Kain v Davey, 2021 ABQB 190

Court of Queen’s Bench of Alberta Citation: Kain v Davey, 2021 ABQB 190 Date: 20210311 Docket: 1401 05231 Registry: Calgary Between: Theresa Mary Jane Kain and Her Majesty The Queen In Right of Alberta Plaintiff - and - Dr. Stan Davey Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ I. Introduction

[ 1 ] The Plaintiff, Theresa Mary Jane Kain, brings an action against the Defendant, Dr. Stan Davey, alleging medical negligence. The action relates to a posterior vaginal repair performed by Dr. Davey on Ms. Kain on December 4, 2012. [ 2 ] Ms. Kain alleges that Dr. Davey’s administration of medical treatment was negligent and fell below the standard of care expected of a specialist in obstetrics and gynecology in 2012. More specifically, Ms. Kain alleges that Dr. Davey’s substandard care led to the development of post-operative unilateral deep vein thrombosis (“ DVT ”) and post-thrombotic syndrome (“ PTS ”). Ms.

Kain submits that Dr. Davey failed to advise her of the risks of developing a blood clot or DVT arising out of the rectocele surgery and had he advised her of the risks of the procedure she would not have agreed to undergo the surgery without an appropriate risk management plan in place. [ 3 ] Dr. Davey submits that the care he provided met the standard of care of an obstetrician and gynecologist in Alberta in 2012 and that his care did not cause Ms. Kain’s injuries. Ms. Kain was fully informed of all the risks and the treatment options as well as their risks and benefits and chose to undergo the surgery.

Furthermore, a reasonable person in Ms. Kain’s position would likely have undergone the surgery even had she been informed of the risk of DVT. [ 4 ] The Parties have reached an agreement on damages and accordingly the only question before this Court is the liability of the Defendant. II. Issues (

i) Did Dr. Davey fall below the standard of care by managing Ms. Kain’s surgical risk of DVT with mechanical thromboprophylaxis? (ii) If Dr. Davey breached the applicable standard of care was that breach the cause of the Ms. Kain’s injury? (iii) Did Dr. Davey disclose the risks associated with performing the rectocele surgery? (iv) If the answer is no, would a reasonable person in Ms. Kain’s position have undergone the surgery had she known of the risks of DVT? III. Brief Background [ 5 ] On December 4, 2012, Ms. Kain underwent a posterior vaginal repair. The surgery was performed by Dr.

Davey, an obstetrician and gynecologist at Chinook Regional Hospital (“ Hospital ”) in Lethbridge. The goal of the surgery was to repair a prolapse of the vaginal wall. After she was discharged from the Hospital, she developed left leg pain and went on to develop deep vein thrombosis (“ DVT ”), a blood clot in her leg. [ 6 ] This case centers around whether Dr. Davey’s decision to provide Ms. Kain with mechanical prophylaxis during and after the posterior vaginal repair was reasonable and met the standard of care. [ 7 ] The Plaintiff called two expert witnesses at trial: Dr.

Johan Viljeon, an obstetrician and gynecologist; and Dr. Alexander Turpie, an internist with a special interest in thrombotic diseases. The Defendant called Dr. Andrea Skorenki, an obstetrician and gynecologist and Dr. Mark Crowther, a hematologist. [ 8 ] I would like to make a preliminary observation about the experts who testified at trial. All of the experts were more than qualified to testify on the matters in question. They provided their testimony credibly and objectively. However, as I outline in the following reasons, I placed greater weight on some of the experts’ testimony. IV. Evidence A. Witnesses 1.

Ms. Kain [ 9 ] Ms. Kain testified at trial. In 1991, when she was eight months pregnant with her first child, she experienced DVT. Towards the end of her pregnancy she experienced swelling and an uncomfortable feeling in her legs. She immediately called Dr. Lerner, her family physician at the time, who advised her to go directly to emergency. [ 10 ] After Ms. Kain arrived at the Hospital, it was determined that she had a blood clot and was subsequently admitted. She spent most of her two-week hospital stay in bed and was advised to limit her movements. She was administered a blood thinner in her IV.

After she was discharged, she administered a subcutaneous blood thinner by self-injections twice per day. She was prescribed a prophylactic course of subcutaneous heparin which she administered subcutaneously for the remainder of her pregnancy. [ 11 ] After her hospital stay, Ms. Kain experienced no further complications, aside from self-administering the drugs. The swelling in her leg diminished although it remained slightly bigger than her left leg.

She became pregnant for a second time but decided to terminate the pregnancy as doctors advised her she would be placing herself at risk of another blood clot. [ 12 ] Ms. Kain testified that there was a history of DVT in her family as her mother had bad varicose veins and her aunt experienced a blood clot. Her grandmother died during child birth which they have since learned was from a blood clot. However, I note that there is no factual verification that her grandmother experienced a blood clot, aside from Ms. Kain’s testimony.

[ 13 ] She was seen by a hematologist, Dr. Ballem during this period of time. She then moved to the United States. In 1995, she returned to Canada and moved to Lethbridge. Her family doctor at the time was Dr. Longair. She discussed her blood clot and past medical history with Dr. Longair. [ 14 ] Ms. Kain married for a second time and ultimately decided to have another child. She discussed the future pregnancy with her doctor. Dr. Longair’s records indicate that he referred her case to a gynecologist, Dr. Davey. Dr.

Davey suggested she be referred to an internist and started her on an anticoagulant, Heparin, due to her previous DVT during her first pregnancy. She was advised to take self- injectable blood thinners again for the pregnancy and attend for regular blood tests. [ 15 ] Dr. Davey became involved in her care approximately half-way through the pregnancy. When he met with her, Dr Davey reminded her of the risk of pregnancy for someone who had previously experienced a blood clot and managing the blood thinners was going to be important during her pregnancy. [ 16 ] Ms.

Kain gave evidence that she was comfortable with Dr. Davey’s recommendations. Toward the end of the pregnancy, Dr Davey took over her primary care. She was scheduled to be induced to control the bleeding. On October 23, 2001, she delivered her second child. Ms. Kain continued taking the anticoagulant for approximately six months post-pregnancy. [ 17 ] Following the delivery of her second child, she decided that she would not risk another pregnancy and elected to undergo permanent sterilization by tubal ligation. At her next appointment with Dr.

Davey on December 5, 2001, her anti-coagulants were discontinued and birth control options were discussed. A Mirena IUD, a semi-permanent progesterone contraceptive, or tubal ligation were recommended as forms of birth control. Other birth control methods that were hormonal based would put her at risk for future blood clots. Ms. Kain testified that she was unaware that the risk of blood clots would remain a potential risk in the future. [ 18 ] She decided to get a tubal ligation and Dr. Davey performed the procedure. She recalled a general discussion of risks.

She testified that she did not have a conversation with him about the risk of developing a clot or DVT as a result of the procedure. The procedure was performed on April 12, 2002, at the Hospital. Ms. Kain testified that she was in the Hospital for a few hours, although the actual procedure was short, less than a half-hour. She quickly returned back to her ordinary tasks without too much delay. [ 19 ] In the years that followed she started experiencing peri-menopausal symptoms including cramping and heavier periods. After a referral from Dr. Longair, Ms. Kain again consulted with Dr.

Davey with respect to various management alternatives. Dr. Davey advised her that due to her past history of clotting and DVT, she was not a candidate for birth control but recommended a Mirena IUD, (a semi-permanent progesterone contraceptive). According to Ms. Kain, there was no discussion of a potential clot risk discussed in association with the Mirena. She elected to get the IUD and Dr Davey inserted it in early 2009. [ 20 ] In terms of future DVT risks, she understood that there were concerns about developing a blood clot in relation to hormones and pregnancy.

She did not recall any lifestyle recommendations, although she was aware that travelling on a plane and train could be a risk. Posterior Vaginal Repair Surgery [ 21 ] Following the birth of her son, Ms. Kain began to notice symptoms that were consistent with a vaginal prolapse. Initially, it was an inconvenience but it later progressed and started to affect her daily life. The symptoms caused pain and discomfort and interfered with her ability to engage in intercourse and have a normal bowel movement. [ 22 ] Ms. Kain spoke with Dr.

Longair about the issue and he advised her it was a prolapse which could either be genetic or as a result of her having children. As long as it was not causing pain or discomfort, she was advised to monitor the situation. She met with Dr. Davey on October 15, 2012. Dr. Davey diagnosed a rectocele [a weakness in the back wall of the vagina] and advised her of three options: no action; the insertion of a pessary; or a posterior vaginal repair surgery. Dr. Davey recommended the surgery and explained the nature of the posterior vaginal repair. According to Ms. Kain, Dr.

