Skinner v Matheson, 2017 ABQB 342

Court of Queen’s Bench of Alberta Citation: Skinner v Matheson, 2017 ABQB 342 Date: 20170525 Docket: 1103 13416 Registry: Edmonton Between: Gregory Skinner Plaintiff - and - J. Douglas Matheson and Alberta Health Services, Owning and Operated the Sturgeon Community Hospital Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.E. Topolniski _______________________________________________________ I. Introduction . 2 II. Issues . 3 IV. Background . 5 A. Mr. Skinner 5 B. Chronology . 5 V. Was Dr. Matheson Negligent By Failing to Review the Pre-Surgery Ultrasound . 6 A. What is Negligence? . 7

B. Did Dr. Matheson Fail to Examine the Ultrasound? . 8 1. Evidence of Standard Practices . 8 2. Medical Records . 8 3. Witness Credibility . 10 4. Analysis and Findings of Fact 10 C. What is the Relevant Standard of Care? . 10 1. Assessment and Weight of Expert Evidence in Medical Malpractice Cases . 11 2. What is the Standard of Care in Examining Ultrasound Reports Prior to an Umbilical Hernia Repair Operation? . 11 3. Did Dr. Matheson Breach his Standard of Care? . 13 D. Did Dr. Matheson’s Negligence Cause the Second Surgery by Failing to Repair One of the Two Initial Hernias? . 14 1. Dr.

Matheson’s Observations . 16 2. Where Were The Hernias Located? . 17 3. The Types of Hernias . 18 4. Did Dr. Matheson Repair Both Hernias? . 19 VI. Was Dr. Matheson Negligent if He Only Repaired One of Two Hernias . 21 VII. Conclusion . 22 VIII. Costs . 22 I. Introduction [ 1 ] This medical malpractice case is about whether a surgeon was negligent in conducting a surgical repair of two hernias, and that error then exposed his patient to a second unnecessary surgery. Somewhat unusual, the facts are not terribly complicated. [ 2 ] In the summer of 2008, Dr.

Matheson performed a simple umbilical (interchangeably termed an abdominal) hernia repair on Mr. Skinner, accessing the site through Mr. Skinner’s belly button, which is medically termed the umbilicus. [ 3 ] Prior to that surgery an ultrasound, which was ordered and noted by Mr. Skinner’s family doctor in his referral letter, showed that Mr. Skinner had two anterior abdominal wall hernias in close proximity to one another: one larger (21x41mm), and one smaller (about 14mm). [ 4 ] The first surgery and Mr. Skinner’s recovery were uneventful. Thirty three days later Mr. Skinner returned to his full time job.

After twice straining himself at work some six months later, Mr. Skinner’s symptoms returned. His family doctor ordered another ultrasound, which detected a small hernia in close proximity to the original repair site. Mr. Skinner was referred back to Dr. Matheson, who performed a second hernia repair in early September 2009. This time Dr. Matheson accessed the site through an incision and used a mesh bag to contain the hernia. Again, the surgery and recovery were uneventful, and Mr. Skinner returned to his same job, full time. He has been ‘hernia free’ since. [ 5 ] In a post-operative report to Mr.

Skinner’s family doctor, Dr. Matheson posited whether he missed repairing the smaller hernia in the first surgery, or whether Mr. Skinner had torn the earlier repair. As matters unfolded, Dr. Matheson learned from reports prepared by experts hired by his legal team that, because of the smaller hernia’s size and proximity to the large one, the smaller hernia was likely repaired in the first surgery. Regardless of whether Dr. Matheson had been unaware of the second hernia, he had most probably repaired it by default. This realization, coined a ‘Eureka moment’ at the trial, led Dr.

Matheson to abandon his earlier “musings” that he had missed the small hernia in the first surgery, and then had to instead repair it in 2009. [ 6 ] Mr. Skinner’s view is that liability is clear-cut given Dr. Matheson’s reports saying he may have missed repairing the smaller hernia in the first surgery. In contrast, Dr. Matheson considers his “musings” about what transpired irrelevant since the evidence supports finding it more probable than not that he had actually repaired the smaller hernia in the 2008 surgery.

The subsequent surgery was most probably necessitated by a new and unrelated defect. [ 7 ] The trial proceeded against Dr. Matheson only, and the parties agree on several key issues. The quantum of damages if Dr. Matheson was negligent and caused the second surgery has been settled. Dr. Matheson admits he had a duty of care to his patient. The two issues that remain are whether: 1. Dr. Matheson was negligent, and 2. Dr. Matheson’s negligence caused Mr.

Skinner to need the second surgery? [ 8 ] Not surprisingly, there was a good deal of expert evidence led at the trial and the assessment of that evidence is significant.

One particular issue is what weight I should place on an expert witness of Mr. Skinner who has a family relationship to the law firm representing Mr. Skinner. Dr. Matheson acknowledges that this witness was both truthful and forthcoming, but sees the weight of his evidence impacted by virtue of the relationship. II. Issues [ 9 ] Medical negligence requires Mr. Skinner prove four steps on a balance of probabilities (E I Picard and G B Robertson, Legal Liability of Doctors and Hospitals in Canada , 4th ed (Toronto: Thompson Canadian Limited, 2007)): 1. Dr. Matheson owed Mr. Skinner a duty of care; 2. Dr.

Matheson breached the applicable standard of care; 3. Mr. Skinner suffered an injury or loss because he was required to have a second unnecessary surgery on September 2009; and 4. Dr. Matheson’s actions were the actual and legal cause of Mr.

Skinner requiring the September 2009 surgery. [ 10 ] Meyers v Moscovitz , 2005 ABCA 114 at para 2 , 251 DLR (4th), leave to appeal refused [2005] SCCA No 232 [“ Meyers ”] provides a succinct explanation of these four elements: A doctor may breach the appropriate standard of care when his or her conduct is measured against the standard of care of the reasonable doctor in the same circumstances. But the doctor is not liable unless the substandard conduct is found to have caused the patient's injury.

Causation is established when it is found that "but for" the doctor's substandard conduct the injury would not have occurred provided that the injury was foreseeable to the reasonable doctor in the same circumstances. The creation of a risk of injury or loss of a chance is not enough on which to found liability. [ 11 ] Dr. Matheson admits that he had a duty of care to his patient. [ 12 ] This is a useful point at which to organize the analysis the follows. Mr. Skinner had a second surgery on September 2009 to repair a hernia. That is the alleged injury. Mr.

Skinner advances essentially two separate alternative forms of negligence, Dr. Matheson was negligent: 1. when he failed to review the ultrasound prior to the 2008 surgery; and/or 2. when he conducted the first surgery and did not repair the smaller of the two hernias. [ 13 ] The standard of care for each alternative branch of the negligence issue is therefore: 1. Is it a breach of a surgeon’s standard of care to not make use of available and potentially useful medical diagnostic information? 2.

