Muir v Macdonald, 2017 ABQB 440

Court of Queen’s Bench of Alberta Citation: Muir v Macdonald, 2017 ABQB 440 Date: 20170712 Docket: 0701 12301 Registry: Calgary Between: Robert Todd Muir also known as Todd Muir and Kathleen Elizabeth Muir Plaintiffs - and - Ian Robert Macdonald and Ian R. Macdonald Professional Corporation carrying on business under the registered trade name of Alpine Medical Clinic Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ I.

Introduction [ 1 ] This is an action by the Plaintiffs as against the Defendants for medical negligence as a result of complications that arose after the Defendant, Dr. Macdonald, performed a vasectomy on the Plaintiff, Mr. Muir. The surgery took place on November 30, 2005, at the Defendant’s clinic in Banff, Alberta. II. General Background [ 2 ] In 2005, Todd and Kathleen Muir had been married for approximately 17 years. They had two sons, aged approximately 16 and 13 at the time.

After some difficulties arose with their then method of birth control, they made the conscious decision not to have any more children, and decided to investigate the best method to ensure that happened. After much discussion, they decided to investigate whether a vasectomy was a suitable option for Mr. Muir. Mr. Muir did a lot of his own research on the internet to try and gain an

understanding as to what was involved in such a procedure. [ 3 ] After discussing it with his family doctor, he was referred to Dr. Macdonald in Banff, Alberta. At the time, the Muir family lived in Cochrane, Alberta. Mr. Muir reviewed Dr. Macdonald’s website, spoke to a nurse at his office, spoke to Dr. Macdonald and eventually made an appointment to meet with Dr. Macdonald for the procedure. The procedure was performed on November 30, 2005 and after the procedure, Mr. Muir had a number of difficulties and eventually developed chronic pain which has had a significant impact on his lifestyle and career. III.

Issues 1) Did the Defendant owe the Plaintiffs a duty of care? 2) Did the Defendant breach the standard of care established by the law? 3) Did the Plaintiffs suffer an injury or loss? 4) Is the Defendant’s conduct the actual and legal cause of the Plaintiff’s injuries? 5) Are the Plaintiffs entitled to damages? IV. Evidence A. Mr. Muir [ 4 ] Mr. Muir is currently 53 years old. He resides in Cochrane, Alberta. He is married to Kathleen Muir and they have two sons. [ 5 ] Mr. Muir was an active youth and was involved in skiing, hockey, baseball, motorcycle and snowmobile riding.

He had no significant injuries at the time of the surgery. Mr. Muir’s interest in sports continued throughout his life. During his twenties he remained involved in hockey and taught for a hockey school for a period of time. He obtained his Bachelor of Education from the University of Alberta. While he was pursuing his degree he was also engaged in sports including participating on the university ski team. [ 6 ] After graduation, Mr. Muir worked for Alberta Water Ski. He then became the director of health and fitness for the Edmonton YWCA. After leaving the YWCA, Mr.

Muir started his own fitness company, Muir Recreation. He worked as a sports consultant through his company and had numerous clients. [ 7 ] He married his wife, Kathleen, on August 13, 1988. Their first son, was born in 1989 and their second son was born in 1992. The Muir family was an active family. Both sons were involved in various sports including gymnastics, swimming and diving. They regularly skied together as a family. B. Dr. Macdonald [ 8 ] Dr. Macdonald currently resides in Banff, Alberta. He is a general practitioner. He attended Glasgow University Medical School between 1973 and 1979.

Following university, he went to on to receive merit certificates in biochemistry, surgery, pediatric surgery and obstetrics. He then got into the West of Scotland surgical rotation and later worked as a registrar in a rural hospital. During this period, he helped perform 100 vasectomies and performed 50 on his own. At that time, he was performing a traditional or open vasectomy. [ 9 ] In 1984, he moved to Ponoka, Alberta and was a locum general practitioner. He became a full-time general practitioner surgeon in Hanna between 1985 and 1988.

After Hanna, he moved to Banff and continued to act as a general practitioner surgeon. He has privileges at the Banff and Canmore Hospitals. He has his own clinic: the Alpine Medical Clinic, which is a general clinic. He has two other colleagues and they see patients needing medical or surgical care or patients who need vasectomies. He is the only doctor in the clinic who performs surgeries. He also sees patients as part of his general practice. C. Expert Evidence 1. Medical/Treatment Notes of Witnesses not Called [ 10 ] Many of the treating physicians were not called to give evidence in this case.

I raise this point here as the issue arose throughout the trial and complicated issues, in my view, unnecessarily. Mr. Muir sought treatment for the chronic pain that he said he suffered after the surgery with Dr. Macdonald. He met with, or consulted with, or was treated by numerous treatment providers. [ 11 ] Plaintiffs’ counsel elected to call certain treatment providers at the trial of this matter. It was their view that the witnesses they proposed calling were the only ones necessary to prove their case.

They advised Defendant’s counsel of their proposed witness list, they listed the witnesses in Forms 37 and 39, they provided consents to release medical information for any treatment providers that the Defendant wished to interview, they provided all treatment notes for every provider to the Defendant, they advised the court in advance as to the witnesses they were calling and finally, they provided notice pursuant to Rule 8.15 of the witnesses they did not intend to call. [ 12 ] Defence counsel elected to call two of the Plaintiff’s treatment providers as witnesses.

[13] Two difficulties arose. One is that the Defendant asks the court, in argument, to draw an adverse inference that the reason thePlaintiff did not call those witnesses was that they would not assist the Plaintiff’s case and in fact may even have harmed the Plaintiff’scase. The Defendant argues that the inference the court should draw is that those witnesses would have said that they told Mr.

Muir notto pursue other surgical interventions and that he ignored that advice and proceeded anyway. [14] The Defendant’s position is that a later surgical intervention caused the Plaintiff’s injuries, not anything related to the surgeryperformed by Dr. Macdonald. The Defendant had significant advance notice and all of the documents related to Mr.

Muir’s subsequenttreatment and elected to call only two treatment providers. [15] The other difficulty that arose as a result of the above, was that the Defendant objected to any reference in any expert report,including their own expert reports, to reports or notes from other treatment providers who were not giving evidence. The Defendantinsisted that any reference to these notes or reports be deleted from the expert reports because these providers referred to were not calledas witnesses and were therefore not subject to cross-examination.

It is difficult to imagine that there was anything startling in any of thosereports since both parties had all of the disclosure and both parties chose not to call these providers as witnesses. [16] By taking that position, the expert reports for both parties were highly redacted and their evidence curtailed. These experts,who attended court to provide opinion evidence to assist the court, were very frustrated, and rightly so, when they had reviewed all ofthis information to come to their opinion and were then unable to refer to any of it.

They did not know what they could and could not talkabout. [17] Each party has the duty and obligation to try and prove their case based on the evidence which they call. There is also a duty,when faced with stretched judicial resources to make the best use of court time and call as witnesses only those witnesses each partybelieves they require to prove their case. Every witness or treatment provider is not required when their evidence does not go directly toan issue in dispute.

If something is important to an issue in dispute, as opposed to simply part of the narrative, then one would expect thatone of the parties would call that witness. It is hard to imagine that review of the notes of other treatment providers not called aswitnesses in coming to an expert opinion would provide anything other than background and a timeline.

We will never know, howeverthe court can only make decisions based on the evidence before it, not speculation and not inference and the expert evidence, in this case,suffers as a result. [18] I do not draw an adverse inference for the failure to call other treatment providers. 2. Dr. Pollock [19] Dr. Pollock testified on behalf of the Plaintiffs. He was qualified to provide expert opinion evidence on no-scalpelvasectomies related to medicine and science, pre-op evaluation, intra-operative care, evaluation and management of post-operativecomplications and opinion on causation of injuries.

He is a physician who currently specializes in three procedures: no-scalpelvasectomies, circumcisions and frenulectomies. Dr. Pollock started performing no-scalpel vasectomies in 1999. Dr. Pollock hasperformed approximately 25,000 no-scalpel vasectomies in his practice. Dr. Pollock presents at conferences throughout the world andhas contributed to medical publications in the areas of vasectomy and circumcision. Dr. Pollock provides treatment for patients who havebeen diagnosed with post vasectomy pain syndrome (PVP). 3. Dr. Popowich [20] Dr. Popowich testified on behalf of the Defendants.