Davey explained that it was a major surgery with six weeks recovery time. There would be certain restrictions on her life afterwards, with respect to lifting, stretching and exercising. He described the procedure to her. [ 23 ] Ms. Kain testified that Dr. Davey advised her of various risks associated with the procedure including anesthesia related risk, bleeding, and risk of a recurrent prolapse but did not advise her of any risks associated with clotting or developing a DVT.

When asked how she was certain he did not discuss the risk of clotting or developing thromboembolism, she testified as follows: Because there was no action plan made. If there was a risk, it would have to be bundled with something else and there wasn’t and I – I wouldn’t have gone into a risk for that, for a clot, without any kind of safety net. Like I would not have done it, it was – I don’t know what I would have done, like I don’t know – I would have I guess searched the globe for alternatives but I would not have done that if I would have known what was going to happen. [ 24 ] According to Ms.

Kain, she was not aware that the surgery carried a risk of clotting. I note that her answer changed from the time of her questioning in 2015 when she answered that she did not recall whether Dr. Davey discussed the risk of DVT to trial where she was firm in her answer that “he didn’t have that conversation with me.” She confirmed that she saw Dr. Davey prior to the surgery and he did not advise her of any additional risk factors including the risk of clotting or DVT. [ 25 ] The surgery occurred on December 4, 2012. Ms. Kain attended at the Hospital and was directed to change into her hospital gown.

Upon exiting the changing room, she noticed that other patients had compression stockings and air boots. An air boot (referred during the trial as intermittent pneumatic compression devices (“ IPC ”) or sequential compression devices (“ SCD ”)), is a compression device that is hooked up to an air generator and fills the boot with air. She testified that eventually she was provided with compression stockings and SCDs. [ 26 ] Ms. Kain’s first memory post-surgery was waking up in her hospital room, wearing the compression socks and air boots

which were inflating and deflating. Her vagina was packed with gauze, she had a catheter and IV. She recalled seeing Dr. Davey either the first or second day following the surgery. [ 27 ] Ms. Kain was advised everything had gone well and her three day in-patient recovery period was largely unremarkable. The first day she was still wearing the air boot and compression stockings. She recalled the air boots failed a couple of times but the nurse got them working again. On the second day post-surgery, Ms. Kain was still unable to urinate on her own. She had the packing removed that day.

Initially she had a bedpan and then later she was able to get up and use the washroom. She would have to detach the air boot when she went to the washroom . [ 28 ] Dr. Davey came to see her twice. Ms. Kain gave evidence that at no time did he discuss the risks of a DVT. He examined her once but did not look at her legs. [ 29 ] During the second or third day, Ms. Kain testified that she was able to get up and ambulate around on her own. She was discharged on the third day. She was given a pamphlet which mentioned walking. Ms.

Kain testified that when she was discharged from the hospital the potential risk of clotting was not on her mind. She was able to take the compression stockings home. Ms. Kain testified that she did not correlate wearing the compression stockings with reducing the risk of a clot. [ 30 ] Over the next few days, she was generally able to move around the house as needed without assistance. Ms. Kain gave evidence that she tried to remain as mobile as possible but was uncomfortable and taking Tramadol as needed.

She wore the compression socks at night and at some periods during the day. [ 31 ] On December 10, 2012, Ms. Kain experienced a sudden onset of tightness, discomfort and heaviness in her left leg. Within approximately one hour of the first signs of discomfort the symptoms had progressed to significant swelling and extreme pain. She recognized the sensation from when she experienced her first clot and immediately went to the Hospital. [ 32 ] When she arrived at emergency, she was sent for an ultrasound and a clot was discovered. She was admitted to Hospital and put on an IV and Heparin. Ms.

Kain noticed improvement in her leg on this first night. She was not given compression socks or boots. She remained hospitalized for three days and sent home with a self-injectable blood thinner. [ 33 ] In the early morning hours of December 14, 2012, she woke up with pain in her leg. Her leg was swollen, sore and tight. Ms. Kain gave evidence that the pain was much more extreme than previous experiences. Her family took her back to the Hospital. She waited for a long time to see a doctor and was given Percocet and ultimately admitted. The pain was constant over the next few days. She asked to see Dr.

Davey or her doctor. The nurse came every 12 hours to give her anticoagulants. [ 34 ] Ms. Kain testified that she wanted to speak to someone as she did not feel that the anticoagulant was working. A doctor came to see her and she advised him that she did not feel better and the doctor recommended the IV Heparin. Within hours her symptoms improved. [ 35 ] A hematologist, Dr. Benke, came to see her while in Hospital. She saw him a couple of times in the Hospital and then other times outside the Hospital. She was asking to be discharged as soon as possible as it was so close to Christmas.

She was discharged from the Hospital on December 20, 2012. 2. Dr. Davey [ 36 ] Dr. Davey testified at trial. He is a generalist OBGYN in Lethbridge. He worked in Lethbridge until his retirement in 2015. He currently works on a part-time basis as a surgical assistant. In 2012, Dr. Davey was doing gynecological surgeries between five and seven days per month. The gynecological procedures included investigative surgeries, endoscopic, laparoscopic, sterilizations, hysterectomies and prolapse surgeries.

He could not recall the exact number of prolapse surgeries he had conducted up to 2012 but it was a very common procedure. [ 37 ] Dr. Davey acknowledged that he could not recall the specific details of his interactions with Ms. Kain due to the passage of time. Dr. Davey relied on his records, standard practice, and his pre and post-operative orders. Preliminary Appointments with Ms. Kain [ 38 ] Ms. Kain was first referred to Dr. Davey through her family physician, Dr. Longair. At that time, she was pregnant and had a history of DVT in her first pregnancy. He spoke to Dr.

Longair on March 6, 2001 and advised that Ms. Kain should see an internist and be started on 5000 units of Heparin daily. Pregnancy and Delivery [ 39 ] Dr. Davey explained that Ms. Kain’s history of DVT in her first pregnancy was important to his management of the pregnancy and delivery. She was on anticoagulants due to her history of DVT in her first pregnancy. Aside from the DVT history, the pregnancy was quite normal. The plan was to discontinue anti-coagulants just prior to inducing labour and delivery and then to restart 12 to 24 hours post-delivery.

Typically, the anticoagulants would be continued for six weeks. [ 40 ] Dr. Davey started the induction and performed the delivery at the Hospital. Ms. Kain’s delivery lasted just over three hours. He made a notation in her chart to restart Heparin. The second order was for discharge on an oral anticoagulant because she decided not to breastfeed and did not want to be continued on the Heparin. Post-Delivery

[ 41 ] Dr. Davey saw Ms. Kain again on December 5, 2001. His notes reflect the fact that she was feeling well following delivery with no abnormal blood flow issues, and normal bowel and bladder functions. They discussed discontinuation of the Coumadin as there were no further concerns. Birth control options including a tubal ligation were discussed. Ms. Kain decided on a tubal ligation so they discussed the laparoscopic application of Filshie clips.

The risks of the surgery including the risk of infection, bleeding, injuring something in the process of placing the instruments, the failure rate and the risk of DVT as she just stopped the prophylaxis would have been discussed. The discussion was followed by a physical examination which revealed no abnormal findings. A tubal ligation was then arranged for Ms. Kain. [ 42 ] Dr.

Davey testified that he did not expect to use any pharmacological prophylaxis during this surgery because of the nature of the surgery, the length of the surgery, the anesthetic and the fact that she would probably only be in the hospital for a very short period of time. [ 43 ] Dr. Davey performed the tubal ligation at the Hospital. He explained the procedure in detail during direct examination. The procedure was also written up in the operative note. Referral from Dr. Longair [ 44 ] Dr. Davey’s next interaction with Ms. Kain came after he received a referral letter in 2009 from Dr. Longair, about Ms.

Kain’s abnormalities and a prolapse. Dr. Davey referred to his notes from her February 2, 2009 visit and noted her history and current cycle and heavy flow and premenstrual symptoms. Dr. Davey made a note about her previous history of DVT and a reminder that she was not a candidate for the birth control pill. Ms. Kain’s physical examination revealed a small degree of prolapse. She had some laxity of the anterior posterior walls and some dissent of the cervix. [ 45 ] The assessment notes stated that Ms. Kain had some dysfunctional uterine bleeding and mild vaginal prolapse.

