Khaleel v Indar, 2023 ABKB 547

Court of King’s Bench of Alberta Citation: Khaleel v Indar, 2023 ABKB 547 Date: 20230929 Docket: 1503 14869 Registry: Edmonton Between: Fadi Khaleel Plaintiff - and - Adrian Indar Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] On October 2, 2013, Dr. Adrian Indar performed open hernia repair surgery on Fadi Khaleel at the Fort McMurray Northern Lights Regional Hospital (“NLRH”). Mr.

Khaleel had a previous hernia repair surgery as an infant in Jordan. [ 2 ] During the surgery, Dr. Indar encountered significant scar tissue and adhesions. He also encountered extremely rare anatomy. Mr. Khaleel’s testes were fused together with both vas deferens passing through the right inguinal canal. Dr. Indar had difficulty confirming the anatomy. In attempting to excise the layers of the spermatic cord, Dr. Indar made an incision in the content of the canal that turned out to be the bladder wall. Dr. Indar requested a second opinion from Dr. Zuk intraoperatively. Dr. Zuk confirmed

the bladder injury and the unusual anatomy. After Dr. Zuk left, Dr. Indar repaired the bladder and then completed the hernia repair using a synthetic mesh Lichtenstein repair. [ 3 ] Following the surgery, Mr. Khaleel experienced chronic pain. A year after the surgery Mr. Khaleel saw Dr. Leone, a urologist. Dr. Leone diagnosed Mr. Khaleel with an atrophic testicle. [ 4 ] In March 2023, Dr. Leone performed an orchiectomy, removing Mr. Khaleel’s right testicle. This significantly reduced Mr. Khaleel’s pain. [ 5 ] Inguinal hernias can be repaired using an open Lichtenstein procedure or a laparoscopic procedure.

Not all general surgeons in Canada are trained to perform laparoscopic hernia repairs. In October 2013, there were no general surgeons in Fort McMurray, including Dr. Indar, who were trained in laparoscopic hernia repairs. [ 6 ] Chronic pain and testicular atrophy are known risks of both the open and laparoscopic repair procedures. [ 7 ] The parties agree on damages. Liability is in issue. [ 8 ] To find Dr. Indar liable for negligence, Mr. Khaleel has the onus of proving, on a balance of probabilities, the following: a. Dr. Indar owed Mr. Khaleel a duty of care; b. Dr. Indar breached the standard of care; c. Mr.

Khaleel suffered an injury or loss; and d. Dr. Indar’s conduct caused the injury or loss. [ 9 ] Dr. Indar acknowledges that he owed a duty of care to Mr. Khaleel in recommending treatment, advising of risks and options for treatment, and performing the surgery. It is also not in issue that Mr. Khaleel suffered a vascular injury resulting in testicular atrophy. What is in issue is whether Dr. Indar breached the standard of care and, if so, whether the breach caused Mr. Khaleel’s vascular injury and chronic pain. [ 10 ] Mr.

Khaleel alleges three separate pathways to liability or in other words three separate breaches of the standard of care: 1. That Dr. Indar should have recommended laparoscopic surgery and should have referred Mr. Khaleel to a laparoscopic surgeon to perform the repair, because Mr. Khaleel had a previous hernia repair as an infant. Where the first surgery used an open approach, the Plaintiff argues that laparoscopic surgery is the preferred approach for recurrent hernia surgery as it is a posterior approach that avoids previous scar tissue. Dr. Indar failed to recommend this procedure and failed to refer Mr.

Khaleel to a laparoscopic surgeon. 2. That Dr. Indar injured Mr. Khaleel’s testicular artery during the surgery by cutting what he did not identify during the surgery. 3. That Dr. Indar failed to advise Mr. Khaleel of the risks of chronic pain and testicular atrophy and failed to advise Mr. Khaleel of other reasonable treatment options, including laparoscopic repair, and not undergoing surgery. [ 11 ] Dr. Indar argues that: 1. He met the standard of care of a general surgeon by performing an open hernia repair. Dr.

Indar disagrees that laparoscopic surgery is the preferred approach where the previous hernia surgery is an infant hernia repair. 2. The evidence does not establish that Dr. Indar injured Mr. Khaleel’s testicular artery by cutting what he did not identify. 3. Dr. Indar did advise Mr. Khaleel of the risks of an open hernia repair, including the risks of chronic pain and testicular atrophy. While Dr. Indar acknowledges that he did not advise Mr. Khaleel of the options of laparoscopic repair and not undergoing surgery, these were not reasonable options for Mr. Khaleel because his hernia was incarcerated. 4.

A reasonable person in Mr. Khaleel’s circumstances would not have chosen to forgo the surgery or wait for laparoscopic surgery. 5. Mr. Khaleel has not established that laparoscopic surgery would have prevented the vascular injury. [ 12 ] I must determine the following issues: a. Did Dr. Indar breach the standard of care in failing to recommend and refer Dr. Khaleel to a laparoscopic surgeon for a laparoscopic repair? b. Did Dr. Indar breach the standard of care during the operation by cutting what he did not identify? c. Did Dr. Indar breach the standard of care by failing to advise Mr.

Khaleel of the risks of chronic pain and testicular atrophy and the options of no surgery or laparoscopic surgery? d. Would a reasonable person in Mr. Khaleel’s circumstances have chosen not to have the surgery or elected to have laparoscopic surgery? e. Would laparoscopic surgery have prevented the vascular injury?

II. Background Undisputed Facts [ 13 ] The following facts are not in dispute. • Mr. Khaleel was born in Jerusalem on December 1, 1986. • He moved to Jordan shortly after birth. He underwent open hernia repair for a right inguinal hernia as an infant in Jordan. • Mr. Khaleel immigrated to Canada in 2006 to pursue education. • Mr. Khaleel settled initially in Vancouver. He began a moving business around 2010. • Mr. Khaleel consulted a doctor on March 18, 2012. The doctor’s chart notes that Mr. Khaleel was complaining of back pain and that he had an inguinal hernia. • Mr.

Khaleel moved to Fort McMurray in September or October of 2012. He worked as a mover in Fort McMurray until he was hired by Diversified Transportation to work in the wash bay. • On July 21, 2013, Mr. Khaleel went to the emergency room at the NLRH complaining of testicular pain that increased while working. Mr. Khaleel was 26 years old. • Mr. Khaleel returned to the emergency room at the NLRH on August 12, 2013 complaining of intermittent testicular pain, which was increasing. He was diagnosed with an inguinal hernia. He was offered admission for immediate surgery, but he declined. He was referred to Dr.

Indar. • On August 19, 2013, Mr. Khaleel completed a claim for short-term disability benefits. His employer, Diversified, refused to allow him to return to work until he dealt with his hernia. • On August 26, 2013, Mr. Khaleel saw Dr. Indar at his clinic. Dr. Indar scheduled an open hernia repair for October 2, 2013. Mr. Khaleel signed a Consent Form. • At the time of the surgery, Mr. Khaleel smoked about one and a half packs of cigarettes a day. He tried multiple times to stop but was unsuccessful. • At the time of the surgery, Mr. Khaleel was not married. He had a girlfriend. • During the surgery, Dr.

Indar encountered significant previous scarring, unusual anatomy, thickened contents, and bleeding. In attempting to excise the layers of the spermatic cord, Dr. Indar cut the bladder wall. After consulting with Dr. Zuk, Dr. Indar repaired the bladder injury and then repaired the hernia using a mesh repair. • Mr. Khaleel was discharged that day. • Mr. Khaleel returned to the emergency room at the NLRH on October 3 and October 5, 2013 complaining of pain and swelling. He was diagnosed with a post-operative hematoma. He was prescribed medication and scrotal support. • On October 10, 2013, Mr. Khaleel saw Dr. Indar.

Dr. Indar told Mr. Khaleel that the surgery had been a difficult operation and that he had abnormal anatomy. He was prescribed scrotal support and pain mediation. • On October 13, 2013, Mr. Khaleel attended the emergency room at the NLRH again complaining of pain. He was prescribed medication and advised to follow up with Dr. Indar. • Mr. Khaleel moved to Vancouver shorty after. He did not see Dr. Indar again. • On October 27, 2014, Mr. Khaleel saw Dr. Leone. Dr. Leone diagnosed Mr. Khaleel with a vascular insult to the right testicle following his inguinal hernia repair. • On March 22, 2023, Dr.

Leone performed a right orchiectomy on Mr. Khaleel. Mr. Khaleel reports significant pain reduction following the surgery. III. Did Dr. Indar Breach the Standard of Care in Failing to Recommend and Refer Mr. Khaleel to a Laparoscopic Surgeon for Laparoscopic Repair? [ 14 ] The experts disagreed on whether the standard of care required Dr. Indar to recommend a laparoscopic repair to repair Mr. Khaleel’s inguinal hernia. [ 15 ] The Plaintiff called Dr. Khundal, a general surgeon, to give expert evidence on inguinal hernia repairs. Dr. Khundal opined that the standard of care required Dr. Indar to recommend that Mr.

