Paquette v. Giuffre, 2011 ABQB 425

Court of Queen ’ s Bench of Alberta Citation: Paquette v. Giuffre, 2011ABQB 425 Date: 20110706 Docket: 0003 03064 Registry: Edmonton Between: Lorrianne Paquette and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Martin Giuffre and Capital Health Authority operating a hospital known as the Royal Alexandra Hospital Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Jerke _______________________________________________________ Introduction [ 1 ] On February 16, 1999, Dr. Giuffre surgically removed a ganglion from Ms.

Pacquette’s right wrist. Post-operatively, she experienced swelling, bruising, numbness and tingling, pain, and a reduction in the range of movement of her wrist. [ 2 ] As of the date of Trial, Ms. Paquette continues to have a loss of range of movement in the wrist. She experiences pain if she pushes the range of movement or if she uses the right wrist for an extended period of time. [ 3 ] It was admitted that Dr. Giuffre owed Ms. Paquette a duty of care, and no issue was raised concerning Dr. Giuffre’s actual

performance of the surgery. The Trial focussed on the advice given to Ms. Paquette before the surgery, and the course of her recovery. [ 4 ] Ms. Paquette and Dr. Giuffre both gave evidence. Dr. Lloyd was qualified as a hand surgeon to give expert opinion evidence and testified on behalf of Ms. Paquette. Dr. Haugrud was qualified as a plastic surgeon to give expert opinion evidence on behalf of Dr. Giuffre. Facts and Issues [ 5 ] Most of the facts relevant to this decision were agreed to by the parties.

Determinations on facts in dispute will be made in the discussion of the issues to which they are relevant. [ 6 ] In December of 1998, Ms. Paquette noticed bumps about the size of a dime on both of her wrists. At about the same time, she began to experience discomfort when she extended or put pressure on her wrists during physical activities, such as doing pushups. [ 7 ] She consulted with her family physician who examined the bumps and identified them as ganglions. He referred Ms. Paquette to Dr. Giuffre. Dr.

Giuffre is a Plastic Surgeon and has conducted numerous ganglion surgeries. [ 8 ] On February 1, 1999, Dr. Giuffre met with Ms. Paquette. Dr. Giuffre looked at the bumps on her wrists, touched them and rolled them between his thumbs. Dr. Giuffre explained the nature of a ganglion. He told her that there was a small chance the ganglion could return. He explained that the excision of a ganglion was a simple ten minute out patient procedure. Dr. Giuffre drew on Ms. Paquette’s wrists, showing where he would make the incision. [ 9 ] Ms.

Paquette elected to proceed with surgery on the right wrist, and the surgery was performed by Dr. Giuffre on February 16, 1999. There were no complications during the surgery. [ 10 ] On February 17 and 18, 1999, Ms. Paquette saw her family doctor because she was experiencing pain and swelling. On February 22, 1999, Ms. Paquette attended the Emergency Department of the Wetaskiwin Hospital with complaints about her right wrist and hand. [ 11 ] Ms. Paquette saw Dr. Giuffre on March 12, 1999, and he referred her for physiotherapy. [ 12 ] Ms. Paquette started physiotherapy on March 17, 1999.

Her right wrist and hand improved but the range of motion in her right wrist remains somewhat reduced and she continues to experience pain when the wrist is extended or she puts pressure on it. She has greater discomfort than she had prior to surgery. [ 13 ] As to her left wrist, the bump which was there at the time of her surgery has since disappeared, probably about five years ago. Other than her right wrist complaints, Ms. Paquette describes herself as completely healthy. [ 14 ] The issues for determination are: 1. Did Ms. Paquette give her informed consent to the surgery? 2. Was Dr.

Giuffre’s conduct the cause of the injuries suffered by Ms. Paquette? 3. Was Ms. Paquette contributorily negligent for failing to take proper steps in the recovery from the surgery? Issue No. 1

Did Ms. Paquette give her informed consent to the surgery? [15] The authorities have established two areas of inquiry underlying the analysis of whether a patient has provided informedconsent to a treatment: Reibl v Hughes, (SCC), [1980] 2 SCR 880, 114 DLR (3d) 1; Hopp v Lepp (SCC), [1980] 2 SCR 192, 13 CCLT 66; Arndt v Smith, (SCC), [1997] 2 SCR 539, [1997] 8 WWR 303. Those areasare as follows: a. The Surgeon’s duty to disclose. b.

