GERALD DOUCET , Plaintiff, - v. –, 2022 NBQB 109

IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MIRAMICHI Gerald Doucet v. Dr. Christie et al. 2022 NBQB 109 NC-36-2015 May 30, 2022 BETWEEN: GERALD DOUCET , Plaintiff, - and – DR. SEAN DENNIS CHRISTIE and DR. CIARA HARRAHER, Defendants. DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Miramichi, New Brunswick DATE OF HEARING: August 30 and 31, 2021, September 1, 2 and 3, 2021, October 18, 19, 20, 21, 22, 25, 26 and 28, December 22, 2021 DATE OF DECISION: May 30, 2022 APPEARANCES: Kevin C. Toner, on behalf of the Plaintiff, Gerald Doucet Cynthia J.

Benson, Q.C., Renée Fontaine, and Jamie Watson, on behalf of the Defendants, Dr. Sean Dennis Christie and Dr. Ciara Harraher

Table of Contents Introduction......................................................................................................................... 1 Facts.................................................................................................................................... 2 Mr. Doucet’s Background............................................................................................ 2 The Surgery of December 3, 2009............................................................................. 6 Mr.

Doucet’s Progress Following Surgery................................................................. 9 The Experts on Liability............................................................................................. 16 The Experts on Damages.......................................................................................... 34 Position of the Parties...................................................................................................... 38 Law and Analysis............................................................................................................. 41 What was the appropriate standard of care owed by the Defendant Physicians to Mr.

Doucet and was that standard of care breached in these circumstances?..... 42 If there was a breach of the standard of care, did that breach result in damages to the Mr. Doucet?........................................................................................... 55 Did Mr. Doucet fail to mitigate his losses?..................................................................... 62 Are there other factors which contributed to the damages of Mr.

Doucet that are not causally connected to the breach of a standard of care?........................ 64 Provisional Assessment of Damages............................................................................. 64 General Damages............................................................................................................ 65

Past and Future Loss of Income..................................................................................... 66 Subrogated Claims........................................................................................................... 68 Past and Future Valuable Services................................................................................ 69 Past and Future Cost of Care; and................................................................................. 71 Assumptions on future losses......................................................................................... 73 Costs................................................................................................................................. 74 Conclusion and Disposition............................................................................................. 74 DeWare, C.J.

INTRODUCTION [ 1 ] This is a negligence case where there are allegations of medical malpractice advanced against the defending physicians. [ 2 ] The Plaintiff, Gerry Doucet (hereinafter referred to as “Mr. Doucet”), was born on October 7, 1955 and is currently 66 years of age. Mr. Doucet resides in Miramichi, New Brunswick. Mr. Doucet was employed consistently from the time he entered the workforce after high school until he was forced to stop working in the summer of 2009. Mr. Doucet is a divorced father of two adult children. At all relevant periods to the present action, Mr.

Doucet has lived alone in Miramichi. Mr. Doucet underwent surgical procedures under the care of the Defendants, Dr. Sean Christie and Dr. Ciarra Harraher, at the QEII Health Sciences Centre in Halifax, Nova Scotia on December 3 and 4, 2009. A surgical procedure undertaken December 3 rd is the subject matter of this action in professional negligence. [ 3 ] The Defendant, Dr. Sean Dennis Christie (hereinafter referred to as “Dr. Christie”), is a neurosurgeon practicing at the QEII Health Sciences Centre in Halifax, Nova Scotia. In December of 2009, in addition to his regular practice in neurosurgery, Dr.

Christie was supervising neurosurgery residents working at his hospital. [ 4 ] The Defendant, Dr. Ciara Harraher (hereinafter referred to as “Dr. Harraher”), is a neurosurgeon now practicing and residing in California. In December of 2009, Dr. Harraher was a sixth-year resident in a neurosurgery residency program working under the direction of Dr. Christie at the QEII Health Sciences Centre in Halifax, Nova Scotia. FACTS Mr. Doucet’s Background [ 5 ] The Plaintiff, Gerald Doucet, grew up in Bathurst, New Brunswick, where he graduated from high school. Following high school, Mr.

Doucet worked at the mill in Bathurst and started his journeyman certificate. Mr. Doucet next worked for two years with A.L. Doucet Land Surveyors doing blueprints and subdivision layouts. Mr. Doucet then secured a position at Consolidated Bathurst where he stayed for several years until there were significant layoffs at the facility. [ 6 ] Mr. Doucet worked for Northwood Pulp and Paper as a draftsman following his departure from Consolidated Bathurst. While employed at Northwood, Mr. Doucet started to do some engineering and supervised the installation of equipment. Mr.

Doucet stayed at Northwood for approximately four years where he gained experience in supervising employees, engineering, drafting as well as maintenance. [ 7 ] Following his employment with Northwood, Mr. Doucet completed a correctional course and began working as an ambulance driver. Mr. Doucet did this type of work for approximately two or three years before moving on to a position in Miramichi at Acadia Forests. Mr. Doucet had finished his journeyman course while at Northwood and was at that point a qualified mechanical draftsman. Mr.

Doucet worked at Acadia Forest with the engineering group until it was purchased by REPAP and subsequently UPM. Mr. Doucet remained in his position at the Miramichi location as it transitioned between owners for approximately 23 years. Mr. Doucet was laid off along with the other remaining employees when the mill was closed by UPM. [ 8 ] In approximately 2005, Mr. Doucet began experiencing numbness and weakness in his extremities, particularly his feet. In the

summer of 2009, Dr. Arsenault recommended that Mr. Doucet stop working. Mr. Doucet was called upon to climb onto equipment, climb up ladders and navigate uneven ground at his various worksites. This had become increasingly difficult and dangerous given the problems he was experiencing with his lower extremities. [ 9 ] Mr. Doucet has been followed by family physician, Dr. Luc Arsenault, since August of 2006. Dr. Arsenault did not testify at trial. Throughout the years 2006 – 2009, Dr. Arsenault’s chart chronicles various complaints from Mr. Doucet regarding pain and numbness in his feet.

The following chart notes speak to Mr. Doucet’s situation leading up to the sural nerve biopsy of December 3, 2009: January 12, 2009: “Subjective: Still having a lot of difficulty with dysesthesia in lower limbs. Seems to be progressing at an alarming rate. Discussion with Dr. Harper and he assures us he will assess him in the next weeks. He is of the opinion it is most likely diabetic neuropathy.” February 18, 2009: “Subjective: Is doing relatively well. Was seen by Dr. Harper recently and was diagnosed with Chronic Inflammatory Demyelinating Polyneuropathy. Is now on IVGG treatment. Imuran was also suggested.

Is now started and is no prednisone. Glucs have gone up some also.” July 14, 2009: “Subjective: Is now decreasing his prednisone. Was put on a regime that was too quick. Is continuing at this time with 30 mg daily. Has seen Dr. Grant as a second opinion. He has suggested some changes. Consult to be forwarded. Would like to consider LTD. Is at a point that work is getting actually dangerous. Assessment: Chronic Inflammatory Demyelinating Polyradiculneu.” August 24, 2009: “Subjective: Is having some more difficulty mobilizing. Falls are more frequent. Assessment of Dr. Grant has been reviewed.

Will have increased treatment of IVIg to biweekly. Also request for Squeletal Study. Will also reincrease Gabapentin due to increase pain.” [Emphasis Mine] [ 10 ] Following the closure of the Miramichi Mill, Mr. Doucet secured employment with Castle Machine Works, a small company based in Miramichi. At Castle Machine Works, Mr. Doucet did a little bit of engineering, drafting, supervision, and also sales work. Castle Machine Works operated a mobile shop, and Mr. Doucet was required to travel quite a bit. Mr.

Doucet was frequently on worksites during his employment with Castle, and this became increasingly difficult as the problems with his lower extremities worsened throughout 2008 and 2009. Mr. Doucet eventually left Castle Machine Works in 2009 when the climbing of ladders and walking on uneven ground became both too difficult as well as too dangerous for him. [ 11 ] Mr. Doucet was seen by neurologist, Dr. Byrne Harper, in Moncton in 2008 regarding the various symptoms with his extremities. He was then sent to Dr. Ian Grant, neurologist, in Halifax for a second opinion. Dr. Grant first assessed Mr.

Doucet on July 8, 2009. In his report dated July 27, 2009, he described Mr. Doucet’s situation as follows: “ For the past year, he has also developed weakness in both feet. He became unable to move his toes and developed difficulties with his gait. More recently, he has had frequent falls (3 to 4 times a week) . His balance is particularly affected in the dark. Within the past year, he was assessed by Dr. Beetge in Miramichi. A lumbar puncture showed elevated protein according to Mr. Doucet. This was followed in April 2008 by a repeat EMG.