The option of a Mirena IUD was discussed. He also went over the surgical possibilities which included vaginal hysterectomy with anterior and posterior repair. He explained to Ms. Kain that this would deal with both the bleeding and the prolapse. Dr. Davey gave evidence that they would have discussed the fact that surgery carries greater risks and a longer recovery period. In addition they likely discussed other medical options including endometrial ablation and that the majority of medical options have some increased thrombosis risk and therefore would not have been used in her. [ 46 ] Dr.

Davey explained that if the prolapse is symptomatic, patients may opt for non-surgical interventions which include the insertion of a pessary (a ring that sits behind the vagina). Pessaries do not work for everyone and may have side effects including odour and discharge. The other option is a surgical approach: a posterior repair and is generally quite simple. The surgery involves opening the back wall of the vagina, opening the skin reflecting the skin laterally off the deeper tissues. Initial success rates are quite good but the possibility of failure is 15%. [ 47 ] Dr.

Davey explained that the most effective treatment for treating vasometer symptoms in menopause is estrogen but Ms. Kain likely would not be a candidate for estrogen because of her thrombosis history. [ 48 ] When discussing the option of the Mirena IUD, Dr. Davey testified that he would have explained what the device is and that it contains progesterone and there is some question as to whether that might increase the risk of thrombosis, but it is actually considered to be safe in someone with Ms.

Kain’s history. [ 49 ] With respect to the vaginal hysterectomy he would have advised her that it is a relatively big surgery and lasts approximately an hour and a half, six to eight weeks to recover. He would have discussed the risks including the increased risk of thrombosis in her case. [ 50 ] Ms. Kain decide to get a Mirena inserted. On the date of the insertion, he reviewed the IUD, the risks, examined her and placed the IUD with no problems. Referral for Vaginal Prolapse [ 51 ] The next referral from Dr. Longair related to Ms. Kain’s vaginal prolapse which had become more symptomatic. Dr.

Davey saw her on October 15, 2012. At this appointment, he took Ms. Kain’s history and then examined her physically. He found a small cystocele and a medium to large rectocele on examination. The rectocele was symptomatic and was causing her difficulty with bowel movements and at the introitus [entrance] of the vagina. [ 52 ] A cystocele refers to the laxity of the anterior or front wall of the vagina whereby the bladder is actually dropping in on top of that laxity. A rectocele is a weakness in the back wall of the vagina.

Much like having a hernia, there is a bulge that protrudes through the opening of the vagina. A rectocele is a fairly common finding on an examination with women who have had children. If it is not causing discomfort or any trouble the first option is observation. However, the skin can break down and cause bleeding, infection and discomfort and may interfere with sexual intercourse and the patient may experience difficulty evacuating the bowel. [ 53 ] Dr. Davey explained that prolapse refers to “laxity”, the movement of tissues through an opening.

In the case of a vaginal prolapse, this means that the walls of the vagina become lax and pressure is placed on the pelvic floor which can push the tissues through the vagina and they can present on the perineum (area between the genitals and the anus) of the bottom end of the body as bulge. [ 54 ] Dr. Davey explained that he would have told Ms. Kain that a rectocele is a weakness in the back wall of the vagina. There is a bulge that protrudes through the only opening of the vagina. Dr.

Davey discussed the option of the pessary but explained that it is more effective with anterior wall issues and requires regular maintenance and cleaning. Dr. Davey discussed the surgical option of posterior vaginal repair. He explained that the procedure involved anesthetic, and he would make an incision in the back wall of Ms. Kain’s vagina, cut it open and push everything back in, stitch it together and seal off the incision he made in the vagina.

[ 55 ] If Ms. Kain had undergone a longer surgery and being less mobile following surgery he probably would have given her Heparin. For a 15 to 20 minute surgery he would not prescribe Heparin. He explained that Heparin is not without risks and it can increase the risk of bleeding and make surgery more difficult. [ 56 ] During cross-examination, counsel for the Plaintiff attempted to get Dr. Davey to admit that he would be have been distracted while washing his hands and therefore the surgery would have exceeded the 22 minutes that was documented. Dr.

Davey testified that the handwashing would have taken approximately 30 seconds. I accept his testimony. [ 57 ] Dr. Davey gave evidence that there is an increased risk for pregnant patients who have a history of DVT during a prior pregnancy. The risk of venous thromboembolism for gynecological patients having surgery to repair a rectocele or having a posterior vaginal repair are low.

The available options to manage the risk of venous thromboembolism for a patient undergoing a posterior vaginal repair are the use of chemoprophylaxis, specifically Heparin or the use of sequential compression stockings: the mechanical method. Dr. Davey gave evidence that he reached this conclusion from his education, continuing education and experience. [ 58 ] Dr. Davey testified that the procedure is not terribly invasive, it is almost skin deep, not a big surgery.

The patient is positioned in the stirrups for a short period of time and following surgery the patient is up and about the same day of surgery and often are home within 24 to 48 hours. [ 59 ] Prior to the surgery, Ms. Kain was required to attend the pre-operative assessment clinic where nurses review the patient’s history. The attendance at the clinic provides an opportunity for the Hospital team to review the patient’s needs and history. The surgeon is not present at the appointment but attendance of the patient is required otherwise the surgery is cancelled.

The nurses’ documentation from the appointment included the fact that Ms. Kain had a DVT in pregnancy 22 years earlier. Orders for Zantac were to be given two hours pre-operatively for heartburn. The preoperative orders for Ms. Kain included an order for anti-embolic stockings and for the sequential compression/decompression stockings. These orders were made based on her history of previous DVT. [ 60 ] Dr. Davey explained that the sequential stockings intermittently inflate on the leg and squeeze the leg and muscles and the veins and they push blood through the veins to prevent clotting. [ 61 ] Ms.

Kain attended for surgery on December 4, 2012. Although he could not recall the specific day, Dr. Davey testified that the sequential compression devices would have been turned on during the surgery. Dr. Davey ordered the stockings to be put on Ms. Kain while she was in the stirrups as the bend in the legs affects the blood flow. To his knowledge the other OB-GYN’s at the Hospital were also using this method. In 2012, the Hospital did not have a policy with respect to the use of DVT prophylaxis. [ 62 ] When he saw Ms. Kain on the day of the surgery she had the SCDs on.

He made sure that she had no last minute questions or concerns. He held her hand as she fell asleep during surgery. The operative report describes the procedure. The surgery took 22 minutes and was carried out without complication. Following the surgery, Ms. Kain was taken back to the post-operative recovery room where she regained consciousness being under anesthesia for about 65 minutes. The post-operative orders included directions for Ms. Kain to walk the same day and for the SCD’s remain on for the duration of her stay in hospital while in bed. [ 63 ] Dr. Davey saw Ms.

Kain every day during her first hospital stay. She continued to wear the compression stockings and SCDs. The SCDs were activated when she was in bed. If they stopped working, the nurse would come in and turn them on. [ 64 ] Dr. Davey was asked why he used chemoprophylaxis during the Ms. Kain’s pregnancy in 2001 but not for the posterior vaginal repair in 2012. He explained as follows: Two very different circumstances.

The pregnancy is a much longer period of time, months obviously rather than minutes; and also associated changes in the coagulation profile, pregnant women are more prone to forming clots, they’re at higher risk in any case. The procedure, being very short and, you know, not associated with a terrible amount of immobility, in fact, should be relatively no immobility, the risk is very different. [ 65 ] Dr. Davey was unable to verify whether he would have consulted with an internist or hematologist regarding the posterior vaginal repair.

He testified that he may not have in this instance as the surgery was relatively straightforward and the use of the stockings would be sufficient. He explained that they don’t consult internists on every issue they deal with. [ 66 ] His understanding was that SCD and compression stockings would be an adequate prophylaxis to address the risk of DVT in a patient who was undergoing a posterior vaginal repair. The risk of using Heparin includes the risk of bleeding. There are other risks, albeit rare, in terms of affecting platelet function. [ 67 ] Dr. Davey testified that he would have placed Ms.

Kain in the “low or moderate risk” group primarily because of the nature of the surgery being short and mobility resuming almost immediately following the surgery. [ 68 ] Post-surgery, Dr. Davey would have encouraged her to be active, which assists in getting bowels moving, improving respiratory issues and decreasing thrombotic events. He would advise patients to get up and move because they did not want to develop a clot. The nurse advised him that Ms. Kain had issues with voiding and spasms.