It is a breach of a surgeon’s standard of care to not completely repair multiple and known proximal hernias in a single operation when there is an opportunity to do so? [ 14 ] The end result of either path is the same: Dr. Matheson missed an opportunity to repair both original hernias. A second hernia remained, and that was the hernia that was repaired at the second and allegedly unnecessary surgery in 2009. [ 15 ] The unusual aspect of this matter is a question of causation: whether Dr.

Matheson’s negligence (if established) did not cause the need for the 2009 surgery because both initial hernias were repaired in the first surgery simply as a consequence of the manner in which that procedure would have been conducted. Dr. Matheson argues that I should approach causation as a variation of the classic restatement “but for the negligence, the injury would not have occurred” to say “but for an inadvertent successful first operation, the negligence would have led to the injury”. III. Judgment Synopsis [ 16 ] For the reasons that follow, I conclude that Dr.

Matheson breached his standard of care when he failed to review the first ultrasound; however Dr. Matheson is not liable in negligence for his failing as there is no consequential loss or injury to Mr. Skinner. I conclude that, on a balance of probabilities, Dr. Matheson must have repaired both hernias during the first surgery, whether he was aware of both hernias or not. In the result, Mr. Skinner has not established that Dr. Matheson was negligent and injured Mr. Skinner. Mr. Skinner’s claim therefore must fail. Dr. Matheson is entitled to costs. IV. Background A. Mr. Skinner [ 17 ] Mr.

Skinner was 46 years old when, in early 2008, he felt a burning pain in his abdomen and a lump at his belly button. His family doctor, Dr. Plimbley (“family doctor”), sent him for an abdominal ultrasound and later referred him to Dr. Matheson for a hernia repair. Mr. Skinner recalls his conversation at his initial appointment with Dr. Matheson, saying he had not mentioned that there were two hernias.

[ 18 ] A moderately obese smoker who was working at losing weight, thirty-three days post-surgery, Mr. Skinner returned to his same job as a long-distance trucker that entailed straining (lifting, pulling, and pushing pallet jacks) and heavy lifting (up to 2,000 to 3,000 pounds). When his symptoms returned about six months later after twice straining himself at work, his family doctor sent him for another ultrasound and then back to Dr. Matheson, who performed a second hernia repair. On cross-examination Mr. Skinner confirmed that at an appointment with Dr. Matheson before the second surgery, he was aware of Dr.

Matheson’s raising the possibility of his possibly missing a second hernia in the first surgery. B. Chronology [ 19 ] The relevant events occurred between 2008 and 2009. 2008 January 7 : Mr. Skinner sees his family doctor after experiencing a burning pain in his abdomen that “cut like a knife” and noting a lump at his belly button sticking out three-quarters of inch that popped out after he pushed it in. The family doctor refers Mr. Skinner for an abdominal ultrasound, which showed two anterior abdominal wall hernias (“first ultrasound”). April 28 : Dr. Matheson sees Mr.

Skinner and diagnoses a hernia measuring 2.5 cm in diameter on clinical examination. Matheson recommends a surgical repair. Mr. Skinner consents. April 29 : Dr. Matheson reports his findings and Mr. Skinner’s decision to undergo a surgical repair to Mr. Skinner’s family doctor. The report also touches upon his diagnosis of rectus diastasis (separation of the abdominal muscle often seen in overweight, aging men that is unrelated to, but can be mistaken for, a hernia). July 23 : Dr. Matheson performs the first surgery, an umbilical herniorrhaphy (“first surgery”). In part, Mr.

Matheson’s operative report states: The hernia sac was dissected away from the overlying dermis. Once the sac was fully mobilized, it was reduced. We sharply excised the edges of the attenuated fascia around the defect. We then used a series of 6 interrupted 1 Ethibond sutures taking wide generous bites to transversely close the defect. When this was done, there appeared to be a good, strong repair. 2009 March (unspecified dates) : Mr. Skinner suffers from burning in his periumbilical region while on a job in the USA when attempting to secure a load on his long haul truck with a ratcheting mechanism.

He again suffers from a more severe episode and has persistent discomfort in the periumbilical region after straining himself on the job. May 4 : Mr. Skinner sees his family doctor about his acute periumbilical pain and is sent for another ultrasound (“second ultrasound”). June 30 : The second ultrasound shows a hernia defect. August 21 : Dr. Matheson sees Mr. Skinner and recommends surgical repair of the hernia. Mr. Skinner consents. August 21 : Dr. Matheson reports to the family doctor saying: In reviewing his old records I see on the original ultrasound report from 2008 that they actually reported 2 hernias.

I wonder whether it is possible that I missed this smaller hernia at the time of the original repair. He [Mr. Skinner] however says that things all seemed good after the first operation. The most likely thing is that he has simply torn through the previous repair. Regardless, to fix this again I would propose to make a transverse incision just above his umbilicus to do a repair and to use mesh as part of the repair to further strengthen the area. I have cautioned him that whatever we do, extreme straining could reinjure the area in the long run. September 3 : Dr.

Matheson performs an abdominal incisional herniorrhaphy with marlex mesh by making an incision above the umbilicus and working his way around the area of the hernia sack (“second surgery”). The operative report (which Dr. Matheson firmly believes he dictated immediately after the surgery, but records the dictation and transcription in late November 2009) reads in part: Indications This 48 year-old long haul trucker had been referred with a hernia around the umbilical area that had been chronically incarcerated. He had originally had an ultrasound report in 2008 that showed two small hernias.

I thought I had repaired these at the initial repair, but think I repaired the umbilical one, and there was one slightly above that I probably did not see and this was put to further tension by the initial repair. This has gone on to further tear and he has further recurrence or worsening of the hernia in that area. He needs to come in and have a mesh repair now. Procedure We worked our way around the area of the hernia sac, which was above the umbilicus and cleared off the fascia circumferentially there. We had to go below the previously done hernia repair so we could get down to good fascia there. V. Was Dr.

Matheson Negligent By Failing to Review the Pre-Surgery Ultrasound

[20] I will first examine whether Dr. Matheson was negligent in not reviewing the pre-surgery ultrasound and therefore he wasunaware there was a second hernia. This involves three points: 1. Did Dr. Matheson not examine the ultrasound and therefore believed Mr. Skinner only had one umbilical hernia? 2. Does the standard of care of a surgeon require that the surgeon review information resources including a pre-surgery ultrasoundof an umbilical hernia? 3. Did Dr. Matheson breach his standard of care in relation to review of the pre-surgery ultrasound? A.

What is Negligence? [21] The test for whether a medical professional has breached their standard of care and is negligent is well established.

Aphysician shall have and apply the level of care, skill and knowledge of the average practitioner in his or her specialty: Ter Neuzen vKorn, (SCC), [1995] 3 SCR 674, 127 DLR (4th) 577 [“Ter Neuzen”]; St-Jean v Mercier, 2002 SCC 15 at para 52,[2002] 1 SCR 491; Wilson v Swanson, (SCC), [1956] SCR 804, 5 DLR (2d) 113 [“Wilson”]. [22] Sopinka J in Ter Neuzen identified central principles to evaluate alleged medical negligence: • a physician is to conduct his or her practice “... in accordance with the conduct of a prudent and diligent doctor in the samecircumstances.”: at 693; • “... when a doctor acts in accordance with a recognized and respectable practice of the profession, he or she will not be found to benegligent.”: at 695; • “... the conduct of physicians must be judged in the light of the knowledge that ought to have been reasonably possessed at thetime of the alleged act of negligence.”: at 693; and • “... courts should be careful not to rely upon the perfect vision afforded by hindsight.