This demonstrated marked progression of findings found on his first electro diagnostic study. Specifically, there was evidence of a bilateral symmetric sensorimotor neuropathy with both axonal and demyelinating changes.” [Emphasis Mine] [ 12 ] Mr. Doucet began receiving long-term disability benefits on August 24, 2009. Mr. Doucet subsequently applied and qualified for CPP disability benefits which he was granted retroactive to November 2009. [ 13 ] Mr. Doucet returned to see Dr. Grant on September 30, 2009.

His progress was set out in the report from that visit as follows: “His symptoms have been going on for approximately 4 years and this started with burning pain and paresthesias in his feet. He was last seen here in July of 2009, and since that time he has noticed increased wasting in his hands, feet, legs and increased burning in his feet.

He has been noticing fasciculations in his thighs. (…) Impression and Plan: Mr . Doucet is a 53-year-old male with possible CIDP. There is some uncertainty about the diagnosis given the atypical presentation initially with burning paresthesias, and his electrodiagnostic examination is not classic for CIDP. Today we discussed with him the potential for elective admission to the Halifax Infirmary for further workup potentially including nerve biopsy to rule out vasculitis or amyloidosis, which would be in the differential diagnosis.

The conclusion of this discussion was that he will contact us if he gets any worse.” [ 14 ] In addition to the mobility and weakness issues experienced by Mr. Doucet culminating in his departure from work in the summer of 2009, he was also grappling with Type 2 Diabetes diagnosed in the summer of 2008. Dr. Grant suspected that Mr. Doucet’s problems were the result of Chronic Inflammatory Demyelinating Polyneuropathy (CIDP) and asked Mr. Doucet to come to Halifax for in-patient testing to confirm this suspected diagnosis and investigate other potential concomitant disease. [ 15 ] As part of his investigations, Dr.

Grant referred Mr. Doucet for a sural nerve biopsy during his stay at the QEII in order to confirm the suspected diagnosis of CIDP. This request was forwarded to the neurosurgeons at the hospital where it landed on the operative list of the Defendant, Dr. Sean Christie. Dr. Christie assigned the sural nerve biopsy to his senior or chief resident at the time, Dr. Harraher. The Surgery [ 16 ] Dr. Harraher was the Senior Neurosurgery Resident at the QEII in December of 2009. Dr. Harraher was in the sixth year of her six-year residency program and only had a few weeks left to complete of her training program. Dr.

Harraher was assigned Mr. Doucet’s file and prepared to do the surgery on the day prior. Dr. Harraher testified to her usual procedure, also followed in this case, prior to conducting any surgery. Dr. Harraher familiarized herself with Mr. Doucet’s patient chart, she reviewed the necessary surgical procedures in her surgical textbook, and she walked through the planned surgical procedure with Dr. Christie. Dr. Harraher and Dr. Christie met the day prior to the scheduled biopsy to discuss the procedure. [ 17 ] On December 3, 2009, Dr. Harraher met with Mr. Doucet and explained the procedure to him. Dr.

Harraher testified that she explained to Mr. Doucet that she was a neurosurgery resident. As Dr. Harraher began the procedure, the second sural nerve biopsy she had done on her own as a senior resident, she described observing abnormal tissue planes. Dr. Harraher identified a white thick structure but was uncertain as to whether this was tendon or a hypertrophied sural nerve. Dr. Harraher took two small specimens from the structure as she was not certain whether or not they were from the sural nerve. [ 18 ] The specimens taken by Dr. Harraher on December 3, 2009 measured 1.5 x 1.0 cm and 1.4 x 0.6 cm. Dr.

Harraher called Dr. Christie into the small procedure room where she was performing the biopsy to look at the specimens she had taken. As neither Dr. Harraher nor Dr. Christie were certain as to the nature of the specimens, they were sent to pathology with a request for an expedited analysis to determine if indeed they were sural nerve. [ 19 ] As with all surgical procedures, Mr. Doucet signed a consent form with Dr. Harraher before the sural nerve biopsy of December 3, 2009. In the consent form signed by both Mr. Doucet and Dr.

Harraher on December 3, 2009, the following “ foreseeable risks or potential serious consequences of the surgery ” were listed: “bleed, infection, continuing nerve pain, non-diagnostic sample " [Emphasis Mine] [ 20 ] The pathology results confirmed that the two specimens taken were not sural nerve but rather tendon and tendon with muscle. As the biopsy had not resulted in a specimen of the sural nerve, Dr. Grant asked Mr. Doucet to stay in hospital an extra day so that a second biopsy could be attempted. On December 4, 2009, Dr.

Christie did the repeat sural nerve biopsy and successfully obtained a specimen of the sural nerve which then confirmed the suspected diagnosis of CIDP. [ 21 ] Dr. Harraher’s operative report of December 3, 2009 and Addendum of December 4, 2009 state as follows: “Procedure: The patient was positioned on his right side with his left lateral malleolus exposed. We prepped with Betadine and draped a small area around his lateral malleolus. We then marked out a 3 – cm incision just posterior to this and infiltrated 1% lidocaine with 1 : 200,000 epinephrine.

We then used a No. 15 scalpel blade to open the skin and divide down through the subcutaneous layer. We placed a small self-retaining retractor and dissected through several layers of soft tissue and fibrous scar tissue, until we identified a white thick structure. This looked like either a tendon or a very hypertrophied nerve and as such, we took a specimen of it. We then

continued to dissect around and saw another piece of this and also sent this for pathology. The tissue was felt to be very fibrous and as such, this was shown to Dr. Steven Christie, attending Neurosurgery, and the decision was made to send this and if necessary, proceed with repeat procedure if it did not end up being diagnostic. We then irrigated with saline and closed the soft tissue layer with 3 - 0 Vicryl. The skin was closed in subcuticular manner with 4 – 0 Monocryl. Steri-Strips were applied and then a small Mepore dressing.

Addendum: We had a discussion with the neuropathologist who identified that his specimen was more in keeping with a tendon than a nerve. As such, we brought Mr. Doucet back on December 4, 2009, and opened his prior incision, extending it rostrally by another 5 mm. We were able to dissect down and locate the sural nerve, which was in a much deeper location inferior to venous complex than would to be expected. We dissected along the length of the nerve and out an approximately 3 – cm specimen of it and sent this for pathology. We then irrigated and made sure there was good hemostasis.

We then closed the subcutaneous layer with 3-0 Vicryl and the skin with 4 – 0 Monocryl in a subcuticular manner. Steri-Strips were applied and a small Mepore dressing.” [Emphasis Mine] Mr. Doucet’s Progress Following Surgery [ 22 ] Mr. Doucet was discharged from hospital following the second biopsy done by Dr. Christie on December 4, 2009. Mr. Doucet recalls the directions upon his discharge were that he was to keep his foot elevated. Soon after his return to Miramichi, Mr. Doucet was contacted by his family doctor who confirmed the tests in Halifax indicated he did have CIDP. [ 23 ] Mr.

Doucet had difficulties with the surgical wound following his return to Miramichi. He recalls that Extra-Mural were helping him care for the wound and that and one point, it had to be re-sutured. In April 2010, the wound was still closing. During this period, Mr. Doucet remained under the care of this family physician, Dr. Arsenault and neurologist, Dr. Grant. [ 24 ] Mr. Doucet saw Dr. Grant for the first time after the sural nerve biopsy of December 2009 on March 30, 2010: “I last saw him in early December during his admission to the general neurology service here to facilitate a sural nerve biopsy.

This was done mainly to exclude vasculitis and amyloidosis. His biopsy showed neither of these, but it did show marked axon loss and evidence of previous demyelination and remyelination. (…) Unfortunately, he has had problems with infection at the site of his left sural biopsy, and the incision has opened up on at least on occasion, requiring resuturing. Recently, he was provided with an ankle brace which has been helpful and his incision is now finally healing well. (…) On examination, he looked generally well. His left ankle was bandaged and I did not take off the dressing today.

He had a brace for left ankle mainly to limit eversion and inversion , not a full ankle foot orthotic.” [Emphasis Mine] [ 25 ] In the summer of 2010, Mr. Doucet bought an air cast of his own accord. At trial in the summer of 2021, Mr. Doucet explained that the brace was to keep his left foot from turning. Mr. Doucet explained that beginning in 2010 his foot was gradually inverting, and it was weak. He bought the brace at Jean Coutu to try and strengthen the foot and ankle. [ 26 ] Dr. Grant provided a further update on Mr. Doucet’s progress following a visit October 5, 2010. Dr.

Grant noted the following: “He complains of numbness in both feet. There is also numbness in the hands, mainly on the left. His numbness is worse on the evening after he receives IVIg. Regarding motor functions, he notes difficulty moving his toes. He also has developed difficulty everting his left ankle and tends to hold it in a relatively inverted position. This can interfere with walking and he is wearing a brace to try to avoid this problem. This was not an issue when I last saw him .” [Emphasis Mine] [ 27 ] Throughout the summer and fall of 2010, Mr.