They would have catharized her intermittently and he would have ordered some medications specifically for spasm. [ 69 ] Dr. Davey saw Ms. Kain on the day that she was discharged. He does not specifically recall the interaction but relied on his standard practice and notes. He would have provided her with the usual instruction including tell her to be up and about and that she should not lie in bed. He did not consider providing her with post-discharge DVT prophylaxis as he felt there was no need. Once she was mobile the need for prophylaxis would be gone.

If a patient is not able to tolerate using SCDs and compression stockings and getting up out of bed, he would reconsider his plan for DVT. Ms. Kain took the compression stockings home with her and wore them on and off until December 10, 2012. [ 70 ] Once Ms. Kain was mobile, urinating independently and passing gas she was discharged with instructions. She was

discharged on December 7, 2012 after she signed the discharge plan indicating that it was reviewed with her to take frequent short walksevery day and gradually increase and the distance. [71] Dr. Davey next received word from an internist that Ms. Kain had been admitted to the hospital with the suspicion of DVTand was discharged on prophylactic doses of unfractionated Heparin. He was also made aware of her second admission. She had beenadmitted with a documented DVT at that time despite being on Heparin.

He was not afforded the opportunity to see her in hospital as hedid not receive the call until she was being discharged. Dr. Davey did speak with her briefly on the phone but she did not show up for herfollow-up appointment. B. Consultation with Thrombosis Experts [72] Ms. Kain was referred to two hematologists after developing the DVT. She saw Dr. Ballem and Dr. Manson. Both physiciansadvised her to avoid future oral contraception. Dr. Manson also advised her to avoid smoking and long plane rides. [73] The thromobolic testing done by Dr. Ballem and Dr.

Manson was normal, meaning that there no identified genetic cause ofthe DVT. [74] Ms. Kain was also seen by internist Dr. Ernest Janzen in Lethbridge on March 27, 2001 and on October 30, 2008 forevaluation of thrombophilia when she experienced menorrhagia. Ms. Kain did not recall either attendance on Dr. Janzen. Dr. Janzendocumented the fact that her maternal grandmother died in childbirth but that there was no family history of thromboembolic diseases. Inhis 2001 consultation report (Exhibit AE 0006), Dr Janzen stated: In

summary she is a 33 year-old woman, now in her first trimester of her third pregnancy, but no other history. There is a history of athird trimester DVT with her first pregnancy, but no other history to suggest a thrombophilic state. She reported that she was thoroughlyinvestigated in Vancouver in 1991 and that no thrombophilic state was identified. [75] In his 2008 consultation report (Exhibit AE0066-0067), Dr. Janzen stated: Although her thrombophilia studies were normal, she did develop a significant deep venous thrombosis during her [first] pregnancy.

Shewould therefore be at increase risk for recurrent thromboembolic complications with hormone treatment and hormone treatment wouldtherefore be contraindicated. V. The Law A. Elements [76] To be successful in a medical negligence action four requirements must be met: 1. The defendant must owe the plaintiff a duty of care; 2. The defendant must breach the standard of care established by the law; 3. The plaintiff must suffer an injury or loss; and 4. The defendant’s conduct must have been the actual and legal cause of the plaintiff’s injury. [77] This is a sequential test.

If the case fails to meet any of these requirements the action will be dismissed: Ellen I Picard &Gerald B Robertson, Legal Liability of Doctors and Hospitals in Canada, 5th ed (Toronto: Carswell, 2017) at 268; see Tailleur vSendziak, 1999 ABCA 2 at para 15, leave to appeal to SCC refused, 27169 (1 March 1999); McArdle Estate v Cox, 2003 ABCA 106 atpara 25: Grivicic v Alberta Health Services, 2015 ABQB 811. B. Standard of Care [78] Dr. Davey acknowledges that he owed a duty of care to Ms.

Kain. [79] The classic and oft cited statement of law regarding standard of care comes from Crits v Sylvester (1956) (ON CA), 1 DLR (2d) 502 (ONCA) at para 13, aff’d (SCC), [1956] SCR 991: Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree ofcare.

He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of thesame experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than of one who doesnot profess to be so qualified by special training and ability. [80] In order to establish a breach of the standard of care, the plaintiff must prove on a balance of probabilities that the defendantdeparted culpably from the normal standards of skill. This is an objective test based on the facts of the case.

In judging the averagereasonable physician, the court should consider the area of specialization and community to which the physical belongs. A greater degreeof skill is expected from a specialist. The standard of care of a specialist must be measured against what a reasonable specialist wouldhave done in the circumstances: Brenenstuhl v Caldwell, 2020 ABQB 315 at para 65. [81] Liability cannot be established through hindsight: Brenenstuhl at para 62; Fournier v Wiens, 2004 ABQB 430 at para 83;Cooper v Flood, 2015 ABQB 567, aff’d 2016 ABCA 365 at para 16.

A physician cannot be faulted for failing to conform to a standard

of care that was based on research and technology that was only available or evident at a later date. This was confirmed in ter Neuzen vKorn, (SCC), [1995] 3 SCR 674 at 693 where the judge emphasized, at para 34, that physicians must be judged in lightof the knowledge that ought to have reasonably possessed at the time of the alleged act of negligence. [82] Furthermore, a physician is not liable for a mere error of judgement. Physicians, like others cannot perfectly predict the futureand even reasonable physicians make mistakes: Duncalf v Capital Health Authority, 2009 ABQB 80 at para 68.

Liability does notfollow a mere error of judgment. An error will attract liability if it demonstrates unskillfulness, carelessness, or lack of knowledge:Brenenstuhl at 67; Gemoto v Calgary Regional Health Authority, 2006 ABQB 740 at para 54. [83] It is also important that the standard of care be assessed against the standard of care governing practitioners in similarcommunities.

If a physician’s conduct conforms with recognized medical practice as described by expert witnesses, the physician’sconduct will generally have met the standard of care and will be considered to have fallen within the scope of reasonable conduct. [84] Therefore, Dr. Davey’s actions must be assessed against the knowledge and practices of reasonable obstetrician andgynecologist practicing in or around Lethbridge in the year 2012. [85] The determination of the appropriate standard of care for a physician generally relies on expert evidence: Brenenstuhl at para74; AT-B v Mah, 2012 ABQB 777 at para 86.

However, while the determination is informed by expert evidence, the standard of care isa determination by the court. If a physician’s conduct conformed with the recognized medical practice as described by an expert witness,he or she will not be found to be negligent: see generally ter Neuzen at para 38. Justice Shelley stated at para 78 of Brenenstuhl: If, however, the evidence supports the finding that there are (at least) two valid common approaches to the circumstances posed by thepatient, two principles apply.

First, the role of the court “is not to weigh the competing schools of thought and assess their relativemerit:” Medina v Wong, 2018 BCSC 292 at para 99; Cory v Bass at para 98. Second, if the defendant conformed his or her conduct to anapproach supported by the evidence, the defendant did not violate the standard of care: Medina v Wong at para 99; Cory v Bass at para98. As Justice Crighton stated in Duncalf v.

Capital Health Authority at para 68: if “the court is faced with a difference of opinion on themedical treatment at issue between equally-qualified and eminent physicians, some testifying that there was negligence and otherstestifying that there was not, and if both bodies of opinion are equally reasonable in the circumstances, that matter is not one ofnegligence.” [86] Clinical guidelines may be useful evidence of the standard of care but are not of themselves determinative of the standard ofcare.

Guidelines do not replace the need for proper clinical assessment: Brenenstuhl at para 82 citing Medina v Wong, 2018 BCSC 292at para 107. C. Causation [87] The Plaintiff must prove on a balance of probabilities that Dr. Davey’s breach of the standard of care caused Ms. Kain’sinjury. This is a factual inquiry. If the damage would have occurred regardless of the negligent conduct or omission there will be norecovery. 1. The But-For Test [88] A plaintiff must establish that a defendant’s sub-standard acts or omissions are the “cause-in-fact” of the injuries.

That is,“but for” the defendant’s acts or omissions, the injuries would not have occurred: Clements (Litigation Guardian of) v Clements, 2012SCC 32 at para 8 ; Meyers (Next Friend of) Stanley v Moscovitz, 2005 ABCA 114 at para 31, leave to appeal to SCC refused 30940 (16May 2005). [89] If it is more probable than not that the injuries would have occurred in any event of the physician’s conduct, the Plaintiff’sclaim should be dismissed.