In order to evaluate a particular exercise ofjudgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. ...”: at693, quoting Lapointe v Hôpital Le Gardeur, (SCC), [1992] 1 SCR 351 at 362-63, 90 DLR (4th) 7. [23] This means that Dr.

Matheson had to meet the standard of a reasonable general surgeon performing a hernia repair inEdmonton, Alberta in 2008. [24] A trial judge evaluates the standard of care of a professional with the assistance of expert evidence on the standards andpractices of that discipline: Stoddard v Montague, 2006 ABCA 109 at para 20, 412 AR 88. [25] An honest and intelligent error of judgment (made by a person possessed of and exercising the skill, knowledge and judgmentof the average practitioner in his or her specialty in the circumstances) will not satisfy the burden of proof: Wilson at 812; Cooper vFlood, 2015 ABQB 567 at para 141, aff’d 2016 ABCA 365, 47 Alta LR (6th) 8; Paniccia Estate v Toal, 2011 ABQB 326 at para 35,521 AR 34, aff’d 2012 ABCA 397, 539 AR 349. [26] Similarly, an unfavourable result is, in itself, not a basis to conclude a physician’s conduct was negligent: Wilson, at 815;Carlson v Sutherland, 2006 BCCA 214 at para 12, 225 BCAC 150. [27] As explained in Chasse v Evenson, 2006 ABQB 342 at para 65, 399 AR 121, the obligation to establish negligence falls tothe plaintiff: ... this does not mean there is no obligation on the defendant to adduce evidence.

If the plaintiff has made out a prima facie case ofnegligence, whether based on direct or circumstantial evidence, the defendant must present evidence sufficient to meet it, or the plaintiffwill succeed. If the evidence is equally consistent with there being negligence or not, Mr. Skinner will not have met his burden of proof and his claimwill fail: Clare v Ostolosky, (AB KB), [2001] AJ No 1492 (QL) at para 34, 300 AR 341 (Alta QB). B. Did Dr. Matheson Fail to Examine the Ultrasound? [28] The first question is simply factual. Did Dr. Matheson review the first ultrasound?

In evaluating this question I have two verydifferent kinds of evidence. Dr. Matheson did not remember much at all of his interactions with Mr. Skinner, but he had notes of what hehad done. Mr. Skinner, on the other hand, had memories of his hernias and the surgeries. 1. Evidence of Standard Practices [29] A critical issue for professionals such as physicians is that it is not uncommon that they have little to no memory of theirinteractions with a particular client. Instead, these professionals may attempt to reconstruct their activities on the basis of their notes orstandard operating procedures. Dr.

Matheson testified he simply has little memory of his care and treatment of Mr. Skinner. That warrants a brief review on how the law treats evidence of standard practices. [30] Evidence of a doctor’s invariable or standard practice is admissible and the court may make inferences from such evidence:Tetterington v Wiens, 1995 ABCA 102 at para 11, 165 AR 6, leave denied [1995] SCCA No 154; Belknap v Meakes (1989), (BC CA), 64 DLR (4th) 452, 1 CCLR (2d) 192 (BCCA); McLeod v Ridyard, 2001 BCSC 158 at paras 24-26, 33, 102

ACWS (3d) 1003. [31] The qualifications to inferences of this kind are that the evidence must be properly weighed, and the court must be mindfulthat standard practice evidence can be self-serving and crafted to meet “textbook practices”: Gemoto v Calgary Regional HealthAuthority, 2006 ABQB 740 at paras 364-365, 67 Alta LR (4th) 226. The question is whether the standard practices employed by Dr.Matheson were religiously followed. In this case, I have no such concerns, except for one point discussed below at

Part V(B)(4). 2. Medical Records [32] Medical records make up much of the evidence in this matter, and in fact in most medical malpractice lawsuits. As I havepreviously observed, Dr. Matheson has little memory of his interactions with Mr. Skinner. The records created to document Mr.Skinner’s treatment are therefore very important and so the role of these records as evidence is well established.

Certain documentaryevidence, including physicians’ and nurses’ notes, can be received in evidence as prima facie proof of their contents: Ares v Venner, (SCC), [1970] SCR 608 at 626, 14 DLR (3d) 4; R v O’Neil, 2012 ABCA 162 at para 44. Similarly, the absence ofinformation in a medical chart entry is a basis to infer that nothing was charted because nothing was done: Joseph Brant MemorialHospital v Koziol; Kolesar Estate v Joseph Brant Memorial Hospital, (SCC), [1978] 1 SCR 491, 77 DLR (3d) 161. [33] In Waap v Alberta, 2008 ABQB 544 at para 11, 95 Alta LR (4th) 167, Nation J provides a helpful

summary of the role ofmedical practitioners in the

interpretation of records they have prepared: Doctors are not required to keep their records in a particular style or form. The purpose of the notes is to record for the doctor the salientdetails, as a memory aid, to allow quality of care over time. Dr.

Langevin's records were certainly cryptic, and had his operative reportactually been dictated and typed, it may have done much to help the physicians and experts who were asked to review this case.However, he is entitled to testify to tell the court what the notes mean to him, to testify about his usual practice, and if he has anindependent memory of events, to give that evidence. ... [34] The medical records of Mr. Skinner’s treatment were generally not challenged, with one significant exception. The operativereport for the second surgery bears a dictation and transcription date of November 29, 2009. Dr.

Matheson firmly believes he dictated thereport immediately after the surgery, in accordance with his standard practice. The oral report was not processed until the later date. Dr.Matheson had no explanation for that, and could only speculate about the reason for the delay. [35] Mr.

Skinner sees this as suspicious, and argues that where a physician adds details to an event that did not happen, whencombined with his admitted lack of recall and vagueness of many details of a visit, that may lead the Court to conclude that thephysician, just as easily with no conscious intent to mislead, is filling in other details. [36] Mr. Skinner cites Dowhan v Coates, [2000] OTC 441 at para 45, 98 ACWS (3d) 219 (Ont Sup Ct

J) as providing a rule that adefendant’s evidence may be discounted where it appears that the evidence was reconstructed after the fact and the defendant does nothave notes to back it up. Reconstructed evidence of a physician made without supporting notes may have sharply reduced weight:Zaiffdeen v Chua, 2004 ABQB 331 at para 34, 358 AR 274, aff’d 2005 ABCA 290, 380 AR 200.

Germain J in Skeels (Estate of) vIwashkiw, 2006 ABQB 335 at paras 112, 127, 63 Alta LR (4th) 26 observed: The lack of charting does not necessarily mean that procedures were not conducted, nor is the mere lack of charting prima facie evidenceof negligence in the treatment. However, the lack of charting makes it more difficult for a court to determine matters of credibility whereindividuals who are trained to chart, did not do so.