Doucet continued his IVIG therapy which was going well as a treatment for the CIDP. At this point, Mr. Doucet recalls he no longer required prednisone, and his insulin had decreased. However, Mr. Doucet testified at trial that he continued to have problems with his left ankle. Mr. Doucet explained he would discuss these problems with his family doctor, Dr. Arsenault, when he saw him and also with Dr. Grant in Halifax. [ 28 ] Mr. Doucet returned to see Dr. Grant and the neurology team in Halifax on July 27, 2012. Dr. Grant’s resident, Dr. Lisa MacInnes noted the complaints related to Mr.

Doucet’s ankle at that time as follows:

“ Mr. Doucet presented today with concerns about his left ankle. He states that he has had gradual onset of inversion of his left foot that he cannot overcome voluntarily . He now walks on the lateral aspect of his foot, although he is still able to golf 3 times per week with aid of his golf cart.

He wears a brace in his ankle and it helps keep his ankle in a more normal position, but it is bothering him a lot, and he is wondering if something can be done. (…) He has a 40-pack-year history of smoking and continues to smoke. (…) The left ankle was very deformed with bony prominence over the lateral malleolus with also some soft tissue swelling. The left ankle was held in inversion, although it was able to be everted passively. He was unable to evert the left foot actively.

Range of motion was also decreased in both feet with limited dorsiflexion, plantar flexion, and eversion of the left ankle. (…) Impression: Mr. Doucet’s CIDP is currently under good control. He now has a chronic left ankle problem with the joint in an inverted position. This is not due to involuntary muscle contraction. The problem may be severe aversion weakness; a tendon was inadvertently removed when a sural nerve biopsy was first attempted several years ago, presumably the peroneus longus or brevis tendon. However, he did not develop this abnormal ankle position immediately after the biopsy.

A second possibility would be early Charcot joint.” [Emphasis Mine] [ 29 ] Mr. Doucet continued to be followed by Dr. Arsenault following the sural nerve biopsies. The first chart entry found, where Dr. Arsenault references Mr. Doucet’s left ankle, is on July 12, 2020. At that time, Dr. Arsenault commented as follows: “Subjective: Is doing quite well. New brace for his left ankle . Is doing qutie well. Will be completely weaned from his prednisone by next week or following. No increase of discomfort in the lower limbs. Pain is increased.

Does not want to increase prednisone re: no control of diabetes.” [Emphasis Mine] [ 30 ] There is no discussion of Mr. Doucet’s left ankle in Dr. Arsenault’s chart notes between July 12, 2020 and June 7, 2012, when Dr. Arsenault notes as follows: “Subjective: Is doing well. No new concerns other than crepitus left ankle and swelling lateral malleolus . Brace is working well. Mood is good. Still following treatment q 3 wks. Will see neurologist in July.” [Emphasis Mine] [ 31 ] Mr. Doucet had 24 visits with his family doctor, Dr. Arsenault, between December 8, 2009 and June 7, 2012.

The only mention of the left ankle after the surgical wound had healed in the spring of 2010 is the entry of June 7, 2012. There is no reference in Dr. Arsenault’s chart to any difficulties associated with Mr. Doucet’s left ankle in the 23 chart entries between December 2009 and June 2012. [ 32 ] Following the July 2012 visit, it appears evident from Dr. Arsenault’s chart notes that the problem with Mr. Doucet’s left foot was becoming increasingly concerning. Dr. Arsenault’s observations of the deterioration in the ankle are noted as follows: August 27, 2012: “Subjective: Was assessed by Dr. Grant.

He suggested to have Dr. DeVries assess his left ankle. This ankle has degenerated in the last month. It is in fact quite unstable. Need to wear a brace at all times.” September 17, 2012: “Subjective: Sore left ankle. Skin erosion at the level of the left lateral malleolus.” September 25, 2012:

“Subjective: Ankle and foot specialists have refused to assess Gerry. Discussion regarding our options at this time. Dr. David was suggested as a very good Ortho to assess this issue. We could also possibly refer to Halifax. Examination: Cellulitis is much improved. Persistence of pathologic inversion of the left ankle. Need to be assessed by specialty.” October 17, 2012: “Subjective: Is not doing well and is somewhat and understandably frustrated with the difficult process in finding an ankle specialist to assess him. We will go ahead and order MRI ankle to accelerate evaluation.

We have called Ortho in Moncton (Dr. David), he suggested MRI and he could assess as intermediate to referral to Fredericton. We discussed this case with Ortho in Halifax. He has a waiting list of 3500 and cannot understand why he was called for this patient when he is the only ankle and foot specialist for all of N.S.. Mr. Doucet is getting worse. His foot is inverting more and more. The brace he is wearing is no longer stabilizing his ankle.” [Emphasis Mine] [ 33 ] As time went on, Mr. Doucet’s CIDP was getting better while the problems with his left foot were getting worse. According to Mr.

Doucet, by the summer of 2012, he was walking on the side of his foot, and there was nothing he could do to keep the foot from inverting. It was around this time that Dr. Grant told Mr. Doucet that his CIDP was in remission. Mr. Doucet found that he had much less tingling in his limbs, and the numbness in his hands and feet were much better in 2012 as opposed to 2009. [ 34 ] During the summer of 2012, Mr. Doucet helped a friend who owned a golf course. Mr. Doucet treated the golf course with pesticides and did some other light maintenance work. Mr.

Doucet was still able to golf somewhat in the summer of 2012 although required the use of a golf cart. Mr. Doucet’s activities increased as the CIDP symptoms were improving. [ 35 ] Mr. Doucet was finally assessed for his left ankle by Orthopaedic Surgeon, Dr. Haene, in late 2012. Dr. Haene agreed to treat Mr. Doucet and operate on his left ankle. Dr. Haene operated on Mr. Doucet twice, first on March 26, 2013 and again on October 28, 2013. Regrettably, these initial surgeries were unsuccessful culminating in the final below-knee amputation of the left limb on June 10, 2014. [ 36 ] Mr.

Doucet participated in multidisciplinary rehabilitation following his amputation which included both physiotherapy and occupational therapy. Mr. Doucet did well with his rehabilitation and was an inpatient from September 18, 2014 until October 3, 2014. Mr. Doucet was able to walk independently on all terrain with the assistance of a cane. Mr. Doucet is described as a “ K-3 ” which means an amputee who, with his prosthetic, is an unrestricted outdoor walker. [ 37 ] Mr. Doucet has never returned to full time employment since 2009. While Mr.

Doucet was able to help out at a golf course in the summer of 2012, he continued to receive long term disability benefits and Canada Pension Plan Disability Benefits. Mr. Doucet turned 65 in the fall of 2020. [ 38 ] Mr. Doucet currently lives independently in a rental home at 308 Air Force Crescent in Chatham, New Brunswick. At the time, he began to have significant problems with his ankle, he was living alone in an apartment in Chatham. [ 39 ] In addition to the challenges experienced with his left ankle, Mr. Doucet was treated by Dr.

Arsenault for CIDP, diabetes, anemia, Chronic Obstructive Pulmonary Disease (COPD), and lumbar pain. Mr. Doucet’s anemia became increasingly challenging requiring frequent transfusions to help boost his system and maintain his energy levels. In 2019, Mr. Doucet was hospitalized with cirrhosis of the liver and a GI bleed. [ 40 ] Mr. Doucet is able to tend to the housekeeping tasks in the interior of his two-bedroom rented home despite his amputation. Mr. Doucet owns a vehicle and is able to look after his transportation needs. Mr.

Doucet has a good friend who assists him when necessary, such as during his post-surgical recuperation periods, but otherwise is largely independent. Mr. Doucet would have difficulty tending to outdoor maintenance or heavier cleaning around a home. At this time, Mr. Doucet is not responsible for the exterior maintenance where he resides. The Experts on Liability Dr. Roger Haene [ 41 ] Dr. Haene is an orthopaedic surgeon who specializes in ankle and foot surgery. Currently, Dr. Haene practices in the United Emirates but was an orthopaedic surgeon in Fredericton at the time of Mr.

Doucet’s orthopaedic surgeries of 2013 and 2014. When Dr. Haene first met Mr. Doucet in 2012, he assumed that the problems with Mr. Doucet’s ankle were related to Charcot disease. Dr. Haene was qualified to tender expert evidence in the field of orthopaedic surgery but was not declared an expert in the field of neurology or neurosurgery. Dr. Haene is the only medical expert that testified who was a treating physician of Mr. Doucet. [ 42 ] Dr. Haene outlined his initial impression and plan for Mr. Doucet in a medical report addressed to Dr. Arsenault on February 20, 2013. This report was directed to Mr.