Whether a reasonable patient in the circumstances of the Plaintiff would have consented to the surgery. 1.1 The Duty of Disclosure [16] A physician has a duty to inform the patient of the nature of a proposed procedure, it’s gravity, any material risks, and anyspecial or unusual risks associated with the procedure. A risk is material if it can be reasonably expected to effect the patient’s decision toundergo a particular procedure.

The scope of the duty of disclosure and whether it has been breached are matters that must be decided inrelation to the circumstances of each case. [17] In Rhine v Millan, 2000 ABQB 212, 263 AR 201, Ritter J. (as he then was) reviewed the authorities and summarized theprinciples to apply in dealing with the question of the duty of disclosure. These include (citations omitted): 21 The doctor/patient relationship requires the doctor to disclose to a patient all material risks of procedures or treatments beingrecommended.

In determining whether this has been accomplished, the Court should adopt a patient-centred approach to defining thosematerial risks. The test includes consideration of what the patient would have found relevant, as well as what the medical professiondeems material. ... 22 In determining whether facts are material necessitating disclosure, the test is what the patient would have wanted to know. ... 23 ... (

a) It is understood that the relationship of physician and patient gives rise to a duty to make disclosure to the patient of all material riskattending the procedure or treatment that is being recommended; (

b) The materiality of non-disclosure of certain risks is a matter for the trier of fact and the question of whether a risk is material andwhether there has been a breach of duty of disclosure are not to be determined solely by professional standards of physicians. Theprofessional standards are a factor to be considered, but so is other evidence including evidence from the patient and his or her family;(See Martin v Capital Health Authority, 2008 ABCA 161, 432 AR 165) (

c) In obtaining the consent of a patient to a particular treatment or procedure, the physician should answer any specific questions posedby the patient, as well as disclosing the nature of all material risks, without relying on the patient to ask questions to elicit thisinformation; (

d) The scope of disclosure is determined in relation to the circumstances of each particular case; (

e) The emotional condition of the patient and his apprehension and reluctance to undergo treatment may, in certain cases, justify thesurgeon withholding or generalizing information about which he or she would otherwise be required to be more specific; (

f) Even if a certain risk is a mere possibility, which ordinarily need not be disclosed, where occurrence brings with it seriousconsequences, it should be regarded as a material risk requiring disclosure; and

(

g) Material risks encompass those risks which the doctor knew or ought to have known a reasonable person in the patient’s positionwould consider in deciding whether to undergo a procedure or treatment. 24 The doctor should answer any questions put by the patient.

If the risk is rare, but may have serious or life-threatening consequences,it may still constitute a material risk. ... 25 The language used by the doctor should be such that a patient can easily understand it. ... [18] In Seney v Crooks, 1998 ABCA 316 at para. 55, 166 DLR (4th) 337, for the majority, Conrad J. stated the duty to inform apatient includes the duty to inform of alternative treatments as well as the risks of treatments.

A doctor also has a duty to disclose theavailable alternatives to the proposed treatment and the material risks associated with those alternatives. [19] Similarly in Zimmer v Ringrose, 1981 ABCA 60 , [1981] 124 DLR (3d) 215 at para. 16, 28 AR 26, Prowse J. stated, ...the physician or surgeon should also discuss the benefits to be gained from the recommended treatment or operation, the advantagesand disadvantages associated with alternative procedures and the consequences of foregoing treatment. [20] The Defendant stated that in obtaining informed consent, Dr. Giuffre advised Ms. Paquette of the following: A.

There was a risk of recurrence of the ganglion; B. She may experience temporary numbness over the site of the incision; C. The incision would leave a scar, which would initially appear red, fade to pink and over the period of approximately a year,become white; D. The hand may be very uncomfortable, bruised and swollen; and E. To avoid stiffness, she must move her hand, wrist, and fingers following surgery. [21] The Defendant argued that there were no further or additional material risks which ought to have been disclosed during theinformed consent discussion. [22] Dr. Haugrud did not disagree with Dr.

Lloyd that options for treatment for dorsal wrist ganglions include observation (notreatment), closed rupture, aspiration, injection of corticosteroid, splinting, wrist arthroscopy and surgical removal. Splinting is mostoften used as a temporary method to alleviate some symptoms relating to ganglions.