This failing, despite the opportunity to do so, makes it harder for a court to accept thatthe correct steps were followed and appropriate procedures were done as it would have been logical for them to be recorded had theybeen done. ... I must also assess credibility when there is a clear, detailed and comprehensive note, which is then amplified in court by the witness whowrote the note. Where a chart entry is detailed and made contemporaneously with the procedure, evidence given at trial under oath thatprovides an additional element, not present in the chart, is difficult to accept. [37] In the case of Dr.

Matheson, his notes and testimony aligned. He was forthright that he relied principally on his records. [38] As for the delayed transcription of the second surgery post-operative notes, I do not find any basis to conclude this wasnothing more than a logistical issue of some kind. I conclude those records are just as reliable as the remainder of the medical file. 3. Witness Credibility [39] The critical witnesses on this issue are Mr. Skinner and Dr. Matheson. I found both to be forthright witnesses, who expressedhonestly held beliefs about what transpired. [40] Mr.

Skinner’s evidence was essentially not disputed, but for two points, the first of which is whether in 2009 Dr. Mathesoninformed him that he had two hernias and that he may have missed repairing the smaller hernia, previously mentioned. The second is theconstancy of his weight in 2008-2009, which is relevant to additional stress placed on a weakened surgical site. Mr. Skinner pointed tohis 2009 driver’s license application recording a lower weight, which was not contradicted. 4. Analysis and Findings of Fact [41] Dr. Matheson testified to his standard practice.

He explained that he must have read the first ultrasound because he alwaysreads everything in his patients’ files before meeting them. He also said that it would not have been unremarkable for him to, and that hewould have in fact discounted the ultrasound report (and the family doctor’s referral letter). He first and foremost relies on his ownclinical diagnosis, which revealed only one hernia. He trusts that more than an ultrasound.

[42] Mr. Skinner describes Dr. Matheson’s evidence as self-serving and conflicting, noting, among other things that he thought histask as a witness was not only to be truthful, but also to “put together all the information and documents” shown to him after the events inissue. [43] While I am satisfied that Dr. Matheson did not tailor his evidence of his standard practice and that he has an honestly heldbelief that he followed his standard practice (of reviewing everything in Mr. Skinner’s file before meeting with him), I find it moreimprobable than not that he actually did so for two reasons. 1. Mr.

Skinner’s evidence that he would have remembered if Dr. Matheson told him he had two hernias because it would have beensignificant and personal to him: Thibert v Zaw-Tun, 2006 ABQB 423 at para 74, 64 Alta LR (4th) 41. 2. Dr. Matheson’s direct evidence that he only became certain that he knew there were two herniae when he “ultimately saw Dr.Lautner’s report”. Under cross-examination, Dr. Matheson initially waffled on the correctness of his statement, but ultimately conceded that he “guessed” itwas correct. C.

What is the Relevant Standard of Care? [44] Assessing an alleged breach of the standard of care is a two-step process: 1) determining the standard of care, and 2) assessingthe impugned conduct against that standard of care. I will therefore first determine the relevant standard of care. 1. Assessment and Weight of Expert Evidence in Medical Malpractice Cases [45] As this case, like most medical malpractice cases, involves the weighing and assessment of expert evidence, the general rulesconcerning that process warrants a brief foreword. [46] It is trite that an expert’s opinion is not conclusive.

To be admissible, the opinion must be relevant, necessary and, itsprobative value must outweigh its prejudicial effect. The necessity criterion requires that it provide scientific or technical informationthat is likely to be outside the court’s experience and knowledge.

It will not meet that threshold if, on the proven facts, the court can formits own conclusions without help: R v Mohan, (SCC), [1994] 2 SCR 9, 114 DLR (4th) 419. [47] Malette v Shulman (1987), (ON SC), 63 OR (2d) 243 at para 68, 47 DLR (4th) 18 (Ont HCJ), aff'd (1990), (ON CA), 72 OR (2d) 417, 67 DLR 94th) 321 (Ont CA) sets out four factors for assessing expert testimony regardingstandard of care: 1. The relevance of the witness’ training, experience and specialty to the medical issues before the court; 2. Any reason for the witness to be less than impartial; 3.

Whether the standard of care propounded reflects the standard of the great majority of medical practitioners in the field inquestion; and 4. Whether the testimony appears credible and persuasive compared and contrasted with the other expert testimony at trial. 2. What is the Standard of Care in Examining Ultrasound Reports Prior to an Umbilical Hernia RepairOperation? [48] Mr. Skinner and Dr. Matheson called expert witnesses on this issue - one radiologist and one surgeon apiece. [49] Dr. William Simpson and Dr. Ian Weir provided evidence for Mr. Skinner. Dr.

Simpson is a general and vascular surgeonwho qualified as such in 1980. A practitioner in Prince George, British Columbia, Dr. Simpson restricted his practice to general surgeryin the last ten years, and in the last two years further cut back to “basic surgery”, like repairs of gallbladders, and hernias, as well as somehand and vein surgery. Dr. Simpson has administrative and clinical teaching experience. [50] Dr. Weir qualified as a radiologist in 1991. He has worked in the field since then in Victoria, British Columbia. Dr.

Weirestimates that he reads a few ultrasounds involving abdominal wall/umbilical hernias a month, which he describes as “not a hugevolume”. Dr. Weir is also involved in coordinating medical students’ training to ensure that the students receive some education inradiology. [51] Dr. Weir is related to members of Mr. Skinner’s legal team’s firm. While the Defendants stopped short of alleging Dr. Weirwould not discharge the duties of an independent expert witness as described in National Justice Compania Naviera S.A. v PrudentialAssurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s LR 68 (QB) at 81, Dr.

Matheson nevertheless stressed experts should bethird parties, strangers. This is a question of perception, “Justice must be seen to be done”. [52] That, however, is not the modern, functional approach to expert witnesses. I adopt the reasoning of Germain J in 1159465Alberta Ltd. v Adwood Manufacturing Ltd., 2010 ABQB 133 at paras 2.17-2.32, 25 Alta LR (5th) 237, aff’d 2011 ABCA 259 that apotential linkage between an expert and a party goes to weight, not qualifications. What matters is that the expert discharges his or herIkarian Reefer responsibilities. Dr.

Weir did that, so I put no weight on this alleged issue. [53] Drs. Jeffery Way and David Lautner provided expert evidence for the Defendants. The former was qualified as a specialist ingeneral medicine and general surgery in 1986, and a specialist in trauma and surgical intensive care in 1987. A clinical professor ofsurgery and a member of the American Hernia Society, Dr. Way has performed at least 2800 abdominal wall hernia repairs (not

including those he performed as a resident or when working on locums). [ 54 ] Qualified as a specialist in internal medicine and radiology, Dr. Lautner has practiced as a radiologist since 1997 in Calgary. An expert for Dr. Matheson, Dr. Lautner’s practice involves reviewing ultrasounds involving hernias as part of his daily practice. He estimates that he has reviewed 200-300 such ultrasounds. [ 55 ] I found all of the experts to be credible witnesses. While I have no concerns about Dr. Weir’s partiality, I cannot emphatically say the same of Dr. Simpson, who, on occasion, seemed to slip into the role of Mr.