Doucet’s family physician and was not prepared in conjunction with the legal proceedings. In that report, Dr. Haene states as follows: “(…)

Impression: with degenerative change, no soft tissue reconstructive procedures are indicated. The only operation for him is an ankle fusion. So with neuropathy, he would never be eligible for an ankle replacement and therefore a transfibular lateral approach is the best choice in his case as it provides the best chances for wound healing, bone graft that can be provided locally by the fibula and the most stable mechanical construct. However, the surgery could fail if he continues to smoke, if he walks on the ankle or if his sugars are poorly controlled.

That is why he has the above prerequisites that need to be satisfied before we do the surgery. This is a foot at risk and if the surgery fails, it will hasten the eventual need for amputation. I suspect there is an underlying Charcot arthropathic component to this. I’m not entirely convinced that the alleged accidental sectioning of the peroneal tendon is to blame. If that were the case, I would have expected at least some form of midfoot break with abduction towards the midline.

However, his medial border of the foot is well aligned and therefore I do not think that this came directly as a result of the supposed tendon injury. I suspect that there was an underlying element of Charcot neuropathy. (…)” [Emphasis Mine] [ 43 ] Dr. Haene prepared an operative report following the amputation surgery of Mr. Doucet’s lower left limb on June 10, 2014. In the preoperative diagnosis, Dr. Haene describes the various events which transpired leading up to Mr.

Doucet’s below knee amputation as follows: “(…) This gentleman underwent sural nerve biopsy in 2009 because of developing peripheral neuropathy, and not related to his diabetes mellitus. This occurred in Halifax and unfortunately the peroneus brevis tendon was cut. As a result, he subsequently developed fixed inversion of the left ankle, initially through the subtalar joint and then secondarily through rotation through the ankle. This became arthritic and stiff and eventually, because of the persistent loadbearing on the lateral border of his foot, he developed an ulcer.

At some point, he was referred to me to try and manage his foot ulcer. It became clear that the foot, in order to be made plantigrade, would need an ankle fusion in order to convert a stiff foot in the wrong position to a stiff foot in the correct position. He underwent open ankle fusion on 26 March 2013. Unfortunately, this developed a nonunion, in part because of his persistent smoking and premature weightbearing on a non rocker-soled show (with subsequent substantial leverage back onto the callus). Because of intractable pain from his nonunion, he gave up smoking and agrees to tighten up his glucose control.

Therefore, a revision salvage, procedure was undertaken on 28 October 2013, where the ankle nonunion was taken down and a combined ankles/subtalar fusion with a hind foot nail was undertaken. Unfortunately, that this was too much surgery for his talus, which subsequently developed avascular necrosis. Initially, I thought that this might have been a Charcot process, but in hindsight this was simple avascular necrosis. The talus withered away and therefore there was a combined nonunion in the ankle and subtalar joint, with no bony load-bearing.

As a result, he was bearing is full weight onto the proximal interlocking screws and two distal interlocking screws. The bones of his calcaneus developed a stress facture across the across one of the interlocking bolts of the distal nail, with subsequent loosening of that screw and backing out. This screw was removed but his wound subsequently gave a substantial problems in terms of healing. All manner of modalities were employed, including back therapy as well as Silver dressings.

Eventually, the wound granulated well but unfortunately, during the time frame that the calcaneal would was opened, bacteria managed to slip in and find the avascular necrosis of the talus as well as the metal rod. As a result of this, he went on to develop distal tibial osteomyelitis, together with a talar, calcaneal, navicular and cuboid osteomyelitis. An infected nonunion in a diabetic patient is an unsalvageable situation and it became clear that a below-knee amputation would be required. (…)” [Emphasis Mine] [ 44 ] Dr. Haene testified that given his experience, he felt the portions taken from Mr.

Doucet’s tendon during the first sural nerve biopsy were fairly significant in size. Dr. Haene testified that the portions described by the pathologist would have been roughly 50% of the entire tendon. Dr. Haene concluded, following his treatment of Mr. Doucet, that the problem with the ankle was not related to Charcot. Dr. Haene explained that if the ankle problem was caused by a Charcot process, the ankle would have disintegrated. Dr. Haene is of the view that the only explanation for the failure of Mr.

Doucet’s ankle is the injury to the tendon caused at the time of the unsuccessful sural nerve biopsy of December 3, 2009. In Dr. Haene’s opinion, Mr. Doucet suffered from a mechanical problem related to the lack of tendon strength caused by the weakened tendon due to the biopsies of the tendon. [ 45 ] Dr. Haene was of the view that if there had been any concern over the strength of the tendon following the biopsy, there should have been a referral to orthopaedics. Dr. Haene opines that the failure to refer Mr. Doucet to orthopaedics in December 2009 was negligent. [ 46 ] Dr.

Haene is of the opinion that the amputation of Mr. Doucet’s leg was caused by tendon failure which occurred during the first sural nerve biopsy. Dr. Haene believes there was progressive fraying of that tendon over time following the biopsy which eventually resulted in a rupture. Dr. Haene maintains that it is not a Charcot problem in the case of Mr. Doucet because it is a problem of the support structures and not the bone as the bone itself was not disintegrated. [ 47 ] On cross-examination, Dr. Haene agreed that initially in his consult and operative reports he was of the view that Mr.

Doucet’s problems were caused by diabetes myelopathy and polyneuropathy. Dr. Haene explained that he never turned his mind to the cause of Mr. Doucet’s problem until after he finished treating him. Dr. Haene was not aware of the portion or size of the tendon taken during the December 3, 2009 sural nerve biopsy until after he had finished treating Mr. Doucet. Dr. Haene maintains that the ankle inversion would not have occurred if the tendon had remained in continuity. Dr. Haene does not believe that the tendon was transected during the course of the procedure as if it had been Mr.

Doucet’s deformity would have presented earlier. However, Dr. Haene is of the view that the ankle inversion rapidly progressed to the point it became unmanageable by the summer of 2012. [ 48 ] Dr. Haene confirmed there were compliance issues with Mr. Doucet following the first orthopaedic surgery. Dr. Haene had

requested that Mr. Doucet purchase rocker healed soles to wear following the surgery. Dr. Haene was distressed when at the first appointment following the surgery Mr. Doucet attended wearing flip-flops. Dr. Haene acknowledges the failure to wear rocker soled shoes would have an impact on the healing process. [ 49 ] Dr. Haene was concerned about Mr. Doucet’s smoking and diabetes prior to surgery. He did tell Mr. Doucet for the surgery to be successful, he needed to stop smoking and needed to get his blood sugar under control. Dr. Haene confirmed on cross-examination that he advised Mr.

Doucet the risk of amputation is heightened by smoking and poor sugar control in diabetics. Dr. Haene confirmed that the non-union Mr. Doucet experienced following the first surgery would have been impacted by the fact that he did not stop smoking. [ 50 ] Dr. Haene confirmed on cross-examination that he was not aware Mr. Doucet had a history of frequent falls. Dr. Haene agreed that repeated micro-traumas to the joint of an ankle needs to be considered and could contribute to eventual problems. [ 51 ] On October 23, 2017, Dr. Haene wrote to Mr.

Doucet’s lawyer, Kevin Toner, setting out the following opinion: “October 23, 2017 (…) I have had the opportunity to review my notes, and I am happy to clarify my thoughts on Gerald Doucet’s situation. My final professional opinion as a subspecialist Foot & Ankle Orthopaedic Surgeon is that the alleged transection of the peroneus brevis tendon led directly to the inversion posture about the left foot & ankle. Foot & ankle surgery requires careful consideration of the various factors that may lead to certain foot positions.

At the outset, I was still contemplating whether his peripheral neuropathy might have played a role. In 2013, I thought that his foot shape was not completely specific enough to preclude other causes of inversion. However, as my surgical experience in dealing with foot problems has grown, I have come to appreciate the spectrum of shapes that can occur after the peroneus brevis tendon becomes insufficient. I can confirm that Gerald Doucet’s foot shape was consistent with transection of the peroneus brevis tendon. ” [Emphasis Mine] Dr. Anthony Kaufmann [ 52 ] Dr.

Kaufmann testified as an expert witness on behalf of Mr. Doucet. Dr. Kaufmann is a neurosurgeon and was qualified as an expert witness in the field of neurosurgery. In a report dated August 30, 2016, Dr. Kaufmann explained his opinion that Drs. Harraher and Christie had breached the standard of care in their treatment of Mr. Doucet as follows: “(…) It is my opinion that the standard of care for performing the sural nerve biopsy on December 3, 2009 was not met by Drs. Harraher and Christie.

It is not clear to me whether a neurosurgery trainee had the authority or required hospital privileges to obtain consent and perform independently a procedure such as sural nerve biopsy at QEII Health Sciences Center in Halifax. It is my experience and opinion that a qualified and certified attending neurosurgeon is to be identified on such consent forms and has responsibility to at least supervise if not actively participate in performing such procedures. In this case, it appears that while Dr.