Arthroscopy is currently most often used as aninvestigative tool rather than a treatment option. [23] The evidence established that closed rupture by direct pressure is painful and has a high rate for recurrence of ganglion(perhaps in the range of 80 to 85%) because the ganglion tissue is not removed and therefore has the potential to redevelop. Closedrupture is no longer a recommended treatment option. Aspiration or injection of corticosteroid, while accepted treatment options, havesimilar high recurrence rates as the ganglion tissue is not removed.

If the aim is to get rid of the ganglion, surgery is the best option, asthe recurrence rate is lower for ganglions that have been surgically removed as compared to other treatments. Observation (no treatment)is also an accepted treatment option. [24] Dr. Lloyd’s evidence was that the risks of surgical removal of dorsal wrist ganglions include the risk of all surgeries(bleeding, infection and reactions to anaesthetic) and the specific risks of: a. tenderness and pain in the wrist and hand;

b. stiffness and weakness in the wrist and hand; c. limited range of motion; d. neuroma formation; e. damage to the scapholunate interosseous ligament; f. reflex sympathetic dystrophy (RSD), now known as complex regional pain syndrome; and g. recurrence of ganglion after surgery. [ 25 ] Dr.

Lloyd testified that while tenderness, pain, stiffness, weakness and limited range of motion are usually temporary, they can be permanent. [ 26 ] While neuroma formation and damage to the scapholunate interosseous ligament may be risks of some ganglion surgeries, the evidence here leads to the conclusion that those risks would not be encountered in Ms. Paquette’s circumstance unless the surgeon departed from the usual standard of care, a result which would lead to an inquiry different from the one in this case. Ms.

Paquette does not suffer from neuroma formation or damage to the scapholunate interosseous ligament. I find that they are not material risks which Dr. Giuffre was obligated to disclose in the circumstances of this case. [ 27 ] On the other hand, the formation of scar tissue within the wrist is a natural part of the healing process and is normal after ganglion surgery. Dr. Giuffre testified at Examination for Discovery that deep scarring is inevitable and confirmed that individuals produce different amounts of scar tissue. [ 28 ] None of the witnesses disagreed that scar tissue can lead to stiffness of the wrist.

As it matures, scar tissue shrinks, which leads to tightness and may cause stiffness. Stiffness is a recognized consequence of ganglion surgery and post operative treatment stresses early motion, physical therapy if necessary, and the avoidance of restrictive bandages or casts beyond the first few operative days. [ 29 ] Dr. Giuffre testified that when he conducts ganglion surgery the risk of recurrence is approximately one in 100.

He testified that while surgery is part of the treatment protocol, the single most important thing after surgery is the management of the patient to ensure they regain the range of motion. Dr. Giuffre gave the following evidence: Q In some people, even if they move their wrist as advised by their physicians, they still may have some stiffness or pain resulting from the deep scarring; is that correct? A I guess, you know, it’s not typical, but anything is possible. Q So it can happen? A It can happen.

You can do surgery on any part of the body and people have ongoing lifelong discomfort in an area, and yet there’s no anatomical, physiological or clinical reason why they have pain. It’s not accountable. There’s just no specific reason why they do. [ 30 ] Dr. Haugrud agreed that some patients have ongoing problems and end up worse after ganglion surgery, although this is very rare. He reported that in Ms. Paquette’s case, surgery not only failed to alleviate the pain but left her with greater discomfort and stiffness than she had prior to the surgery.

He accepted the risk of increased discomfort and stiffness, but considered it an abnormal and highly unusual response to the surgery. He agreed that the appropriate treatment for persistent pain and stiffness following the surgery is physiotherapy. Dr. Haugrud opined that because the risk of increased discomfort and stiffness is so rare, it is not a risk that is required to be included in an informed consent discussion. [ 31 ] Dr. Haugrud estimated that approximately 80% of the patients seeing him opt to have the ganglion surgically removed. Dr.

Giuffre estimated that in his practice approximately 90% of the patients with symptomatic ganglion proceed to surgery. Dr. Lloyd testified that very frequently patients with ganglion decide not to proceed with this surgery, perhaps in the order of 50%.