In a medical negligence case turning on omission the factual causation is the “difference that a prudentphysician would likely have made in the outcome”: Gemoto at para 474. [90] Scientific certainty is not required but the mere possibility of a causal link is insufficient to find causation. The robust andpragmatic approach does not allow an inference of causation to be drawn where there is no evidence that the defendant’s negligencecaused the plaintiff’s injury.

Evidence connecting the breach of duty to the injury may permit the judge to infer that defendant’snegligence probably caused the loss: Athey v Leonati, (SCC), [1996] 3 SCR 458; Snell v Farrell (SCC), [1990] 2 SCR 311 at 330–31; Clements at para 10; Benhaim v St-Germain, 2016 SCC 48. [91] In Clements at para 46, the Supreme Court summarized the state of the law as follows:

(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”cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. D. Informed Consent [92] The Court of Appeal of Alberta developed a two-step framework for determining whether the legal requirement for informed

consent are satisfied in Seney v Crooks, 1998 ABCA 316 at para 54 : First, physicians owe patients a duty to proceed with any treatment only based on informed consent. Second assuming a breach of duty the injury must have been caused by that lack of informed consent. [93] A doctor has a duty to disclose material risks and answer questions posed by the patient: Reibl v Hughes, (SCC), [1980] 2 SCR 880 at 887; Hopp v Lepp, (SCC), [1980] 2 SCR 192 at 196. Materiality is an issue for the trier offact, informed by medical evidence and professional standards but not determined by medical evidence.

For example, evidence from apatient to his or her family would be relevant: DD v Wong Estate, 2019 ABQB 171 at para 258. [94] Materiality incudes not only mere probabilities of occurrence but also magnitude of potential injury.

A risk that is a merepossibility may be nonetheless material “if its occurrence may result in a serious consequences such as paralysis or even death”: DD atpara 259. [95] The duty to inform also includes a duty to inform of both risks of treatment and also alternative treatments, if the alternativetreatments offer the prospect of some therapeutic benefit: Seney at para 55. [96] In Zaiffdeen v Chua, 2005 ABCA 290, the Court of Appeal affirmed that it is open to the trial judge to find that a material orunusual risk which, given its severity should be disclosed: at para 25.

Furthermore, the risks must be informed using language and anexplanation that is appropriate to that patient: Malinowski v Schneider, 2010 ABQB 734 at para 37. [97] Informed consent is a distinct cause of action separate from a breach of the standard of care: Bollman v Soenen, 2014 ONCA36 . Further, as noted in Bollman at paras 20–23 and Watson v Dr. Shawn Soon, 2018 ONSC 3809 at para 82, informed consentrequires the plaintiff to prove that: (

a) the physician failed to disclose the nature of the procedure or its material risks such that the patient was uninformed whenundergoing the procedure in question; (

b) the patient herself would not have undergone the procedure in question had she been properly informed; and (

c) a reasonable person in the patient's position would not have undergone the procedure in question if fully apprised of the materialrisks. [98] There is both a subjective and objective part to this test. Both the objective and subjective parts of the test must be made outon a balance of probabilities by the Plaintiff: Bollman at paras 20–21. The subjective

part is that the patient herself would not haveundergone the procedure in question had she been properly informed. As the test is subjective, factors unique to the patient will beconsidered: Watson at para 84. Under the subjective part of the test, if a failure to disclose would not have affected the Plaintiff’sdecision to undergo the procedure, the Plaintiff fails to make out informed consent. [99] The objective part of the test is that a reasonable person in the patient’s position would not have undergone the procedure inquestion if fully apprised of the material risks.

In this case, the Plaintiff bears the onus of proving that a fully informed and reasonablepatient would not have undergone the procedure. In assessing the objective portion of the test, evidence that other patients regularlyconsent to the proposed treatment when the risks are adequately disclosed is relevant: Arndt v Smith, (SCC), [1997] 2SCR 539 at 552–53. VI. Analysis A. Experts [100] I will begin my analysis with a

summary of the expert evidence. 1. Dr. Johan Viljoen, Plaintiff’s Expert in Obstetrics & Gynecology [101] Dr. Viljoen is an obstetrician and gynecologist and the regional chief of obstetrics and gynecology for the Niagara HealthSystem in St. Catharines, Ontario. He was qualified to comment on the standard of care of an obstetrician and gynecologist. [102] Dr. Viljoen has practiced in Ontario since 1993. He testified that he has performed hundreds of rectocele surgeries during his 30years of practice.

In 2006, his practice turned to more administrative duties including quality assurance and review of critical incidents.In 2012, he was performing one day of surgery per week and was still commonly performing rectocele surgeries at this time. [103] Dr. Viljoen carries out posterior vaginal repairs. His practice differs from Dr. Davey’s and it is clear from his evidence that hetakes longer to conduct his surgeries than Dr. Davey and he also uses a different type of stirrups. Dr.

Viljjoen testified that when heperforms the surgeries, he takes between 30 and 45 minutes and he conceded that other surgeons may work more quickly than he does. [104] In Dr. Viljoen’s opinion, given Ms. Kain’s past obstetric history complicated by DVT, Dr. Davey should have anticipated theincreased risk of a provoked DVT, secondary to the surgery performed on December 4, 2012. However, Dr. Davey did not provide anti-coagulation or seek medical or hematological consultation regarding such. Dr. Viljoen opined that the failure to do so was below theaccepted standard of care. According to Dr.

Viljoen, the administration of anticoagulation would have decreased the risk of DVT. [105] Dr. Viljoen testified that the fact that a patient cannot recall all aspects of the discussion does not translate of necessity that itdid not occur. Surgeons in general develop a standardized narrative around describing procedures and the risks and benefits associated

with them. [ 106 ] Dr. Viljoen agreed during cross-examination that he made no reference to the fact that Ms. Kain wore the mechanical DVT prophylaxis in the form of SCDs and compression stockings during and after the surgery in his first report. When he prepared his first report, he did not have the evidence that the patient’s risk of DVT was managed with mechanical prophylaxis. He acknowledged in his third report that the patient did receive stockings and a compression device. Dr Viljoen explained at trial that his opinion remained unchanged even after review of the additional records. [ 107 ] Dr.

Viljoen acknowledged that there are some smalls risks to using pharmacological thromboprophylaxis. In this situation the prophylactic doses are very small. His opinion that the pharmacological thromboprophylaxis should have been administered on this occasion did not change. [ 108 ] Dr. Viljoen did not refer to the American College of Obstetricians and Gynecologists (the “ACOG”) Guidelines in his opinion letter, however during cross-examination he did acknowledge that they are an authoritative body.

He also agreed that according to ACOG the successful prevention strategies as set out by ACOG included low dose unfractionated Heparin, low molecular weight Heparin or Intermittent Pneumatic Compression Device. Dr. Viljoen also agreed that the risk of bleeding and hematoma increases with the use of pharmacological prophylaxis. 2. Dr. Andrea Skorenki, Defendant’s Expert, Expert in Obstetrics and Gynecology [ 109 ] Dr.

Skorenki was qualified in the area of obstetrics and gynecology to give expert opinion evidence on the standard of care of an obstetrician and gynecologist practicing in Alberta in 2012, including the management of patients with rectocele and the disclosure of risks and benefits of treatment. [ 110 ] Dr. Skorenki is a practicing obstetrician-gynecologist at the Grey Nuns Hospital in Edmonton, Alberta. Her practice is general obstetrics and gynecology, including gynecologic surgery. She completed all of her training in Alberta before beginning her practice in Edmonton. [ 111 ] Dr. Skorenki opined that Dr.

Davey met the standard of care in terms of recommending surgical repair of the rectocele, discussing non-surgical options, and obtaining informed consent by discussing verbally the risk of clotting. In terms of performing rectocele surgery without prescribing anticoagulants, Dr. Davey met the standard of care for 2012, the year the surgery took place. [ 112 ] Dr. Skorenki explained that the Society of Obstetricians and Gynecologists of Canada does not have a guideline regarding deep vein thrombosis prophylaxis in gynecologic surgery.

However, the American College of Obstetricians and Gynecologists (“ACOG”) published in August 2007, Practice Bulletin 84, titled, “Prevention of Deep Vein Thrombosis and Pulmonary Embolism.” According to the 2007 ACOG guideline, the appropriate management for a high-risk patient such as Ms. Kain would be either low dose of unfractionated heparin, low molecular weight Heparin, or pneumatic compression devices. By treating Ms. Kain with pneumatic compression devices, Dr.