Khaleel undergo a laparoscopic procedure, as opposed to an open procedure, to repair Mr. Khaleel’s hernia. As no general surgeons in Fort McMurray, including Dr. Indar, performed laparoscopic hernia repairs, the standard of care required Dr. Indar to refer Mr. Khaleel to a surgeon in another city who performed laparoscopic repairs.

[ 16 ] Dr. Khundal explained that Dr. Indar should have recommended a laparoscopic hernia repair, because Mr. Khaleel had a previous open inguinal hernia repair as an infant in Jordan. A surgeon should expect to encounter scarring when operating on tissue previously operated on, because that is how the body heals. Scarring makes surgery more challenging, because the normal dissection planes surgeons need to dissect critical structures are often not there. When this happens, it becomes more difficult to separate and identify the structures, thus putting the structures at a higher risk for damage.

Unlike the open hernia repair that Dr. Indar performed, where he approached the hernia through the tissue previously operated on, a laparoscopic repair approaches the hernia through tissue not previously operated on. This avoids the scar tissue of the previous repair and makes it easier to separate and identify the structures, thus reducing the risk for damage. [ 17 ] The Defendant called Dr. Smith, a general surgeon, to give expert evidence on inguinal hernia repairs. Dr. Smith disagreed with Dr. Khundal’s opinion that the standard of care required Dr. Indar to recommend the laparoscopic procedure. Dr.

Smith opined that Dr. Indar met the standard of care by recommending and performing an open inguinal hernia repair for two reasons. [ 18 ] The first is that Mr. Khaleel’s previous repair was as an infant. Infant hernia surgery is different than a previous adult hernia surgery. An infant hernia repair does not involve the use of mesh or repairs to the wall of the inguinal canal. As such, it does not produce the same scarring that a previous adult hernia repair might. Open hernia surgery is the gold standard for repairing an inguinal hernia. In this case, where Mr.

Khaleel’s previous hernia repair was done as an infant, Dr. Indar met the standard of care by recommending and performing an open hernia repair. [ 19 ] The second reason why Dr. Smith disagreed with Dr. Khundal is because, in Dr. Smith’s view, Mr. Khaleel had a complex incarcerated scrotal hernia. Laparoscopic surgery is not an option, in Dr. Smith’s opinion, for a complex incarcerated scrotal hernia. I will address the issue of whether Mr. Khaleel’s hernia was incarcerated when I deal with the issue of whether all reasonable treatment options were presented to Mr.

Khaleel. [ 20 ] This is not the only issue that Dr. Smith and Dr. Khundal disagreed on. There are other issues. Both parties allege that the expert called by the other party was biased and advocated in favour of the party calling the expert. Accordingly, to determine this issue, as well as other issues, it is necessary for me to consider the credibility of Dr. Khundal and Dr. Smith. A. Credibility of Dr. Khundal [ 21 ] The Defence argues that Dr. Khundal’s lack of independence and impartiality significantly detracts from his credibility. Dr. Khundal was unfairly critical of Dr. Indar, Dr.

Khundal changed his opinions, and he brought a subjective, advocacy lens to his evidence. As a result, I should afford his evidence little weight. I disagree. [ 22 ] In my view, Dr. Khundal testified before me in an independent and impartial manner. While Dr. Khundal was very critical of Dr. Indar on some issues, he was not unfairly critical, for reasons I discuss later in this decision. My overall impression of Dr. Khundal is that he honestly holds the views and opinions he testified to. His answers at times were verbose, sometimes straying off topic.

However, he fairly answered questions asked in cross-examination. It was clear to me during his testimony that he is passionate about patient care, ensuring that patients are informed and fully understand the risks of surgery and have fully considered the options available for treatment. [ 23 ] I do agree with the Defence that at times Dr. Khundal brought a subjective lens to his evidence. At times it was not clear whether his evidence was based on what he would do or what the reasonably prudent general surgeon should do. In assessing his evidence, I must be alive to this issue. [ 24 ] As one example, Dr.

Khundal opined that Dr. Indar breached the standard of care in failing to inform Mr. Khaleel of the risks of chronic pain and testicular atrophy. Dr. Khundal based his opinion on the fact that Dr. Indar listed several specific risks he discussed with Mr. Khaleel in his consult chart and the consent form signed by Mr. Khaleel. The risks of chronic pain and testicular atrophy were not listed in either the chart or the consent form. Dr. Indar testified that his invariable practice is to explain the risks of chronic pain and testicular atrophy. Dr. Khundal strongly resisted Defence Counsel’s suggestion that Dr.

Indar is entitled to rely on his invariable practice. Dr. Khundal’s difficulty in accepting Dr. Indar’s invariable practice is that Dr. Khundal’s practice is to always document the risks explained to a patient. It is clear from the other experts that not all experts document the risks explained. In determining the standard of care, what is critical is the communication of risks and not the documenting of risks. [ 25 ] Another example is that, in his Form 25, Dr. Khundal states that Dr. Indar breached the required standard of care by not recommending laparoscopic repair.

In his trial evidence he testified that, in his personal practice, he likely would not have even offered a hernia repair to Mr. Khaleel. I disagree with Defence arguments that this evidence is inconsistent or demonstrates a lack of independence. In my view, this is another example of Dr. Khundal testifying at times to what he would do in his practice. [ 26 ] The Defence also criticizes Dr. Khundal because he presumed that Mr. Khaleel did not understand Dr. Indar as Mr. Khaleel’s first language was not English and therefore a translator was required to ensure Mr. Khaleel understood the risks of the surgery.

The Defence argues that Dr. Khundal applied a subjective lens to this assessment when he spoke about his experience working in Brampton and his lived experience. I agree with the Defence that this is another example of Dr. Khundal at times departing from the standard of care to give evidence about what he would do. [ 27 ] The Defence also criticizes Dr. Khundal for giving a new opinion during trial that is not raised in his Form 25. An expert is entitled to elaborate on his or her opinions set forth in the Form 25.

An expert is not entitled to testify at the trial to new theories not contained in the Form 25. [ 28 ] The fact that Mr. Khaleel was a heavy smoker and that this increased his risks was not in dispute. In his Form 25, Dr. Khundal opined that Dr. Indar should have considered the non-surgical option because of Mr. Khaleel’s pre-existing pain. During trial, when cross-examined on the issue of Mr. Khaleel’s smoking, Dr. Khundal added smoking to the reasons why he would not have performed the surgery. In my view, this was an elaboration and not a new theory. It is another example of Dr.

Khundal testifying to what he would do,

as opposed to the standard of care. B. Credibility of Dr. Smith [ 29 ] The Plaintiff argues that Dr. Smith is not a credible witness because his evidence indicates that he assumed the role of advocating for Dr. Indar, rather than providing independent and impartial opinions. The Plaintiff submits that Dr. Smith advocated for Dr. Indar in the following ways: a. Dr. Smith has an agenda to advocate against laparoscopic hernia repairs. b. He listed facts that are irrelevant to his opinion but cast Mr. Khaleel in a negative light. c.

He selectively interpreted medical records, not responding to questions, or responding defensively. d. He added unresponsive commentary in support of Dr. Indar in response to questions asked during cross-examination. e. Dr. Smith advanced a new theory during the trial inconsistent with his Form 25. [ 30 ] I do not agree that Dr. Smith’s evidence indicates an agenda to advocate against laparoscopic hernia repairs. Dr. Smith performs both open and laparoscopic repairs. The fact that he pointed out that some of the material Dr.

Khundal relies on came from conferences attended by endoscopic surgeons and raised the possibility that there are some politics in play in some organizations does not persuade me that he had an agenda to advocate against laparoscopic hernia repairs. In my view, it is appropriate to question where material comes from and why the material was generated. [ 31 ] Dr. Smith did list facts irrelevant to his liability opinion. However, his report was done before the parties agreed on damages. These facts are potentially relevant to damages. Accordingly, I am not persuaded that Dr.

Smith included these facts in his report to cast Mr. Khaleel in a negative light. [ 32 ] While the Defendant argues that Dr. Khundal’s evidence about whether Dr. Indar met the standard of care in disclosing the risks of the surgery demonstrates a lack of independence and impartiality, in my view, Dr. Smith’s evidence regarding the same issue raises a similar concern. Dr. Smith testified that the risks of the repeat hernia surgery were fully disclosed to Mr. Khaleel. He was asked whether that was based on a presumption that what Dr. Indar said he discussed is what he discussed.

His answer was: “I see no reason to doubt what he’s saying. You know, there’s certainly no way I could know one way or another. But no, I would accept it.” While Dr. Smith’s evidence was given in a softer manner than Dr. Khundal, in my view, they are both falling into the same error. Dr. Smith is choosing to believe Dr. Indar when there is reason to doubt what he is saying. Dr. Khundal is choosing to disbelieve Dr. Indar without considering his invariable practice. What risks Dr. Indar communicated to Mr. Khaleel is a question of fact for me to determine. [ 33 ] I agree there are a few examples where Dr.