He was qualified to provide expert evidence in the areas of familymedicine and no-scalpel vasectomies on issues relating to standard of care, complications arising from a no-scalpel vasectomy andtreatment of patients with post-vasectomy pain. Dr. Popowich retired in May 2012. From 2002 – 2012 he performed exclusively no-scalpel vasectomies. Prior to that he had a family practice and assisted surgically. Dr. Popowich taught residents no-scalpel vasectomies.He started performing no-scalpel vasectomies exclusively in the mid-1990’s. By the time he had retired, he had performed approximately20,000 vasectomies.

During the course of his career, he has had patients develop post-surgical pain. 4. Dr. Allan Gordon [21] Dr. Gordon testified on behalf of the Defendants. Dr. Gordon was qualified in the areas of neurology, chronic pelvic andgenital pain and pain management to provide an opinion on issues relating to causation, including diagnosis, treatment and causes ofchronic pelvic and genital pain. Dr. Gordon is a certified specialist in neurology. He was head of neurology at Mount Sinai Hospital until1999. He is currently the director of the Wasser Pain Management Centre at Mount Sinai Hospital.

This is a multi-disciplinary, multi-professional academic pain management centre that deals with patients with chronic pain. IV. Standard of Care A. The Law [22] The general principles of law are not in dispute and are outlined as follows. [23] First, it is acknowledged that Dr. Macdonald owed a duty to exercise due care with respect to treating Mr. Muir in accordancewith the standard and skill expected of a doctor in the same field at the time the treatment was provided. [24] The Supreme Court of Canada set out the standard of care for a physician in Wilson v Swanson, (SCC), [1956]SCR 804.

A doctor must meet the standard of a normal, prudent practitioner of the same experience and standing at the time of thealleged negligence. “To establish a breach of the standard of care the plaintiffs must establish, on a balance of probabilities, that a

defendant departed culpably from the normal standard of skill, judgment or knowledge expected of a normal, prudent practitioner of thesame experience or standing in the same field in a medical negligence claim”: Crits v Sylvester (1956), (ON CA), 1 DLR(2d) 502 (ONCA), aff’d, (SCC), [1956] SCR 991; Brough v Yipp, 2016 ABQB 559. [25] Habit, or doing something regularly is admissible as a substitute for present recollection: Belknap v Meakes, (BC CA), [1989] BCJ No 2187 at 19-20. In this case, Dr. Macdonald has no recollection of Mr.

Muir or the surgery he performedon him. [26] Standard of care should not be assessed with the benefit of hindsight: Gallant v David Thompson Regional Health AuthorityNo. 6, 2013 ABQB 340 at para 21. Determining negligence by focussing solely on the result of the medical treatment as opposed to themanner in which it is performed is incorrect: Brough at para 125. [27] Charting is an issue in this case. In Gemoto v Calgary Regional Health Authority, 2006 ABQB 740 at para 339, the Courtnoted that charting serves a significant clinical purpose.

The chart is the common source of information and direction regarding thepatient and the basis for diagnosis and treatment. This case was specifically referring to charting within a hospital. B. Positions of the Parties 1. The Plaintiffs’ position [28] The Plaintiffs submit that Dr. Macdonald breached the standard of care in the procedure itself and also by his actions both preand post-surgically. According to the Plaintiffs, a patient who presents with retracted testicles should not undergo a no-scalpel vasectomyin that condition.

The patient should be given a Valium, soak in a hot tub or have a hot towel to relax the testicles to see whether theywere in a condition where a safe procedure can be performed. Furthermore, the epididymis is an extremely sensitive part of the maleanatomy and prolonged contact with this area increases the risk of complications with the vasectomy. In this case, Mr. Muir presentedwith retracted testicles, which put him at a higher risk. [29] The Plaintiffs submit that Dr. Macdonald did not perform a physical examination of Mr. Muir’s genitals before beginning theprocedure. The Plaintiffs also allege that Dr.

Macdonald did not freeze Mr. Muir’s genitals appropriately. [30] According to the Plaintiffs, Dr. Macdonald should have stopped the procedure on the right side when he encountereddifficulty trying to find the left-side vas deferens. At no point did Dr. Macdonald stop the procedure to advise Mr. Muir that it was takinglonger than usual to complete the procedure. When Dr. Macdonald pierced his left-side vas deferens Mr. Muir felt extreme pain. 2. The Defendant’s position [31] The Defendants submit that Dr. Macdonald did not breach the standard of care. He performed the no-scalpel vasectomy onMr.

Muir in accordance with his standard practice for no-scalpel vasectomies. The Defendants submit that the vasectomy proceededwithout complication. C. Analysis – Standard of Care 1. Training [32] In 1988, Dr. Macdonald performed open vasectomies or conventional vasectomies. He then trained through the Association ofVoluntary Surgical Contraception (“AVSC”) to learn no-scalpel vasectomies. This organization mandates safe, effective contraception,surgical contraception in particular. Dr. Macdonald successfully completed the AVSC training and started performing no-scalpelvasectomies in 1990.

He also organized conferences in Banff so he could teach other physicians and practitioners this procedure. TheAVSC assisted by providing him with their booklets and provided speakers at the conferences. Dr. Phillip Li presented at the conference.He also observed Dr. Macdonald perform the procedure and certified him as a trainer. Dr. Macdonald has not done any further coursessince 1993. [33] The Plaintiffs’ expert, Dr. Pollock, was critical of Dr. Macdonald’s training in the area of no-scalpel vasectomies. Accordingto Dr. Pollock there is no evidence to suggest that Dr.

Macdonald was properly trained in the no-scalpel procedure. The evidenceillustrated that Dr. Macdonald’s complication rate with no-scalpel and conventional vasectomy procedures are the same and yet whencarried out properly, a no-scalpel procedure has an eight times lower complication rate. [34] Dr. Pollock trains physicians in the practice of no-scalpel vasectomies. He has the physicians perform about 15 hands-onsurgeries per day. The physicians work with him for approximately three weeks. Dr. Pollock opined that Dr. Macdonald’s training fellbelow the standard of care. [35] Dr.

Popowich started to perform traditional vasectomies as a resident in the late 1980’s. Once the no-scalpel procedure wasintroduced in Canada, he attended a training course in Banff. To the best of his recollection it was put on by the AVSC. The Universityof Calgary was also involved with the training course. Dr. Macdonald was one of the trainers. The course involved watching a videoshowing a live procedure. They then had a hands-on demonstration with a scrotal model. They were given instruments to practice on thescrotal model.

They received one-on-one training as the three teaching physicians circulated through the room. Dr. Popowich testifiedthat for those physicians who had never performed traditional vasectomies they were advised that they would require additional training.After the course, Dr. Popowich was considered competent in the procedure and was then permitted to purchase the instruments. [36] In this Court’s view, the training that Dr. Macdonald received for the no-scalpel vasectomy met the standard of care in 1990.The evidence given at trial established that Dr.

Macdonald had already performed hundreds of conventional vasectomies prior to

obtaining his training in the no-scalpel procedure. On the other hand, Dr. Pollock never performed the traditional vasectomy procedure prior to training in the no-scalpel method. Furthermore he was not trained to perform the no- scalpel vasectomies for nearly ten years after Dr. Macdonald was trained. For these reasons, I do not accept his testimony on the training requirements for no-scalpel vasectomies in 1990. [ 37 ] The Plaintiffs asked this Court to make an adverse finding on the basis that Dr. Macdonald was one of the trainers who trained Dr. Popowich. In my view, this fact does not affect Dr.

Popowich’s credibility. The conference was hosted by the AVSC, the training body at the time. I find that the training that Dr. Macdonald received met the standard of care for the training requirements for no-scalpel vasectomies in 1990. 2. Pre-operative [ 38 ] Prior to the surgery, Mr. Muir testified that he followed the directions provided to him by the Clinic. Mr. Muir’s appointment was at 1:30 p.m. on November 30, 2005. He testified that he was anxious in the morning. He recalled that he experienced discomfort on the drive out as his testicles were “sucked up”.

When he arrived at the Clinic he was advised to wait in the waiting room where he was asked to fill out a consent form. [ 39 ] Mr. Muir testified that he was escorted by a nurse to one of the Clinic’s office rooms. Dr. Macdonald introduced himself. Dr. Macdonald asked some questions and took notes. He was asked if he had any children and whether he wanted to go through with the vasectomy. Mr. Muir also had some questions. According to Mr. Muir, Dr. Macdonald was very rushed when he spoke with him. [ 40 ] According to Mr. Muir, Dr. Macdonald then left and a nurse came in to get Mr. Muir.