Davey met the standard of care. [ 113 ] It was not until 2016 that ACOG updated its guideline to add that for certain patients, including those with previous history of deep vein thrombosis, pneumatic compression devices may not be enough.

The American College of Chest Physicians (“ACCP”) published a guideline in 2012, which stated that high-risk patients should receive either low molecular weight heparin or unfractionated heparin and that pneumatic compression stockings should be added to pharmacologic prophylaxis; however, this guideline was not used in practice until much later (these guidelines were also referred to at trial as the “Orthopedic Guidelines”). [ 114 ] Dr.

Skorenki made some corrections in the report and testified that in her 2017 report she referenced the CHEST Guidelines as well as the ACOG Guidelines and on further reflection in the 2019 report she decided that it is not the typical resource that a gynecologist in practice would be using. She initially included it so that she would have a complete literature search. She clarified that a gynecologist would be more likely to focus on the ACOG Guidelines. [ 115 ] According to Dr.

Skorenki, based on the clinical practice guideline (ACOG) available at the time of the case, the practice in the community at the time, and the fact that Ms. Kain had already been seen by a hematologist to rule out coagulation disorders, Dr. Davey met the standard of care. [ 116 ] In Dr. Skorenki’s view, family history is not relevant when considering a patient’s risk factors for DVT. Family history is not listed as a risk factor in the ACOG Guidelines. Dr. Skorenki would not have classified the patient as having a “highest” level of risk based on the ACOG Guidelines. Ms.

Kain was undergoing surgery lasting less than 30 minutes and was over the age of 40 with a history of prior VTE. Accordingly, Table 1’s successful prevention strategy included intermittent pneumatic compression devices. [ 117 ] Dr. Skorenki explained that when a surgeon chooses to use sequential compression devices and graduated compression stockings to address a patient’s risk of DVT they are usually placed on the patient just prior to surgery. They are used during the surgical procedure itself and then post-operatively until the patient is mobilizing. Once the patient is anesthetized they are put on.

They are turned on and activated right away. She would not include this fact in her typical dictation. [ 118 ] In the ACOG Guidelines, under the heading Pneumatic Compression, it states that when used during and after surgery the devices are as effective as low dose Heparin and low molecular weight Heparin in reducing DVT incidents. She also agreed with the statement in the ACOG Guidelines that with perioperative low dose Heparin use, a major concern is increased intraoperative and postoperative bleeding. There is also a possibility of bleeding complications. The surgeon is responsible for it.

If a surgeon encountered bleeding, the first step would be to stop the anticoagulants and the further management would depend on the degree of bleeding. If the bleeding was significant the patient might have to go back to the operating room for a second procedure. If it is less severe, pressure with a packing would be used. [ 119 ] Dr. Skorenki was asked what she would have done if she had identified two of three risk factors that are associated with the

ineffectiveness of intermittent pneumatic compression devices (age older than 40 years, prior venous thromboembolism), She would have gone back to Table 1, which goes into more detail about age ranges for various risk categories. The age of 40 is not considered to be a high risk, just on age alone. [ 120 ] Placement of a patient’s legs in stirrups is not a factor that she would consider in assessing a patient’s risk. [ 121 ] Dr. Skorenki would have advised Ms. Kain that she was at “increased” risk. DVT after surgery is still a fairly rare occurrence even with a patient with a previous history.

She would likely explain all the options to a patient like Ms. Kain and risks associated with each. However, she clarified by saying that she would not go into too much detail with a patient about the various options. 3. Dr. Turpie, Plaintiff’s Expert in Internal Medicine [ 122 ] Dr. Turpie is an internal medicine specialist and was qualified as an expert for the Plaintiff with regard to the cause and preventions of thrombotic embolism. Dr.

Turpie was not qualified to opine on the standard of care of a gynecologist nor was he qualified to comment on the standard of care of an internal medicine/hematologist consulting to a gynecologist in 2012. [ 123 ] Dr. Turpie is an Emeritus Professor of Medicine at McMaster University and a member of the Senior Staff at Hamilton Health Sciences in Hamilton, Ontario. Dr.

Turpie was a member of the Clinical Thrombosis Service at McMaster University, principal investigator in several trials evaluating the prevention and treatment of venous thromboembolic diseases, and principal author or co- author of more than 400 peer-reviewed articles in the field of thrombosis. [ 124 ] Counsel for the Defence noted that after he ceased practice in 2012, Dr. Turpie has been largely focused on development of pharmacological prophylaxis as opposed to mechanical prophylaxis. He is paid by pharmaceutical companies to develop pharmacological anticoagulation. [ 125 ] In his expert report, Dr.

Turpie noted that Ms. Kain had DVT during pregnancy at age 24. A thrombophilia work-up repeated on a number of occasions did not show any abnormality. However, he noted that she has a significant family history of venous thromboembolism. The history of DVT and her family history were documented throughout her hospital admissions. [ 126 ] Dr. Turpie opined that elective surgery to repair a rectocele with a history of thrombosis during pregnancy and a bad family history of venous thromboembolism would necessitate the use of pharmacological prophylaxis. Despite this, when Dr.

Davey carried out a rectocele repair on Ms. Kain on December 4, 2012, he did not administer any venous thrombosis prophylaxis. Ms. Kain developed significant post-operative DVT, confirmed by ultrasound, which was treated with therapeutic doses of heparin. Two days later, she had worsening symptoms and another ultrasound showed extensive venous thrombosis. Consequently, Ms. Kain was once again treated with therapeutic doses of Heparin. [ 127 ] Dr.

Turpie acknowledged that in his initial report he did not realize that there was a standing order in the gynecological wards to have either gravity compression stockings or pneumatic compression devices. He assumed that she was given no prophylaxis at all. The fact that she was given IPC or stockings did not change his overall opinion that was expressed in either of his reports. [ 128 ] In Dr. Turpie’s opinion, the risk of bleeding with the administration of an anticoagulant was low during Ms. Kain’s surgical procedure.

He noted that there were no recorded concerns of bleeding during her third pregnancy when she administered injections for the duration of her pregnancy. In Dr. Turpie’s opinion the success of the prophylaxis during this pregnancy would reassure him that this patient did not have a propensity to bleed. [ 129 ] Dr. Turpie agreed with Dr. Crowther that the CHEST Physician Guidelines (ACCP), entitled “Prevention of VTE in Non- Orthopedic Surgical Cases” is the most definitive and scholarly recommendations for the management of thrombotic disorder.

However, guidelines are never mandatory but most clinicians would refer to them as the standard of care. The Guidelines cover the field of thrombosis and deal with prevention and treatment of DVT and pulmonary embolism. There is information for all specialties in the Guidelines. He admitted that he was unaware that the America College of Obstetrics and Gynecology has not adopted the ninth edition of the CHEST Guidelines. [ 130 ] Dr.

Turpie noted that the non-orthopedic Guidelines state that as compared to pharmacological prophylaxis, the risk of developing DVT was 80% greater when using mechanical methods of prophylaxis. [ 131 ] The most authoritative recommendations for venous thromboembolism prevention post-surgery were provided by the American College of Chest Physicians guidelines in 2012. Three of the seven authors favored a strong recommendation in favor of low dose unfractionated heparin or low molecular weight heparin over no prophylaxis. Significantly, I note that they do not deal with mechanical prophylaxis. [ 132 ] Dr.

Turpie explained that a Caprini score is used to “risk stratify” the patients who have surgical procedures to identify risks so that thrombosis prophylaxis could be tailored to optimize the treatment in these patients. If a patient scores higher than 8, then they should be receiving pharmacological prophylaxis. Dr. Turpie also pointed out that an additional issue to take into account would be the fact that it is not practical for a patient to apply pneumatic compression devices after discharge. The compression stockings and sequential compression devices would not have been adequate to protect against DVT.

As a clinician, Dr. Turpie emphasized that he did not always need to refer to a score to realize that the patient was high risk. [ 133 ] Based on Ms. Kain’s history, Dr. Turpie assessed her Caprini score (venous thromboembolism risk assessment) at minimum, 8. Thus, optimal prophylaxis for Ms. Kain would be pharmacological plus mechanical prophylaxis for 7-10 days. In Dr. Turpie’s opinion, Ms. Kain received neither, and was thus exposed to a risk of post-operative venous thromboembolism.