[ 32 ] When Ms. Paquette consulted with Dr. Giuffre, the ganglions were not causing her any particular difficulties, but were uncomfortable when she extended or put pressure on her wrists. The ganglion surgery was not necessary to Ms. Paquette’s health. Alternate treatments including the passage of time could have been employed, as they were with respect to her left wrist. [ 33 ] I find that observation (no treatment), aspiration, injection of corticosteriod and surgical removal are accepted options for treatment for dorsal wrist ganglions. Dr.

Giuffre had a duty to disclose these available alternatives for treatment for dorsal wrist ganglions and the material risks associated with them including the advantages, disadvantages and consequences of foregoing treatment. [ 34 ] In light of the inevitability of the formation of deep scar tissue, the high probability of early stiffness, pain and restriction of range of motion, the recognized post-surgical treatment protocol and the more uncommon occurrence of long term pain, stiffness and loss of range of motion, I find that any reasonable person contemplating ganglion surgery would want to know of these risks.

I find that the risks of permanent pain, stiffness, tenderness and limited range of motion are material risks in the circumstances of Ms. Paquette’s ganglion surgery. Dr. Giuffre had a duty to disclose them to her. [ 35 ] While RSD is a risk of ganglion surgery, that risk is extremely remote. The condition resulting from RSD is profound and includes permanent wrist and hand tenderness, pain, stiffness, weakness and loss of range of motion. Assuming disclosure is otherwise complete, I find that Dr. Giuffre did not have the duty to specifically disclose the risk of RSD. 1.2 Did Dr.

Giuffre breach his duty of disclosure? [ 36 ] Dr. Giuffre acknowledged that it was his responsibility to advise Ms. Paquette of the risks of ganglion surgery. Any such advice was given on February 1, 1999. [ 37 ] Dr. Giuffre has no memory of Ms. Paquette or of treating her, and relies on his standard practice with respect to such consultations and surgical operations. That standard practice included reviewing the patient’s Consent immediately prior to commencing the ganglion surgery.

The February 16, 1999, Consent Form includes the following: The nature and anticipated effects of this Procedure, including the significant risks and alternatives available, have been explained to me by Dr. __________. [ 38 ] Ms. Paquette recalls Dr. Giuffre telling her at the February 1, 1999 appointment that surgery was the best way to permanently remove her ganglion, but that there’s a small chance that the ganglion could return, following surgical removal, which would put her back to where she was prior to surgery. She was told that she may experience pain for up to a year, and that she would have a scar.

She recalls Dr. Giuffre telling her that there really were no concerns and that she would be able to use her hands shortly after the surgery, but that movement could cause discomfort. She does not recall being told that the surgery would cause internal scar tissue, that it could cause swelling, that nerves could be stuck in the scar tissue and cause pain after surgery, that there was an unusual risk that she might be made worse by the surgery, that there was a rare risk the ligament could be damaged, or that there was a rare risk that she could develop RSD. [ 39 ] Dr.

Giuffre’s notes concerning the February 1, 1999 consultation are brief and indicate “Full discussion/risk”. He testified, however, that his standard practice is to advise a patient of the following: a. A ganglion is a benign cyst. b. Surgery is the only way to get rid of a ganglion permanently. c. He will have to extract the ganglion from right inside the wrist joint. d. There is a very small risk of recurrence. e. The patient could experience temporary numbness over the site of the incision. f.

The incision would leave a scar which would initially appear red, fade to pink, and over the period of approximately a year become white.

g. Because the surgery goes into the wrist joint there will be scar tissue, so if one did not move the wrist there will be stiffness. h. The hand should be moved even while the dressing is on. i. The dressing is to be removed in two days at which time the patient should continue with normal range of motion with the hand but avoid doing anything aggressive or strenuous with the hand for four weeks. [ 40 ] I accept that Dr. Giuffre followed his standard practice, but I find that Dr. Giuffre did not advise Ms.

Paquette of treatment options including observation (no treatment), aspiration, or injection of corticosteroid. All he stated was that if he did not remove the root of the ganglion it would come back. He also did not advise her of specific risks of the surgery, including the risks of permanent tenderness and pain in the wrist and hand, permanent stiffness and weakness in the wrist and hand, and permanent limited range of motion. She was simply given the choice of whether to proceed with surgery if the condition was bothering her enough. [ 41 ] I find that Dr. Giuffre breached his duty of disclosure to Ms.