Skinner’s advocate. I note, however, that with gentle reminders from counsel for Dr. Matheson, he was able to shed that mantle. [ 56 ] Dr. Simpson testified that a general surgeon practicing in Canada is expected to read all of the information from a referring physician, which includes material like ultrasound reports. He also said that ultrasounds have little to do with diagnosing a hernia, which is typically by done by clinical examination, but that they may inform surgical priority booking if there is “something is stuck within the hernia”. [ 57 ] Dr. Way did not contradict Dr.

Simpson’s view, but, rather, concurred that an ultrasound is unnecessary to diagnose an umbilical hernia, and that he would rest comfortably on the results of a clinical examination. [ 58 ] Like Dr. Way, Drs. Weir and Lautner both testified that it was likely that the hernias shown on the first ultrasound would be felt as a single defect on clinical examination. [ 59 ] There is authority for the proposition that aspects of the standard of care for a doctor’s assessment of a patient requires consideration of all of the available tests and information, and canvassing all readily available collateral information.

In Briante v Vancouver Island Health Authority , 2014 BCSC 1511 at paras 266-273 , 14 CCLT (4th) 204, Bracken J reviewed the ‘information gathering and analysis’ obligations of a medical professional, and made this general observation: The standard of care in an assessment requires that the physician obtain a thorough history and avail him or herself of all available and useful equipment, facilities, tests and information.

A thorough history requires that the doctor canvass all readily available. [ 60 ] Justice Bracken then concluded that psychiatric emergency care workers were negligent in the steps they took to obtain information before proceeding to make a diagnosis. [ 61 ] On appeal ( Briante (Litigation guardian of) v Vancouver Island Health Authority (c.o.b. Royal Jubilee Hospital , 2017 BCCA 148 ), Fitch JA concluded the trial judge had made an error in finding an emergency care psychiatrist negligent for not “ferreting out” collateral information sources in the absence of “red flags”: para 133.

However, another health care worker, a nurse who first interviewed the distressed patient and his family, did have a broader information gathering obligation.

This is what the experts had said when they explained how duties and resources were distributed between the medical team involved in providing emergency psychiatric care: para 132. [ 62 ] Justice Finch observed at para 128: Read in the context of the judgment as a whole, I am satisfied that the trial judge was not imposing upon emergency room physicians a standard of care that would require them, in every case, to personally collect all available collateral information before conducting an assessment.

Imposing such a requirement would oblige the physician to repeat from the beginning what the trial judge found to be the duty of the RPN -- to collect all collateral information and provide it to the emergency room physician. [ 63 ] This is obviously a much more nuanced approach to the ‘information gathering’ obligations of a medical professional. That duty is contextual, and is based on a particular professional’s role and the circumstances of the case.

I agree with the British Columbia Court of Appeal’s characterization of a medical professional’s ‘information gathering and diagnosis’ obligations. [ 64 ] I think this principle can be distilled down to several points. The first is whether the allegedly deficient information gathering is someone’s actual job. The second is if whether information available to a medical practitioner sets off “red flags” that should warrant a deeper or additional inquiry.

The third point is simply relevance; a medical professional is not negligent when they do not search out information, records, or data that is simply not relevant to that medical professional’s tasks. [ 65 ] Following the Briante approach, I accept Dr. Simpson’s uncontroverted evidence, which I find to be credible, unbiased on the point, and reliable, that the standard of care required Dr. Matheson to review the first ultrasound. That ultrasound information was available. It related directly to Dr. Matheson’s diagnosis and suggestion to take a surgical response to the hernia.

And most importantly, this was a record that offered additional relevant information, as I will discuss below. 3. Did Dr. Matheson Breach his Standard of Care? [ 66 ] I agree with Mr. Skinner that the question is not whether Dr. Matheson could have made his diagnosis solely by clinical examination. Rather, the issue is whether he breached the standard of care by failing to avail himself to all of the relevant available tests and information, and canvassing all readily available collateral information. I have concluded that included the ultrasound report. [ 67 ] I find that Dr.

Matheson did indeed breach his standard of care by failing to review the ultrasound. I come to this conclusion for two reasons. The first is, as I have explained, Dr. Simpson indicates that is what he would expect for a surgeon preparing for a potential umbilical hernia procedure. That includes reviewing an ultrasound, if one is available. [ 68 ] The second basis on which I conclude Dr. Matheson breached his standard of care when he failed to review the ultrasound is simply a matter of common sense. He ignored a resource that could have provided him with potentially relevant information that he

could not (or did not) acquire in his clinical examination. The ultrasound located two hernias in the area of the planned operation. Thatinformation is obviously relevant to the first surgery. There is very likely collateral information that may be of limited or no help to asurgeon, but here the facts themselves establish that Dr. Matheson ignored a resource that had potentially valuable information. If thatoversight led to an injury, then Dr. Matheson was negligent. D. Did Dr.

Matheson’s Negligence Cause the Second Surgery by Failing to RepairOne of the Two Initial Hernias? [69] The next issue is what is often called causation: did the negligence cause the alleged injury. Causation has two components.One is “causation in law”, the injury or loss must be a real risk which “would occur to the mind of a reasonable man in the position of thedefendant. ... and which he would not brush aside as far-fetched”: Phillip v Bablitzat, 2011 ABCA 383 at para 15, 2011 ABCA 383 , 515 AR 395, leave to appeal refused [2012] SCCA No 85.

Obviously, that aspect is met in thepresent case. [70] The second aspect is “causation in fact”. The current approach to causation in fact was set by Chief Justice McLachlin inResurfice Corp. v Hanke, 2007 SCC 7, [2007] 1 SCR 333. The usual approach is to apply what is commonly called the ‘but for’ test;‘but for the action or inaction of the defendant, the plaintiff would not have been injured’ (paras 21-22).

A connection between thenegligence and injury is also required (para 23): ... compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’sconduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due tofactors unconnected to the defendant and not the fault of anyone” ... [71] A second approach may be necessary where causation cannot be proved due to factors outside the plaintiff’s control.

If so,then the plaintiff only need prove that the negligence ‘materially contributed’ to the injury (para 25). This may arise, for example, whereit is impossible to prove causation due to “... current limits of scientific knowledge.” (para 25). [72] More recently the Chief Justice clarified the very limited scope of this “material contribution” alternative in Clements vClements, 2012 SCC 32 at para 46, 346 DLR (4th) 577.

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for"the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff hasestablished that the defendant's negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury,where (

a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, eachpossibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possibletortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" causeof the injury, defeating a finding of causation on a balance of probabilities against anyone. [73] The second “material contribution” branch therefore has no application to this matter. [74] Like all elements of a civil action, causation is proved to a balance of probabilities. This is a lower standard than positive orscientific proof.