Smith selectively interpreted medical records, did not respond to questions, or responded defensively. However, there are also examples where Dr. Khundal did the same. [ 34 ] I agree with the Plaintiff that Dr. Smith did add unresponsive commentary in support of Dr. Indar in response to questions asked during cross-examination. One example is during cross-examination in response to the question of whether Dr. Indar met the standard of disclosure if he did not disclose the risks of chronic pain and testicular atrophy. Dr. Smith conceded this would not meet the standard of disclosure.

However, he then went on to add that if the risks had been disclosed a reasonable patient would have agreed to the surgery. [ 35 ] Another concern is that at times Dr. Smith’s evidence shifted depending on the context. One example is that he agreed on cross-examination that physicians have an obligation to properly inform patients in the post-discharge period about clinical signs and symptoms that may indicate the need for immediate treatment. When then asked whether he was aware that Dr. Indar did not inform Mr.

Khaleel of the operative complications involving the bladder issue before discharging him, he confirmed he was not. When asked if he agreed that Dr. Indar did not meet the standard of disclosure in failing to tell Mr. Khaleel about the complications until 8 days after the surgery, Dr. Smith backtracked from his earlier statement and testified that Mr. Khaleel was pushing to leave and he was wondering if Dr.

Indar may have actually talked to him had he hung around and that patients are pretty asleep and difficult to talk to post-surgery so a lot of times these things are disclosed to patients in the first post-operative visit. [ 36 ] Dr. Smith also stepped outside his Form 25 during his evidence- in- chief to advance a new theory. Dr. Smith testified that laparoscopic surgery was not an option because Mr. Khaleel’s hernia was incarcerated. In his Form 25, his opinion was that Dr. Indar met the standard of care by performing an open hernia repair. He disagreed with Dr.

Khundal that laparoscopic surgery was the preferred approach. He disagreed with Dr. Khundal that the HerniaSurge Guidelines applied to infant hernia repairs. He did not state that Mr. Khaleel’s hernia was incarcerated. He did not state that laparoscopic surgery was not an option because the hernia was incarcerated or otherwise. The only reasonable

interpretation of Dr. Smith’s Form 25 is that both laparoscopic and open hernia repairs were options, but in Dr. Smith’s opinion it was acceptable and within the standard of care for Dr. Indar to perform the open approach. As a result, his evidence-in-chief, in testifying that laparoscopic surgery was not an option because Mr. Khaleel’s hernia was incarcerated, was not consistent with his Form 25. [ 37 ] At trial, Plaintiff’s counsel objected to Dr. Smith’s testimony as a new theory. In an oral judgment, I concluded that Dr. Smith’s opinion that laparoscopic surgery was not an option for Mr.

Khaleel because his hernia was incarcerated was a new theory that was not raised in Dr. Smith’s report. Rather than find the evidence inadmissible, I allowed the Plaintiff to recall Dr. Khundal to address this new theory. [ 38 ] Relying on KY v Bahler , 2023 ABKB 280 , the Plaintiff argues that Dr. Smith’s opinion that laparoscopic surgery was not an option, inconsistent with his Form 25 and not based on any new information, has the appearance of a late-played trump card indicating Dr. Smith slipped into the role of advocate. I agree.

[ 39 ] In

summary, I agree with the Plaintiff that in adding unresponsive commentary in his answers in support of Dr. Indar, in shifting his answers depending on the context, and in advocating a new theory during his trial evidence, inconsistent with his Form 25 and without any new information, Dr. Smith at times assumed the role of advocate for Dr. Indar. This impacts his credibility. It rendered his opinion that laparoscopic surgery was not an option suspect. C. Should Dr. Indar Have Recommended Laparoscopic Surgery and Referred Mr.

Khaleel to a Laparoscopic Surgeon? [ 40 ] In support of his opinion that the standard of care required Dr. Indar to recommend laparoscopic surgery, Dr. Khundal relies on the HerniaSurge Group’s International Guidelines for Groin Hernia Management (“Guidelines”). While the Guidelines were published in 2018, Dr. Khundal testified that the knowledge set out in the Guidelines was present in the surgical community before 2013. [ 41 ] Dr. Khundal endorsed the following statement from the Guidelines: “Details of prior hernia operations are important in planning for a recurrent IH repair.

Regardless of the procedure chosen to repair a recurrent hernia, it is highly likely to be more difficult than a primary repair.” [ 42 ] Dr. Khundal testified that where recurrent surgery is being done, the surgeon should understand what was done before. Where details of the prior surgery are not available, the surgeon should proceed with caution. [ 43 ] Dr. Khundal also endorsed the following statement from the Guidelines: “An anterior approach for recurrence after primary anterior repair means that scarred tissues with distorted tissue planes must be entered.

In our experience/judgment, this increases the risk of testicular atrophy and nerve entrapment with consequent, post herniorrhaphy chronic groin pain. If an endoscopic repair was previously performed, then an anterior repair where tissue planes are undisturbed is recommended.” [ 44 ] According to Dr. Khundal the recommended approach with recurrent hernia repairs is to operate on unviolated tissue. Thus, if the primary repair was done using an anterior approach (open), the second repair should be done using a posterior approach (laparoscopically). [ 45 ] Dr.

Khundal testified that the recommendation in the Guidelines that “laparo-endoscopic inguinal hernia repair is recommended after failed anterior tissue or Lichtenstein repair” applies to Mr. Khaleel. Mr. Khaleel had a failed hernia repair that would have been done using an open or anterior approach. [ 46 ] Dr.

Indar acknowledged on cross-examination that he knew in 2013 that a recurrent repair is highly likely to be more difficult than a primary repair and that reapproaching through an anterior approach after a primary anterior repair increases the risk of groin pain and testicular atrophy. [ 47 ] He also agreed that endoscopic surgery is preferred in patients with a recurrent hernia after a previous open repair. However, he testified that the Guidelines only apply where the primary surgery was performed as an adult. Mr. Khaleel’s prior surgery was an infant repair.

The Guidelines do not apply to infant hernia repairs. [ 48 ] Dr. Smith distinguishes between infant hernia repairs and adult hernia repairs in the way the surgeries are done that impacts the potential for scarring. Surgeries performed as an infant do not involve mesh or a repair to the posterior wall of the inguinal canal. Pediatric hernia repairs are typically done by ligating and excising the hernia sac. This generally results in minimal scarring withing the inguinal canal.

An adult tissue repair creates the potential for more scar tissue because an adult tissue repair involves taking apart some of the layers of the abdominal wall and suturing them back together. A mesh repair is repaired the same way as an adult tissue repair but creates the potential for even further scarring because a mesh is placed over the top of the repair. The mesh incites further inflammatory reaction and creates the risk of further scarring. [ 49 ] Dr. Smith assumes that Mr.

Khaleel’s hernia repair as an infant was a simple tissue repair without the use of a mesh, as this was the standard method in North America for infant hernia repairs. Dr. Smith’s opinion, based on his experience and practice, is that the standard of care in Canada and international guidelines in 2013 and today is that Dr. Indar’s open approach to repair Mr. Khaleel’s hernia following his infant hernia repair was acceptable. [ 50 ] Dr. Smith also testified that in his opinion Dr. Khundal incorrectly interprets the Guidelines. Dr.

Smith relies on the following statement in the Guidelines: “KQ20.c Which management strategy is the best for recurrence after anterior repair? If the primary repair was a tissue repair, then either the anterior or posterior – either open or endoscopic – approach can be used for the recurrent hernia repair. If the primary repair was a mesh repair, then the entrance point should be via a space not previously entered.

For non-endoscopic surgeons, an anterior Lichtenstein approach has been recommended after a primary tissue repair.” [ 51 ] I do not accept that the Guidelines only apply to adult hernia repairs for two reasons. The first is that the Guidelines do not state that they apply only where the first hernia repair is an adult repair. Dr. Indar and Dr. Smith were not able to point to any authoritative literature stating that these Guidelines only apply to adult hernia repairs.

A second more significant reason is that the reasoning behind the recommendations applies to all hernia repairs, whether the repair is done as an infant or as an adult. As Dr. Khundal explained, the reasoning behind the recommendations is that it is preferable to operate on unviolated tissue. While I agree that the potential for scarring increases with adult repairs and especially adult mesh repairs, the potential for scarring exists with infant repairs.

[52] While I accept that the Guidelines apply to all hernia repairs, not just infant hernia repairs, I do not accept Dr. Khundal’sopinion that if a prior hernia repair is done in an open fashion, a laparoscopic approach should be undertaken for a recurrent herniarepair, regardless of other circumstances. On this issue, I agree with Dr. Smith that the standard of care is not that black and white but ismore nuanced. [53] The Guidelines are clear that if the first repair was an anterior mesh repair, the recurrent surgery should be a posteriorlaparoscopic repair.