Paquette as he failed to give Ms. Paquette sufficient information to make an informed decision and thus give her informed consent to the surgical removal of the ganglion. 1.3 Would a reasonable properly informed patient have consented to this surgery? [ 42 ] The Defendant’s argument is that the expert evidence demonstrates that those who seek a specialist’s opinion regarding a ganglion fall into two categories: A.

Those patients who, when re-assured that the cyst is a ganglion and not cancer or some other malignancy, decline suggested treatment (based on their aversion to surgery, absence of symptoms, lack of concern with the appearance of the ganglion, or more likely a combination of these factors). B. Those patients who have no general aversion to surgery, are concerned with the physical discomfort or appearance associated with the ganglion, and therefore chose to have it removed. [ 43 ] On my review of the evidence, I am not satisfied that the evidence brings me to the conclusion proposed by the Defendant.

At best, various perspectives of the experts and Dr. Giuffre form part of the evidence I must consider in making a determination on this question. One obvious factor bearing on the conclusion proposed by the Defendant, and on which there was no evidence before me, is how many individuals with ganglions decline not only surgery but even a referral to a hand or plastic surgeon. [ 44 ] At the time of the surgery Ms. Paquette was a healthy 29 year old single mother, and the primary caregiver for her two young daughters, then six and three years old.

She was living with her parents, but was responsible for most of the homemaking functions in the household. She was working in the Wetaskiwin area with plans to become a flight attendant. [ 45 ] The ganglions were not causing Ms. Paquette any particular difficulties but were uncomfortable when she extended or put pressure on her wrists. She stated that she would have never proceeded with this surgery if she was aware there was a risk of permanent discomfort. [ 46 ] Ms. Paquette had ganglions on both wrists.

She is left-hand dominant when writing and eating so she elected to proceed with surgery on the right wrist. She consulted with her family physician on the two consecutive days after surgery because of concerns with pain, swelling and bruising. She attended at the Emergency Room a few days later because of concerns about swelling and bruising. She consulted with Dr. Giuffre about three and a half weeks after the surgery because of right wrist stiffness and pain. I find that Ms.

Paquette is a cautious person, concerned about her health, who did not take the decision to have surgery lightly, and one who would have wanted to know the treatment options and risks. [ 47 ] I have no doubt that if Ms. Paquette had been properly informed of the advantages and disadvantages associated with the alternative procedures, the consequences and prognosis of foregoing treatment, the risks associated with the operation, and in particular the possibility of permanent pain, stiffness, tenderness and loss of range of motion, she would have declined the surgery.

[48] I find that observation (no treatment) is a recognized treatment option for ganglions and many people who are referred tosurgeons with ganglions elect not to proceed with ganglion surgery. [49] When there is a breach of the duty of disclosure, the modified objective test is applied. The test is whether a reasonableperson in the patient’s particular position would have consented to the treatment if properly informed. Reibl v Hughes and Arnt v Smith,supra, at para. 15. [50] I find that the modified objective test is satisfied in the circumstances of this case.

A reasonable person in the position of Ms.Paquette would not have agreed to the surgical procedure if she had been advised of all of the material risks of proceeding with thesurgical excision of the ganglion and the consequences of foregoing the operation. Issue No. 2 Was Dr. Giuffre’s conduct the cause of the injury suffered by Ms. Paquette? [51] Dr. Lloyd stated in his report: Given that Ms.

Paquette had nearly normal range of motion in her right wrist and hand and only had discomfort in that wrist and hand atthe extremes of dorsiflexion of the hand (such as while doing push-ups) before the surgery performed by Dr. Giuffre on February 16,1999 (to remove her right dorsal wrist ganglion), it is my opinion on a balance of probabilities (that is, more likely than not) that thatsurgery caused the pain, tenderness, stiffness, and limited range of motion that Ms. Paquette has had in her right wrist and hand since thesurgery. [52] Dr. Haugrud stated in his Report: 7(

a) The cause of the stiffness is in part related to scar tissue from the surgical procedure. When an incision is made and carried downinto the soft tissues the body heals by producing scar tissue. 7(

b) Swelling is associated with any operation or injury. That swelling can produce a thickening and stiffening of normal structuresaround moving parts. The thickening and subsequent production of scar tissue within those normal structures can lead to stiffness. Ms.Paquette developed stiffness partly due to the scar from the incision but more significantly from scar tissue related to swelling andimmobility. [53] As to the link between the surgery and Ms. Paquette’s current condition, Dr. Haugrud stated in his Rebuttal Report: Based on my review of the records, Ms.