Justice Major in Athey v Leonati, [1996] (SCC), 3 SCR 458, 140 DLR (4th) 235 explained this is an exercise in common sense: ... this Court recently confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the plaintiff'sinjury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision ... it is "essentially apractical question of fact which can best be answered by ordinary common sense".

Although the burden of proof remains with theplaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof. [75] Former tort academic, and now Justice of the Supreme Court of Canada, Mr. Justice Russell Brown made a number of usefulobservations about causation in several recent academic papers. In Russell Brown, “Known Unknowns in Cause-in-Fact?”, (2011) 39Advocates Quarterly 37, he noted: ... there is no such thing as evidence of cause-in-fact.

There is evidence of negligence, and there is evidence of harm, from which a fact-finder may – using his or her sense of judgment – choose (or not choose) to infer cause-in-fact. This quality of inference makes it afundamental component of all fact-finding, and not just legal fact finding as it relates to cause-in-fact. Trial judges, therefore, ought not to be afraid to go where experts fear to tread, and appellate judges ought to defer when trial judges doso.

The task of a trial judge, after all, is to come to a decision – and to do so by inferring to the explanation which, on the evidence, theyare inclined to believe. Confronted by scientific uncertainty, the next step is not to move on to apply another test for cause-in-fact, or tofind for the defendant without further consideration of the evidence. Their job is to consider the evidence, the circumstances of the case,and then to draw or not draw a causal inference. Ultimately, having come to a decision, they must then explain that decision as anexpression of their judgment, as applied to the evidence.

The causal links need not be obvious – they rarely will be, after all – nor needthe evidence be certain.

Indeed, the evidence need not even be cause-in-fact, since a cogent causal account can be constructed entirely –as it was in Snell – from the evidence of risk and evidence of harm. [76] Similarly, in Russell Brown, “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012-2013”,(2014) 50 SCLR (2d) 327 at 352-353 he observed this analysis does not require complementary expert evidence, rather a conclusion oncausation is drawn from the entire matrix of plaintiff and defence evidence, keeping in mind their respective obligations of proof. [77] Here the parties argue that I have to choose one of two scenarios:

1. Dr. Matheson missed one of the two hernias during the first surgery, that unrepaired hernia was detected after it caused further pain, and was then repaired in the second surgery. 2. Dr. Matheson attempted to repair one hernia during the first operation but in the process inadvertently repaired both hernias. The hernia that was identified and repaired in September 2009 was an independent injury unrelated to the first two hernias. [ 78 ] The critical question, and the subject of much testimony, was whether Dr.

Matheson has established the second alternative on a balance of probabilities: that the first surgery inadvertently repaired both hernias. This is a kind of inversion of the “novus actus interveniens” concept, where an intervening but unrelated act unlinks alleged negligence from an injury. Here the intervening event cures the negligence. The logical endpoint of identifying this is that the alleged downstream injury has a cause unrelated to the identified negligence. In this case, that would be the probability that Mr.

Skinner’s resuming his heavy workplace exertions caused a new defect in his umbilical region. [ 79 ] This question, of whether Dr. Matheson inadvertently fixed two hernias, has two sub-issues: 1. what are the locations of the two original hernias, and 2. would the procedure conducted by Dr. Matheson more often than not then repair both hernias? 1. Dr. Matheson’s Observations [ 80 ] As previously indicated, it was Dr. Matheson who had initially raised the possibility that the second surgery was the result of him having missed the smaller of the hernia detected in the first ultrasound. Dr.

Matheson explained: [h]e had originally had an ultrasound report in 2008 that showed two small hernias. I thought I had repaired these at the initial repair, but I think I repaired the umbilical one and there was one slightly above that probably I did not see and this was put under further tension by the initial repair. This has gone on to further tear and he has further recurrence or worsening of the hernia in the area. [ 81 ] Dr. Simpson says and Dr. Way agrees that Dr.

Matheson was in the best position post-operation to investigate and observe the potential relationships between the 2008 and 2009 hernias. [ 82 ] Without question Dr. Matheson acted in an ethical manner and against his interests when he reported this possibility to the family doctor: As you know, I had fixed an umbilical hernia on him. I did not see on his ultrasound report that they had also reported a tiny hernia slightly above the umbilicus. I think that is the area he went on and developed his second hernia.

At the time of the surgery the first repair looked like it was actually quite intact. [ 83 ] At trial Dr. Matheson concluded the most likely result of the first surgery, which coincidentally employed the same surgical technique used by Dr. Way, is that the four mm fascial band separating the two hernias was removed in the first surgery. Dr. Matheson came to that conclusion after having reflected on the expert reports prepared for this action. [ 84 ] I nevertheless put little weight on Dr. Matheson’s testimony on any of these alternatives, though I do accept his testimony was forthright and honest.

The simple fact is that while Dr. Matheson has expertise in these procedures, his observations throughout are of limited assistance. He is adopting an expert opinion which is the key resource for my conclusion. I might view Dr. Matheson’s testimony in a different light if he had actual memory of the surgery and the appearance of Mr. Skinner’s hernia(s), but as he testified, and I accept, he has had to rely on his notes. 2. Where Were The Hernias Located? [ 85 ] The radiologists had alternate views of the ability to determine the exact size and the location of the smaller hernia from the ultrasound images. Dr.

Weir said that although the size of a hernia can be measured quite accurately, that does not equate to a foolproof measurement of its diameter since the defect can have an irregular shape. Reading ultrasound images is dependent upon the “landmarks” identified by the technician performing the procedure. Dr. Weir found the margins of the defect were unclear to him, notwithstanding the recorded dimensions. [ 86 ] Dr.

Lautner also stated in his report that the imaging available made it is impossible to determine whether the hernia identified in the second ultrasound conducted prior to the second surgery represents one of the same hernia defects identified in the 2008 ultrasound. He conceded that the second ultrasound was less useful than the earlier one, lacking “landmarks” that would help identify the anatomical location of the hernia. Using a simple geometric analysis and a 25 cent piece approximating the size of the larger hernia to illustrate his explanation, Dr.

Lautner showed why the defects depicted on the images necessarily corresponded to the maximum dimensions on the report and supported his conclusion is that the second surgery involved a new hernia. Dr. Lautner stressed that the later defect was slightly smaller. [ 87 ] Ultrasound data concerning the two 2008 hernias has two aspects. The first is where the hernias were located relative to one another. Mr. Skinner argues that if the hernias were offset from one another then it is unlikely that Dr. Matheson would accidentally have repaired both. Moreover, to rebut the strong presumption that Dr.

Matheson was correct in his statement that he missed the superior hernia and that it went on to become the hernia on the June 2009 ultrasound, he must prove that the two herniae were located directly above the other. Complicating this question is that the still ultrasound images do not give enough information to definitively prove the orientation of the herniae one way or the other. [ 88 ] Dr. Matheson testified that the second hernia would have had to be at least 16 mm away for him not to have repaired it in the first surgery, contending that such distance would indicate an epigastric hernia, which Mr.