The nurse moved him into the examination room. He testified that he saw stirrups sitting at the end of an examination table. [ 41 ] Dr. Macdonald testified that he does not specifically recall Mr. Todd Muir. At trial, he relied on his notes and his standard practice. He explained that patients are referred to him by their own family physician and if they do not have a family physician, they see one of his colleagues at the clinic. He receives a faxed letter from the physician requesting that he see the patient. [ 42 ] The referral for Mr. Muir came from Dr. Robert McLaughlin, a family physician in Cochrane. Dr.

Macdonald’s impression of the patient was that he was a 42 year old man with two teenage children. [ 43 ] Dr. Macdonald gave evidence at trial that after he receives a referral, a patient then obtains an appointment. The nurse phones the patient, confirms that he wants the procedure and refers the patient to their website where there are comprehensive patient information sheets. [ 44 ] After the patient is registered and given the consent form, the patient goes into his office where Dr. Macdonald reviews the referral letter and confirms that the patient is a suitable candidate for surgery.

He discusses the patient’s medical history and asks the patient if he is aware of the complications and risks. He uses electronic medical records (EMR). He does not use a pen or paper to take medical notes. 3. The Procedure [ 45 ] The no-scalpel procedure was developed in 1974 by a Chinese doctor, Dr. Li. Dr.

Pollock explained the procedure as follows in his Expert Report at 14, October 11, 2013: In a conventional vasectomy the physician would make two half to one inch incisions in both sides of the scrotum and introduce a towel clamp into the scrotum, pull out the vas deferens and then proceed to block it in his method of choice which might be the cautery or tying the ends plus or minus cutting a segment out of the vas deferens, then putting the vas deferens back on one side, stitching the area up going to the other side, making a similar incision and repeating the same procedure and stitching it up.

With non-scalpel vasectomy and the instruments developed by Dr. Lee (sic) the physician would initially take a ring forceps and would grasp the vas deferens underneath the skin externally holding it in place very tight to the skin. The physician would then use a dissecting forceps and make a 4- millimetre window into the skin and then would spread open that small window and with the sharp tie of the dissecting forceps would skewer and elevate the vas deferens out of the tiny opening. He would then proceed to block the vas deferens by his method of choice, put the vas deferens back into the scrotum. [ 46 ] Mr.

Muir’s recollection of the procedure differs from Dr. Macdonald’s documented notes. Mr. Muir testified that he was asked to put on a hospital gown (although during cross-examination he testified that he was unsure if he put on a gown). According to Mr. Muir, Dr. Macdonald then came into the room and applied coloured disinfectant over the groin region. He wrapped a rubber band with what looked like a bobby pin around his penis. There was very little discussion between himself and Dr. Macdonald although he acknowledged that Dr. Macdonald did make some comments throughout the operation. [ 47 ] Mr.

Muir described the procedure as follows during direct examination: So my penis is clipped to my shirt and he brings out a needle. And I did say, because my scrotum – I said - I’m pretty sure at that point, I said, hey, my scrotum is stuck right up there, I’m really worried about that. Is this going to be okay? So I did say something along those lines.

And then next thing I knew he was poking the needle into my penis and he went under the – he went under the skin to the side of the shaft and went up both sides of my penis toward the head with the needles and put what I would say is freezing, when it’s supposed to be in each side of my penis. [ 48 ] Mr. Muir testified that at that point during the procedure, he could sit up and see over the curtain. According to Mr. Muir, there was a curtain over his belly. Dr. Macdonald was doing some talking and then Dr. Macdonald punched a hole down underside his penis. He found the vas right away on the right hand side.

It did not take him long to find the right vas and clip it. Mr. Muir did not feel much pain or discomfort on the right side. Dr. Macdonald then started the procedure on the left side. According to Mr. Muir, Dr.

Macdonald encountered difficulties on the left side. Dr. Macdonald made the comment “I can’t find your left. I can’t find your vas”. Mr. Muir recalled that he grabbed the doctor’s arm and said you have to stop. During direct examination, Mr. Muir testified as follows: Q All right. Did he complete the procedure? A It took a while and then he did make the comment, "I found it". And then the next thing I knew he’d cut it. Q And when he cut it, what did you do?

A By this time, and I don’t know, the freezing hadn’t taken great or it had worn off, whatever you say, but on this side I literally felt myself arch my back and buck up on the table and I could feel huge pain when he cut the left. [ 49 ] By this time, Mr. Muir felt that either the freezing had not worked well or it had worn off and he now felt a lot of pain. He does not remember what or if he said anything. He gave evidence that he was in shock at this point in time. After Dr. Macdonald left the room, he does not recall if the nurse was still in the room.

The nurse did come in at one point and took “stuff” down and helped him get cleaned up. He was given a vasectomy pamphlet on after care procedures. After Dr. Macdonald completed the procedure and left, Mr. Muir had no further dealings with him on that day. [ 50 ] With respect to the timing of the procedure, Mr. Muir was asked the following question during cross-examination: Q Do you agree that from the time Dr. Macdonald began to cut into you to the time he finished, it would have taken less than 20 minutes to complete? A I didn’t have a watch and didn’t know the time. Q Okay.

A Or I might have had a watch, but I didn’t monitor the time. [ 51 ] Dr. Macdonald has no specific recollection of Mr. Muir and gave evidence based on his standard practice and his notes. He gave evidence that the surgeries are performed in the procedure room at the Clinic which is set up for minor surgical procedures including no-scalpel vasectomies. There is a bed in the room. There are no stirrups and no curtain. The room is warmed up prior to a no- scalpel vasectomy. He explained that the reason for heating the room up is that it helps the scrotum to relax.

The patient is asked to relax and look up at the ceiling. The patient’s hands are on his chest and the patient is asked to wiggle their toes. Dr. Macdonald explained that this is not specifically part of the procedure but more of a distraction therapy for the patient. [ 52 ] Dr. Macdonald then examines the patient’s lower abdomen including the scrotum. He checks the testicles and makes sure there are no tumours, cancers or lumps. He checks for the vas deferens and if he cannot find them, he makes a note of it. He would record anything that was abnormal. He explained that he rolls the vas between his fingers.

He described it as a cord like structure which can be felt in the man’s scrotum. He makes a note if there is an absent testicle or an undescended testicle. He would also check for hydroceles, a fluid filled sack usually around the testicle. If a patient had a hydrocele, he would not proceed with the procedure. [ 53 ] Having completed the examination, Dr. Macdonald then places a rubber band around the tip of the penis just behind the glands and secures the penis upward out of the operating field onto the patient’s shirt.

It is secured with a safety pin. [ 54 ] Next, he washes the scrotum, base of the penis and surrounding area with warm Betadine or Iodine. Dr. Macdonald then washes his hands and puts on sterile surgical gloves. He then puts the instruments together, checks the instruments and asks the nurse to give him two percent Xylocaine plain. He puts a sterile drape on the patient’s scrotum and places the scrotum through a hole in the middle of the surgical drape. He then draws up the anesthetic. He then places a small bubble in the upper thirds of the scrotum having brought the vas deferens up underneath with his fingers.

He infiltrates the small area to anesthetize the skin. He runs the needle up the side of the vas deferens to do a perivasal block which is a local anesthetic block of the vas deferens. [ 55 ] Once the anesthetic has been administered, Dr. Macdonald waits a few minutes for it to take effect. During this period of time he tries to distract the patient by talking to them. The anesthetic usually works within several minutes. He checks to see if it has worked. [ 56 ] Dr. Macdonald then uses a vas dissecting forceps which is a small pointed instrument.

He makes a small puncture into the vas, isolates the vas by rotating the forceps and brings the vas deferens out of the hole. He then grasps the vas with the extra cutaneous vas grasping forceps. The dissecting forceps are the sharp pointed instruments which he uses to peel the fascia off the vas, to separate the fascia and the vessels. [ 57 ] Next, Dr. Macdonald takes the vas dissecting forceps and peels the fascia and the vessels off the vas deferens to isolate two to three centimetres of the vas deferens. He then hemi-transects (cuts halfway through) the vas.

He runs the needle cautery towards the vas deferens. The vas disappears back inside the fascia and he then takes a small titanium hemo-clip and closes the fascia between the two ends of the vas. He then checks for bleeding, excises one and a half to two centimetres of the vas deferens, closes the epidydimal vesicular end of the vas. The fibrosing or closing helps to prevent the vas from rejoining. [ 58 ] Dr. Macdonald then does the same step on the left side. He then covers it with gauze and asks the patient to lie on the bed.

