Van Grinsven v Kortbeek, 2021 ABQB 33

Court of Queen’s Bench of Alberta Citation: Van Grinsven v Kortbeek, 2021 ABQB 33 Date: 20210112 Docket: 1003 18672 Registry: Edmonton Between: Richard Van Grinsven and Gail Cumming Plaintiffs - and - Dr. Frank B. Kortbeek, Frank B. Kortbeek Professional Corporation, Dr. Colin J. G. Noble, Colin J. G. Noble Professional Corporation, Dr. Craig Barten Bulawka, Dr. Carlo Panaro, Dr. Sunil Gupta, S. Gupta Professional Corporation, Jeffrey Toreson, Dr. Donald William Cooper Johnston, Donald William Cooper Johnston Professional Corporation, Dr.

Tze-Feng Chong, Tze-Feng Chong Professional Corporation , Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, Jane Doe #6, Jane Doe #7, Jane Doe #8, Jane Doe #9, Dr. Doe #1, Dr. Doe #2, Dr. Doe #3, Dr. Doe #4, Dr. Doe #5, Dr. Doe #6, Dr. Doe #7, Dr. Doe #8, Dr. Doe #9, Dr. Doe #10, Dr. Doe #11, Dr. Doe #12, Dr. Doe #13, Dr. Doe #14, Royal Alexandra Hospital, and Alberta Health Services Defendants _______________________________________________________ Reasons for Decision of W.S.

Schlosser , Master of the Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is a Defendant’s application to dismiss a medical malpractice lawsuit. The Applicants say that the Plaintiffs will not be able to meet their burden of proof and that this claim must fail. [ 2 ] This lawsuit arose because post-operative infections ultimately led to the amputation of Mr. Van Grinsven’s right leg. This Plaintiff had endured a number of other, unrelated, surgeries (eight) in the past, without complications or infection.

[ 3 ] The proximate events giving rise to this lawsuit started in 2005. Dr. Stiver’s detailed chronology of the medical procedures in question is attached as an appendix. [ 4 ] In 2005, Mr. Van Grinsven presented with the residual effects of multiple prior knee surgeries, arising, in part, from a 1979 motorcycle accident; which left him with post-injury damage and arthritis. [ 5 ] This lawsuit, and this application, engage three issues: 1) What bacterial agent(

s) caused the infections? 2) How did the infectious agents come to be introduced into the wound? and, 3) Did the Defendants meet the applicable standard of care in treating Mr. Van Grinsven? [ 6 ] The central issue is whether the Plaintiffs can discharge their burden of proof with respect to causation and breach of the standard of care. [ 7 ] This lawsuit depends on the experts. I am going to let their reports do the talking. I am going to assume, for the purposes of this application, that all of the experts would be qualified to give opinion evidence in their chosen fields. 1.

What bacterial agents caused the infection? [ 8 ] Dr. Pattullo (one of the Defendant’s experts): a clinical associate professor of medicine and a consultant in infectious diseases finds: Propionibacterium acnes, staphylococcus and streptococcus. [ 9 ] Dr. Abelseth (another of the Defendant’s experts), an orthopod specializing in knee and hip replacement, skips over this question. He says: On my review of the transcript from the Questioning of Dr. Kortbeek, it appears to me that the underlying question the plaintiffs have is what, or who, caused the infection.

Unfortunately, there is probably no answer to this question. Infections are an uncommon but recognized complication of Total Joint replacement surgery. Frequently no causative factor can be identified. They are difficult to manage and can be devastating, as demonstrated in this case where the care provided was excellent. [ 10 ] Dr. Stiver (the Plaintiff’s expert), a specialist in infectious diseases, says: Mr. Van Grinsven developed three post-operative infections in his history of prosthetic joint arthroplasties in his right knee.

The bacterial pathogens were: Anaerobic streptococcus , and Propionibacterium acnes combined in February 2008, which resolved on antibiotics; Coagulase negative Staphylococcus in June 2008, recurrent in September 2008, and finally cured after a two-stage arthroplasty and further course of antibiotics; Group B streptococcus and Staphylococcus intermedius in November 2009, finally cured after extensive antibiotic treatment from October 2009 to approximately November of 2010. The recurrent infections with different bacteria suggest that Mr.