Paquette was experiencing pain prior to the surgery. However, in Ms. Paquette’s case thesurgery not only failed to alleviate the pain, but left her with greater discomfort and stiffness than she had prior to the surgery. [54] Dr. Haugrud raised another possibility for Ms. Paquette’s residual problems: 7(

d) It is possible there may have been other pathology present in her wrist which would have contributed to the pain, rather than theganglion being the sole cause. Ms. Paquette has a history of tendonitis and some of her pain may still be attributable to other problems inher wrist, though there is no documentation of this in the post-operative records. [55] The general but not conclusive test for causation is the “but for” test which requires the Plaintiff to show that injury would not have occurred but for the negligence of the Defendant Athey v Leonati, (SCC), [1996] 3 SCR 458, 140 DLR (4th) 235.

[ 56 ] Having reviewed all of the evidence, it is clear that Ms. Paquette had no symptoms prior to the onset of the ganglion, and there is no reason to conclude that a minor wrist injury suffered by Ms. Paquette when she was 14 years old, which according to Ms. Paquette had long since resolved, could in any way be linked to Ms. Paquette’s current complaints. [ 57 ] I have no hesitation in finding as a fact that Ms. Paquette would not have the pain, tenderness, stiffness and limited range of motion that she has in her right wrist and hand but for the surgery.

Accordingly, I conclude that the causal requirement relating to Ms. Paquette’s claim has been established on the balance of probabilities. [ 58 ] The Defendant argued that even if the informed consent discussion is inadequate, the question becomes whether the additional risks not discussed actually occurred. The Defendant argued that if none of the undisclosed risks actually occur, there is no breach by the surgeon. [ 59 ] I disagree. I am of the view that the appropriate method of analysis is to use the approach taken by our Court of Appeal in Seney v Crooks , supra, at para. 18 , and to address three issues: 1.

Did the surgeon breach his duty to disclose to the patient? 2. Would a reasonable patient in the circumstances of the Plaintiff, have consented to the surgery if there had been proper disclosure? 3. On a balance of probabilities, did the surgery cause the consequences experienced by the Plaintiff? [ 60 ] Regardless, even if the Defendant’s argument was accepted, Dr. Giuffre would still be liable, for the consequences Ms. Paquette experienced from the ganglion surgery are the very risks which I have found ought to have been disclosed to her, and were not. Issue No. 3 Was Ms.

Paquette contributorily negligent for failing to take proper steps in the recovery from the surgery? [ 61 ] The Defendant argues that Ms. Paquette should be found contributorily negligent. The onus of proving she is contributiorily negligent is borne by the Defendant. [ 62 ] The surgery was performed on February 16, 1999. Dr. Giuffre testified that it is his standard practice, while he is closing the incision, to advise the patient of a number of points: 1. He’s applying a light dressing and the patient can remove it himself or herself in two days. 2. The hand should be kept elevated for the first 24 hours. 3.

It’s important to move the hand even while the dressing is on, and if the patient doesn’t, the hand will get stiff. 4. When the dressing is off, the patient will notice some swelling and bruising, but it’s very important to move the hand as much as can be tolerated with pain, or it will get stiff. 5. It is fine to shower after the dressing has been removed, and to do normal hand activities during the period of recovery. 6.

Because the hand will be somewhat stiff for approximately four weeks, the patient should not engage in any aggressive wrist or strenuous wrist activities. [ 63 ] On February 17 and 18, 1999, Ms. Paquette saw her family doctor because she was experiencing pain in her wrist, especially

if she moved it, and swelling. Her family doctor told to keep her hand elevated, which she did for eleven to 14 days after the surgery, during which time she used her left hand to accommodate continued elevation of her right hand. [ 64 ] Ms. Paquette testified that she continued to move her fingers, and could only move her hand with serious pain. For about the first eleven days following surgery the Plaintiff tried not to use her right hand at work, and worked with her right hand elevated. [ 65 ] On February 22, 1999, Ms.