Christie was identified as the “attending neurosurgeon” in the operative report, he did not perform or directly supervise the surgery on December 3, 2009. He was shown the surgical specimens only after they were excised by Dr. Harraher. The surgical specimens were fragments of tendon and muscle (1.5 x 1.0 cm and 1.4 x 0.6 cm) and clearly not the intended spaghetti-like sural nerve specimen (3.5 x 0.5 x 0.3 cm) obtained at repeat surgery the following day.

In my opinion, on December 3, 2009 the resident and/or neurosurgeon did not correctly identify the sural nerve at surgery and did not recognize the tissue biopsied was tendon and did not undertake to better identify and biopsy the sural nerve until the following day at a second surgery, such that the standard of care for sural nerve biopsy was not met. The iatrogenic tendon injury was confirmed by pathology analysis reporting the biopsy specimen was tendon and muscle. Despite this report, no further assessment or evaluation of the extent and significance of the tendon injury was undertaken or recorded.

Specifically, there were no clinical examinations or diagnostic imaging studies such as MRI to delineate the extent of tendon injury undertaken in the early postoperative period. There was also no exploration of the tendon injury undertaken or recorded at the second biopsy procedure performed December 4, 2009. There were no surgical follow-up records evaluating the potential extent and significance of the tendon injury caused by the first surgery. It is my opinion that it would have been foreseeable that the loss of a

section of tendon during surgery performed on December 3, 2009 could have affected Mr. Doucet’s foot. Mr. Doucet’s comorbidities including CIDP were a confounding factor in his evaluation, particularly in evaluating his ankle in the immediate postoperative period. There was however, clear evidence of the tendon injury caused by surgery on December 3, 2009 as confirmed by pathology analysis of the biopsy specimens.

Later investigations including X-ray and MRI as well as surgical exploration confirmed the progressive ankle deformity and problems were not due to a neuropathy or neuropathic process but instead due to tendon injury incurred at the surgery on December 3, 2009. (…)” [Emphasis Mine] [ 53 ] Dr. Kaufmann testified that the portions of tendon taken by Dr. Harraher on December 3, 2009 were “ sizable ”. Dr. Kaufmann explained that Mr. Doucet was a patient at risk given his various co-morbidities and that he should have been sent for a follow up with

orthopaedics. Dr. Kaufmann opined that the failure to refer Mr. Doucet for follow up when it was known that these sections of tendon had been removed in a patient already suffering from sensory loss and weakness of the ankle was negligent. [ 54 ] Dr. Kaufmann further takes issue with Dr. Harraher’s decision to take the two samples on December 3, 2009 when she was not certain they were sural nerve. Dr. Kaufmann suggests that Dr. Harraher ought to have called in Dr. Christie to look at what she had identified before the samples were taken, not after. [ 55 ] While Dr.

Kaufmann conceded on cross-examination that residents are both learners and providers of medical care, he maintained that Dr. Harraher ought to have been under the direct supervision of Dr. Christie at the time she performed the sural nerve biopsy of December 3, 2009. Dr. Kaufmann drew a parallel to pilots indicating that while the pilot will turn over control of the plane to the trainee, he or she will remain in the cockpit. Dr. Kaufmann did acknowledge that the Royal College of Physicians describes the requirement of both direct and indirect supervision in the training of residents. Dr.

Elizabeth Schneider [ 56 ] Dr. Elizabeth Schneider testified as an expert witness on behalf of the Defendants. Dr. Schneider was declared an expert in the field of neurosurgery. Dr. Schneider has been a neurosurgeon since December 1989. Dr. Schneider has been practicing in Sudbury, Ontario since 1991 and works for Health Sciences North. In addition to her clinical work, Dr. Schneider assists in the onboarding of neurosurgery residents. As part of this work, Dr. Schneider supervises residents in both minor and major procedures. Dr.

Schneider was engaged by the Defendants in this matter to prepare a report setting out her opinion on whether or not the Defendant physicians met the standard of care. [ 57 ] Dr. Schneider explained that a sural nerve biopsy is a minor procedure often performed in a minor procedure room and sometimes in the operating room. A six-year neurosurgeon resident or “R-6” as they are often referred, should be able to complete a sural nerve biopsy independently. Dr. Schneider explained that at that point in their training, the resident should have the technical skills necessary to perform the surgery.

Prior to allowing a senior resident to do any procedure including a sural nerve biopsy, Dr. Schneider explained that the supervising doctor would need to be assured that the resident was completely capable of doing the procedure. Dr. Schneider opined that it was reasonable in these circumstances for Dr. Christie to assign the surgery to Dr. Harraher given the fact that she had done one previously on her own, assisted in two previous sural nerve biopsies and observed two sural nerve biopsies. At this point in her training, Dr. Schneider testified it would be reasonable for Dr.

Harraher to undertake the procedure on her own without the necessity of direct supervision. [ 58 ] Dr. Schneider explained that Dr. Harraher had two options once she determined it was uncertain if the structure found was the sural nerve: (1) abandon the procedure or (2) take small samples and send them for a biopsy. Dr. Schneider made the comment at trial that there would have been no benefit to abandon the procedure. Dr. Schneider noted that in Mr. Doucet’s case, the sural nerve was located deeper than expected.

However, the nerve itself as described appeared to have looked normal in comparison to the description of other sural nerves. While Dr. Schneider acknowledged that typically you would only take one specimen, in this case, Dr. Harraher took two smaller pieces as she was not sure what they were. It is appropriate to take smaller pieces when you are unsure of the structure you are removing. Dr. Schneider would have done the same thing as did Dr. Harraher in these circumstances. Dr. Schneider confirmed that the description of the samples taken from Mr.

Doucet represent a normal size and normal colour for a sural nerve. [ 59 ] Dr. Schneider is of the opinion that Mr. Doucet’s ankle inversion was caused by his CIDP which led to the weakness and sensory changes in the ankle eventually leading to the degenerative joint. Dr. Schneider points to Dr. Grant’s observations in July 2009 where the weakness in the muscles of the foot had already been identified and were contributing to balance and gait problems for Mr. Doucet. [ 60 ] Dr. Schneider testified that she would have treated Mr. Doucet exactly as did Drs. Harraher and Christie. Dr.

Schneider was not of the opinion that a referral to orthopaedics was warranted following the biopsies of the tendons as there was no reason to believe that these would lead to problems. Dr. Schneider, like Dr. Christie, would have have explained to Mr. Doucet what had transpired and invited him to contact her if he experienced any difficulties. [ 61 ] Dr. Schneider prepared a report outlining her opinion that neither Dr. Harraher nor Dr. Christie breached the standard of care owed to Mr. Doucet. Dr.

Schneider commented in her September 4, 2018 report as follows: “(…) Sural nerve biopsy is a low risk, relatively simple procedure carried out by neurosurgeons and plastic surgeons for diagnostic biopsy or nerve harvest for grafts. The standard approach is an incision behind the lateral malleolus of the ankle. The nerve is usually located between the lateral malleolus and the Achilles tendon at the ankle level. There are however anatomical variants, and the nerve can be confused with other local structures. The surgical approach used by Dr. Harraher was the customary incision site, although it appears Mr.

Doucet's nerve had a somewhat anomalous course, being deeper than expected. At the time of the biopsy, Dr. Harraher was six months away from completing her residency. At that point in training, she would be performing all but the most complex surgeries on her own, with supervision only. A sural nerve biopsy would certainly fall within the scope of her abilities. As to the question of supervision, this can take several forms. For a complicated high risk procedure (e.g. AVM excision) it would involve being scrubbed with the resident and actively assisting/directing the resident as the procedure goes on.

For a less complicated procedure, especially with a final year resident, supervision often involves reviewing the technical aspects of the operation, the anatomy, anticipated complications and management/avoidance of these complications. It also involves knowledge of the resident's skills and experience with the particular procedure. It can therefore involve being available but not in the operating room or scrubbed. Dr. Christie was appropriately supervising Dr. Harraher in this procedure. It should be noted that Dr, Harraher was concerned that the appropriate specimen was not obtained.

As such, the request was made to

expedite the pathology review and the procedure promptly repeated by Dr. Christie, with an appropriate piece of nerve harvested for diagnosis. A long narrow strip of tendon was removed during the initial biopsy. The tendon was not transected. (I would point to the MRI report of January 7, 2013, which shows a "questionable longitudinal split tear of the peroneus brevis tendon" not a transection.

It also showed "high T2 signal within the peroneus longus tendon suspicious of fraying" and an "anterior talofibular ligament but bulky in appearance suspicious of fraying" i.e. multiple ankle ligaments that showed evidence of wear and injury). The small piece of tendon initially biopsied should not have had an effect on the integrity/function of the tendon which remained intact. Standard of care infers that the actions undertaken are those of a prudent physician under the same circumstances. It does not imply perfection. Dr.