Van Grinsven had reinfections rather than relapsing infections (which would more likely be the same bacteria). [ 11 ] The infectious agent(

s) have been identified. Expert opinion, to the extent that it addresses this question, is consistent on this point. 2. How did these infectious agents come to be introduced into the wound? [ 12 ] Dr. Pattullo says: Unfortunately, Mr. Van Grinsven developed three distinct and different post operative surgical infections in his right knee, each occurring after a separate arthroplasty surgery. Each of these infections was caused by bacteria normally found on the human skin or in the human body.

None of the bacteria are environmental organisms making it highly unlikely they originated from the operating environment, from surgical instruments or from the prosthetic materials all of which will have undergone well-tested procedures for cleaning, processing and sterilization. Each of the infections was managed expertly and eventually cured with appropriate surgical and medical interventions. The bacteria causing these infections most likely originated from Mr. Van Grinsven’s own normal bacterial flora as is the case in the vast majority of postoperative infections of prosthetic joints.

While every attempt is made to sterilize the skin and avoid contamination of the surgical wound during such operations, the surgical field can never be completely sterile and inevitably some bacteria from the patient’s skin may enter the wound during surgery. If enough bacteria enter the wound and they are not killed by the combination n of preoperative antibiotic prophylaxis and the patient’s own immune respond an infection may develop.

Even if infection is not initiated during the operation, the artificial surfaces of the prosthetic joint components make a favourable environment for bacteria to adhere to if they enter the joint from the blood stream or from direct penetration in the early postoperative period, or anytime thereafter. Once bacteria are adherent to these artificial surfaces it is difficult for the immune system and antibiotic treatments to sterilize the joint.

If bleeding or bruising occurs in the joint after the initial operation this dramatically increases the chance of bacterial infection as it provides a favourable environment for bacterial growth which is relatively protected from the patient’s immune

response. Thus, it is nearly impossible to reduce the rate of postoperative infections in prosthetic joints below one to two percent even with the best of techniques. (emphasis added) [ 13 ] Dr. Pattullo rules out the operating environment, surgical instruments or the prosthetic material itself, but based on an assumption that all have undergone ‘well-tested procedures for cleaning, processing and sterilization’. The presence or absence of these procedures is what this lawsuit is about. Dr. Pattullo notes that the prosthetic device itself is susceptible to post-operative contamination. [ 14 ] Dr.

Stiver, the Plaintiff’s expert, opens up a wider range of possibilities, saying: Possible Contributing factors of prosthetic joint Infection might be: 1. Repeat arthroplasties for infection, if debridement of the joint had been incomplete. 2. Delayed wound healing with open skin areas that can be infected and spread to the joint. 3. Hematoma formation which can lead to sequestered infection, which is difficult to get antibiotics into. 4. Contamination of the surgical wound from skin flora during surgery from a break in sterile technique. 5.

Infection at a non-surgical site e.g. dental infection, that spreads by the bloodstream to the tissue around the prosthetic joint. 6. Contamination of the surgical wound by bacteria in operating room air. 7. Contamination of surgical instruments. 8. Contamination of the prosthetic hardware after the device is unwrapped in the operating room. 9. Failure to sterilize the device at the manufacturer. 10. Contamination from disruption of the sterile device packaging material. 11. Host factors such as edema in the leg (particularly in streptococcal infections). 12.

Poor blood flow in the affected limb (as seen in peripheral vascular disease). 13. Dermatitis such as fungal infection in the toes, compromising the healthy skin barrier 14. Incomplete skin disinfection of the operative site skin. 15. Underlying diseases such as rheumatoid arthritis, obesity, and diabetes. 16. Immune system suppression by underlying disease or immunosuppressive drugs. In the majority of cases, no definable source or mechanism of infection can be identified despite meticulous surgical technique and barrier protocols. ...

In my opinion, it is difficult in this case to identify any single probable cause. Staphylococcal species can survive on inanimate surfaces such as dog and cat cages, and children’s toys. All the bacteria identified from Mr. Van Grinsven can be normal skin flora with the possible exception of anaerobic streptococcus (which was not speciated) from the first infection. Staphylococcus intermedius is a common commensal in dog but can be on human skin as well. It has not been described on inanimate surfaces in the environment.