He did later clarify that he understood that she received mechanical prophylaxis, but it did not change his opinion. [ 134 ] In Dr. Turpie’s opinion, Ms. Kain did not get optimal treatment. As she was high risk, all of the guidelines suggest that individuals in that setting to receive the optimal treatment should receive pharmacological prophylaxis.

[ 135 ] Dr. Turpie agreed that he could not comment on the guidelines a gynecologist practicing in 2012 would have engaged in. In his view, guidelines do not replace professional medical advice and physician advice. He was asked about some of the risks and agreed that a transvaginal surgery carries less risk than an open abdominal or open pelvic procedures. He agreed that she was 44 years old at the time and her anesthesia was under two hours. The duration of her stay was only three days and the surgery was 22 minutes in length. He agreed that none of these factors increased her risk. [ 136 ] Dr.

Turpie agreed during cross-examination that mechanical prophylaxis reduces the risk of venous thromboembolism but not to the same extent as pharmacological prophylaxis. Overall, in his opinion, Ms. Kain was at high risk of venous thromboembolism and should have received prophylactic anticoagulation during the elective vaginal repair. The failure to do so was below the standard of practice. [ 137 ] Dr. Turpie disagreed with Dr. Crowther’s position that Ms. Kain’s failure to receive pharmacological anticoagulation was not likely the cause of her deep vein thrombosis. Dr.

Turpie stated that this failure contributed to the development of the post-operative deep vein thrombosis suffered by Ms. Kain. 4. Dr. Mark Crowther, Defendant’s Expert Hematologist [ 138 ] Dr. Crowther is a hematologist and was qualified as an expert witness for the Defendant in the area of internal medicine and hematology including venous thromboembolism and the course, cause, management and prophylaxis. [ 139 ] Dr. Crowther has a specialty in internal medicine and hematology and is a Professor and Chair of the Department of Medicine at McMaster University.

His principal research and clinical interests are benign hematologic diseases including thromboembolism. He has more than 400 peer-reviewed publications and has published extensively on the use and complications of anticoagulant agents, including warfarin. In his clinical practice, Dr. Crowther treats his patients with the entire range of benign hematologic diseases, and a considerable amount of his time is spent on the management of thromboembolism. [ 140 ] Between 1995 and 1999, he undertook a clinical and research training program in thromboembolism at McMaster University.

He oversaw the guideline efforts for the 2012 ACCP Guidelines as a member of the executive and as such was involved in the Non- Orthopedic Surgery Chapter. During his practice at St. Joseph’s Health care he has been consulted by gynecologic surgeons for various hematological questions. [ 141 ] Dr. Crowther’s clinical practice includes providing consultation to gynecologic surgeons including for those planning gynecological surgery. Dr. Crowther has had occasion to recommend pharmacologic and mechanical thromboprophylaxis. [ 142 ] In his opinion, Dr.

Davey took reasonable and prudent steps to prevent complications related to deep vein thrombosis. [ 143 ] With respect to Ms. Kain’s case, Dr. Crowther was unable to find any description of leg symptoms suggestive of post- thrombotic syndrome between her first pregnancy and her surgery in 2012. He noted that after the surgery, Dr. Davey provided to Ms. Kain compression stockings and pneumatic compression devices, which she wore during her hospital stay. She continued to wear compression socks, on and off, after her discharge. [ 144 ] Dr.

Crowther agreed during direct examination that it would be important to note that in the history that a patient had prior venous thromboembolism as it increases the risk of recurrent thrombosis. He further explained that it is important to understand the temporal sequence, the rate or risk of recurrent thrombosis is highest in the period of time immediately after a clot and declines as time passes.

As such, a person who reports a history of venous thromboembolism six months prior is at much higher risk of recurrent thrombosis than someone who provides a history of a venous thromboembolism 10 years prior. [ 145 ] His opinion was that the rectocele surgery performed on Ms. Kain was relatively uncomplicated, very short with no unexpected complications, the longer the surgical procedure, the greater the risk of DVT. In general, procedures that exceed 40 minutes are where the risks would start to increase. The fact that stirrups were used did not affect his opinion.

Minimally invasive surgeries such as transvaginal surgeries are associated with a lower risk of venous thromboembolism compared to open procedures such as where a body cavity is opened. Transvaginal approaches are much less invasive and are felt to be associated with a lower risk of venous thromboembolism. [ 146 ] With respect to Ms. Kain’s family history, in Dr.

Crowther’s opinion although the patient reported a history suggestive of VTE there were no confirmed cases in her family. [ 147 ] Pneumatic compression devices are widely used in hospitalized patients, especially those who are at high risk of bleeding, who are actively bleeding, or during procedures when use of an anticoagulant drug is contraindicated due to the risk of bleeding. [ 148 ] These devices are generally regarded as highly effective and thus used on very high-risk deep vein thrombosis patients.

The American College of Chest Physicians published a guideline in 2012, recommending the use of pneumatic compression devices and providing them the same level of recommendation as other interventions such as anticoagulant drugs. Use of unfractionated heparin or low molecular weight heparin is supported by a large literature base; however, they are almost never used after hospital discharge, as they are associated with an increase in the risk of bleeding compared to pneumatic compression devices. [ 149 ] Pneumatic compression devices have been studied in patients at higher risk of deep vein thrombosis than Ms.

Kain – namely, those undergoing orthopedic surgery on their hips or knees. Extrapolating from this, the use of pneumatic compression devices on Ms. Kain was a reasonable strategy to prevent deep vein thrombosis. Ms. Kain’s circumstances did not increase her risk of thrombosis sufficiently to justify unusual antithrombotic approaches. For low risk procedures the most commonly recommended prophylaxis would be no prophylaxis or sequential compression devices. Mechanical thromboprophylaxis has relatively few risks associated with it.

It is inconvenient and reduces a patient’s mobility but it does not involve any increased risk of bleeding or other complications. Anticoagulants have two complications associated with their use. The first is that they increase the risk of bleeding and secondarily they

are costly and inconvenient to administer. [ 150 ] In Dr. Crowther’s opinion, providing a patient with prophylaxis after surgery and after hospital discharge would be outside the accepted standard. Dr. Crowther would not recommend out of hospital prophylaxis given the relatively low risk of venous thromboembolism associated with elective surgery which is counterbalanced by an enhanced risk of bleeding caused by pharmacological interventions. [ 151 ] Dr. Crowther opined that Ms.

Kain would fall into the low to moderate risk, based predominantly on the very short duration of the surgery and the fact that it is performed transvaginally as opposed to open, the fact that the patients’ DVT was more than 20 years prior and that it was hormone related. He notes that outside of specific very high risk surgical procedures there is no evidence to support the efficacy of post-discharge prophylaxis in patients such as this case. [ 152 ] The blood clot that Ms.

Kain suffered from was due to the surgical procedure exacerbated by a predisposition to blood clots as indicated by her history of deep vein thrombosis. In his opinion, the DVT did not develop because of the failure to administer pharmacologic anticoagulation, it developed because she had surgery, and she could just as easily suffered a DVT if she had received pharmacological prophylaxis. [ 153 ] Dr. Crowther explained the Caprini score was an interesting and useful tool when it was designed but its utility over time has declined as the nature of surgery has changed. He also explained that even if Ms.

Kain was classified as high risk, he was not aware of any evidence that would suggest that sequential compression devices are ineffective. [ 154 ] During cross-examination, he was asked about studies that reference the fact that low molecular weight Heparin are more beneficial over the “apparent benefit of new generation IPC (intermittent pneumatic compression device) in combination with Aspirin.” In Dr. Crowther’s opinion these studies were comparing foot pumps. Out of the 16 studies included in the analysis seven of them did not study contemporaneous IPCs.

He was then asked about the remaining studies that indicated that the incidence of DVT was 80 percent higher in the mechanical prophylaxis group. He testified as follows: Q Well aren’t we talking about in these studies the risk of developing DVT? We’re talking about 80 percent effectiveness of one form of treatment over the other the other, isn’t that all about the risk of developing DVT? A No, that’s the efficacy of intervention. The risk of developing the DVT is a function … of the patient characteristics, the nature of the surgery, the surgery itself. That’s the risk of developing DVT.

The efficacy of the intervention is not affected by the risk of having DVTs. IPCs will be equally effective in a trauma patient, in a gynecological surgery patient, or in an orthopedic surgery patient. [ 155 ] When asked whether the CHEST Guidelines ascribe a higher degree of confidence in low molecular weight Heparin, Dr. Crowther clarified that the comparison in the Guidelines was being made to no prophylaxis. The sentence did not imply that low molecular Heparin or low dose unfractionated Heparin are superior to intermittent compression devices.

