster that has been heavy on causation defeats. The plaintiff’s expert (Dr. Pichora, a senior orthopaedic surgeon) provided evidence that the trial judge accepted: the re-fracture was caused by the premature hardware removal, and following the planned three-month delay with imaging confirmation would have made the re-fracture far less likely.

The analysis is a clean application of the Clements v Clements but-for test:

• The alleged negligence (premature removal) is a specific identifiable act
• The harm (re-fracture) has a known biomechanical relationship to that act
• Expert evidence establishes that absence of the negligence (delay until proper healing) would have made the harm far less likely
• This satisfies but-for causation on a balance of probabilities

Compare with the causation defeats in the cluster:

• Knight v Lawson: SOC breach but no causation
• Tripp v Ross: delayed cancer diagnosis didn’t cause death
• Hanson-Tasker v Ewart: competing experts displaced Snell inference
• Bendah v Fleming: AFE defeated causation

What distinguishes Kotorashvili is the relatively direct biomechanical relationship between the negligent act (premature removal) and the harm (re-fracture). Where the causal pathway is direct and the relevant expert evidence is uncontested, causation analysis is straightforward. Where the pathway is mediated by complex disease processes (cancer biology, sepsis evolution, brain injury physiology), causation analysis becomes far more difficult.

Doctrinal lessons

The case stands for several propositions.

Documented treatment plans become evidence of the standard. Where a physician contemporaneously documents a treatment plan, the plan operates as evidence of what the physician’s reasonable practice called for. Deviation from the documented plan requires explanation.

Mid-treatment changes engage informed consent. Reibl v Hughes addresses initial consent. Mid-treatment changes that materially depart from the originally consented plan engage the informed consent framework anew. The patient is entitled to know that the plan has changed and to consent to the modified approach.

Administrative scheduling is not clinical reassessment. Procedures should be performed because the clinical judgment supports them at the time, not because they are on the calendar. Physicians should actively reassess the underlying clinical reasoning before any elective procedure and document the reassessment if circumstances have changed.

Causation can be straightforward where the biomechanics are direct. Where the negligent act has a direct biomechanical relationship to the alleged harm (premature support withdrawal causing structural failure), and expert evidence establishes the relationship, Clements v Clements but-for analysis is clean. The complicating factors in many malpractice cases (competing disease processes, multiple potential causes, complex pathophysiology) may not be present.

Damages can be modest even where liability is clear. $35,000 reflects real harm — re-fracture, prolonged recovery, third surgery, temporary functional limitation — without long-term residual impact. The damages quantum tracks the actual harm; liability findings do not produce large damages awards where the underlying injury was time-limited.

Multiple liability grounds reinforce each other. SOC breach plus informed consent failure plus established causation. Each is independently sufficient for a finding of liability; together they make the case overwhelming.

Why this case matters

For prospective clients. Kotorashvili illustrates what successful malpractice cases look like. The features are: clear contemporaneous documentation that the deviation contradicts; expert evidence supporting both standard of care and causation; harm that flows directly from the alleged negligence. Where these features are present, plaintiff outcomes become realistic. Where they are not, the case is unlikely to succeed regardless of the strength of the patient’s subjective sense that something went wrong. For more on the realistic evaluation of malpractice claims, see Suing for Medical Malpractice in Ontario: What You Need to Know and Six Common Misunderstandings About Medical Malpractice.

For plaintiff counsel. The case is a useful precedent and roadmap. The “deviation from own treatment plan” framework is a powerful tool where the fact pattern supports it. The mid-treatment informed consent angle should be considered alongside the SOC analysis. The administrative-clinical workflow gap can produce liability where the fact pattern shows the procedure was scheduled rather than clinically reassessed.

For defence counsel. The case is a reminder of the importance of contemporaneous documentation supporting clinical decision-making. Deviations from documented plans should themselves be documented at the time, with the clinical reasoning recorded. Patient consent for mid-treatment changes should be obtained and documented. Administrative scheduling should not be relied on as a substitute for active clinical reassessment.

For practising physicians (across specialties, not just orthopaedics). The operational lessons translate broadly. Document treatment plans clearly. If circumstances change, document the change and the reasoning. Confirm clinical appropriateness before each elective procedure. Obtain renewed consent where the planned approach has materially changed. The administrative system serves the clinical judgment; do not let it replace it.

For more on Ontario surgical malpractice generally, see Surgical Error Lawyer in Toronto. For more on Ontario informed consent practice specifically, see the cases linked in the informed consent cluster section above.

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Decision Date: March 13, 2024

Jurisdiction: Ontario Superior Court of Justice

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

Outcome: Plaintiff successful on standard of care and informed consent; $35,000 in general damages.

Key authorities: Reibl v Hughes, [1980] 2 SCR 880 (informed consent framework); Clements v Clements, 2012 SCC 32 (but-for causation test); Wilson v Swanson, [1956] SCR 804; Crits v Sylvester, [1956] OR 132 (CA), aff’d [1956] SCR 991 (standard of care framework); ter Neuzen v Korn, [1995] 3 SCR 674 (expert evidence requirement)