The surgical procedures were apparently carried out with accepted technique and protocol by Dr. Kortbeek.

The presence of a hematoma would be a complicating factor, but was later evacuated. ... [ 15 ] I acknowledge that points 4, 7, 8 and 9 could be consistent with negligence on the part of the Doctors in the hospital. 9 and 10 could be consistent with negligence on the part of the manufacturer but there is no evidence to show that any of them are any more than possibilities, and, for this claim to succeed, probability (not possibility) is required. [ 16 ] Although the bacterial agents involved are commonly found on the skin, all three experts agree that the specific reason for the infection usually cannot be identified; making causation essentially unproveable. [ 17 ] I note, from Dr.

Stiver’s report, that the amputation was done for ‘severe pain and lack of mobility’. The infection appears to have been the primary contributing factor, but the infection had, in fact, been cured by the time the amputation was done. 3. Was the applicable standard of care met? [ 18 ] The infectious agents have been identified but no one has been able to identify how it was introduced into the wound. Dr. Stiver expands the list of possibilities but cannot identify a single probable cause, much less one that is consistent with negligence on the part of the Defendants. All of the experts conclude that Dr.

Kortbeek met or exceeded the applicable standard of care, or rendered care

and attention that was excellent, or exemplary. Res ipsa loquitur [19] It is only natural for someone in Mr. Van Grinsven’s position to maintain that the facts should speak for themselves; that thedifficulties he suffered would not have happened without someone’s negligence. Patients expect much from modern medicine, perhaps tothe extent that routine procedures are expected to be virtually infallible. After all, Mr. Van Grinsven had endured comparable proceduresin the past without complication. It would only be natural for someone in Mr.

Van Grinsven’s place to expect that the burden of proofshould be reversed and that it should be incumbent upon the Defendants to prove that they were not negligent. [20] Res ipsa loquitur (‘the thing speaks for itself’), thus shifting the burden of disproof to the Defendants, is now mostly gonefrom the law. It has ‘expired’; in the words of Major J., in Fontaine v British Columbia (Official Administrator), (SCC), [1997] 156 DLR (4th) 577 (SCC).

However, there are some situations ‘in which the accident itself provides sufficientcircumstantial evidence to permit an inference that the Defendants were negligent’, thus effectively reversing the burden of proof inthose limited circumstances.[1] [21] The law also recognizes the difficulty a patient may have in proving the details of a medical accident (e.g. Snell v Farrell(1990), (SCC), 72 DLR (4th) 289 (SCC)).

And, running along side of all of this, is the possibility of inference-basedcausation[2]. [22] There are two cases that can provide us with some direction about whether any of these principles are engaged on our facts: InHajgato v London Health Association et al, (1982) 36 OR(2d) 669; Affd (1983), (ON CA), 44 OR (2d) 264 (OntCA), it was held that the fact that the site of a surgical operation becomes infected does not, in itself, provide sufficient circumstances toreverse the onus.

The case does go on to say that the failure to detect, or treat the infection might be but here all the infections wereidentified and treated. [23] Parragh v Eagle Ridge Hospital and Health Care Centre, 2008 BCSC 1299 (especially paras 64, 70 and following) holdsthat a breach of the applicable standard of care can be concluded from the fact of loss or damage, when that loss or damage would nothave occurred without the breach. But in the present case, it cannot be concluded that the infection would not have occurred in theabsence of negligence. Dr.

Stiver, himself, raises 16 possibilities, only a few of which are consistent with negligence of the Doctors, orthe hospital. [24] Dr. Abelseth notes that the typical infection rate is approximately 1% of primary joint replacements. [25] Dr. Stiver says: There is no information in the documents you provided that would suggest to me that Mr. Van Grimsven’s [sic] infections and themanagement of the infections were unusual or deficient. The infection rate after primary prosthetic arthroplasty is around 1%, and afterrevision arthroplasty 5% for non-septic loosening and around 20% for infection.