The nurse gives the patient a copy of the discharge instructions and a laboratory requisition so that they can have post-operative check. At this appointment, Dr. Macdonald checks to make sure there is no sperm left in the semen. [ 59 ] Dr. Macdonald makes his chart notes contemporaneously with the procedure. The notes are made electronically. In this case, the chart notes describe a standard surgery. Dr. Macdonald reviewed his notes from his chart outlining Mr. Muir’s procedure, and summarized the notes as follows:

...the procedure performed was vasectomy, right and left. I used electrocautery, I used no-scalpel vasectomy instruments, 1.5 centimetres was excised and titanium hemoclip was used for fascia. There was no complications and the patient was given discharge instructions and a requisition was given to the patient to have a semen check after he had ejaculated 25 to 30 times. [ 60 ] Dr. Macdonald explained that Mr. Muir’s physical examination of the abdomen, scrotum and genitalia was all normal. He would have recorded anything that was abnormal.

If a patient had severely retracted testicles and if he was unable to do the procedure, he would have recorded it on the chart. There were no complications in the procedure. [ 61 ] Once the procedure is finished, the patient remains lying down for 15 minutes. Dr. Macdonald returns to see the patient before he is discharged. [ 62 ] Dr. Macdonald confirmed during direct examination that he never uses gowns at his clinic; does not use stirrups or a curtain. He also confirmed that he has never put local anesthetic into the shaft of a patient’s penis during a no-scalpel vasectomy.

He never makes the entry hole for the procedure in the shaft of the penis as opposed to the scrotum. [ 63 ] Dr. Macdonald testified that he has never been grabbed by a patient during a surgical procedure and has never been asked to stop a vasectomy in the middle of a procedure. [ 64 ] Dr. Pollock opined that Dr. Macdonald did not meet the standard of care in performing the procedure itself. First, according to Dr. Pollock, there is no evidence that Dr. Macdonald examined the patient as far as his genitalia and testicles prior to the surgery.

Had he done this and not been able to locate the vas deferens or was able to note the retractile testes, a discussion could have been had with the patient in regards to the higher risks of proceeding with the surgery in all respects of all complications. According to Dr. Pollock, if a physician was having trouble operating on a patient and finding the vas deferens he should pause and explain this fact to the patient and give the patient the option to decline to continue in light of the increased risks of persisting to attempt to locate the vas deferens.

The longer a surgery persists, the higher the chance of subsequent trauma and infection. In this case, the scrotum could have been heated and a Valium could have been prescribed, a muscle relaxant that almost always has a relaxing effect on the scrotum and drops the retractile testes partially or completely making the vas deferens easier to find and thereby reducing the risks. Specifically, Dr. Pollock stated: I note that in this case the patient is quite clear that the doctor had trouble palpating the vas deferens.

He continued using the no scalpel technique, one where he admitted was not optimal for him in cases of difficulty to palpate the vas deferens. This brings the question as to why he would not stop and offer the patient an option for an alternative conventional technique one in which he is more comfortable using in such difficult situations. As such, it appears he was not proceeding with a reasonable standard of care in light of his own degree of comfort with the no scalpel procedure. [ 65 ] Dr. Pollock opined that if Dr.

Macdonald spent seven minutes searching for the vas deferens and could not find it a lot of inflammation and damage will be done. [ 66 ] According to Dr. Pollock, Mr. Muir noted that the puncture for him was made somewhere in the lower third of the penis shaft skin. This was unusually high and the vas would have been in a highly inaccessible place to the surgeon. [ 67 ] In Dr. Popowich’s opinion, Dr. Macdonald met the standard of care. Dr. Popowich noted in his expert report that Dr. Pollock relied heavily on Mr.

Muir’s recollection of events in coming to his conclusions about the standard of care, and it is well known that patients are poor historians and may often interpret certain actions or inactions in ways other than intended. [ 68 ] According to Dr. Popowich, the only contraindication for not doing a no-scalpel vasectomy is if the physician could not isolate the vas. Retractile testicles are not a reason to not perform a no-scalpel vasectomy. He testified during direct examination as follows: Q I want to turn to the no-scalpel vasectomy. In 2005 were there any contra-indications for a no-scalpel vasectomy?

A Really the only contra-indication would be if you could not feel the vas. Q And -- and at what point when you couldn’t feel the vas? A Immediately before starting the procedure if you can’t isolate the vas, you could not do the no-scalpel technique in my opinion. Q Okay. So, if you could find the vas on exam then it was okay to proceed? A Correct. Q Are retractile testicles a reason not to do a no-scalpel vasectomy? A In my opinion, no. Q Why not? A Again, if you can feel the vas deferens you can do the procedure. [ 69 ] Dr.

Popowich testified that it was standard practice to do an examination just prior to performing the vasectomy. The examination should involve examining the scrotum to make sure that there’s no hernia, “no collection of blood vessels that could get in - - get you into trouble, and that you could feel the vas and separate it from the rest of the cord structures”. He stated as follows in direct examination: Q And can you -- and you’ve indicated where you make the hole. So, the physician is performing the procedure in the scrotum.

A That’s correct. The -- the skin to the scrotum is really thin and manoeuvrable and, when you’re trying to isolate the vas, you do something called the three-finger technique. So, you have one finger behind the scrotum and two on front, and you manoeuvre the skin around until you can trap that vas and fix it so it’s not going to roll away from you. And sometimes you get a surprise where you have to work really hard to manoeuvre the vas over to the midline and I’ve had patients where at the end the skin puncture basically looks like it’s on the lower part of the -- the penis, but you weren’t working there.

That’s just where the skin was stretched from, so --. [ 70 ] According to Dr. Popowich, the standard of care in 2005 with respect to charting was to chart abnormalities. In 2005, it was Dr. Popowich’s standard to make a note of every phone call with a patient. However, he testified that not every physician followed this standard. It is clear that Dr. Macdonald did not follow this standard. [ 71 ] Dr. Popowich noted that Dr.

Macdonald’s recollections are credible but “poorly documented in writing.” However, the standard of care is not to document in detail what is normal but to document in great detail what is unusual. While not properly documented, Dr. Macdonald’s actions still met the standard of care. According to Dr. Popowich: “Better documentation should be something we all strive for but is difficult to achieve in the fee-for-service environment of medical practice for family physicians in Alberta where time pressures shape the standard of care we see in practice.” Dr.

Pollock agreed during cross-examination that if a surgeon notes “no complications” that would usually mean that the surgery went as expected. [ 72 ] This Court finds that the evidence established the following: • Dr. Macdonald uses computer records and not handwritten notes during consultations and procedures. • Gowns are not used during the procedure. • Dr. Macdonald warms the procedure room up 30 minutes prior to the surgery. • Dr. Macdonald always performs a check of the patient’s scrotum, abdomen, and testicles. • Dr.

Macdonald always uses warm betadine to sterilize the surgical site and help relax the scrotum. • Dr. Macdonald runs the needle up the side of the vas deferens to do a perivasal block which is a local anesthetic block of the vas deferens. He does not inject the anesthetic into the penis. [ 73 ] Dr. Macdonald’s chart for Mr. Muir notes no complications. The surgery was described as standard. It is not surprising that he does not have a specific recollection of Mr. Muir as he performs numerous surgeries per year. This Court concludes that had Dr.

Macdonald encountered a complication or unusual occurrence during the surgery, he would have made a note of it in his chart. [ 74 ] Mr. Muir had some mistakes in his testimony which causes this Court to question his recollection of events. He recalled that his feet were in stirrups and the evidence shows that there were no stirrups. Mr. Muir also testified that there was a curtain draped across his waist but Dr. Macdonald does not use a curtain. He recalled Dr. Macdonald using handwritten notes. He uses a computer to take notes. Mr. Muir did not recall that the room was warm and Dr.

Macdonald testified that he always warms the room up. Mr. Muir also did not recall Dr. Macdonald using warm betadine to clean the area whereas Dr. Macdonald testified that he always uses warm betadine. Mr. Muir also testified that Dr. Macdonald did not perform a physical examination prior to the surgery. Dr. Macdonald testified that he always performs a physical examination. Furthermore, Mr. Muir said he did not time the surgery and had no idea how long it took. This Court finds that Mr. Muir’s evidence on many points was not reliable. Therefore, this Court does not accept Mr.