It indicates that there was a disagreement among authors about how strongly they view the efficacy of Heparin over no intervention. [ 156 ] In Dr. Crowther’s view Ms. Kain’s risk of DVT was at worst moderate. Ms. Kain was 44 years old, attending for a short surgical procedure where she was expected to return to ambulation quickly. She had a history of DVT in pregnancy 22 years before and an unverified family history. [ 157 ] The American College of Chest Physicians (ACCP) guidelines are simply guidelines; they are not statements about how care should be delivered in every single patient. Dr.

Crowther reiterated that the American College of Chest Physicians guidelines endorse the use of mechanical forms of prophylaxis in patients identified to be at very high risk of venous thromboembolism. [ 158 ] In Dr. Crowther’s opinion, the Caprini score, in isolation, does not drive decisions with respect to the type of prophylaxis administered.

In an individual patient, there is no prediction rule which reliably prognosticates with respect to the likelihood of venous thromboembolism occurring. [ 159 ] Prior venous thromboembolism is not a predictor of future events, especially where a patient is undergoing a period of enhanced risk such as surgery. Dr. Crowther was not aware of any evidence suggesting routine extension of venous thromboembolism prophylaxis after hospital discharge in patients undergoing any type of surgery. B. Standard of Care - Analysis [ 160 ] I find that Dr. Davey’s decision to use mechanical thromboprophylaxis to manage Ms.

Kain’s surgical risk of DVT met the standard of care of an obstetrician and gynecologist practicing in Lethbridge, Alberta in 2012, for the following reasons. [ 161 ] Dr. Davey testified that he placed Ms. Kain in the low to moderate risk group primarily due to the length of the surgery, the nature of the surgery and the fact that she would be mobile following surgery. These factors and risk assessment contributed to his decision to order SCDs and compression stockings which he knew to be appropriate to manage the risk of DVT. Dr. Davey gave evidence that if Ms.

Kain had undergone a longer surgery and was less mobile following surgery, he probably would have prescribed Heparin. [ 162 ] Dr. Davey testified that even if the ACOG guidelines put her in high risk he would not have anticoagulated her. In his opinion, Ms. Kain’s risk for developing a DVT with a rectocele surgery was low to moderate and there were risks associated with pharmacological prophylaxis. [ 163 ] The Plaintiff’s expert, Dr. Viljoen placed Ms. Kain in the high risk category, given her past obstetric history complicated by DVT and the positioning during the surgery.

With respect to evaluating a patient’s risk for developing post-surgical DVT, Dr. Viljoen testified that each physician must undertake a risk assessment and patient stratification and such assessment should be based on a holistic

approach considering the unique circumstances of each patient. In his view, Ms. Kain’s risk should have been managed with pharmacological prophylaxis. [ 164 ] The Defendant’s expert, Dr. Skorenki agreed that this patient would be considered to be high risk for DVT based on having had a prior DVT by the ACOG Guideline Table 1 – Risk Classification for Venous Thromboembolism which states that the appropriate management for a high risk patient would be either low dose unfractionated heparin, low molecular weight heparin or pneumatic compression devices. However she disagreed that Ms.

Kain would be in the highest risk category. She explained that there was typographical error on page 6 of the ACOG Guidelines as there was a reference to age 40 as a risk factor because she was aware that over 40 does not place a patient in the highest risk category. The highest risk category requires age over 60. Had she encountered this typographical error in 2012 she would have read the complete ACOG Guideline and then referred back to Table 1 which clearly demonstrates that Ms. Kain fell into the high risk category not the highest. [ 165 ] Dr.

Skorenki opined that family history is not relevant when considering a patient’s risk factors for DVT and is not listed in the ACOG Guidelines as a risk factor. Dr. Crowther would not have classified Ms. Kain as having the high level of risk based on the fact that the surgery was less than thirty minutes and she was over the age of 40. Dr. Crowther testified that Ms. Kain fell into the low to moderate risk category and even if she was in the high risk category, mechanical prophylaxis would remain an effective option. [ 166 ] I do not find that by classifying Ms. Kain’s risk as low to moderate risk that Dr.

Davey fell below the standard of care as the key question in this case is whether Dr. Davey met the standard of care by managing Ms. Kain’s surgical risk of DVT with mechanical thromboprophylaxis. The duration of the surgery was relatively short, the surgery was performed transvaginally (as opposed to open); and the previous DVT event was over twenty years prior. [ 167 ] I acknowledge that it is significant that Ms. Kain had a prior venous thromboembolism. However, I accept Dr.

Crowther’s evidence that the temporal sequence in this case is significant, the rate of recurrent thrombosis is highest in the period of time immediately after a clot. In Ms. Kain’s case, her previous episode of venous thromboembolism occurred twenty-two years prior to her vaginal prolapse surgery. I also rely on the evidence that the thrombolic testing done by Dr. Ballem and Dr. Manson was normal, meaning that there no identified genetic cause of the DVT. This was confirmed by Dr. Janzen. [ 168 ] I accept Dr. Davey’s evidence that he ordered the SCDs to be placed on Ms.

Kain in advance of the surgery so that they would be pumping while she was in the stirrups because the bend of the legs affect the blood flow. The order for the SCD was also documented when Ms. Kain met with the nurses who went through her history again. The nurses’ documentation included the notation that Ms. Kain had a DVT in pregnancy 22 years earlier. In addition to writing orders for Zantac to be given two hours pre-operatively for heartburn the same nurse completed the pre-operative phone orders from Dr.

Davey that included anti-embolic stockings and SCD’s to be used on the patient before the surgery because of her history of previous DVT. [ 169 ] When asked why he used chemoprophylaxis during the plaintiff’s pregnancy in 2001 Dr Davey explained that it was two very different circumstances. The pregnancy is for a much longer period of time and pregnant women are more prone to forming clots. [ 170 ] I accept the evidence that the surgery, in this case, was short, not associated with a terrible amount of immobility, therefore the risk was lower. Post-surgery, Dr.

Davey encouraged her to be active as it assists in getting bowels moving, assists with respiratory issues and assists with decreased thrombotic events. The surgery itself is not as invasive as an abdominal surgery as it is transvaginal. I accept Dr. Davey’s evidence on this point. [ 171 ] I find that when Ms. Kain attended for surgery, she was placed in anti-embolic stockings and SCDs in advance of surgery and they were turned on during surgery. I accept Dr.

Davey’s evidence that the surgery lasted 22 minutes and that his handwashing would not have prolonged this surgical time. [ 172 ] The documents from the pre-operative clinic reflect Ms. Kain’s history of DVT and contain pre-operative orders for anti- embolic stockings and sequential compression/decompression stockings. I accept Dr. Davey’s testimony that the sequential compression device would have been turned on during surgery. Although he could not remember specifically, it is the standard practice and only logical that they would be turned on. [ 173 ] In Dr.

Viljoen’s opinion, as there were no existing practice guidelines regarding the use of anticoagulation treatment in gynecological surgery, in such cases, physicians must rely on past medical history and situational awareness. I disagree with his assessment that given that Ms. Kain was going to be immobilized in stirrups for the duration of the surgery, a measure that increases the risk of blood clot formation, (

i) Ms. Kain’s known history of previous deep vein thrombosis; and (ii) expected decreased post-op mobility should have reasonably prompted pharmacological thromboprophylaxis. [ 174 ] I accept Dr. Skorenki’s evidence that SCD’s are shown to be safe and efficacious in high risk patients particularly those at risk of bleeding complications which is a risk faced by all patients who have surgery. Dr. Skorenki testified that there is a risk of perioperative or postoperative bleeding with the pharmacological prophylaxis and that the surgeon is responsible for controlling this bleeding when it arises. Dr.

Skorenki testified that in her opinion, using any one of the three options outlined in the ACOG guidelines was consistent with the practice in the community in 2012. [ 175 ] Dr. Crowther also opined that SCDs are an effective form of compression therapy. In his opinion, SCDs are widely used in hospitalized patients. While the use of Heparin is supported by a large literature base, they are almost never used after hospital discharge and are associated with an important increase in the risk of bleeding compared with SCD.

In his opinion, the risk of bleeding, the inconvenience and the cost of such therapy would far outweigh the benefit of a reduc

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