However, where the primary repair was a tissue repair, while the Guidelines recommend a laparoscopic repair, theGuidelines also state that either procedure can be used for the recurrent hernia repair. [54] Dr. Khundal’s evidence on this issue was inconsistent. He gave evidence that the standard of care required Dr. Indar torecommend a laparoscopic repair and refer Mr. Khaleel to a laparoscopic surgeon. During cross-examination, his evidence was not socategorical. He testified in cross-examination that Dr. Indar should at least have provided Mr. Khaleel with the option of laparoscopicsurgery.

This inconsistency is another example of Dr. Khundal testifying as to what he would do, as opposed to the standard of care. [55] Dr. Khundal agreed that the Guidelines are general, that every patient is different, and that the surgeon needs to consider theindividual circumstances of each patient. In my view, the Guidelines support Dr. Smith’s opinion that where the primary hernia repairwas a tissue repair, performing a recurrent hernia repair using an open anterior approach meets the standard of care.

Where the primarysurgery was a tissue repair, what approach a surgeon should recommend depends on more factors than just whether the primary surgerywas an anterior or posterior approach. [56] In conclusion, I accept Dr. Smith’s opinion that Dr. Indar met the standard of care by choosing to perform an open herniarepair. [57] As a final point, the Plaintiff argues that Dr. Indar did not meet the standard of care in performing the surgery before Mr.Khaleel quit smoking for two to three months. It is not in dispute that Mr.

Khaleel was a heavy smoker, and that smoking increases therisk for delayed wound healing and recurrence. Dr. Khundal testified that he would not perform the surgery until Mr. Khaleel had quitfor several months. [58] I do not accept Dr. Khundal’s opinion that a reasonable surgeon would not perform surgery until the patient quit smoking. Dr.Khundal’s opinion conflicts with Dr. Smith and Dr. Wu. In my view, this is an example of Dr. Khundal testifying as to what he would doas opposed to what the reasonable surgeon would do. IV. Did Dr.

Indar Breach the Standard of Care byCutting What He Did Not Identify During the Surgery? [59] The Plaintiff argues that when Dr. Indar started the surgery, because Dr. Indar was not able to identify the structures he wascutting due to the extensive fibrosis, the standard of care required Dr. Indar to stop the procedure and refer Mr. Khaleel to a surgeon withmore experience performing complicated inguinal hernia repairs. [60] This argument relies on the evidence of Dr. Khundal that, in trying to delineate the anatomy, Dr. Indar dissected a presumedcord structure, and it became apparent the bladder was injured. Dr.

Indar was not sure what he was dissecting at this point, and once heopened it up, it turned out to be the bladder. Dr. Khundal testified that if he encounters a structure during surgery and does not knowwhat it is, he calls a colleague to take a look before dividing or opening up the structure. [61] It is clear from Dr. Indar’s Operative Report that during the surgery Dr. Indar discovered that Mr. Khaleel’s bladder wasfound to be in the inguinal canal. This was determined by making an incision in the content of the canal in an attempt to incise the layersof the spermatic cord. Instead, Dr.

Indar incised the wall of the bladder, injuring the bladder. [62] The difficulty with the Plaintiff’s argument is that there is no evidence from Dr. Khundal or any other expert that when Dr.Indar excised the previous incision and encountered a significant amount of previous scarring, Dr. Indar should have stopped theprocedure and referred Mr. Khaleel to a surgeon with more experience performing complicated inguinal hernia repairs. [63] On this issue, I accept the evidence of Dr. Smith that when Dr.

Indar incised the wall of the bladder and discovered unusualanatomy, he met the standard of care by requesting a second opinion from Dr. Zuk. Dr. Zuk confirmed the unusual anatomy andrecommended that Dr. Indar repair the bladder injury and then repair the hernia. I find that in doing so, Dr. Indar met the standard ofcare. V. Is Dr. Indar Liable for Failing to Advise Mr. Khaleelof All Risks of an Open Inguinal Hernia Repair? [64] The parties do not dispute that Dr. Indar had a duty to disclose all material risks of the surgery: see Reibl v Hughes, (SCC), [1980] 2 SCR 880.

This is part of the duty of a medical practitioner to obtain a patient’s informed consent. To obtaininformed consent, a patient must be informed of the material risks of the procedure. [65] The parties do not dispute that material risks of the procedure that should have been disclosed to Mr. Khaleel are bleeding,infection, numbness, recurrence, chronic pain, and testicular atrophy. What is disputed is whether Dr. Indar disclosed to Mr. Khaleel thatchronic pain and testicular atrophy are risks of the surgery. [66] Mr. Khaleel testified that he was not informed that chronic pain and testicular atrophy were risks.

These risks would have

been significant for him because he wanted to have children and return to his work as a laborer. If he had been informed, he would have remembered these risks and would not have agreed to the surgery. [ 67 ] Dr. Indar testified that he did inform Mr. Khaleel of the risks of chronic pain and testicular atrophy. While he does not recall the specific discussions, he testified to his invariable practice that he always advises patients undergoing hernia repair surgery of the following risks: bleeding, infection, numbness, chronic pain, hernia recurrence, and testicular atrophy.

He testified that he discusses those same six risks with all elective inguinal hernia surgery patients. [ 68 ] As the evidence of Mr. Khaleel conflicts with the evidence of Dr. Indar, I must assess the reliability and credibility of these two witnesses. A. Reliability and Credibility of Mr. Khaleel [ 69 ] I agree with the Defendant that Mr. Khaleel’s evidence raises both reliability and credibility concerns. [ 70 ] Mr. Khaleel’s trial testimony was internally inconsistent with respect to his pain prior to the surgery.

His trial testimony was also inconsistent with the chart notes of several of his attendances at hospitals and doctors regarding his pain and his ability to work. His oral testimony was inconsistent at times with information recorded on WCB forms and disability forms. There were inconsistencies in his evidence as to why he moved to Vancouver and whether he saw Dr. Indar the day of the surgery. Mr. Khaleel testified that he was hoping to get a promotion with Diversified yet could not recall receiving several warnings from Diversified relating to his poor work performance.

These are only some of the many inconsistencies in Mr. Khaleel’s evidence. [ 71 ] Mr. Khaleel testified to events that happened long before the date of trial. Considering that the events happened over 9 years ago, it is not surprising that his memory of certain events is poor. This impacts the reliability of his evidence. However, in my view, the extent of the inconsistencies and the inconsistent evidence regarding his work performance at Diversified impact his credibility. [ 72 ] In

summary, I find that Mr. Khaleel’s evidence is plagued with reliability and credibility concerns. As a result, I am not prepared to accept Mr. Khaleel’s evidence unless the records or the circumstances support his evidence. B. Reliability and Credibility of Dr. Indar [ 73 ] The Plaintiff argues that Dr. Indar took a careless approach to the treatment of Mr. Khaleel in a number of ways. Most significantly, he was careless in the post-operative management of his bladder injury. Mr. Khaleel’s bladder was injured during the surgery. It was necessary for Dr. Indar to repair the bladder before repairing the hernia.

When a bladder is operated on, there is a risk of a patient going into urinary retention. The Plaintiff argues that Dr. Indar’s post-operative care was careless in allowing Mr. Khaleel to be discharged without a catheter before he demonstrated he could eliminate urine and in not telling him about the bladder injury before Mr. Khaleel left the hospital. [ 74 ] It is agreed that Dr. Indar’s post-operative management of Mr. Khaleel’s bladder injury did not cause the chronic pain or testicular atrophy. Mr.

Khaleel was able to void at home and did not go into urinary retention. [ 75 ] The Defendant argues that evidence that Dr. Indar’s post-operative care was careless is similar fact evidence and that the Plaintiff has failed to establish that the probative value of the evidence outweighs its potential prejudice. The Defendant asks me to deem inadmissible the Plaintiff’s reliance on propensity reasoning evidence to contend that Dr. Indar was careless in his treatment of Mr. Khaleel. [ 76 ] In his Form 25 and his trial testimony, Dr.

Khundal’s opinion is that, because of the bladder injury, a prudent surgeon would have placed a Foley catheter after the bladder repair to ensure the patient did not go into urinary retention. In addition, Mr. Khaleel should not have been discharged without confirming he could void freely. [ 77 ] During the trial, there was no objection to this evidence by Dr. Khundal. It was admitted. Not only was there no objection, Dr. Smith gave evidence in his Form 25, which was admitted at trial, that he agreed with Dr. Khundal that Dr.

Indar should have placed a catheter after the bladder repair and should not have discharged Mr. Khaleel before voiding. [ 78 ] Notwithstanding that there was no objection to the admissibility of the evidence during the trial, I agree with the Defence that relying on Dr. Indar’s carelessness in relation to the bladder injury management to conclude he was careless in relation to the hernia repair is propensity reasoning and is impermissible. The evidence, while admitted, cannot be used for propensity reasoning. This evidence that Dr.