Muir’s evidence that he knew how long it took for Dr. Macdonald to find the vas on the right side. [ 75 ] While Dr. Pollock is an exceptionally qualified physician, I find that in reaching his conclusion on standard of care, he relied on much of Mr. Muir’s narrative, which was not always reliable. First, he states that there is no evidence that Dr. Macdonald examined the genitalia and testicles prior to surgery. He reached this conclusion based on Mr. Muir’s evidence. I have accepted that Dr. Macdonald does this process as part of his standard practice and there was no reason to depart from it during Mr.

Muir’s visit. Dr. Pollock also accepts Mr. Muir’s evidence that Dr. Macdonald had trouble locating the vas. Again, there is nothing in the notes to reflect that there were complications during this surgery. Mr. Muir’s testimony is not reliable on this point. Furthermore, there is no evidence that his testicles were retracted during this surgery. [ 76 ] This Court finds that Dr. Macdonald performed this surgery in accordance with the standard practice. There is no evidence to establish that the standard of care was breached. I accept Dr. Macdonald’s testimony on his standard practice. Dr.

Macdonald’s notes do not reflect any complications. If there had been any, he would have noted them. Although his charting practices could have been better, I do not find that they fell below the standard of care. 4. Post-Surgery [ 77 ] Mr. Muir testified that when he left the Clinic he was sore down in the “lower end”. He was not walking normally. He managed to get into his car and drive home. He stopped at one point to get out of the car and stretch. This was not because of his condition but because he wanted a break. [ 78 ] The after-care for the no-scalpel vasectomy was described on the pamphlet. Mr.

Muir recalled there were some directions about heavy lifting and icing areas that were sore. He followed the procedure exactly. He had bruising and swelling. He was unsure when the bruising faded away although with time he started to improve. [ 79 ] Mr. Muir recalled that he read somewhere that he could not have unprotected sex for a while. Once that period of time elapsed, he and his wife resumed sexual intercourse but Mr. Muir experienced a great deal of pain when he ejaculated. They tried a few more times but his pain continued. He began having pain in his left leg. Mr.

Muir also started getting pain in his left foot whenever he sat. He found it was uncomfortable to wear tight clothing. Mr. Muir noticed that his left testicle had dropped lower.

[ 80 ] Mr. Muir recalled helping with the family Christmas tree following the surgery. Because of his ongoing pain, he did not lift the tree but helped to steady it. He was not bent over but he bent his knee slightly and then he felt pain in his left scrotum. [ 81 ] In early December 2005, the ski season was just beginning. As he was head coach he was required to be present on the Lake Louise Ski Hill to help organize the students. He attended the ski hill on the Sunday following his surgery. The surgery was on a Wednesday. According to Mr. Muir, he would only take easy runs and check on groups.

He felt some pain when he turned. He had no falls at this time. The sessions ran from 9:30 a.m. till noon and then again in the afternoon. He was involved in no other activities but he continued to ski for the duration of the 2005 and 2006 ski season. [ 82 ] Throughout the recovery process, he returned to walking normally. He still had pain shooting through to his left foot and after ejaculating. Around the middle of December he called Dr. Macdonald. The first call was short as he was unable to speak directly with Dr. Macdonald. He then called again but still was not able to reach him.

Following the phone messages, Mr. Muir sent an email to the Clinic. Shortly after he sent the email he received a call from Dr. Macdonald. [ 83 ] Mr. Muir explained to Dr. Macdonald that he was still experiencing pain. At one point, Dr. Macdonald commented that he sounded depressed and that he should come and see him and he would prescribe an anti-depressant called Elavil. [ 84 ] At that time, Mr. Muir was in Trochu, spending Christmas with his family. As it was over a three and a half hour drive from Banff, Mr. Muir did not think it made sense to make this long trip. Furthermore, he did not like Dr.

Macdonald’s suggestion that he take Elavil and he decided to seek help elsewhere. He made an appointment with Dr. McLaughlin in early January. This was the beginning of a long journey of appointments and procedures for Mr. Muir which will be elaborated on later in this judgment. [ 85 ] Dr. Macdonald confirmed that the discharge instructions included keeping the area clean and dry for 48 hours, going home and put their feet up and doing very little for 48 hours. Patients are advised to wear athletic support or two pairs of tight underwear for protection and comfort for one week.

For the first week, patients are advised to avoid heavy lifting, contact sports and other vigorous activity that could cause swelling or bleeding. [ 86 ] If patients experience difficulties, they are advised to contact their family doctor or Dr. Macdonald. According to Dr. Macdonald, it is rare that patients contact him. [ 87 ] Dr. Macdonald confirmed that he would have advised Mr. Muir to take Elavil. He explained that it is a good second line drug because in low doses it is good for treating chronic pain and it is good for insomnia. In high doses it is used to treat depression. [ 88 ] In Dr.

Pollock’s opinion, Dr. Macdonald breached the standard of care for post-care treatment. Dr. Pollock opined that Dr. Macdonald breached the standard of care when he failed to return Mr. Muir’s calls. Mr. Muir then had to write an email to the Clinic as this was the only way he could communicate with the doctor. [ 89 ] Dr.

Pollock opined that it was careless to not set up a follow-up on day three or four and careless not to have presented the patient with detailed information as to warning signs of an infection and when and how to obtain care should specific signs and symptoms occur. [ 90 ] In his medical report, dated January 14, 2014, Dr. Popowich noted that there is very little post-operative care required of the physician apart from written and verbal instructions regarding activity, medication, ice packs etc.

If a patient is experiencing pain, swelling, fever or problems with the operative site, the physician should see the patient. [ 91 ] Dr. Popowich has encountered three patients with chronic post-operative pain in his career. He treated the patients with long- term pain with anti-inflammatories for a period of six weeks. If that did not resolve the issue, Dr. Popowich would then send the patient to an urologist. In the three patients that he treated, one resolved, one did not resolve and he lost track of the other patient. [ 92 ] Elavil is used for treating chronic pain. Dr.

Macdonald’s recommendation for Elavil and to come in and see him was reasonable advice. [ 93 ] Dr. Popowich did not believe that the shooting pain down the leg during ejaculation could be related to the no-scalpel vasectomy. The nerve that supplies the leg is nowhere near the operative site. [ 94 ] This Court finds that the post-operative instructions provided to Mr. Muir met the standard of care. However, the evidence indicates that there Dr. Macdonald did not immediately return Mr. Muir’s phone calls. In this Court’s view, Dr. Macdonald breached the standard of care by failing to return Mr. Muir’s phone calls.

Post-operative care would require returning a surgical patients calls if they are experiencing difficulties post-surgery. [ 95 ] In conclusion, this Court finds that Dr. Macdonald met the standard of care in all respects with the exception of failing to return Mr. Muir’s phone calls in a timely manner. 5. Post-surgical medical care [ 96 ] At this point in time, Dr. Macdonald’s involvement in the case ended. Following the surgery, Mr. Muir embarked on a long journey of procedures and visits with many medical practitioners. Only two of these treating physicians testified: Drs Shields and Baverstock.

Therefore, much of this evidence is brief. The chronology of Mr. Muir’s post- surgical treatment providers is as follows: • Mr. Muir first went to see his general practitioner, Dr. McLaughlin, in early January 2006. He could not recall if there was a physical examination. • Following his appointment with Dr. McLaughlin he made an appointment with Dr. Baverstock, a urologist at the Rocky View Hospital for March 2006.

• Before his appointment with Dr. Baverstock he attended at the emergency centre of the Rockyview Hospital on at least twooccasions in January and February 2006 as he continued to experience pain. • Mr. Muir saw Dr. Baverstock on March 6, 2006. When Mr. Muir explained his symptoms to Dr. Baverstock, he investigatedpossible cancer or prostrate problems. He prescribed Flomox and sent Mr. Muir for a cystoscopy to look at his bladder. The lab tests andscrotal ultrasound were normal. The physical examination was normal. Dr.

Baverstock suspected pelvic floor dysfunction or spasm andrecommended conservative treatment in the form of medication and physiotherapy. Based on his physical examination of Mr. Muir hethought he had had a good vasectomy. This was the only time he saw Dr. Baverstock. • Mr. Muir also saw Dr. Balharry, a general practitioner in Canmore. He saw Dr. Balharry on a number of occasions. He tried anumber of injection treatments. On a couple of occasions the injections helped with the pain but the relief was not permanent. • Mr. Muir also saw Dr. Shields and Dr. Amundson, both urologists in Lethbridge. • Dr.