Skinner never experienced, and which would

have presented as two defects on clinical examination. Again, I put little weight on Dr. Matheson’s comments given he is engaged in hypothetical scenarios, rather than reporting what he saw and did. [ 89 ] Mr. Skinner’s counsel showed the various experts a sketch of the possible offset positions of the two 2008 hernias and asked whether it was possible, if Dr. Matheson had conducted the repair that is reported in his notes, then the smaller and upper hernia might have escaped repair. The experts said this was possible.

The problem I have with this alternative scenario is two-fold. [ 90 ] First, it is simply a hypothesis. The radiologists were clear that the ultrasounds simply did not provide the necessary information to provide a precise location with high confidence. This is the “landmarks” issue. Second, if Mr. Skinner’s hypothesis is correct, Dr. Matheson would have only repaired a part of the umbilical area defects, and his suture locations would likely not have all been in ‘good tissue’. The result is some sutures “would not catch”. The problem is, there is no evidence the first surgery sutures did not catch.

Instead, the surgery notes indicate they were located in strong, healthy tissue. [ 91 ] Second, Mr. Skinner was symptom free for a number of months post-surgery. His symptoms returned coincidentally with his straining on the job. Dr. Simpson testified that if the smaller hernia went unrepaired Mr. Skinner would “eventually” have recurring problems with bulging, explaining that by “eventually” he meant that Mr. Skinner may immediately have been “stressing the hernia”. However, the undisputed evidence is that Mr.

Skinner was back at his job, straining and heavy lifting, just thirty-three days after the first surgery, but did not experience recurring symptoms until some six months later. [ 92 ] Dr. Simpson explains this progression of symptoms indicates a pre-existing hernia that was simply aggravated. Again, that does not explain the delay in recurrent symptoms, or how ‘bad sutures’ had not immediately failed and resulted in a readily detected hernia. Ultimately, Dr.

Simpson rather reluctantly conceded during cross-examination that the documented events could indicate a new hernia. [ 93 ] The location of the hernias is, in my view, not relevant for two reasons. The first is the delay in the re-emergence in 2009 of umbilical region issues in Mr. Skinner. The second, and determinative point, is the relative sizes of the 2008 and 2009 defects. I accept as fact that the maximum size of the 2009 defect was four mm at its widest diameter, based on Dr. Lautner’s evidence. The first ultrasound report and Dr. Lautner’s measurements show the smaller hernia had a diameter at 6 mm.

In the second ultrasound report, confirmed by Dr. Lautner's findings, the hernia repaired in the second surgery was four mm. [ 94 ] The uncontroverted evidence is that hernias neither shrink nor heal themselves. Given that, the 2009 defect is more probably something new. In Dr. Lautner’s opinion this defect was at a different location from the hernias identified in the earlier 2008 ultrasound images, which also supports finding that the 2009 defect was something new. 3. The Types of Hernias [ 95 ] After seeing Mr. Skinner in 2009, Dr. Matheson marked the diagnosis as an “incisional hernia”.

In his post-operative report to the family doctor, Dr. Matheson said: As you know, I had fixed an umbilical hernia on him. I did not see on his ultrasound report that they had also reported a tiny hernia slightly above the umbilicus. I think that is the area he went on and developed his second hernia. At the time of the surgery the first repair looked like it was actually quite intact. [ 96 ] Mr. Skinner contends that Dr. Matheson’s different description of the term “incisional hernia” from that used by some experts and his using different descriptors for Mr.

Skinner’s hernias should give rise to an adverse inference. [ 97 ] As the evidence unfolded it became clear that certain medical professionals who deal with hernias use a rather loose collection of terms. Excepting the term ‘”primary hernia”, i.e. a new hernia not attributable to trauma, there were different terms used by different experts. For example, if a hernia develops after an incision from a prior repair, it is termed an “incisional hernia”. According to Dr. Simpson, a “recurrent hernia” is attributable to an initial repair “not taking”, while Dr.

Matheson describes a “recurrent hernia” as one where the tissue was disrupted by trauma or surgery. [ 98 ] Dr. Lautner concluded that the 2009 defect was more likely a recurrent or incisional hernia, but Dr. Simpson’s view is it could not be an incisional hernia since Dr. Matheson’s operative report said that the initial repair was intact and the second hernia was clearly separate from the prior repair, being above the umbilicus. Dr. Way’s view is that Mr. Skinner developed another new hernia. [ 99 ] In this case, it matters not whether the cause of Mr.

Skinner’s 2009 symptoms is properly or better termed an incisional or recurring hernia. What matters is whether it was the smaller hernia diagnosed in 2008. As stated before, I am satisfied that it is not. 4. Did Dr. Matheson Repair Both Hernias? [ 100 ] The outcome of this assessment ultimately rests on whether, despite later questioning his own actions, Dr. Matheson actually repaired the smaller hernia in the course of the first surgery. For the reasons that follow, I find that he did. [ 101 ] It is beyond debate that: 1. Dr. Matheson’s 2008 clinical examination of Mr. Skinner detected one 2.5 cm defect. 2.

The surgical technique employed by Dr. Matheson is one of several standard hernia repair techniques:

a) Dr. Matheson used a standard, minimum 1 cm ‘bite’ with a suture needle measuring 25 mm from needle to thread. The ‘bite’ is the distance to go through the fascia with the suture needle.

b) Twelve cm of fascia was covered by six non-dissolvable sutures using these “generous bites”.

c) To perform a “good hernia repair”, all of the weak tissue must be excised and healthy tissue found to get “good purchase”. I digress to note that the analogy of not walking on thin ice put to Dr. Simpson resonates.

d) The two hernias depicted on the first ultrasound were separated by a thin band of fascia. When examined by physical touching this felt clinically as a single hernia. [ 102 ] Dr. Matheson testified about this technique, which was employed in the first surgery. He says he conducted this procedure in accordance with his standard practice. That tracks and amplifies his operative report, which says: After opening the abdomen, the hernia sac from excised away from the overlying dermis, and once the sac was fully mobilized, it was reduced.

By expanding the larger hernia by 3 mm in all directions, the hole became 20 mm in diameter with 1 mm separating it from the smaller hernia, which would be engulfed by the 6 interrupted 1 cm "wide and generous bite" of his suture needle. With each suture, Dr. Matheson hefted or tugged at the suture needle to ensure that he had good purchase. [ 103 ] There is no dispute that the surgical process used by Dr. Matheson is appropriate to this hernia scenario. This is what Dr. Way said he would have done.

He is the indisputable, most experienced expert who testified about the surgical repair of umbilical hernias. [ 104 ] Dr. Way’s testimony here is very helpful. He indicated that having two hernias separated by a four mm fascial band is simply not that rare. Dr. Way testified that from his own experience, it was more likely than not that as Dr. Matheson conducted the first surgery he did not see the fascial band between the two hernias and proceeded to repair both hernias as though they were a single defect. [ 105 ] Dr. Way concluded it would “be extremely difficult” to have repaired only one of the two defects.