Harraher carried out a standard sural nerve biopsy just as I or any of my colleagues would do. Based on the anomalous anatomy, the first biopsy was not successful. This was identified in a very timely manner, and rectified. At all times, she was under the supervision of Dr. Christie. Based on the above, I would state that the defendants met the standard of care. (…)” [Emphasis Mine] Dr. David Stephen [ 62 ] Orthopaedic surgeon, Dr. David Stephen, testified as an expert witness for the defense. Dr. Stephen was qualified as an expert witness in the field of orthopaedics. Dr.

Stephen set out his initial opinion in an expert report dated April 25, 2017 where he noted as follows: “(…) In my professional opinion, based on detailed review of the submitted documents, it is highly unlikely – bordering on a medical certainty – that the small amount of tendon (this would be millimeters in size) biopsied would lead to a significant inversion deformity, and the requirement for an ankle fusion.

As noted from the medical brief, the MRI scan of January 2013 (over 3 years from the biopsy) showed an abnormality in the lateral ligamentous complex (ATFL – anterior talofibular ligament), as well as some “fraying” of the peroneus longus tendon. The finding of the split peroneus brevis/longus tendon, as I have mentioned previously, is an incidental finding quite often seen in MRI scans of the ankle. The ultimate need for surgical intervention and eventual amputation would be a consequence of complications not related to the biopsy but rather the underlying medical condition of Mr. Doucet (Charcot arthropathy).

Therefore, in conclusion , it would be my professional opinion that the procedure of December 3, 2009 had no impact on the ultimate requirements for ankle fusion and below-knee amputation. (…)” [Emphasis Mine] [ 63 ] Following a review of the expert opinion of Dr. Kaufmann, Dr. Stephen provided a further expert report on December 20, 2019. At that time, Dr. Stephen added the following comments to his earlier opinion: “(…) In my professional opinion, in light of the fact that the muscle/tendon biopsy showed atrophy in the tendon, there would be no role for surgical intervention.

In essence the atrophied muscle/ tendon unit (in this case the peroneal brevis and/or longus) was not functioning normally and was not providing appropriate support for the limb reflective of the reported "loss of balance, and less of strength in the upper and lower extremities. Moreover, in light of the fact that this was a chronic condition of muscular atrophy, bracing or casting of the ankle subsequent to a portion of the tendon being biopsied would not make any material impact on Mr. Doucet's overall function, and long term prognosis/ outcome.

Although his difficulties with weakness may have benefited from bracing this would pre-date and be independent of the biopsy undertaken in December 2009 and in fact bracing was undertaken in 2010. In my opinion, this was indicated for pre-existing disability, not as a result of the biopsies performed in December, 2009. Therefore, I would disagree with the neurosurgeon Dr. Kaufmann that in this case treatment would be required for the resultant tendon disruption from the biopsy of December 3, 2009. I would disagree with Dr.

Kaufmann that the orthopaedic surgery performed in 2013 as well as the amputation in 2014 were related in any material way to the " tendon injury caused by surgery on December 3, 2009 " (page 5 of his report). In my professional opinion, as outlined in my report, the findings from " later investigations ” (alluded to on page 5 of Dr. Kaufmann's report) including an x-ray and MRI were long-standing progressive issues related to the underlying medical condition that pre-dated the biopsy of 2009.

Concerning any disruption of the peroneal tendons from the December 3, 2009 biopsy, it is well known from the orthopaedic textbooks (eg. Mann et al) that peroneal tendons can be utilized for tendon transfers such as reconstruction of lateral ligaments, or other tendon transfers around the foot and ankle. As I have mentioned previously, the findings of a " split peroneus brevis tendon " as noted on the MRI scan is a common incidental finding in my experience that does not require any surgical intervention. CONCLUSION

I would not change my opinion provided in my 2017 report that the eventual need for surgical intervention (attempted ankle fusion) and eventual amputation of the lower extremity was a consequence of complications and progression of underlying pre- existing medical condition that pre-dated the biopsy of December 2009. This would be supported from the pathology reports of the biopsies from December, 2009, and the medical brief, as well as my experience treating many individuals with Charcot arthropathy of the lower extremity. (…)” [Emphasis Mine] [ 64 ] Dr.

Stephen provided an additional report on June 6, 2020 which addressed additional information he had reviewed including Mr. Doucet’s patient charts of his various treating physicians and the February 2020 expert report of Dr. Haene. In particular, Dr. Stephen specifically addresses certain aspects of Dr. Haene’s expert opinion as follows: “(…) Dr. Haene provides his opinion that " None of this would have been an issue if the tendon had not been damaged in the first place. In my opinion, the foot deformity would not have developed and surgery like this would not have been needed in the first place ".

Comment: With respect, I would strongly disagree with this statement. There is extensive evidence in the medical brief of long-standing peripheral neuropathy dating back to at least 2006 in the notes of Dr. Arsenault, with loss of balance, repetitive falls, and variable blood sugar control (elevated Hemoglobin A1C, which is an indication of long-term blood sugar control), as well as the smoking history. Thus the failure of ankle fusion was related to the progressive deformity as a result of Charcot arthropathy, secondary to the diabetic related peripheral neuropathy.

There is further reference to the infection that developed subsequent to the second procedure, ultimately leading to an amputation performed in 2014. In my experience, this is a common outcome of attempted ankle fusion in the setting of advanced polyneuropathy leading to abnormal sensation, and vascular insufficiency, as occurred in this case for Mr. Doucet. Dr.

Haene has one sentence as a conclusion paragraph on page 4: “ The erroneous biopsy of the peroneus brevis muscle led to delayed rupture of the peroneus brevis tendon and severe deformity and destruction of the ankle and development of chronic ulceration along the lateral border of the foot, forcing the need for surgery and leading ultimately to a below-knee amputation ". Comment: I would respectively disagree with this statement for the following reasons. 1) Mr. Doucet had long-standing peripheral neuropathy affecting both his hands and feet.

This led to difficulties with weakness in his lower extremities resulting in frequent falls and imbalance issues. He was a long-standing smoker (between 1 and 2 packs a day for over 40 years) and a poorly controlled diabetic on both opal hypoglycemic medication as well as insulin. 2) The biopsy that was undertaken December 3 end 4, 2009 did take a small portion of musculotendinous material but as reported by the radiologist, this muscle and tendon were atrophic due to long-standing polyneuropathy.

It is unclear whether this was peroneus brevis or peroneus longus and in my opinion, there is no definitive way to tell. 3) More significantly the MRI scan of 2012 demonstrated that the peroneus longus and brevis tendons were intact, and although there was a longitudinal split in the peroneus brevis tendon, this was outside the area of the biopsy and as I have mentioned previously, this is a common incidental finding on MRI scans of the foot and ankle performed for other reasons. I would agree with the report of Dr.

Finnegan in this regard and that the abnormality in the lateral ligament complex (anterior talofibular ligament) is a result of repeated inversion injuries due to the previously noted difficulties with balance for Mr. Doucet. 4) In my professional opinion, independent of the biopsy of 2009, Mr. Doucet would have required bracing of his foot and ankle (ankle foot orthosis) for repeated falls and progressive deformity. Based on the time course of the deformity (2012), and the fact that there was maintained eversion power of approximately 4/5, as noted on Dr.

Grant's consult in 2010, the material sampled at the time of the biopsy on December 3, 2009 would not be the cause of the eventual need for a below-knee amputation. (…)” [Emphasis Mine] [ 65 ] Dr. Stephen concludes his June 2020 report as follows: “(…) CONCLUSION In my professional opinion, on the balance of probability, the biopsy of December 3, 2009 that resulted in a small sample of atrophic (non-functioning) musculotendinous material did not result in the ultimate requirement for a left below-knee amputation.

Progressive ankle-deformity (over 2 years from the biopsy) was a result of repeated falls, which likely (as demonstrated on the MRI scan) caused disruption of the lateral ligament complex resulting in persistent and progressive deformity. In my professional opinion, the ultimate requirement for a below-knee amputation was a chronic deep infection, which was the result of long-standing diabetes and resulting in not only impaired neurologic status (sensation and strength), but also impaired vascular (blood supply) status to the lower extremities. (…)”

[Emphasis Mine] [ 66 ] At trial, Dr. Stephen confirmed his opinion that had he been consulted by Mr. Doucet’s physicians in December 2009, he would not have repaired the tendon biopsied by Dr. Harraher. Dr. Stephen noted that the tendon was not functioning normally at the time, and the samples taken were small. In these circumstances, Dr. Stephen opines repair of the tendon in question would not have been warranted. On cross-examination, Dr. Stephen conceded that if more than 50 percent of the tendon is disrupted, you may need to use a surgical option to repair it. However, on re-direct, Dr.