The majority of these infections are staphylococcal. [26] Dr. Pattullo says: Mr. Van Grinsven had a very unfortunate series of mechanical and infectious complications of surgeries to implant prosthetic jointcomponents in his right knee as a remedy for severe, painful and debilitating osteoarthritis. Each of these complications was expertly andappropriately managed. The primary cause of Mr. Van Grinsven’s elevated risk for such infections was the prior trauma and multiplesurgeries on the right knee preceding the first right knee replacement. An additional risk factor was Mr. Van Grinsven’s obesity.

Thereare no evident factors in the surgical care, infection control practices or preoperative preparations that contributed to these complications.In short, the surgical and medical care provided to Mr. Van Grinsven is extremely well documented and clearly meets or exceeds thenormal standard of care. [27] The risk of infection appears to rise dramatically with prior traumas, or prior surgeries. Mr.

Van Grinsven came into thissituation because of the residual and long term affects of the motor cycle accident he suffered in 1979; which, after 8 prior surgeries, lefthim with post-injury damage and severe osteoarthritis. [28] At age 45, Mr. Van Grinsven was also overweight, had high blood pressure and had generalized joint problems with knees,neck, back, wrists and shoulders. He presented with prior trauma to the knee, prior reconstructive surgeries and an arthritic state. In otherwords, the very things that motivated Mr.

Van Grinsven to have his knee replaced also made him more vulnerable to infection. [29] It strikes me that Mr. Van Grinsven was not a ‘one percenter’ when he presented in April 2005. Given his history, the startingpoint was that his risk of infection was much higher. [30] Dr. Kortbeek swears that he outlined the risks of a total knee arthroplasty, including infection. Dr. Pattullo said: ... 4.Dr. Kortbeek discussed a knee replacement with Mr.

Van Grinsven as the best option but warned him that due to his young age hemight require a revision or revisions of the knee replacement during his life and that the durability of each knee replacement woulddiminish with each surgery. Dr. Kortbeek informed Mr. Van Grinsven that it would be best to delay knee replacement as long as possibledue to the risks, but Mr. Van Grinsven stated that his quality of life was such that he preferred to proceed with a knee replacementwithout waiting. 5. Dr. Kortbeek also conveyed to Mr.

Van Grinsven that there was a risk of infection with surgery which would require surgical revisionof the joint and that there was a risk of the knee being stiff following surgery.

... [ 31 ] There is very limited evidence about informed consent prior to the first knee replacement and virtually no information about any advice given about the increased risk of infection from any of the subsequent procedures which would have required advice on this ascending scale as the risk increased. Ms. Cumming said, at the application, that nothing was said about these risks. However, this is not in evidence and is not directly in issue.

It is not pleaded that a reasonable person in the position of the Plaintiff would not have gone ahead with these procedures if he had been properly informed of the risks. The informed consent issue, at present, remains a non-issue as it has not been raised in the pleadings, or supported with any evidence. [ 32 ] The primary difficulty with this case is that we know what caused Mr. Van Grinsven’s infections but, it is only a matter of speculation about how the infectious agents were introduced into the wound. Dr.

Striver and the other experts gave evidence about a range of possibilities but there is no one probable explanation. [ 33 ] I regret to say that all the evidence really proves is that Mr. Van Grinsven is one of those few cases that make up the unfortunate statistic when infection occurs and no causative factor can be identified. [ 34 ] The application is allowed, the case is dismissed against the Applicants. Heard on the 16 th day of October, 2020 Dated at the City of Edmonton, Alberta this 12 th day of January, 2021. W.S. Schlosser M.C.Q.B.A.

Appearances: Tyler McDonough & E Bruce Mellett of Bennett Jones for the Applicants: Dr. Frank B. Kortbeek, Frank B. Kortbeek Professional Corporation, Dr. Colin J. G. Noble, Colin J. G. Noble Professional Corporation, Dr. Craig Barten Bulawka, Dr. Carlo Panaro, Dr. Sunil Gupta, S. Gupta Professional Corporation, Jeffrey Toreson, Dr. Donald William Cooper Johnston, Donald William Cooper Johnston Professional Corporation, Dr.

Tze-Feng Chong, Tze-Feng Chong Professional Corporation Gail Cumming & Richard Van Grinsven Self-represented Lyndon Bolanac of Field Law for the Defendants Royal Alexandra Hospital, and Alberta Health Services

Appendix