Indar did not meet the standard of care required in managing the bladder injury is not relevant to and should not be used to prove that Dr. Indar was careless or negligent in how he managed the hernia repair. [ 79 ] However, this evidence is relevant to Dr. Indar’s credibility. Both the Plaintiff’s and the Defendant’s expert general surgeon agreed that Dr. Indar should not have discharged Mr. Khaleel without a catheter and before he was able to void. Dr. Indar’s decision to allow Mr. Khaleel to leave the hospital without a catheter before he voided is not an error in judgment.

It is not an issue where reasonable experts disagree. None of the experts who testified at the trial defended Dr. Indar’s management of the bladder injury. In cross-examination, rather than acknowledge the error, or at least acknowledge in retrospect that this may not have been the best decision, Dr. Indar continued to defend his decision by arguing that he was comfortable with the repair he did. Dr. Indar’s refusal to acknowledge what the experts agreed was a poor decision impairs his credibility. C. Dr. Indar Inform Mr. Khaleel of the Risks of Chronic Pain and Testicular Atrophy

[ 80 ] Mr. Khaleel saw Dr. Indar for the first time on August 26, 2013. Understandably, Dr. Indar does not recall his discussion with Mr. Khaleel about the risks of open hernia surgery. He testified that his invariable practice was to inform all patients that there are six risks: bleeding, infection, numbness, recurrence, chronic pain, and testicular atrophy. [ 81 ] Dr.

Indar’s consult notes from this visit states: “I have obtained informed consent today after discussion of the procedure and the associated risks of bleeding, wound infection, numbness and recurrence.” [ 82 ] The consent form dated August 26, 2013, signed by Mr. Khaleel, states: “Repair of Right Inguinal Hernia” and “Recurrence, bleeding, infection, numbness” under details of treatment/procedure/treatment plan. [ 83 ] Dr. Indar also testified that he saw Mr. Khaleel the morning of the surgery. He marked the area to be operated on and again discussed all six risks of the surgery with Mr. Khaleel.

After the surgery, in his post-operative report, he notes the risks he discussed: bleeding, bruising, would infection, numbness, chronic pain, and atrophy of the testes. [ 84 ] Mr. Khaleel testified that Dr. Indar did not discuss the risks of chronic pain and atrophy of the testes during the consultation visit on August 26, 2013. These would be significant risks to him such that he would remember them. He also testified that he did not see Dr. Indar the morning of the surgery. He only saw the anesthetist.

No risks were discussed with him. [ 85 ] The lack of charting of the risks of surgery does not necessarily mean that the risks were not discussed. A court is entitled to rely on evidence of the usual practice of a physician: Gallant (Guardians of) v David Thompson Regional Health Authority No 6, 2013 ABQB 340 at para 106 ; Skinner v Matheson , 2017 ABQB 342 at para 30 .

The absence of charting, while not an automatic conclusion, does allow for an inference to be drawn that the action did not happen after the evidence is weighed: Gemoto v Calgary Regional Health Authority , 2006 ABQB 740 at para 100 ; Skinner v Matheson at para 32 . [ 86 ] I agree with the Defendant that evidence of invariable practice is assessed, in part, against the credibility of the person asserting it: Anderson v Harari , 2019 ABQB 745 at para 91 , Loffler v Cossman, 2010 ABQB 177 at para 164 and Keane v Adams , 2002 ABQB 63 .

I also agree that there are reliability and credibility concerns with the Plaintiff’s evidence. Mr. Khaleel himself admitted that he does not have a very good memory of the consent process. [ 87 ] After considering and weighing all the evidence, I find as a fact that Dr. Indar did not discuss the risks of chronic pain and atrophy of the testes with Mr. Khaleel prior to the day of the surgery. I accept Mr. Khaleel’s evidence on this issue. I make this finding of fact for the following reasons. a. Unlike other cases where there are no details of what was discussed, such as Dr.

Leone’s note stating he discussed the pros and cons of a right orchiectomy, Dr. Indar did list four specific risks that he discussed with Mr. Khaleel on August 26, 2013, both in his consult note and in the consent form. Chronic pain and testicular atrophy were not included in the list. Accordingly, this is not a case where there is an absence of information on the risks discussed in the documents. This is a case where Dr. Indar’s testimony of invariable practice is inconsistent with the specific notes he made on August 26, 2013. b.

There is no suggestion in the documents that further risks may have been discussed such as a note stating, “I discussed all risks including the four mentioned.” c. Dr. Indar has no reasonable explanation for why he would list four of the risks but not chronic pain and testicular atrophy in the consult note and consent form. d. Dr. Indar took the time to document four specific comparatively minor risks in his consult note and the consent form: bleeding, wound infection, numbness, and recurrence. Dr.

Indar acknowledged that chronic pain and testicular atrophy are the two most significant complications of the surgery, describing them as the most dreaded risks. It is not logical that he would take the time to document four specific risks but not document the two remaining, more serious risks of chronic pain and testicular atrophy. e. The only time that chronic pain and testicular atrophy are noted in the documents as having been discussed is after the surgery in the post-operative report. There is no dispute that there were some significant problems during the surgery. f.

While there are reliability and credibility issues with Mr. Khaleel, I also have credibility concerns with Dr. Indar, as noted above. [ 88 ] In

summary, on the issue of whether Dr. Indar discussed the risks of chronic pain and testicular atrophy before the day of the surgery, I prefer the evidence of Mr. Khaleel. On this issue, his evidence is consistent with Dr. Indar’s records. I find as a fact that, prior to the day of the surgery, Dr. Indar did not advise Mr. Khaleel of the risks of chronic pain and testicular atrophy. Mr. Khaleel’s evidence that Dr. Indar told him he does a hundred of these surgeries yearly, that it is an easy routine surgery, and that Mr. Khaleel should not be worried is consistent with the risks Dr.

Indar specifically noted in his chart and the consent form. It defies commonsense why Dr. Indar would specifically note four risks but not specifically include the remaining two, more dreaded risks. [ 89 ] Dr. Indar’s evidence is that he met with Mr. Khaleel the morning of the surgery and discussed again the risks of the surgery with Mr. Khaleel, including chronic pain and testicular atrophy. Mr. Khaleel’s evidence is that Dr. Indar did not meet with him the morning of the surgery. It is not necessary for me to determine whether Dr. Indar met with Mr.

Khaleel the morning of the surgery and discussed risks with him at that time, because even if Dr. Indar did discuss the risks of chronic pain and testicular atrophy the morning of the surgery, this does not meet the standard of care on informed consent. A CPA publication on informed consent that Dr. Smith accepted as authoritative states that: “the patient should be given ample opportunity to consider what he or she is signing and be given adequate opportunity to consider the implications of that to which they are consenting.” Dr.

Khundal’s evidence is that a discussion about the risks twenty minutes before the surgery does not provide the patent with sufficient time to consider the information. Dr. Smith agreed that a patient should know all the risks before the day of the surgery. [ 90 ] Two other issues relating to informed consent were raised during the trial. I will address these briefly as they do not impact my decision on informed consent.

[ 91 ] The first is the suggestion that Dr. Indar should have used a translator to assist Mr. Khaleel in understanding Dr. Indar’s communications. Mr. Khaleel came to Canada in 2006. English is not his first language. There is a note in one of the records that Mr. Khaleel has poor English. While I accept that part of the duty to obtain informed consent requires a doctor to take additional steps where there are concerns that a patient may not understand, on the whole of the evidence, I find as a fact that Mr. Khaleel’s understanding of English was sufficient. The issue in this case is not whether Mr.

Khaleel understood what Dr. Indar was communicating. The issue is what Dr. Indar was communicating and whether it included the risk of chronic pain and testicular atrophy. [ 92 ] The second issue relates to a pre-operative education session at the hospital that Mr. Khaleel attended on September 26, 2013. At that session, he was provided a booklet entitled Hernia Surgery Booklet (the “Booklet”). The Outpatient Registration Record states that the Booklet was reviewed with the patient.

The Booklet describes the risks and complications of surgery, including testicular atrophy and chronic pain. [ 93 ] I do not accept that the Booklet provided to Mr. Khaleel that was reviewed with him at the pre-operative clinic sufficiently addresses Dr. Indar’s duty to obtain informed consent for two reasons. The first is that the Booklet describes the general risks for all patients. I accept Dr. Khundal’s evidence that, because this was a repeat hernia repair, there is a heightened risk of chronic pain and testicular atrophy. I accept Dr. Smith’s evidence that the risk of chronic pain was higher because Mr.

Khaleel had pain before the surgery. These heightened risks should have been disclosed to Mr. Khaleel. The second reason is that Dr. Smith agreed on cross- examination that the brochure was not a replacement for an informed consent discussion and that Mr. Khaleel needed to know the risks at the time he signed the consent form. VI. Did Dr. Indar Inform Mr. Khaleel of all Reasonable Treatment Options? [ 94 ] There is no dispute that Dr. Indar did not provide other options to Mr. Khaleel. He did not inform Mr.