Stephen clarified that in the case of Mr. Doucet, he would not have considered a surgical option even if 100 percent of the tendon was disrupted because the tendon was non-functional and further surgery would just put Mr. Doucet more at risk. Dr. Martin Finnegan [ 67 ] Radiologist, Dr. Martin Finnegan, testified as an expert witness for the defense. Dr. Finnegan was declared an expert witness in the field of diagnostic radiology including muscle-skeletal radiology with the ability to provide opinion evidence on the diagnosis and characteristics of foot/ankle diseases and disorders. Dr.

Finnegan provided a medical report dated May 11, 2020 setting out his conclusions following a review of Mr. Doucet’s radiological studies. Dr. Finnegan described his observations of the peroneal tendons in Mr. Doucet’s left foot as follows: “(…) The peroneal tendons are intact above the tibiotalar joint. As they approach the posterior aspect of the distal fibula the peroneus brevis tendon is the more anterior. It is intact with a flat and elongated appearance in the axial plane. The longus tendon is more posterior and rounded.

As they curve around the posterior aspect of the distal fibula in their expected course the peroneus longus tendon develops an irregular appearance with mixed signal consistent with a chronic partial thickness tear. The peroneus brevis tendon demonstrates a longitudinal split tear just distal to this. These changes worsen as the peroneal tendons pass the posteroinferior aspect of the lateral malleolus.

It should be noted that the posterior malleolus is convex and demonstrates prominent irregular osteophyte formation, both of which predispose to chronic partial thickness tears as a result of chronic repetitive stress. There is also thickening of the superior peroneal retinaculum (which acts to hold the tendons in place). This is felt to be due to chronic inflammation. Distal to the fibula the tendons assume a more horizontal course as they leave the ankle and pass towards the foot.

The distal peroneus brevis tendon transitions from a partial thickness tear to a full thickness tear as it extends towards its insertion on the base of the fifth metatarsal The distal peroneus longus tendon demonstrates a severe partial thickness tear as it extends into the plantar aspect of the foot. It is important to note that as the tendons pass the distal fibula and extend into the foot that they should be well beyond the sural nerve biopsy site. The anterior talofibular ligament is abnormal and appears chronically torn. This is the ankle ligament most commonly injured in an ankle inversion.

This appearance is consistent with prior ankle sprain, single or multiple. (…)” [Emphasis Mine] [ 68 ] Dr. Finnegan goes on to provide the following conclusions in his report: “(…) Conclusions: 1. I see no evidence of tendon transection in the region of the expected site of biopsy above the tibiotalar joint. 2. There are chronic peroneal tendon tears which are commonly seen and these tears occur in the typical location near the distal fibula and extending towards the foot.

These are felt to be due to chronic repetitive stress related to a convex appearing distal fibula with prominent osteophyte formation as well as bulky talar osteophytes. These talar osteophytes protrude quite laterally, in part due to significant ankle inversion. Note is also made of a chronic appearing injury to the anterior talofibular ligament. This is felt to represent the sequela of one or more ankle inversion injuries. If there is a history if such then this could also explain the appearance of the ATFL and the peroneal tendons, which can often be injured secondarily.

Given that this patient has a polyneuropathy, I suspect that they may be more prone to ankle injury and this could be verified from history. 3. There is significant atrophy and edema involving multiple muscle groups consistent with stated history of polyneuropathy. It should be noted that the ankle inversion developed between x-rays performed 04/01/10 and 22/06/12 and this is presumed to have occurred as a result of underlying chronic neural disorder. (…)” [Emphasis Mine] [ 69 ] In his trial testimony, Dr.

Finnegan noted that at the expected site of the biopsy from December 2009, there is no sign of transection of the tendon. Dr. Finnegan explained that the MRI done in 2012 of the left ankle shows the tendon above the malleolus is normal, and the tendon below gets worse and worse the further away it gets from the malleolus. Dr. Finnegan did not identify any discontinuity in the tendon but found it to be irregular. [ 70 ] At trial, Dr. Finnegan described what he was seeing of Mr. Doucet’s left ankle in the radiological findings as a “ house of cards ”. Dr.

Finnegan noted that there were abnormalities in almost every structure of the left foot/ankle with severe osteoarthritis. However, at the site of where the biopsy took place Dr. Finnegan observed the tendons appeared to be homogenous.

The Experts on Damages Dr. Bruce Empringham [ 71 ] Dr. Bruce Empringham is a medical doctor employed by Canada Life specializing in the preparation of mortality assessments. Dr. Empringham was asked by the Defendants in this matter to prepare a mortality opinion on Mr. Doucet based upon his medical records. Dr. Empringham identified various factors in considering Mr. Doucet’s mortality which included diabetes, peripheral neuropathy, CIDP, below knee amputation, a history of falls, GI bleeds, cirrhosis, portal hypertension, a history of alcoholism, and smoking. Following his review of these various factors, Dr.

Empringham estimated Mr. Doucet’s life expectancy at seven to eight years. In concluding that Mr. Doucet’s life expectancy was approximately seven to eight years, Dr. Empringham indicated the most relevant factors concerning Mr. Doucet’s mortality were cirrhosis, diabetes, neuropathy (related falls), and sleep apnea. Mark McGovern [ 72 ] Mark McGovern prepared a report on behalf of Mr. Doucet setting out his employability and residual earning capacity. Mr. McGovern reviewed in detail Mr. Doucet’s significant employment history leading up to his withdrawal from the workforce in 2009. Mr.

McGovern further identified various positions that would have remained available and feasible for Mr. Doucet had he not been required to undergo the below knee amputation in June of 2014. Mr. McGovern’s opinion was that absent the complications with the left ankle and the ultimate requirement for the amputation, Mr. Doucet would have been capable of working from the time his CIDP went into remission in July 2012 until approximately October 2015 or March 2018. Mr. McGovern anticipated potential wage ranges had Mr. Doucet returned to work between July 2012 and October 2015 at between $ 227,760.00 and $ 613,200.00.

Warren Comeau [ 73 ] Warren Comeau prepared a cost of care and loss of valuable services report for Mr. Doucet dated January 11, 2018. Mr. Comeau also testified at trial and provided up to date figures. Mr. Comeau set out in detail the various treatments, aides, equipment, maintenance costs, support and medications Mr. Doucet has required and will be likely to require in the future. Similarly, Mr. Comeau explained Mr. Doucet’s needs for valuable services past and future as well as the anticipated costs of securing these services.

Sean Fitzgerald [ 74 ] Sean Fitzgerald was retained by the Defendants to prepare both a future cost of care and valuable services report as well as a vocational analysis report. At trial, Mr. Fitzgerald commented upon the reports of Mr. McGovern and Mr. Comeau, as did they on Mr. Fitzgerald’s reports. Mr. Fitzgerald concluded that Mr. Doucet would not have been able to return to work in either 2012 or 2015 in the absence of the difficulties with his left ankle given the extent of his other disabling medical conditions. Mr.

Fitzgerald also identified various treatments, equipment and supports that will be necessary for Mr. Doucet’s care both in the past and future. Mr. Fitzgerald agreed with some of Mr. Comeau’s suggestions and disagreed with others. Like Mr. Comeau, Mr. Fitzgerald provided detailed tables setting out the various suggested supports and services along with the anticipated costs of each. Kelley McKeating [ 75 ] Actuary Kelley McKeating was retained by Mr. Doucet to provide an actuarial valuation of his potential damages. Ms. McKeating testified at trial and provided an actuarial report dated February 8, 2021.