Shields was the first urologist he saw in Lethbridge. He saw him in May 2006. He saw Dr. Shields about obtaining avasectomy reversal. Dr. Shields did not think this would be a good idea and specifically advised against it. Dr. Shields refunded hismoney as he did not want to do the reversal. Dr. Shields referred Mr. Muir to Dr. Manjanatha. Mr. Muir was advised that Dr. Manjanathawas a pain specialist. • Dr. Shields evidence: Dr. Shield’s examination of Mr. Muir’s epididymis, testicles and scrotum was normal. Dr. Shields could notdetermine the cause of Mr. Muir’s pain. Dr. Shields advised against a reversal.

In his opinion it would likely aggravate rather than helpalleviate the pain. • Mr. Muir also received a number of injections from Dr. Amundson. • Mr. Muir saw Dr. Abele, a urologist. Dr. Abele was not able to offer him a meaningful solution. He saw Dr. Hulyk, the father-in-law of one of his sisters. Dr. Hulyk made referrals and provided information. • Mr. Muir found an American physician, Dr. Burrows, a urologist who specialized in vasectomy complications, in Tucson,Arizona. Dr. Burrows performed a vasectomy reversal in August 2006. Following the reversal, according to Mr.

Muir, his symptomsimproved for about three weeks. After three weeks he phoned Dr. Burrow’s office and advised he was experiencing a burning on the leftside. He returned to Dr. Burrow’s office where Dr. Burrows checked the left side vas where they did the connection. His conditionimproved again. However, the pain and symptoms were not completely eliminated and the pain returned again. • Mr. Muir saw Dr. Burrows for a third time and there was further improvement. He still had a burning sensation in his feet andsome pain in the left-hand side. • Mr. Muir continued to see doctors, including: Dr.

Clark, a pain specialist; Dr. Aung; Dr. Levine, a urologist in Chicago, whospecialized on post-vasectomy pain; Dr. Carslon; and Dr. Wilson, a neurologist. • Dr. Wilson treated him with Botox. Although it provided temporary relief, it did not permanently relieve the pain. • Dr. Robert and Dr. Binegar were two other doctors he saw. Dr. Binegar worked at the Mayo clinic in the United States. Dr.Brown worked in Montreal, a general surgeon who worked on groin injuries. • Mr. Muir’s current physician is Dr. Ali. He has been treating Mr. Muir since December 2010. • Dr.

Ali recommended a number of treatments including ketamine infusions and lidocaine injections. Mr. Muir located thesephysicians and asked Dr. Ali to assist him in filling out the appropriate financial forms. • Mr. Muir found some relief with ketamine infusions. Dr. Ali recalled that there was some improvement but Mr. Muir was havingdifficulty obtaining funding. There was also a clinical issue with respect to Mr. Muir’s blood pressure. Dr. Ali also noted that he“plateaud” with the ketamine infusion. • Dr. Ali also advised Mr. Muir that periphery nerve blocks would not improve his symptoms on a permanent basis. Mr.

Muirwanted to proceed in any event. V. Causation A. The Law [97] Although this Court found no negligence on the part of Dr. Macdonald in the performance of the surgery, it is still necessaryto consider causation in the event that this Court is overturned on the negligence finding. Furthermore, this Court did find a breach in thestandard of care when Dr. Macdonald failed to promptly return Mr. Muir’s phone calls. [98] Once negligence is established, the Plaintiffs must then establish that the negligence caused the injury. The burden remainswith the Plaintiffs.

Case law has established that in determining causation, the courts should take a robust and pragmatic approach to thefacts: Snell v Farrell, (SCC), [1990] 2 SCR 311 at para 33. [99] The Plaintiffs must establish on a balance of probabilities that "but for" the Defendant's negligence, the injury would not haveoccurred. This is a factual inquiry: Athey v Leonati, (SCC), [1996] 3 SCR 458; and Clements (Litigation Guardian of)v Clements, 2012 SCC 32. The second aspect in establishing causation is that the injury must be foreseeable: McArdle Estate v Cox,

2003 ABCA 106 at para 24 . This is a legal inquiry: Brough . [ 100 ] The Supreme Court clarified the basic test for causation in Hanke v Resurfice Corp ., 2007 SCC 7 . The basic test for causation remains the "but for" test but that in exceptional cases where that test is unworkable, the "material contribution" test will apply. This was later confirmed in Clements where the Court stated that the "but for" test may be unworkable in some situations, and the material contribution test may be available. The Court in Clements stated the following at para 46: The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(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 has established 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, each possibly 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 possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [ 101 ] In this case, the basic test for causation applies. The Plaintiffs cannot succeed unless they show that Mr. Muir would not have suffered the loss “but for” the negligent act(

s) of Dr. Macdonald. B. Plaintiffs’ Position [ 102 ] The Plaintiffs submit that causation is established. Prior to the surgery, Mr. Muir was experiencing no pain. After the surgery, Mr. Muir left the Clinic with disabling pain. The only reasonable inference to be drawn from the facts is that something went wrong in the way the operation was performed. C. Defendant’s Position [ 103 ] The Defendant submits that if the chronic pain and decrease in functionality occurred regardless of Dr. Macdonald’s conduct, then the claim must be dismissed.

According to the Defendants, the Plaintiff had the usual post-vasectomy pain but the pain became chronic as Mr. Muir exacerbated it by electing to go skiing and handling a heavy object within four days of the vasectomy. This was followed by numerous medical interventions. Furthermore, there was no objective medical evidence that Mr. Muir had complications or an infection. D. Mr. Muir [ 104 ] Mr. Muir testified that after the procedure, he was bruised for some time following the procedure. He initially had difficulty walking and his walking improved a bit over time. Mr.

Muir’s pain did not improve over Christmas and upon returning to his home in Cochrane he started to take steps to address it. [ 105 ] After the surgery, Mr. Muir skied at the Lake Louise Ski Hill. This was four days after the vasectomy. He also testified that he assisted with a Christmas tree and felt a great deal of pain. [ 106 ] Mr. Muir admitted that he was advised against getting a vasectomy reversal. He stated during cross-examination: Okay. Do you ever remember having a long discussion with Dr. Shields in his office about why he thinks you shouldn’t go through a vasectomy reversal?

A I wouldn’t call it a long discussion. We might have had a small discussion just that he didn’t want to do the vasectomy reversal for pain reasons. Q Right. And he -- do you remember him saying he didn’t think it would be of any benefit to you? A That was what he inferred. [ 107 ] Mr. Muir agreed that Dr. Baverstock could find no obvious reason for his ongoing pain. Dr. Baverstock told him that he saw no evidence of an abscess or a fluid build-up based on his examination. He also told him that he saw no evidence of a granuloma and recommended pelvic physiotherapy. E. Dr. Gordon [ 108 ] Dr.

Gordon did not examine Mr. Muir. Based on his review of the medical records, he opined that Mr. Muir probably has neuropathic pain that has been exacerbated by his various procedures, including the denervation and ilioinguinal procedures. Dr. Gordon noted that Mr. Muir has had various traumas to his nervous system. This led to sensitization and spread of pain outside the area of the nerves that were done. [ 109 ] According to Dr. Gordon, there is no clear evidence that Mr. Muir’s nerve was damaged. The initial spread down the left leg is supportive but not firm evidence. Dr.

Gordon summarized the following in his expert report dated February 9, 2014:

Mr. Muir had so many other procedures that led to complicated neuropathic pain. These later surgical procedures have turned Mr. Muir’s pain into a nightmare of naturopathic pain, each one making him worse. Even the orchiectomy did not solve the problem. I cannot help but think that if he had stopped at the initial surgical procedure and tried a pain management program, in a comprehensive way that he would stick to, he may not have gone down this path. Unfortunately, however, he has had numerous surgical procedures, all hoping to make him better, and ultimately making him worse.

Did he have a complex regional pain syndrome? That condition is normally seen in the limbs. It is quite unusual to have it in the pelvic and genital area. In any event one would look for evidence of circulation changes, swelling, lack of function, and some sensory changes. I do not think those are all here. [ 110 ] In Dr. Gordon’s opinion the initial pain experience by Mr. Muir in 2005 after the vasectomy was inflammatory. The procedure itself produced the inflammation leading to the release of inflammatory compounds.