Khaleel of the option of laparoscopic surgery or the option of not doing surgery. [ 95 ] The Alberta Court of Appeal in Seney v Crooks , 1998 ABCA 316 is clear that a physician has an obligation to advise a patient of all reasonable treatment options, including options that the physician may not favour. Whatever the doctor’s preference as to treatment options, the patient is entitled to participate in the decision of his treatment.

This duty includes providing information on the risks and benefits of the proposed therapy with the risks and benefits of the alternate options: Seney v Crooks ; Cory v Bass , 2011 ABQB 360 , aff’d 2012 ABCA 136 . [ 96 ] The law is equally clear that no obligation exists where the medical practitioner believes that the alternative means of treatment are not reasonable options: Cory v Bass at para 110; Malinowski v Schneider, 2010 ABQB 734 at para 40 , aff’d 2012 ABCA 125 . [ 97 ] Dr. Khundal testified that two reasonable options that Dr. Indar should have discussed with Mr.

Khaleel are the option of laparoscopic surgery and not having any surgery. [ 98 ] Dr. Indar testified that Mr. Khaleel had an incarcerated hernia. Dr. Smith testified that in his opinion the hernia was incarcerated and that an incarcerated hernia changes the treatment course. Dr. Smith opined that laparoscopic surgery, and no surgery, are not reasonable options to treat an incarcerated hernia. [ 99 ] In determining whether Dr. Indar should have informed Mr. Khaleel of the options of laparoscopic surgery and no surgery, I must first determine as a question of fact whether Mr. Khaleel’s hernia was incarcerated. A.

Was Mr. Khaleel’s Hernia Incarcerated [ 100 ] Hernias can be classified as incarcerated or non-incarcerated. An incarcerated hernia is a hernia that is trapped in its abnormal location. The hernia contents, in this case the bladder, cannot be returned to its proper position in the body. Dr. Indar described an incarcerated hernia as one that is irreducible. In other words, it cannot be pushed back in. It is constricted within the defect of the muscles where the other structures of the spermatic cord run. [ 101 ] The Defendant argues that Dr. Indar’s testimony that Mr. Khaleel’s hernia was incarcerated and Dr.

Smith’s opinion that the hernia was incarcerated should be accepted. Dr. Indar’s and Dr. Smith’s evidence is consistent with Mr. Khaleel’s medical records including his attendance at the NLRH on August 12, 2013, the degree of scarring and adhesions, Dr. Indar’s indication on the surgery booking form that surgery was urgent, the time required, and the operative report. i. Mr. Khaleel’s Medical Records Including His Attendance at the Hospital on August 12, 2013 [ 102 ] On August 12, 2013, Mr.

Khaleel attended at the NLRH emergency room, reporting a 3-month history of intermittent testicular pain that had increased over the past 4 days. He saw Dr. Sheppard. Dr. Sheppard was not called to testify. Dr. Sheppard’s outpatient registration record was admitted into evidence. [ 103 ] Dr. Sheppard’s note of the visit indicates that Mr. Khaleel’s hernia did not reduce when he laid down. Dr. Sheppard called the on-call general surgeon, Dr. Swenia, who offered to admit Mr. Khaleel to the hospital and perform the surgery right away. Mr. Khaleel refused, stating he had an appointment with an immigration lawyer. Dr.

Sheppard then referred Mr. Khaleel for a consultation with Dr. Indar. Dr. Swenia was not called to testify. [ 104 ] Mr. Khaleel agreed that the doctor wanted to admit him for surgery on August 12, but he declined. The doctor told him that the

surgeon was available that day and that if he waited it would be difficult to book later. He made an excuse, telling Dr. Sheppard that he had an appointment with an immigration lawyer, because he did not want to undergo the surgery at that time. [ 105 ] The Defendant argues that Dr. Sheppard’s note that the hernia did not reduce when he laid down together with offering Mr. Khaleel immediate surgery supports Dr. Indar’s diagnosis of an incarcerated hernia. [ 106 ] Dr. Khundal testified that Dr. Sheppard’s note “does not reduce when lay down” does not rule in or rule out an incarceration.

To diagnose someone with an incarceration, an attempt has to be made to manually reduce the hernia. In the absence of a manual reduction, one cannot call a hernia incarcerated. Dr. Smith conceded during cross-examination that “does not reduce when lay down” is not the same thing as non-reducible. [ 107 ] The Defence argues that Dr.

Khundal resiled from his evidence that a diagnosis of incarceration requires an attempt to manually reduce the hernia when he agreed on cross-examination with a statement from an article, marked as Exhibit 28, that incarceration includes a non-reducible mass in both standing and supine positions. I disagree. There is no dispute that an incarcerated hernia is a hernia that is irreducible. I understand Dr. Khundal’s evidence to be that you cannot say a hernia is non-reducible until an attempt has been made to manually reduce the hernia.

His acceptance of the statement in Exhibit 28 that incarceration includes a non-reducible mass is consistent with his evidence that before a diagnosis of non-reducible can be made, there must be a manual attempt to reduce the hernia. [ 108 ] Mr. Khaleel’s medical records disclose that he had ongoing and escalating pain that he sought medical care for as early as January 2011 and that he had been taking considerable amounts of Tylenol No. 3’s and other analgesics before the hernia surgery. The Defendant argues that these records support the Defence argument that Mr. Khaleel’s hernia was incarcerated.

I disagree. [ 109 ] It is difficult to rely on Mr. Khaleel’s self reporting of his pain in the medical records as there are considerable inconsistencies in the documents as to the degree of pain and for how long it had been going on. The evidence also indicates that Mr. Khaleel had developed an addiction to pain killers. Accordingly, while the medical records persuade me that Mr. Khaleel’s hernia was symptomatic prior to the surgery, the medical records do not persuade me that the hernia was incarcerated. [ 110 ] I accept Dr.

Khundal’s evidence that before a doctor can make a diagnosis that a hernia is incarcerated an attempt must be made to manually reduce the hernia. Dr. Sheppard’s chart does not indicate that he attempted to manually reduce the hernia. [ 111 ] The Defendant argues I should infer that Dr. Sheppard did attempt to manually reduce the hernia from the fact that the chart indicates Dr. Sheppard examined Mr. Khaleel. I should also infer that Dr. Swenia considered the hernia incarcerated because he offered immediate surgery. Alternatively, I should draw an adverse inference from the Plaintiff’s failure to call Dr.

Sheppard and Dr. Swenia. [ 112 ] I decline to draw an inference that Dr. Sheppard attempted to manually reduce the hernia. A reasonable inference is that Dr. Sheppard understood the difference between an incarcerated hernia and a hernia that did not reduce when Mr. Khaleel laid down. A reasonable inference is that if Dr. Sheppard did attempt manual reduction and the hernia did not reduce, Dr. Sheppard would have indicated this in the chart and made a specific diagnosis of incarcerated hernia. [ 113 ] I am not prepared to draw an inference that Dr.

Swenia considered the hernia incarcerated because he offered immediate surgery to Mr. Khaleel. Dr. Swenia did not examine Mr. Khaleel. Dr. Sheppard called Dr. Swenia. There is no evidence of what specifically Dr. Sheppard told Dr. Swenia or what specifically Dr. Swenia said other than he could do the surgery right away. If Dr. Swenia believed the hernia was incarcerated and surgery needed to be done immediately, this opinion is inconsistent with Dr. Indar’s evidence, discussed below, that immediate surgery was not necessary and could be booked within 4 weeks. Dr.

Swenia’s offer to perform the surgery right away is equally consistent with Mr. Khaleel’s evidence that the surgeon was available and that if he waited it might take longer to book. [ 114 ] I decline to draw an adverse inference from the Plaintiff’s failure to call Dr. Sheppard and Dr. Swenia for three reasons. The first is that this issue of whether Mr. Khaleel had an incarcerated hernia was a new theory first advanced by the Defendant after the Plaintiff’s case had closed. I also agree with the Plaintiff that nearly a decade has passed since the August 12, 2013 hospital visit. It is highly unlikely that Dr.

Sheppard and Dr. Swenia would recall the Plaintiff’s visit in 2013 such that they could provide material evidence beyond what is indicated in the hospital charts. The last reason is that Dr. Sheppard and Dr. Swenia are not within the control of the Plaintiff. Dr. Indar was free to call them, if Dr. Indar felt they had relevant evidence to give. [ 115 ] In

summary, in my view, the medical records of Mr. Khaleel’s pain and medication together with the hospital visit on August 12, 2013 neither support nor contradict Dr. Indar’s and Dr. Smith’s evidence that Mr. Khaleel’s hernia was incarcerated. ii. Degree of Scarring and Adhesions [ 116 ] There is no dispute that when Dr. Indar started to perform the surgery, he encountered significant scarring and adhesions. Dr. Indar argues that the degree of scarring and adhesions supports his evidence that the hernia was incarcerated. [ 117 ] Dr.