Trying to anchor the sutures to the fascia band would not hold. That tissue lacked the mechanical strength for a hernia repair. In Dr. Way’s opinion the more likely scenario was that Dr. Matheson felt both defects clinically as a single defect and repaired both defects at the same time during the first surgery. [ 106 ] Dr. Way demonstrated the basis for his theory by tracking the path of the same suture needle used by Dr. Matheson using two pieces of pasta approximating the size of the larger hernia and a 25 cent piece approximating the size of the larger hernia, and which fits within the suture needle.

He also confirmed Dr. Matheson’s evidence that hefting the suture thread after placing each of the six sutures would not have been possible as there could not have been “good purchase” involving healthy tissue. Hernia suturing typically requires placing each suture at least one cm from the edge of where the healthy tissue meets damaged areas. On cross-examination, Dr. Way acknowledged the possibility of Dr. Matheson missing the smaller hernia if it was not positioned directly above the larger one.

Noteworthy is that he prefaced this acknowledgment with the qualifier that the Plaintiff’s hypothetical scenario was not an anatomically feasible proposition. Like Dr. Way, Dr. Lautner accepts this as a possibility. [ 107 ] Dr. Simpson’s report contains a relatively brief opinion on this point: In my opinion, Mr. Skinner had two separate umbilical hernias when he presented in 2008. One was above the umbilicus and one below. This is documented by the ultrasound report. Dr. Matheson failed to note this preoperatively and only repaired the umbilical hernia inferior to the umbilicus at the first surgery. Mr.

Skinner went on to have further problems with the small hernia above the umbilicus and a year later was symptomatic and requesting further surgery. Dr. Matheson noted on various occasions that he had missed the ultrasound report and in fact had missed the hernia above the umbilicus. The notation in his chart clearly shows the further hernia above the umbilicus quite superior from the previous scar of the inferior umbilical hernia repair.

To describe the second surgery as an incisional hernia is clearly incorrect as the second hernia surgery describes the initial repair as intact and the second surgery was clearly separate from it being above the umbilicus. [ 108 ] In essence, this opinion rests upon Dr. Matheson’s positing that he may not have seen the fascial band and missed repairing the smaller hernia. [ 109 ] Dr. Simpson testified that while it facially may seem impossible that Dr. Matheson had not repaired the smaller hernia, “the outcome of this case does not confirm that”, and it is more likely “something was missed”. With respect to Dr.

Simpson, I conclude his principle opinion is essentially circular. Dr. Matheson missed the first ultrasound report of the second smaller hernia and a second hernia was ultimately repaired. Therefore, Dr. Matheson did not repair the second original hernia, which is what was repaired at the September 2009 procedure. Moreover, the analysis does not respond to the possibility of an inadvertent repair of the smaller hernia and a second independent defect. [ 110 ] Similarly, Dr. Simpson rejected Dr. Way’s view that Mr.

Skinner’s 2009 symptoms were more likely attributable to a recurrent hernia because “the outcome of this case points to this [his own view being correct]”. After being gently reminded of his function as an expert witness, Dr. Simpson agreed that Mr. Skinner’s recurring symptoms could have been the development of a new hernia, and given the size of the fascial band between the two 2008 hernias it was possible that the smaller hernia was, in fact, repaired in the first surgery. [ 111 ] I therefore prefer Dr. Way’s reconstruction of the probable scope and effect of the first surgery.

He is the expert best positioned to comment on the likely effect of Dr. Matheson’s initial surgery. The preponderance of the evidence is that Dr. Matheson most probably repaired both hernias by default. If so, Mr. Skinner’s subsequent symptoms logically arose from a new hernia. [ 112 ] A key fact that further supports this conclusion is that the 2009 hernia was smaller than the smaller hernia (reported in 2008). The experts did not dispute that if the defect identified in 2009 was the smaller hernia then it would either stay the same size or get

bigger, not smaller. Further, Dr. Simpson agreed a “good hernia repair” does not preclude that area later developing another hernia, and that the area of a hernia repair is not as strong as it would have been prior to the initial hernia. [ 113 ] In the result, I conclude on a balance of probabilities that Dr. Matheson repaired both the larger and smaller hernias in the first surgery. This means that Mr. Skinner was not injured by Dr. Matheson’s negligence. The second surgery was only required because Mr. Skinner developed a new hernia after the first (inadvertently) successful surgery.

The two surgeries are, factually, unrelated. VI. Was Dr. Matheson Negligent if He Only Repaired One of Two Hernias [ 114 ] The first branch of the negligence analysis involves a scenario where Dr. Matheson was unaware there were two hernias, and only operated on and repaired one. He missed the second hernia. This second negligence analysis is better described as an error in procedure. Dr. Matheson conducted the surgery in a manner that did not address both defects. [ 115 ] I have already concluded that Dr.

Matheson was negligent when he did not review the pre-operative ultrasound, but that negligence did not lead to Mr. Skinner’s alleged injury (the second surgery). The evidence at trial establishes to my satisfaction that Dr. Matheson conducted the first surgery procedure in a manner that repaired both hernias. [ 116 ] This conclusion makes it unnecessary for me to pursue this alternative basis for negligence. I will, nevertheless, briefly review the expert evidence in relation to this issue. [ 117 ] Dr. Simpson (conclusively) said that Dr. Matheson subjected Mr.

Skinner to two surgeries, “which is below the standard of care”. He also said things giving rise to an inference that the standard of care is to perform one, not two surgeries in this circumstance. 1. When Dr. Matheson diagnosed a reducible 2.5 cm hernia that promptly prolapses, as a surgeon, he would usually fix the hole, and push the bulge down under the fascia; and 2. He was fairly sure that a surgeon like Dr. Matheson would have decided on a different incision – one incision, one surgery. [ 118 ] From this and common sense, I conclude that the standard of care required Dr.

Matheson to repair both hernias in the first surgery. The defects were in close proximity. All expert evidence was the two hernias could be repaired in a single procedure. There simply is no logical reason to conduct two operations when one would do, particularly given the well-known background risks that accompany any surgical procedure, such as infection and anaesthesia mishap. VII. Conclusion [ 119 ] Mr. Skinner’s action is dismissed. While Dr. Matheson was negligent in failing to conduct a pre-surgery review of the first ultrasound report, that did not lead to the 2009 second surgery. VIII.

Costs [ 120 ] Since Dr. Matheson has been entirely successful in this action, he is entitled to costs. The parties may return to me within 30 days in the event there are unable to agree on the amount. Heard on the 27 th day of March to the 7 th day of April, 2017. Dated at the City of Edmonton, Alberta this 25 th day of May, 2017. J.E. Topolniski J.C.Q.B.A.

Appearances: Shelagh McGregor Michael A. A. Shepherd Weir Bowen LLP for the Plaintiff Rose M. Carter Q.C. Michael S. Sestito Ariel Lekas Bennett Johnes LLP for the Defendant