In her report, Ms. McKeating includes a table setting out in succinct form all of Mr. Doucet’s earnings listing from 1996 until 2010 as follows: Year Employment (T4) Other Empl’t (Line 104) EI Total 1996 $ 51,802 - - $ 51,802 1997 ? - - $ 51,265 1998 $ 53,006 - - $ 53,006 1999 $ 60,149 - - $ 60,149 2000 $ 67,808 - - $ 67,808 2001 $ 70,244 - - $ 70,244 2002 $ 71,671 - - $ 71,671 2003 $ 76,048 - - $ 76,048 2004 ? - - ? 2005 $ 74,679 - - $ 74,679 2006 $ 64,512 - $ 1,239 $ 65,751 2007 $ 84,612 - - $ 84,612 2008 $ 57,123 - - $ 57,123 2009 $ 26,412 $ 370 $ 6,705 $ 33,487 2010 - $ 138 - $ 138

[ 76 ] Ms. McKeating prepared various tables to quantify Mr. Doucet’s losses based upon certain assumptions. Ms. McKeating relied upon the conclusions drawn by Mr. McGovern and Mr. Comeau in quantifying the various losses and applying appropriate discount rates. In her first table, Ms. McKeating assumed that Mr. Doucet would have returned to Castle Machine Works and she applied a 0% discount rate for 15 years and then a 2.5% discount rate. Applying these assumptions and considering the conclusions of Mr. McGovern and Mr. Comeau, Ms. McKeating quantified Mr. Doucet’s pecuniary losses as follows: Return to Work Head of Damage Reference July 27, 2012 October 6, 2015 Future Care Costs Per

Schedule III $ 606,029 $ 606,029 Investment Management Fees Per

Schedule IV $ 60,678 $ 60,678 Income Tax Gross- up Per

Schedule V $ 32,679 $ 32,679 Total Future Losses $ 699,386 $ 699,386 Past Lost Earnings Per

Schedule II-A $ 523,561 $ 322,823 Past Care Costs Per

Schedule II-B $ 52,291 $ 52,291 Past LVS Per

Schedule II-B $ 3,513 $ 3,513 Total Past Losses $ 579,365 $ 378,627 Total Losses $ 1,278,751 $ 1,078,013 [ 77 ] Ms. McKeating prepared a similar assessment of Mr. Doucet’s losses but used an alternate discount assumption of 2.5%. This alternate discount rate resulted in the following assessment of pecuniary losses according to Ms. McKeating: Return to Work Head of Damage Reference July 27, 2012 October 6, 2015 Future Care Costs Per

Schedule III $ 505,641 $ 505,641 Investment Management Fees Per

Schedule IV $ 43,655 $ 43,655 Income Tax Gross- up Per

Schedule V $ 47,395 $ 47,395 Total Future Losses $ 596,691 $ 596,691 Past Lost Earnings Per

Schedule II-A $ 523,561 $ 322,823 Past Care Costs Per

Schedule II-B $ 52,291 $ 52,291 Past LVS Per

Schedule II-B $ 3,513 $ 3,513 Total Past Losses $ 579,365 $ 378,627 Total Losses $ 1,176,056 $ 975,318 POSITION OF THE PARTIES Position of the Plaintiff [ 78 ] Mr. Doucet acknowledges that he was suffering significant effects from his CIDP when he underwent the biopsies in December 2009. Mr. Doucet submits that the portions of tendon taken by Dr. Harraher on December 3, 2009, significantly weakened the structure of his tendon eventually leading to its collapse and resulting in his inverted ankle. Mr. Doucet maintains that the difficulties with his left ankle became apparent within weeks of the surgery and were reported to Dr. Grant in March 2010. Mr. Doucet had to purchase a brace to

help keep his foot in position within weeks of the surgery itself, long prior to when the surgery had healed. As Mr. Doucet’s left ankle became weaker and more inverted, his CIDP symptoms gradually improved. In the summer of 2012, Mr. Doucet was able to golf and work on a casual basis at a golf course for one of his friends. [ 79 ] Mr. Doucet suggests that but for the significant trouble with his left ankle he could have returned to some form of gainful employment in the summer of 2012. Mr.

Doucet further states that while he was a smoker, had been a consumer of alcohol and was diabetic; these problems were all under control at the time of the orthopaedic surgeries performed by Dr. Haene. Mr. Doucet acknowledges that he did not immediately purchase rocker soled shoes following the first orthopaedic surgery and that he continued to smoke for a certain period of time. However, Mr. Doucet points out his blood sugars were relatively well-controlled and otherwise he followed medical recommendations. [ 80 ] Mr.

Doucet acknowledges that by 2019, he was experiencing significant complications as a result of anemia and at that point would have ceased working regardless of the leg amputation. Mr. Doucet maintains that “ but for ” the injury to his tendons on December 3, 2009 he would not have required the subsequent orthopaedic surgeries and eventual amputation of his left leg. Mr. Doucet asks this Court to find both Dr. Harraher and Dr. Christie breached the standard of care owed to him in the manner in which the procedure of December 3, 2009 was performed. Mr.

Doucet claims loss of income for the period between 2012 and 2018 when, according to him, he would have been able to return to work given the remission of his CIDP were it not for the left ankle troubles. Mr. Doucet also seeks compensation for his pain and suffering, loss of valuable services as well as past and future costs of care. Position of the Defendants [ 81 ] The Defendant suggests that all physicians follow the guiding principle in the treatment of their patients of “ do no harm ”. In the circumstances of this case, the Defendant states it was reasonable for Dr.

Harraher to take the two small samples on December 3, 2009 and determine if they could be diagnostic. Likewise, it was reasonable for Dr. Christie to wait to review the outcome of the pathology results prior to returning to the operative field. The Defendants point out that they are the guardians of the healthcare system. In these circumstances, it would not have been reasonable to consult with orthopaedics. Dr. Christie and Dr. Harraher explained the situation fully to Mr. Doucet and made it known to him that the samples taken on December 3, 2009, were tendon and muscle and not the sural nerve. Dr.

Christie acknowledged he would have likely told Mr. Doucet that no complications were expected as a result of the procedure. He would have also informed Mr. Doucet to contact them if he had any difficulties. The Defendants suggest that their care of Mr. Doucet in these circumstances was that of reasonable and prudent physicians. [ 82 ] The Defendants maintain the opinions of the plaintiff’s experts must be looked at cautiously. The Defendants point out that initially Dr. Haene was of the opinion the left ankle difficulties were caused by Charcot neuropathy. Dr.

Haene was not convinced that the tendon injury played a role in Mr. Doucet’s left ankle problems. The Defendants maintain that the radiological evidence in this matter does not show any discontinuity of the tendons. The Defendants also suggest that Dr. Kaufmann analyzed the situation in retrospect and held the physicians to a standard of perfection. The Defendants point to the evidence of Dr. Stephen and Dr. Schneider that the inversion of Mr. Doucet’s left ankle was likely the result of underlying neuropathy and would have occurred in the absence of the December 2009 biopsy.

The Defendants further maintain that radiological reports confirm Mr. Doucet had osteoarthritis which predated the biopsy of 2009 and got progressively worse over time. [ 83 ] The Defendants dispute the plaintiff’s assertion that “ but for ” the ankle inversion he could have returned to work in July 2012. The Defendants point out that in the summer of 2012, Mr. Doucet still required IVIg therapy and had several other health problems including worsening back pain as a result of degenerative disc disease. The Defendants suggest that Mr.

Doucet’s anemia was getting worse as early as 2015 when he reported to be very tired. These problems predated his diagnoses of portable hypertension and cirrhosis of the liver which occurred in the summer of 2019. The Defendants maintain that Mr. Doucet would never have been in a position to return to work after 2009 given his various medical conditions and limitations. LAW AND ANALYSIS [ 84 ] This is a claim in negligence. While the action is the result of medical malpractice, the basic concepts of negligence law apply. Mr. Doucet must establish that Dr. Harraher and Dr.

Christie owed him a duty of care, that they breached the standard of care in the circumstances, and as a result of that breach, Mr. Doucet suffered damages. In the present matter, it is conceded that Dr. Harraher and Dr. Christie owed Mr. Doucet a duty of care. However, the parties diverge on setting out what the standard of care was in these circumstances and whether or not that standard, once confirmed, was breached. Finally, the parties view the issue of causation very differently. Mr.

Doucet asserts that but for the negligence of the physicians in the performance of the sural nerve biopsy on December 3, 2009 he would not have suffered the injury to the tendon, the subsequent development of the left ankle inversion nor the requirement for the below knee amputation. The defending physicians maintain there is no causal link between the sural nerve biopsy of December 3, 2009 and the requirement for the below knee amputation. The defending physicians suggest this unfortunate outcome was inevitable for Mr. Doucet even in the absence of the December 2009 surgical procedure.

What was the appropriate standard of care owed by the Defendant Physician to Mr. Doucet and was that standard of care breached in these circumstances? [ 85 ] Mr. Doucet maintains that Dr. Harraher performed an unsuccessful sural nerve biopsy on December 3, 2009 and in the process removed two pieces of tendon which subsequently resulted in the inversion of his left ankle ultimately requiring the amputation of his left lower limb. Mr. Doucet maintains that in excising the pieces of tendon as she did, it is evident that Dr. Harraher was too deep into the surgical space. Mr. Doucet suggests that Dr.

Harraher did not recognize that she had gone beyond the tendon sheath. Mr. Doucet suggests that what Dr. Harraher identified as “ abnormal anatomy ” was actually “ normal anatomy ” in the wrong area. Dr. Harraher was lost in the surgical field and didn’t recognize her surroundings. Mr. Doucet argues that Dr. Harraher should not have made the cut until Dr. Christie was present to orient her. Dr. Christie could not orient her as he was not in the room, and she didn’t seek help until after she

had made the cuts to the tendon. [86] Dr. Harraher was a senior resident nearing the end of her training in December of 2009. Mr. Doucet points out that Dr. Harraherhad an obligation to ensure she had the necessary skill and training to do the sural nerve biopsy independently. Mr.

[…]