Indar testified that an incarcerated hernia could cause the degree of scarring and adhesions he encountered during the surgery. Dr. Indar explained that inflammation causes the body to release certain factors which eventually form scar tissue or adhesions, and, when this occurs for an extended period, the adhesions change from fine strands to thick, dense adhesions. [ 118 ] Dr. Wu, the Defendant’s urologist, testified that scarring and adhesions can be caused by an incarcerated hernia or previous surgery. [ 119 ] Dr.

Indar argues that the scarring and adhesions are more consistent with an incarcerated hernia because Mr. Khaleel’s previous surgery was an infant hernia repair. This procedure in North America is less invasive than an adult hernia repair and should not generally produce the same amount of scarring and adhesions as an adult repair. Because Mr. Khaleel did not produce his medical records from Jordan, the Defendant argues I should draw an adverse inference that the surgery in Jordan in the 1980s would have been performed in the same manner as in North America.

Accordingly, a reasonable inference is that the degree of scarring and adhesions was caused by the hernia being incarcerated.

[ 120 ] I decline to draw an adverse inference against Mr. Khaleel from the failure to produce medical records from Jordan in the absence of evidence that such records are or might be available. [ 121 ] I also decline to draw the inference that the scarring and adhesions were more likely caused by an incarcerated hernia for two reasons. The first reason is that, when the infant hernia repair is performed in North America, an inference that an infant hernia repair would not cause the degree of scarring and adhesions Dr. Indar encountered is reasonable. However, Mr.

Khaleel’s infant hernia repair was performed in Jordan. As mentioned, I decline to draw an adverse inference against Mr. Khaleel from the failure to produce medical records from Jordan in the absence of evidence that such records are or might be available. I accept Dr. Khundal’s evidence that not all countries perform surgeries the same way. Without Mr. Khaleel’s records of the infant surgery or some evidence of how infant hernia repairs were done in Jordan when Mr. Khaleel was an infant, in my view, it is not reasonable to infer that Mr.

Khaleel’s infant hernia repair could not cause the degree of scarring and adhesions Dr. Indar encountered. [ 122 ] The second reason I decline to draw the inference that the scarring and adhesions were more likely caused by an incarcerated hernia is that Dr. Khundal testified that an incarcerated bladder hernia means that the bladder is continually present in the scrotum and does not reduce.

More often than not, a patient would be expected to have urinary symptoms, hematuria (blood in urine or tinged urine, because the bladder is inflamed, because it is not in its normal location), incomplete voiding, frequent voiding, and resolution or improvement of symptoms after voiding. Mr. Khaleel reported none of these symptoms. Dr. Indar criticizes Dr. Khundal’s opinion, because it is based on his surgical training and study and not on his experience, as he has never operated on an incarcerated bladder hernia. However, as an expert, Dr.

Khundal is entitled to provide opinion evidence based on his surgical training and study. [ 123 ] In

summary, on the whole of the evidence, I am not persuaded that it is more likely that the degree of scarring and adhesions were caused by an incarcerated hernia as opposed to Mr. Khaleel’s previous surgery. The degree of scarring and adhesions neither supports nor contradicts Dr. Indar’s and Dr. Smith’s testimony that the hernia was incarcerated. iii. Dr. Indar’s Booking Form [ 124 ] Dr. Indar testified that he made a diagnosis that Mr. Khaleel’s hernia was incarcerated before the surgery.

On the booking form for the surgery, he allocated more time than usual for the surgery and requested a booking within 4 weeks, because the hernia was incarcerated. [ 125 ] The Plaintiff argues that it is more probable that Dr. Indar allocated more time than usual for the surgery, because he recognized that a recurrent hernia repair would be more involved. He booked the surgery within 4 weeks, because Mr. Khaleel was in pain and was anxious to have the surgery as soon as possible so he could return to work. [ 126 ] I find it difficult to accept Dr.

Indar’s evidence that he booked the surgery within four weeks and allocated more time than usual, because he diagnosed Mr. Khaleel with an incarcerated hernia. Dr. Indar completed the booking form at the same time as his August 26 th consult with Mr. Khaleel. Dr. Indar acknowledged he has no memory of the August 26 th consult. He did not document a diagnosis of incarcerated hernia anywhere, including the booking form. I have difficulty accepting that Dr. Indar cannot recall his consult visit with Mr. Khaleel, but he can recall why he booked the surgery for additional time and within four weeks. [ 127 ] Dr.

Khundal’s evidence, which I accept, is that an incarcerated hernia is a pre-operative diagnosis. Dr. Indar does not indicate in his chart, booking form, consent form, or any other documents that Mr. Khaleel has an incarcerated hernia. In my view, it is just as likely that Dr. Indar booked more time because he knew a repeat hernia repair could be more challenging. It is just as likely that Dr. Indar booked the surgery within 4 weeks because Mr. Khaleel was off work and in pain. iv. Operative Report [ 128 ] The Defence argues that it is obvious from the operative report that the hernia was incarcerated. [ 129 ] Dr.

Indar testified that during the operation the contents of the hernia were found in the inguinal canal. In the operation, under anesthesia when all the muscles are relaxed, if the hernia was not incarcerated, it would have slid back into the abdomen. Dr.

Smith testified that the bladder was adherent to the testicle, which means there was no way it was going to go back. [ 130 ] For the reasons that follow, I disagree with the Defence that it is obvious from the operative report that the hernia was incarcerated, because the bladder was adherent to the testicle, and the hernia did not reduce under anesthesia. [ 131 ] Although Mr. Khaleel’s hernia did not reduce under anesthesia, Dr. Khundal testified that anesthesia may cause the hernia to reduce when the anesthesiologist administers paralysis medication.

Paralysis medication often relaxes the muscle and the abdominal wall, and that of itself can reduce the hernia. Often open hernia surgeries are done without the anesthetist administering paralysis medication. In Mr. Khaleel’s case, the evidence does not indicate that the anesthetist administered paralysis medication. [ 132 ] Dr. Khundal also testified that a diagnosis of incarcerated hernia is a pre-operative diagnosis. Intraoperative findings that the bladder was adhered to the testes, does not constitute a diagnosis of incarceration. Dr. Khundal disagreed with Dr.

Smith that the fact that the bladder was adherent to the testicle means there was no way it was going to go back. Dr. Khundal testified that in addition to administering paralyzing medication, the surgeon can try manual palpitation and gentle traction. The Operative Report does not indicate that any of these steps were taken. I accept Dr. Khundal’s evidence on the issue. I am not persuaded that it is obvious from the Operative Report that Mr. Khaleel’s hernia was incarcerated. v. Mr. Khaleel’s Hernia Was Not Incarcerated [ 133 ] On the whole of the evidence, I am not persuaded that Mr.

Khaleel’s hernia was incarcerated. I find that it was not incarcerated for the following reasons.

[ 134 ] A diagnosis of incarceration is a pre-operative diagnosis. If Dr. Smith is accurate that a diagnosis of incarceration means that laparoscopic surgery or no surgery are not options, a reasonable inference is that this is a significant diagnosis that would be documented in the pre-surgery records. [ 135 ] There is no diagnosis of incarcerated hernia in any of the pre-surgery records. The pre-surgery records do not state that Dr. Indar or any other doctor attempted to manually reduce the hernia. While Dr.

Indar noted in his chart during the August 26 th consultation that on examination there was swelling extending into the scrotum and the scrotum was swollen, I decline to infer that this note is a diagnosis of incarceration. [ 136 ] There is also no mention of an incarcerated hernia in the post-surgery records. While Dr. Indar does not state in the operative report that the hernia was incarcerated, he does specifically note that Mr. Khaleel’s hernia was a sliding hernia.

The experts agree that a sliding hernia is a form of inguinal hernia where the structure slides down the abdominal wall and herniates into the inguinal canal. Sliding hernias can be incarcerated or non-incarcerated. There is no explanation for why Dr. Indar would specifically note in his operative report that the hernia was a sliding hernia but not note that the sliding hernia was incarcerated. [ 137 ] Dr. Indar testified that the presentation of Mr. Khaleel’s hernia indicated that it was incarcerated.

However, I do not accept his oral testimony where his records do not indicate any attempt to manually reduce the hernia and do not record a diagnosis of incarcerated hernia, considering that this is a significant diagnosis in terms of treatment. [ 138 ] Dr. Khundal testified that a bladder hernia that is incarcerated and extends into the scrotum would be a large hernia, and, more often than not, the patient would have urinary symptoms, including hematuria, frequent voiding, incomplete voiding, and resolution or improvement of symptoms after voiding. I accept Dr. Khundal’s evidence. There is no evidence that Mr.