It is possible that the skiing on day four and the lifting of the Christmas tree a few days later could have stretched or damaged the nerve leading to further inflammation and pain or even nerve damage. The surgical site was traumatized by these activities. [ 111 ] During cross-examination, defence counsel asked Dr. Gordon various questions about the follow-up care. I place little to no weight on this evidence. Dr. Gordon was asked to opine on causation and not standard of care. [ 112 ] During cross-examination, Dr.

Gordon confirmed that Elavil is not only prescribed for depression but also for sleep disturbances, pain, neuropathic pain, and fibromyalgia. F. Dr. Pollock [ 113 ] In Dr. Pollock’s opinion, the negligent surgery and the entire course of care caused Mr. Muir’s chronic pain.

In his expert report he opined as follows: I believe that the entire course of care starting from the initial assessments, initial examinations, initial disclosure, evidence of surgical difficulties, lack of proper and responsible follow-up, lack of inter-operative common sense modifications being offered, all contributed cumulatively to causing the injuries that Todd Muir exhibited after the procedure. In

summary it is more likely than not that had Todd Muir been treated in his pre-operative, inter-operative and post-operative care in a way that met the standard of care and common sense behaviour and respect for the best interests of the patient, that he would not be suffering from chronic pain syndrome today. [ 114 ] During direct examination Dr. Pollock testified that when the scrotum is constricted or the testicles are high up there is higher risk of damage to the epididymis.

There are two ways that pain could result: one is by actually causing trauma to the epididymis itself with the instruments, the second is that there is a degree of inflammation created by the vasectomy itself. If the vasectomy is done close to the epididymis the nodules through their size and mechanical pressure may press on the epididymis and this could lead to unrelenting, unrelieving kind of pain. [ 115 ] Dr. Pollock testified during cross-examination that a physical examination of the area would tell him more than an ultrasound.

Although it would not hurt to get the information from an ultrasound it is not essential for a diagnosis. During the physical examination, you can check for tenderness and nodules. A physical examination would not rule out compromised inflammatory scar tissue created close to the epididymis. This Court notes that Dr. Pollock never carried out a physical examination of Mr. Muir. [ 116 ] Dr. Pollock agreed that the more surgical interventions that are done the more chance of causing inflammation. In Dr.

Pollock’s opinion, considering all the breaches of the standard of care, there was a “much greater probability than not that Mr. Muir would not be suffering from a chronic pain syndrome”. [ 117 ] Dr. Pollock stated during cross-examination with respect to causation: Q So is it the epididymis that, in your opinion, was injured and is causing Mr. Muir’s pain? A So, in the injury, it is likely that the epididymis was either injured or the surgery was done in a way that set him up for a pressure and sensitization of that epididymis that causes chronic pain.

So if you do the surgery and there’s a nodule sitting right above your epididymis and every time you sit those two come together, or you know what I mean, it’s an easy understandable kind of physical entity that if you’ve got a nodule right above you’re in trouble. G. Analysis [ 118 ] The Plaintiffs must establish that “but for” the negligence of Dr. Macdonald, Mr. Muir’s pain would not have occurred. If the Plaintiffs are unable to establish this, then the claim must be dismissed. This Court acknowledges that Mr. Muir experienced pain following his surgery.

However, even if there was a breach in the standard of care of the performance of the surgery, the Plaintiffs have failed to establish causation. With respect to the breach of failing to promptly return Mr. Muir’s calls, I find that this did not affect the post-surgical outcome. [ 119 ] In this Court’s view, Mr. Muir experienced post-surgical pain which was exacerbated by post-surgical activity and further surgical interventions. There is no objective medical evidence that there were any surgical complications. In fact, Dr. Baverstock noted that he found normal testes, epididymis, scrotum and vas.

There was no physical evidence that the vasectomy was causing the pain. [ 120 ] Furthermore, Dr. Shields also examined Mr. Muir and found no evidence that the vasectomy was causing the pain. The objective evidence is supportive of the fact that his pain materially increased following the vasectomy reversal. Mr. Muir chose to take this course of action in spite of receiving advice to the contrary. In fact, his physicians in Canada advised him against getting a vasectomy reversal and advised him to pursue more conservative pain treatments. Both experts agreed that additional surgeries in the pelvic region

increase trauma, scarring and pain. Even though Mr. Muir testified that he did feel some relief following the surgery, his actions contradict this view. For example, he was not able to work or return to any of his pre-surgical activities. Furthermore, he continued to seek treatment from other medical providers and continued to have surgical interventions. [ 121 ] The Court is of the view, that even if there was negligence during the surgery it did not cause the post-operative pain experienced by Mr. Muir. Mr.

Muir experienced relatively normal post-operative pain and then chose to continue skiing within the critical recovery period. This exacerbated the pain. He was able to work and commute to Lethbridge. His decision to pursue further surgical intervention likely aggravated the symptoms ultimately leading to the long term pain. The additional surgeries in the areas increased the trauma to the areas. This is supported by the expert evidence of Dr. Gordon and Dr. Popowich. This Court accepts their evidence on causation. Dr. Gordon was qualified to comment on causation.

Although he does not perform vasectomies he is a specialist in the area of chronic pelvic and genital pain and pain management. [ 122 ] For nine months following the vasectomy, Mr. Muir coached skiing, worked full-time, commuted to work in Lethbridge and exercised. This Court does not dispute that Mr. Muir experienced pain but he was able to carry on with daily living until he had the vasectomy reversal. He had a dramatic decline in functionality after August 2006. This Court has reviewed Mr. Muir’s evidence at trial that the vasectomy reversal and the removal of his left testicle by Dr.

Burrows improved his condition in the long-term although not all of the pain and symptoms were eliminated. However, this evidence does not accord with such a decrease in functionality after the further medical interventions. It also does not accord with Mr. Muir’s continued pursuit of medical treatments. Therefore, I do not accept his evidence on this point. Although he may have experienced short term relief, ultimately, his situation worsened following the reversal and the further medical interventions. [ 123 ] With respect to Dr. Macdonald’s breach of the standard of care to promptly return Mr.

Muir’s calls, I find that this breach did not cause Mr. Muir’s ongoing pain. When Mr. Muir did speak with Dr. Macdonald, Dr. Macdonald appropriately advised him that he should take Elavil for the ongoing pain and make an appointment to see him. Mr. Muir chose not to, and instead elected to wait until after Christmas to deal with the issue. The delay in returning his call did not contribute or cause Mr. Muir’s pain. [ 124 ] The Plaintiffs have not proven that “but for” Dr. Macdonald’s negligence Mr. Muir’s chronic pain would not have occurred and he would have been functional.

The Plaintiffs have failed to establish causation. VI. Informed Consent A. The Plaintiffs’ position [ 125 ] The Plaintiffs submit that the discussion of the risks of the procedure was inadequate. According to Dr. Pollock, Dr. Macdonald failed to obtain Mr. Muir’s consent for the procedure. The website (including the updated website) does not list post-vasectomy pain syndrome as a risk. Dr. Macdonald had no protocol when it came to evaluating and disclosing risks. B. The Defendant’s position [ 126 ] Dr. Macdonald’s consent discussion with Mr.

Muir had to be consistent with the practice of a physician performing no-scalpel vasectomies in Alberta in 2005. The very small risk of chronic severe pain was disclosed to Mr. Muir prior to the no scalpel vasectomy in accordance with the standard of care required in 2005. [ 127 ] On the second branch of the test, the Defendants submit that a reasonable person in Mr. Muir’s position would undergo the no- scalpel vasectomy if properly informed of the risk of chronic pain. Mr.

Muir gave no evidence at trial that disclosure of this very small risk of severe chronic pain following a no-scalpel vasectomy would have caused him to decline the procedure. [ 128 ] Taking into consideration Mr. Muir’s perception of his wife’s position, Dr. Popowich’s testimony and absent any evidence that he would have done otherwise, a reasonable person in Mr. Muir’s position would have gone through with the no-scalpel vasectomy if told about the small risk of severe chronic pain. C. Website Information and Consent Form [ 129 ] Exhibit 1 states: What complications can occur?

Epididymitis – a tender inflammation around the testis may occur after 4-5days. This occasionally can result in a chronic ache and very seldom becomes severe. Treatment- Anti-inflammatory drugs, usually subsides within a few days [ 130 ] The Consent Form states: Having asked Dr. Ian MacDonald to perform the operation of sterilization, consent to this operation and the administration of whatever anesthetics may be decided to be necessary or advisable. I have been advised that following this operation I will be unable to produce children and do fully understand that the operation cannot be reversed at later date.

I understand that there is the possibility that the operation will not be successful.