Paquette attended the Emergency Department of the Wetaskiwin Hospital with complaints about her right wrist and hand. The Admission Record indicates that Ms. Paquette’s right hand; remains edematous [swollen] with bruised appearance at knuckles. [ 66 ] Ms. Paquette saw Dr. Giuffre on March 12, 1999. She had right wrist stiffness and hand pain, specifically over the second metacarpal. Dr. Giuffre referred Ms. Paquette for physical therapy, either at the Royal Alexander Hospital or with another physiotherapist, who was to obtain specific instructions from the Royal Alexander Hospital therapists. Dr.

Giuffre also invited Ms. Paquette to return to see him if she had ongoing problems (on a “PRN” or “as needed” basis). [ 67 ] On March 17, 1999, Ms. Paquette started physiotherapy at the Wetaskiwin Hospital. She attended physiotherapy 12 times and the treatments she received included wax, range of motion exercises, contrast baths, passive stretches, and scar massage. She was also given a splint by an occupational therapist, and did some physiotherapy activities at home. These included the use of a stress ball, massage of her fingers, hand and scar area, and contrast baths.

She wore the splint daily for a fairly lengthy period of time for a few weeks, and understood the splint was designed to pull her right hand back for the purpose of improving her range of motion. [ 68 ] Ms. Paquette’s right wrist and hand improved, but the range of motion in her right wrist is still somewhat reduced, and she continues to experience pain when the wrist is extended or she puts pressure on it. [ 69 ] I find that Ms. Paquette followed her family physician’s initial advice to consult with a specialist and, post-surgically, followed his advice to keep her hand elevated to reduce swelling.

She also followed Dr. Giuffre’s advice to undertake physiotherapy, and she followed the physiotherapist’s course of treatment including the use of the splint. [ 70 ] Frequent mention was made at trial that Ms. Paquette failed to follow Dr. Giuffre’s instructions to move her hand and fingers, and resume her usual hand activity as much as could be tolerated with pain. Counsel for Dr. Giuffre suggested that contrary to those instructions, Ms. Paquette essentially kept her hand and wrist elevated and immobilized for eleven to fourteen days after the surgery.

The evidence is not consistent with that conclusion. [ 71 ] Ms. Paquette testified that when she saw Dr. Hendrix on February 17 th and 18 th , she was experiencing pain in her wrist especially if she moved it . She was also experiencing swelling at that time and was told to keep her hand elevated, which she did for eleven to 14 days after the surgery. Dr. Hendrix told her and she did continue to move her fingers , and he encouraged her to use her hand as soon as possible. [ 72 ] Elevation is the appropriate treatment for post-surgical swelling. [ 73 ] Ms. Paquette attended a follow-up consultation with Dr.

Giuffre on March 12, and followed his recommendation to obtain physiotherapy. She fully participated in the physiotherapy program, including treatments at the physiotherapist’s office and treatments at home. [ 74 ] I find that Ms. Paquette encountered significant swelling and bruising following the ganglion surgery. She sought medical advice, and followed that medical advice, which was essentially to keep her hand elevated to reduce the swelling. She was told to move her hand and fingers as much as can be tolerated with pain, and she did so. She also participated in a physiotherapy program as recommended.

All of those actions are consistent with Ms. Paquette taking reasonable care of herself.

[ 75 ] The evidence fails to establish that Ms. Paquette failed to follow Dr. Giuffre’s instructions post-surgery, or took steps or failed to take steps in which she did not take reasonable care of herself. [ 76 ] I find that the Defendant has failed to show that Ms. Paquette was contributorily negligent. Conclusion [ 77 ] I find Dr. Giuffre breached his duty of disclosure to Ms. Paquette and was thereby negligent. A reasonable person in the position of Ms. Paquette would have wanted to be properly advised prior to agreeing to the ganglion surgery. The surgery caused Ms.

Paquette’s permanent pain, stiffness and loss of range of motion. Dr. Giuffre is liable to compensate her for damages. [ 78 ] The parties advised that they have agreed on the quantum of damages. [ 79 ] Costs may be spoken to. Heard on the 2 nd day of May, 2011 to the 5 th day of May, 2011. Dated at the City of Lethbridge, Alberta this 4 th day of July, 2011 R.A. Jerke J.C.Q.B.A. Appearances: Alan R. Gray Weir Bowen LLP for the Plaintiffs Barbara J. Stratton Bennett Jones LLP for the Defendants