Khaleel was having these symptoms prior to the surgery. [ 139 ] Dr. Smith testified that there is a risk of injury to the bowel, particularly in an incarcerated hernia repair. He also agreed that a bladder injury is a risk of an incarcerated hernia repair. It is undisputed that Dr. Indar did not advise Mr. Khaleel of the risks of bladder or bowel injury. Dr. Smith was asked in cross-examination whether the risks of bowel and bladder injury should be disclosed to the patient where the surgeon believes the hernia is incarcerated. Dr. Smith’s answer raises concern. Dr.

Smith testified that if the hernia was acutely incarcerated, he would discuss these risks with the patient. Mr. Khaleel’s hernia was chronically incarcerated not acutely incarcerated. For chronically incarcerated hernias, whether he would disclose the risks of bowel and bladder injury depends on the size of the hernia. If it is a very massive hernia, and the surgeon believes there will be difficulty getting it back, he would disclose the risks of bladder and bowel injury. During his examination-in-chief, Dr. Smith testified that Mr.

Khaleel had a large incarcerated scrotal hernia and that those are extremely difficult to repair laparoscopically. [ 140 ] My concern with Dr. Smith’s answer is that Dr. Smith opined in his Form 25 and throughout his evidence in chief that Dr. Indar met the standard of care required in the risks he communicated to Mr. Khaleel. Dr. Smith testified in chief that there was no issue that Dr. Indar did exactly what he was required to do in terms of discussion of risks and benefits. There is no indication in his Form 25 or his evidence-in-chief that, because Mr. Khaleel’s hernia was a large, incarcerated hernia, Dr.

Indar should have considered informing Mr. Khaleel of the risks of bowel and bladder injury. This inconsistency between Dr. Smith’s opinion that Dr. Indar met the standard of care in discussing the risks of the surgery and Dr. Smith’s opinion that the hernia was incarcerated reinforces my conclusion that the Defence theory, that laparoscopic surgery was not possible because the hernia was incarcerated, is a late-played trump card. [ 141 ] In

summary, for the above reasons, I find as a fact that Mr. Khaleel’s hernia was not incarcerated. B. Should Dr. Indar have Disclosed Other Treatment Options? [ 142 ] The Plaintiff argues that Dr. Indar should have discussed with Mr. Khaleel the options of no surgery and laparoscopic surgery, since both were reasonable alternatives. Dr. Indar acknowledged that a patient is entitled to know about the reasonable alternatives to the treatment he proposes. Dr. Indar acknowledges he did not disclose to Mr. Khaleel the option of laparoscopic surgery. [ 143 ] I find Dr.

Indar’s evidence on when he discloses the option of laparoscopic surgery to a patient concerning. Dr. Indar did not testify that the reason he did not tell Mr. Khaleel of the laparoscopic option was because his hernia was incarcerated. His evidence was that he only discusses the laparoscopic option when it is indicated. He testified that laparoscopic surgery is indicated in three circumstances: (1) if the patient had a previous open adult repair with mesh placement; (2) where the patient has bilateral inguinal hernias, left and right simultaneously; and (3) if the patient requests it.

Some patients do their own research, and laparoscopic surgery is said to have a faster recovery, which attracts the patient. In that case, Dr. Indar refers them to a surgeon in Edmonton. [ 144 ] Dr. Indar’s referral policy for laparoscopic surgery does not comply with his obligation to disclose all reasonable treatment options. A patient should not be required to do their own research to determine the availability of other reasonable treatment options. Dr.

Indar should be informing his patients of the option of laparoscopic surgery, even when he does not favour laparoscopic surgery as the best option, unless laparoscopic surgery is not a reasonable option in the circumstances. “A patient cannot make a meaningful and informed choice to consent to a therapy unless the patient knows the consequences of reasonable alternatives and is able to balance the risks and benefits of the proposed therapy against those alternatives”: Cory v Bass at para 112. [ 145 ] Having determined that the hernia was not incarcerated, I agree with the Plaintiff that laparoscopic surgery was a reasonable alternative.

I accept Dr. Khundal’s evidence that this alternative was possible and that there were some benefits to this option over the open hernia repair. [ 146 ] If I am wrong, and Mr. Khaleel’s hernia was incarcerated, I find that laparoscopic surgery was still a reasonable alternative and should have been presented to Mr. Khaleel. Dr. Khundal testified that laparoscopic surgery was still a reasonable option even if the hernia was incarcerated. Dr. Khundal disagreed with Dr. Smith that it was not possible to perform a laparoscopic procedure where the hernia was incarcerated. Dr.

Khundal outlined several steps that a laparoscopic surgeon can take during the surgery to put the hernia back into its anatomical location. Dr. Khundal testified that these steps have been successfully taken to repair incarcerated hernias using a

laparoscopic procedure. I accept Dr. Khundal’s evidence. The fact that there was a potential that the laparoscopic procedure would have to be converted to an open procedure if the surgeon was not able to reduce the hernia goes to the risks and benefits of the different procedures that should have been explained to Mr. Khaleel and not whether laparoscopic surgery was a reasonable option to provide to Mr. Khaleel. [ 147 ] I accept that Dr. Indar could not perform laparoscopic surgery because he did not have the requisite training.

While all general surgeons are trained and competent to perform an open hernia repair, only those general surgeons with specific training in laparoscopic hernia repair can perform this procedure. I also accept that, when Mr. Khaleel had his surgery in October 2013, there were no surgeons in Fort McMurray who could perform the procedure laparoscopically. I am satisfied from the statistics entered in the Agreed Statement of Facts, entered as Exhibit 2, that in 2013 laparoscopic hernia repairs were being performed in Edmonton at the Misericordia, the Grey Nuns, and the Royal Alexandra Hospital.

They were also being performed in Red Deer, St. Albert, Stony Plain, Leduc, Fort Saskatchewan, and Grande Prairie. [ 148 ] In

summary, laparoscopic surgery was a reasonable treatment option and was available in Alberta. Dr. Indar should have presented this option to Mr. Khaleel and explained to him the differences between the two surgeries, including the risks and benefits of each. Mr. Khaleel was entitled to this information so that he could make a reasonably informed decision on how to proceed. [ 149 ] The Plaintiff also argues that not having surgery was a reasonable alternative that Dr. Indar should have presented to Mr. Khaleel. The Defendant argues that this was not a reasonable alternative, considering that Mr.

Khaleel was in pain, the hernia was getting worse, and Mr. Khaleel was not able to work and was anxious to return to work. In my view, the Defendant’s arguments are more relevant to whether the reasonable person in Mr. Khaleel’s circumstances would have elected to forgo surgery. I will consider those arguments below. In my view the option of no surgery should have been put to Mr. Khaleel together with Dr. Indar’s explanation of why this might not be a good option. [ 150 ] In

summary, I conclude that Dr. Indar did not meet his duty to inform Mr. Khaleel of all the risks and reasonable alternative options to open hernia repair. He failed to advise him of the risks of chronic pain and testicular atrophy at the time of consent. He failed to advise him of the alternative options of no surgery or laparoscopic surgery. [ 151 ] However, this does not make Dr. Indar liable for failing to meet his duty unless the Plaintiff proves on a balance of probabilities that a reasonable person in Mr.

Khaleel’s circumstances would not have consented to the surgery or would have chosen an alternative option if he had been properly informed. I will turn now to this issue. VII. Would a Reasonable Person in Mr. Khaleel’s Circumstances Have Chosen Not to Have the Surgery or Elected to Have Laparoscopic Surgery? [ 152 ] In determining whether there is a causal link between the failure to properly disclose, and the injury that occurred, I must apply the modified objective test.

The Plaintiff has the burden of proving that if the physician had disclosed the risks and alternative treatments, the reasonable person in the Plaintiff’s circumstances would not have consented to the treatment or would have chosen an alternative treatment and that the alternative treatment or no treatment would not have produced the same or more serious injury: McAvena v Byrne, 2013 ABQB 306 ; Ediger v Johnston , 2013 SCC 18 ; Cory v Bass at paras 114-16; Zaiffdeen v Chua , 2005 ABCA 290 at para 35 . [ 153 ] I find that Mr. Khaleel’s circumstances in August 2013 were as follows. • Mr.

Khaleel was a young man, 26 years old. • He underwent a right inguinal hernia repair as an infant in Jordan before his first birthday. • In August 2013, Mr. Khaleel’s hernia was symptomatic. He had been experiencing pain for some time, which was increasing. • Mr. Khaleel was not married and had no children. He was hoping to have children in the future. • Mr. Khaleel moved to Fort McMurray in the fall of 2012. He was hired by Diversified Transportation to work in the wash bay. This was a labour-intensive job. • When he saw Dr. Indar on August 26, Mr.

Khaleel was on leave with Diversified and was not permitted to return to work until his hernia was addressed. • On August 19, 2013, Mr. Khaleel completed a claim for Short-Term Disability Benefits through SunLife. He was advised on September 25, 2013 that his application for disability benefits was approved. • Mr. Khaleel was anxious to return to work. • The need for surgery was not emergent. • In 2013, Mr. Khaleel smoked a pack and a half of cigarettes per day. He tried multiple times to quit but was not

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