D. Case Law [131] In Reibl v Hughes, (SCC), [1980] 2 SCR 880, the Supreme Court outlined a two-part test to determine thequestion of informed consent. The first step of the test involves a consideration of whether the medical practitioner adequately advisedthe patient of: (

i) the nature of the procedure; (ii) the benefits and risks of the procedure; (iii) any alternatives to the procedure; and (iv) the likely prognosis of not having the procedure. [132] The doctor must balance the likelihood of the risk materializing against the gravity of the harm that could ensue if it were tomaterialize, when deciding whether to advise a patient of a particular risk: Hopp v Lepp, (SCC), [1980] 2 SCR 192, at209. [133] In determining whether a patient was properly advised, such that his consent to treatment was informed, the court is not boundby the opinions of medical professionals; rather, it is entitled to decide for itself the appropriate standard of disclosure: Videto v Kennedy(1981), (ON CA), 33 OR (2d) 497 ( CA), at para 12.

In ter Neuzen v Korn, (SCC), [1995] 3 SCR674 at para 41, Sopinka J., speaking for the court on this issue, held that: It is evident from the foregoing passage that while conformity with common practice will generally exonerate physicians of anycomplaint of negligence, there are certain situations where the standard practice itself may be found to be negligent.

However, this willonly be where that standard practice is "fraught with obvious risks" such that anyone is capable of finding it negligent, without thenecessity of judging matters requiring diagnostic or clinical expertise. [134] The Court can still take into consideration the opinion of experts: Felde v Vein and Laser Medical Centre, [2002] OJ No 3686,2002 Carswell Ont 3168; 14 CCLT (3d) 246, (SC), at para 66. [135] In Groves v Morton, (ON SC), [2006] OJ No 4772, the Court accepted that although the defendant doctordid not tell the patient that there was a risk the pain would last the rest of his life, what the defendant did say was consistent with thepractice of other urologists in Ontario.

The defendant adequately informed the plaintiff of the reasonable risk and a reasonable man in theplaintiff’s circumstances would probably have proceeded with the vasectomy. [136] In Williamson v Kozak, 2003 ABQB 953, the plaintiff experienced swelling, discoloration and acute pain after a conventionalvasectomy.

Although the physician was found negligent on other matters, on the issue of informed consent, the court found that thedefendant met the standard of care in informing the plaintiff of the normal risks of a vasectomy procedure notwithstanding the lack ofreference to the more remote possibilities of a “deep seated infection, the use of extra sutures, chronic testicular pain or a scrotalhaematoma”: Williamson at para 98. [137] If the patient was not adequately informed the second step requires the court to determine whether a reasonable person in thecircumstances of the patient, had he been properly informed of those things respecting which he was entitled to be informed, would havegone ahead with the procedure in any event.

E. Analysis [138] Mr. Muir and his wife decided that they were not going to have any more children after their two sons were born. His wife wasinitially taking birth control but started having issues with it and decided to pursue other options. At some point in time, they starteddiscussing the possibility of Mr. Muir having a vasectomy. [139] At trial, Mr. Muir explained that he has highly retractable testicles. This only became an issue when he was cold. According toMr. Muir, exercise tends to “make them go down”. This situation did not cause any type of interference with his relationship with hiswife.

There was no associated pain although it was uncomfortable if the testicles were retracted. [140] Initially, Mr. Muir spoke to two physicians about the procedure: Dr. Lindskoog and Dr. McLaughlin. He also started doingsome online research. He uncovered at one point the non-scalpel vasectomy procedure. He discussed the procedure with Dr. Lindskoog.Dr. Lindskoog recommended Dr. Ritchie. Dr. Lindskoog said some things about the complications. Following this appointment he wasnot quite convinced about the procedure so he continued to do some online research. [141] Mr.

Muir then made an appointment with a general practitioner in Cochrane, Dr. McLaughlin. He had a discussion with Dr.McLaughlin and then a physical examination. Dr. McLaughlin provided a referral to Dr. Macdonald at the Alpine Medical Clinic inBanff, Alberta. [142] In October 2005, Mr. Muir called Alpine Medical Clinic and spoke with the receptionist. He made an appointment for thevasectomy on November 30, 2005. After he made the appointment, Mr. Muir phoned the clinic a second time to ask further questionsabout the procedure. He asked questions and was also referred to their website.

As a result of the phone call, he still wanted to speak withDr. Macdonald. [143] Mr. Muir made a third call and spoke with Dr. Macdonald. His questions to Dr. Macdonald revolved around the risks. He wasconcerned as to whether there was a risk it would affect his sexual performance. He asked some questions about physiology. He had fourareas of questions. He asked whether the procedure could affect erections. Dr. Macdonald replied only if it is “in your head.” Dr.

Macdonald appeared to be in a hurry. The phone call lasted approximately ten minutes. During the phone call, Mr. Muir was referred to the clinic’s website. [ 144 ] At trial, Mr. Muir was shown documents from the website (Exhibit 1) and testified that some aspects of the document were the same as the website he looked at prior to his surgery. Mr. Muir recalled reviewing the complications of a vasectomy which included epididymitis.

He also recalled being told to bring another pair of tight underwear on the day of the procedure and after the vasectomy he was not supposed to do heavy lifting and vigourous activity because it might cause bleeding. [ 145 ] On the day of the surgery he had a “whole sheet” of questions for Dr. Macdonald. Although he testified that Dr. Macdonald was “rushed” when answering the questions, he did not disagree that they were answered. Although he did testify that Dr. Macdonald did not answer the question about banking sperm. [ 146 ] At trial, Dr.

Macdonald testified that when a patient comes into the Clinic, he is given a consent form to fill out. According to Dr. Macdonald the purpose of the consent form is to ensure that the patient is aware of the procedure, the list of the procedure, the complications of the procedure and the failure rate. He acknowledged that the consent form does not specifically list the risks. However the risks are listed on the website. If a patient has not read the website, Dr. Macdonald goes through the risks with the patient.

It is his invariable practice to ask the patients if they have read the website. [ 147 ] If the patient has a question he can phone the nurse. The nurse is educated about the guidelines and protocols which are contained in a book in the office. A meeting with Dr. Macdonald can also be arranged. [ 148 ] Dr. Macdonald testified that he always discusses the following risks with the patient: Q Okay. And are there any specific complications that you always discuss with the patient? A I always discuss with patients the risk of any surgery. There’s a small risk of bleeding, infection.

And with no-scalpel vasectomy, I always talk about the condition called Epididymitis which means inflammation of the epididymis. Q Why do you always talk about that? A Because it’s the most complication of vasectomy. Q And what is that complication? Just describe it for the court. A The complication is inflammation -- the pathology is inflammation in the epididymis. Usually this self-limiting and settles down but it is the commonest. It can occur in up to 6 percent of patients. Very occasionally it can become chronic. Q Okay. And do you discuss all of that with every patient? A I do.

Q And during your office consult do you explain the procedure you’re about to do? A I do. Q Okay. And before proceeding with the no-scalpel vasectomy, do you confirm that the patient wants to go ahead with the vasectomy? A I do. Q And you do that with every patient? A Every patient. [ 149 ] Dr. Pollock opined in his medical expert report dated October 11, 2013, that it is not adequate to assume that a patient has read and understood the contents of a website. There is no evidence that that the doctor himself adequately discussed the procedure and its risks with the patient. In Dr. Pollock’s opinion, Mr.

Muir may have had higher risks and higher complications that could likely ensue including the risk of chronic pain as a result of unusual anatomy i.e., retractile testes. [ 150 ] In Dr. Popowich’s opinion, in 2005, most physicians would give out reading material, and have a discussion with the patient. The common risks such as bleeding, infection and hematoma should be discussed, as well as the possibility that the procedure might fail or the possibility of a nodule forming with either a granuloma or a neuroma and long term pain.

Q And that was the -- I guess the standard approach to handling the risk discussion with a patient? A Most people at that time would have been given some reading material, either physically on paper or a website, as well as have a discussion in person or over the telephone. Q And why wasn’t there one standard way -- one way to deal with the risk disclosure in 2005? A Practices were set up. Some were computerized, some weren’t computerized on a website. Some didn’t. Some were more focused on certain procedures in their practice, whereas some were more generalized. So, everyone was a little bit different.

Q And in 2005 what risks needed to be disclosed?

A I think the -- the common risks certainly need to be disclosed - bleeding, infection, hematoma. I always mentioned the risk of the procedure not working, failure, possibility of a -- a nodule form

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